Citation: R v Dampf; R v Tao [2016] NSWDC 323
Court: District Court of New South Wales
Date: 25 August 2016
Judge(s): Berman SC DCJ
Background
A drug importer arrived at Sydney Airport in July 2014 carrying more than three-quarters of a kilogram of pure heroin concealed in a bottle. Police arrested him and, upon finding documents linking him to a self-storage unit in Waterloo, searched that unit and discovered a further 242.6 grams of pure heroin inside a microwave oven. The heroin had a wholesale value of between $140,000 and $150,000 and a potential street value of up to $700,000.
From custody, the importer contacted two associates, the two offenders before the court, and asked them to attend the storage unit and remove the drugs before police found them. The importer signed written authorities, eventually on his solicitor's letterhead, to allow the two men access to the unit. On 26 July 2014 the two offenders attended the facility and presented the authority, but staff refused them entry.
The offenders never returned to the unit. They apparently learned on 1 August 2014 that police had already located the drugs. Both men were subsequently charged with attempting to gain possession of a prohibited drug. A fingerprint belonging to one offender was found on a container inside the storage unit, raising the possibility of prior involvement, though the court could not make that finding to the required criminal standard.
Legal Issues
- What sentence was appropriate for two older offenders who attempted to take possession of a large quantity of heroin, not for personal use or sale, but to prevent police from finding it on behalf of an imprisoned associate?
- Whether the offenders' lack of knowledge of the precise quantity of drugs reduced their moral culpability.
- Whether a suspended sentence was sufficient, or whether a custodial sentence (including an Intensive Corrections Order) was required.
- How to weigh the relevant aggravating and mitigating factors, including prior criminal history, one offender's parole status at the time of the offence, health issues, age, and the nature of their motivation.
Decision
The court found that the offenders' lack of knowledge of the exact quantity of drugs did not reduce their moral culpability. Both men were willing to remove whatever quantity was present, whether it was two grams or two kilograms. The court rejected the submission that this ignorance was a mitigating factor.
The court accepted that the offenders' motivation was unusual: they acted out of misguided loyalty to the importer rather than for financial gain or personal use. They did not initiate the scheme; the request came to them. However, the court emphasised that they should have refused, and that both offenders were reckless as to whether the drugs would ultimately be supplied.
On the question of personal history, the court noted that both offenders were mature men with long histories of drug-related offending. One offender was on parole at the time of this offence, which was an aggravating factor. The court was careful not to double-count, noting that the parole revocation had already resulted in five months of custody attributable to this offence. Both men had significant health issues that would make any custodial sentence harder to bear, and the court took this into account.
The court determined that a suspended sentence was insufficient, particularly for the offender who had been on parole. The maximum penalty for the offence was two years imprisonment, and because the sentences imposed would fall below that maximum, all alternatives to full-time custody were available. The court ordered that both offenders be assessed for suitability to serve their sentences by way of an Intensive Corrections Order.
Orders Made
• Each offender to be sentenced to a custodial sentence of less than two years imprisonment
• Each offender to be referred for assessment as to suitability to serve the sentence by means of an Intensive Corrections Order
Key Takeaways
- An offender's ignorance of the precise quantity of a prohibited drug does not automatically reduce moral culpability where that offender was willing to take possession of whatever amount was present.
- The District Court treated the offenders' unusual motivation (acting to protect an imprisoned associate rather than for profit or personal use) as a relevant sentencing consideration, though not one that negated the need for a custodial sentence.
- Being on parole at the time of an offence is an aggravating factor; however, where parole revocation has already resulted in time served, a sentencing court must take care not to count that circumstance twice.
- A maximum penalty of two years imprisonment for an attempt to gain possession of a prohibited drug meant the full range of sentencing alternatives to full-time custody remained open, and the court referred both offenders for Intensive Corrections Order assessment.
- Significant personal health issues, advanced age, and demonstrated familial responsibilities were accepted as relevant mitigating factors capable of affecting the nature and weight of the sentence, even where a custodial term was considered unavoidable.
Legislation and Cases Referenced
Legislation: Not specified in the judgment.
Cases: Not specified in the judgment.