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District Court 11 November 2016

R v McGlone, Richard; R v McKell, Jason Troy

[2016] NSWDC 418

DrugsFraud & dishonesty
CRIMINAL SENTENCE IMPORT COMMERCIAL QUANTITY BORDER CONTROLLED PRECURSOR PSEUDOEPHEDRINE DEALING WITH PROCEEDS OF CRIME

Citation: R v McGlone, Richard; R v McKell, Jason Troy [2016] NSWDC 418
Court: District Court of New South Wales
Date: 11 November 2016
Judge: King SC DCJ

Background

Two co-accused, a freight movements manager and a personal trainer, were convicted by jury on 21 July 2016 of serious Commonwealth drug importation offences. The offences arose from a joint operation involving three air freight consignments imported into Australia in May 2013. Law enforcement intercepted two of the three consignments.

The second consignment contained 63,177.1 grams of pure pseudoephedrine (a border-controlled precursor used to manufacture methamphetamine), concealed in pails falsely labelled as adhesive and sent from Dhaka, Bangladesh. The third consignment contained 5,698.6 grams of pure methamphetamine, hidden in talcum powder bottles. The first consignment was not intercepted and contained no identified prohibited substance, but was relevant as evidence of the method used to deceive customs authorities.

Following their arrest on 20 May 2013, police located substantial cash at both men's residences. The freight movements manager had $400,150 in his bedroom; the personal trainer had $42,550 concealed in a wardrobe and secreted within furniture. These amounts formed the basis of separate proceeds-of-crime charges.

  • What sentences were appropriate for each offender in respect of the importation of a commercial quantity of a border-controlled precursor (pseudoephedrine)?
  • What sentences were appropriate for conspiring to import a commercial quantity of a border-controlled drug (methamphetamine)?
  • What sentences were appropriate for dealing with proceeds of crime?
  • How should the sentences be structured, including accumulation and the setting of non-parole periods?
  • What was the appropriate approach to parity between the two co-offenders, given their different roles and the different amounts of cash found in their possession?

Decision

King SC DCJ sentenced both offenders across three sets of offences, applying accumulation to produce aggregate sentences. The court considered each offender's role in the conspiracy, their personal circumstances, the quantities of drugs involved, the maximum penalties prescribed by the Criminal Code Act 1995 (Cth), and relevant principles of parity between co-offenders (that is, the requirement that sentences for comparable offenders should not be unjustifiably disparate).

For the freight movements manager (McKell), the court found his position as Movements Manager at an air freight company was central to the offending. He used his workplace access and authority to facilitate the importation scheme, directing a subordinate to track the consignments through false airway bill inquiries. The court also took into account an additional Customs Act offence (intentionally moving goods subject to customs control in relation to Consignment 1) under the section 16BA "form 1" procedure, which carried only a pecuniary penalty. McKell's total effective sentence was 18 years and 6 months, with a non-parole period of 11 years and 9 months, expiring 18 April 2028.

For the personal trainer (McGlone), the court structured three cumulative sentences. The proceeds-of-crime sentence of five years commenced 30 January 2016 (backdated to account for pre-sentence custody). The conspiracy to import methamphetamine sentence of ten years commenced one year later, on 30 January 2017. The pseudoephedrine importation sentence of 16 years commenced on 30 January 2019. The total effective sentence was 19 years, with a non-parole period of 12 years expiring 29 January 2028.

The slightly longer total sentence for McGlone, despite the smaller cash amount found at his premises, reflected the court's assessment of the overall criminality involved and the different structure of the proceeds-of-crime offences applying to each man. Both men's non-parole periods were set to expire at approximately the same time, reflecting the parity principle in operation across the co-offenders.

Orders Made

McKell:
- Convicted of importing a commercial quantity of a border-controlled precursor (pseudoephedrine, 63,177.1 grams pure), contrary to s 307.11(1) of the Criminal Code Act 1995 (Cth)
- Convicted of conspiring to import a commercial quantity of a border-controlled drug (methamphetamine, 5,698.6 grams pure), contrary to ss 307.1(1) and 11.5(1)
- Convicted of dealing with proceeds of crime ($400,150), contrary to s 400.6(1)
- Additional Customs Act offence taken into account under s 16BA of the Crimes Act 1914 (Cth)
- Total sentence: 18 years and 6 months imprisonment
- Non-parole period: 11 years and 9 months, expiring 18 April 2028; ordered to be released on parole on that date

McGlone:
- Convicted of the same pseudoephedrine importation and methamphetamine conspiracy offences
- Convicted of dealing with proceeds of crime ($42,550), contrary to s 400.4(1)
- Proceeds-of-crime sentence: 5 years, commencing 30 January 2016, expiring 29 January 2021
- Methamphetamine conspiracy sentence: 10 years, commencing 30 January 2017, expiring 29 January 2027
- Pseudoephedrine importation sentence: 16 years, commencing 30 January 2019, expiring 29 January 2035
- Total effective sentence: 19 years, commencing 30 January 2016, expiring 29 January 2035
- Non-parole period: 12 years, expiring 29 January 2028; ordered to be released on parole on that date

Key Takeaways

  • A person's occupational position can be a significant aggravating factor in drug importation sentencing where that position was integral to the commission of the offence, as illustrated by the freight manager's use of his workplace authority and access to facilitate the scheme.
  • Parity between co-offenders does not require identical sentences; it requires that sentencing outcomes not be unjustifiably disparate when the overall criminality, roles, and circumstances of each offender are weighed together.
  • Under the Criminal Code Act 1995 (Cth), the offence of importing a commercial quantity of a border-controlled precursor carries a maximum of 25 years imprisonment, while conspiring to import a commercial quantity of a border-controlled drug carries a maximum of life imprisonment. These maximum penalties anchored the court's calibration of the head sentences.
  • Accumulation of sentences across multiple offences arising from the same criminal enterprise is permitted and was applied here, with the court staggering commencement dates to build a structured total sentence.
  • Pre-sentence custody was expressly taken into account in backdating sentence commencement dates, ensuring the period already served was credited against the overall term.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 307.1(1), 307.11(1), 11.5(1), 400.4(1), 400.6(1)
- Crimes Act 1914 (Cth), s 16BA
- Customs Act 1901 (Cth), s 33(1)

Cases:
- R v Isaacs (1997) 41 NSWLR 374
- Olbrich v The Queen (1999) 199 CLR 270
- Wong v The Queen; Leung v The Queen (2001) 207 CLR 584
- R v Nguyen and Ors (2005) 157 A Crim R 80
- R v Kaldor (2004) 150 A Crim R 271
- DPP (Cth) v El Karhani (1990) 21 NSWLR 370
- R v Cheung Wai Man and Ors (NSWSC, 22 March 1991, unreported)
- R v Riddell (2009) NSWCCA 96
- R v Stanbouli [2003] NSWCCA 355
- R v Pang (1999) 105 A Crim R 474
- Onuorah v R (2009) NSWCCA 238
- Pearce v The Queen (1998