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District Court 16 September 2016

R v CHU

[2016] NSWDC 428

Drugs
CRIMINAL

Citation: R v CHU [2016] NSWDC 428
Court: District Court of New South Wales
Date: 16 September 2016
Judge: Judge S Norrish QC

Background

The offender, a 25-year-old Taiwanese national, was arrested in Sydney on 20 November 2014 after taking delivery of a consignment concealing approximately 7.95 kilograms (pure weight) of methamphetamine. The drugs had been hidden inside hollow metal gear shafts shipped from Hong Kong and addressed to a fictitious business at a residential property in Auburn, New South Wales.

Australian Border Force and AFP officers had identified the drugs on arrival, substituted an inert substance, and conducted a controlled delivery. The offender signed for the consignment at the door, directed officers to place it in a bedroom, and was arrested later that afternoon when AFP members executed a search warrant at the premises.

The offender pleaded guilty to one count of attempting to possess a commercial quantity of a border controlled substance (methamphetamine) contrary to sections 11.1(1) and 307.5 of the Criminal Code 1995 (Cth). He had been in custody since the date of his arrest.

  • What sentence was appropriate for an attempt to possess a commercial quantity of methamphetamine, where the pure weight exceeded the commercial threshold by a significant margin?
  • What weight should be given to the offender's role in the broader importation operation?
  • How should the sentencing court treat mitigating factors, including the guilty plea, the offender's age, his lack of prior convictions, and his foreign national status?
  • What non-parole period was appropriate under the Crimes Act 1914 (Cth)?

Decision

Judge Norrish found that the quantity of methamphetamine involved, nearly 8 kilograms of pure drug with a street-level value in the tens of millions of dollars, placed the offending at a high level of objective seriousness. The commercial quantity threshold for methamphetamine is 2 kilograms, and the quantity here was approximately four times that amount.

On the question of the offender's role, the court accepted that the offender was not the organiser of the scheme. The elaborate infrastructure, including a leased premises, a fictitious consignee business, a SIM card purchased in the offender's absence, and coordination from Taiwan, pointed to a wider criminal network. The court characterised the offender's role as a courier or receiver operating under instruction, though it noted that even couriers in commercial-quantity drug operations bear serious criminality.

The court afforded a discount for the guilty plea, acknowledged the offender's youth and the absence of prior convictions, and noted the particular hardship that a term of imprisonment carries for a foreign national separated from family and support networks. However, these factors did not substantially reduce a sentence that general deterrence and the protection of the community required to be substantial.

Judge Norrish sentenced the offender to eight years and one month imprisonment with a non-parole period of five years. The court noted that upon completing his sentence, the offender would inevitably be subject to immigration detention and deportation to Taiwan.

Orders Made

  • The offender was convicted of the offence charged.
  • Total sentence of eight years and one month imprisonment, commencing 20 November 2014 and expiring 19 December 2022.
  • Non-parole period of five years, commencing 20 November 2014 and expiring 19 November 2019.

Key Takeaways

  • Attempted possession of a commercial quantity of a border controlled substance carries a maximum penalty of life imprisonment under the Criminal Code 1995 (Cth), and quantities well in excess of the commercial threshold will attract substantial head sentences.
  • A courier or receiver role in a large-scale importation does not shield an offender from significant punishment; the District Court emphasised that the gravity of the offending is assessed primarily by reference to the quantity and purity of the drug involved.
  • Foreign national status was treated as a factor that increases the hardship of imprisonment (due to separation from family and support), but did not operate as a significant mitigant against the weight of general deterrence.
  • Where the pure weight of methamphetamine is approximately four times the commercial quantity threshold, a head sentence in the range of eight years with a non-parole period of five years sits within the sentencing range established by the Court of Criminal Appeal authorities cited, including Yu v R [2016] NSWCCA 73 and DPP v De La Rosa [2010] NSWCCA 194.
  • Controlled deliveries conducted by AFP officers substituting an inert substance for seized drugs support a charge framed as an attempt, which under section 11.1(1) of the Criminal Code 1995 (Cth) carries the same maximum penalty as the completed offence.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), ss 11.1(1), 307.5
- Crimes Act 1914 (Cth)

Cases
- Yu v R [2016] NSWCCA 73
- DPP v De La Rosa [2010] NSWCCA 194
- DPP v Blackman & Jomaa [2014] NSWCCA 90
- Dao v R [2011] NSWCCA 183
- R v Cappis [2015] NSWCCA 138
- R v Considine [2013] NSWCCA 97
- R v Karan [2013] NSWCCA 53
- R v Harris [2009] QCA 3
- R v Tan [2013] WASCSR 42