Citation: Regina v Kalvin Eugene Cressel [2017] NSWDC 272
Court: District Court of New South Wales
Date: 6 October 2017
Judge: Judge AC Scotting
Background
The offender, a 30-year-old American national who had arrived in Australia on a working holiday visa in August 2015, pleaded guilty in the Local Court to two offences of importing border-controlled drugs (cocaine) contrary to the Criminal Code 1995 (Cth). He worked as a party organiser and entertainment manager at a backpackers hostel, and by his own account had developed significant gambling and cocaine habits that left him in serious financial difficulty.
The offender was recruited through a contact known only as "Heavy Duty," who communicated via a Blackberry device and directed him to collect packages and deliver cash. He sourced delivery addresses from social acquaintances, concealing from them the true nature of the consignments. He estimated he had collected five or six packages before his arrest, believing they all contained cocaine.
Two cocaine consignments were central to the charges. The first, shipped from the United States as multi-vitamin capsules, contained 3,326.3 grams of pure cocaine (a commercial quantity). The second, concealed in horse shampoo bottles, contained 1,423.7 grams of pure cocaine (a marketable quantity). The offender was arrested on 29 April 2016 after authorities substituted the first consignment and conducted a controlled delivery operation.
Legal Issues
- What was the appropriate sentence for two serious drug importation offences, having regard to objective seriousness, the offender's personal circumstances, and the principles of general and specific deterrence?
- What discount, if any, should be applied for the offender's plea of guilty?
- What discount should be applied for the offender's cooperation with authorities, including admissions made in the recorded interview, provision of PIN codes, and information leading police to a second consignment?
- How should the principles of parity and totality apply to the two sentences?
Decision
Judge Scotting assessed the offending as objectively serious, noting the commercial scale of the cocaine importation, the use of unwitting third parties as delivery addresses, and the offender's involvement across multiple prior consignments. The need for general deterrence weighed heavily, as it does in cases involving large-scale importation of prohibited drugs. The court acknowledged some need for specific deterrence, though the offender's subjective circumstances were treated as necessarily subsidiary to the sentencing purposes of denunciation and punishment.
In mitigation, the court accepted evidence from a psychologist about the offender's gambling and cocaine addictions, his financial vulnerability, and his remorse. The offender had no prior criminal history, had performed well in custody, and came from a stable and supportive family background. The court found his contrition and remorse were genuine, and that his addiction and debt had contributed to his involvement, though these factors could not significantly reduce the weight given to the seriousness of the offending.
The court allowed a 25% discount for the early pleas of guilty, reflecting their utilitarian value and the offender's willingness to facilitate the course of justice. A further 10% discount was applied for cooperation with authorities, covering his admissions during the electronically recorded interview, provision of device PIN codes, and the information that led police to a second consignment at another address. The combined discount was 35%.
Applying totality and parity principles, the court structured the sentences so that they ran partially concurrently, fixing a single non-parole period.
Orders Made
- For the marketable quantity offence (1,423.7 grams pure cocaine): imprisonment for 6 years and 6 months, commencing 29 April 2016 and expiring 28 October 2022.
- For the commercial quantity offence (3,326.3 grams pure cocaine): imprisonment for 9 years, commencing 29 April 2017 and expiring 28 April 2026.
- A single non-parole period of 6 years and 6 months fixed, commencing 29 April 2016 and expiring 28 October 2022.
- The offender convicted on both counts.
Key Takeaways
- The District Court confirmed that in commercial-scale drug importation cases, general deterrence and denunciation carry significant weight, and subjective mitigating factors are necessarily subsidiary to those sentencing purposes.
- A combined discount of 35% was applied: 25% for early guilty pleas entered in the Local Court and 10% for cooperation that included admissions, provision of device PIN codes, and information leading to the interception of a second drug consignment.
- Where an offender sources delivery addresses from unwitting social acquaintances and operates as a knowing courier across multiple consignments, the objective seriousness of the offending is not substantially reduced by the offender's positioning as a lower-level participant in the supply chain.
- Gambling addiction and cocaine dependency, while accepted as genuine mitigating circumstances explaining the financial vulnerability that contributed to the offending, did not materially diminish the weight given to the gravity of commercial drug importation.
- Under the totality principle, the court structured the sentences to run partially concurrently, fixing a single non-parole period that gave effect to an overall sentence reflecting the full criminality involved without resulting in a disproportionate total term.
Legislation and Cases Referenced
Legislation
- Criminal Code 1995 (Cth), ss 307.1 (importing commercial quantity of border controlled drug) and 307.2 (importing marketable quantity of border controlled drug)
- Crimes Act 1914 (Cth), ss 16A(1), 16A(2), 17A(1)
Cases
- Lee v R [2012] NSWCCA 123
- Danial v R [2008] NSWCCA 15
- Cameron v The Queen (2002) 209 CLR 339
- Johnson v The Queen (2004) 78 ALJR 616
- R v El Karhani (1990) 21 NSWLR 370