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District Court 29 March 2018

R v Schwartz

[2018] NSWDC 118

Drugs
CRIMINAL LAW SENTENCE COCAINE REPEAT OFFENDER FAIL TO TAKE ADVANTAGE OF LENIENCY

Citation: R v Schwartz [2018] NSWDC 118
Court: District Court of New South Wales
Date: 29 March 2018
Judge(s): Berman SC DCJ

Background

The offender was sentenced for two offences of importing a commercial quantity of cocaine into Australia. The drugs were concealed within air cargo shipments sent from California in August 2015 and May 2016, disguised as glass sculptures and a car positioning wheel dolly respectively.

The offender's role in each importation was to track the shipments using the DHL courier website and, in one instance, by telephone, then pass that tracking information to others involved in the operation. He was not identified as having any role in organising or receiving the shipments, but was expected to receive a substantial cash payment for his participation.

This was not the offender's first involvement in drug offences. In 2013, a judge of the same Court had sentenced him for importing pseudoephedrine and possessing cocaine, imposing a bond and predicting a low risk of reoffending. Within a year of completing that bond, he had become involved in both of the cocaine importations now before the Court.

  • What sentence was appropriate for two offences of importing a commercial quantity of a border controlled drug (cocaine)?
  • How should the offender's minimal but financially rewarded role be assessed for the purposes of moral culpability?
  • What weight should be given to prior offending, the failure to take advantage of earlier leniency, and the prospects of specific deterrence?
  • To what extent should the offender's harsh and dangerous conditions of custody, arising partly from irresponsible media reporting, reduce the sentence?
  • What discount applied for the early guilty plea and cooperation with the course of justice?

Decision

His Honour accepted that the offender's role was limited to tracking shipments and communicating that information to co-participants. The judge declined to speculate that the role extended further, noting that the DHL website was publicly accessible to anyone with a consignment number. However, the Court accepted the Crown's submission that the offender must have been regarded as especially suited to this function by others in the enterprise, because no one receives a substantial cash payment for a task that any person in the world could perform. The sentence was therefore framed on the basis that the role, while limited in observable terms, was treated as significant by those running the operation.

The offender's prior 2013 conviction weighed heavily in the sentencing exercise. His Honour observed that he had been dealt with leniently on that occasion and had failed to take advantage of that leniency, instead re-offending within a year of completing his bond. General and specific deterrence were both given significant weight.

The offender's conditions in custody were found to be genuinely harsh and dangerous. Irresponsible reporting by a television current affairs program falsely suggested he had been cooperating with police, which the Court found caused him to be attacked and stabbed in custody. He had since been held on protection. His Honour acknowledged the heightened risks and hardships associated with serving time on protection and gave that consideration some weight in formulating the sentence.

A discount of approximately 40 per cent was applied to reflect the early guilty plea, the offender's willingness to facilitate the course of justice, and one further unspecified matter. Despite the offender's positive character references, charitable contributions, and difficult personal consequences following arrest (including the breakdown of his engagement and loss of employment), those factors did not displace the need for a firm sentence given the seriousness of the offending and his history.

Orders Made

  • For the first offence (2015): imprisonment for four years, commencing 2 September 2016.
  • For the second offence (2016): imprisonment for four years, commencing 2 September 2018.
  • Effective head sentence: six years.
  • Non-parole period: three years and six months, commencing 2 September 2016, expiring 1 March 2020.

Key Takeaways

  • The District Court held that a limited tracking role in a drug importation can still attract significant moral culpability where the offender was to receive a substantial cash reward, even if the precise reason his involvement was valued by the enterprise could not be identified.
  • Where a sentencing court cannot identify the full extent of an offender's role but the available facts suggest the role was regarded as important by co-participants, the court may sentence on that basis without speculating about a broader involvement.
  • Failing to take advantage of prior leniency, including re-offending within a year of completing a bond for broadly similar conduct, operates as a meaningful aggravating factor going to specific deterrence.
  • Dangerous and harsh custodial conditions caused by irresponsible media reporting, including a false suggestion of police cooperation that led to a physical attack on the offender, are capable of being taken into account as a mitigating consideration in sentencing.
  • Hardship suffered by a third party, such as a parent distressed by the offender's imprisonment and subjected to threats as a result, does not qualify as exceptional hardship in the sentencing context simply because it is severe; the threshold for that consideration remains high.

Legislation and Cases Referenced

Legislation: Not stated in the judgment or metadata.

Cases: No specific cases were cited by name in the judgment text. The Court noted that comparative sentencing cases were tendered by both the Crown and defence counsel and were taken into account.