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District Court 28 May 2018

R v Pantaleo

[2018] NSWDC 294

Drugs
CRIME SENTENCE METHAMPHETAMINE AND COCAINE

Citation: R v Pantaleo [2018] NSWDC 294
Court: District Court of New South Wales
Date: 28 May 2018
Judge: Neilson DCJ

Background

The offender pleaded guilty to three Commonwealth drug offences arising from events in late 2015 and early 2016. The offences concerned the importation of methamphetamine concealed in power adaptors shipped from Hong Kong, the trafficking of a marketable quantity of methamphetamine, and the possession of a marketable quantity of cocaine.

The importation involved 855.3 grams of pure methamphetamine (just above the 750-gram commercial quantity threshold), hidden inside 14 of 72 AC/DC power adaptors in a consignment addressed to a fictitious recipient at a non-existent address in Punchbowl. Two co-offenders were also involved: Kwesi Wilson, who was recruited to assist with collecting the consignment, and Fabian Chiagozie, who faced separate proceedings.

The offender was arrested on 14 April 2016 and had remained in custody for over two years at the time of sentencing. The Crown accepted that the offender's roles across all three offences were not those of a principal, though his involvement was described as significant and included organising and directing the importation operation from overseas.

  • What sentence was appropriate for importing a commercial quantity of methamphetamine under s 307.1(1) of the Criminal Code Act 1995, where the amount only marginally exceeded the commercial quantity threshold?
  • How should the trafficking charge be assessed where the drug was never seized or tested and the quantity could only be estimated?
  • What weight should be given to the offender's role (below principal level but still significant), his plea of guilty, his time in pre-sentence custody, and other personal circumstances?
  • How should the three sentences be structured and served, including the setting of a non-parole period?

Decision

On the importation offence, the court found that while the offender played a significant organisational role, directing co-offenders from Italy and providing detailed shipping information, the quantity imported (855.3 grams of pure methamphetamine) only marginally exceeded the commercial threshold. The court contrasted this with cases involving many kilograms, noting the relative moderation of the quantity. The Crown conceded the offender was not a principal, and the court treated this as a significant moderating factor.

On the trafficking charge, the court applied the criminal standard of proof. Because the methamphetamine was never seized or tested, the court declined to accept the Crown's estimate placing the quantity toward mid-range. Absent satisfaction beyond reasonable doubt that the trafficked quantity was above the low range, the court sentenced on the basis of a low-range marketable quantity.

On the cocaine possession charge, the offender held 128.9 grams, which was 64 times the marketable quantity of two grams but well short of the two-kilogram commercial quantity. The court characterised this as a low-range offence within the marketable quantity band.

The court imposed a head sentence on the importation offence and ran the two lesser sentences concurrently, each expiring well within the head sentence term. All sentences commenced from the date of the offender's arrest, giving full credit for time already served in pre-sentence custody.

Orders Made

  • Importation of a commercial quantity of methamphetamine (s 307.1(1), Criminal Code): convicted and sentenced to six years' imprisonment, commencing 14 April 2016 and expiring 13 April 2022.
  • Trafficking a marketable quantity of methamphetamine: convicted and sentenced to two years and three months' imprisonment, commencing 14 April 2016 and expiring 13 July 2018 (concurrent).
  • Possessing a marketable quantity of cocaine: convicted and sentenced to one year and six months' imprisonment, commencing 14 April 2016 and expiring 13 October 2017 (concurrent).
  • Non-parole period of three years and eight months fixed, expiring 13 December 2019.

Key Takeaways

  • Where a drug importation only marginally exceeds the commercial quantity threshold, the District Court treated the quantity as a significant mitigating factor in calibrating the sentence, particularly when compared to cases involving much larger amounts.
  • A sentencing court cannot rely on an unproven estimate of drug quantity to aggravate a sentence; where the drug was never seized or tested, the prosecution must establish quantity beyond reasonable doubt or the court will sentence at the lower end of the proven range.
  • The Crown's concession that an offender's role fell below that of a principal operated as a meaningful moderating factor, even where the offender played an active organisational and directing role.
  • Under s 307.6(1) of the Criminal Code, possession of cocaine substantially below the commercial quantity but well above the marketable quantity threshold was assessed as a low-range offence within the marketable quantity band.
  • Concurrent sentences were imposed for the trafficking and possession offences, with all terms commencing from the date of arrest to reflect the full period spent in pre-sentence custody.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 307.1(1), 307.6(1)
- Crimes Act 1914 (Cth)

Cases:
- R v Okosi [2017] NSWDC 400
- Xiao v R [2018] NSWCCA 4