Citation: R v Senthilvadevel [2018] NSWDC 33
Court: District Court of NSW
Date: 19 February 2018
Judge(s): Neilson DCJ
Background
The accused was recruited, through an intermediary named Michael Kim, into a scheme involving the importation of border-controlled drugs. The arrangement required him to supply his name, address and telephone number, and to remain available at home to accept delivery of parcels sent from overseas. He was to be paid $1,000 for each consignment he received.
On 23 July 2014, Michael Kim directed the accused to stay home across several days the following week to await the arrival of a package. The accused complied, remaining at home during those windows and, on occasions when he could not be present, arranging for a parent to receive the delivery on his behalf.
A consignment addressed to the accused was intercepted by Customs on 4 August 2014. It contained over 2,000 grams of powder, which was found to be heroin with a purity of 70.4%, yielding approximately 1,429.8 grams of pure heroin. The Crown charged the accused with attempted possession of a border-controlled drug under the Criminal Code Act 1995 (Cth). At the close of the Crown case, defence counsel applied for a verdict by direction, arguing the accused's conduct was merely preparatory and lacked the proximity to the offence required to constitute an attempt.
Legal Issues
- Whether the accused's acts were sufficiently proximate to the offence of possession to constitute an attempt under s 11.1 of the Criminal Code Act 1995 (Cth), or whether they amounted only to preparation.
- Whether the physical impossibility of completing the offence (because the consignment was intercepted before delivery) precluded a finding of attempt.
Decision
Issue 1: Proximity and the actus reus of attempt
Under s 11.1(2) of the Criminal Code Act 1995 (Cth), an attempt requires more than mere preparation: the accused must have taken a step that is more than merely preparatory to the commission of the offence. His Honour noted that whether particular acts meet that threshold is a question of fact to be determined on the individual circumstances of each case (at [9]).
Neilson DCJ held that the relevant actus reus was the accused remaining at home, awaiting the consignment, after being told it had been dispatched and was on its way to him, with sufficient time having elapsed for it to arrive (at [13]). The accused's sole purpose in doing so was to take possession of the package and earn the promised payment. On those facts, his conduct crossed the line from preparation into attempt.
Issue 2: Physical impossibility
The fact that the drugs never left Customs control and were never delivered to the accused did not defeat the attempt charge. His Honour drew on the Court of Criminal Appeal's decision in Onuorah v R [2009] NSWCCA 238, where a conviction for attempted possession was upheld even though the cocaine had been seized, destroyed and replaced with an inert substance before reaching Australia (at [10]). Section 11.1(4)(a) of the Criminal Code expressly provides that an accused may be found guilty of attempt even where completing the offence was physically impossible. The interception of the consignment was therefore not to the point (at [13]).
Orders Made
- Application for verdict by direction refused.
Key Takeaways
- Remaining at home to await the arrival of an intercepted drug consignment, after being told it had been dispatched and with sufficient time for delivery to occur, can constitute the actus reus of attempted possession rather than mere preparation (at [13]).
- Whether conduct is more than merely preparatory to the commission of an offence is a question of fact determined on the specific circumstances of each case, not a fixed categorical rule (at [9]).
- Under s 11.1(4)(a) of the Criminal Code Act 1995 (Cth), physical impossibility of completing an offence does not prevent a finding of guilt for attempt, as confirmed by the Court of Criminal Appeal in Onuorah v R (at [10]).
- A consignment being intercepted by Customs or the AFP before it reaches the intended recipient does not, of itself, mean that no attempt to possess the contents has occurred (at [13]-[14]).
- Arranging for a third party, such as a family member, to receive a consignment on the accused's behalf can form part of the conduct constituting the attempted offence (at [13]-[14]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- Criminal Code Act 1995 (Cth)
Cases
- Davey v Lee [1967] 2 All ER 423
- DPP v Stonehouse [1978] AC 55
- Inegbedion v R [2013] NSWCCA 291
- Onuorah v R [2009] NSWCCA 238
- R v Campbell (1991) 93 Cr App R 350
- R v Eagleton [1855] ER 35
- R v Jones (1990) 91 Cr App R 351
- Situ v R [2008] NSWCCA 161
- Steer v R [2014] NSWCCA 338