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District Court 27 July 2018

R v Xue

[2018] NSWDC 371

Drugs
SENTENCING — MULTIPLE OFFENCES COMMONWEALTH OFFENCES IMPORT A BORDER CONTROLLED PRECURSOR GREATER THAN THE COMMERCIAL QUANTITY EPHEDRINE LIMITED MANAGERIAL ROLE

Citation: R v Xue [2018] NSWDC 371
Court: District Court of New South Wales
Date: 27 July 2018
Judge: M L Williams SC DCJ

Background

The offender, a Chinese national who had been living in Australia without lawful status since 2015, was charged with jointly importing a border-controlled precursor, namely ephedrine, in excess of the commercial quantity. The offending involved two consignments intercepted by Australian Border Force in December 2016, together containing a combined total of approximately 11.32 grams of pure ephedrine. Australian Border Force officers substituted the substances with inert material before conducting a managed delivery.

The offender's role in the scheme involved coordinating the delivery through phone calls, directing a co-offender named Huang, monitoring the consignments via online tracking, providing status updates, and attending the delivery location to inspect the contents. A second co-offender, Chen, drove the offender to the delivery site. The offender was to receive $8,000 for his involvement but was never paid, as police intercepted the parcels.

The offender was arrested on 28 February 2017, entered an early guilty plea, and asked to have his bail revoked so he could return to custody and begin serving his sentence. He had no prior criminal history. His partner and two young children (aged five and two at the time of sentencing) were present in court.

  • What sentence was appropriate for importing a border-controlled precursor (ephedrine) in excess of the commercial quantity under s 307.11 of the Criminal Code (Cth)?
  • How should the offender's limited managerial role be characterised and weighted in the sentencing exercise?
  • What discount, if any, was appropriate for the early guilty plea and demonstrated remorse?
  • What weight should be given to the hardship imposed on the offender's family, and did that hardship reach the threshold of "exceptional hardship"?

Decision

The District Court characterised the offender's role as a limited managerial one, sitting above a mere courier but below a principal organiser. His activities included directing others, tracking deliveries, and physically inspecting the consignment. The amount of ephedrine exceeded ten times the commercial quantity threshold, which the court treated as a significant objective factor, noting that someone in a managerial role was likely to have greater knowledge of the contents than a lower-level courier.

General deterrence was treated as a very significant sentencing consideration, reflecting the need to signal to would-be drug traffickers that severe punishment neutralises any anticipated financial reward. The court had regard to two Court of Criminal Appeal decisions cited by the Crown, R v Lamella and Phan v R, but noted that both had significant factual differences and were therefore of limited assistance. The court also considered sentencing statistics covering 24 comparable cases, acknowledging these were a blunt but useful tool.

The court accepted that the offender demonstrated genuine remorse through his early guilty plea, his written expressions of regret, and his voluntary return to custody. A discount of 25 per cent was applied to reflect this, although Williams SC DCJ noted it was not strictly necessary to specify the figure. The court took into account the hardship imposed on the offender's partner and children, including that the partner could not afford to travel to the prison and the children had been separated from their father since his arrest. However, the court declined to characterise this as exceptional hardship within the meaning of the relevant authorities.

Orders Made

  • The offender was convicted of the offence.
  • A sentence of imprisonment of 5 years and 6 months was imposed, commencing 28 February 2017 and expiring 27 August 2022.
  • A non-parole period of 3 years and 4 months was set, expiring 27 June 2020, with the offender eligible for parole release on that date.

Key Takeaways

  • A "limited managerial role" in a drug importation, involving coordination of others, tracking deliveries, and inspecting consignments, placed this offender above a courier in the sentencing hierarchy, without reaching the level of a principal organiser.
  • Under s 307.11 of the Criminal Code (Cth), importing a border-controlled precursor in excess of the commercial quantity carries a maximum penalty of 25 years imprisonment, and the court treated objective seriousness as very significant where the quantity exceeded ten times the commercial quantity threshold.
  • An early guilty plea, voluntary return to custody, and written expressions of remorse supported a 25 per cent discount from the head sentence.
  • Family hardship, including the financial and emotional difficulties experienced by a partner and young children following the offender's incarceration, is a relevant mitigating consideration, but it does not automatically meet the higher threshold of "exceptional hardship" recognised in the case law.
  • General deterrence carries particular weight in Commonwealth drug importation sentencing, reflecting the court's role in neutralising the anticipated financial incentives behind such offending.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), s 307.11 (importing a border-controlled precursor in excess of the commercial quantity)
- Crimes Act 1914 (Cth), Pt 1B (federal sentencing framework)

Cases
- R v Lamella [2014] NSWCCA 122
- Phan v R [2013] NSWCCA