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District Court 4 December 2018

R v Fitzsimmonds

[2018] NSWDC 470

Drugs
CRIME SENTENCE

Citation: R v Fitzsimmonds [2018] NSWDC 470
Court: District Court of New South Wales
Date: 4 December 2018
Judge: Neilson DCJ

Background

The offender, a 42-year-old Australian male with two dependent teenage children, pleaded guilty to attempting to possess a border controlled drug, namely methylamphetamine, in a commercial quantity. The charge arose from events on 16 to 17 February 2017 at Wiseman's Ferry, New South Wales.

The broader operation involved a Chinese syndicate that had imported 118.24 kilograms of pure methylamphetamine, concealed in vacuum-sealed bags inside cardboard boxes falsely labelled as kitchen utensils, shipped from Hong Kong to Port Botany. Australian Border Force and Federal Police had substituted the drugs with an inert look-alike substance before allowing the consignment to be delivered. A co-offender, Chan, arranged for the consignment to be stored at a self-storage facility in Auburn.

The offender's role was that of a courier. Approximately six weeks before the offence, a person in Hong Kong contacted him and offered A$2,000 to collect bags in Sydney. On 16 February 2017, the offender travelled to Auburn, collected three blue suitcases containing approximately 39.52 kilograms of pure methylamphetamine from Chan, and drove them to Wiseman's Ferry, where he was arrested by Australian Federal Police officers while aboard the ferry.

  • The appropriate head sentence for an offence of attempting to possess a border controlled drug in a commercial quantity under s 307.5 of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of life imprisonment.
  • The appropriate discount to apply to the head sentence for the utilitarian value of a guilty plea, following the Court of Criminal Appeal's decision in Xiao v R [2018] NSWCCA 2.
  • The appropriate non-parole period, having regard to the nature and seriousness of the offending, the offender's personal circumstances, and comparable cases.

Decision

Neilson DCJ characterised the offence as serious. The offender had been entrusted by the syndicate with nearly 40 kilograms of pure methylamphetamine, a quantity 52.69 times the commercial threshold of 750 grams. While his role was that of a courier, the trust placed in him with such a significant quantity was an aggravating feature.

The court considered a range of comparable decisions, including cases from the NSW Court of Criminal Appeal and the Victorian Court of Appeal, but noted that none was precisely on point. His Honour emphasised that every case must be resolved on its own facts, by reference to the applicable maximum penalty and the particular conduct of the offender.

The court identified a starting head sentence of nine years imprisonment. A 25% discount was applied for the utilitarian value of the guilty plea, consistent with the approach endorsed in Xiao v R [2018] NSWCCA 2. This reduced the head sentence to six years and nine months. The non-parole period was fixed at four years and six months, leaving a parole period of two years and three months.

The offender's personal circumstances, including his long history of drug addiction, dependent teenage children, and significant personal difficulties, were taken into account as part of the overall sentencing exercise. His Honour directed that the sentencing remarks and a psychological report be forwarded to Corrective Services to assist in planning the offender's rehabilitation both in custody and on parole.

Orders Made

  • The offender was convicted of attempting to possess a border controlled drug (methylamphetamine) in a commercial quantity between 16 and 17 February 2017 at Wiseman's Ferry.
  • Sentenced to imprisonment for six years and nine months.
  • Non-parole period fixed at four years and six months.
  • Sentence commenced 16 February 2017.

Key Takeaways

  • A courier's role in a drug importation syndicate does not automatically reduce the gravity of the offending where the quantity of drug involved is very large and the offender was trusted with a significant portion of it.
  • Under s 307.5 of the Criminal Code Act 1995 (Cth), the commercial quantity threshold for methylamphetamine is 750 grams of pure substance; the offender here possessed a quantity more than 52 times that threshold.
  • Applying Xiao v R [2018] NSWCCA 2, the District Court treated 25% as the appropriate discount for the utilitarian value of a guilty plea, reducing the head sentence from nine years to six years and nine months.
  • Comparable cases across multiple jurisdictions were considered but regarded as illustrative only; the court reaffirmed that each sentence must be determined on the specific facts of the individual case, by reference to the maximum penalty.
  • Personal circumstances, including drug addiction history and dependent children, were part of the sentencing calculus, with the court directing that a psychological report accompany the sentencing remarks to Corrective Services for use in the offender's rehabilitation planning.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 307.5
- Crimes Act 1914 (Cth)

Cases
- Xiao v R [2018] NSWCCA 2
- Zhang v R [2010] NSWCCA 105
- Chan, Lo and Nguyen v R [2010] NSWCCA 153
- Dao v R [2011] NSWCCA 183
- Lau and Lau v R [2014] NSWCCA 179
- Luong & Anor v DPP (Commonwealth) [2013] VSCA 296
- Yu v R [2016] NSWCCA 73
- R v Phelps [2018] NSWCCA 192