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District Court 10 December 2018

R v To

[2018] NSWDC 527

Drugs
CRIME SENTENCE IMPORT PSEUDOEPHEDRINE RECKLESS TO WHETHER TIER 1 GOODS GAMBLING ADDICTION IMPORT FROM VIETNAM

Citation: R v To [2018] NSWDC 527
Court: District Court of New South Wales
Date: 10 December 2018
Judge(s): Norrish QC DCJ

Background

The offender, a 49-year-old Australian citizen and former Vietnamese refugee, was arrested on 12 September 2016 upon returning to Australia from Vietnam. Border Force officers examining her luggage discovered a light brown substance concealed within everyday items including tea tins, spa salts, body wash bottles, and a hot water bag. Presumptive testing confirmed the substance was pseudoephedrine, with a total pure weight of 4,163.3 grams across a bulk weight of 6.09 kilograms.

The offender told Border Force officers she had purchased the items at a Vietnamese market and had packed her own bags. She declined to participate in a record of interview and provided no account of how the substances came into her possession. The facts disclosed she had lost approximately $24,900 on poker machines in the twelve months before the offending.

The offender pleaded guilty, just as her trial was about to commence, to intentionally importing Tier 1 goods (pseudoephedrine) while reckless as to whether the goods were Tier 1 goods, an offence under s 233BAA(4) of the Customs Act 1901 (Cth) carrying a maximum penalty of five years imprisonment.

  • What sentence was appropriate for importing pseudoephedrine while reckless as to its classification as Tier 1 goods?
  • What weight, if any, should the court give to a psychological report based on untested representations made by the offender?
  • How should the offender's background, including her gambling losses, refugee history, and absence of prior convictions, bear on the sentence?
  • What significance attached to the late timing of the guilty plea?

Decision

His Honour commenced by observing that the offender was, in a limited sense, fortunate. Had the concealed substance been methylamphetamine or heroin in the same quantities, she would have faced a substantially greater maximum penalty. The pseudoephedrine found was capable of producing approximately 3,746.9 to 4,683.6 grams of methylamphetamine or its hydrochloride, which placed the offending at a serious level even within the Tier 1 category.

The court placed limited weight on the psychological report prepared by Neil Ballardie. The offender did not give evidence, and the representations she made to the psychologist were entirely untested. Norrish QC DCJ applied the well-established principles in Qutami and Niketic, emphasising the long-running and unsatisfactory practice of defendants seeking to prove facts relevant to their role through histories provided to experts without those accounts being tested in cross-examination. His Honour noted an absence of any contemporaneous record supporting the claims made.

On the question of the gambling addiction, His Honour accepted that the offender had lost significant sums on poker machines, but observed that a person in receipt of Centrelink benefits could not plausibly sustain such losses from legitimate income alone. The absence of any detailed account of how the offender was recruited, and her silence about the circumstances of the offence, substantially limited the mitigating weight available to her. The late guilty plea, entered only as the trial was about to begin, attracted a discount considerably less generous than an early plea would have warranted.

Taking into account the objective seriousness of the offending, the quantity of pseudoephedrine, the absence of a credible or tested explanation, the limited value of the late plea, and the available subjective factors including her prior clean record and refugee background, the court imposed a sentence of imprisonment.

Orders Made

  • The offender was sentenced to imprisonment for a period of one year.
  • Upon release, the offender was placed on a recognisance requiring good behaviour, attendance at court if called, and reporting to Community Corrections Service within seven days of release.
  • The offender was to be assessed by Justice Health upon reception at the correctional facility to identify any psychological or other treatment needs.

Key Takeaways

  • A psychological or psychiatric report based solely on untested representations made by the offender carries limited weight at sentencing, particularly where the offender has not given evidence and the Crown has had no opportunity to test the account. This principle, established in Qutami and Niketic, was confirmed and applied here.

  • Absence of prior criminal history carries reduced mitigating weight where the nature of the offending itself (courier importation) makes a clean record an expected characteristic of those selected to carry contraband.

  • The District Court found that the late timing of a guilty plea, entered only as a trial was about to commence, significantly reduces the sentencing discount that would otherwise flow from a plea of guilty.

  • Where an offender provides no account of the circumstances in which they were recruited or came into possession of prohibited imports, the court draws no favourable inferences and the paucity of information operates against the offender at sentence.

  • The court noted that the offender's comparative fortune in facing a five-year maximum, rather than the much higher penalties that would apply to methylamphetamine or heroin in equivalent quantities, was itself a relevant sentencing consideration going to context.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233BAA
- Crimes Act 1914 (Cth), Pt 1B; ss 16A(1)(2), 21(1)(b)

Cases:
- Qutami (2001) 127 A Crim R 369
- Niketic [2002] NSWCCA 425
- R v Palu (2002) 134 A Crim R 174
- Anna Le v R [2006] NSWCCA 136
- De La Rosa [2010] NSWCCA 194
- Hili v R (2010) 242 CLR 520
- Olbrich v R (1999) 199 CLR 270
- Thomson and Houlton (2000) 49 NSWLR 383
- Xiao v R [2018] NSWCCA 2