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District Court 5 July 2019

R v Awraham

[2019] NSWDC 341

DrugsFirearms & weapons
SENTENCING COMMONWEALTH AND STATE OFFENCES POSSESS UNAUTHORISED PISTOL POSSESS UNREGISTERED FIREARM SUPPLY OF A PROHIBITED DRUG (MDMA) PENALTIES

Citation: R v Awraham [2019] NSWDC 341
Court: District Court of New South Wales
Date: 5 July 2019
Judge: Weinstein SC DCJ

Background

The offender, born in 1993, was sentenced following guilty pleas to four offences arising from events in April 2018: one Commonwealth offence and three State offences. The Commonwealth offence was the most serious, involving an attempt to possess a commercial quantity of cocaine, a border controlled drug under the Criminal Code 1995 (Cth).

Australian Border Force officers intercepted a consignment arriving from Canada that had been declared as table decorations. The packaging concealed approximately 2,941 grams of powder, later confirmed to be cocaine at an average purity of 72.94%, yielding a pure cocaine weight of approximately 2,152 grams. ABF officers replaced the cocaine with an inert substitute and conducted a controlled delivery to a residential address in Bossley Park. The offender later collected the package and took it to his own home in Wetherill Park, where police executed a search warrant and found the opened consignment in his bedroom.

During the same search, police found a loaded .22 calibre Ruger pistol under the offender's bed, a safe containing approximately 49 grams of MDMA, and small quantities of several other drugs. These findings gave rise to the three State offences: possessing an unauthorised pistol, possessing an unregistered firearm, and supplying a prohibited drug (MDMA). Three additional charges were placed on a Form 1 (meaning they were taken into account without separate convictions being recorded): unsafe storage of a firearm, possession of ammunition without a licence, and three counts of possessing a prohibited drug.

  • What sentence was appropriate for the Commonwealth offence of attempting to possess a commercial quantity of a border controlled drug, having regard to the maximum penalty of life imprisonment and the relevant sentencing principles under the Crimes Act 1914 (Cth)?
  • What sentences were appropriate for the three NSW State offences, including the standard non-parole period applicable to the unauthorised pistol charge?
  • What discount, if any, should be applied for the guilty pleas?
  • How should the sentences be structured (concurrently or cumulatively) to reflect the totality principle, given the distinct nature of the drug and firearms offending?

Decision

Weinstein SC DCJ convicted the offender on all four charges and applied a 25% discount across each sentence to reflect the early guilty pleas. The court treated the Commonwealth cocaine offence as by far the gravest matter, noting the commercial quantity involved (well above the threshold) and the sophistication of the importation method. The attempted nature of the offence was relevant but did not substantially reduce culpability, given the offender had in fact taken possession of the substituted consignment.

For the State firearms and drug supply offences, the court imposed sentences that ran concurrently with the commencement date of 23 April 2018 (the date of arrest). The MDMA supply charge, supported by the 49 grams found in the safe, was treated as distinct from the cocaine importation. The firearms offences, while serious, were dealt with as part of the overall sentencing structure rather than as independent aggravating features of the drug conduct.

To ensure the sentence for the Commonwealth cocaine offence carried sufficient weight without being swallowed by the State sentences already running, the court ordered that 18 months of the Commonwealth sentence accumulate beyond the State terms. This produced a total effective non-parole period of 6 years, 6 months and 15 days, with a head sentence of 9 years.

Orders Made

  • Conviction recorded on all four offences.
  • Possessing an unauthorised pistol (s 7(1) Firearms Act 1996): head sentence of 3 years; non-parole period of 1 year 11 months. Backdated to 23 April 2018. Non-parole period expires 22 March 2020; head sentence expires 22 April 2021.
  • Possessing an unregistered firearm (s 36(1) Firearms Act 1996): 18 months. Backdated to 23 April 2018; expires 22 October 2019.
  • Supply of prohibited drug (MDMA) (s 25(1) Drug Misuse and Trafficking Act 1985): 2 years 3 months. Backdated to 23 April 2018; expires 22 July 2020.
  • Attempting to possess a commercial quantity of a border controlled drug (cocaine) (ss 11.1 and 307.5(1) Criminal Code 1995 (Cth)): head sentence of 7 years 6 months; non-parole period of 5 years and 15 days, commencing 23 October 2019. Head sentence expires 22 April 2027; non-parole period expires 6 November 2024.
  • Accumulation: 18 months accumulated on the Commonwealth sentence.
  • Overall effective sentence: non-parole period of 6 years, 6 months and 15 days from 23 April 2018; head sentence of 9 years. Eligible for parole from 6 November 2024.

Key Takeaways

  • Attempting to possess a commercial quantity of a border controlled drug under the Criminal Code 1995 (Cth) carries a maximum of life imprisonment, and the District Court treated the near-complete nature of the attempted possession as significantly reducing any discount otherwise available for the attempt.
  • A 25% guilty plea discount was applied uniformly across all four offences, consistent with the principles in Mill v The Queen and related authority.
  • Where a single sentencing exercise involves distinct Commonwealth and State offences, the totality principle requires careful attention to accumulation to avoid both crushing the offender and understating the gravity of the most serious charge.
  • The court structured partial accumulation of 18 months on the Commonwealth term to ensure the dominant sentence was not absorbed entirely by the concurrently-running State sentences.
  • Three additional charges placed on a Form 1 (unsafe storage, unlicensed ammunition possession, and three drug possession counts) were taken into account in sentencing without separate convictions being recorded, reflecting standard practice under the Crimes (Sentencing Procedure) Act 1999 (NSW).

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), ss 11.1, 307.5(1)
- Criminal Code Regulations 2002 (Cth)
- Crimes Act 1914 (Cth), Part 1B, ss 16A, 17A
- Firearms Act 1996 (NSW), ss 7, 36, 39
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 33, 44
- Customs Act 1902 (Cth)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16

Cases:
- Cahyadi v R [2007] NSWCCA 1
- Do v R [2010] NSWCCA 182
- DPP (Cth) v Thomas [2016] VSCA 237
- Hili v R; Jones v R (2001) 242 CLR 520
- Markarian v The Queen [2005] HCA 25
- Mill v The Queen (1988) 166 CLR 59
- Muldrock v The Queen (2011) 244 CLR 120
- R v Aaron Tran [2013] NSWCCA 136
- R v Jarrold [2010] NSWCCA 69
- R v Karan [2013] NSWCCA 53
- R v MacDonnell (2002) 128 A Crim R 44
- R v Muanchukingkhan (1990) 52 A Crim R 354
- R v Nguyen & Ors (2005) 157 A Crim R 80
- R v Nguyen; R v Pham (2010) 205 A Crim R 106
- R v Robinson [2014] NSWCCA 12
- R v Stanford [2