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District Court 19 July 2019

R v Rose Helena Thomas

[2019] NSWDC 364

Drugs
SENTENCING WHERE THERE ARE UNUSUAL CIRCUMSTANCES INTENSIVE CORRECTION ORDER

Citation: R v Rose Helena Thomas [2019] NSWDC 364
Court: District Court of New South Wales
Date: 19 July 2019
Judge: Weinstein SC DCJ

Background

The offender, a 26-year-old Australian citizen, pleaded guilty to aiding and abetting an attempt to possess a commercial quantity of an unlawfully imported border controlled drug, namely methamphetamine, contrary to the Criminal Code (Cth). The charge arose from events between 27 February and 1 March 2018. The maximum penalty for the offence is life imprisonment.

The primary offender, the offender's then-partner, was a Mexican national who had been recruited by an overseas associate to facilitate the importation of methamphetamine concealed inside Sony speakers. The consignment, which contained approximately 15.87 kilograms of pure methamphetamine with an estimated street value of over $13.6 million, was intercepted and the drug substituted with an inert substance by the Australian Federal Police before delivery.

The offender's role was limited to supporting her partner after the consignment arrived in Sydney. Specifically, she assisted by purchasing screwdrivers, backpacks, and scales. There was also evidence she was aware of the risk of police involvement, having expressed fear in a messaging conversation prior to the delivery. The offender was not a principal in the importation and played a materially lesser role than her co-offender.

  • What sentence was appropriate for an offender who played a minor, supportive role in a serious federal drug offence carrying a maximum of life imprisonment?
  • Whether the combination of unusual personal circumstances and significantly reduced objective seriousness justified a sentence served by way of Intensive Correction Order (ICO), rather than full-time custody.
  • How to maintain appropriate parity with the sentence imposed on the co-offender, while reflecting the substantially lesser degree of involvement of the offender.

Decision

Weinstein SC DCJ found that while the offence was objectively serious given the commercial quantity involved, the offender's role was markedly less serious than that of her co-offender. The offender's conduct was confined to purchasing tools and equipment after the consignment arrived, and she had no involvement in the planning or facilitation of the importation itself.

His Honour identified a range of unusual personal circumstances that bore upon sentencing. These included the offender's youth, her guilty plea, her demonstrated remorse, her engagement with rehabilitation, and the significant personal hardship that full-time custody would impose. The judgment characterised the cumulative effect of these factors as sufficiently unusual to justify a departure from a full-time custodial sentence, while still meeting the sentencing objectives of general deterrence and denunciation.

The court also addressed parity between the offender and her co-offender, who was sentenced for the more serious offence of actually importing the commercial quantity. His Honour was satisfied that the differences in the nature and extent of their respective offending justified a markedly different outcome, and that the sentence ultimately imposed was justified by those qualitative distinctions.

Taking all factors into account, his Honour imposed a two-year term of imprisonment to be served by way of an Intensive Correction Order, describing the outcome as an unusual result warranted by unusual facts, but one that nonetheless gave proper weight to general deterrence and denunciation.

Orders Made

  • The offender was convicted of aiding and abetting an attempt to possess a commercial quantity of an unlawfully imported border controlled drug (methamphetamine), contrary to sections 11.2(1) and 307.5(1) of the Criminal Code (Cth).
  • A sentence of two years' imprisonment was imposed, to be served by way of an Intensive Correction Order commencing 19 July 2019 and expiring 18 July 2021.
  • Standard conditions applied: no further offences, obligation to appear before a court if called upon, and supervision by a Community Corrections Officer.
  • Additional conditions imposed:
  • Participation in a rehabilitation program or treatment for 12 months (the existing treatment program with Ms Tangarife was noted as satisfying this condition).
  • 500 hours of community service work.
  • The offender was required to report to the City Community Corrections Office no later than 26 July 2019.
  • Non-compliance with ICO conditions may result in formal warning, more stringent conditions, or revocation of the order, with potential requirement to serve the balance in full-time custody.

Key Takeaways

  • A conviction for aiding and abetting an attempt to possess a commercially imported border controlled drug carries a maximum of life imprisonment under the Criminal Code (Cth), even where the offender's direct involvement was limited and peripheral.
  • The District Court held that a sentence served by way of an Intensive Correction Order remained available for a federal drug offence of this nature, where the combination of unusually strong subjective circumstances and low objective seriousness collectively justified that outcome.
  • Parity principles require a sentencing court to account for qualitative differences in offending when co-offenders are sentenced separately for related but distinct offences, with the lesser role attracting a proportionately lesser sentence.
  • Where an offender's involvement was confined to providing post-arrival practical assistance, and where there was no evidence of planning, financial gain, or a leadership role, the court treated objective seriousness as materially reduced relative to the principal offender.
  • General deterrence and denunciation remain relevant sentencing considerations for serious drug offences even where an ICO is imposed, and the court expressly acknowledged those purposes in justifying the sentence.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), ss 11.2(1), 307.1(1), 307.5(1)
- Crimes Act 1914 (Cth), ss 16A, 17A, Part 1B, 20AB
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7, 66
- Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)

Cases
- CMB v The Attorney-General for NSW (2015) 89 ALJR 407
- El-Ghourani v R [2009] NSWCCA 140
- Gadsden v R [2005] NSWCCA 453
- Green v R; Quinn v R (2011) 244 CLR 462
- Johnson v The Queen (2004) 78 ALJR 616
- Lodhi v The Queen [2007] NSWCCA 360
- Neal v R (1982) 149 CLR 305
- R v Blackman and Walters [2001] NSWCCA 121
- R v Lelikan (No 5) [2019] NSWSC 494
- R v MacDonnell (2002) 128 A Crim R 44
- R v Mauger [2012] NSWCCA 51
- R v Pogson; R v Lapham; R v Martin (2012) 82 NSWLR 60; [2012] NSWCCA 225
- R v Pullen [2018] NSWCCA 264
- Wong v The Queen (2001) 207 CLR 584