Citation: R v Bunny Bannister [2019] NSWDC 37
Court: District Court of New South Wales
Date: 1 March 2019
Judge: Mahony SC DCJ
Background
The offender, a Malaysian citizen who arrived in Australia in October 2015 on a tourist visa, was charged with taking part in the supply of a prohibited drug in a quantity greater than a large commercial quantity under the Drug Misuse and Trafficking Act 1985. The prohibited drug was methylamphetamine, and the total quantity involved across the broader trafficking operation was 67.477 kilograms. Police had established a controlled operation targeting a Malaysian-run syndicate operating in Australia.
The offender resided at a Burwood apartment with a co-offender. When police executed a search warrant at that premises in December 2015, they discovered 12 boxes containing shelving impregnated with 60.125 kilograms of pure methylamphetamine. The offender attempted to flee by jumping from the balcony and was arrested shortly afterwards. A further 5.904 kilograms had already been extracted from two other boxes delivered earlier to a third co-offender at Fairfield.
The offender was one of several Malaysian co-offenders sentenced in connection with the same operation. His role, as accepted by the court, was that of a storeman who remained at the residence to oversee the drug-laden boxes when the co-offender Tiew was absent.
Legal Issues
- What was the appropriate assessment of the objective seriousness of the offence, having regard to the offender's limited role at the bottom of the syndicate's chain of responsibility?
- What discount, if any, was warranted for the late guilty plea?
- How did the parity principle apply, given sentences already imposed on co-offenders?
- What weight should be given to subjective mitigating factors, including remorse, good character, absence of criminal antecedents, and hardship in custody?
- Whether special circumstances existed to justify departing from the standard non-parole period ratio.
Decision
Objective seriousness and role in the offence
The court was not satisfied that the offender travelled to Australia as a recruited member of the syndicate with a purpose of importing and supplying methylamphetamine (at [51]). His role was accepted as that of storeman only, confined to watching over the 12 boxes at the Burwood residence in the co-offender Tiew's absence (at [51]-[52]). The court found the offender was at the bottom of the chain of responsibility among the co-offenders (at [52]). Despite the very large quantity of drugs involved, which was many times over the 500-gram threshold for a large commercial quantity, the objective seriousness of the offending was assessed as below the mid-range, placing it in the low range but towards the middle of that range (at [52]).
Guilty plea discount
The court accepted that the offender was entitled to a 15 percent discount on sentence for his guilty plea, notwithstanding that the plea was entered in the face of a strong Crown case and was made relatively late in the proceedings (at [54]).
Parity
The parity principle, requiring that sentences imposed on co-offenders for the same or similar offending do not produce a justifiable sense of grievance, was applied (at [55]-[56]). The court noted significant differences in the circumstances of the various co-offenders and reflected those differences in the sentence imposed.
Subjective factors and remorse
The court accepted the offender's remorse, as evidenced by both his guilty plea and his handwritten letter of apology (at [57]). The court also took into account his good character, absence of criminal antecedents, and the hardship he would experience in custody due to language difficulties and having no visitors in Australia (at [57]-[58]). The psychologist's report was approached with some caution given that the offender gave no sworn evidence, but the offender's family background and circumstances were accepted (at [58]).
Sentence
After applying the 15 percent utilitarian discount for the guilty plea, the court imposed a head sentence of 6 years and 6 months imprisonment with a non-parole period of 4 years and 10 months (at [59]).
Orders Made
- The offender was convicted of supply of a prohibited drug greater than a large commercial quantity (67.477 kg of methylamphetamine) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985.
- Non-parole period of 4 years and 10 months, commencing 1 December 2015 and terminating 30 September 2020.
- Balance of term from 1 October 2020, expiring 31 May 2022 (total head sentence of 6 years and 6 months).
Key Takeaways
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A storeman role confined to guarding drug-laden boxes at a residential premises, with no involvement in telephone communications, extraction, or delivery beyond a single observed attendance, can place an offender's objective culpability at the low range (though not the very lowest end) even where the total drug quantity is many times above the large commercial quantity threshold (at [51]-[52]).
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The quantity of prohibited drugs involved remains a relevant factor in calibrating where within a given range an offender's conduct sits, even when their personal role is minimal (at [52]).
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A 15 percent discount for a guilty plea entered late and in the face of a strong prosecution case is available where the plea still carried genuine utilitarian value, including the amalgamation of charges and avoidance of inconvenience to witnesses (at [54]).
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Where an offender gives no sworn evidence, reports from psychologists and unsworn letters of remorse are approached with caution, though they may still be accepted in part to establish background, hardship in custody, and remorse alongside the guilty plea (at [57]-[58]).
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Under the parity principle, sentencing courts must account for meaningful differences in co-offenders' roles and circumstances to avoid producing sentences that give rise to a justifiable sense of grievance, even where multiple co-offenders are sentenced arising from the same syndicate operation (at [55]-[56]).
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985
Cases
- Imbornone v R [2017] NSWCCA 144