Citation: R v Vakatalesau [2019] NSWDC 505
Court: District Court of New South Wales
Date: 10 May 2019
Judge(s): King SC DCJ
Background
The offender was charged with a single Commonwealth offence: attempting to possess a commercial quantity of a border controlled drug, specifically 81.4 kilograms of pure methylamphetamine, contrary to s 307.5(1) of the Criminal Code Act 1995 (Cth). The maximum penalty for that offence is life imprisonment and/or 7,500 penalty units. The offender had been in custody since his arrest on 24 February 2017.
The facts arose from a coordinated importation operation. A shipping container, described in its bill of lading as carrying angle steel, was dispatched from China to Sydney. Chinese customs authorities intercepted a second container at Yantian Port, removed 69 bags of methamphetamine from a concealed floor cavity, and replaced them with an inert substitute before allowing the container to proceed to Australia. When the container was delivered to a premises in Revesby in February 2017, the offender took delivery of it and was present when co-offenders Donald Chan and Chun Man Kwan arrived to inspect its contents. All three were arrested shortly after.
The offender was committed for trial in December 2017, but did not enter a guilty plea until 24 September 2018, the first day scheduled for trial. His sentence proceedings were heard alongside, though separately from, those of his co-offenders Chan and Kwan, who were sentenced on the same day.
Legal Issues
- What sentence was appropriate for attempting to possess 81.4 kilograms of pure methylamphetamine, having regard to the objective seriousness of the offence?
- What weight should be given to the offender's role relative to his co-offenders, including the principle of parity in sentencing?
- What discount, if any, was appropriate for the late guilty plea?
- How should the offender's subjective circumstances, including personal background and time already served, bear on the sentence?
Decision
The District Court assessed the offence as one of high objective seriousness. The quantity of pure methylamphetamine involved, 81.4 kilograms, was very large, and the offending formed part of an organised importation scheme. The court characterised the offender's role as significant and important: he was present at the leasing of the storage unit, received delivery of the container, and was active at the Revesby premises across the day of the attempted recovery.
The court dealt with the offender separately from Chan and Kwan because some of the agreed facts and accompanying material differed between offenders, and certain material before the court in relation to this offender would have been prejudicial to a co-offender if heard jointly. Parity between co-offenders was nonetheless a live consideration, requiring the court to ensure that differences in sentence were justifiable by reference to differences in role or subjective circumstances.
On the guilty plea, the court noted that the plea was entered on the first day of trial, after the offender had effectively made admissions but declined to plead guilty earlier or offer assistance to the prosecution. A discount of approximately 10 per cent was applied, though the court observed that for Commonwealth offences there is no strict requirement to specify the discount percentage (though transparency is encouraged by Court of Criminal Appeal authority).
The court acknowledged the offender's personal circumstances, including the impact of imprisonment on his children and partner, but found that the seriousness of the offending and the significance of his role required a substantial custodial sentence.
Orders Made
- The offender was convicted of attempting to possess a commercial quantity of a border controlled drug (methylamphetamine, 81.4 kilograms pure) contrary to s 307.5(1) of the Criminal Code Act 1995 (Cth).
- Sentenced to 18 years imprisonment with a non-parole period of 12 years.
- Sentence commenced 24 February 2017 (date of arrest).
- Eligible for release on parole on 23 February 2029.
- Total sentence expires 23 February 2035.
- A discount of approximately 10 per cent was applied (noted by addendum).
Key Takeaways
- A guilty plea entered on the first day of trial, without any offer of assistance to authorities, attracted only a modest discount of approximately 10 per cent on a Commonwealth drug importation offence.
- Under Commonwealth sentencing law, a court is not strictly required to quantify the guilty plea discount in its reasons, though Court of Criminal Appeal authority encourages transparency on the point.
- Where co-offenders are sentenced separately because their agreed facts differ or the material before the court in one matter would prejudice another, the parity principle still applies and any disparity in sentences must be explicable by reference to differences in role or subjective circumstances.
- The District Court treated the offender's role, including taking delivery of the container and remaining present throughout the day of the attempted drug recovery, as a significant aggravating factor that justified a substantial sentence notwithstanding the attempt rather than completed possession.
- Sentencing courts dealing with large-scale drug importation offences may acknowledge the collateral impact on an offender's family while still concluding that the gravity of the conduct and the significance of the offender's role require lengthy imprisonment.
Legislation and Cases Referenced
Legislation
- Criminal Code Act 1995 (Cth), s 307.5(1)
Cases
- Bugmy v The Queen [2013] HCA 37
- R v Budiman (1998) 102 A Crim R 411
- R v Fernando (1992) 76 A Crim R 58
- R v Laurentiu (1992) 63 A Crim R 40
- R v Le Cerf [1975] 13 SASR 237
- R v Muanchukingkan (1990) 52 A Crim R 354
- R v Olbrich (2000) 117 A Crim R 326
- R v To (2007) 172 A Crim R 121
- Wong v The Queen; Leung v The Queen (2001) 270 CLR 584