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District Court 20 September 2019

R v Doherty

[2019] NSWDC 515

Drugs
SENTENCING SENTENCING FACTORS FACT FINDING OFFENDER’S ROLE WILFUL IGNORANCE TRUSTED UNDERLING

Citation: R v Doherty [2019] NSWDC 515
Court: District Court of New South Wales
Date: 20 September 2019
Judge(s): Haesler SC DCJ

Background

The offender pleaded guilty to aiding and abetting an attempted possession of a commercial quantity of methylamphetamine, an offence under the Criminal Code Act 1995 (Cth) carrying a maximum penalty of life imprisonment. The charge arose from events on 30 March 2016, when Thai authorities intercepted a consignment of showerheads concealing over 5,100 grams of impure methylamphetamine destined for Sydney. Australian Federal Police forwarded the consignment, without the drugs, to a serviced office in Sussex Street, Sydney, and conducted a controlled operation.

Two co-offenders, El Jamal and Stanmore, had already been sentenced by the same judge. El Jamal, who organised the collection, received 14 years with a non-parole period of 9 years 8 months. Stanmore, who physically collected the consignment but cooperated immediately with police, received 7 years 6 months with a non-parole period of 4 years 6 months. The sentencing of the offender required the court to assess his distinct role within the operation against those already established benchmarks.

The offender's role, as described in the agreed facts, was "limited to remaining with Stanmore whilst the consignment was being transported from Sydney to El Jamal in the Wollongong area, because Stanmore was not fully trusted." A factual dispute arose about whether that agreed description accurately reflected the full scope of the offender's involvement and his state of knowledge.

  • How should the agreed facts be interpreted when the prosecution and defence advanced materially different characterisations of the offender's role?
  • Was the offender's claimed ignorance of the drug importation credible, or did his conduct amount to wilful blindness?
  • What was the appropriate objective seriousness of the offending, given the agreed facts and the competing versions?
  • How should parity with the co-offenders' sentences operate in fixing the offender's sentence?
  • What discount was appropriate for the guilty plea, given the offender's early indication but subsequent delays?
  • Whether an Intensive Correction Order (ICO) was a sentencing option in the circumstances.

Decision

Factual dispute and the offender's role. The court rejected the defence submission that the offender had no knowledge of the criminal nature of the venture and played a negligible part. His conduct across the day, including receiving and relaying instructions from El Jamal, acting as a minder for the less-trusted Stanmore, physically moving the consignment, making a phone call to the Novotel, accompanying El Jamal to a payphone near the hotel, disposing of his vehicle at a significant undervalue, and accompanying El Jamal to the airport during an attempted flight from Australia, was inconsistent with ignorance. The court found the offender was "wilfully ignorant," and that his role, while significantly below El Jamal's and somewhat less than Stanmore's, was that of a trusted underling rather than a peripheral or inconsequential participant.

Objective seriousness. The court placed the offending in a range that was neither very minor nor consequential. The quantity of methylamphetamine involved was very large, and the purity was high. The court emphasised the established principle that low-level operatives are essential to the operation of drug importation syndicates: without them, those at the top who profit most could not function. The offender acted deliberately and with awareness that he was assisting in a serious crime.

Parity, plea discount, and mitigating factors. The court applied a 25% reduction to the base sentence for the guilty plea, noting that the offender had indicated willingness to plead early but had caused delays once the matter reached the District Court. Time spent in pre-sentence custody (189 days) was taken into account by backdating the sentence. Significant weight was also given to the offender's genuine and sustained rehabilitation efforts while on bail, his adherence to strict bail conditions including a curfew, hardship to his family, and other impacts of full-time imprisonment. The court considered the sentences imposed on El Jamal and Stanmore to ensure consistency. An ICO was expressly found to be inappropriate given the gravity of the offending.

Sentence. The court determined that a pre-discount sentence of 8 years was appropriate. After applying the 25% guilty plea reduction, the resulting sentence was 6 years imprisonment with a non-parole period of 3 years.

Orders Made

  • The offender was convicted of aiding and abetting attempting to possess a commercial quantity of the unlawfully imported border controlled drug methylamphetamine.
  • Sentenced to 6 years imprisonment, commencing 27 January 2019.
  • Non-parole period fixed at 3 years, expiring 26 January 2022, on which date the offender is to be released on parole subject to s 19AL of the Crimes Act 1914 (Cth).

Key Takeaways

  • The District Court confirmed that a sentencing judge is not bound by the characterisation of agreed facts advanced by either party; the judge must apply relevant law and sentencing principles to the facts as a whole, including any evidence given on sentence.
  • Wilful ignorance does not operate as a mitigating factor. Where an offender's conduct over the course of an operation is inconsistent with genuine ignorance, a claim of not knowing the precise nature of the enterprise will carry little weight.
  • Low-level operatives who act as minders or intermediaries within drug importation syndicates remain subject to significant custodial sentences. The court restated the principle from R v La Cerf that without such participants, importation organisations could not function.
  • Parity requires that co-offenders in related proceedings be sentenced consistently, with differences in sentence reflecting genuine differences in role, culpability, cooperation, and subjective circumstances rather than arbitrary variation.
  • A guilty plea discount of 25% (rather than the full utilitarian discount) is available where an offender indicates an early intention to plead guilty but subsequently causes delays in the proceedings.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 307.5, 11.1, 11.2
- Crimes Act 1914 (Cth), ss 16BA, 19AL

Cases
- Afu v R [2017] NSWCCA 246
- Barbaro v The Queen (2014) 253 CLR 58
- Bugmy v The Queen (1990) 169 CLR 525
- GAS v The Queen; SJK v The Queen [2004] HCA 22; (2004) 217 CLR 198
- Green v The Queen (2011) 244 CLR 462
- Hili v The Queen (2010) 242 CLR 520
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Power v The Queen (1974) 131 CLR 623
- R v Considine [2013] NSWCCA 97
- R v El Jamal [2019] NSWDC 153
- R v Karam [2013] NSWCCA 53
- R v La Cerf (1975) 13 SASR 237; (1976) 8 ALR 349
- R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106
- The Queen v Olbrich (1999) 199 CLR 270
- R v Qi [2019] NSWCCA 73
- R v Riddell (2009) 194 A Crim R 524
- R v Stanmore, unreported, NSWDC, 3 October 2018
- Regina v MA [2004] NSWCCA 92; (2004) 145 A Crim R 434
- The Queen v Pham [2015] HCA 39
- Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465