Citation: R v Pham [2019] NSWDC 639
Court: District Court of New South Wales
Date: 1 August 2019
Judge(s): M L Williams SC DCJ
Background
The offender, a 33-year-old man, was arrested in September 2018 after being found carrying a backpack containing nearly one kilogram of methylamphetamine at 78% purity, a small quantity of pseudoephedrine, $1,900 in cash, scales, and a mobile phone. He pleaded guilty to supplying a prohibited drug in excess of a large commercial quantity under s 25(2) of the Drug Misuse and Trafficking Act 1985, an offence carrying a maximum penalty of life imprisonment and a standard non-parole period of 15 years. A money laundering count and a possession charge were dealt with alongside the principal offence.
The offender had a limited prior record consisting of driving-related matters. Psychiatric evidence confirmed a long-standing methamphetamine addiction, and the offender claimed he had agreed to deliver the package in order to extinguish a $5,000 drug debt. His account was that he had acted as a courier on a single occasion for a "smoking friend," whose identity he declined to disclose.
The sentencing proceedings involved contested factual questions about the offender's knowledge of the drug's value, his true motivation, and whether his subjective circumstances justified an intensive correction order rather than full-time custody.
Legal Issues
- What was the appropriate objective seriousness of the offending, given the weight and purity of the drug and the offender's role as a courier?
- To what extent did the offender's drug addiction bear on his moral culpability?
- Whether the offender's account of his motivation (eliminating a drug debt) was credible, and how that affected the weight given to subjective mitigating factors.
- Whether special circumstances existed to justify a longer than usual ratio of parole to non-parole period.
- Whether an intensive correction order was available or appropriate as an alternative to full-time imprisonment.
Decision
The court placed the offending below the mid-range of objective seriousness, accepting that the offender's role was limited to a single delivery as a courier. Two potential aggravating factors initially raised by the defence (organised criminal activity and financial gain) were ultimately not pressed by the Crown and were disregarded.
His Honour found the offender's account of his motivation largely unpersuasive. The explanation that he acted solely to retire a $5,000 drug debt was described as nakedly self-serving and not accepted, even on the balance of probabilities. The court acknowledged, however, that experienced practitioners know couriers are frequently paid little or have small debts forgiven despite carrying very high-value consignments. The court found that the offender knew, at minimum, that he was delivering a highly valuable quantity of methylamphetamine.
Despite rejecting much of the offender's narrative, the court accepted several genuine mitigating factors: a long-standing methamphetamine addiction relevant to moral culpability (though without a causative link to the offending), a limited criminal history, reasonable prospects of rehabilitation, and expressed remorse. A 25% discount applied for the utilitarian value of the guilty plea. The court found special circumstances based on the offender's relative youth, his first significant encounter with the justice system, his first period in custody, and his need for extended supervision to support recovery from addiction.
The court rejected the submission that an intensive correction order was appropriate. No cases were put to support that proposition and, on all the evidence, the court concluded that a significant term of full-time custody was the only appropriate outcome.
Orders Made
- Aggregate sentence of four years and one month, with a non-parole period of two years and eight months, commencing 26 September 2018 (non-parole period to expire 25 May 2021).
- Indicative sentence for the principal supply offence: four years and three months, with an indicative non-parole period of two years and seven months.
- Indicative sentence for the s 166 possession matter: four months (forming part of the aggregate).
- Money laundering matter taken into account on a Form 1.
- Confiscation orders made.
- Drug destruction order made.
Key Takeaways
- The District Court confirmed that a courier role in a single delivery of a large commercial quantity of methylamphetamine places the offending below the mid-range of objective seriousness, but does not preclude a substantial term of full-time imprisonment.
- A long-standing drug addiction can be taken into account as bearing on an offender's moral culpability, even in the absence of a causative link between the addiction and the commission of the offence, consistent with the approach in R v Henry (1999) 46 NSWLR 346.
- Where an offender declines to fully cooperate with authorities (including refusing to provide a phone password and declining to identify co-participants), this limits the weight the court can give to a claimed low level of knowledge or involvement.
- Special circumstances justifying a longer supervision period on parole were found on the combined basis of relative youth, a first custodial sentence, and the need for rehabilitation from methamphetamine addiction.
- Submitting that an intensive correction order is appropriate without providing supporting case authority leaves that proposition without foundation; the court noted the absence of any cases advanced to support the proposition and declined to impose one.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2); s 166
Cases:
- R v Henry (1999) 46 NSWLR 346
- Robertson v R [2017] NSWCCA 205
- Parente v R [2017] NSWCCA 284
- Imbornone v R [2017] NSWCCA 144
- Nguyen v R [2015] NSWCCA 268
- R v Pullen [2018] NSWCCA 264
- R v Qi [2019] NSWCCA 73
- Allen v R [2014] NSWCCA 193
- R v Lin [2018] NSWDC 286