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District Court 1 August 2019

R v Yu

[2019] NSWDC 904

Drugs
CRIME COMMONWEALTH SENTENCE NOT THE INTENDED RECIPIENT TOOK POSSESSION AND CONTROL INTENTIONAL KNOWLEDGE

Citation: R v Yu [2019] NSWDC 904
Court: District Court of New South Wales
Date: 1 August 2019
Judge: Norrish QC DCJ

Background

The offender, a Chinese citizen residing in Australia on a Resident Return Visa since 2003, was sentenced for attempting to import a commercial quantity of ephedrine, a border controlled precursor substance used in the manufacture of amphetamine-type products. The consignment, sent from China and addressed to another person at a West Ryde address, contained approximately 14 kilograms of pure ephedrine concealed inside hairbrush handles, hidden within a package falsely described as "plastic combs."

The offender was not the intended recipient of the consignment. He had been living at the delivery address for only two to three weeks with his girlfriend, separately from his wife and family. After calling the number on a missed delivery card and arranging redelivery, he signed for the packages using his own name, took them inside, and was arrested shortly afterwards with a meat cleaver on top of the boxes. He told investigators he intended to open the packages to see if there was anything worth selling.

The offender pleaded guilty on the basis that he knew a substance was inside the packages but was reckless as to whether it was a border controlled precursor or a commercial quantity. The plea was entered at the point when his trial was about to commence.

  • Whether the offender's conduct, specifically taking possession and control of an imported consignment addressed to another person, constituted "importation" within the meaning of the Criminal Code Act 1995 (Cth)
  • The appropriate level of discount for a guilty plea entered at the commencement of trial
  • The weight to be given to the offender's subjective circumstances, including his lack of prior criminal history, family ties, low risk of reoffending, and the impulsive and opportunistic nature of the offending
  • Whether an Intensive Correction Order was an appropriate sentencing disposition

Decision

On the scope of importation: The court accepted the Crown's submission, grounded in R v El-Haddad [2015] NSWCCA 10 and R v Tranter [2013] SASCFC 61, that "importation" under the relevant legislation extends beyond the original shipper. A person who takes possession and control of an imported consignment in a way that changes the character of that possession can fall within the definition. The court identified this as the likely reason the matter proceeded to a contested trial, before the late guilty plea was entered.

On the offender's mental state: The court was not satisfied beyond reasonable doubt that the offender knew the packages contained a prohibited precursor or any particular quantity. The agreed facts and surrounding circumstances pointed firmly against actual knowledge. His culpability rested on recklessness: he knew something was concealed inside but did not turn his mind to whether it was a controlled substance.

On subjective factors: The court treated the offending as impulsive and opportunistic, rather than planned or organised. The offender had no criminal history in Australia or China, strong family ties, no association with drug networks, and was assessed by a forensic psychiatrist and the Community Corrections Service as posing a low risk of reoffending. His motivation appeared to be opportunistic financial gain, described in the Sentence Assessment Report as "stealing the package."

On disposition: Taking into account the serious objective gravity of the offence (commercial quantity, maximum penalty 25 years), the mitigating subjective circumstances, the 79 days already served in pre-sentence custody, and a 10% utilitarian discount for the late guilty plea, the court imposed a sentence to be served by way of Intensive Correction Order, with 200 hours of community service.

Orders Made

  • Sentence imposed to be served by way of Intensive Correction Order, commencing 1 August 2019
  • Standard conditions applied: no commission of offences; submission to supervision by a Community Corrections officer
  • Additional condition: 200 hours of community service work
  • Offender directed to report to Community Corrections Office, Parramatta, on 2 August 2019 at 10am
  • Pre-sentence custody of 79 days taken into account; sentence slightly rounded to an even number of months

Key Takeaways

  • Under the Criminal Code Act 1995 (Cth), "importation" is not confined to the original sender or intended recipient. Following El-Haddad and Tranter, a person who takes possession and control of an imported consignment in a manner that changes the character of that possession may be caught by the importation provisions.
  • Recklessness as to the nature and quantity of a substance, rather than actual knowledge, is sufficient to ground a conviction for attempted importation of a border controlled precursor at the commercial quantity level.
  • An impulsive, opportunistic act carried out without prior involvement in the importation scheme remained a serious offence by reason of the commercial quantity involved, but those circumstances bore significantly on the assessment of moral culpability.
  • A guilty plea entered at the commencement of trial attracted only a modest utilitarian discount of 10%, consistent with the limited practical benefit to the justice system from such a late plea.
  • An Intensive Correction Order was available as a sentencing option on these facts, where the offender presented a low risk of reoffending, had no criminal history, and demonstrated genuine acceptance of culpability.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 11.1(1), 307.11(1)
- Crimes Act 1914 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7(1), 73A(2)
- Migration Act 1958 (Cth)

Cases:
- R v El-Haddad [2015] NSWCCA 10
- R v Tranter [2013] SASCFC 61
- Director of Public Prosecutions (Cth) v Gow [2015] NSWCCA 208
- HAT v R [2011] VSCA 427
- Hili & Jones v R [2010] HCA 45
- R v Chandler [2010] QCA 21
- R v De La Rosa [2010] NSWCCA 194
- R v Fowler [2003] NSWCCA 321
- R v Holland [2011] NSWCCA 65
- R v Hull [2016] NSWSC 634
- R v Mobbs [2005] NSWCCA 371
- R v Morabito (1992) 62 A Crim R 82
- R v Napala [2018] NSWCCA 191
- R v Olbrich (1999) 199 CLR 210
- R v Webb [2004] NSWCCA 330
- R v Xiao [2018] NSWCCA 4