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District Court 27 August 2020

R v Markwart

[2019] NSWDC 937

Drugs
CRIME SENTENCE IMPORT BORDER CONTROLLED DRUG COCAINE MARKETABLE VALUE INITIAL DENIAL OF GUILT

Citation: R v Markwart [2019] NSWDC 937
Court: District Court of New South Wales
Date: 27 August 2020
Judge: Norrish QC DCJ

Background

The offender pleaded guilty on indictment to importing a marketable quantity of cocaine, contrary to s 307.2(1) of the Criminal Code (Cth), which carries a maximum penalty of 25 years imprisonment. The offending related to a consignment that arrived from France in April 2017, concealed within wine bottles and addressed to the offender at his Sydney workplace. Federal authorities intercepted the package, conducted testing, and confirmed the presence of cocaine in four intact bottles.

A separate trafficking offence involving MDMA was taken into account on a Form under s 16BA of the Crimes Act 1914 (Cth). The agreed facts also revealed three earlier consignments arriving from France between December 2016 and March 2017, each addressed to the offender and each describing the contents as wine. The court treated these as providing important context and as evidence of a course of conduct.

The offender had initially denied guilt, had a long history of drug use, and was described as receiving only modest remuneration for his involvement. He had spent approximately 11 months and 15 days in pre-sentence custody before being released on bail, during which time he demonstrated good prospects of rehabilitation.

  • What sentence was appropriate for the principal offence of importing a marketable quantity of cocaine, taking into account all relevant factors under s 16A of the Crimes Act 1914 (Cth)?
  • How should the Form 1 offence (trafficking MDMA) affect the overall sentence, including the weight to be given to deterrence and retribution?
  • What credit was appropriate for pre-sentence custody and the guilty plea?
  • How should the court characterise the prior unproven consignments in the context of sentencing?
  • What non-parole period was appropriate given the offender's rehabilitation prospects and need for assistance?

Decision

The District Court sentenced the offender to seven years and eight months imprisonment, commencing 29 March 2018, with a non-parole period of four years and three months expiring 28 June 2022. The court granted one full year of credit for pre-sentence custody, encompassing the approximately 11 months and 15 days already served plus the fortnight in custody immediately before sentencing.

On the Form 1 MDMA trafficking matter, the court applied the principles from Attorney General's Application (No 1) (2002) 56 NSWLR 147, confirming that the purpose of the form process is ordinarily to produce a longer or qualitatively different sentence than the principal offence would attract alone, with greater weight given to deterrence and retribution. However, the court noted that in this case the additional weight required was not significant, as the Form 1 offence arose from the same course of conduct rather than being wholly unrelated criminality.

The three earlier consignments from France, while not proven to contain cocaine beyond reasonable doubt, were treated as striking-ly similar prior conduct that informed the context of the principal offending. The court accepted that the offender received only modest remuneration, had a long history of drug use, had initially denied guilt, and had demonstrated genuine prospects of rehabilitation since his release on bail.

The non-parole period was structured deliberately to allow the offender a substantial period after release on parole to receive guidance, adjust to community living, and access assistance to address drug use. The Crown acknowledged that, notwithstanding the serious nature of the offending, this was not a case calling for an extreme outcome.

Orders Made

  • Convicted of importing a marketable quantity of a border controlled drug (cocaine), contrary to s 307.2(1) of the Criminal Code (Cth).
  • Sentenced to seven years and eight months imprisonment, commencing 29 March 2018, expiring 28 November 2025.
  • Non-parole period of four years and three months, expiring 28 June 2022.
  • The MDMA trafficking offence taken into account pursuant to s 16BA of the Crimes Act 1914 (Cth).
  • No pecuniary penalty imposed.

Key Takeaways

  • The District Court confirmed that a Form 1 offence need not always produce a dramatic increase to the overall sentence; where the form matter arises from the same course of conduct as the principal offence, the incremental weight given to deterrence and retribution may be modest rather than substantial.
  • Prior uncharged consignments, even where their precise contents cannot be proven beyond reasonable doubt, may properly be considered as contextual and course-of-conduct material when sentencing on a related principal offence.
  • A long history of personal drug use, modest remuneration, and absence of a senior role in the importation scheme are each recognised as relevant subjective factors capable of moderating the overall sentence, though they do not displace the serious objective gravity of marketable-quantity importation.
  • Under the Attorney General's Application (No 1) principles, the sentencing court's task when dealing with Form 1 matters is to determine an overall appropriate sentence for all the offending combined, rather than to quantify a discrete additional penalty for each form matter.
  • Structuring the non-parole period to allow meaningful post-release support remains a legitimate sentencing consideration, particularly where the offender demonstrates genuine rehabilitative prospects and an underlying substance dependence problem.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 16A, 16BA
- Criminal Code (Cth), ss 302.4(1), 307.2(1)
- Drug Misuse and Trafficking Act (NSW)

Cases
- Attorney General's Application (Number 1) (2002) 56 NSWLR 147
- Atanackovic v R [2015] VSCA 136
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- DPP (Cth) v Gow [2015] NSWCCA 208
- Hili and Jones v R [2010] HCA 45
- Iyoha v R [2011] WASCA 46
- Markarian v R (2005) 228 CLR 357
- R v Alaby [2014] VSCA 25
- R v Holland [2011] NSWCCA 65
- R v Olbrich (1999) 199 CLR 270
- R v UE [2016] QCA 58
- Siddiqi v R [2015] NSWCCA 16
- Wong v R (2001) 207 CLR 584
- Xiao v R [2018] NSWCCA 4