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District Court 27 March 2020

R v D’Amico

[2020] NSWDC 344

Drugs
CRIME SENTENCE OFFENDER’S ROLE SERIOUSNESS OF OFFENCE SPECIFIC AND GENERAL DETERRENCE SUBJECTIVE MATTERS

Citation: R v D'Amico [2020] NSWDC 344
Court: District Court of NSW
Date: 27 March 2020
Judge: King SC DCJ

Background

The offender, a self-employed disc jockey and dual Australian-Italian citizen, was sentenced for aiding, abetting, counselling or procuring an attempt to possess a commercial quantity of MDMA, contrary to ss 11.1(1), 11.2(1) and 307.5(1) of the Criminal Code Act (Cth) 1995. In March 2019, two air cargo consignments arrived from Switzerland concealed as water filters, containing just under six kilograms of MDMA at an average purity of approximately 76 percent. The commercial quantity threshold for MDMA is 0.5 kilograms.

The offender arranged for an associate, Ardimento, to collect the consignments from Paddington Post Office on his behalf, providing letters of authorisation and actively assisting by phone when complications arose at the post office. Australian Border Force had already intercepted the drugs before collection, and police substituted the contents with an inert substance as part of a controlled operation. Ardimento was arrested at the post office carrying both packages; the offender was not present at the time of arrest.

The offender was arrested on 13 May 2019 and committed for sentence on 22 January 2020 after entering a guilty plea.

  • What sentence was appropriate given the offender's role in organising the collection of a large commercial quantity of MDMA?
  • What weight should be given to specific and general deterrence in the context of serious drug importation offences?
  • What discount should apply to reflect the utilitarian value of the guilty plea and the facilitation of the course of justice?
  • How should the non-parole period be structured given the circumstances of the offence and the offender?

Decision

King SC DCJ accepted that full-time imprisonment was appropriate and uncontested. Given the quantity of drugs involved (nearly nine times the commercial quantity threshold), the offender's organisational role, and the serious nature of the offence, the judge determined that a significant sentence was required to address both specific and general deterrence.

The judge applied a discount of slightly over 25 percent to reflect the guilty plea's utilitarian value and the facilitation of the course of justice. The discount was applied in a way that rounded the sentence down to an even number of years from the pre-discount starting point.

In considering general deterrence, the judge cited the Court of Criminal Appeal's approval in R v Chen, Siregar, Ismunandar and Lau [2002] NSWCCA 174 of observations originally made by Sully J in R v Cheung Wai Man. Those observations emphasised the court's role in calibrating sentences for drug-related crime to a level at which fear of punishment can neutralise the financial greed that motivates drug trafficking. The judge noted that the legislature's treatment of commercial quantity offences as carrying a maximum of life imprisonment and substantial financial penalties reflected the gravity with which such conduct is regarded.

The offender's role as the organiser who recruited the courier, prepared the authorisation documents, and actively managed the collection process by telephone was treated as a significant aggravating feature in fixing the sentence.

Orders Made

  • The offender was convicted of aiding, abetting, counselling or procuring an attempt to possess a commercial quantity of a border controlled drug (MDMA).
  • Sentenced to seven years' imprisonment with a non-parole period of four years and six months.
  • Non-parole period commences 13 May 2019 (date of arrest).
  • Parole order for release on or about 12 November 2023.
  • Balance of term: two years and six months.
  • Total sentence expires 12 May 2026.

Key Takeaways

  • The District Court confirmed that for serious drug importation offences involving quantities well above the commercial threshold, both specific and general deterrence are primary sentencing considerations that will drive a substantial custodial term.
  • A guilty plea resulting in a discount of slightly over 25 percent was accepted as appropriate where it reflected both the utilitarian value of the plea and the facilitation of the course of justice.
  • Where an offender's role includes recruiting a courier, preparing documentation, and managing the collection process remotely, that organisational involvement is treated as a significant factor in assessing the seriousness of the offence.
  • Under ss 11.1(1), 11.2(1) and 307.5(1) of the Criminal Code Act (Cth), aiding and abetting an attempt to possess a commercial quantity of a border controlled drug carries a maximum penalty of life imprisonment, reflecting the legislature's view of the gravity of such conduct.
  • Courts sentencing for drug importation offences may draw on the principle, affirmed in R v Chen, Siregar, Ismunandar and Lau, that sentences should be calibrated to counteract the profit motive driving drug trafficking.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act (Cth) 1995, ss 11.1(1), 11.2(1), 307.5(1)
- Crimes Act (Cth) 1914

Cases:
- R v Chen, Siregar, Ismunandar and Lau [2002] NSWCCA 174
- R v Cheung Wai Man and Ors (NSWSC, 22 March 1991, unreported)
- R v Nguyen, R v Pham [2010] 205 A Crim R 106
- Wong v The Queen (2001) 207 CLR 584