Citation: R v Le; R v Chanthavong [2020] NSWDC 625
Court: District Court of New South Wales
Date: 25 August 2020
Judge: Colefax SC DCJ
Background
Two young men, referred to here as the first offender (Le) and the second offender (Chanthavong), appeared for sentence on one count each of aiding and abetting the importation of a commercial quantity of a border controlled drug, contrary to s 307.1(1) of the Commonwealth Criminal Code. The maximum penalty for this offence is life imprisonment and/or a fine of approximately $1.5 million.
In late December 2018, the first offender arranged to receive a package of methylamphetamine at his home in Cabramatta West, mailed from the United States. He was motivated by financial pressure, having accumulated approximately $10,000 in personal debt. He stood to receive $5,000 for his role. The second offender, who was owed money by the first offender, was enlisted to assist in some communications-related capacity and was to receive a lesser sum.
The package, containing 1,235.24 grams of methylamphetamine, was delivered on 10 January 2019 under police surveillance. The first offender was arrested the same day and made full admissions. The second offender was not arrested until 19 June 2019. Neither offender was alleged to have known precisely what was in the package; the Crown's case was that each was reckless as to whether it contained a border controlled drug.
Legal Issues
- What was the appropriate sentence for each offender, given their respective roles as aiders and abettors in a commercial drug importation?
- How should objective seriousness be assessed where the offenders were reckless (rather than knowingly involved) and played a peripheral role?
- What weight should be given to guilty pleas, youth, good character, genuine remorse, and prospects of rehabilitation?
- How should the principle of parity operate where two co-offenders had slightly different levels of involvement?
Decision
His Honour assessed the objective seriousness of the offending as towards the bottom of the range for this type of offence. The offenders were aiders and abettors with limited roles: the first offender was to receive the package and alter shipping documents, while the second offender's role was described as extremely vague. Neither knew with certainty what the package contained, though both believed it held something "bad."
There were no additional aggravating factors. Both offenders were young men of good character, with one having no prior offences and the other only minor traffic matters. His Honour accepted that expressions of remorse from each offender were genuine, despite neither giving oral evidence at the hearing, and assessed their prospects of rehabilitation as very good.
Each offender received a 25% discount on their sentence for an early guilty plea, reflecting its utilitarian value, facilitation of the course of justice, and indication of genuine remorse. His Honour identified rehabilitation as the primary sentencing objective for both, while also acknowledging the need for general deterrence given the serious harm caused by methamphetamine in the community.
Parity was considered between the two offenders. The first offender was younger but had a slightly greater degree of involvement, while the second offender was older but played a more peripheral role. This produced a modest difference in the sentences imposed.
Orders Made
First offender (Le):
- Sentenced to three years' imprisonment (pre-discount term: four years), backdated to the date of arrest (10 January 2019)
- Execution of sentence partially suspended after serving one year and seven months (which expired 9 August 2020) pursuant to s 21B of the Commonwealth Crimes Act
- Released immediately upon entering a self-recognisance without security, agreeing to forfeit $500
- Supervised period of one year and five months
- To report to Liverpool Community Corrections within 24 hours of release
Second offender (Chanthavong):
- Sentenced to two years and seven months' imprisonment (pre-discount term: three years and six months), backdated to the date of arrest (19 June 2019)
- Execution of sentence partially suspended after serving one year and two months (which expired 18 August 2020) pursuant to s 21B of the Commonwealth Crimes Act
- Released immediately upon entering a self-recognisance without security, agreeing to forfeit $500
- Supervised period of one year and five months
- To report to Fairfield Community Corrections within 24 hours of release
Key Takeaways
- Objective seriousness for aiding and abetting drug importation can be assessed at the lower end of the range where the offenders played peripheral roles and were reckless rather than knowingly involved in the nature of the drug.
- A 25% sentencing discount applied for early guilty pleas, on the basis that the pleas facilitated the course of justice and were indicative of genuine remorse.
- The District Court placed rehabilitation as the primary sentencing consideration where both offenders were young, of otherwise good character, had family support, and demonstrated very good prospects of rehabilitation.
- Under s 307.1(1) of the Commonwealth Criminal Code, recklessness as to whether a substance is a border controlled drug is sufficient for an offence, even absent actual knowledge of the drug's identity.
- Parity between co-offenders does not require identical sentences where there are differences in age and degree of involvement, though his Honour kept the differential modest in this case.
Legislation and Cases Referenced
Legislation:
- Commonwealth Criminal Code, s 307.1(1) (importation of a commercial quantity of a border controlled drug)
- Commonwealth Crimes Act, s 21B (partial suspension of sentence)
Cases cited: None stated in the judgment.