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District Court 2 July 2020

R v Acosta; R v Tran

[2020] NSWDC 662

DrugsFraud & dishonestyFirearms & weapons

Citation: R v Acosta; R v Tran [2020] NSWDC 662
Court: District Court of New South Wales
Date: 2 July 2020
Judge(s): Buscombe DCJ

Background

Two offenders, Jeffrey Acosta and Quoc Kiem Tran, were sentenced following guilty pleas to a cluster of serious Commonwealth and State criminal offences. The offending arose from an undercover police operation that infiltrated a sophisticated organised crime network involved in importing a large commercial quantity of the drug precursor ephedrine, unlawfully importing cigarettes, money laundering, and firearms possession.

The operation involved undercover officers posing as facilitators who could assist with clearing illegal imports through Australian border security. A co-accused, Dries, acted as the primary intermediary between the undercover officers and the importation group, which included Acosta and Tran. The cigarette transactions were used as a "trial run" to build trust before the principal drug precursor importation.

The facts were agreed between the parties. Both Acosta and Tran had entered their guilty pleas in the Local Court, and the Crown confirmed they were to be treated as having done so at that earlier stage, notwithstanding that they were formally arraigned on an indictment in the District Court due to perceived drafting deficiencies in the committal charges.

  • What sentences were appropriate for each offender across their respective counts, having regard to the objective seriousness of the offending, the agreed facts, and the applicable statutory maxima and standard non-parole periods?
  • What discount applied to reflect the early guilty pleas entered in the Local Court?
  • How should the totality principle be applied in constructing aggregate and overall sentences across multiple counts spanning both Commonwealth and State legislation?
  • Where concurrent and cumulative sentences were imposed, what were the correct commencement dates and non-parole periods?

Decision

Buscombe DCJ sentenced both offenders on the basis of the agreed facts, applying a 25 per cent discount to the starting-point sentences for each offence to reflect the guilty pleas entered at the Local Court stage. The precursor importation offence (1,310 kilograms of ephedrine at commercial quantity) was treated as the most serious matter for both offenders, given the scale of the operation and its connection to the manufacture of methamphetamine.

For Acosta, the starting-point sentence for the ephedrine importation was 14 years imprisonment, reduced to 10 years and 6 months after the plea discount. His two unauthorised firearms possession counts attracted additional sentences. The overall sentence, after the application of the totality principle (which requires a court to ensure the aggregate of cumulative sentences is not disproportionate to the totality of the criminality involved), was 11 years imprisonment with a non-parole period of 7 years.

For Tran, the ephedrine importation attracted a starting point of 13 years imprisonment, reduced to 9 years and 9 months after the plea discount. His additional offences included conveying 1.4 million unlawfully imported cigarettes, dealing with $375,000 intending it to become an instrument of crime, and dealing with approximately $1.43 million in suspected proceeds of crime. An aggregate sentence of 10 years imprisonment was imposed across the Commonwealth offences, commencing 28 January 2018. Tran's overall sentence was 10 years and 7 months imprisonment with a non-parole period of 6 years and 7 months.

The Court noted that Tran's release to parole at the expiry of the non-parole period is a matter for the Commonwealth Attorney-General, not the Parole Authority, given the Commonwealth nature of the principal offences.

Orders Made

  • Jeffrey Acosta: overall sentence of 11 years imprisonment, with a non-parole period of 7 years imprisonment.
  • Quoc Kiem Tran: overall sentence of 10 years and 7 months imprisonment, with a non-parole period of 6 years and 7 months imprisonment.

Key Takeaways

  • The District Court applied a 25 per cent plea discount to starting-point sentences for each offence, consistent with the offenders having entered their guilty pleas at the Local Court stage, even though formal arraignment occurred in the District Court due to drafting issues with the committal charges.
  • Importing a commercial quantity of a border controlled precursor (here, 1,310 kilograms of ephedrine) under the Commonwealth Criminal Code attracted starting-point sentences of 13 to 14 years imprisonment, reflecting the gravity of large-scale precursor importation intended to facilitate methamphetamine manufacture.
  • The totality principle operated to moderate the cumulative effect of multiple sentences across Commonwealth and State offences, producing overall terms proportionate to the full scope of each offender's criminality rather than simply aggregating each individual sentence mechanically.
  • Where an offender's principal sentences are for Commonwealth offences, the question of release to parole at the expiry of the non-parole period falls to the Commonwealth Attorney-General rather than to a State parole body.
  • Possession of unregistered and unlicensed pistols (here, a .38 calibre semi-automatic and a .357 calibre revolver) added meaningfully to Acosta's overall sentence, with a standard non-parole period of 4 years applicable to each firearms count under the Firearms Act 1996 (NSW).

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 307.11(1), 400.4(1)
- Customs Act 1901 (Cth), s 233BABAD(2)
- Firearms Act 1996 (NSW), s 7(1)
- Crimes Act 1900 (NSW), s 193C(1)
- Crimes Act 1914 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Xiao v R [2018] NSWCCA 4
- R v Pham [2015] HCA 39