Citation: R v LeGros [2020] NSWDC 733
Court: District Court of New South Wales
Date: 9 October 2020
Judge: Neilson DCJ
Background
The offender pleaded guilty to attempting to possess a border controlled drug, namely cocaine, in a marketable quantity, contrary to ss 307.6(1) and 11.1(1) of the Criminal Code (Cth). The offence carried a maximum penalty of 25 years imprisonment and/or a fine of 5,000 penalty units.
The primary offence occurred on 26 July 2019. Parcels originating from Germany, concealed within the covers of textbooks, had been loaded into Australia Post parcel lockers in Balgowlah and later Chatswood. Police had intercepted both parcels before the offender arrived to collect them. The offender drove from Rose Bay to Balgowlah, accessed the parcel locker, found it empty, and left. A near-identical attempt occurred at Chatswood on 3 August 2019, this time with an unknown male acting as a lookout. The offender was arrested on the Gold Coast on 9 October 2019 and extradited to New South Wales.
The court was also asked, pursuant to s 16BA of the Crimes Act 1914 (Cth), to take into account the Chatswood offence as a similar offence on a schedule. The pure cocaine content of the Balgowlah parcel was 739.86 grams; the Chatswood parcel contained 785.49 grams. Both quantities were marketable quantities but below the commercial threshold of two kilograms.
Legal Issues
- What was the appropriate sentence for an attempt to possess a marketable quantity of cocaine, where the parcel had already been removed by police before collection?
- What weight should be given to the offender's subjective case, including his rehabilitation progress?
- What discount was appropriate for the guilty plea and any assistance provided to authorities?
- Whether the Chatswood offence should be taken into account on a schedule under s 16BA of the Crimes Act 1914 (Cth).
Decision
The court assessed the objective seriousness of the offence. Although the quantity was approximately 370 times the marketable threshold, it remained just over one-third of a commercial quantity. The offender's role appeared to be that of a collector at the bottom of the supply chain, rather than an organiser. The offending was nonetheless serious and involved a degree of planning, including the use of fictitious names for the parcel lockers and coordinated surveillance.
The offender's subjective case was described as powerful. He had spent 190 days in pre-sentence custody before being granted bail in April 2020. Since release, he had been residing full-time at a residential drug and alcohol rehabilitation facility at Swan Bay, with the programme due to conclude on 15 April 2021. The court was satisfied he had made excellent progress in rehabilitation.
The court applied a 40 per cent discount to reflect both the guilty plea and any assistance provided to authorities. After accounting for the time already served in pre-sentence custody and the strong rehabilitation trajectory, the court determined that imprisonment was not the appropriate vehicle for the balance of the sentence.
The court released the offender on a recognisance under s 19AC(1) of the Crimes Act 1914 (Cth), subject to extensive conditions designed to support his continued rehabilitation and monitor his conduct.
Orders Made
The offender was released upon entering into a recognisance of $1,000, on condition of good behaviour for two years, with the following additional conditions:
- Return to and continue residing at the Connect Global Drug and Alcohol Rehabilitation, Education and Training Centre at Swan Bay until 15 April 2021.
- Not to leave those premises except in the company of a staff member, and only for specified purposes (attending Community Corrections, a police station, external medical or mental health appointments, or a medical emergency).
- Not to possess more than one mobile phone.
- To provide current mobile phone number to Community Corrections as soon as possible.
- Not to use any encryption application on the mobile phone.
- After completing rehabilitation, to be subject to supervision by Community Corrections.
- Not to leave New South Wales without the written consent of Community Corrections.
- If permitted to relocate to another state or territory, to submit to supervision by that jurisdiction's correctional authority.
- To comply with all drug rehabilitation directions, including random drug testing.
- To remain under the care and direction of a named psychologist based in Queensland.
Key Takeaways
- The District Court confirmed that an offender's role as a low-level collector, combined with quantities below the commercial threshold, are relevant factors in assessing objective seriousness, even where the quantity substantially exceeds the marketable threshold.
- Where a defendant has made genuine and well-evidenced progress in residential rehabilitation by the time of sentence, that progress can carry significant weight in determining whether a non-custodial outcome is appropriate.
- A 40 per cent discount was applied to reflect both a guilty plea and assistance to authorities, consistent with the approach in comparable federal drug sentencing matters.
- Under s 19AC(1) of the Crimes Act 1914 (Cth), a court may release an offender on a recognisance with detailed supervisory conditions, providing a structured alternative to further full-time custody where rehabilitation is well advanced.
- Pre-sentence custody of 190 days was taken into account as part of the overall sentencing calculation, reinforcing that time spent in custody before sentence remains a material consideration in federal drug matters.
Legislation and Cases Referenced
Legislation
- Criminal Code Act 1995 (Cth), ss 307.6(1), 11.1(1)
- Crimes Act 1914 (Cth), ss 16BA, 19AC(1)
Cases
- Brown v R (2013) 228 A Crim R 298
- R v Conroy [2020] NSWDC 604
- R v Falls [2004] NSWCCA 335
- R v Irusta [2000] NSWCCA 391