AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
District Court 15 December 2020

R v Lau

[2020] NSWDC 843

Drugs
CRIMINAL LAW SENTENCE METHYLAMPHETAMINE.

Citation: R v Lau [2020] NSWDC 843
Court: District Court of New South Wales
Date: 15 December 2020
Judge: Judge W Hunt

Background

The offender, a 53-year-old Australian citizen, pleaded guilty in the Local Court and was committed to the District Court for sentence on one charge of attempting to possess a marketable quantity of an unlawfully imported border controlled drug, namely methylamphetamine, under the Commonwealth Criminal Code. The drug, weighing 402.74 grams pure, arrived at Sydney's gateway facility from Malaysia addressed to a post office box the offender had rented in her own name at Kingsford Post Office.

Australian Border Force intercepted the consignment, confirmed it contained methylamphetamine, and substituted an inert substance before allowing the package to proceed. Police arrested the offender at the post office on 21 June 2019 after she attended to collect the substituted package, presenting identification and signing for the consignment. A subsequent search of associated premises uncovered drug paraphernalia including ice pipes, empty gelatine capsules, and crystal residue.

Sentencing was adjourned several times after June 2020, including due to the judge's illness and scheduling pressures, before being finalised on 15 December 2020.

  • What objective seriousness attached to an attempted possession of 402.74 grams pure methylamphetamine, a marketable quantity of an unlawfully imported border controlled drug?
  • What utilitarian discount applied following a guilty plea entered in the Local Court?
  • Whether full-time imprisonment with a non-parole period was the only available sentencing disposition, or whether a less restrictive sentence could be justified by subjective circumstances.
  • Whether the offender's rehabilitation prospects and personal circumstances warranted the exercise of leniency in sentence length and mode of service.

Decision

Judge Hunt accepted that the offending carried significant objective seriousness, and the parties agreed that some form of imprisonment was warranted. The Crown contended that only a sentence involving a non-parole period (requiring at least three years of full-time custody) was available, but the offender's legal representatives submitted that a less restrictive disposition remained open on the facts.

The offender received a 25% utilitarian discount for her early guilty plea, consistent with the approach established in Xiao v R [2018] NSWCCA 4. His Honour also took into account the delay in finalising the matter, though he noted that no party was at fault for the adjournments.

In addressing sentence, the Court drew on the principles in Dinsdale v R and R v Osenkowski, both of which recognise that sentencing discretion permits some leniency where particular circumstances of the case call for it, especially where a lesser sentence may better serve rehabilitation. His Honour concluded that further full-time imprisonment would significantly reduce, rather than improve, this offender's prospects of rehabilitation and the community's consequent protection.

Ultimately, Judge Hunt sentenced the offender to 22 months' imprisonment, to be served by way of an intensive corrections order (ICO). His Honour expressly acknowledged that this disposition extended significant leniency in both sentence length and mode of service, and that the case was distinguished on its facts from analogous decisions cited by the parties.

Orders Made

  • The offender is convicted of the single substantive offence.
  • Sentenced to 22 months' imprisonment, commencing 15 December 2020 and expiring 14 October 2022.
  • The sentence is to be served by way of an intensive corrections order (ICO).
  • Standard conditions imposed: no further offences to be committed; supervision by a Community Corrections officer to be accepted.
  • Additional condition: complete abstinence from prohibited drugs.
  • The offender is to report, initially by telephone, to the Sutherland office of Community Corrections within seven days.

Key Takeaways

  • Under the Commonwealth sentencing framework, courts must consider the matters in s 16A(2) of the Commonwealth Crimes Act and are constrained by s 17A, which requires satisfaction that imprisonment is the only appropriate sentence before that disposition is adopted.
  • A 25% utilitarian discount for an early guilty plea entered in the Local Court was applied, consistent with Xiao v R [2018] NSWCCA 4 and subsequent New South Wales authority.
  • Despite the objective seriousness of attempting to possess a marketable quantity of imported methylamphetamine, full-time custody is not inevitably the only available disposition; subjective circumstances, including rehabilitation prospects, may support an intensive corrections order.
  • The sentencing court distinguished this case from analogous decisions on its particular facts, illustrating that comparison with prior sentences in drug importation matters is not determinative.
  • Principles drawn from Dinsdale v R and R v Osenkowski confirm that sentencing discretion accommodates a measure of mercy or leniency where a lesser sentence may better promote an offender's rehabilitation and, in turn, community protection.

Legislation and Cases Referenced

Legislation
- Commonwealth Criminal Code, ss 307.6(1) and 11.1(1)
- Commonwealth Crimes Act, ss 16A(2), 16BA, 17A
- Crimes Act
- Crimes (Sentencing Procedure) Act, s 66(3)
- Judiciary Act

Cases
- Dinsdale v R [2002] CLR 321
- R v Fangaloka [2019] NSWCCA 173
- R v Nozhat (No 3) [2019] ACT SC 160
- R v Osenkowski (1982) 30 SASR 212
- R v Todd [1982] 2 NSWLR 517
- Wany v DPP [2020] NSWCCA 318
- Webb v R [2020] NSWCCA 103
- Wong & Leung v R (2001) 207 CLR 584
- Xiao v R [2018] NSWCCA 4