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District Court 26 November 2020

R v Dries

[2020] NSWDC 872

DrugsFraud & dishonestyFirearms & weapons

Citation: R v Dries [2020] NSWDC 872
Court: District Court of New South Wales
Date: 26 November 2020
Judge: Buscombe DCJ

Background

The offender was sentenced across two indictments covering five offences, together with two further matters taken into account at sentencing (a schedule offence and a Form 1 offence). The conduct spanned from September 2016 to June 2017 and involved the offender acting as an intermediary between undercover police operatives and a drug importation syndicate.

On the Commonwealth indictment, the offender aided and abetted co-offenders in importing 1,310 kilograms of ephedrine (a border-controlled precursor used to manufacture drugs such as methylamphetamine) at a commercial quantity. He also conveyed 1.5 million cigarettes knowing they had been imported with intent to defraud the Commonwealth Revenue. A related dealing-in-proceeds offence involving $405,000 was taken into account on a schedule under the Commonwealth sentencing regime.

On the State indictment, the offender was found to have possessed three unauthorised pistols at Kurrajong on 28 June 2017: a Springfield self-loading pistol, a 1911 self-loading pistol, and a Colt snub-nosed revolver. A further Form 1 offence of possessing $140,000 in Australian currency reasonably suspected to be proceeds of crime was taken into account when sentencing on the first pistol count.

  • What sentences were appropriate for aiding and abetting the commercial-quantity importation of a border-controlled precursor under the Commonwealth Criminal Code?
  • What weight should be given to the offences taken into account on the schedule and Form 1?
  • How should the State and Commonwealth sentences be structured and aggregated, having regard to totality principles?
  • What discount applied for the offender's early guilty pleas across each count?

Decision

The court accepted that all offences were serious. The drug importation conduct was the gravest matter: the offender was not a passive participant but an active facilitator who introduced syndicate members to undercover operatives posing as corrupt border officials, relayed logistical details, and negotiated payment arrangements involving a percentage of the imported drugs. The agreed facts ran to 23 pages and detailed extensive encrypted BlackBerry communications over many months.

On the Commonwealth offences, Buscombe DCJ identified the commercial quantity of ephedrine, the sustained and deliberate nature of the offending, and the involvement of a proceeds-of-crime dealing (taken into account on the schedule) as significant aggravating features. A 15% discount was applied to reflect the early guilty pleas. The indicative sentence for the drug precursor importation offence was 9 years and 4 months.

For the State firearms offences, the court imposed indicative sentences of 3 years and 6 months (counts 1 and 2) and 3 years and 4 months (count 3), each with indicative non-parole periods, after applying the same 15% early plea discount. The Form 1 proceeds offence was taken into account on count 1.

Applying totality principles (which require that the overall sentence not be crushing or disproportionate to the totality of the offending), the court structured the State and Commonwealth aggregate sentences with a degree of concurrency. The State aggregate sentence commenced on 28 June 2017. The Commonwealth aggregate sentence commenced on 27 June 2018, producing a combined overall sentence of 10 years and 6 months with an overall non-parole period of 6 years and 6 months.

Orders Made

  • Conviction recorded on all offences to which the offender pleaded guilty.
  • State offences (indicative sentences):
  • Count 1 (Springfield pistol): 3 years 6 months, non-parole period 2 years 4 months
  • Count 2 (1911 pistol): 3 years 6 months, non-parole period 2 years 4 months
  • Count 3 (Colt revolver): 3 years 4 months, non-parole period 2 years 2 months
  • State aggregate sentence: 4 years imprisonment, non-parole period 2 years 8 months; commencing 28 June 2017, expiring 27 June 2021
  • Commonwealth offences (indicative sentences):
  • Count 1 (import commercial quantity border-controlled precursor): 9 years 4 months
  • Count 2 (convey tobacco knowing imported with intent to defraud Revenue): 11 months
  • Commonwealth aggregate sentence: 9 years 6 months, non-parole period 5 years 6 months; commencing 27 June 2018, expiring 26 December 2027
  • Overall sentence: 10 years 6 months imprisonment, overall non-parole period 6 years 6 months; commencing 27 June 2017, expiring 26 December 2027; first eligible for parole 26 December 2023

Key Takeaways

  • An early guilty plea discount of 15% was applied uniformly across both State and Commonwealth offences, reflecting the utilitarian value of the pleas to the criminal justice system.
  • Aiding and abetting the commercial-quantity importation of a border-controlled precursor carries a maximum penalty of 25 years imprisonment under the Commonwealth Criminal Code, and an indicative sentence of over nine years was imposed here in light of the offender's sustained facilitation role.
  • Schedule offences (Commonwealth) and Form 1 offences (State) were taken into account at sentencing to increase the sentence on the principal counts, consistent with the applicable statutory regimes.
  • Totality principles required the court to structure cumulative sentences so that the overall period of imprisonment remained proportionate to the full scope of the offending, resulting in a degree of concurrency between the State and Commonwealth aggregate sentences.
  • Possession of multiple prohibited pistols, when combined with evidence connecting the offender to proceeds of crime, was treated as a serious aggravating factor within the State sentencing exercise.

Legislation and Cases Referenced

Legislation:
- Commonwealth Criminal Code Act 1995 (Cth), ss 11.2(1) and 307.11(1) (aiding and abetting importation of border-controlled precursor)
- Customs Act 1901 (Cth), s 233BABAB(2) (conveying tobacco with intent to defraud Revenue)
- Crimes Act 1914 (Cth), Part 1B, s 16A (Commonwealth sentencing principles); s 16BA (schedule offences)
- Firearms Act 1996 (NSW), s 7(1) (possession of unauthorised pistol)
- Crimes (Sentencing Procedure) Act 1996 (NSW), s 3A (purposes of sentencing)

Cases:
- Giorgianni v The Queen (1985) 156 CLR 473
- GAS v The Queen (2004) 217 CLR 198
- PG v R [2017] NSWCCA 179
- R v Pham [2015] HCA 39