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District Court 18 December 2020

R v To

[2020] NSWDC 923

Drugs
CRIME DRUG OFFENCES NSW AND COMMONWEALTH OFFENCES ATTEMPT TO POSSESS PROHIBITED DRUG SUPPLY PROHIBITED DRUG

Citation: R v To [2020] NSWDC 923
Court: District Court of New South Wales
Date: 18 December 2020
Judge(s): Sutherland SC DCJ

Background

The offender, a 20-year-old man of Cambodian heritage with no prior criminal record, was sentenced on three substantive drug trafficking counts. The charges arose from a police-controlled delivery of two large cardboard boxes shipped from Bangkok, Thailand, in November 2019. The boxes contained 18 motorcycle exhaust pipes packed with 14.754 kilograms of methamphetamine, which, at a purity of 74.5 to 79 percent, yielded a pure weight of 11.441 kilograms.

An innocent third party, Ms Ma, had been recruited to receive the consignment at her Sydney address. The offender collected the boxes and drove them to premises in Mount Pritchard, where he was recorded using a power drill and later enlisting a co-accused, Mousa, to help break open the exhaust pipes. Police arrested him that afternoon. A subsequent search of his parents' home uncovered 184.3 grams of heroin, 206.3 grams of methylamphetamine, 15.12 grams of MDMA, $17,050 in cash, electronic scales, and a drug ledger.

The matter proceeded to sentence on pleas of guilty. The federal charge was attempting to possess a commercial quantity of a border-controlled drug. The two NSW charges were deemed supply of heroin and deemed supply of methylamphetamine. Two further NSW offences (dealing with proceeds of crime and supply of MDMA) were placed on a Form 1 to be taken into account on sentence.

Legal Issues

  • What was the offender's role and level of culpability within the criminal enterprise, including whether he was a mere courier or something more?
  • How should the court apply the principle in R v De Simoni to recorded references suggesting possible larger-scale drug quantities not charged?
  • What weight should be given to the offender's youth, personal circumstances, prospects for rehabilitation, and early guilty plea when assessing an appropriate sentence?
  • How should federal and State sentences be structured to avoid impermissible simple aggregation?

Decision

Role in the criminal enterprise: The court was satisfied beyond reasonable doubt that the importation was organised by a criminal enterprise, but could not determine its precise structure or the offender's full place within it (at [40]). His role was to collect the consignment from Ms Ma and remove the drugs, presumably to pass them up the hierarchy. That function placed him well towards the lower levels of responsibility, above a mere passive recipient but without any organisational or managerial involvement (at [46]-[48], [73]). The court also found, beyond reasonable doubt, that the offender knew the consignment contained border-controlled drugs, based on his recorded conversations with Mousa and the surrounding circumstances (at [42]).

The De Simoni issue: Defence counsel objected to two mobile phone messages referencing "one keg of Emily" on the basis that they disclosed more serious offending than the charges preferred. The court accepted that these references, read in context, were relevant only to illustrate the offender's general role in drug distribution, not to increase the sentence beyond what the charged quantities warranted. They were not treated as an aggravating factor going to quantity (at [30]).

The State supply charges: The quantities of heroin and methylamphetamine found in the safe, together with the scales, ledger, and cash, supported the inference that the offender was operating as part of a modest, low-level drug distribution network, somewhat above pure street-level dealing but well below any managerial level (at [33]).

Subjective factors and sentence: The offender was 20 years old at the time of offending, had no prior convictions, and had experienced a documented personal deterioration in 2019 involving relationship breakdown, family conflict, unemployment, gambling debt, and substance abuse (at [49]-[59]). Psychological assessment, family affidavits, and the early guilty plea together supported a finding of genuine remorse and good prospects for rehabilitation (at [64], [70]). A 25 percent discount was applied for the early guilty plea, notwithstanding the strength of the Crown case (at [65]-[66]). General deterrence remained an important sentencing consideration regardless of the offender's reduced role (at [74]).

Orders Made

  • Effective overall sentence of 9 years imprisonment with a 6-year minimum term (non-parole period).
  • Count 2 (supply of heroin): 2 years imprisonment, non-parole period of 12 months, commencing 7 November 2019.
  • Count 3 (supply of methylamphetamine, including Form 1 matters): 3 years imprisonment, non-parole period of 18 months, accumulated by 6 months on Count 2, commencing 7 May 2020.
  • Federal offence (attempt to possess commercial quantity of methamphetamine): 8 years imprisonment, non-parole period of 5 years, commencing 7 November 2020, expiring 6 November 2025; head sentence expiring 6 November 2028.

Key Takeaways

  • The District Court confirmed that a person who collects a controlled delivery and attempts to extract drugs from concealment, without any organisational role in the importation, falls well towards the lower end of culpability for Commonwealth border-controlled drug offences, though general deterrence still carries significant weight in sentencing (at [40], [46]-[48], [74]).
  • Under the De Simoni principle, evidence suggesting uncharged and potentially more serious offending may be used to illuminate an offender's general role, but cannot operate to increase the sentence beyond what the actual charges warrant (at [30]).
  • A finding that an offender knew the consignment contained border-controlled drugs can be made beyond reasonable doubt from surrounding conduct and recorded conversations, even where the offender did not know the precise drug or exact quantity involved (at [42], [93]).
  • Youth, the absence of prior convictions, and credible prospects for rehabilitation were treated as significant mitigating factors, consistent with the court's review of comparable decisions involving young offenders in similar importation matters (at [49], [70], [78]-[85]).
  • Where a sentencing exercise involves both federal and State drug offences, the sentences must be structured to avoid simple aggregation, with the court staggering commencement dates to achieve a coherent overall result (at [94]-[96]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth)
- Criminal Code 1995 (Cth)
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases
- Jadron v R [2015] NSWCCA 241
- Obiekwe v R [2018] NSWCCA 55
- Olbrich v The Queen (1999) 199 CLR 270
- Pham v R; Tang v R [2012] VSCA 101
- R v Awraham [2019] NSWDC 341
- R v De Simoni [1981] HCA 31
- R v Lee [2013] NSWDC 232
- R v Qutami (2001) 127 A Crim R 369
- Regina v Griggs [2000] NSWCCA 33
- Sultana v R (1994) 74 A Crim R 27
- The Queen v Pham (2015) HCA 39; 256 CLR 550
- Zhang v R [2010] NSWCCA 105