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District Court 1 April 2021

R v AA

[2021] NSWDC 112

Drugs
DRUG OFFENCES ILLEGAL DRUG IMPORTATION COMMERCIAL QUANTITY DARK NET POSSESSION SUPPLY

Citation: R v AA [2021] NSWDC 112
Court: District Court of New South Wales
Date: 1 April 2021
Judge: Weinstein SC DCJ

Background

The offender, born in 1985, was sentenced for a series of drug offences arising from two separate episodes of offending. Between March and September 2019, the Australian Border Force intercepted multiple packages sent from China to the offender's NSW address, all containing gamma-butyrolactone (GBL), a border controlled drug. The largest single interception, on 5 September 2019, contained approximately 25.381 kilograms of GBL with a purity of 97 percent, yielding a pure weight of 24.6 kilograms.

The offender had arranged the importations clandestinely through the Dark Web using cryptocurrency. A forensic examination of his laptop confirmed this. His banking records showed over $400,000 moving between accounts during the relevant period, with transactions bearing the description "Drinks," a term police associate with GBL. Separately, in May 2020, while on bail awaiting resolution of the importation charges, the offender was arrested carrying approximately 600 grams of GBL in a sports drink bottle and admitted he was delivering it for payment.

The offender pleaded guilty to importing a commercial quantity of a border controlled drug (Commonwealth), three counts of possessing small quantities of prohibited drugs (State), and one count of supplying a prohibited drug (State). He also sought to have a further importation matter taken into account on the Commonwealth sentence. The court was required to assess the appropriate sentences across these multiple charges, having regard to a range of mitigating and aggravating factors.

Legal Issues

  • What was the objective seriousness of the Commonwealth importation offence, the State possession offences, and the State supply offence?
  • What discounts applied for the guilty plea and for assistance provided to law enforcement authorities?
  • To what extent did the offender's disadvantaged background, mental health, and significant drug addiction reduce his moral culpability?
  • Whether the section 5 threshold (no sentence other than imprisonment) was crossed for the relevant offences.
  • How the totality principle applied to the combination of State and Commonwealth sentences, including questions of concurrence and accumulation.
  • What non-parole period was appropriate for the Commonwealth importation offence.

Decision

Objective seriousness: Commonwealth importation offence

Weinstein SC DCJ placed the objective gravity of the importation offence between the low and mid-range of seriousness (at [84]). The quantity imported, 24.6 kilograms pure GBL, far exceeded the one-kilogram commercial quantity threshold, and the offender was the primary organiser of the importations rather than a mere courier (at [76]). However, mitigating factors reduced the objective gravity below mid-range: the financial value of the drug was modest at approximately $6,200; the offender used his real name and home address in most instances, demonstrating unsophisticated rather than calculated behaviour; and the offending was substantially driven by a severe drug addiction rather than greed (at [80]-[84]).

Objective seriousness: State possession offences

The three possession offences (Sequences 2, 3, and 4) involved very small quantities consistent with personal use. The court found that the section 5 threshold of the Crimes (Sentencing) Procedure Act 1999 had not been crossed for any of these offences, and that conviction without further penalty under section 10A was appropriate. The Crown did not oppose this outcome (at [68]).

Objective seriousness: State supply offence

The supply offence, committed while the offender was on conditional bail, was treated as an aggravating factor (at [87]). The offender was acting as a street-level carrier for modest payment. The court found the offending sat at the low end of the objective seriousness range but that the section 5 threshold was crossed, making a period of imprisonment appropriate (at [93]).

Discounts for plea and assistance

A 25% discount was allowed for the early guilty plea across all matters (at [98]). A further combined 25% discount was allowed for the offender's past assistance to law enforcement (20%) and ongoing commitment to future assistance (5%), supported by two confidential affidavits (at [102]). The total discount applied across the relevant sentences was 50%.

Moral culpability: disadvantage, mental health, and addiction

The court accepted that the offender's disadvantaged background substantially reduced his moral culpability, though it did not exculpate him (at [124]-[125]). The offender had grown up in a violent household with an abusive and controlling father, left home at 16, and had struggled with his identity as a gay man in a religiously strict household. These circumstances were linked to long-term untreated mental health difficulties and a ten-year addiction to GHB and methamphetamine, both administered intravenously. The court applied the principles in Bugmy v The Queen and noted, following R v Millwood and Perkins v R, that persons with such backgrounds do not bear equal responsibility with those who had normal or advantaged childhoods (at [125]). The court found that general deterrence carried less weight as a result (at [124]).

Totality and sentencing outcome

For the Commonwealth importation offence, the court imposed a head sentence of 3 years and 1 day with a non-parole period of 18 months, reflecting the 50% combined discount from a notional starting sentence of 6 years (at [154]-[155]). For the State supply offence, a fixed term of 6 months was imposed. There was partial accumulation of 3 months between the two sentences, consistent with the totality principle (at [141]).

Orders Made

  • Sequences 2, 3, and 4 (possession of prohibited drugs): convicted under section 10A of the Sentencing Act; no further penalty imposed.
  • Second Sequence 1 (supply of approximately 600 grams of GBL): fixed term of 6 months' imprisonment commencing 2 April 2020 and expiring 1 October 2020; 50% discount for plea and assistance applied.
  • Sequence 1 (importing a commercial quantity of GBL, approximately 24 litres): sentence of 3 years and 1 day commencing 2 July 2020 and expiring 1 July 2023; Sequence 5 taken into account on the section 16BA schedule; 50% discount for plea and assistance applied.
  • Non-parole period of 18 months commencing 2 July 2020; eligible for release to parole on 1 January 2022.
  • Forfeiture order of $150.

Key Takeaways

  • A 50% combined discount (25% for an early guilty plea and 25% for substantial assistance to law enforcement) was applied across both the Commonwealth and State sentences, reflecting the court's assessment that the assistance was truthful, reliable, and timely, and that a further discount for ongoing future assistance was warranted (at [98]-[102]).

  • Objective gravity for GBL importation is not determined by weight alone. The District Court weighed the offender's modest anticipated financial reward, relatively unsophisticated methods, primary role as organiser, and the absence of evidence of a lavish lifestyle in placing the offending between the low and mid-range (at [84]).

  • Where an offender's disadvantaged background, including exposure to family violence in childhood, is linked to the mental health difficulties and addiction underpinning the offending, moral culpability is reduced and general deterrence is given less weight on sentence, consistent with Bugmy v The Queen and R v Millwood (at [124]-[125]).

  • Under section 10A of the Crimes (Sentencing) Procedure Act 1999, a court may convict an offender without imposing any further penalty where the section 5 imprisonment threshold has not been crossed, even in the context of a broader sentence involving imprisonment for other offences (at [68]).

  • Committing a further drug supply offence while on bail awaiting sentence for serious Commonwealth drug charges was treated as an aggravating factor and evidence of significant lack of insight, but the court also viewed it as consistent with the offender's severe and unmanaged addiction rather than as purely calculated criminality (at [87]-[93]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth)
- Crimes (Sentencing) Procedure Act 1990
- Criminal Code 1995 ( Cth)
- Criminal Code Regulations 2019 (Cth)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Law Enforcement (Powers & Responsibilities) Act 2002 (NSW)

Cases
- Attorney-General’s Application under s37 of the Crimes (Sentencing) Procedure Act 1990 No 1 of 2002 (2002) 56 NSWLR 146
- Bonwick v R [2010] NSWCCA 177
- Bugmy v The Queen (2013) 249 CLR 571
- Chan, Lo and Nguyen, v R [2010] NSWCCA 153
- Davidson v R [2009] NSWCCA 150
- DPP (Cth) v Maxwell [2013] VSCA 50
- DPP v De La Rosa [2010] NSWCCA 194
- Jones v R (2010) 242 CLR 520
- Leung v The Queen (2001) 207 CLR 584
- Mansour v R [2011] NSWCCA 28
- Markarian v The Queen [2005] HCA 25)
- DPP (Cth) v Maxwell (2011) 31 VR 673
- Muldrock v The Queen (2011) 244 CLR 120
- Perkins v R [2018] NSWCCA 62
- Petkos v R [2020] NSWCCA 55
- R v Janse [2016] WASCR 17
- R v Hill [2011] QCA 306
- R v Laurentiu (1992) 63 A Crim R 402
- R v Millwood [2012] NSWCCA 2
- R v Muanchukingkan (1990) 52 A Crim R 354
- R v Pham (2015) 256 CLR 550
- Wong v R (2001) 207 CLR 584
- Xiao v R [2018] NSWCCA 2
- Zreika v R (2012) 223 A Crim R 460