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District Court 19 March 2021

R v Pink

[2021] NSWDC 47

Drugs
SUPPLY PROHIBITED DRUG

Citation: R v Pink [2021] NSWDC 47
Court: District Court of New South Wales
Date: 19 March 2021
Judge(s): Mahony SC DCJ

Background

A British national, who had been living and working in Sydney on a working visa, was arrested on 13 November 2019 as part of a police operation targeting an attempted importation of ketamine from the United Kingdom. He had incurred a drug debt of approximately $6,000 and agreed to assist his dealer by facilitating the importation in order to have that debt cleared.

The offender's role included persuading a work colleague to use her Bellevue Hill home address as the delivery point for three consignments of ketamine disguised as shoes. He was also involved in drafting a false authority letter used to collect the consignments from the local post office. Australian Border Force officers had already detected the drugs, substituted an inert substance, and set up a controlled delivery. A co-offender collected the consignments from the post office and was arrested; the offender was simultaneously arrested in a nearby vehicle.

A subsequent search of the offender's residence uncovered a bag bearing his fingerprints and containing ketamine, MDMA, and cocaine. He was charged with one State offence of supplying ketamine and one Commonwealth offence of attempting to possess a marketable quantity of unlawfully imported border controlled drugs (ketamine). Two further drug supply matters were placed on a Form 1 for the court to take into account on sentencing.

Legal Issues

  • What role did the offender play in the attempted importation, and how should that role be characterised for sentencing purposes?
  • How objectively serious was the State supply offence and the Commonwealth attempted possession offence?
  • What weight should be given to the offender's medical condition, personal circumstances, and early guilty plea as mitigating factors?
  • Whether special circumstances existed justifying a variation of the statutory ratio between head sentence and non-parole period.
  • What sentences were appropriate across the two counts, having regard to the principles of totality and proportionality?

Decision

Issue 1: The offender's role in the attempted importation (Count 8)

The court rejected the defence submission that the offender was merely a "collector" of the drugs. The court found he played an active role as a facilitator, having recruited his co-worker to provide her address, participated in communications tracking the consignments during transit, and prepared the false authority letter used to collect the packages (at [92]). The court accepted that the operation was relatively unsophisticated compared with other importation methods, but found the offender was a trusted intermediary whose involvement was significant (at [92]-[95]). The offending was found to be objectively serious, with the pure weight of 854.4 grams being almost double the marketable quantity threshold of 500 grams and the total seizure carrying a value of between $194,000 and $350,000 (at [95]).

Issue 2: Objective seriousness of the State supply offence (Count 6)

The 34.97 grams of ketamine the subject of Count 6 fell well below the commercial quantity of 1.25 kilograms. The court found no indicia of active drug supply, such as scales or small bags, and accepted the Crown's concession on that point. The objective seriousness of the Count 6 offending was assessed as falling in the low range, and below the middle of that low range, for a supply offence under s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (at [86]). Financial gain was accepted as a clear motive and an aggravating factor (at [86]). The two Form 1 matters were similarly assessed at below the middle of the low range (at [87]).

Issue 3: Mitigating factors, including medical condition and guilty plea

The court accepted that the offender suffers from a serious medical condition, the precise diagnosis of which remains provisional, requiring him to be housed at Long Bay Prison Hospital. The uncertainty surrounding his diagnosis, the delays in obtaining further testing, his separation from his family in England, and his immigration status collectively rendered his time in custody more onerous than that of the general prison population, and the court treated this as a mitigating factor (at [103]). The offender was allowed a 25 percent utilitarian discount for his early guilty plea and the court accepted his remorse as genuine (at [90]-[97]). His breach of a prior good behaviour bond for a drug supply offence partway through its term was treated as an aggravating factor and as evidence that specific deterrence carried weight (at [89]).

Issue 4: Special circumstances and the statutory ratio

The court was satisfied that special circumstances existed within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999, having regard to the offender's health issues, separation from family, and the fact that this was his first time in custody (at [106]). The statutory ratio between the head sentence and non-parole period was accordingly varied to allow a longer parole period to support the offender's rehabilitation following release.

Issue 5: Totality and the sentences imposed

Applying the principles of totality and proportionality, and with some accumulation between the two counts, the court sentenced the offender to 2 years and 6 months imprisonment with a non-parole period of 12 months for Count 6, commencing 13 November 2019, and to 4 years and 6 months imprisonment with a non-parole period of 2 years for Count 8, commencing 13 November 2020 (at [108]). The effective total sentence was 5 years and 6 months imprisonment with an effective non-parole period of 3 years (at [108]).

Orders Made

  • Convicted of Count 6 (supply of prohibited drug, ketamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW)): sentenced to 2 years and 6 months imprisonment with a non-parole period of 12 months, commencing 13 November 2019.
  • Convicted of Count 8 (attempt to possess a marketable quantity of unlawfully imported border controlled drug, ketamine, contrary to ss 307.2(1) and 311.1 with s 11.1 of the Criminal Code Act 1995 (Cth)): sentenced to 4 years and 6 months imprisonment with a non-parole period of 2 years, commencing 13 November 2020.
  • The two Form 1 matters (Sequences 5 and 7) were taken into account on sentence for Count 6.
  • No further action taken in relation to the breaches recorded in Sequences 1 and 2.
  • The offender was advised that release to parole is not automatic and that he will almost certainly be deported upon release.

Key Takeaways

  • A sentencing court will look beyond a defendant's formal title or description of their role and assess the full scope of conduct actually engaged in. Here, the District Court rejected the "mere collector" characterisation and found the offender was an active facilitator whose involvement extended to recruiting a co-worker, drafting a fraudulent authority letter, and maintaining communications throughout the attempted importation (at [92]-[95]).

  • Under s 307.6 of the Criminal Code, it is not necessary to prove that an offender knew the precise identity of the border controlled drug. It is sufficient that the offender was reckless as to the consignment being any border controlled drug, of which the drug in question was one (at [95]).

  • A serious medical condition requiring long-term hospitalisation within the prison system, combined with diagnostic uncertainty and delayed access to specialist testing, can constitute a mitigating factor in sentencing where the court is satisfied those circumstances make custody more onerous than it would be for the general prison population (at [103]).

  • Breaching a prior good behaviour bond for a drug supply offence, and then committing further supply offences during a subsequent bond period, constitutes an aggravating factor under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 and strengthens the weight given to specific deterrence (at [89]).

  • Where an offender is a foreign national facing deportation, has significant health concerns, and is serving their first custodial sentence, those factors can collectively constitute special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, justifying a variation of the standard ratio between the head sentence and the non-parole period (at [106]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth)
- Crimes (Sentencing Procedure) Act 1999
- Criminal Code Act 1995 (Cth)
- Drug Misuse & Trafficking Act (NSW) 1985

Cases
- Adams v The Queen (2008) 234 CLR 143; [2008] HCA 15
- Aryal v R [2021] NSWCCA 2
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1;
- R v Achurch (2011) 216 A Crim R 152; [2011] NSWCCA 186
- R v Badanjak [2004] NSWCCA 395
- R v Booth [2009] NSWCCA 89
- R v Cicekdag (2004) 150 A Crim R 299; [2004] NSWCCA 357
- R v Danhach (Court of Criminal Appeal, 12 August 1977, unreported)
- R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238
- R v Vachalec (1981) 1 NSWLR 351
- Zahab v R [2021] NSWCCA 7