Citation: R v Robson-Bolan [2021] NSWDC 48
Court: District Court of New South Wales
Date: 5 March 2021
Judge: Abadee DCJ
Background
The offender pleaded guilty in the Burwood Local Court to two principal offences: supplying cocaine (a state offence under the Drugs Misuse and Trafficking Act 1985 (NSW)) and attempting to import a marketable quantity of cocaine via the "dark web" (a federal offence under the Criminal Code 1995 (Cth)). The offending occurred in February 2020 in the Canterbury area of Sydney.
The dark web importation involved a package containing approximately 300 grams of pure cocaine, concealed inside a ruler and mailed from Chile. Australian Border Police intercepted the package on 17 February 2020. Notably, the offender used his own name, address, and phone number when ordering the package, and was arrested as he collected it from a post office on 26 February 2020.
A subsequent search of his unit uncovered further cocaine packaged in resealable bags, $31,900 in cash, scales, and drug paraphernalia. The offender also asked the court to take into account two additional matters on a schedule: dealing with suspected proceeds of crime and possessing cannabis.
Legal Issues
- How to structure and aggregate sentences across concurrent state and federal offences on the same facts
- The appropriate weight to give objective seriousness, given the relative lack of sophistication in the dark web importation
- How to assess the role of general and specific deterrence, rehabilitation, and totality in arriving at the final sentence
- Whether the interception of the drugs before they could be distributed mitigated the harm occasioned by the federal offence
Decision
Abadee DCJ assessed the objective seriousness of both offences as relatively low, noting the absence of features typical of more serious drug importation cases, such as syndicates, intermediaries, couriers, or significant concealment measures. The pure cocaine weight of approximately 300 grams, while well above the marketable quantity threshold, fell far short of the commercial quantity threshold of 2 kilograms. The court also observed that dark web drug offences can be committed by isolated individuals with no prior criminal connections, which affects the weight to be given to specific deterrence compared with organised criminal enterprises.
Motivation was mixed. The Crown accepted that financial gain was only part of the driver, with the offender also citing a desire to help fund his mother's cancer treatment and assist his partner. The court acknowledged these personal circumstances without treating them as decisive mitigating factors, but noted the offender's youth, his status as a first-time offender, and his genuine prospects for rehabilitation.
On sentencing structure, the court applied the principle of totality and imposed notional accumulation, given the offences were separate and distinct. Because the federal sentence included a non-parole period set under s 19AF of the Crimes Act 1914 (Cth), no separate non-parole period was set for the state offence, as permitted under s 45 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The court found that the conditions of custody already endured, described as especially onerous, had substantially achieved specific deterrence, making rehabilitation a more elevated consideration in this particular case.
The court forfeited the $31,900 cash seized from the offender's premises pursuant to the Confiscation of Proceeds of Crime Act 1989 (NSW), following an application by the Commonwealth Director of Public Prosecutions.
Orders Made
- State offence (cocaine supply): 1 year imprisonment, backdated to commence 26 February 2020, expiring 25 February 2021.
- Federal offence (attempted importation of marketable quantity of cocaine): 2 years and 6 months imprisonment, commencing 26 February 2021 and ending 25 August 2023, with release after a minimum term of 1 year and 6 months (25 August 2022) upon giving security of $100, pursuant to s 19AF of the Crimes Act 1914 (Cth).
- Two additional offences (suspected proceeds of crime and cannabis possession) taken into account on the s 16BA schedule.
- Forfeiture of $31,900 to the State pursuant to s 13(2)(a) of the Confiscation of Proceeds of Crime Act 1989 (NSW).
Key Takeaways
- The District Court confirmed that dark web drug importation cases do not constitute a special or more lenient sub-category of drug importation offending, but the isolated, ad hoc nature of the offending is relevant to the weight given to specific deterrence.
- Where state and federal offences arise from the same factual matrix, the sentencing court must address both the mandatory federal sentencing factors under s 16A of the Crimes Act 1914 (Cth) and the state sentencing framework, applying the totality principle to arrive at an aggregate sentence.
- The interception of the drugs before distribution was acknowledged as a forensic benefit to the offender on the federal offence, but the court accepted the Crown's submission that economic harm to the community through law enforcement resources is still relevant.
- Rehabilitation carried elevated weight in this case because the offender was young, had no prior criminal history, and had already served onerous pre-sentence custody, factors the court treated as substantially achieving specific deterrence.
- Under s 45 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the court may decline to set a non-parole period for a state offence where the structure of the overall sentence, incorporating a federal minimum term, makes a separate non-parole period unnecessary.
Legislation and Cases Referenced
Legislation
- Drugs Misuse and Trafficking Act 1985 (NSW), s 25
- Criminal Code 1995 (Cth), ss 11.1, 307.2, 308.1, 400.9
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 16A, 17A, 45
- Crimes Act 1914 (Cth), ss 16A, 19AF
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 13
Cases
- Xiao v R (2018) 329 FLR 1
- R v Pham (2015) 256 CLR 550
- Stemler v R [2017] NSWCCA 320
- R v Faber [2020] SASCFC 49
- DPP v Thomas [2017] VCC 1060
- DPP (Cth) v Frendo [2019] VCC 1548