Citation: R v Hunter [2021] NSWDC 490
Court: District Court of New South Wales
Date: 17 September 2021
Judge: Colefax SC DCJ
Background
The offender was the sole director and shareholder of a landscaping supplies business based in the rural township of Bungendore, NSW. By early 2019, both the business and the offender personally were in serious financial difficulty, including overdue utility bills and an inability to meet basic living expenses.
A person referred to throughout the proceedings as "coffee man" approached the offender and recruited him into a scheme involving the importation of cocaine. The arrangement involved the business transferring approximately $50,000 to a South African corporation, ostensibly for the purchase of a refurbished 20-tonne excavator. The excavator was then shipped to Australia, with cocaine concealed inside it.
The excavator was intercepted by authorities before it reached the offender. He was arrested on 14 July 2019. He pleaded guilty to one count of attempting to import a commercial quantity of a border controlled drug, contrary to ss 11.1(1) and 307.1(1) of the Commonwealth Criminal Code.
Legal Issues
- What was the offender's actual state of mind at the time of the offending: was he reckless, or did he have actual knowledge that the excavator contained a significant quantity of a border controlled drug?
- What discount, if any, should be applied to the sentence in light of the guilty plea and the conduct of the sentence hearing?
- What weight should be given to the offender's expressions of remorse, personal circumstances, and prospects of rehabilitation?
- What is the appropriate head sentence and non-parole period?
Decision
State of mind and knowledge. The agreed Statement of Facts had initially framed the offender's culpability as being "at least reckless" as to the contents of the excavator. However, the offender gave sworn oral evidence at the sentence hearing, and the Crown submitted that his evidence warranted a higher finding. His Honour agreed. The District Court found, beyond reasonable doubt, that at the time the offender made the payments to the South African corporation, he knew that a significant quantity of a border controlled drug was to be imported. The court did not find that he knew the specific drug was cocaine.
Credibility of evidence. Several aspects of the offender's evidence were found to be implausible. His claim that he was not curious about the quantity or type of the concealed substance, and that the risk "didn't cross his mind," was treated as inherently unpersuasive. His explanation for a $30,000 payment made by a co-director (said to be a business buy-in rather than a contribution to the scheme) was also viewed with considerable scepticism. The court drew the inference that the offender trusted the syndicate because he knew more about them than he disclosed.
Remorse and rehabilitation. The offender had expressed remorse both in the witness box and through character references from supporters in his community. The court acknowledged these expressions at face value were powerful, but found their weight substantially reduced by the implausibility of significant portions of his evidence. His Honour was not satisfied on the balance of probabilities that the remorse was genuine, noting the offender appeared sorry for his predicament rather than his conduct. Prospects of rehabilitation were described as guarded.
Plea discount and sentence. A guilty plea was entered at an early stage. Ordinarily, this would have attracted a 25 per cent discount for utilitarian value. However, because the sentence hearing extended to two days due to the contested facts issue (contrary to a three-hour estimate provided by the parties), the discount was reduced to 20 per cent. The court determined that the pre-discount sentence would have been 16 years' imprisonment. After the 20 per cent reduction, a sentence of 12 years and 9 months was imposed, backdated to the date of arrest.
Orders Made
- The offender was convicted of attempting to import a commercial quantity of a border controlled drug.
- A term of imprisonment of 12 years 9 months was imposed, backdated to 14 July 2019.
- Non-parole period: 8 years 3 months, commencing 14 July 2019 and expiring 13 October 2027.
- Balance of term: 4 years 6 months, commencing 14 October 2027 and expiring 13 April 2032.
Key Takeaways
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A defendant's own sworn evidence at a sentence hearing can elevate the factual basis of culpability. Here, the offender's evidence shifted the court's finding from recklessness to actual knowledge of a significant quantity of a border controlled drug, resulting in a higher level of criminal responsibility than the agreed facts had initially supported.
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Expressions of remorse carry reduced weight where significant portions of the offender's evidence are found to be implausible or untruthful. The District Court distinguished between genuine contrition and regret at personal consequences.
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Under the sentencing framework for commercial drug importation offences, general deterrence was identified as the dominant and fundamental consideration, fully engaged on the facts of this case.
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The standard 25 per cent utilitarian plea discount is not automatic. The District Court reduced it to 20 per cent because the parties provided an unreliable time estimate that caused the sentence hearing to run significantly over, and explicitly noted the court's entitlement to reliable estimates from legal practitioners.
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Attempting to import a commercial quantity of a border controlled drug under ss 11.1(1) and 307.1(1) of the Commonwealth Criminal Code carries a maximum penalty of life imprisonment, reflecting the gravity with which these offences are treated.
Legislation and Cases Referenced
Legislation:
- Commonwealth Criminal Code, s 11.1(1) (attempt)
- Commonwealth Criminal Code, s 307.1(1) (importing a commercial quantity of a border controlled drug)
Cases cited: None stated in the judgment.