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District Court 21 October 2021

R v Mousa

[2021] NSWDC 799

Drugs
CRIME COMMONWEALTH SENTENCE CONTROLLED DRUG STRONG SUBJECTIVE CASE

Citation: R v Mousa [2021] NSWDC 799
Court: District Court of New South Wales
Date: 21 October 2021
Judge: Sutherland SC DCJ

Background

The offender was charged under the Criminal Code (Cth) with attempting to possess a commercial quantity of a border-controlled drug reasonably suspected of having been unlawfully imported. The drug in question was methamphetamine (ice), with a pure weight calculated at between approximately 859 grams and 1.329 kilograms. A second charge of aiding and abetting possession of a commercial quantity of the same drug was placed on a schedule to be taken into account at sentencing.

The offending arose from a controlled delivery operation in November 2019. A consignment of 18 motorcycle exhaust pipes, packed with approximately 14.7 kilograms of methamphetamine, was delivered from Bangkok to a Sydney address. An unsuspecting young woman had agreed to receive the parcel at the request of a friend. The primary co-offender, Jonathan To, collected the consignment and took it to premises at Mt Pritchard, where he was recorded struggling to open the exhaust pipes.

To telephoned the offender and asked him to assist. The offender arrived approximately 15 minutes later and spent less than 30 minutes at the premises. During that time he helped To work out how to remove pop rivets securing the exhausts, and made comments that were consistent with recklessness as to the contents. The offender and To then left together to visit a hardware store, but nothing at the hardware store further increased the offender's culpability.

  • What was the appropriate objective seriousness of the offending, given the offender's peripheral and brief involvement compared with the co-offender?
  • What weight should be given to the offender's strong subjective case, including youth, absence of prior criminal history, family circumstances, and prospects of rehabilitation?
  • What utilitarian discount applied to a guilty plea entered late, close to trial rather than at the earliest opportunity?
  • Whether the sentence should be served by full-time custody or by way of an Intensive Corrections Order (ICO).
  • The use of unsworn statements in sentence proceedings.

Decision

Sutherland SC DCJ found that the offender's role was limited and peripheral. He was at the premises for less than half an hour, arrived only after being called by To, and there was no evidence he was involved in organising or planning the importation. The court accepted that the offender was not aware of the precise contents of the exhaust pipes, though the recorded conversations were consistent with at least recklessness as to the likelihood that a commercial quantity of drugs was involved.

The court assessed the offender's subjective case as strong. The offender was relatively young, had no prior criminal record, had strong family ties, demonstrated genuine remorse, and showed good prospects for rehabilitation. These factors weighed significantly in mitigation, though they could not displace entirely the gravity of the objective offending, which involved a drug carrying a maximum penalty of life imprisonment.

On the question of the guilty plea, the court noted the plea was not entered at the earliest opportunity, having been entered when the matter was near trial. A utilitarian discount of approximately 15 percent was applied, which the court considered slightly more generous than the discount applied in analogous circumstances in R v Wilkinson (No 4), but appropriate given all the circumstances. Time already served in custody of almost five months was also taken into account.

Taking all factors together, the court concluded that a total sentence of two years was appropriate. Crucially, the court determined that the particular circumstances of this offender and his level of involvement justified the sentence being served by way of an Intensive Corrections Order rather than full-time imprisonment.

Orders Made

  • The offender was convicted of the substantive offence.
  • The schedule charge was taken into account pursuant to s 16BA of the Criminal Code (Cth).
  • Sentenced to a term of imprisonment of two years, to be served by way of an Intensive Corrections Order (ICO) pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), commencing 21 October 2021.
  • The offender was directed to report to Community Corrections at Liverpool within seven days.
  • Standard conditions of the ICO applied, including no further offences and submission to supervision by a Community Corrections officer.
  • Additional condition: 200 hours of community service work.

Key Takeaways

  • A peripheral, brief, and reactive role in an attempt to possess a commercial quantity of drugs can, in combination with a strong subjective case, support a sentence served in the community rather than by full-time custody, even where the maximum penalty is life imprisonment.
  • Where a guilty plea is entered close to trial rather than at the earliest opportunity, a utilitarian discount of approximately 15 percent may still be available, reflecting practical utility to the justice system even absent an early plea.
  • Recklessness as to the nature of contraband contents, established through recorded conversations, was treated as consistent with a plea of guilty to an attempt offence involving a commercial quantity of drugs.
  • The District Court applied the principle that time already served in pre-sentence custody is a factor to be weighed in arriving at the total sentence, alongside the applicable plea discount.
  • Unsworn statements in sentence proceedings were referenced as a relevant procedural matter, reflecting the continuation of that practice in Commonwealth sentencing proceedings in New South Wales.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), ss 11.11, 11.21, 307.81
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 7(1)

Cases
- Lai v R [2021] NSWCCA 217
- Leroy v R (1984) 2 NSWLR 441
- R v Elfar [2003] NSWCCA 358
- R v Imbornone [2017] NSWCCA 144
- R v Olbrich [1999] HCA 54
- R v Qutami [2001] NSWCCA 353
- R v Sultana (1994) 74 A Crim R 27
- R v Wilkinson (No 4) [2009] NSWSC 323