AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 1 December 2021

R v Hae

[2021] NSWDC 801

Drugs
CRIME COMMONWEALTH SENTENCE AID AND ABET ATTEMPT TO POSSESS BORDER CONTROLLED DRUG JURY TRIAL DRUG PACKAGED AS COFFEE BEANS

Citation: R v Hae [2021] NSWDC 801
Court: District Court of New South Wales
Date: 1 December 2021
Judge: Sutherland SC DCJ

Background

Following a jury trial at Parramatta District Court in June 2021, the offender was found guilty of aiding and abetting an attempt to possess a substantial quantity of methamphetamine at Wetherill Park on 30 July 2019. The offence was charged under the Criminal Code (Cth) and carries a maximum penalty of life imprisonment.

The methamphetamine, weighing approximately 9.964 kilograms gross (7.79 kilograms pure), had been imported from Laos and concealed within 20 bags labelled as "Dao Coffee." The pure quantity was approximately ten times the commercial threshold for a border-controlled drug. Australian Border Force intercepted the package on 21 July 2019, replaced the drug with an inert substance, and worked with the AFP and NSW Police to identify and arrest those involved in collecting it.

The offender was implicated through mobile phone activity. Calls to Australia Post tracking the parcel were linked to two mobile numbers, one of which was eventually connected to the offender. Surveillance on 30 July 2019 observed the offender arrange transport, travel to Wetherill Park Post Office, and accompany a co-offender who collected the substituted package. All parties were arrested shortly after.

  • Whether the offender had possession of, and had used, the relevant mobile phones to make enquiries about the parcel prior to his arrest.
  • Whether the evidence supported a finding, beyond reasonable doubt, that the offender aided and abetted an attempt to possess a border-controlled drug in a commercial quantity.
  • The appropriate sentence, including the non-parole period, for a Commonwealth offence carrying a maximum of life imprisonment, with particular attention to the absence of a statutory non-parole ratio and the need for individualised assessment.

Decision

The District Court was satisfied beyond reasonable doubt, consistent with the jury's verdict, that the offender had possession of both mobile phones at the relevant times and that his was the voice heard in the recorded calls to Australia Post. Those calls revealed knowledge of the tracking number, the purported contents, and the details of the consignee and consignor, demonstrating awareness of and involvement in the importation scheme.

On sentence, His Honour assessed the objective seriousness of the offence as high, given the quantity of methamphetamine involved (approximately ten times the commercial quantity), its high purity (averaging 78.2%), and the sophisticated nature of the operation. The offender's role, while not that of the organiser, involved active steps to facilitate delivery and collection of the package.

In mitigation, the court took into account the period of approximately one year, eight months, and 26 days spent in pre-sentence custody, as well as a subsequent period of approximately six months subject to stringent bail conditions (including daily reporting, a curfew, and restrictions on social media) that effectively amounted to house arrest. The court allowed approximately 50% of that bail period as a mitigating factor, treating it analogously to time spent in residential rehabilitation.

No statutory non-parole ratio applies to Commonwealth offences, so the court was required to assess the minimum period necessary to meet the purposes of sentencing. His Honour imposed a total sentence of 11 years' imprisonment, with a non-parole period of five years and six months, backdated to commence on 1 December 2019.

Orders Made

  • The offender was sentenced to 11 years' full-time imprisonment.
  • A non-parole period of five years and six months was set.
  • Both the head sentence and the non-parole period commenced on 1 December 2019.
  • The non-parole period expires on 31 May 2025; the head sentence expires on 30 November 2030.

Key Takeaways

  • The District Court confirmed that, for Commonwealth offences, there is no statutory non-parole ratio, requiring the sentencing court to undertake an individualised assessment of the minimum period necessary to meet sentencing objectives.
  • A finding that an offender possessed and used mobile phones to track an imported drug package can be made beyond reasonable doubt through circumstantial evidence, including call data, voice comparisons, and cell tower location analysis.
  • Stringent bail conditions that effectively constitute house arrest (including curfews, daily reporting, and social media restrictions) may be treated analogously to time in residential rehabilitation, with a proportionate discount applied at sentence.
  • Where a defendant is convicted of aiding and abetting an attempt to possess a border-controlled drug at approximately ten times the commercial quantity, the objective seriousness of the offence will be assessed as high, even absent a finding that the defendant was the principal organiser.
  • Sufficient evidence of an offender's knowledge of a drug importation scheme can be established through demonstrated familiarity with tracking details, consignee and consignor information, and the purported contents of an intercepted package.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), ss 11.1(1), 11.2(1), 307.5(1)
- Crimes Act 1914 (Cth)

Cases:
- Chen v R [2018] NSWCCA 157
- R v Green (2011) 244 CLR 462
- R v Markarian (2005) 228 CLR 357
- R v Nguyen and Pham (2010) 205 A Crim R 106
- R v Olbrich (1999) 199 CLR 270
- Wong v R [2001] HCA 64; (2001) 207 CLR 584