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District Court 17 March 2021

R (Cth) v Bui

[2021] NSWDC 806

Drugs
CRIME SENTENCE IMPORTATION OFFENCE POSSESSION OF PROHIBITED SUBSTANCE CONTRITION AND REMORSE OFFENDER SUFFICIENTLY REMORSEFUL.

Citation: R (Cth) v Bui [2021] NSWDC 806
Court: District Court of New South Wales
Date: 17 March 2021
Judge: Neilson DCJ

Background

The offender, a Melbourne man, pleaded guilty to attempting to possess a border-controlled drug, namely methylamphetamine, that had been unlawfully imported into Australia. The offence occurred on 21 October 2019 in Sydney and attracted a maximum penalty of life imprisonment under the Criminal Code Act 1995 (Cth).

The facts arose from an Australian Border Force interception of a consignment of 768 bottles of Sriracha chilli sauce at Botany, which tested positive for methylamphetamine with a purity of 41.5%. The total weight of the substance was approximately 610 kilograms, representing a pure methamphetamine weight of around 253 kilograms. That figure was more than 337 times the commercial quantity threshold of 750 grams.

The offender had been recruited by a man known as "Kevin," and later communicated with a person identified as "King" by text message. He flew from Melbourne to Sydney, hired a vehicle, attended a storage facility where the (by then substituted) consignment had been stored, and began transporting the boxes to his hotel room before police arrested him. He was promised $10,000 for his role and had borrowed money to fund the operation.

  • What was the appropriate head sentence for an attempt to possess a commercial quantity of unlawfully imported methamphetamine?
  • What discount should apply for an early guilty plea?
  • What was the appropriate non-parole period, having regard to the offender's personal circumstances, remorse, and prospects of rehabilitation?
  • Was the offender's role that of a courier or someone with greater culpability in the criminal enterprise?

Decision

Neilson DCJ characterised the offending as serious, noting the very large quantity of methamphetamine involved. The offender was found to have played a courier role, recruited by others and operating under instruction, but the scale of the consignment remained a significant aggravating factor.

The court accepted that the offender demonstrated genuine contrition and remorse, and found that his prospects of rehabilitation were good, with a low likelihood of reoffending. He had no prior criminal history and was described as a person of good character. The court acknowledged that his time in custody had been more onerous than usual because, as a Melbourne resident held at Long Bay Gaol, he had been unable to maintain contact with his family.

A head sentence of 10 years was adopted as the starting point. A 25 percent discount was then applied for the utilitarian value of the early guilty plea, reducing the head sentence to 7 years and 6 months. The court fixed a non-parole period of 4 years and 6 months, taking into account the time already served in custody since arrest on 21 October 2019.

On the submission that imprisonment during the COVID-19 pandemic had been particularly onerous, the court rejected the proposition that conditions in a New South Wales gaol during that period were meaningfully worse than conditions in the general community, though it acknowledged the isolation from family as a genuine hardship.

Orders Made

  • The offender was convicted of the charge of attempting to possess a border-controlled drug (methylamphetamine) in a commercial quantity, unlawfully imported, contrary to s 307.5(1) of the Criminal Code Act 1995 (Cth).
  • Sentenced to imprisonment for 7 years and 6 months, expiring 20 April 2027.
  • Non-parole period fixed at 4 years and 6 months, expiring 20 April 2024.

Key Takeaways

  • A courier role in a large-scale drug importation does not, of itself, reduce the seriousness of the offending where the quantity is of exceptional magnitude, more than 337 times the commercial quantity threshold.
  • Early guilty pleas in Commonwealth drug importation matters attracted a 25 percent discount on the head sentence in this case, consistent with the utilitarian value recognised under the Crimes Act 1914 (Cth).
  • Genuine contrition and remorse, combined with prior good character and low recidivism risk, were accepted as mitigating factors relevant to the structure of the sentence, even where the underlying offence was very serious.
  • Separation from family due to interstate incarceration was acknowledged as an additional hardship in fixing the non-parole period, though the court did not treat COVID-19 prison conditions in New South Wales as inherently more burdensome than life in the broader community during that period.
  • Under s 307.5(1) of the Criminal Code Act 1995 (Cth), attempting to possess a substance that has been unlawfully imported, where that substance is a border-controlled drug in a commercial quantity, carries a maximum penalty of life imprisonment.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 307.5(1)
- Crimes Act 1914 (Cth)

Cases:
- Ruben Botero (unreported, Court of Criminal Appeal, 24 June 1998)