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District Court 1 April 2022

R v Arta Zahedi

[2022] NSWDC 207

Drugs
CRIMINAL LAW SENTENCING DRUG OFFENCES

Citation: R v Arta Zahedi [2022] NSWDC 207
Court: District Court of NSW
Date: 1 April 2022
Judge: Coleman SC DCJ

Background

The offender was found guilty by jury of one count of attempting to possess a commercial quantity of a border-controlled drug, specifically 4,001 grams of pure methamphetamine, contrary to ss 11.1 and 307.5(1) of the Criminal Code Act 1995 (Cth). The maximum penalty for the offence is life imprisonment and/or 7,500 penalty units. There is no standard non-parole period applicable.

The offending arose from a controlled delivery operation. In September 2019, Australian Border Force intercepted an international air consignment from Azerbaijan containing five curtains impregnated with methamphetamine. Police substituted the drugs with an inert substance and arranged an undercover delivery. The offender collected the substituted package on 25 September 2019 and was arrested immediately after.

Evidence at trial included the offender's phone records showing repeated contact with the UPS delivery service, searches for the delivery address, a notebook in his vehicle recording the consignee's name and address, and a secondary mobile phone registered to another person which had been used to coordinate the collection. The offender denied knowledge of the phone's contents and use.

  • What sentence was appropriate for an offender convicted of attempted possession of a commercial quantity of methamphetamine, where he acted as an intermediary collector?
  • How should the court treat an offender's recklessness as to the contents of a parcel, as distinct from actual knowledge?
  • What weight should be given to the offender's role in the broader criminal enterprise, given the absence of evidence of involvement in importation or downstream distribution?
  • How should general deterrence, objective seriousness, and the offender's subjective circumstances (including mental health and prior history) be balanced?

Decision

The court found the offending to be serious, involving a very large quantity of methamphetamine (4.001 kg pure) well in excess of the commercial quantity threshold. Coleman SC DCJ was not sentencing the offender for the importation itself, nor for any intended sale or distribution. Rather, the sentence addressed the offender's role as an intermediary collector, described as a necessary part of the criminal enterprise. The court noted that the offender's involvement placed him at the lower end of the range of culpability for this type of offence.

The court accepted that the offender was reckless, rather than having actual knowledge, as to the precise contents of the package. However, the court was clear that recklessness does not entitle an offender to significant leniency in these circumstances. The conduct, had the interception not occurred, would have resulted in a substantial quantity of drugs reaching those for whom the offender was collecting.

General deterrence was identified as a particularly important sentencing consideration for offences of this kind. The court also took into account the offender's subjective circumstances, including mental health conditions supported by a psychologist's report. Imprisonment was found to be the only appropriate sentencing disposition.

The court set a total sentence of 3 years and 2 months, with a non-parole period of 23 months. Time already spent in custody (163 days) was taken into account in fixing the commencement date of the sentence as 20 October 2021.

Orders Made

  • The offender was sentenced to a term of imprisonment of 3 years and 2 months.
  • A non-parole period of 23 months was set.
  • The sentence was backdated to commence on 20 October 2021, expiring on 19 December 2024.
  • The first date of parole eligibility was set at 19 September 2023.
  • The court recommended that the psychologist's report be provided to Corrective Services, and that the offender have access to appropriate treatment for his mental health conditions and drug use.

Key Takeaways

  • Recklessness as to the contents of a package does not, of itself, entitle an offender convicted of attempted possession of a commercial quantity of drugs to significant leniency, particularly where the quantity involved is substantial.
  • An offender's role as a lower-level intermediary collector remains a necessary part of the relevant criminal enterprise, and this characterisation informs the assessment of culpability even where there is no evidence of involvement in importation or distribution.
  • Under the sentencing framework for Commonwealth drug offences, a court may have regard to the entire transaction (including context about likely downstream distribution) when assessing culpability, even though the sentence must remain confined to the actual offence charged.
  • General deterrence carries particular weight in sentencing for drug importation-related offences, reflecting the principle that others must be discouraged from performing similar roles in criminal supply chains.
  • Where a psychologist's report identifies mental health conditions relevant to the offender, the District Court may recommend to Corrective Services that appropriate treatment be made available, without this displacing the primacy of deterrence and punishment in the sentencing exercise.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 11.1, 307.5
- Crimes Act 1914 (Cth), Pt 1B, ss 16A(1), 16A(2), 16E, 17A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 47(3)

Cases:
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- El Jamal v R [2021] NSWCCA 105
- Hili v R; Jones v R [2010] HCA 45; 242 CLR 520
- Lau v R [2021] VSCA 162
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Okafor v R [2007] NSWCCA 147
- Onuorah v R [2009] NSWCCA 238; 76 NSWLR 1
- Pang v R [1999] NSWCCA 4; 105 A Crim R 474
- Power v R [1974] HCA 26; 131 CLR 623
- R v Barrientos [1999] NSWCCA 1
- R v Chen & Others [2002] NSWCCA 174; 130 A Crim R 300
- R v Cheung (2001) 209 CLR 1
- R v Douglas [2014] QCA 104; 240 A Crim R 554
- R v Hai Van Nguyen; R v Phuong Thu Thi Pham [2010] NSWCCA 238; 205 A Crim R 106
- R v Kaldor [2004] NSWCCA 425; 150 A Crim R 271
- R v Lee [2007] NSWCCA 234
- R v Nguyen; R v Pham [2005] NSWCCA 362; 157 A Crim R 80
- R v Olbrich [1999] HCA 54; 199 CLR 270
- R v Paliwala [2005] NSWCCA 221; 153 A Crim R 451