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District Court 23 May 2022

R v Kedwell

[2022] NSWDC 368

Drugs
CRIME SENTENCE COMMONWEALTH OFFENCES

Citation: R v Kedwell [2022] NSWDC 368
Court: District Court of New South Wales
Date: 23 May 2022
Judge: Bourke SC DCJ

Background

The offender was sentenced on two counts of attempting to possess a marketable quantity of a border controlled drug, specifically MDMA. In September 2020, two packages were mailed from Paris, France, to an address in East Maitland, New South Wales, addressed to a person who had not lived there for eight years and had no involvement in the scheme. Each package was concealed inside branded Paris Saint-Germain football merchandise.

Australian Border Force and Australia Post detected anomalies in both parcels. The combined contents amounted to approximately 490 grams of MDMA, with a total pure weight of 376.64 grams. In one parcel, police replaced the MDMA with an inert substance and conducted a controlled delivery. The offender accepted the reconstructed parcel, examined it, and was recorded on a doorbell camera discussing whether it had been opened, before being arrested shortly afterwards.

Between 10 and 30 September 2020, the offender had made over 160 online tracking inquiries about both parcels, sometimes using Virtual Private Networks, from accounts held in the names of his mother and de facto partner. He pleaded guilty to both offences at the earliest opportunity.

  • What was the appropriate assessment of objective seriousness for the two attempted possession offences, having regard to the offender's role, the quantity and purity of the drug, and related circumstances?
  • What discount was warranted for early guilty pleas in circumstances where the Crown's case was very strong?
  • What aggregate sentence and non-parole period were appropriate, taking into account all objective and subjective factors?

Decision

His Honour assessed the objective seriousness of the offences by reference to several factors, including the quantity and purity of the drugs, the offender's role, and his knowledge of the nature of what he was receiving. The pure weight of each parcel exceeded 370 times the marketable quantity of 0.5 grams. While quantity was relevant, His Honour emphasised that it was not the sole or principal determinant of seriousness; the offender's role and level of knowledge were also material.

His Honour acknowledged the indicative starting sentence before discount for each offence was five years and two months' imprisonment. A 25 per cent discount was applied for the early guilty pleas, reducing the indicative sentence for each offence to three years and ten months. Although the Crown's case was described as very strong, the pleas still carried utilitarian value.

An aggregate sentence was imposed rather than cumulative or concurrent terms for each individual offence. His Honour referred to a range of comparable cases from New South Wales and Victoria, noting that each involved different facts and subjective circumstances and could not be strictly aligned with the present matter. The decision in Allami v Commonwealth DPP was noted as having some comparative value, subject to the distinction that Allami involved an importation offence rather than attempted possession.

Orders Made

  • Aggregate head sentence of four years' imprisonment, commencing 21 May 2022 and expiring 20 May 2026.
  • Non-parole period of two years, expiring 20 May 2024.
  • Indicative sentence for each of the sequence 5 and sequence 6 offences: three years and ten months' imprisonment (after 25 per cent discount).

Key Takeaways

  • Drug quantity alone does not determine objective seriousness in possession or attempted possession offences; a sentencing court must also consider the offender's role, level of knowledge, and the circumstances of the specific offence.
  • A 25 per cent discount for an early guilty plea remained available even where the Crown's case was very strong, on the basis that the plea still carried utilitarian value.
  • Where an aggregate sentence is imposed under Commonwealth sentencing provisions, there is no requirement to find special circumstances to adjust the non-parole period, though indicative individual sentences must still be nominated.
  • Comparative cases from other jurisdictions and different drug offence categories (such as importation versus attempted possession) can carry some value in sentencing but must be applied cautiously, given differences in facts, roles, and the precise offence charged.
  • The District Court treated the use of a false consignee name, dark web purchasing, repeated parcel tracking using VPNs, and conduct at the time of delivery as relevant to the offender's knowledge and role in the enterprise.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth)

Cases
- Allami v Commonwealth DPP (2021) VSCA 42
- Balloey v R (2014) NSWCCA 165
- BP v R (2010) NSWCCA 159
- Cappis v R (2015) NSWCCA 138
- Musa v R (2018) NSWCCA 192
- Nipoe and Teah v R (2020) VSCA 137
- Omorogbe v R (2013) NSWCCA 201
- Onourah v R (2009) 234 FLR 377
- R v Ajelara (2015) QCA 56
- R v Laurentiu and Becheru (1992) 63 A Crim R 402
- R v Nguyen; R v Pham (2010) 205 A Crim R 106
- Totaan v R (2022) NSWCCA 75