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District Court 26 August 2022

R v Lock

[2022] NSWDC 380

Drugs
OBJECTIVE SERIOUSNESS DETERRENCE NO RECORD OF PREVIOUS CONVICTIONS GOOD PROSPECTS OF REHABILITATION REMORSE PLEA OF GUI LTY

Citation: R v Lock [2022] NSWDC 380
Court: District Court of New South Wales
Date: 26 August 2022
Judge: Scotting DCJ

Background

The offender, a 42-year-old Malaysian national living in Australia, was recruited via WeChat by a contact known as "Jin Mao" to collect a parcel from a post office in Hornsby using a false identity document. He was told the parcel contained tobacco and that he would be paid $2,000 to $5,000. He had become unemployed during the COVID-19 lockdowns and, as a non-citizen, was ineligible for government support.

The parcel had already been intercepted by Australian Border Force. It contained 4.394 kg of ketamine (purity 87.5%, equating to approximately 3.85 kg pure), concealed inside the lining of a tool kit case shipped from Belgium. The parcel was reconstructed and delivered under controlled conditions. The offender collected it, used a driver's licence in a false name, and was arrested in a nearby car park after attempting to flee.

The offender pleaded guilty in the Local Court to attempting to possess a commercial quantity of an unlawfully imported border controlled drug (ketamine), contrary to the Criminal Code (Cth). He also asked the court to take into account a related identity information offence on a schedule under s 16BA of the Crimes Act 1914 (Cth). The maximum penalty for the principal offence is life imprisonment.

  • What was the appropriate sentence for the principal Commonwealth drug offence, having regard to the objective seriousness of the conduct and the offender's role within the importation network?
  • What weight should be given to the offender's guilty plea, cooperation with authorities, remorse, rehabilitation prospects, and lack of prior convictions?
  • What discount applied for the guilty plea, and did the plea indicate a genuine willingness to facilitate the course of justice?
  • What were the appropriate head sentence and non-parole period under the federal sentencing framework in Part IB of the Crimes Act 1914 (Cth)?

Decision

Scotting DCJ sentenced the offender under the federal framework in Part IB of the Crimes Act 1914 (Cth), which requires a sentence of severity appropriate to all the circumstances. His Honour applied the principles relevant to serious federal drug offenders set out in R v Nguyen (2010) and R v Nassir [2020] NSWCCA 88, and assessed objective and subjective factors in turn.

On objective seriousness, the offender played the role of a courier, the lowest rung of the importation network. He was recruited under false pretences, told the parcel contained tobacco, and had not performed this task before. Nonetheless, the quantity of ketamine involved was substantial, well exceeding a commercial quantity, and the offence carried significant criminal consequences regardless of the offender's limited awareness of its true nature.

On subjective matters, the court gave weight to several mitigating factors: the offender had no prior convictions, expressed genuine remorse, showed insight into the harm caused to his family and the community, and demonstrated good behaviour in custody. He had experienced financial hardship following COVID-19 lockdowns, suffered social isolation and racism in custody, and received treatment for an adjustment disorder. His elderly uncle depended on him financially. He was assessed as a medium-low risk of reoffending and suitable for community-based programs.

The court applied a 25% discount for the guilty plea. The Crown case was strong, and the plea was treated as reflecting a genuine willingness to facilitate the course of justice and an acceptance of responsibility. The offender's cooperation with police, including full and frank admissions in a recorded interview, was also taken into account. Imprisonment was the only appropriate sentence, and the court fixed a head sentence of 3 years and 3 months with a non-parole period of 20 months.

Orders Made

  • The offender was convicted of the principal offence.
  • Sentenced to imprisonment for 3 years and 3 months, commencing 30 April 2021 and expiring 29 July 2024.
  • Non-parole period of 20 months fixed, expiring 29 December 2022.
  • The identity information offence was taken into account on a s 16BA schedule.

Key Takeaways

  • Under the federal sentencing framework in Part IB of the Crimes Act 1914 (Cth), courts must impose a sentence of severity appropriate to all circumstances, having regard to the matters in s 16A(2), and the non-parole period represents the minimum period justice requires the offender to serve.
  • A 25% guilty plea discount was applied where the Crown case was strong, the plea was entered in the Local Court, and the court was satisfied the plea reflected genuine willingness to facilitate justice and acceptance of responsibility, consistent with Cameron v The Queen (2002) and Xiao v R (2018).
  • The offender's role as a courier at the bottom of an importation hierarchy was relevant to the assessment of objective seriousness, but did not diminish the gravity of the offence given the commercial quantity of ketamine involved.
  • Difficult conditions of custody, including COVID-19-related social isolation, language barriers, and racist treatment, were taken into account in fixing the non-parole period.
  • Cooperation with police through full and frank admissions, combined with absence of prior convictions and genuine rehabilitation prospects, contributed to the sentencing outcome alongside the guilty plea discount.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), including ss 16A, 16BA, 17A
- Criminal Code (Cth), ss 11.1(1), 307.5(1), 372.1(1)

Cases
- Cameron v The Queen (2002) 209 CLR 339
- Danial v R [2008] NSWCCA 15
- Johnson v The Queen (2004) 78 ALJR 616
- R v El Karhani (1990) 21 NSWLR 370
- R v Nassir [2020] NSWCCA 88
- R v Nguyen (2010) 205 A Crim R 106
- R v Olbrich (1999) 199 CLR 270
- Xiao v R (2018) 96 NSWLR 1