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District Court 16 September 2022

R v Shah (No 2)

[2022] NSWDC 500

Drugs

Citation: R v Shah (No 2) [2022] NSWDC 500
Court: District Court of New South Wales
Date: 16 September 2022
Judge(s): Sutherland SC DCJ

Background

The offender was convicted after a trial of one count of attempting to possess a marketable quantity of a border controlled drug, cocaine, contrary to the Criminal Code Act 1995 (Cth). The charge arose from two packages posted from South Africa to Australia in April and May 2019, each concealing cocaine within the cardboard walls of the box. The second package, which became the subject of the charge, contained a net weight of 400.3 grams of cocaine at 83% purity, yielding a pure weight of 332.2 grams.

Police intercepted the charged consignment, replaced the cocaine with an inert substance, and conducted a controlled delivery operation. A parcel collection card was placed in the letterbox of the address to which the packages had been sent. The offender, who lived in the same residential complex at an adjacent unit, attended the post office the following morning with the collection card and attempted to collect the package by claiming he now lived at the nominated address.

At trial, the offender denied knowledge of the cocaine, maintaining that the package contained lawfully ordered fabric wraps arranged by a brother-in-law based in Africa. The jury rejected that account and returned a guilty verdict.

  • What was the appropriate head sentence and non-parole period for the offence under the Commonwealth sentencing framework?
  • What weight should be given to the offender's subjective circumstances, including the absence of prior convictions, hardship to family, and disputed remorse?
  • Whether hardship to family must reach the threshold of "exceptional" before it can be taken into account under the Crimes Act 1914 (Cth).
  • Whether a recognizance release order (the Commonwealth equivalent of a suspended sentence) was appropriate in the circumstances.

Decision

Sutherland SC DCJ sentenced the offender to five years and eleven months' imprisonment, with a non-parole period of two years and eleven months. Both terms commenced from the date of sentence. The court noted the offender had served three weeks in custody before being granted bail, and that period was taken into account.

The court found the offending was serious. The cocaine, at over 330 grams pure weight, significantly exceeded the marketable quantity threshold. The nature of the importation, involving disguised packages sent from South Africa with a controlled delivery designed to distance the offender from the consignment, indicated planning and deliberate concealment.

On the question of family hardship, the court applied the NSW Court of Criminal Appeal's guidance in Totaan [2022] NSWCCA 75, which confirmed that family hardship does not need to rise to an "exceptional" level to be taken into account under Commonwealth sentencing law. The court accepted that the offender's immediate family and dependants in Tanzania would suffer as a result of his incarceration, and gave that factor weight accordingly.

The court declined to make a recognizance release order (that is, an order releasing the offender into the community on conditions rather than imposing immediate custody). It found such a disposition would not fall within the sound exercise of judicial discretion given the seriousness of the offence.

Orders Made

  • The offender sentenced to imprisonment for 5 years and 11 months.
  • Non-parole period of 2 years and 11 months, commencing 16 September 2022.
  • No recognizance release order made.

Key Takeaways

  • The District Court confirmed that, under Commonwealth sentencing law as clarified in Totaan [2022] NSWCCA 75, family hardship does not need to be "exceptional" to be a relevant mitigating factor; it is sufficient that hardship will flow from incarceration.
  • A continued not-guilty plea and maintained denial of knowledge of the drugs made a conventional assessment of genuine remorse difficult, though the court acknowledged the offender's distress for the position in which he had placed his family.
  • Sentencing for attempted possession, as distinct from the completed offence, remains relevant to the overall assessment of culpability, but the court here treated the attempt as closely approaching the full offence given the nature of the offender's conduct.
  • Where forensic evidence establishes a direct connection between a defendant and contraband consignments, including consistent handwriting on packaging and a phone number matching the defendant's mobile, circumstantial inference can sustain a serious finding of knowledge.
  • A recognizance release order was refused because the seriousness of planned cocaine importation at the marketable quantity level placed the offence beyond the range where such a disposition could properly be considered.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 307.6(1) and 11.1(1)
- Crimes Act 1914 (Cth)

Cases
- Totaan [2022] NSWCCA 75
- R v Robson-Bolan [2022] NSWCCA 1
- Veale v R [2022] NSWCCA 154
- Omorogbe v R [2013] NSWCCA 201
- Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; (2014) 305 ALR 323
- R v Olbrich [1999] HCA 54; 199 CLR 270
- Eiryo v R [2015] NSWCCA 16
- Lopes Duque v The Queen [2019] VSCA 212
- Ojielumhen v R [2014] ACTCA 28
- R v Freeman [2019] QCA 150
- R v Pham (2010) 205 A Crim R 106
- R v Chew [2022] NSWDC 325
- R v Lau [2020] NSWDC 843
- R v Legros [2020] NSWDC 733
- R v Nguyen [2019] NSWDC 174
- R v Pink [2021] NSWDC 47
- R v Villalobos [2018] VCC 1334
- Laurentiu & Becheru (1992) 63 A Crim R 40
- Le Cerf (1978) 13 SASR 237
- R v Muanchukingkan (1990) 52 A Crim R 354