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District Court 13 December 2022

DPP (Cth) v Kane William COURT

[2022] NSWDC 626

Drugs

Citation: DPP (Cth) v Kane William Court [2022] NSWDC 626
Court: District Court of New South Wales
Date: 13 December 2022
Judge: Lerve DCJ

Background

The offender pleaded guilty to two counts arising from a joint criminal enterprise with a co-offender involving the importation of MDMA (3,4-methylenedioxymethamphetamine) into Australia. The co-offender arranged online purchases of MDMA through the dark web from overseas suppliers, with the offender's role being to receive and distribute the drugs once they arrived. The offender had become involved around mid-2019 while unemployed, seeking quick money to support his family.

Two consignments were intercepted by the Australian Border Force before delivery. The first, originating from the Netherlands and addressed to the offender's home, contained approximately 490.7 grams (net weight) of MDMA tablets. The second, arriving from Germany and addressed to the co-offender, contained approximately 2.81 kilograms (net weight) of MDMA. Both consignments were intercepted and neither was delivered, forming the basis of a "rolled up" charge of attempted possession of a border-controlled drug in a commercial quantity.

The second count concerned a separate, smaller matter: on 27 or 28 March 2020, the offender supplied approximately 1.7 grams of cocaine to an associate who had requested it for personal use, in exchange for an undisclosed sum of money. The offender, who was 32 at the time of the offending, had been in a long-term relationship with the co-offender's sister and had known the co-offender for approximately 25 years.

  • The appropriate sentence for attempted possession of a border-controlled drug (MDMA) in a commercial quantity under s 307.5(1) of the Criminal Code 1995 (Cth), noting parity considerations with the co-offender's sentence
  • The appropriate sentence for supply of a prohibited drug (cocaine) under s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW)
  • The appropriate discount to apply for the guilty pleas, including their utilitarian value
  • Whether special circumstances (or the Commonwealth equivalent) justified a more generous non-parole period ratio
  • The commencement date of the sentence, having regard to pre-sentence custody

Decision

Lerve DCJ determined that a 15% discount applied to both counts, being the upper end of the range the court assessed as appropriate (10 to 15%), given the utilitarian value of the plea. The judge noted, as the presiding judge at Wagga Wagga, that the court was able to use the allocated time to hear other matters as a direct result of the plea.

On the Commonwealth count (Count 1), the court identified a starting point of 10 years imprisonment before the plea discount, producing a head sentence of 8 years and 6 months. The court found that a generous non-parole period ratio was warranted, noting the practical effect was analogous to a finding of special circumstances under the state regime, though that terminology was inapplicable to Commonwealth sentencing. Parity with the co-offender's sentence, addressed in a companion decision, was a significant consideration throughout.

On the state count (Count 2), the court determined a starting point of 6 months, which with the plea discount produced a sentence of 5 months. Given the minor nature of this offending relative to Count 1, the court ordered this sentence to be served wholly concurrently and as a fixed term, describing a separate non-parole period as "utterly pointless" in the circumstances.

The commencement date of both sentences was set at 20 July 2021, reflecting the agreed or determined position on pre-sentence custody. The sentencing judge referred to a psychological report (Exhibit 1) and directed it be annexed to the warrant sent to the Department of Corrective Services.

Orders Made

  • The offender was convicted on both counts.
  • Count 1 (Attempted possession of a border-controlled drug in a commercial quantity): Imprisonment for 8 years and 6 months, with a non-parole period of 5 years and 3 months, commencing 20 July 2021 and expiring 19 October 2026; balance of term expiring 19 January 2030.
  • Count 2 (Supply of a prohibited drug, cocaine): Fixed term of 5 months imprisonment, commencing 20 July 2021, wholly concurrent with Count 1 (expired 19 December 2021).
  • A copy of the psychological report (Exhibit 1, Ms Dombrowski) was directed to be annexed to the warrant forwarded to the Department of Corrective Services.

Key Takeaways

  • A guilty plea's utilitarian value may justify a discount at the upper end of an assessed range. Here, the District Court applied 15% (the upper end of a 10 to 15% range) partly because the court's allocated time was freed up to hear other matters.
  • Under s 307.5(1) of the Criminal Code 1995 (Cth), attempted possession of a border-controlled drug in a commercial quantity carries a maximum of life imprisonment. The court treated the two intercepted MDMA consignments as a single "rolled up" charge and sentenced accordingly.
  • Parity between co-offenders engaged in the same criminal enterprise is a significant sentencing consideration, even where the charges faced by each offender differ in form.
  • Where a concurrent fixed term is imposed for a state offence alongside a longer Commonwealth sentence, the District Court confirmed it is appropriate to impose a fixed term without a separate non-parole period, given a standalone parole period would serve no practical purpose.
  • The terminology of "special circumstances" is inapplicable in Commonwealth sentencing, but the court noted the underlying concept, justifying a more generous non-parole period ratio, remains available and was applied here.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), s 307.5(1)
- Crimes Act 1914 (Cth), s 16A(2)(g)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Code Regulations 2019 (Cth), Schedule 2

Cases:
- Awraham v R (Cth) [2021] NSWCCA 241
- Bugmy v The Queen [2013] HCA 37
- Cahyadi v R [2007] NSWCCA 1
- DPP (Cth) v Beattie [2017] NSWCCA 301
- DPP (Cth) v Hamilton [2021] NSWDC 594
- Foley v R [2021] VSCA 99
- Ibrahim v R [2016] NSWCCA 6
- Kee See Goh v R [2022] VSCA 24
- Martellotta v R [2021] NSWCCA 168
- Mbele v R [2021] NSWCCA 182
- Olbrich v The Queen (1999) 199 CLR 270
- Parente v R [2017] NSWCCA 284
- R v AD [2008] NSWCCA 289
- R v Bimah [2017] QCA 50
- R v Lamella [2014] NSWCCA 122
- R v Nguyen; R v Pham (2010) 205 A Crim R 106
- R v Phelps [2018] NSWCCA 191
- Salazar v The Queen [2021] VSCA 125
- Toller v R [2021] NSWCCA 204
- Totaan v R [2022] NSWCCA 75