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District Court 6 December 2022

R v Jiang

[2022] NSWDC 667

Drugs
CRIME DRUG OFFENCES COMMONWEALTH OFFENCES POSSESS BORDER CONTROLLED PROHIBITED PLANT OR DRUG

Citation: R v Jiang [2022] NSWDC 667
Court: District Court of New South Wales
Date: 6 December 2022
Judge(s): Bennett SC DCJ

Background

The offender, a 21-year-old Chinese national working in construction in Sydney, was charged with attempting to possess a commercial quantity of an unlawfully imported border-controlled drug, namely heroin, contrary to the Criminal Code (Cth). He had come to Australia at age 18 on a student visa and, during the COVID-19 pandemic when construction work was irregular, accepted a request from an acquaintance to collect a parcel in exchange for approximately $750 in payment.

A DHL consignment from Singapore arrived at Mascot on 14 April 2021, ostensibly containing home bedsheets. Australian Border Force examination revealed white powder concealed within blanket separators, which tested positive for heroin. The total pure weight was 1.53 kilograms, just 0.03 kilograms above the 1.5 kilogram commercial quantity threshold.

On 26 April 2021, NSW Police conducted a controlled delivery at the Burwood address to which the parcel was addressed. The offender was observed waiting in a vehicle nearby, called out to the undercover officer, signed for the consignment, and placed it in his car before being arrested. He had been in custody from that date. He pleaded guilty in the Local Court at Burwood on 8 June 2022.

Legal Issues

  • What sentence is appropriate for an offender who attempted to possess a commercial quantity of imported heroin while acting as a low-ranking courier, reckless rather than knowingly aware of the drug's presence?
  • How should the court weigh the quantity of drug (barely exceeding the commercial threshold) in assessing objective seriousness?
  • What role do the offender's youth, absence of prior criminal history, good rehabilitation prospects, and COVID-19 custody conditions play in determining the sentence?
  • To what extent does the offender's state of recklessness, rather than knowledge, reduce the severity of the offending?
  • What discount applies for the guilty plea, and how should general deterrence be balanced against the personal circumstances of a young, low-ranking participant?

Decision

Objective seriousness: The court assessed the offending as toward the lower end of the range of objective seriousness (at [77]). The pure weight of 1.53 kilograms barely crossed the commercial threshold, the offender was reckless rather than knowingly aware of the drug's presence, and the Crown conceded he did not know the quantity involved (at [75]-[76]). His role was to accept delivery on behalf of another, was of low rank in the enterprise, involved rudimentary methodology without sophistication, and occurred on a single occasion over two days (at [76]). He received no financial gain from the transaction and was motivated by economic need during the pandemic (at [76]).

Fault element and the prior delivery: The court accepted that the offender's state of mind evolved from an earlier, apparently innocuous delivery to recklessness, crystallising before he took possession of the consignment (at [31]-[32]). The court accepted the defence submission that the prior delivery had limited significance and that the offender had been manipulated into participation (at [30], [32]). The court found this was not an isolated act but that the earlier occasion's significance was confined to how recklessness developed over time (at [28]-[29]).

Subjective circumstances: The offender was 21 at the time of the offence, had no prior criminal history in Australia or China, and was assessed by a psychologist as presenting with a low risk of reoffending and good prospects for rehabilitation (at [59], [79]). The court gave weight to his youth, consistent with authority on the reduced significance of general deterrence and retribution for young offenders, while maintaining that even low-level participation in drug importation must attract appropriate punishment (at [80]). His positive conduct in custody at Parklea, including completing programs and being described as hardworking and dedicated, supported his rehabilitation trajectory (at [42], [81]).

Sentencing discretion and comparators: The court reviewed comparable cases from New South Wales and interstate, finding that the Crown's comparators involved more serious misconduct and higher objective seriousness (at [62]). A 25 percent discount was applied for the guilty plea, reflecting its utility and the contrition and remorse demonstrated (at [2], [95]). The court also took into account the harsh conditions of COVID-19 lockdowns in custody, noting the offender spent approximately 71 days in lockdown representing about 35 percent of what would otherwise have been normal custody time (at [38], [82]). The court applied the settled NSW principle that the prospect of deportation should be put aside in fixing sentence (at [92]).

Orders Made

  • Sentence of imprisonment of 5 years and 3 months, commencing 26 April 2021
  • Non-parole period of 3 years, expiring 25 April 2024
  • Balance of sentence of 2 years and 3 months, expiring 25 July 2026

Key Takeaways

  • For Commonwealth drug offences involving a commercial quantity, the pure weight of the drug is the relevant quantity for sentencing purposes, and an offender who barely crosses the commercial threshold will be assessed at the lowest end of that range (at [16], [74]-[75]).

  • Recklessness as the fault element, rather than knowledge that a consignment contains a border-controlled drug, reduces the objective seriousness of the offence, particularly where the Crown concedes the offender was unaware of the nature and quantity of the drugs (at [75], [88]).

  • A young offender with no prior criminal history, good rehabilitation prospects, and low risk of reoffending may attract reduced weight for general deterrence and retribution relative to an older offender, though sentencing courts must still signal that even low-level participation in drug importation enterprises will result in meaningful punishment (at [80]).

  • Harsh custodial conditions arising from COVID-19 lockdowns, including prolonged periods of cell confinement, are a relevant factor in mitigation and were taken into account in fixing the sentence in this case (at [38], [82]).

  • The District Court applied the settled New South Wales approach that the prospect of deportation at the end of a custodial sentence is to be put aside when fixing sentence, noting that the precise boundaries of emerging contrary approaches in other jurisdictions remain unsettled (at [91]-[92]).

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth)

Cases
- BP v R [2010] NSWCCA 159
- DPP v Foley [2019] VSCA 99
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 244 CLR 520
- Hoang v The Queen [2018] VSCA 86
- Imbornone v R [2017] NSWCCA 144
- Lay v R [2014] NSWCCA 310
- Nguyen v Pham [2010] 205 A Crim R 106
- Postiglione v The Queen [1997] HCA 26
- R v Boimah [2017] QCA 50
- R v JCW [2000] NSWCCA 209
- R v Karan [2013] NSWCCA 53
- R v Miguel David [12 July 2022] NSWDC unreported
- Tran v R [2017] VSCA 346