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District Court 5 May 2023

R v Taleb

[2023] NSWDC 139

Drugs
CRIME DRUG OFFENCES COMMONWEALTH OFFENCES

Citation: R v Taleb [2023] NSWDC 139
Court: District Court of New South Wales
Date: 5 May 2023
Judge: Priestley SC DCJ

Background

The offender, a former executive chef with no significant criminal history since 2010, was arrested on 2 December 2021 at Coffs Harbour after collecting a substituted parcel containing methamphetamine from a caravan park. The parcel had been detected by authorities as it entered Australia from France and was addressed to a fictitious name. Police substituted the parcel's contents and arranged for delivery to allow the collection to be monitored.

The offender had arranged the collection via text message with an unknown contact and told police he was collecting the package on behalf of a friend. The gross quantity of the drug was 133 grams, with a pure methamphetamine content of 85 grams.

The offender came before the District Court for sentencing on one charge of attempting to possess an unlawfully imported border-controlled drug in a marketable quantity, contrary to sections 11.1 and 307.6 of the Commonwealth Criminal Code, carrying a maximum penalty of 25 years imprisonment.

Legal Issues

  • What was the objective seriousness of the offending, and what was the offender's role?
  • What weight should be given to the offender's personal circumstances, including a severe drug addiction, a suicide attempt, and limited rehabilitation steps?
  • What was the appropriate term of imprisonment after applying the 25 percent guilty plea discount?
  • Whether section 20(1)(b) of the Crimes Act 1914 (Cth) permitted the offender to be immediately released on a recognisance, rather than serving full-time custody, and whether that outcome adequately served the purposes of deterrence and denunciation.

Decision

Objective seriousness and role in the offence

Priestley SC DCJ found the objective seriousness of the offending to be below the mid-range. The pure quantity of 85 grams was much closer to the 2-gram entry level for a marketable quantity than the 750-gram upper threshold, though quantity was not a determinative factor (at [9]-[12]). The court found the offender's role was that of a courier or collector rather than a manager or supplier, noting that the use of an encrypted messaging application alone did not elevate his status, and that payment in cocaine for personal use was consistent with a limited role (at [10]-[11]). The offender's reference to needing to "restock" was accepted as a reference to obtaining cocaine for personal use rather than evidence of drug dealing (at [26]).

Personal circumstances and prospects of rehabilitation

The court accepted that the offender's cocaine addiction, which began recreationally and escalated due to occupational stress, underpinned the offending rather than any broader criminal enterprise (at [14]). His significant work history as an executive chef, earning $200,000 per annum, had been destroyed by his addiction, along with his marriage, home, and time with his children (at [13]-[15]). The court viewed his suicide attempt on 18 March 2023 as likely representing his lowest point and accepted his remorse as genuine, though it characterised this acceptance as guarded given the late timing relative to the offending (at [35]-[37]). Rehabilitation efforts to that point were assessed as underwhelming, but the court accepted that community-based rehabilitation was more likely to succeed given family support, employment prospects, and an assessed medium-to-low risk of reoffending (at [28]-[29], [56]).

Calculating the sentence

Before applying any discount, the court assessed the head sentence at 3 years and 9 months. After applying the agreed 25 percent guilty plea discount and accounting for 7 days already spent in custody, the resulting term was rounded to 33 months (at [57]).

Immediate release under section 20(1)(b) of the Crimes Act 1914 (Cth)

The court then considered whether the offender should serve that term in full-time custody or be released immediately on a recognisance. An Intensive Correction Order was unavailable because the term exceeded the 2-year limit under section 68 of the Crimes (Sentencing Procedure) Act. However, section 20(1)(b) of the Crimes Act 1914 (Cth) permits immediate release on a recognisance for terms up to 3 years, which the 33-month sentence satisfied (at [50], [58]-[59]). The court was satisfied that an immediate release on recognisance, for a period of 2 years and 9 months and subject to significant conditions, adequately served general and specific deterrence. This was because the offender had already experienced 7 days in custody, had been on conditional bail for 18 months, and faced the prospect of re-sentencing to full-time custody for any breach (at [60]). The court found that community-based intervention better promoted rehabilitation and community safety in the circumstances (at [56]).

Orders Made

  • The offender was convicted of attempting to possess an unlawfully imported border-controlled drug of a marketable quantity, contrary to sections 11.1 and 307.6 of the Commonwealth Criminal Code.
  • The offender was sentenced to a term of imprisonment of 2 years and 9 months commencing 5 May 2023.
  • The offender was directed to be immediately released upon providing a security of $1,000, subject to the following conditions:
  • To be of good behaviour.
  • To report to the Sydney office of Community Corrections by 12 May 2023 and submit to supervision.
  • To obey all reasonable directions of the community corrections officer.
  • To undertake drug and alcohol counselling as directed, including completing the mental health care plan and attending his GP by 12 May 2023 for any further referral to a drug and alcohol counsellor.
  • Not to take any illegal drugs or unprescribed prescription drugs.
  • Not to travel interstate or overseas without written permission of the community corrections officer.

Key Takeaways

  • Under section 20(1)(b) of the Crimes Act 1914 (Cth), a court may impose a term of imprisonment of up to 3 years and direct immediate release on a recognisance, effectively extending community-based sentencing options for Commonwealth drug offences beyond the 2-year threshold that applies to Intensive Correction Orders under State legislation (at [50], [58]-[60]).

  • Objective seriousness in marketable quantity drug possession cases is not determined solely by quantity, but quantity remains a relevant factor, and proximity to the entry-level threshold of the relevant band supports a finding of below mid-range seriousness (at [9]-[12]).

  • A courier or collector role, absent evidence of managerial involvement or active drug supply, supports a lower assessment of an offender's culpability, even where the offender liaised with third parties to facilitate collection (at [10]-[11]).

  • The District Court gave guarded weight to remorse and rehabilitation evidence that emerged only after a serious personal crisis, close to sentencing, and where concrete rehabilitation steps remained limited, while accepting that the crisis itself was a genuine nadir (at [35]-[37]).

  • Where the criminogenic factor is drug addiction rather than participation in a criminal milieu, and where the offender has family support, employment prospects, and a medium-to-low reoffending risk, a community-based outcome may better promote rehabilitation and community safety than a short custodial term (at [56]).

Legislation and Cases Referenced

Legislation
- Commonwealth Criminal Code Act 1995 ( Cth)
- Crimes Act 1914 (Cth)

Cases
- R v Bardo (unrep NSWCCA 14.7.92 BC9203244)
- R v Clark (unrep NSWCCA 15.3.90)
- Parente v R [2017] NSWCCA 284
- Markarian v The Queen (2005) 228 CLR 357
- Robertson [2017] NSWCCA 205
- Omorogbe v R [2013] NSWCCA 201