Citation: R v Wong [2023] NSWDC 173
Court: District Court of New South Wales
Date: 30 May 2023
Judge(s): Scotting DCJ
Background
The offender, a young man in his early twenties, was sentenced after pleading guilty in the District Court to attempting to possess a border controlled drug, namely ketamine, imported into Australia. The offence arose from a drug importation operation involving two co-offenders who had arranged for a package to be delivered to a homestay residence in Hornsby, addressed to a false name. A third party (referred to throughout as TZ) lived at that address and had agreed to receive packages on behalf of one of the co-offenders.
The package, originating from the Netherlands, arrived on 27 April 2021 and contained 983.4 grams of ketamine at 85.5% purity. TZ opened it, noticed a white powder, and reported it to his guardian, who took the package to police. Both co-offenders had already been arrested in connection with a separate package on 20 April 2021.
After the co-offenders' arrests, the offender took over the task of attempting to recover the package. He contacted TZ repeatedly throughout the night and, in the early hours of 28 April 2021, attended TZ's residence unannounced. He told TZ the package contained drugs and that both of them would be "in trouble" if the drugs were thrown away. TZ informed him police had already been called, and the offender left the scene.
Legal Issues
- What sentence is appropriate in all the circumstances for the Commonwealth offence of attempting to possess a border controlled drug, having regard to the matters under section 16A of the Crimes Act 1914 (Cth)?
- What weight should be given to the guilty plea, pre-sentence custody, and strict bail conditions?
- To what extent do general and specific deterrence bear on the sentence?
- What findings of fact can be made adverse to the offender given his denials in the police interview?
- What weight should be given to the offender's subjective circumstances, including his age, health, and prospects of rehabilitation?
Decision
Factual Findings
The court rejected the offender's police interview denials in their entirety. His claim of non-involvement could not be reconciled with his guilty plea, and the court preferred TZ's account as recorded in the agreed facts (at [37]). The court was satisfied beyond reasonable doubt that the offender knew his co-offenders were involved in drug importation and that he was a participant in the enterprise, though it sentenced him only on his attempts to possess the one package (at [38]).
Objective Seriousness
The court found the offending objectively serious. The drug quantity of 983.4 grams at 85.5% purity represented more than 280 times the marketable quantity and approached the commercial quantity (at [36]). The offender attended TZ's residence unannounced in the early hours of the morning, told TZ the package contained drugs, and warned him of consequences if it were discarded (at [14]-[15]). The offence was motivated entirely by financial reward to fund his lifestyle (at [26]-[36]).
Guilty Plea and Subjective Circumstances
The court allowed a 10% discount for the guilty plea, noting it had some utilitarian value, the Crown case was strong, and the plea indicated some remorse (at [5]). The offender served 13 months and 11 days in pre-sentence custody and was then subject to strict bail conditions akin to house arrest for approximately a further six months. The court backdated the sentence to 19 October 2021 to reflect that period (at [51]). Time in custody was made more onerous by COVID-19 restrictions, including inadequate treatment of the offender's severe eczema and a serious bout of COVID-19 (at [52]).
Contrition, Rehabilitation, and Deterrence
The court found no evidence of genuine contrition (at [40]). It was not satisfied the offender had accepted responsibility for his actions, noting his representations to police were untrue and his candour with the author of the sentencing assessment report was doubted (at [47]). General deterrence was identified as a fundamental consideration for serious drug offences, with the sentence required to signal that financial rewards from drug activity will be neutralised by severe punishment (at [41]). Specific deterrence was also relevant given the offender's prior drug supply conviction and continued unemployment (at [42]). The court acknowledged the offender's youth as a factor favouring rehabilitation and noted he would benefit from a lengthy period of post-release supervision (at [49]).
Orders Made
- The offender was convicted.
- A term of imprisonment of 3 years was imposed, commencing 19 October 2021 and expiring 18 October 2024.
- Pursuant to section 20(1)(b) of the Crimes Act 1914 (Cth), the offender was ordered to be released on 30 May 2023, having served 19 months and 11 days, upon entering into a recognisance of $1,000 to be of good behaviour for 3 years.
- Conditions of the recognisance include accepting supervision by a Community Corrections Officer and obeying all reasonable directions from Community Corrections.
- Failure to comply with the recognisance release order may result in the offender being returned to court.
Key Takeaways
-
Under section 16A of the Crimes Act 1914 (Cth), a sentencing court must impose a sentence of severity appropriate to all the circumstances and consider each of the listed factors that are relevant and known, with common law principles continuing to apply alongside that statutory framework (at [3]-[4]).
-
A guilty plea made after the offender had observed co-offenders' sentences, and against a strong Crown case, attracted only a 10% discount; the sentencing court found the plea indicated some remorse but held there was no other evidence of genuine contrition or accepted responsibility (at [5], [40], [47]).
-
Pre-sentence custody made more onerous by COVID-19 conditions, including inadequate medical treatment and restricted visits, was a relevant mitigating consideration, and the District Court reflected the full period of pre-sentence custody and strict bail conditions in the commencement date of the sentence (at [51]-[52]).
-
Where an offender's denials in a police interview are irreconcilable with a subsequent guilty plea, the court may reject those denials entirely and make adverse findings on the balance of the evidence (at [37]).
-
Financial motivation for drug offending, combined with a prior drug supply conviction and limited evidence of rehabilitation prospects, supported the court's emphasis on both general and specific deterrence as primary sentencing considerations (at [41]-[42]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1914 (Cth)
- Criminal Code (Cth)
Cases
- Johnson v The Queen (2004) 78 ALJR 616
- R v El Karhani (1990) 21 NSWLR 370
- R v Olbrich (1999) 199 CLR 270