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District Court 15 March 2023

R v DH

[2023] NSWDC 312

Drugs
SENTENCING — PENALTIES — IMPRISONMENT PLEA OF GUILTY PARITY FIRST TIME IN CUSTODY G OOD CHARACTER MENTAL CONDITION

Citation: R v DH [2023] NSWDC 312
Court: District Court of New South Wales
Date: 15 March 2023
Judge: Wilson SC DCJ

Background

The offender appeared for sentencing on three federal drug and proceeds-of-crime offences, having entered guilty pleas in the Parramatta Local Court. He had been committed for sentence in March 2022 and had spent one month and seven days in pre-sentence custody.

The offending arose from a coordinated drug importation operation. In April 2021, a parcel from the United States concealing 2.4 kilograms of pure methamphetamine in printer toner cartridges was intercepted by Australian Border Force and reconstructed with a tracking device. The offender collected the consignment from a co-offender, MW, in Canley Heights under direction from his brother, who was based overseas. A search of the offender's home located the opened consignment, his fingerprints on the packaging, $9,000 in cash concealed in the bedroom, and 11.87 grams of methamphetamine.

The offender had communicated with his brother using encrypted messaging platforms. Earlier messages showed the offender, financially stressed and injured, had offered to do "dirty or proper work" for money. He admitted in evidence that "dirty work" referred to involvement in drug-related criminal activity.

  • What sentence was appropriate across three federal offences: attempted possession of a commercial quantity of a borderline controlled drug reasonably suspected of being unlawfully imported; dealing with suspected proceeds of crime; and possession of a controlled drug?
  • Whether the parity principle required the sentence to bear a justifiable relationship to the sentence previously imposed on the co-offender, MW.
  • What weight to give to mitigating factors including a guilty plea, good character, first time in custody, cooperation with law enforcement, and the offender's mental condition.

Decision

The court imposed a single aggregate sentence of three years and four months' full-time imprisonment, with a non-parole period of 20 months. The sentence was backdated to account for the one month and seven days already served in pre-sentence custody, with a commencement date of 5 February 2023. The earliest release date was fixed at 4 October 2024, with the head sentence expiring 4 June 2026.

On parity, the court addressed the significant disparity between this sentence and the sentence previously imposed on MW, who received a head sentence of eight years and a non-parole period of four years. The court explained that the disparity did not give rise to any justified sense of grievance on MW's part. MW had been convicted of an additional offence involving commercial quantities of cocaine, and the current offender's cooperation with law enforcement was assessed as substantially more valuable than that provided by MW.

In fixing the non-parole period, the court gave specific weight to three factors: this was the offender's first time in custody following conviction; he was assessed as being of good character; and his mental condition meant that serving imprisonment would be harsher for him than for a prisoner without that condition.

Orders Made

  • Aggregate sentence of three years and four months' full-time imprisonment imposed across all three counts.
  • Non-parole period set at 20 months.
  • Sentence backdated to 5 February 2023 to reflect pre-sentence custody of one month and seven days.
  • Earliest release date: 4 October 2024.
  • Head sentence expiry: 4 June 2026.

Key Takeaways

  • The District Court treated the three offences together and imposed a single aggregate sentence, reflecting their close factual connection as part of the same operation on the same day.
  • Parity does not require identical sentences between co-offenders where their respective criminality and cooperation with authorities differ materially. The court found the gap between the two sentences was justified by MW's additional conviction and the relative value of each offender's cooperation.
  • A mental condition that renders imprisonment more burdensome than it would be for other prisoners is a recognised factor in setting the non-parole period, even where it does not reduce the head sentence.
  • Under the Criminal Code Act 1995 (Cth), attempted possession of a commercial quantity of a borderline controlled drug carries a maximum of life imprisonment, reflecting the legislative view that importation-related offending warrants significant general deterrence.
  • Good character and first-time custody status, while mitigating, did not prevent the imposition of full-time imprisonment given the serious nature of commercial drug offending.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 307.8(1) (attempted possession of commercial quantity of borderline controlled drug reasonably suspected of unlawful importation)
- Criminal Code Act 1995 (Cth), s 400.9(1)(a) (dealing with suspected proceeds of crime under $100,000)
- Criminal Code Act 1995 (Cth), s 308.1(1) (possession of a controlled drug)

Cases: No cases were cited in the judgment.