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District Court 3 March 2023

R v SHAH; R v ATTRA

[2023] NSWDC 45

Drugs
SENTENCING — PENALTIES — IMPRISONMENT ATTEMPT POSSESS COCAINE

Citation: R v Shah; R v Attra [2023] NSWDC 45
Court: District Court of New South Wales
Date: 3 March 2023
Judge: Noman SC DCJ

Background

Two offenders, referred to here as Shah and Attra, were sentenced following their conviction at trial for conspiring together and with others, including an unidentified overseas associate referred to as "the Dubai Male," to traffic a commercial quantity of cocaine. The conspiracy was found to have operated between late October and mid-November 2019.

The scheme involved 233 kilograms of cocaine (185.5 kilograms pure) secreted inside aluminium ingots shipped from Mexico to Sydney. Shah rented storage units in his own name, extracted ingots containing the substituted substance, and transported them to prospective buyers. Attra travelled to Australia from overseas to act as a representative of the syndicate, inspecting the ingots and assisting with delivering drug samples to prospective purchasers.

Shah faced a second charge of attempting to possess the cocaine as an unlawfully imported border-controlled drug. He entered a guilty plea to that charge on the original trial date. The cocaine had been substituted with an inert substance by the Australian Border Force before delivery, which is why the charge was framed as an attempt.

  • What was the appropriate sentence for each offender on the conspiracy count, given their equal culpability but different conduct and circumstances?
  • What discount, if any, should apply to Shah's guilty plea on the attempted possession count, given its lateness and the context in which it was entered?
  • How should the court treat the offenders' agreement to signed facts at trial, where both maintained innocence on the conspiracy count throughout?
  • What weight should be given to subjective factors, including custodial conditions during COVID-19 and each offender's personal circumstances?

Decision

The District Court found both offenders equally culpable on the conspiracy count, despite the differences in their roles. Shah managed the physical receipt and extraction of the drugs; Attra represented the overseas syndicate and assisted in identifying the target pallets and distributing samples. The court treated these as different but equivalently serious contributions to a single criminal enterprise.

The court observed that neither offender demonstrated sophisticated tradecraft. Both used their own identities, Shah rented storage units with his own name and phone number, and Attra applied for his visa openly. The court noted this reflected either poor planning, a lack of sophistication, or misplaced confidence, and that neither man occupied the apex of what was evidently an international operation.

On Shah's guilty plea to the attempted possession count, the court allowed only a 5% discount. The plea was entered late, on the original trial date, in the face of strong evidence. The court accepted there was some limited utilitarian value but characterised the plea as a recognition of the inevitable rather than an expression of remorse. The agreement by both offenders to signed facts at trial, while not admissions of guilt, reduced the length of the proceedings and was given some weight in moderating sentence.

The court also took into account the significantly more restrictive remand conditions both offenders experienced during the COVID-19 pandemic, including extended periods in cells, reduced access to programs, and limited or remote-only visits. For Attra, his status as a foreign national with limited community support in Australia was noted, though his likely deportation upon release was treated as irrelevant to the sentencing exercise.

Orders Made

  • Shah convicted of conspiracy to traffic a commercial quantity of cocaine and of attempting to possess cocaine (unlawfully imported border-controlled drug).
  • Shah sentenced to an aggregate term of 17 years imprisonment with a non-parole period of 11 years, commencing 19 November 2019; eligible for parole from 18 November 2030, with the term expiring 18 November 2036.
  • Attra convicted of conspiracy to traffic a commercial quantity of cocaine.
  • Attra sentenced to 16 years imprisonment with a non-parole period of 10 years, commencing 19 November 2019; eligible for parole from 18 November 2029, with the term expiring 18 November 2035.
  • Both sentences backdated to commence on the date of arrest, 19 November 2019.

Key Takeaways

  • The District Court found equal culpability between two offenders despite materially different roles within the same drug trafficking conspiracy, treating both contributions as equally serious within the overall criminal enterprise.
  • A guilty plea entered on the first listed trial date, in response to overwhelming evidence, attracted only a 5% discount rather than the 10% sought by the defence, on the basis that it represented minimal utilitarian benefit and no genuine remorse.
  • Agreeing to signed facts at trial, even while maintaining innocence on the conspiracy count, can produce a modest reduction in sentence where the agreement reduces court time and facilitates the administration of justice.
  • Custodial conditions experienced during the COVID-19 pandemic, including extended cell time and restricted access to programs and visits, were treated as a relevant mitigating factor in determining the length of sentence.
  • Using one's own identifying information during the commission of a serious drug offence was treated not as a mitigating factor, but as evidence of poor planning and an absence of sophistication, consistent with the offenders not occupying leadership roles within the broader international syndicate.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 302.2(1), 307.5, 11.1(1), 11.5(1)

Cases cited: No cases were cited in the judgment text provided.