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District Court 17 February 2023

R v Campbell

[2023] NSWDC 652

Drugs
CRIME COMMONWEALTH DRUG OFFENCE 1,976.7 GRAMS PURE HEROIN PRIMARY OFFENCE S307.5(1) CRIMINAL CODE ACT 1995 THREE CO

Citation: R v Campbell [2023] NSWDC 652
Court: District Court of New South Wales
Date: 17 February 2023
Judge: Tupman DCJ

Background

The offender was a 32-year-old Indigenous Australian man who pleaded guilty to one count of attempting to possess a commercial quantity of unlawfully imported heroin, contrary to section 307.5(1) of the Criminal Code Act 1995 (Cth). The offence was both an attempt under section 11.1(1) and a jointly committed offence under section 11.2A(1) of that Act. The maximum penalty is life imprisonment.

On 6 April 2021, the AFP conducted a controlled delivery of a consignment of heroin that had arrived from Thailand concealed inside 24 handbags. Officers had already seized and reconstructed the package, which contained 3,797.2 grams of heroin at 73.6% purity, representing 1,976.7 grams of pure heroin. The offender drove the reconstructed consignment from Edmondson Park to Darlington in his own registered vehicle, where he met with co-offenders known as the Farrell brothers. The group later discarded the consignment on Abercrombie Street, Redfern, after becoming suspicious that police were watching them.

Three co-offenders were identified in the agreed facts and remained listed for trial. The offender had been in custody since his arrest on 13 August 2021, from which date his sentence was backdated.

Legal Issues

  • What was the appropriate characterisation of the offender's role within the joint criminal enterprise, and where did the offending sit on the range of objective criminality?
  • Whether the offender should be found to have prior knowledge of the importation or any planning role, as aggravating circumstances.
  • What discount applied for the early guilty plea, and how should the offender's subjective circumstances, including mental illness, trauma, and prospects of rehabilitation, affect the sentence?
  • What non-parole period was appropriate given the onerous custodial conditions experienced and the need for community-based treatment and supervision?

Decision

Objective seriousness and the offender's role

The court placed the offending at the bottom of the range of objective criminality for offences capable of being charged under section 307.5(1). The offender's role was found to be very low in the overall hierarchy: he drove the consignment from one location to another for approximately two hours, functioning in the nature of a courier, albeit perhaps marginally above that level (at [24]-[26]). There was no evidence connecting him to the importation, the prior multiple handovers, or any advance planning for the operation (at [19]-[21]).

The court rejected the Crown's submission that the smooth execution of multiple handovers warranted an inference of prior planning by the offender. Tupman DCJ held that to draw such an inference would constitute an aggravating circumstance not supported by the available evidence, particularly given that the phone seized from the offender's co-offenders' car showed no prior contact consistent with planning (at [21]). The court also rejected the submission that sole possession of the consignment for two hours elevated the offender to the status of a trusted associate with greater responsibility than a courier (at [25]).

The heroin quantity, while a commercial quantity, sat only marginally above the lower threshold of 1.5 kilograms, and its wholesale value ranged from approximately $428,000 to $2.7 million depending on how it was sold. The court recognised heroin's serious addictive character and the need for general deterrence, but found these factors were moderated by the offender's very limited role (at [28]-[32]).

Guilty plea

The offender pleaded guilty in the Local Court at an early opportunity. The court applied a 25% discount, reflecting both the utilitarian value of the plea in avoiding a trial and the offender's willingness to facilitate the interests of justice (at [37]).

Subjective circumstances

The court accepted that the offender had experienced pervasive childhood trauma, including witnessing serious domestic violence, periods of abandonment, exposure to drug use in the family home, and a traumatic event at age 11. The death of his best friend approximately ten years before the offence was found to have caused a sudden and marked deterioration in his circumstances, leading to extensive drug and alcohol abuse after what had been a positive personal trajectory (at [51]-[52]).

The court accepted a diagnosis of post-traumatic stress disorder, persistent depressive disorder with anxious distress, and substance abuse disorder. These conditions were found to have reduced the offender's moral culpability to an extent, although the court did not accept the psychologist's opinion that he lacked the capacity to make reasoned judgments. He committed the offence for financial gain, in circumstances where he did not anticipate being caught (at [59]-[60]). His mental illness nonetheless made him a somewhat less suitable vehicle for general deterrence (at [61]).

Custodial conditions and non-parole period

The court noted that the offender had spent more than 200 days in isolation in custody, largely due to COVID lockdowns, at times without access to showers, phone calls, or legal visits. He had not received psychological or psychiatric treatment in custody. The court set the non-parole period at 50% of the head sentence, below the standard ratio, to reflect these onerous conditions, the absence of available treatment in custody, and the benefit of an extended period of community supervision with access to culturally appropriate rehabilitation supports (at [64]-[68]).

Orders Made

  • The offender is convicted.
  • The offender is sentenced to imprisonment for 4 years and 6 months, commencing 13 August 2021 and expiring 12 February 2026.
  • Non-parole period of 2 years and 3 months, commencing 13 August 2021 and expiring 12 November 2023.

Key Takeaways

  • A low-level role in a drug courier operation, limited to transporting a consignment by car for approximately two hours with no proven involvement in importation or planning, can place a commercial quantity heroin offence at the bottom of the objective criminality range even where the offender had sole physical possession of the drugs (at [24]-[26], [36]).

  • Under section 16A of the Crimes Act 1914 (Cth), findings of aggravating circumstances based on inference, such as prior planning from the smooth execution of handovers, must be supported by evidence; where such evidence is absent, particularly where police have seized the offender's communications device and found nothing consistent with planning, no such finding can be made (at [21]).

  • Moral culpability may be reduced by an offender's diagnosed mental health conditions and history of significant trauma without those conditions wholly negating the capacity for reasoned judgment; the two assessments operate independently (at [59]-[61]).

  • A non-parole period set at 50% of the head sentence, rather than the standard two-thirds ratio, may be appropriate where the offender has served a substantial portion of the sentence in exceptionally onerous conditions, has not been able to access treatment in custody, and has good prospects of rehabilitation through community-based programs (at [64]-[68]).

  • Sentencing courts dealing with Commonwealth drug matters can expect guidance from R v Nguyen and R v Pham (2010) 205 A Crim R 106 on the general principles for assessing objective criminality, applied alongside the mandatory statutory factors in section 16A of the Crimes Act 1914 (Cth) (at [5]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 ( Cth): s 16A
- Criminal Code Act 1995 (Cth ): s s 11.1(1), 11.2A(1), 307.5(1)

Cases
- R v Nguyen and R v Pham (2010) 205 A Crim R 106