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District Court 3 February 2023

R v Bertucci

[2023] NSWDC 79

DrugsFraud & dishonesty
IMPORT COMMERCIAL QUANTITY OF BORDER CONTROLLED DRUG CRIME DRUG OFFENCES

Citation: R v Bertucci [2023] NSWDC 79
Court: District Court of New South Wales
Date: 3 February 2023
Judge(s): Priestley SC, DCJ

Background

The offender was sentenced on three principal offences arising from conduct between May 2018 and his arrest on 25 November 2020. Two offences arose under the Commonwealth Criminal Code and one under the New South Wales Crimes Act. Three additional offences were brought before the court to be taken into account under the Commonwealth "schedule" procedure (s 16BA of the Crimes Act (Cth)) and one further matter under the NSW Form 1 procedure.

The most serious offence (sequence 13) involved aiding and abetting an attempt to import a commercial quantity of a border-controlled drug, specifically 139.8 kilograms of pure methamphetamine. The offender facilitated the importation by creating false identities, including a Gmail account in the name of a real person and a fictitious persona used to manage customs correspondence, and by participating in four preparatory "dry runs" before a final "live run" that was intercepted by authorities.

The second principal offence (sequence 15) involved dealing in identification information, and the third (sequence 2) involved dealing with property reasonably suspected to be proceeds of crime worth more than $100,000. The offender had not been on any form of conditional liberty at the time of the offending.

  • What was the objective seriousness of each principal offence, having regard to the offender's specific role within the criminal enterprise?
  • How should the court weigh the s 16BA schedule matters and Form 1 matter when determining the principal sentences?
  • What discount was appropriate for the offender's plea of guilty?
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio.
  • How should the Commonwealth and state sentences be structured as an aggregate to avoid a disproportionate overall period of actual custody?

Decision

On sequence 13, the court characterised the attempted importation as a sophisticated criminal act. The offender's role was assessed as mid-level or just below mid-level in the criminal hierarchy: he took directions from others, had no knowledge of the precise drug type or quantity, and functioned as a facilitator rather than an organiser. Nevertheless, the scale of the operation, the extended period of planning across four dry runs, and the deliberate use of stolen and fabricated identities all elevated the objective seriousness. The court fixed an indicative sentence of 8 years before discount, reducing to 6 years after applying the guilty plea reduction.

On sequence 15 (dealing in identification information), the court set an indicative sentence of 2.5 years before discount, reducing to 22 months after the guilty plea discount. The conduct underlying that offence was found not to be wholly attributable to or subsumed by sequence 13, justifying separate weight in the aggregate calculation.

The court determined an aggregate term of 7 years for the two Commonwealth offences (sequences 13 and 15). Special circumstances were found to exist, warranting a longer-than-standard balance of term to assist rehabilitation. To give proper effect to that finding while accounting for the overlap between the Commonwealth non-parole period and the parole period of the state sentence, the court reduced the Commonwealth non-parole period to 4.5 years. The court noted this was consistent with the offender's submission that the overall non-parole period should be approximately 5.5 years, and that this period represented the minimum time in custody necessary to reflect the overall seriousness of the offending.

For sequence 2 (state proceeds of crime offence), the court sentenced the offender to a term with a 12-month non-parole period commencing 25 November 2020, to run first before the Commonwealth sentence.

Orders Made

  • The offender was convicted of sequences 13, 15, and 2.
  • For sequence 2 (state offence): imprisonment with a non-parole period of 12 months, commencing 25 November 2020 and expiring 24 November 2021, with a balance of term of 6 months expiring 24 May 2022.
  • For sequences 13 and 15 (Commonwealth offences, aggregate): imprisonment with a non-parole period of 4.5 years commencing 25 November 2021 and expiring 24 May 2026, with a balance of term of 2.5 years expiring 24 November 2028.

Key Takeaways

  • A facilitator's role in a large-scale drug importation scheme does not preclude a finding of mid-level culpability, particularly where the offender personally constructed false identities and participated in multiple preparatory runs over an extended period.
  • Under the s 16BA schedule procedure, the sentencing court does not sentence for the additional matters themselves but may give greater weight to personal deterrence and retribution when determining the principal sentence, provided the outcome remains proportionate to the principal offence.
  • Where an offender is sentenced on both Commonwealth and state matters, the court may adjust the non-parole period for the Commonwealth aggregate sentence to account for structural overlap with the parole period of the state sentence, ensuring the overall ratio of non-parole period to balance of term properly reflects any finding of special circumstances.
  • The weight of drugs involved in an importation is a significant but not determinative factor in assessing objective seriousness; the offender's precise role within the enterprise remains a central consideration.
  • A guilty plea discount applied at the indicative sentence stage, before the aggregate is determined, allows the court to maintain transparency in how it arrives at the final term.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 11.1, 11.2, 307.1(1), 372.1(1), 400.9(1)
- Crimes Act 1914 (Cth), s 16BA
- Crimes Act 1900 (NSW), s 193C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases
- Cahyadi v R [2007] NSWCCA 1
- Hall v The Queen [2021] NSWCCA
- Mill v The Queen [1988] HCA 70
- R v Holder [1983] 3 NSWLR 245
- Redfern v R [2012] NSWCCA 178
- Totaan v R [2022] NSWCCA
- Xiao [2018] NSWCCA 4
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146