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District Court 19 April 2024

R v Waters

[2024] NSWDC 126

Drugs
CRIME SENTENCE CONTROLLED DRUG.

Citation: R v Waters [2024] NSWDC 126
Court: District Court of New South Wales
Date: 19 April 2024
Judge: Mahony SC DCJ

Background

The offender pleaded guilty on 8 May 2023 to conspiracy to possess a commercial quantity of a border-controlled drug, namely cocaine, contrary to ss 307.5(1) and 11.5(1) of the Criminal Code Act 1995 (Cth). The conspiracy related to a period between approximately 26 December 2017 and 16 January 2018. The maximum penalty for the offence is life imprisonment and/or 7,500 penalty units.

The offender's involvement centred on activities in Belgrade, Serbia. He coordinated logistics for a drug syndicate attempting to recover a shipment of cocaine that had been intercepted, or purportedly intercepted. His role included organising cash accumulation, directing co-conspirators, obtaining a firearm, and attending a key meeting at the Metropol Hotel on 16 January 2018, where he described himself as one of three principals of the syndicate.

The cocaine concealed in a shipping container comprised approximately 1.28 tonnes, with purity between 72.6% and 82.5% and an estimated street value of between $731 million and $1.536 billion. The offender had also faced a separate Count 1 on the indictment alleging conspiracy to import a commercial quantity of cocaine, but was acquitted of that charge by a jury on 1 August 2023.

  • What was the offender's objective criminality, given his limited period of involvement and the facts established at trial?
  • What discount, if any, should apply for the guilty plea?
  • How should parity with the sentence imposed on co-offender Rohan Peter Arnold be approached, noting that Arnold was sentenced for the more serious offence of conspiracy to import?
  • What weight should be given to mitigating factors, including the offender's personal circumstances, medical difficulties, and the conditions of his incarceration, including time spent in custody in Serbia and during the COVID-19 pandemic in New South Wales?

Decision

The court accepted that the offender's involvement in the conspiracy was limited to a period of approximately three to four weeks, with direct participation established from around 8 January 2018 and the core activities taking place from 13 to 16 January 2018. Notwithstanding the shorter time frame, the court found that the offender played a significant role: he directed co-conspirators, coordinated the accumulation of large sums of cash, obtained a firearm, arranged men and a vehicle for potential use against an undercover officer, and described himself as a principal of the syndicate.

The parity principle required the court to consider the sentence imposed on Arnold, who had pleaded guilty to the more serious offence of conspiring to import. The court noted that, while the two offences were different in character, consistency in sentencing co-offenders engaged in the same criminal enterprise remained a relevant consideration. The court calibrated the sentence to reflect that the offender's offence, while serious, was technically of a lesser character than Arnold's importing offence.

The court took a starting point of 25 years imprisonment. It then applied a 10% discount for the guilty plea. A further reduction was made to account for significant medical difficulties the offender had faced and would continue to face in custody, as well as the onerous conditions of his incarceration, including time spent in detention in Serbia following his arrest and the impact of COVID-19 conditions in New South Wales. The resulting sentence was 20 years imprisonment, with a non-parole period of 12 years.

The sentence was backdated to commence on 16 January 2018, the date of arrest. The court noted that, for Commonwealth offences with a head sentence exceeding three years, a non-parole period must be fixed pursuant to s 19AB(1) of the Crimes Act 1914 (Cth), and that no fixed normative percentage applies to the relationship between the non-parole period and the head sentence in Commonwealth matters.

Orders Made

  • The offender was convicted of the offence in Count 2: conspiracy to possess a commercial quantity of cocaine (a border-controlled drug) between 26 December 2017 and 16 January 2018, contrary to the Criminal Code Act 1995 (Cth).
  • A non-parole period of 12 years imprisonment was imposed, commencing 16 January 2018 and terminating 15 January 2030.
  • The balance of term is 8 years, commencing 16 January 2030 and terminating 15 January 2038.
  • Parole eligibility date: 15 January 2030.

Key Takeaways

  • A relatively short period of direct involvement in a drug conspiracy does not necessarily reduce the gravity of an offender's role where the evidence establishes that the offender acted as a directing principal, facilitated cash and firearms, and participated in key meetings on behalf of the syndicate.
  • The parity principle applies across co-offenders even where they have been convicted of technically different offences arising from the same criminal enterprise, though the nature and gravity of each offence remains relevant to calibration.
  • Under s 19AB(1) of the Crimes Act 1914 (Cth), courts sentencing Commonwealth offenders to more than three years must fix a non-parole period, but no normative percentage relationship between that period and the head sentence is prescribed.
  • Onerous pre-sentence custody conditions, including detention overseas and COVID-19 restrictions in New South Wales, were treated as mitigating factors warranting a reduction beyond the guilty plea discount.
  • A 10% guilty plea discount was applied, reflecting the stage at which the plea was entered (on arraignment), consistent with the approach to Commonwealth sentencing under the Crimes Act 1914 (Cth).

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 11.5(1), 307.5(1)
- Crimes Act 1914 (Cth), s 19AB(1)

Cases
- Betka & Ors [2020] NSWCCA 191
- Can v R [2023] NSWCCA 179
- D'Agostino v R [2023] NSWCCA 212
- Green v The Queen (2011) 244 CLR 462
- Milenkovski v Western Australia (2014) 46 WAR 324; [2014] WASCA 48
- Mirza v R [2007] NSWCCA 257
- R v Barkl; R v Dumbrell; R v Theobald [2023] NSWCCA 309
- R v Lee [2007] NSWCCA 234
- R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238
- R v Oinonen [1999] NSWCCA 310
- R v Russell [2022] NSWDC 416
- R v Stanbouli (2003) 141 A Crim R 531; [2003] NSWCCA 355
- Tyler v the Queen; R v Chalmers (2007) 173 A Crim R 458; [2007] NSWCCA 247