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District Court 17 May 2024

R v Maaz

[2024] NSWDC 179

Drugs
CRIM E DRUG OFFENCES COMMONWEALTH OFFENCES CONTROLLED DRUGS SENTENCING CONTESTED FACTS KNOWLEDGE

Citation: R v Maaz [2024] NSWDC 179
Court: District Court of New South Wales
Date: 17 May 2024
Judge: Newlinds SC DCJ

Background

The offender, a building business owner, was convicted by a jury of attempting to possess a commercial quantity of MDMA, a border-controlled drug, contrary to sections 11.1(1) and 307.5(1) of the Criminal Code (Cth). The charge related to conduct between April and May 2020. The maximum penalty for the offence is life imprisonment and/or 7,500 penalty units.

The facts underlying the conviction centred on an excavator imported from the United Kingdom. The machine arrived in Australia concealing 346.2 kg of pure MDMA within its boom shaft. Police discovered the drugs on arrival, replaced them with surveillance equipment, and conducted a controlled delivery of the excavator to a Queensland auctioneer. The offender purchased the machine and had it delivered to his building site in Blacktown, where he and an associate spent approximately three days cutting into the excavator's arm with a band saw in search of the concealed drugs. They never found them, because police had already removed the drugs before delivery.

At trial, the offender did not dispute the objective facts. His defence rested on two claims: first, that he bought the excavator in good faith as a piece of equipment for his business, without knowledge of any drugs; and second, that once the machine arrived on site, he participated in the search only because an associate threatened to kill both him and his mother if he refused. The jury rejected these defences and returned a guilty verdict. The sentencing hearing then required the court to resolve two contested factual issues relevant to the appropriate sentence.

  • Whether the offender knew about the drugs concealed in the excavator at the time he was negotiating its purchase, or whether his knowledge arose only after delivery when threats were allegedly made.
  • Whether, even if the jury rejected exculpatory duress (duress sufficient to negate criminal liability), residual or "non-exculpatory" duress remained relevant as a mitigating factor at sentencing.
  • What weight to give to general deterrence, the offender's role, his lack of prior relevant convictions, the impact of imprisonment on his mother, and his psychological circumstances in fixing the appropriate sentence.
  • Whether special circumstances existed to justify a non-parole period below the standard statutory ratio.

Decision

Knowledge at the time of purchase

The court was satisfied beyond reasonable doubt that the offender knew the excavator contained drugs from the outset of his negotiations to purchase it. Several findings supported this conclusion. The excavator's market value was between $98,000 and $126,000, yet the offender's opening bid was $280,000, which was $115,000 above the starting price and more than twice the machine's market value. The offender made no inquiries about the machine's condition, did not arrange an inspection, and on his own evidence "bid against himself" by raising his own bid unprompted. His explanation that he needed the machine for his building site was inconsistent with this conduct.

Non-exculpatory duress

Having found that the offender knew about the drugs before the machine arrived on site, the court held that the duress narrative was impossible to accept. The offender's account of threats made on site depended entirely on that site visit being the first moment he had any inkling of wrongdoing. Once the court found he knew about the drugs much earlier, the entirety of his evidence about the conversations with his associate, including the alleged threats, could not be accepted. Accordingly, non-exculpatory duress did not operate as a mitigating factor.

Sentencing

The court characterised the offending as serious: a large quantity of a harmful drug (346.2 kg of pure MDMA), a deliberate commercial enterprise, and no contrition or remorse. The offender's prospects of rehabilitation were described as guarded. The court gave significant weight to the impact of imprisonment on the offender's mother, his first-time offender status, his otherwise good character, and psychological evidence suggesting custody would be more onerous for him than for others. General deterrence was identified as a significant consideration. Weighing all these matters, the court determined that eight years' imprisonment was appropriate, with a non-parole period of five years, the latter reflecting the special circumstances of first-time custody, psychological vulnerability, and family impact.

Orders Made

  • The offender is sentenced to eight years' imprisonment, commencing 29 February 2024 and expiring 28 February 2032.
  • A non-parole period of five years is imposed, commencing 29 February 2024, with the offender first eligible for parole on 28 February 2029.

Key Takeaways

  • At a sentencing hearing on contested facts, the standard of proof mirrors that at trial: the Crown must establish aggravating facts beyond reasonable doubt, while the offender bears the burden of proof on the balance of probabilities for mitigating facts.
  • Where a defendant's entire account of duress is premised on a specific moment of first awareness, a finding that knowledge existed earlier can be fatal to the entire duress narrative, including any residual claim of non-exculpatory duress at sentencing.
  • Paying more than twice the market value for goods, making no inquiries about condition, and raising one's own bid unprompted are facts capable, in combination, of satisfying a court beyond reasonable doubt that the purchaser knew the true purpose of the transaction.
  • General deterrence carries significant weight in sentencing for large-scale commercial drug offending under the Criminal Code (Cth), and a substantial term of full-time imprisonment will ordinarily be the only appropriate response.
  • Adjusting the non-parole period below the standard ratio does not require a formal finding of "special circumstances" in Commonwealth sentencing, but factors such as first-time custody, psychological vulnerability, and the impact on dependants remain relevant considerations in fixing that period.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), ss 11.1(1) and 307.5(1)
- Crimes Act 1914 (Cth), s 16E

Cases
- Deakin v The Queen [1984] HCA 31
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Dwayhi v R [2011] NSWCCA 67
- Green v The Queen (2011) 244 CLR 462
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- Lau v The Queen [2011] VSCA 324
- Lowe v The Queen (1984) 154 CLR 606
- Ngo v R [2017] WASCA 3
- PG v R [2017] NSWCCA 179
- Power v The Queen (1974) 131 CLR 623
- R v Chandler; Chandler v R [2012] NSWCCA 135
- R v Dyson [2023] NSWCCA 132
- R v Kaldor (2004) 150 A Crim R 271
- R v Lee [2007] NSWCCA 234
- R v Morabito (1992) 62 A Crim R 82
- R v Nguyen; R v Pham [2010] NSWCCA 238
- Rae v R [2011] NSWCCA 211
- Shortland v R [2013] NSWCCA 4
- Totaan v R [2022] NSWCCA 75
- Wong v The Queen (2001) 207 CLR 584