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District Court 5 April 2024

R v DO

[2024] NSWDC 203

Drugs
SENTENCE LIMITED ROLE PRIOR GOOD CHARACTER SOCIAL DISADVANTAGE

Citation: R v DO [2024] NSWDC 203
Court: District Court of New South Wales
Date: 5 April 2024
Judge(s): D Barrow SC DCJ

Background

The offender, a 23-year-old man with no prior criminal history, travelled from Melbourne to Sydney to collect two suitcases he understood to contain a large quantity of prohibited drugs. He was accompanied by a co-offender who drove the vehicle. The drugs were, in fact, part of a controlled operation: New South Wales Police had reconstructed a consignment of methylamphetamine originally seized by United States authorities in California, substituting the drugs with an inert substance.

The original consignment, intercepted in Long Beach, California on 24 June 2022, weighed 74.7 kilograms at 98% purity. The nominal quantity involved in the NSW controlled delivery was therefore almost 150 times the threshold for a large commercial quantity of methylamphetamine under the Drug Misuse and Trafficking Act 1985 (NSW).

The offender was arrested on 30 July 2022 after collecting both suitcases from the boot of the undercover police vehicle. He pleaded guilty on 16 August 2023 and received a 25% discount on his sentence for the utilitarian value of that plea.

  • What was the objective seriousness of the offending, having regard to the offender's limited role as a courier or transporter within a larger syndicate?
  • What weight should be given to the offender's subjective case, including his youth, prior good character, social disadvantage, and progress in custody?
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio.
  • What sentence was proportionate having regard to the competing purposes of general deterrence and rehabilitation?

Decision

The District Court assessed the objective seriousness of the offence as serious, but moderated by the offender's limited role. The Crown accepted it could not be established that the offender knew the precise quantity, purity, or type of drug involved. His role was to travel to Sydney, collect the consignment, and transport it back to Melbourne for delivery to those who had engaged him. The court found this was an essential, but not a senior, role within the syndicate structure.

On objective seriousness, the court weighed the extraordinary quantity and purity of the drug, and the particularly harmful nature of methylamphetamine, against the offender's position at the lower end of the organisational hierarchy. The court reviewed a range of comparable cases cited by the Crown and accepted the submission on the offender's behalf that all of those cases involved more serious offending and, importantly, far weaker subjective circumstances.

The offender's subjective case was described as powerful. He was 23 at the time of the offence, had no prior record, and was a person of prior good character. Evidence established that his treatment at the time of arrest had produced symptoms consistent with post-traumatic stress disorder, making his time in custody more burdensome. The court also noted his social disadvantage and the very positive progress he had made while in custody.

The court found special circumstances warranting a reduction in the standard non-parole period ratio, citing the offender's youth, his absence of prior criminal history, the more onerous nature of his custody given PTSD symptoms, and his need for extended post-release supervision and support.

Orders Made

  • The offender is to serve a non-parole period of five years imprisonment, backdated to 30 July 2022.
  • The balance of term is three years and six months.
  • First eligibility for parole: 29 July 2027.
  • Entire sentence expires: 29 January 2031.

Key Takeaways

  • A courier or transporter role in a large-scale drug supply operation is treated as essential but limited in the sentencing hierarchy, and this distinction has real weight in calibrating objective seriousness.
  • Where a co-offender's sentencing proceedings are not yet finalised, questions of parity do not arise at the time of the first offender's sentence.
  • The District Court gave significant weight to a combination of subjective factors: youth at the time of offending, complete absence of prior criminal history, prior good character, social disadvantage, and demonstrable rehabilitation in custody.
  • PTSD symptoms arising from the circumstances of arrest were accepted as relevant to the finding of special circumstances, on the basis that they made the offender's time in custody more onerous than it would otherwise have been.
  • In comparing sentencing precedents, the court confirmed that both the gravity of the offending and the strength of the subjective case must be assessed together; precedents with weaker subjective circumstances carry reduced comparative force.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A(2)

Cases:
- Muldrock v R [2011] HCA 39
- Bugmy v The Queen (2013) 249 CLR 571
- R v MacDonnell [2002] NSWCCA 34
- Melikian v R [2008] NSWCCA 156
- El Kheir v R [2019] NSWCCA 288
- R v Dang [2005] NSWCCA 430
- Chong v R [2020] NSWCCA 235
- Tiew v R [2020] NSWCCA 234
- McLean v R [2020] NSWCCA 344
- Wan v R [2017] NSWCCA 261
- Kassoua v R [2017] NSWCCA 307
- Kwok v R [2018] NSWCCA 200
- Plaisted v R [2015] NSWCCA 287
- Lam v R [2014] NSWCCA 50
- Ryan v R [2001] HCA 21
- R v Irusta (2000) 117 A Crim R 6
- R v Taouk [1998] 65 A Crim R 387
- R v Tyler (2007) 173 A Crim R 458