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District Court 6 December 2024

R v Antony

[2024] NSWDC 580

Drugs
OBJECTIVE SERIOUSNESS SUBJECTIVE FACTORS

Citation: R v Antony [2024] NSWDC 580
Court: District Court of New South Wales
Date: 6 December 2024
Judge: Newlinds SC DCJ

Background

The offender pleaded guilty to aiding and abetting the importation of a commercial quantity of pseudoephedrine, a border-controlled precursor, contrary to ss 11.2(1) and 307.11(1) of the Criminal Code (Cth). The principal offender, referred to as GG, arranged for the substance to be imported from India into Australia in what was known as the "Cats Eyes Consignment." The offender's involvement included agreeing to assist GG in obtaining money to pay offshore members of the syndicate and attending GG's residence after the consignment had been collected, in an attempt to access what they believed to be pseudoephedrine.

The quantity involved was 33.78 kilograms of pseudoephedrine, approximately 28 times the commercial quantity threshold. The offender had been arrested in January 2022 and spent 79 days in custody before being released on bail.

  • What was the appropriate characterisation of the offender's role in the importation, including whether it was "trusted and indispensable" and whether he occupied a more senior position than GG?
  • What was the objective seriousness of the offending, taking into account the nature of a border-controlled precursor as distinct from a border-controlled drug?
  • What head sentence and non-parole period were appropriate under s 16A of the Crimes Act 1914 (Cth), accounting for the guilty plea, subjective factors, and time already served?

Decision

The Crown submitted that the offender played a trusted and indispensable role and that his position in the criminal hierarchy was more senior than GG's. Newlinds SC DCJ rejected both propositions. The court found that the offender was trusted by members of the syndicate in relation to this one consignment, but that he was not indispensable, noting that the same syndicate had successfully imported multiple other consignments without his involvement. The court also found, on the balance of probabilities, that the offender fell below GG in the criminal hierarchy rather than above him.

On objective seriousness, the court acknowledged that pseudoephedrine is a precursor rather than an illegal drug in itself, and that this distinction is already reflected in the lower maximum penalty applicable to precursor offences. However, the court was satisfied that the offender knew the substance was being imported solely for the manufacture of large quantities of illicit drugs for distribution in the Australian community, and that he knew the quantity was very significant even if he did not know the precise amount. The court assessed the offending as serious, placing it below the middle of the range.

The court accepted the offender's explanation that he became involved partly to help a friend, but found that financial reward was also a motivating factor. Relevant subjective matters included the guilty plea, contrition, and personal circumstances. The court concluded that a starting head sentence of 4 years was the minimum appropriate sentence, reduced by 10 percent for the utilitarian value of the guilty plea to 3 years and 7 months. The court noted that a Recognizance Release Order would have been beneficial but was not available in the circumstances, and set a minimum non-parole period of 2 years to allow for a longer than usual period of supervised release.

Orders Made

  • The offender is convicted.
  • The offender is sentenced to imprisonment for 3 years and 7 months, commencing 18 September 2024 and expiring 17 April 2028 (reflecting a 10% guilty plea discount with rounding in the offender's favour).
  • The minimum non-parole period is 2 years, commencing 18 September 2024 and expiring 17 September 2026.
  • The first day the offender is eligible for parole is 17 September 2026.

Key Takeaways

  • A role in a drug importation syndicate may be characterised as "trusted" without being "indispensable": where the syndicate successfully conducted similar operations without the offender's participation, that involvement does not rise to the level of indispensability for sentencing purposes.
  • Under the Criminal Code (Cth), importing a border-controlled precursor carries a lesser maximum penalty than importing a border-controlled drug, and that statutory distinction is a relevant consideration when assessing objective seriousness, as confirmed by the Court of Criminal Appeal in Bott v R [2023] NSWCCA 255.
  • Knowledge of the ultimate purpose of a precursor importation (manufacturing illicit drugs for distribution) remains a significant aggravating feature even where the offender lacked precise knowledge of the quantity or cost involved.
  • Mixed motivation, including both loyalty to an associate and expectation of financial reward, does not prevent a finding that financial gain was at least a partial motive, which is a relevant factor under s 16A(2) of the Crimes Act 1914 (Cth).
  • The sentencing court applied the principle against "backwards reasoning," determining the appropriate head sentence by reference to the circumstances and comparable cases before considering the structure of the non-parole period.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), ss 11.2(1), 307.11(1)
- Crimes Act 1914 (Cth), s 16A
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases
- Bott v R [2023] NSWCCA 255
- DPP (Cth) v Maxwell (2013) 228 A Crim R 218
- Giles-Adams v The Queen; Preca v The Queen [2023] NSWCCA 122
- Hili v The Queen (2010) 242 CLR 520
- MI v R [2017] NSWCCA 225
- R v Butler [2024] NSWCCA 133
- R v Kassir [2020] NSWCCA 88
- R v Madgwick [2018] NSWCCA 268
- R v Nguyen; R v Pham [2010] NSWCCA 238
- Richards v The King [2023] NSWCCA 264
- Ribbon v The Queen [2022] SASCA 15
- Totaan v R (2022) 108 NSWLR 17
- The Queen v Pham (2015) 256 CLR 550