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District Court 12 December 2024

R v Leung

[2024] NSWDC 671

Drugs
CRIME SENTENCE N,N DIMETHYLAMPHETAMINE OFFENDER ON TOURIST VISA

Citation: R v Leung [2024] NSWDC 671
Court: District Court of New South Wales
Date: 12 December 2024
Judge: Neilson DCJ

Background

The offender, a 22-year-old Hong Kong national, arrived in Sydney on a tourist visa in April 2023 accompanied by an older man. Over the following weeks, two consignments of men's vests were shipped from Bangladesh to a Summer Hill apartment, addressed to the offender. The vests concealed quantities of N,N-Dimethylamphetamine (DMA), a central nervous stimulant described in the judgment as weaker than methylamphetamine (commonly known as ice).

The first consignment was delivered and the offender was filmed unpacking the vests and extracting the drug. He then set up a clandestine laboratory at the apartment and refined the liquid form of DMA into a crystalline solid. The second consignment, containing 1,119 grams of DMA (1.49 times the commercial quantity threshold of 750 grams), was intercepted by the Australian Border Force before delivery. Police executed a search warrant at the Summer Hill premises in June 2023, arresting the offender and seizing the laboratory, equipment, and over 1,144 grams of DMA in both liquid and solid states.

The offender pleaded guilty to two Commonwealth offences: attempting to import a commercial quantity of DMA, and manufacturing a commercial quantity of DMA. A further offence of importing a commercial quantity of DMA (relating to the first consignment used in the manufacturing process) was taken into account on a schedule under s 16BA of the Crimes Act 1914 (Cth).

  • What aggregate sentence was appropriate for the two substantive Commonwealth drug offences, having regard to the relevant sentencing factors under s 16A(2) of the Crimes Act 1914 (Cth)?
  • What weight should be given to the offender's personal circumstances, including his age, background, limited English, cultural differences, and the absence of prior criminal history?
  • To what extent does imprisonment in a foreign country, where the offender is isolated by language and culture, bear on the assessment of the sentence's onerousness?
  • What discount applied for the offender's guilty plea and any assistance provided to authorities?

Decision

Neilson DCJ sentenced the offender to an aggregate term of five years and six months imprisonment, comprising a non-parole period of three years and three months (commencing 14 June 2023, the date of arrest) and a balance of term of two years and three months. The court took the schedule offence into account in passing sentence.

The court assessed the objective seriousness of the offending as significant. The quantities of DMA involved exceeded the commercial threshold by approximately 1.5 times in each instance. The offender was not a principal organiser but had a clear and active role in the importation and refining operation, as evidenced by CCTV footage, phone records, and the presence of the clandestine laboratory.

In mitigation, the court took into account the offender's youth (22 at the time of the offences), his lack of prior criminal history, his early guilty pleas, and his prospects for rehabilitation. The court also considered the principle, recognised in cases such as R v Ferrer-Esis and R v Cheung, that imprisonment can be more burdensome for a foreign national who is isolated by language and culture from the general prison population. The offender's limited English and unfamiliarity with Australian customs were treated as factors making incarceration more onerous than it would be for a person with stronger community ties in Australia.

The court further noted the likely impact of the sentence on the offender's elderly parents and brother, while observing that the offender had no dependants of his own. The sentence reflected both the need for general deterrence in Commonwealth drug importation matters and the individual mitigating factors established on the evidence.

Orders Made

  • The offender was convicted on the charge of attempting to import a commercial quantity of DMA (between 15 May 2023 and 29 May 2023).
  • The offender was convicted on the charge of manufacturing a commercial quantity of DMA (between 12 May 2023 and 14 June 2023).
  • An aggregate sentence of five years and six months imprisonment was imposed.
  • Non-parole period: three years and three months, commencing 14 June 2023 and expiring 13 September 2026.
  • Balance of term: two years and three months, commencing 14 September 2026 and expiring 13 December 2028.
  • The schedule offence under s 16BA of the Crimes Act 1914 (Cth) was taken into account.
  • Indicative sentences: three years (Sequence 5); four years and six months (Sequence 6).

Key Takeaways

  • The District Court confirmed that, on sentencing for Commonwealth drug offences, imprisonment is treated as more onerous where a foreign national offender is isolated from the general prison population by language barriers and cultural differences, consistent with the principle in R v Ferrer-Esis (1991) 55 A Crim R 231.
  • N,N-Dimethylamphetamine (DMA), though assessed as a weaker stimulant than methylamphetamine, attracts the same maximum penalty of life imprisonment under the Criminal Code Act 1995 (Cth) where the quantity imported or manufactured reaches the commercial threshold of 750 grams.
  • An offender's youth, lack of prior criminal history, and early guilty plea remained significant mitigating factors even in the context of serious Commonwealth drug offending involving commercial quantities.
  • Where a foreign national offender arrived on a tourist visa with no dependants or established ties in Australia, those circumstances were relevant both to the onerousness of the sentence and to the limited weight given to considerations of specific community impact.
  • The court applied an aggregate sentencing approach for the two substantive offences, setting indicative sentences for each before arriving at a total term that reflected the totality principle.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 16A(2), 16BA
- Criminal Code Act 1995 (Cth), ss 11.1, 305.3(1), 307.1(1)

Cases
- R v Ferrer-Esis (1991) 55 A Crim R 231
- R v Cheung; R v Choi [2010] NSWCCA 244; (2010) 203 A Crim R 398
- Wong v R [2018] NSWCCA 263
- DPP (Cth) v Estrada (2015) 45 VR 286; [2015] VSCA 22
- R v Agboti [2014] QCA 280