Citation: R v Butler [2024] NSWDC 79
Court: District Court of New South Wales
Date: 21 March 2024
Judge(s): Scotting DCJ
Background
The offender, a co-owner of an aviation welding business at Bankstown Aerodrome, was caught up in a criminal syndicate's attempt to take possession of 149.3 kilograms of pure cocaine concealed inside aluminium ingots imported from Mexico. The syndicate arranged for the ingots to be delivered to the offender's business premises, which the offender had agreed to rent to one of the co-offenders for storage purposes.
The offender's involvement was found to have commenced on 28 February 2019, when he assisted co-offenders in inspecting and cutting open ingots at his premises. He was present on further occasions through to 13 March 2019, when he actively assisted in trying to locate specific ingots understood to be worth approximately $40 million.
He pleaded guilty on the day his trial was set to commence to aiding, abetting, counselling or procuring the attempted possession of a commercial quantity of a border controlled drug, contrary to the Criminal Code (Cth). The maximum penalty for that offence is life imprisonment.
Legal Issues
- What sentence was appropriate for the offender's role as an accessory in the attempted possession of a large commercial quantity of cocaine, having regard to Part IB of the Crimes Act 1914 (Cth) and the section 16A factors?
- What weight should be given to the offender's mental health conditions, personal circumstances, and reduced moral culpability?
- What discount applied for the late guilty plea?
- How did parity with co-offenders inform the appropriate sentence?
- Whether the delay between the offending and the offender's arrest warranted any mitigation of sentence.
Decision
Role and Objective Seriousness
The court found that the offender's role, while essential in allowing the co-offenders to avoid detection, was less significant than that of any other co-offender (at [80]). His involvement commenced on 28 February 2019 and continued through to 13 March 2019, when he was actively assisting in locating specific ingots (at [72], [77]). The court accepted that he was reckless, rather than knowingly complicit from the outset, as to whether a border controlled drug was involved (at [72]-[78]). The quantity of cocaine, 149.3 kilograms pure, was more than 74 times the commercial quantity and was plainly substantial (at [81]).
Guilty Plea and Plea Discount
The plea was entered on the day of trial, saving the need to call witnesses and indicating a willingness to facilitate the course of justice. The court applied a 10 percent discount (at [7]).
Personal Circumstances and Moral Culpability
The court found significant mitigating factors in the offender's personal history. He was a person of good character prior to February 2019, having become involved through his legitimate business rather than by seeking out criminal activity (at [85]). He was experiencing prolonged grief following his sister's death in 2015, an acrimonious separation from his wife, and had developed stimulant and cannabis use disorders. The court accepted that his mental conditions, including prolonged grief disorder and adjustment disorder with mixed anxiety and depressed mood, had a debilitating impact on his judgment and reduced his moral culpability (at [89]). The court was satisfied that he was vulnerable and taken advantage of by the co-offenders (at [90]).
Parity and Delay
Co-offenders sentenced for the principal offence of attempting to possess the cocaine received terms ranging from 6 to 9 years imprisonment. Those principal offenders were sentenced on the basis they knew the ingots contained border controlled drugs, unlike the offender here who was found to have been reckless. The court also took into account a significant unexplained delay between the offending in early 2019 and the offender's arrest in March 2021, noting the offender did not cause the delay and committed no further offences during that period (at [101]). The sentence was backdated by six months to account for pre-sentence custody and bail conditions including an overnight curfew and daily reporting (at [102]).
Orders Made
- The offender was convicted.
- A term of imprisonment of 3 years was imposed, commencing 22 September 2023 and expiring 21 September 2026.
- The offender was to be released on 21 March 2024 after serving 6 months, upon entering into a recognisance of $1,000 to be of good behaviour for 5 years.
- Conditions of the recognisance include: acceptance of supervision by Community Corrections; compliance with all reasonable directions from Community Corrections; and participation in such treatment or rehabilitation programs as directed by Community Corrections.
Key Takeaways
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The District Court confirmed that an accessory who provides business premises to a drug syndicate can play an "essential" role in an attempted possession offence even where that person is less involved than all principal co-offenders, and even where the accessory's mens rea is limited to recklessness rather than actual knowledge (at [80], [72]-[78]).
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A causal connection between diagnosed mental health conditions and offending conduct can reduce an offender's moral culpability for a serious drug offence, even where the offence itself is objectively grave, provided the court is satisfied on the evidence that the conditions impaired judgment at the relevant time (at [89]).
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Unexplained delay between the commission of a federal drug offence and an offender's arrest does not automatically constitute a mitigating factor, but where the offender did not cause the delay and committed no further offences in the interim, some mitigation of sentence is appropriate (at [101]).
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Parity with co-offenders sentenced for the principal offence of attempting to possess cocaine informed, but did not mechanically dictate, the sentence for the accessory: the different fault element (recklessness versus knowledge) and lesser degree of involvement justified a markedly lower sentence.
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Where an offender cooperates with police by voluntarily providing access to electronic devices and passwords, that cooperation can support a finding that the offender was not involved in the criminal syndicate at any significant level, and is a relevant matter in assessing character and prospects of rehabilitation (at [90]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1914 (Cth)
- Criminal Code ( Cth )
Cases
- Bugmy v The Queen (1990) 169 CLR 525
- Deakin v The Queen (1984) 58 ALJR 367
- Hili v The Queen (2010) 242 CLR 520
- Johnson v The Queen (2004) 78 ALJR 616
- Power v The Queen (1974) 131 CLR 623
- R v Barkl; R v Dumbrell; R v Theobald [2023] NSWCCA 309
- R v El Karhani (1990) 21 NSWLR 370
- R v Nassir [2020] NSWCCA 88
- R v Nguyen (2010) 205 A Crim R 106
- R v Olbrich (1999) 199 CLR 270