Citation: R v Seguel (No 2) [2025] NSWDC 262
Court: District Court of NSW
Date: 14 February 2025
Judge: Neilson DCJ
Background
A jury found the offender guilty of attempting to possess a marketable quantity of heroin, a border controlled drug, contrary to the Criminal Code Act 1995 (Cth). The heroin had arrived concealed in a cardboard box shipped from Malaysia, addressed to the offender's address in Botany in the name of a personal friend. Australian Border Force intercepted the package, removed the drugs, and repackaged it for delivery by an undercover officer posing as a courier. The offender accepted the delivery on 13 April 2021 and was promptly arrested.
Police searched the offender's residence and seized two mobile phones, a computer tower, a digital scale bearing cocaine residue, butterfly knives, a Taser, and several rounds of ammunition. Forensic analysis of the electronic devices formed a significant part of the evidence at trial. The offender had previously undergone brain surgery in July 2020 for a meningioma and lived with his elderly parents.
The sentencing proceedings addressed the federal drug offence and three state charges: two counts of possessing a prohibited weapon without a permit (butterfly knives and a Taser), and one count of possessing ammunition without a licence.
Legal Issues
- Whether the offender knew the delivery contained drugs, drawing inferences from the electronic evidence recovered from his phones and computer tower
- The appropriate sentence for the federal offence of attempting to possess a marketable quantity of a border controlled drug (heroin), carrying a maximum of 25 years imprisonment
- How to treat a prior conviction in New Zealand for sentencing purposes
- The weight to be given to the offender's claimed caring responsibilities for elderly parents and his prospects of further education
- The appropriate penalties for the three state offences
Decision
On the knowledge question, the court drew inferences from the electronic evidence to conclude the offender was aware the consignment contained drugs. The consignee named on the package was the offender's close personal friend, who denied any knowledge of or involvement with the shipment. The court accepted that denial and found the electronic evidence on the seized devices pointed to the offender's own involvement.
On the federal drug offence, the court sentenced the offender to four years imprisonment with a non-parole period of two years and eight months. The court considered the seriousness of the offence, the quantity of heroin involved (239.5 grams pure), the prior New Zealand conviction, the offender's personal circumstances including his health history and caring role, and comparable sentencing decisions including R v Kassir, R v Chew, R v Keelan, R v Lau, and Shalida v Rex.
The court took into account the offender's health (his history of brain surgery requiring ongoing monitoring) and his role in caring for elderly parents, but treated claims about future university study with scepticism as to their realism. The sentence reflected the objective gravity of the offence while accommodating those personal circumstances to a degree.
For the state weapons offences, the court imposed a three-month fixed term for the butterfly knives and a six-month fixed term for the Taser. For the ammunition possession, the court recorded a conviction only, noting the bullets appeared to be mere curiosities rather than a meaningful weapons-related threat.
Orders Made
- Federal drug offence (Sequence 1): Imprisonment for four years, commencing 22 January 2025; non-parole period of two years and eight months expiring 21 September 2027; head sentence expiring 21 January 2029
- Sequence 2 (butterfly knives): Imprisonment for three months, commencing 22 January 2025, expiring 21 April 2025
- Sequence 3 (Taser): Imprisonment for six months, commencing 22 January 2025, expiring 21 July 2025
- Sequence 4 (ammunition): Conviction recorded; no further penalty imposed (s 10A, Crimes (Sentencing Procedure) Act 1999 (NSW))
- Medical reports to be provided to corrections officers for transfer with the offender
Key Takeaways
- The District Court drew inferences from digital forensic evidence recovered from mobile phones and a computer tower to establish the offender's knowledge that the intercepted package contained drugs, even where the package was addressed in another person's name.
- A conviction for attempting to possess a border controlled drug under ss 11.1(1) and 307.6(1) of the Criminal Code Act 1995 (Cth) carries a maximum of 25 years imprisonment; the court imposed four years with a non-parole period of two years and eight months for 239.5 grams of pure heroin.
- Prior convictions from overseas jurisdictions, here New Zealand, were treated as relevant sentencing considerations.
- Personal circumstances such as caring for elderly parents and a significant health history (brain surgery and ongoing monitoring) were acknowledged as mitigating factors, though they did not fundamentally alter the sentence given the objective seriousness of the offence.
- Under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court may record a conviction for a minor offence without imposing any further penalty, as occurred here for the possession of a small quantity of ammunition that appeared to have no practical significance.
Legislation and Cases Referenced
Legislation
- Criminal Code Act 1995 (Cth), ss 11.1(1), 307.6(1)
- Firearms Act 1996 (NSW), s 65(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
Cases
- R v Kassir [2020] NSWCCA 88
- R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 ACR 106
- R v Seguel [2024] NSWCCA 37
- R v Chew [2022] NSWDC 325
- R v Keelan [2022] NSWDC 387
- R v Lau [2020] NSWDC 843
- Shalida v Rex [2024] NSWCCA 55