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Welcome to the COMMONWEALTH SENTENCING DATABASE

SENTENCING SERIOUS DRUG OFFENDERS

1. Commonwealth Drug Offences

1.1 Types of Drug Offences

Part 9.1 of the Criminal Code (Cth) enacts certain drug related offences committed against the Commonwealth. Such offences include trafficking (Division 302), cultivation (Division 303), selling (Division 304), manufacture (Division 305), pre-trafficking (Division 306), importation and exportation (Division 307), and possession (Division 308) of certain categories of drugs and precursors.  

Importation and exportation offences are the most common category of Commonwealth serious drug offences. The categories of import and export offences are divided into importing and exporting border controlled drugs or plants (Subdivision A), possessing unlawfully imported border controlled drugs or plants (Subdivision B), possessing border controlled drugs or plants reasonably suspected of having been unlawfully imported (Subdivision C), and importing and exporting border controlled precursors (Subdivision D).

It is a circumstance of aggravation where a child is procured for the purpose of committing some types of serious drug offences (Division 309).  

1.1.1 Trafficking Offences 

 Division 302—Trafficking controlled drugs

 Section

Offence

Max penalty

 302.2

Trafficking commercial quantities of controlled drugs

Life imprisonment or 7,500 penalty units

 302.3

Trafficking marketable quantities of controlled drugs

25 years’ imprisonment or 5,000 penalty units or both

 302.4

Trafficking controlled drugs

10 years’ imprisonment 2,000 penalty units, or both

 

1.1.2 Cultivation Offences

 Division 303—Commercial cultivation of controlled plants

 Section

Offence

Max penalty

 303.4

Cultivating commercial quantities of controlled plants

Life imprisonment or 7,500 penalty units

 303.5

Cultivating marketable quantities of controlled plants

25 years’ imprisonment or 5,000 penalty units or both

 303.6

Cultivating controlled plants

10 years’ imprisonment or 2,000 penalty units

 

1.1.3 Selling controlled plants offences

 Division 304—Selling controlled plants

 Section

Offence

Max penalty

 304.1

Selling commercial quantities of controlled plants

Life imprisonment or 7,5000 penalty units or both

 304.2

Selling marketable quantities of controlled plants

25 years’ imprisonment or 5,000 penalty units or both

 304.3

Selling controlled plants

10 years’ imprisonment or 2,000 penalty units or both

 

1.1.4 Commercial manufacturing offences

Division 305—Commercial manufacture of controlled drugs

Section

Offence

Max penalty

305.3

Manufacturing commercial quantities of controlled drugs

Life imprisonment or 7,500 penalty units or both

305.4

Manufacturing marketable quantities of controlled drugs

Where aggravated offence: 28 years’ imprisonment or 5,600 penalty units or both

In any other case:
25 years’ imprisonment or 5,000 penalty units or both

305.5

Manufacturing controlled drugs

Where aggravated offence: 12 years’ imprisonment or 2,400 penalty units or both

In any other case:
10 years’ imprisonment or 2,000 penalty units or both

 

1.1.5 Pre-trafficking precursor offences

Division 306—Pre-trafficking controlled precursors

Section

Offence

Max penalty

306.2

Pre-trafficking commercial quantities of controlled precursors

Where aggravated offence: 28 years’ imprisonment or 5,600 penalty units or both

In any other case:
25 years’ imprisonment or 5,000 penalty units or both

306.3

Pre-trafficking marketable quantities of controlled precursors

Where aggravated offence: 17 years’ imprisonment or 3,400 penalty units or both

In any other case:
15 years’ imprisonment or 3,000 penalty units or both

306.4

Pre-trafficking controlled precursors

Where aggravated offence: 9 years’ imprisonment or 1,800 penalty units or both

In any other case:
7 years’ imprisonment or 1,400 penalty units or both

 

1.1.6 Import and export offences

Division 307—Import-export offences

Subdivision A—Importing and exporting border controlled drugs or border controlled plants

Section

Offence

Max penalty

307.1

Importing and exporting commercial quantities of border controlled drugs or border controlled plants

Life imprisonment or 7,500 penalty units or both

307.2

Importing and exporting marketable quantities of border controlled drugs or border controlled plants

25 years’ imprisonment or 5,000 penalty units, or both

307.3

Importing and exporting border controlled drugs or border controlled plants

10 years’ imprisonment or 2,000 penalty units or both

307.4

Importing and exporting border controlled drugs or border controlled plants – no defence relating to lack of commercial intent

2 years’ imprisonment or 400 penalty units or both

Subdivision B—Possessing unlawfully imported border controlled drugs or border controlled plants

307.5

Possessing commercial quantities of unlawfully imported border controlled drugs or border controlled plants

Life imprisonment or 7,500 penalty units or both

307.6

Possessing marketable quantities of unlawfully imported border controlled drugs or border controlled plants

25 years’ imprisonment or 5,000 penalty units, or both

307.7

Possessing unlawfully imported border controlled drugs or border controlled plants

2 years’ imprisonment or 400 penalty units or both

Subdivision C—Possessing border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported

307.8

Possessing commercial quantities of border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported

Life imprisonment or 7,500 penalty units or both

307.9

Possessing marketable quantities of border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported

25 years’ imprisonment or 5,000 penalty units or both

307.10

Possessing border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported

2 years’ imprisonment or 400 penalty units or both

Subdivision D—Importing and exporting border controlled precursors

307.11

Importing and exporting commercial quantities of border controlled precursors

25 years’ imprisonment or 5,000 penalty units or both

307.12

Importing and exporting marketable quantities of border controlled precursors

15 years’ imprisonment or 3,000 penalty units or both

307.13

Importing and exporting border controlled precursors

7 years’ imprisonment or 1,400 penalty units or both

 

1.1.7 Possession offences

Division 308—Possession offences

Section

Offence

Max penalty

308.1

Possessing controlled drugs

2 years’ imprisonment or 400 penalty units or both

308.2

Possessing controlled precursors

2 years’ imprisonment or 400 penalty units or both

308.3

Possessing plant material, equipment or instructions for commercial cultivation of controlled plants

7 years’ imprisonment or 1,400 penalty units or both

308.4

Possessing substance, equipment or instructions for commercial manufacture of controlled drugs

7 years’ imprisonment or 1,400 penalty units or both

 

1.1.8 Import-export offences involving children

Division 309—Drug offences involving children

Section

Offence

Max penalty

309.2

Supplying controlled drugs to children

15 years’ imprisonment or 3,000 penalty units, or both

309.3

Supplying marketable quantities of controlled drugs to children for trafficking

Life imprisonment or 7,500 penalty units, or both

309.4

Supplying controlled drugs to children for trafficking

25 years’ imprisonment, 5,000 penalty units, or both

309.7

Procuring children for trafficking marketable quantities of controlled drugs

Life imprisonment, 7,500 penalty units, or both

309.8

Procuring children for trafficking controlled drugs

25 years’ imprisonment, 5,000 penalty units, or both

309.10

Procuring children for pre-trafficking marketable quantities of controlled precursors

Life imprisonment, 7,500 penalty units or both

309.11

Procuring children for pre-trafficking controlled precursors

25 years’ imprisonment, or 5,000 penalty units or both

309.12

Procuring children for importing or exporting marketable quantities of border controlled drugs or border controlled plants

Life imprisonment or 7,500 penalty units or both 

309.13

Procuring children for importing or exporting border controlled drugs or border controlled plants 

25 years’ imprisonment or 5,000 penalty units or both

309.14

Procuring children for importing or exporting marketable quantities of border controlled precursors

Life imprisonment or 7,500 penalty units or both

309.15

Procuring children for importing or exporting border controlled precursors

25 years’ imprisonment or 5,000 penalty units or both

 

1.2 Types and quantities of serious drugs and precursors

The following definitions and quantities are found in Division 301 of the Criminal Code (Cth). Definitions and quantities are generally determined by regulations and may be determined by executive determination.  

Division 301Serious drugs and precursors

Subdivision A—Serious drugs and precursors: definitions

Section

Defined term

301.1

Meaning of controlled drug

301.2

Meaning of controlled plant

301.3

Meaning of controlled precursor

301.4

Meaning of border controlled drug

301.5

Meaning of border controlled plant

301.6

Meaning of border controlled precursor

301.9

Meaning of drug analogue

Subdivision B—Serious drugs and precursors: commercial, marketable and trafficable quantities

301.10

Meaning of commercial quantity

301.11

Meaning of marketable quantity

301.12

Meaning of trafficable quantity

 

2. Assessing the Objective Seriousness

2.1 “Quantity-based penalty regime”

Australian courts have consistently held that the objective seriousness of different types of drugs and precursors are determined by a legislative ‘quantity-based penalty regime’. 1 This is contrasted with penalty regimes whereby drugs are graded according to a legislative or judicial perception of ‘harmfulness’.

The authority for this principle is Adams v The Queen [2008] HCA 15. In this sentencing appeal, the offender was sentenced for possessing prohibited imports (MDMA) contrary to s 233B of the Customs Act 1901 (Cth) (prior to the equivalent provisions being enacted in the Criminal Code (Cth)). Gleeson CJ, Hayne, Crennan and Kiefel JJ (Heydon J agreeing) explained the approach to assessing objective seriousness at [2]–[3], [10]:

The Customs Act adopted (and the Criminal Code (Cth) as amended since the relevant time) adopts a quantity-based penalty regime, fixing “trafficable” and “commercial” quantities of certain drugs, distinguishing between those drugs in setting such trafficable and commercial quantities, but otherwise making no distinction between them in terms of maximum penalties

 

This legislative approach, which recognises the financial rewards available from dealing in illicit drugs, thus differentiates between various narcotic substances in designating the trafficable and commercial quantities, but applies the same penalty regime to the quantities so designated. It may be contrasted with legislation in New Zealand and Canada, which grades drugs according to a legislative perception of their harmfulness, and prescribes penalties based on harmfulness rather than quantities…

[I]n fixing the trafficable and commercial quantities of heroin and MDMA respectively, and applying the same maximum penalties to the quantities so fixed, Parliament has made its own judgment as to an appropriate penal response to involvement in the trade in illicit drugs. The idea that sentencing judges, in the application of that quantity-based system, should apply a judicially constructed harm-based gradation of penalties (quite apart from the difficulty of establishing a suitable factual foundation for such an approach) cuts across the legislative scheme… [Emphasis added; citations omitted]

The Western Australian Court of Appeal applied the above passage in the drug importation appeal of Oliveira v The Queen [2020] WASCA 32. The Court of Appeal held at it was a material error where the sentencing judge referred to a ‘hierarchy of drugs’ and classified cocaine, heroin and methamphetamine to be at ‘the top end of the scale of seriousness in relation to drugs’ at [41]. This was considered inconsistent with Parliament’s intention in respect of Div 307 of the Criminal Code (Cth) and the High Court’s interpretation of such regimes in Adams v The Queen [2008] HCA 15. 2

See further: 2.3.3: Quantity of drug.

2.2 Assessing different types of serious drug offences

2.2.1 Possession offences

There is no necessary distinction between importation offences (Division 307, Subdivision A) and possession of drugs unlawfully imported or suspected of being unlawfully imported (Division 307, Subdivision B – C): Adegoke v The Queen [2013] NSWCCA 193, [43]. 3

2.2.3 Inchoate offences

Offenders who attempt to possess imported drugs are not in a less serious category than offenders who successfully import drugs. In R v Nguyen; R v Pham [2010] NSWCCA 238, the Court of Criminal Appeal held at [72]:

(l) where an offender … is to be sentenced for an attempted possession offence, it should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, is relevant to determining the degree of moral culpability attached to the act of attempted possession itself, so that a sentencing judge should have regard to the offender’s involvement in the overall transaction for the purpose of determining the offender’s degree of involvement in a drug-smuggling enterprise;

(m) offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugs; [emphasis added; citations omitted]. 4 

Courts have also held that it is not of ‘great significance’ for an offender to be charged with aiding and abetting the importation rather than the principal offence of importation. For example in R v Kassir [2020] NSWCCA 88, Bathurst CJ ( Fullerton and R A Hulme JJ agreeing) held at [101].

It does not seem to me of great significance that the respondent was charged with aiding and abetting the importation, rather than the importation itself. In Chen v R [2018] NSWCCA 157 (‘Chen’), an appeal against the severity of a sentence on a charge of aiding and abetting the importation of a border controlled substance, Button J pointed out at [49] (Meagher JA and Schmidt J agreeing) that “[t]here is an obvious need to impose upon persons who involve themselves in the importation of very significant quantities of prohibited drugs sentences that will serve the purposes of denunciation, specific deterrence, and, perhaps most importantly, general deterrence”. [Emphasis added].

When assessing the moral culpability attaching to an offender charged with a conspiracy offence, both the individual actions of the offender and the overall criminality of the conspiracy will be relevant. See further: 2.3.1.1 Role of offender in conspiracy offences.  

2.3 Nature and circumstances of the offence

The high maximum penalties imposed by the legislature for serious federal drug offences serve as a yardstick for sentencing courts. 5

In Wong v The Queen [2001] HCA 64, Gaudron, Gummow and Hayne JJ (with whom Kirby J agreed) outlined the factors generally relevant to assessing the objective seriousness of drug importation cases and their relationship with Part IB of the Crimes Act 1914 (Cth). These factors are also applied in sentencing federal possession and trafficking offences. 6 The Court held at [64]:

[I]n general … the larger the importation, the higher the offender’s level of participation, the greater the offender’s knowledge, the greater the reward the offender hoped to receive, the heavier the punishment that would ordinarily be exacted.  It is by these kinds of criteria that comparisons are to be made between examples of the offence and the sentences that are or were imposed. Our purpose in mentioning these matters is, however, not now to attempt an exhaustive statement of relevant factors, or to attempt some formulation of applicable principles.  What is important for present purposes is that it is all of the matters mentioned, and others, including those mentioned in Pt 1B of the Commonwealth Crimes Act, which should be taken into account in formulating applicable principles. 7 [Emphasis added].

In R v Nguyen; R v Pham [2010] NSWCCA 238, Johnson J (MacFarlan JA and RA Hulme J agreeing) undertook an analysis of the principles applicable in sentencing drug importation offences and offences of attempting to possess a quantity of an unlawfully imported border controlled drug. These principles have subsequently been applied in federal possession and trafficking offences. 8 The Court held at [70]‑[72]:

Some general sentencing principles concerning serious drug offences

 

The importation and possession offences now contained in the Criminal Code Act 1995 (Cth) provide for a structured sentencing regime by reference to the quantity of drug imported. Section 307 adopts “a quantity-based penalty regime” by fixing commercial and marketable quantities of certain drugs, distinguishing between those drugs in setting such quantities, but otherwise making no distinction between them in terms of maximum penalties: Adams v The Queen [2008] HCA 15; 234 CLR 143 at [2].

 

Before turning to the individual sentences imposed in this case, it is appropriate to refer to principles applicable to sentencing for drug importation offences. I include in this offences of attempting to possess a quantity of an unlawfully imported border controlled drug contrary to s 307 Criminal Code (Cth).

 

The following general propositions emerge from the authorities:

(a) the criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importationR v Lee at [27];

 

(b) problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the CourtThe Queen v Olbrich [1999] HCA 54; 199 CLR 270 at 279 [19]; R v Lee at [25];

 

(c) it is the criminality involved in the importation which must be identified – the fact that another person may be characterised as the “mastermind” does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility: R v Lee at [26];

 

(d) although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs importedWong v The Queen; Leung v The Queen at 607-608 [64]; R v Lee at [23]-[24];

 

(e) the statements by the High Court in Wong v The Queen; Leung v The Queen do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type; in many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similarR v Nguyen [2005] NSWCCA 362; 157 A Crim R 80 at 102 [110]; Sukkar v The Queen (No. 2) [2008] WASCA 2; 178 A Crim R 433 at 447-448 [46];

 

(f) as a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profitR v Kaldor [2004] NSWCCA 425; 150 A Crim R 271 at 297 [104]; R v Lee at [32];

 

(g) the difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every caseWong v the Queen; Leung v The Queen at 607-608 [64];

 

(h) the sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishmentR v Chen and Ors [2002] NSWCCA 174; 130 A Crim R 300 at 382-383 [286]; R v Stanbouli [2003] NSWCCA 355; 141 A Crim R 531 at 552-553 [114];

 

(i) involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served: R v Pang [1999] NSWCCA 4; 105 A Crim R 474 at 476 [6];

 

(j) the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentenceR v Barrientos [1999] NSWCCA 1 at [52]-[57]; R v Paliwala [2005] NSWCCA 221; 153 A Crim R 451 at 456-457 [20]- [25]; R v Lee at [14]; good character is not an unusual characteristic of persons involved in drug importationOkafor v R [2007] NSWCCA 147 at [47]; Onuorah v R [2009] NSWCCA 238; 234 FLR 377 at [49];

 

(k) where offenders are not young … the immaturity of youth cannot be claimed as a factor bearing upon their transgressionsTyler v R; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458 at 474 [98];

 

(l) where an offender … is to be sentenced for an attempted possession offence, it should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, is relevant to determining the degree of moral culpability attached to the act of attempted possession itself, so that a sentencing Judge should have regard to the offender’s involvement in the overall transaction for the purpose of determining the offender’s degree of involvement in a drug-smuggling enterpriseEl-Ghourani v R [2009] NSWCCA 140; 195 A Crim R 208 at 217 [33]- [37];

 

(m) offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugsR v Ferrer-Esis(1991) 55 A Crim R 231 at 230…

 

[Emphasis added].

In Western Australia, courts sentencing for serious federal drug offences generally cite R v Ng [2012] WASCA 180, [34] per Buss JA. The principles espoused there are consistent with those stated in R v Nguyen; R Pham [2010] NSWCCA 238. In R v Ng [2012] WASCA 180 Buss JA held at [34]:  

The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender’s participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant. All of these propositions are well-established by the case law. 9

 

2.3.1 Role and involvement of offender

The role of the offender, the position of the offender in the drug importing or trafficking hierarchy, and the nature and extent of the offender’s involvement are relevant to assessing the offender’s moral culpability in committing the offence. This is important given the wide definition of ‘import’ in s 300.2 of the Criminal Code (Cth), which includes ‘bring the substance into Australia’ and ‘deal with the substance in connection with its importation’, and can cover a wide range of offending conduct.

However, courts have made clear that any formal characterisation of the offender’s role should not obscure the actual conduct they engaged in. In R v Olbrich [1999] HCA 54, Gleeson CJ, Gaudron, Hayne and Callinan JJ explained the principles relevant to assessing the role of the offender at [19]–[20]:

The distinction between “couriers” and “principals”

Sometimes, when drugs are imported into this country, more than one person connected with the importation of those drugs (or subsequent dealings with them) is prosecuted. … One may be charged with importing the drugs; others may be charged with conspiracy to import prohibited imports, or being knowingly concerned in the importation of such imports. If several of those persons are convicted of, or plead guilty to, the offences with which they are charged, it will, of course, be necessary to identify any feature that should lead to imposing a different sentence on one from that imposed on another. In that context, a distinction between “couriers” and “principals” may prove a useful shorthand description of different kinds of participation in a single enterprise. And it may be that in the circumstances of a particular case, different levels of culpability might be identified by adopting those terms. But this was not such a case. Further, it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a “courier” or a “principal” must not obscure the assessment of what the offender did.

There are, of course, cases in which only one offender is prosecuted but it is clear that the importation is part of a business venture that is organised hierarchically. In such a case a distinction between courier and principal might be useful to indicate where an offender fitted into the hierarchy of the organisation. And that, in turn, might assist in identifying the nature of that offender’s criminality.

[Emphasis added; citations omitted]. 10

This passage was applied in Kuo v The Queen [2018] NSWCCA 270 at [118]. The Court (Hoeben CJ, Davies and Hamill JJ) further stated at [118]:

[A] sentencing court … is better to focus on what a drug offender actually did than to attempt to make findings as to their relative roles in a hierarchy or the precise position within a hierarchy. Because drug syndicates do not operate transparently, the “rank” of a drug offender within the criminal organisation may be more a matter of speculation than a process of rational drawing of inferences.

The following are examples of how sentencing and appellate courts have characterised the conduct and involvement of offenders, when sentencing for serious federal drug offences:

  • In Barbaro v The Queen [2014] HCA 2, the first offender, Barbaro, was sentenced to life imprisonment with a 30 year non-parole period for conspiring to traffic a commercial quantity MDMA, trafficking a commercial quantity of MDMA and attempting to possess a commercial quantity of cocaine. His conduct was characterised as ‘at the apex of that criminality – the very top of the tree in this country … [he] took on debt and gave the orders …the money trail involved was sophisticated and bespoke a very professional worldwide organised criminal group’: upheld on appeal at [44].
  • In R v Nguyen; R v Pham [2010] NSWCCA 238, the first offender, Mr Nguyen, was resentenced to 16 years’ imprisonment for importing a commercial quantity of cocaine, and 16 years’ imprisonment (2 years cumulative on the first sentence) for importing a commercial quantity of methamphetamine with a non-parole period of 12 years. The Court of Appeal agreed, at [77], that the offender had ‘a responsible managerial role at the Australian end … not a transient or menial role. He exercised a range of responsible functions … including the making of administrative and physical arrangements’. The second offender, Ms Pham, was resentenced to 15 years’ imprisonment with a non-parole period of 10 years for attempting to possess a commercial quantity of unlawfully imported cocaine. She was described at [86] as playing ‘a critical and extensive role in securing, extracting and removing the drugs after their importation in Australia … [she] at different times, gave instructions to Mr Nguyen with respect to activities’.
  • In Olivares v The Queen [2021] NSWCCA 126, the offender was resentenced to a total sentence of 11 years and 6 months’ imprisonment with a 6 year and 11 month non-parole period for trafficking a commercial quantity of methamphetamine and dealing with the proceeds of crime offence. On resentence, the Court of Criminal Appeal adopted the sentencing judge’s findings that the offender, at [32], ‘was not at the apex of the syndicate but was a necessary part of the syndicate and was instrumental in an attempt to ultimately achieve the ends of that syndicate’. The offending was considered to have a high objective seriousness at [33].
  • In DPP (Cth) v Masange [2017] VSCA 204, the offender, Masange, was resentenced on appeal to 11 years’ imprisonment with a non-parole period of 7 years for importing a commercial quantity of border controlled drugs and a possession offence. The importation charge was a ‘rolled up charge’ of 10 separate importations constituting methamphetamine and cocaine. The offender’s role was one of ‘high responsibility … important … critically connected to the importations and funding of the importation’ at [99].
  • In R v Maraivalu [2021] NSWDC 237, the offender was sentenced to 8 years and 9 months’ imprisonment with a non-parole period of 4 years and 6 months for attempting to possess a commercial quantity of methylamphetamine. The offender performed ‘a limited but important role in acting as the authorised agent to collect the package, in taking delivery of it, and in taking it for storage at his home … [the sentencing judge was] not able to determine the entirety of the offender’s role, what he did involved something more than being a mere courier’ at [30]–[31].
  • In Martellotta v The Queen [2021] NSWCCA 168, the offender was sentenced to 6 years’ imprisonment with a 4 year non-parole period for attempting to possess unlawfully import cocaine. In dismissing the appeal and upholding the original sentence, the Court affirmed the sentencing judge’s findings at [23] the offender was ‘more than a mere warehouseman … but it was a largely unsophisticated operation’. The sentencing judge accepted the offender’s role was proactive with some meaningful involvement, but ‘he was acting largely at the direction of others’ at [22].
  • In DPP v Le [2021] VCC 582, the first offender was convicted of conspiring to import a commercial quantity of cocaine and trafficking in a marketable quantity of cocaine and was sentenced to 15 years and 6 months’ imprisonment with a non-parole period of 10 years. The sentencing judge accepted the offender was not ‘the architect or designer of the importation or distribution enterprise, rather [he] acted at the direction of others … even accepting that, [he was] critical to the plan and provided an important link to the business in Melbourne’ as a highly trusted participant at [16].
  • In DPP v Ngo [2021] VCC 466, the offender was sentenced to 13 years and 9 months’ imprisonment with a 9 year and 9 month non-parole period for one count of importing a commercial quantity of heroin, one count trafficking in a commercial quantity of heroin and one count trafficking in a commercial quantity of methamphetamine. In assessing the role of the offender, Cahill J found the offender ‘played an important role in the importation and trafficking of large quantities of heroin and methamphetamine … [he was] a person of significant standing in the Melbourne-based arm of the syndicate which imported large quantities of heroin into Australia’ and his role was that of a ‘freelancer’ where he acted as a broker between the seller and buyer in the heroin importation and trafficking business at [101].
  • In Bae v The Queen [2020] NSWCCA 35, the offender was sentenced for three counts of aiding and abetting the importation of commercial quantities of border controlled drugs (being cocaine and methamphetamine) and one count of aiding and abetting the importation of a marketable quantity of heroin. On appeal, the offender was resentenced to a total of 18 years and 6 months’ imprisonment, with a non-parole period of 11 years. The Court of Appeal upheld the sentencing judge’s findings that the offender played ‘a very important role in these importations of border controlled drugs into Australia. While he was not the overall principal of this operation, he was the person trusted to coordinate the arrival and receipt of these drugs in Sydney. His part in the operation required a consideration degree of planning and preparation…’ at [37]

2.3.1.1 Role of offender in conspiracy offences 

In the case of DPP (Cth) v Estrada [2015] VSCA 22, three offenders were charged with conspiring to manufacture a commercial quantity of a controlled drug, namely methamphetamine, for a commercial purpose. The offenders were originally sentenced to five years’ imprisonment with a non-parole period of 3 years. The Crown appealed on the basis of manifest inadequacy. The appeal was upheld and the offenders were resentenced to 8 years’ imprisonment with a non-parole period of 5 years. The Court of Appeal found the offenders’ moral culpability was high and they ‘chose to significantly assist a large drug conspiracy for financial benefit’ at [50].

Priest, Beach JJA and King AJA explained the correct approach for assessing the involvement of individual offenders in conspiracy offences at [45]–[46]:

[I]n our opinion it remained necessary for the sentencing judge — as best he was able — to assess the role of the respondents in the enterprise, so long as he did not lose sight of the overall scope of the conspiracy and its objective criminality. Such an assessment was necessary to determine, so far as the judge was capable of so doing, the respondents’ level of culpability. In Tyler , Simpson J observed: 

 

“Identifying the ‘role’ of a participant by reference to his position in the organisational hierarchy is a very different proposition from isolating the precise physical acts that can be attributed to the particular offender, and selecting the punishment by reference solely to those isolated acts. It would be quite artificial, and contrary to the very concept of a conspiracy, to dissect with precision the physical acts of each of the conspirators, and to sentence that conspirator for those acts alone. That would be a negation of the complex inter-connection between the various participants, and the organisational nature of a conspiracy. It would represent too literal an application of the decisions that identify the ‘role’ of any participant as a relevant factor in the sentencing exercise. It would be to ignore the essential feature of the offence of conspiracy — the agreement to participate in an organised criminal activity. That is not to say that the physical acts of the offender whose sentence is under consideration are irrelevant. They are relevant, as one part of a complex tapestry … ”

 

In a similar vein, Redlich JA observed in Pham : 

 

[I]t will be useful in some circumstances to distinguish the positions occupied by offenders within a hierarchical criminal organization as a means of determining the offender’s level of culpability. For example a courier will generally attract a more lenient sentence than a principal within a criminal drug hierarchy. The characterization of an offender’s position may not always illuminate and may sometimes obscure the actual level of criminality of the offender assessed by reference to his conduct. Where the evidence establishes the acts performed by the offender and their position within the criminal organization, the offender’s criminality is to be assessed by a consideration of both the actions of the offender and the role he occupies within the organization.”

 

[Emphasis added; citations omitted]. 11

2.3.2 Scale and sophistication of operation 

The scale and sophistication of the criminal enterprise is relevant to assessing the objective seriousness of drug offending. For example, Beach and Kaye JJA (Redlich JA agreeing) held in Lieu v The Queen [2016] VSCA 277 at [41]:

[T]he determination of the seriousness of the offending is informed by a range of factors, including the role of the offender, the position of the offender in the drug trafficking (or importing) hierarchy, the nature and extent of the offender’s involvement in the enterprise, the sophistication of the enterprise, and the amount of drugs involved, or intended to be involved, in the enterprise… [Emphasis added]. 

The following are examples of how sentencing and appellate courts have characterised the sophistication of offending conduct in Commonwealth drug offences:

  • In DPP v Ngo [2021] VCC 466, the Court held the offending conduct was of a significant degree of sophistication and coordination where the offender used a phone subscribed in a false name and engaged in encrypted communications with customers.
  • In Lu v The Queen [2021] NSWCCA 68, the offenders were sentenced for attempting to possess a commercial quantity of unlawfully imported methamphetamine. The sentencing judge found there were indicators of naivety in the offending conduct where a vehicle and storage unit were purchased in the co-offender’s name and ‘neither offender appears to have taken any particular managerial role or exercised any overarching judgement and/or initiative’: affirmed at [43] on appeal.
  • In R v AA [2021] NSWDC 112, the sentencing judge accepted that aspects of the offending behaviour were unsophisticated in that the offender used his own residential address, name and bank accounts when ordering an unlawful precursor over the Dark Web.
  • In R v Baker (No 3) [2019] ACTSC 365, the offender was sentenced for attempting to import a commercial quantity of methylone. The sentencing judge found the offending conduct had ‘a degree of sophistication and planning’ in that the offender provided instructions to another individual to facilitate the transaction and source a computer for the offender, and the offender obtained bitcoin in an attempt to purchase the precursor.

2.3.3 Quantity of drug

The quantity of the drug or precursor in relation to the legislative weight categories is relevant to assessing the objective seriousness of the offence and the extent of the offender’s moral culpability. See further: 2.1 ‘Quantity-based penalty regime’.

Courts have consistently held that the quantity of the drug or precursor the subject of the offence is not to be treated as the most important sentencing factor or the ‘controlling factor’: R v Pham [2015] HCA 39, [44] (per Bell and Gageler JJ). In the case of Wong v The Queen [2001] HCA 64, Gaudron, Gummow and Hayne JJ held at [67]–[68], [70]:

The weight of the narcotic which is imported is given statutory significance for sentencing purposes by the Parliament’s distinguishing between the maximum sentence that may be imposed for offences involving trafficable and commercial quantities.  No doubt, within both of those categories, the particular amount of narcotic involved can have significance in fixing the sentence that is to be imposed on an offender. …

It must be recognised that not all offenders will know or even suspect how much pure narcotic is to be imported.  Apart from the extent to which the pure narcotic is diluted or cut (a matter about which those involved in the importation may know little or nothing), it is by no means uncommon for many of those involved in an importation of narcotics to know nothing at all about what they are dealing with, except that it is a quantity of narcotic.

These are reasons enough for concluding that the Court of Criminal Appeal was in error in attributing chief importance to the weight of narcotic in fixing sentences for the offence.  The error of the Court is, however, more deep seated than the factual difficulties to which reference has been made.  The selection of weight of narcotic as the chief factor to be taken into account in fixing a sentence represents a departure from fundamental principle. 12

[Emphasis added; citations omitted].

The above passage was affirmed in R v Pham [2015] HCA 39 at [36]. French CJ, Keane and Nettle JJ confirmed that the quantity-based approach expounded in Adams v The Queen [2008] HCA 15 did not displace the ratio in Wong v The Queen [2001] HCA 64 that sentencing courts should not treat the weight of the drug or precursor as the chief factor in determining sentence.

2.3.4 Whether offender received profit

Courts have held that, as a matter of common sense ‘it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit’: R v Nguyen; R v Pham [2010] NSWCCA 238, [72]. 13 The objective seriousness of an offence may be greater where the offence is committed for financial reward: Kwan v The Queen; Kwok v The Queen [2020] NSWCCA 313, [44] and Kuo v The Queen [2018] NSWCCA 270, [87] citing DPP (Cth) v De La Rosa [2010] NSWCCA 194, [261].

Maxwell P, Weinberg and Priest JJA explained the rationale behind this principle in DPP (Cth) v Maxwell [2013] VSCA 50 at [21], [29], [34]:

In addition to the weight of the drugs imported (or trafficked), the financial reward received or anticipated by the offender is relevant to the objective gravity of the offence. Other things being equal, an importation which is undertaken because it will bring — or is expected to bring — a large financial reward to the offender will be more serious than one where the expected reward is small or nonexistent. The underlying proposition is that the greater the (anticipated) reward of criminal conduct such as this, which inflicts such harm on the community, the higher the offender’s moral culpability.

Ordinarily, of course, it is unnecessary for the prosecution to prove — and it may in any case be difficult or impossible to prove — what the anticipated return for the offender was. But, on ordinary principles, it is open to a person convicted of involvement in a drug importation to seek to mitigate his/her culpability by establishing on the balance of probabilities that he/she stood to derive little or no benefit personally.

Sentencing judges are also justified in treating the scale of the anticipated reward as relevant to considerations of deterrence, both specific and general. As has often been said, the sentence to be imposed for a drug importation (or trafficking) offence must signal both to the offender, and to other would be offenders, that the potential financial rewards to be gained from such activities are outweighed by the risk of severe punishment. Obviously enough, the greater the anticipated reward, the more powerful the deterrent message must be. The converse is also true.

 

[Emphasis added; citations omitted]. 14

The Victorian Court of Appeal held in DPP (Cth) v Masange [2017] VSCA 204 at [139] that ‘the fact that the offender needs money to pay off a debt does not necessarily affect culpability’ and at [140], the fact that three quarters of the offender’s profit from the offending ‘went to his family and charity is not a significant mitigating factor. The more important fact is that he reaped a substantial financial reward from this offending, which elevates the importance of general deterrence’. Similarly in DPP v Ngo [2021] VCC 466, the sentencing judge held the fact that the offender offended in part to obtain money to pay off gambling debts, did not moderate his moral culpability to any great degree (at [107]).

In the case of R v Ruzehaji [2018] SASCFC 139, the offender sought to appeal his sentence on the basis that the evidence was not capable of establishing the offender ‘stood to gain a substantial sum of money for his involvement in the crime’ (at[25]). On dismissing the appeal, Peek J, (Parker J and Chivell AJ) agreeing, held at [26], [28]:

[T]his comment by his Honour was no more than a permissible statement of the obvious. As a matter of human behaviour, a person who is prepared to take the risk of the large prison sentence that is well known to follow conviction of trafficking in such large amounts and values of drugs as involved here will only do so for an appropriately substantial profit or reward.

Is a person who is to be taken to have committed a trafficking crime ‘for profit’ to be sentenced on the basis that the extent of that profit may not be thought of as greater than the lowest coin in the realm? I think not. I consider that the correct position is that if the value of the particular drug transaction is low, then it will be reasonable to assume that only a relatively low profit is envisaged from that particular transaction. However, if one is to address trafficking in drugs worth a total street value of between $2,717,860 and $2,922,500, it certainly does not constitute appellable error to find (in the absence of evidence from the accused) that a “substantial” profit was envisaged. I conclude that particular 1.2 is not established.

[Emphasis added].

However, in R v AA [2021] NSWDC 112, the offender pleaded guilty to importing a commercial quantity of the border controlled drug, Gammabutyrolactone (GBL). In assessing the objective seriousness of the offending, Weinstein DCJ noted the low financial value of GBL, consistent with other cases sentencing for importation of the drug. At [81], [82], [84]:

The value of the drug imported is believed to be approximately $6200, with a maximum price of $259 per litre, which is a relatively modest amount in comparison to the value of commercial quantities of other illicit substances and bearing in mind the maximum penalty. In DPP (Cth) v Maxwell [2013] VSCA 50, following a review of sentencing practices for offences involving the importation of GBL, the court said:

In our opinion, the consistently lower sentences imposed on importers of GBL can be seen to be reasonably justified by the enormous reward differential to which we have referred. Indeed, the very consistency of the sentencing practice can be seen to reflect the fact that sentencing judges view a drug offender’s culpability as materially reduced in cases such as this, where the likely financial reward is relatively small. Sentencing judges are also justified in treating the scale of the anticipated reward as relevant to considerations of deterrence, both specific and general.

That remark was adopted by Hamill J in Petkos v R [2020] NSWCCA 55, when his Honour said that at the heart of the decision in Maxwell was the uncontroversial proposition that the financial reward received or anticipated by the offender is relevant to the objective gravity of the offence. In this particular case, it is not disputed that bearing in mind the cost of the GBL ($6,200), the offender’s reward would have been low.

In my opinion, with respect to the Commonwealth offending, taking into account the legislative yardstick of the maximum penalty, the role of the offender, the fact that the offending occurred whilst the offender was on a bond, that the financial reward was small, that there was no evidence of lavish lifestyle and that the offending was relatively unsophisticated, the objective gravity lies somewhere between the low and mid-range of objective seriousness.

[Emphasis added].

See also: 3.1 Deterrence and 4.3 Where offending motivated by offender’s own drug addiction.

2.3.5 Knowledge of offender

Where an offender has actual knowledge of the quantity of drugs involved in the offending, this may increase the moral culpability of the offender: R v Nguyen; R v Pham [2010] NSWCCA 238, [72] at (d). 15 Conversely, where an offender is reckless as to the amount or type of drugs, the offending conduct will carry less objective seriousness: R v Maraivalu [2021] NSWDC 237, [34].  

 

In Wong v The Queen [2001] HCA 64, Gaudron, Gummow and Hayne JJ explained at [68]–[69] that the quantity of the drug the subject of the offence should not be the chief factor in the sentencing exercise, as not all offenders will have knowledge of the type of quantity of the drug:  

It must be recognised that not all offenders will know or even suspect how much pure narcotic is to be imported.  Apart from the extent to which the pure narcotic is diluted or cut (a matter about which those involved in the importation may know little or nothing), it is by no means uncommon for many of those involved in an importation of narcotics to know nothing at all about what they are dealing with, except that it is a quantity of narcotic.

 

It follows that there will be many cases in which a sentencing judge will be more concerned to identify the level of the offender’s criminality by looking to the state of the offender’s knowledge about the importation in which he or she was involved.  Often enough, information about the kind and size of reward given or promised to the offender for involvement in the importation will be seen as important in fixing a sentence and distinguishing between offenders.

2.3.6 Whether offender breached position of trust

Where an offender has breached a position of trust in the course of the offending, this may aggravate the offence. For example in R v Nikolovska [2010] NSWCCA 169, the offender utilised her employment as a Qantas employee and security clearance to commit a drug importation offence. 16 On the Crown appeal against sentence, Kirby J (Beazley JA and Johnson J agreeing) described the role of the offender in the importation and the relevance of her breach of trust, at [51]:

[M]s Nikolovska’s contribution was significant and strategic. It was not confined to one day. It extended over several months. Her breach of trust was fundamental to her criminality. In my view it lifted the matter well above the criminality of someone involved in a joint criminal enterprise at a low level. She had a security clearance. She was trusted. She knew the system. That knowledge and that trust was valuable to an importer. Ms Nikolovska traded that advantage for money. [Emphasis added]. 17

In R v Kassir [2020] NSWCCA 88, the offender was resentenced to 10 years’ imprisonment with a 6 year and 6 month non-parole period for aiding and abetting the importation of a commercial quantity of methamphetamine. The offender was an employee at the delivery company, DHL. On resentence, the Court held at [102]–[103]:

The parties did not dispute the fact that the offence fell within the mid-range of objective seriousness of an offence of this nature. Although it is true that the respondent did not use his position to either directly interfere with, or be involved in the clearance or delivery of the importation, he was instrumental in setting up the structure by which the importation was to take place. He did so in the knowledge that the structure was going to be used to facilitate the importation of a substantial quantity of border controlled drugs. His activities included obtaining the template LOA [Letter of Authority], completing it with the false information concerning Holly Bouveng and her business and giving an email address to which the LOA was sent and from which it was subsequently returned. He directly involved himself in the first two consignments, rejected the suggestion that after he left DHL another company might clear future consignments and took steps, albeit unsuccessful, to contact DHL in respect of the June consignment.

 

It may be as counsel for the respondent submitted that a person without any internal knowledge of DHL’s processes and personnel could have done what the respondent did in the present case. Nevertheless, the fact remains that the respondent used his position with and knowledge of DHL to facilitate the shipment.

 

[Emphasis added].

2.3.7 Whether drugs disseminated into community

Courts have held that where the drugs do reach the community, this may aggravate the offence. However, where the drugs have been intercepted, this will not necessarily mitigate the offence.

In the case of R v Ibrahim [2020] NSWDC 254, there was never any risk that the large quantities of drugs would be disseminated in Australia, as an undercover police operation had seized the drugs prior to their arrival. The sentencing judge noted at [194]:

The weight to be given to the fact that the drugs were not disseminated into the community will vary from case to case. Here, a primary consideration remains that the offender intended that substantial quantities of drugs reach Australia to be disseminated into the community and it was through no act of his that no such risk arose. The dissemination of drugs into the community constitutes a significant aggravating factor. However, the absence of an aggravating factor does not thereby constitute a mitigating factor. The fact that the drugs were not actually disseminated into the community as a result of the police operation is not a factor that reduces the moral culpability of the offender: Cam Huynh Giang v R [2017] NSWCCA 25. [Emphasis added]

Similarly in R v Derley; R v Piras [2020] NSWDC 28, the drugs were intercepted prior to reaching the offenders. The sentencing judge held at [46]:

The matters which I must take into account when passing sentence for an offence against the law of the Commonwealth are set out in Crimes Act 1914 section 16A(2). Under pars (d), (e) and (ea), I am required to consider the personal circumstances of any victim of the crime, any injury loss or damage resulting from the crime and the contents of any victim impact statement. Here, the attempt to import illegal drugs failed, and was bound to fail because of the involvement of the police ab initio. There is no victim, no injury, no loss and no damage. The offenders are to be punished for the actions which they took to attempt to import the drugs. This does not mitigate their crime, rather it means that their crime is not aggravated by there being victims, damage or loss. [Emphasis added].

3. General Sentencing Principles

3.1 Deterrence

Authorities have consistently held that general deterrence is a paramount sentencing consideration in drug offending, due to the difficulty in detecting such crimes: R v Nguyen; R v Pham [2010] NSWCCA 238, [72] at (g).

In Wong v The Queen [2001] HCA 64, the High Court held at [64]:

In relation to the offence of being knowingly concerned in the importation of heroin, like features can be identified as bearing upon the formulation of applicable principles. Those features include the difficulty of detecting the offence and the great social consequences that follow from its commission. The former suggests that deterrence is to be given chief weight in the sentencing task; the latter, that stern punishment will be warranted in almost every case… 18 [Emphasis added].

Courts have also noted the importance of general deterrence where serious offences are committed in the context of a commercial enterprise. For example, in R v Perrier (No 2) [1991] 1 VR 717, McGarvie J explained:

There is reason to doubt whether, with some crimes and some types of persons, sentences in reality have any general deterrent effect. There is no reason to doubt that substantial sentences do deter people who might otherwise be inclined to engage as principals in the commercial importation of heroin. Those who run businesses, legitimate or illegitimate, are constantly guided in deciding whether to take particular commercial courses by their assessments of the economic and other risks and costs involved. In deciding whether to run the risk of pursuing the high returns obtainable from the commercial importation of heroin, the nonaddict with the intelligence and ability to organise and operate such a business must count the potential cost. If the contingent cost includes that of forfeiting the whole or a large part of one’s remaining life to the prison system, clearly it will operate substantially to discourage selection of the heroin option. [Emphasis added].

However, general and specific deterrence may have a lesser role to play in cases where an offender has compelling subjective circumstances. For example, in R v Robson-Bolan [2021] NSWDC 48, the sentencing judge held at [49]:

Whilst I accept that general deterrence and denunciation are paramount in cases of this kind, I am persuaded that those considerations should be moderated in the circumstances of this offender. However, a very important sentencing consideration for offences of this kind is the protection of the community. So too, generally, is specific deterrence. However, specific deterrence has already been substantially achieved by the especially onerous conditions that the offender had already endured. I have referred to the relatively low level of objective seriousness for both offences. In the circumstances of this particular offender, given that he is relatively young, is a first time offender, has already endured a traumatic experience after a year’s custody and is patently in need of treatment for a range of matters, rehabilitation is a more elevated consideration in this case than it might be in other cases involving the same subject offending. That is not only for the offender’s benefit, but also for the community’s benefit in having him more effectively re-integrated after his period of incarceration.

[Emphasis added].

3.2 Punishment

Authorities have consistently held that ‘stern punishment’ is generally warranted in sentencing for serious drug offences, due to the harm inflicted on the community by such offending: R v Nguyen; R v Pham [2010] NSWCCA 238, [72] at (g)-(h).

In Wong v The Queen [2001] HCA 64, the High Court held at [64]:

In relation to the offence of being knowingly concerned in the importation of heroin, like features can be identified as bearing upon the formulation of applicable principles. Those features include the difficulty of detecting the offence and the great social consequences that follow from its commission. The former suggests that deterrence is to be given chief weight in the sentencing task; the latter, that stern punishment will be warranted in almost every case…. 19 [Emphasis added].

3.3 Recognition of harm 

Courts have recognised different types of harm to the community which may arise as a result of serious drug offences. 20 For example in R v El Jamal [2019] NSWDC 153, Haesler DCJ held at [113]:

It bears repeating that the importation of illicit drugs causes considerable harm not just to those who purchase and ingest such drugs but to the community in general. The illicit trade in drugs is one of the principal sources for crime in the community. It is not just the sale of drugs; it is the crimes that are committed by those who seek to obtain funds for drugs and the destruction to family life and personal life that illicit drug use causes.

Similarly, Burns J held in R v Baker (No 3) [2019] ACTSC 365 held at [59]:

It is hardly necessary for me to repeat what has been said so frequently by these courts concerning the individual misery inflicted by the drug trade, the lives lost or ruined and the immeasurable damage done to our community. It is in recognition of these facts that the Legislatures, both Commonwealth and ACT, have set the maximum penalties applicable for these offences…

Courts have held that the greater the quantity of drugs involved, the greater the potential for harm. 21

In R v Robson-Bolan [2021] NSWDC 48, it was submitted by the Crown that the Court could take into account the economic harm suffered by the community as a result of the resources needed to be utilised by law enforcement in detecting and investigating criminal activity at [15].

See further: 3.2 Punishment.

4. Factors which may mitigate sentence

Due to the primacy given to the principles of general deterrence and adequate punishment when sentencing for serious drug offences, courts have given less weight to factors which traditionally mitigate sentence: R v Nguyen; R v Pham [2010] NSWCCA 238, [72] at (j)-(k). 22 However, ‘although matters personal to an offender will almost always be a very limited consideration in sentencing for serious drug trafficking offences, they are not entirely irrelevant’: Sukkar v The Queen (No 2) [2008] WASCA 2, [21].

4.1 Guilty Plea

Sentencing courts must take into account whether the offender has pleaded guilty to the offence for which they are to be sentenced: s 16A(2)(g) Crimes Act 1914 (Cth).

The Court in Lieu v The Queen [2016] VSCA 277 explained the basis for discounts for guilty pleas in sentencing for federal drug offences at [56]:

[D]rug importation and drug trafficking charges are notoriously difficult and expensive to prosecute. Contested trials on those charges can occupy the time of the courts, and of the law enforcement officers, for a considerable period, and can be a substantial burden on the community. It is for those reasons that it is important that sentences imposed in cases such as this, after a plea of guilty, are such as to reflect the value of those pleas as mitigating circumstances [Emphasis added]. 23

However, courts have considered that even in circumstances where a discount is to be applied due to the offender’s guilty plea, the highest maximum penalty may still be appropriate when imposing sentence. For example in DPP (Cth) v Barbaro [2012] VSCA 47, the first offender pleaded guilty to multiple drug trafficking charges and was sentenced to life-imprisonment. The sentencing judge held at [104]:

It is my view that despite your plea of guilty the maximum penalty must be imposed upon you Barbaro in light of the various factors to which I have earlier referred including, but not limited to, your role as the Australian principal, the quantity of the drug, the value of the drug, the sophistication of the arrangement, the true international nature of the conspiracy, your relevant prior history, the stage at which your plea was entered, the lack of real or true remorse for your offending together with the purely commercial motive for your involvement in the offending. 24

4.2 Co-operation

Courts generally apply discounts at sentencing where offenders have co-operated with authorities. For example, at resentence in Weber v The Queen [2020] NSWCCA 103, Bellew J (Simpson AJA and Rothman J agreeing) applied a 5 per cent discount for co-operation at [65]:

The nature and extent of the applicant’s co-operation with police has already been set out. In my view, naming others who were involved in the importation, one of whom had actually provided the quantity of drug which was the subject of the importation, was significant. Moreover, as counsel for the applicant pointed out, the information was provided spontaneously. There is no suggestion that in deciding to assist the police in that way, the applicant was motivated by a desire to secure a discount. Indeed, there is no indication that the applicant even knew that a discount may be available to him at some later stage [Emphasis added; citations omitted].

In R v AA [2021] NSWDC 112, the Court applied a 20% discount for past confidential assistance and 5 per cent discount for future assistance (at [99]-[102]). The particulars of the assistance were contained in two confidential affidavits, but was described as continuing ‘over a period of just under a year’ and being ‘truthful, reliable and timely’ (at [100]). 

In Olivares v The Queen [2021] NSWCCA 126, the Court of Criminal Appeal, in resentencing the offender for a trafficking offence contrary to s 302.2 of the Criminal Code (Cth), accepted that the appellant provided co-operation to police and was entitled to a 5 per cent discount. Such co-operation included informing the police there were packages of the drug in his bathroom ceiling upon his arrest, providing extensive information as to the circumstances of his involvement and the mechanics of the passing on of the drugs (at [55]).

In Cressel v The Queen [2021] NSWCCA 26 at resentence, the Court of Criminal Appeal applied a discount of 10 per cent for the offender’s cooperation with authorities (at [46]). Such assistance included the offender disclosing that another package of illicit drugs had been sent to Australia, enabling police to seize the package following its arrival (at [30]). 25

In some cases, sentences have been increased on Crown appeal for the offender’s failure to cooperate in giving evidence as a Crown witness at trial, in accordance with written undertakings, for which a discount for future cooperation was originally given. 26

See further: Co-operation.

4.3 Where offending motivated by offender’s own drug addiction

Where an offender’s motivation for offending is connected to their own drug addiction, courts may treat this as a mitigating, aggravating or neutral factor. For example, it may be taken into account to establish the offender has good prospects of rehabilitation, 27 that the offender’s need for specific deterrence is diminished 28 or as an explanation of the offender’s motivation for offending. 29

In R v AA [2021] NSWDC 112, the offender pleaded guilty to importing a commercial quantity of Gammabutyrolactone (GBL) contrary to s 307.1 of the Criminal Code (Cth) and four state drug offences. An offence of importing a trafficable quantity of GBL contrary to s 307.4 of the Criminal Code (Cth) was taken into account under s 16BA of the Crimes Act 1914 (Cth). The offender was sentenced to three years and 1 days imprisonment for the federal offence, taking into account a 50 per cent discount for cooperation and guilty plea. In considering the sentence, Weinstein DCJ accepted that the offender suffered material disadvantage in that he had a difficult upbringing as a Muslim gay man growing up in a strict religious, controlling and violent household, appeared to have untreated and undiagnosed mental health conditions, and developed a substantial drug addiction at [120]–[121], [125]. His Honour accepted these factors reduced his moral culpability and continued at [124]:

In my opinion, the factors set out in DPP v De La Rosa [2010] NSWCCA 194, are to some extent present here. In particular, I find that the state of the offender’s mental health (and his inter-realted [sic] drug addiction) likely contributed to, and is linked to the commission of the offences. In my opinion, whilst the offender’s moral culpability is somewhat reduced, it does not exculpate him. I accept that general deterrence has less weight on sentence.

4.4 Prior good character and age

An offender’s prior good character and age will have limited weight when sentencing for serious drug offences: R v Nguyen; R v Pham [2010] NSWCCA 238, [72] at (j)-(k). 30

In Hoang v The Queen [2018] VSCA 86, the offender was 20 years old at the time of offending, which included attempting to possess a commercial quantity of cocaine. In dismissing the appeal against sentence, the Court of Appeal considered the offender’s youth and prospects for rehabilitation were given appropriate recognition in the non-parole period, being 60 per cent of the head sentence (at [41]). 31

In DPP (Cth) v Barbaro [2012] VSC 47, the offender was sentenced to life imprisonment with a 30 year non-parole period. On dismissing the appeal against sentence, the Court of Appeal affirmed the sentencing judge’s reasoning at [53]–[54]:

Mr Barbaro was aged 50 at the time of sentence. His appeal submission was that, unless the non-parole period of 30 years was reduced, it was likely that he would die in gaol. It was said that the period fixed had “obliterate[d] any real hope for a meaningful life post-release”.

The relevant part of the sentencing reasons was in these terms:

“I need to ensure that the sentences imposed upon you are not crushing, and I have been urged to take into account your respective ages of 50 and 55 years. Whilst I will do that, I cannot impose an inappropriate and inadequate sentence because of your age, you will not be young or middle-aged men when released.” [Emphasis added] 32 

4.5 Offender’s mental condition

In some circumstances, sentencing courts have considered the offender’s moral culpability to be reduced where they are suffering from a mental condition. For example, in resentencing the offender in Nicolas v The Queen [2021] NSWCCA 89, the Court of Criminal Appeal noted at [77]–[78] the relationship between the offender’s diagnosed bipolar disorder and specific and general deterrence:

I accept Dr Nielssen’s diagnoses of the applicant of a bipolar disorder, an impulse control disorder and a pathological gambling disorder and his opinion, which I find to be qualified, that “[t]here appears to be a direct link” between the disorders and the applicant’s offending behaviour. I make a corresponding allowance in favour of the applicant as to his moral culpability and the weight to be given to the application of general deterrence in the sentence: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] (McClellan CJ at CL).

Specific deterrence is an appropriate consideration on sentence, in view of the applicant’s prior offences of knowingly taking part in the manufacture of a prohibited drug and attempting to take almost 2kg of cocaine from Argentina, being an offence that is similar in nature to the principal offence for which he is being re-sentenced. I would not significantly reduce the weight to be given to specific deterrence in spite of the applicant’s mental health disorders, in view of Dr Nielssen’s opinion as to their qualified degree of causal connection with his offending behaviour, his prior criminal history of serious re-offending involving drugs in spite of having served significant prison sentences for both, and his post-sentence disciplinary breaches involving the possession of a drug and gambling.

Similarly in Green (a pseudonym) v The Queen [2020] NSWCCA 358, the Court of Criminal Appeal affirmed the sentencing judge’s finding that the chronic and severe Adjustment Disorder with Mixed Anxiety and Depressed Mood ‘impacted significantly’ on the offender’s decision-making and judgement, and took into account that there ‘was a direct connection between the [offender’s] symptoms of depression and traumatic stress and the importation offence’ (at [41]). This was taken into account in mitigating the sentence (at [41]–[42]).

The factors in R v Nguyen; R v Pham [2010] NSWCCA 238, [72] may be tempered where the offender has an intellectual disability: Nguyen v The Queen [2020] NSWCCA 45, [49].

See further: Mental Condition.

5. Sentence Disposition

Section 17A of the Crimes Act 1914 (Cth) provides that a court shall not impose a sentence of imprisonment on a federal offender unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.

Generally, due to the primacy given to general deterrence and the need for adequate punishment, immediate custodial sentences are the most common sentence imposed for federal drug offences. However, in some cases, sentencing courts have imposed non-custodial sentences or custodial sentences to be served in the community. 33

For example, in R v Burtt [2018] SASCFC 5, the offender was found guilty by a jury of attempting to import a border controlled precursor contrary to s 307.13(1) of the Criminal Code (Cth) which has a maximum penalty of 7 years’ imprisonment or 1,400 penalty units or both. He was sentenced to imprisonment for 2 years and 9 months, to be released on a recognizance release order to be of good behaviour for 2 years and 9 months. The sentence was appealed by the Crown on the basis of manifest inadequacy. In refusing leave to appeal, the Full Court applied the state sentencing case of R v Filipponi [2016] SASCFC 148 and held at [82]-[85]:

While Filipponi dealt with a prosecution appeal against a sentence being served on home detention, the same principles apply when determining whether release on a recognizance order reveals an error in the exercise of the sentencing discretion. Attempting to import a substantial quantity of a border controlled precursor substance is clearly a serious drug offence. If the attempt had succeeded, the precursor substance would almost inevitably have been converted into a substantial quantity of amphetamine or methylamphetamine. The often terrible consequences caused by misuse of these highly addictive drugs is an issue constantly before the courts.

While the fact that the money sent overseas was supplied by others indicates that the respondent was not at the top level of the enterprise, she played a significant role and had co-opted others to assist her. Those matters suggest that an immediate custodial sentence was required in the absence of compelling contrary considerations.

Due to the delay in the matter coming to trial and the long period that the respondent spent on bail, she has had ample opportunity to rehabilitate herself. While that delay may substantially have been the product of the decision by the respondent to withdraw her initial guilty plea, she has used the time profitably. She has undergone psychological treatment and participated in group counselling. She has remained drug free for a considerable period and has also taken up a course of study that may enable her to assist others. The reports supplied by the DCS speak strongly in her favour to an extent that is rarely seen.

In view of the particular efforts made by the respondent to free herself from addiction and to generally rehabilitate herself, I am not persuaded that it was not within a reasonable exercise of the Judge’s discretion to order her immediate release on a recognizance order. I do not regard that conclusion as being inconsistent with the principle in Filipponi that persons who commit serious offences related to the drug trade, whether that be trafficking, importation or otherwise, should in most circumstances be subject to an immediate custodial sentence.

Similarly in R v Thomas [2019] NSWDC 364, the offender was sentenced to two years’ imprisonment to be served by way of Intensive Correction Order for the offence of aiding and abetting the attempted possession of unlawfully imported methamphetamine, contrary to s 307.5 of the Criminal Code (Cth). In determining sentence, the sentencing judge found the offender’s role was ‘considerably less than that of a courier’ and that she had only ‘peripheral involvement’. Further, there was no evidence she would obtain money or drugs, and the actions lacked sophistication. The offending was ‘at the very low end’ of the scale of objective seriousness (at [86]-[90]). In determining that a sentence less than full-time imprisonment was appropriate in the circumstances, the sentencing judge held at [103]-[104]:

Section 17A of the Crimes Act provides that a court shall not pass a sentence of imprisonment in respect of a federal offender, unless the Court having considered all available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case. It was urged upon me by the Crown that no sentence other than a term of full-time custody would be appropriate. I reject that submission, so far as it relates to a full-time custodial sentence, as in my opinion this is an extraordinary case.

I find that this is an atypical and exceptional case. In this matter, I am not satisfied that no sentence other than full-time custody is appropriate in all of the circumstances. Rather, I find that there is another sentence that is appropriate. In coming to that view, I note the s16A matters …

In DPP v Perre [2021] VCC 928, the offender pleaded guilty to possessing methamphetamine contrary to s 308.1 of the Criminal Code (Cth), and an additional count of possessing cannabis contrary to s 308.1, taken into account under s 16BA of the Crimes Act 1914 (Cth). It was accepted that both drugs were possessed for the offender’s personal use (at [1]). The offender was convicted and sentenced to pay a fine of $2,000.00. In determining the appropriate sentence, Trapnell J noted the offender had no previous convictions, had very good prospects of rehabilitation, had an excellent work history as an electrician, pleaded guilty at earliest opportunity, and noted there was a delay of three years and four months since the offender had originally been arrested for the offences: (at [17]-[18], [20], [23], [24], [26]-[28]). His Honour did not consider a community correction order appropriate (at [40]).

 

 

Notes:

  1. The quantity-based penalty regime has been affirmed  in the federal sentencing cases of eg: R v Yavuz (No 2) [2020] ACTSC 248, [28]; R v Pham [2015] HCA 39, [36]; Oliveira v The Queen [2020] WASCA 32, [34]; R v Nguyen; R v Pham [2010] NSWCCA 238, [70]; R v Faber [2020] SASCFC 49, [48]. See also R v Hill [2011] QCA 306 where Atkinson J held at [277] ‘it would be contrary to the legislative regime to look for an appropriate range of sentences by reference to the identity of the substance alone’.
  2. See further Kuo v The Queen [2018] NSWCCA 270 where the offender asserted on appeal that the sentencing judge failed to follow the guidance in Adams v The Queen [2008] HCA 15 at [82]. The Court of Appeal dismissed the ground of appeal holding his Honour was making no comparison but rather noted that the particular drug ‘produced very serious consequences’ and did not take it into account as a matter of aggravation at [89].
  3. Referring to R v Karan [2013] NSWCCA 53, [67].
  4. Applied in, eg, CDPP v Balagar [2021] VCC 427, [50]
  5. See, eg, Obiekwe v The Queen [2018] NSWCCA 55, [34] and R v Frias [2019] NSWDC 365,[57] applying Markarian v The Queen [2005] HCA 25, [30]–[31].
  6. See, eg, the trafficking case of Barbaro v The Queen [2014] HCA 2, [44].
  7. Affirmed in Barbaro v The Queen [2014] HCA 2, [44]; R v Pham [2015] HCA 39, [35].
  8. See, eg, Lieu v The Queen [2016] VSCA 277, [41] – [43] where the appellant was sentenced for trafficking a commercial quantity of border controlled drugs and conspiracy to import a commercial quantity of border controlled drugs; DPP v Le [2021] VCC 582, [49] where the first offender was sentenced for conspiring to import a commercial quantity of cocaine and trafficking a marketable quantity of cocaine and the second offender was sentenced for aiding and abetting trafficking in a border controlled drug; DPP v Ngo [2021] VCC 466, [100], where the offender was sentenced for importing a commercial quantity of heroin, trafficking a commercial quantity of heroin and trafficking a commercial quantity of methamphetamine; DPP v Tran [2020] VCC 1631, [52] where the offender was sentenced for trafficking a commercial quantity of heroin. The passage has also been applied in importation sentencing cases, eg, Nguyen v The Queen; Phommalysack v The Queen [2011] VSCA 32, [33]-[34]; DPP (Cth) v Masange [2017] VSCA 204, [139].
  9. For example, DGF v The Queen [2021] WASCA 4, [37]; Oliveira v The Queen [2020] WASCA 32, [58]; Kyuldzhiev v The Queen [2019] WASCA 192, [64]; Stipkovich v the Queen [2018] WASCA 63, [28].
  10. Affirmed in, eg, R v Pham [2015] HCA 39, [34] per French CJ, Keane and Nettle JJ. See also Kahler v The Queen [2021] NSWCCA 40, [64] per Bellew J in agreeing with Hoeben CJ at CL; Lieu v The Queen [2016] VSCA 277, [41]; R v Frias [2019] NSWDC 365, [71]; R v Nguyen; R v Pham [2010] NSWCCA 238, [72] at (b).
  11. Cited with approval in Lieu v The Queen [2016] VSCA 277, [42]. For other cases sentencing for conspiracies to import, see, eg, Walsh v The Queen (Cth) [2020] NSWCCA 182, [22] – [25]; R v Ibrahim [2020] NSWDC 254, [188]–[192].
  12. Affirmed in, eg, R v Pham [2015] HCA 39, [35] (per French CJ, Keane and Nettle JJ); Lieu v The Queen [2016] VSCA 277, [42]; Kuo v The Queen [2018] NSWCCA 270, [97]; R v Ostrowski; ex parte A-G (Cth) [2018] QCA 62. See also Barbaro v The Queen [2014] HCA 2 at [44] where the High Court affirmed the sentencing judge’s assessment that the offending fell into the ‘highest possible category of offending’ as the offender ‘sought to possess the largest amount of ecstasy ever seized in the country’.
  13. Applied in, eg, Obiekwe v The Queen [2018] NSWCCA 55, [38]–[41]. See also Green (a pseudonym) v The Queen [2020] NSWCCA 358, [32].
  14. Affirmed in DPP (Cth) v Masange [2017] VSCA 204, [156].
  15. Affirmed in, eg, Kwan v The Queen; Kwok v The Queen [2020] NSWCCA 313, [35].
  16. Considered in R v de Lima [2020] NSWDC 249, [44].
  17. On appeal, the sentence of 6 years’ imprisonment and 3 years and 9 month non-parole period was quashed, and the offender resentenced to 7 years and 6 months’ imprisonment with a non-parole period of 2 years and 9 months.
  18. Applied in DPP (Cth) v De La Rosa [2010] NSWCCA 194, [260]; Green (a pseudonym) v The Queen [2020] NSWCCA 358, [53]; Lieu v The Queen [2016] VSCA 277[43]; Walsh v The Queen (Cth) [2020] NSWCCA 182, [38]; R v Faber [2020] SASCFC 49, [22]; R v Burtt [2018] SASCFC 5, [61]. See also Gwardys v The Queen [2019] NSWCCA 62, [49]; Alpha v The Queen [2015] NSWCCA 225, [26]; Dunning v Tasmania [2018] TASCCA 21, [10]–[11].
  19. Applied in, eg, DPP (Cth) v De La Rosa [2010] NSWCCA 194, [260]; Green (a pseudonym) v The Queen [2020] NSWCCA 358, [53]; Lieu v The Queen [2016] VSCA 277, [43]. See also DPP v Le [2021] VCC 582, [50].
  20. For example, Sully J said that the importation and trafficking of heroin ‘is in a very real sense a declaration of war upon this community’: R v Cheung Wai Man & Ors (Supreme Court of New South Wales, 22 March 1991, unreported), cited in federal sentencing case: R v Riddell [2009] NSWCCA 96, [57].
  21. See, eg, R v Maraivalu [2021] NSWDC 237, [33] and Nicolas v The Queen [2021] NSWCCA 89, [72].
  22. For example in Nweke v The Queen [2020] NSWCCA 153, the Court of Criminal Appeal weighed up the offender’s compelling subjective circumstances and gravity of the offending at resentence at [129]–[130].
  23. Applied in DPP v Ngo [2021] VCC 466, [100].
  24. Affirmed on appeal in Barbaro v The Queen [2012] VSCA 288, [47]. Appeal against sentence dismissed in Barbaro v The Queen [2014] HCA 2.
  25. See also ZZ v The Queen [2019] NSWCCA 286, where on resentence the Court held the offender was entitled to a reduction on sentence in relation to her cooperation with law enforcement authorities in a 2017 police interview, even in circumstances where the value of her cooperation was not appreciated until after she was sentenced (at [30]).
  26. DPP (Cth) v Wang [2019] VSCA 250; R v MI [2018] NSWCCA 251.
  27. See, eg, R v Burtt [2018] SASCFC 5, [85] where the offender was sentenced (upheld on appeal) to 2 years 9 months’ imprisonment to be released on an 18 month recognizance release order, for attempting to import a precursor contrary to s 307.13 of the Criminal Code (Cth).
  28. See, eg, R v Robson-Bolan [2021] NSWDC 48, [26], [27], [49].
  29. See, eg, R v Ostrowski; ex parte Director of Public Prosecutions (Cth) [2018] QCA 62, [19], [24].
  30. For cases where an offender’s prior good character has been given limited weight, see eg: DPP (Cth) v Masange [2017] VSCA 204, [140]; Cressel v The Queen [2021] NSWCCA 26, [49]; R v Kassir [2020] NSWCC 88, [120]; Kyuldzhiev v The Queen [2019] WASCA 162, [36].
  31. See also R v Ostrowski; ex parte Director of Public Prosecutions (Cth) [2018] QCA 62, [25].
  32. Appeal against sentence dismissed in Barbaro v The Queen [2014] HCA 2.
  33. See further R v Evans (No 1) [2021] NFSC 2, where the offender was sentenced to a recognisance release order to be on good behaviour for five years and comply with a home detention order for offences contrary to ss 308.1 and 302.4 of the Criminal Code (Cth); DPP (Cth) v Ooi [2019] VCC 156, where the offender was sentenced to 3 years’ imprisonment to be released on recognizance release order after 2 years for importing a marketable quantity of heroin. But see R v Buttigieg [2020] SASCFC 38, where the offender was charged with importing marketable quantity of a border controlled drug and sentenced to 2 years, 11 months and 3 weeks’ imprisonment, and released on a recognizance release order to be of good behaviour for 2 years and 6 months. On appeal, the Full Court found the sentence was manifestly inadequate but noted it was an ‘unsatisfactory vehicle through which to maintain sentencing standards’ or the ‘proper application of sentencing principles’ for such offencesat [1] per Kourakis CJ.