R v JAMES RUSSELL [2018] NSWDC 517

District Court New South Wales

Medium Neutral Citation: R v JAMES RUSSELL [2018] NSWDC 517 Hearing dates: 19 November 2018 Date of orders: 19 November 2018 Decision date: 19 November 2018 Jurisdiction: Criminal Before: TUPMAN DCJ Decision: Non-Parole Period 3 years 6 months; Parole of 2 years 6 months; Overall term of imprisonment 6 years. Catchwords: CRIME — Drug offences — Commonwealth offences — Import commercial quantity of border — controlled drug — Cocaine — Committal for sentence — 25% discount — Pure weight of 1,447.8 grams — Offender acted as courier to transport cocaine from Thailand to Sydney — Offender citizen of United Kingdom — Living with wife in Thailand at time of offence — Offender aged 60 — No prior criminal record — Offending for financial gain — Was to be paid $20,000 — Acting as courier — Offender running profitable business with wife — Relatively low objective criminality — Genuine remorse — Wife still in Thailand — Family in United Kingdom. Legislation Cited: Crimes Act 1914, Pt 1B, s 16A Criminal Code 1995 s 307.2(1) Cases Cited: DPP v De La Rosa [2010] NSWCCA at 194. Category: Sentence Parties: Mr. James Ernest Russell

The Crown Representation: Crown: Ms Burr

F/W: Ms Johnson File Number(s): 2018/55993

Judgment 1. HER HONOUR: The offender is before the Court following his plea of guilty to one offence contrary to s 307.2(1) of the Criminal Code 1995. Specifically he pleads guilty to a charge that between 3pm on 18 February 2018 and 7am on 19 February 2018 at Mascot he imported the marketable quantity of the drug cocaine into Australia. 2. The relevant facts are that the offender is a citizen of the United Kingdom who, at the time of the offending, was living with his wife in Thailand. He left the International Airport in Bangkok on the afternoon of 18 February 2018 carrying some suitcases including a dark grey suitcase. He arrived at Sydney International Terminal on the morning of 19 February and completed an incoming passenger's card in which he answered "No" to the question "Are you bringing any prohibited goods such as illicit drugs into Australia?" 3. He was selected by customs officers for a search and they examined his suitcase. They found his suitcase to be abnormally heavy when emptied and noticed inconsistencies in the lining of the suitcase when it was X-rayed. A closer examination revealed a white powdery substance concealed in the lining which tested positive to a presumptive test for cocaine. 4. The substance was later removed from the lining and weighed and analysed. It had a gross weight of just over 2 kilos with a purity of just over 72%, which produces a pure weight of 1,447.8 grams of cocaine, so just less than one and a half kilos of that substance. The marketable quantity of cocaine is between 2 grams and 2 kilograms. 5. He was arrested and cautioned by the Australian Federal Police. He participated in records of interview. He made no admissions during those records of interview. He denied knowledge of the drugs or how they came to be located in his bag and at the time provided information and made denials that were consistent with what would have been a plea of not guilty to this offence. He clearly no longer maintains those answers to the police. 6. The matter was in the Local Court on two or three occasions whilst a brief was served. He was due to appear in the Local Court again in August 2018 but his legal representative contacted the Court advising that he had been instructed to plead guilty. The matter was brought before the Court in August, the plea of guilty was entered and he was committed to this Court for sentence. He has maintained his plea of guilty in this Court. 7. He comes to Court as a person with no criminal record either in Australia or in the United Kingdom, nor anywhere else, according to the evidence. 8. Sentences for Commonwealth offences must bear in mind the provisions of pt 1B of the Crimes Act 1914, and in particular must proceed in accordance with the specific provisions of s 16A of that Act. 9. The Court is required to consider the nature and circumstances of the offending so as to determine the objective criminality of the offence. This is clearly a serious offence. All drug importation offences are serious. The maximum penalty of 25 years provided by the legislature for offences pursuant to this section makes that clear. 10. The detection of drug importations is expensive in terms of human resources. Regrettably much of those substances which are imported are not discovered. This quantity of cocaine, particularly of that purity, would more probably than not have given rise to a considerable number of individual sales on the street. The Court has more than enough knowledge of this drug and the way in which it is distributed on the street to be aware that this drug with a purity of 72% is likely to have been cut further before it was sold individually onto the street. 11. Had this importation not been stopped there was a considerable financial benefit to be made by somebody, those along the way who would have distributed it, it would have potentially caused considerable harm to a large number of people, both those who take it and regrettably become addicted to it, and those who are also victims of drug addicts who go on to commit other offences and cause harm in the community. 12. It is for that reason that all drug importation offences are treated seriously and serious and lengthy penalties must apply. There must be a message of general deterrence sent for the sentences imposed in matters such as this. 13. The quantity of this drug is towards the top of the range for offences capable of being charged as importation of the marketable quantity of this drug but well below the sorts of quantities seen for offences of importing commercial quantities which have as their starting point 2 kilograms, and can go into hundreds, if not more than hundreds, of kilograms of drugs. 14. One important issue for the Court to determine in assessing the objective seriousness of the offending, and in particular the offender's moral culpability, is the role played by him. I accept that his role in this offence is properly categorised as a courier. The Crown accepts this. The Crown asserts rightly that nonetheless, even as a courier, he was in a trusted position vis-à-vis the person who provided it to him. That of course is so, but that must always be the case when looking at those who import drugs at the request of another, either by secreting it in luggage, or on their person, or in some other way. 15. The offender ultimately has told a psychologist, and confirmed in his evidence today, that he committed this offence for financial gain. He was, I accept, operating a bar in Thailand. He had moved to Thailand from the UK where he had met his wife and they were running a bar together. The economy of the UK suffered a downturn causing issues in relation to the value of the currency. The bar was not doing as well as it ought. He is now 60. He was dependant on retirement funds which he was not then able to access in the UK. He was offered this opportunity, I accept, from a person he has named as Michael, to undertake this task. I accept that he knew he would be importing a drug into Australia but he did not know the specific drug nor the specific quantity. 16. He was, I accept, provided the suitcase by Michael and he must have realised it was somewhat heavier than he might have expected a suitcase to be. He packed the suitcase himself. He arranged his own ticket, although the funds were paid for by Michael, and he arranged his own accommodation and proposed to pay for it in Sydney, expecting to be reimbursed when he returned to Thailand. 17. I accept the evidence he has given that he was to be paid $20,000 for undertaking this role. Therefore his purpose in committing the offence was for financial gain, sometimes characterised as greed not need. 18. Clearly enough he was sufficiently well trusted by Michael to transport almost one and a half kilos of pure cocaine to Sydney, but there is no evidence on which I could make a finding that he was in any other way involved in this drug trafficking hierarchy than agreeing to act as a courier bringing it to Sydney. 19. There is no evidence that he sourced it, was involved in sourcing it in Thailand, was going to be involved in any way in the distribution of it in Australia, or in fact, apart from handing over the suitcase in Australia, was going to be further involved in it at all. He was to obtain $20,000 from Michael when he returned to Thailand. 20. In those circumstances it seems to me that the evidence is only capable of a finding that he was acting as a courier. The objective criminality is therefore relatively low for an offence of importation, somewhat elevated by the fact that it is a quantity into the top of the range for the marketable quantity of cocaine. 21. I have been referred to the decision of the Court of Criminal Appeal in DPP v De La Rosa [2010] NSWCCA at 194. In that case McClellan CJ at CL set out some categories of drug importation offences which had similar sentences imposed and sought to distil some of the qualities of those sentences into various groupings. The Court is not bound to follow that categorisation or groupings in De La Rosa but they do form, with respect, a useful categorisation of drug importation offences where there are, regrettably, many similarities amongst them. 22. It is submitted on behalf of the offender that overall this case falls into what the then Chief Judge at Common Law referred to as the third group, and he set out at paras 222-223 of that decision the characteristics of that third group and the sentencing range which normally applied. Whilst I am not bound to follow that grouping, it seems to me that that submission is largely made good in the circumstances. Whether or not there is any point in the distinction between courier and mere courier it seems to me is a moot point. In this case the evidence is only that he was a courier, be it a mere courier or a courier, he was only a courier on the evidence before me. 23. As I have said he comes to court as a person now aged 60 with no prior criminal record. He had some financial difficulties which is why he committed this offence. I accept that the evidence indicated he is genuinely remorseful for having committed the offence. He has written a letter to the Court and obtained letters from friends, who speak of comments made to them about his remorse, and he has provided to the Court a psychological report in which he has said the same. 24. He is, it seems to me, now sanguine and resiled to the fact of his poor decision to take the risk to make $20,000 means that he will spend some time in gaol and has now perhaps reconciled to that and accepts that this will be his punishment. 25. There is some impact on his family but not, on my finding, to the extent that would reduce the appropriate penalty. His wife remains in Thailand, and he has had some contact with her by telephone, but because of time differences that is not always easy to achieve from the prison where he has been held. He is aware, and I accept, that she has had to employ someone else to assist with the running of the bar. She has some financial problems because he is no longer there. She is also providing care for a niece's one year old child. It would appear that she is not able to gain access to his bank accounts and so is dependent on family and friends for her financial well-being. This is a consequence of his offending and being in custody bail refused but it is not of the type that would amount to exceptional circumstances which would make it appropriate for the Court to reduce the sentence beyond that which is appropriate. 26. He has family in the UK but again has trouble remaining in contact with them because of time differences in the gaol. 27. He has not been able to undertake work in gaol as yet. He is at the moment an un-sentenced prisoner on remand. It may be, it seems to me, that there will be some work available once he is a sentenced prisoner and I accept he will undertake it if he can. 28. The plea of guilty not only indicates contrition and remorse but also has a utilitarian benefit. It was never necessary to prepare this matter for trial. The court is aware that trials of this type would take at least 5 days, if not a little longer. That has not been necessary and there should be a discounted sentenced to reflect both his willingness to facilitate the interests of justice and also the utilitarian value of the plea. Whilst it is not essential to nominate the discount nonetheless I will, and I will be discounting the sentence by 25% to give rise to that early plea of guilty. 29. Whilst accepting that he initially told lies to the police and did not admit his guilt, that changed relatively quickly and he has maintained his guilt since then right up until today at the time of sentence. That earlier interaction with the police does not, in my view, diminish a finding that he is genuinely remorseful and contrite for having committed this offence. 30. The need for specific deterrence in this case it seems to me is not significant. As a person of his age with no prior criminal record, and now with demonstrated remorse and contrition, it seems to me that his prospects of rehabilitation are very good, and that the sentence does not need to reflect much, if anything, in the way of specific deterrence. 31. He will ultimately be deported to the UK at the end of his non-parole period but, despite the fact that he might not benefit from, or have the opportunity to benefit from, or even access, a period of parole, that is not a factor which should prevent a period of parole being applied. 32. I accept that his time in custody is to be served in a slightly more difficult situation than perhaps others because of lack of access to family from the UK, the lack of real ability to telephone them, but also because of the concerns he has about the ongoing situation of his wife, who he is not likely to be able to contact and, in fact, may even have some difficulty reuniting with once he is deported to the United Kingdom in circumstances where he may or may not be able to return to Thailand. However, he is an English speaking person and some of the difficulties faced by others who commit these offences where English is not their first language, does not apply here. 33. What is more, I am conscious of the authorities which indicate that if people choose to come to Australia specifically for the purpose of committing an offence such as this, not much weight can be given to the fact that they will serve their period in custody in a somewhat more onerous situation than might others. 34. I have access to what are said to be comparative cases and I accept that it is appropriate that I look at those. Some of them tendered are distinguishable to an extent and largely because those offenders had reasonably lengthy criminal histories including earlier convictions for offences involving drug supply or the like. I have also accessed the statistics published by the Judicial Commission for sentences pursuant to this particular section. Statistics of this type are a fairly blunt tool but nonetheless are able to inform the Court in some general terms whether or not the sentence being considered is within the appropriate range. 35. I have ultimately come to the conclusion that without the discount for the plea of guilty an overall term of imprisonment of 8 years would be called for, so in my view the term of imprisonment here is 6 years once that discount is applied. 36. I am in those circumstances required to set a non-parole period for this Commonwealth offence. Taking all of the factors into account, including the fact that this is the offender's first time in prison and the fact that he will be away from his family with very little opportunity to access them, I will be setting a non-parole period of 3 1/2 years. All of those will be backdated to the date he went into custody, namely 19 February 2018. 37. The formal orders that I make then are that the offender is sentenced to a term of imprisonment of 6 years commencing 19 February 2018, expiring 18 February 2024. I set a non-parole period of 3 years and 6 months commencing 19 February 2018, expiring 18 August 2021.