R v Demas

1. The offender is to be sentenced for one offence under s 307.1(1) of the Criminal Code Act 1995 (Cth) for that on 8 April 2024, she imported a commercial quantity of methylamphetamine into Australia. That offence carries a maximum term of imprisonment for life.

2. I am required to impose a sentence that is of a severity appropriate in all of the circumstances that are known, and taking into account in particular, although it is not an exhaustive list, the matters in s 16A(2) of the Crimes Act 1914 (Cth).

Plea Discount

3. The offender pleaded guilty in the Downing Centre Local Court. I have given her a 25 percent discount for her plea, for its utilitarian value and facilitation of the course of justice. It is also further evidence of her remorse for her offending.

Facts

4. The facts are set out as part of Exhibit 1, which are incorporated by reference. What follows are the relevant matters considered on sentence.

5. On 8 April 2024, the offender flew into Sydney from Dallas.

6. Australian Border Force officials examined her luggage at the airport and found 14 bottles of purportedly cosmetic products, which in fact contained 5.63 kilograms of a substance that contained methylamphetamine. The purity of the drug was about 40 percent, such that the seizure had a total pure weight of 2.25 kilograms.

7. The commercial quantity of methylamphetamine commences at 750 grams. The offender imported therefore about three times the commercial quantity. However, there is no upper limit to the commercial range and so the offence contemplates extremely large and sophisticated importations.

8. The offender had two phones, both of which revealed communications in relation to her travel.

9. In the days prior to her departure, the offender sent some messages. Relevantly, they reveal the following:

10. That the offender felt depressed and expressed self-harm and unhappiness.

11. That the offender needed money for her role in the importation to secure an apartment.

12. That the offender was aware of Australia’s strict drug control laws, but was convinced that she looked innocent.

13. That the offender would be paid $10,000, minus the cost of flights, hotels and other expenses.

14. That at the time, the offender had no cash at all and would not be paid until she returned. She was down to her last 400 dollars.

15. That the offender felt she had no choice but to agree to the importation and that she had to make money or she would become homeless. She said that all her bills were overdue.

16. On 3 April 2024, the offender sent a further message saying,

“I’m down to fly soon but can I get 8000 usd if we book flights in advance and I stay in a cheaper hotel? … I make about 4k a week here so it has to be worth it for me you know. Especially with all the risk”.

11. As soon as her flight landed on 8 April 2024, the offender searched online for subsidised hotels and escort work.

12. The offender was mindful of not travelling too regularly so as not to arouse suspicion.

13. On arrival, the offender lied to representatives of the Australia Border Force about why she was entering Australia.

14. I find that the offender imported the drugs in the context of a willingness by her to deliver drugs elsewhere for payment. She knew that she was carrying drugs and deliberately planned her flight timing so as to lower any risk of detection. I am mindful that she is a person with no prior convictions. In any event, that has less weight where such people are used to importing drugs in this way.

15. As to the offender’s knowledge of the quantity of drugs, I accept that she was reckless. There is no evidence beyond knowing that they were contained in the unopened bottles in her luggage. I accept that she did not know that she was couriering methylamphetamine or the particular quantity and purity. She did know however, in advance of her departure, that she was carrying an illicit drug.

16. I accept that the offender had no control over the type of drug she carried, or its weight or purity. Given the text messages and the storage in the bottles, I find that she knew she was not carrying cannabis.

17. The drugs were placed in her bag with only cursory concealment. It was in that sense an unsophisticated attempt. Her role was limited to carrying in the drugs, in her personal luggage, for which she was to be paid.

18. The offender was conveyed to Mascot Police Station following her arrest, and interviewed. She again lied about her purpose of entry into Australia and denied knowing the bottles in her luggage contained drugs. She said she thought they were lotions to use in a photoshoot.

Subjective Case

19. I have read the statements of the offender’s mother and accept that she is otherwise a person of good character. That has less weight in matters of this kind, that are often committed by such people and indeed they are targeted for that characteristic so that they do not cause so much attention on entry into the country.

20. The offender, who was 39, was experiencing mental and financial difficulties at the time of her offending. Her “financial gain” was not sought for gratuitous enrichment. Rather, she was a person facing homelessness and poverty and was in distress.

21. Her situation arose where, from a young age, she suffered significant disadvantage as set out in detail in the report. For matters of privacy, I do not need to repeat it in full. She suffered from parental abuse, regular movement, disruption and displacement. Her childhood was unstable and she changed schools regularly. She was unable to form meaningful relationships or secure attachments. She suffered poverty. She also suffers from ADHD.

22. Understandably, she has been unable to form positive adult relationships so far. She turned to drugs as a maladaptive coping mechanism which culminated in serious addiction. She was at that point, vulnerable to approach by others to offend in the way that she did.

23. In my view, there is a clear and direct link between her mental health condition and her offending.

24. Any consideration of childhood deprivation is a significant matter worthy of separate consideration. It is supported by statements from her mother.

25. In my view, her moral culpability for the offending is significantly reduced.

Hardship to Third Party

26. Any term of full time imprisonment will result in hardship to the offender’s young son. She has left her child without his mother. It is the case that when parents offend, and are imprisoned, those who count on them will suffer. No doubt that has caused suffering in the mind of the offender. That suffering is one of the reasons why full time imprisonment is seen as a serious punishment and has a strong deterrent effect. Any hardship must be extraordinary to result in a term that is lowered significantly by reason of that fact. This is not one such case. It is, however, part of the offender’s overall subjective case.

Remorse and Rehabilitation

27. I accept that the offender is genuine in her expressions of remorse and regret.

28. She has used her time in custody extremely well, particularly when I have had regard to the violent attack upon her in custody and the lack of information she has had to date about the outcome of any proceedings against the other inmate. She is, in my view, at a high risk of reprisals and will likely serve at least some of her sentence with some level of protection. I will return to that matter in the context of the deliberately very generous ratio I have imposed between the sentence and the non-parole period.

29. Indeed, it is to the offender’s credit that she has completed tertiary qualifications and set herself on a prosocial and productive course in adult life.

30. Given her arrest and imprisonment, the sentence I am to impose and given her very good prospects of rehabilitation, I regard her risks of reoffending to be very low.

Consideration of Boulette v R

31. The Crown provided a very helpful schedule of cases, cognisant of the need for there to be consistency in sentencing throughout the nation for Commonwealth offences.

32. Whilst mindful of the fact that all cases are unique, particular attention was given to the matter of Boulette v R [2024] NSWCCA 217. In that case, the applicant sought leave to appeal against a sentence imposed on her, having similarly pleaded guilty to a count of importing a commercial quantity of methylamphetamine. She received a term of imprisonment of six years with a non-parole period of three years and five months. It was argued that the sentence was manifestly excessive. The applicant in that case was slightly older and she carried almost double the quantity, being five kilograms of the substance, containing 3.915 kilograms of pure methylamphetamine, about 5.2 times the commercial quantity.

33. Both played very similar roles, at the lowest end of responsibility, where they did not have any control over the amount they brought in and acted as willing and compliant couriers in a reasonably unsophisticated importation. Both had similar states of mind about what it was they were embarking on. Both had no criminal history and there was evidence that both had involved themselves in the drug milieu. Indeed, both were addicts. Despite the reference to other drug use, the applicant was found also to be a person of good character.

34. Both lied to police on arrest.

35. Both suffered complex mental health issues that impacted on their drug abuse and on their judgment in committing the offence. The offender in this case has also suffered, as I have mentioned, significant childhood deprivation and disadvantage not suffered by the applicant. The applicant’s “choice” to increase drug use came as an adult woman, affected by her mental disorder and prompted by the death of her parents.

36. Both pleaded guilty in the Local Court and obtained a 25 percent discount on their sentence.

37. With those things in mind, the cases were quite similar.

38. However, there are four things that call for a significantly lesser sentence in this case. First, the material difference in the quantity of the drug. Second, in the applicant’s case, “there was no real clear evidence of remorse” beyond the applicant’s plea whereas the offender in this matter, in my view, is demonstrably remorseful. Third, whilst the applicant’s prospects of rehabilitation were said to be good, I would regard the offender’s prospects as excellent for the reasons that I have stated. Finally, the experience of the offender in custody has been extraordinarily onerous, as I have set out and her response to her incarceration has in all the circumstances, in my view, been quite inspiring. This sits in stark contrast to the less enthusiastic observations made by the learned sentencing judge in respect of the applicant.

Deterrence

39. As I have said, I regard the sentence that I intend imposing to be sufficient to deter the offender from any further offending.

40. As for general deterrence, whenever an offence is contemplated in advance as this one was, it is always important to send a message by the sentence that if a like-minded person, even one with mental health issues, drug addiction and a deprived background is contemplating such an offence, if caught, significant penalties will be metered out.

41. The risks are high and the rewards can be significant. It is hoped that such a person might reason that it simply is not worth the risk.

42. That said, a person in the offender’s position is much less able to logically reason in that way, impeded by life’s pressures and the compromises in her judgment and a tendency to risk taking behaviours. Accordingly, general deterrence is a less important factor for persons in the position of the offender, although, in my view, it is not an entirely absent consideration.

43. As was observed in Boulette, “[s]adly it is not unusual for offenders who come before the Courts for importation offences that are detected by Customs as passengers walk through to involve vulnerable and even desperate individuals without criminal backgrounds. Criminal drug enterprises only prosper if people are ready, willing and able to perform various roles including those menial and limited roles.”

Harm Done by the Offending

44. The illicit, unregulated and dangerous passage of drugs into Australia is depressingly common and notoriously difficult to detect. The harm to the health of our residents cannot be denied. It inflicts very significant damage on the people who consume the drugs, but also to their families, to their friends and associates and to our community generally. I suspect no-one knows this more than the offender.

The Ratio

45. A ratio between the sentence and the non‑parole period in the order of 50 percent is not unusual where an offender is in need of extensive mental health treatment and where their mental illness makes that time more onerous. In this case, the offender has additional concerns.

46. I give less weight to the onerous conditions suffered by the offender by reason of serving her sentence a long way from home without support of family and friends, where she chose to travel to the other side of the world to commit the offence in the hope of some financial reward. It remains the case, however, that she will serve her time more onerously with few if any visitors and where in this particular case, she is without direct outside support.

47. As I have said, it is an important additional matter, despite the offender’s best efforts and the way she has made the most of her incarceration, that she has experienced a serious physical and sexual assault whilst in custody.

48. She has bravely reported the matter and given a police statement. She is assisting in the course of justice at the peril to her own well-being. She has not been told what is going on with the matter, something I regard as most unfortunate, given her limited ability to enquire. This will no doubt make her incarceration increasingly difficult.

49. Indeed, I regard her situation as extraordinary so that I have imposed the most generous ratio I can in accordance with a principled approach to sentencing in setting an appropriate non-parole period. In accordance with the settled law including cases such as the R v Gambier [2009] QA 138, I am mindful that I am required to arrive at non-parole period that is appropriate in all the circumstances, and eschewing an arithmetical approach.

Sentence

50. The offender is convicted.

51. It is accepted that only a term of full time imprisonment is appropriate and that this would include a term for which there must be a non-parole period. The sentence will date from 8 April 2024 when the offender went into custody.

52. The offender is sentenced to a term of imprisonment of four years and six months, with a non-parole period of two years and two months to date from 8 April 2024 and expiring on 7 October 2028. The offender is eligible for release to parole on 7 June 2026.

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