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[2025] NSWDC 452
General information, not legal advice.
District Court of NSW
2025-08-15
Sutherland SC DCJ
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: R v Klingelholler [2025] NSWDC 452
Hearing dates: 11 August 2025
Date of orders: 15 August 2025
Decision date: 15 August 2025
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision: Aggregate sentence of 6 years, with a non-parole period of 4 years, at [90].
Catchwords: SENTENCE – Supply commercial quantity of a prohibited drug – Supply more than indictable, less than commercial quantity of a prohibited drug – Methylamphetamine, heroin, cocaine – Offender travelled from Sydney to Perth – Offender purchased various items to repackage and disguise drugs – Offender posted drugs to Perth from Sydney SENTENCE – Subjective circumstances – History of drug use and drug related offending – Assault in custody – Non-exculpatory duress – Rehabilitation prior to arrest
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) s 5
Drug Misuse and Trafficking Act 1985 (NSW) s 25
Cases Cited: Chiarlini v R [2023] NSWCCA 227
Ebrahami v R [2019] NSWCCA 273
Kandemir v R [2018] NSWCCA 154
Leffley v R [2016] NSWCCA 243
Lowe v R [2023] NSWCCA 169
Neale v R [2024] NSWCCA 159
Nguyen, Kathy v R [2015] NSWCCA 209
R v Smith [2016] NSWCCA 75
Tiknius v R [2011] NSWCCA 215
Tran, Brendon v Regina [2014] NSWCCA 85
Wilson v R [2025] NSWCCA 86
Category: Sentence
Parties: Rex (Crown)
James Klingelholler (Offender)
Representation: Counsel:
H Purcell (Crown)
K Averre MBE (Offender)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Offender)
File Number(s): 2024/000756614
Publication restriction: N/A
James Klingelholler appears for sentence in respect of three offences.
Sequence 1 is an offence of supplying more than an indictable but less than a commercial quantity of a prohibited drug, namely 140.6g of cocaine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). This carries a maximum penalty of 15 years imprisonment and/or a fine of 2,000 penalty units. The threshold for an indictable quantity of cocaine is 5g, and the threshold for a commercial quantity is 250g.
Sequence 2 is an offence of supplying more than a commercial quantity of a prohibited drug, namely 351.7g of heroin, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). I note that the threshold for a commercial quantity of heroin is 250g and the threshold for a large commercial quantity is 1kg.
Sequence 4 is an offence of supplying more than a commercial quantity of a prohibited drug, namely 543.3g of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). I note that the threshold for a commercial quantity of methylamphetamine is 250g and the threshold for a large commercial quantity is 500g. Although the amount in the offender’s possession exceeds the large commercial quantity threshold, the Crown accepted a plea on the basis that the quantity exceeded the commercial quantity and hence carried a lesser maximum penalty.
Both Sequence 2 and 4 carry a maximum penalty of 20 years imprisonment and/or a fine of 3,500 penalty units, and a standard non-parole period of 10 years.
The offender pleaded guilty to these offences in the Local Court and is therefore entitled to a 25% discount on sentence.
In December 2023 Police Strikeforce Frascatti, a taskforce established to investigate the large commercial supply of prohibited drugs throughout Sydney and Perth, identified the offender as a target of their investigation.
On 4 December 2023, Western Australia Police Force advised NSW Police that the offender had boarded a flight to Sydney travelling under a different name. The offender arrived in Sydney in the morning and used an Uber to travel to the Mercure apartments in Bankstown where he checked in at 7:23am. At 8:10am the offender left the Mercure and attended Coles and Big W at Bankstown Central Shopping Centre. There he purchased several items, including:
Gloves;
A respirator;
Surface cleaning sprays and wipes;
Freezer bags;
Tape;
Toys including a Discovery Rocket Launcher Science Kit and a Creative Ninjago Brick Box; and
Christmas wrapping paper.
At 10:24am the offender was picked up by an Uber and travelled back to the Mercure with a duffle bag and a Coles shopping bag. At 12:59 the offender was picked up from the Mercure by another Uber and travelled to the Star Casino in Sydney where he checked in.
At 10:10am the following day, 5 December 2023, the offender left the Star Casino carrying what appeared to be two packages wrapped in Christmas wrapping paper of the kind that he had purchased the previous day, as well as a duffle bag. The offender attended Pyrmont Post Office, placed each item into an Australia Post box and paid for shipping. The parcel had a handwritten label for an address in Western Australia, and a mobile phone number relating to another person.
Australia Post then collected the parcel and took it to the Alexandria Sorting Facility. At 1:20pm NSW Police obtained and then executed a search warrant on that facility and located the parcel.
The parcel was deconstructed and found to contain the two Christmas wrapped packages. The first item was a Discovery Rocket Launcher Science Kit in which had been secreted 543.3g of methylamphetamine, which is the subject of Sequence 4, and the second was a Ninjago Creative Brick Box containing 351.7g of heroin and 140.6g of cocaine.
The offender’s DNA was located on the inner seal of the bag containing the methylamphetamine.
On 5 December 2023 the offender was picked up by an Uber and dropped at Sydney Domestic Airport at shortly before 2pm. He then boarded a 6pm flight to Perth.
On 28 February 2024 NSW Police issued an arrest warrant for the offender and liaised with Western Australian Police, who in due course arrested the offender on 24 September 2024.
The offender has been in custody since his arrest on 24 September 2024, now being a period in excess of 10 months.
At Sentence the Court had the benefit of the offender’s NSW and WA Criminal histories, a psychological assessment report by psychologist Kris North, a number of certificates for courses completed in custody, and the offender’s oral evidence given in the sentence proceedings.
At the time of the offending the offender was 32 years of age.
In consultation with the psychologist the offender recounted his family background. He was born and has lived most of his life in Perth. His parents separated when he was 6 or 7 years old and he had only intermittent contact with his biological father. He had a close relationship with his stepfather of some 20 years until the stepfather’s death in 2020 from motor neurone disease, after which the offender struggled with mental health issues. The offender said that he engaged in methylamphetamine use from the age of 18 and that his contact with his family had reduced over time due to his drug use issues, although he has re-established contact with them from custody. He has a close relationship with his maternal grandparents including his maternal grandfather who has been diagnosed with terminal cancer.
The offender was a below average student in school and had difficulty maintaining attention. The psychologist, Ms North expressed the opinion that this was indicative of undiagnosed Attention Deficit Hyperactivity Disorder (ADHD) but noted that a comprehensive assessment for ADHD was outside the scope of her report. She nevertheless noted that ADHD has been identified as a risk factor for substance use issues and antisocial behaviour.
The offender completed pre-apprenticeship training in plumbing and cabinet- making in school and completed a 4-year apprenticeship after school. He described an erratic work history since that time, noting that his drug use impacted his performance at work.
In relation to substance use, the offender described commencing occasional cannabis use at 14 or 15 years of age, and recreational ecstasy and lysergic acid use in high school. The offender began smoking methylamphetamine at 18 years of age, and began injecting it from 19 years of age. He reported using the drug consistently since then, with his only periods of abstinence being when he was in custody or under supervision in the community. The offender also described intermittent heroin use from the age of 18, but described methylamphetamine as his primary drug or drug of choice.
The offender reported that in the 6 months preceding his arrest, after his return to Perth from Sydney, he was able to detoxify from drugs and had obtained stable accommodation with his grandparents and employment.
Ms North noted the offender met the diagnostic criteria for stimulant Use Disorder in remission, and identified the offender’s main criminogenic factor as his drug use issues. She noted that although he has been able to maintain abstinence in the past when in custody or under supervision, he has a history of relapsing and it is recommended that he be referred to substance abuse counselling to maintain his motivation towards abstinence.
The offender described symptoms of anxiety and depression since entering into custody. Ms North assessed him as in the moderate range for depression, the moderate range for anxiety, and the normal range for stress based on his responses to the DASS-42 questionnaire.
The offender reported an assault in custody in January 2025 but did not sustain any serious injury or report this to corrections.
In oral evidence the offender provided some context to his offending. He said that he had accumulated a drug debt of $4,000 which he was unable to repay. The offender said that he was homeless, unemployed, and still using methylamphetamine at the time. He described his drug creditors aggressively asking him to travel to Sydney to collect and send back drugs to settle the debt. The offender said he was concerned for his safety, and so agreed to take part in the supply.
Under cross-examination the offender conceded that this was the first time he had raised the topic of these threats and that he had not made any attempts to rehabilitate previously. He said that he was sent to Sydney alone, had been given a card to pay for expenses, arranged his own flights, accommodation, and the Ubers, obtained the drugs and the wrapping paper, and posted the drugs himself. The offender said his creditors were concerned when there were delays receiving the package but claimed there were no consequences from that delay and, I would interpolate, nor the fact that it was never received. He stated that his creditors did not seek to continue to enforce the drug debt.
In relation to the assault in custody, the offender said his left eye was closed over and his face was swollen. The physical injuries went away but he did not report the assault. He did however successfully apply to be removed to a “violence-free” unit in custody which houses only offenders for non-violent offences.
These above-described threats and pressure were not said to be an excuse for his conduct, but rather an explanation.
The offender has no NSW Criminal History, but a significant WA Criminal History. The offender’s criminal history commenced in 2010 with charges of possession of prohibited drugs, driving while unlicensed, possessing prohibited drugs with intent to sell, possessing stolen property, possessing drug paraphernalia, and possessing an article with intent to injure, all of which were dealt with by way of fines.
The offender was charged with three counts of possessing drug paraphernalia and possessing a prohibited drug in July 2014 and received a community-based order of 12 months. The offender was charged with various traffic offences and failing to give personal information to police in October 2014 and received further fines.
In February 2015 the offender was sentenced with respect to four counts of breaching a community order, one count of possessing stolen property, and three counts of possessing a prohibited drug with intent to sell. The offender received fines for some matters and suspended terms of imprisonment of 6 months, 7 months, and 3 months, which were concurrently suspended for a period of 10 months.
In August 2016 the offender was charged with four counts of breaching a suspended sentence or imprisonment order, two counts of possessing a prohibited drug with intent to sell, and one count of possessing stolen property. The offender received various sentences of imprisonment to be served concurrently, the longest of which was a term of imprisonment of 2 years and 5 months.
In October 2020 the offender was again charged with possessing a prohibited drug, possess drug paraphernalia, and possess controlled or prescription drug, and was dealt with by way of fines. In July 2021 the offender was charged with possessing a prohibited drug, driving with no authority to drive, using an unlicenced vehicle, possession of a controlled weapon, possessing a prohibited weapon, and possessing drug paraphernalia. The offender received further fines for this offending.
In September 2022 he was charged with accessing data without a reasonable excuse, possessing a prohibited drug, possessing drug paraphernalia, and possessing a firearm whilst unlicenced. The offender received fines and suspended terms of imprisonment of 3 months, 5 months, and 6 months to be suspended concurrently for 12 months.
In November 2023 the offender was charged with driving without authority and providing false information, for which he received fines. In January 2024 the offender was charged with possessing prohibited drugs and drug paraphernalia for which he received further fines. In February and May 2024 he was charged with similar offences and with breaching his suspended sentence orders, for which he again received further fines.
The offender’s criminal record reflects a long history of drug use and drug-related offending which, until the present offending, was relatively low level.
In written submissions for the Crown Ms Purcell submitted that although the full extent and nature of the offender’s role in the supply was not clear, he ought to be considered more than a mere courier in circumstances where he was trusted to independently travel to Sydney, obtain the drugs, repackage and disguise them, and post them to Western Australia. His actions included himself purchasing the flights, accommodation, travel, and items for repackaging and postage.
The Crown submitted that the offending in relation to Sequences 1 and 2, being the cocaine and heroin packaged together, fell in the mid-range of objective seriousness having regard to their quantities in relation to the relevant thresholds. The Crown submitted that Sequence 4, the methylamphetamine, fell above the mid-range having regard to the fact that, although it has been charged as a commercial quantity by virtue of the offender’s lack of knowledge, the amount of drugs actually exceeded the large commercial quantity threshold.
In relation to subjective circumstances Ms Purcell noted that the offender’s criminal history reflected previous drug offences and previous breaches of court orders which ought to disentitle him to any leniency. The Crown identified that the offender’s Stimulant Use Disorder was in remission, and noted that his prospects of rehabilitation depended on whether he could continue to abstain from drug use.
In relation to the issue of non-exculpatory duress, Ms Purcell noted in her oral submissions that duress is not established where the offender had other choices than to engage in criminal conduct, and that if duress were found, it ought to have limited weight in circumstances where the offending was of some duration.
The Crown submits, and the Defence concedes, that the threshold under s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) is crossed and that the only appropriate penalty is a term of imprisonment.
In written submissions Mr Averre of counsel submitted that the offender’s role was as a courier. Mr Averre noted that of those involved in the operation, the offender was exposed to the greatest risk of detection and identification, and was indeed captured handling the wrapped packages by CCTV footage at the Post Office. Mr Averre further submitted that although the offender’s role appeared to require a level of trust in collecting, repackaging, and posting the drugs, the drugs were only in his custody for a limited period. Mr Averre submitted that the offending was motivated by a personal reward not in the form of profit, but in the form of repayment of a mounting drug debt as a result of his addiction. He reminded the court that there was no evidence of any connection between the offender and the address to which the parcel was to be posted, or the phone number attached to the parcel.
In relation to non-exculpatory duress, Mr Averre reminded the Court of the authority affirmed by the Court of Criminal Appeal in Tiknius v R [2011] NSWCCA 215, in which Johnson J stated that offending under fear or from threats of violence reduces culpability and acts as a mitigating factor.
In relation to substance abuse issues, Mr Averre submitted that the offender had reasonable prospects of rehabilitation noting that he had already had a period of stability prior to his arrest, that he had undergone courses in custody to address his addiction issues, and that he expressed a desire to continue in employment and psychological treatment on his release from custody.
Mr Averre submitted that the Court ought to make any sentences wholly concurrent or at least only partly cumulative with regard to the principle of totality, and that the Court ought to find special circumstances noting that custody was more onerous due to mental health and separation from family, and that the offender ought to have an extended period of supervision in the community.
I acknowledge that comparative cases have limited utility in determining a sentence given that individual cases turn on their own subjective and objective circumstances. However, reference to comparative cases can provide some measure of the range of sentences passed in similar matters and can act as a touchstone for comparison with a contemplated sentence (see R v Smith [2016] NSWCCA 75 at [73]). I have also had regard to the “blunt instrument” provided by the Judicial Commission Statistics. These are accurately described as a blunt instrument by virtue of the wide range of different outcomes reflected in those statistics. The first three comparative cases to which I will make reference were provided to the Court by Mr Averre of counsel on behalf of the offender.
In Wilson v R [2025] NSWCCA 86 the offender appealed against the severity of a sentence imposed for one count of supply prohibited drug not less than the commercial quantity, being 409.9 grams of methylamphetamine, and one count of dealing with property reasonably suspected of being the proceeds of crime, namely $5,940. A group engaged in drug supply provided the offender with the methylamphetamine. The Agreed Facts indicated that members of the group made a number of unanswered calls to the offender in the following week. Members of the group expressed concern that the offender was consuming the methylamphetamine that had been supplied to him instead of on-selling it and had disappeared. One member of the group was recorded saying, “He*’s fucking smoking my gear...I’*m gonna kick his little head in.”‘ The drugs were then retrieved from the offender but later seized by police. Two months later a search warrant was executed at the offender’s mother’s home where the $5,940 in cash was located.
The offender had drug addiction issues and a criminal history which disentitled him to leniency. He was assessed as the bottom of the supply chain and his offending to be below the mid-range of objective seriousness. The offender received a 25% discount for his early plea of guilty. The offender was ultimately sentenced to an aggregate term of 2 years imprisonment with a non-parole period of 1 year and 2 months. The appeal against sentence was dismissed and the sentence was confirmed.
In Neale v R [2024] NSWCCA 159 the offender appealed against the severity of a sentence imposed for one offence of supplying a prohibited drug not less than a commercial quantity, namely 294.9g methylamphetamine. On two occasions the offender had been tasked to travel to Sydney to collect the methylamphetamine and bring it back to the Central Coast. On 13 further occasions the offender had been requested to supply between 1-7g of methylamphetamine directly to consumers, acting as a courier and collecting the payments.
The offender was 46 years old and reported having suffered a serious back injury in 2015 which required surgery and resulted in his developing a reliance on prescription painkillers and alcohol, and eventually an addiction to methylamphetamine. The offender’s role was characterised as a courier and street level dealer with heavy oversight by his superiors in the operation. Noting the offender’s role and the quantity of drugs, the offending was held to fall below the mid-range, although above the lowest end of the range of objective seriousness.
The offender was ultimately sentenced to a term of imprisonment of 4 years and 3 months with a non-parole period of 2 years and 4 months. An appeal against severity was dismissed and the sentence confirmed.
In Lowe v R [2023] NSWCCA 169 the offender appealed against the severity of a sentence for one offence of supplying a prohibited drug being not less than a commercial quantity, namely 257.25g methylamphetamine, and one offence of dealing with property suspected of being the proceeds of crime, namely $200,750 in cash.
Acting Judge Williams in the District Court had given indicative sentences which were undiscounted of 12 months with a 6-month non-parole period for the proceeds of crime offence and 4 years and 6 months with a 3-year non-parole period for the supply charge. His Honour then proceeded to apply a 25% discount to his determination of an aggregate sentence. The aggregate sentence was 3 years and 9 months with a non-parole period of 2 years and 3 months.
The Crown conceded a number of grounds of appeal including a failure to take into account assistance provided to the authorities with respect to the sentence imposed for the proceeds of crime and an erroneous approach in not discounting the indicative sentences, but wrongfully applying a discount to the aggregate sentence. The Court of Criminal Appeal per the President Justice Ward, Walton and Ierace JJ agreeing, granted leave to appeal but dismissed the appeal on the basis that no lesser sentence than that imposed by the sentencing judge was warranted. The Court accepted a submission by the Crown that the overall sentence was lenient. Ward P, had she proceeded to re-sentence, would have indicated a sentence for the supply offence after a 25% discount of 3 years and 4 months, with a 2 year and 2 month non-parole period.
As I have already indicated, those were the three cases supplied by counsel for the offender.
In Leffley v R [2016] NSWCCA 243 the offender pleaded Guilty to two counts of supplying not less than the commercial quantity of a prohibited drug, being amphetamine and methylamphetamine. The offender had been pulled over by police for the purposes of a random breath test and, on questioning, admitted to having some drugs in the car which he surrendered. Police suspected further drugs were in the vehicle and executed a search. A total of 922.9g, just shy of the threshold for a large commercial quantity of amphetamine was found together with a total of 383.3g of methylamphetamine.
It is noted that at the time of the offending in 2014, the threshold for a large commercial quantity for methylamphetamine was 1kg, the same as for amphetamines. From September 2015, the threshold for a large commercial quantity of methylamphetamine was reduced to 500g.
The offender initially told the custody manager that he conveyed the drugs due to threats by unknown persons. He later told the Community Corrections officer that his motivation for offending was to pay off his drug debts. He subsequently told the psychologist and social worker that he was asked to deliver a package, and did so under the assumption that they contained illicit substances. The sentencing judge characterised his role as one of a courier, motivated by habit and debt rather than financial gain, but nevertheless playing an important role in the distribution of a significant quantity of drugs. The sentencing judge, Judge English, found that the offences fell below the mid-range of objective seriousness.
The offender was otherwise of good character, he expressed remorse and had good prospects of rehabilitation, and was entitled to a 25% discount for his pleas of guilty. Her Honour ultimately imposed sentences of 6 years with a non-parole period of 3 years in respect of the methylamphetamine supply, and 8 years and 6 months with a non-parole period of 4 years and 6 months in respect of the amphetamines. Each sentence was to be served concurrently. An appeal on the basis of manifest excess was dismissed.
Kandemir v R [2018] NSWCCA 154 was an application for leave to appeal against the severity of sentences imposed in the NSW District Court by Judge Gartelmann SC. The offender had pleaded guilty to two counts of supplying a commercial quantity of a prohibited drug. The first count related to 2.96kg of methylamphetamine and the second count related to 8.66kg of 3,4 methylenedioxy-methamphetamine (MDMA). Sentences with respect to each of the two counts were imposed of 4 years and 6 months with a non-parole period of 2 years and 10 months. There was partial accumulation of 1 year leading to an overall effective sentence of 5 years and 6 months with a non-parole period of 3 years and 10 months.
The factual background involved co-offenders obtaining the drugs in Sydney and packaging them to be sent in two boxes to Perth. The packaging and freighting was effected on the pretence that the boxes contained power tools. The principal co-offender involved in obtaining, packaging, and dispatching the drugs, one Peter Murray, had been sentenced by Gartelmann SC DCJ to an effective term of imprisonment of 8 years and 6 months with a non-parole period of 6 years. Kandemir’s role was to travel from Sydney to Perth under a false name and to receive the packages in Perth which had been addressed in his false name. He was then intended to receive the packages and pass them to another person. It would appear that the commercial quantity was charged rather than a large commercial quantity on the basis that the offender did not know the weight of the drugs which he was intended to receive.
The appellant was 26 years of age and had entered his guilty pleas shortly before a proposed trial. He had received a discount of 15% for the utilitarian value of his plea given its timing. In the course of the remarks on sentence at first instance, the sentencing judge had misstated the maximum penalty applicable. This was held by the Court of Criminal Appeal per Price J, Beazley P and RA Hulme J agreeing, to have been a material error which may have infected the sentencing judge’s reasoning. However, the Court was satisfied that no sentence other than that imposed at first instance should be passed. Accordingly leave to appeal was granted but the appeal was dismissed. Of significance, in the judgment of Price J was his specific agreement with the question of accumulation given the different types of drug which had been involved.
Nguyen, Kathy v R [2015] NSWCCA 209 similarly arose against the background of the supply of prohibited drugs from Sydney to Perth. A number of co-offenders had discussed the contemplated supply and trafficking of drugs between Sydney and Perth. Nguyen had been paid $240,000 cash by a co-offender Tran for the supply of almost 1kg of crystal methylamphetamine which she supplied to him. The appellant Nguyen resided in Sydney while Tran and another co-offender Ly resided in Perth. Tran and Ly were apprehended in the course of transporting the crystal methylamphetamine back to Perth. An earlier supply than the kilogram to which I have made reference had previously been supplied by Nguyen to Tran and successfully taken by Tran to Perth.
The evidence revealed that Tran was a significant dealer who was also found in possession of firearms. Tran pleaded guilty and also provided assistance to authorities. After a 42.5% discount, he had been sentenced to 8 years imprisonment with a non-parole period of 5 years and 9 months. An appeal by Tran had been dismissed by the Court of Criminal Appeal (Tran, Brendon v Regina [2014] NSWCCA 85).
At first instance Nguyen was sentenced to an aggregate term of 11 years and 4 months with a non-parole period of 8 years. She had ultimately pleaded guilty to two separate charges of supplying a commercial quantity of methylamphetamine. In the ultimate the indicative sentences for each of the supplies were 7 years and 6 months with a non-parole period of 5 years, and with respect to the second supply which had been intercepted, 9 years imprisonment with a non-parole period of 6 years.
A challenge on the basis of parity was upheld in the Court of Criminal Appeal. The aggregate sentence was varied by applying a different discount for the plea to 10 years and 9 months with a non-parole period of 7 years and 7 months. It would appear that the Court of Criminal Appeal, may I respectfully say, did not state the indicatives, but varied the aggregate by a different discount figure when exercising the re-sentencing exercise.
In Ebrahami v R [2019] NSWCCA 273 the offender appealed against the severity of his sentence for two offences of supplying a large commercial quantity of methylamphetamine and knowingly dealing with the proceeds of crime. Neighbours had heard loud noises from the offender’s unit, after which he was observed leaving his apartment building wailing and with a bloodied face. Police were contacted and found the offender in the rear yard of his property an hour or so later. On searching a black jacket and bag near the offender, police found resealable bags containing a total of 858.9g of methylamphetamine and $44,130 in cash.
The offender was 40 years old at the time of offending. He had a minor record of no relevance. The offender had had a difficult life: he was born in Iran, had lost a brother to the Iran/Iraq war and his mother and sisters still lived there. His father was a gambler and he had left school at 13 years old to work for his father’s creditor. He undertook military service, lived overseas and on his return to Iran, he was imprisoned for several months for attending a political protest. He escaped Iran in 2010.
He was charged with deemed supply of more than a large commercial quantity of methylamphetamine and separately, with the proceeds of crime offence relating to his possession of the cash. He entered a late plea of guilty and was given a 20% discount.
The judge at first instance, Judge Colefax SC, gave an indicative sentence of 9 years and 7 months with respect to the drug supply and an indicative non-parole period of 6 years and 3 months. For the proceeds of crime offence, the indicative sentence was 3 years and 7 months. The aggregate sentence was 11 years and 6 months, with a non-parole period of 7 years and 6 months.
The Court of Criminal Appeal determined that, taking into account the 20% reduction, the starting point for the supply offence had been 12 years imprisonment and 4 and a half years for the proceeds of crime offence.
By reference to the quantity and purity of the drug, noting that there was no evidence about the offender’s role in relation to actual supply, Colefax SC DCJ had assessed the objective seriousness as “slightly below the mid-range”.
On the appeal against severity, Hidden J, Leeming JA and Davies J agreeing, found no fault with the assessment of objective seriousness.
However, following an analysis of some seven comparative cases, Hidden J found that the indicative sentence for the drug supply offence and the ultimate aggregate sentence sat well towards the top of the range of sentences in the comparable cases. However, for the most part those cases, which are set out in Hidden J’s judgment at [38], involved quantities greatly in excess of the prescribed large commercial quantity for the drug concerned.
The Court was persuaded that the aggregate sentence in Ebrahami was manifestly excessive. Hidden J proposed indicative sentences of 7 years with a non-parole period of 4 years with respect to the supply charge and 2 and a half years as an indicative sentence for the proceeds of crime. The appeal was allowed and an aggregate sentence of 8 years with a non-parole period of 5 years was imposed.
The last comparative to which I will make reference is Chiarlini v R [2023] NSWCCA 227. The offender appealed against the severity of his sentence. The offender had posted a parcel containing a total of 1.978 kg of methamphetamine from a Post Office in Sydney to an address in Western Australia. The street value of the drugs was $360,000. A search of his premises revealed the presence of $10,850 and two mobile phones, one of which was encrypted. Chiarlini was charged with one offence of knowingly taking part in the supply of not less than a large commercial quantity of methylamphetamine. Such an offence carried a maximum penalty of life imprisonment and a standard non-parole period of 15 years.
He was also charged with an offence of dealing with property suspected of being the proceeds of crime, namely the $10,850 in cash. That offence was placed on a Form 1.
The offender was a foreign national who was in Australia on a student visa. He had had an upbringing in Europe which gave rise to Bugmy considerations, and a psychologist’s report expressed an opinion regarding a causal link between ongoing and chronic psychiatric/psychological conditions and the offending behaviour. In the District Court, the offender was sentenced by Judge Turner to 5 years and 3 months with a non-parole period of 3 years and 2 months. An appeal against severity was dismissed by the Court of Criminal Appeal.
There are three separate offences in respect of which the offender appears for sentence because of the circumstance that he had packaged for transmission to Perth three different drugs. It would be an error in principle to take an overview of the objective seriousness of all of the offending. The Court is required to assess the objective seriousness of the individual offences which have been charged. By reference to the role of the offender in travelling to Sydney, obtaining the actual drugs, and then packaging them and concealing them in toys, he performed a function and role which involved more substantial participation than a mere courier or transporter of packages, or “mule” as is often described and regularly seen.
The charges with respect to both the methylamphetamine and the heroin relate to more than a commercial quantity, whilst the cocaine falls below the commercial quantity applicable to that drug. In my assessment, each of the commercial quantity offences approach the mid-range of objective seriousness. The cocaine, by virtue of the quantity involved, falls a further distance below the mid-range of objective seriousness.
The issue of non-exculpatory duress was raised on the evidence by virtue of the alleged threats by those to whom the offender claimed to have a drug debt of approximately $4,000. The circumstance of an explanation for participation in supply drug offences being the paying off of an extant debt incurred or arising by virtue of the obtaining of drugs is an explanation which is advanced in a very substantial number of cases which come before this Court for sentence. I am not satisfied that the alleged threats rise to a level of non-exculpatory duress. The offender clearly had the means to expend money on the trip and significantly utilised an Uber account in his own name in utilising the hire vehicles whilst in Sydney. No evidence has been adduced regarding the particular credit card that must have been linked to this account.
If I am wrong in relation to an assessment of the threats, I accept the Crown’s submission that the mitigatory effect is slight.
The offender’s apparent rehabilitation following his return to Perth, notwithstanding the absence of the drugs and the failure to diminish the drug debt, is somewhat intriguing. However, accepting his evidence in this respect at face value, it bespeaks of reasonable prospects for rehabilitation in the longer term. I accept his expressions of remorse which were the subject of sworn evidence. However, given his background, I do find special circumstances due to the need for an extended period of supervision.
I propose to proceed by way of an aggregate sentence. I am required to indicate the sentences which would have been imposed, were the matters sentenced separately, and in the cases of Sequences 2 and 4, which attract a standard non-parole period, I must also indicate the non-parole period I would have imposed. In each case, the indicative sentence has been reduced by 25% to reflect the pleas of guilty.
The indicative sentence with respect to Sequence 1, supply of cocaine, is a period of 3 years.
The indicative sentence and non-parole period with respect to Sequence 2, the commercial quantity of heroin, is 4 years and 6 months, with an indicative non-parole period of 2 years and 6 months.
The indicative sentence and non-parole period with respect to Sequence 4, the commercial quantity of methylamphetamine, is 5 years, with an indicative non-parole period of 3 years.
There will be an aggregate sentence of 6 years, with a non-parole period of 4 years, backdated to commence on 24 September 2024. The offender will accordingly be eligible for release to parole on 23 September 2028, and the additional term of 2 years will expire on 23 September 2030.
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R
Klingelholler [2025] NSWDC 452