On 24 February 2017, the offender was arraigned before me and pleaded guilty to one charge of supplying a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). [1]
The facts of the matter were as follows. The offender had an agreement with a male known as "Jay" to pick up and deliver an unknown quantity of an unknown prohibited drug from Hornsby. The offender was then supposed to collect another unknown quantity of an unknown prohibited drug and deliver it to a location in the city where he would receive payment for both quantities of unknown prohibited drug.
Once he had delivered the prohibited drugs, the offender was to be shown how to use the Blackberry phone which he had been provided by "Jay." From that, he would be told where to return and provide the money he was to receive the delivery of the unknown prohibited drug.
Sometime on 16 April 2016, the offender attended an address at Hornsby where he met "Jay". The offender remained in the driveway of this address and was given a plastic bag that he believed contained half a kilogram of a prohibited drug. The offender placed this bag in an internal side compartment in the boot of his vehicle.
The offender was also provided with half of his payment, being $1250, and advised that he would be provided with the other half of the prohibited drugs within three hours.
Subsequent to being provided with his payment, the offender was not feeling well and decided he would wait at home and return when the remainder of the prohibited drug was ready.
The offender then left the address and as he was driving along Pennant Hills Road, West Pennant Hills, he was intercepted by highway patrol officers due to the manner of his driving.
Police subsequently decided to undertake a search of the offender and his vehicle. Prior to the search commencing, police asked the offender if he had anything unlawful such as firearms or drugs, to which the offender replied: "No" and explained that he was nervous about losing his licence again.
R v Meenesh Kumar [2017] NSWDC 64 | Case summary | Zoe
During the search, police located a dark plastic shopping bag hidden in an internal side compartment in the boot. The plastic bag was opened and inside was a large freezer bag containing a white crystalline substance.
When asked about the plastic bag, the offender stated he was unaware of it. In a compartment to the right hand side of the steering wheel, police found $1250 in cash, comprised of $50 notes. A further $270 in cash was found in the offender's wallet, making a total of $1520 found and seized by police. At the scene, the offender claimed that the $1,250 was money for the car repayment that he had received from his partner.
As a result of what was found during the search, the offender was arrested and taken to Ryde Police Station where he was interviewed.
In the first interview, the offender confirmed he had owned the BMW vehicle for about a month, having purchased it for $75,000 through BMW finance. He was the only person who used it. The car loan was his only significant debt and the repayments were $990 per month. He confirmed that he was a student claiming Centrelink benefits, but also earned cash in working for a friend as a delivery driver and providing personal training services.
When asked about the plastic bag containing the suspected drugs, the offender stated he did not know how it came to be there. He stated that no one was forcing him to transport the drugs. The offender agreed the substance looked like a prohibited drug and assumed it was worth a lot of money.
After the first interview was completed, a forensic procedure took place, after which the offender requested a further interview.
In the second interview, the offender responded to police questioning as follows:-
"Q26: What would you like to tell us that you hadn't told us in the first interview?
A26: That I was aware that the drugs were in the car.
A27: Yeah, I was aware, that I went to Hornsby to pick up the drug.
A28: And I was supposed to just drive em to the city, pick up ome cash and drop it back. I was unaware how much drugs, I was unaware of the drug type, I was just given it in the bag and I just put it in the car. I was unaware of the amount of money that I was picking up at the time, that I would be informed later and when I was to pick up the remaining drugs. I was also given the Blackberry then and that I was told that when I pick up the remaining drugs that I would be told, I would be shown how to use the [Blackberry] and that way I can communicate with the person that I was supposed to see in the city to organise the drop off and pick up the cash. And then head back to drop off the money.
A41 - 42: Like he told me that was something was coming up, recently. And told me today - - - That he would need me to drive for him. And to head up to Hornsby to pick up some drugs. And that I would need to drive it to the city and like, everything that I mentioned before. But the weeks leading up to were just like random conversations here and there about it. And I even asked him like why would you trust me to move a large amount of drugs? Yeah and then he goes, I asked him, isn't there a risk? And he goes, like, that there's no risk to him.
A44: Ah, I wasn't sure how much I was supposed to pick up, I was just told to head down, when I got there I received one bag. And he kept, he referred to it as a half. And that I would be needing to pick up another half to take to the city. So I just assumed it would've been like a full kilo.
A68: I was informed to pull into the driveway. I pulled into the drive way, it was the house with the junk in front of it … So I pulled into there and waited for him to, he came, brought out the bag.
Q97: Did you know that you were supposed to pick up a kilo when you went there?
A97: No I was unaware of the amount of drugs or the tye [sic] of drugs that I was picking up.
Q98: But you knew it was drugs?
A98: Yeah.
Q101: You did it to make money?
A101: Yes.
Q116: Have you done this type of thing before?
A116: No I haven't done it.
Q117: Would you have potentially done it again if …
A117: If I, all seriousness, if I was to get away with it today I probably would have done it again."
The offender went on to state that he communicated with "Jay" via the messaging application "Wickr". He had met "Jay" about two weeks previously, when he was approached by him whilst sitting in his car with his partner. They talked about his car and the monthly repayments, and "Jay" said he could help him make money.
The contents of the plastic bag were sent off for analysis and it was found to contain dimethylsulfone weighing 522.6 grams. Dimethylsulfone is not a prohibited drug but is used as a cutting agent to dilute prohibited drugs.
The matter before this Court is based on offender's role in having an agreement with "Jay" to supply an unknown person with an unknown prohibited drug in return for payment. The offender acknowledges that he was to be paid between $1,000 and $3,000 for making the delivery and the total amount of drugs he would be delivering in the two bags would be a kilogram.
The offender was further charged in relation to dealing with suspected proceeds of crime contrary to s 193C(1) of the Crimes Act 1900 (NSW) [2] in respect of the money amount found in his possession. I have been requested to take this offence into account on a Form 1, pursuant to s 32(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). [3]
The Crown acknowledges that it was unable to prove beyond reasonable doubt that the offender had agreed to deliver more than an indictable amount of a prohibited drug. The offender was however aware that he was agreeing to take part in the supply of an indictable quantity of an unknown prohibited drug.
[2]
Objective seriousness
The offender's conduct involved him entering into an agreement to receive payment for transporting a prohibited drug. He was provided with a Blackberry phone. The offender transported the package which was not, as it turns out, a prohibited drug, but was in fact a cutting agent used to dilute prohibited drugs.
The offence was committed for financial gain. However, the remuneration was transactional, not profit-based. [4]
There was no evidence or submission that the offender was substantially involved in the trafficking of prohibited drugs. [5] Nor was he involved in the selling of the drugs. I accept that his agreement essentially involved him making two pick-ups and deliveries. His role was that of a courier/transporter.
The offence involved an indictable quantity.
In determining objective gravity, s 25(1) of the 1985 Act distinguishes drug types by reference to threshold quantities. I cannot determine the identity or purity of the prohibited drug that the offender had agreed to transport. What is known is that the offender agreed to transport approximately one kilogram of a prohibited drug. In these circumstances the offender can only be sentenced only on the basis of what is proved beyond reasonable doubt. [6] This would be an agreement to supply in the bottom range of an indictable quantity. Mere quantity in any event is not the sole or even principal determinant of the sentence in relation to an offence of this kind and the role of the offender is more important as is the level of participation in the offence. [7] Further, his moral culpability is not diminished by the fact that his offending did not involve a prohibited drug. [8]
Whilst the offence is serious, on the established facts, I would regard the offence as falling within the lower range of objective seriousness.
[3]
Plea of guilty
On the offender's behalf it was submitted that he had offered to plead guilty at the earliest opportunity, and was entitled to a maximum discount of 25% in accordance with R v Thomson; R v Houlton [9] and s 22 of the 1999 Act. The Crown made no contrary submission. I accept that a discount of 25% on account of his early willingness to plead is appropriate.
[4]
Discount for assistance to law enforcement authorities
During the course of submissions the Crown acknowledged that but for the offender's own admission, the proceedings against him would not have been able to be instituted. Nevertheless, the Crown argued that this was not a case where a further discount was appropriate.
At the time of his admission to police, the offender was not aware that the package in his possession was not in fact a prohibited drug. He may well have believed himself to already be a suspect and that by coming forward his likely or inevitable conviction and sentence could be significantly discounted.
In Panetta v R, Adams J with whom Ward JA agreed (on the reasons to uphold the appeal), stated:
"[50] very logic that accepts that sentences should be set to deter crime, by parity of reasoning, is set to deter persons who have committed crimes from voluntarily coming forward and admitting to them. The circumstances, of course, vary enormously. In some cases, the offender will already be a suspect and may think that by coming forward their likely or inevitable conviction and sentence can be significantly discounted. Where, however, the crime itself is not suspected and unlikely in the extreme to be detected, different considerations arise. The only motivation in such a case, as here, appears to be the attempt to assuage serious feelings of guilt …" [10]
In my view, the case falls within the parameters of s 23(1) of the 1999 Act. In deciding whether to impose a lesser penalty and the nature and extent of the extent of the penalty I take account the factors in s 23(2) of the 1999 Act. I accept the offender was truthful, complete and reliable as to his own culpability. There is no evidence to suggest that information about the involvement of prohibited drugs and the agreement to transport two packages that he would have otherwise become known to authorities. I also bear in mind that he provided that assistance at the time of his arrest albeit that he did not at that point know that the package in his possession was not a prohibited drug. I also bear in mind that his admission relates to the offence on which he is being sentenced and benefit that will otherwise be reflected in terms of demonstrating remorse and rehabilitation.
A further discount would be appropriate on this ground, being in the order of 25%.
[5]
Previous convictions
The offender has no previous criminal convictions. His traffic antecedents were tendered. [11] He was a suspended driver at the time of the offence. No submission was made that this was an aggravating factor going to sentence pursuant to s 21A(2)(d) of the 1999 Act.
The offender was subsequently charged on 29 February 2016 with driving whilst suspended. On 16 May 2016, no conviction was entered upon him entering into a bond under s 10(1)(b) of the 1999 Act, for a period of two years.
It was submitted on the offender's behalf that at the time he was stopped by police in relation to the matter before me, the offender was anxious. He was facing Court and could be disqualified with consequence that he would have been out of work.
[6]
Previous good character
It was further submitted that the offender was also entitled to have his previous good character taken into account, in accordance with s 21A(3)(f) of the 1999 Act.
Before the Court were references submitted on the offender's behalf, including from: Mr Hamish Krishneil Kumar (the offender's elder brother), Ms Reyna Saeesha Kumar (the offender's younger sister) and from Ms Linda Gejakly. [12] Needless to say, each of them refer to the offender's conduct as being out of character.
The Court also heard evidence from Ms Nikita Rao, who is the offender's partner. She described as the "kindest person" that she knew, "caring" and the "biggest motivation in [her] life" and "respectful and always pushing to be better and trying to do the right thing." She stated that she was shocked when she was informed as to what took place and did not know why he did it, but was aware that the offender was under financial stress and thinking about how to get money. It is unclear as to the extent of her knowledge however, in light of the offender's earlier admission that his partner was in the car when he was first approached by "Jay". Ms Rao stated that the offender was studying at university and was planning to go back to study Science, and was trying to establish a dismantling shop. She had known him for approximately one year and was very supportive.
There was little challenge to her evidence.
The offender's absence of prior convictions and prior good character are acknowledged as going to rehabilitation and his likelihood of reoffending. However in a case of this nature it otherwise carries limited weight. [13] In R v Leroy, Street CJ held:-
"Very frequently, those selected to play some part in the chain of drug trafficking, as the appellant plainly enough was, are selected because their records, their past and their lifestyles are not such as to attract suspicion. It is this in particular which has led the courts to take in the case of drug trafficking a view which does not involve the same degree of leniency being extended to first offenders."
[7]
Remorse
The Crown submits that there has been an absence of remorse. It draws attention to the agreed facts which record the offender when interviewed by police stating:
"Q117 Would you have potentially done it again if …
A117 If I, all seriousness, if I was to get away with it today I probably would have done it again."
Subsequent to this however the offender is recorded in the Pre-Sentence Report as describing his actions as "stupid" and "reflected that the criminal conviction will have ongoing consequences with regards to any future travel or employment ventures."
Ms Rao gave evidence that the offender was deeply sorry for what occurred and would "definitely not do it again."
The offender's brother, Hamish Krishneil Kumar, states that he visited the offender in prison and he "showed great remorse for his actions and was ashamed of himself and what he had done." [14]
The offender's sister, Reyna Saeesha Kumar, states that the offender is "very remorseful of [sic] his actions and wants to continue bettering his life." [15]
Abraham Jlailaty describes himself as "[the offender's] long friend and now employer for the past three years." He states that the offender has "great regrets [sic]." [16]
Another character witness being a close friend, Linda Gejakly, attests that the offender has told her "time and time again of his regret and remorse in regards to these charges and that fact is obvious as I see the pain on his face as he does so." [17]
s 21A(3)(i) of the 1999 Act allows the Court to take remorse into account for mitigation of sentence but only if:
1. The offender has provided evidence that he or she has accepted responsibility for his or her actions; and
2. The offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both).
I have borne in mind the offender's statement to police at the time of the interview stating that if he was to get away with it he "probably would have done it again." Nevertheless the offender's plea of guilty and preparedness to confess to offending also need to be considered. Whilst many of the accounts of remorse come through testimonials of family and friends, I am on balance prepared to accept that he is genuinely remorseful and his initial statement to police has no longer reflects his position. In so finding, I accept that in part this arises from concern as to the consequences that now confront him
[8]
The offender's likelihood of reoffending and prospects of rehabilitation
The offender is the middle of three children having arrived in Australia from New Zealand from 1996. He was educated to the Year 12 level and completed his Higher School Certificate in 2009. He commenced tertiary studies in Science on two occasions, however deferred those studies owing to the loss of his licence.
He has held employment from the age of 14, having worked in various part time positions in retail.
In 2014, the offender secured employment in an automotive dismantling yard, undertaking deliveries and online advertising duties. Prior to the most recent loss of his licence, he stated it was his intention was to purchase the business from his employer, however he was unable to maintain employment after his driving suspension.
The offender advised that since his release on bail, he has registered with a labour hire agency for casual work, however stated that his current bail curfew had been an impediment to securing work. Although the Pre-Sentence Report noted that he was not receiving casual work and had no source of income at the time, the sentencing hearing suggested he is now working.
So far as his mental health was concerned, the offender reported as having suffered from depressive symptoms and a general feeling of being overwhelmed since the loss of his licence. He advised that this was compounded by the expected loss of his employment after making a considerable financial commitment in the form of a vehicle loan.
The offender sought a referral to a psychologist and reported that to date, he has attended six sessions. He advised that this has assisted him in coping with matters relating to unemployment, the Court matters and his bail conditions, as well as unresolved family issues. Contact between Community Corrections and the offender's psychologist indicated that the offender is yet to schedule future appointments owing to the uncertainty regarding the outcome of this matter. However, the psychologist advised that the offender should continue with intervention to address stress, financial issues and crisis management.
The Pre-Sentence Report refers to the offender acknowledging that his involvement in the offence was financially motivated. Overall, he is assessed as requiring a low-medium level of intervention by Community Corrections.
Although the offender was said to be suffering from emotional stress due to his parents' break up, the Pre-Sentence Report does not ascribe much significance to this. The contact with the psychologist appears to be more associated with his financial stress. It is also noted that the offender disclosed a history of problematic gambling as a means of coping with his stress, estimating the first occurrence of this issue in 2013, when he would gamble his entire wage of poker machines. He reported recommencing gambling as a result of stress from the current matter, admitting to having gambled some $2000 in savings during the assessment period.
The offender resides with his parents and siblings at Prestons. The Pre-Sentence Report records his upbringing in generally positive terms.
I am satisfied that the offender has a supportive family.
The offender is currently in a relationship of almost 12 months' duration formed after several years of friendship with his partner. The Pre-Sentence Report also shows that she continues to support him.
Since his release on remand on 6 May 2016, the offender has been subject to significant bail conditions. Those conditions have included reporting daily, residence, curfew restrictions and surrendering his passport. On the last occasion, the reporting condition was varied to four times per week and the curfew hours and conditions were relaxed. There have been no reported incidents of non-compliance.
For the purposes of s 21A(3)(h) of the 1999 Act, I would assess the offender's prospects of rehabilitation as reasonable. For the purposes of s 21A(3)(g) of the 1999 Act, I find the offender has a low risk of reoffending.
[9]
Form 1 offence
The facts of the offence of being in possession of proceeds of crime are encompassed in the charge the subject of the Form 1, which I have been requested to take into account pursuant to s 32(1) of the 1999 Act and I do so in accordance with the decision of Spigelman CJ in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002. [18]
[10]
Pre-sentence custody
The offender has spent 20 days in custody. I take this into account as required by s 24(a) of the 1999 Act.
I further take into account the significant restraints on his liberty since been released on bail conditions. [19]
[11]
Sentence
Having regard to the purposes of sentencing contained in s 3A of the 1999 Act I accept that the offender has been specifically deterred, and that he has reasonable prospects of rehabilitation. Therefore need to protect the community from the offender assumes relatively less consideration. However, it is necessary nonetheless to ensure the offender is adequately punished, his offending conduct is denounced and that he be made accountable for his actions.
In R v Shi, [20] the Court of Criminal Appeal stated:
"[34] … the culpability of those who engage, at any level, in drug supply networks is significant, and that deterrent sentences are necessary, since absent the involvement of couriers, warehousemen and so on, these networks, whether established for the purposes of importation or subsequent distribution, would simply collapse: R v Le Cerf (1975) 13 SASR 237 and R v Laurentio and Becheru (1962) 63 A Crim R 402." [21]
I have found the offence is in the lower range of objective seriousness. The offender's admissions in circumstances that resulted in a charge that would otherwise not have been brought diminishes the need for general deterrence. However the sentence cannot fall so as to be unreasonably disproportionate to the nature and circumstances of the offence.
The Crown did not submit that the threshold in s 5(1) of the 1999 Act was met such that no penalty other than a penalty of imprisonment was appropriate. Counsel for the offender submitted the case called for a suspended term of imprisonment.
Overall, I have formed the view that the purposes of sentencing are such that no penalty other than a term of imprisonment is appropriate.
But for his plea of guilty and assistance, I would have sentenced the offender to a term of 16 months' imprisonment.
Taking into account the plea and assistance and bearing in mind the need for adequate punishment, I have formed the view that the nature of the sentence can be varied such that a suspended sentence of 16 months' imprisonment properly serves the purposes of sentencing. [22]
[12]
Orders
The offender is convicted;
The offender is sentenced to a term of 16 months' imprisonment;
Pursuant to s 12(1)(a) of the 1999 Act, I suspend execution of the whole of the sentence for 16 months; and
Pursuant to s 12(1)(b) of the 1999 Act, I direct that the offender be released on the condition that the offender enters into a good behaviour bond for a period of 16 months.
In so ordering, I take into account the offence on the Form 1.
[13]
Endnotes
Hereinafter referred to as the "1985 Act"
Hereinafter referred to as the "1900 Act"
Hereinafter referred to as the "1999 Act"
s 21A(2)(o) of the 1999 Act; see also: Cicciarello v R [2009] NSWCCA 272 at [12] - [16] and Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]
R v Gu [2006] NSWCCA 104 at [27] (Howie J with whom Grove and Simpson JJ agreed)
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v MacDonnell (2002) 128 A Crim R 44; [2002] NSWCCA 34 at [33] (Wood CJ at CL with whom Sully and Dowd JJ agreed)
R v Yaghi (2002) 133 A Crim R 490; [2002] NSWCCA 490 at [19 (Wood CJ at CL with whom Smart AJ agreed)
(2000) 49 NSWLR 383; [2000] NSWCCA 309
[2016] NSWCCA 85 at [50] (Adams J with whom Ward JA agreed)
Exhibit 4
Exhibit A
See: R v Leroy [1984] 2 NSWLR 441, 446 - 447 (Street CJ with whom Glass JA and Yeldham J agreed); and R v Cheikh; R v Hoete [2004] NSWCCA 448 at [50] (Giles JA)
Exhibit A, Character Reference for Meenesh Sathneil Kumar written by Hamish Krishneil Kumar, undated
Exhibit A, Character Reference for Meenesh Sathneil Kumar written by Reyna Saeesha Kumar, dated 25 October 2016
Exhibit A ,Character Reference for Meneesh Kumar written by Abraham Jlailaty, undated
Exhibit A, Character reference for Meenesh Kumar written by Linda Gejakly, dated 27 October 2016
(2002) 56 NSWLR 146
R v Khamas (1989) 108 A Crim R 499; [1999] NSWCCA 436 at [27] (Hulme J with whom Sully and Hidden JJ agreed) and R v Webb (2004) A Crim R 167; [2004] NSWCCA 330 at [18] (Grove J with whom Simpson and Shaw JJ agreed)
[2004] NSWCCA 135
[2004] NSWCCA 135 at [34] (Wood CJ at CL with whom Spigelman CJ and Simpson J agreed)
s 23(1) of the 1999 Act and see also: R v Lo [2003] NSWCCA 313 and R v Borkowski (2009) 195 A Crim R 152; [2009] NSWCCA 102 at [32] (Howie J with whom McClellan CJ at CL and Simpson J agreed)
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Decision last updated: 27 March 2017