R v Glynn No. DCCRM-02-861

[2002] SADC 150

R v JOHN PATRICK GLYNN
[2002] SADC 150

Judge Lunn
Criminal

1. John Patrick Glynn pleaded guilty in this Court on 11 November 2002 to importing into Australia a prohibited import contrary to Section 233B(1) of the Commonwealth Customs Act 1901 in that on about 4 April 2001 at Adelaide he imported into Australia a prohibited import namely 359.6 gms of amphetamine (“MDMA”) being not less than a trafficable quantity.

2. Glynn previously resided in England with his defacto wife and their two young children.  He had a substantial drug problem.  He became indebted to drug dealers for between £1,200 and £1,600 which he could not pay.  Those drug dealers put pressure on him to agree to be a courier to bring drugs to Australia.  When he initially showed reluctance he was physically assaulted by a drug dealer and suffered an injury to his hand.  Eventually he agreed to bring drugs to Australia in return for the cancellation of the debt he owed to the drug dealers but for no other benefit to him.  The drug dealers, threatened the safety of his wife if he did not carry out the arrangements.  He did not go to the police.

3. He left England on 2 April 2001 on an international flight bound for Adelaide.  He had strapped to his upper body 4,800 Ecstacy tablets weighing 359.6 gms which contained about 28% pure Ecstacy and which had a street value of between $168,000 and $384,000.  When going through Customs at Adelaide Airport on 4 April 2001 a sniffer dog detected the Ecstacy tablets and he was arrested.  He made full admissions and co-operated with the police by going to the pre-arranged delivery point in Adelaide, but the consignees of the drugs did not appear.

4. Glynn is 34 years of age.  He has a record of minor offending in England and has one conviction for assault occasioning actual bodily harm in 1997 for which he was imprisoned for 15 months.

5. On his initial arraignment Glynn pleaded not guilty.  He raised a defence of duress.  There was a hung jury on his trial in October 2001.  A subsequent application to stay the proceedings as an abuse of process was unsuccessful.  He remained in custody on remand from 4 April 2001 until 5 April 2002 when he was released on bail, but he was required to stay in this State pending his further trial.  His defacto wife and two children came to Australia in April 2002 but they went back to England after about 3 months.  Glynn is uncertain whether that relationship will continue when he ultimately returns to England.  While on bail he has been having some counselling for his drug problems.

6. Glynn’s second trial was listed to commence on 12 November 2002.  On 11 November he entered his plea of guilty.  While he is to receive a significant discount for this plea it is not as great as it would have been if it had been entered before a further trial date had been set.  He is contrite for his offence and he is to be given some credit for his co-operation with the authorities.

7. The maximum penalty for the offence is imprisonment for 25 years.  Drug importation is a serious offence and there must be a substantial deterrent element in the sentence to be imposed.  Ecstasy is in the middle of the range of illicit drugs and its use is becoming more common.  It is common for addicts to become couriers for dealers in order to fund their own consumption.  The penalty to be imposed must make it clear to other people in the position of Glynn that they cannot facilitate the conduct of the wholesale drug trade to satisfy their personal need for drugs.

8. Once Glynn is released on a recognisance release order he will immediately be deported back to England.  In his time in gaol, and in his time on bail apart from when his family was here, he has been without any support network of family and friends in this State.  However, little weight is to be given to this as it is a consequence of him coming to Australia to commit his crime: R v Liddy, CCA 19/11/02, Jud No [2002] SASC 306, unreported at [120] and the cases cited there.

9. The DPP concedes that there are strong subjective mitigating factors in this case.  Glynn acted under threats to himself and his family in acting as a drug courier.  The legal defence of duress could not succeed mainly because he did not avail himself of reasonable opportunities to report the threats to him to the relevant authorities.

10. The sentence to be imposed is complicated because Glynn has already served on remand 1 year and 1 day in custody.  As there has been a period on bail since his release from custody the sentence now to be imposed cannot be backdated to include that earlier period in custody, but it must be taken into account.  If he had not spent that period in custody, and if there was to be no discount for his plea, the starting point would have been a sentence of imprisonment for 4 years.  I allow a discount of 6 months for the plea of guilty and further reduce it to 22 months to take into account the period already served on remand.  Accordingly, Glynn is sentenced to imprisonment for 22 months as from today.  I direct under s20(1)(b) of the Commonwealth Crimes Act 1914 that Glynn be released after serving 12 months of this 22 month sentence upon him entering into a recognisance in the sum of $1,000 to be of good behaviour for 2 years.