R v Thangavelu - [2015] NSWDC 390

District Court

New South Wales

Medium Neutral Citation: R v Thangavelu [2015] NSWDC 390
Hearing dates: 5 November 2015
Date of orders: 05 November 2015
Decision date: 05 November 2015
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
Convicted

Offender sentenced to imprisonment for a term of one year and three months commencing on 7 November 2014
Offender to be released on recognisance in the sum of $500 to be of good behaviour commencing on 7 November 2015
Catchwords: CRIMINAL LAW – Sentence – Import a Tier 1 prohibited good, 842 grams of pseudoephedrine, purity of 80% – Offender arrived in Sydney by airplane from Malaysia with luggage containing two toiletry bottles concealing pseudoephedrine – Likely that offender had a gambling habit, had become indebted and needed to serve as courier or “drug mule” to settle debts – Arrested on date of offence, in remand for 11 months – Guilty plea at earliest opportunity – 49 year old Malaysian male, ethnically Tamil, limited English, experience of NSW Custodial System more onerous – Offender has young family, but no evidence to establish that the period that the offender has already spent in custody caused the family “exceptional hardship” – Prior good character, however prior good character facilitated offending
Legislation Cited: Crimes Act 1914
Customs Act 1900
Customs Regulations 1926
Cases Cited: R v Chung (Unreported, District Court of New South Wales, Armitage DCJ, 6 June 2014)
R v Goh (Unreported, District Court of New South Wales, Charteris DCJ, 20 March 2014)
R v Hinton [2002] NSWCCA 405
R v Yan Huang [2012] NSWDC 298
R v Le (County Court of Victoria, O’Neill CCJ, 13 May 2015)
R v Manh Hung Nguyen (Unreported, District Court of New South Wales, Solomon DCJ, 23 march 2012)
R v Togias [2001] NSWCCA 522
R v Tram Anh Vo (Unreported, District Court of New South Wales, Haesler SC DCJ, 23 August 2013)
R v Zerafa [2013] NSWCCA 222
Category: Sentence
Parties: Director of Public Prosecutions (NSW) (Crown)
Saegar Thangavelu (Offender)
Representation: Solicitor for the Director of Public Prosecutions (NSW) (Crown)
Ms E Manea (Offender)

File Number(s): 2014/00359770
Publication restriction: No

Judgment

HIS HONOUR: Saegar Thangavelu stands for sentence as a consequence of having pleaded guilty to a charge that on 7 December 2014 at Mascot in this State he did import a Tier 1 prohibited good, namely, pseudoephedrine. The quantity of the drug imported by the offender was 842 grams.
On 7 December 2014 the offender arrived at Sydney International Airport on an Air Asia flight from Malaysia. He presented to an Australia Border Force officer for immigration clearance. He presented his Malaysian passport and completed and signed an incoming passenger card in English. That provided the offender’s name and date of birth, told the Border Force officer that his occupation was a disc jockey, that he intended to stay in Australia for four days and that the main reason for his visit was a holiday. His anticipated address in Sydney was at the Aspire Hotel in Ultimo.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Thangavelu

Details

AGLC: R v Thangavelu [2015] NSWDC 390
Case: [2015] NSWDC 390
Decision Date: 05 November 2015

CaseChat Overview and Summary

The defendant, Thangavelu, was found guilty of importing a prohibited substance, specifically 842 grams of pseudoephedrine with a purity of 80%, into Australia. The court was tasked with determining an appropriate sentence for this offence. The District Court of New South Wales heard the case where Thangavelu, a 49-year-old Malaysian male, arrived in Sydney via airplane from Malaysia. The contraband was concealed within two toiletry bottles in his luggage. It was likely that Thangavelu had a gambling habit, had become indebted and was using his role as a courier or "drug mule" to settle his debts. He was arrested on the date of the offence and had been in remand for 11 months prior to his sentencing. Thangavelu entered a guilty plea at the earliest opportunity. The court had to consider his limited English proficiency, his experience within the NSW Custodial System, his young family, and his prior good character. However, the court also considered that his prior good character facilitated the offending.

The primary legal issue before the court was the determination of an appropriate sentence for the importation of a Tier 1 prohibited good. The court had to weigh various factors in arriving at a sentence, including the nature and circumstances of the offence, the offender's background, and the impact of the offence on the community. The court also needed to consider the offender's prospects for rehabilitation and deterrence. The court emphasised the seriousness of drug trafficking and the need to deter others from engaging in similar activities. The court acknowledged the offender's guilty plea and his cooperation with authorities as mitigating factors. However, the court also recognised that the offender's prior good character facilitated the offending and that the offence had a significant impact on the community.

The court concluded that an imprisonment term was appropriate but also took into account the time the offender had already spent in custody. The court recognised the offender's limited English proficiency and his experience within the NSW Custodial System as additional mitigating factors. However, the court also noted that there was no evidence to establish that the period the offender had already spent in custody caused his family "exceptional hardship". The court determined that a sentence of one year and three months imprisonment, commencing on 7 November 2014, was appropriate. The offender was to be released on recognisance in the sum of $500 to be of good behaviour commencing on 7 November 2015. This sentence reflected the seriousness of the offence, the need for deterrence, and the offender's background and prospects for rehabilitation. The court also emphasised the importance of protecting the community from the dangers of drug trafficking.

Orders

Orders of the court

Convicted

Offender sentenced to imprisonment for a term of one year and three months commencing on 7 November 2014

Offender to be released on recognisance in the sum of $500 to be of good behaviour commencing on 7 November 2015

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Thangavelu [2015] NSWDC 390
Hearing dates:	5 November 2015
Date of orders:	05 November 2015
Decision date:	05 November 2015
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Convicted Offender sentenced to imprisonment for a term of one year and three months commencing on 7 November 2014 Offender to be released on recognisance in the sum of $500 to be of good behaviour commencing on 7 November 2015
Catchwords:	CRIMINAL LAW – Sentence – Import a Tier 1 prohibited good, 842 grams of pseudoephedrine, purity of 80% – Offender arrived in Sydney by airplane from Malaysia with luggage containing two toiletry bottles concealing pseudoephedrine – Likely that offender had a gambling habit, had become indebted and needed to serve as courier or “drug mule” to settle debts – Arrested on date of offence, in remand for 11 months – Guilty plea at earliest opportunity – 49 year old Malaysian male, ethnically Tamil, limited English, experience of NSW Custodial System more onerous – Offender has young family, but no evidence to establish that the period that the offender has already spent in custody caused the family “exceptional hardship” – Prior good character, however prior good character facilitated offending
Legislation Cited:	Crimes Act 1914 Customs Act 1900 Customs Regulations 1926
Cases Cited:	R v Chung (Unreported, District Court of New South Wales, Armitage DCJ, 6 June 2014) R v Goh (Unreported, District Court of New South Wales, Charteris DCJ, 20 March 2014) R v Hinton [2002] NSWCCA 405 R v Yan Huang [2012] NSWDC 298 R v Le (County Court of Victoria, O’Neill CCJ, 13 May 2015) R v Manh Hung Nguyen (Unreported, District Court of New South Wales, Solomon DCJ, 23 march 2012) R v Togias [2001] NSWCCA 522 R v Tram Anh Vo (Unreported, District Court of New South Wales, Haesler SC DCJ, 23 August 2013) R v Zerafa [2013] NSWCCA 222
Category:	Sentence
Parties:	Director of Public Prosecutions (NSW) (Crown) Saegar Thangavelu (Offender)
Representation:	Solicitor for the Director of Public Prosecutions (NSW) (Crown) Ms E Manea (Offender)
File Number(s):	2014/00359770
Publication restriction:	No