CDirector of Public Prosecutions v Di Giorgio-Yates

[2018] VCC 1123

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01094

THE QUEEN

v

DANIEL DI GIORGIO-YATES

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JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF HEARING:	24 April and 11 May 2018
DATE OF SENTENCE:	23 July 2018
CASE MAY BE CITED AS:	CDPP v Di Giorgio-Yates
MEDIUM NEUTRAL CITATION:	[2018] VCC 1123

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW - SENTENCE
Catchwords:              Importation of a commercial quantity of a border-controlled drug
Legislation Cited:     Criminal Code Act 1995 (Cth); Sentencing Act 1991 (Vic).

Cases Cited:R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; Nguyen v R Phommalsack [2011] VSCA 32; Hoang v The Queen [2008] VSCA 86; R v Nguyen R v Pham (2010) 205 A Crim R 106; DPP v Massange and Kachunga [2017] VSCA 2014; Adams v The Queen [2008] HCA 15; DPP v Maxwell [2013] VSCA 50; R v Verdins (2007) 2 VR 269; DPP v Thomas and Wu [2016] VSCA 237; DPP v Merrill [2015] VSCA 52; Guden v R [2010] VSCA 196.

Sentence:Convicted and sentenced to 6 years imprisonment, with a non-parole period of 3 years.

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth	Ms R. Avis	Solicitor for the Commonwealth Office of Public Prosecutions
For the Accused	Mr C Heliotis Q.C. with Ms A. Burnnard	Theo Magazis & Associates

HIS HONOUR: 

1Mr Di Giorgio-Yates, you have pleaded guilty to one count of importing a commercial quantity of a border controlled drug contrary to s.307.1(1) the Criminal Code (Cth). The single rolled up charge relates to five importations of the border controlled drug, lysergide, better known as LSD.

2The details of your offending were set out in detail in the prosecution opening for plea which is Exhibit A. 

3On 9 January 2016, Australia Border Force (ABF) officials in Melbourne seized from post office box 8003 at Tottenham a mail item addressed to a Deanne Johnson.  That post office box was leased by you. That item had been sent from Poland.  It contained 200 square paper tabs. Each tab, upon testing, was found to contain an average of approximately 70 micrograms of LSD.  In total, the item contained less than 0.1 grams of pure LSD.

4On 25 February 2016, ABF officials seized a parcel addressed to you at
20 Wallace Street, Maidstone, at which address you resided with your family.  It had been sent from China.  It contained a motorcycle muffler which had secreted within it a plastic bag containing 9.7 grams of a powder, which upon testing was shown to be 70 per cent pure LSD.  It follows that the parcel contained 6.7 grams of pure LSD.

5On 16 March 2016, an envelope addressed to one Chad Forbes at post office box 8003 arrived at the Australia Post office at Tottenham.  It had been sent from Poland.  Upon examination and testing, the envelope was shown to contain a white powder which was 67 per cent pure LSD, weighing less than 0.1 grams.

6On 30 March 2016, you were arrested in the vicinity of the Tottenham Post Office.  In a later raid upon your home, two laptop computers were seized by police. 

7Later, on 30 March 2016, Australian Federal Police members executed a search warrant at the Tottenham post office and seized mail which had been addressed to your post office box.  One item seized was a letter addressed again to Chad Forbes at that post office box sent from the United States of America.  It contained a white powder which, upon testing, was found to be
74 per cent pure LSD, weighing less than 0.1 grams.

8On 4 April 2016, a further envelope which arrived at the Tottenham post office after your arrested was seized.  It was addressed to Brad Churchmichael at your post office box.  It had been sent from Poland and contained an off-white powder which, upon testing, was found to contain a total net amount of
0.4 grams of 70 per cent pure LSD.  It contained 0.28 grams of pure LSD.

9Upon your arrest, police had seized from you a credit card which had been used to purchase an electronic pipette and a bag of pipette tips.  I was advised that such pipettes are commonly used to dispense liquid substances with great accuracy and could be used to dispense liquid LSD onto sheets of botting paper.  Three and a half months earlier, in December of 2015, you purchased identical items but in your own name and had provided the address at which you resided.  You used a credit card for that purchase which was in your name.

10An examination was conducted of two laptop computers which had been seized from your home.  Analysis revealed that you had visited various pages on websites concerning:

·the sourcing and importing of LSD;

·advice about how to take a delivery of such purchases, while maintaining what was described as “plausible deniability”;

·information in relation to the sentencing of offenders who had committed drug offences, including information as to how drug offenders, importers, had been apprehended; and

·general advice and instructions about LSD and the use of it.

11After your arrest, you participated in an interview with police but refused to answer questions put to you.  It was not suggested that you had demonstrated any level of cooperation with the police nor, at least at that time, any remorse for your offending conduct.

12A commercial quantity of LSD is defined in the Crimes Act 1958 (Vic) as being two grams or more. In your case, the relevant importations totalled between 6.9 grams and 7.28 grams of pure LSD. That quantity of LSD is therefore between 3.45 and 3.64 times the commercial quantity threshold.

13The maximum penalty for the offence of importing a commercial quantity of LSD is life imprisonment. 

14You are aged 41.  You are married with three children aged between two and ten years old.  You were born and raised in the United Kingdom.  You are not an Australia citizen.  You left school at the age of 15 and obtained employment in the personal fitness industry.  Soon after, you left home.  You were exposed to significant polysubstance use amongst your peers.  You told Mr McKinnon, a psychologist to whom you were referred by your solicitors, that in the three years after leaving school and home, you used alcohol, weed, crack, cocaine and heroin.  You told him that opiates were your main drugs.  Nevertheless, to your credit, you obtained post-school qualifications in occupational health and safety, fitness and personal training.

15You suffered a number of debilitating back injuries for which you eventually underwent surgery.  You suffered from viral meningitis and you suffered an injury to your shoulder.  I was informed by your counsel that you used opioids to self-medicate.

16In 2009, you moved to Perth with your then partner and eldest child to live with her family.  Shortly after, you married your partner and your two younger children were born here in Australia.  Later in 2009, you and your family moved to Melbourne where you have continued to reside.  I note that you have been released on bail since late March 2016 and have since that time complied with the conditions of your bail.

17I was informed by your counsel that you have ceased all drug use and have not further offended since being bailed.

18A number of short reports from your general practitioner, Dr Carolyn Bosak, dated September 2017, November 2013, December 2013, January 2015, and December 2017 were tendered.  She reported that you had been a patient at her clinic in Melbourne since 2012. 

19In 2013 and 2015, she had referred you to a specialist in relation to your shoulder injury which had been caused by weight training in mid-2013. She reported that you had suffered a partial tear to the supraspinatus tendon and a sub-deltoid bursitis.

20In December 2017, Dr Bosak reported that:

·You had suffered from anxiety and depression from at least 2012.

·You had seen a psychologist who had advised that you had likely suffered from long-term depression.

·You received regular mental healthcare plans involving psychologists and counselling over the years, usually related to issues concerning the relationship between you and your wife.

·Various antidepressants had been trialled but were not well tolerated by you due to side-effects.

·As at December 2017, you were trialling an antidepressant, Aropax.

·Between April and December 2017, your mental state had significantly deteriorated.  She also noted that you had become suicidal in February 2016 in relation to your criminal charge and what she describes as “ongoing relationship issues”.

·You have continued with regular visits to Dr Bosak and counselling with a psychologist, Ms Harris, over that period.

·You developed severe pain in your left shoulder from 2014 which had not responded to injections and surgery was performed on it in 2016.  You were unable to perform your usual work as a gym instructor and personal trainer for some time.

·You had undergone two surgical procedures on your lower back due to degeneration.

21A report from Mr Ian Mackinnon, psychologist, dated 18 November 2017, was tendered on your behalf.  Mr Mackinnon had been requested by your solicitors to see you and provide a report in connection with your scheduled court appearance relating to this offence.

22His report contained a detailed account of your upbringing and general background.  I should note, it was largely consistent with the background as provided by your counsel.  Mr Mackinnon noted, and I accept, that:

·You were born and raised in Wolverhampton, UK.

·You had an unhappy childhood. You had a difficult relationship with your father, who you had said was an alcoholic.

·You were unhappy at school and left when aged 15.  Soon after you left home and moved into a house with friends and lived what you described as a hedonistic lifestyle around drugs.  You described heroin as being the most addictive of these.

·You later completed an occupational health course. You obtained an apprenticeship in that field but were unhappy in that job and left it.

·You injured your back, attributing it to a combination of bad posture and disc problems and later underwent surgery.  You were in hospital for a week.  You were treated with pethidine for pain, although it was not suggested that you became addicted to that drug.

·Soon after surgery, you moved to London where you met your wife.  There, you worked in a gym as a personal trainer. 

·Shortly afterwards, your first child was born and you later moved from London to Australia and lived with your wife's parents in Perth.  You married there in April 2009.  Your second child was born in Perth later that year.  You were employed at that time at a sports club in Perth.  It appears to have been a reasonably responsible position and you were effectively manager of that club.

·Six months later, you moved to Melbourne with your wife and family. 

·In early 2012, you injured your back in a gymnasium incident.  You underwent surgery in the form a micro discectomy.  You considered that the surgeon had botched that surgery.  In any event, the surgery was not successful.  You were prescribed a variety of medications, including OxyContin and Tramadol, which are powerful pain medications.

·In 2013, you contracted viral meningitis and underwent a lumbar puncture.  You told Mr Mackinnon that since that time, you have never been right and have never felt well. 

·Later in 2013, you were again working in the fitness industry when you suffered the tear to your left shoulder.  You saw a specialist and were placed on a waiting list for surgery.  You continued “self-medication”, pain killers, and continued to work. 

·You continued with your personal training business for a further two years and then sold it early in 2015.  At that point, you were facing financial difficulties and were in poor health.

·In late 2015, you attempted to commit suicide.  You told Mr Mackinnon that you had hung yourself on the back of a bedroom door and had been saved by your wife. 

·You had suffered significant depression at that time and was spending three to five days per week on opiates. 

·Your problems appear to have been exacerbated with a difficult family life.  Your eldest son is on the spectrum of Autism.  He is apparently very anxious and has a number of health issues. 

·Since your arrest, your wife had apparently developed fibromyalgia and was struggling to cope with responsibilities of parenthood in difficult circumstances.  She is understandably concerned that you are facing possible imprisonment and deportation.

·By early 2016, you were in receipt of a disability support pension in relation to your viral meningitis.  However, you have since returned to work in the gymnasium/fitness industry.

23The history of your involvement with LSD given by you to Mr Mackinnon was that:

·An unidentified person had referred you to various medical research papers concerning LSD.  You had not used LSD before that time. 

·Some of those research papers emanated from Switzerland and concerned people who had used LSD for treatment of depression with success. 

·You considered that the evidence was “convincing”.  You told Mr Mackinnon the more that you read, the more you decided it was your last opportunity to try something different.

·You contacted and obtained LSD from a Swiss supplier.  Shortly afterwards, you entered into an agreement with that supplier whereby you would receive small quantities of LSD at no cost, in return for which you would receive parcels or letters from the supplier, which you agreed to forward on to other persons as directed. 

I point out that that history is consistent with the history provided to me by senior counsel appearing for you.

24Mr Mackinnon considered that as at November 2017, you were suffering from symptoms which met the clinical criteria for a mixed anxiety and depression disorder and a polysubstance abuse disorder.  The latter of which he considered was in remission.  He considered that:

·Your general cognitive functioning fell within the normal adult range, but at the time of your offending, you were suffering from extreme psychological distress.

·Throughout much of your adult life, you had had periods where you had been seriously plagued by polysubstance abuse, usually involving opioids and exacerbated by a number of physical conditions entailing chronic pain. 

·You had expressed significant remorse for your offending conduct, acknowledging that you had caused severe stress and anxiety for your immediate and extended family.

·At the time of your offending, you were in an extremely poor state of mental health and were likely to have suffered significant cognitive distortion and very poor judgment. 

·It was likely that you would have been in a desperate and vulnerable state and easily influenced by suggestions which he described as partly irrational and some bizarre.

·You had projected all of your hopes for finding a cure for your mental health issues onto your plan for “resetting” your mind by using LSD. 

·You had become obsessed and consumed by the belief that you had discovered in LSD a probable cure for your psychological conditions.

25Mr Mackinnon puzzlingly goes on to say that it is his understanding that you intended to use all of the LSD imported by you for your own use.  That is, for self-medication.  That is not consistent from the history that he took from you, that you would receive small quantities of LSD at no cost in return for which you received parcels or letters from the supplier, which you had agreed to forward on to other persons as directed.

26Mr Mackinnon expressed a number of views in his report which I consider amount to opinions going well beyond his area of expertise.  For instance, he opined that:

·You intended to use the LSD for yourself only.  As previously referred to, that is plainly wrong. 

·He said that you are “essentially, a law abiding and moral person and that [your] offence arose out of a desperate desire to find a cure for [your] psychological ill-health, not from any malicious or antisocial intent”.  In that sense, his view resembles a character reference rather than an expert psychological opinion.

·He said that yours was an exceptional case, one where the letter of the law has been broken but no ill-intent was meant.  Likewise, more akin to a character reference than other. 

·He said that should you receive a community corrections order, you are likely to comply with any reasonable component of such an order. I am not certain whether Mr Mackinnon is suggesting here that you are unlikely to comply with what you consider to be any unreasonable component.  His report is unclear in this respect, but for the purposes of my sentencing, I shall assume that Mr Mackinnon considers that any such component would have been reasonable and that you would have complied with it.

27Such opinions, as I say, in my view, do not fall within the area of Mr Mackinnon's expertise and are not based upon any expertise of his.  I should make it clear that I do not consider that your offending is a mere breach of the letter of the law or some technical breach of the law.  Your conduct is, on any view, a serious breach of the law.  You entered into an agreement with people that you did not know to import an illicit drug into this country without specific knowledge of its quantity or purity.  You had agreed to send these unknown quantities onto persons that you did not know.  You did not import these quantities for your own “self-medication” as Mr Mackinnon, at least in one part of his report, suggests. 

28Notwithstanding, Mr Mackinnon did express further opinions which I do take into account: 

·That should you be imprisoned for a significant period, you are likely to deteriorate rapidly and become suicidal. 

·You are not familiar with the prison environment and prolonged separation from your children and family is likely to be devastating for you. 

·He opined that should you ultimately be deported, you are likely to deteriorate rapidly and become suicidal.

29A report from a psychologist, Susan Harris, dated 1 April 2018 was tendered on your behalf.  She has been your treating psychologist since May 2015. 
You were referred to her by your general practitioner to assist with depression and anxiety.  She has seen you at regular intervals since.  Senior counsel appearing for you conceded that much of her report went well beyond opinions based on her area of expertise and amounted to a character reference on your part.  Having read the report, I agree with his concession and will treat it in that light.

30I accept her legitimate expert opinion that you do suffer from a major depressive disorder with chronic low mood and deep anxiety with hypervigilance. 
She considers that you have been suicidal since your teenage years, although I note that the only reference to suicidal ideation from your general practitioner was in February 2016.

31I note from Ms Harris' report that you have recently been running a gymnasium for a colleague, training other personal trainers and reworking the gymnasium's website.  Further, you are said to be completing online study concerning website building.  In addition, you have continued to carry out renovations to your home in order to make it more comfortable for your family.  Further still, you have been actively involved in the home schooling of your two eldest sons.  In that sense, you appear to be currently living an active lifestyle.

32I am conscious of the provisions of s.16A of the Commonwealth Crimes Act, which provides that in determining the sentence to be imposed in respect of a person for a federal offence, the court must impose a sentence that is of a severity appropriate to all the circumstances of the offence. 

33In addition to other matters, I must take into account:

·the nature and circumstances of the offence;

·the degree to which you have shown contrition for the offence;

·whether you have pleaded guilty to the charge in respect of the offence;

·the degree to which you have cooperated with law enforcement agencies;

·the deterrent effect that any sentence may have on you or other persons;

·the need to ensure that you are adequately punished for the offence;

·your character, antecedence, age, means and your physical or mental condition;

·your prospects of rehabilitation; and

·the probable effect that any sentence will have on any of your family and dependents.

34Counsel referred me to the 2011 decisions of Nguyen and Phommalysack v The Queen where the Court of Appeal set out a number of propositions applicable to sentencing for drug importation offences.  These were cited with approval of the Court of Appeal in the 2018 decision of Hoangv The Queen insofar as they are relevant to your sentence.  I will set them out,

(a)  The criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to affect the importation.  Where it is capable of being discerned, the role played by the offender is of great importance in assessing the objective criminality of the offence; 

(b)  Problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise as in many cases, the full nature and extent of the enterprise is unlikely to be known to the court; 

(c)  It is the criminality involved in the importation which must be identified - the fact that another person may be characterised as the 'mastermind' does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility;

(d)  Although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the sized of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported;

(e)  The statements by the High Court in Wong v The Queen do not suggest that, in an appropriate case, the amount of the drug involved is not a highly relevant factor in determining the objective seriousness of the offence, e4ven to the extent of assessing that a particular offence is in the worst category of its type' in many cases, the only factor that would lead to the determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar;

(f)  As a matter of common sense, it should be inferred, unless there is evidence to the contrary, a person who is importing drugs is doing so for profit;

(g)  The difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that a stern punishment will be warranted in almost every case;

(h)  The sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishments;

(i)  Involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served;

(j)  The prior good character of a person involved in a drug importation offences is generally to be given less weight as a mitigating factor on sentence than it might otherwise be given;

(k)  Where offenders are not young … the immaturity of youth cannot be claimed as a factor bearing upon their transgressions;

(l)  A sentencing judge should have regard to the offender's involvement in the overall transaction for the purpose of determining the offender's degree of involvement in a drug smuggling enterprise.

35Where a person is sentence to a period in custody, it is hardly surprising that this would have a detrimental impact on the members of his or her family.  Notwithstanding, the authorities are clear that such an effect is not a matter to be taken into account when a court considers an appropriate sentence unless that person's family circumstances are quiet exceptional.

36Senior counsel appearing on your behalf conceded that your family circumstances were not exceptional in that context.  Notwithstanding, I accept that you do suffer from considerable guilt, in that as a consequence of your offending, you have caused upset to your family which is likely to be exacerbated by any prison sentence imposed on you.  In that context, I accept that time in custody would be likely to be more onerous for you than for many.

37There was conflicting expert evidence concerning the value of the LSD imported by you.  The evidence of Dr Steven Bright tendered on your behalf was that the street value of the LSD was around $679,000 and the wholesale value about $338,000.  The evidence of Detective Sergeant Randall, tendered by the prosecution, was that the street value of the LSD imported by you was approximately $2.8m and the wholesale value about $700,000.  Neither of those witnesses were required by the parties to attend court for cross-examination purposes.  Neither their evidence nor their expertise to provide such opinions was challenged.  Neither witness referred to the online value of LSD which our counsel informed me was the more likely method of purchase of the drug.

38While this may be so, it is clear that the LSD imported by you was on any view of substantial value.  I do not regard the evidence of the actual value of the LSD imported by you as being of crucial importance in determining your sentence other than it does enable me to conclude that the amounts imported by you were not of some trivial value.

39On any view, this was a significant amount of the drug.  It was more than three and a half times the commercial quantity threshold and of a substantial monetary value.  The legislation adopts a quantity based penalty regime that fixes trafficable and commercial quantities of certain drugs including LSD. 
It is not a regime that is based on the perceived harm of various different drugs.  I do not consider that it is appropriate for me to make any assessment of the potential harm or for that matter benefits of LSD imported by you as compared with the potential harm of other drugs such as heroin, cocaine, or methylamphetamine.

40In 2008, in the matter of Adams v The Queen, the Court of Appeal said as follows,

"This legislative approach, which recognises the financial rewards available from dealing in illicit drugs, thus differentiates between various narcotic substances in designating the trafficable and commercial quantities, but applies the same penalty regime to the quantities so designated.  It may be contrasted with legislation in New Zealand and Canada, which grades drugs according to a legislative perception of their harmfulness, and prescribes penalties based on harmfulness rather than quantities."

41That is not the case in Victoria.

42Other things being equal, an importation which is undertaken because it will bring or it is expected to bring a large financial reward to the offender will be more serious than one where the expected reward is small or non-existent.  Ordinarily, the larger the quantity of the drug imported, the more serious will be the offence, or other things being equal.

43There are a number of factors which go to mitigation of your sentence. 
You pleaded guilty to the offence in the course of your committal proceeding.  You were arrested for this offence on 30 March 2016.  You made your first plea offer in early April 2017 which was rejected by the prosecution.  The matter resolved in late May 2017 towards the end of a contested committal hearing.  
I do not consider that your plea of guilty was particularly early but it nevertheless has utilitarian benefit in that witnesses will not be required to give evidence in a trial and court resources and time have been saved to a significant extent.  Accordingly, you are entitled to a discount of your sentence by reason of your plea.

44You have no prior convictions.  However, you have admitted to Mr Mackinnon your prior use of serious illicit drugs from soon after leaving school for an unidentified period.  As previously mentioned, weed, which I interpreted as a reference to marijuana, cocaine, crack (which I interpreted as a reference to a form of cocaine that is smoked as opposed to being injected, snorted or otherwise imbibed), and heroin.  I take into account that your use of those drugs appears to have ended some years ago.

45I accept that you have strong support from family and friends which is likely to increase your prospects of rehabilitation. 

46A number of character references were tendered on your behalf, from:

·your wife, Laura;

·your mother, Lynne Yates;

·your mother in law, Cynthia Di Giorgio;

·your sister, Gemma Sparks;

·friends, Joanna Jones, Carl Boot, Terry Scott, Cara Shink, Naomi Sutcliffe, Kim Balme, Matthew Donahue and Guy Southern; 

·former work colleagues, Patrick Swan and Heath Lander; and 

·neighbours, Craig Waterson and Hannah Bingham.

47They each speak highly of you.  They speak of you in admiring and supportive terms.  All consider you to be a person of good character.  All express the view that your offending behaviour is out of character.  All speak of being aware of your problems coping with depression and of your qualities as a father and family man.  I shall take those into account.

48I accept that there has been a delay of over two years between the filing of charges and the plea hearing.  I take into account that this matter has been hanging over your head over that period.  Nevertheless, you have been able to use that time to demonstrate that you are capable of living a law abiding life and have worked towards your rehabilitation.

49On the basis of the reports of Mr Mackinnon and Ms Harris, it was submitted by your counsel on your behalf that at the time of your offending, you were likely to have suffered significant cognitive distortion and poor judgment and that you may have experienced transient psychotic symptoms.  Notwithstanding, I do not consider that it could be said that your condition resulting in poor judgment on your part could be described as some one-off incident in or around late 2015 or early 2016, in view of your history of use of illicit and dangerous drugs going back to your teenage years. 

50I do accept that upon that background, you have suffered a back injury and shoulder injury which appear to have been painful and resistant to treatment.  Notwithstanding, you have continued working up to the present time in the gymnasium industry, work likely to involve physical activity at least to some extent.  You do not appear to have sought a less physically stressful occupation.

51Senior counsel on your behalf submitted, and I accept, that your mental health issues enliven the fifth and sixth principles set out in The Queen v Verdins, in that a custodial sentence is likely to weigh more heavily on you than a person without your mental health condition and that incarceration is likely to cause a deterioration in that condition.  I take note of Mr Mackinnon's and Ms Harris's views that should you be imprisoned for a significant period, your condition is likely to rapidly deteriorate and you may become suicidal.

52In terms of culpability for your offending, as previously referred to, I accept that your supplier of LSD apparently located in Switzerland had offered to supply you with LSD for free if you agreed to on send various letters or parcels onto other persons.  You were given an address or addresses to where they were to be on sent.  If you followed those instructions you would continue to receive your supply of LSD at no charge.

53There was no evidence as to the exact amounts of LSD that you received or required for your own use or as to the value of it, although I accept it was in all likelihood a relatively small portion of the total LSD imported by you.

54You gave sworn evidence at your plea hearing.  You stated that the statements made by senior counsel as to the circumstances in which you came to import the LSD into Australia were correct.  You stated that you had no knowledge as to the quantities of LSD that were to be forwarded to you.  You stated that you were not aware that you were being sent anything other than small quantities and that you had no belief that you were being sent a quantity of two grams or more.

55There was no other evidence before me as to the precise agreement between you and your supplier, whether that agreement had been made by means of email messages, telephone conversations or by some other means.  In any event, it must have been obvious to you that you were involved in illegal activity.  There would have been nothing to prevent your Swiss supplier from sending the envelopes or parcels in question to any address in the world without your assistance.  Just why you considered that your supplier thought it was necessary to send such deliveries through you was not explained. 

56I consider that you would have known that by forwarding those letters on, you were forwarding LSD, or possibly some other illicit substance, to other persons.  Given the circumstances, I consider that you had no reasonable grounds for assuming that your supplier was sending you any particular quantity of the drug whether small, large or in between.  You may not have known the precise quantities being sent to you and for you to send on, but there was no evidence that you made any enquiries.

57In cross-examination, when you gave evidence, you referred to your financial hardship at the time of your offending and how desperate you were. 
You admitted that you had on sent the letters containing unknown substances in unknown quantities to unknown persons.  You said that you had formed enough trust on the basis of a forum of other users.  You conceded that these were poor decisions made by you.  Frankly, it is difficult to conceive a more naïve or reckless conduct.

58You conceded that you had not discussed the use of LSD with your treating psychologist because you knew it was illegal and you did not want her to feel awkward.

59I note that the offence of importation of a commercial quantity of the drug constituted by s.307.1 of the Commonwealth Criminal Code is one of absolute liability and your knowledge of the quantity is irrelevant to conviction.  Nevertheless, such ignorance is a matter that may be taken into account when sentencing you.  I accept that you did not know the actual quantity of LSD received by you and to be forwarded on but I consider that such ignorance was the result of recklessness on your part in failing to enquire.

60There was no evidence that you received any additional financial reward over and above the free supply of LSD to you from the Swiss supplier.  That is, there was no evidence of any additional enrichment for you.  The prosecution did not suggest that there was.  There was no evidence as to the precise value of the free supplies received by you or of any benefits that you anticipated receiving in the future.  Clearly, however this is a case which involved some financial benefit to you.

61I accept that you have suffered for some years from painful injuries and depression and anxiety.  Control of those conditions has proven to be difficult.  I accept that it came to your attention that LSD might be effective in the control of such pain and in assisting with your anxiety and depression and that that was the primary reason for your first obtaining and using that drug.

62Counsel have referred me to a number of sentences made both this court and the Court of Appeal in respect of importation of drugs of a trafficable quantity and a commercial quantity as is the case here.

63Counsel referred me to the decision of DPP v Masange who had been sentenced to seven years' imprisonment with a non-parole period of four years for importing a commercial quantity of cocaine and methamphetamine.  Beale AJA referred to the matter of the DPP v Wu, a 2016 Court of Appeal decision where Wu had pleaded guilty to importation of a commercial quantity of methamphetamine which was 5.29 times the commercial quantity threshold for that drug.  His criminal involvement had lasted a couple of weeks.  He played what was described as an intermediate role.  He was to receive a financial reward of $20,000.  He was only 28 years old at the time of sentence and had no prior convictions.  The trial judge had sentenced him to six years and six months' imprisonment, with a non-parole period of three years and six months.

64On appeal, that sentence was found by the Court of Appeal to be manifestly inadequate.  He was resentenced to a term of imprisonment for ten years and six months and a non-parole period of seven years and six months.

65Beale AJA also referred to the 2015 decision of the Court of Appeal in Merrill where the offender there had been originally sentenced to three years and
six months' imprisonment with a non-parole period of one year and two months for importing a marketable quantity of methamphetamine which was in effect
90 per cent of the commercial quantity threshold for that drug.  He had acted as a courier.  There was no evidence as to what financial reward, if any, he was to receive.  Again, the Court of Appeal found that sentence was manifestly inadequate and substituted a sentence of six years' imprisonment with a non-parole period of four years.

66I have perused the annexure to the decision of the Court of Appeal in Wu, which sets out a very large number of sentencing decisions in respect of importations of both marketable and commercial quantities of drugs.  I have taken these into account.

67I was also provided by the prosecutor with a table of what were described as comparable sentences which included the matters of Huang (I will come back to Hoang in a moment), Ostroski, Masange, Banker and Agboti.  Each of those matters involved a significant period of imprisonment.  I accept that each of the cases involved differing circumstances to your own offending.  I accept that your level of criminality appears to be somewhat less than was the case in each of those matters, particularly having regard to your intended use of at least some proportion of the LSD for medicinal purposes as opposed to solely commercial purposes.

68I agree with the comments of Judge Trapnell of this court as recently as last February in the matter of Teoh & George when he said that the so-called comparable cases are not easy to reconcile.  However, they do provide a general yardstick which helped to inform his instinctive synthesis regarding the appropriate for each of the offences he was considering.

69As previously stated, you are a citizen of the United Kingdom and not a citizen of this country.  I accept that you had, prior to your offending, determined to permanently reside in Australia with your family.  Counsel submitted to me that if you are sentenced to a term of imprisonment of 12 months or longer, it is virtually certain that you will be deported once your prison sentence has been completed.  However, the legislation does not compel such deportation.  It is a matter of discretion for the minister.  The fact that an offender may serve a term of imprisonment in expectation or fear of being deported following release may well mean that the burden of imprisonment will be greater for that person than for someone who faces no such risk.

70The Court of Appeal in the matter of Guden v The Queen made it clear that the sentencing court cannot be asked to speculate about the likelihood of deportation.  There the court said,

"If defence counsel on a plea in mitigation can say no more than that a term of imprisonment of more than 12 months will, upon its expiry, enliven the power of the Minister for Immigration either to revoke an existing visa or to decline to renew one and a deportation may properly be viewed as a 'completely speculative possibility.'"

71I do however take into account that any time spent in prison will be more onerous upon you than would otherwise be the case because of your concern about deportation upon your release.

72Both parties made submissions concerning the recent Court of Appeal decision in Hoang.  Hoang was sentenced to a total effective term of imprisonment of ten years with a non-parole period of six years.  He had attempted to possess and traffic quantities of cocaine.  Your counsel submitted that Hoang's level of criminality was significantly higher than yours.  I accept that his conduct more closely resembled normal criminal conduct associated with illicit drugs than your own.  It was conceded in Hoang that he was more than just a “mule”. 

73There are a number of features in Hoang that are relevant:

·Firstly, he was aged 23 at the time of his appeal and his offending had occurred when he was aged about 20.  Young. 

·He had attempted to possess 2.6 times the threshold for a commercial quantity of cocaine. 

·The value of cocaine involved in his case was in my view, not significantly dissimilar to the value of the LSD which you had imported.

·Like you, Hoang had no prior convictions. 

·Hoang appears to have offended solely because of greed, whilst I accept that you became involved in the importations at least initially in an attempt to self-medicate.

74Perusal of other sentencing decisions is nearly always of limited assistance.  The full facts, attributes of the offender, the nature of the offending conduct and the culpability of the offenders can differ widely.  In all the circumstances, I have come to the conclusion that a non-custodial sentence or a custodial sentence of 12 months or less as suggested by your counsel would be inadequate because of the amount of LSD imported by you and having taken into account the circumstances relating to that importation as outlined above.

75I have to the conclusion on the basis of the following findings: 

·You initially imported LSD in the hope and expectation that would assist in the treatment of your physical and mental health issues. 

·Shortly after, you understood that if you agreed to accept further parcels containing what you believed was to be LSD from time to time and forward them on to others who you did not know, you would be supplied with quantities of LSD required for your purposes without charge. 

·You did not know or enquire as to the precise contents of such importations. 

·You did not know or enquire as to the amounts of LSD that each importation would contain. 

·Finally, that the imported quantities were of about three and a half times the commercial quantity threshold for LSD.

76Further, it is not possible nor appropriate for me to ignore that parliament has prescribed a maximum penalty for your offence of life imprisonment.

77On the charge of importing a commercial quantity of LSD, contrary to
s.307.1 (1) of the Commonwealth Criminal Code, you are sentenced to a term of imprisonment of six years to commence this day.  Pursuant to s.19A and s.19B of the Commonwealth Crimes Act, I fix a single non-parole period of three years. 

78Pursuant to s.6AAA of the Sentencing Act Victoria, I declare that had you not pleaded guilty to this charge, I would have sentenced you to a term of imprisonment of nine years.  I note that there has been no period of pre-sentence detention.

79MS BURNNARD:  Pardon me, Your Honour, there has been one day.

80HIS HONOUR:  One day.  Thank you.  I declare that there has been one day pre-sentence detention which I declare should be reckoned as being served as in part satisfaction of the sentence imposed by me today and that that be recorded in the records of this court.

81Are there ancillary orders sought?

82MS AVIS:  No, Your Honour.

83HIS HONOUR:  Thank you.  The law relating to Commonwealth sentencing has been described as a minefield, a bit difficult to grasp at times.  Is there anything that either member of counsel consider which would indicate I had been led into error by my sentencing?

84MS AVIS:  Not from the Crown's position at this stage, Your Honour.

85HIS HONOUR:  Yes.  Ms Burnnard?

86MS BURNNARD:  Nothing is apparent from the notes I have taken at this stage, Your Honour.

87HIS HONOUR:  Yes, thank you.  Anything else I should turn my mind to?

88MS AVIS:  No, Your Honour.

89HIS HONOUR:  Yes, thank you.

90MS BURNNARD:  Just before Your Honour does leave the Bench, I wonder if it would be appropriate to acknowledge the email correspondence between the parties and Your Honour's receipt of those further submissions just to have them on transcript.

91HIS HONOUR:  They have all been taken into account, Ms Burnnard, thank you.  There is one matter that I should raise and that is this, that it should be noted on the records of not only this court but also in the near future, Corrections Victoria, that the opinions of both Mr Mackinnon and Ms Harris, that
Mr Di Giorgio-Yates does suffer from ‑ ‑ ‑ 

92MS BURNNARD:  It was major depression disorder.

93HIS HONOUR:  ‑ ‑ ‑ major depression disorder with anxiety, is that close enough?

94MS BURNNARD:  Yes, that's right.

95HIS HONOUR:  And with a, in their opinion, a risk of suicidal ideation in the event that he was incarcerated.

96MS BURNNARD:  Yes, Your Honour, it's very appropriate that that custody management issue be noted in the records of the court.

97HIS HONOUR:  Yes, thank you.  Mr Di Giorgio-Yates may be taken downstairs.

98MS BURNNARD:  May it please the court.

(Offender removed.)

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