CDirector of Public Prosecutions v Mooney

[2023] VCC 1578

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-00472

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

v

SAM MOONEY

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	26 July 2023
DATE OF SENTENCE:	26 July 2023
CASE MAY BE CITED AS:	CDPP v Mooney
MEDIUM NEUTRAL CITATION:	[2023] VCC 1578

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW – Sentence

Catchwords:  Import a marketable quantity of a border controlled drug – cocaine

Legislation Cited:  Crimes Act 1914 (Cth), s17A; s16A (2)

Cases Cited:Worboyes v The Queen [2021] VSCA 169, R v Verdins (2007) 16 VR 269

Sentence:Convicted and sentenced to three years and three months imprisonment with a non-parole period of 20 months imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth	Mr B. Scaramozzino	Commonwealth Director of Public Prosecutions
For the Accused	Ms E. Allan	Victoria Legal Aid

HIS HONOUR:

1Sam Mooney, on 26 July 2023, that is today, at the County Court of Victoria at Melbourne, you pleaded guilty to a single charge of importing a marketable quantity of a border-controlled drug, which was cocaine.  That charge has a maximum penalty of 25 years' imprisonment, or 5,000 penalty units, or both. 

2You have no prior criminal history in Australia.  You have admitted a prior criminal history in the Republic of Ireland.  The prior criminal history in Ireland is indicative of a personal history of substance abuse.  Your substance abuse and indebtedness for it give the context to your offending in this case.

The circumstances of your offending

3You were 27 when you offended.  You are now 28.  The prosecutor tendered an Amended Prosecution Opening for Plea dated 21 July 2023.  It was
Exhibit “A”.  The prosecutor read the relevant matters into the record of the court.

4You are an Irish citizen.  You arrived at the Melbourne International Airport on 28 December 2022.  You were due to board a connecting flight to the
Gold Coast in Queensland.  Your luggage was selected for luggage examination.  Your luggage was examined by Border Force officers. 

5During that baggage examination you engaged in a conversation with Australian Border Force officers prompted by a questioning related to the reasons for your travel.  You then stated in reply, words to the following effect: 

(a)  You had decided to come to Australia after a fight with your brother and you had been going through a rough patch at home.

(b)  You were there for a 10 day holiday to visit three friends who reside at Broad Beach in Queensland.

(c)  One of your friends had paid $3,600 for you to fly out to the Gold Coast.

(d)  You had about 500 euros in your possession and did not have any additional money with you either on cards or otherwise.  You were expecting some pay from your job at home.

(e)  You worked as a milkman in your father's business, and that you earned
500 euros a week, working five to six days a week; and

(f)   you regularly use drugs, in particular, cocaine, cannabis, ecstasy and ketamine.  Your most recent drug use was cannabis the day before your travels, and cocaine on Christmas day.

6Following that conversation, Australian Border Force elected to conduct an IONSCAN swab on the lining of your suitcase.  The IONSCAN swab returned a presumptive result for cocaine.  You were then subsequently frisk searched and the search returned negative results. 

7You consented to a body scan.  You were then conveyed by Australian Federal Police so an internal search of you could be conducted in hospital.  During your trip to hospital, you told the police that you had secreted the drug, cocaine, inside your anus.

8You admitted to the Royal Melbourne Hospital for observation.  Between
1.15 am and 10 am on 29 December 2022, you excreted a total of six capsules, the first five capsules were wrapped in a plastic type of material, the sixth and last capsule was wrapped in cling wrap. 

9The contents of the six capsules were analysed and examined. The examination revealed:

·Six layered packages comprising a knotted latex condom, cling film and a hinge plastic capsule. 

·Within each capsule contained a quantity of loose white powder. 

·The total net weight of the powder was 122.4 grams.  The analysis of that powder returned a positive result for the presence of cocaine. 

·The examination results confirmed the powder was cocaine and had a purity rate of 78.4 per cent. 

·The Australian Federal Police crime scene investigator, Fraser, concluded that the pure weight of the cocaine seized from you was
95.9 grams.

10You were interviewed by the Australian Federal Police.  You made the following admissions in your record of interview with them:  

·You admitted to secreting the six pellets inside yourself. 

·You admitted unlawfully importing a border controlled drug, which was cocaine, into Australia. 

·You admitted that each pellet contained approximately 20 to 21 grams of cocaine. 

·You admitted constructing the pellets of cocaine. 

·You admitted to the unlawful possession of the cocaine. 

·You admitted to knowing that the cocaine was illegal in Australia. 

·You stated that you were the only one responsible for the cocaine. 

·You stated the purpose of importing the cocaine was to sell it. 

·You did not disclose any information about who gave you the cocaine or how the capsules came into your possession. 

·You admitted to personal drug use and possession, including marijuana and cocaine and you denied receiving payment, financial or otherwise, and denied being asked by others to construct the pellets.

11Your admissions and the location of the drugs was the prosecution's case against you open and shut.

Your personal circumstances

12You are now 28 years of age.  You were born in Dublin, Ireland.  Your parents, your two older brothers and younger brother and sister still live there, waiting for you to return home.  Two of them are here today.  Your father runs a successful milk distribution business in Dublin.  Your eldest brother stepped up to run that business as your father has stepped back into semi-retirement.  You have work in that business when you return home.  You have a loving and supportive family and have not suffered any childhood traumas.

13You attended primary school for eight years and secondary education for six.  With the completion of your leaving certificate, you told Laura Scott, a clinical neuropsychologist, that your leaving certificate score was below your expectations. 

14When you left Ireland on this ill-fated trip you had been in a relationship with Rebecca O'Keefe for three and a half years.  She came here today to support you all the way from Ireland.  Ms O'Keefe, in her reference letter to this court, describes you as a kind, caring and generous person who derives positive feedback from giving to other people.  Your role in prison as a peer listener is an example of your approach to other people. Ms O'Keefe refers to your social anxiety as an explanation for your descent into drug and alcohol use in the past.  You have no children. 

15You reported to Laura Scott a history of polysubstance use commencing in your teenage years.  You were drinking alcohol at a heavy level at age 18.  You had started as young as 12.  At 14 you were smoking hashish.  At 16 you used cocaine for the first time.  At 18 you were using ketamine and MDMA.  Your main drug or addiction was cocaine.  You also regularly used Xanax to calm you down.

16You were using cocaine regularly before coming to Australia.  You had incurred a significant drug debt to your suppliers.  The debt was said to be in the order of 13,000 euro.  I note from the reference material that your father had to pay the debt whilst you have been in custody here in Australia.  He gave evidence in court before me to confirm that that was the case.  He has got the last payment to make in November. You have stated your reasons for this offending was that your drug debt would be waived if you undertook this importation of cocaine. 

17In August 2017 you were the victim of a serious assault in Dublin.  You were in St James Hospital from 13 August 2017 until 31 August 2017, a total of 18 days. Your Glasgow coma score was 5 out of 15 when you were admitted. 
After treatment and further cognitive assessment you had an MOCA score of 21 out of 30 on your release. 

18You have been assessed by Laura Scott, neuropsychologist, who prepared a report dated 29 June 2023.  It was Exhibit 2.  She has diagnosed you as suffering from a traumatic brain injury with subarachnoid bleeding on the brain in 2017.  The result of that injury is that you have a moderate to severe impairment of memory function, that you have a mild impairment to speed of information processing, attention abilities, recall and executive function. Ms Scott has assessed you as suffering from a moderate depression and extremely severe anxiety with mild stress.

19As your injury in 2017 is now six years ago, Ms Scott's opinion is that your cognitive function would be stable as assessed by her, both at the time of the offending here and at the time of her examination and report of you in June this year. 

20In Ms Scott's opinion, your acquired brain injury (‘ABI’), or acquired brain injury, symptoms and anxiety would contribute to your inability to exercise impulse control, meaning it impacts on your capacity to stop and think in the heat of the moment.  Her opinion is that this condition does not impact on your capacity to understand the wrongfulness of your actions, in this case, your offending.

21Ms Scott states that your decision to engage in the offending is consistent with your impulsivity from the ABI and your failure to process the possibility of apprehension, incarceration, and subsequent deportation.  Your time in custody will be negatively impacted due to your ABI. 

22This time in remand has been your first experience in a custodial setting.  You have a prior criminal history in the Republic of Ireland for affray and assault, relevantly, you have convictions for possession of drugs.  Clearly your use of drugs has significant risk in terms of exacerbating your existing symptoms of ABI.

23You are an example of a young man who has had a good family upbringing undone by your use of drugs and its consequences of indebtedness.  Once in the debt trap you resorted to the quick fix of engaging in criminal activity.  Once caught, you waste part of your valuable life in prison greens.  Meanwhile you have your family and girlfriend, Rebecca, her family, and friends, worrying about you and missing you in Ireland. 

24You have spent 210 days in pre-sentence detention.

Sentencing considerations

25The most significant consideration when sentencing a federal prisoner such as yourself, is s17A of the Crimes Act, which provides as follows:

'The court shall not pass a sentence of imprisonment on any person unless the court, having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case'. 

26A term of imprisonment is the only appropriate sentence for your offence.

27Section 16A (2) of the Crimes Act sets out a non-exhaustive list of factors a court must take into account and take into consideration when sentencing a Federal offender such as yourself.  There are many factors I must take into account when sentencing you, which are set out in the Act.  These factors include:

(a)The nature and circumstances of your offence.

(b)If your offending forms part of a course of conduct by you.  Not this case.

(c)Any injury, loss or damage resulting from the offence.

(d)The degree to which a person who has shown contrition for the offence.  In your case remorse has been set out in Ms Scott's report and the references from your family and Ms O'Keefe confirm that to be the case.

(e)You pleaded guilty to the offence and at an early stage.

(f)The deterrent effect of any sentence order under consideration may have on you, that is specific deterrence on you.

(g)The deterrent effect any sentence or order may have under consideration or other likeminded persons to bring drugs into this country, that is general deterrence.

(h)The need to ensure you are adequately punished for your offending.

(i)Your character, antecedents, age, means, physical and mental condition.

(j)The prospects of your rehabilitation; and

(k)the probable effect any sentence or order under consideration will have on your family.

28As I said before, you pleaded guilty to this charge, and you indicated your plea at the earliest stage.  Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty of outcome and the resolution of your substantive issues raised by your offending. 

29Your plea also allows for the preservation of the court and police resources to deal with other matters, and your plea vindicates the public confidence in the legal process set up to protect the community here in Australia.

30Your plea is also a clear indication and acknowledgment by you that you accept the responsibility for your criminal behave on this occasion.  Your plea also recognises that you are willing to facilitate the course of justice in this community and I accept that your plea to this charge indicates and demonstrates remorse on your part. 

31Your plea of guilty in this case is of particular significance due to the number of witnesses and the complexity of the evidence that would have been required to be called in a trial of this case. 

32Your plea has a further utilitarian value at this time due to the significant backlog of trial hearings due to the COVID-19 pandemic.  You are entitled to the situation amelioration of sentence which is due to your plea as set out in the case of Worboyes.

33I am required to take into account current sentencing practices for the purposes of sentencing you for this offending.  I have had regard to the intermediate appellate court decisions provided by the prosecution and the cases set out in the table provided by your barrister in consideration of the current sentencing practices.  Each of the cases to which the parties have referred are distinguishable on their facts from one another and, indeed, they are distinguishable from your case.  The consideration of current sentencing practices is but one of the matters I am required to take into account when fixing a just sentence in the circumstances of your case.

34In a case of importing a border controlled drug such as cocaine in this case, the prime consideration for sentencing or consideration for sentencing are general deterrence and denunciation.  In your case Parliament has set the maximum penalty of 25 years' imprisonment for this offence.  This is a clear indication of the seriousness of your offence.  I assess your offending as the low to medium range for this type of offence. 

35The relevant factors to take into account when assessing your role and the seriousness of your offending are as follows:

(a)The amount of pure cocaine was 95.9 grams.  That amount is 48 times the marketable quantity for this particular border controlled drug.  It is 5 per cent of what is known as the commercial quantity for that drug.

(b)The prosecution allege that the value of cocaine itself is sufficient for a finding of financial gain by you.

(c)You knew you were importing cocaine.

(d)You packed and secreted the drugs within your own body.

(e)The benefit you were to receive for this importation was the extinguishment of your debt to your drug suppliers in Ireland to the extent of 13,000 euros or approximately $20,000 AUD.

(f)The harm your imported drug of cocaine does to the Australian community.

(g)You told police you were going to sell the drugs to make money.  This is the commercial aspect of your offending or the basis for a commercial aspect.

(h)I accept you had a drug debt in Ireland to the extent of 13,000 euro.  The commercial aspect of this offence is motivated by your need to extinguish that debt which ultimately your family have had to cover; and

(i)there is no evidence in this case of a network distribution to which you could sell the cocaine.  You were leaving the country in 10 days.  I find on balance you were delivering this importation to an unidentified person on the Gold Coast. You were a trusted courier rather than an individual trader of drugs.  I note here, as I have said before, that your father had to pay your drug debt due to your inability to do so.

36I have regard to your personal circumstances that I have set out earlier in these reasons for fixing your sentence.  I take into account your prior criminal history in Ireland relating to violence and drug possession charges.  You are not a person of unblemished character before the courts for the first time here.  Nevertheless, this is your first offence for this type of offending. 

37I accept you have an ABI from your assault in 2017.  Your counsel submitted that the principles of Verdins case applies in respect of this injury to reduce your moral culpability.  I do not accept that your ABI is a proper basis for the reduction of your moral culpability.  You knew your actions were wrong when you started it.  The effect of your ABI is that you failed to even consider the consequences of your actions if your importation was detected.  I do accept your underlying anxiety, which is a lifelong problem for you, in combination with your ABI will, and has made the time in custody more onerous for you than a prisoner who had normal mental and/or physical health.

38I also accept that you are held in custody where your only contact with your family until today, friends and Ms O'Keefe, have been by telephone or Zoom connection due to your location here and their location in Ireland.  This disconnection from family, your most prosocial resource, makes your time in custody a greater hardship.  I note that your time in custody has seen some positive factors as follows:

(a)You are abstinent from drugs.  I note here you are in a protective setting in that regard, but I also note that does not mean you cannot get drugs in jail.

(b)You have done numerous courses and taken up gymnasium training whilst in custody; and

(c)you have engaged positively in work in the prison, and you are volunteering in Ravenhall as a peer listener.

39I accept you are remorseful for your offending.  Your responses to the AFP investigators, the references tendered on your behalf speak of your expressions of remorse.  I accept those statements are genuine.

40I assess your prospects of rehabilitation is good.  That assessment has one assumption, which is you remain drug free.  If you remain drug free at the end of your sentence you will be deported to Ireland.  You have good family support, a relationship with Ms O'Keefe to continue, employment in the family business, in short everything is in place to live a good, productive, law-abiding life. You can put this terrible experience behind you but remember, your actions have consequences every day of your life. 

41The principles of general and specific deterrence, just punishment and protection of the community dictate that a term of imprisonment with a non-parole period is the only appropriate sentence in your case.

42Would you stand, please?

43You are convicted and sentenced to three years and three months' imprisonment.  I fix a non-parole period of 20 months' imprisonment.

44I declare that you have served 210 days' pre-sentence detention in respect of that sentence.

45Pursuant to s6AAA, that is but for your plea of guilty I would have sentenced you to five years and three months, with a three years, six months' minimum term.

46So, Mr Mooney, what that means is your head sentence, as it is called here, and probably a term you have heard out there in the prisons, is three years and three months, and your non-parole period is 20 months.  Of that you have served 210 days.  Is there anything else?

47MR SCARAMOZZINO:  Nothing further, Your Honour.

48MS ALLAN:  If Your Honour pleases.

49HIS HONOUR:  Mr Mooney, you do not have to listen to the next bit.  In Australia we have sheep farmers.  You have them in Ireland.  How it works is this.  Sheep farmer owns a sheep.  For the first four or five years of that sheep's life they get them in and they sheer them once a year.  They sell the wool.  At the end of the four, five year lifetime of a sheep, what they are what they are referred to as crackers.  We sell them to the live sheep trade.  Before they are sold off, they are shorn for the last time, fattened up for about a month and sent down to the ports for transportation to the Middle East.

50If the sheep dies in transit, they just throw it overboard, that is the end of it.  What is the parallel for your life?  Drug dealer is the sheep owner.  You are the sheep.  They have been sheering you for the whole time you have been using these drugs, taking everything you own, everything you work for, and when you get to such an indebted level like you did here you are put on the boat at the end of it. 

51Do you understand the parallel I am drawing?  Do not go back to be shorn.  Go back to live your life.  Thanks.

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