Commonwealth Director of Public Prosecutions v Brown
[2016] VCC 511
•27 April 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-14-00185
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JARED BROWN |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 March 2016 | |
DATE OF SENTENCE: | 27 April 2016 | |
CASE MAY BE CITED AS: | Commonwealth Director of Public Prosecutions v Brown | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 511 | |
REASONS FOR SENTENCE
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Subject:Sentencing – Importation of a commercial quantity of a border controlled drug.
Catchwords:
Legislation Cited: Criminal Code Act 1995 (Cth); Crimes Act 1914 (Cth);
Cases Cited: Nguyen and Phommalysack v R [2011] VSCA 32
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R Barry (Trial, plea) Ms E Jaber (Sentence) | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr P Dunn QC (Trial, plea) Mr Z Zayler (Sentence) | Melasecca, Kelly & Zayler |
HIS HONOUR:
1 Jared Brown, you have been found guilty by a jury of two counts of importing a commercial quantity of a border controlled drug (namely, methamphetamine) contrary to s.307.1(1) of the Criminal Code Act 1995 (Cth).
2 The circumstances of your offending can be summarised as follows.
3 On or about 24 March 2013, a vessel arrived in Melbourne from Long Beach, California. Unloaded from that vessel was a shipping container in which was located, amongst other goods, four motor vehicle engines. Those engines had been shipped to Melbourne by JT Core Buyers, a business operated in Los Angeles by one Dennis McAndrew.
4 The engines were in due course collected from the docks area and taken to premises in Thomastown.
5 McAndrew flew from Los Angeles to Melbourne where he collected the engines from the Thomastown premises and, initially, drove the engines to Sydney. He later returned with them to Melbourne and on 8 April 2013 you made contact with him and arranged to meet.
6 On the following day, you and McAndrew took the engines to an address in Altona, being premises occupied by a friend of yours. McAndrew, with some minor assistance from yourself, physically dismantled the engines and removed from them approximately 4.4 kg of methamphetamine contained in packages which had been secreted within those engines.
7 You then took those packages and stored them for a time at the home of your parents in Warragul.
8 On 18 April 2013, you arranged to meet a man in the car park at Chadstone shopping centre and handed over the drugs to him.
9 Through your counsel, you admitted that you were aware that the substance was a border controlled drug and that you were involved in its importation to Australia.
10 These matters constitute Charge 1 (to which I shall refer to in these remarks as “the first importation”).
11 On 21 July 2013, another vessel arrived in Melbourne from Long Beach containing a shipping container in which were a further nine motor vehicle engines. Customs officials detected abnormalities concerning those engines and Australian Federal Police officers attended and dismantled them. The engines were found to contain 102 packages containing methamphetamine which had been secreted within the engines in a manner similar to the first importation.
12 An analysis of the contents of the packages showed that they contained 44.667 kg of pure methamphetamine.
13 The methamphetamine was removed by federal police and substituted with salt. The packages were then placed back into the engines, which were then reassembled and made available for collection from the wharf.
14 In due course, the nine engines were collected and taken to the same premises in Thomastown.
15 McAndrew again flew from Los Angeles to Melbourne where he rented a truck and collected the engines from the Thomastown premises.
16 Soon after, you contacted him and agreed to meet him. He, driving the rented truck containing the nine engines, and you proceeded to your parents’ home in Warragul. Over the next two days, the nine engines were dismantled by McAndrew, with some assistance from you, and the 102 packages of the substituted substance were removed from them. You took the packages back to your Richmond apartment. McAndrew returned to a motel at Reservoir where he had been staying, intending to fly back to Los Angeles.
17 Unbeknownst to you, Australian Federal Police officers had had you and McAndrew under surveillance for some time. Your mobile phone had been tapped. Listening devices had been installed in the truck which McAndrew had rented to carry the engines.
18 On the evening of 3 August 2013, you and McAndrew were arrested. The substituted packages were seized.
19 These matters constitute Charge 2 (to which I shall refer in these remarks as “the second importation”).
20 It appears that the Australian Federal Police had not been aware of the first importation until after your arrest following the second importation. At that time, your mobile phone was seized from you at that time and details of your earlier messaging with Ricardo Vacca were obtained from it. That WhatsApp messaging contained extensive details concerning your involvement in the first and second importations.
21 You pleaded not guilty to both counts.
22 Through your counsel, you admitted:
·Firstly, your involvement in the importation of methamphetamine, a border controlled drug, in relation to both the first and second importations.
·Secondly, that, in each case, the amount of the methamphetamine was a commercial quantity (that term being defined in the Act as more than 750 mg of that drug).
·Thirdly, that you had imported the substance, on each occasion, intentionally.
·Fourthly, that you knew the substance in each case was a border controlled drug.
23 Your defence in relation to both counts was that you had carried out the conduct constituting the offences under duress. I shall return to this defence shortly.
Background
24 By way of background, you are currently aged 33. You were aged 31 at the time of both of the offences.
25 You were born and raised in Warragul. You are one of three children. You are single.
26 Your primary and secondary school education occurred in Warragul.
27 You appear to have enjoyed a happy childhood with caring parents. In general terms, it was a happy upbringing during which you wanted for little. During your secondary schooling, you spent time in Berlin as an exchange student.
28 You performed part-time work during much of your secondary schooling.
29 You completed Year 12 and soon after, commenced tertiary study.
30 In 2006, as part of your tertiary course, you spent approximately a year attending a university in Guadalajara in Mexico.
31 There you met a number of students, including one Ricardo Vacca.
32 Later, having returned to Australia, you obtained full-time employment and discontinued your tertiary studies.
33 By 2012, you were employed by a company operating in Papua New Guinea. You were earning approximately $160,000 per annum. You worked 28 days on and 28 days off. You had formed a relationship with a young lady named Marisela who you had known since your time as a student in Mexico. By mid-2012, you were spending your 28 days off work with her in Mexico City. You obtained an apartment with her in that city.
34 During one of those off periods, when you were in Mexico in December 2012, you visited Guadalajara and met again with Ricardo Vacca. He introduced you to a number of his acquaintances. Your evidence was that you met these gentlemen on a number of occasions.
35 You were scheduled to return to work in Papua New Guinea on 7 January 2013. You failed to return for such work and, as a consequence, your employment was terminated.
36 You had a number of meetings with Vacca and his acquaintances during January 2013 in Mexico.
37 You returned to Australia on 24 January 2013. Marisela came to Australia for a holiday about a month later from mid-February. She later returned to Mexico.
38 From late March to mid-April 2013, you communicated regularly with Ricardo Vacca by means of WhatsApp messages, emails and Skype phone calls.
39 I note that you returned to Mexico for a time in between the two importations.
The Duress Defence
40 As regards to duress defence, your evidence was that in January 2013, Vacca and his colleagues had informed you that they intended to import drugs into Australia and required someone in this country that they could trust. Your evidence was they told you that they wanted you to be here to receive, store and deliver the drugs imported into Australia. Your evidence was, in effect, that you were forced to participate in both the importations and that threats, or at least thinly veiled threats of violence were made in respect of Marisela and her family in Mexico and in respect of you and members of your own family here in Victoria should you decline to cooperate with them. These alleged threats formed the basis of your defence that you were involved in the importations under duress.
41 The verdicts of the jury in respect of both counts reflect its finding that the prosecution had established, beyond reasonable doubt, one or more of the following:
·That you did not reasonably believe that a threat had been made to you that would be carried out unless the offences in question were committed by you; or
·That you did not reasonably believe that there was no reasonable way that the threats could have been rendered ineffective; or
·That you did not reasonably believe that your conduct in committing the offences was a reasonable response by you to the threats.
42 In any event, I am to sentence you on the basis that you were not acting under duress at the time that you committed the offences in question.
General sentencing principles
43 Section 16A of the Crimes Act 1914 (Cth) provides for a number of matters which a court is to have regard to when passing a sentence in respect of federal offences. These matters include the following:
·That the court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
·The nature and circumstances of the offence.
·Your personal circumstances.
·The degree to which you have shown contrition for the offences.
·Whether or not you pleaded guilty to the offences.
·The degree to which you cooperated with law enforcement agencies in the investigation of the offence or other offences.
·The deterrent effect that any sentence or order under consideration may have upon you.
·The need to ensure that you are adequately punished for the offence.
·Your character, antecedents, age, means and physical or mental condition; and
·The prospect of your rehabilitation.
44 I am also conscious of the provisions of s.17A of that Act which provides that a court shall not pass a sentence of imprisonment on any person for a federal offence unless the court, having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.
45 In this matter, your counsel has conceded that the offences require a condign punishment and that a period of immediate imprisonment is warranted. He did not suggest that any other sentence was appropriate in all the circumstances of the case.
46 Both your counsel and the prosecutor submitted to me that the principles laid down by the Court of Appeal in the matter of Nguyen and Phommalysack v R [2011] VSCA 32 were applicable in determining your sentence. In that matter, the Court set out a number of propositions said to be applicable to sentencing for drug importation offences. I will set them out in full:
(i)The criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect 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.
(ii)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.
(iii)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.
(iv)Although the weight of the drug imported is not the principal factor to be considered when fixing a sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported.
(v)Ordinarily, the amount of the drug involved in an importation is a highly relevant factor in determining the objective seriousness of the offence, even 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 a 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.
(vi)As a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit.
(vii)The difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight upon a sentence and that stern punishment will be warranted in almost every case.
(viii)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 activities are neutralised by the risk of severe punishment.
(ix)The involvement at any level in a drug importation offence must necessarily attract a significant sentence. Otherwise the interests of general deterrence are not served.
(x)The prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor than it might otherwise be given.
(xi)Where offenders are not young, the immaturity of youth cannot be claimed as a factor bearing upon their transgressions.
(xii)Where an offender is to be sentenced for an attempted possession offence, it should be kept in mind that the act of attempted possession can only be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, are relevant to determining the degree of moral culpability attached to the act of attempted possession itself. Offences of attempting to possess imported drugs are not, for that reason, of a less serious category than those of importing drugs. Of course, I take it into account here that the prosecution did not pursue the third charge of attempting to take possession of the methamphetamine and proceeded on the two importation charges alone.
(xiii) A sentencing Judge shall have regard to the offender’s involvement in the overall transaction for the purposes of determining the offender’s degree of involvement in the drug smuggling enterprise.
It has also been said that the following are key reference points for sentencing in cases such as this. And they are:
· Quantity;
· The role played;
· The reward;
· Assistance to authorities given;
· The offender’s criminal history; and
· The offender’s prospects of rehabilitation.
47 In respect of those matters, I make the following comments concerning your offending:
(a) The offences of which you have been convicted are serious ones. They each involve the importation of a large quantity of methamphetamine. The quantity involved in the first importation was nearly six times the level constituting a commercial quantity of that drug as defined in the Act. The quantity involved in the second importation was approximately 60 times that level.
(b) The drug has a number of negative effects which include hypertension, paranoia, hallucinations, irritability, seizures, deficits in memory, insomnia, depression, anxiety, renal issues, dental problems, psychosis and heart palpitations. It is often associated with violent behaviour.
(c) Crystal methamphetamine, the form in which you imported this substance, is the purest and the most potent form of the drug. Its use involved many dangers of physical injury both to the user and to others associated with them.
(d) The wholesale value of the methamphetamine the subject of the first importation was between $660,000 and $968,000. Its street value was between approximately $3.3m and $4.4m.
(e) The wholesale value of the methamphetamine the subject of the second importation was between approximately $8.4m and $12.3m. Its street value was between approximately $42m and $56m. There was no evidence as to the original cost of the drug in either Mexico or the USA. On any view, the importations of the drug involved very large sums of money and potential profit.
(f) Your personal circumstances as at and for a number of years prior to the earlier part of 2013 was that you had a good employment record. You had a well paid job. Your offences do not appear to have been committed for reasons of need, rather they appear to have been committed for reasons of greed.
(g) Although there was little evidence as to what financial gain you stood to make as a result of either of the importations, I infer that the returns to you were likely to have been significant.
(h) You pleaded not guilty to these charges. It was necessary for a trial to be held. You are therefore not entitled to any discount of sentence that otherwise would have been made had you pleaded guilty. I am to take it that you have shown no remorse in respect of your offending.
(i) Although you provided the name of Ricardo Vacca to police following your arrest, I consider that there are many aspects of your involvement in these offences where you have provided little or no cooperation at all.
(j) I note that you have no prior convictions of any relevance at all.
(k) In July 2014, however, whilst on bail in respect of these charges, you committed offences of possessing amphetamine (namely, speed), possession of cannabis and possession of diazepam without a prescription. Whilst they are not prior convictions, it is relevant that these offences were committed at a time when you were awaiting the hearing of the charges for which you are currently before the court and might indicate to some that your prospects for rehabilitation may be limited. The explanation given by you for the possession of those substances was that you had used at least some of them at that time to self-medicate for anxiety and insomnia. Whilst that might have been so, I do note that there were various legal medical means of effectively treating such conditions by consultation with a medical practitioner that would have been available to you at that time.
(l) You are and were at all material times in good physical health. I do not consider that you have any mental health issues of significance.
(m) The maximum penalty for the offence of importing a commercial quantity of a border controlled drug is imprisonment for life. Such a maximum penalty emphasises the seriousness with which Federal Parliament holds the offences in question.
48 A report from a psychiatrist Dr Lester Walton dated
15 March 2016 was tendered on your behalf, although your counsel did not submit that its contents had particular relevance to the sentences to be imposed by me. Dr Walton had assessed you on four occasions between June 2014 and March 2016. He expressed a number of opinions in that report. He considered that:
(a) You were appropriately diagnosed as having a chronic adjustment disorder with mixed anxiety and depression.
(b) You were a man of normal intelligence.
(c) You had a history of intermittent use of illicit drugs but had not been drug-dependent.
(d) That you had exhibited clinically significant levels of anxiety and depression prior to being incarcerated following your conviction and that implies that imprisonment will be a somewhat more onerous experience for you than some other people.
(e) That you had no past history of antisocial conduct which he considered implied a rather better prognosis in relation to recidivism or reoffending in a similar manner in the future.
Your Role in the Enterprise
49 I now turn to the submissions that were made in relation to your role in this importation enterprise. The principal area in which your submissions of your counsel at your plea differed from the submissions of the prosecutor was in relation to that role played by you. Your role, and the level of criminality involved in it and your place in the hierarchy of the enterprise, are of importance to the sentencing process.
50 Your counsel submitted that your role was properly categorised as being at the lower end of the syndicate’s hierarchy and that you were a “mere warehouse man and not much more”. He submitted:
· That you had not organised the shipping of the drugs to this country;
· You had merely assisted in collecting and storing the drugs once they were imported.
· It was only after the first importation arrived that you appreciated that the drug was methamphetamine and not some other border controlled drug.
· That your role was merely to collect, store and then pass the drugs on to an arranged buyer and not to find a purchaser yourself.
· And that, although there is always some aspect of financial gain in the offence of importing a border controlled drug, he submitted that you were not to share in the profits of the importation but were to be, "Merely a paid hand", again to use his term.
51 The prosecutor made other submissions. He submitted that your role was a significantly greater one. He said it involved the following:
· Taking possession of the drugs on both occasions;
· Arranging and facilitating the removal of the drugs from the car engines;
· Storing of the drugs after removal from the engines;
· Attempts to organise a purchaser;
· He submitted that your role involved the selling of the drugs to the purchaser on the first importation;
· And receiving money from the sale of the drugs and remitting funds overseas. I will come back to that in a moment.
52 The enterprise, when looked at as a whole, must have involved:
(i) The sourcing of methamphetamine from somewhere overseas, likely to be either Mexico or the United States.
(ii) The delivery of the drugs to McAndrew in Los Angeles;
(iii) The shipping of the drugs from Los Angeles to Melbourne;
(iv) The collection of the drugs from the wharf in Melbourne and the transportation of them to premises in Thomastown;
(v) The collection of the engines from Thomastown;
(vi) The dismantling and unloading of the engines at a private location;
(vii) The storing of the drugs pending delivery to a purchaser or buyer.
(viii) The locating of a buyer and negotiation of price;
(ix) The delivery of drugs to the buyer;
(x) The receipt of purchase moneys.
53 Having listened to the evidence at trial and to submissions of counsel, I consider that your role was indeed limited to the sixth, seventh and ninth items that I just went through. That is:
· The dismantling and unloading of the engines at a private location
· The storing of the drugs pending delivery to a buyer
· And the delivery of the drugs to the buyer.
54 I do not accept that you were involved in actively selling, receiving moneys or remitting moneys back to somewhere overseas. That is not to say that you played no role in the actual importation because, firstly, that is a matter that was admitted. And secondly, the evidence makes it clear that you were party to that importation or well aware of the importation in the months or weeks leading up to it. It would be wrong to think of your role as merely a warehouse man.
55 Your role was to make contact with McAndrew and facilitate the unloading of the drugs from the engines. This was, I consider, more than merely collection and storage. You decided where to unload the engines. You provided McAndrew with the necessary support in terms of tools and the provision of a suitable place to dismantle the engines with adequate privacy.
56 As to your role, if any, in locating a purchaser, it appears that your role did not extend to this, at least not initially. I consider that it is likely that, initially, the task of finding and negotiating with potential purchasers was to be performed by others. Upon the arrival of the first importation, it appears likely that the arrangement was for the drugs to be delivered to a purchaser in Sydney. For reasons that are not explained on the evidence, it seems that that arrangement faltered and the search for an alternative purchaser was necessitated. The WhatsApp communications between you and Ricardo Vacca around that time show that you were prepared to involve yourself in that task although, in the end, the purchaser appears to have been located by others. The purchaser made contact with you in due course and arrangements were made for you to hand over the drugs to him. There is no evidence that you physically received the sale proceeds.
57 Your discussions concerning the importation of the drugs and what was to happen to them in Australia were almost entirely with Ricardo Vacca. It appears that he, in turn, was in communication with others, probably in Mexico. However, I do not consider that your communications with Ricardo Vacca took the form of orders from him. Rather, they reflect that Ricardo was in contact with others and that, from time to time, he passed relevant information on to you regarding the timing of the arrival of goods, how you were to contact various people including McAndrew and keeping you abreast of sale arrangements which changed from time to time. In view of the jury verdicts, I must sentence you on the basis that you were a willing participant in these importations.
58 With regard to the second importation, it is unclear as to what arrangements had been made to sell the drugs on. Your arrest on that evening in August 2013 resulted in the cessation of all communications between you and Ricardo Vacca.
59 The extent to which you were to profit from these importations is unclear but the evidence showed that you anticipated that you would profit, at least to some degree. The WhatsApp messages around the time of the first importation make this clear. The second importation involved approximately 10 times the quantity of the first and I can infer that you anticipated that you would share in a significant commission or profit arising from the sale of some 44 kg of pure methamphetamine. I do not consider that the evidence points to you being paid on some flat rate or hourly rate.
60 Although the WhatsApp messages following the first importation disclose that you have provided some limited advice as to the knowledge of persons who might be able to advise how sums of money might be moved out of Australia, I do not consider that the evidence discloses that you were ever in receipt of the proceeds of sale or that you expected to be in receipt of the proceeds.
61 There was no evidence that you were involved in transferring of any moneys outside of Australia.
62 I accept that you did not appear to have knowledge as to the identity of the border controlled drug involved in the first importation until those drugs had arrived here. I consider that it is clear, with regard to the second importation, that you were aware that it involved methamphetamine before its arrival.
63 I accept that there is no evidence that you had knowledge of the actual quantity of the drug involved the second importation prior to its arrival. You you were told of a quantity of approximately 5 kg in relation to the first importation.
64 This was plainly an enterprise that involved a number of persons. It is possible and even likely that individual participants were not in receipt of information at all times concerning the activities of each other participant. It is likely that there were one or more persons coordinating the various activities of each participant. It is clear that you were not such a co-ordinator. In that sense, you performed a lesser role than some. You were not a principal or mastermind of the enterprise. Nevertheless, you played an essential and an important part of it.
Prospects of rehabilitation
65 In considering your prospects of rehabilitation, I take into account:
· Your age;
· Your level of education;
· Your apparent level of intelligence;
· Your employment history;
· The fact that you have no relevant prior convictions; and
· The fact that you appear to have considerable support from your family and friends.
66 I consider that you have good prospects for rehabilitation, notwithstanding your further involvement with drugs of dependence in mid-2014 whilst on bail.
67 Further, I have taken into account the character testimonials led in evidence in trial and at your plea hearing and the written character references that were tendered.
68 I sentence you on the basis that, prior to the commission of these offences, you were a person of good character.
Delay
69 Your counsel further submitted to me that your sentence should be discounted to allow for the delay that had occurred between the date of your arrest and the date of your trial.
70 You were arrested and charged with these offences on 2 August 2013. A committal hearing was held on 22 November of that year and a contested committal hearing proceeded on 4 February 2014. You were committed for trial and your first trial commenced on
10 March 2015. At the conclusion of that trial, the jury was unable to reach a verdict considering your guilt or otherwise. Due to the commitments of your then counsel, a suitable hearing date could not be found before 20 January when this re-trial commenced. No submission was made that the Crown had unduly caused any delay in bringing this matter on for trial or re-trial.
71 Nevertheless, I take into account that you have had these charges hanging over your head for more than two and a half years since your arrest.
General Deterrence
72 I acknowledge the authorities in these matters indicate that the principle of general deterrence is an important sentencing consideration.
Verdins Principles
73 Although Mr Newton makes reference in his report to you currently suffering from a level of depression and anxiety and that this had been the subject of some treatment prior to your arrest following the offences, your counsel expressly disavowed any reliance on the principles enunciated in the 2007 Court of Appeal decision in
DPP v Verdins.[1]
Sentence
[1](2007) 16 VR 269
74 In view of the nature of the sentences, the role played by you in the respective importations, the quantity of the drug involved in both importations and having considered all other available sentences, I am satisfied that no other sentence other than imprisonment is appropriate in respect of both of the offences for which you are convicted.
75 I have had regard to a number of sentences passed upon other persons convicted of similar offences. Counsel referred me to a number of them. I have noted the comments of the High Court in the decisions of The Queen v Pham[2] that each case will depend on its own facts and circumstances. I also note the comments of the Court relating to the caution required in referring to tables and charts and statistics concerning other sentences imposed in other cases. Notwithstanding, it is clear from the cases to which I was referred by both counsel that persons convicted of offences such as these are generally sentenced to a significant period of imprisonment.
[2] [2015] HCA 39
76 Stand up please, Mr Brown.
77 In respect of the charge of importing a commercial quantity of a border controlled drug on or about 21 July 2013, you are convicted and sentenced to a term of imprisonment of 10 years. This shall be the base sentence.
78 In respect of the charge of importing a commercial quantity of a border controlled drug on or about 24 March 2013, counsel were in agreement that this could not be considered to be a single course of conduct along with the second importation. You are convicted of that offence and sentenced to a term of imprisonment of seven years. I direct that two years of this term shall be served cumulatively upon the base sentence.
79 It follows that I have sentenced you to a total effective sentence of imprisonment for 12 years. I direct that you shall not be eligible for parole for a period of seven years.
80 I consider that it is appropriate to direct a shorter non-parole period than what might be considered usual. I do so in your case because I consider, for the reasons previously expressed, that your prospects for rehabilitation are good. You have significant support from your family and others and this is likely to continue upon your release. You have good prospects of returning to employment. I consider that it is most unlikely that you will reoffend in this or similar manner again.
81 Madam Prosecutor, upon my calculations, pre-sentence detention came to 363 days, but I seek confirmation from you.
MS JABER: Your Honour, 262 days, not including today.
HIS HONOUR: You had 300 and - - -
MS JABER: Sorry, 262 days.
HIS HONOUR: Two-hundred?
MS JABER: Two-hundred and sixty-two days, not including today.
HIS HONOUR: Mr Zayler, do you have anything to say about that?
MR ZAYLER: No, Your Honour.
82 I declare that 262 days of pre-sentence detention, not including today, be reckoned as having been served under that sentence, and I direct that a declaration of that effect be recorded on the records of this court.
HIS HONOUR: Madam Prosecutor, are there any ancillary orders that are sought?
MS JABER: No, Your Honour.
HIS HONOUR: Thank you. Yes. Mr Brown may be taken downstairs, thank you. Yes, adjourn the court until 2.15, thanks.
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