Director of Public Prosecutions v Cooper

[2018] VCC 1226

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00559

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER COOPER

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	30 July 2018
DATE OF SENTENCE:	8 August 2018
CASE MAY BE CITED AS:	DPP v Cooper
MEDIUM NEUTRAL CITATION:	[2018] VCC 1226

REASONS FOR SENTENCE
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Subject:  Sentencing – plea of guilty

Catchwords:  Import marketable quantity of border-controlled drugs; 7 postal deliveries of MDMA; 2 packages cocaine; 2 packages GHB; attempt to possess cannabis resin; no prior offending; good rehabilitation prospects; need for general deterrence; strong support from family, employer and friends; purposes of importation primarily personal use     

Legislation Cited:     Crimes Act 1914 (Cth) ss 16A(1), (2), 17A, 20(1)(b).

Cases Cited:R v Nguyen; R v Pham [2010] NSWCCA 238; Nguyen v the Queen; Phommalysack v the Queen [2011] VSCA 32; DPP v Thomas; DPP v Wu [2016] VSCA 237; Harris v R [2014] VSCA 30; Matthews & Ors v R [2014] VSCA 291.

Sentence:                   TES: 34 months imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Duckett on plea Ms H. Baxter on sentence	Solicitor for CDPP
For the Accused	Mr B Walmsley QC with Mr I. Lloyd	Terence Renton

HER HONOUR:

1Christopher Cooper, you have pleaded guilty to three charges of importing a marketable quantity of a border controlled drug and one charge of attempting to possess a controlled drug. 

2The maximum penalty for each charge of importing a marketable quantity of a border controlled drug is 25 years' imprisonment and/or a fine of the equivalent of $900,000, that being the second highest maximum imprisonment sentence known under Australian law.  The maximum penalty for attempting to possess a controlled drug is two years' imprisonment and/or a fine of $72,000.  You will not be receiving anywhere near those maximum penalties, but I must take them into account as reflecting objectively how very seriously Parliament on behalf of the community regards these importing of drugs offences.

3The circumstances of your offending are summarised in a prosecution opening and I shall only repeat enough details to outline the features of the offending. 

4All of these offences were committed in the period between 21 April and
2 August last year - a little over a hundred days.  In early April last year you opened an account at Cheltenham local post office for a post office box in the name of Joshua Gordon, providing an email address reflecting that name and a mobile phone number.

5Between 21 April and 12 July 2017, six packages addressed to Josh or Joshua Gordon at that post office box were intercepted at Melbourne Gateway Facility by Australian Border Force, and found to contain varying quantities of substances containing the drug known as MDMA.  The purity ranged between 70 to 80 per cent.  Amounts in net pure weight ranged from 2.7 grams to 87.1 grams, the last two packages each containing over 86 grams pure net weight. In each the substance was concealed in different items inside the packages, most of which had been consigned from the UK, and one from a toy company in Amsterdam. Further, a seventh package was seized by police from Cheltenham post office also addressed to the post office box you had opened in the name Joshua Gordon. 

6The total net pure weight of MDMA concealed within those seven packages was 223.1 grams.  The threshold for a marketable quantity at the time of the offending was 0.5 grams.  These circumstances give rise to Charge 1, which is a rolled up charge encompassing all seven shipments.

7On 12 May 2017, Australian Border Force intercepted a package addressed to Josh Gordon at the post office box you had created which was found to contain 3.3 grams of cocaine in a heat sealed bag of 80.5 per cent purity. On 22 June 2017, Australian Federal Police seized another package to the same addressee at the Cheltenham local post office box which contained 55.7 grams mixed, or 45.3 grams pure weight of cocaine hidden in a sealed plastic bag inside a bag of whey protein powder.  The total pure net weight of cocaine imported in these two packages was 47.9 grams.  The threshold for a marketable quantity of cocaine at the time was 2 grams.  These circumstances are the basis of Charge 2, which again is a rolled up charge encompassing two shipments.

8On 22 June 2017 at Cheltenham local post office, AFP seized a package addressed to Josh Gordon at the post office box number you had opened, consigned from New South Wales and containing 101.1 grams of cannabis resin in 11 blocks of vegetable matter wrapped in red cellophane paper.  This package is the basis of Charge 3, of attempting to possess a controlled drug.

9    On 27 June 2017, AFP officers attended Cheltenham local post office to conduct surveillance on the post office box that you had opened to see if anyone attended to collect the assignments that they had seized.  You attended on that day and approached the counter, but apparently saw an AFP officer talking with the post office employee. You said you would come back later and departed. You were followed and seen to approach a car, but then as the AFP officer was seen by you, you ran away.  Subsequently, the same AFP officer observed a female approaching the car, asked her for her identification, and although she originally denied knowing who had driven the car, it emerged that it had been you.  The contents of the car were seized, and included items traceable to you including a mobile phone.

10On 14 July and 2 August 2017, two further parcels were delivered to the same post office box in the false name, from two different consignors in The Netherlands.  Both were found to contain marketable quantities of the drug called “GHB” in liquid form concealed in other items.  The total pure net weight of GHB imported by you was 163.8 grams.  The threshold for a marketable quantity of GHB at the time was 2 grams. (Charge 4)

11You were arrested on 26 July 2017 at your workplace and conveyed to your home in Moorabbin for the execution of a search warrant.  You were interviewed by police but made no admissions.  During the search at your home AFP police officers seized your mobile phone which showed connections with both the phone number and email address that had been used in the opening of the post office box. There was also an image of a receipt for payment for that post office box.  There were also some internet searches earlier that year connecting you with knowledge of the opening of the post office box, but also about cocaine withdrawal.  You also had notes in your phone for the cost of various of these drugs.

12You pleaded guilty to these charges at a committal mention in March this year.  Although that was eight months after your arrest, there had been no disputed hearings and the prosecution concedes that you should receive the sentencing benefit of an early plea of guilty to which I shall refer later.   You have been on bail since the date you were charged.

13I turn next to your personal circumstances.  You are now aged 28, and have no prior criminal record, although as I shall explain, you had apparently been using illicit drugs for many years.

14You were born and educated in Melbourne as the eldest of three children to your parents.  Your father was a police officer for some 25 years, inevitably bringing home to his family some of the stresses of the confronting days he experienced. Unfortunately, some ten years ago he suffered serious mental health issues as the culmination of the distressing scenes and experiences to which he had been exposed in his work.  This put considerable strain on all members of your family from the time when you were in your late teens, and you apparently took on more family leadership responsibilities as the eldest child.

15I shall not repeat the content of the very moving and revealing letter your father has written, expressing regret at what he now sees as the extra stress he put on you through his own difficulties, and not realising that you were suffering your own problems to the extent that it is now revealed that you were.  I can assure you and him that I have ignored anything he said, nor the courage he had to write that letter.

16Further, your mother suffered very serious health problems in about 2012, which I am told significantly increased your anxiety as you were very close to her and were confronting the prospect of her illness possibly being terminable.  Thankfully it was not, and you still have her to support you as well as your father and your siblings.  I accept that her illness would also have placed great strain on you and all members of your family.

17I am told that you had behavioural problems, especially in your teens, which were recognised by your parents and for which some treatment was sought.  It seems that they were not resolved, but this was not realised by your family and when the stresses from each of your parents' illnesses grew, you turned to both alcohol and illegal drugs to try to cope and to keep going as you did with studying, working and contributing to your family's functioning.

18Despite some problems at school, you completed VCE and then started work.  While working you also attended Holmesglen College in Chadstone and successfully completed a three year Bachelor Degree of Business in Executive Administration.  You also undertook Certificates III and IV in Fitness.

19From the time of leaving school you have apparently had almost continuous employment, first at Bike Sports Imports, where you worked part time while completing your degree, and remained working until completing the fitness certificates, after which you commenced employment as a personal trainer. 

20All of this reflects real determination and application to what you see as important in building a solid future for yourself, and I will say more about that later.

21Since your offending came to light with your arrest, you have taken some very significant steps to address the causes of this offending, again reflecting great determination by you.  Since early August last year you have been addressing your longstanding addiction to several illicit drugs.  You first attended with
Ms Amanda Brown of Lamberti Associates for drug rehabilitation, describing that you had been addicted to illicit substances since beginning use of cannabis in your teenage years, and that you had also used cocaine and MDMA and from about age 24, GHB. You said you had been unable to withdraw from them because you were unable to pursue normal duties without them due to onset of extreme withdrawal symptoms. 

22You entered into an outpatient rehabilitation program through Ms Brown, which involved what is called "going cold turkey" or complete cessation of use of drugs.  There was also referral to Dr Tony Hammond to monitor and support the withdrawal process, and he prescribed some medication to assist through early withdrawal symptoms. You went through a period of about four weeks of intense withdrawal symptoms and it was observed by those treating you that through the immediate withdrawal process you had extreme symptoms, but you persisted at becoming drug free with the assistance and support of the counselling, the doctor and your family.

23To your credit you achieved this while continuing in your employment and have successfully become drug-free.  You apparently had two lapses into drug use late last year, and early this year but described them as “underwhelming”.  You revealed them to both your family and your counsellor, and have now abstained from illicit drug use for approximately a year except for those two brief lapses. Dr Hammond confirms that you continue to attend him for drug screens as well as advice in managing anxiety and depression, and he confirms through the drug screens no illicit drug use since January 2018.  He also notes you have been cooperative and motivated to bring about positive changes in your life, and appear to be doing well in controlling your substance abuse.

24You are described by Ms Brown as having engaged well in the rehabilitation process, being honest and reflective in response to questions asked of you and you have persevered, despite the level of anxiety you have expressed through the treatment process at times being crippling, particularly with this legal process hanging over you.  She also praises your having maintained your employment, describing you sometimes as being exhausted at counselling sessions, but managing to cope with your workload without resort to drugs.  She describes you as presenting very differently now from how you were at first assessment, and regards you as a healthy, physically fit young man with a bright future ahead.  She recommends a further 12 months of counselling with her if you are free to do so.

25A psychological report from Dr Michael Papasava, a clinical psychologist, discloses that he treated both your father and your mother before commencing to treat you in January of this year.  I shall not repeat what he says of your parents’ conditions, but it supports that you were impacted for a number of years by the stress associated with their illnesses.

26Dr Papasava diagnosed you as suffering from a major depressive disorder, panic disorder, social phobia, and substance dependence on alcohol, cocaine, GHB, marijuana and MDMA, but that substance dependence is now in remission. You reported to him extensive symptoms of depression. You apparently experienced the onset of panic attacks at age 23 or 24.  You describe being socially phobic since high school, feeling uncomfortable in social situations at least when sober, and generally feeling like an outlier. On the self-reported Beck anxiety inventory, you originally obtained a score putting your symptoms into the “severe” anxiety range. After Dr Papasava's treatment of you, most recently a further test on this inventory has considerably reduced the anxiety range to “mild”.

27Since he has been treating you, you have been abstinent from illicit drugs, but describe the range and amounts you used to consume.  Dr Papasava relates your drug use to the onset of your father's psychological condition, although on some accounts the cannabis use started earlier and the heavy use of GHB and cocaine, on some accounts recorded by Ms Brown, did not occur until after your mother's serious illness.

28Dr Papasava considers that your condition has improved markedly with a combination of psychological - that is cognitive behavioural therapy treatment - and pharmacological - that is anti-depressant treatment - and the drug and alcohol counselling.  He considers you still suffer from a major depressive disorder, panic disorder and social phobia, but no longer suffer from substance dependence. Your panic attack symptoms are fewer and less intense as well as less frequent.  You continue to suffer from social phobia but less intensely and you do not resort to drugs to numb yourself.

29I accept his opinion that you will require ongoing treatment for some time to come, and that you are committed to undertaking whatever treatment is required. 

30Dr Papasava expresses the opinion that your drug-taking response to your depression and anxiety impaired your judgment markedly and that combined with feelings of worthlessness and hopelessness led you to the offending behaviour.  He is also of the view that your drug-impaired judgment prevented you from recognising the seriousness of importing illicit drugs of dependence. That opinion, as was conceded by your counsel, does not assist you in activating certain legal principles that would attract leniency for your sentence. That is because Dr Papasava makes clear that it is the drugs that impaired your judgment and influenced your misconduct rather than the underlying depression and anxiety disorders directly.

31I do take into account his opinion that if you are given a custodial sentence, both your prognosis and your rehabilitation will suffer, as you will be unable to access the treatment you require and this will interfere with the treatment you require, and is likely to compound your already significant psychological difficulties. I accept that that part of his opinion does activate principles that call for some moderation of your sentence, under what are known as limbs five and six of Verdins case.

32Earlier this year you moved back to live with your parents, separating yourself from shared rented accommodation at which you apparently mixed with people who were a bad influence, particularly in relation to the taking of drugs.

33I am told that for the last five months you have been in a relationship which has also improved your outlook for your future. 

34I have read a large and impressive group of personal references including from employers, some fellow employees at your current employment, and from personal and family friends.  All reflect that you are regarded as kind and caring, respectful of other people, going out of your way to help others, and very devoted to your family.  Most say that they were unaware that you were using drugs or suffering the degree of depression you apparently were, and all express shock that you would engage in the importing of drugs with which you were charged.  Most described that as being totally out of character for you.

35Several also describe your application over the last ten or so months to addressing your drug abuse and psychological problems, and that you have seemed better in mood and health for that, and they admire your determination in how you have handled that.

36From previous but long time employer Bike Sports Imports, Ms Kramer describes you commencing work in November 2007 as a vibrant and positive young man, eager and full of energy, willing to advance and challenge yourself daily.  She regarded you as an intelligent teenager, mature for your years in the way you conducted yourself around your fellow employees, and extremely diligent and hardworking, taking your job seriously and taking on extra duties and long hours. She confirms that while working there for almost ten years you succeeded in achieving your Business Management degree, consistently staying positive even during the illnesses of your parents, of which she obviously was told.  She says that employment would be available for you again with that company even in light of knowing the charges you are now facing. She, like others, describes your offending as totally out of character and she is confident that you have the strength to get your life back on track whatever the result of the case and to again become a model citizen.

37Your present employer at F45 Training, Mr Mark Achermann, describes his experience over many years in a previous role of supervising staff, giving some weight to his opinions about you as an employee. He describes you as bringing a great vibe to the team of employees where you work, where you are very highly thought of by members of the gym, and regarded as respectful and professional.  He had not known that you were using drugs.  Your arrest at the gym in July last year came as a shock to him and all others who knew you there. On learning from you of your serious drug problem and the charges you faced, and despite the possible reflection on that gym, he accepted your assurances that you were going to kick the habit and do nothing similar again, and he gave you the chance to keep working there.  You have discussed with him the steps you have taken to address your drug addiction and psychological problems, and he describes you as having become noticeably happier as treatment has continued, more energetic and attentive, and he is confident that he made the right decision in keeping you employed there.

38There were a significant number of people in court to support you, still are - and I accept that you have strong support from your family and friends.  You have taken very significant steps towards addressing your substance abuse and the underlying and long term psychological conditions which you had previously addressed only with drugs and alcohol.  These circumstances, together with your very clear determination and application to your employment, indicate that despite your longstanding underlying problems, your prospects of continuing with your rehabilitation, and establishing a drug free future for yourself are what I regard as good.

39I turn now to sentencing principles which must be addressed under the Commonwealth Crimes Act. Under s.16A(1) and (2) of the Commonwealth Crimes Act there are various principles which I must apply in determining your sentence.

40Under s.16A(1), in determining the sentence, the court must impose a sentence that is of a severity appropriate in all the circumstances of the offence.

41Under s.17A, a court must not pass a sentence of imprisonment unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case. 

42Under s.16A(2), the court must take into account a number of matters if relevant in the particular case, and I now turn to those that are relevant in your case. Some already have been discussed.

43First, I must take into account the nature and circumstances of the offence.  In doing this I must assess the level of criminality of your role in this offending.  I have had regard in doing so to principles distilled in several cases in relation to federal drug offences.  I will include those in footnotes but not repeat them and their citations here.[1]

[1] R v Nguyen; R v Pham [2010] NSWCCA 238; Nguyen v the Queen; Phommalysack v the Queen [2011] VSCA 32; DPP v Thomas; DPP v Wu [2016] VSCA 237.

44These principles include that the quantity of the illegal drug involved is highly relevant in determining the objective seriousness of the offence, and is often the main factor available to assess comparative seriousness of criminality.

45In the present case I regard the first charge as the most serious, both in number of packages and total quantity of illicit drugs.  There were seven packages containing MDMA, the early ones being of low amounts although all over the threshold for a marketable quantity.  The total net pure weight was almost 450 times the marketable quantity threshold and just short of the midpoint on the spectrum of marketable quantity of this drug.[2]

[2] See Harris v R [2014] VSCA 30.

46The fact that this is a rolled up charge combines the weight of much smaller quantities with the higher ones. Two of the last three imports indicate a willingness by you to significantly increase the amounts you were buying and intended to import.

47Under Charge 2, the total weight from two packages containing cocaine was a little over 20 times the marketable quantity but less than 3 per cent of the commercial quantity for that drug, making it much lower on the spectrum of marketable quantity for that drug, and in my view, much less serious than Charge 1.  However it was an indication that you were extending your importations to different drugs.

48The cannabis resin ordered from New South Wales I regard as the least serious of these offences, both in quantity and as there was only one such parcel.  The charge brought in respect of that is, by its maximum penalties and the nature of the charge, of much lower seriousness than the other three charges.

49Charge 4 relating to GHB involved two packages containing a total of some 80 times the threshold for a marketable quantity but still well under 20 per cent of the range for marketable quantity of that drug.

50Your offending formed a course of conduct, a matter I must take into account.  The fact that these charges represent a total of 12 separate transactions and arrangements for packages to be delivered to you containing illegal drugs, and the fact that they involve four different types of illegal drugs in my view immense the seriousness of the overall offending.

51The explanation for this offending was that you were primarily trying to source from the internet the illegal drugs that you were yourself using and using apparently in growing quantities. I infer that such purpose probably had financial benefit for you rather than buying drugs at street value in Melbourne. However, there have been no valuations of the drugs provided to me, and although your ongoing use of each of these types of drugs was illegal, I regard your motive or purpose as considerably less culpable, that is less blame-worthy, than that of many other offenders in this type of case where the primary motivation is to make money through the intended on-selling of the drugs.  In this case there is no evidence before me of you intending to traffic any of these drugs to any other persons.

52You seem to have acted alone in making arrangements for the importation of these parcels of drugs.  The arrangements were not highly sophisticated, but you did use a false identity to apply for a post office box and for receipt of the parcels.  Again the number of transactions indicated you had a purpose in mind and were pursuing it.  It wasn't one single brief lapse.

53I take into account that you pleaded guilty to these charges which entitles you to some leniency in your sentence in several respects.  The prosecution accepts that the timing of your pleas of guilty should entitle you to the full benefit of an early plea.  I can and do take into account that that provides what is called a “utilitarian value” of saving the time and cost of disputed hearings for the community.[3] I accept that by this approach you were willing to facilitate the course of justice, although you did not initially cooperate by making admissions to police and indeed initially ran away when you saw a police officer. I take into account that your relatively early pleas of guilty reflect that by that stage you had accepted responsibility for your offending and acknowledged your wrong-doing.

[3]DPPs v Thomas & Wu.

54Finally in your case I accept that you have by your pleas of guilty and indeed to family, friends, your employer and to those treating you, expressed your remorse and regret for your offending.  I accept that your actions since your offending was discovered are consistent with genuine remorse, as well as genuine intention to address the underlying causes, and your wish to avoid further offending.

55In light of your very significant attempts to address the causes of your offending, namely longstanding substance abuse and longstanding psychological problems, together with the family support and your very strong work ethic, I regard your prospects of rehabilitation as good as I have already said.  For this reason I do not place as much weight as might happen in other cases on the need to deter you from further offending.

56However, I do regard general deterrence, that is the deterrent effect that any sentence I impose may have on any other persons, to be of primary importance.  As has been said in the Court of Appeal[4] about offending which also involved the ordering of illicit drugs online, the sentence was required to give full effect to the need to deter others and to denounce that conduct.  “If there be a perception amongst some that the online trading of drugs or their purchase or sale by post is somehow less serious than more traditional forms of dealing, those perceptions need to be dispelled by sentences which adequately reflect the need for general deterrence.”

[4]Matthews & Ors v R [2014] VSCA 291 at [75].

57You come before the court with no prior criminal record and that is a matter which I must and do take into account.  However, it has been held in other cases of this nature involving drug importation that the fact that a person has been of good character is not as of great weight in sentencing considerations as primary sentencing purposes of general deterrence and condemnation of the offending.

58Further and I referred to this earlier, although it is to your credit that you have no prior convictions, it is implicit in what I have been told of the cause of your offending and the purpose for it, that you have been in possession of and using illicit drugs for many years, which must mean that you were offending but of course without ever being detected or prosecuted. Nevertheless, I do take into account that you come before the court with no prior offences and all other aspects of your life do reflect good character.

59In drug importation or trafficking cases, as I have said, general deterrence and community denunciation are very important and must be given more weight than personal circumstances and prospects of rehabilitation.  However I have given some weight in your case to both personal circumstances and prospects of rehabilitation, and in particular in constructing a sentence in an attempt not to interfere for too long or with, or crush your motivation to continue with, the course of rehabilitation and counselling that you have been voluntarily undertaking for the past year relative to drug rehabilitation, and for over seven months in relation to treatment for your psychological conditions.

60Finally, I note that in cases of this nature it is important that sentencing courts have an eye to comparable cases because equal justice requires identity of outcome, whereas where there are relevant dissimilar or different circumstances different outcomes should be expected.  Further, it is important that courts throughout Australia look to sentences throughout Australia when sentencing in Commonwealth matters because of course the same principles and laws apply in each state.

61In the current case I was not presented with extensive tables or charts of comparable cases, but my attention was drawn by the prosecution to some cases said to have comparable aspects and I have considered those.  In particular in R v Ludwig[5] a younger offender than you was sentenced to a total of three years and 11 months' imprisonment with a non-parole period of two years.  However the longest and base sentence for his charges was a sentence of two years for trafficking a marketable quantity of a controlled drug, and you do not have a charge of trafficking. He did have a charge of importing a marketable quantity of a controlled drug which involved a rolled up charge of seven individual international consignments ordered on the internet, as were yours, over a four month period that is quite close to the period you engaged in this offending, and each of those was of a marketable quantity. However neither the weights nor that specific drug are described in the sentence for me to make a closer comparison.  The sentence imposed on that charge was 15 months' imprisonment, and a sentence of six months' imprisonment was imposed on another charge of the same nature that that was for 4.6 grams contained in 49 tablets of MDMA.  Another difference is that some of those charges were commenced after Mr Ludwig had been arrested on the first of them and was on bail. So overall I have taken into account that there are some comparisons but it is not directly on point to compare or impose an equivalent sentence as yours.

[5] [2014] VCC 997.

62I have also had regard to the Matthews' case, where a sentence of four years' imprisonment was imposed on a charge of importing a marketable quantity of a border controlled drug to which that offender had pleaded guilty.  That charge covered the importation of 21 packages, 17 of which contained MDMA, and others contained amphetamine and cocaine.  Quantities varied in their purity but the total was about half of the totals imported by you, at least of the MDMA. That charge reflected a greater number of parcels over a slight and lesser quantity.  Mr Matthews also had no prior criminal history, but it was taken into account that he had also been on-selling, that is trafficking, drugs and that was the subject of another charge but some of the drugs imported were for that purpose.

63I was urged by your counsel to impose a sentence which does not require you to serve any immediate time actually in prison.  I have considered whether such a sentence is available in applying the need to impose a sentence that is of a severity appropriate in all the circumstances of this offending, whilst also not imposing a sentence any more severe than is necessary to achieve sentencing purposes.  In particular s.17A requires me not to impose a sentence of imprisonment unless satisfied that no other sentence is appropriate in all the circumstances of the case after considering all available sentences.

64I have come to the conclusion that no sentence other than imprisonment is appropriate to adequately apply the relevant sentencing principles in this case.  Even taking into account strong mitigating factors, the purpose of general deterrence and considerable but to slightly lesser degree denunciation, cannot be sufficiently achieved for offending that lasted over a period of more than three months and involved 12 separate transactions, 11 being of importation of illicit or border controlled drugs.

65I have considered the prosecution submission that the seriousness warrants a term of imprisonment with a non-parole period.  That would mean a sentence longer than three years in total.  In my view, current sentencing practice together with comparable sentences require that some immediate imprisonment be served, to adequately reflect the seriousness of the offending and degrees of general deterrence necessary.  I have however decided that a head sentence that does not exceed three years would be sufficient, and that partial suspension by way of a recognisance release order should be imposed. The term to be served before such release should be significantly moderated due to the mitigatory factors I have already outlined, and in particular so as not to crush the prospects of your ongoing treatment for your former substance dependence and for longstanding psychological conditions.

66Having decided that no sentence other than imprisonment is available, I direct under s.17A(2)(b) of the Crimes Act that these reasons for this decision be entered into the records of the court.

67Would you stand up now please.  Christopher Cooper, on each of the charges you are convicted and sentenced as follows.

68On Charge 1 of importing a marketable quantity of MDMA, you are sentenced to 30 months' imprisonment commencing today.

69On Charge 2 of importing a marketable quantity of cocaine, you are sentenced to 12 months' imprisonment commencing on 8 April 2020.  That results in two months cumulation.

70On Charge 3 of attempting to possess a controlled drug, namely cannabis resin, you are sentenced to two months' imprisonment commencing today which makes that sentence wholly concurrent.

71On Charge 4 of importing a marketable quantity of GHB you are sentenced to a term of imprisonment of 15 months commencing on 8 March 2020, making two months of that sentence cumulative on Charges 1 and 2.

72I fix a period of nine months after which you are to be released on recognisance to be of good behaviour for the balance of the total term.

73I must explain that sentence to you.  The total effective sentence which I have imposed is 34 months' imprisonment.  I have ordered that you be released after serving nine months.  For the balance of the 34 months you will still be serving the sentence of imprisonment which I have imposed, but I have ordered you do that in the community, allowing you to go back to your normal way of life, and provided you are of good behaviour during that time, you will not have to serve any further time in prison nor return before the court.

74However, if you do commit any further indictable offences during that time, and I remind you that possessing illicit drugs, let alone buying or importing them are offences that can be punished by imprisonment and would constitute breaches of that undertaking to be of good behaviour - if that were to occur that could well lead to you being brought back before the court for reconsideration of your sentence.

75Do you understand that aspect, the recognisance release order?

76ACCUSED:  Yes, Your Honour.

77HER HONOUR:  All right.  I was asked to make a disposal order but I gather that does not need to be done?

78MS BAXTER:  It is not required, Your Honour.

79HER HONOUR:  Is that the situation?

80MS BAXTER:  It is not required.

81HER HONOUR:  All right.  This indictment contains only Commonwealth offences.  Is it required that I specify what the sentence would have been had there not been pleas of guilty?

82MS BAXTER:  Yes, under s.6AAA, Your Honour.

83HER HONOUR:  Well s.6AAA is the state provision.

84MS BAXTER:  Yes ‑ ‑ ‑

85MR LLOYD:  I believe it is optional, Your Honour.

86MS BAXTER:  No, Your Honour is required to state ‑ ‑ ‑

87HER HONOUR:  For Commonwealth offences?

88MS BAXTER:  Yes.

89HER HONOUR:  I had prepared it but that had not been mentioned in the hearing.  Whether it is for the purposes of s.6AAA or otherwise, I state that had you not pleaded guilty, but been found guilty of each of these importations and they would not have been rolled up charges of course, but for the same importations after a trial, I would have imposed a total effective sentence of six years' imprisonment with a non-parole period of three and a half years.

90Now you can take a seat, Mr Cooper while the paperwork for those orders is prepared.  I will have counsel for both sides check that the cumulation works as I have said I intend it, and also to raise if I have left out anything else.  Is there anything or you want longer?

91MS BAXTER:  Pardon, Your Honour?

92HER HONOUR:  Does the arithmetic work and the structure of the sentence?

93MS BAXTER:  I am just checking that, Your Honour.

94HER HONOUR:  All right, I will leave that to you.  Mr Lloyd, I intend, unless you persuade me otherwise, to mark the order with a custody note that it is your client's first time in custody and that he does have some psychological conditions.

95I would be prepared to provide a copy of Dr Papasava's report if it is with your client's consent but I would not otherwise.  I think he would be assessed on being taken into custody.

96MR LLOYD:  I agree with the first part of ongoing treatment.

97HER HONOUR:  Yes.

98MR LLOYD:  With regards to Dr Papasava's report, it makes reference to his father's employment which could be an issue.

99HER HONOUR:  His parents.  All right.  I would only supply it if it is urged or with consent and I will not if there is something in there that ‑ ‑ ‑

100MR LLOYD:  There may be some issues there, Your Honour, as Your Honour would appreciate.

101HER HONOUR:  All right.  I also understood it revealed matters about his parents that is private to them but has been revealed for the purposes of their son's case.

102Is your client currently on medication and if so, does he have a prescription with him?  I think there were anti-depressants being prescribed?

103MR LLOYD:  I will just seek instructions, Your Honour.  He is.

104HER HONOUR:  Does he have the prescription with him?

105MR LLOYD:  No, Your Honour.

106HER HONOUR:  I will have the custody note say currently on prescribed medication.

107MR LLOYD:  Thank you, Your Honour.

108HER HONOUR:  He will know what it is and can tell those assessing him.

109MR LLOYD:  Yes.

110HER HONOUR:  I think I have to put a monetary amount on the security for the recognisance.  I make it nominal in this case, $250.

111MS BAXTER:  Yes, Your Honour.

112HER HONOUR:  That does not have to be paid, Mr Cooper.  There needs to be a monetary security given for your undertaking to be of good behaviour.

113ACCUSED:  Yes, Your Honour.

114HER HONOUR:  But you do not have to pay it up front.  It would only be if you breach it.  All right, before the order is printed out - it is being printed out.  Do those figures work?

115MS BAXTER:  I am happy with those figures, Your Honour.  I am just ‑ ‑ ‑

116HER HONOUR:  Just waiting for - let me explain, Mr Cooper, the Commonwealth sentencing regime is very technical - you do not have to stand for this - it is just that it takes - it took me a long while to work it out and I want to be sure that I got the figures right.  I hope it amounts to what I have told you but it is technically more complicated than sentencing for state matters.

117ACCUSED:  Yes, Your Honour.

118HER HONOUR:  Which should not have to affect you this way but unfortunately it does. 

119MS BAXTER:  If we could just have five minutes, Your Honour?

120MR LLOYD:  If you might stand it down for ‑ ‑ ‑

121HER HONOUR:  All right, I will do that.

122MR LLOYD:  Just out of an abundance of caution, Your Honour.

123HER HONOUR:  Yes.  All right.  The last one I did was about 24 charges and that really needs time, but yes, I will - I want the figures to be right as far as we can ensure it from the start.

124MR LLOYD:  Yes, Your Honour.

125HER HONOUR:  I will stand the case down.  I will ask that
Mr Cooper be left in the court room and his family can talk to him during that time.

126MR LLOYD:  Thank you.

127(Short adjournment.)

128HER HONOUR:  All right, I gather it has been checked?

129MS BAXTER:  We are content with that, Your Honour.

130HER HONOUR:  That achieves what I said I was intending?

131MS BAXTER:  Yes, it does.

132HER HONOUR:  Good, all right.  I have filled out the rest of the recognisance order which I have signed here, so that it needs to be taken to Mr Cooper to sign.  If it is shown first to Mr Lloyd.  All right, I have signed the orders as indicated and the recognisance has been signed I gather and a copy will be provided to both sides of the order and the recognisance.

133I will ask that Mr Cooper be taken from the court into custody please.

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