Director of Public Prosecutions v Gundmundsson

[2019] VCC 1000

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-00532

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRYNJAR SMARI GUDMUNDSSON

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	29 May 2019
DATE OF SENTENCE:	31 May 2019
CASE MAY BE CITED AS:	DPP v Gundmundsson
MEDIUM NEUTRAL CITATION:	[2019] VCC 1000

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Import a commercial quantity of a border controlled drug – Cocaine.

Sentence:Total effective sentence of eight years and three months imprisonment, with a non-parole period of five years' imprisonment. 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms. K. Breckweg (To Plead) Ms. N. Schmitz (Sentence)	Director of Public Prosecutions
For Accused Gudmundsson	Mr. M. McGrath	Stary Norton Halphen Criminal Lawyers

HIS HONOUR:

1Brynhar Smari Gudmundsson, on 29 May 2019, in the County Court at Melbourne, you pleaded guilty to the following charge on indictment No. CR 19-00532:

Charge 1, import a commercial quantity of a border-controlled drug, the drug being cocaine.  This charge has a maximum penalty of life imprisonment and/or 7500 penalty units. 

2You are to be sentenced at the same time as Helgi Heidar Steinarsson.  You are not strictly co-accused in this offending. 

3The prosecution's case is that both of you were drug couriers acting independently of each other for the same drug syndicate. Due to the underlying commonality, as it is described in the offending and including that you both were young and Icelandic nationals.

4The travel arrangements for the both of you were as follows:

(a) You both departed Frankfurt on the same day, time and flight;

(b) You both had the same interconnecting destination of Hong Kong;

(c) You both had the same ultimate destination that was Melbourne, Australia;

(d) That the purported reason for both of your travel was for a holiday;

(e) Both of your hotel accommodation, originally the Victoria Hotel and the Ibis Hotel, were booked on the same day, that is 2 November 2018, from Iceland, using the same website, and

5(f) That you were both scheduled to depart Melbourne, Australia, on 17 November 2018 on Cathay Pacific Airlines flight No.CX104 to Hong Kong.  You both further scheduled to depart Hong Kong to Frankfurt on Cathay Pacific flight CX289 on 18 November 2018. 

6Another similitude is that you were both carrying the same drug, which was cocaine and the way in which the drugs were supplied to you both:

7(a) In a Delsey suitcase;

8(b) In the same form of concealment, including a false floor and use of silver screws in the bottom of your case;

9(c) The drugs were contained within two packages;

10(d) The cocaine was wrapped in the same type of drug wrappings “CIS Filme Carbono”, which I understand is some sort of a carbon paper.

11The commonality of the features to your offending arise from your criminal masters, rather than your own actions.  You met Mr Steinarsson, your fellow prisoner now, for first time in custody when you were here in Melbourne. 

Circumstances of your offending

12On 3 November 2018, you checked into Cathay Pacific Airlines, Flight No. CX 288 for Hong Kong.  You checked in your Delsey branded suitcase as baggage.  Your flight was from Frankfurt to Hong Kong.  On 4 November 2018, at 7.10 pm, you departed Hong Kong on Cathay Pacific Flight No. CX165 for Melbourne, Australia. 

13On 5 November 2018, at about 7 am, you arrived at Melbourne International Airport.  On your incoming passenger card, you declared that you were in Australia for a holiday and would be staying at the Ibis Kingsgate Hotel, located at 131 King Street in Melbourne. 

14At about 7.25 am, Australian Border Force officers approached you and questioned you about your travel to Australia.  You stated that you were travelling alone and you were here for a look around.  You were selected for further examination to establish your bona fides.  At the commencement of the examination, you confirmed that the suitcase in your possession was yours which you had packed yourself and that you were aware of the contents of the suitcase. 

15You were then subject to a full baggage examination by the Australian Border Force officers and they identified anomalies in your suitcase.  Further examination revealed white powder concealed in the lining of the suitcase contained within the two packages.  The Australian Federal Police subsequently arrested you and seized your iPhone. 

16Subsequently, National Measurement Institute analysis established that the two packages contained 2,107.5 grams of pure cocaine.  The commercial quantity for cocaine is two kilograms.  The wholesale value of the cocaine is between $420,000 and $576,000, the street value of the cocaine is between $1,264,500 and $1,686,000.  It had a potential of generating some 4,215 individual doses of cocaine.  The amount of pure cocaine found is 1.09 times the applicable amount for a commercial quantity. 

17After your arrest you exercised your right to make a no-comment record of interview. You admitted to drug-related charges or offences in Iceland.  In 2002, a charge of possession and use of cannabis where you were fined, and in 2014, driving a motor vehicle under the influence of amphetamines where you were fined and your licence to drive was cancelled for a period of four months.  You have no other criminal history.

18At the time of the sentence you had spent some 207 days in pre-sentence detention. 

Personal circumstances

19You are 26 years old, both at the time of the offence and time of your sentence.  You have a supportive family consisting of your foster father, Mr Kristjansson, your mother, Ms Kristinsdottir, your sister, Ms Guomundsdottir and half-brother, Mr Gudbjartsson.  Each of them have written references that were exhibited at your plea hearing and I have read those references. 

20In 1996, your biological father committed suicide.  You were four years old.  You thought your father had died in an accident until you were approximately 11 years old when you became aware of the true situation regarding your biological father's death.  By that time, your mother and foster father had developed your loving and caring family which now exists. 

21At approximately the same time in your life, at age 11 or 12 years old, your mental health took a turn for the worst. 

22The psychiatrist, Helgi Garoar Guomundsson, in an assessment of you dated 22 October 2018, which was just shortly before you came to Australia, sets out your early psychiatric history and treatment as follows:

'I refer to the undersigned's previous medical certificates, both with respect to care needs assessment, rehabilitation benefit and disability.  The undersigned has seen Brynjar intermittently in recent years.  He returned to the undersigned now due to his renewed application for disability.  The subject is a man aged 26, who from the age of 12 to 20 received treatment supervision at the outpatient clinic of BUGL (National University Hospital Child and Adolescent Psychiatric Department.)  This included long-term outpatient care, as well as admissions to the adolescent ward of Child and Adolescent Psychiatric Department, and placements at the facilities run by the Government Agency for Child Protection and at treatment facilities.  He was monitored by the BUGL outpatient clinic from the age of 12 and that service continued until the age of 20.  There is a clear family history of mental illness on both sides of the family, Brynjar's father took his own life in 1996.  Brynjar's wellbeing and behaviour deviated considerably from the norm throughout his childhood.  He was placed at a Government Agency for Child Protection and treatment facility at Arbot, Aoaldalur, for a year and a half.  He was at the Fjolsmiojan work training centre in Kopavogur for some time, which he enjoyed.  After Lithium treatment was introduced at the age of about 18, real improvement was seen in mood swings, and considerably more stability was achieved, but considerable mood swings persisted for some time.'  

23In that same report, your present diagnosis is bipolar affective disorder which was in remission, ADHD and behavioural disorders due to your use of stimulants.  As it turns out, one of the stimulants you were using at that time was cocaine. 

24This diagnosis is confirmed by Dr Sam Calvin, psychiatrist, in the report dated 27 May 2019 which was Exhibit “G2” on your plea.  As a result of your psychiatric symptoms, your education was limited.  You had three unsuccessful attempts at completing high school level in Iceland.  You have worked as an electrician's assistant, and ice cream and food service person.  You were last gainfully employed in December 2017, with your foster father's electrical business. 

25You were in a relationship for a period of three years up until the end of December 2017.  You had taken on your partner's son as your own son.  You were working and competing in fitness and bodybuilding competitions, your psychiatric state was stable.  You describe this time as a perfect routine. 

26Suddenly, your partner had ended the relationship.  You started using cocaine and became addicted to it.  You became indebted to your drug suppliers to the tune of some $20,000 in Australian value.  This debt was the genesis of your offending.  You agreed to transport drugs to Australia in return for the drug debt being wiped.

27After your arrest and incarceration in Australia, you have used your time fruitfully.  You have engaged in courses in life-skills, alcohol dependency and cleaning certificates.  You have declared to Dr Calvin that you will not resume of illicit drugs and understand the impact they have on your psychiatric wellbeing.  You have commenced courses in technology, engineering and basic maths.  You also have a job in the prison cutting grass. 

28Dr Calvin noted a tattoo on your arm, the tattoo has the words, 'Never give up.'  That is a characteristic of your personality that your family members speak about in their references.   In Iceland, on your return, you have been assessed as 75 per cent invalidity due to your psychiatric condition. 

Sentencing Considerations

29The most significant consideration when sentencing a federal offender such as yourself is s.17A of the Crimes Act which provides as follows:

“…. a 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”.

30A term of imprisonment is the only appropriate sentence for your offence.

31Section 16A 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 prisoner such as yourself. 

32There are many factors I must take into account when sentencing you which are set out in the Act.  These factors include:

33(a) The nature and circumstances of your offence;

34(b) If your offence forms part of a course of conduct;

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

36(d) The degree to which a person has shown contrition for the offence. In your case, remorse has been set out in Dr Calvin's report;

37(e) It is confirmed by your plea of guilty;

38(f) That you have pleaded guilty to the offence;

39(g) The deterrent effect of any sentence or order under consideration may have on a person that is specific deterrence on you; 

40(h) The deterrent effect of any sentence or order under consideration which may have another person who is likeminded to bring drugs to Australia, that is, general deterrent factor;

41(i) The need to ensure you are adequately punished for your offending;

42(j) Your character, antecedents, age, means, physical and mental condition and the prospects of your rehabilitation; and

43(k) The probable effect of any sentence or order under consideration will have on you and your family. 

44As I have said before you have pleaded guilty to this charge.  Your plea of guilty was at the earliest time. Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of substantive issues raised by your offending.  Your plea 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. 

45Your plea is also a clear indication and acknowledgment by you that you accept responsibility for your criminal behaviour on this occasion.  Your plea also recognised 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.  Your plea of guilty in this case is of particular significance due to the number of witnesses and the complexity of the evidence which would necessarily have been needed to be called on a trial such as this. 

46I accept your plea is indicative of your remorse in this case.  At the time of this offending, you were 26 years old.  I regard you as a reasonably young offender.  It is a principle of sentencing law in this country that when a young offender such as yourself is to be sentenced, the sentencing disposition should be tailored, taking into account all other sentencing considerations, to promote your rehabilitation.  This approach serves both the interests of the individual offender and the community as a whole.

47In balancing your relative youth, I also have to take into account, the two drug-related matters admitted by you which have been dealt with by financial penalty in Iceland.  Those charges are relatively minor in the context of this offending.

48In your case, your relative youth is a consideration that justifies a shorter term of imprisonment than otherwise would have been imposed on a person of more mature years and experience of life. 

49I also take into account the maximum penalty of life imprisonment which is set down by Parliament for your offence. 

50In sentencing you, I have to have regard to the current sentencing practices. This is but one factor I am required to take into account and your case is different I every other case as they are I one another.  In order to obtain national sentencing consistency or have regard to the decision of intermediate appellate courts in the States and Territories of Australia.

51The use of comparable cases is to assess the yardstick to illustrate the range of sentences, but not to define sentences with any mathematical precision.

52Mr McGrath on your behalf submitted that the differentiation in the purity of cocaine in your possession compared with the purity of cocaine in Mr Steinarsson's suitcase, meant that the drugs you imported just qualified as a commercial quantity and that Mr Steinarsson's quantity was a marketable quantity. 

53Whilst the sentencing regime is a quantity-based system for the drugs and the amounts of drugs, it does not mean there is a direct mathematical correlation between the amounts of the drugs and the length of the sentence.  

54The relevant factors to take into account when assessing the seriousness of your charge, are as follows: 

(1) The amount of pure cocaine is 2.1075 kilograms.  This amount is 1.09 times the commercial quantity;

(2) The evidence is that you knew you were importing drugs to Australia but not which drug, nor how much of that drug you were carrying in your suitcase;

(3) The benefit you were to receive from this escapade by you, was a financial one.  In your case, you were going to have the equivalent of a $20,000 drug debt forgiven; 

(4) Your role as a courier involved you doing the following actions;

(i) Taking possession of a suitcase containing the commercial quantity of border-controlled drugs;

(ii) Organising the flight and hotel accommodation;

(iii) Checking in the Delsey suitcase concealing the two bags of cocaine;

(iv) Boarding the series of international flights over a couple of days;

(v) Falsely declaring the purpose of your travel as a holiday; and

(vi) Falsely declaring that you were not carrying prohibited goods. 

(5) Your sole purpose for the travel to Australia was to deliver the drugs and then go home to Iceland; and

(6) The harm of the imported drug, that is, the cocaine does to the Australian community. 

55As a courier, you play a crucial role in the drug-trade, even if the rewards to you are reasonably limited. 

56The principles of sentencing also mean that I take into account your psychiatric diagnosis and treatment in the past.  You have been abstinent I drugs whilst you have been incarcerated. 

57You have been abstinent from drugs for the period of your incarceration. I accept that the condition of bipolar disorder and your psychiatric health generally will make your time in custody more burdensome than for a person of normal mental health.  Further, I also accept that any time you will spend in custody will be more difficult for you because you are in foreign country and consequently have no visits, or very few visits from friends or family whilst you are incarcerated. 

58I take these two factors in combination into consideration in fixing a just sentence for you.  It is expected that you will be deported immediately upon your sentence of imprisonment is completed. 

59The 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. 

60Will you stand please?

61On Charge 1, you are convicted and sentenced to eight years and three months imprisonment.  I fix a non-parole period of five years' imprisonment. 

62I declare that you have served 207 days pre-sentence detention.  I think that number is right, is that correct?

63MS SCHMITZ:  It is correct.

64HIS HONOUR: Thank you. Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to 11 years with an eight year minimum parole period.  You can take a seat.