Director of Public Prosecutions v James
[2022] VCC 1603
•29 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00710
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TRENT MATHEW JAMES |
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JUDGE: | His Honour Judge Cahill | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 September 2022 | |
DATE OF RULING: | 29 September 2022 | |
CASE MAY BE CITED AS: | DPP v James | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1603 | |
REASONS FOR SENTENCE
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Subject:Attempt to possess commercial quantity of a border-controlled drug
Catchwords: Importation of methamphetamine – controlled delivery – collection of 9 boxes which would have contained 144.45 g of pure methamphetamine (192 CQ) – acting direction of others – limited role.
Legislation Cited: Justice Legislation Amendment (Criminal Procedure Disclosure and Other Matters) Act 2022 (Vic); Criminal Procedure Act 2009 (Vic); Criminal Code 1995 (Cth); Crimes Act 1914 (Cth); Corrections Act 1986 (Vic)
Cases Cited:Markarian v The Queen (2005) 228 CLR 357; R v Hai Van
Nguyen; R v Phuong Thu Thi Pham [2021] NSWCCA 238; Nguyen v R; Phommalysack v R (2011) 31 VR 673; Suky Lieu v The Queen [2016] VSCA 277; Pham (2015) 256 CLR 550; DPP (Cth) v Thomas [2016] VSCA 237; R v Shi [2014] NSWCCA 135; Maxwell [2013] VSCA 50; Worboyes v The Queen [2021] VSCA 169; Biba [2021] VSC 327; R v Verdins (2007) 16 VR 269; Collins [2015] VSCA 106; Tran v The Queen [2021] VSCA; Li v The Queen [2021] NSWCCA 100; DPP (Cth) v Wang [2019] VSCA 250; Kuo v R: Huang v R; Shih v R [2018] NSWCCA 270; Biango v The Queen [2018] VSCA 210; Shakhanov [2019] VSCA 38; Postiglione (1997) 145 ALR 408; Power v The Queen (1974) 131 CLR 623
Sentence:Total effective sentence of 13 years and 9 months’ imprisonment; minimum non-parole period of 8 years and 3 months; presentence detention 834 days
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms K. Breckweg | Commonwealth Director for Public Prosecutions |
| For the Defence | Mr D. Edwardson KC Mr S. Tovey | Fayman Lawyers |
HIS HONOUR:
1Trent James, you have pleaded guilty to:
(a) one charge of attempting to possess a commercial quantity of a border control drug contrary to subsections 11.1(1) and 307.8(1) of the Criminal Code 1995 (Cth); and
(b) two charges of failing to comply with an order under subsection 3LA(2) of the Crimes Act 1914 (Cth).
Circumstances of offending
2Your offending occurred on 14 June 2020 and 15 June 2020 at Melbourne.
3The circumstances are set out in the summary of prosecution opening dated 16 September 2022.[1] They are agreed facts.
[1] Exhibit A.
4On 4 June 2020, nearly 300kg of methamphetamine, concealed in 18 boxes, labelled as tea, was imported into the Port of Melbourne from Malaysia in a container of household furniture.
5On 8 June 2020, law enforcement authorities detected the methamphetamine and seized it. Each of the 18 boxes contained 20 cartons. Inside each carton was a clip seal bag which contained 1kg of a crystalline substance (80.3% pure methamphetamine).
6Authorities removed the methamphetamine and replaced it with salt for a controlled delivery.
7On 12 June 2020, a local logistics company, "47 Logistics", under instructions from a foreign logistics company, collected the container from the Port and transported it to its Tottenham depot.
8On 13 June 2020, “47 Logistics” workers unpacked the contents of the container and delivered them to premises at Williams Landing into the custody of a man named Nadarajah who operated another logistics company.
9On 14 June 2020, under instructions from a Malaysian national, Shahruddin, allegedly an organiser of the importation, Nadarajah transported nine of the 18 boxes to "Jeff' at Tarneit. When Nadarajah contacted “Jeff”, “Jeff” told Nadarajah his driver would collect the boxes from Tarneit. He sent Nadarajah a photograph of an Isuzu truck, which belonged to you.
10Later on the same day, you drove your drove the truck to Tarneit where you collected the nine boxes, which, but for the substitution, would have contained 144.45kg of pure methamphetamine, and transported them to your factory at Cheltenham where you unloaded the boxes and left.
11Overnight, Australian Federal Police (‘AFP’) obtained a surveillance device warrant and covertly installed cameras inside the factory.
12Next day, on 15 June 2020, around 11 :30AM, you returned to your factory. The cameras captured your movements.
13Between 12:30PM and 1:00PM, wearing gloves, you opened one of the boxes and emptied the contents, substituted salt, from each of the 20 cartons within the box into a white tub. When you had emptied the box, you picked up a handful of the salt and smelt it. Unlike crystalline methamphetamine, which has a distinctive vinegar-like smell, salt is odourless.
14After you had smelt the salt, you set fire to the box and the packaging and emptied the contents of the tub into a toilet. You then left the factory.
15During the unpacking process, you were using your iPhone.
16At 4:10PM, you returned to the factory, put on gloves, and opened two of the remaining eight boxes. From a carton inside each box, you removed a clip seal bag containing the substituted salt and retained them. You resealed the two boxes and photographed all eight remaining boxes. At 4:40PM, you left the factory.
17Sometime between 4:00PM and 5:00PM, Shahruddin had called Nadarajah and asked him to collect the boxes, saying the goods were not to the customer's satisfaction.
18Around 10:00PM, you returned to the factory where you met Nadarajah's workers who collected the eight boxes and took them back to the Williams Landing premises.
Arrest and guilty plea
19On 17 June 2020, police arrested you at your Carrum home. Your truck was parked nearby. They seized your mobile phone and an iPad.
20You were charged and remanded in custody.
21On 6 August 2020, you refused to comply with an order requiring you to provide the passcode to the iPhone and the iPad.[2]
[2]Crimes Act 1914 (Cth), s 3LA(2).
22You told police you did not want them to see intimate photographs of your partner on your phone. You said you did not know the passcode for the iPad because you had obtained it from your partner’s phone repair business. An examination of the data on the iPad revealed it was yours.
23After a contested committal and pre-trial argument, you sought a sentence indication.
24On 20 May 2022, I indicated, in the event you pleaded guilty to the charges on the indictment, I would impose upon you a total effective sentence of not more than 14 years and 6 months.
25Following, you were arraigned and pleaded guilty.
Sentence indication - Williams
26On 17 June 2022, I heard a sentence indication application by Dale Williams.
27Then, it was alleged Williams enlisted you to collect the nine boxes and store them at your factory. And he directed you to test the contents and report back to him. It was alleged Williams intended the drugs would be stored at your factory for sale or distribution.
28Intercepted messages record Williams admitting he had “a small share” in the consignment.
29On 17 June 2022, I indicated, in the event he pleaded guilty to:
(a) a charge of attempting to obtain possession of 144.5kg of pure methamphetamine which had been imported in the boxes; and
(b) admitted his guilt[3] to another importation of a commercial quantity of methamphetamine, in April 2020, to trafficking a commercial quantity of methamphetamine and cocaine, between September and December 2020, and during the same period, attempting to manufacture a marketable quantity of methamphetamine. He
I would impose upon him a head sentence not exceeding 17 years and 9 months.
[3] Crimes Act 1914 (Cth), s 16BA.
Criminal record
30You have admitted a criminal record.
31On 18 October 2006 and 9 December 2016, you were fined for drug possession.
32You have been sentenced to terms of imprisonment in 2004 (wholly suspended), in 2006 (partially suspended) and 2014 (wholly suspended) for driving offences.
33You have also been convicted and fined for violent offences in 2009, 2011 and 2015.
Personal circumstances
34You were born in February 1984. You were 36 years old when you offended. You are now 38.
35Your personal circumstances are set out in the psychological report of Carla Ferrari dated 3 May 2022.[4]
[4] Exhibit 2. It will
36You are the middle child of three boys.
37Your father operated an electronics and engineering business, and your mother was the homemaker.
38You reported you had a strained relationship with your parents, and you do not get on with your brothers. You said you always felt “left out”.
39Your father died in 2019. You have not spoken to your brothers since your arrest. You speak to your mother weekly.
40Your parents separated when you were 14. You describe yourself as disruptive and distracted at school. You left at 16 when you were expelled. You got roof tiling work for two years and then worked in the building industry. For a few years, you were unemployed. At the end of 2015, you started up a combat sports event business. And in 2018, you set up a stone import business. You used that business’s truck and premises to collect and store the boxes which had contained methamphetamine.
41You told Ms Ferrari you had used various drugs recreationally from the age of 13. You said, since the age of 25, your drug of choice has been cocaine. You told her your cocaine use worsened after the death of your father in 2019. You said you were using up to 25g per week prior to your arrest.
42You said your father moved overseas after he separated from your mother. He remarried a woman in Africa. You question whether she was trying to exploit him financially. After visiting her in Africa in 2018, he returned home severely underweight and reported he had been held captive and tortured. You described him as “a shell of a person”. He passed away in 2019 after a fall. You reported significant guilt regarding his troubles in Africa because you had funded his trip. You said you have experienced nightmares which relive your father’s trauma.
43Ms Ferrari administered a number of psychological tests.
44On the PHQ – 9, will will will your score was 23, indicating severe depressive symptoms.
45Your score on GHD – 7 was 18, indicating moderately severe anxiety symptoms.
46You scored 39/44 on the drug use disorder identification test (DUDIT), indicating a high risk of drug dependence.
47While there was some evidence of ADHD, based on your self-report, and PTSD, in consequence of your father’s death, she was unable to conclude whether you met the diagnosis of those conditions.[5]
[5] Your counsel properly did not rely on her opinions, given in court, you suffered ADHD and PTSD, which I indicated I did not accept.
48Ms Ferrari gave evidence before me.
49She re-tested you on 15 September 2022 to assess whether your anxiety and depression levels had changed since her initial examination.
50Your anxiety score was 20, indicating severe symptoms, compared with 18 in April.
51Your depression score was 24, compared with 23 in April.
52She acknowledged most prisoners feel anxious and depressed while they are incarcerated and awaiting sentence.
53In prison, you have held a position as an essential worker, undertaken the courses made available to you, and been drug abstinent.[6] Last month, you were shortlisted for the trusted role of peer educator.[7]
[6] Exhibit 3; Exhibit 4; Exhibit 5.
[7] Exhibit 18.
54There have been a number of prison lockdowns which you have logged.[8] You estimate you have spent close to 100 days in total isolation. Another 200 have been affected by some other kind of restriction or lockdown.
[8] Exhibit 19.
55Well-behaved prisoners, other than federal prisoners, may be eligible for sentence remissions for lockdowns (emergency management days).[9]
[9] Exhibit 20.
56I received a number of references from your family, friends and business colleagues who provide you with a substantial support network.
57Your mother described you as “a rock” to her.[10] You are generous in your help to her and your wider family.
[10] Exhibit 6.
58A close friend from school days described you as someone with a good work ethic and a willingness to help others who are in need.[11]
[11] Exhibit 7.
59Another friend, from your school days, described you as a good, honest, trustworthy, and loyal friend. You played football with him at the Moorabbin Football Club.[12]
[12] Exhibit 8.
60This friend’s father has also known you since school days. He knows you to be respectful, loyal, and trustworthy.[13]
[13] Exhibit 9.
61Your partner has been with you since 2011. She wrote you had faced difficult situations with the death of your father and COVID-related business pressures. Following your incarceration, she quit her job in childcare and started a Business Studies course to try to keep your Hex “Fight Series” business going. She wrote she “will always be here to help and support [you]”.[14]
[14] Exhibit 10.
62Your sister-in-law describes you as a generous, “loving, caring uncle [to her children] who is loved by [your] family and friends”.[15]
[15] Exhibit 11.
63Your business associates[16] describe you as a successful CEO of Hex which has given Australian athletes a pathway to compete in the Ultimate Fighting Championship – the Mecca for combat sports athletes.[17] According to your colleagues, you are extremely good worker and a good leader.
[16] Exhibit 12; Exhibit 13; Exhibit 14; Exhibit 15.
[17] Exhibit 16.
Defence submissions
64Your counsel, Mr Edwardson KC, who appeared with Mr Tovey, in written and oral submissions,[18] contended you only became aware the cartons would have contained methamphetamine, but for the substitution, when you opened one of the boxes and emptied the contents of the cartons, contained within the box, into a tub.
[18] Exhibit 1; Exhibit 17.
65And he submitted your use of your phone demonstrates you were acting under direction at each step.
66He submitted, in the circumstances, your guilty involvement was very limited.
67He acknowledged the quantity of drugs involved was substantial and the criminal drug enterprise was sophisticated.
68He submitted, because of the brief period of your involvement, the objective gravity of your offending would fall at the lower end of the range of offending of the type.
69He acknowledged it was open to infer you would be paid for collecting the boxes and storing them at your factory.
70He told me you refused to provide investigators with the passcode to your devices for fear of reprisal from the person who directed you to collect the boxes and check their contents.
71He relied on the following factors in mitigation of penalty:
(a) firstly, your guilty plea;
(b) secondly, the additional hardship of prison for all prisoners because the impact of COVID-19;
(c) thirdly, relying on the engagement of Verdins principles 5 and 6, the additional hardship of prison for you because of your psychological conditions; and
(d) fourthly, delay in sentencing.
72He submitted, considering your limited criminal record, your good behaviour in jail, your good work history and strong support from your partner, family, friends and business associates, your prospects of rehabilitation should be seen as positive.
73He submitted because of the subsequent sentence indication I gave to Williams, whose objective criminality is much higher than yours, parity considerations should moderate your sentence.
74He also submitted, to mitigate punishment in favour of your rehabilitation, I should give you the opportunity of longer than usual parole supervision.
Prosecution submissions
75Ms Breckweg, who appeared for the prosecution, accepted you made no attempt to avoid detection on 14 June 2020, when you collected the nine boxes in your truck and transported them to your factory where you left them overnight.
76She also accepted the prosecution could not prove beyond reasonable doubt you were aware the boxes would have contained methamphetamine, but for the substitution, until you opened one of them at your factory and discovered its contents.
77She submitted, while your guilty involvement was limited, it included:
(a) checking the contents of the boxes;
(b) reporting to others; and
(c) assisting to dispose of the remaining boxes
for a sophisticated criminal drug enterprise and is nonetheless objectively serious.[19]
[19]Exhibit B.
78She submitted, considering the very large quantity of drugs and their potential value, I should infer substantial financial gain was your motive.
79Her submission was qualified by the absence of material as to what you did expect your profit might have been.
80She submitted, while your guilty plea has utilitarian value, because it was not made early, the benefit to you is lessened.
81She acknowledged, because your plea was entered during the COVID-19 pandemic, its ordinary utilitarian value is “noticeably augment[ed]”.
82She submitted, giving weight to the unavailability of sentence remissions for emergency management days to federal prisoners would subvert the Commonwealth Parliament’s stated objective to restore “respect for the sentence imposed by the sentencing court” on federal offenders.[20]
[20] Explanatory Memorandum, Crimes Amendment (Remissions of Sentences) Bill 2021 (Cth), p.10.
83She accepted your mental health has deteriorated in custody and, accordingly, Verdins limbs 5 and 6 are enlivened to moderate your sentence.
84She submitted, while Williams’ offending is objectively more serious than yours, the utilitarian value of his plea is extremely high and, accordingly, the respective sentence indications I gave to you, and him, do not offend the parity principle.
85She provided a helpful table of comparative cases to inform the court of the relevant sentencing principles and provide a yardstick against which to examine your sentence.
Consideration
86The maximum penalty of life imprisonment demonstrates the inherent seriousness of attempting to possess a commercial quantity of a border-controlled drug. It serves as a yardstick and a basis for comparison between your case and the worst case.[21]
[21]Markarian v The Queen (2005) 228 CLR 357.
87The sentencing principles in federal drug importation and possession cases are well-established:
(a) the offender's role and involvement in the enterprise, the sophistication of the enterprise and the amount of drugs involved are relevant to the assessment of the seriousness of the offending;
(b) because of the difficulty in detecting the offending and the great harm stemming from the distribution of illicit drugs in the community, significant weight is attached to the principle of general deterrence;
(c) for involvement at any level, an offender should expect a significant sentence;
(d) as a matter of common sense, it should be inferred, unless there is evidence to the contrary, the person who possesses or imports drugs is doing so for profit; and
(e) prior good character is generally to be given less weight as a mitigating factor.[22]
[22]R v Hai Van Nguyen; R v Phuong Thu Thi Pham [2021] NSWCCA 238 at [72] followed in Nguyen v R; Phommalysack v R (2011) 31 VR 673 at [34] and Suky Lieu v The Queen [2016] VSCA 277 at [41]-[43].
88The enterprise was sophisticated. It involved the importation of nearly 300kg of pure methamphetamine, concealed in a container of furniture, into Australia. When the drugs landed here, the organisers tried to avoid detection by moving the consignment between various locations before the contents of nine boxes were unpacked.
89The commercial quality of methamphetamine is 750g.
90The quantity of drugs you attempted to collect was very large, 145.45kg of pure methamphetamine – a multiple of 192 times the statutory commercial quantity. While relevant, quantity is not the sole, nor the chief, determinant of the appropriate sentence.[23]
[23]Pham (2015) 256 CLR 550, [35]-[37]; DPP (Cth) v Thomas [2016] VSCA 237.
91Role is another determinant.
92The prosecution accepted that you were neither a principal nor an organiser. You were accountable to Williams who was higher in the organisation’s hierarchy.
93And the prosecution made the concession it could not prove you were aware the boxes, but for the substitution, would have contained a border-controlled drug until you removed the contents of one of the boxes inside your factory.
94Nevertheless, you had an important role to store the boxes, check their contents and report to others before they were delivered elsewhere.
95Criminal drug enterprises can only prosper because people are willing to undertake a role, even a limited one. Regardless of the level of involvement, persons who participate in the illicit drug trade should expect heavy penalties.[24]
[24]R v Shi [2014] NSWCCA 135, [34].
96Financial reward is another determinant of sentence.[25] The estimated wholesale value of 144kg of pure methamphetamine, which you attempted to possess, ranges between $10.8 million and $43.2 million. The street value is estimated to be up to 9 times higher.[26]
[25]Maxwell [2013] VSCA 50.
[26] Exhibit D.
97On your report, you had a very expensive cocaine habit when you offended.
98While, on the material before me, I am not able to make any finding of the actual amount you expected to profit, the obvious inference is you were involved for financial gain.
99While the drugs were extremely valuable, and the criminal enterprise was sophisticated, your involvement was relatively brief. In my view, the objective seriousness of your offending falls to the low to mid-range for offences of the type.
100Under section 16A of the Crimes Act 1914 (Cth), I am required to impose a sentence that is of a severity that is appropriate in all the circumstances of your offending.
101A term of imprisonment is the only appropriate sentence in your case. Your counsel did not argue otherwise.
102I am also required to have regard to the non-exhaustive list of matters set out in section 16A(2) of the Crimes Act 1914 (Cth) insofar as they are relevant and known to the court.
103There are substantial mitigating factors which I have taken into account to moderate the sentences I will impose:
(a) Firstly, your guilty plea has avoided the time and cost of a complex trial.[27] You are entitled to a demonstrable sentencing benefit for it, especially during the public health pandemic, because it alleviates the strain on the administration of criminal justice.[28]
(b) Secondly, during the COVID-19 pandemic, jail is harder for all prisoners, who have been detained in greater isolation, with increased restrictions on visits and programs, and the risk of COVID-19 infection.[29]
While it does not loom large as a consideration in the sentencing calculus, I am satisfied federal prisoners, who are denied another prisoner’s opportunity for sentence reduction for emergency management days, suffer an additional grievance.[30]
(c) Thirdly, you suffer severe depression and anxiety which have deteriorated while you have been in custody. I am satisfied, because of your psychological conditions, prison will weigh more heavily on you than a person in normal health and there is a serious risk your imprisonment will have a significantly adverse impact on your mental health.[31]
[27]Suky Lieu v The Queen [2016] VSCA 277, [56].
[28]Worboyes v The Queen [2021] VSCA 169.
[29] Biba [2021] VSC 327.
[30]Corrections Act 1986 (Vic), s 58E.
[31] R v Verdins (2007) 16 VR 269, [8].
104You have admitted a criminal record of limited relevance. This is the first time you have been incarcerated for a lengthy period.
105While your positive personal circumstances, including your good work history and your strong support network, are less significant in the sentencing synthesis, I do not overlook them.
106I take into account you have been anxious about the uncertainty of your outcome. And you have appeared to have behaved well in prison and advanced your reformation. However, in my view, the delay in sentencing has not caused you a degree of anxiety or unfairness which would significantly mitigate your sentence.
107Generally, I assess your prospects of rehabilitation to be positive.
108I have given careful consideration to the operation of the parity principle.
109The objective seriousness of Williams offending is substantially greater than yours. He appears to have had a direct financial interest in the imported drugs which he recruited you to collect and store for him. While he is to be sentenced on a single charge which relates to those drugs, he has admitted his involvement in another importation, in April 2020, of approximately 18kg of a substance, which contained methamphetamine, and trafficking, and attempting to manufacture, drugs, which is to be taken into account in sentencing him.[32]
[32] Crimes Act 1914 (Cth), s 16BA.
110However, the sentence I indicated was tempered significantly to account for to the greater than unusual, if not extraordinary, utilitarian value which would be attached to his plea.
111The prosecution case against him relies on evidence of his use of an encryption app called ANOM.141. Reportedly, the Federal Bureau of Investigation (‘FBI’) had taken down another source communication system marketed to criminals and then convinced one of its developers to become an informant who added a calculator app that relayed every communication sent on the platform back to the FBI.
112The intelligence was shared with AFP and, in 2021, in Australia, in Operation Ironside, more than 300 people were arrested and charged with serious criminal offences.
113I was told there are at least dozens of persons, facing charges, who are contesting the lawfulness of interception warrants and it is anticipated challenges to the admissibility of the ANOM communications will take many years to finalise.
114It is expected, because it is an issue of such significance, litigation will reach the High Court for final determination.
115And, because of the seriousness of the charges, there is a strong incentive for defendants to pursue the admissibility arguments regardless of the time and cost.
116By entering his guilty plea in this court, Williams has given up the chance to test the admissibility of the controversial prosecution evidence against him.
117The prosecution accepted his guilty plea would have very high utilitarian value which would save the cost of a long and complex trial.
118In Collins,[33] the Victorian Court of Appeal said:
The principles governing parity are well-established. Equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. If there is a “marked” or “manifest” disparity between sentences which gives rise to a justifiable sense of grievance on the appellant’s part, then the principle of parity may be said to have been infringed. However, no justifiable sense of grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in the way in which he or she did.
[33] [2015] VSCA 106, [23].
119In my view, there does need to be some moderation of the sentence I indicated I would impose on you to avoid a justifiable sense of grievance on your part.
120I have read the authorities in the prosecution table of comparative cases.
121More recent cases[34] identify a range of individual sentences ranging from 15 years to 22 years imprisonment for offenders who were involved in transporting and/or unpacking substantial quantities of drugs, some greater and some less than the quantity here. Their roles, whilst similar to yours, were not so limited in time as yours was.
[34]Tran v The Queen [2021] VSCA; Li v The Queen [2021] NSWCCA 100; DPP (Cth) v Wang [2019] VSCA 250; Kuo v R: Huang v R; Shih v R [2018] NSWCCA 270; Biango v The Queen [2018] VSCA 210.
122Two cases fell outside that range. Parity with a sentenced co-offender was a very significant factor in Shakhanov,[35] where a sentence of 8 years’ imprisonment was imposed. I find that case to be of limited assistance. In Nguyen v The Queen; Phommalysack v The Queen[36] where sentences of 12 years were imposed, the Court of Appeal, dismissing the offender's appeals, described the sentences as lenient. With regard to sentencing practices, I regard it to be of less assistance than the more recent cases.
[35][2019] VSCA 38.
[36][2011] VSCA 32.
123Nevertheless, I have used the authorities for guidance to identify and apply relevant sentencing principles, and as a yardstick against which to examine the appropriate sentence in your case.[37]
[37]Pham (2015) 256 CLR 550, [27]-[29]; DPP (Cth) v Thomas [2016] VSCA 237.
124Because you are to be sentenced for a number of offences, I will impose individual sentences and make cumulation orders to ensure your total sentence is “a just and appropriate measure of [your] overall criminality”.[38]
[38] Postiglione (1997) 145 ALR 408, 416-17, 442-43.
125Considering the matters favourable to your rehabilitation prospects, I am satisfied it is appropriate to impose a longer than usual parole period to give you the opportunity to continue your reformation under conditional freedom.[39]
[39] Power v The Queen (1974) 131 CLR 623.
Conclusion
126Mr James, by the sentence I impose I must denounce your conduct, punish you, and deter you, and others, from committing crimes of the same or similar kind. I must also look to your rehabilitation.
127Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you:
(a) On Charge 1, attempting to possess a commercial quantity of an unlawfully imported border control drug, you are sentenced to 13 years and 6 months’ imprisonment which is to commence today.
(b) On Charge 2, failing to comply with an order to provide the pass code to your iPhone, you are sentenced to a term of 9 months’ imprisonment. This sentence is to commence 6 months before the expiration of the sentence I have imposed on Charge 1.
(c) On Charge 3, failing to comply with an order to provide the passcode to your iPad, you are sentenced to 9 months’ imprisonment. This sentence is to also commence 6 months before the expiration of the sentence I have imposed on Charge 1.
128Your total effective sentence is 13 years and 9 months.
129To mitigate your punishment in favour of your rehabilitation through conditional freedom, I direct you serve 8 years and 3 months of your sentence before you are eligible for parole.
130I declare you have already served 834 days of your sentence by way of presentence detention.
131While there is some artificiality in the process, I declare, but for your plea of guilty, I would have sentenced you to 17 years’ imprisonment and imposed a minimum non-parole period of 11 years and 6 months.
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