Director of Public Prosecutions v Kellyman
[2025] VCC 1199
•20 August 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-25-00545
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHEANADE AMANDA JULIE KELLYMAN |
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JUDGE: | HER HONOUR JUDGE ENGLISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 July 2025 | |
DATE OF SENTENCE: | 20 August 2025 | |
CASE MAY BE CITED AS: | DPP v Kellyman | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1199 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCING
Catchwords: Importation of border controlled drug – commercial quantity
Legislation Cited: Criminal Code Act 1995 (Cth) ss 307.1(1) - Crimes Act 1914 (Cth) ss 17A(1), 19AKA - Sentencing Act 1991 (Vic) ss 6AAA
Cases Cited:Lieu v The Queen [2016] VSCA 277; Luu v The King [2024] VSCA 267; DPP v O'Neill [2015] VSCA 325; R v Pokoina [2024] SASCA 132; Kemal v R [2022] NSWCA 83; Klomfar v R [2019] NSWCCA 61; DPP v Salatino [2018] VCC 1378; DPP v Debesaitis Junior [2018] VCC 79; DPP v Dos Santos [2017] VCC 601; R v Verdins (2007) 16 VR 269; Bugmy v The Queen (2013) 249 CLR 571; R v Pham (2015) 256 CLR 550; DPP (Cth) v Thomas (2016) 53 CR 546.
Sentence: Sentence nine years imprisonment with a non-parole period of four years and six months
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Ms M. Kelly | Commonwealth Director of Public Prosecutions |
| For the Accused | Ms M. Brown | Victoria Legal Aid |
HER HONOUR:
Introduction
1 Sheanade Amanda Julie Kellyman, you have pleaded guilty to a charge under the Commonwealth Criminal Code. Charge 1 occurred on 28 October 2024 at Tullamarine Airport in Victoria, when you imported a substance, being a border controlled drug, namely cocaine, and the quantity imported being a commercial quantity of 14.8118 kg contrary to sub-s307.1(1) of the Commonwealth Criminal Code.
2 The maximum penalty for this offence is life imprisonment or 7,000 penalty units, or both.
Circumstances of offending
3 The prosecution tendered a summary prosecution opening, which set out the circumstances of your offending. I sentence you on the basis of the facts as set out there.
4 The brief circumstances of your offending are as follows:
5 On 15 October 2024 you travelled from London to Mexico City, where you stayed for 10 days. On 26 October 2024 you flew from Mexico City to Dubai.
6 On 28 October 2024 you arrived at Melbourne International Airport having departed from Dubai, United Arab Emirates.
7 You had your incoming passenger card when you arrived. You answered 'no' in response to question 1 on the passenger card about whether you were carrying [g]oods that may be prohibited or subject to restrictions, such as medicines, steroids, legal pornography, firearms, weapons or illicit drugs and all other questions except for answering 'yes' to the question of whether you had been in Africa, South/ Central America or the Caribbean in the last six days.
8 You travelled to Australia with four pieces of luggage, a Calvin Klein branded hand bag, a black and pink 'Barbie' branded duffel bag, which were carried as hand luggage, and your checked in luggage was a blue and purple leopard print 'Juicy Couture' branded hard sided suitcase and a 'Mainstays' branded hard sided suitcase.
9 Upon arrival into Melbourne, you collected your purple leopard print 'Juicy Couture' branded hard sided suitcase and a 'Mainstays' branded hard sided suitcase.
10 You attended at the marshalling point of the International Terminal and were approached by Australian Border Force (ABF) officer Cantlon who requested a baggage examination.
11 The Calvin Klein branded handbag contained an Apple iPhone 11 and you also produced a gold colour Apple iPhone, which were both retrieved by ABF officer Cantlon.
12 When the red hard case Mainstays branded suitcase was x-rayed it indicated structural anomalies. The baggage tag was in your name, and was secured with a combination lock with no TSA key access. When asked for the code you indicated you did not lock it and were unable to provide a code.
13 The bag was subsequently opened with bolt cutters and found to contain 12 blocks of an unknown substances within vacuum sealed bags along with clothing items. Testing of the white power yielded a presumptive positive reading for cocaine. The 12 packages were then weighed by ABF officers and found to have a total gross weight of 26.897 kilograms.
14 You were subsequently arrested by AFP officers and interviewed. AFP investigators found that two of the vacuum sealed bags contained Samsung branded GPS tracking tags.
15 During your interview, you advised investigators that the evening before your departure from Mexico City, you and your friend, Ms Chanel Wollery, attended a bar and after hearing about your trip to Australia, a man at the bar pressured you to carry some tobacco and vapes for him to Australia. He followed you to your hotel and said he would return the next day with tobacco and vapes for you to put in your luggage.
16 You further stated on 26 October 2024 he arrived at your hotel in a taxi to take you and Ms Wollery to the airport, and that was the first time you saw the Mainstay branded red suitcase. When you questioned the man about its contents, he told you it was 'just vapes and tobacco'. When you were dropped at the airport you stated you checked in only one piece of luggage which was the red hard Mainstay branded suitcase.[1]
[1]This is noted in the Prosecution submissions at [23], however I note two pieces of checked-in luggage were carried into Australia under your name, being the blue and purple leopard print 'Juicy Couture' branded hard sided suitcase and the 'Mainstays' branded hard sided suitcase.
17 You stated neither you nor Ms Wollery knew what was in the suitcase.
18 Analysis at the National Measurement Institute revealed the purity of the substance to be 61.9 percent cocaine with the pure weight of cocaine found in the suitcase to be 14.8118 kgs.
19 A digital forensic analysis of your Apple iPhone 11 revealed that you had been in communication with an account under the name of 'Vbanks' on WhatsApp on 1 October 2024 and 2 October 2024.
20 You forwarded a copy of your United Kingdom passport to 'Vbanks' to organise the trip for you. Emails were found on your Apple iPhone advising that on 12 October 2024, an Aer Lingus Airline flight departing United Kingdom on 15 October 2024 to arrive on 16 October 2024 in Mexico City was made in your name. An Emirates Airlines booking was also made in your name for a flight departing Mexico City on 26 October 2024 and arriving in Melbourne on 28 October 2024. Both bookings were paid for using a digital asset named 'Tether' through the third-party website 'Travala', a blockchain based platform which utilises the method of payment via various cryptocurrencies.
21 On 19 October 2024, a reservation confirmation for 'Together Co-Living' in Melbourne was sent to '[email protected]'. The two guest names were Sheanade Kellyman and Chanel Wollery. The booking was paid for by digital asset TRON issued by cryptocurrency 'Tether' through third party website 'Travala'.
22 On 22 October 2024, you received an email confirmation to email account '[email protected]' that your Electronic Travel Authority Visa was granted for you to travel to Australia.
23 On 27 October 2024 a series of messages were sent to your Apple iPhone under the name of 'Jim' who requested your location in Mexico City and advised you that 'he will take you to the airport', and for you to 'go out on the street'.
Personal circumstances
24 Your background was outlined in submissions from your counsel and the reference from your mother. The following chronology is drawn from the psychological report by Dr Hannah Dawson.
25 You are a citizen of the United Kingdom from Birmingham, and you have lived in variously in Plymouth, Nottingham and Mansfield. You are currently 34 years old.
26 You were initially raised by your mother. Your mother had a partner and you had previously been informed your biological father was dead. You were exposed to and the subject of family violence by your mother's partner, who assaulted your mother and yourself.
27 You were seven years old when your mother was imprisoned for three and a half years. You were then placed with your aunt, during which you were introduced to your biological father for the first time.
28 Whilst your mother was in custody, you lived for a short period with your father before returning to live with your aunt. You have indirect contact with your father, who is currently in prison.
29 During the time you were staying with your aunt, your cousin sexually abused you from age seven. When you were 12 you ran away. You did not disclose this sexual abuse until you were 21.
30 When you were 14 you assumed responsibility for your younger half-sister. Owing to her substance abuse issues, your mother would frequently abscond for extended periods. You missed school to take care of your sister.
31 When you were age 16, your mother disappeared and social services became involved and did not allow you to continue to care for your younger sister. You were placed in a youth hostel. Tragically your best friend from the youth hostel killed herself and you found her.
32 Your behaviour has included 'drinking, smoking, self-harming, overdosing'. You reported to Dr Dawson that you remained in Birmingham at the age of 21 for three years. You left Birmingham after you were raped and went to Plymouth where your mother was living. You suffered a miscarriage in 2010 and over the next 10 years lived between Nottingham and Mansfield before returning to Birmingham.
33 Instability prevented you from completing school. After school you attended a college where you studied health and social care. You worked as a support worker, a health care assistant in a mental health hospital, and a rehabilitation assistant. You had not worked for three years prior to the offending, and you received the equivalent of a disability support pension as you were found medically unfit for work on the basis of depression, anxiety and Bipolar Disorder.
34 You described your past relationships to Dr Dawson as abusive, violent and manipulative.
35 You further noted to Dr Dawson that when you were an adolescent, you used to overdose quite regularly. You engaged in self-harm by cutting since age 17 and note your overdosing was more related to suicidal intent by 2013. You report to Dr Dawson as having been experiencing seizures since age 19. You have had a history of excessive alcohol use, and started drinking when you were age 12.
36 You told Dr Dawson in around 2019 you were diagnosed with Bipolar 1. You have been non-compliant with medication. You have had repeated suicide attempts and subsequent psychiatric hospitalisation.
37 Since being in custody your diagnosis of Bipolar and border line personality disorder have been accepted, and you are prescribed lamotrigine, mirtazapine and lithium, with which you are now compliant.
38 In the lead up to your offending, you reported to Dr Dawson that you had returned to the United Kingdom from a period in the United States. A friend asked you to accompany her to Mexico under the premise of a 'money trip,' which you stated you clarified as 'where you take money to a different country'. You reported to Dr Dawson that you did not hesitate to agree to the trip, as you trusted your friend. It was meant to be your friend who took the luggage but it was changed to you. You told Dr Dawson the story about the man in the bar in Mexico was fabricated. You became first aware of the contents of the suitcase when it was opened in front of you by border security. Your friend was not charged and was able to return home.
39 You have been in custody since the date of your arrest on 29 October 2024. You have spent 295 days, exclusive of today, in pre-sentence detention.
Psychological report by Dr Hannah Dawson
40 Dr Dawson performed psychometric testing and your scores were indicative of severe symptoms of anxiety indicative of Generalised Anxiety Disorder. Your score was also indicative of severe level of depression indicative of a Major Depressive Disorder.
41 Your results on the international trauma questionnaire met the criteria for post-traumatic stress disorder and you met the clinical threshold for a diagnosis of C-PTSD which is complex PTSD.
42 Dr Dawson noted
…[your] results on the ITQ are consistent with [your] self-reported history which illustrates an individual who has experienced a great deal of adversity. Moreover, [you] reported at least severe scores regarding various symptomology impacting multiple areas of [your] functioning. [You] scored in the very severe range in relation to Re-experiencing, Sense of Current Threat, Negative Self-Concept, and Disturbances in Relationships.[2]
[2] Psychological Report by Dr Hannah Dawson, [93] (emphasis in original).
43 Dr Dawson's testing confirmed your presentation confirmed the existing diagnosis for Bipolar Affective Disorder (BPAD). You identified with 12 of the 13 symptoms, indicating they occur at the same time and are causing serious problems.
44 In terms of personality testing, Dr Dawson described you as having a complex personality profile, noting your history and presentation is consistent with five of the nine DSM-5 diagnostic criteria for Borderline Personality Disorder.[3]
[3] Psychological Report by Dr Hannah Dawson, [106], [108].
45 Dr Dawson stated:
Ms Kellyman also presents as irresponsible and impulsive. She experiences intense endogenous low moods with recurring periods of dejection and apathy, interspersed with anger, anxiety and euphoria. Her behaviour is likely to appear erratic and she is inclined to take risks that ultimately create more instability for her. Ms Kellyman is someone who has great difficulty with her sense of identity and is preoccupied with securing affection and being accepted by others, whilst lacking the interpersonal skills and trust to build positive relationships.[4]
Borderline personality patterns highlight the erratic and unpredictable nature of a person's behaviour, often occurring for those who, like [you], have lacked stability [your] whole life. As reported, [you] have repeated thoughts of suicide, whist internally [you] are likely suppressing pain associated with unmet needs for attention and care.[5]
[4] Psychological Report by Dr Hannah Dawson, [111].
[5] Psychological Report by Dr Hannah Dawson, [112].
46
Your risk assessment indicated your risk of offending is low.[6] However,
[6] Psychological Report by Dr Hannah Dawson, [120].
Dr Dawson opined:
She presented with several factors that increased her risk, including substance abuse; psychosocial adversity, including trauma; limited
pro-social support; major mental illness, with intermittent treatment
non-compliance; and emotional and personal factors, including personality disturbance.[7]
[7] Psychological Report by Dr Hannah Dawson, [120].
47 In summary Dr Dawson noted you presented with a history of significant adversity and trauma, involving displacement, neglect, family violence, childhood sexual abuse, parental substance misuse and mental health problems and instability, leading to the development of a complex psychiatric profile. You present with an existing diagnoses for Bipolar Affective Disorder – exacerbated by complex trauma and maladaptive coping mechanisms, including polysubstance abuse – and Borderline Personality Disorder, as well as Major Depressive Disorder and Complex Post Traumatic stress disorder, which have been self-medicated through alcohol and other drug use leading to Alcohol Use Disorder.[8]
[8] Psychological Report by Dr Hannah Dawson, [123].
48 Dr Dawson further opined:
Ms Kellyman's childhood is characterised by adversity and trauma from instability and emotional rejection and abuse. She has a history of being unmedicated and misunderstood, impacting on her sense of identity, social acceptance, and behavioural presentation. Further, her conditions have been reinforced by her involvement in dysfunctional relationships as an adult, usually involving abuse and violence perpetrated towards Ms Kellyman. Ms Kellyman's presentation and difficulties are also further complicated by her presentation of further personality vulnerabilities, specifically avoidant and paranoid personality features.
Ms Kellyman's experience of PTSD, that is, the experience of intrusive symptoms, avoidance, negative cognitions and behaviour, and hyperarousal symptoms in response to traumatic events or situations in which they are triggered, can result in chronically high levels of stress and anxiety, particularly if she feels unsafe or threatened. Although not currently recognised in the DSM-5, Complex Post-Traumatic Stress Disorder (C-PTSD) is currently under research as a separate diagnosis to PTSD to encompass additional symptoms now considered to warrant a separate, more complex and severe disorder which stems from repeated or protracted incidents of abuse, as experienced by Ms Kellyman.[9]
[9] Psychological Report by Dr Hannah Dawson, [125] (emphasis in original).
49 Dr Dawson further remarked:
At the time of the offending, Ms Kellyman was seemingly experiencing a significant relapse in her mental illness, with collateral information suggesting that she was likely in an acute manic or mixed episode, with affective instability earlier in 2024, after having discontinued her medication. Although upon arrest, her mental state was considered to be indicative of relative stability, her actions in the months prior were marked by poor judgement and impaired behavioural control, with increased alcohol use. It is noted that intoxication also likely heightened Ms Kellyman's risk-taking behaviour, impulsivity, and behavioural disinhibition, which were already at a higher baseline due to BPAD. This aligns with research demonstrating the impact of substances, such as alcohol, on prefrontal functioning, behavioural inhibition, executive control, and decision-making capacity.[10]
[10] Psychological Report by Dr Hannah Dawson, [134].
50 In Dr Dawson's opinion these untreated deficits made you vulnerable to become involved in the offending with you having impaired functioning at the time of the offending. She stated:
It is clear Ms Kellyman's behaviour is due to a number of underlying mental health issues which have largely remained untreated, increasing her vulnerability, and perpetuating her dependence upon, and involvement and victimisation in, unhealthy relationships (both intimate and platonic), and associated substance misuse. The offending occurred during a period when Ms Kellyman's risk taking was elevated, with an undertone of disregard for consequences, and general acquiescence within her relations, with a likely purpose of avoiding rejection if she did not agree. [11]
[11] Psychological Report by Dr Hannah Dawson, [135].
Sentencing considerations
51 Section 16A(1) of the Crimes Act 1914 (Cth) requires the court must impose a sentence that is of a severity appropriate in all the circumstances of the offence.Section 16A(2) of the Crimes Act 1914 (Cth) details a range of matters the court must take into account which are relevant and known to the court. Section 17A of the Crimes Act 1914 (Cth), which is a restriction on imposing sentences, requires that the court to consider when imposing imprisonment that no other sentence other than imprisonment is appropriate in all the circumstances of the case.
52 It is not disputed the only appropriate sentence is a term of imprisonment with a non-parole period.
53 Because of the difficulties detecting this type of offending and the social harm caused by the importation and distribution of illegal drugs on Australian society, the principles of general deterrence, denunciation and punishment are primary considerations in sentencing offences for the importation of border controlled drugs.
54 Your counsel, Ms Brown, submitted four factors should be taken into account in mitigation. Your early plea of guilty, your prior good character, your parlous mental health conditions, in the context of your history of sexual abuse, family violence and neglect, and your role in the offending.
55 The prosecution submissions also note that common law principles of sentencing such as parity, proportionality and totality also apply and are relevant when considering a sentence 'of a severity appropriate in all the circumstances of the offence'.[12]
[12] Prosecution submissions on sentence, [8].
56 I turn to factors in s16A(2).
Section 16(2)(a) – Nature and circumstances of the offence
57 The maximum penalty of life imprisonment signifies the seriousness of the offence.
58 In Lieu v The Queen[13] the Court of Appeal referred to the seriousness of the offending as being informed by a range of factors, including in the role of the offender, the position of the offender in the drug trafficking hierarchy, the nature and extent of the offender's involvement in the enterprise and the amount of drugs involved.
[13] [2016] VSCA 277 [41] (Lieu v The Queen).
59 The weight of the drugs is a significant aspect of your case. Your counsel submitted the weight went to the objective gravity of your offending but it should not 'swamp' my sentencing exercise.
60 The prosecution submits this is a serious example of an inherently serious offence. The suitcase contained 12 individually wrapped bricks of cocaine with a pure weight of 14.8 kg, which is 7.4 times the commercial quantity threshold for cocaine.
61 In Lieu v The Queen the total weight of drugs imported was 10.758 kg of pure methylamphetamine and 3.55 kg of PMMA over an eight month period.[14] The amount of methylamphetamine was 14.34 times the commercial threshold of .75kg. Mr Lieu was sentenced to 25 years' imprisonment with an 18 year non-parole period which was undisturbed on appeal. The majority of the COA stated,
In determining the seriousness of the offence, the weight or amount of the drugs involved is a factor of some importance. That circumstance is relevant to determining the dimension of the enterprise, which generally constitutes the amount of profit that was expected from the enterprise, which generally constitutes the primary if not the sole motive for the offending. The weight or the amount of the drugs involved might also indicate that the enterprise, in which the offender has been involved, was far reaching and sophisticated. On the other hand, that factor, per se, is not necessarily the primary or overriding factor in determining the gravity of the offending under consideration.[15]
[14] Lieu v The Queen, [13].
[15] Lieu v The Queen, [43].
62 I note in that case the appellant was described as 'a principal in the conduct of two substantial illegal drug businesses' and he ran 'each … as a commercial concern purely for financial profit' and 'utilised in excess of 60 telephones and SIM cards for the purposes of his businesses'.[16]
[16] Lieu v The Queen, [8].
63 In Saab v The Queen,[17] the total weight of drugs imported was 14.6 kg of cocaine, which is 7.3 times more than the commercial threshold of 2 kg. The appellant was sentenced to 14 years' imprisonment with a non-parole period of 10 years. The appellant was described as the 'Australian link' to various persons overseas who arranged for the importation of the drugs to Australia. He kept them informed and was provided with precise instructions as to how to extract the drugs where they were concealed in a lifting device. The Court of Appeal found the appellant's description as the 'principal organiser in Australia of this importation' was plainly warranted. Whilst not at the apex, he was a major player, one or two rungs below the architect of the scheme.
[17] [2012] VSCA 165 (Saab).
64 In Luu v The King[18] the appellant pleaded guilty to importing 11.9 kg of methylamphetamine, which was 15.9 times the commercial threshold of .75kg. The appellant's role was described as a 'low level' role. He was a 78 year old first offender and was sentenced to 12 years imprisonment with a non-parole period of eight years, which was not disturbed on appeal.
[18] [2024] VSCA 267 (Luu).
65 Your role is of importance in assessing the objective criminality of the offending. Your counsel submitted you had no real specificity about who would contact you to hand over the drugs. Your involvement was temporally quite confined. Your involvement was unsophisticated as the drugs were easily detected in shrunk wrapped packages in your luggage.
66 It has been submitted your role in this criminal enterprise is at the lowest level, which counsel described as the bottom of the food chain, as a courier who was exposed to the greatest risk.
67 I do not know the full nature and extent of the enterprise and I am unaware of what reward, if any, you were expecting for your role. The prosecution has submitted it should be inferred, in the absence of evidence to the contrary, that you imported the drugs for profit. Your counsel conceded you did so for profit.
68 You told customs officers you thought the suitcase contained 'vapes and tobacco.' You reported to Dr Dawson your friend told you, and you believed it to be a 'money trip' and which involved taking currency to another country.
69 The messages on your phone from 'Jim' suggest he gave you the suitcase in Mexico City. You told border control you had no means to open the suitcase as you did not know the code to the combination lock.
70 You gave conflicting accounts to border control and Dr Dawson about how you happened to have the suitcase in your possession. You also stated to Dr Dawson your friend was supposed to carry the suitcase but it changed to you. It is not clear when that decision occurred. Ms Wollery, your travelling companion, was not charged and has left the country. You had checked the bag in at Mexico City airport under your name with your name on the luggage tag and collected the bag from the luggage console at Tullamarine airport. Your counsel conceded the critical role you played, as you were physically responsible for bringing the drugs into the country.
71 The prosecution has conceded your role was as a courier, and that you were not a principal or mastermind level offender. You recklessly carried the suitcase into Australia, and it was to be held until you were found by others. Flights, accommodation and travel expenses were paid for by others.[19] The offence is that you intentionally imported a commercial quantity of a border controlled drug, knowingly or being reckless as to the substance being a border controlled drug. The prosecution concedes that you recklessly carried the suitcase and there is no evidence you were aware of the weight of the drugs.
[19] Outline of prosecution submissions on plea dated 24 July 2025 [17](b).
72 Despite the similarity in the weight of the drugs, in my view your role is in contrast to appellants in Lieu and Saab. The weight of drugs in your case was 7.4 times the commercial quantity, which can be distinguished from Luu where the weight was 15.9 times the commercial quantity and in Lieu where the weight was 14.34 times the commercial threshold.
73 I accept your role was as courier and that you had no greater role or knowledge of the enterprise. Despite the significant weight of the drugs there is no other evidence as to the 'dimension of the enterprise'. I am of the view it is a factor of some importance, but in this case the potential profit from the enterprise does not correlate with your role or knowledge.
Section 16(2)(g) - Plea of guilty
74 Your plea of guilty reflects your contrition or remorse.
75 You have pleaded guilty at the earliest reasonable opportunity prior to a committal hearing.
76 Your plea has the utilitarian benefit for the community of avoiding a committal, trial and the requirement for witnesses to give evidence.
Section 16(2)(m) – Character, antecedents, age, means and physical or mental condition
77 Ms Brown submits features of your childhood upbringing, namely exposure to family violence, sexual abuse by a cousin, your neglect as a child and early parentification, serve to reduce your moral culpability. This is because these factors have contributed to the development of BPD and PTSD. Your moral culpability is less than for a similar offender whose formative years were not marred as yours were. Ms Brown did not submit there was a causal link between your mental state and your offending, but that nevertheless the effects of childhood trauma have impacted your ability to make calm and rational decisions.
78 Your counsel submitted the third limb in Verdins is engaged.
79 The third limb of Verdins states:
Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
80 I note the Court of Appeal in DPP v O’Neill[20] has stated that to engage the first four limbs in Verdins there must be a connection between the impairment to mental functioning and the appellant's moral culpability or the need for general and specific deterrence. As stated by the Court of Appeal; 'If the mental impairment existed at the time of the offending, it must have some "realistic connection" with the offending; or have "caused or contributed" to the offending; or be "causally linked" to the offending'. [21]
[20] [2015] VSCA 325 (DPP v O’Neill).
[21] DPP v O'Neill, [74].
81 Your counsel has not submitted there is a causal link between your mental state and your offending. I note there were multiple decisions made between the original decision to agree to 'a money trip' with your friend and your ultimate arrival in Australia. I am not satisfied there is a causal link between your impaired mental functioning and the offending.
82 I do accept that the trauma and deprivation of your childhood has impacted your decision making, and I accept this is relevant to the your general personal circumstances.
83 Dr Dawson described you as someone who has experienced a great deal of adversity and described your decision making in the following terms as irresponsible, impulsive, erratic and risk taking.
84 Whilst not affecting your criminal responsibility, your childhood trauma and depravation, which resulted your bipolar and PTSD, has resulted in a diminution of your ability to make reasoned or ordered judgments. This reduces somewhat your moral culpability. I will moderate the weight I give to general deterrence as a sentencing purpose.
85 Your counsel referred to Bugmy v The Queen[22] to the extent that the impact of your deprived childhood is relevant to the assessment of your moral culpability.
[22] (2013) 249 CLR 571 (Bugmy).
86 Counsel also submitted R v Verdins[23] limbs 5 and 6 are applicable. It is not in dispute that your experience of imprisonment will be more onerous for you.
[23] [2007] VSCA 102 – 16 VR 269 (Verdins).
87 I have referred in detail to Dr Dawson's report above. I accept your mental conditions of severe symptoms of anxiety and a severe level of depression. You meet the clinical threshold for diagnosis of complex post-traumatic stress disorder and have a diagnosis of bipolar affective disorder.
88 I accept that imprisonment will weigh more heavily on you than a person in normal health because of your mental health impairments.
89 I also accept there is a serious risk of imprisonment having a significant adverse effect on your mental health. I will mitigate the weight I give to punishment as a sentencing purpose.
90 It is accepted imprisonment is more burdensome for you as you are separated from family and friends. You are isolated in custody. You have had no personal visits from family and friends. Whilst you have telephone contact with your family, the time difference imposes a practical constraint on accessing this support network.
91 Your counsel referred to the likelihood of your deportation at the conclusion of your sentence, and that relevant to your circumstances, the prospect of deportation renders imprisonment more onerous. It was submitted your time in custody will be more onerous because of your isolation from friends and family in the UK and that you have no connections in Australia.
Section 16(2)(n) - Rehabilitation
92 Whilst you have no prior convictions, because of the nature of drug importation cases, prior good character is given less weight as a mitigating factor. Dr Dawson noted some risk factors but opined your risk of re-offending is low. She noted you did not present with an offence-supportive attitude, and have taken steps in custody to engage with mental health services. With treatment and support your risk of re-offending would be reduced, if not eradicated completely. I accept her opinion.
Current sentencing practices
93 The prosecution submissions referred to the High Court case of R v Pham[24] that a court sentencing for a federal offence must have regard to sentences imposed in other States and Territories. I note that every case is different and current sentencing practices is one factor relevant to the instinctive synthesis involved in sentencing.
[24] (2015) 256 CLR 550.
94 The prosecution provided a table of comparative cases,[25] for the charge of importing a commercial quantity of a border controlled drug. I note the Court of Appeal stated in DPP (Cth) v Thomas,[26] that they can be of great assistance to judges if they contain the necessary information to make meaningful comparisons.
[25] Prosecution submissions, Annexure A.
[26] (2016) 53 VR 546 (DPP v Thomas).
95 In R v Pokoina,[27] the defendant pleaded guilty to importing 14.3 kg of pure cocaine. His role was 'low level but significant.' On appeal he was given a head sentence of eight years 10 months with a non-parole period of four years and 10 months.
[27] [2024] SASCA 132.
96 In Luu v The King, referred to earlier, the defendant pleaded guilty to importing 11.9 kg of pure methamphetamine. His role was as courier. He was 78 at the time of sentencing and sentenced to 12 years' imprisonment with a non-parole period of eight years.
97 In Kemal v R,[28] the defendant pleaded guilty to importing 2.243 kg of pure methamphetamine. He was a courier and low in the hierarchy. He was sentenced to seven years and six months with a non-parole period of four years.
[28] [2022] NSWCA 83.
98 In Klomfar v R,[29] the defendant pleaded guilty to importing 4.653 kg on pure cocaine. He was sentenced to seven years and eight months with a non-parole period of five years.
[29] [2019] NSWCCA 61.
99 In the matter of Sabb referred to earlier, the defendant was one of three co-offenders who pleaded guilty to importing 14.6 kg of pure cocaine. He had no prior convictions but was a 'major figure' 'one or two rungs below the actual architect of the scheme'. He was sentenced in the County Court to 14 years with a non-parole period of 10 years. This sentence was upheld by the Court of Appeal.
100 In DPP v Salatino,[30] the defendant pleaded not guilty to importing 4.528 kg of pure cocaine. She was a courier and was sentenced to 10 years' imprisonment with a non-parole period of six years.
[30] [2018] VCC 1378.
101 In DPP v Debesaitis Junior,[31] the defendant pleaded guilty to importing 2.024 kg of cocaine. The defendant was a courier and was sentenced to eight years imprisonment with a non-parole period of four years.
[31] [2018] VCC 797.
102 In DPP v Dos Santos,[32] the defendant pleaded guilty to importing 2.267 kg of pure cocaine. He was a courier and was sentenced to seven years six months imprisonment with a minimum of four years.
[32] [2017] VCC 601.
103 I note that only some of these cases, such as Salatino and Debesaitis Junior refer to the defendant's having mental health issues, depression, anxiety and PTSD.
Sentence
104 In accordance with s17A(1) of the Crimes Act 2014 (Cth) I have considered all available sentences and am of the view no sentence other than imprisonment is appropriate in all the circumstances of the case.
105 I take into account the maximum penalty, your plea of guilty and the nature and circumstances of the offence and the matters put in mitigation.
106 The general features of your background, the forensic psychological assessment, including your low risk of re-offending, has resulted in me imposing a lower non parole period than would normally be imposed.
107 I sentence you to nine years imprisonment with a non-parole period of four years and six months.
108 I note the purposes of parole set out in section 19AKA of Crimes Act 1914 (Cth) and I must explain what that means. You must serve a term of imprisonment which is not less than the non-parole period of four years and six months, which I have set. After the non-parole period has been served, if a parole order is made you will serve a period of time in the community for parole in order to complete serving the balance of your sentence. If you breach parole your parole may be revoked and you may be returned to prison to serve the unexpired portion of your sentence.
109 In accordance with s19 of Crimes Act 1914 (Cth) this sentence commences today.
110 I declare the period of pre-sentence detention is 295 days.
111 In accordance with s6AAA of the Sentencing Act 1991 (Vic), but for your plea of guilty the sentence of imprisonment I would have imposed would be 11 years' imprisonment with an eight year non-parole period. Ms Kelly, are there any ancillary orders sought?
112 MS KELLY: No, Your Honour.
113 HER HONOUR: Thank you. That concludes my sentence, thank you.
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