Director of Public Prosecutions v Nickless

[2020] VCC 1428

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-01990

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

THOMAS NICKLESS

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	18 and 24 August 2020
DATE OF SENTENCE:	9 September 2020
CASE MAY BE CITED AS:	DPP v Nickless
MEDIUM NEUTRAL CITATION:	[2020] VCC 1428

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Ms S. Caretti	Commonwealth Director of Public Prosecutions
For the Accused	Mr G. Casement	Daniel Taylor Lawyers

HIS HONOUR: 

1Thomas Nickless, you are now 27 years old.  You have from your mid-teens used drugs.  In November 2014, you were involved in a car accident and suffered serious injuries and your rehabilitation took some time.  You took to using drugs more frequently and in bigger amounts.  In this context, you commenced to source drugs ultimately from overseas using the Dark Web and paying in cryptocurrency.  The drugs were sourced because you saw that they were cheaper and a better quality than what you could get locally in Australia. 

2You told police ultimately that another unnamed friend assisted you in getting onto the drug markets on the Dark Web and paying with cryptocurrency.  Ultimately, of the drugs that you imported, you consumed a good amount of them yourself and the rest you sold to friends and acquaintances.  Your overall involvement with drugs had an element of commerciality to it but it was at a low level.  Your drug offending has seen you plead guilty to seven offences being two serious Commonwealth charges and five less serious State offences. 

3The serious Commonwealth charges arose from your endeavour to import border-controlled drugs, being amphetamines, MDMA or ecstasy and cocaine.  There were attempted importations from the period of 16 May 2018 to 27 February 2019, being nine months – a significant period of time.

4In this period, the Australia Border Force seized five parcels addressed to you, care of the Metung post office, sent from the United Kingdom and the Netherlands.  In total, the amount of powder containing amphetamines was 35.3 g; the amount of powder containing MDMA was 61g; and the amount of powder containing cocaine was 9.8g.  I express the amounts in that way because no precise analysis of purity was undertaken. 

5The marketable quantities of those drugs are for amphetamines, 2g; and for cocaine, 2g; and for MDMA, 0.5g.  The total gross amounts that you attempted to import that were seized in the five instances are well in excess of the threshold quantities.  The prosecution utilised provisions within the Commonwealth Criminal Code 1995 to conglomerate different drugs within the one charge.  The prosecution case, as accepted by you Mr Nickless, is that your attempted importations were part of your small scale business to bring drugs into Australia by post, pick them up at the Metung post office, use them yourself and sell small amounts to friends and acquaintances in the area.  

6You told police that you had ordered drugs 10 to 15 times but only 10 arrived.  As noted, the Australia Border Force seized five packages.  This offence of attempting to import a marketable quantity of border‑controlled drugs has a maximum term of 25 years’ imprisonment.  It is self-evidently a very serious crime. 

7On 28 August 2018, another package was seized.  It contained 2.4g gross of cocaine and 2.4g gross of ketamine.  This was a separate charge of attempt to import a border-controlled drug.  The maximum for this offence is 10 years' imprisonment.

8In March 2019, police raided your house in Metung.  They found small amounts of ecstasy, ketamine and Xanax.  They also found four cannabis plants growing in a tank.  You have pleaded guilty to three charges of possession of a drug of dependence and one charge of cultivating a narcotic plant. 

9Police also seized your phone and discovered evidence of your trafficking from late January 2019 to late February 2019.  You pleaded guilty to the State offence of trafficking in a drug of dependence between the dates of 24 January 2019 and 12 March 2019, the day of the raid.

10It seems to me the various offences are to some degree interconnected.  Accordingly, I must be cautious not to double punish you.  Securing drugs via the anonymity of the Dark Web creates difficulties in terms of detection.  Use of cryptocurrency adds a level of sophistication and planning that also increases problems of detection and thus suppression of harmful drug use in our community.  The important message of deterrence must be sent so that others like you that are independent of organised crime gangs or bigger drug cartels nonetheless understand that such conduct on the internet would ordinarily be met with terms of imprisonment.

11While it was emphasised by your counsel and substantially conceded by the prosecution that your offending was at the amateur end of the scale, nonetheless you were persistent, mostly successful in getting drugs into the country and had a small drug trafficking business chugging away in East Gippsland.  All aspects of the drug trade contributed to the harm caused to drug users and others who are around them.  These drugs cannot be simply described as just recreational as if no harm was caused.  These drugs are a real problem in our community and the importers must be seen as the originators of this path. 

12I turn now to expand upon your personal circumstances.  You were raised in Metung in a loving and supportive family with two brothers and two half‑siblings that you see from time to time.  All those in your family are doing well.  Your father was a landscape gardener and your mother works in mental health.  You have your family's ongoing support.  They are most anxious about your immediate future but will, as I understand it, always be there for you. 

13You enjoyed school though at high school you went surfing, it seems, from time to time rather than to classes.  Nonetheless, you secured an education until Year 11 and commenced an apprenticeship in the hospitality industry.  Although you did not finish the apprenticeship, you had solid and regular work.  You travelled to the Northern Territory and to Queensland, working in various hospitality jobs and some labouring. 

14You returned to Metung and secured work in the local hotel.  It was while heading home from work, at the hotel, that you had the car accident I spoke of, causing you serious skeletal injuries. There was some concerns raised as to an acquired brain injury but that does not appear to be of any real significance according to the very experienced neuropsychologist, Professor Jennifer Ponsford whose report of August 2019 recited in the medicolegal psychological report from Ms Matthews, tendered on the plea. 

15Both experts indicated that unfortunately you exaggerated some problems so that valid test results could not be secured.  However, there is no doubt that the car accident caused some level of post-traumatic stress disorder and depression.  Your recovery from your injuries took a significant period and as noted already, your drug and alcohol consumption increased.  Your previous sporting activities were curtailed.

16I have had the benefit of a short report from your treating psychologist Mr Marshall who was insightful and particularly helpful.  He wrote the following:

In our sessions, I have formed the opinion that you are a happy-go-lucky type of young man enjoying life and not thinking at all about consequences.  Just enjoying life to the full and sharing good times with your friends, similar to the attitudes of many young people in rural Victoria.

17Since you have been charged, you find yourself forced to look at the consequences of your actions, not just specifically those actions that have brought you face-to-face with the court system but in many aspects of your life.  You inform Mr Marshall that you are contemplating the cost of alcohol use, wasting money on various interests in life, your lifestyle in general.  He said you appear to be maturing in your thoughts and from your reports in your actions as well.

18You also referred to a confronting recent experience when you were asked to check on a neighbour and found that he had passed away but you stayed in that act of responsibility and it left its mark upon you.

19Your commitment and efforts in drug and alcohol rehabilitation since your arrest and your commitment to your psychological health are all to your credit.  Given that you have no criminal history, a matter of real importance, these rehabilitative steps give me confidence that you can permanently reform. 

20In addition to your work history in the hospitality industry, you have in the past had casual work from the Gippsland Port Authority and now have full-time work.  Your manager wrote in a letter:  'Tom worked in a casual capacity in Kalimna dredging crew for some time and secured the position of port worker dredging when a limited tenure position became available.' 

21He said he has found you to be a diligent and focused worker with an eye for safety and he was mindful and compliant of the procedures and work practices required to get the task done but with safety of yourself and fellow crew members front of mind.

22He says that during your employment you have completed all training required of you including recently successfully completing your Coxswain training and receiving your Coxswain qualification.  He concludes that you are becoming a capable boat operator.  You are a fast learner who will question unsafe work practices.  You acknowledge your mistakes and learn from them.  He said while you are the youngest and least experienced member of the team, you are developing into an effective and valued member of the Kalimna crew. 

23Securing good work and skill qualifications are important matters in considering sentence.  Employment is not always easy to obtain and keep in regional Victoria, particularly at this time.  I note your job is described as a limited tenure position but nonetheless, I have operated on the basis that you have a good steady job now and if imprisoned, it would be likely not be available on release. 

24This matter has caused me to give even more anxious consideration to the sentence and consider the other sentencing options.  I had you assessed for a community corrections order and you are suitable for it.

25Your plea of guilty is important especially given jury trials are suspended.  The plea has considerable utilitarian benefits.  It is also another expression of your remorse.  I have no doubt you are remorseful or as it is expressed in the Commonwealth legislation, you have expressed contrition.  You did so from the point of your arrest with high levels of cooperation with the police.  Your sentence is much less because of your plea of guilty. 

26The COVID-19 pandemic has significant weight in this sentencing process.  Plainly, prison is much more onerous now because visits are suspended, lockdowns are longer and more frequent, different quarantine and isolation occurs upon receipt into a prison and programs have been curtailed or suspended.  Thus, rehabilitation in prison, limited as it is, is even more so. 

27Prison is a different and much harder place now, as observed in other sentences of County Court judges in recent times, and by myself as well, in other sentences I have imposed.  The increased onerous burden of prison is felt more by those imprisoned for the first time, especially first offenders such as you are.

28There are, as I have endeavoured to outline, significant matters that mitigate penalty in this case.  Your counsel submitted that when appropriate weight is given to these matters, taken with what he described as offending on a low and sophisticated level that is uncommon in offences of this kind, that in the end a sentence other than imprisonment was open and was a just outcome, and urged that a sentence with a recognizance release immediately and a community corrections order was appropriate.

29The prosecution submitted that the offending especially the Commonwealth offences of attempting to import were too serious to permit a sentence other than one of imprisonment and for such a time as would lead to a head sentence and a non-parole period being fixed. A sentence other than term of imprisonment would not in the prosecution submission articulate, and would tend to undermine, the important message of deterrence directed to other potential importers who might use the relative ease and anonymity of the Dark Web.

30As is made crystal clear in multiple important appellate sentencing decisions, crimes of this kind are serious and those who engage in them will be sternly punished.  The need for punishment, denunciation and deterrence to others are paramount and cannot be diminished by reason of an offender having no prior criminal history and being previously of good character and strong rehabilitative prospects.

31Those mitigatory matters are not to be given the weight that they might otherwise be given in cases when the offending is of the kind it is in this case.  A different approach, a lesser weight is given to those matters in this type of offending.  Nonetheless, the matters are given weight and I have anxiously weighed up all the matters with proper and merciful weight being attributed to all the mitigatory matters.  I have, as I must, consider all other sentencing options other than imprisonment to see whether any of them or whether they are – many of them – appropriate according to the provisions of the Commonwealth Criminal Code 1995 and the Sentencing Act 1991 (Vic). 

32But in the end, the important sentencing purposes that I have articulated cannot be justly and appropriately met by a sentence that does not involve some incarceration as grave as that always is.  Attempting to import drugs into this country at the levels involved here, in particular Charge 3, by you with all your favourable personal circumstances remains too serious to be met by a non-custodial penalty.

33I have significantly moderated the sentence to allow for a recognizance release because of mitigatory matters and the low level of sophistication in this offending.  Because of your lack of priors and your cooperation and because of your plea of guilty and your prospects and because the harshness of gaol and other circumstances, I have moderated the operation of cumulation very significantly in this case so as to ensure the principle of totality is expressed and you are not doubly punished for bringing drugs into the country and then selling it.

34The outcome I seek to achieve is the following.  I seek to achieve a sentence of two years with release at the end of eight months of imprisonment on a recognizance release.  Thus the time in custody is eight months followed by a period of 16 months where you will have to be, Mr Nickless, of good behaviour.  I seek to achieve that sentence by imposing a sentence for 20 months on Charge 3 and additional cumulation in respect of Charges 1 and 4 being two months each.

35That is always complex with State and Commonwealth offences so I do my best to get it right and then announce it.  But that is what I want to achieve.

36The individual sentences and cumulation are as follows.  I will announce the State sentences first.

37In respect of Charge 1, the trafficking in a drug of dependence, you are sentenced to six months' imprisonment which commences today.

38With respect to Charge 2, the cultivation of a narcotic plant, you are sentenced to one month imprisonment which commences today and thus is wholly concurrent with the sentence on Charge 1. 

39Charges 5, 6 and 7 - possession of drug of dependence, I impose an aggregate fine with conviction of $500 .

40In respect of the Commonwealth sentences, that is Charge 3, that is the attempted importation of the marketable quantity of the border-controlled drugs, I impose a sentence of 20 months commencing two months from today, being 8 November 2020.

41In respect of Charge 4, the attempted importation of a drug of dependence, I impose a sentence of nine months.  That will commence on 8 December 2021.  That gives a total effective sentence as I have outlined of 24 months and I order a recognizance release after eight months.  The sum of the recognizance release is $500 and there will be a condition to be of good behaviour for a period of two years.

42Had you pleaded not guilty to these matters and been found guilty of them, I would have imposed a sentence of four years with a minimum of two years. 

43There will be orders for forfeiture and disposal of items and they will be signed in due course.  Are there any other requirements, Ms Caretti?

44MS CARETTI:  Apologies, Your Honour.  I just had to take myself off mute.  No, I do not believe so.

45HIS HONOUR:  All right.  So what has to be prepared is your recognizance release.  You must forward that obviously to my staff.  Ordinarily, that is signed by Mr Nickless in the presence of my associate and I sign it as well.  That is very problematic given the circumstances where he is in the court in Latrobe Valley.  And I am where I am and my staff are in other places.  What I propose is to get his oral consent to the recognizance release and understanding of it and those documents can be – I will sign them and indicate his oral consent if he gives it.  Is there any problem with that?

46MS CARETTI:  No, Your Honour.  I don't believe so.

47MR CASEMENT:  I will just have Mr (indistinct) just explain that something orally needs to be said by Mr Nickless now.

48HIS HONOUR:  I will do that.  Mr Nickless, your solicitor will explain to you - perhaps if I can do it and he can make it clear to you.  What has to happen is it is effectively a suspended gaol term might be the easiest way to explain it.  It is two years but you have to do eight months and there will be 16 months having over your head.  That is known as a recognizance release.  You have to consent to that - ordinarily you would sign it.  If you say to me now in a way that I can hear that you consent to that, that will form - that will be effectively your signature.  I will sign it. 

49If you want to talk to the solicitor a bit more, do that now.  And if you could just come to the microphone and say that you consent to that.  While that is happening, Ms Caretti and also Mr Casement, are you content that the expression of the sentences in the way that they were reaches a sentence that I intended of 24 months and recognizance release after eight months?

50MS CARETTI:  Yes, Your Honour.  I believe it does.

51MR CASEMENT:  Yes, so am I, Your Honour.

52HIS HONOUR:  Just take a seat.  Do you consent to that, Mr Nickless?

53OFFENDER:  Yes, Your Honour.

54HIS HONOUR:  Right, thank you.  (Indistinct) times.  So what will now occur is some documents will be produced to my staff and they will be signed and ultimately sent to the court in Latrobe Valley and to those at trial custody in Latrobe Valley.  So we need to get all that happening, Ms Caretti, from your side of it.  And there'll be orders signed by me that will be sent down to the staff in Latrobe Valley. 

55I do not think there is anything else that I need to do in the court setting, Mr Casement?

56MR CASEMENT:  Your Honour, I would like the opportunity just to stay on the link with Mr Nickless (indistinct words) for whatever good (indistinct).

57HIS HONOUR:  Of course you can.  That will be arranged.  And you have got your solicitor there.  Ms Caretti, in due course my staff will take over and they will assist Mr Casement in having discussions there.  I will indicate this, Mr Nickless, that you will get an opportunity to talk with Mr Casement.  Because of Stage 4, it just could not be that he was in the same place as you.  You have got a solicitor who will assist you when you are taken into custody downstairs.  You have to go with the custody people when they are ready.

58Ordinarily, I would say that happens now but there are other things that have to happen and we will just make adjustments.  And I am doing so confident that there will be no difficulty with you moving into custody as the security people there ask of you.  And you just have to follow what they say.  All right?  Thank you.  I will leave the meeting and you, Mr Casement, can deal with my staff.  Thank you.

59MS CARETTI:  Thank you, Your Honour. 

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