Director of Public Prosecutions v O'Keefe
[2024] ACTSC 210
•5 July 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v O’Keefe |
Citation: | [2024] ACTSC 210 |
Hearing Date: | 1 July 2024 |
Decision Date: | 5 July 2024 |
Before: | Taylor J |
Decision: | See [137]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – two counts of trafficking in a commercial quantity of a commercial drug – cocaine and methylamphetamine – offender played an important but not essential role in the organised crime operation – the trafficked amount was not significantly above the prescribed commercial quantity – offending financially motivated due to a drug debt incurred by the offender during a period of significant addiction to cocaine – where offender has made significant progress and demonstrates excellent prospects of rehabilitation – displayed genuine remorse |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), ss 7, 35(4) Crimes Act 1914 (Cth), s 3LA Criminal Code 2002 (ACT), ss 45A, 603(3), 616(5), 717(1) Criminal Code Regulation 2005 (ACT), sch 1 |
Cases Cited: | Bui v The Queen [2015] ACTCA 5 Coggan v The Queen [2013] ACTCA 49 Cole v The Queen [2019] ACTCA 3; 14 ACTLR 84 Director of Public Prosecutions v Le [2024] ACTSC 31 Director of Public Prosecutions v Myers (a pseudonym) [2023] ACTSC 142 Director of Public Prosecutions v Wright [2023] ACTSC 196 Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 Henry v The Queen [2019] ACTCA 5 Hili v The Queen [2010] HCA 45; 242 CLR 520 Imbornone v The Queen [2017] NSWCCA 144 Klobucar v The Queen [2014] ACTCA 6 Lawrence v The Queen [2007] ACTCA 10; 1 ACTLR 158 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen [1988] HCA 70; 166 CLR 59 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 O'Brien v The Queen [2015] ACTCA 47; 19 ACTLR R v Baker(No 3) [2019] ACTSC 365 R v Baxendale [2018] ACTSC 260 R v Butler [2020] ACTSC 170 R v Gladman [2019] ACTSC 371 R v Hagan [2016] ACTSC 343 R v Kilic [2016] HCA 48; 259 CLR 256 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 R v Mackinder [2021] ACTSC 176 R v McCallum [2020] ACTSC 15 R v Nchouki [2022] ACTSC 227 R v Negah [2019] ACTSC 243 R v Newby [2022] ACTCA 20; 367 FLR 122 R v Nikro [2015] ACTSC 231 R v O'Keefe; R v Jabal [2014] ACTSC 347 R v Snowden [2022] ACTSC 186 R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 R v Yeboah [2022] ACTSC 127 Taylor v The Queen [2014] ACTCA 9 |
Texts Cited: | Explanatory Memorandum, Crimes (Sentencing) Bill 2005 (ACT) |
Parties: | Director of Public Prosecutions ( Crown) Andrew James O’Keefe ( Offender) |
Representation: | Counsel C Muthurajah ( DPP) S Whybrow SC ( Offender) |
| Solicitors ACT Director of Public Prosecutions Kamy Saeedi Lawyers ( Offender) | |
File Number: | SCC 309 of 2023 |
TAYLOR J:
Introduction
1․The offender, Andrew James O’Keefe, is to be sentenced in relation to the following offences, having entered pleas of guilty on 12 April 2024:
(a)Count 1 (CC2023/5996): trafficking in a commercial quantity of a controlled drug, contrary to s 603(3) of the Criminal Code 2002 (ACT) (the Criminal Code) by virtue of s 45A of the Criminal Code, which carries a maximum penalty of 2,500 penalty units, imprisonment for 25 years or both.
(b)Count 2 (CC2023/5805): trafficking in a commercial quantity of a controlled drug, contrary to s 603(3) of the Criminal Code by virtue of s 45A of the Criminal Code, which carries a maximum penalty of 2,500 penalty units, imprisonment for 25 years or both.
Facts
2․The agreed facts contained large reproductions of text messages between the offender, the co-offender and other participants in the operation, as well as several images sent in these text conversations. The agreed facts also included stills of CCTV footage depicting the offender and co-offender engaging in significant aspects of the offending. I do not consider it necessary to extract the messages in their entirety and instead have summarised their content where relevant.
3․In summary, as the comprehensive facts reveal, the trafficking conduct engaged in by the offender included preparing and packaging 3.284 kilograms of cocaine and transporting 4.1 kilograms of methylamphetamine. A commercial quantity of each of the controlled drugs is 3 kilograms (see sch 1, Criminal Code Regulation 2005 (ACT)).
Background
4․In May 2023, police were investigating the drug trafficking activities of the offender and co-offender, Mr Mussa, as part of an investigation codenamed Operation Phobetor-Oborin.
5․In June 2023, police conducted a traffic stop on the offender’s vehicle as it was travelling from Victoria into the Australian Capital Territory (ACT). As a result, police obtained several warrants to search each offender’s premises, person and vehicles, and also served a s 3LA Crimes Act 1914 (Cth) (the Commonwealth Crimes Act) order on the offender.
6․As a result of the searches, police seized controlled drugs and other evidence of drug trafficking, including evidence of both offenders and an unknown male communicating over encrypted messaging application, ‘Threema’, to jointly traffic cocaine and methylamphetamine.
7․‘Threema’ is an end-to-end encrypted mobile messaging application. The ‘Threema’ application uses a unique identifier for each user rather than a phone number or email address, allowing a high level of anonymity. Users must know the other person’s unique identifier in order to communicate with them.
Count 1: trafficking in a commercial quantity of cocaine
Message group – ‘press rack’
8․At about 12:41AM on 5 June 2023, the offender was added to a group chat on the platform ‘Threema’ named ‘press rack’. The reference to ‘rack’ is a reference to cocaine.
9․The other participants of the group included the users ‘~no limit’ and ‘~Frank Martin’. The offender’s username on ‘Threema’ was ‘backdown’.
(c)‘~no limit’ is an unknown male who, the prosecution allege, resides in Lebanon or Turkey.
(d)‘~Frank Martin’ is alleged to be the co-offender Mussa.
10․The users in the group chat ‘press rack’ had conversations on 5 June 2023 regarding the mixing and packaging of “80oz” and “the new kg mix”. The reference to 80oz is a reference to 80 ounces, or 2.24 kilograms, of boric acid and “the new kg mix” refers to 1 kilogram of cocaine. When combined, along with the “100 grams of flakes” the total amount of cut cocaine would be 3.340 kilograms.
11․The offender sent messages in reply to this discussion indicating his agreement and that he would be able to pick up some vacuum seal bags.
12․At about 5:08PM, the offender sent a number of photographs to the group of a package wrapped in silver duct tape. At about 5:09PM, the offender sent a photograph of the silver package on a set of scales that read 1.091 kilograms.
13․The next photograph at 5:14PM showed a large glass bowl filled with a white crystalline substance sitting on the scales reading 1.000 kilogram. The substance was cocaine. The user called ‘~no limit’ asked for photographs of the “kg”.
14․At about 5:23PM, co-offender Mussa sent a number of photographs of a white crystalline substance sealed in a cryovac bag with an “X” written on it.
15․At about 5:24PM, co-offender Mussa sent a photograph of white powder in a blender.
16․The offender engaged in further discussion of the mixing of the drugs with ‘~no limit’.
17․At 5:57PM, co-offender Mussa then sent a photograph of a white powder in a metal bowl and sent a message that they would “make as many singles as we can”.
18․At 6:52PM and 7:00PM, co-offender Mussa sent photographs of white powder in a metal bowl and of the white powder divided up into cryovac bags. He sent messages to the group chat indicating the breakdown of the amounts in the bags, saying there was “116” total. “116” refers to a total of 116 ounces or 3.284 kilograms of cocaine.
19․CCTV footage from ‘One Stop Tyre and Auto’, located at 20 Collie Street, Fyshwick ACT from 5 June 2023 captured the above incident. ‘One Stop Tyre and Auto’ was a family business managed by co-offender Mussa. The footage shows both offenders at the premises preparing the cocaine and boric acid and packaging it into multiple individual cryovac bags. The time stamp on the CCTV footage is out by 55 minutes.
20․The CCTV footage depicts the two offenders separating out and blending the one kilogram of cocaine then mixing it with boric acid to yield a mixed cocaine substance to then package in smaller quantities which can be seen lined up in front of the garage door. The process took approximately an hour and a half.
21․Specifically, it shows the co-offender and offender engaging in various activities which demonstrate their level of involvement in the operation:
(a)The co-offender and offender arrive at the premises and set up the area, covering the surfaces with white plastic and putting on gloves. The co-offender sets up various small plastic bags and the offender takes a silver package out of a bag and weighs it on a scale, before taking a photo.
(b)The co-offender uses a tool to break up white powder in bags and the offender empties the silver package into a bowl. The offender uses a blender to blend the white powder and then empties it into the bucket. They then switch roles, so the offender is on the ground hitting the white substance with a silver tool while the co-offender spoons and blends the white mixture on the table.
(c)The offender mixes the powders and empties it into cryovac bags. The co-offender places these bags into a hydraulic press, then empties them again into a bowl and hits them with the tool again.
(d)Both men put the white powder into small cryovac bags, and the offender heat seals them. They line the bags up on the floor, then place them into larger bags and carry them out of view.
22․The timing of the photographs being sent in the group chat ‘press rack’ correspond with the footage depicting the photographs being taken on each offender’s mobile phone; taking into account the 55 minute time error in the footage.
Count 2: trafficking a commercial quantity of methylamphetamine
23․Between 4 to 6 June 2023, the offender and username ‘~no limit’ were having a conversation on the application ‘Threema’.
24․During that conversation ‘~no limit’ asked the offender to drive to Melbourne to pick up four kilograms of methylamphetamine for $6,000 and the offender agreed. They discussed how much “flake” they had, what “papers” the offender would take to Melbourne, how much money ‘~no limit’ owed the offender and made plans for further drug runs. “Flake” is a reference to boric acid and “papers” is a reference to Australian currency.
‘Pick up eye/drop papers’ conversation
25․At about 9:46PM on 5 June 2023, the offender was added to the group chat named ‘pick up eye/drop papers’ on the ‘Threema’ application. The other group participants were the users ‘~no limit’, ‘~Bane’ and ‘~gdup’. They discussed the timing for the “pick up” in Melbourne and the offender suggested 9:00 or 10:00AM.
26․On 6 June 2023, the offender messaged the group updating them on his progress to Melbourne. They discussed the location they would meet at in Donnybrook. The offender picked up the four kilograms of methylamphetamine just before 10:00AM from a location in Donnybrook, Victoria and sent a message into the chat saying, “all done boys thank you”.
‘Press rack’ conversation
27․On 6 June 2023, ‘~no limit’, the offender (using username ‘backdown’) and co-offender Mussa (using username ‘~Frank Martin’) were still communicating in the group chat named ‘press rack’ on the application ‘Threema’. They discussed various logistics about when the “4kgs” would be dropped off and the offender said he was driving and was just past Murrumbateman at 3:40PM.
Traffic stop of offender
28․At about 3:40PM on 6 June 2023, police intercepted the offender’s vehicle, a white Ford Transit van, as he was driving into the ACT from New South Wales (NSW).
29․Police stopped the van on the Barton Highway and identified the offender as the driver. The offender appeared nervous and had glassy eyes, sweaty palms that he was continuously rubbing together and his face was twitching.
30․The offender told police that he had been at his parent’s property in Murrumbateman, NSW, however, police had lawfully intercepted information that the offender had travelled into Victoria.
31․At about 4:12PM, police told the offender that his van was a crime scene and asked for his consent to search the van. He did not consent to the search so police told him that they would organise for the van to be towed to a secure police compound whilst another officer applied for a search warrant.
32․The offender asked to get his house keys which were attached to his car keys and police agreed. The offender removed a key and a silver fob. Police asked the offender where his phone was and he told police that it was in the glovebox. He was also asked whether it was the only phone in the car and the offender told police that it was the only phone “as far as he was aware”.
33․The offender then left the area on foot.
34․A tow truck arrived at the location and took the van to the AFP Exhibit Management Centre (EMC) at Mitchell, ACT.
Searches
Search warrant – Offender’s vehicle
35․At about 7:00PM, police executed a search warrant on the offender’s white Ford Transit van.
36․During the search, police located and seized the following items:
(a)A mobile phone from the glove box – iPhone 13 Pro Max.
(b)A Garmin navigation system fixed to the inside of the front windscreen on the driver’s side.
(c)A large yellow garbage bag tied at the top with a knot which appeared to be full of rubbish. The contents of the bag appeared to be covered in oil. The bag contained:
(i)a large amount of empty cryovac bags, some contained white powder residue and had numbers written on the packaging;
(ii)an empty cryovac bag containing residue of a white substance with ‘X’ written on the bag and wrapped in silver duct tape which had been cut open;
(iii)used black gloves; and
(iv)razor blades.
37․The yellow garbage bag found matched the appearance of the bag that was used by the two offenders when preparing the cocaine on 5 June 2023 as seen on the CCTV footage.
38․The empty bag that had “X” written on it matched the appearance of the bag of cocaine that was photographed by the co-offender and sent on 5 June 2023 at 5:25PM.
39․When searching the van, police found a sophisticated hydraulic concealment under the front passenger seat.
40․The following items were found inside the hide amongst a large amount of coffee beans (used to mask the smell of illicit substance):
(a)A large black garbage bag containing:
(i)a medium cryovac bag containing a white substance with “2.130kg” written on the bag; and
(ii)two medium cryovac bags containing a brown substance.
(b)A medium cryovac bag containing a white substance.
(c)Three mobile telephones:
(i)Google Pixel 4a;
(ii)Samsung Galaxy A13; and
(iii)Google Pixel 6.
(d)A notebook containing names, amounts of money owed and paid, and amounts dropped.
41․On page 2 of the notebook, the ‘owed’ amount reached $337,670 and ‘dropped’ was 35oz. ‘35 oz’ refers to 980 grams of a controlled drug.
42․The most recent destination that was entered into the navigation system was ‘Melbourne VIC’.
Search warrant – offender’s residence
43․At about 10:18PM on 6 June 2023, police executed the search warrant at the offender’s residence at [redacted]. The offender and his girlfriend were at the residence at the time.
44․During the search, a bundle of $50 notes in Australian currency held together by rubber bands was located and seized from inside the offender’s girlfriend’s handbag. The total amount of the bundle of Australian currency was $5,000.
45․At about 11:11PM, the offender was arrested and taken the ACT Regional Watch House.
Section 3LA warrant
46․On 10 June 2023, police served a warrant pursuant to s 3LA of the Commonwealth Crimes Act on the offender in relation to the four mobile phones found inside his van. The offender complied with the order and gave police the passwords to all the devices and applications on the devices.
47․As a result, police were able to access the offender’s personal iPhone which was located in the glovebox of the white Ford Transit van and a black Google Pixel 4A phone that was located in the hide under the front passenger seat of the vehicle.
48․The Google Pixel phone that was accessed was utilising a Graphene Operation System, which is often used by drug syndicates.
49․The phone had two profiles and both profiles were able to be accessed by police. The second profile contained applications that enabled end-to-end encryption, including ‘Threema’.
50․Police were able to take photographs of the relevant conversations on ‘Threema’ as identified above.
51․Police were able to identify that the offender was using the username ‘back down’ on ‘Threema’.
Search warrant - Fyshwick premises
52․On 13 June 2023, police executed search warrants at 20 Collie Street, Fyshwick ACT (‘One Stop Tyre and Auto’). The co-offender was present at the premises.
53․During the search, police located and seized the following items:
(a)A silver bowl with black base.
(b)A clear bowl.
(c)A Nutribullet container and two Nutribullet blenders.
(d)A black Swann CCTV recorder.
(e)A black Alhua CCTV recorder.
54․AFP Forensics attended the Fyshwick premises and took a number of forensic samples from the kitchen area which presumptively tested positive for cocaine and boric acid.
55․The bowls and blenders that were seized matched the images sent from both offenders during the ‘press rack’ conversation on 5 June 2023.
56․Police were able to review the CCTV footage and viewed footage from 5 June 2023 as described above.
57․The date and timing of the CCTV footage corresponds with the date and times of the images of cocaine located on the offender’s mobile phone.
ACT Government Analytical Laboratory (ACTGAL) Results
58․Items containing suspected drugs that were seized during the search warrants were analysed by ACTGAL. The following items were all found in the White Ford Transit van belonging to offender in a hidden compartment under passenger seat:
(a)A plastic vacuum sealed bag containing an off-white crystalline substance; 2114.868 grams of methylamphetamine was detected in the substance.
(b)A vacuum sealed plastic bag containing a brown crystalline substance; 995.207 grams of methylamphetamine was detected in the substance.
(c)A vacuum sealed plastic bag containing a brown crystalline substance; 989.976 grams of methylamphetamine was detected in the substance.
(d)A torn vacuum sealing plastic bag labelled “415” over “-40” containing a white crystalline substance; 369.875 grams of boric acid was detected in the substance.
(e)A yellow plastic bag containing:
(i)a piece of plastic containing a white oily substance. 0.272 grams of cocaine was detected in the substance; and
(ii)a towel, gloves, cardboard tubing, an opened cardboard box, pieces of plastic, plastic bags, a permanent marker, and razors.
(f)An AFP plastic bag containing:
(i)pieces of plastic containing a white-brown oily wax;
(ii)a taped piece of plastic containing a white-brown oily wax; and
(iii)0.567 grams of cocaine, levamisole and caffeine were detected in the exhibit.
59․The total amount of methylamphetamine found and seized was 4100.051 grams.
Forensic evidence
60․Forensic DNA analysis was conducted on the hidden compartment (referred to as the ‘hide’) under the passenger seat of the offender’s white Ford Transit van and items that were seized by police during the search warrant. The forensic analysis revealed the following:
(a)A tape lift from the front half of the hide in Ford Transit Van produced a mixed DNA profile from a minimum of two individuals. The offender could not be excluded as a contributor and the identified likelihood was “extremely strong support”.
(b)A wet/dry swab of a black rubbish bag from the Ford Transit Van produced a mixed DNA profile from a minimum of two individuals. The offender could not be excluded as a contributor and the identified likelihood was “extremely strong support”.
(c)Wet/dry swabs of the exterior of a Google Pixel phone produced a partial male DNA profile. The offender could not be excluded as the source and the identified likelihood was “very strong support”.
(d)Wet/dry swabs of a Google Pixel phone case produced a mixed DNA profile from a minimum of two individuals. The offender could not be excluded as a contributor and the identified likelihood was “extremely strong support”.
(e)Wet/dry swabs from the exterior surface of a Google Pixel phone produced a partial male DNA profile. The offender could not be excluded as a contributor and the identified likelihood was “extremely strong support”.
(f)Wet/dry swabs of the surfaces of a clear Google Pixel phone case produced a male DNA profile. The offender could not be excluded as the source.
(g)Wet/dry swabs of the exterior of a Samsung mobile phone (excluding the side buttons) produced a partial male DNA profile. The offender could not be excluded as the source. The offender could not be excluded as a contributor and the identified likelihood was “very strong support”.
61․A fingerprint was found on a black plastic bag from the White Ford Transit van that contained items 001-005 from PSR 3684795, found in the hide under passenger seat in the Ford Transit van. Fingerprint analysis concluded it came from the left middle finger of the offender. A fingerprint was found on a Pixel 7 box lid found in the kitchen cupboard at [redacted]. Fingerprint analysis concluded it came from the right middle finger of the offender.
Sentencing considerations
Nature and circumstances of the offending
62․An assessment of the nature and circumstances of the offending requires consideration of the objective seriousness of the conduct establishing the offences. The maximum penalty provided for by the legislature “serves as an indication of the relative seriousness of the offence”: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 372 [31]. The significant maximum penalty in this matter reflects the gravity the community rightly attaches to drug trafficking that involves commercial quantities of controlled drugs.
63․An assessment of objective seriousness and where offending conduct sits on the spectrum of offending is an important consideration: R v Kilic [2016] HCA 48; 259 CLR 256 at 266 [19]. Consistent with observations made in this jurisdiction about the utility of references to low, mid or high range offending, I have identified the individual features of each offence that influences the objective seriousness of the offending: see R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua) at 108 [24].
64․The factors relevant to an assessment of the objective seriousness of drug trafficking offences were outlined in Bui v The Queen [2015] ACTCA 5 at [41]:
(a) The role of the accused is an important consideration, those whose level in the operation is at a higher level of the hierarchy being more culpable: MacDonnell (2002) 128 A Crim R 44 at 50;
(b) While, as decided in Wong v The Queen at 609; [67]-[70], the weight of the amount of drug is not of chief importance in determining the appropriate sentence, it remains a relevant factor, particularly in the context of the harm from its distribution effects: R v Bezan (2004) 147 A Crim R 430 at 438;
(c) The motivation for the offence is highly relevant, the purpose of profit being a more serious matter: R v Speechly (2002) 133 A Crim R 26 at 30; R v Day (1998) 100 A Crim R 275 at 277.
Role of the offender
65․In the agreed statement of facts, the offender’s role was described as follows:
The offender’s role in the enterprise, whilst not insignificant, was in the nature of a trusted associate who received payment for tasks undertaken rather than someone ‘high up’ in the enterprise who was intimately involved in the sourcing, payment or acquisition of the substances. There is nothing to suggest the offender had any financial stake or stood to benefit from the sale of the drugs beyond the specific payments for the tasks he performed. The offender participated in the transportation of the methylamphetamine in the knowledge it would be distributed for sale and in the mixing weighing and packaging for further distribution for sale of the cocaine but was not involved in, nor did he stand to benefit from, those further steps.
Messages sent by the offender shortly prior to his involvement in the subject offences suggest he was intending to move to Queensland to live and work but was prepared to fly back to Canberra if requested to undertake further courier like “drug runs” of the type undertaken by him with respect to the collection and transportation of the methylamphetamine for the sum of $5,000 "per run".
66․The offender was responsible for what is referred to as “cutting” and packaging one kilogram of cocaine into smaller packages. Those packages were not small, street level deal portions. Before the offender’s repackaging efforts, the amount of cocaine involved was below the commercial quantity. His participation in “cutting” the cocaine with another substance saw him enlarge the quantity of it to be just above the commercial quantity, thereby establishing the more serious offence. The facts demonstrate that the offender was involved for some hours in preparing and packaging the cocaine.
67․With respect to the methylamphetamine, the role of courier is critical. The messaging that the offender was actively engaged in with the co-offender and others reveals that his participation was in full knowledge of the nature and scope of the operation. The distance driven by the offender in performance of his courier role was significant.
68․On any view, the offender played an important role in an organised drug operation. As I observed in DPP v Le [2024] ACTSC 31 at [31], “the sum of the smaller parts” is the capacity for a drug business to successfully operate, and the success of a sophisticated drug operation “relies on the preparedness of recruits to perform their part regardless of where they sit in the hierarchy of the operation”. While the role performed by the offender was key to the preparation of the cocaine, and to facilitate the supply and the movement of the methylamphetamine, the offender himself, I accept, was entirely dispensable and as was accepted by the prosecution, he was not a critical figure to the overall success of the operation.
Quantity and value of the trafficked drugs
69․As has already been noted, the offender prepared and packaged 3.284 kilograms of cocaine and transported 4.1 kilograms of methylamphetamine. In each case those quantities are above the relevant commercial quantity of 3 kilograms for each substance.
70․The national median price for a kilogram of cocaine in 2019-2020 (the most recent data relied upon by the prosecution) was $210,000, which would see the value of the cocaine to be around $672,000. The national median price for a kilo of methylamphetamine in 2019-2020 was $235,000, which would see the value of the methylamphetamine to be around $963,500.
71․On any view, the weights involved represented significant monetary value.
72․In each case, while clearly meeting the definition of a commercial quantity, the amounts are not significantly greater than the three-kilogram threshold, the cocaine being some two hundred grams above the threshold. In each case, a large commercial quantity is six kilograms.
Motivation for the offending
73․The offender was undoubtedly financially motivated. The material before me supports there being two factors driving his financial motivation. Firstly, that he was in the throes of a severe cocaine addiction. Secondly, as a direct consequence of his addiction he was in a significant amount of debt accrued with his supplier and he was concerned about the consequences of non-payment. The drug debt rapidly accrued in circumstances where the offender’s business was in financial free-fall, which was affecting his capacity to generate legitimate income.
74․While the prosecution’s submission that “greed’ was a factor can be accepted, it was not greed driven only by a desire to enjoy the profit of his efforts. Rather it was greed driven by the need to fuel an out-of-control addiction to cocaine, combined with fear of the consequences of not paying his drug debts. A fine distinction perhaps, but one which recognises that the offender was not driven only by the profit he might generate. It also recognises that he was not high enough up in the hierarchy of the operation to benefit from the significant profit that would result from the sale or supply of the drugs he was trafficking. Dr Bollinger, who prepared a psychological report in relation to the offender which was tendered without objection, considered that the offender’s severe cocaine dependency had a significant impact on his decision to engage in the offending because he viewed it as the only way to both pay off his drug debts and fuel his addiction.
75․In my view the nature of the financial motivation in this matter does provide a basis to distinguish this offender from an offender motivated by profit alone. Drawing that distinction does not significantly undermine the seriousness of the offending but does properly capture the factors driving the offender’s conduct. Plainly, given the features of the offending that I have identified, these are serious examples of drug trafficking offences.
76․It also cannot be forgotten that the drugs prepared, packaged, and transported by the offender were bound for an end user. Our communities bear the brunt of the anti-social consequences, indeed in some cases, the misery, visited upon the lives of individuals and families because of drug use and drug dependence. The offender himself is a good example of the havoc drug addiction can wreck upon individual lives and the ripple effects of that havoc. Drug addiction steals futures, fractures families and harms communities. It is because of the extent of the harm done through drug use that sentences imposed for drug trafficking must deter others from risking involvement, however big or small, in the drug trade. It bears repeating an observation at first instance endorsed by the Court of the Appeal in Lawrence v The Queen [2007] ACTCA 10; 1 ACTLR 158 at 161 [6]:
[D]rug dealing is a blight upon the Australian community and it seems to me that the consideration for general deterrence require that a custodial sentence, a full-time custodial sentence, be imposed.
77․The seriousness of the offences requires periods of full-time imprisonment to be imposed and no submission was advanced by the offender to the contrary.
Subjective circumstances
78․The offender participated in a Pre-Sentence Report which detailed some of his personal circumstances and background history. He is 35 years old. His parents separated when he was young. He has no contact with his biological father but maintains a close connection with the rest of his family and enjoys their support. He is currently in a supportive relationship and lives with his partner in stable accommodation. He has no children.
79․The offender has worked as an electrician and in the building and construction industry, including operating a construction business which was failing around the time of the offending. He has been unemployed since his arrest and is subject to a confiscation of criminal assets order, meaning he has no form of income or assets and is supported by his family and partner. He disclosed to the author of the Pre-Sentence Report that at the time of committing the offences he had a drug debt of around $30,000. He is currently studying a Bachelor of Building and Construction Management (Honours) at the University of Canberra.
80․The offender acknowledged his past associates have been anti-social. He reported now mainly socialising with his and his partner’s family. Since his arrest, he has participated in sporting activities which have been a positive influence on him. He also assists his family in their home renovations.
81․The offender disclosed previous illicit substance use to the author of the Pre-Sentence Report. He used cocaine from when he was 21 to 29 years old, then undertook a period of abstinence before commencing heavy use again in 2023 due to stressful life events, which led to the accumulation of his significant drug debt. He denied any further drug use following his arrest. This is consistent with him having returned 11 negative urinalysis results since June 2023. He has been receiving drug and alcohol counselling and was able to recognise the benefit of that treatment. He denied any current issues with alcohol.
82․A letter from Directions Health in May 2024 confirmed that he has attended eleven sessions and that his progress has been positive. He has remained abstinent for the duration of the treatment.
83․The offender reported experiencing depressive episodes throughout his life and is currently on medication in relation to this. He described his current mental health as stable.
84․The author of the Pre-Sentence Report considered he accepted responsibility for his wrongdoing and acknowledged the unlawfulness of his actions. He attributed the offending to his cocaine dependency and his resultant drug debt. The author considered the offender had multiple protective factors and would further benefit from maintaining drug and alcohol treatment and mental health treatment. He was assessed as suitable for a low level of intervention by ACT Corrective Services.
85․A psychological report from Dr Bollinger provided a history largely consistent with what I have already detailed. She considered the offender met the criteria for dissociative disorder, major depressive disorder and stimulant use disorder. She also considered that the offender reported symptoms consistent with experiencing a dissociative episode at the time of the offending and that he felt under considerable pressure (which I note she described as “duress”, and Senior Counsel for the offender clarified this was not relied upon) to participate due to his large drug debts and his fear of what would happen if he did not pay those debts.
86․Dr Bollinger considered that the offender’s ability to exercise judgment was impaired due to these external influences. She considered his dependency on cocaine had a significant impact on his involvement in the offending given that, at the time of the offending, he was using cocaine to mask his major depressive disorder and to cope with the stress of a failing business. He was assessed as having severe drug use requiring intensive intervention.
87․Dr Bollinger observed:
At the time of the offending, it appears that he as affected by a period of major depression, for which he was using cocaine as a mask. He had developed a dependency on cocaine to manage his mood which led him to be significantly in debt that could not be managed due to the failing finances of the business.
[…]
Mr O’Keefe has reported a fairly significant and serious dependency on stimulant drugs. This dependency has led him to behave in ways that are contrary to his general morality as evidenced by his feelings of anxiety and shame and a dramatic worsening of his offending history.
88․The offender reported that being caught was likely beneficial for his health. He expressed remorse and shame for his actions and their impact upon his loved ones. Dr Bollinger considered the offender to be at low risk of re-offending. She considered the most significant risk factor for further re-offending to be his drug addiction and that continual treatment to maintain abstinence would reduce his risk of further offending.
89․Dr Bollinger noted that offender has been seeking psychological treatment in the community and recommended that this continue so he may begin to understand his dependency and work on preventing relapse and examine the cause of his depression and dissociative disorder to find other ways of coping if he experiences further challenges in the future. She noted she understood there to be limited mental health treatment options at the Alexander Maconochie Centre. She considered, given his major depressive disorder and previous suicidal ideation, that being incarcerated would be especially difficult for him and detrimental to his mental health. Dr Bollinger considered that the offender would require monitoring for suicidal ideation while in a custodial environment.
Character references
90․Three character references were tendered from friends and family members of the offender, with a further reference from his current partner. The references all generally attest to the offending being shocking and deeply out of character for the offender. They consistently record that in the experience of the authors the offender is a kind, generous, helpful and hard-working person. All of the references refer to an observation of the offender’s deep regret and shame in relation to the offending. In particular, the offender’s partner recorded that she was personally disappointed and unsurprisingly deeply hurt by the offender’s actions. Somewhat remarkably, she affirms her commitment to their relationship and her continued support of him. She expressed her relief in some respects that these proceedings acted as an intervention for the offender, that had put a stop to his drug use, which she described as severely affecting their lives and their relationship in the lead up to his arrest.
91․Of significance, the offender’s partner detailed the steps he has taken to lead a more positive life since his arrest as well as the goals he has set for himself. Consistent with the other references she attests to his strict adherence to bail conditions while in the community, reflecting his acknowledgement of the gravity of the situation that now faces him in relation to sentencing.
Letter from the offender
92․The letter from the offender expressed his sincere remorse and acknowledged the seriousness of his actions and that he takes full responsibility for his conduct.
93․The offender outlined the stressors in his life around the time of the offending. He confirmed his business was operating at a loss, and identified that as a result his anxiety and stress increased, causing his drug use to increase dramatically. He provided an explanation that at the time he was asked to transport the drugs, he had been using drugs and his judgement was not clear enough to refuse.
94․The offender detailed the rehabilitative steps he has taken while on bail. He has commenced a university degree which he enjoys, he has completed the SMART recovery program at Directions ACT and has attended bi-weekly counselling sessions. He noted that through his treatment he has gained an understanding of the impacts of his offending on the community and that he was fuelling the same life for others that he wanted to escape from, demonstrating significant insight into his offending.
95․The offender expressed shame and embarrassment regarding the offending and its impact on his family, friends and the community. The letter demonstrates that he is able to recognise the poor judgments the offending represents. The letter reflects the long-term aspirations that he has to turn his life around.
96․Of course these statements were not the result of sworn evidence and I am mindful of the approach endorsed in Imbornone v The Queen [2017] NSWCCA 144 where the Court confirmed (at [57]), that expressions of remorse contained in letters written by an offender should be “treated with considerable circumspection” and may be deserving of little or no weight given the assertions contained therein are untested: see also R v Baxendale [2018] ACTSC 260 at [37].
97․That said, the expressions of remorse made by the offender are entirely consistent with the observations contained in the personal references, the Pre-Sentence Report and the report of the Dr Bollinger as to the offender demonstrating genuine remorse. They are also consistent with the acceptance of responsibility evidenced by his relatively early plea of guilty and with the action the offender has taken since his arrest to address his drug use in particular. Accordingly, I am satisfied that I can place real weight on the expressions of remorse contained in the letter from the offender, despite the offender not giving sworn evidence or being subject to cross-examination.
Responsibility, remorse and rehabilitation
98․The level of responsibility the offender bears for the offending must be viewed through the prism of the clear connection between his major depressive disorder and his use of cocaine to “mask” that disorder. As I have already observed, the offender’s involvement in trafficking drugs was motivated to a very significant degree by the demands of his addiction. This context does not operate to excuse the offender’s conduct, though does influence to some extent an assessment of the level of responsibility that the offender bears for the offending.
99․The offender is clearly a man of some intelligence and industry. This is consistent with the insight he has demonstrated into his offending behaviour and into the disastrous consequences of his drug use. It is also consistent with an appreciation of the seriousness of his conduct as well as the risk he was taking by participating in trafficking cocaine and methylamphetamine. This appreciation must have also been informed to some degree by the offender’s criminal history, specifically for related offending to which I will come.
100․I am satisfied on the material before me that the offender is genuinely remorseful for and ashamed of his conduct. Remorse is a “major factor” relevant to the assessment of rehabilitation: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at 169-170 [41]. There is no greater way to protect the community from the prospect of future reoffending than successful rehabilitation.
101․The offender presents to the Court today having taken the opportunity while on bail to demonstrate his significant capacity for genuine reform. Arising in part from action taken to restrain his financial assets because of his offending, and the difficulty he experienced obtaining employment upon his release on bail, the offender determined to enrol in study as a meaningful use of his time. The offender has put significant effort into that endeavour and has now partially completed a Bachelor of Business and Construction Management. The offender’s academic transcript reflects a high level of achievement, so much so that he was the recipient of a Dean’s Excellence Award in September 2023.
102․The offender has been entirely compliant with a strict regime of bail conditions, including daily reporting since his release on bail. Of real significance is that the offender has consistently proven his capacity for drug abstinence through regular urinalysis and his substantial engagement in ongoing counselling with Directions ACT since September 2023.
103․The letter provided by Directions ACT can only be described as a glowing endorsement of the offender’s commitment to reform. In addition to confirming his abstinence from cocaine use the letter states:
He is also highly motivated in other areas of his life such as studying, sporting activities, mentoring others, carpentry and house maintenance while maintaining and rebuilding his significant relationships. He is now receiving medical treatment for anxiety and depression. During counselling he has worked on using goal directed action as a strength that needs to be moderated by self-care and compassion. Andrew is now able to address negative thought patterns when they arise, lessening anxiety by instigating strategies to promote his health and wellness.
Throughout treatment Andrew’s attitude has been exemplary. He presents for his appointments on time, is courteous, neat and tidy. Most importantly, Andrew is deeply reflective about his past and the events leading up to his current situation, frequently expressing remorse and a willingness to engage with remedial actions with friends and family. He is a high achiever excelling in his studies, taking pleasure in assisting others and recently completed a marathon. He is now assisting his partner to train for second marathon.
104․Perhaps unsurprisingly given the significant and successful steps the offender has taken to improve himself, he has been assessed as presenting a low risk of reoffending. The offender’s prospects of rehabilitation are excellent. I do not consider this to be an overstatement. It is an accurate reflection of the genuine efforts made by the offender to demonstrate himself as capable of reform.
Pleas of guilty
105․The offender entered pleas of guilty on 12 April 2024 after indicating a plea at the Criminal Case Conference on 9 April 2024. This would ordinarily attract a discount of around 15-20 percent in recognition of the utilitarian value of the plea. The statement of facts suggests both the preparation and conduct of a trial would have required significant resources.
106․The prosecution submitted that s 35(4) Crimes (Sentencing) Act2005 (ACT) (the Crimes (Sentencing) Act) has application, in that the case against the offender was “overwhelmingly strong”. Section 35(4) of the Crimes (Sentencing) Act prohibits the Court from making any “significant” reduction for the fact that the offender pleaded guilty if, based on established facts, the Court considers that the prosecution case for the offence was “overwhelmingly strong”. A consideration of this issue “calls for a practical assessment of the reality of the situation” and an overwhelming case means “so great as to render opposition useless”: R v Newby [2022] ACTCA 20 (Newby) at [31].
107․The prosecution submitted that the case against the offender, made up as it was of CCTV footage capturing the offender preparing and packaging the cocaine, with contemporaneous messages establishing that the substance was cocaine, and the weight was a commercial quantity of cocaine, was “overwhelmingly strong”. In relation to the methylamphetamine the prosecution highlights that the offender was effectively caught “red handed”, having been the subject of direct surveillance by police and then directly intercepted transporting the methylamphetamine. The evidence in relation to this conduct was supported by the significant messaging evidence revealing the extent of the offender’s knowledge of the nature and scope of the operation in which he was participating.
108․An overwhelmingly strong case is one where “an acquittal [would be] realistically unlikely”: Newby at [31]. In R v Snowden [2022] ACTSC 186 (Snowden), Mossop J at [48] observed that a discount that reflects the utilitarian value of the plea but is not a “significant reduction” for the purposes of s 35(4), would be in the order of five percent: see also DPP v Samuel Myers (a pseudonym) [2023] ACTSC 142. In Snowden, Mossop J also recognised that a determination of what would be a significant reduction may “vary from case to case”: at [47].
109․As has been observed by the Court of Appeal in Toumo’ua, the Explanatory Statement “does not elaborate on the purpose of including s 35(4)” (at [70]), in circumstances where strong, even overwhelmingly strong cases, can require significant resources to prosecute and can nonetheless fail: see Coggan v The Queen [2013] ACTCA 49 at [20].
110․It is difficult to assess this matter as anything other than one in which an acquittal would be realistically unlikely, in view of the volume and strength of the evidence against the offender.
111․In circumstances where the courts and the community would wish to encourage, in appropriate cases, offenders accepting responsibility for their conduct early on in the process so that resources are used efficiently, and absent a clear explanation of the purpose of s 35(4), it is difficult to divine the rationale behind the provision. Overwhelmingly strong cases do not, by virtue of the strength of the prosecution case, magically take less time to prepare and prosecute to trial. It could hardly be that the encouragement to which I refer, for early guilty pleas to be entered where appropriate, should only apply to cases not considered to be overwhelmingly strong. The utilitarian value of the timing of a plea of guilty, as was conceded by the prosecutor in this matter, can of course be measured in overwhelming strong cases as it is in any other case.
112․When faced with answering an overwhelmingly strong case, such that s 35(4) would prohibit the Court from applying a “significant discount” reflective of the actual utilitarian value of the plea, an offender may well determine that the entry of an early plea of guilty is not in their interest.
113․Having made those observations, the prosecution having determined to make the submission that the provision ought to be applied in this case, I am obliged to make an assessment of the strength of the prosecution case. Having done so, I am satisfied that this case is in the category of what the Court in Toumo’ua referred to as “that very small class” of overwhelmingly strong cases to which the provision applies.
114․I consider it appropriate to express the discount that I will apply, observing the prohibition on the discount being “significant”, by reference to the period to be taken off the starting point of the sentence rather than by reference to a specific percentage.
Criminal history
115․The offender has one relevant prior conviction for being an accessory after the fact, contrary to s 717(1) of the Criminal Code, to cultivating a controlled plant for selling (s 616(5) of the Criminal Code). In the sentencing remarks for this offence, R v O’Keefe; R v Jabal [2014] ACTSC 347 at [1], Burns J described the offender’s conduct as him, “believing someone had committed an offence of cultivation of a trafficable quantity of cannabis, assist[ing] that person with the intention of allowing [them] to escape prosecution”.
116․The sentencing remarks record that offender owned a house where a hydroponic system was used to grow cannabis. He did not live there at the time the cannabis was cultivated, and he was not sentenced on the basis that he was involved in the cultivation. Police attended the residence and removed many cannabis plants from the house into a pool at the property. The next day the offender attended the property and removed the plants, driving them to the home of his co-offender. The co-offender was driving the offender to his family farm in NSW when the vehicle was stopped by police who discovered the cannabis plants in the car. The offender was 24 years old at the time. He was sentenced to a Good Behaviour Order lasting 14 months. This outcome was consistent with the objective seriousness of the offending.
117․There was a lesson to be learned by the offender arising from this 2014 experience of the criminal justice system because of his peripheral participation in the drug trade. It seems that lesson was not entirely effective and indeed the offender escalated to more serious drug offending. That said, the offender’s actions subsequent to his arrest for the offences now before this Court strongly suggest, that as the Court and the community would want, the lesson has now taken effect, such that the offender now undoubtedly appreciates the consequences of his terrible judgment. Consequences that will be far more severe than the imposition of a Good Behaviour Order. The offender is not to be punished for his criminal history, but it is a factor relevant to the leniency that can be extended to him and to an assessment of whether the offences for which he is to be sentenced are entirely out of his character.
Time in custody
118․The offender has spent eight days in custody in relation to the offending. The sentence I impose will be backdated in recognition of that time.
Current sentencing practice
119․No sentencing outcome is a precedent. Sentencing statistics and comparable cases do not define the possible range of available sentences nor do they place a cap on the upper or lower ranges of possible sentences: see Hili v The Queen [2010] HCA 45; 242 CLR 520 at 537 [54] and Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at 445 [51]-[53].
120․The prosecution provided a table containing sentencing outcomes said to be comparable to the offending for which the offender must be sentenced. I consider the most relevant of those decisions in terms of the level of involvement of the offender and the nature and circumstances of the offending to be: DPP v Wright [2023] ACTSC 196 (Wright); R v Nchouki [2022] ACTSC 227 (Nchouki); R v Yeboah [2022] ACTSC 127 (Yeboah); R v Mackinder [2021] ACTSC 176; R v Butler [2020] ACTSC 170; R v McCallum [2020] ACTSC 15 (McCallum); R v Negah [2019] ACTSC 243; R v Hagan [2016] ACTSC 343 (Hagan); R v Nikro [2015] ACTSC 231 and Klobucar v The Queen [2014] ACTCA 6. These outcomes demonstrate that generally, periods of full-time imprisonment were imposed for trafficking offences, consistent with the maximum penalties that reflect the gravity of drug trafficking offences.
121․It must be observed that many of the sentencing outcomes to which I was referred did not involve offences with the same maximum penalty as that which applies to the specific offences for which I am to sentence the offender. For example, in Hagan and McCallum the maximum penalty for the trafficking offence involved was life imprisonment. In Yeboah, the maximum penalty was 10 years of imprisonment, a fine of $160,000 or both. So too in Wright and Nchouki.
122․The only sentencing outcomes that I have been able to find from this jurisdiction which did involve the relevant offence pursuant to s 603(3) of the Criminal Code are R v Gladman [2019] ACTSC 371 (Gladman) and R v Baker (No 3) [2019] ACTSC 365 (Baker).
123․In Gladman, the offender was sentenced to three years and six months of imprisonment, reduced to three years of imprisonment, on account of the plea of guilty, for one count of trafficking in a commercial quantity of a controlled drug, namely Lysergide (LSD), contrary to s 603(3) of the Criminal Code. Justice Burns noted that a commercial quantity of LSD was 1.5 grams and police had seized 2.084 grams of LSD from the offender’s bedroom during a search warrant. The offender admitted to selling the LSD and stated that the motivation was to fund his own drug use. Justice Burns was satisfied that it was more probable than not that this was the motivation behind the offending and that some, but not the majority of the drugs in the offender’s possession were for his own use. The offender had been dealing drugs for four years and considered it a business, and Burns J considered the offending was not isolated or out of character. There was no evidence of large profits.
124․In Baker, the offender was sentenced to five years of imprisonment for a count of trafficking in a commercial quantity of a controlled drug being cannabis, contrary to s 603(3) of the Criminal Code. There was no reduction for a plea of guilty, the offender having been found guilty at trial by a jury. The offender supplied a commercial quantity of cannabis to a drug dealer, which had a value exceeding $100,000. Justice Burns was satisfied the offender anticipated making significant profits from this exercise and placed the offence at the mid-range of seriousness for such offences. His Honour considered the offending had been driven by a desire to present himself as a successful individual by making a large amount of money, quickly. The offender had no relevant criminal history and had positively engaged in rehabilitation while in custody, including engaging in education. The offender was found to have little to no remorse.
Determination
125․The purposes of sentencing to which I must have regard are set out in s 7 of the Crimes (Sentencing) Act. It was accepted by Senior Counsel for the offender that general deterrence carries considerable weight in this matter. I bear in mind that the weight of that factor, does not operate to extinguish the need to give effect to individualised justice.
126․Punishment, accountability and denunciation are also significant considerations given the nature of the offences. So too are the offender’s excellent prospects for rehabilitation. Such is the strength of that factor that I am, perhaps unusually, satisfied that specific deterrence has been largely achieved. Accordingly, the sentence I impose need not reflect that purpose of sentencing to any significant degree.
127․Sensibly, there was no contest that the offending should result in the imposition of a substantial period of full-time imprisonment. In circumstances where the offender has demonstrated remarkable progress since his arrest and his capacity to contribute positively to the community, this matter stands as an example of the very real risk an offender takes when they align themselves with those who seek to exploit and profit from the very real harm of drug use. The risk taken by the offender to engage in the offending will see him spend years of his life, that he will never get back, disconnected from his partner, his family and from the things that give him fulfillment and purpose. Years of life, effectively wasted, by an individual with enormous potential for a much more productive existence. Nonetheless, there must be severe consequences for the commission of what are serious offences. I must impose a sentence that marks that seriousness, that punishes the offender and that denounces his conduct so that others who might be minded take the same risk with their own futures, will be deterred from involving themselves in the harm created by trafficking in drugs.
128․The overall sentence I impose must reflect the total criminality involved in the conduct and be “just and appropriate” in all the circumstances: Mill v The Queen [1988] HCA 70; 166 CLR 59 at 63 [8]. I must avoid crushing the very real rehabilitative prospects of the offender, and a perception that there is a benefit to him from committing more than one offence.
129․I have determined that there should be some accumulation as between the offences given the entirely separate and serious nature of each of them, but only that which is necessary to give proper effect to the purposes of sentencing and the principles to which I have referred.
130․I will be required to set a non-parole period.
131․The relevant principles in relation to non-parole periods have been discussed in Henry v The Queen [2019] ACTCA 5 at [33]-[37], Taylor v The Queen [2014] ACTCA 9 at [19], O’Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 and Cole v The Queen [2019] ACTCA 3; 14 ACTLR 84. I have had regard to those principles and acknowledge the need to explain the basis for the imposition of a non-parole period outside what might be considered the usual range of between 50-70 percent.
132․Nominating a non-parole period involves a consideration of the sentencing purposes contained in s 7 of the Crimes (Sentencing) Act. The non-parole period is the period that justice requires that the offender be actually incarcerated: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at 139-140 [57]. The period stands to be determined by reference to the objective seriousness of the offending, the offender’s subjective circumstances and the other purposes of sentencing including punishment and rehabilitation. In this matter, the material demonstrates that the offender’s major depressive disorder, intertwined with his history of suicidality, will weigh heavily upon him during the time that he is subject to full-time imprisonment. The custodial environment will be “extremely detrimental” to him in the context of his diagnosis and his past suicidality: Dr Bollinger’s report at [66].
133․An offender’s prospects for rehabilitation are an important factor in determining a non-parole period. Those prospects can make a significant difference to the non-parole period and are relevant to an assessment of what is required to protect the community. In my view the need to protect the community from the offender is not a compelling feature of this matter, consistent with the assessment of him being at a low risk of reoffending and his presentation as an exemplar of rehabilitative effort. Indeed there is, I think, a legitimate and well-founded concern that as a result of what I acknowledge to be the need for a period of full-time imprisonment to be imposed, the offender’s exceptional progress since his arrest will be negatively affected; at best, perhaps, interrupted. The offender can only be encouraged to consider his future presentation to the parole authorities as motivation to continue on the pathway that he has so clearly chosen while awaiting the resolution of this matter. I also consider that the offender would benefit from the support and accountability that supervision on parole would provide to him upon his initial transition back into the community and for some time upon his release. Longer term parole supervision will ensure that any return to the use of illicit substances in the community will be quickly detected. Of course, rehabilitation is not the only consideration and I have had regard to the seriousness of the offending and the need for adequate punishment as well as the significance of general deterrence.
134․On the charge of trafficking in a commercial quantity of a controlled drug, being cocaine, the starting point for the sentence is three years and six months of imprisonment, reduced to three years and three months of imprisonment for the plea of guilty.
135․On the charge of trafficking in a commercial quantity of a controlled drug, being methylamphetamine, the starting point for the sentence is four years and six months of imprisonment reduced to four years and two months of imprisonment for the plea of guilty.
136․Having carefully considered those factors bearing upon the appropriate non-parole period, I have determined the non-parole period should be two years and ten months.
Orders
137․For those reasons the following orders are made:
(1)On Count 1 (CC2023/5996) of trafficking in a commercial quantity of a controlled drug, being cocaine, the offender is convicted and sentenced to three years and three months of imprisonment commencing on 27 March 2027 and ending on 26 June 2030.
(2)On Count 2 (CC2023/5805) of trafficking in a commercial quantity of a controlled drug, being methylamphetamine, the offender is convicted and sentenced to four years and two months of imprisonment commencing on 27 June 2024 and ending on 26 August 2028.
(3)The total sentence of imprisonment will commence on 27 June 2024 and end on 26 June 2030. The non-parole period commences on 27 June 2024 and will expire on 26 April 2027.
| I certify that the preceding one hundred and thirty-seven [137] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor. Associate: Date: 9 July 2024 |
2
37
4