R (Cth) v Daniel Peter Mead

[2017] NSWDC 1

District Court

New South Wales

Medium Neutral Citation:

R (Cth) v Daniel Peter MEAD [2017] NSWDC 1

Hearing dates:

15 December 2016

Date of orders:

18 January 2017

Decision date:

18 January 2017

Jurisdiction:

Criminal

Before:

Judge A Haesler SC

Decision:

2015/203145 - CAN H585935538 (“CAN B”)  STATE

001 Manufacture prohibited drug – I indicate a sentence of 1 year 1 month. Taken into account on a Form 1 - 002 Possess tablet press or drug encapsulator

003 Possess prohibited drug – I indicate a sentence of 1 month. Taken into account on a Form 1 - 009 Possess prohibited drug

004 Deal with property suspected proceeds of crime – I indicate a sentence 5 months.

005 Make, possess equipment etc to make false document – I indicate a sentence of 9 months. Taken into account on a Form 1 - 006 Possess equipment etc make id

007 Supply prohibited drug >small & <=indictable quantity – I indicate a sentence of 9 months.

011 Deal with identity info– I indicate a sentence of 1 month.

The indicative sentences reflect a finding of special circumstances. Having considered issues of accumulation, concurrency and totality, you are convicted and sentenced to an aggregate fixed term of imprisonment of 1 year 6 months. That term is to commence on 10 July 2015 and expire on 9 January 2017.

2015/4876 CAN H56243252 (“CAN A”) - COMMONWEALTH

004 Intentionally import prohibited tier 1 goods w/o approval including on S 16BA schedule x 3 sequences - You are convicted and sentenced to a term of imprisonment of 2 years 3 months, to commence on 10 June 2016 and to expire on 9 September 2018.

Taken into account on S 16BA schedule:

- 001 Intentionally import prohibited tier 1 goods w/o approval

- 002 Intentionally import prohibited tier 1 goods w/o approval

- 003 Intentionally import prohibited tier 1 goods w/o approval

005 Intentionally import prohibited tier 1 goods w/o approval - You are convicted and sentenced to a term of imprisonment of 1 year 6 months, to commence on 10 February 2016 and to expire on 9 August 2017.

006 Import border controlled drug, no commercial intent including 1 sequence on S 16BA schedule - You are convicted and sentenced to a term of imprisonment of 3 months, to commence on 10 January 2016 and to expire on 9 April 2016

Taken into account on S 16BA schedule:

- 007 Import border controlled drug, no commercial intent

008 Deal with proceeds of crime- You are convicted and sentenced to a term of imprisonment of 1 year 10 months, to commence on 10 May 2017 and to expire on 9 March 2019.

009 Produce false/misleading document to specified person/entity - You are convicted and sentenced to a term of imprisonment of 1 year 1 month, to commence on 10 August 2017 and to expire on 9 September 2018.

010 Use false customer name to receive service - You are convicted and sentenced to a term of imprisonment of 3 months, to commence on 10 May 2017 and to expire on 9 August 2017.

Total Commonwealth term of imprisonment is 3 years 2 months. Sentence is to commence on 10 January 2016. I fix a non parole period of 1 year 4 months to expire on 9 May 2017, on which date, subject to s 19AL Crimes Act 1914, you are to be released on parole.

Total effective sentence is 3 years 8 months.     Total effective non-parole period is 1 year 10 months.

Drug destruction order.

Short minutes of Order granted pursuant to s 3ZQZB ss4(d) Crimes Act 1914 (Cth), with exception of a STAY on Items 003/004 until 18/3/17, property in Schedule 2 to be forfeited to the Commonwealth.

Short minutes of Order granted pursuant to ss 48(2)(d) Proceeds of Crime Act 2002 (Cth), property in Schedule 2 to be forfeited to the Commonwealth.

Catchwords:

Importation of anabolic steroids; prohibited Tier 1 goods; small business operation; Chinese suppliers; efforts to avoid detection; use of the ‘dark net’; Bitcoin transactions and false identities; use of false licences to operate credit card accounts; manufacture and supply of imported products; false driver’s licence manufacture; objective seriousness; accumulation and concurrence; structure of State and Federal offences; just punishment and community protection; is drug importation and supply worth the risk.

Legislation Cited:

Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth)
Criminal Code 1995 (Cth)
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Customs Act 1901 (Cth)
Customs (Prohibited Imports) Regulations 1956 (Cth)
Customs Regulations 1926 (Cth)
Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Attorney General's Application No. 1: (2002) 56 NSWLR 146
Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
Blackman and Walters [2001] NSWCCA 121
Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525
Dennison v R [2011] NSWCCA 114
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159
Markarian v The Queen (2005) 228 CLR 357
Mill v The Queen (1988) 166 CLR 59
Nahlous [2010] NSWCCA 58
Nguyen v The Queen (2016) 256 CLR 656
Pearce v The Queen (1998) 194 CLR 610
The Queen v Pham [2015] HCA 39
Power v The Queen (1974) 131 CLR 623
Thorn v R [2009] NSWCCA 610

Texts Cited:

Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn: httpp://

Category:

Sentence

Parties:

Daniel Mead (Offender)
Director Public Prosecutions (Cth)

Representation:

Counsel:
Mr P Lange (for the Offender)
Ms R Karim, Director Public Prosecutions (Cth) 

Solicitors:
Mr M Ward, Morrisons Law, Wollongong (for the Offender)
Director Public Prosecutions (Cth)

File Number(s):

2015/4876; 2015/2013145

Judgment

Introduction

1. Daniel Mead, born 17 March 1986, was a slight young man. A self-described "IT nerd" he responded to school yard bullying by working out at the gym. He built up his physique but to do so he took a short cut - he used anabolic steroids. Illicit steroids are expensive. Mead had the skills to source steroids from suppliers in China. He organised illicit shipments of the drug. He did so surreptitiously using the "dark net", Bitcoin transactions and false identities. At times however he also his own Hotmail email addresses.

2. Shipments were sent to various addresses. Some were of friends. Other he set up using false driver's licences. He made those licences. Although he used the steroids he brought to Australia he also had a business selling to others. To do so he converted his steroids into capsule form. He set up false MasterCard accounts to process his profits of about $50,000 made between July 2014 and August 2015.

3. When his employer found out Mead was involved in making false licences it cost him his job. Loss of his job did not stop his illegal activity. In August 2014 following his employer reporting the matter, police executed a search warrant at his home. That event and his subsequent arrest and conviction for drug possession did not stop him. He did not stop to think of the consequences his steroid use was having on him. He did not think of the consequences steroid use had on those he supplied to. He now had an income. He could source party drugs as well and did so. It was never in his mind that, if caught, he was going to gaol.

4. Daniel Mead is now in gaol. He is to be sentenced today for a course of criminal conduct involving six Commonwealth and four State offences. Other offences will be taken into account when I do so. He has spent 1 ½ years on remand. He must serve more gaol time.

How did it come to this?

5. In early 2014, Mead asked some friends to receive packages for him at their homes.

6. On 28 February 2014 he leased a PO Box at Minnamurra using a fraudulent NSW Drivers Licence. Mead then organised the importation of relatively small amounts of anabolic steroids with a China based online supplier. That company supplies these drugs to the general public without prescription, license or permit. That company is aware what it is doing contravenes Australian law. Its 'Terms and Conditions' of sale note: "… any Order seized by Australian Customs, will be reshipped to the Customer for 40% of the original cost of the Order."

CAN A sequence 1-- Import prohibited Tier 1 goods

7. In early 2014 Mead had a number of email conversations with Chinese suppliers using his Hotmail account. Unlike the dark net communications some of them have been recovered. They reveal Mead had organised for steroids to be supplied to various addresses.

8. The flavour of the conversations is revealed in this extract, from 28 February 2014:

"I've just gotten hold of some good ID's so can organise additional shipping addresses. Can all orders to Australia be sent via ems again?

I'm lookin to order around 500 grams at a time in smaller packages to different addresses but need the quick turnaround times we had previously with ems."

9. Another email discussed a shipment that had been seized. Mead reordered it at 40% of the original cost. That shipment had been intercepted by a friend of Mead's who lived in Unanderra. It contained party streamers and hats, and two bags of white powder. The powder was presumptively tested as Testosterone Enanthate, an anabolic or androgenic steroid, with an approximate weight of 116 grams. Testosterone Enanthate is a prohibited Tier 1 good, under the Customs Act 1901 (Cth).

CAN A Sequence 2 - Import prohibited Tier 1 goods

10. On 13 March 2014 Australian Customs and Border Protection (AC & BP) intercepted a consignment sent to another friend of Mead's who lived in Wollongong. It contained white powder concealed in a music box. The powder was presumptively tested as Testosterone Enanthate, with an approximate weight of 30 grams. Emails from Mead's Hotmail account show him tracking this shipment, expressing his concern about the seizure and organising a more secure reshipment.

CAN A Sequence 3 - Import prohibited Tier 1 goods

11. On 1 March 2014, AC & BP intercepted an Express Mail Service consignment to another friends address in Berkeley. It contained painting materials and a sachet of powder, labelled 'additives of pigment'. The powder was presumptively tested as Testosterone Enanthate, with an approximate weight of 117.96 grams.

12. On 4 March 2014 Mead emailed his Chinese supplier using his Hotmail account:

"I need to place another order for a small amount of test e just to tie us over until we can have a reship of my seized package but I will need to be certain it will be shipped via ems as again it will be sent to a PO Box and I simply can't afford for another package to go missing as these kinds of problems cause a lot of lost business with customers going elsewhere as they simply can't wait."

13. Later emails indicate the "reship" was 114 g at $100 USD with a $40 USD discount using the 40% policy.

CAN A Sequence 4 - Import prohibited Tier 1 goods 

14. On 20 May 2014 Mead using his Hotmail account contacted another Chinese supplier of raw steroid powder asking for "100 grams Testosterone Enanthate as my first order to check your quality and shipping;" and noting: "What is your success rate to Australia as our customs is very strict? Do you have a stealth shipping method?"

15. Arrangements were made to ship the goods to the PO Box at Minnamurra. AUD$ 281 was transferred. The consignment was intercepted. In it were four packages of powder, labelled as 'Herbal Hair Dye'. Subsequent forensic analysis ascertained the substance to contain 396.5 grams of pure Testosterone Enanthate.

CAN A Sequence 5 - Import prohibited Tier 1 goods 

16. In August 2014, a consignment of steroids, 100 grams of Testosterone Enanthate, described as 'fruit drink powder', addressed to the P.O. Box in Minnamurra was intercepted and examined by AC & BP Officers. Emails show Mead's interaction with the supplier and his efforts to track this shipment.

17. After this consignment was intercepted a joint-investigation by Federal Police and New South Wales Police Force was set up.

CAN A Sequence 6 - Import border controlled drug without commercial intent offences

18. On 27 June, AC & BP intercepted an International Mail parcel to the PO Box in Minnamurra. It contained approximately 7 grams of crystalline material wrapped in paper. Forensic testing showed it contained 5.6 grams of pure Methamphetamine.

CAN A Sequence 7 - Import border controlled drug without commercial intent offences

19. On 2 July, AC & BP intercepted another 7 gram parcel containing Methamphetamine.

CAN A Sequence 9 and 10 - Produce false misleading documents and receiving a designated service using a false customer name -Use of false ID to open Prepaid MasterCard Accounts

20. On 6 August 2014, Mead set up two MasterCard Prepaid accounts under the name Nicholas Graham. He used a fraudulent NSW Drivers Licence. It had a false name but his photograph. He did however provide his Hotmail email address and mobile number.

CAN A Sequence 8 - Deal in proceeds of crime money worth $50,000 or more - realising Bitcoin currency and Australian currency and using these funds

21. In 2014 and 2015 Mead used a Bitcoin BPAY facility to transfer an amount of $8,971.98 to his David Jones American Express Account.

22. He used the Bitcoin BPAY facility to transfer an amount of $52,360 to the Nicholas Graham MasterCard. Between 6 August 2014 and 8 July 2015, the MasterCards were funded with AUD $48,249.89 via BPAY deposits; and AUD $42,120.90 was withdrawn in cash in the Shellharbour area.

State offences

23. During the course of the execution of a second search warrant on 10 July 2015 police recovered evidence which directly relates to the manufacture and supply of anabolic and androgenic steroids, the possession of fraudulent identification documentation, dealing in proceeds of crime and other material items.

CAN B Sequences 1, 2 and 7 - Manufacture and supply of steroidal agents and possession of encapsulator

24. During the search of the offender's premises, police located quantities of steroidal agents concealed within a hidden wall cavity in the garage, including two large glass bottles of liquid Testosterone Enanthate and clip seal bags containing other steroids. In the same location, police also located various paraphernalia consistent with the manufacture and supply of steroidal agents; including approximately 200 empty glass vials and lids; syringe filler; and capping tools for vials

25. In other parts of the garage police found 6,000 empty plastic capsules and two capsule presses, consistent with use in processing steroid powder for supply. Further quantities of steroidal agents were also located elsewhere at the premises.

26. In total, police seized 749.5 grams of steroidal agents in liquid form and additional small quantities in powdered and liquid form in sachets and capsules. The bulk quantity in liquid form had been manufactured from 370 g of steroid powder through a process of using the solvent Benzyl Alcohol/Benzyl Benzoate to dissolve it in liquid. The steroidal liquid produced was filled into the seized vials using a vial filler, capped with the vial lids using the vial capping device and then affixed with the labels for supply to the Offender's customers.

CAN B Sequence 3 - Possession of cocaine Sequence 9 - Possession of cannabis

27. During their search of the premises, police also located 1.2 grams of cocaine and 0.8 grams of cannabis.

CAN B Sequence 5 & 6 - Possess 14 fraudulent NSW Drivers Licences & 6 holographic crests for use in manufacture of fraudulent NSW Drivers Licences

28. In the wall cavity in the garage police also found a strontium 16GB USB storage device containing picture files of fraudulent NSW Drivers Licences and an operating software called TAILS, which is used to access the Dark Net without leaving a record of the user's activity on the computer. With it were:

1. Fourteen fraudulent NSW Drivers Licences, without holographic crests;

2. Six holographic crests (consistent with holograms used for NSW drivers licence crest);

3. One thousand white blank identification cards.

29. These together with three other USB storage devices and 100 white blank identification cards were consistent with use by the offender in the manufacture of fraudulent drivers' licences.

CAN B Sequence 4 - Deal in proceeds of crime

30. During the search, police located $2,060 in the kitchen and $3,050 concealed underneath the timber deck in the rear yard of the premises. The agreed facts note these funds "comprised proceeds of the Offender's activities in unlawfully supplying manufactured steroidal agents and/or counterfeit driver's licences".

31. Numerous other items were seized. Mead initially denied any knowledge of the incriminating emails, however he later admitted:

• he has been using steroids for about 10 months;

• the emails were sent by him using his Hotmail address;

• he found the suppliers for the steroids on the internet;

• the emails contained his request to purchase and import Testosterone Enanthate;

• he sent money to pay for the steroids he ordered; and

• vials of steroids found in his bedside drawer were the same type of steroids that he ordered via email.

CAN B Sequence 11 - Dealing with identification information "David Johnston" Drivers Licence

32. On 31 March 2014, the Offender's employer, acted on advice from another employee, discovered Mead was involved in driver licence fraud. This was the same fraudulent driver's licence that the Offender used to open PO Box 3050 at the Minnamurra Australia Post Office, on the 28 February 2014. He was suspended from his employment and escorted from the premises. In April police seized other incriminating documents from Mead's work locker.

Summary of Offences

33. Daniel Mead's course of criminal conduct resulted in the following charges, conveniently tabulated by the CDPP - refer to attachment:  MEAD Summary of charges (73.8 KB, pdf)

Maximum penalties

34. Careful attention to the maximum penalties provided is required. Maximum penalties provide a sentencing measure to be balanced with all other relevant factors. They also invite a comparison between this and other cases. Consistency in sentencing means that like cases are to be treated alike and different cases are to be treated differently, however my focus must be on the circumstances of a variety of individual offences and the circumstances of this individual offender.

Section 16 BA Schedule and Form 1

35. Daniel Mead has asked that I take into account matters on a s 16BA Crimes Act 1914 (Cth) schedule and a Form 1 Crimes (Sentencing Procedure) Act 1999 when I determine the appropriate penalty for the offence to which they relate: Attorney General's Application No. 1: (2002) 56 NSWLR 146 and Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115, Bathurst CJ at [22] and Dennison [2011] NSWCCA 114. I will do so but I do not "in any sense" impose sentences for that offence: Attorney General's Application No. 1 at [68.]. The court does so as part of the instinctive synthesis approach to sentencing explained by McHugh J in Markarian v The Queen (2005) 228 CLR 357 at [51] - [54].

36. Here the matters on the Commonwealth Schedule do operate to increase the sentence that would otherwise be appropriate. Such an increase recognises the need for personal deterrence and retribution for the crime for sentence: Attorney General's Application No. 1 at [39] - [42].

37. So far as the matters on the State Form 1 are concerned, they would either not result in a custodial sentence (the possess drug matter) or have already been taken into account when I assessed the seriousness of the offence to which they relate. They do not operate to otherwise increase the sentence imposed or indicated for the offence to which they relate.

Assessment of seriousness

38. In order to assess what is an "appropriate penalty" (s 16A(1) Crimes Act (Cth)) or "adequate punishment" (s 3A Crimes (Sentencing Procedure) Act 1999 (NSW)) I must consider the nature and circumstances of the each offence, that is what was done by the offender both individually and collectively, as all are interrelated and form part of a course of criminal conduct.

38. The offender, I accept, wanted steroids for his own use but he also wanted them for sale. He was running a business. He contacted Chinese suppliers. He arranged clandestine and disguised consignments. He generally did so in a way that the deliveries and payments for them would avoid detection, although at times he used his Hotmail email. He used false names and addresses. He used others potentially putting them at risk of arrest. He was aware what he was doing was illegal.

39. He was the principal in a small scale business. He was making a profit from it. It was continuing until his arrest. The importations provided the raw material for that business. The goods imported were bought for a relatively modest price. He could then increase profit by packing it in capsule form. The offences for sentence are part of an ongoing activity with a high level of sophistication designed to avoid detection. Similarly sophisticated attempts were made to disguise money transfers and profits. Had it not been interrupted by sound detective work the business was likely to continue. Only custodial sentences of some length could meet the purposes of punishment.

CAN A Sequences 4 & 5 and 3 matters on the schedule - Import prohibited Tier 1 goods

41. The substances imported are Tier 1 goods within the meaning of the Customs Act. They are listed in Schedule 8 of the Customs (Prohibited Imports) Regulations 1956 (Cth). They are prescribed as goods within r.5H of those regulations. Importation is prohibited without a permit. The critical quantity prescribed is 20 grams: Schedule 1AA Customs Regulations 1926 (Cth).

42. Sequence 4 involved just under 400 grams; sequence 5, 100 grams.

43. Three other transactions must be taken into account when I sentence for Sequence 4.

44. Each offence was sophisticated.  Each involved planning and deception. Each was committed for profit. Each was for a relatively modest quantity. The offender placed an order for the specific amount consigned and that amount was delivered. The amount imported is an important factor as it determined the profit that might be made.

45. It bears repeating that the importation for sale of drugs causes considerable harm to the community in general. It is not just the potential for harm to those who purchase and ingest such unregulated and untested drugs, this type of organised criminal activity generates unregulated profits that in turn become one of the principal sources for crime in the community.

CAN A Sequence 6 and 1 matter on schedule - Import border controlled drug without commercial intent

46. The offender used his international contacts and the mechanism put in place to import methamphetamine for his own use. Generally 'own use' reduces the objective seriousness of an offence however the section focuses on non-commercial intent and a maximum penalty of 2 years is fixed. That maximum means the act of importation in defiance of border controls is a critical measure of objective seriousness. But that said the purpose of the importation and the modest amount imported means this offence has lesser criminality. Had it not been for the other sentences required to be imposed a non-custodial option may have been considered.

CAN A Sequence 8 - Dealing with proceeds realising Bitcoin currency and Australian currency and using these funds

CAN A Sequences 9 and 10 - Use of false ID to open Prepaid MasterCard Accounts

47. Importation and drug manufacture offences are difficult to detect particularly where, as here, relatively sophisticated measures are taken to avoid scrutiny. This aspect of the offender's enterprise was designed to allow him to gain access to the profits generated by other crimes. This aspect of his criminal conduct had international elements and involved the unregulated transfer of funds into and out of the community. It undermines legitimate businesses; it harms our tax system and undermines our economy. The danger posed to the community by such activity is reflected in the maximum penalties available. Those maximums can, and should, be considered in context with the amount of money involved, the methods used and the purpose, here disguising illicit profits.

48. The offences form part of a pattern of illegal activity over an extended period using false identities.  The number of transactions and the period over which the transactions occurred are significant. They indicate the extent of the offender's criminality and the profits involved. Here by comparison with many other drug importation businesses they were not astronomical but they were still significant.

CAN B Sequences 1 and 7 and 1 matter on Form 1- Manufacture and supply of steroidal agents

49. If Daniel Mead was to sell his imported product he needed to package it. He controlled and participated in each phases of the supply chain. While the maximum penalty is a factor the offence has to be viewed in the context of that business. It shows a modest level of sophistication. Although the process was not a complex one he had invested in the equipment and other goods necessary and he was using them. This offence indicates again the level and degree of planning involved in all that Mead was doing.

CAN B Sequence 3 - Possession of cocaine and Form 1 -

50. Personal use, rather than use for profit generally reduces the objective seriousness of the offence. Parliament has prohibited some drug possession and those who elect to use illicit drugs must expect punishment which contains a deterrent element.

CAN B Sequences 5 & 1 matter on Form 1 - Possess 14 fraudulent NSW Drivers Licences

51. Driver's licences are an important proof of identity and serve as a measure of a person's competence to safely be trusted on our roads. Offences that undermine the protections inherent in a secure licencing system and the reliance on them by many for personal identification have a significant impact on the community.

52. The offender produced the licenses for his own purposes - to disguise his drug importations and process the profits made. Here the scale and number of items found indicate he had the capacity to produce them for sale to others. He needed money. He was prepared to sell his steroids. There is however no evidence licences were ever sold or distributed to others. Matters in aggravation must be proved beyond reasonable doubt. I cannot accept the prosecution submission that he in fact sold licences but at the very least his possession was part of organised criminal activity and committed to assist him make a financial gain.

CAN B Sequence 4 - deal in proceeds of crime

53. The financial gain noted above is evident from the cash seized. However as the offender is being sentenced for a number of matters where financial gain is an aggravating factor evidence of that gain is not surprising and should not be double counted.

CAN B Sequence 11 -Dealing with identification information "David Johnston" Drivers Licence

54. This offence is individually serious because driver's licences are an important proof of identity and serve as a measure of a person's competence to safely be trusted on our roads. It was however an adjunct to and part of the planning process for other offences.

Accumulation and concurrence

55. I am required to impose an appropriate sentence for each offence and to structure the sentences such that the overall sentence is just and appropriate to the totality of Mead's offending behaviour: Mill v The Queen (1988) 166 CLR 59 at 62-63. The number and nature of the matters for sentence requires some flexibility in determining the appropriate sentences and their structure: Markarian v The Queen (2005) 228 CLR 357 at 371 [27]; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at 624 [26]. The total criminality constituted by the offending could not be comprehended by one sentence. There is no principal offence. There were a series of distinct offences which formed a course of criminal conduct.

56. Where the multiple offences arise from the same unlawful act an offender is not to be punished twice for the commission of an element that was common to the two offences: Pearce v The Queen (1998) 194 CLR 610 at 623, [40]. Where offences have different elements but the offender's liability for both is inextricably linked it is open to impose wholly concurrent sentences provided the criminality of both offences was appropriately reflected in the sentence for the other.

57. That said, sentences are not to be made concurrent because of the similarity of the conduct or because the conduct may be seen to be part of the one course of criminal conduct. Public confidence in the administration of justice requires sentencing courts avoid any suggestion of a discount for multiple offending. This is particularly so where the offences are discrete and separate: R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at 164-165 [18] cited with approval in Nguyen v The Queen (2016) 256 CLR 656.

58. I need to take care here. A number of matters that are not strictly elements of one offence are relevant when considering matters going to that offence's objective criminality and are equally relevant to or in fact are elements of other offences. Here for example, the use of a false identity to facilitate the criminal activity can elevate the level of objective criminality calling for greater weight to be given to general and specific deterrence but I must also sentence for possession of those documents. Where there is a pattern of illegal activity by an offender over an extended period this is an important factor that can aggravate an offence. Here however, the possession of profits and the processes by which the funds were transferred and profits dealt with are separate offences. I note the practice of charging both the predicate offence and the money laundering offences has been criticised: see Nahlous [2010] NSWCCA 58 and Thorn [2009] NSWCCA 610. However, as the prosecution submit, the charges here were preferred in order "to reflect the whole of the criminality and adequately represent the nature and extent of the offending:" MFI 1 [90]. That accepted, it doesn't make my job easy given the requirement for individual Commonwealth sentences be imposed.

Structure

59. It is accepted there are no alternatives to full time imprisonment available to me. There are both Commonwealth and State offences. They are interrelated. I must marry two sentencing regimes. The purposes of sentencing in both s 16 A Crimes Act 1914 (Cth) and s3A Crimes (Sentencing Procedure) Act) 1999 (NSW) must be considered.

60. Daniel Mead must be released to parole. The overall sentence must be structured to allow that to occur. Parole is important not just to the offender but to the community. It is an important part of the rehabilitation process. A Bureau of Crime Statistics study reveals offenders who received parole supervision upon release from custody took longer to commit a new offence, were less likely to commit a new indictable offence and committed fewer offences than offenders who were released unconditionally into the community: Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn. httpp://

61. The non-parole period is the minimum period of imprisonment to be served that I consider that the crimes committed call for: Power v The Queen (1974) 131 CLR 623 at 628. The nature of the offending does not assume the importance which it has when the head sentence is determined. There, the sentence must be proportionate to the gravity of the offences whereas the minimum term in prison represents a portion of the head sentence during which the offender will not be considered for parole. In one sense, that portion must itself bear a proportionate relation to the crime. Generally speaking, the perceived prospects of rehabilitation will make a significant difference: Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525 at [20].

62. I will impose an aggregate sentence for the State offences. That sentence will be a fixed term. It is intended to be equivalent to the aggregate non-parole period and to reflect a finding of 'special circumstances': s 44(2) Crimes (Sentencing Procedure) Act) 1999 (NSW).

63. There is a need here to allow for a considerable period on parole because of the process of accumulation, the offender's positive response to imprisonment and my finding he has good prospects on release, particularly if supervised and given help adjusting to normal community life.

64. The Commonwealth sentences and their single non parole period will be accumulated on the State aggregate sentence. Although in a sense caught red-handed and with little other option, Mead did cooperate with the Police. He admitted his involvement in his initial interview and has since then facilitated the process of bringing this case to finality. For similar reasons given in my finding of "special circumstances" this sentence requires a considerable part of it be spent on supervised parole.

Guilty Plea

65. There are also reasons here to reduce the otherwise appropriate sentences to reward Mead's facilitation of the course of justice and acknowledge his early guilty plea. I have reduced the indicated State sentences by 25% to reflect their utilitarian value. The Commonwealth sentences have been similarly reduced.

66. The plea also enables me to have some confidence Mead has turned the corner. The protection of the community is contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits: Blackman and Walters [2001] NSWCCA 121.

67. I have taken care to ensure the benefits allowed for the guilty pleas have not been eroded by the process of accumulation.

Subjective Case

68. Daniel Mead gave evidence. He adopted the history given to his psychologist, Ms Allen: Exhibit 1. He told me of the impact of steroids on his life and health and how he had gone cold turkey in gaol. He said he had used his time to reflect on how his offending had impacted on his mother and new partner and the community. He said he had financial problems exacerbated by the loss of his job, however he also accepted that while a user he sought financial gain. He explained his profit was in the order of $50,000. In cross-examination he made appropriate concessions, including acknowledging the efforts made to avoid detection.

69. Mead's drug use and apparent obsession with steroid use had some psychological basis. The need to acquire drugs because of an addiction is not an excuse to commit any crime. The fact that an offence is motivated in part by such a need may be taken into account as a factor relevant to the sentencing in a limited way. It allows me to understand why a previously law abiding person did what he did and continued to do it; to understand his state of mind and capacity to exercise sound judgment. But I do not ignore the fact that profit was his prime motive. His dire financial situation particularly after he lost his job could not excuse what was done or mitigate sentence.

70. He appears to have used his time in custody well and now holds a trusted position. He has solid plans and support in the community.

71. Ms Allen provided a detailed family history and background report. She noted his failure to consider consequences. She set out in detail the reasons for his use of steroids; to bolster body image as a response to bullying as a child, something she described as a personality problem. She noted his history of substance abuse, steroids, alcohol and other drugs. She concluded that with appropriate services and psychological counselling he was at low risk of re-offending.

72. While Mr Mead tended to play down how much planning and preparation he had put into his crimes, he appears to have generally pro-social views and realistic plans. He was supported in court by family and friends and it appears that support will continue. Pro-social contacts in the community are very important. Long gaol sentences can break down such support and encourage associations with those met in custody who do not have such attitudes. I am prepared to accept that he is at low risk of re-offending. His progress to rehabilitation should not be unduly hampered by a further lengthy period in custody.

Antecedents

73. Before he commenced this criminal activity Daniel Mead was a person of good character. It is a relevant factor. It also gives me some confidence that he can after he has served his sentence, resume normal community life and make a contribution. However, after his arrest in August 2014 he was dealt with relatively leniently by the Local Court. He had an opportunity then to think and reconsider. He failed to do so. He continued to offend. From that point he lost the leniency often extended to first offenders.

Submissions

74. Most of the matters addressed to me by counsel have been reviewed in these remarks. I trust they do justice to them.

75. Mr Lange, for Mr Mead, submitted, ultimately, that time served could meet the purposes of sentencing so far as minimum period of custody was concerned and that a lengthy parole period could ensure community protection.

76. Ms Karim, Solicitor, for the Director, prepared extensive written submissions addressing all aspects of both State and Commonwealth sentencing law: MFI 1. She submitted that in all the circumstances a substantial head sentence of fulltime imprisonment is the only appropriate sentence. She noted what fell from Justices Bell and Gageler in The Queen v Pham [2015] HCA 39 at [43] about statistics and other cases but conceded here the facts and charges were sufficiently novel for there to be no available comparables.

Synthesis

77. A court's ultimate duty is to do what is can to ensure community protection. It can only do so by ensuring that the offender is adequately punished for the offence. The purposes for which a court may impose a sentence on an offender include the need:

1. to prevent crime by deterring other persons from committing similar offences, and

2. to prevent crime by deterring the offender from committing similar offences. 

78. They also include the community interest in promoting the rehabilitation of the offender. This is of particular importance where;

1. the offender is relatively young or has not formed settled criminal habits,

2. where there is scope for treatment and rehabilitation in the community, and

3. where there is a risk gaol may encourage anti-social attitudes and break pro-social bonds in the community.

79. But sentences are also about punishment. The offender must be held accountable for his actions. What was done must be denounced.  Here, while no specific victim can be identified, the court must by the severity of the sentence imposed attempt to recognise the harm done to the community by the offender.

80. The minimum period in custody must operate to deter others. If tempted to import substances from willing suppliers in China using the dark net or other avenues, a simple question has to be asked: "Is it worth it?" Giving the wrong answer will mean a substantial period in goal; the answer must be "No". Mr Mead did not think of the consequences to himself, his family, his friends, those who brought and used his steroids, and the community. He must be punished accordingly.

81. Would you please stand?

2015/203145 - CAN H585935538 (CAN ‘B’) - STATE

82. 001 Manufacture prohibited drug - I indicate a sentence of 1 year 1 month; Taking into account on a Form 1 - 002 Possess tablet press or drug encapsulator

83. 003 Possess prohibited drug - I indicate a sentence of 1 month; Taking into account on a Form 1 - 009 Possess prohibited drug

84. 004 Deal with property suspected proceeds of crime - I indicate a sentence 5 months.

85. 005 Make, possess equipment etc. to make false document - I indicate a sentence of 9 months; Taking into account on a Form 1 - 006 Possess equipment etc. make ID info commit ind offence T2

82. 007 Supply prohibited drug >small & <=indictable quantity - I indicate a sentence of 9 months.

83. 011 Deal with identity info to commit etc. indictable offence - I indicate a sentence of 1 month.

84. The indicative sentences reflect a finding of special circumstances. Having considered issues of accumulation, concurrency and totality, you are convicted and sentenced to an aggregate fixed term of imprisonment of 1 year 6 months. That term is to commence on 10 July 2015 and expire on 9 January 2017.

2015/4876 CAN H56243252 (CAN ‘A’) - COMMONWEALTH

89. 004 Intentionally import prohibited tier 1 goods w/o approval including on S 16BA schedule x 3 sequences - You are convicted and sentenced to a term of imprisonment of 2 years 3 months, to commence on 10 June 2016 and to expire on 9 September 2018.

90. Taken into account on S 16BA schedule:

- 001 Intentionally import prohibited tier 1 goods w/o approval

- 002 Intentionally import prohibited tier 1 goods w/o approval

- 003 Intentionally import prohibited tier 1 goods w/o approval

91. 005 Intentionally import prohibited tier 1 goods w/o approval - You are convicted and sentenced to a term of imprisonment of 1 year 6 months, to commence on 10 February 2016 and to expire on 9 August 2017.

92. 006 Import border controlled drug, no commercial intent including 1 sequence on S 16BA schedule - You are convicted and sentenced to a term of imprisonment of 3 months, to commence on 10 January 2016 and to expire on 9 April 2016

93. Taken into account on S 16BA schedule:

- 007 Import border controlled drug, no commercial intent

94. 008 Deal with proceeds of crime- You are convicted and sentenced to a term of imprisonment of 1 year 10 months, to commence on 10 May 2017 and to expire on 9 March 2019.

95. 009 Produce false/misleading document to specified person/entity - You are convicted and sentenced to a term of imprisonment of 1 year 1 month, to commence on 10 August 2017 and to expire on 9 September 2018.

96. 010 Use false customer name to receive service - You are convicted and sentenced to a term of imprisonment of 3 months, to commence on 10 May 2017 and to expire on 9 August 2017.

97. Total Commonwealth term of imprisonment is 3 years 2 months. The sentence is to commence on 10 January 2016.

98. I fix a non-parole period of 1 year 4 months to expire on 9 May 2017, on which date, subject to s 19AL Crimes Act 1914, you are to be released on parole.

99. Total effective sentence is 3 years 8 months. Total effective non-parole period is 1 year 10 months.   

100. Drug destruction order.

101. Short minutes of Order granted pursuant to s 3ZQZB ss4(d) Crimes Act 1914 (Cth), with exception of a STAY on Items 003/004 until 18/3/17, property in Schedule 2 to be forfeited to the Commonwealth.

102. Short minutes of Order granted pursuant to ss 48(2)(d) Proceeds of Crime Act 2002 (Cth), property in Schedule 2 to be forfeited to the Commonwealth.

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Decision last updated: 16 May 2018