R v AA

[2021] NSWDC 112

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v AA [2021] NSWDC 112

Hearing dates:

26 February 2021

Date of orders:

1 April 2021

Decision date:

01 April 2021

Jurisdiction:

Civil

Before:

Weinstein SC DCJ

Decision:

Sentence

Catchwords:

Drug offences – illegal drug importation – commercial quantity – Dark Net – possession – supply – breach of bail – State and Commonwealth offences – disadvantage – addiction – cooperation with law enforcement agencies – mental health

Legislation Cited:

Crimes Act 1914 (Cth)

Crimes (Sentencing) Procedure Act 1990

Criminal Code 1995 (Cth)

Criminal Code Regulations 2019 (Cth)

Drug Misuse and Trafficking Act 1985 (NSW)

Law Enforcement (Powers & Responsibilities) Act 2002 (NSW)

Cases Cited:

Attorney-General’s Application under s37 of the Crimes (Sentencing) Procedure Act 1990 No 1 of 2002 (2002) 56 NSWLR 146

Bonwick v R [2010] NSWCCA 177

Bugmy v The Queen (2013) 249 CLR 571

Chan, Lo and Nguyen, v R [2010] NSWCCA 153

Davidson v R [2009] NSWCCA 150

DPP (Cth) v Maxwell [2013] VSCA 50

DPP v De La Rosa [2010] NSWCCA 194

Jones v R (2010) 242 CLR 520

Leung v The Queen (2001) 207 CLR 584

Mansour v R [2011] NSWCCA 28

Markarian v The Queen [2005] HCA 25)

DPP (Cth) v Maxwell (2011) 31 VR 673

Muldrock v The Queen (2011) 244 CLR 120

Perkins v R [2018] NSWCCA 62

Petkos v R [2020] NSWCCA 55

R v Janse [2016] WASCR 17

R v Hill [2011] QCA 306

R v Laurentiu (1992) 63 A Crim R 402

R v Millwood [2012] NSWCCA 2

R v Muanchukingkan (1990) 52 A Crim R 354

R v Pham (2015) 256 CLR 550

Wong v R (2001) 207 CLR 584

Xiao v R [2018] NSWCCA 2

Zreika v R (2012) 223 A Crim R 460

Category:

Sentence

Parties:

Regina (Crown)
AA (Offender)

Representation:

Counsel:
Mr Macken (Crown)

Ms Jardim (Offender)

File Number(s):

2020/146434

Publication restriction:

Non Publication Order with respect to the name of the offender or any information that may identify him.

Judgment

1. The offender AA, born in 1985, has pleaded guilty to the offence of:

1. Importing a commercial quantity of border controlled drug, namely approximately 24 litres of Gammabutyrolactone (GBL), contrary to section 307.1(1) of the Criminal Code 1995 (Cth) (the Criminal Code). The maximum penalty for this offence is life imprisonment and/or 7,500 Commonwealth penalty units ($1,575,000), or both (Sequence 1).

(the Commonwealth Offence)

2. He also asks me to take into account the following offence pursuant to section 16AB of the Crimes Act 1914 (Cth) (the Crimes Act).

1. Importing a border controlled drug, not a commercial quantity (being approximately 800 grams), namely GBL, contrary to section 307.4(1) of the Criminal Code. The maximum penalty for this offence is 2 years imprisonment and/or 400 Commonwealth penalty units ($84,000) (Sequence 5).

3. With respect to New South Wales State offences, the offender has pleaded guilty to:

1. Possessing prohibited drug, namely 0.16 grams of Methylamphetamine, contrary to s10(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (the DMT Act), which carries a maximum penalty of 2 years imprisonment and/or 20 NSW penalty units ($2,200) (Sequence 2).

2. Possessing prohibited drug, namely 16.5 grams of GBL, contrary to s10(1) of the DMT Act which carries a maximum penalty of 2 years imprisonment and/or 20 NSW penalty units ($2,200) (Sequence 3).

3. Possessing prohibited drug, namely 0.7 grams of 3,4 methylenedioxymethylamphetamine (MDMA), contrary to s10(1) of the DMT Act, which carries a maximum penalty of 2 years imprisonment and/or 20 NSW penalty units ($2,200) (Sequence 4).

(the First State Offences)

4. The offender also pleaded guilty to a supply prohibited drug offence, namely approximately 600g of GBL, contrary to s25(1) of the DMT Act which carries a maximum penalty of 15 years imprisonment and/or 2,000 NSW penalty units ($220,000) (Second Sequence 1).

(the Second State Offence)

Agreed facts with respect to the Commonwealth offences

5. On 4 March 2019, the Australian Border Force (ABF) detected a package containing 2000 grams of GBL in a shipment from China declared as ‘cleaner agent’. The package had the intended address in NSW. The consignee was listed as the offender AA.

6. On 22 April 2019, the ABF detected a package containing 1000 grams of GBL in a shipment from China declared as ‘detergent’. The package had the same intended address in NSW. The consignee was listed as the offender AA. The package was seized by the ABF.

7. On 17 August 2019, the ABF detected a package containing 800.3 grams of GBL in a shipment from China declared as ‘silver juice packets’. The package had the same intended address in NSW but the consignee was listed as someone other than the offender. The package was seized by the ABF (and is the subject of Sequence 5).

8. Checks were conducted but they did not reveal any person by the name of the intended recipient to be residing at that address.

9. On 4 September 2019, police attended the premises, and cautioned and arrested the offender in relation to the consignment detected by the ABF on 17 August 2019 (which is the subject of Sequence 5).

10. During the arrest, the offender stated words to the effect that he lived at the residence alone, and that he had lived there for almost a year.

11. The offender denied that he was arranging for drugs to be delivered to him, but did state that there were current (unrelated) charges against him relating to the drug GHB. Police then seized the offender’s mobile phone and laptop computer. The offender was conveyed to a police station to be processed.

12. Whilst in custody, the offender began to suffer a medical episode and was conveyed to hospital. The arrest of the offender was discontinued.

Agreed facts with respect to the First State Offences

Search warrant

13. On 4 September 2019, police obtained a search warrant to search the premises of the offender. At about 2:55 pm police attended the premises and executed the search warrant.

14. During the search, police located numerous items indicative of drug supply, including:

1. One glass pipe;

2. Approximately 50 small empty glass vials;

3. One black notebook containing information, including a list with the word “base” followed by the words “vials” “beakers” “bags” “pipes”. On another page was written: “180@1/2G 20/8 $675” which appears to be a reference to records of amounts and weights of drugs;

4. A large number of clear resealable bags;

5. Six packets containing 20 small sauce bottles (3ml) with lids; and

6. A medical letter addressed to the offender referring to him as “self-treating with GHB”.

15. Police continued to search the premises where a combined 16.5 grams of GBL was located within 2 glass vials in the kitchen area (the possession of which is the subject of Sequence 3).

16. Police also located 0.16 grams of Methylamphetamine in a small red container in the kitchen area (the possession of which is the subject of Sequence 2).

17. Police further located 0.07 grams of MDMA in the kitchen area (the possession of which is the subject of Sequence 4).

18. The above substances are classed as prohibited drugs under the DMT Act.

19. The offender made admissions in a Record of Interview to possessing illicit substances at his residence.

Arrest and Caution

20. On 5 September 2019 at about 8:30 am, NSW Police again attended the address of the offender, where he had returned after his release from hospital.

21. The offender was then cautioned and placed under arrest for his suspected involvement in the importation of GBL and for the possession of prohibited drugs located during the execution of the search warrant. He was conveyed to a police station. A short time later, the offender was introduced to the custody manager and read his rights pursuant to Part 9 of the Law Enforcement (Powers & Responsibilities) Act 2002 (NSW) (LEPRA).

22. The offender was offered the opportunity to contact a legal representative, which he declined.

Record of Interview

23. The offender participated in an electronically recorded interview and made the following comments and admissions:

1. He lives at the aforementioned premises. He resides there alone and has been living there for 7 or 8 months;

2. He is unemployed and he receives roughly $650 a fortnight from Centrelink;

3. He owns a car and pays $225 per week in rent;

4. He had no idea why the consignments identified by police containing drugs were addressed to him;

5. No person had attended his address enquiring about any packages;

6. The only consignment that he (possibly) had arranged was “the first smaller one and that was it”;

7. He imported one lot of GBL, but he could not remember the date or month, other than it would have been at the beginning of the year;

8. The amount he imported “should have been for five hundred mils”;

9. He organised the drugs to be imported “through a friend, who did it for me” and to whom he paid $500 in cash;

10. The consignment not addressed to him would have been the one he was to receive;

11. He thought he put the consignment in the name of George “or something like that”;

12. The mobile number linked to the consignment addressed to the other recipient was not his number;

13. He never ordered two litres of GBL;

14. He believed that maybe five or six years ago his email was hacked which is why he had to change his bank account details, but he never reported this to police;

15. He has bank accounts with NAB, ME Bank, ING and ANZ;

16. When asked why he has so many bank accounts, the offender stated “‘Cause I like collecting the cards, different coloured cards. It’s stupid, I know”;

17. He had never purchased the GBL himself. He only used his phone to check if he could purchase it by looking at the prices at a website named “Dream Market”. (“Dream Market” is a website on the ‘Dark Net’ known for the sale of illicit substances, and accessible only via the specialised anonymous “Tor” network);

18. His friend had purchased the drugs for him but he does not know the friend’s surname;

19. That friend’s phone number is saved in his phone but he does not know him well and met him online. He knew that the friend could get GBL, he knew the offender’s address and he asked that friend if he could get a larger amount, and the friend said yes;

20. The agreement was for that friend to have the 500ml of GBL sent to the offender, but the offender did not know whether he was going to arrange for a larger amount to be sent and then divide it out, although he accepted that this could have happened;

21. The order would have been about 6 months ago, between April and May 2019, and it could have been the consignment intercepted on 22 April 2019;

22. He never received these drugs and he did not have discussions with that friend about ordering more. He asked that friend about the drugs and was told that they “got seized”;

23. He is not a supplier of GHB;

24. He has a large amount of vials and containers in his residence for personal use because he “was going down a dark path a few months ago”, and the drugs found in the offender’s residence “would have been remnants of what I’ve had”;

25. He used to take about two or two and a half milliliters of GHB every two hours every day; and

26. The offender participated in a forensic procedure whilst in police custody by way of buccal swab.

24. On 6 September 2019, police were notified by the ABF that a package had been detected on 5 September 2019 containing a gross weight of 25.381kg of GBL in a shipment from China declared as ‘acrylic paint’.

25. The package had the intended address of the offender in NSW, with the consignee listed as the offender (the importation of which is the subject of Sequence 1). The package was seized by the ABF.

26. The consignor was listed as RR Industrial Co Ltd. However, the consignee’s phone number appeared to be a fake number.

27. No enquiries were made in relation to this consignment. However, in relation to the consignment detected on 22 April 2020, there is a record for an inbound call enquiry having been made on 23 April 2019 with 2 contact numbers being listed, one of which was a phone number registered to the offender.

28. On 18 October 2019, police conducted a transfer of the drugs between the AFP and NSW Police.

29. NSW Police obtained possession of the prohibited drugs seized on 5 September 2019 from the ABF (the subject of Sequence 1), and the prohibited drugs seized on 17 August 2019 (the subject of Sequence 5).

30. NSW Police conveyed the exhibits to a secure location, where they were entered into the NSW Police exhibits system to be forensically analysed.

Outcome of Forensic Analysis

31. On 16 January 2020 the NSW Forensic and Analytical Science Service (FASS) produced a certificate which confirmed that the drug seized from the consignment intercepted on 5 September 2019 (the subject of Sequence 1) was GBL. On 19 February 2020, FASS completed a further analysis to determine the purity of the GBL. The purity was found to be 97%. The total pure weight was therefore 24.6kg pure GBL.

32. On 16 January 2020, FASS produced a certificate which confirmed the drug seized from the consignment intercepted on 17 August 2019 (the subject of Sequence 5) was GBL.

33. On 18 October 2019, police received a statement from the Regional Security Manager of a global delivery courier service. The statement indicated that on 23 April 2019, a number registered to the offender contacted this service in regard to the parcel containing 1000ml of GBL that was intercepted by the ABF.

Financial Records

34. On 29 October 2019, police were provided with the banking records of the offender for the period 1 February 2019 to 5 September 2019.

35. Police located 15 different accounts in the name of the offender and observed that over $400,000 has been transferred between accounts internally and externally to other banking institutions.

36. Police observed in these records large transactions with the description “Drinks” which police are aware is commonly used to refer to the prohibited drug GBL.

37. Police also located evidence of a number of transactions to ‘crypto’ currency vendors, which police are aware is commonly used by drug suppliers to avoid being detected by police, as the funds are transferred offshore.

Forensic Analysis of buccal swap DNA sample

38. On 19 November 2019, police received confirmation from an expert at FASS that the DNA profile of the offender was located on the lid area of the vial containing white powder subsequently identified to contain 0.07 grams of MDMA at the premises of the offender during the search warrant.

Forensic Examination of Digital Devices

39. On 6 January 2020, police received the results of a forensic examination that was conducted on a Microsoft surface laptop seized from the offender. Police officers attached to the NSW Police Digital Forensic Unit conducted an analysis of the laptop and identified the following:

1. Evidence of a number of ‘crypto’ currency transactions relating to the Dark Net, and a price guide for a product believed to be the prohibited drug GBL from a dark web vendor with the price specified as $259 per litre.

2. A screenshot of a ‘crypto’ currency transaction of $6,200 to an unknown vendor with the subject stating “25”, which, it is alleged, refers to 25 litres of GBL.

3. A screenshot of a message from a Dark Web vendor outlining a price guide to arrange for an importation with an Australian customs clearance, being $200 (USD) per kilogram for orders in excess of 25 kilograms and $150 (USD) per kilogram for orders in excess of 100 kilograms.

Facts with respect to the Second State Offence

40. On 16 May 2020, at about 9:30 pm, the offender was observed by police walking in a northerly direction on a street in Pyrmont. He was holding a 600ml Powerade bottle filled with a clear fluid.

41. The offender was acting suspiciously. As he walked past the officers, he increased his pace and put his head down. After about 20 metres he looked back toward them.

42. Police stopped the offender and spoke to him. They saw that he was sweating and as he talked, he stuttered. Checks revealed that the offender had a drug-related history. Police searched him. The events were recorded on body-worn video.

43. When asked about the bottle, the offender admitted it contained “G” (a street name for the prohibited drug GBL). He said that he was delivering the bottle to an address in Pyrmont. He did not reveal that address. He said he was paid $150 when he received the bottle and was to be paid a further $150 on delivery.

44. The offender was taken to the nearby police station. He consented to an electronically recorded interview and confirmed his admissions at the arrest scene, adding that he believed the bottle contained GBL. He was charged.

45. At the time of his arrest the offender was at liberty on bail awaiting disposition of various charges being prosecuted by the Commonwealth.

46. The police arrest summary contained this commentary:

Whilst in police custody, the accused [was] co-operative and compliant with police, answering questions asked of him. The accused also showed remorse for his actions of possess prohibited drug.

Evidence

47. Before me are 6 exhibits. Exhibit 1 is the Commonwealth Crown Bundle. It consists of 7 tabs which are:

1. The Notice of Committal, Court Attendance Notices, s16BA Schedule, s166 Certificate and Agreed Statement of Facts (for offence 2019/00277058);

2. The NSW Crown sentence summary, Indictment, Agreed Statement of Facts and Short Minutes of Forfeiture Order (for offence 2020/00146434);

3. The offender’s criminal history;

4. The offender’s custodial history;

5. The Crown sentencing submissions;

6. Annexure A – Outline of Commonwealth Sentencing Requirements – aide for the court, and

7. Annexure B – Comparative Sentencing Schedule.

48. Exhibit 2 consists of the Agreed Facts (recited above) signed by the offender.

49. Exhibit 3 is a confidential affidavit.

50. Exhibit 4 is a report from Dr Peter Ashkar, dated 29 October 2020 and which is a neuropsychological assessment of the offender.

51. Exhibit 5 is a letter from the offender’s sister dated 10 November 2020.

52. Exhibit 6 is another confidential affidavit.

53. I will now summarise some of the documents which have been placed before me.

54. Dr Peter Ashkar is an experienced neuropsychologist and forensic psychologist who assessed the offender via AVL on 21 September 2020 and conducted both psychometric testing and an in-depth interview. The results of the testing are contained in the document.

55. Dr Ashkar confirmed in his report that the offender suffered from a serious and significant addiction to GHB and methamphetamine, and that in his opinion this addiction is the primary factor which caused the offender to commit these drug-related offences. Dr Ashkar notes that the offender has attempted to address his addiction in the past as evidenced by his attendance at his local medical centre, but that he was unsuccessful. He also failed to stop using GHB when he was released on bail, which led him to breach his bail conditions and commit another offence. He experienced very significant withdrawal symptoms at the beginning of his incarceration and he was admitted to the medical ward for several weeks where he received treatment.

56. The offender told Dr Ashkar that whilst growing up he lived in fear of his abusive father who was “controlling” and “violent” towards his mother, himself and his siblings. The offender’s homosexuality further strained his relationship with his father, as it was in apparent contradiction with his father’s strict religious beliefs. In order to escape his father’s abuse, he left the family home at 16 and never had any contact with his father again.

57. Dr Ashkar believes that the offender is psychologically stable when he is not using drugs. However, the offender has low self-confidence, low self-esteem and low self-worth which is likely linked to his father’s rejection of him and the broader social stigma he suffered as a gay man. Dr Ashkar says that the offender’s abuse of GHB and methamphetamine is a coping mechanism to address these underlying psychological issues.

58. In Dr Ashkar’s opinion, the offender’s risk of reoffending is relatively low and with adequate support and a treatment program to assist him with managing his drug addiction, it is likely that his rehabilitation would be successful.

48. The offender’s sister says in her letter to the court that her father was violent and abusive towards their mother and that the offender, being the eldest child, witnessed and suffered the most from these occurrences of domestic violence. She added that the offender struggled to grow up as a gay young man in the home of a strict, abusive, Muslim father. Finally, the offender’s sister offers to assist the offender with accommodation when he is released from gaol as she believes he can get his life back on track with appropriate support.

49. Exhibits 3 and 6 are confidential affidavits. These confidential affidavits disclose that the offender has provided significant assistance to authorities which has put him at risk generally and whilst in custody. On the basis of the material contained in both affidavits I will allow a discount for past and future assistance, to which see below.

Objective Seriousness

The First State Offences

61. It is convenient to first deal with the objective seriousness of the First State Offences which concern very small amounts of illegal substances found in the possession of the offender.

62. The offender is to be sentenced for three sequences of ‘possess prohibited drug’ contrary to s10(1) of the DMT Act relating to substances found during the execution of a search warrant at the offender’s residence as follows:

1. Sequence 2: 0.16 grams of Methylamphetamine;

2. Sequence 3: 16.5 grams of GBL;

3. Sequence 4: 0.07 grams of MDMA.

63. These matters appear on a section 166 Certificate.

64. Ms Jardim submits that these offences could have been disposed of in the Local Court and are proceeding upon indictment at the request of the offender as a matter of convenience only. In those circumstances, Ms Jardim submits that the Court can appropriately take into account the maximum sentence in the Local Court as a matter in mitigation: Bonwick v R [2010] NSWCCA 177, Zreika v R (2012) 223 A Crim R 460. She notes that the offences are not indictable.

65. Ms Jardim also submits that the quantities involved are small and the possession is consistent with the offender’s significant drug addiction. Furthermore, the offender entered a plea to all matters at the earliest possible opportunity and is entitled to a 25% discount.

66. The Crown acknowledged that the amounts of the prohibited drugs possessed were relatively low quantities. However, he referred to a need for general and specific deterrence.

67. The Crown submits that specific deterrence is particularly relevant, noting that the offender has a previous conviction for driving a vehicle with illicit drug present, and that the offences occurred whilst the offender was on a Conditional Release Order (CRO) without conviction for a previous offence of possess prohibited drug. Therefore, the Crown submits that the offender has already been granted some leniency for similar drug related matters in the past and a conviction is warranted for the State sequences before the court. So much is true, but the offender’s criminal history is limited to those very offences, and as will be seen, he is entitled to combined discounts of 50% for all offending.

68. I find that the prohibited drugs were in the offender’s possession for his personal use. Each of sequence 2, 3 and 4 is at the lowest end of the range of objective seriousness. In my opinion, the threshold of section 5 of the Crimes (Sentencing) Procedure Act 1999 (the Sentencing Act) has not been passed with respect to each offence. With respect to each, I propose to convict the offender pursuant to section 10A of the Sentencing Act and impose no further punishment. I note that the Crown did not cavil with such an outcome.

The Commonwealth offending

69. In The Queen v Pham [2015] HCA 39 at [32]-[37], the High Court confirmed that drug weight will not automatically be the “controlling” factor relevant to assessment of the seriousness of the offence, but held that it will usually be relevant to the assessment of the seriousness of the offence.

70. The total pure weight of GBL that the offender imported was 24.6kg. Under the Criminal Code Regulations 2019 (Cth), the commercial quantity threshold of GBL as a border controlled drug is 1kg. The offender therefore imported well in excess of the minimum commercial quantity.

71. Ms Jardim, on behalf of the offender, submitted that weight is one of the significant factors in determining the seriousness of an offence but not the chief consideration: see Wong v The Queen; Leung v The Queen (2001) 207 CLR 584 at 67 and 70. Rather, the matters to be taken into account in differentiating between cases include the quantity of the drug, the offender’s knowledge and role in the importation and the anticipated reward for his participation.

72. The Crown submitted that although the full nature and extent of the role of the offender is unknown, the offender played a primary role in the importation of GBL.

73. The Crown submitted that the offender’s conduct involved the following:

1. The offender knowingly arranged the importation of a commercial quantity of GBL by arranging for the product to be purchased using bitcoin through the Dark Web. He had actual knowledge of the substance contained in the consignment; and

2. The consignment was declared as “acrylic paint” and was consigned in the offender’s name.

74. The Crown further submitted that the offender’s conduct involved a degree of sophistication and intentional deception, by virtue of the use of cryptocurrency through the Dark Web, and his attempts to distance himself from one of the consignments (Sequence 5) which was addressed to a false name.

75. He submits that as outlined in the Agreed Facts above, the offender’s laptop was examined by police and found to contain evidence which supports the offender’s involvement in the clandestine ordering and arranging of the importation through the Dark Web.

76. The Crown submitted that this evidence demonstrates that the offender knowingly arranged the importation of GBL and was the primary person responsible for the importation. His role was not as a ‘courier’. Therefore, the Crown submits, this increases the significance of the offender’s role in the importation, and accordingly the seriousness of the offending.

77. The Crown also submitted that the offender’s financial records clearly demonstrate a level of financial involvement which was not unsophisticated, and was done in a clandestine manner to avoid detection by law enforcement.

78. The offender concedes that he had actual knowledge of the importation. However Ms Jardim submits that the offender was primarily motivated by his significant drug dependence: see the report of Dr Ashkar dated 29 October 2020 at paragraph 8. In my opinion, there is ample material to find that the offender had a significant and unmanageable drug addiction at the time of the offending. That the offender supplied GBL whilst on bail for the Commonwealth Offence, at a time when he was assisting authorities, demonstrates his significant drug addiction and lack of insight.

79. Ms Jardim also concedes that the offender arranged, at least in part, for the purchase of and importation of the substance using bitcoin through the Dark Web. However, she submits that there is no evidence that it was an act of ‘intentional deception’ to utilise crypto currency and the Dark Web as opposed to that being the very mechanism by which the drug was available. In my opinion nothing turns on that characterisation.

80. Further, Ms Jardim submits that all but one package was addressed to the offender and all to his own residential address. He made enquiries as to the whereabouts of a package with his own phone number and used bank accounts in his own name. Ms Jardim submitted that the offender’s conduct in using his real name in all but one instance and by using his own home address meant that he was the person directly exposed to the risk of detection. As was observed in Chan, Lo and Nguyen, v R [2010] NSWCCA 153 at 126, “[r]isk is usually the hallmark of a person lower in the hierarchy”. I add that it is also the hallmark of unsophisticated behaviour, particularly in a drug addicted individual.

81. The value of the drug imported is believed to be approximately $6200, with a maximum price of $259 per litre, which is a relatively modest amount in comparison to the value of commercial quantities of other illicit substances and bearing in mind the maximum penalty. In DPP (Cth) v Maxwell [2013] VSCA 50, following a review of sentencing practices for offences involving the importation of GBL, the court said:

In our opinion, the consistently lower sentences imposed on importers of GBL can be seen to be reasonably justified by the enormous reward differential to which we have referred. Indeed, the very consistency of the sentencing practice can be seen to reflect the fact that sentencing judges view a drug offender’s culpability as materially reduced in cases such as this, where the likely financial reward is relatively small. Sentencing judges are also justified in treating the scale of the anticipated reward as relevant to considerations of deterrence, both specific and general.

82. That remark was adopted by Hamill J in Petkos v R [2020] NSWCCA 55, when his Honour said that at the heart of the decision in Maxwell was the uncontroversial proposition that the financial reward received or anticipated by the offender is relevant to the objective gravity of the offence. In this particular case, it is not disputed that bearing in mind the cost of the GBL ($6,200), the offender’s reward would have been low.

83. With respect to objective seriousness, Ms Jardim submits, notwithstanding the role of the offender, that there was little sophistication involved, with no real attempt to conceal his actions and/or his identity. She submitted that as the value and anticipation of reward was relatively low, and as the offending was motivated in large part by the offender’s significant drug addiction rather than greed, in all the circumstances, the offending falls well below the mid-range of objective seriousness.

84. In my opinion, with respect to the Commonwealth offending, taking into account the legislative yardstick of the maximum penalty, the role of the offender, the fact that the offending occurred whilst the offender was on a bond, that the financial reward was small, that there was no evidence of lavish lifestyle and that the offending was relatively unsophisticated, the objective gravity lies somewhere between the low and mid-range of objective seriousness.

The Second State Offence

85. The offender is also to be sentenced for one sequence of ‘supply prohibited drug’ contrary to s25(1) of the DMT Act. This charge relates to approximately 600 grams of GBL and is detailed in the Agreed Facts. It was one Powerade bottle of the substance.

86. The Crown submits that whilst the offender’s conduct in relation to drug supply occurred within a relatively limited compass of facts, the court should also have regard to the broader circumstances of the offending detailed below.

Offence committed whilst on bail – s21A(2)(j)

87. This offence occurred whilst the offender was on conditional bail for the other State and Commonwealth offences before the court for sentence. The Crown submits that this is an aggravating factor to be taken into account in determining the appropriate sentence for this offence. So much is true. I have already noted that this demonstrates a distinct lack of insight, in particular because the offender was then assisting the authorities. His behaviour was odd that night when he was arrested, after which he immediately made admissions, showed remorse and co-operated with police.

Offence committed for financial gain – s21A(2)(o)

88. There is evidence of financial gain in relation to the offender’s conduct. It is an agreed fact that the offender, whilst under caution, stated that he was delivering the bottle (of GBL) and was paid $150 when he received the bottle and was to be paid a further $150 on delivery.

89. Whilst the Crown acknowledges this may be a low level of financial gain, he submits that it is still relevant as an aggravating factor to be taken into account in determining the appropriate sentence for this offence. He says that the supply is at the mid-range of objective seriousness.

90. Ms Jardim agrees that the State matters fall into two categories, namely those arising out of the search warrant on 4 September 2019 (the First State Offences that I have already dealt with), and that committed whilst on bail on 16 May 2020 (the Second State Offence). Ms Jardim submits that this offence is significantly less serious than the Commonwealth offending.

91. With respect to the Second State Offence, Ms Jardim submits that the quantity involved is relatively small. The offender provided an explanation for his offending at the time of his arrest which is intrinsically linked to his significant drug addiction which explains, but does not excuse his offending.

92. Whilst it is conceded by Ms Jardim that the Second State Offence is aggravated by his conditional liberty, given the low level of offending involved and his lack of antecedents, she says that the offending, if dealt with in the Local Court, would not ordinarily lead to a period of imprisonment, and she submits that it falls at the low range of objective seriousness.

93. In my opinion, with regard to the Second State offence, taking into account the aggravating factor of being on conditional bail, his apparent role of street level carrier, the low reward involved, the legislative yardstick of the maximum penalty, the lack of lavish lifestyle and his lack of insight, the offending lies at the low range of the objective seriousness for offending of this type. However, in my opinion, the section 5 threshold of the Sentencing Act is crossed and no penalty other than imprisonment is appropriate.

Subjective circumstances

Guilty Plea s16A(2)(g)

94. The sentencing court must take into account the fact that a federal offender has entered a guilty plea.

95. The decision in Xiao v R [2018] NSWCCA 2 puts beyond doubt the requirement that the utilitarian benefit of a plea of guilty, as well as the subjective features, must be taken into account by the sentencing court.

96. The matter was first listed in Central Local Court on 5 September 2019. Following the certification of charges and a case conference pursuant to the Early Appropriate Guilty Pleas (EAGP) system, the offender entered a guilty plea on 29 July 2020, and the matter was committed for sentence on 28 August 2020.

97. The Crown acknowledges that the offender’s plea of guilty was at the earliest opportunity, which demonstrates an acceptance of responsibility, and he is therefore entitled to receive an appropriate discount for the utilitarian value of that plea, noting that the plea has avoided the cost and delay of a trial, brought finality to the criminal proceedings, and spared police witnesses being required to give evidence at trial, where their resources could be otherwise utilised.

98. I allow a 25% discount for the offender’s plea of guilty for all matters.

Cooperation with Law Enforcement Agencies: s16A(2)(h), s23A

99. The Crown acknowledged that subsequent to being initially charged the offender provided assistance to law enforcement and he accepted that the offender should receive an appropriate discount in recognition of this assistance.

100. Ms Jardim submits that a discount ought to be given for the offender’s demonstrated willingness to assist authorities and for the actual assistance provided by the offender over a period of just under a year. The particulars of his assistance are detailed in two confidential affidavits and was deemed to be truthful, reliable, and timely.

101. In addition, Ms Jardim submits that a further discreet discount ought to be provided for the offender’s ongoing willingness to provide assistance in the future. In assessing the extent of the discount, I must consider the effectiveness of the assistance and its value to authorities.

102. I take into account the entirety of both confidential affidavits. I find that the offender has provided, and is committed to continue providing very valuable assistance. Consequently, I allow a 20% discount for past assistance and a 5% discount for assistance in the future.

Prior Criminal History

103. The offender has a limited criminal history in New South Wales that consists of two drug related offences: possess prohibited drug and drive vehicle with illicit drug present in blood for which he was charged in 2019. These two minor offences are consistent with his drug addiction at the time, and he received a CRO and a fine respectively. The offender also has one further minor matter on his record in Queensland, for which he received a fine in 2012.

104. At the time of the Commonwealth Offence and the First State Offences, the offender was subject to a CRO (without conviction) which expired on 15 May 2020. At the time of offending with respect to the Second State Offence (sequences 2, 3 and 4), the offender was subject to bail. Ms Jardim concedes that these are circumstances of aggravation. His criminal history, minor though it is, does not entitle him to leniency.

Remorse

105. AA has expressed appropriate insight, remorse, and contrition to Dr Ashkar and to his sister. It is also reflected in his plea and co-operation with authorities. His expressions of remorse reflect a level of insight and reflection which I find is genuine. The Crown does not disagree that the offender has shown genuine remorse.

Specific deterrence and prospects of rehabilitation: s16A(2)(j) and (2)(n); s21A(3)(h)

106. It is submitted by Ms Jardim that this is the offender’s first period of incarceration and that he faces the likelihood of a further period which will undoubtedly weigh considerably on him. Further, whilst incarcerated he has suffered relative isolation and significant withdrawal effects from his drug use, and he has been the subject of two incidents of assault. He has not had any access to employment or any structured activities and has had limited visits, all of which she submits, are factors which are likely to have a significant deterrent effect on the offender.

107. AA was assessed by Dr Ashkar as falling within the low to moderate category of recidivism given his limited criminal tendencies and personality traits. He will, however, require significant assistance to overcome his long term drug dependence and assistance in the development of new psychosocial factors. His recent reconnection to his family will serve as a strong protective factor upon release.

108. Ms Jardim submits that since his incarceration, and with the assistance of his solicitor, the offender has re-engaged with his family on a meaningful level. If he continues his path of rehabilitation, this will be a strong protective factor upon release. The letter written by the offender’s sister and marked as Exhibit 5 confirms that the offender will receive family support upon his release from gaol.

109. The Crown submits that the offender’s conduct cannot be explained as a momentary or impulsive lapse in judgment. There was a clear degree of preparation, planning, deception, and logistical engagement in the importation of a commercial quantity of GBL into Australia that highlights the need for specific deterrence in this matter.

110. The Crown submits that steps taken by an offender towards rehabilitation should be taken into account on sentence, but only as one amongst a number of important sentencing considerations. Factors pertaining to the likelihood of rehabilitation should not be elevated beyond the need for general deterrence and denunciation, see: R v Muanchukingkan (1990) 52 A Crim R 354 at 356; R v Laurentiu (1992) 63 A Crim R 402.

111. The Crown observes that the report of Dr Ashkar notes that in one two-year study, 28.6% of offenders in the offender’s recidivism risk category committed general recidivism, and 4.08% committed violent recidivism.

112. The Crown submits that the offender’s prospects of rehabilitation are tied to the offender’s willingness to disengage from involving himself in illicit substances and the court should be guarded in this respect.

106. The offender is still relatively young which militates in favour of his rehabilitation. I note that the offender has been abstinent since his incarceration and that he will have the support of his sister when he is released from gaol. He clearly has a continuing need for treatment. The biggest impediment in my view to his ultimate rehabilitation, is the offender himself. With appropriate treatment, I am optimistic.

107. Taking all matters into account, I find that the offender’s prospects of rehabilitation are reasonable. Nonetheless, in light of his past, personal deterrence in my opinion has some role to play.

General Deterrence and Need for Adequate Punishment: ss16A(2)(ja) and (2)(k)

115. The principles of general deterrence and denunciation are fundamental considerations when sentencing an offender for a drug related offence.

116. In relation to the general impact of this offence on the community, the Crown refers to the case of Mansour v R [2011] NSWCCA 28, where Price J concluded that a failure to have regard for public safety is an inherent characteristic of supplying (and importing) a prohibited drug. It is not submitted by the Crown that in this case a lack of regard for public safety is elevated to the extent of being an aggravating factor for the purposes of this sentencing exercise. Rather, it is submitted as relevant to general deterrence.

117. It is trite to say that stern punishment will be warranted in almost every case, because of the difficulty in detecting such offending, and the great harm to the community which flows from the import of such drugs into Australia and their subsequent distribution. The life led by this offender leading up to the offending exemplifies the harm done to drug users in the community.

118. The sentence imposed on the offender must be of such severity that it will act to deter others from engaging in activities to attempt to import and/or possess illegal drugs, and must signal to future potential offenders that the prospective financial gain from such activities will be neutralised by the risk of severe punishment.

119. Ms Jardim did not suggest that general deterrence has no role to play, but she submitted that it was mitigated by the offender’s background of disadvantage and mental health issues.

Mental Health and Disadvantage

120. Ms Jardim submits that the offender has suffered material disadvantage. He is a 35 year old Muslim gay man spending his first period in custody. He had a difficult upbringing marred by his father’s strict religious beliefs and controlling and violent personality. He struggled with his sexuality from an early age which has had a profound impact on his identity and sense of worth, and he lost contact with his family when he stole from them to fund his ever-increasing drug use.

121. The offender had a ten-year period of problematic substance abuse, specifically GHB and methylamphetamine, both of which he was administering intravenously. She submitted that his abuse of both substances is to be linked to his feelings of low self-worth and emotional dysfunction arising from his violent upbringing. It is submitted that this disadvantaged background can be taken into account to reduce his moral culpability, and that it is linked to his addiction, a proposition with which I agree.

122. Dr Ashkar concludes that the offender’s emotional dysfunction emerged as a primary concern during the assessment, underpinned by a sense of self-doubt, inefficacy, above average levels of stress, worry and proneness to anger.

123. Prior to his arrest, the offender attempted to cease his drug use but suffered significant withdrawal symptoms. Those symptoms persisted when his drug use ceased upon entering into custody and manifested in psychotic symptoms, namely delirium that persisted for many months and resulted in him spending the first 4 weeks in custody in medical cells.

124. In my opinion, the factors set out in DPP v De La Rosa [2010] NSWCCA 194, are to some extent present here. In particular, I find that the state of the offender’s mental health (and his inter-realted drug addiction) likely contributed to, and is linked to the commission of the offences. In my opinion, whilst the offender's moral culpability is somewhat reduced, it does not exculpate him. I accept that general deterrence has less weight on sentence.

125. I find that the offender grew up in a very violent household which he left when he was a teenager. He appears to have untreated, undiagnosed mental health issues. The effects of this disadvantage do not diminish with the passage of time and should be given full weight in this sentencing exercise: Bugmy v The Queen (2013) 249 CLR 571. I note the oft cited passage of Simpson J, as her Honour then was, in R v Millwood [2012] NSWCCA 2 at 69, where her Honour said that a person in the offender’s position does not bear equal responsibility with an offender who had a normal or advantaged childhood: see also Fullerton J in Perkins v R [2018] NSWCCA 62 at 99, where Her Honour said “ the insidious effects of exposure to family and domestic violence on children in their formative years, and the potential for that exposure to play out in unforeseen ways as a young child develops from adolescence into adulthood, are well researched and documented.” This is not to say that the offender bears no moral culpability. Rather, in my opinion it is somewhat diminished, and I take it into account.

Section 16BA Schedule Offence

126. In sentencing for the Commonwealth offence of sequence 1, I must take into account the offence for which the offender has admitted guilt which is contained on the s16BA schedule, namely sequence 5. The court is to take into account the nature and seriousness of that offence, not for the purpose of imposing punishment for it, but for the purposes of personal deterrence and the community’s entitlement to exact retribution.

127. As explained by Spigelman CJ in Attorney-General’s Application under s37 of the Crimes (Sentencing) Procedure Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 at [42]:

The position … is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence.

128. In this matter, the offence on the schedule slightly increases the penalty.

Time in custody/Backdating: s16E(2)(a), s47(3)

129. The offender has been in custody with respect to these offences for approximately one year. It is agreed that the sentence should be backdated to commence on 2 April 2020.

Covid-19

130. The court accepts that the existence of the pandemic is relevant to the assessment of an appropriate sentence.

131. Corrections NSW has imposed a number of protective measures to prevent and isolate any outbreak of Covid-19 amongst the prison population. These conditions have included suspending visits to inmates, restricting travel between and within correctional facilities, and restricting access to social activities. These measures, though designed to protect inmates against contracting the virus, have necessarily negatively impacted the quality of life enjoyed by the offender. However, the impact is difficult to quantify with any degree of specificity. I take the effect of the pandemic into account as a matter to synthesise on sentence.

Threshold

132. Having considered all the possible alternatives, I am satisfied that the section 17A and section 5 thresholds of the Crimes Act and the Sentencing Act have been respectively crossed in relation to the Commonwealth Offence and the Second State Offence. Due to the seriousness of the offending, I find that no penalty other than imprisonment is appropriate.

Totality

133. A court sentencing an offender for more than one offence must determine the appropriate sentence for each individual offence and then consider questions of accumulation or concurrence bearing in mind the principle of totality. The effect of the totality principle is to require me, having assessed all individual sentences, to stand back and consider whether the overall sentence to be imposed is just and appropriate and reflects the overall criminality of the offending.

134. This in turn requires consideration to be given to whether the sentences to be imposed for each offence should be concurrent or cumulative. The ultimate sentence must be appropriate to the totality of the offender’s offending and his personal circumstances.

135. I have also considered the principle of proportionality.

136. In all of the circumstances, and as conceded by the Crown, there will be partial accumulation between the Second State Offence and the Commonwealth Offence.

Sentence

137. I have taken into account the various purposes of sentencing under s3A of the Sentencing Act. They include ensuring an offender is punished for his conduct, deterring crime, protecting the community, promoting an offender’s rehabilitation, making an offender accountable for his actions, denouncing an offender’s conduct and recognising the harm done to victims of an offence in the community. As always, the facts and circumstances of the present offence and this offender highlight how the various purposes of sentencing pull in competing directions – especially given in my opinion the offender’s need for psychiatric review and ongoing rehabilitation.

138. As the High Court said of s3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]:

The purposes there stated (in s3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) at [476–477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) [at 476] in applying them.

139. The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the court, including the facts surrounding the commission of each offence, matters affecting relative seriousness, the offender’s subjective circumstances and other aspects which bear upon the question of sentence, including the guideposts of the maximum penalty and the standard non-parole period (if any) and the factors referred to in s21A of the Sentencing Act. The sentencing court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances: Markarian v The Queen [2005] HCA 25.

140. As I have said, in determining an appropriate sentence I have kept in mind the legislative guidepost, the maximum penalty of 15 years for the supply, being the Second State Offence.

141. I impose a fixed term of 6 months, after allowing the combined discount of 50% for the plea of guilty and assistance to authorities. There will be partial (3 months) accumulation with the sentence for the Commonwealth Offence.

Commonwealth Offence

142. In the case of federal offences, it is implicit in Part IB of the Crimes Act that a sentencing judge must have regard to current sentencing practices throughout the Commonwealth: R v Pham (2015) 256 CLR 550, 556, 557 - 558. Comparable cases can be considered that may serve to illustrate (although not define) the possible range of sentences available: see R v Pham; Hili v R; Jones v R (2010) 242 CLR 520, 537.

143. The High Court made clear in Hili v R; Jones v R that consistency in federal sentencing is not demonstrated by, and does not require, numerical equivalence.

144. However, to ensure national sentencing consistency, regard must be had to sentencing practices across Australia and decisions of intermediate appellate courts in other states and territories must be followed.

145. The Crown’s schedule of cases is noted. There are some similarities between those cases and this case, but there some significant differences. Whilst the factual scenario present in DPP (Cth) v Maxwell is similar, in that case there was a level of deception not present in this case. In Maxwell, the offender had alleged that she had ordered the GBL under duress (which was rejected). The criminality involved in Davidson v R [2009] NSWCCA 150 is significantly higher, with a finding of guilt after trial. Wong v R [2018] NSWCCA 263 has limited, if any application given the different drug involved and thus the difference in value and likely reward. The offender in R v Janse [2016] WASCR 17 had a similar subjective background to this offender, in that his drug dependence evolved as a way to self-medicate psychological symptoms arising from childhood.

146. None of the cases in the schedule involve assistance by an offender to law enforcement.

Sentence for Commonwealth offences

147. In sentencing an offender, the court is required to have regard to the matters set out in Part 1B of the Crimes Act, which provides procedural guidance on sentencing offenders who commit Commonwealth offences. In particular, the court must have regard to the matters set out in Section 16A. Part 1B is not intended to cover the field and Part 1B is not intended to operate as a code.

148. Pursuant to section 16A(1) of that Act, any sentence that I impose must be of a severity appropriate in all of the circumstances. In doing so, I have had regard to all the matters referred to above, including those contained in section 16A(2) of the Act as are relevant and known to court. I have also been guided by the approach of McHugh J in Markarian and have had regard to the general principles identified by the High Court in Power v R [1974] HCA 26.

Sentence

149. I have taken into account the provisions of section 16A(1) and (2) of the Crimes Act referred to earlier in this sentence.

150. Having regard to section 17A(1) of the Crimes Act, and after having considered all other available sentences, I am satisfied that no penalty other than imprisonment is appropriate in all of the circumstances of this case.

151. I am not permitted to impose a single aggregate sentence. In sentencing the offender for the Commonwealth Offence, the fundamental obligation of the Court is to set a head sentence that is of a severity appropriate in all the circumstances of the offending. The minimum term must be set after determination of the head sentence.

152. In Hill v R; Jones v R, the High Court made clear that a sentencing judge should, in Commonwealth matters, determine the minimum term to be served in accordance with Part 1B of the Crimes Act, together with the application of principles identified in Power.

153. In determining an appropriate sentence, I have kept in mind the legislative guidepost of the maximum penalty, which is life imprisonment, and the fact that there is no standard non-parole period for this offence.

154. As I am satisfied that no alternative other than a sentence of imprisonment is appropriate, and allowing for a discount of 50% for the offender’s guilty plea and his assistance to authorities, I sentence the offender to a term of imprisonment of 3 years. Without the 50% discount, I would have imposed a sentence of 6 years.

155. Taking into account the offender’s subject case, that this is his first time in custody and his need to have a significant period of supervision on parole, I will set a non-parole period of 18 months.

Orders

156. AA, please stand.

157. I convict you of:-

1. Sequence 1: Importing a commercial quantity of border controlled drug, namely approximately 24 litres of GBL, contrary to section 307.1(1) of the Criminal Code.

2. Sequence 2: Possessing prohibited drug, namely 0.16 grams of Methylamphetamine, contrary to s10(1) of the DMT Act.

3. Sequence 3: Possessing prohibited drug, namely 16.5 grams of GBL, contrary to s10(1) of the DMT Act.

4. Sequence 4: Possessing prohibited drug, namely 0.7 grams of MDMA, contrary to s10(1) of the DMT Act.

5. Second Sequence 1: Supply prohibited drug, namely approximately 600g of GBL, contrary to s25(1) of the DMT Act.

158. With respect to sequences 2, 3 and 4, I convict you of those offences pursuant to section 10A of the Sentencing Act, and impose no further penalty.

159. With respect to the supply offence contrary to section 25(1) of the DMT Act, I impose a fixed term of six months commencing on 2 April 2020 and expiring on 1 October 2020. I have taken into account the 50% discount for your plea of guilty and assistance to authorities.

160. With respect to sequence 1, importing a commercial quantity of border controlled drug, namely approximately 24 litres of GBL, contrary to section 307.1(1) of the Criminal Code, and taking into account sequence 5 on the section 16BA schedule, I impose a sentence of 3 years and 1 day commencing on 2 July 2020, and which will expire on 1 July 2023. I have taken into account the 50% discount for your plea of guilty and assistance to authorities.

161. Taking into account all relevant matters, I set a non-parole period of 18 months commencing on 2 July 2020. You will be eligible for release to parole on 1 January 2022.

162. I make the forfeiture order in the amount of $150, and return the Short Minute to the Crown.

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Amendments

19 April 2021 - paragraph [160] - changed "3 years" to "3 years and 1 day"

Decision last updated: 19 April 2021