R v Anderson

[2022] NSWDC 75

District Court

New South Wales

Medium Neutral Citation:

R v Anderson [2022] NSWDC 75

Hearing dates:

9 February 2022

Date of orders:

9 February 2022

Decision date:

09 February 2022

Jurisdiction:

Criminal

Before:

Bright DCJ

Decision:

See paragraphs [76] and [79].

Catchwords:

CRIME — Drug offences — Supply prohibited drug — Commercial quantity — Indictable quantity — Firearms offences — Unauthorised possession of firearm

Legislation Cited:

Confiscation of Proceeds of Crime Act 1989 (NSW)

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Firearms Act 1996 (NSW)

Cases Cited:

Cahyadi v R [2007] NSWCCA 1

Category:

Sentence

Parties:

Regina (Crown)
Keith Anderson (Defendant)

Representation:

Solicitors:
Allan (Crown)
Gatenby (Defendant)

File Number(s):

2020/00345482

Judgment

1. Keith Anderson, 38 years of age, appears before Gosford District Court for sentence in relation to the following offences:

1. Supply prohibited drug (commercial quantity, 3,4 methylenedioxyamphetamine 309.6 grams) an offence pursuant to s 25(2), Drug Misuse and Trafficking Act. The maximum prescribed penalty for that offence is 20 years’ imprisonment. There is a prescribed standard non-parole period of ten years;

2. Supply prohibited drug (commercial quantity, cannabis 42.329 kilograms) an offence pursuant to s 25(2), Drug Misuse and Trafficking Act. The maximum prescribed penalty is 15 years’ imprisonment. There is no prescribed standard non-parole period;

3. Supply a prohibited drug (cocaine 106.53 grams) an offence pursuant to s 25(1), Drug Misuse and Trafficking Act. The maximum prescribed penalty for that offence is 15 years’ imprisonment. There is no prescribed standard non-parole period;

4. Supply prohibited drug (methylamphetamine 139.4 grams) an offence pursuant to s 25(1), Drug Misuse and Trafficking Act. The maximum prescribed penalty for that offence is 15 years’ imprisonment. There is no prescribed standard non-parole period;

5. Knowingly deal with proceeds of crime ($39,190), an offence pursuant to s 193B(2), Crimes Act. The maximum prescribed penalty for that offence is 15 years’ imprisonment. There is no prescribed standard non parole period;

6. Possess unauthorised firearm (seven firearms), an offence pursuant to s 7A(1), Firearms Act. The maximum prescribed penalty for that offence is five years’ imprisonment.

2. The offender is also being sentenced for one offence on a s 166 certificate of not keep firearm safely (seven firearms). The maximum prescribed penalty for that offence is 12 months’ imprisonment.

3. All the items were found strewn across the M1 motorway on the Central Coast after the offender’s vehicle had collided with several other vehicles.

4. The offender pleaded guilty on 5 October 2021 at the Wyong Local Court. Having regard to the timing of the plea, I propose to allow a discount on sentence of 25%.

5. The offender has been in custody since his arrest on 5 December 2020. The sentence imposed today will be backdated to that date.

The Agreed Facts

6. At the time of the offending, the offender lived in Queensland and he was the owner of a white Toyota Landcruiser single cab ute.

7. Between 11.15 and 11.45am on Saturday, 5 December 2020, police received a number of calls in relation to the offender’s Landcruiser travelling at excessive speed and driving dangerously in a northbound direction on the M1 Pacific motorway between Hornsby and Ourimbah.

8. The offender’s Landcruiser approached two vehicles from the rear that were travelling in lane 3 of 3 near the Ourimbah exit. The Landcruiser collided with the rear of a red Chevrolet Camaro. This impact caused the Camaro to be pushed forward and collide with a white Toyota HiAce van that was travelling in front of the Camaro.

9. The offender’s Landcruiser also collided with a B-double semi-trailer. The Landcruiser impacted with the Camaro at high speed which caused the Landcruiser to collide with the safety rail at the M1 Pacific motorway and caused the canopy to fall off the tray of the ute. The contents of the canopy were strewn across the M1 motorway.

10. The offender’s Landcruiser proceeded approximately 200 metres along the M1 motorway before coming to a stop as the front tyres had fallen off the vehicle.

11. Highway patrol police arrived at the location within minutes of the collision. Part of the contents thrown from the canopy were identified as numerous vacuum sealed bags of cannabis and a large amount of Australian dollars, predominantly $20, $50 and $100 notes.

12. The collision caused by the offender was captured on dashcam footage. The offender was located in the vehicle and nominated himself as the driver. He was arrested and cautioned in relation to the collision. The cannabis, Australian dollars and other items that had been strewn across the M1 were collected and seized by police. The vehicle was towed from the scene.

13. The offender participated in a record of interview with police at the scene where he made the following claims:

1. He was the owner and driver of the Landcruiser and said that he travelled from Queensland on 4 December 2020 to see his daughter at a location in Liverpool.

2. He could not find his daughter and was returning to Queensland.

3. He had camped overnight in an unknown location near a river and had located three boxes with a black bag

4. Without checking the contents of the boxes and bag, he has put them in his vehicle and commenced travelling northbound with the intention of returning to Queensland.

5. He denied being under the influence of drugs or alcohol.

6. He stated that he held a firearms’ licence and that a grey box on the back of the vehicle contained firearms registered to him.

14. Police conducted a search of the vehicle and located the following items: three mobile phones; a vacuum sealer and vacuum sealer bags; numerous new and unused small re-sealable plastic bags; a large number of loose elastic bands throughout the vehicle including the driver’s side door and gear stick along with a bag of rubber bands with red tape; cash bundled in elastic bands; a 45 centimetre black machete in a sheet and a Winchester hunting knife with a wooden handle.

15. The following drugs were located: 42.329 kilograms of cannabis; 106.53 grams cocaine; 139.4 grams of methylamphetamine; and 309.6 grams of 3,4 methylenedioxyamphetamine. Police also, as I indicated, located cash on the highway and also in the cabin of the vehicle. The total amount of cash found was $39,190.

16. Police also searched a large grey box secured with two locked padlocks that were strapped to the tray of the vehicle. Police located seven firearms stored in the grey box along with smaller boxes containing various rounds of ammunition including .22 Long Rifle calibre rounds; 12 gauge shotgun round; 45-70 Government calibre rounds; .223 Remington calibre rounds; 7.62x39 calibre rounds and .375 calibre rounds. The ammunition was not stored separately to the firearms. As such, the firearms were stored in an unsafe manner (s 166 offence).

17. The police located the following weapons in the vehicle of the offender. The offender is licenced to possess firearms in Queensland and each of the firearms located is registered to the offender. The offender did not have a genuine purpose for having the firearms in his possession in the State of New South Wales and was not exempt from s 7A, Firearms Act. The offender had in his possession in contravention of this part of the Firearms Act the following firearms:

1. A Rossi lever-action rifle chambered in .357 magnum;

2. AV Tufekleri Kooperatifi Huglu, a double barrel shotgun;

3. A Howa rifle, model 1500 chambered in 7.62x39;

4. A Lithgow rifle with scope chambered in .233;

5. A Rossi lever-action rifle chambered in 38 Special;

6. A Marlin lever-action rifle chambered in .45-70;

7. A Diana airgun.

18. The offender was arrested and taken to Wyong Police Station. He participated in a record of interview where he stated he was the owner of cocaine contained in a small plastic bag that he had consumed during his trip to New South Wales. The offender denied any knowledge of the cash, cannabis or other drugs. He accepted that his firearms were not stored safely.

19. I note that by his plea to each offence, the offender has accepted the elements of each offence including the knowledge of the prohibited drugs and also knowledge of the quantity of the prohibited drugs.

20. Those facts clearly disclose very serious objective criminality. The offender, by performing the role of a courier, was facilitating the movement of a very significant amount of drugs interstate for ultimate supply in Queensland. The crime of supplying prohibited drugs is regarded by the courts as extremely serious in circumstances where there are very significant detrimental effects to the community. The supply of prohibited drugs destroys the lives of individuals, it disrupts families and generates a significant cost to the community both socially and financially. The community expects, and is entitled to expect, that people who commit these offences will face condign punishment.

21. In relation to the firearms in the offender’s possession, whilst they were registered in Queensland, there was no legitimate reason to have them in New South Wales. The storage of ammunition with the firearms created a very significant risk to the community should they fall into the wrong hands.

Assessment of the objective seriousness of each offence

22. In assessing the objective seriousness of each drug offence, I have taken into account the following factors:

1. The quantity of the prohibited drug. Sequence 6 relates to 309.6 grams of 3,4 methylenedioxyamphetamine. The commercial quantity for 3,4 methylenedioxyamphetamine is 125 grams. The large commercial quantity is 500 grams and the trafficable quantity is 0.75 grams. The quantity of the drug possessed by the offender was well in excess of the commercial quantity of 125 grams. Sequence 2 related to 42.329 kilograms of cannabis. The commercial quantity for cannabis is 25 kilograms. The large commercial quantity is 100 kilograms and the trafficable quantity is 300 grams. Again, the quantity of cannabis possessed by the offender was well in excess of the commercial quantity of 25 kilograms. Sequence 7, 139.4 grams of methylamphetamine. The commercial quantity of methylamphetamine is 250 grams and the trafficable quantity if 3 grams. Sequence 3, 106.53 grams of cocaine. The commercial quantity is 250 grams and the trafficable quantity is three grams;

2. The role of the offender - I am satisfied the role of the offender was as a courier driving from Rockhampton in Queensland to collect the prohibited drugs in Sydney intending to return to Queensland;

3. The reward for his involvement - the offender gave evidence that he was to receive drugs and the forgiveness of a drug debt to the value of $4000 to $5,000 as his reward;

4. I am satisfied that the offender was not part of the organisation or planning of the transmission of the prohibited drugs between New South Wales and Queensland. Nor is there any evidence that he was going to receive any profit from the ultimate distribution of those drugs in Queensland.

23. Having regard to those factors, I assess the objective seriousness of each offence as follows: sequence 6 relating to the 309.6 grams of 3,4 methylenedioxyamphetamine, below the middle of the range of objective seriousness. Sequence 2, 42.329 kilograms of cannabis, below the middle of the range of the range of objective seriousness. Sequence 7, 139.4 grams of methylamphetamine, below the middle of the range of objective seriousness. Sequence 3, 106.53 grams of cocaine, below the middle of the range of objective seriousness.

24. In assessing the objective seriousness of the possess firearms’ offence, I have taken into account the following factors:

1. There were seven weapons located being five rifles, one shotgun and one airgun in a large grey box on the back of the vehicle secured by two padlocks;

2. Inside the box were various rounds of ammunition which would mean that if the box was stolen there was access to weapons and ammunition;

3. Whilst each firearm was licenced in Queensland to the offender, the offender had no purpose for possession of firearms in New South Wales.

25. I assess the objective seriousness of this offence as being in the middle of the range.

26. In assessing the objective seriousness of the offence of deal with proceeds of crime, I have taken into account the following factors:

1. The quantity of the proceeds being $39,190, recognising that the offence relates to any amount of proceeds;

2. The proceeds were related to the supply of prohibited drugs.

27. Having regard to those factors, I assess the objective seriousness of this offence of being below the middle of the range.

28. The Crown did not rely upon any aggravating factors pursuant to s 21A(2), Crimes (Sentencing Procedure) Act.

The offender’s subjective circumstances

29. The offender is 38 years old.

30. He has no criminal history in New South Wales and one offence of public nuisance on his Queensland criminal history. I am satisfied that the absence of any relevant criminal history entitles the offender to leniency on sentence.

31. The offender gave evidence during the sentence proceedings. The following material was tendered on his behalf:

Exhibit 1, an Affidavit of the offender;

Exhibit 2, a student learning profile;

Exhibit 3, a letter from the offender;

Exhibit 4, a letter from New Path Legal 25 January 22; and

Exhibit 5, defence written submissions.

32. The offender’s background is outlined in his Affidavit and the letter he prepared for the Court (see Exhibits 1 and 3).

33. The offender was born in Chinchilla in Queensland. He is an only child. He moved to Harvey Bay as a child. He completed Year 12. Whilst at school, he was sexually assaulted by teachers. He has an ongoing compensation claim with the Royal Commission. He describes himself as constantly having flashbacks, particularly when he was at a “low point”. He described himself as being from a stable family. His family still lives in Harvey Bay. He has three children from a previous marriage aged 16, 15 and 10. He divorced in 2016. The children live with his ex-wife.

34. He had been with his current partner for 18 months before going into custody. She works for Rockhampton City Council and remain supportive of him. In relation to his history of employment, he had held the same job for approximately 20 years. He was employed by Queensland Rail also known as Aurizon. He was a civil construction supervisor of 35 employees. He was earning $150,000 a year.

35. In August 2020, he lost his employment as a consequence of the COVID-19 pandemic. His Centrelink payment was $680 per fortnight. He reported that his debts increased. He described that he turned to the use of drugs to try and help him “numb the pain” of losing his employment.

His circumstances at the time of offending

36. The offender reported he was renting premises in North Rockhampton with his partner. He had lived there for about four years. He owned a block of land and was in the process of building a house on it. This was unable to be completed because he was taken into custody. The bank has now foreclosed on the block of land.

37. Shortly before the offending, he described he had credit card debts, a personal loan and car loans. He also had a drug debt to repay. He described himself at the time as “desperate for money” as he knew that the Christmas period was coming up and he was going to be unable to provide for his family.

His involvement in the offending

38. The offender described his involvement in the offending in his Affidavit in the following way, at [29]:

“I was approached by someone to undertake a road trip and collect a package and bring it back to Queensland. I was not explicitly told that drugs were involved although it was apparent to me that I would be collecting drugs. I did not know the quantity although it was a reasonable inference that they would be substantial given that I was being tasked with driving to Sydney and back. I recklessly agreed to undertake the trip. At the time, I was using drugs heavily. This is consistent with the motor vehicle accident which was a consequence of my drug addiction”.

39. At [37]:

“The threat of losing my home and the uncertainty of not having employment created a situation where I engaged in drug use. Had I not been addicted to drugs, I never would have met with the people who asked me to travel interstate and collect drugs on their behalf”.

The offender’s circumstances in custody

40. Since being in custody, the offender reported he has enrolled in a number of courses including drug and alcohol courses, a handyman course, a first business owner course and an intensive learning course which is of six to nine months’ duration. He has also taken on a leadership position within the classroom.

41. In relation to his attitude to the offending, the offender stated as follows, “I am extremely remorseful and devastated that my behaviour has resulted in my downfall”. He said he would, “never again return to drug use”.

42. In relation to his future plans, he said he would like to gain a position in the civil construction industry.

The evidence of the offender in relation to the offending

43. The offender gave the following evidence in cross-examination. He said that at the time of offending he was using cocaine. He was not told what was being transported. He was cross-examined about the location of vacuum sealer bags and a vacuum sealer and loose elastic bands in his vehicle. He gave evidence that those items were for hunting and fishing purposes.

44. In relation to the $39,190 found in cash by police, he gave evidence that it was to be dropped off with the parcel of drugs. In his record of interview with police, he had told them that he had travelled to New South Wales to look for his daughter. He accepted in cross-examination that that was not true.

45. It was suggested to the offender in cross-examination that travelling under the influence of drugs with firearms in in the vehicle was incredibly dangerous. He gave evidence that the firearms were to be used to eradicate feral animals on a property. He gave evidence this was the first time he had been asked to do a trip of this kind. He said he drove from Rockhampton to South West Sydney. The trip had taken approximately 16 to 18 hours one way.

46. In relation to his reward for acting as a courier, he said he was not getting paid, rather, it was to eliminate an outstanding drug debt to the value of four to $5,000. During the evidence of the offender, I indicated to the parties that I did not accept on balance that he undertook the role as a courier and drove from Rockhampton to Sydney to forgive a debt of four to $5,000. In my view, there was simply no correlation between the very significant risk of undertaking that trip and the very insignificant reward.

47. The offender then gave further evidence that he would also receive at least a couple of “balls”, that is 3.5 grams of cocaine each valued at approximately $1,500. He maintained in cross-examination he did not know the quantity of drugs he was couriering. I note that it has been indicated on behalf of the offender that by his plea he accepted that all the elements of the offence are established including the requisite knowledge of the quantity of the drugs.

Correspondence from New Path Legal

48. New Path Legal have been instructed by the offender in relation to an institutional abuse claim for compensation arising from sexual abuse whilst the offender was attending an Anglican college in Queensland. In due course arrangements will be made for the offender to undergo assessment with a consultant psychiatrist to assist with clinical diagnosis and treatment recommendations.

The submissions of the parties

49. The Crown relied upon comprehensive written submissions supplemented by further oral submissions.

50. Mr Longhurst of Counsel also relied upon comprehensive written submissions supplemented by further oral submissions.

49. I have taken those submissions into account in determining the appropriate sentence.

50. It was submitted on behalf of the offender that the offending occurred in the context of financial pressures that arose because of the offender’s loss of employment as a consequence of the COVID-19 pandemic. Mr Longhurst referred to the offender as a “blind courier” on the basis there is no evidence to suggest he was involved in any of the organisation negotiation or planning of the trip and did not stand to profit from the sale of the drugs.

51. It was further submitted on behalf of the offender that he had good prospects of rehabilitation in circumstances where upon release he is likely to return to work, he has expressed remorse and he has experienced onerous custodial conditions as a consequence of the COVID-19 lockdown.

52. The Crown submitted that the offending was very serious and that general and specific deterrence were important considerations on sentence having regard, most particularly, to the quantities of each prohibited drug. The Crown acknowledged the offender was entitled to leniency having regard to the absence of any prior relevant criminal history.

Remorse

55. Having regard to the evidence of the offender, I am satisfied he is remorseful for his offending behaviour and has also accepted full responsibility for his conduct.

Prospects of rehabilitation

56. I am satisfied the offender has very good prospects of rehabilitation in circumstances where he has no relevant previous criminal history, he has a very lengthy work history and he is motivated towards a positive future. I am also satisfied it is highly unlikely that he will re-offend.

Totality

57. In circumstances where I am dealing with the offender for six offences and one offence on a s 166 certificate, I am required to consider the question of totality. The relevant sentencing principle to consider is whether the sentence for one offence can comprehend and reflect the criminality of the other. If so, the sentences should be served concurrently but, if not, there should be some accumulation between the sentences: see Cahyadi v R [2007] NSWCCA 1.

58. I am satisfied that some partial accumulation is necessary to reflect the totality of the criminality whilst recognising that it was one criminal episode. The partial accumulation will be notional in circumstances where I propose to impose an aggregate sentence.

The impact of COVID-19

59. I accept that the current circumstances surrounding the COVID-19 pandemic are causing significant additional stress for offenders in custody. I accept that custodial conditions are now much more onerous in circumstances where the conditions under which the offender will serve his sentence have changed.

60. Firstly, there are currently no personal visits to correctional facilities in New South Wales. Secondly, I accept that there will be a concern among inmates in relation to COVID-19 spreading within the correctional facility. Thirdly, inmates in correctional facilities in New South Wales are currently regularly subjected to lockdown to try and minimise the risk of COVID-19 spreading throughout the correctional facility.

61. Having regard to those factors, I am satisfied that custody is much more onerous and I do propose to moderate the otherwise appropriate sentences.

Special circumstances

62. I am satisfied special circumstances are established warranting a variation in the ratio between the non-parole period and the parole period in circumstances where it is the offender’s first time in custody. I propose to vary the statutory ratio pursuant to s 44(2B), Crimes (Sentencing Procedure) Act.

Determination

63. In determining the appropriate sentences, I have had regard to the purposes of sentencing set out in s 3A, Crimes (Sentencing Procedure) Act.

64. Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate in respect of each offence pursuant to s 5(1), Crimes (Sentencing Procedure) Act.

65. I have had regard to the objective gravity of the offences, the relevant prescribed maximum penalties, the offender’s subjective circumstances and the prescribed standard non-parole period in accordance with s 54B(2), Crimes (Sentencing Procedure) Act.

66. I propose to impose an aggregate sentence pursuant to s 53A(1), Crimes (Sentencing Procedure) Act.

67. Pursuant to s 53A(2)(b), the indicative terms are as follows:

68. Sequence 6, 309.6 grams of 3,4 methylenedioxyamphetamine, the starting term is four years discounted by 25% for the plea of guilty leaving a total term of three years. The non-parole period of 18 months;

69. Sequence 2 relating to 42.329 kilograms of cannabis, the starting term is three years discounted by 25% for the plea of guilty leaving a total term of two years and three months;

70. Sequence 7 relating to 139.4 grams of methylamphetamine, the starting term of two years and eight months discounted by 25% for the plea of guilty leaving a total term of two years;

71. Sequence 3 relating to 106.53 grams of cocaine, the starting term is two years and eight months discounted by 25% for the plea of guilty leaving a total term of two years;

72. Sequence 5 relating to $39,190 cash being the proceeds of crime, a starting term of 16 months discounted by 25% for the plea of guilty leaving a total term of 12 months;

73. Sequence 8 relating to the possession of unauthorised firearms, a starting term of two years discounting by 25% for the plea of guilty leaving a total term of 18 months.

74. In relation to the 166 offence of not keep firearm safely, a starting term of eight months discounted by 25% for the plea of guilty leaving a total term of six months.

75. Mr Anderson, in relation to each of those offences, you are convicted.

76. You are sentenced to a total aggregate sentence of four years and eight months’ imprisonment to date from 5 December 2020 and expire on 4 August 2025 with a non-parole period of two years and four months to date from 5 December 2020 and expire on 4 April 2023.

77. You will first become eligible for parole on 4 April 2023.

78. I have found special circumstances and I have varied the ratio between your time in custody and your time on parole so your time in custody is 50% of the total term of the sentence.

79. I make the following confiscation order: Pursuant to the Confiscation of Proceeds of Crime Act, the Court orders that:

1. Pursuant to s 18(1) cash in the sum of $39,190 found on the person of the offender on 5 December 2020 be forfeited to the State;

2. Pursuant to s 18(3), the value of the property forfeited in order 1 is $39,190;

3. Pursuant to s 19(3)(a), the property forfeited herein be disposed of forthwith and I will sign that order.

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Decision last updated: 28 March 2022