R v Awraham

Case •

[2019] NSWDC 341

•

05 July 2019

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Awraham [2019] NSWDC 341
Hearing dates: 03 May 2019, 5 July 2019
Date of orders: 05 July 2019
Decision date: 05 July 2019
Jurisdiction:Criminal
Before: Weinstein SC DCJ
Decision:

You are convicted of the offences of possessing an unauthorised pistol, contrary to section 7(1) of the Firearms Act 1996, possessing an unregistered firearm, contrary to section 36(1) of the Firearms Act 1996, supply of a prohibited drug (MDMA) contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985 and attempting to possess a commercial quantity of a border control drug, namely cocaine, contrary to section 11.1 and section 307.5(1) of the Criminal Code 1995.

 

For the offence of possessing an unauthorised pistol, contrary to section 7(1) of the Firearms Act 1996, after applying a discount of 25% for the plea of guilty, I impose a head sentence of 3 years, with a non-parole period of 1 year 11 months. The sentence is backdated to commence on 23 April 2018, the date on which you were taken into custody. The non-parole period expires on 22 March 2020, and the head sentence expires on 22 April 2021.

 

For the offence of possessing an unregistered firearm, contrary to section 36(1) of the Firearms Act, after applying a discount of 25% for the plea of guilty, I impose a sentence of 18 months. That sentence is backdated to commence on 23 April 2018, the date on which you were taken into custody, and will expire on 22 October 2019.

 

For the offence of supplying prohibited drug (MDMA) contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985, after applying a discount of 25% for the plea of guilty, I impose a sentence of 2 years and three months. That sentence is backdated to commence on 23 April 2018, the date on which you were taken into custody, and will expire on 22 July 2020.

 

For the offence attempting to possess a commercial quantity of a border control drug, namely cocaine, contrary to section 11.1 and section 307.5(1) of the Criminal Code 1995, after applying a 25% discount for the plea of guilty, I impose a head sentence of 7 years 6 months, with a non-parole period of 5 years and 15 days commencing from 23 October 2019. The head sentence will expire on 22 April 2027 and the non-parole period will expire on 6 November 2024.

 

The period of accumulation is 18 months.

 The overall effective sentence I impose consists of a non-parole period of 6 years, 6 months and 15 days commencing from 23 April 2018, and a head sentence of 9 years. You will become eligible to be released on parole on 6 November 2024.
Catchwords: SENTENCING – Commonwealth and State offences – possess unauthorised pistol – possess unregistered firearm – supply of a prohibited drug (MDMA) – attempt to possess a commercial quantity of a border control drug, namely cocaine – penalties – imprisonment
Legislation Cited: Criminal Code 1995 (Cth)
Criminal Code Regulations 2002 (Cth)
Drug Misuse & Trafficking Act 1985
Firearms Act 1996 (NSW), ss7, 36, 39
Customs Act 1902 (Cth)
Law Enforcement (Powers and Responsibility) Act 2002 (NSW)
Poisons and Therapeutic Goods Act 1966 (NSW), s16
Crimes Act 1914, Part 1B, ss16A, 17A
Crimes (Sentencing Procedure) Act 1999, ss3A, 5, 21A, 33, 44
Cases Cited: Cahyadi v R [2007] NSWCCA 1
Do v R [2010] NSWCCA 182
DPP (Cth) v Thomas [2016] VSCA 237.
Hili v R; Jones v R (2001) 242 CLR 520
Markarian v The Queen [2005] HCA 25
Mill v The Queen (1988) 166 CLR 59 at [63].
Muldrock v The Queen (2011) 244 CLR 120
R v Aaron Tran [2013] NSWCCA 136
R v Jarrold [2010] NSWCCA 69 at [56].
R v Nguyen & Ors (2005) 157 A Crim R 80
R v Nguyen; R v Pham (2010) 205 A Crim R 106
R v MacDonnell (2002) 128 A Crim R 44
R v Muanchukingkhan (1990) 52 A Crim R 354
R v Karan [2013] NSWCCA 53
R v Robinson [2014] NSWCCA 12
R v Stanford [2007] NSWCCA 73
R v To (2007) 172 A Crim R 121
The Queen v De Simoni (1981) 147 CLR 383
The Queen v Olbrich (1999) 199 CLR 270
Thorn v R (2009) 198 A Crim R 135
Tyler v R (2007) 173 A Crim R 458
Veen v The Queen [No 2] (1988) 164 CLR 465
Wong v The Queen [2001] HCA 64
Wong v The Queen; Leung v The Queen (2001) 207 CLR 584
Xiao v R [2018] NSWCCA 2
Category:Sentence
Parties: Regina (Crown)
Awraham (Offender)
Representation:

Counsel:
Mr Edwards (Awraham)

  Solicitors:
Mr Brummert (Crown)
SCD Lawyers (Awraham)
File Number(s): 2018/128463

Judgment

Background: The Commonwealth and State offences

  1. In this sentence matter there is one offence under the Criminal Code1995 (Cth) (the Criminal Code) and there are three offences under NSW State Acts.

  2. The offender Sargon Awraham, born in 1993, has been charged with the offence of between the dates of 19 April 2018 and 23 April 2018, attempting to possess a commercial quantity of a border controlled drug, namely cocaine, contrary to section 11.1 and section 307.5(1) of the Criminal Code (the Commonwealth offence). The maximum penalty for this offence is life imprisonment and/or fine not exceeding 7500 penalty units, or both.

  3. With respect to New South Wales State offences, the offender is charged with:

  1. Possessing an unauthorised pistol, contrary to section 7(1) of the Firearms Act 1996 (the Firearms Act), which carries a maximum penalty of 14 years imprisonment with a standard non-parole period of four years.

  2. Possessing an unregistered firearm, contrary to section 36(1) of the Firearms Act, which carries a maximum penalty of 14 years imprisonment and for which there is no standard non-parole period.

  3. Supply of a prohibited drug (MDMA), contrary to section 25(1) of the Drug Misuse & Trafficking Act 1985 (DMTA), which carries a maximum penalty of 15 years imprisonment and for which there is no standard non-parole period.

  4. (the State offences)

  1. In addition, with respect to the State offences, there are three charges which I am asked to deal with on a Form 1 basis. These are:

  1. not keep firearms safely (pistol), contrary to section 39(1)(a) of the Firearms Act (maximum penalty of two years imprisonment and/or 50 penalty units);

  2. possess ammunition without license, contrary to section 39(1)(a) of the Firearms Act (maximum penalty of 50 penalty units); and

  3. possess prohibited drug x 3, contrary to section 25(1) of the Drug Misuse & Trafficking Act 1985 (maximum penalty two years imprisonment and or/20 penalty units).

Agreed Facts with respect to the Commonwealth offence

  1. On 19 April 2018, a consignment bearing House Airway Bill (HAWB) (the consignment) arrived from Canada.

  2. The consignment details were listed as: Consigneee details: Joanne Corner, Derwent Place 2176 NSW Bossley Park NSW Australia, and Consignor details: Ann Lee, Cambie Street, Vancouver BC.

  3. The content of the consignment was listed as containing ‘gift shipment table decor water fountain’. The weight of the consignment box was 9.64 kg.

  4. On 19 April 2018, Australian Border Force (ABF) officers x-rayed the consignment and detected anomalies in the lining of the large cardboard box. ABF officers opened the consignment and an examination revealed personal goods and two smaller boxes with items inside. The consignment contained:

  1. One box labelled ‘Sable Essential Oil Diffuser’;

  2. One box labelled ‘Heat Acupressure Eye Massager’ branded Sharper Image;

  3. One smaller cardboard box (smaller box 1) containing one masterclass 27 FL OZ glass jug with wooden handle, one rainbow elephant ashtray and one ‘Umbra’ brand Buddy tea infuser; and

  4. One smaller cardboard box (smaller box 2) containing broken masterclass 27 FL OZ glass jug with wooden handle, one wooden/silver plunger lid, one plastic ornamental grapes, one rainbow colour elephant ashtray and one ‘Umbra’ brand.

  1. ABF officers made an incision in the lining of the large consignment cardboard box which revealed a clear plastic package containing a white powder substance. Preliminary testing of the white powder substance revealed the presence of cocaine.

  2. On 20 April 2018, ABF officers deconstructed the consignment by removing the four plastic bags of white powder substance inside the lining of the large cardboard box. ABF officers also removed four plastic bags containing white powder substances concealed inside the lining of smaller box 1 and four plastic bags of white powder substances inside the lining of the cardboard of smaller box 2.

  3. On 21 April 2018, ABF officers commenced a reconstruction of the consignment box and two smaller boxes. The items were substituted with an inert substance (the drug substitute) of similar weight, texture and appearance to the seized drug and repacked into the walls of the cardboard boxes. The miscellaneous items of each box previously removed were returned and placed inside of the consignment. At the completion of the reconstruction, the consignment box was weighed at 9.69 kg.

  4. Forensic examination of the white powder substance revealed the following:

  1. the total gross weight of the crystalline power was 2941.5 g.

  2. Forensic analysis revealed that the powder contained cocaine with an average purity of 72.94%.

  3. The calculated total pure weight of the cocaine was 2152.27 g.

  1. On 20 April 2018, a Controlled Operation Authority was issued to facilitate the delivery of the consignment by members of the New South Wales Police and the ABF.

  2. On 23 April 2018, at about 11:20 am, an ABF officer delivered the consignment to the premises on Derwent Place, Bossley Park (the premises). An occupant of these premises, Juliana Simon, signed the delivery sheet and took custody of the package. Juliana Simon advised the ABF officer that the consignment was for a friend who was at work.

  3. At about 2:20 pm the accused was observed outside the driveway of the premises in Bossley Park. The accused walked outside the driveway for about 20 minutes. The accused was observed with two mobile phones in his possession.

  4. At about 3 pm a white Audi NSW (the vehicle) driven by Marius Marrouki attended the premises. The offender approached the passenger side window and had a conversation with Marrouki through the open window. A short time later, the offender continued to walk west along the premises. Marrouki drove the vehicle into the driveway of the premises and was out of sight. A short time later, the vehicle left the premises.

  5. At about 3:05 pm the vehicle returned to the premises and travelled out of sight. About one minute later, the vehicle left the location and travelled out of the area.

  6. At about 3:22 pm, New South Wales Police and ABF officers executed a search warrant under the Customs Act 1902 (Cth) at the premises. Inside the premises were the occupants Juliana Simon and Felicia Simon. A search of the premises failed to locate the consignment previously delivered by the ABF.

  7. At about 3:40 pm, New South Wales Police surveillance cited the vehicle at an address on Marvell Road in Wetherill Park, which I understand to be the offender’s address. At about 3:55 pm, the vehicle was observed leaving the offender’s premises. New South Wales Police stopped and searched the vehicle, but a search of the vehicle failed to locate the consignment.

  8. At about 5:10 pm on 23 April 2018, New South Wales police executed a search warrant at the offender’s premises. The offender and his parents were present. New South Wales Police conducted a search of the accused’s room and located the consignment. New South Wales Police located the large cardboard box and the two smaller cardboard boxes on the floor which had been cut open to expose the inside of every panel.

  9. A short time later the offender was cautioned and placed under arrest by New South Wales Police. The offender was conveyed to Liverpool Police Station where he was explained his rights under the Law Enforcement (Powers and Responsibility) Act 2002 (NSW).

  10. The offender was given the opportunity to participate in a recorded interview, but he declined.

Agreed Facts with respect to the State offences

  1. On 23 April 2018, NSW Police executed a search warrant at the home of the offender on Marvell Road in Wetherill Park. This was as part of an investigation by NSW Police and the ABF of a suspected drug importation for which the offender is to be sentenced today. The offender was found in the hallway of the premises next to a room identified as being his bedroom. Also present were his parents.

  2. During the search of these premises, police located under the bed in the accused’s bedroom a .22 calibre Ruger pistol in working order and a magazine containing 8 rounds of ammunition. Police found a locked safe under the bed. The key to the safe was found in the accused’s ‘man bag’ with his identification and was used to open the safe. In the safe, police found resealable plastic bags containing a brown powder (49 grams of 3,4-methylenedioxyamphetamine). Also found in the bedroom were six tablets of oxymetholone (2.02 grams), tablets of alprazolam (6.22 grams), cocaine (powder – 0.45 grams), and 3,4-methylenedioxyamphetamine (powder – 0.35 grams).

  3. The offender was taken to Liverpool Police Station, where he exercised his right to silence.

The Evidence

  1. There are three exhibits in this matter before me. Exhibit 1 is the Commonwealth Crown Bundle which consists of:

  1. The Court Attendance Notices;

  2. The Agreed Facts (recited above);

  3. Mr Awraham’s criminal history; and

  4. Mr Awraham’s custodial history, which indicates that he has been in custody since 24 April 2018, the day after his arrest.

  1. Exhibit 2 consists of the Crown Sentence Summary in relation to the State matters. It consists of:

  1. The Notice of Committal and Court Attendance Notices;

  2. The Agreed Facts (as recited above);

  3. Mr Awraham’s criminal history;

  4. The Form 1 (details of which are above); and

  5. A Section 166 certificate. I note the charges included on the section 166 certificate are identical to those on the Form 1, save for a charge pursuant to section 16(1) of the Poisons and Therapeutic Goods Act 1966 with respect to alprazolam, and which I note was defective and has been withdrawn.

  1. Exhibit 3 is the Defence Sentencing Bundle in relation to both Commonwealth and State offences. It consists of seven tabs.

  1. At Tab 1 are the defence sentencing submissions, which I will address in further detail later in this judgment.

  2. At Tab 2 there are two reports from forensic psychologist Bradley Jones dated 1 August 2018 and 29 April 2019. The first report of 1 August 2018 details an assessment at Long Bay Hospital. Mr Jones notes that Mr Awraham admitted to his offending. The offender indicated that that Statements of Facts was accurate, although he stated his involvement was to collect the parcel from one location and take the parcel to his home. He was drug dependent at the time, was using up to $2000 worth of cocaine each day and had accrued a drug debt of between $40,000 to $50,000. He said that he possessed the firearm due to that debt, as he was fearful that those to whom he owed the money would try to harm him. He expressed his remorse, and noted that he was in a drug programme in gaol and seeing a psychologist. Mr Awraham reported having a good relationship with his parents, two brothers and his girlfriend (who lives in Victoria). He had a happy childhood. Mr Jones states that, having tried alcohol and cannabis, by the age of 22 years the offender was using approximately 1 g of cocaine a week, which progressively increased until the time of his offending, when he was using approximately 3 g per day. Mr Awraham reported that his incarceration has been good for him, in that he has become drug free. On examination, Mr Awraham was self-critical, and expressed shame and regret. Mr Jones diagnosed Mr Awraham as suffering from ‘Cocaine Use Disorder, severe, in early remission, in a controlled environment’ (DSM-5, 304.20).

  3. Mr Jones notes that Mr Awraham has a ‘strong willingness and motivation to undertake a treatment program in order to address his cocaine use’, which the report suggests is important in reducing his risk of recidivism. Mr Jones also suggests that upon Mr Awraham’s release he should undergo therapy until such time as the treating psychologist or counsellor believes appropriate, for at least a period of 9-12 months.

  4. Mr Jones’s second report dated 29 April 2019, which he produced after a telephone conference with the offender from Parklea Correctional Centre, states that the offender had undertaken two EQUIPS drug treatment programs which he has found beneficial, and he had remained illicit drug-abstinent, ‘in-spite of the extent of illicit drugs available within the gaol environment’. Mr Jones notes that unfortunately the offender’s girlfriend had suffered a miscarriage in July 2018, and that their son was stillborn.

  5. As the offender has remained drug abstinent since the first report was written, Mr Jones revised his diagnosis to indicate that Mr Awraham is now suffering from the following disorder: Cocaine Use Disorder, severe, in sustained remission, in a controlled environment (DSM-5, 304.20).

  6. Mr Jones suggests that Mr Awraham is at ‘low/moderate risk of re-offending and upon his release he would require a low/moderate level of supervision’.

  1. At Tab 3 there is a hand written letter of contrition from the offender. He apologises for his actions, noting his addiction to drugs and the related debt, states that he has learned from his mistakes and says that he wants to become a better person. He asks for a second chance, notes that he will soon be proposing to his partner, and says that he looks forward to a future when he will lead a law-abiding life free from drug addiction. He regrets how much pain he has put his partner and family through and says that he will never forgive himself for the miscarriage his partner experienced. He asks that I take into account ‘how much I’m trying to make my life good again…I have a great family and partner waiting for me – I’ll do anything just to make them happy again’.

  2. At Tab 4 there is an affidavit of the offender’s father, Mr Lewis Awraham, dated 1 May 2019. Mr Awraham Sr says that he observes that his son has calmed down considerably since his arrest, has expressed regret for what he has done and how it has impacted on the family, and has told him that what he did was wrong and will not do it again. He says that he and his wife have mostly gone to visit his son in gaol weekly, driving two hours each way to Lithgow. He states that his brother, Mr Amir Awraham, has offered to support Mr Awraham and his partner Ms Aqualina, by giving them a business loan to set up a beauty salon in Melbourne after his son’s release.

  3. At Tab 5, there is a Remand Addictions Letter of Attendance dated 29 October 2018 which notes that ‘Mr Awraham has been attending Remand Addictions while in custody at Parklea Correctional Centre. Mr Awraham has attended five sessions in total thus far and continually engages and participates in the group discussions. Mr Awraham is keen to continue his participation in programs’.

  4. At Tab 6 there is a letter dated 3 September 2018 from Robyn Rewell, Clinical Nurse Specialist at Drug and Alcohol Long Bay. She reports that Mr Awraham had been seeing her on a regular basis, that he would like to be rehabilitated with respect to his long-term drug habit, that he would like to get back into spray painting in the near future, and says that ‘I have no hesitation in supporting Sargon to go to rehabilitation from custody so he can hopefully stop his drug use and reconnect with the community’.

  5. At Tab 7, there is a Statement of Attainment from TAFE NSW dated 9 January 2019 noting that Sargon Awraham has completed accredited units in:

  1. TLID1001 – Shift materials safely using manual handling methods; and

  2. TLIF1001 – Follow work health and safety procedures.

  1. I note that I have been greatly assisted by the thoughtful submissions of Mr Brummert on behalf of the Crown and Mr Edwards on behalf of the offender.

Crown submissions

  1. The Crown submits that the only appropriate penalty is a custodial sentence, having regard to the nature and objective seriousness of the offences and the paramount need for general deterrence and denunciation of the offender’s conduct.

  1. The Crown says that the court must sentence the offender in accordance with Part 1B of the Crimes Act 1914 (Cth) (the Crimes Act). Part 1B deals with diverse matters applicable in sentencing of a federal offender. The governing principle is the imposition of a sentence that ‘is of severity appropriate in all the circumstances of the offence’: section 16A(1). In addition to other relevant factors, the court must specifically take into account the matters listed in section 16A(2) of the Crimes Act that are relevant and known to the court.

  2. As to the nature and circumstances of the offence (s16A(2)(a)), the Crown says that those matters are set out in the Agreed Statement of Facts, which I have extracted in full above.

  3. As to the role of the offender, the Crown says that a critical consideration for the court is to determine what the offender did in participating in the greater drug importation and distribution enterprise: R v Nguyen & Ors (2005) 157 A Crim R 80. The court should have regard to the role played by the offender and the particular activities undertaken in performing that role: R v To (2007) 172 A Crim R 121 at [141]. Care must be taken to ensure that the shorthand description of the offender’s role does not obscure the assessment of what he actually did: The Queen v Olbrich (1999) 199 CLR 270.

  4. The Crown submitted that the offender was a key player in this particular enterprise, given that he was observed walking around outside the property where the consignment was delivered, that he had a conversation with the driver of a white vehicle that was then seen being driven down the driveway into the property, that the same white vehicle was then observed leaving the offender’s premises, that the consignment was located in the offender’s room, and that the assigned consignment had been cut open to expose the inside of every panel. The Crown submits that the offender’s role was important to the enterprise, that he was the intended final recipient of the consignment, and that he was responsible for its deconstruction and the removal of the secreted cocaine. The offender was distanced from the delivery of the consignment itself and only took possession once it had been signed for by another person, when the risk of discovery by law enforcement might be imagined to be somewhat diminished.

  5. The Crown submitted that the factors set out above indicate that the offender played a trusted role in receiving the imported cocaine, and knew of its particular location so that he could remove the substance. His involvement thus extended beyond that of a mere courier or passive receiver of the drugs. The precise nature of the drug supply enterprise and the role of the offender within that enterprise is not entirely known. The Crown submits that when an offender’s role is not known, the Court is not obliged to find facts favourable to the offender or to accept his or her version of events: The Queen v Olbrich (1999) 199 CLR 270. He says it is a well-established sentencing principle that persons who participate in the illicit drug trade at any level, should expect to receive heavy penalties: R vMuanchukingkan (1990) 52 A Crim R 354 at [356]. I accept this last proposition without qualification. However, I note that in Olbrich, with respect to determining the role of the offender, the majority said at [14]:

However, the utility of such an exercise is necessarily limited by the extent to which the material facts are known. What may be a convenient shorthand method of describing the facts of particular cases should not be elevated to an essential task to be undertaken in every case, regardless of whether that is possible or appropriate.

  1. As to the amount of the drug, the Crown submits that the degree of an offender’s knowledge about what was being imported is a relevant consideration in determining the objective seriousness of the offending: Wong v The Queen; Leung v The Queen (2001) 207 CLR 584 at [64]. In this matter under the Criminal Code Regulations 2002 (Cth), a commercial quantity of cocaine is 2 kg. The offender attempted to possess 2152.27 g (2.15 kg) of pure cocaine. The purity of the drug, which is relevant to the assessment of the objective seriousness of the offence in this case, was high at 72.94%. The offender took possession of the consignment, was aware of its size and weight, and opened the consignment to deal with the inert substance secreted inside. The Crown submitted that he had an understanding of the weight of the drugs and the type of the drugs that had been imported.

  2. As to financial gain, the Crown submits that matters of motivation may bear upon an offender’s moral culpability for an offence and are circumstances of the offence that are relevant in assessing its objective seriousness. In R v Nguyen; R v Pham (2010) 205 A Crim R 106 at [72], it was said that ‘as a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit’. This statement of principle, the Crown submits, applies equally to those who possess or attempt to possess unlawfully imported border-controlled drugs. The Crown submits that the objective seriousness of the offence is greater when an offence of this kind is committed for financial reward.

  3. As to maximum penalty, the Crown submits that it serves as a yardstick and a basis for the comparison between the case before the court and the worst case. The maximum penalty indicates that the offence is objectively very serious and the court should have regard to the maximum penalty and determine the degree by which the offender’s conduct offends, against the legislative object of suppressing the illicit trade in prohibited drugs.

  4. As to general deterrence – section 16A(2)(ja) – the Crown submits that the sentence imposed on the offender must be of such severity that it will act to deter others from engaging in illicit drug activities of this nature. The sentence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment.

  5. Involvement at any level of the drug importation, the Crown submits, must attract a significant sentence or the interests of general deterrence will not be served.

  6. As to the offender’s guilty plea – section 16A(2)(g) – the Crown submits that the Court must take into account that the offender has entered a guilty plea.

  7. The Crown submits that the court can take an offender’s guilty plea into account as a subjective demonstration of the offender’s willingness to facilitate the course of justice, is entitled to take into account the utilitarian value of the guilty plea and that it is desirable for the court to quantify the discount afforded to an offender for his or her guilty plea. In this case the offender was arrested and charged on 23 April 2018. On 8 November 2018, a plea of guilty was entered at Central Local Court and the matter was committed for sentence to the Sydney District Court. The Crown concedes that the offender entered a plea of guilty at an early opportunity and that he is entitled to receive a discount for that fact. I propose to allow a 25% discount for the offender’s pleas of guilty to both the Commonwealth and State offences.

  8. As to the need for adequate punishment – section 16A(2)(k) – the Crown submits that the section emphasises the primary obligation of the court to impose a sentence, or to make an order that is of a severity appropriate to all the circumstances of the offence and to ensure that the person is adequately punished for the offence. The Crown submits that in the circumstances of this case, no sentence other than imprisonment is appropriate.

  9. As to the offender’s character, antecedents and background – section 16A(2)(m) and the offender’s prospects of rehabilitation – section 16A(2)(n) – the Crown notes that the offender is 25 years old and has a criminal history consisting of a conviction for a traffic offence. I find that the offender is young and for all intents and purposes, he has no criminal record of note.

  10. As to mental health and third-party reports, the Crown submits that considerable caution should be exercised, in the absence of evidence from an offender, in relying upon self-serving statements made by offenders to psychologists or psychiatrists.

  11. I note that in this case, at least so far as the offender’s rehabilitation is concerned, there is objective evidence that he has achieved abstinence whilst in custody, and which supports his statements to Mr Jones.

  12. As to the hardship to the offender’s family – section 16A(2)(p) – an offender’s family will only operate as a mitigating factor, the Crown submits, where it is sufficiently beyond the sort of hardship which is inevitably caused to family when a family member is incarcerated. In this case nothing extraordinary is put with respect to hardship.

  13. The Crown submits that the High Court made clear in Hili v R; Jones v R (2001) 242 CLR 520 [at 18], that consistency in federal sentencing is not demonstrated by, and does not require, numerical equivalence.

  14. In oral submissions, the Crown submitted that the primary disagreement between the offender and the Crown is the characterisation of the role that the offender played in the commission of the offence. He noted that the offender told the psychologist Mr Jones that his involvement was purely to collect the parcel from one location and take it to his home. The Crown’s position is that the offender’s role involved more than just being a courier. He knew the address where the consignment was to arrive, and the Crown suggests that it can be deduced from that fact, that there was some level of organisation in getting the consignment. He said that the fact that the police located the large cardboard box and two smaller cardboard boxes on the floor which had been cut open to expose the inside of every panel (contained in the Agreed Facts), is an indicator that the offender did more than just deliver or move the package from where it arrived to where it was destined to go. There was a break in those actions as he cut the package open. The Crown submits that this goes to the role of his offending, and the objective seriousness of the offence.

  15. With respect to the State offences, the Crown submits that when the warrants were executed on the offender’s premises and the inert substance found in his room, the objective seriousness of the State offences was increased by the fact that the firearm was working. It was located next to a magazine containing eight rounds of ammunition. That firearm was located next to a safe that contained a variety of drugs, the details of which are in the Agreed Facts. On behalf of the State, the Crown submitted that the State offences and the Commonwealth offences, although arising from the same instance, are quite separate in the nature of the offending, and on that basis they should not be wholly concurrent. I note that such a concession was made by Mr Edwards on behalf of the offender in his written submissions.

  16. Mr Brummert accepted that the offender showed remorse and contrition, but said that it was limited to how the offences impacted him, his life and his family and that the offender showed no insight into how the offending impacted the greater community. He conceded that the offender had actively pursued drug rehabilitation whilst in custody. Further, the Crown conceded that the offender’s criminal history for all intents and purposes consists of a traffic offence.

Defence Submissions

  1. Mr Edwards, who appeared for the offender, submitted that it is appropriate for a judge to have regard to the entire drug transaction in order to determine the nature and possession of the charge in the circumstances in which it occurred, because without the surrounding context it is not possible to assess the objective seriousness of the possession offence.

  2. Having regard to the broader circumstances or overall context of an offender’s involvement in a drug importation for possession offence, is not inconsistent with the approach the High Court took in Olbrich. Mr Edwards says that the court in Olbrich at [18] emphasised, with reference to the decision in The Queen v De Simoni (1981) 147 CLR 383, the importance of the sentencing judge focusing on the crime charged. Mr Edwards notes that in the present case there is no evidence before the court of any role played by the offender in the actual importation of drugs. There is nothing about the ‘circumstances in which he came into possession of the drugs’ that aggravates the objective seriousness of the offence, which is an attempt to possess a commercial quantity of a border controlled drug, namely cocaine.

  3. Mr Edwards says that section 16A(1) provides that a court determining a sentence for a federal offence must impose a sentence that is of a ‘severity appropriate in all the circumstances of the offence’, but that it must be read in conjunction with section 16A(2): Wong v The Queen [2001] HCA 64 at [71]. That section states that in addition to any other relevant factors, the court must specifically take into account the matters listed in section 16A(2) of the Crimes Act that are relevant and known to the court.

  4. Mr Edwards’s ultimate submission is that the Commonwealth offence falls towards the lower end of the range of objective seriousness, and that the offender has a strong subjective case that would mitigate the penalty that would otherwise be imposed.

  5. With respect to consideration of specific matters relevant to the objective seriousness of the offence, Mr Edwards first submits that in relation to the nature and circumstances of the offence – section 16A(2)(a) of the Crimes Act - there are number of relevant objective factors that go to determining the objective seriousness of the Commonwealth drug offence. They are the role of the offender, the quantity and purity of the drug, the reward that the offender hoped to gain from participation and the importance of deterrence.

  6. As to the role of the offender, Mr Edwards submits that chief in determining the objective seriousness of the Commonwealth drug importation offence is the role and level of criminality of the offender. He accepts that the role of the offender and the level of the offender’s participation in the criminal enterprise are more important than the mere quantity of the drugs involved. He also recognises that the gradation of severity of sentence goes up as the quantity of the drug in question increases: R v MacDonnell (2002) 128 A Crim R 44.

  7. Mr Edwards submitted that the court should accept that the offender’s role was that of a courier, and was limited to collecting the parcel and taking it to his home where it was to be picked up by another person. This is what the offender told Mr Jones at page 2 paragraph 4 of his first report. The explanation provided is consistent, he says, with the evidence in the Statement of Agreed Facts. There is no evidence of the offender’s involvement prior to 11:20 am on 23 April 2018; it involved taking possession of the drugs sometime prior to 5:10 pm and having it in his possession at his home.

  8. Mr Edwards submits that in Tyler v R (2007) 173 A Crim R 458, it was explained that those who occupy a ‘managerial’ or ‘decision-making’ role in the importation process are to be considered more criminally culpable than those who does not exercise this function. It is submitted by Mr Edwards that in the present case there is no evidence that the offender was involved in the managerial or decision-making roles in the importation of a substance and that this is a relevant matter on sentence. I accept the submission that the offender was neither a manager or had a decision making role of great consequence. He further submits that the offender played a role that was consistent with him having a high degree of risk associated with the role. That is, he was directly involved with receiving the delivery of the consignment. He submits that the court should consider it likely that the principals involved in the offence are unlikely to be involved in roles that involve the highest risk of detection, such as that undertaken by the offender. I accept this submission.

  9. Mr Edwards submits that the following matters are also relevant to determining the offender’s role in the commission of the offence:

  1. the offender was no part of an organisation or distribution chain involving narcotic distribution;

  2. the offender did not commit the offence as part of some ongoing business venture;

  3. the offender’s conduct was not one of continuing disregard for the law which would have aggravated the offence and eliminated a submission that the offence was an aberration: Xiao v R [2018] NSWCCA 2 at [153-154];

  4. the offender’s conduct established that the level of planning was minimal and not carried out with a great deal of sophistication; and

  5. the offender has made admissions that he intended to derive profit from the drugs (an aggravating feature) but the court should take into account that the intention was to pay off a drug debt owed to others, rather than to sustain an opulent lifestyle.

  1. It was further submitted that the drugs were not disseminated within the community.

  2. I am unable to conclude what the offender’s actual role was in his attempt to possess the border controlled drug, taking into account the Agreed Facts. I find that he was at least in the position of courier, and that the facts indicate that he was in position of responsibility greater than a mere recruit who, for example, assisted in moving and unpacking a consignment. He knew when the consignment was delivered, as he was observed outside the Derwent Place premises some hours after the consignment was delivered, and he then went to his home and unpacked the consignment.

  3. As to the quantity and purity of the drug, Mr Edwards says that for the Commonwealth offence, the relevant quantity refers to the pure weight of the narcotic, and the total criminal liability of a person charged with Commonwealth importation offences should only be measured by the pure quantity of the amount of the drug. It was submitted that both Parliament and the courts have eschewed the approach that penalties should be proportional to quantity. Under the Criminal Code Regulations 2002, Schedule 3 provides that a commercial quantity of cocaine is 2 kg. The current offence involves 2.152 kgs, which Mr Edwards submits is barely above the commercial quantity, which is a significant factor in determining the objective seriousness of the offence.

  4. As to financial gain, Mr Edwards submits that the amount of the reward against the background of the offence is an important factor in assessment of objective gravity.

  5. Mr Edwards notes that the offender made admissions at page 2, paragraph 1.1 of the report of Mr Jones dated 1 August 2018, that he intended to use the profit he intended to derive from the drugs to finance his drug debt which was in the vicinity of $40,000-$50,000. He concedes that the offender intended to significantly profit from his possession of the drugs.

  6. Whatever the offender’s role, I note that general deterrence is particularly significant in sentencing offenders who involve themselves in offending of the present type. Involvement at any level may attract a significant sentence and individual circumstances may carry less weight than they otherwise would do[1] . The effects of illegal attempted drug possession of this type in our community is such that persons considering committing such attempted drug possession offences, motivated as they often are by the profits that can be derived, should be aware that they will be punished if they choose to participate in the attempted possession of prohibited drugs. I note that similarly, the dangerousness of firearms possession is such that it too warrants severe punishment to reflect a very significant degree of general deterrence. So far as specific deterrence is concerned, to the extent that this is a relevant factor in the present sentencing exercise, I am satisfied that the penalty I will shortly impose upon the offender will address the need for specific deterrence. There can be no doubt that the protection of the community is an important factor in sentencing offenders who commit offences involving attempted drug possession and the possession of firearms.

    1. DPP (Cth) v Thomas [2016] VSCA 237.

  1. I find that the objective gravity of the Commonwealth offence is in the low midrange.

  2. As to the consideration of specific matters relevant to the objective seriousness of the State offences, Mr Edwards accepted that the section 7(1) Firearms Act offence is objectively serious, and that a degree of accumulation is required to adequately reflect the objective seriousness of that offence. The offence is aggravated by the fact that the ammunition was found with the firearm. The fact that the firearm was found in the home of the offender, rather than in a public place where it could be accessed by others, he submits is a relevant matter to take into account on sentence. In Do vR [2010] NSWCCA 182, the offender was in possession of a loaded and unsecured pistol in an urban area. The possession of the pistol created a high risk to the safety of the public and arresting officers, even though it was not used. Mr Edwards submits that an offender’s criminality is more serious where he or she possesses a firearm as part of their involvement in crime, such as trading and illegal drugs. He submits that the court would find that the offender’s explanation that he had the firearm because he was frightened as he owed a considerable drug debt, does not fall into this category, and that he did not have a firearm to facilitate the commission of these offences.

  3. As to specific deterrence, Mr Edwards submits that in R v Stanford [2007] NSWCCA 73, the court concluded that personal deterrence and the protection of the community had little if any part to play in the determination of an appropriate sentence when there was a demonstrated rehabilitation, as is demonstrated here.

  4. In relation to the firearms offences, the message from Parliament is clear: possessing or using prohibited firearms without being authorised to do so is to be punished heavily based upon the inherent dangers associated with firearms. This is clear when one appreciates the maximum penalty of imprisonment for 14 years and the standard non-parole period of imprisonment for 4 years for contravention of section 7(1). The fact that the firearm was possessed in a broader context where the offender was involved in the supply of drugs increases the objective gravity of both the firearms offences and the supply offence of section 25(1) of the DMTA. I accept that there was no direct evidence of any correlation between the possession of the firearm and the supply. I find that possessing the firearm in the household, perhaps as a means of security, is indicative of some link between the possession of those firearms and the offender’s drug supply activity and his addiction in the scheme of things. In saying this, this connection does not operate to increase the objectivity gravity of the offences in anything other than a very limited contextual way, and certainly not in the same way as would have been the case had there been direct evidence of the offender possessing the firearms in connection with a specific drug supply activity.

  5. As to general deterrence, in Thorn v R (2009) 198 A Crim R 135, the court found that where there is demonstrated rehabilitation and delay, general deterrence will play a much lesser role in the sentencing exercise.

  6. Mr Edwards submits that since the offender’s arrest he has done everything that he can to try and rehabilitate himself, and has successfully demonstrated rehabilitation to the extent that the principles of personal and general deterrence have less weight. I note my comments above with respect to general and personal deterrence.

  7. The firearm was located with ammunition but was not loaded. In the context in which the offender and his premises were involved with the supply of prohibited drugs, the fact that he had a working pistol and ammunition to be in his premises – and not in the safe nearby – for whatever reason, is a very serious matter. It goes without saying that a working firearm near to ammunition is extremely dangerous. Having said that, I assess this offence as being below the midrange.

  8. As to the subjective matters to be taken into account pursuant to the provisions of the Crimes Act and the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act), Mr Edwards says that the offender has not only expressed his guilt and remorse (see page 2, paragraph 5 of the report of Mr Jones dated 1 August 2018), but his actions in engaging in rehabilitation support a finding that he is genuinely remorseful and genuinely desires to effect change in his life: section 16A(2)(g) and section 21A(3)(i).

  9. With respect to his plea of guilty, Mr Edwards invites the court to consider providing the offender with a 25% discount for the utilitarian value of the plea although no specific discount is mandated: section 16A(2)(g) and section 21A (3)(k). I have already made such a finding.

  10. As to character – section 16A(2)(m) and sections 21A(3)(e) and (f) – Mr Edwards notes that the offender has a limited criminal history and only has driving-related matters as an adult. I accept this submission.

  11. Mr Edwards also notes that the offence was an isolated incident, which provides the court an opportunity to allow additional leniency as a result of the offender’s character. He submits that the offending is out of character for the offender and this should be taken into account when deciding on his sentence.

  12. As to the offender’s prospects of rehabilitation/likelihood of reoffending – s16A(2)(n) and ss21A(3)(h) and (g) – Mr Edwards invites the court to give considerable weight to the offender’s demonstrated rehabilitation, lack of past offending and family support. According to Mr Jones, forensic psychologist, he has ‘greater insight into the basis of his offending behaviour and illicit substance abuse. He also reported a strong willingness and motivation to undertake a treatment program in order to address his cocaine use, and this is an important element for the reduction of his risk of recidivism and successful treatment outcome’. Mr Edwards reminds me that this opinion was given prior to the offender participating in the EQUIPS drug treatment program. The offender has been assessed by Mr Jones as being at a low to moderate risk of reoffending.

  13. Mr Edwards says that it is clear that the offender is at a crossroads in his life. His conduct since the commission of the offence also establishes that he is unlikely to reoffend. As such he has reformed himself and the court is invited to extend additional leniency as a result. In R v Robinson [2014] NSWCCA 12, the court found that it was within the discretion of the court to extend leniency where that leniency may lead to reform. The court stated at [56]:

There must always be a place for the exercise of mercy where judges’ sympathies are reasonably excited by the circumstances of the case. There must always be a place for leniency which has traditionally been extended even to offenders with bad records when the Judge forms the view almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.

  1. Mr Edwards submits that as a consequence of the quantity involved, it is difficult to find a large number of comparable cases. He submits that the following cases involve comparative principles and would assist the court in determining an appropriate sentence. He refers to R v Karan [2013] NSWCCA 53, and R v Aaron Tran [2013] NSWCCA 136 (with respect to the sentence of Mr Aaron Tran). He further submits that even a single comparable case can be of some assistance in determining an appropriate range if there is a statement of principle relevant to the present case. He points to paragraph 45 of the judgment in Aaron Tran that he says will assist the court in determining an appropriate range.

  2. Mr Edwards submitted that the court would find special circumstances in relation to the State offences before the court, for reasons already stated. These are all factors that can be taken into account when determining whether special circumstances exist, and also to determine the appropriate ratio in respect of the Commonwealth offence.

  3. In oral submissions, Mr Edwards said that I am bound to consider the Agreed Facts as true, and to the extent that there is any inconsistency with those facts and others contained in any other material I am to disregard those factual assertions. However, he submitted that there is not in effect any factual assertion made by the offender to the psychologist that is inconsistent with the Agreed Facts. Opening the package, he submits, is not inconsistent with those facts, and one might expect that if one was obtaining a package that involved a substantial amount of what one knew to be an imported illegal drug, one might cut it open to see that it is there.

  4. With respect to remorse, Mr Edwards says that the offender does not clearly articulate being sorry for what he did to the community, the dangers of drugs and the detrimental effect that drugs had on members of the community. What he tells the report writer Mr Jones at paragraph 5 is that ‘it’s fucked up what I did’, which is how he articulates himself, and Mr Edwards submits that I can directly infer that he has taken responsibility for his harm to the community. He notes that the letter of apology by the offender was drafted by him, and not counsel. Mr Edwards also relies upon the fact that the offender has a great deal of family support.

  5. As to whether or not the sentences ought to be accumulated or concurrent, Mr Edwards says that whilst the Commonwealth offence is the most serious, the unauthorised firearm offence is also serious. He submitted that there ought to be a degree of accumulation at least with respect to that offence. He says however, that I would not take the firearms offences into account when determining the objective seriousness of the drug offence. The firearm offence is aggravated by his possession of it, with some contemplation of possibly having to use it as he was in fear of the enforcement of a debt, and by the fact that there was ammunition proximate to the firearm. I note here that this does not appear in any of the facts, but on one view it was against the offender’s interest to disclose an aggravating feature. On the other hand, it explains why he possessed the firearm. As Mr Edwards said in oral submissions, he could have said that ‘my grandfather gave it to me years ago and I have left it there’.

  6. Mr Edwards further submitted that the absence of any information before me or any evidence before me of the offender’s involvement in the importation is a matter that I can take into account when determining where it sits in the level of objective seriousness.

  7. As to the case of Karan, which was provided to me, Mr Edwards distinguished it on the basis that it involves significantly more drugs, being 3173 kg in that case. That case involved a fairly similar role with the exception of the fact that Mr Karan recruited others in order to facilitate the attempted possession of those drugs. He submitted that it was not an insignificant matter that there was recruitment of two other persons. In that case, in which the respondent pleaded guilty to aid and abet an attempt to possess a commercial quantity of cocaine, the circumstances were different in some material respects, and Adamson J found that a figure of seven years was a minimum starting point.

  8. Mr Edwards submitted that the matter of Aaron Tran most applies to this case. In that matter, Mr Tran was involved in the couriering and unpacking of the drugs. He was involved for a relatively short period of time, which is submitted to be the only available evidence in this case. He points to paragraph 26 of the judgment, where there are a series of subjective features of that offender which have resonance with the present case. First is that he was a young man. Second there is his remorse and his impressive references. Third he has close family ties. Fourth Mr Edwards submits that there is a context of dependence on cocaine at the time of the offending, and now there are good prospects of rehabilitation. Here Mr Edwards submits that there is demonstrated progress of rehabilitation, which is a very significant consideration. In Tran’s case, he was sentenced to a term of imprisonment of four years and six months to be released after serving two years and nine months pursuant to a recognizance release order. In Tran’s case, the drug was heroin, and the weight was 6.25 kg, which was in excess of four times the commercial quantity for heroin. In Mr Edwards’s submission, in terms of both the role and subjective features, with the important distinction being the demonstrated rehabilitation, Tran’s case is the most comparable. Furthermore, in that case the objective seriousness of the quantities was very different. I note in Tran’s case, unlike the present, the offender (who was 20 years of age) gave evidence and was cross-examined. The judge found that he had a good school and work record, that he had impressive references and that his prospects of rehabilitation were good given his level of education and his history of employment.

Sentencing Approach

State sentencing provisions

  1. The purposes of sentencing are expressed in s3A of the Sentencing Act. They include: ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender’s rehabilitation, making an offender accountable for his or her actions, denouncing an offender’s conduct and recognising the harm done to victims of an offence in the community.

  2. 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 [2] . 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.

2. Veen v The Queen [No 2] (1988) 164 CLR 465 [at 476-477].

  1. 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 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.

  2. Matters adverse to an offender must be proved beyond reasonable doubt whilst those favourable to an offender need only be proved on the balance of probabilities. The firearm offence is aggravated by the offender’s possession of it, with some contemplation of possibly having to use it, as he was in fear of the enforcement of a debt, and by the fact that there was ammunition proximate to the firearm. There are a number of mitigating matters (all noted above) that come into play as referred to in s21A(3) of the Sentencing Act.

Plea of Guilty – s21A(3)(k)

  1. I have already noted that I accept that there has been an early plea of guilty, and that the offender is entitled to a discount of 25%. I will indicate the quantitative effect of that discount on the sentence further below.

Remorse – s21A(3)(i)

  1. The offender has demonstrated some insight into his offending behaviour: see the reports of Mr Jones, where the offender acknowledges that ‘it is all fucked up what I did’.

  2. I am satisfied that the offender has expressed some remorse, albeit broad and limited.

Rehabilitation – s21A(h)

  1. I am satisfied that the offender has made inroads into his eventual rehabilitation since his incarceration, which is much to his credit. The court hopes that he will remain abstinent throughout his incarceration for his benefit, and the benefit of the community and his family. I have taken into account the prospects of his eventual rehabilitation as a mitigating factor.

Absence of a significant record of previous convictions – s21A(3)(e)

  1. While the offender has an extensive juvenile history, he does not have a record of previous convictions as an adult of any significance. Apart from the offending in question, the offender only has one other conviction, that offence being a driving offence. For all intents and purposes, the offender has a clean record. I take this into account as a mitigating factor.

Totality

  1. 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. [3]

    3. Mill v The Queen (1988) 166 CLR 59 at [63].

  2. In Cahyadi v R [2007] NSWCCA 1 at [27], the NSWCCA said the following regarding the principal of totality:

… there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.

  1. This in turn requires consideration to be given to whether the sentences to be imposed for each offence should be concurrent or cumulative. I also take into account the matters on the Form 1, and I have carefully considered section 33 of the Sentencing Act and the judgment of Spigelman CJ in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002 [2002] NSWCCA 518 at [39]–[42]. This has the effect of increasing the sentence that would otherwise have been imposed for the principal offences, although I note that in this case that effect is marginal.

  2. Of three offences, the two firearm offences overlap entirely and point toward concurrency of sentence with one another, as they arose out of the same ‘episode’. I note that a sentence must not be concurrent simply ‘because it may be seen as part of the one course of criminal conduct’[4] . The question for me is whether or not the offence of drug supply can be encompassed in the sentence of the firearms offences. As to the offence of drug supply, I find that whilst it is discrete from the firearms offences, they were found in the same location and I find that their criminality is closely related. Furthermore, submissions were made about accumulation with respect to the Commonwealth offence and the section 7(1) Firearms Act offence. No submissions were made, either by the Crown or the offender, as to whether or not there should be any accumulation with respect to any of the other State offences. As will become apparent, I have determined that there should be some accumulation between the Commonwealth offence and the State offences, which was agreed between the parties.

    4. R v Jarrold [2010] NSWCCA 69 at [56].

  1. In all of the circumstances, I am of the view that the terms of imprisonment with respect to the State offences should be served concurrently with one another. As I have said, taking into account the seriousness of the Commonwealth offence and the section 7(1) Firearms Act offence, and the submissions of the Crown and the offender, I find that there should be some accumulation between the Commonwealth and State offences.

Standard Non-Parole Period

  1. Given the terms of s44(2) of the Sentencing Act, I indicate that my reasons for deviating from the standard non-parole period (which is imprisonment for 4 years for the s7(1) Firearms Act (NSW) offence) are the special circumstances that the offending was below the mid-range of objective seriousness and the subjective factors favouring the offender, including his age, his good behaviour as an adult relative to his juvenile history and his prospects of rehabilitation. He has demonstrated significant efforts at rehabilitating himself. He will require assistance to comply with any treatment program. My finding of special circumstances results in a ratio of 67% for the Commonwealth offence and 64% for the State offences.

sentence

  1. I have taken into account the various purposes of sentencing under s3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) that I referred to earlier in this sentence.

  2. Having had regard to s5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and having considered all possible alternatives, I am of the view that no penalty other than imprisonment is appropriate.

  3. In determining an appropriate sentence I have kept in mind the two legislative guideposts: the maximum penalties, which are imprisonment for 14 years, 14 years and 18 years respectively, and the standard non-parole period of imprisonment for 4 years in relation to the section 7(1) Firearms Act offence.

  4. As I am satisfied that no alternative other than a sentence of imprisonment is appropriate, and having considered all of the matters I have referred to in this sentence, I impose sentences of imprisonment as follows, to be served concurrently. I note that I have backdated the sentences to commence on 23 April 2018, which is the date the offender was taken into custody:

  1. For the offence of possessing an unauthorised pistol, contrary to section 7(1) of the Firearms Act 1996, after applying a discount of 25% for the plea of guilty, I impose a head sentence of 3 years, with a non-parole period of 1 year 11 months. The sentence is backdated to commence on 23 April 2018, the date on which the offender was taken into custody. The non-parole period expires on 22 March 2020, and the head sentence expires on 22 April 2021.

  2. For the offence of possessing an unregistered firearm, contrary to section 36(1) of the Firearms Act, after applying a discount of 25% for the plea of guilty, I impose a sentence of 18 months. That sentence is backdated to commence on 23 April 2018, the date on which the offender was taken into custody and will expire on 22 October 2019.

  3. For the offence of supplying prohibited drug (MDMA) contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985, after applying a discount of 25% for the plea of guilty, I impose a sentence of 2 years and three months. That sentence is backdated to commence on 23 April 2018, the date on which the offender was taken into custody and will expire on 22 July 2020.

Sentencing Approach

Commonwealth sentencing provisions

  1. The sentence to be imposed upon the offender is to be determined in accordance with Part 1B of the Crimes Act. In sentencing an offender, the court is required to have regard to the matters set out in Part 1B of the Crimes Act 1914 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. It is not intended that Part 1B cover the field and is not intended to operate as a code.

  2. Section 16A(1) of the Crimes Act states that:

In determining the sentence to be passed, or the order to be made… A court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

  1. The section 16A(1) sentencing obligation has been referred to by the Western Australian and New South Wales Courts of Criminal Appeal as the ‘primary obligation’. It is specifically set out in section 16A(1), before the non-exhaustive list set out in section 16A(2), and is reinforced in section 16A(2)(k), which requires the court to take into account the need to ensure that the offender is ‘adequately punished for the offence’.

  2. Section 16A(2) of the Crimes Act provides a non-exhaustive ‘checklist’ of the matters which the court must take into account if relevant and known to the court in the sentencing of federal offenders.

  3. Section 16A(2) makes clear that this checklist is not a catalogue of considerations which is exclusive of other relevant considerations. Each consideration is in addition to any other matters which are relevant on the question of sentence. In determining the appropriate sentence, the court must also have regard to the nature and severity of any conditions that may be imposed on, or may apply to, the offender under that sentence: section 16A(3) of the Crimes Act. I have referred to section 16A(2) matters already.

  4. Section 17A of the Crimes Act provides that a court shall not pass a sentence of imprisonment in respect of a federal offender, unless the Court, having considered all available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.

  5. In this matter, with respect to the Commonwealth offence, I am satisfied that no other sentence other than imprisonment is appropriate in all of the circumstances. No submissions were put otherwise.

S16A(2)(a) The nature and circumstances of the offence

  1. The findings of fact upon which the matter proceeds to sentence must be available from the evidence produced on sentence. If there is conduct that would aggravate the offending and lead to a greater penalty, then that conduct must be proved beyond reasonable doubt. If there are circumstances that a sentencing judge proposes to take into account in favour of the offender, it is enough if those circumstances are proved on the balance of probabilities. If findings cannot be made to the requisite standard on a particular issue agitated by the Crown or the offender, then the court must proceed to sentence on the objective facts proved by the evidence.

  2. In this case, the nature of the offending and the circumstances in which it was committed are set out in the Agreed Facts. The possible two points of departure are evidence about the role of the offender and evidence about the offender’s reason for possession of the firearm. As to the latter, I accept the offender’s explanation on the balance of probabilities that he kept the firearm because he was in fear of repercussions with respect to his drug debt. As I have said, this does not assist the offender on sentence with respect to the State offences.

  3. As to his role in the offending, I re-iterate what I have said above, that I am unable to precisely conclude what the offender’s actual role was in the attempt to possess the border controlled drug, taking into account the Agreed Facts. I find that he was at least in the position of a courier, and that the facts indicate that he was in position of responsibility greater than a mere recruit who assisted in moving and unpacking the consignment. On that basis alone, this case is distinguishable from Aaron Tran.

SENTENCE

  1. For the offence of attempting to possess a commercial quantity of a border control drug, namely cocaine, contrary to section 11.1 and section 307.5(1) of the Criminal Code 1995, after applying 25% discount for the plea of guilty, I impose a head sentence of 7 years 6 months, with a non-parole period of 5 years and 15 days commencing from 23 October 2019. The head sentence will expire on 22 April 2027 and the non–parole period will expire on 6 November 2024.

ORDERS

  1. You are convicted of the offences of possessing an unauthorised pistol, contrary to section 7(1) of the Firearms Act 1996, possessing an unregistered firearm, contrary to section 36(1) of the Firearms Act 1996, supply of a prohibited drug (MDMA) contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985 and attempting to possess a commercial quantity of a border control drug, namely cocaine, contrary to section 11.1 and section 307.5(1) of the Criminal Code 1995.

  2. For the offence of possessing an unauthorised pistol, contrary to section 7(1) of the Firearms Act 1996, after applying a discount of 25% for the plea of guilty, I impose a head sentence of 3 years, with a non-parole period of 1 year 11 months. The sentence is backdated to commence on 23 April 2018, the date on which you were taken into custody. The non-parole period expires on 22 March 2020, and the head sentence expires on 22 April 2021.

  3. For the offence of possessing an unregistered firearm, contrary to section 36(1) of the Firearms Act, after applying a discount of 25% for the plea of guilty, I impose a sentence of 18 months. That sentence is backdated to commence on 23 April 2018, the date on which you were taken into custody and will expire on 22 October 2019.

  4. For the offence of supplying prohibited drug (MDMA) contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985, after applying a discount of 25% for the plea of guilty, I impose a sentence of 2 years and three months. That sentence is backdated to commence on 23 April 2018, the date on which you were taken into custody and will expire on 22 July 2020.

  5. For the offence attempting to possess a commercial quantity of a border control drug, namely cocaine, contrary to section 11.1 and section 307.5(1) of the Criminal Code 1995, after applying a 25% discount for the plea of guilty, I impose a head sentence of 7 years 6 months, with a non-parole period of 5 years and 15 days commencing from 23 October 2019. The head sentence will expire on 22 April 2027 and the non–parole period will expire on 6 November 2024.

  6. The period of accumulation is 18 months.

  7. The overall effective sentence I impose consists of a non-parole period of 6 years, 6 months and 15 days commencing from 23 April 2018, and a head sentence of 9 years. You will become eligible to be released on parole on 6 November 2024.

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Endnotes

Decision last updated: 22 July 2019

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R v To [2020] NSWDC 923
Awraham v R (Cth) [2021] NSWCCA 241
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Statutory Material Cited

9

R v Olbrich [1999] HCA 54
R v To [2007] NSWCCA 200
R v Olbrich [1999] HCA 54