R v Azabal

[2019] NSWDC 523

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Azabal [2019] NSWDC 523
Hearing dates:	7 June 2019, 28 June 2019
Decision date:	28 June 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	See [31] – [39]
Catchwords:	CRIME – Drug offences – state and federal offences – offence committed on bail - supply cocaine – attempt to import ketamine – import cocaine – use of dark web and crypto currency - summary of other sentences involving dark web importations. SENTENCING – relevant factors on sentence – early plea - offences committed while on conditional liberty – pro social support – lessons of custody learnt – drug addiction and gambling not mitigating factors – use of other decisions – general deterrence.
Legislation Cited:	Crimes Act 1914 (Commonwealth) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Code 1995 (Commonwealth) Drug (Misuse and Trafficking) Act 1985 (NSW)
Cases Cited:	Dunning v The Queen [2018] TASCCA 21 R v Blackman and Walters [2001] NSWCCA 121 R v Damien Thomas [2017] VCC 1060 R v Jewel Griffiths (Western Australia District Court, Judge Burrows, 8 February 2019) R v Mead [2017] NSWDC 1 Siwek [2017] NSWCCA 178. Tran v Western Australia [2019] WASCA 50
Category:	Sentence
Parties:	Michael Richard Azabal (the offender) Director of Public Prosecutions - NSW Director of Public Prosecutions - Commonwealth
Representation:	Solicitors: Mr N McCarthy (for the offender) Ms K Zielinski (for the Director of Public Prosecutions - NSW) Ms C Brain (for the Director of Public Prosecutions – Commonwealth)
File Number(s):	2018/00008303; 2018/00243705 (Commonwealth)
Publication restriction:	Non publication order applies to a portion of the transcript of 28 June 2019.

SENTENCE – EX TEMPORE REVISED

1. During the hearing of this matter I made a suppression order. The suppression order relates only to the discussion between myself and the bar table about matters referred to at [16] below. It does not apply to anything that I am about to say.

BACKGROUND

2. On 9 November 2017 police arrested Kayn Murray in possession of cocaine and MDMA at the Illawarra Hotel, Wollongong. An analysis of Murray’s phone indicated his supplier was Michael Azabal. Agreed facts before the Court allow it to be concluded that between 6 October 2017 and 4 November 2017 Azabal supplied Murray with 23 grams of cocaine; generally one to two grams at a time at a price of $250 per gram but with two transactions involving either five or six grams. The price for the larger amounts was $200 per gram.

3. Azabal was arrested on 9 January 2018. He admitted to being a drug user who would at times purchase for supply to others but he denied supplying to Murray. He was given conditional bail. One important and implicit condition of a grant of bail is that the person be of good behaviour.

4. On 2 July 2018 an international mail parcel arrived in Australia addressed to Azabal’s home in Barrack Heights, where he lived with his parents. The parcel was intercepted by Australian Federal Police. In it was 157 grams of cocaine, pure weight 138.96 grams.

5. Further police investigations revealed a similar parcel had been sent and received by Azabal on 27 June 2018. Azabal was arrested on 8 August 2018. His phone was examined. It showed he had been tracking both parcels, which had been ordered via the Internet but paid for with crypto currency via what is known as the dark web.

6. A photo of the 27 June 2018 parcel and consignment details were found, as were photographs of what is alleged to be ketamine and messages indicating that Azabal was in possession of drugs, including 250 grams of Ketamine. There were some differences in evidence between the agreed facts and the accused’s version of events as to what exactly the powder was but I sentence on the basis that it involved an attempt to import 250 grams of Ketamine. The Commonwealth Crown concede that the purity of that drug cannot be assessed for the obvious reasons that it was not recovered.

7. Azabal as a consequence of his criminal activity now faces sentence for three offences: Supplying an indictable quantity of a prohibited drug, cocaine, s 25(1) Drug (Misuse and Trafficking) Act 1985 (NSW); maximum penalty 15 years; Importing a marketable quantity of the Border Control Drug Cocaine, s 307.2(1) Criminal Code 1995 (Commonwealth): maximum penalty 25 years imprisonment and or a large fine: Attempt to import a marketable quantity of the Border Control Drug Ketamine s 307.2(1) and 11.1 of the Criminal Code, maximum penalty 25 years imprisonment and or a large fine.

8. Although he made no admissions on arrest, Azabal indicated that he would plead guilty to these charges while he was in the Local Court. He has been in custody since his arrest on the Commonwealth matters on 8 August 2018 and these sentences should date from that date.

SERIOUSNESS

9. Appropriate attention must be given to the maximum penalties for each matter. They are important guides to the exercise of my sentencing discretion. They indicate the seriousness with which both State and Federal Parliaments view the importation and distribution of illicit drugs into our community. It is not my place to give this offender a lecture but it is notorious that the sale and consumption of illicit drugs causes harm not just to users and their families but more generally to the community; not the least being the harm caused by the distribution of the illicit profits, criminalisation of drugs allows some people to make.

10. So far as the importations are concerned, in addition to the role of the offender, the amount of drug involved is important, although not determinative, of the seriousness of each offence. For Federal offences: the trafficable quantity of cocaine is 2 grams and the commercial quantity 2 kilograms; the marketable quantity of Ketamine is 3 grams and the commercial quantity is 1 kilogram. Azabal was the sole importer or trader in his own small business. That business involved some planning. There was deliberate concealment by use of his special skills and necessary equipment to access and use the dark web. He also showed a degree of naivety by his use of his own address and the leaving of photographs on his phone. The offences for obvious reasons were not isolated and in all probability would have continued had he not been arrested on 8 August.

11. It is submitted that the Commonwealth offences had a degree of defiance or brazenness about them. While I appreciate that some might think that, I prefer to accept that the offender simply did not think through the consequences of his actions. He showed a degree of naivety as to the very serious crimes and criminality in which he chose to involve himself.

12. He was similarly naïve in the State offence as he dealt with Murray by way of text messages, which were recovered by police. For the State offence the trafficable quantity of cocaine is 3 grams and the commercial quantity 250 grams. He had sourced illicit drugs and then sold them on to the person who was supplying them to end users.

13. It would appear, from all the evidence before me that the offender was himself a drug user and that his crimes were committed in part to fund his own habit. However, in evidence, he also admitted that he was expecting to make a profit and that some of that profit was used for gambling and other purposes including mixing with friends who actively engaged in drug use.

14. It is accepted that only a custodial sentence could meet the purposes of punishment from both State and Federal offences. It is also accepted there must be some accumulation of penalty and some reflection for the aggravating feature that the State offence was committed while in breach of a bond to be of good behaviour. And the Federal offences continued after the offender was admitted to bail.

15. On the other hand, early pleas of guilty and cooperation with course of justice requires recognition by my reducing the otherwise appropriate penalties by a proportion, here 25%. Because there will be some accumulation, care must also be taken to ensure that reduction of penalty for those specific offences is not eroded by the process of accumulation.

COOPERATION

16. Matters were raised in discussion relating to s 23 Crimes (Sentencing Procedure) Act 1999 (NSW) and s 16A(2)(h) Crimes Act 1914 (Commonwealth). They were not pressed but there is evidence that in the past the offender was himself a victim of crime and that he assisted police as any victim of crime would be expected to do. The material indicates that he has some capacity to live a pro‑social life and has some pro‑social values.

17. There is a sentence assessment report before the Court: exhibit C. The author finds that there is some insight shown by the offender into his offending behaviour. The offender said to me, in his evidence on 6 June 2019, that he has had time to think and reflect upon the consequences of his crime.

18. Azabal was born in 1990. He has strong pro‑social family support. He has been employed most of his adult life. He has been in trouble before, serving Community Service Order in 2011 for a serious driving offence. He was on a bond for domestic violence offences from April 2017 to April 2018.

19. He reports problems with anxiety and depression and the use of illicit drugs to self-medicate. He said that he had a gambling problem and that he succumbed to peer pressure to use his dark web skills. He has acknowledged the wrongs of his actions and said his time in custody has enabled him to see how serious his crimes are. Any such assertions have to be taken with the proverbial grain of salt because he has to be tested in the community, as Ms Brain for the Commonwealth DPP, in her submissions, points out.

20. Past behaviour is a good indication of future behaviour. He was placed on conditional bonds and conditional bail and he breached those obligations to the Court. He has to now understand the consequence of breaching parole is that he will be returned to custody. He has to understand that should he re‑offend his past record will stand very much against him.

21. He says he is now drug free and significantly healthier; having lost 17 kilograms while he was in gaol. He expressed appropriate remorse and pledged not to reoffend. Those pledges were made in front of family and friends who have come today to support him. The references to which I have received indicate he has and will continue to have that support and he has work available to him on release: exhibit 2

22. In evidence he told me how easy he found organising the importations to be and how at the time he just always wanted to be “on coke”. He said his gambling needs clouded his judgment. He said he only distributed the drug for sale within a tight circle of friends and did so to cover costs, his drug use and gambling expenses. That may be so but his distribution of the drugs imported, as the State offence indicates, led to the person he provided to, selling to others, He was aware that the drugs that he was providing were going outside that tight circle.

23. On the other hand his solid plans for the future and the lessons that are meant to be taught by gaol appear to have been learnt. It needs to be stressed that the need to acquire funds to purchase illicit drugs or the need to acquire illicit drugs because someone has an addiction to them is never an excuse to commit any offence and is not of itself a matter of mitigation. It can explain why a person with such strong support from his family and friends came to commit these offences. It is relevant as a subjective circumstance and particularly when it comes to my consideration of his prospects for recidivism and or rehabilitation.

24. Similarly, while a gambling addiction may explain why the offender needed funds it generally does not warrant the extension of leniency but again in the efforts taken to overcome a gambling addiction can reflect favourable prospects for rehabilitation. The authorities in relation to those matters were recently summarised in Siwek [2017] NSWCCA 178.

25. Ms Brain, for the Commonwealth Director, provided helpfully a summary of first instance sentences where drugs were imported utilising the dark web:

Summary of cases involving use of the ‘dark web’

Dunning v The Queen [2018] TASCCA 21

Charges

2 x attempting to import a marketable quantity of a border controlled drug contrary to ss 307.2(1) and 11.1(1) of the Criminal Code 1995 (Cth)

1 x trafficking controlled substances contrary to s 12(1) Misuse of Drugs Act 2001 (Tas)

Sentence

6 years imprisonment with a non-parole period of 3 years and 6 months for the Commonwealth offences; 18 months imprisonment for the State offence to be served concurrently.

An appeal against sentence was dismissed.

Brief summary

The offender imported MDMA and amphetamine over a period of just over 5 months - Early plea of guilty - offender had been both using drugs and selling drugs in relatively small quantities to others - impossible to determine the regularity of the transactions or the likely profit - drugs imported through use of a website that provided software enabling the offender to mask his IP address - rudimentary attempt’ to disguise the contents of the packages, but they were addressed to the offender - other aspects of his conduct indicated a degree of sophistication including use of covert websites, masking software and Bitcoin.

- offender was 21 - a ‘tumultuous’ schooling and home life as a child - some prior convictions, - sentencing Judge found ‘little evidence of a true commitment to rehabilitation beyond a desire to avoid the consequences’ likely to flow from the sentence.

Tran v Western Australia [2019] WASCA 50

Charges

1 x attempt to possess a prohibited drug, namely MDMA with intent to sell or supply contrary to s 6(1)(a) and s 33(1) Misuse of Drugs Act 1981 (WA)

1 x being in possession of a thing capable of being stolen, namely $2280 contrary to s 417(1) Criminal Code (WA)

Sentence

4 years imprisonment on the attempt to possess charge and 3 months imprisonment on Count 2. Offender had been on a ‘suspended imprisonment order’ at the time of the offending and was also ordered to serve the whole of the 12 month term that had previously been suspended.

Total term of 3 years and 2 months for the Commonwealth offences. Total effective sentence of 2 years, 8 months with a non-parole period of 1 year and 10 months.

Brief summary

An appeal against sentence was dismissed.

The Offender imported a parcel containing MDMA via the Dark Net. It was addressed to his home address - the MDMA was intended for sale to the offender’s circle of friends and acquaintances for the purpose of defraying the costs associated with his own drug use. The Sentencing Judge referred to the use of the dark net as increasing the difficulty in detecting the offending and demonstrating a degree of calculation and organisation. The Sentencing Judge found that the offending was not an isolated act.

Offender was 25 years old - close supportive family - recreational user of MDMA. - not remorseful and had not accepted responsibility for his offending.

R v Mead [2017] NSWDC 1 (Haesler DCJ)

Charges

• 2 x import prohibited tier 1 goods (steroids) contrary to s 233BAA(4) Customs Act 1901 (Cth) with 3 x further offences against the same provision taken into account on a s 16BA Schedule

• 1 x import border controlled drug contrary to s 307.4(1) Criminal Code 1995 (Cth) with 1 x further offence against the same provision taken into account on a s 16BA Schedule

• 1 x deal in proceeds of crime worth $50 000 or more contrary to s 400.5(1) Criminal Code 1995 (Cth)

• 1 x produce false or misleading documents contrary to s 137(1) Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth)

• 1 x receiving a designated service using false customer name contrary to s 140.1(1) Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth)

• 1 x manufacture prohibited drug contrary to s 24(1) Drug Misuse and Trafficking Act 1985 (NSW)

• 1 x possess prohibited drug contrary to s 10(1) Drug Misuse and Trafficking Act 1985 (NSW)

• 1 x deal in proceeds of crime < $100 000 contrary to s 193C(2) Crimes Act 1900 (NSW)

• 1 x possess 14 fraudulent NSW drivers licences contrary to s 256(2) Crimes Act 1900 (NSW)

• 1 x supply prohibited drug (steroids) contrary to s 25(1) Drug Misuse and Trafficking Act 1985 (NSW)

• 1 x dealing with identification information contrary to s 192J Crimes Act 1900 (NSW)

Form 1

• Possess table press or drug encapsulator contrary to s 11B(1) Drug Misuse and Trafficking Act 1985 (NSW)

• 1 x possess equipment to make identification documents contrary to s 192L Crimes Act 1900 (NSW)

1 x possess prohibited drug contrary to s 10(1) Drug Misuse and Trafficking Act 1985 (NSW)

Sentence

Aggregate sentence of 1 year and 6 months imprisonment for the State offences.

Total term of 3 years and 2 months for the Commonwealth offences.

Total effective sentence of 2 years, 8 months with a non-parole period of 1 year and 10 months.

Brief summary

The Offender repeatedly imported anabolic steroids and methamphetamine - some transactions were via the dark net and involved the use of Bitcoin and false identities - deliveries were addressed to the homes of his friends- during execution of a search warrant police recovered evidence giving rise to the manufacture, supply and proceeds of crime offences. -the steroids were for both personal use and sale - 25% discount on all sentences for his early plea of guilty. had financial problems but also seeking financial gain and making a profit - the sentencing judge found psychological issues underlay the offending- presented a low risk of re-offending.

R v Damien Thomas [2017] VCC 1060 (Judge Patrick)

Charges

1 x attempting to possess a marketable quantity of a border controlled drug (MDMA) contrary to s 307.6(1) Criminal Code 1995 (Cth)

Sentence

3 years and 6 months imprisonment, with a non-parole period of 2 years.

Brief summary

The Offender imported around 800 times the marketable quantity of MDMA in a consignment addressed to a false name at a private mail box through the dark web - offending as ‘not particularly sophisticated but ... involv[ing] planning and organisation’- no evidence of sale or intention to sell the MDMA - offender was using drugs at the time of the offending and associating with others using drugs- offender had a depressive condition which the Sentencing Judge found would make custody more difficult for him.

R v Jewel Griffiths (Western Australia District Court, Judge Burrows, 8 February 2019)

Charges

• 1 x importing a border controlled substances (carfentanyl) contrary to s 307.4(1) Criminal Code 1995 (Cth)

Sentence

9 months imprisonment, to be released on a recognizance after serving 5 months imprisonment.

Brief summary

The offender imported 121.76 milligrams of carfentanyl to her address but used a different first name, having ordered it on ‘Dream Market’ on the Dark Net - paid using Bitcoin - not an isolated act. The Sentencing Judge observed that the use of Bitcoin and access to the dark web requires a certain degree of technical knowledge - offender had ‘developed a familiarity with the dark web’. The Sentencing Judge acknowledged the extreme toxicity of the substance imported, stating that he had never seen anything described as dangerous as carfentanyl - Offender was 18 years old - no intended sale or supply- initially denied the offending and later stated that she thought she was ordering a different drug - offender was addicted to opiates and diagnosed with anxiety - A 20% discount for early plea.

26. The consistent application of principle must always be considered. The guidance offered by decisions, both of first instance judges and appellate courts, is always welcome. Past sentences can serve as guides to the exercise of a Court’s discretion but it has to be recognised that every offender and every offence is different and that sentencing is a discretionary judgment. No one mix of factors that have to be weighed can be precisely the same as others.

26. I am indebted to Mr McCarthy, who appears for the offender for his submissions. Through him the offender recognises the seriousness of his offending but Mr McCarthy on his behalf appropriately stresses matters that call for leniency. Both Ms Zielinski for the NSW Director of Public Prosecutions and Ms Brain for the Commonwealth Director of Public Prosecutions stress the seriousness of the crimes but also accept that there is some scope for discretionary considerations moderating the harshness of the maximum penalties that can apply in these matters.

SYNTHESIS

28. The protection of the community is contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of particularly for the young and those who are serving their first time in custody: R v Blackman and Walters [2001] NSWCCA 121. The offender will need to make progress if he is not to reoffend that progress will be assisted by his supervision in the community. The principle of totality requires a just and appropriate overall sentence and the fixing of sentences appropriate and adequate for the individual offences. Accordingly, there must be some partial accumulation here. Courts do not give some sort of discount for multiple offending. On the other hand courts do not simply just add up one penalty on the other. A degree of discretion is required.

29. Similarly, because I am accumulating three sentences I have to formulate what is the minimum period that this offender must spend in prison. I have to consider the appropriate minimum period for each of the offences and what the overall sentence calls for. Azabal’s prospects of rehabilitation is a significant matter that has to be taken into account when fixing the minimum time a person spends in custody. Other sentencing considerations must also be considered as part of the mix. I have, ultimately, to ensure both community protection and adequate punishment. Azabal must be held accountable for his actions and what he did must be denounced. For his own selfish ends he facilitated the distribution of illicit drugs into our community.

30. The Court must, by the severity of the sentence imposed, attempt to recognise the harm done to the community by offending such as this. The severity of each sentence and the total sentences must be appropriate to the circumstances of the offending and the offender. The minimum period of custody and total sentence must both attempt to operate to deter others. Those who are tempted to use the dark web or distribute drugs in our community in any way have to understand the consequences of such behaviour not just to themselves but to others and the community. If tempted to supply drugs for distribution, if tempted to use the dark web, a simple question has to be asked by any person. One that should have been asked years ago by this offender. That question is: “Is it worth it?” Giving the wrong answer will mean a substantial period in gaol. The answer must always be; “No, it’s not worth it.”

Orders

31. The formal orders of the Court are, in relation to each of the matters before the Court you are convicted.

32. I find the breach of the bonds have been admitted and proved. In the circumstances, given the period he has spent in custody and given the nature of those matters, I take no action on the breach.

33. Each of the indicated sentences reflect a reduction of 25%.

NSW offences

34. The NSW matter reflects a finding of special circumstances. In relation to the NSW offence there is a sentence of two years and seven months imprisonment to date from 8 August 2018. There will be a non‑parole period of one year and four months. Notional eligibility for parole 7 December 2019.

Commonwealth offences

35. The Commonwealth matter takes into account accumulation upon that sentence and the need for a long period of supervision in the community.

36. For the offence of attempting to import Ketamine, the second matter, there will be a sentence of three years imprisonment to date from 8 August 2019, that is after a year of the State sentence and expire on 7 August 2022.

37. In relation to the importation of the prohibited Border Control Drug cocaine there will be a sentence of three years and nine months imprisonment. That sentence will date from 8 May 2020 and expire on 7 February 2024. I fix a single non‑parole period for the Commonwealth matter of two years to expire on 7 August 2021 on which date subject to s 19AL of the Crimes Act 1914 you are to be released to parole.

38. The effective term of the sentence is five years and six months with a non‑parole period of three years and a balance of two years and six months.

39. I make a drug destruction order in relation to both the State and Federal matters.

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Amendments

27 September 2019 - Amendment to [39] - Amend "description" to "destruction"

Decision last updated: 27 September 2019