R v Baker (No 3)

[2019] ACTSC 365

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Baker (No 3)

Citation:

[2019] ACTSC 365

Hearing Date:

15 August 2019

DecisionDate:

6 September 2019

Before:

Burns J

Decision:

See [63]–[72]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – jury trial – attempting to import a commercial quantity of a border-controlled drug – trafficking in a commercial quantity of a controlled drug – trafficking of a controlled drug other than cannabis – trafficking in a trafficable quantity of cannabis – dealing with proceeds of crime – importance of individual deterrence – reasonable prospects for rehabilitation

Legislation Cited:

Crimes Act 1900 (ACT), s 114B

Crimes Act 1914 (Cth), s 19AB(3)(b)

Criminal Code 1995 (Cth), ss 11.1, 307.1(1)

Criminal Code 2002 (ACT), ss 603(3), 603(5), 603(7), 618(2)

Drugs of Dependence Act 1989 (ACT), s 171(1)(b)

Parties:

The Queen (Crown)

Brendan Leigh Baker (Offender)

Representation:

Counsel

M Keks (Crown)

S Boxall (Offender)

Solicitors

Commonwealth Director of Public Prosecutions (Crown)

Boxall Legal (Offender)

File Numbers:

SCC 285 of 2018; SCC 286 of 2018

BURNS J

1. Brendan Leigh Baker, on 3 June 2019 you were arraigned on an indictment containing 12 counts. You entered pleas of not guilty to each of those counts and the charges proceeded to trial before a jury. On 18 June 2019, the jury returned verdicts of guilty to all counts except Count 2 on which they were unable to agree. It now falls to me to sentence you with regard to those charges upon which the jury returned verdicts of guilty. In addition, there are two Summary Charges transferred to this Court as charges related to those on the Indictment. You have entered pleas of guilty to those

   
   

   Summary Charges and I must also sentence you with respect to those matters.

1. The charges on which the jury found you guilty were:

· Count 1 (CC2018/5497), a charge of attempting to import a commercial quantity of a border-controlled drug, being methylone, contrary to ss 11.1 and 307.1(1) of the Criminal Code 1995 (Cth) (the Commonwealth Criminal Code), between 30 September 2016 and 3 February 2017. The maximum penalty for this offence is life imprisonment and/or a fine not exceeding 7,500 penalty units.

· Count 3 (CC2018/11945), a charge of trafficking in a commercial quantity of a controlled drug being cannabis, contrary to s 603(3) of the Criminal Code 2002 (ACT) (the Criminal Code), between 1 May 2016 and 30 June 2016. This offence carries a maximum penalty of imprisonment for 25 years and/or a fine not exceeding 2,500 penalty units.

·     

Count 4 (CC2018/5496), a charge of trafficking in a controlled drug other than cannabis, namely MDMA or a related drug, contrary to s 603(7) of

the Criminal Code, between 1 May 2016 and 1 November 2016. The maximum penalty for this offence is imprisonment for 10 years and/or a fine not exceeding

1,000 penalty units.

·     

Count 5 (CC2018/5498), a charge of trafficking in a controlled drug other than cannabis, namely MDMA, contrary to s 603(7) of the Criminal Code, between 30 September 2016 and 1 December 2016. This offence carries a maximum penalty of 10 years' imprisonment and/or a fine not exceeding

1,000 penalty units.

·     

Count 6 (CC2018/5499), a charge of trafficking in a controlled drug other than cannabis, namely MDMA, contrary to s 603(7) of the Criminal Code, between 30 November 2016 and 5 January 2017. This offence also carries a maximum penalty of 10 years' imprisonment and/or a fine not exceeding

1,000 penalty units.

·     

Count 7 (CC2018/6080), a charge of trafficking in a controlled drug other than cannabis, namely methylamphetamine, contrary to s 603(7) of

the Criminal Code, between 30 November 2016 and 5 January 2017. This offence also carries a maximum penalty of 10 years' imprisonment and/or a fine not exceeding 1,000 penalty units.

·     

Count 8 (CC2018/6081), a charge of trafficking in a controlled drug other than cannabis, namely cocaine, contrary to s 603(7) of the Criminal Code, between 30 November 2016 and 5 January 2017. This offence carries a maximum penalty of 10 years' imprisonment and/or a fine not exceeding

1,000 penalty units.

·     

Count 9 (CC2018/5500), a charge of trafficking in a trafficable quantity of cannabis, contrary to s 603(5) of the Criminal Code, between

30 November 2016 and 5 January 2017. This offence carries a maximum penalty of imprisonment for 10 years and/or a fine not exceeding 1,000 penalty units.

·     

Count 10 (CC2018/5501), a charge of dealing with the proceeds of crime, namely $22,200, contrary to s 114B of the Crimes Act 1900 (ACT)

(the Crimes Act), on 2 February 2017, knowing that the money was derived or realised, directly or indirectly, from some form of unlawful activity. This offence carries a maximum penalty of 10 years' imprisonment and/or a fine not exceeding 1,000 penalty units.

·     

Count 11 (CC2018/5503), a charge of dealing with the proceeds of crime, namely $22,900, contrary to s 114B of the Crimes Act, on 22 March 2017, knowing that the money was derived or realised, directly or indirectly, from some form of unlawful activity. This offence carries a maximum penalty of

10 years' imprisonment and/or a fine not exceeding 1,000 penalty units.

·     

Count 12 (CC2018/5504), a charge of trafficking in a controlled drug other than cannabis, namely MDMA, contrary to s 603(7) of the Criminal Code, on

27 July 2017. This offence carries a maximum penalty of

10 years' imprisonment and/or a fine not exceeding 1,000 penalty units. 

1. The Summary Charges transferred from the ACT Magistrates Court are:

·     

Charge 5502 of 2018, a charge of possessing a prohibited substance, being MDMA, contrary to s 171(1)(b) of the Drugs of Dependence Act 1989 (ACT), on 2 February 2017. This charge carries a maximum penalty of

two years' imprisonment and/or a fine not exceeding 50 penalty units.

· Charge 5506 of 2018, a charge of cultivating three or more cannabis plants, being a total of five cannabis plants, contrary to s 618(2) of the Criminal Code, on 2 March 2018. This carries a maximum penalty of two years' imprisonment and/or a fine not exceeding 200 penalty units.

1. You were arrested by police on 21 April 2018 and you have remained in custody since that date. You entered pleas of not guilty to all charges in the ACT Magistrates Court and you were committed for trial to this Court on 9 November 2018. Any sentences which I impose should commence from 21 April 2018 to reflect the time that you have spent in pre-sentence custody. 

The Facts

1. The Crown case was largely dependent upon the evidence of Paul McCauley. It is clear from the verdicts returned by the jury that they accepted the evidence given by

   
   

   Mr McCauley. In the following exposition of the facts, I will set out those matters of which I am satisfied beyond reasonable doubt, bearing in mind the verdicts returned by the jury.

1. Prior to mid-2016, Mr McCauley was carrying on business as a drug dealer in the ACT. He trafficked in cannabis, ice or methamphetamine, cocaine and MDMA. He had others who worked for him in distributing the drugs to the ultimate users. Some time prior to 2016, you contacted Mr McCauley on Facebook and asked him whether he wanted any MDMA. He did not respond. You also asked him whether he wanted some cannabis and he again did not respond.

1. The two of you did subsequently meet in a carpark and you offered to supply him with cannabis at a lower price than his present source. You also offered to supply him cannabis on credit. He agreed to go into business with you and he told you that he wanted to order 10 pounds of cannabis at that time. A few days later the two of you met again and you supplied Mr McCauley with 40 pounds of cannabis. Mr McCauley expressed uncertainty as to whether he would be able to move such a large amount of cannabis, but you urged him to take the whole amount. He did take the 40 pounds of cannabis and through his contacts he was able to sell that amount within about a week.  This is the basis of Count 3 (CC2018/11945) on the Indictment.

1. After Mr McCauley had been receiving cannabis from you for some time, you began to supply him with MDMA for him to sell through his connections. Count 4 (CC2018/5496) refers to one such transaction. Mr McCauley gave evidence that he met with a third party in a carpark at the back of Domino's in Dickson. This had been pre-arranged with you as you were unable to attend in person. You supplied, through this intermediary,

   
   

   Mr McCauley with 5 ounces of MDMA. Mr McCauley stated that he would pay you $1,000 for an ounce of MDMA making the value of the drugs supplied on this occasion $5,000. This is the basis of Count 4 (CC2018/5496) on the Indictment.

1. Between October 2016 and December 2016, you suggested to Mr McCauley that the two of you could source methylone from a source that you were aware of in China. You said that you could obtain the methylone from this source for between $1,300 and $1,800 a kilogram and that you had friends in Queensland who would pay $17,000 a kilogram for it. With the assistance of Mr McCauley, you ordered 2 kilograms of methylone by computer using a false name. Mr McCauley obtained this computer at your direction. You paid for this drug using Bitcoin which you obtained through a contact in Sydney.

1. The arrangement was that the methylone would be sent by mail to the address of an associate, who I will refer to as AB, in Downer in the ACT. AB was instructed that when the package arrived, he should collect it and drive towards the Dickson Post Office. If the police stopped him, he was to state that he was returning the package to the post office because it had been sent to the wrong address. The methylone apparently never arrived. You later disposed of the laptop used in this transaction. The commercial quantity of methylone is 0.75 kilograms. This conduct related to Count 1 (CC2018/5497) on the Indictment. 

1. Count 5 (CC2018/5498) related to a transaction in which you provided about

   
   

   1 kilogram of MDMA in a child’s pink Barbie lunch box for $37,000 or $38,000.

1. Count 6 (CC2018/5499) involved a transaction in December 2016 in which you supplied 5 ounces of MDMA to Brad Klemke, an associate of Mr McCauley.

1. Count 7 (CC2018/6080) related to a transaction in which you supplied approximately 10 ounces of methylamphetamine to Mr Klemke.

1. Count 8 (CC2018/6081) related to a transaction that occurred at or about the same time as Count 7 (CC2018/6080), in which you supplied 5 to 10 ounces of cocaine

   
   

   to DD.

1. Count 9 (CC2018/5500) refers to a transaction that occurred at the same time as that referred to in Count 8 (CC2018/6081). You supplied approximately 15 pounds of cannabis to DD.

1. On 2 February 2017, police executed a search warrant at your residence and found $22,200 in cash secured with rubber bands hidden behind the bottom drawer of a wardrobe. This is the basis of Count 10 (CC2018/5501) on the Indictment. I am satisfied that this money was derived from the sale of drugs. Police also found handwritten notes listing names and figures and the telephone number of a person to whom Mr McCauley used to supply drugs that he sourced from you. At that time, police also located a capsule containing a small amount of MDMA. This capsule is the basis of the

   
   

   Summary Charge of possession of a prohibited substance (Charge 5502 of 2018).

1. On 22 March 2017, police executed a further search warrant at your residence. During the execution of the warrant, police located $22,900 in cash contained in an envelope inside a tissue box and an instruction manual for a money counting machine. Your DNA was found on the rubber bands and the envelope containing the cash. This was the basis of Count 11 (CC2018/5503) on the Indictment. I am satisfied that this money was also obtained from the sale of drugs.

1. In the course of his dealings with you, Mr McCauley accumulated a very substantial debt for drugs which you had supplied to him on credit. This was largely because those to whom the drugs were distributed did not pay Mr McCauley. This again was in part because of police actions in which they had discovered and confiscated large sums of money from those with whom Mr McCauley dealt. I am satisfied that you began to pressure Mr McCauley to repay this debt. This debt amounted to somewhere between $230,000 and $250,000. This culminated in you driving Mr McCauley to a carpark for a meeting with seven or eight other people. I am satisfied that these people were higher up in the chain of drug distribution than you were, or were the employees of such people, and they were placing pressure on you to recover the debt from Mr McCauley. One of those present told Mr McCauley that the money had to be paid and then punched him. You intervened and helped Mr McCauley back to your car and you drove away. 

1. At a meeting a few days later, you told Mr McCauley that the debt was worth “four hits”. I am satisfied that you meant four murders. It is not suggested that you had the intention of carrying out any threat to kill Mr McCauley or anyone else. The relevance of this statement is to demonstrate the extent of the pressure and the intimidation directed towards Mr McCauley to encourage him to repay the drug debt.

1. In July 2017, you met with Mr McCauley at the Ainslie shops and you supplied him with an amount of a substance which was either MDMA or methylone. You told

   
   

   Mr McCauley that you could supply him that substance at $1,000 an ounce and that he could repay the drug debt by distributing that substance. This was the basis of

   
   

   Count 12 (CC2018/5504) on the Indictment.

1. On 2 March 2018, police executed a search warrant at your home. You were not at home at the time, but you attended after being contacted by police. Upon arrival you entered the backyard to the property and unlocked a rear shed revealing five cannabis plants growing in the shed. This is the basis of the Summary Charge (5506 of 2018) of cultivating three or more cannabis plants.

Consideration

1. Each of the offences for which you were found guilty relate to specific events or transactions. The evidence established however, beyond any doubt, that you were engaged in a relatively sophisticated large-scale drug trafficking enterprise. With regard to each charge, you are only to be sentenced with regard to the events that are the subject of that charge. The evidence of broader participation in drug trafficking is relevant as establishing that the specific offence or transactions referred to in each of the charges were not isolated events. The period of time over which the present offences occurred was some 14 months which may be contrasted with single

   
   

   small-scale examples of trafficking.

1. I am satisfied that you were the instigator of the attempt to import 2 kilograms of methylone which is the basis of Count 1 (CC2018/5497) on the Indictment. You provided instructions to Mr McCauley to facilitate this transaction and you personally conducted the transaction using a computer sourced by Mr McCauley at your instruction. You also obtained the Bitcoin used in the attempt to purchase the methylone. There was a degree of sophistication and planning involved in this transaction. The attempt had proceeded as far as you were able to contrive. All that remained was for the vendor to despatch the drugs.

1. The amount of drug which you attempted to import was more than two times the commercial quantity and you anticipated making a very significant profit from the distribution or on-sale of the substance. I accept the Crown's submission that this was an attempt by you to broaden your supply options and to expand your operation. The extent of the anticipated profits demonstrates the significant commercial nature of this enterprise. I would place this offence at the lower end of the mid-range of such offences.

1. In assessing the objective seriousness of Count 3 (CC2018/11945), I take into account that it was you who recruited Mr McCauley to sell large amounts of cannabis on your behalf. The particular transaction which was relevant to this charge involved 40 pounds of cannabis with a value exceeding $100,000. You, of course, were the principal in this offence. I am satisfied that you anticipated making a significant profit from this transaction. I would place this offence in the mid-range of such offences.

1. With regard to Count 4 (CC2018/5496), you supplied Mr McCauley, through an intermediary, with 5 ounces of MDMA worth approximately $5,000. I would assess this offence as being below the mid-range of such offences.

1. Count 5 (CC2018/5498) involved you providing approximately 1 kilogram of MDMA to Mr McCauley. The value of this amount of MDMA was $37,000 or $38,000. I would place this offence in the mid-range of such offences.

1. Count 6 (CC2018/5499) also involved a supply of 5 ounces of MDMA to Mr Klemke. The evidence suggests that the value of this quantity of MDMA was approximately $5,000. I would assess this offence as in the lower range of such offences.

1. Count 7 (CC2018/6080) related to you supplying approximately 10 ounces of methylamphetamine to Mr Klemke. The evidence does not enable me to place a precise value on this quantity of methylamphetamine. I would assess this offence as in the lower range of such offences.

1. Count 8 (CC2018/6081) was a transaction in which you supplied between

   
   

   5 and 10 ounces of cocaine to DD. The evidence again does not enable me to place a precise value on the quantity of cocaine that was supplied. I would assess this offence as in the lower range of such offences.

1. Count 9 (CC2018/5500) was a transaction in which you supplied approximately

   
   

   15 pounds of cannabis to DD. The evidence would establish that the approximate value of this cannabis was $39,000.  I would place this offence at the lower end of the mid-range of such offences. 

1. Count 10 (CC2018/5501) involved $22,200 which was the proceeds of your involvement in drug dealing.  I would place this offence at the lower end of the

   
   

   mid-range of such offences.

1. Count 11 (CC2018/5503) involved $22,900 being the proceeds of your involvement in drug dealing. I would also place this offence at the lower end of the mid-range of such offences.

1. Count 12 (CC2018/5504) involved the supply of an unknown amount of MDMA or methylone to Mr McCauley. I would place this offence in the lower range of such offences.

Subjective Features

1. You are currently 28 years old and you have no relevant criminal history. You have been remanded in custody since April 2018. Your behaviour and attitude within the Alexander Maconochie Centre (AMC) has been described as generally positive.

1. You were born in the ACT and you have three step-siblings. You were raised by your mother and you did not have any form of relationship with your father until you were

   
   

   10 years old. Your relationship with your father has subsequently developed to the extent that you now share a close relationship. You receive regular visits at the AMC from your mother, father and siblings. You are single and have no children. When you are released from custody, you anticipate being able to reside with your mother.

1. You completed your Year 12 education in the ACT, and you have subsequently maintained regular employment and studied in various fields. You purchased a café and a tiling business prior to your arrest for these offences, although you no longer own those businesses.

1. During your present period of incarceration, you have been active in engaging in numerous courses and programs. You are currently enrolled in a Tertiary Preparation Course through the University of Southern Queensland with a view to study engineering. You have held several employment positions and completed a number of programs within the AMC. Your behaviour within the AMC has been described as positive and it is said that you encourage other detainees to participate in programs and courses.

1. You told the author of a Pre-Sentence Report that in your late teenage years you used “party drugs” on a social basis, but you stated that illicit drug use had never been problematic for you. You told the author of the Report that in the 12 months prior to your incarceration, you had used cocaine on one occasion only.

1. You reported good general health and mental health. You have been assessed as a low risk of general reoffending, primarily due to your protective factors, including education, family support, employment history and good physical and mental health.

1. A Report dated 5 August 2018 from Ms Leesa Morris, a forensic psychologist, was tendered on your behalf at the sentence hearing. That Report paints a somewhat different picture of your childhood to that which was presented in the Pre-Sentence Report, although that may be because of the way in which each Report was prepared. 

1. You told Ms Morris that your parents separated when you were between

   
   

   one and two years of age and you lived primarily with your mother. You reported that both your father and your mother abused alcohol, and that your mother also used marijuana and gambled. You said that these behaviours had decreased in the last decade. While initially describing your upbringing as pretty good, it emerged in questioning that your mother was involved in a car accident on your seventh birthday and as a result she experienced Post-Traumatic Stress Disorder and depression in addition to physical injuries. At that time, your mother increased her alcohol use and gambling, and her behaviour became erratic. You stated that your older brother was largely responsible for your care during this time, including meal preparation and daily tasks. You also described one traumatic event when you were 21 years of age when you were the first responder to a neighbour's suicide attempt.

1. With regard to the present charges, you told Ms Morris that people knew that you had friends who had access to drugs. You said that Mr McCauley came to you and asked you if you could get him some drugs. You said that you tried to link him up socially with someone called Omari and then planned to walk out of it. You told Ms Morris, “I know I did the wrong thing. I take ownership of my actions, I shouldn't have done it. I wanted to stay out of it but Omari didn't want it close to him, I wanted to please them - They were both my mates”.

1. I am satisfied that your assertion that Mr McCauley approached you with a view to having you access drugs on his behalf is not true. I am satisfied that that is an attempt by you to minimise your responsibility with regard to these offences. You told Ms Morris that you were naïve and scared about what would happen if you tried to withdraw from the arrangement, as you described it. You said that you had received threats directed towards your family. In the absence of credible evidence to support this assertion, I do not accept it. I also do not accept the proposition that you were naïve in your participation in these offences.

1. Ms Morris said that you described symptoms of depression following your experience as the first responder to your neighbour's suicide attempt. You also described low mood associated with your mother's drinking and gambling. You described a strong desire to support the community and assist others in overcoming difficult backgrounds. Psychologically, Ms Morris said, it was probable that you were projecting your desire to resolve your traumatic childhood onto others by assisting them to improve their circumstances. In her opinion, you appeared to have adopted a pose of responsibility for others, feeling obligated to assist anyone of a similar background to your own.

1. Based upon the history which you gave, Ms Morris was of the opinion that you meet the criteria for diagnosis of a Persistent Depressive Disorder. She described you as a passionate and emotionally vulnerable man who has experienced significant trauma and hardship in your formative years. Due to your experiences, she said, you appear to have developed a desire to assist others as a means of resolving your own sadness. She said that you have traditionally used denial to manage your low mood and propel yourself forward, causing you to be vulnerable to those with more negative motivations.

1. Ms Morris stated that you have demonstrated empathy and remorse for the potential victims of your offending behaviour. She stated that you have some retrospective understanding of the dynamics and errors that led to your choices. She expressed the opinion that you do not yet have insight into the elements that influence your naivety  and vulnerability and that these need to be addressed in order to minimise your risk of reoffending. 

1. She expressed the opinion that you are currently at moderate risk of reoffending due to your level of vulnerability and exposure to others with potentially differing motivations. With psychological intervention, she said that this risk could be reduced to low.

1. It is clear that the opinions expressed by Ms Morris were largely based upon the history which you provided to her.  Particularly concerning your involvement in these offences and your motivation for involvement, a key element of the version of events which you gave to Ms Morris was the proposition that Mr McCauley was the one who approached you, asking you to source drugs for him.  I am satisfied that this was not the case. I am satisfied that you approached Mr McCauley in a bid to recruit him to source his drugs from you rather than from his then source.

1. Ms Morris was clearly unaware of the level of your involvement in these offences and the degree of sophistication of your operation.  In my opinion, little weight can be given to the opinions expressed by Ms Morris. In particular, I do not accept her opinion that at the time of these offences your decision-making was driven by your own psychological needs and that you lacked the necessary insight to consider the alternative motivations of others. I simply do not accept the proposition that you were used by others and that your desire to please them was the reason you were involved in these offences.

1. There is one aspect of Ms Morris’ Report that does ring true and which I do accept.  You told Ms Morris in effect you wanted to be successful and you wanted to prove that you were successful. While your basic motivation for involvement in these offences was greed, that is, to make a profit from the sale of drugs, it is probable that you were attracted to drug trafficking because of the perception that you could make a lot of money quickly which would enable you to surround yourself with the trappings of success, allowing you to present yourself as a successful individual. I will also observe that Ms Morris has not suggested that you cannot receive treatment in custody for any condition from which you may suffer, or that you may find incarceration more difficult because of any such condition.

1. I take into account the numerous testimonials that were tendered on your behalf. They speak of your commitment to helping others, including those living in underprivileged circumstances overseas. They speak of you as being a motivated, hard-working individual concerned about issues of equality and fairness.

1. Adnan Hanan speaks of the time that you have dedicated to volunteering activities, including as a rural fire fighter and at soup kitchens. Chaplain Brian Willy, who has known you since you were remanded at the AMC, has expressed the belief that you have already progressed positively in your rehabilitation. He has found you to be a respectful, thoughtful, sensible person who possesses a great deal of common sense. You attend chapel services regularly and you have embarked enthusiastically on a number of correspondence courses. A number of the authors of the testimonials said that your involvement in these offences was inconsistent with your character as they knew it.

1. A letter from Directions ACT stated that since January 2019 you have consulted them regarding your substance use and anxiety. You apparently embraced the assistance they gave to you and you stated that you intended to attend more alcohol and drug counselling sessions in the future. Reports from those who have been supervising you within the AMC speak of you in very positive terms. You are said to be a good influence on other detainees. 

1. As part of the material which was tendered on your behalf at the sentence hearing, I received a letter prepared and signed by you.  In your letter you speak of the shame that you feel having been convicted to these offences.  You also speak of your positive plans for the future and the support that you continue to receive from your family and extended support network.

1. It is difficult to accept, however, that you have been enlightened by your experience in the AMC as to the evils of illicit drugs and the harm that they do to the community and to individuals. These are matters of such notoriety that I simply cannot accept that you were not fully aware of them at the time you were committing these offences, particularly taking into account the extent to which you were involved in drug trafficking and the period of time over which you were involved.

1. It is difficult to determine to what extent you feel any true remorse for your actions. You showed no remorse in the course of your trial and you did not give evidence at the sentence hearing. You apparently continue to maintain your innocence with respect to these charges. You are entitled to do so, but your approach to the charges deprives you of any benefit of remorse in that regard.  Even in your letter, any expression of remorse appears to be directed towards yourself and the position that you find yourself in. Your letter appears to be carefully worded to avoid any suggestion that you accept responsibility for your actions regarding these charges. One of the hallmarks of true remorse is utter frankness and that is conspicuously absent in this case.

1. I take into account, of course, that you have no relevant prior convictions and you have, of course, not served a prior term of imprisonment.

Relevant Principles

1. It is hardly necessary for me to repeat what has been said so frequently by these courts concerning the individual misery inflicted by the drug trade, the lives lost or ruined and the immeasurable damage done to our community. It is in recognition of these facts that the Legislatures, both Commonwealth and ACT, have set the maximum penalties applicable for these offences. The maximum penalty is to be reserved for cases in the worst category of the relevant offending, and it is not suggested that any of the present offences fall within the worst category, but the maximum penalty nevertheless serves as a yardstick in assessing appropriate sentences for offences that fall outside the worst category.

1. The most significant sentencing considerations for serious drug offences such as the present are deterrence, denunciation and protection of the community.  Rehabilitation is not to be ignored, but even excellent prospects for an offender's rehabilitation cannot justify, in the case of grave offending, a sentence that does not adequately reflect the need to denounce the offence, deter crime and protect the community. Of course, where the evidence establishes that an offender has good prospects for rehabilitation, the need for specific deterrence may be reduced or even excluded.

1. In the present case, individual deterrence is still important. Whilst you have commendably conducted yourself within the AMC since being remanded in custody, and you have undertaken courses and programs directed towards your rehabilitation, you have never fully acknowledged your involvement in the offences or accepted the gravity of your conduct. There is still a real need to impose sentences that make it plain to you that the conduct found proven by the jury is serious criminal offending and to impress upon you the consequences of any future similar offending.

1. You have reasonable prospects for rehabilitation, mainly because of your family support and your demonstrated work ethic. It is also important that the sentences I impose be of sufficient severity to deter others from taking the risk of involvement in drug trafficking because of the promise of vast accumulation of wealth. The sentences imposed for large-scale drug offences must be such as to make the potential consequences too great to make it worthwhile taking the risk. The sentences which I will impose will include periods of significant concurrency allowing for common features amongst the various offences and also the need to assess totality.

Sentence

1. On Count 1 (CC2018/5497), I record a conviction and you are sentenced to

   
   

   seven years' imprisonment, commencing on 21 April 2018 and expiring on

   
   

   20 April 2025. 

1. On Count 3 (CC2018/11945), I record a conviction and you are sentenced to

   
   

   five years' imprisonment, commencing on 21 April 2023 and expiring on 20 April 2028.

1. On Count 5 (CC2018/5498), I record a conviction and you are sentenced to

   
   

   three years and six months' imprisonment commencing 21 October 2025 and expiring on 20 April 2029.

1. On Count 9 (CC2018/5500), I record a conviction and you are sentenced to

   
   

   three years' imprisonment commencing 21 April 2027 and expiring 20 April 2030.

1. On each of Counts 10 (CC2018/5501) and 11 (CC2018/5503), I record convictions and you are sentenced to two years and six months' imprisonment on each charge. Each such sentence is to commence on 21 October 2028 and expire on 20 April 2031.

1. On each of Counts 4 (CC2018/5496), 6 (CC2018/5499), 7 (CC2018/6080) and

   
   

   8 (CC2018/6081), I record convictions and you are sentenced to

   
   

   one year and six months' imprisonment on each charge. Each such sentence is to commence on 21 April 2030 and expire on 20 October 2031.

1. On Count 12 (CC2018/5504), I record a conviction and you are sentenced to

   
   

   one year's imprisonment commencing 21 December 2030 and expiring

   
   

   20 December 2031. 

1. On Summary Charges 5502 of 2018 and 5506 of 2018, I record convictions and you are sentenced to one month imprisonment on each charge. Each such sentence is to commence on 21 April 2023, and expire on 20 May 2023.

1. The aggregate sentence which I have imposed is 13 years eight months’, commencing 21 April 2018 and expiring 20 December 2031.

1. I set a non-parole period of two years, commencing 21 April 2023 and expiring

   
   

   20 April 2025. Due to the length of the non-parole period, I decline to set a non-parole period for the Commonwealth offence, Count 1, pursuant to

   
   

   s 19AB(3)(b) of the Crimes Act 1914 (Cth).

I certify that the preceding seventy-two [72] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.

Associate:

Date:

Amendments

23 October 2020                   Replace “seven years” with “two years”            Paragraph [72]