R v Bertucci

[2023] NSWDC 79

District Court

New South Wales

Medium Neutral Citation:

R v Bertucci [2023] NSWDC 79

Hearing dates:

25 January 2023

Date of orders:

03 February 2023

Decision date:

03 February 2023

Jurisdiction:

Criminal

Before:

Priestley SC, DCJ

Decision:

See [76-78]

Catchwords:

CRIME — Drug offences — Commonwealth offences — Attempt to commit an offence – Import commercial quantity of border-controlled drug

CRIME – Drug Offences - Deal with property proceeds of crime

CRIME — Fraud — Deal in identification info and use it to commit etc fraud

CRIME — Firearms offences — Use/Possess prohibited pistol/firearm without permit

Legislation Cited:

Crimes Act 1900 (Cth)

Crimes (Sentencing Procedure) Act 1999

Weapons Prohibition Act

Cases Cited:

Cahyadi v R [2007] NSWCCA 1

Hall v The Queen [2021] NSWCCA

Mill v The Queen [1988] HCA 70

R v Holder [1983] 3 NSWLR 245

Redfern v R [2012] NSWCCA 178

Totaan v R [2022] NSWCCA

Xiao [2018] NSWCCA 4

Texts Cited:

Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ

Category:

Sentence

Parties:

Rex (Crown)
Nathan Bertucci (Offender)

Representation:

Patrizi (Solicitor for the Crown)
Chamas (Solicitor for the accused)

File Number(s):

2020/00335088

Publication restriction:

N/A

JUDGMENT

1. Nathan Bertucci, the offender, appears for sentence in respect of 3 offences. Two of the offences occurred in breach of the provisions of the Commonwealth Criminal Code (“the Code”) and the third was an offence under section 193C (1) of the Crimes Act, New South Wales (“the State act”).

2. Additionally, there are 3 offences to be taken into account in respect of the Commonwealth offences pursuant to section 16BA of the Crimes Act (Cth) (“CCA”), and one further offence to be taken into account in respect of the state offence pursuant to the Form 1 procedure.

3. The offences and the s16BA and Form 1 matters are set out in the following table, and I have also indicated for convenience the maximum terms of the offences. The parties have adopted the sequence numbers to identify the 3 principal offences and that is indicated in the table and will be referred to in these reasons.

Seq	Sec	Offence	Max	Related
13	307.1(1)11.2(1), 11.1(1)	Aid and abet an attempt to import a commercial quantity of a border controlled drug	Life	s400.9(1) Deal in money or property reasonable to suspect was proceeds of crime worth more than $100,000; max 3y (seq14)
15	372.1(1)	Deal in identification information	5 y	s372.1(1) deal in identification information; max 5y; (seq10) and possess identification information; max 5y (seq 11)
2	193C(1)	Deal with property reasonable to suspect was proceeds of crime >$100,000	5 y	s7(1) WPA; possess prohibited weapon; max 14 y (seq 12)

4. In regards to the matters to be dealt with pursuant to section 16BA and also the Form 1 procedure, it is important that the focus remains on the principal offence for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community’s entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ. The sentence arrived at however must not be disproportionate to the objective seriousness of the principal offence. I have noted the maximum sentences of the matters to be taken into account to assist in the determination of the seriousness of those matters so as to inform what the additional weight for the principal offence should be.

5. I note that the maximum sentences for the principal offences (sequences 13, 15 and 2) are legislative guideposts, indicating the legislature’s view of the seriousness of those offences, to assist in arriving at the appropriate sentence.

6. The Crown sentence summary states that the offending occurred in the period 2 April 2019 to 25 November 2020. That start date is referable to what is described below as a “live run” in respect of sequence 13; both parties have treated the facts to commence in May 2018 when the offender first acted to facilitate the “live run” by taking steps to affect the first of four “dry runs”. The offender was arrested on 25 November 2020 and has been in custody since that date to the present. The term of imprisonment to be served will commence from that date. The offender was not on any form of conditional liberty at the time of the offending.

The facts and objective seriousness

Sequence 13:

7. This is a charge of aiding and abetting an attempt to import a commercial quantity of a border controlled drug. By section 11.1 of the Code a person who attempts to commit an offence is punishable as if the offence attempted had been committed. By section 11.2 of the code a person who aids abets counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly. Crucial to any assessment of criminality is identifying precisely what it is that the offender did.

8. The facts are very well set out and in commendable detail in exhibit A. With no disrespect intended to those agreed facts and without minimising the seriousness of the offending, and in particular sequence 13, the facts of the offending can be reasonably shortly stated. In the period between mid December 2018 and April 2019 the offender participated in what are referred to as dry runs on four occasions and then ultimately in the “live run”. This is a reference to affecting the importation into Australia of certain items. The dry runs do not contain any border controlled drugs; the live run did, although it was intercepted.

9. On 27 May 2018 the offender created a Gmail account under the name of Jennifer Schuler, who is a real person. Thereafter he created an account with a telecommunications provider and linked it to that Gmail account. He then purchased a Sim card ending in the number 787 and registered that to the telecommunications account he had created. Later a fictitious persona of Daniel Musgrave purportedly from an entity known as Opaque Whitegoods was used to facilitate customs clearance and handling of some consignments. The phone number attached to the correspondence from the fake Daniel Musgrave was the number ending 787. Thus, the offender has the use of a phone service ending 787 registered in the name of a real person, Jennifer Schuler, and being used as a contact number for a fake Daniel Musgrave in connection with importation. The offender also recorded a voicemail greeting on the service ending 787.

10. The first dry run was on 17 December 2018, the second was on 23 January 2019, the third was 11 March 2019 and the fourth was on 24 March 2019. The live importation was attempted shortly after that.

11. The conduct of the offender is agreed to come down to 5 described tasks which he performed in the course of the dry runs and the live run. Those five tasks are as follows:

1. To participate in sending emails purporting to be Daniel Musgrave (a total of 36 emails);

2. Registering with telecommunications service which was later used in the emails sent by Daniel Musgrave;

3. Recharge the telecommunications service for Daniel Musgrove which in submissions was clarified to mean making payment to keep it operative;

4. Possessed the mobile phone to respond to communications directed to that service during the relevant period; and

5. Outside of the emails he personally sent he was aware of the other emails sent by persons purporting to be Daniel Musgrave.

12. The offender carried out all five of those tasks on the first dry run and the second dry run and in the live importation. In respect of the third and fourth dry runs he carried out four of them; he did not send emails himself purporting to be Daniel Musgrave in the third and fourth dry runs.

13. The facts detail the emails that he sent in relation to the live run seeking updates on delivery.

14. The amount of the drug attempted to be imported was 139.8 kg of pure methamphetamine.

15. Both parties have helpfully addressed the relevant matters under section 16A of the CCA, and but for the first matter, they are addressed below. The first matter under subsection 2 is to consider the nature and circumstances of the offence, which allows an assessment of the objective seriousness of the offending.

16. A feature of this case is the large amount of drugs involved yet it is well-established that the weight of the drug is not a determinative matter. It plainly however is a matter that needs to be considered in this case and it is unavoidably of some significance.

17. The facts just described identify the role played in this attempted importation. It is to be remembered the charge is aiding and abetting the attempted importation and so his role is to be seen in the light of someone who is aiding and abetting. In addition to the participation in the dry runs and the live run the above summary of the facts also shows that he used a real person’s identity to orchestrate the use of the phone and so shielding his identity and further added to the concealment by creating the fake David Musgrove and attaching that number to the details of that fake person. The period over which the dry runs occurred and the obvious level of planning put into the offending lead me to conclude that this is a sophisticated criminal act.

18. The Crown submits the offender should be found to have an important mid-level role in the hierarchy of this criminal activity. The submission for the offender was similar and described it as just below the mid-level in the hierarchy of the enterprise with his role being that of a facilitator. The offender asks the court to infer that the offender appears to have taken directions from others higher up, noting there is no evidence of him at any time giving any directions or instructions. It is also submitted that whilst the offender knew there were prohibited drugs beyond the commercial quantity involved, he did not know what the amount was or what the drug was. That last submission I think reflects more upon his role and supports the view that he is certainly a person who is acting on instructions rather than giving them. It is also notable that the email account that he was using was used by others. A factor that needs to be taken into account also is the period of time that this offending was occurring. There was some four months (and on one view 10 months if the creation of the Gmail account is taken as the start point) of planning and trialling and I have taken that into account.

19. In my view I would assess this offending as being just below the mid-range of objective seriousness and, in the language of section 16A,   is a matter that I take into account in determining the sentence to be imposed.

20. In sentencing for this offence, the section 400.9 (1) offence needs to be taken into account. That is the offence of dealing in money or property reasonable to suspect was proceeds of crime worth more than $100,000 and with a maximum penalty of three years. The amount of money was approximately $141,000. That money was found upon the offender’s residence being searched upon his arrest. It was found within a TV cabinet with a false floor in its base. There is nothing in the facts beyond the fact of that money having been found. There is a hierarchy within section 400 where the penalty is more severe the greater the amount of money involved. If the amount in question is less than $100,000 there is a two-year maximum penalty or a fine penalty for both; if it is $100,000 or more than a maximum is three years and the next level is $1 million or more where the maximum penalty is four years and lastly if the money is $10 million or more penalty is five years maximum. Based on value this must be towards the lower end of the spectrum for this offence. There really are no other facts to seek to assess this matter. I take these facts of this offending into account in the way described above.

Sequence 15

21. This offence is of dealing in identification information including relation to Daniel Musgrave and Jennifer Schuler referred to above and also a further three identities. The facts above show how the identities of Jennifer Schuler and Daniel Musgrove were utilised. The other identities of Ben Shepherd and Gary Luland were used in respect of sequence 10 with the intention of facilitating the importation of a border-controlled drug, which occurred after the failed “live run”. Whilst it is necessary when considering this offence to assess how the identity information is dealt with, care must be exercised not to doubly punish the offender by taking into account the criminal activity for which it was applied; for example, the use of the Schuler identity with sequence 13.

22. The facts relating to Jennifer Schuler have been noted above and the use of the Daniel Musgrave identity has also been referred to. The information that was dealt with of the fake Daniel Musgrave was his name, his employer’s email address and his phone number, or more accurately the purported phone number of the fake Daniel Musgrave identity, being the one procured in the first place by the offender.

23. In respect of “Ben Rogers”, identity information such as personal details of date of birth, phone number, address, email and employer, were used to facilitate obtaining the lease of the property where the offender stored the $1.5M the subject of sequence 2.

24. The Crown submits this offending is within the mid-range of objective seriousness given the number of identities used (five) the frequency they were used and the period over which they were used, and the seriousness of the offending they were intended for. The offender in his oral submissions made the point of the overlap of this offending with the import charge and placed it below the mid-level of objective seriousness.

25. On this point I prefer the submissions for the Crown. To the extent to which the activities overlap that would be reflected in the overall sentence and the degree of concurrency. Limiting ourselves to considering the seriousness of dealing in identification information I accept the points made for the Crown and I do consider this to be in the mid-range. The fact of the offending continuing well after the “live run” is adverse to the offender in considering this offence on its own, and later when considering just what degree of concurrency there should be.

26. There are two matters to be taken into account on the section 16BA schedule which are both further charges under the same section (372.1) though they are different aspects of that section, namely dealing in identification information and possessing identification information with in each case the maximum penalty being five years.

27. Sequence 10 shows dealing with eight entities and concerns at least 12 individuals. Without meaning an injustice to the detail of the facts, in short the offender would purport to be these people in an effort to commit a further importation offence as the date of this activity postdates the “live run” the subject of sequence 13. The facts of sequence 15 occur in the period May 2018 to at least 26 May 2020. None of the importations connected with the use of this identity information resulted in importation of border-controlled drugs. It is an agreed fact that this offending was for the purpose of facilitating or committing the offence of importing a commercial quantity of a border-controlled substance beyond that of sequence 13. Unlike my view as to sequence 11 I do consider this conduct adds some weight to the penalty for sequence 15.

28. Sequence 11 is possessing identification information. Upon a search of the offender’s residence identity documents for five identities relevant to the principal offence under section 372 were found and hence were in the offender’s possession.

29. In my view sequence 11 would not result in any meaningful additional penalty for sequence 15 because in order to effect sequence 15 (and or sequence 10) in dealing with identification information it is necessary that the information be possessed; the possession charge could be said to be part and parcel of the dealing offence in a way analogous to how selling drugs and being in possession of proceeds of crime can be seen to be part and parcel, with the consequence that there is little additional criminality; see Redfern v R [2012] NSWCCA 178 at [17]

Sequence 2

30. This is the state offence of dealing with property reasonable to suspect was proceeds of crime. The maximum penalty is 5 years. To constitute this offence the value needs to be more than $100,000 and here it was $1.5 million. The section in its present form has a ceiling of $5 million though the Crown proceeded on the basis that at the time of this offence the section had no upper limit. The money was located on 25 November 2020 although the date is also said to have been 5 October 2020 (compare [10] and [87] of the facts); nothing turns on this. It was located at the Carlingford residence rented in the name of Ben Rogers. In terms of sequence 2 nothing is known other than he had the money in his possession and he reasonably suspected it was proceeds of crime. The offender argues this is below the mid-range and the Crown argues that it is between the middle of the high end of the range based on the quantity and that it was hidden in a property rented in a false name. In my view simply based on the quantity and the subterfuge relating to the renting of premises in a false name, this must be into the mid-range.

31. To be taken into account with this offence by way of the Form 1 procedure is the Weapons Prohibition Act offence of possessing a prohibited weapon. That was a pair of knuckle dusters. That weapon was found when the offender’s premises were searched. Beyond that little if anything is said about this offence. The offending carries a significant maximum penalty of 14 years, however given the dearth of information concerning it I accept the submission of the offender that it adds negligible if any weight to the sentence for the principal offence.

Subjective case

32. A report was provided by Dr Furst dated 12 October 2022. The history given is of the offender being born in Sydney and leaving school at year 10. He was active in sports. His parents separated when he was 18 months old and he was raised by his mother. The offender was born on 28 September 1987 so is now 35. His mother re-partnered in about 1998. There is nothing suggested of any background of disadvantage and he seems to have had a relationship with his father. He worked initially as an apprentice in shop fitting and joinery and continued in that trade until about age 29.

33. With his partner Rebecca he had a child in 2015. They later married and have another son Mason. They started a café business in 2018.

34. There is no history of abuse of alcohol but there is a history of drug use most damagingly ice in his late 20s as well as cocaine. He stopped using drugs for about 4 ½ years but then recommenced in about 2018 and this was ongoing predominantly with ice until his arrest. His relapse to drug use appears to have been due to financial stress which was worsened with the Covid pandemic.

35. The psychiatrist notes indicators of ADHD but does not say that it can be a diagnosis. The only diagnosis made is of substance use disorder that is the excessive use of the drugs methamphetamine and cocaine.

36. The report notes the offender accepts responsibility for his offending and that he regrets his offending. Recommendations are made for appropriate treatment programs

37. The second report which predates Dr Furst is of a psychologist Ms De Santa Brigida. That report in turn refers to an earlier report by the same author of March 2021. It evidences regret and remorse and acknowledgement of wrongdoing. It contains a history consistent with the above. The cause of the offending would appear to be as said by Dr Furst, maladaptive coping with stress by using drugs and mixing with negative peers.

32. There was also a sentencing assessment report. The report is favourable overall. The history given is consistent with the above, the offender conceded that he did offended for financial gain and it notes the history of drug use and he is influenced by antisocial peer groups. He displayed a degree of insight as to the impact of drug offending on the community. He is willing to undertake intervention and community service work. He was assessed as a medium to low risk of reoffending. He hopes to return to his café business. The criminal history is minimal, and this offending is a significant escalation. The offending occurs following a relapse into drug use. There was also financial stress in the lead up to the offences.

33. The offender has completed a positive lifestyle program in custody. There is a letter in support from his wife Rebecca. She supports the history given and speaks of the support that he has given her over the years. She also talks of the difficulties in visits with the offender in prison due to Covid which is a reference to periods of lockdown he has suffered.

34. The offender's mother-in-law provides a letter of support speaking of a strong relationship with the offender and of his good character and conduct and cites examples of the help he has given others.

35. There is also a letter of support from a childhood friend, Ms Votano, who now works for the St Vincent DePaul support services. She speaks of the offender’s dedication to his family, likeable personality, and says he has expressed great remorse to her.

36. There is a further letter from a lifetime friend Mr Pisani with whom the offender worked for the period 2003 to 2015. I accept the offender to have been a hard-working person establishing his own business.

37. A letter from a Ms Grono is again supportive and she comes from the position of employee and speaks highly of him.

38. The last reference is from a Ms Hartin who the offender met when he moved to the Central Coast and started the café. Ms Hartin was suffering from cancer and tells of how the offender went out of his way to assist her.

39. The offender wrote a letter to the Court. In it, the offender accepts responsibility for his offending and acknowledges his wrongdoing. The offender admits to doing the things in the facts sheet, and was rewarded with benefits which helped him financially, which I infer means received money, and was also given drugs. Overall, this letter assists the offender, though I note there is about the description of the offending a tone of understating his involvement, however that may just be poor expression and in any event is offset by his acceptance of the facts and acknowledgement of guilt.

40. There was also a letter of the doctor treating the offender’s son Noah, who suffers from ADHD and ODD and has difficulties with emotional regulation, and a letter of a psychologist who had treated Noah. Following his father’s absence due to his arrest Noah’s emotional outbursts became more marked. Noah was born in 2015 and his condition requires medication. The offender’s wife Rebecca has also sought counselling to assist her to cope with his absence.

Consideration

47. Section 17A of the CCA provides that there shall not be a sentence of imprisonment unless the court after having considered all other available sentences is satisfied that no other sentence is appropriate in all the circumstances of the case. Section 16A of the CCA sets out the matters to which the court is to have regard when determining the sentence to be passed. In this case there is no issue that there must be a term of imprisonment of some significance given the serious nature of sequence 13. There was no argument that there should not also be a term of imprisonment for the other two matters, a position sensibly adopted by the offender given the magnitude of the money involved in sequence 2, and the period of time and amount of activity connected with sequence 15.

48. In order to determine the appropriate sentence matters set out in section 16A need to be considered. Both parties have helpfully addressed those paragraphs seriatim so far as they are relevant. The most convenient way to consider them is by reference to the matters identified by the Crown submissions commencing at [42] and considering the competing submission of the offender.

49. The first matter is to consider the nature and circumstances of the offence. I have considered this in assessing the objective seriousness of the matters above.

50. Next is to consider other offences that are to be taken into account, and this too has been addressed above by reference to the section 16BA and the Form 1 procedures.

51. It is relevant to consider whether the offending forms part of a course of conduct. This is a recognition of the totality principle. In this case the conduct constituting the aiding and abetting the attempt to import (sequence 13) included in large part conduct which, with other conduct, founds sequence 15, the offence of dealing in identification information. There are two distinct acts of criminality in the 2 offences, and the conduct does not entirely overlap and by no means should the punishment be wholly concurrent but in my view bearing in mind the principles of totality and the need to have a sentence reflect the overall criminality of the offending there must be a degree of overlap in these two sentences. I will return to this when I come to set the aggregate sentence for the Commonwealth offences.

52. There is a need to ensure that the person is adequately punished. I take that into account but would note that any sentence arrived at after considering the matters to be considered on the facts of this case is undoubtedly when sensibly arrived at to be one that is adequate punishment.

53. There has been injury loss or damage resulting from the offences. I accept the injury suffered by the three real people who were the subject of the stolen identities of sequence 15. I also note the cost of the community of time and resources to protect against criminal activity. It cannot go unnoticed however that no drugs entered the community as a result of this offending. That is not a mitigating factor but it does mean that the sentence is not markedly added to by reason of the harm caused.

54. The Crown argues the court should be guarded in accepting contrition when there has not been sworn evidence. The offender points to the fact of the guilty plea and that supports a finding of contrition and remorse. In addition, there is a letter of apology which I find is sincere expressing remorse. There is also evidence of remorse in the psychiatrist report, and more persuasively in the letters of support from family and friends. I make a finding of remorse favourable to the offender, a state of mind I consider very likely in any event given his personal circumstances and the damage done to his own family. Furthermore, the subjective material painted a very favourable picture of the offender who, when not in the thrall of drugs, I find to be a person of good intentions and dedicated to his family and who helps others, and a person likely to be remorseful and contrite.

55. The offender has pleaded guilty and there is no dispute that given the timing of his plea a discount of 25% would be appropriate albeit that for the Commonwealth offending that is not stated by statute. In respect of the Commonwealth offences, it was decided in Xiao [2018] NSWCCA 4 that the utilitarian value of a plea may be taken into account. I accept the offender’s submission that the conduct of a trial of these offences would have been complex and costly. Xiao also established that it is desirable to specify the amount of discount for the utilitarian value of the plea, and in my view a 25% discount should be applied to the Commonwealth offending.

56. There has been no cooperation by the offender with law enforcement.

57. I accept the Crown submission that there needs to be a sentence which serves the purpose of deterrence both specific and general. The damage done to the community by the perpetuation of the drug trade and the dissemination of drugs within the community ruins lives and causes significant damage. Sadly, the offender is an example of such damage. Whilst the state offence cannot be said to be connected to the drug trade there is nevertheless a remaining need to deter dealing in such large amounts of money which one reasonably suspects are proceeds of crime in order to deter crime in a general sense.

58. It is necessary as in all cases to consider the character, antecedents, age, means and physical or mental condition of the offender.

59. The offender has a minimal criminal history. His first offence was at the age of 27, being 3 counts of damage property. In 2015 he drove whilst disqualified and also entered inclosed lands. That was the extent of his offending until the period of this current offending. His record shows driving matters in 2020 and also at that time, more significantly, dealing with proceeds of crime and of possessing unlawfully and Australian drivers’ licence being that of Ben Rogers. If those matters are put aside because they form part of the same course of conduct currently being dealt with, then in my view the record does not deny him all leniency.

60. There is a conflict between the psychiatric opinion and the psychological opinion in evidence in this case as to the extent of the mental health of the offender though there is common ground that he suffers from substance use/abuse disorder and possible ADHD in the context of his offending. I do not act on the basis of the offender suffering ADHD; the offender did not seek to rely on the psychological diagnoses that were not agreed with by the psychiatrist in his written submissions in my view properly so. In my view the Crown makes a good point in focusing on the detailed activities engaged in by the offender which is demonstrative of him being a highly functioning individual. In my view the offender is plainly capable of ordered thought given the offending. Somebody suffering from substance abuse may in certain circumstances be impulsive but that cannot be maintained here given the period in which the offending occurred. It seems to me the more appropriate way to take into account this condition of the offender is in considering his prospects. That said, I do take into account the offending occurring in the course of a decline into substance abuse. This is not mitigating the sentence on the basis of intoxication, but an acknowledgment that the drug use led to poor decision making.

61. The next consideration is the prospect of rehabilitation. There is the assessment in the sentencing assessment report of medium to low risk of reoffending which is an assessment based on a static test being the level of service inventory-revised test. That is it does not take into account dynamic features. The dynamic features here include a history of being pro social, supportive family and good work prospects on his return to the community. He has also in the past for some periods remained drug-free. Those considerations not only support the medium to low assessment but would suggest an assessment more favourable than that to the offender. It is trite to say that the offender’s prospects of rehabilitation in the sense of not reoffending is inextricably linked to whether or not he is able to rehabilitate himself from his substance abuse. Overall I consider the offender’s prospects of rehabilitation to be guardedly good.

62. Also favourable to the offender is that the court should consider the probable effect of the sentence on his family. In line with the recent decision of Totaan [2022] NSWCCA this does not need to be exceptional hardship. In this case the offender’s child Noah suffers from ADHD, emotional dysregulation and ODD. Unsurprisingly the offender’s wife is suffering in raising the two young children on her own and this is made more difficult by the condition of Noah. I have given this some weight in my considerations.

63. There should also be taken into account the fact that custody is a more onerous proposition since the advent of the pandemic. There is evidence before the court of the time in lockdown spent by the offender. The offender’s letter asserts, and I accept, that he has spent 144 days in lockdown, meaning being in his cell for 24 hours of the day, and on one occasion for a period of 18 days. Just how this can be in our system is not something there is sufficient evidence to comment on in this judgment, but it certainly makes good a submission as to custody being more than usually onerous, and I take it into account.

64. The Crown has dealt with the state offence separately and appropriately so, given that it is necessary to apply the provisions of the Crimes (Sentencing Procedure) Act in respect of that matter. The effect of the above considerations however means that the relevant provisions of section 21A have been addressed. I have made reference to the planning involved in this offence above when considering the objective seriousness of the matter. The offender’s record does not aggravate the current matter given that the worst of it seems to in fact be the same course of conduct now being dealt with.

65. As to mitigating factors set out in s21A(3), they have been considered above.

66. Overall, I consider the offender has a good subjective case. His background is largely of being a pro social contributing member to the community, dedicated to family and caring of others. It is the offender’s vulnerability to substance abuse that is the criminogenic risk factor, which is in turn his maladaptive response to stress, in particular it appears, financial stress. This strong subjective case needs to be taken into account with the objectively serious nature of the offending.

67. To adopt a term of the CSPA, the non parole period of the sentences, and the sentence overall, should reflect a finding of special circumstances. This is to allow a longer period of supervision in the community to aid the offender remain free of drugs, and to assist him with counselling and treatment in that regard. It is also a further recognition of the more onerous nature of custody, and further acknowledges that this is the offender’s first time in custody. In Commonwealth terms, the rehabilitation of the offender is one of the purposes of parole (s19AKA).

Totality and structure of sentence

68. Section 19 of the CCA deals with cumulative, partly cumulative or concurrent sentences. Section 19(3) applies where a person is convicted of federal offences and a state offence at the same sitting and the person is sentenced to imprisonment for more than one of the offences.

69. The effect of s19 is that no federal sentence can commence later than the end of the other sentences fixed at that time and if there is a non-parole period the first federal sentence is to commence after the end of that non-parole period. The effect of those provisions is that the appropriate way to proceed here is to set a sentence for the state offence. An aggregate term should be arrived at for the federal offences. That aggregate term cannot commence later than the end of the state sentence and not before the expiration of the non-parole period or in the words of the statute at the end of that period. The consequence of this is that there will be a period of concurrency or overlap between the parole period of the state offence and the non-parole period of the aggregate offence. This means that an adjustment needs to be made to the non parole period for the Commonwealth sentence to ensure the intent of the finding of special circumstances remains reflected in the overall sentence.

70. In the case of Hall v The Queen [2021] NSWCCA 220 Hulme J reviewed the principles of totality. He referred to R v Holder [1983] 3 NSWLR 245 which makes it plain that a sentencing judge is to evaluate the overall criminality involved in all of the offences and to adjust the aggregate sentence, "To achieve an appropriate relativity between the totality of the criminality and the totality of the sentences." Put perhaps more simply his Honour referred to Mill v The Queen [1988] HCA 70 where it was said the Court, "Must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences."

71. Hulme J also referred to Cahyadi [2007] NSWCCA 1. At [27] of Cahyadi it was said in considering whether the sentence for one crime can comprehend the criminality of another:

"This is so regardless of whether the 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 affect the criminality of both."

72. In setting the aggregate sentence I have applied these principles. The principles apply not just to the two Commonwealth sentences, but also in ensuring that that overall sentence including the state sentence proportionally reflects the overall criminality of the offender’s conduct.

Outcome

73. In respect of the state offence and taking into account the Form 1 matter and applying the 25% discount in my view there should be a sentence of two years which after the discount becomes 18 months. The sentence should be backdated to 25 November 2020. Allowing for special circumstances the non-parole period should be 12 months so as to expire on 24 November 2021.

74. As indicated, I propose having an aggregate sentence for the Commonwealth offences, so the indicative sentences need to be stated. In respect of sequence 13, taking into account all the above considerations and noting the matter on the section 16BA schedule namely sequence 14, prior to the discount the sentence should be 8 years and therefore 6 years after the discount. In respect of the count of dealing in identification information, sequence 15, and taking into account the matters on the schedule the indicative sentence prior to the discount is 2 ½ years and so 22 months after the discount. The aggregate term should be 7 years, noting that the conduct making up sequence 15 was not wholly attributable to sequence 13. The non-parole period prior to considerations of the impact of the earlier non-parole period should be 5 years.

75. The above conclusions see an allowance of special circumstances for the state offence, a comparable though not identical allowance for the Commonwealth offence, but with the overall sentence not reflecting that. This is because of the non-parole period of the Commonwealth offending overlapping with the parole period of the state offence. Accordingly, to properly give effect to the findings, there should be a lesser non parole period for the Commonwealth offence. By making the non-parole period for the Commonwealth offences 4 ½ years, this is achieved as it has the effect of restoring a comparable ratio of the balance of term to the non-parole period for the overall sentence, thus giving effect to the findings. Accordingly the non-parole period for the Commonwealth sentence shall be 4 ½ years. I note that this is in line with the submission of the offender that the non-parole period overall should be about 5 ½ years, a submission with which I agree for the reasons just stated. Further I consider the period of 5 ½ years in all the circumstances of this case to be minimum time in custody necessary to reflect the seriousness of the offending overall.

Orders

76. The offender is convicted of the 3 counts identified as sequences 13, 15 and 2.

77. In respect of sequence 2 the offender is sentenced to a term of imprisonment with a non-parole period of 12 months commencing on 25 November 2020 and expiring on 24 November 2021, with a balance of term of six months expiring on 24 May 2022.

76. In respect of sequences 13 and 15 the offender is sentenced to an aggregate term of imprisonment with a non-parole period of 4 ½ years commencing on 25 November 2021 and expiring on 24 May 2026 and with a balance of term 2 ½ years expiring on 24 November 2028.

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Decision last updated: 03 April 2023