R v Busu

[2023] NSWDC 573

District Court

New South Wales

Medium Neutral Citation:

R v BUSU [2023] NSWDC 573

Hearing dates:

13 December 2023

Decision date:

15 December 2023

Jurisdiction:

Criminal

Before:

NOMAN SC DCJ

Decision:

Aggregate sentence of 3 years imprisonment, to be served by way of ICO with 500 hours of community service work. Indicative sentences: Seq 3 ongoing supply: 2 years; Seq 5 knowingly take part in prohibited drug: 14 months; Seq 131: Supply prohibited drug: 9 months; Seq 132: Deal in proceeds of crime: 9 months; Seq 133: Deal in proceeds of crime: 12 months.

Catchwords:

CRIME – Sentencing – Drug supply – penalties - intensive correction orders

Legislation Cited:

Ss 10(1), 25 (1), 25A(1) Drug Misuse and Trafficking Act 1985 (NSW)

Ss 193C(1) and 193C(2) Crimes Act 1900 (NSW)

S 16(1) Poisons & Therapeutic Goods Act 1966 (NSW)

Category:

Sentence

Parties:

R;
Ioan Busu

Representation:

Counsel:
Crown: Ms Henry
Defence: Mr Djemal

File Number(s):

2022/142962

JUDGMENT

1. In late 2021 the offender commenced his involvement with supplying prohibited drugs. This conduct involved him also dealing with the proceeds of crime. The offender came to the attention of police. He subsequently admitted his conduct in the Local Court, conduct that will result in a 25% reduction to each sentence.

2. The offender appears for sentence on the following offences:

Offence	Details	Maximum penalty
Seq. 3 Supply prohibited drug on ongoing basis s.25A(1) DM&T Act	5 supplies of cocaine totalling 2.6 grams	20 years &/or 3,500 penalty units
Seq. 5 Knowingly take part in the supply of prohibited drug s.25(1) DM&T Act	Purchase of 340 grams of Clonazolam (Alprazolam/Xanax)	15 years &/or 2,000 penalty units
Seq. 131 Supply > indictable quantity of prohibited drug s.25(1) DM&T Act	27 grams of MDMA	15 years &/or 2,000 penalty units
Seq. 132 Deal with proceeds of crime s.193C(2) Crimes Act 1900	$24,935 cash and 16,647 Cronos (cryptocurrency located on offender’s mobile phone) worth $4,079	3 years
Seq. 133 Deal with proceeds of crime s.193C(1) Crimes Act 1900	Controlled purchase of 1,642 bitcoin worth $115,080	5 years

3. The maximum penalty operates as a legislative guidepost and represents the legislature’s assessment of the seriousness of the offence.

4. The offender also asks that 10 offences on a form 1 be taken into account when I sentence on the ongoing supply offence:

Seq. 1 Knowingly take part in supply of prohibited drug s.25(1) DM&T Act	Controlled purchase of 1.2 grams of cocaine	15 years &/or 2,000 penalty units
Seq. 28 Possess prohibited drug s.10(1) DM&T Act	11.8 grams of cannabis	2 years &/or 20 penalty units
Seq. 29 Possess restricted substance s.16(1) Poisons & Therapeutic Goods Act 1966	12.08 grams of diazepam	6 months &/or 20 penalty units
Seq. 30 Possess restricted substance s.16(1) Poisons & Therapeutic Goods Act 1966	6.56 grams of zolpidem	6 months &/or 20 penalty units
Seq. 31 Possess restricted substance s.16(1) Poisons & Therapeutic Goods Act 1966	6.56 grams of quetiapine	6 months &/or 20 penalty units
Seq. 32 Possess restricted substance s.16(1) Poisons & Therapeutic Goods Act 1966	18.5 grams of clenbuterol	6 months &/or 20 penalty units
Seq. 33 Possess restricted substance s.16(1) Poisons & Therapeutic Goods Act 1966	0.16 grams of zopidone	6 months &/or 20 penalty units
Seq. 34 Possess prohibited drug s.10(1) DM&T Act	26.18 grams of bromazolam	2 years &/or 20 penalty units
Seq. 35 Possess prohibited drug s.10(1) DM&T Act	1000.3 grams of testosterone	2 years &/or 20 penalty units
Seq. 37 Possess prohibited drug s.10(1) DM&T Act	1.41 grams MDMA	2 years &/or 20 penalty units

5. I consider it appropriate that I take these further matters into account and I do so in accordance with the principles set out in the guideline judgment. There are a number of further offences, all but sequence 1 relating to items located at the time of arrest. They reflect his involvement in various illicit substances. They will result in an adjustment to the sentence for the principal offence.

6. I have had regard to the full facts and recite parts in summary. The facts document is common to this offender and a co-offender, this offender’s brother Alexander Busse. I shall address factors informing objective seriousness of offences for sentence in considering the facts informing the offending. Submissions were advanced on the findings on objective seriousness that should be made. The overall submission advanced by the offender was that for each offence the offender’s conduct was towards the lower end of the scale of objective seriousness.

7. From 2017 drugs were marketed on the dark web. Various drugs and restricted substances were offered with the preferred payment being in cryptocurrency. It is not suggested the offender was involved until 2021. He recruited his brother in circumstances not disclosed in the facts but admitted to in a psychological report. The online entity was sophisticated; it was on the dark web with encryption, cryptocurrency was involved and packages were available for online distribution. Different drugs were available. The system, how it operated and what was offered, was established prior to the offender’s involvement. The offender however had initiative and was not a mere functionary. His engagement with the final offence indicates his involvement with suppliers and sourcing supplies. The co-offender used a unit leased in his name to prepare packages for mailing. It is not suggested the offender ever visited this unit or was involved in the leasing. The offender had access to the established site and passcode to operate the online business.

8. Police used various means to monitor and investigate the activities. This included utilising an undercover operative or ‘authorised person’ to make contact and controlled buys. Those purchases were intercepted and therefore not disseminated. That fact is not due to any action by the offender and is merely fortuitous. The offender performed an important role although within a larger operation. He and his co-offender provided drugs as ordered. He exchanged money and cryptocurrency. On occasion although the fact of communication is known it is not known which offender was responsible. It is accepted for those shared counts that they operated jointly.

9. Both offenders were found to have file names on computers recording about 500 fake business addresses. One of these was used to send the first package.

10. Within the agreed facts there are references at [16], [36] and [50] to other packages. It was accepted that I should not use these references adverse to this offender. I am not to infer that the other packages included drugs or that he was aware of the other packages.

11. The offender was involved from at least 7 December 2021 when he committed the first supply of cocaine, being item 1 on the form 1. He still was in possession of drugs and drug money upon arrest on 17 May 2022. This reflects a period overall of just over 6 months.

12. He was involved for payment. He said he had a drug debt that he worked to pay off. He also said he paid it off and continued to be involved to support his own drug use. I can only take into account his involvement in the drug charges before the court. This reflects fairly limited supplies. His admissions of the benefit advanced to his psychologist reflect he was significantly involved, and in far more supplies, such that he paid off $30,000-40,000 and then continued to supply. The offender indicated to the psychologist that he took orders and prepared shipment, evidently at a high sales volume given the benefit he obtained. I appreciate this is in the context of his acceptance of far greater involvement than reflected in the charges. However, it is not inconsistent with the facts. I accept his admission to his role involving taking orders and packing. I disregard the admissions as to the extent of supplies.

13. Between 7-9 December 2021 the offender was involved in supplying by mail 1.2g of 55% pure cocaine.

14. From late November 2021 until 14 December 2021 the offender engaged in communication about exchanging cash for bitcoin. There were three separate transactions totalling over $115,000. The offender met with the authorised person on each occasion to hand across the money. This offence is for sentence [sequence 133]. I have taken into account that the lower level for this offence provision is $100,000. There were three separate transactions over about 2 weeks. The offender exposed himself to risk by meeting with the purchaser. I accept the other person was an undercover operative and he instigated the offending. There is no suggestion the offender did anything other than he was prepared to do as part of his involvement in the website. This fact does not diminish the seriousness. The Crown submitted this offence to fall towards the bottom of the range.

15. The offender was involved in 5 separate supplies between 17 February 2022 and 17 March 2022 supporting the offence of ongoing supply [sequence 3 for sentence]. Each supply was for ½g of cocaine. The purity varied but was around 50%. On each occasion the package was mailed by the co-offender after attending the leased premises in Rose Bay. His DNA was located on one package and his fingerprints on another. I have taken into account that there were 5 separate transactions with the minimum required being three. Each supply was for a relatively small quantity of reasonably high purity cocaine. As has been stated for offences under this provision, where prescribed maximum sentences are not graduated by reference to quantity as for s.25 offences, it is the element of repetition that is of significance. The precise role of the offender is unclear. His co-offender attended the unit and mailed the packages. The Crown submitted this offence to fall towards the mid-range.

16. Police executed search warrants on both offender’s premises and the leased premises on 17 May 2022. Within the leased premises police located post packages, label makers, sheets of return label, scales, a money counter, a shredder, documents in the co-offender’s name and gloves.

17. Various drugs and restricted substances re located in the leased unit and the co-offender’s home. Only he is charged with those items.

18. The offender is charged with items located in his home. He is to be sentenced for 27g of MDMA located in a desk drawer [sequence 131]. This is an offence where the drugs were in his possession to be supplied at some later time in unknown quantities. The purity is not disclosed so it is unknown if the purity accords with that previously supplied. I have taken into account the quantity as between the lower and upper ends of the range. It is well below a commercial quantity. The Crown submitted this offence to fall below the mid-range.

19. Eight drugs or restricted substances located in the home are listed on the form 1. Drug supply paraphernalia, including post bags, resealable bags, postal receipts, vacuum sealer and bags, drug testing kit and digital scales were also located.

20. Cash and cryptocurrency on a phone, combined totalling $29,014, was located. This is an offence for sentence [sequence 132]. The proceeds are likely drug proceeds. It is a significant amount but well below the upper end of the range of $100,000. The Crown submitted this offence to fall below the mid-range.

21. The police searched the offender’s phone and discerned he was signed into an encrypted application and that he had been communicating with a supplier. The offender indicated he would start with $2000 per week and proposed scaling it up to $5000. He discussed problems with quality from other suppliers. The offender sent this person about $4600 in Monero cryptocurrency and police subsequently intercepted a package containing 340g of clonazolam, or Xanax. The offender had been communicating about this transaction since 14 May 2022. This is sequence 5, an offence of supply based on the extended definition of soliciting for supply and the offence is for sentence. I observe the facts refer to it as a deemed supply. This is evidently an error as the offender sought the supply and sent money. He never received it to possess it. It does not alter the seriousness. The Crown submitted this offence to fall below the mid-range.

22. Although the Crown’s assessments of the seriousness of offences are somewhat generous, I endorse each.

23. The offender is now aged 34. Other than a long-standing use of illicit drugs, he is a person of good character. He has no criminal history. The offender’s lack of antecedents and general good character operate to entitle him to leniency. He did not utilise this background to facilitate the offending.

24. There is considerable evidence illuminating the offender’s background.

25. The offender wrote to the court. He did not give sworn evidence. He expressed his ‘deepest regret and apologies for [his] actions’. He expressed shame for his conduct and that he understood his actions had hurt others including society, his family, his fiancée and himself. He explained the circumstances of his ketamine addiction and its connection to his offending through a drug related debt. He advanced his rehabilitation though drug abstinence and his work ethic including commencing in custody. There are numerous certificates attesting to work related qualifications obtained after entering bail. His work colleagues provided references.

26. His mother, Maria Circu, swore an affidavit. She was not required for cross-examination. She is the mother to both offenders. They do not share a father. She provided an account of the offender’s background including the circumstances of her leaving Romania. Both of the offender’s parents were well educated although they required retraining to work in America where they initially lived and then in Australia where they lived from 1997. The offender lived with his grandmother in Romania whilst his parents were in America for four years. She advanced the offender received a childhood diagnosis of ADHD which they elected not to medicate. He excelled in schooling and achieved admission to a selective high school. Ms Circu detailed the offender’s father being emotionally abusive to the family and physically abusive to the children. She did not intervene and developed depression. She overdosed on a number of occasions. The offender completed tertiary education although the offender was disappointed he did not obtain admission to study medicine. She addressed other losses such as the death in 2016 of the offender’s uncle to whom he was close. The offender was in a car accident and required 2 months recuperation. He was depressed after a relationship ended in 2017. Ms Circu sought to address the offender’s remorse describing his embarrassment and his feeling of guilt for doing the wrong thing and letting the family down.

27. There are a number of reports and medical documents.

28. In 2007, when the offender was in year 12, he sought special consideration for the HSC by advancing his parents separation and his consequent depression. There was a stated diagnosis of clinical depression. The psychologist author stated the offender sought counselling for himself and family.

29. In 2018 his GP prepared a mental health plan noting ‘mood mildly depressed’ and referred the offender to a psychologist for depression. There are two consultations noted. The offender told Ms Cullen he only attended two consultations as he was not ready and he was not medicated.

30. There are urinalysis results supporting the offender is drug free. His employer also noted there are regular work tests required.

31. His girlfriend / fiancé Tainara Roberto-Alves sent text messages to the offender’s brother in September and November 2021 voicing her concern for his serious issues over the years with ketamine.

32. In February 2023 a psychologist noted the offender to have symptoms of depression, anxiety and stress, all in the moderate range. This timing was after a referral in July 2022, soon after entering bail and therefore close in time to the offending. After her treatment, she noted the symptoms to have decreased. Another psychologist from the same practice noted the offender to recently have significant symptoms in the severe range for depression and stress and moderate range for anxiety. She advanced he met the criteria for PTSD. It is of some significance that there was no diagnosis of PTSD in his early treatment soon after release to bail.

33. There are also hearsay accounts. I am assisted by both a Sentencing Assessment Report (SAR) and a psychological report. Both attest to his employment and study history.

34. It is stated in the SAR that the offender indicated regret and demonstrated insight into the impact of his offending upon himself and his family. He was unable to demonstrate the impact upon the wider community. He said he facilitated transactions but was not in charge. He used up to $700 on ketamine daily and supplying was effectively his employment. I note there is no other suggested employment around the period of his supplying. He is accepted to be drug abstinent for over a year and to fall in the medium-low risk of reoffending. If released into the community, he would only be monitored and there would be no face-to-face reporting. He is assessed as suitable for community service.

35. Alison Cullen, forensic psychologist, prepared a report based upon material supplied, a consultation via AVL on 17 November 2023 and further inquiry. Based on the history she received, she described the offender to have been subjected to an emotionally and socially deprived childhood. She repeated the difficult history in Romania and after emigrating from there to America and Australia. The offender felt a sense of abandonment from his parents. He referred to spending time with his grandparents in Australia in negative terms. I note his mother advanced a contrary view and that the offender enjoyed visiting. He did not particularly like his father. He admired his mother’s former husband who was his brother’s father and with whom she reconciled. He provided the history of his beloved uncle’s death. He advanced the history of his academic disappointments.

36. The offender stated his drug use commenced with his parent’s separation in year 12 and his poor ATAR result. It did not prevent him from completing his tertiary qualifications. He said he was not accepted into the Honours program although his mother said he commenced but did not complete it. He was sufficiently qualified to achieve employment but seems to have not progressed professionally beyond tutoring schoolchildren. He secured employment within a fortnight of his release to bail demonstrating his ability to obtain legal employment even with the pending charges. There is no real explanation advanced for his inability to secure legitimate employment prior to resorting to drug supply.

37. The offender described his poly-substance drug use over the years, interspersed with periods of abstinence. At the time of offending cocaine but principally ketamine were his vices. Xanax was used responsively. He has been abstinent since arrest. He is tested which provides an incentive to maintain abstinence. Previous relapses have occurred. This period of relatively prolonged abstinence is fraught with the risk of relapse.

38. The offender outlined his own increase in drug abuse as the impact from a university friend overdosing in 2019. The impact was compounded by the social isolation of COVID. He was dating his current partner at this time.

39. The historical concern about ADHD was ventilated. There are inconclusive tests for ADHD. She reported Ms Thiessen indicating an absence of diagnosis but a presence of a few ADHD ‘flags’. She added some concerns about the childhood diagnosis and indicated he was not currently exhibiting the signs typically observed. She expressly said the diagnosis could not be made.

5. Ms Cullen administered testing, conducted in November 2023; that is, more than 1 ½ years after his arrest and weeks prior to sentence. He fell in the extremely severe range for depression, severe range for stress and moderate range for anxiety. She attributed a causal factor to be his mother’s own unstable mental health. I would defer to the earlier testing to understand his situation at the time of offending. She stated a concern about how the offender sought to portray himself and it may raise some concern about distortion or feigning. She noted his recklessness and impulsiveness and that he was prone to being self-harmful or self-destructive in ways such as substance abuse.

6. Ms Cullen indicated the offender was exhibiting symptoms commensurate with PTSD. A trauma factor included the index arrest and incarceration. This would undoubtedly be a matter of significance. Ms Cullen did not expressly exclude this feature in her consideration of possible diagnoses.

7. Ms Cullen assessed the offender’s depression to be directly linked to his drug use. She opined it was likely that at the time of the offending that the offender satisfied the criteria for PTSD, moderate major depressive disorder and substance use disorders.

8. She assessed the offender to fall in the low risk of reoffending. She considered the arrest to have been salutary and that protective measures are in place.

9. Ms Cullen provided a hearsay account of remorse received from Ms Circu, including that the offender kept telling his mother he had remorse. This included they did not talk about it but she could see it in his eyes and behaviour. She also included a hearsay account by Ms Thiessen; that Ms Thiessen believed the offender to be genuinely contrite and taking actions to address his criminogenic factors. Ms Cullen reported the offender expressed that his offending caused issues to others and contrition.

10. It is of note that Ms Cullen noted the offender’s responses indicated defensiveness about shortcomings and an exaggeration of problems.

11. Some of the subjective material informs moral culpability.

12. The offender well understood he was committing serious illegality. He made a calculated decision to offend purportedly to address his drug debt and service his drug addiction. It is not that his background failed to impress upon him the wrongfulness of his conduct.

13. I do not accept that PTSD operated based on the inclusion of a significant post offending factor. I do accept that despite some familial support and his academic success that he did experience life trauma. I accept that it is likely that this trauma and his personality defects predisposed him to succumbing to substance abuse. It does not appear that these issues are fully addressed, and some may be innate and untreatable given their presence at his age. However, he has abstained from substances and those addictions do undoubtedly inform his involvement in the drug milieu. His family and partner were present at the time of offending and so alone do not present as sufficient to cause him to desist from relapse. It is for the offender to undergo focussed treatment to alleviate the lifelong depression he has experienced. This background of disadvantage, trauma and mental health issues support mitigation of the sentence that would otherwise be appropriate. The offender’s dysfunctional background is a feature of his makeup and serves to lessen moral culpability. This moderation is not at a significant level.

14. It was submitted on behalf of the offender that the offender has demonstrated his remorse by his pleas of guilty, his progress in rehabilitation, his continued education, his letter of apology and his statements of remorse and contrition to family. To this I add his statements of remorse to authors of reports.

15. I accept that the tendered evidence represents that the offender has expressed remorse. Much presents as lip service and more contain expressions of the impact to the offender and his family.

16. I note the differing assessments of the offender’s prospects of rehabilitation and of not reoffending provided in the SAR and in the psychological report. It is commendable and to the offender’s benefit that he ceased drug use. He has done so previously although never after a life altering experience of arrest and remand. He requires treatment to address other factors and he requires some insight and exploration of these issues. Ms Cullen’s report may assist him to comprehend his behaviours and personality issues particularly where they may inform offending. I determine his prospects are favourable although not without some reservation. Personal deterrence continues to be important. I do not consider its role to be diminished by any subjective features.

17. General deterrence and retribution are important factors. These are serious offences that cause untold harm within the community. I note the submission that personal features serve to moderate the importance of these sentencing factors. I do not determine that the existent features do so in this case.

18. Having considered all the possible alternatives, I am satisfied no penalty other than imprisonment is appropriate. Counsel for the offender did not submit to the contrary. This was an appropriate concession. It was submitted that the matter could appropriately be dealt with by way of the imposition of an Intensive Correction Order (ICO) in that the overall sentence would be 3 years or less and that rehabilitation would be better addressed in the community. The Crown did not advance the appropriateness of full-time imprisonment and made submissions supportive of an ICO.

19. I am cognisant of the period of pre-sentence custody. The offender was on remand from arrest on 17 May 2022 until his release to bail on 21 July 2022; a period of 2 months and 4 days.

20. I am required to consider totality. The offences for sentence are all within the one enterprise or course of conduct and are drug offences or proceeds of crime offences over money or cryptocurrency related to the proceeds of drug supplies. There is a clear connection. However, the offences are temporally separate and have occurred over four different time periods albeit within an overall period of 6 months. Some accumulation is required to reflect this separateness.

21. I intend to impose an aggregate sentence. After considering the objective seriousness and subjective case, informed by the principles of sentencing, including the period on pre-sentence custody, I have determined the following indicative sentences:

1. Seq. 3: Supply prohibited drug on ongoing basis, taking into account the further 10 offences listed on the form 1:   2 years imprisonment;

2. Seq. 5: Knowingly take part in the supply of prohibited drug:   14 months imprisonment;

3. Seq. 131: Supply prohibited drug: 9 months imprisonment;

4. Seq. 132: Deal in proceeds of crime: 9 months imprisonment;

5. Seq. 133: Deal in proceeds of crime: 12 months imprisonment.

57. The aggregate sentence is one of 3 years imprisonment.

58. I am required to embark on an evaluative exercise that treats community safety as the paramount consideration. Community safety is not the sole consideration, but it will usually have a decisive effect unless the evidence is inconclusive. I am guided by an assessment of general risk of reoffending and recommended supervision plans including conditions that might be included in an ICO and enforced by Community Corrections.

59. I am satisfied that the risk of reoffending in a manner that may affect community safety would be better reduced by an ICO than full-time imprisonment for the following reasons:

1. the assessed risk of reoffending;

2. the assessed prospects of rehabilitation;

3. the family support in the community, which although deficient previously there is now an understanding of the offender’s criminogenic features;

4. the preparedness to continue with psychological treatment;

5. the long-term substance abuse issues with recent abstinence that despite previous relapses has been sustained in the community; and

6. the standard supervision condition of an ICO, although stated to only involve monitoring, is more likely to continue to promote rehabilitation, particularly given the offender’s major depressive disorder.

60. The offender is convicted on all five offences.

61. The sentence imposed is one of 3 years and is to be served by way of an intensive correction order. The offender must report by telephone to the community corrections office at Leichhardt within 7 days. The conditions of the order are:

1. to not commit any offence;

2. to submit to at least monthly face to face supervision by a community corrections officer;

3. a community service work condition requiring the performance of community service work for 500 hours;

4. a treatment condition requiring participation in at least monthly psychological treatment with Jodi Thiessen of Bridge St Psychology, or some other psychologist approved by community corrections;

5. participation in a drug rehabilitation program, being one approved by community corrections;

6. an abstention condition requiring abstention from all illicit or non-prescription drugs;

7. prohibition from using any encrypted device or communicating by encrypted applications other than WhatsApp.

If the offender fails to comply with the conditions of this order, sanctions may be imposed. Those sanctions may include a formal warning, imposing more stringent conditions or it may include revocation of this order. If the order is revoked, the offender may be required to serve all or some of the period of your sentence in full-time custody.

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Decision last updated: 18 December 2023