R v Campbell

[2023] NSWDC 652

District Court

New South Wales

Medium Neutral Citation:

R v Campbell [2023] NSWDC 652

Hearing dates:

3 February 2023

Date of orders:

17 February 2023

Decision date:

17 February 2023

Jurisdiction:

Criminal

Before:

Tupman DCJ

Decision:

1. Offender is convicted.

2. Offender is sentenced to a term of imprisonment of 4 years and 6 months, with a non-parole period of 2 years and 3 months.

Catchwords:

CRIME – Commonwealth drug offence – attempt to possess commercial quantity of unlawfully imported border controlled drug – 1,976.7 grams pure heroin – primary offence – s307.5(1) Criminal Code Act 1995 – three co-offenders – joint criminal enterprise – maximum penalty life imprisonment

AGREED FACTS – consignment arrived in Sydney from Thailand – concealed in 24 handbags – AFP seized – 3,797.2 grams – purity of 73.6% – controlled delivery – offender delivered consignment to co-offender’s residence – CCTV footage and surveillance

OBJECTIVE SERIOUSNESS – bottom range – involved in joint criminal enterprise for 2 hours – limited role – not connected to importation or planning – committed for financial gain – offender’s role very low in overall hierarchy – subject to CCO – seriously addictive drug – value ranging from $428,000 to $2.7 million

SUBJECTIVE FACTORS – 32 year old Indigenous Australian man – dysfunctional and disrupted background – minimal criminal record – well-educated – good sportsman – work history – best friend died from drug overdose – suffered serious life-changing trauma – spiralled out of control – significant drug and alcohol abuse – in custody during COVID lockdowns – 200+ days in isolation – extensive range of community supports – suffers from mental health impairments including PTSD – early plea of guilty – 25% discount for utilitarian value – needs intensive support and treatment – prospects of rehabilitation good – low risk of reoffending – genuine remorse and contrition

Legislation Cited:

Crimes Act 1914 (Cth): s 16A

Criminal Code Act 1995 (Cth): ss 11.1(1), 11.2A(1), 307.5(1)

Cases Cited:

R v Nguyen and R v Pham (2010) 205 A Crim R 106

Category:

Sentence

Parties:

Rex (Crown)
Nathan Gregory Campbell (Offender)

Representation:

Counsel:
R McMahon (Offender)

Solicitor:
Solicitor for Commonwealth Public Prosecutions (NSW) (Crown)

File Number(s):

2021/00231402

SENTENCE

1. The offender is before the Court for sentence on one count of attempting to possess a commercial quantity of the unlawfully imported drug, heroin. The primary offence is contrary to s 307.5(1) of the Criminal Code Act 1995 (Cth), as an attempt pursuant to s 11.1(1) of that Act and also as part of a joint criminal enterprise pursuant to s 11.2A(1) of that Act. The maximum penalty for this offence is life imprisonment.

2. The charge specifically is that on 6 April 2021 at Sydney as part of a jointly committed offence he attempted to possess a commercial quantity of heroin particularised as 1,976.7 grams of pure heroin.

3. The agreed facts name the co-offenders as Corey Farrell, Luke Wingate and Lance Farrell. They are listed for a joint trial in the District Court at Sydney on 21 August 2023.

4. As a Commonwealth offence, the offender must be sentenced pursuant to the provisions of Part 1B of the Crimes Act 1914 (Cth), and specifically the provisions of s 16A. An overriding factor is that there should not be a sentence of imprisonment unless there is no other appropriate sentence. Given the nature of this offence and the maximum penalty, there is no other appropriate sentence for this offence other than imprisonment and that is conceded on behalf of the offender.

5. There are some general legal principles arising in sentencing for Commonwealth drug offences and specifically in determining the objective criminality of any particular offence. These general principles in large part are to be derived from the NSW Court of Criminal Appeal decision, R v Nguyen and R v Pham (2010) 205 A Crim R 106. The general principles arising from that decision are set out in paragraph 8 of the Crown’s written submissions which I take into account when applying the statutory provisions of s 16A(2) of the Crimes Act 1914 to this case.

6. One initial fact for consideration is the nature and circumstances of the offending, in other words the facts, which then disclose the role of the offender. The facts are before the Court by way of agreed facts. They are too lengthy and detailed for a plea of guilty and are largely a summary of the evidence which would have been called to prove the offender’s guilt at trial had he not pleaded guilty. They are unnecessarily detailed and time consuming to read and understand. The parties ought to have attempted to summarise them before the matter came to Court. Ultimately, they did at my request, and then compiled a one page document by way of a summary of agreed facts and role of the offender which is of much more use to the Court than the intricate summary of evidence that was initially before the Court.

7. This course is to be encouraged by those appearing in sentences in this Court, in particular in sentences for matters of this type where there is extensive surveillance, to avoid the court’s taking much longer than needed to read and to understand lengthy summaries of evidence called facts.

8. From this combination of agreed facts however I accept that in March 2021 the Australian Federal Police seized a consignment as part of an operation. It had come to Sydney from Thailand by air with the contents described as cloth bag and addressed to a person called Cain Gleeson at an address in Barrack Heights, New South Wales, in the Wollongong area. The address was the residence of Mr Gleeson’s long-term partner and where he lived part time. When Australian Border Force examined the consignment they discovered that it contained 24 handbags and an X-ray showed anomalies. A handbag was opened and found to contain a powdered substance in the lining which tested positive to the presence of heroin. Altogether the gross weight removed was around four kilos.

9. On 28 March 2021 the consignment was seized by AFP officers, was deconstructed and they removed 3,797.2 grams of white powder which was tested and found to be heroin, with a purity of 73.6%. This heroin is the subject matter of the charge before me and thus represents 1,976.7 grams of pure heroin. Officers reconstructed the consignment and installed concealed listening and tracking devices in preparation for a controlled delivery to identify the intended recipients in Australia.

10. That morning, 28 March 2021, a person named in the facts as Luke Wingate of the consignment, confirmed the delivery address in Barrack Heights and gave a mobile phone number.

11. There was a controlled delivery on 6 April 2021 with an AFP officer purporting to be a DHL courier driver who called the number Wingate had provided. The deconstructed consignment was delivered to Gleeson at the Barrack Heights address at 12:40pm on 6 April 2021. Wingate took the consignment from Gleeson and later transferred it to unknown occupants in an Audi and later to a Nissan X-Trail vehicle. The Nissan X-Trail met two other vehicles at Edmondson Park, also in the Wollongong area, at about 4:02 pm that afternoon. One of those was a Subaru which according to the facts before me was occupied by Corey and Lance Farrell, who were brothers, and the other, a Toyota Aurion, was driven by the offender. This car was owned by him and registered in his name. The consignment was transferred by an unknown person to the offender’s car from the X-Trail at Edmondson Park.

12. The offender then started driving the consignment to Darlington in the city. Around this time the Farrell brothers in the Subaru had apparently identified an AFP covert surveillance vehicle in the vicinity of Edmondson Park and followed it as it veered or changed direction towards Liverpool. I accept the submission made on behalf of the offender that an appropriate inference to draw from this is that the Farrell brothers had intended to travel in convoy with the offender but were diverted after apparently having identified an AFP surveillance vehicle.

13. The offender himself arrived at Wilson Street, Darlington, with the consignment in the back seat and walked through Carriageworks to an apartment which was the residence of Lance Farrell. Corey Farrell met the offender outside the apartment building at about 5:28pm and Lance Farrell was seen on CCTV footage in the underground basement car park about 5:34pm. I infer that they had stopped whatever they were doing following an AFP surveillance car and driven to meet up with the offender at Darlington as part of a pre-arrangement but more probably than not arriving a little later than originally intended.

14. The offender and Corey Farrell are seen by CCTV footage getting out of the lift into the lobby area of the apartment around 5:40pm. There was other surveillance being undertaken at the time which identified the offender leaving Wilson Street in his car just before 6:00pm and linking up with the Farrell’s Subaru in Newtown. Both cars then travelled in convey to Erskineville where they parked next to each other in Burren Street about or just after 6:00pm.

15. At some point the Farrell brothers got into the Toyota driven by the offender which then drove from Burren Street. There was then a conversation around 6:04pm captured by the listening device inside the consignment. The transcript of that conversation is at paragraph 43 of the facts. It captures some words between Lance and Corey Farrell and the offender and apparently an unidentified male. I infer that this conversation is consistent with both Corey and Lance Farrell becoming suspicious that the consignment had been identified by authorities and telling the offender in pig Latin not to talk.

16. Shortly afterwards Corey Farrell and Lance Farrell threw the consignment box and all its contents out of the Toyota on Abercrombie Street, Redfern. The offender then drove away along Abercrombie Street towards Redfern, apparently with the Farrells and another unidentified male in the car. There is no evidence about where it went or how it was that those who were inside the car separated.

17. Police recovered the discarded consignment about 6:12pm. At about 7:25pm they sized the Subaru in Erskineville and inside found a black Apple iPhone and case in the centre consol. This was the car that had previously been driven by the Farrells. This phone and case belonged to the offender and in the case, there was a Medicare card, driver’s licence and other material identifying him. They examined the phone which showed that it had been used by the offender and connected him by way of map search to Edmondson Park that day and identified that he had some phone contact with Lance Farrell. The facts do not indicate at what time, whether only that day or any other time.

18. On 13 August 2021 police executed a search warrant at the offender’s home in Botany and seized another Apple iPhone. He was arrested and taken to Mascot Police Station. He did not engage in a record of interview and he has been in custody bail refused since then. His sentence will thus be backdated to commence on 13 August 2021.

19. These would appear to be the relevant facts from which I can assess the nature and circumstances of the offending and the role of the offender. The offender’s role in this joint criminal enterprise is an important factor in determining the appropriate sentence and particularly so in a matter such as this where the Court is examining a joint criminal enterprise to take possession of a drug. What he did, I accept, was to take possession of the consignment after it had been transferred from others after delivery to the initial address but not in circumstances where the evidence discloses that he had any knowledge of where it had been or who had handled it before it was placed in his car. There is no evidence that he had any connection with its importation or any planning in relation to the way in which it ultimately came into his possession.

20. The Crown’s submissions indicate that because of the multiple handovers before the consignment came into his possession this enabled the offender to be at arm’s length which lowered his risk of detection. That may well be the case, but there is no evidence that he was the person who orchestrated this and in fact his risk of detection was not actually lowered because he was driving a car owned by and registered to him and he left behind in the car of the co-offenders a phone which had physical material identifying him and also information on the phone itself that was easily traced to him.

21. He did indeed have sole possession of the consignment as he drove it from Edmondson Park to Darlington and was involved in this joint criminal enterprise for about two hours. The Crown submission is that because the transfers were smoothly undertaken it should be inferred that the offender was involved in some prior planning for the day. To make such a finding would amount to a factually aggravating circumstance and it seems to me that this inference cannot be drawn on the evidence available. It could equally be the case that he was simply following instructions on the day and given that the police seized the phone that he had been using in the leadup to the transfer of the consignment to him it would be expected that any prior contact between him and others involved in this joint criminal enterprise which indicated prior planning would be in evidence. It is not.

22. He did take possession obviously as part of an overall plan to take possession of the consignment and ultimately to deliver it elsewhere with, inferentially, the ultimate aim of the drugs being distributed into the community. He was in sole possession of the consignment as he drove from Edmondson Park to Darlington, which I accept by inference was to meet and transfer it in company with the Farrell brothers to some other person. He then met the Farrells at Lance Farrell’s apartment and travelled in his car in convoy to a place in Erskineville and then in his car until they realised they had been discovered and discarded the consignment.

23. There is a drug hierarchy here. The evidence does not disclose the importer nor those to whom the drugs were to be transferred ultimately or the way in which the drugs would be ultimately distributed into the community. The facts, at least before me however, indicate that the Farrell brothers played a more significant role in this syndicate to take possession of the drugs than did the offender or those others about whom I have any evidence, including Wingate, and those who merely took possession of the drugs initially.

24. The Crown submits that the offender should be found to have been a trusted associate in the criminal enterprise with a level of responsibility and accountability greater than that expected by a mere courier. I do not accept that this is the case. The facts indicate that his role was to drive the consignment from the general area where it was delivered in Wollongong to Darlington where I infer he was to meet up with the Farrell brothers and ultimately hand it over to some person.

25. The fact that he had the consignment in his sole possession for about two hours does not in my view derogate from that finding. It is in the nature of drug syndicates of this type that members, even low level members, are trusted to be in sole possession of valuable commodities like large quantities of drugs because their identities are well known to the other members of the syndicate and any decision by that person to take any course other than that which is prearranged is likely to have significantly adverse consequences to them. It does not indicate the level of trust within the syndicate in my view, and in my experience of sentencing in matters such as this.

26. In my view this offender’s role is very low in this overall hierarchy to take possession of the drug, with a limited role to be the driver from one place to another and something in the nature of a courier, albeit perhaps just slightly above. As I have said, there is no evidence that he had any role in setting up the somewhat complicated method of multiple transfers before it came to him or even knew that this had occurred. There is no evidence that he did anything in advance of the day he took possession other than to make a phone map enquiry about where Edmondson Park was.

27. The conversation inside the car, to the extent that it can be understood at all, would at the very least indicate that the Farrell brothers were in control of the situation at that point, and he was even then a relatively minor player.

28. Even though I accept he played a limited role, he was nonetheless a small cog in a bigger wheel which was, as its ultimate aim, the distribution into the community of a not insubstantial quantity of heroin. Drugs cause havoc in the community both individually to those who become addicted to them and to the rest of the community, their families and others in the community who become the victims often of those who commit crimes in order to satisfy and finance their addiction to drugs. That is one of the many reasons for the maximum penalties for offences such as this.

29. Also the involvement of those in the community attempting to take possession of drugs which have been imported is a serious matter which deserves condign punishment. The sentence should carry a significant message of general deterrence so that those who would involve themselves in an offence such as this know that the outcome will be a relatively lengthy period of imprisonment to be served fulltime.

30. Furthermore, heroin is a seriously addictive drug which is a relevant consideration in assessing the objective criminality. There is no evidence from which I could find however that the offender was aware of the specific nature of the drug, nor the specific quantity of the drug.

31. I do not accept, however, that it would be appropriate to make a finding that he was merely reckless as to whether it was an unlawfully imported border controlled drug. The evidence it seems to me points to him having actual knowledge, but not specific knowledge of the drug, weight or value for that matter.   

32. Whilst this is a commercial quantity of heroin it is less than 500 grams above the lower limit for a commercial quantity, which is 1.5 kilograms. Despite that, it has a substantial value which it is agreed depends on the way in which it is to be subsequently sold. If sold on a wholesale basis it is agreed it has the value of $428,000, ranging up to $2.7 million if cut from the 73% purity and sold on an individual basis in the community. The drugs that are the subject matter of this charge thus have considerable value, however the weight and value of the drugs in this case are towards the bottom of the range for the commercial quantity of this drug and far below the sorts of quantities and values that are often seen by the Court when sentencing for offences brought under this section. That is a factor which to an extent, although not entirely, informs the objective criminality in addition to the offender’s role.

33. Another factor in relation to an assessment of the nature and circumstances of the offending is his motive for committing it. There is no evidence of any specific amount to be gained by the offender for participating but it is an inevitable inference increased by comments made by him to a psychologist that he did so for financial gain. In fact, in his own words, he told the psychologist that those who recruited him knew that he needed the money.

34. There is no evidence about specifically what he was to make from his involvement in this and I accept on the basis of experience in sentencing for matters such as this that it was not likely to be of great monetary significance. He did however commit it for financial gain and was in need of finances at the time.

35. As I have said, I accept he did not take any steps to hide his identity in any way, even using his own car and leaving his phone behind ensuring that he could be easily found.

1. Overall, these factors in my view place this offending towards the bottom of the range in terms of objective criminality for offences capable of being charged under this section.

2. Further matters to be taken into account pursuant to s 16A(2) of the Crimes Act 1914 are that he pleaded guilty in the Local Court at an early opportunity to this charge, resulting in both a utilitarian value to the community in avoiding the need for a trial and for witnesses to be called, and also indicating a willingness to facilitate the interests of justice. Whilst it is not necessary for a Commonwealth offence to enumerate the value of any such plea, nonetheless I accept it is appropriate to discount what would otherwise be the sentence in this matter by 25% to take these two factors into account.

3. The offender should also be adequately punished for his offending and the sentence should deal with any issues of specific deterrence that might arise. So far as that is concerned, I take into account that he comes to Court with a criminal record but not of any great length and there are no drug offences on his record. There are only three matters on his record, only two of which were committed before this offence. One of them is a driving offence in 2008, which is irrelevant for these purposes. On 29 June 2020, he committed a common assault domestic violence offence dealt with in the Court on 12 March 2021 by way of a 12 month community corrections order.

4. The offence before me was committed on 6 April 2021, so less than one month after he entered into the community corrections order. His offending is thus rendered somewhat more serious by the fact that he was subject to this form of conditional liberty at the time but there was apparently no supervision of the CCO commenced before he committed this offence. Further, there would not appear to have been any condition attached to the community corrections order requiring either supervision or attendance and participation in drug rehabilitation, even though more probably than not, his by-then extensive drug addiction, would have been known to the Court. The fact that he committed this offence about three weeks after entering this community corrections order does not in my view give rise to any particular consideration by way of specific deterrence in this sentence.

5. The only other entry on his record is an offence of affray committed after this offence but before his arrest which is therefore not of any great significance except perhaps to an assessment of his prospects of rehabilitation and whether there is a need for the sentence to reflect specific deterrence to any great extent. This would seem to be the Crown’s submission, but I reject that. There is nothing before me to indicate the nature of that affray and it was dealt with by a further community corrections order of two years. There is nothing in either of those two matters in my view that would make it necessary to increase what might otherwise be the appropriate sentence to take into account specific deterrence, nor anything that would otherwise minimise a finding in relation to his prospects of rehabilitation.

6. The fact that he has this criminal record disentitles him to the leniency which would otherwise be afforded to a person who comes to Court with no prior record at all, but it is not one that hinders an assessment of his prospects of rehabilitation, nor one that operates as a circumstance of aggravation and, as I have said, it is not one that, of itself, in my view, would mean that the sentence should reflect a need for substantial specific deterrence. His record is relatively minor for a man of 33 from his background and with his overall circumstances, which I will soon outline.

7. The character antecedents and background of the offender are also relevant factors pursuant to s 16A of the Crimes Act 1914 to determine the overall sentence. He is in fact a 32‑year‑old Indigenous Australian man who was 29 at the time of the offence. There is a lengthy psychological report from Ms Edwige which, although useful, at 18 pages is far too long and detailed and contains detailed excerpts from sources and documents which, to an extent, go outside the expertise of a psychologist providing a psychological report to a Court and stray into the area of advocacy. Whilst it is a useful report in large part, nonetheless it is unnecessarily long and complicated. This is to be discouraged in those who provide medico-legal reports to the Court in matters such as this and will, inevitably, in the future, lead to a request for the authors to be required for cross-examination or for their opinions to be excised or given less weight in the absence of specific evidence from others, which will then inevitably lead to sentences taking far longer, resulting in delays to others waiting in the system, in custody, bail refused, for their sentences to be dealt with. Those experts such as psychologists who provide reports to the Court should always bear this in mind, namely the impact that lengthy, repetitive and unnecessarily detailed reports have on the overall administration of justice. They should be done more quickly, more succinctly and more simply.

8. The offender I accept, however, from the content of the report, supported as it is to a very large extent by other evidence, was born in Sydney and, together with his sister, lived in the home of his aunt in Glebe until he was two. His parents then obtained housing commission accommodation in Eveleigh Street, Redfern when he was two and then moved to other suburbs in Sydney. He frequently stayed with his grandmother in Waterloo or with other families. He and his sister witnessed his parents involved in physical abuse of each other. His parents would drink excessively, leaving him to look after his younger sister. There were times when they left them alone with no food in the house and he would have to go to the local shop to obtain food for himself and his young sister, because their parents had left after excessive drinking, leaving them alone.

9. Other traumatic issues occurred when he was an 11-year-old, as outlined on page 3 of Ms Edwige’s report which, both then and continuing, have had an adverse psychological effect on him, making him quite isolated for a period from then and being connected with his current psychiatric state of depression, anxiety and post-traumatic stress disorder.

10. His mother met another partner, and they had a child. There was also domestic violence in that relationship which he witnessed. His mother tried to stab him on one occasion but stabbed the car instead. He went to the police, but his mother told the police he was lying and so he could not stay with her any longer. He moved to his father’s place in Glebe and slept on the lounge because there were not enough bedrooms otherwise. Whilst he was staying there the police visited his father’s house regularly because his father was involved with either drug trafficking or, at the very least, involved with those who trafficked drugs, and there was a significant use of drugs in the household. This was witnessed by him. His father married another woman shortly afterwards and they went to live on the Central Coast. His father apparently has only recently been released from gaol after serving imprisonment for drug offences.

11. The offender started a relationship when he was 21 and he has a son born in 2016. Whilst his partner and son have currently moved to the Gold Coast to live with her parents, whilst he is in gaol, she remains available, although as a former partner, but continuing as a friend, to provide support to him on his release. She was present in Court when the matter was heard on the last occasion. He has a good relationship with his son and desires to get out of gaol as quickly as possible so that he can resume and recommence his relationship with him.

12. He is relatively well-educated, up to year 11, although he found school difficult. He has a significant history of drug and alcohol abuse from the age of 13, which I accept to a large extent is connected to the many traumas of his life. He started drinking alcohol when he was about 13 and was continuing to do so up until the time of his arrest. He would binge drink on occasion to the point of blacking out and ended up in hospital a few times after falling over when drunk. He started using ecstasy when he was 13 and cocaine at 18. He continued to use cocaine until he was arrested. He started using the drug known as ice about seven years before his arrest and was using it every day. His behaviour started to change after he began using this drug and he became aggressive and made increasingly poor decisions.

13. Since coming into custody I accept that he has not used any drugs and has been sober. I accept the history that he gave to the psychologist that this is the first time since he was about 13 that he has ever been this sober. He has never attended nor had any access to drug and alcohol counselling or rehabilitation in the past and, it would appear, neither whilst in custody particularly in the initial stages, because of the impact of COVID and lockdowns in the gaol system.

14. There was a significant traumatic event which occurred to him about ten years ago when his best friend died from an accidental drug overdose. I have read the affidavit filed from his sister which is useful, providing supporting and corroborative evidence of much of that which he has told the psychologist, and giving an insight into the impact on him of this event following the death of his best friend. Her affidavit also provides evidence supportive of his history to the psychologist of the dysfunctional background that they had as children, the alcohol and violence in their home when they were of school age. I accept that they both witnessed people affected by drugs and witnessed violence in the Redfern area where they lived.

15. When the offender was at primary school, he discovered his aunt’s body in Redfern, I infer following either violence or a drug overdose. His sister corroborates the history of their mother’s alcoholism and violence and their being abandoned by both parents, often with no food or money.

16. I accept that the offender, up until about ten years ago, had become a good sportsman when he was growing up, both as a runner and a footballer, and his sister viewed it as him channelling his effort, despite the dysfunction of their lives, into sport. He became good friends through football with the young man who died ten years ago. They were more like brothers than friends. This man was also an Indigenous Australian man. They worked in the same industry and the offender, at the time, had been able to save money, bought his own car and was saving money for a deposit on a house. His friend was undertaking a plumbing apprenticeship and always worked. They were extremely good friends who apparently had a positive impact on each other. His sister described this as when the offender was at his happiest. Then his best friend died and I accept her observation that the offender changed overnight. He resigned from work and started to take drugs and drink excessively and spent all his savings.

17. He had been well respected in the Redfern community as a respectable, hard‑working, good man with a strong sense of family, willing to help others. He was the first person in his family to finish school to year 12 and was considered a success in the family and in the community. His involvement in this offence, arrest and imprisonment represents a significant fall from grace from a person who, despite his background, had been doing very well. It is hard not to see a clear connection between the trauma he underwent following the death of his best friend and this spiral down into the situation in which he found himself at the time he committed this offence.

18. He had a dysfunctional relationship with his partner, the mother of his son, which had similarities to his parents’ relationship, but I accept that he was a good father, that he misses his son and, as I have said, wishes to get out of custody as soon as possible, in part to recommence that relationship and care for his son.

19. His time in custody has been difficult, especially during the time of COVID lockdowns. He has provided a letter to the Court which again is separate evidence corroborating the material which he told the psychologist. He took the effort to tally up the days on which he was locked down in custody following his arrest, largely as a result of staff shortages arising from COVID, but also because when he was initially placed in custody, he contracted COVID and had to be isolated. He contracted COVID a second time in June 2022 and was quite unwell. Because of the impacts of COVID, including his contracting COVID when he first came into custody, for the first two months he had no access to phone calls, no contact visits, no ability to exercise and no legal visits. There were occasions on which he spent up to a week locked in his cell with no access to showers or clean clothes. As a result of this he became increasingly anxious and depressed. He spent more than 200 days of isolation in custody, initially because of COVID lockdowns whilst he was in Sydney.

20. He has since been moved to Bathurst and is now working in a job in the sewing room making sheets and pillowcases and, as I understand it, his incarceration has been somewhat less onerous in Bathurst than it had been in the Sydney gaols. He has not been seen by a psychologist or psychiatrist since going into custody, except for the purpose of the medicolegal report.

21. I accept the expressions of remorse and contrition contained in both his own letter to the Court and as told to his sister frequently. It is evidence of appropriate contrition and remorse which I accept is genuine, in addition to the remorse and contrition evidenced from his plea of guilty.

22. The offender has had a significant disruptive background, has been witness to extensive violence and drug use, has not been appropriately parented and has been physically assaulted by a parent. He has suffered serious life-changing trauma himself as an 11‑year‑old and become seriously traumatised in his early 20s by the death of his best friend, which caused him to spiral out of control and start using and abusing drugs and alcohol and suddenly stopped the positive trajectory of his life.

23. I accept that he presents with significant mental health issues as a result of the trauma he has experienced through his life and I accept the diagnosis offered by Ms Edwige that he suffers from post-traumatic stress disorder. Her opinion is that he had a mental health impairment which was clinically significant at the time he committed the offence and which arose from complex developmental trauma, post-traumatic stress disorder, persistent depressive disorder with anxious distress, severe and substance abuse disorder, including alcohol and stimulant abuse disorder, all of which met the diagnostic criteria in the DSM-5 for disorders of this type. Her opinion is that this combination of factors had a significant impact on his ability to make considered and appropriate choices. Her opinion is that this meant that he did not fully appreciate the wrongfulness of his act.

24. Whilst I accept that this opinion is genuinely given, I do not accord it much weight. It seems to me that what he did as part of this drug syndicate, albeit of a relatively limited nature, could not be said to indicate an inability to make a reasoned judgment. He committed this offence for financial gain, he did so in a fairly unsophisticated way by using his own car and leaving his phone behind, but that does not mean, of itself, that he did not have the ability to make a reasoned judgment. He just made a bad decision to try and get some quick money, in circumstances where he did not expect to get caught and did not take much, if any, action to avoid being caught.

25. The fact that he was, at the very least, present when the consignment was thrown away after it became clear to everyone in the car that the drugs had been discovered, it seems to me reduces any finding that he had a reduced capacity to fully appreciate the wrongfulness of his act. His moral culpability is reduced, however, to an extent because of his disrupted background and the poor parenting to which he was exposed, particularly in relation to exposure to drug and alcohol use and violence.

26. He is a person who, therefore, presents with a series of mental illnesses which I accept to be genuine, including persistent depressive disorder with anxious distress and substance abuse disorder and post-traumatic stress disorder. It did play some part in his commission of the offences, I accept, and I accept that his descent into drug use appears to have had a clear connection to the trauma of his upbringing and exposure to trauma, but also means that he comes to Court as a person with diagnosed and defined mental illnesses and is, thus, a somewhat poorer vehicle for general deterrence than others might be. He will require treatment on his release.

27. He has not had any access to treatment in custody and never previously when in the community. The only court­‑sanctioned occasion on which this might have occurred was a community corrections order for which such a condition was not added, and which had only lasted three weeks before he committed this offence. He will need intensive support and treatment on his release. Ms Edwige has set out in her report the type of treatment that would benefit him, and I accept her opinion in that regard.

28. There is a treatment plan set out on page 17 of her report, including ongoing drug and alcohol counselling and/or culturally appropriate rehabilitation counselling in a centre such as The Glen. He also requires referral to a psychologist to address his trauma history and develop pro social coping skills and ongoing treatment by a general practitioner to deal with treatment, including necessary medication, to deal with his depression and anxiety.

29. None of this treatment is likely to be available to him whilst he remains in custody and, certainly, I accept very little of a culturally appropriate nature is likely to be available to him. His prospects of rehabilitation would thus be improved if he is released from custody at the first available opportunity and spends a longer than normal period of supervision in the community, hopefully with access to a plan such as this.

30. He has an extensive range of community supports, not just from his family. There is a lengthy report from Ms Kenny at the University of Sydney who has known him almost all his life and who has in fact written a case study about him and his sister without identifying them, which is also, to an extent, corroborative of the material in the psychological report. He has support also available from Valentine Nona of a culturally appropriate nature, including, if ultimately open, an experience back in Palm Island which had been important to him on an earlier occasion. And as I have said, his family remains available to support him. Ms Kenny and these others can provide some culturally appropriate support for him on his release.

31. I accept that his prospects of rehabilitation are very good, notwithstanding a very lengthy drug addiction leading up to the commission of the offence. He has indicated insight into his offending behaviour, and he has remained sober. He has indicated a willingness to participate in rehabilitation and there are no other instances of drug offending on his record, despite his exposure to these sorts of events in his early life. It seems to me that this risk of reoffending is low generally and very low in relation to any future drug offending. His offending on this occasion would appear to be very much out of character for him in offending in such a serious way and has the hallmarks of a one‑off attempt to make money inappropriately and criminally, in circumstances where his mental illnesses and post-traumatic stress disorder were having an impact on him.

1. In taking all of this into account, I have decided that the appropriate starting point for this sentence would be 6 years. It is a relatively low starting point, but it takes into account all those factors surrounding the offender, his very low involvement in this offence, his very limited criminal history leading up to this matter, his need for release as soon as possible and the impact to an extent of his disrupted family background. I will reduce that by 25% giving rise to an overall sentence of 4 years and 6 months.

2. There should be, in my view, a relatively low non-parole period to take into account the various factors which I have already indicated and specifically including the onerous nature in which he served his term of imprisonment initially, with lockdowns, and the impact on his mental health that that has already had and is likely to have whilst he remains in custody, and particularly so where he is not likely to be able to access appropriate treatment whilst he remains in custody. I have determined to set a non-parole period that is 50% of the head sentence, thus a non-parole period of 2 years and 3 months.    For those reasons then I make the following formal orders:

3. The offender is convicted. He is sentenced to a term of imprisonment of 4 years and 6 months commencing on 13 August 2021 and expiring on 12 February 2026. There will be a non-parole period of 2 years and 3 months commencing on 13 August 2021 and expiring on 12 November 2023.

**********

Decision last updated: 05 September 2024