R v Carruthers

[2024] NSWDC 211

District Court

New South Wales

Medium Neutral Citation:

R v Carruthers [2024] NSWDC 211

Hearing dates:

7 June 2024

Date of orders:

7 June 2024

Decision date:

07 June 2024

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph [130]-[131]

Catchwords:

CRIMINAL LAW – sentencing – offender part of drug trafficking syndicate operating in Central Coast and Tamworth in 2020 – supply of commercial quantity of prohibited drugs (methylamphetamine) – unauthorised possession of firearm offence – additional offences on Form 1 attached to firearm offence – other related offences – consideration of parity principle

Legislation Cited:

Crimes (Sentencing Procedure) Act1999 (NSW), ss 3A, 5

Drug Misuse and Trafficking Act1985 (NSW), s 25(2)

Firearms Act1996 (NSW), s 7(1)

Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases Cited:

ChandabvR [2021] NSWCCA 186

Parente v R (2017) 96 NSWLR 633

R v AA [2006] NSWCCA 55

R v Hanrahan & Ors [2022] NSWDC 531

R v Marshall [2022] NSWDC 530

RvShi [2004] NSWCCA 135

R v Weis (Unreported, NSWDC, 14 July 2023)

Texts Cited:

Nil

Category:

Sentence

Parties:

Office of the Director of Public Prosecutions (ODPP)
Mr John Barry Carruthers

Representation:

Counsel:
Mr S Morrison (Solicitor Advocate) for the ODPP
Mr T.Hughes for the Offender

Solicitors:
ODPP
SANS Law

File Number(s):

2020/00342098

Publication restriction:

Nil

EX TEMPORE Sentencing remarks

Introduction

1. Mr John Barry Carruthers (‘the offender’) is before the Court for sentencing for multiple offences after he entered pleas of guilty on 14 December 2023 in the Gosford District Court. His trial had been scheduled to commence on 29 January 2024. The offender adhered to those pleas of guilty at the sentencing hearing. The Crown submitted that he is entitled to a 10% reduction on his guilty pleas. Counsel for the offender did not submit to the contrary and I find that this level of discount is appropriate.

2. The details of the offences and the applicable maximum penalties and standard non-parole periods are as follows.

Offence	Legislation	Maximum penalty	Applicable SNPP
Count 1: supply of prohibited drug exceeding commercial quantity 483g of methylamphetamine	Drug Misuse and Trafficking Act1985 (NSW) (‘DMT Act’), s 25(2)	20 yrs imprisonment	10 yrs imprisonment
Count 2: possession of unauthorised prohibited firearm Gel blaster firearm	Firearms Act1996 (NSW), s 7(1)	14 yrs imprisonment	4 yrs imprisonment

3. In the sentencing hearing, the offender acknowledged his guilt and asked the Court to take into account further multiple offences on a Form 1, all attaching to Count 1. The details of those ‘additional’ offences are as follows.

Offence	Legislation	Maximum penalty	Applicable SNPP
Count 3: possession of unauthorised prohibited firearm colt double eagle series 90 BB handgun	Firearms Act 1996 (NSW), s 7(1)	14 yrs imprisonment	4 yrs imprisonment
Seq 10: possession or use of prohibited weapon without permit Concealed blades	Weapons Prohibition Act1998 (NSW), s 7(1)	14 yrs imprisonment	5 yrs imprisonment
Seq 11: possession or use of prohibited weapon without permit Multi-edged knife	Weapons Prohibition Act1998 (NSW), s 7(1)	14 yrs imprisonment	5 yrs imprisonment
Seq 12: possession or use of prohibited weapon without permit Knuckle-dusters	Weapons Prohibition Act1998, (NSW) s 7(1)	14 yrs imprisonment	5 yrs imprisonment

4. As the Crown Sentence summary clearly indicates, this sentencing hearing represents the last of the sentencing hearings for members of a drug syndicate who engaged in extensive trafficking in Methylamphetamine (or ‘ice’) throughout the Central Coast and Tamworth regions throughout the second half of 2020. I sentenced most of the co-offenders: Beau Marshall (in separate sentencing remarks: R v Marshall [2022] NSWDC 530), Glenn Hanrahan, Joseph Neale, Dennis Cummins and Darren Scott on 3 November 2022 (R v Hanrahan & Ors [2022] NSWDC 531). Separately, I also sentenced Luke Weis on 14 July 2023 (R v Weis (Unreported, NSWDC, 14 July 2023))

5. The operation and application of the parity principle assumed significance in this sentencing hearing.

Facts and circumstances underlying the offending

6. These were the subject of an agreed statement of facts that the offender, and his lawyer, signed on 11 December 2023. They closely resembled the facts sustaining the sentences for the co-offenders.

Background

7. In March 2020, investigators attached to the Tuggerah Lakes commenced ‘Strike Force Harle’. This targeted the supply of prohibited drugs, specifically Methylamphetamine, by several people on the Central Coast.

8. Meanwhile, officers in Tamworth began ‘Strike Force Kunderberg’; which targeted drug supply, and especially ice, in the Tamworth area.

9. During the investigations, the co-offenders Hanrahan and Brooks were identified as operating from the Tamworth area. The offender, and the co-offenders Marshall, Scott, Cummins, Weis and Neale, were identified as operating from the Central Coast area.

Roles of co-offenders

10. The following description of roles emerged from the Crown’s written submissions (which the offender did not cavil with). It is a description which has been repeated in the earlier sentencing remarks concerning the co-offenders.

Marshall

11. Marshall lived on the Central Coast. He sourced quantities of Methylamphetamine from an upline supplier in Sydney. He supplied quantities (between 2-6 ounces) of Methylamphetamine to Hanrahan in Tamworth, by utilising Cummins, Scott and Carruthers, to deliver the drugs to Hanrahan and to collect the payment for the drugs.

12. Marshall repeatedly urged and tried to arrange for Scott, Cummins and Carruthers not to travel at night, so as to avoid travelling during ‘RBT’ times and avoid sending the same car to Tamworth, two days in a row, to avoid suspicion and police detection.

13. Marshall and Cummins arranged for Cummins and Carruthers to have ‘paperwork’ and other work-related reasons, or cover stories to be in the Tamworth area, so as to deflect suspicions as to their reason for travelling.

14. Marshall also supplied Methylamphetamine on the Central Coast, again, using Carruthers and others to deliver drugs and collect the payment.

Hanrahan

15. Hanrahan bought and received Methylamphetamine from Marshall (delivered by various couriers), for the purposes of supply, including to another co-offender (Brooks)

Cummins

16. In November 2020 Cummins helped Marshall to prepare and co-ordinate supplies of Methylamphetamine between Marshall and Hanrahan. He also acted as a liaison between Marshall and the couriers, and co-ordinated Carruthers to transport Methylamphetamine to Hanrahan.

17. Marshall and Cummins arranged for the latter and Carruthers to have their ‘paperwork’ and other work-related reasons, to be in the Tamworth area, to deflect suspicions as to their reasons for travelling.

18. Cummins also directly supplied his own customers on the Central Coast.

Scott

19. In September 2020, Scott helped to arrange and prepare supplies of Methylamphetamine between Marshall and Hanrahan. He also delivered the drugs to Hanrahan and collected the cash for Marshall.

20. Scott also supplied his own customers on the Central Coast region between August and September 2020.

Neale

21. On two occasions, Marshall used Neal to collect Methylamphetamine from the upline supplier in Sydney and bring it back to him on the Central Coast. Neale also supplied Methylamphetamine on the Central Coast at Marshall’s direction.

Carruthers

22. In November and December 2020, Marshall used Carruthers as a courier to supply Methylamphetamine to Hanrahan. Marshall also used him as a courier for a supply on the Central Coast.

Brooks

23. Brooks purchased and received ice from Hanrahan for the purposes of on-supply.

Weis

24. On two occasions, Marshall used Weis to collect Methylamphetamine from the upline supplier in Sydney. Weis travelled to Sydney, collected the drugs and brought them to Marshall on the Central Coast.

Further facts and particulars regarding Carruthers’ offending

Drug trafficking

25. There were two broad categories of supplies relating to the offender.

26. The first category featured:

1. 3 occasions of actually couriering ice (in a total sum of 364g) from Marshall and Cummins to Hanrahan; and

2. 1 occasion of attempting (before being intercepted by police) to courier (112g) ice to Hanrahan

27. Further particulars of those transactions were as follows:

1. on 10-11 November 2020, the co-offenders Hanrahan, Cummins and Marshall planned for Marshall to supply 168g to Hanrahan. The plan was for the offender to courier this quantity to Hanrahan and collect the payment. The offender received the quantity from Cummins and couriered them from the Central Coast to Hanrahan’s address. Hanrahan paid the sum of $51,000 to the offender who, upon his return to the Central Coast, gave the money to Cummins (the latter then gave it to Marshall);

2. on 24 November 2020, Hanrahan, Cummins and Marshall arranged for Marshall to supply Hanrahan with 56g of ice; with the offender to be paid $500 for delivery and $51,000 for the supply of the quantity. Cummins directed the offender to courier the drugs from the Central Coast to Hanrahan’s home; and even indicated that he could use some of the ice that was being transported if he felt tired. The offender collected both payments;

3. on 25-26 November 2020, Marshall arranged with Hanrahan to supply the later with 140g of ice for payment of $42,500. Other co-offenders were involved in getting this quantity from the upline supplier in Sydney to Marshall’s home. Cummins arranged for the offender to transport this quantity from Marshall’s home in the Central Coast to Hanrahan at Barraba. The offender couriered these drugs (in the presence of the offender’s 11 year old son). Hanrahan provided him with the payment, which the offender passed on to Marshall upon the offender’s return to the Central Coast.

4. on 1 December 2020, by arrangement between Marshall, Cummins and Hanrahan, Marshall was to supply 112g of ice to Hanrahan. Neale initially conveyed the quantity to Cummins’ house. Cummins realised that the quantity was underweight. Cummins directed the offender to courier the 112g to Hanrahan. The offender set out for the drive to Barraba at 4:00am on 2 December, but at 7:00am, police stopped his Toyota Hilux vehicle. (Hanrahan was observed by police surveillance to be waiting for delivery of the drugs from his residence at Barraba).

28. Police searched the offender’s vehicle and located a steel toolbox screwed under the carriage of the vehicle. Police located two bags. It was notable that whereas (for the transaction of 1 December) the arrangement was for Marshall to supply Hanrahan 112g of ice, when the bags were sent away they were assessed to have 109.6g.

29. At any rate, the offender was searched and found in possession of a small ice pipe. He denied ownership of it.

30. The second discrete category featured a singular supply of ice (7g) from Marshall to Kerry Ryan. This occurred on 20 November 2020. The offender delivered this quantity to Ryan using a telephone number provided to him by Marshall. Ryan gave the offender payment to pass on to Marshall.

31. The total quantity of drugs supplied by the offender during his period of offending was 483g of ice; which exceeded the commercial quantity for this particular prohibited drug.

Discovery of the firearms and weapons

32. On 3 December 2020, police executed a number of search warrants for various locations connected or suspected to be connected with the drug trafficking. One of those was the offender’s storage unit in Wyong.

33. There, the investigators discovered:

1. one green and black gel blaster handgun, with holster and accessories (this is the weapon the subject of count 2); and

2. one colt double eagle series 90 BB gel blaster handgun with magazine (the weapon with is the subject of count 3, being one of the offences on the Form 1).

34. These weapons are ‘pistols’ within the meaning of the Firearms Act 1996 (NSW).

35. Investigators also discovered:

1. one concealed twin swords in metal staff with claw and crystal balls on ends (seq 10, one of the offences on the Form 1);

2. one ‘Zombie ass kicker’ sword (seq 11, one of the offences on the Form 1); and

3. one pair of black metal spiked knuckle dusters (seq 12, the final offence on the Form 1)

36. These were all weapons constituting ‘prohibited weapons’ under the Weapons Prohibition Act 1998 (NSW).

37. Although not apparently referred to in the Agreed Facts, in circumstances where the offender has acknowledged his guilt to and asked for these additional offences on the Form 1 to be take into account in sentencing for the drug supply offence, betokens his admission to the element common to all of the additional offences, that he was not authorised (by permit or licence), to have any of these weapons in his possession.

Evaluating the objective seriousness of the offending

Drug trafficking

38. In R v Shi [2004] NSWCCA 135 Wood CJ at CL, with whom Spigelman CJ and Simpson J agreed, emphasised (at [34]) the importance of giving consideration to (citations omitted):

“the well-recognised principle that the culpability of those who engage, at any level, in drug supply networks is significant, and that deterrent sentences are necessary, since absent the involvement of couriers, warehousemen and so on, these networks, whether established for the purposes of importation or subsequent distribution, would simply collapse ...”

39. In my sentencing remarks involving the co-offenders on 3 November 2022, adopting the Crown’s submissions in that matter, I observed (at [72]):

“The Offender’s role and the level of criminality involved are more important in determining a sentence than the quantity of drugs involved, but drug quantity and purity remain important factors … Role is not to be determined by the use of short hand labels but rather by assessing what his or her involvement was in the steps taken to effect supply. Agreements to supply or offers to supply prohibited drugs are each important and essential in the chain of drug trafficking and no generalised statement can be made about the relative seriousness of differing forms of supply”.

40. The Crown referred again to those observations (not by reference to the remarks themselves) in its written submissions. Applying those, the Crown submitted that the offender was involved as both courier of large quantities to Hanrahan (mainly) and as a direct street level supplier. The supplies to Hanrahan were the product of large and complex transactions in essentially bulk supplies; and were capable of being supplied at short notice. The offender couriered the drugs and received payment. He was said to be well aware of Marshall’s business and what he was transporting.

41. The Crown submitted that although there was no express agreement as to the offender’s awareness of the precise quantities of ice that he was couriering to Hanrahan, the Court could infer that he was aware at least that the quantities fell into the ‘indictable’ category and, moreover, he was aware that of the purpose of the trafficking being for on-supply. But the Crown accepts his role was secondary. Overall, the Crown describes this sub-category of offending to be serious and his culpability moderately high.

42. As to the supply to Ryan, the Crown submitted that although he did not initiate the supply, the offender had communicated with Ryan for the delivery of the quantity and was involved in coordination and planning. The quantity was not small. Although his role was also said to be secondary, the Crown submitted that his conduct was serious and his culpability quite high.

43. The Crown did not assert engagement of statutory aggravating factors. Nevertheless, it pointed to other matters which could be assessed under the rubric of objective seriousness, such as the financial benefit he obtained for the delivery fees and one instance where, the offender had his son present with him.

44. The offender submitted that the offender was very low in the hierarchy of the syndicate. He was not part of the planning or organisation and was not shown to be aware of the quantity of drugs being couriered or given any information beyond what was necessary to transport.

45. I generally accept the Crown’s submissions. I do not accept the offender’s protestations of ignorance. It was not simply the fact of his acting as courier and as a direct supplier. As the agreed facts indicate from the roles of Marshall and Cummins, the offender was privy to a certain level of planning with the common intention of evading detection. Cummins offered him the possibility of using part of the drugs if he wanted to on one occasion. Even though role is not determinative, nonetheless, it is still significant. I find that with respect to the quantity of drug supplied and his role, principally as a courier, the offender’s offending fell below the mid-range, but not at the lowest end of the range.

Firearms possession offences

46. In Chandab v R [2021] NSWCCA 186 (“Chandab”) Wilson J said (Leeming JA agreeing) at [81]:

“Firearms in the hands of those not permitted to possess them, and even more so in the hands of the criminally minded who may be the subject of a prohibition order, represent a clear and profound threat to the safety of the community. No doubt for this reason, and despite the relatively low standard non-parole period that applies to such offences, the maximum penalty … reflects the seriousness with which the Parliament and the community view firearms offences. The rule of law and the safety of others equally are imperilled by the unauthorised possession of firearms, and such offences must be treated as serious contraventions of the criminal law — to punish offenders, to deter others, and to protect the community.”

47. In connection with the Firearms offence (in my sentencing remarks concerning the co-offender Cummins), I also observed (having adopted the Crown’s submissions) (at [74]):

“Unauthorised possession of firearms is calculated to lead to substantial damage... The length of time the person was in possession of the firearm is relevant... Possession even for non-criminal purposes is generally not regarded as a matter in mitigation. An offender’s criminality is more serious where he or she possesses a firearm as part of their involvement in crimes such as trading in illegal drugs and the Courts should discourage any tendency for such objects to become just tools of trade for those whose activities are outside the law.”

48. The Crown also referred to those observations (though not again with reference to those sentencing remarks). The Crown noted that there was no (express) evidence in the agreed facts to any specific purpose advanced for the possession of these weapons; but invited the Court to infer that having regard to the other offence, it should find that the weapons were tools of the drug trade; as either protection (for the offender) or deterrence to others who (I also infer) might intervene or impede in the offender’s business. There was no innocent purpose ascribed to possession of these weapons when such knowledge peculiarly held by the offender.

49. The offender submitted that the offender did not use the firearm and there was nothing to indicate any planned usage. It was not likely to have caused significant damage even if it had been used. His Counsel added that there was no indication that ammunition had been found or that the weapon was loaded. The firearm (and other weapons) were not found on his person or even the vehicle he was driving when it was intercepted by police.

50. In the strange circumstances pertaining to the possession of the firearm, I am not satisfied beyond reasonable doubt that it is a tool of the (drug) trade, but I am also unable to ascribe any innocent purpose to it. Nevertheless, I find that the offending occurred below the mid-range.

Aggravating circumstances

51. The Crown did not rely upon any statutory aggravating circumstances in respect to either count.

The offences on the Form 1

52. The parties did not make any submissions regarding these additional offences in their written submissions.

53. In oral argument, Mr Crown did not ascribe much weight to the possession of these prohibited weapons upon sentencing for the drug supply offence. That was appropriate given the finding that I made but a few moments ago, for the purposes of count 2, that there was no demonstrable link between possession of the firearm and drug supply. Whilst the additional offences do augment considerations of subjective deterrence and retribution, that is not substantial in the circumstances.

The Offender’s subjective case

Age and background

54. The offender was 51 years of age at the date of his offending. Like most of the co-offenders (who were mainly in their 40s or 50s), he was of a mature age.

Health concerns apparent after the offending

55. The offender’s solicitor, Mr Sayad, obtained health records from Axiom Psychological Services and Gosford Hospital, respectively. He annexed them to an affidavit (Exhibit 2). They were obtained by August 2023. They indicate psychological services received throughout 2021 (ie. post-dating the offending). It was understood that the offender had a past medical history of depression and anxiety. He was in receipt of cognitive behavioural therapy. In late January 2021, he presented to Wyong Hospital with a facial injury following an assault in prison. In July 2021, he presented to Wyong Hospital with right sided renal colic. In 2022, he was admitted to the same hospital; having experienced right loin to groin pain and kidney stones.

Mr Carruthers’ handwritten letter

56. Within the bundle produced within Exhibit 2 was an undated and lengthy (7 page) handwritten letter (to “Carlos”) prepared by the offender, which spoke of some of his life’s experiences. It emerged that ‘Carlos’ was a reference to a psychologist Carlos Manchinnio, who practised in Wyong. This letter is a significant document and provided insight into the offender’s mind. He described himself as coming from a hardworking and well-respected family from the north of England; bordering Scotland. From early on, he worked on the family farm. He imbibed good values, but commented upon the expectation that if anything ever went wrong, one kept one’s feelings to oneself. There is no suggestion, however, that his upbringing was unhappy. He was proficient at playing rugby; until he broke his collarbone; but even after that, he played rugby league until the age of 32. After a short period working as a groundsman for a caravan park, he wrote that he commenced a period of service in the British Army, under pressure from his father. (He noted that his cousin of the same age had also joined the service). In the course of his service, however, and not unexpectedly, he saw violence and death firsthand. Interestingly, the offender reflected that although he sensed that he had not really been affected by his violent experiences in the Army, as he had gotten older, his memories of them had reappeared.

57. He referred to the death of his mother, which had a big effect upon him. This occurred on New Years Eve (31 December) 2014. What compounded his grief, according to the letter, was what appeared to be the offender’s resentment to his ex-wife for trivialising this event; and also her treatment of his children. He also wrote in his note about his apprehension that he may be being (sexually) groomed by an inmate.

58. The offender referred to, or attributed the influences from his childhood, when it was expected that children would not complain, and Army, when he became like a ‘robot’, or ‘drone’ as explaining the sense of repression that his account evokes.

59. As the letter progresses (p 6) the tone becomes darker. The offender indicates suicidal ideation. He apprehends that his ex-wife is abusing his children. He wrote with care about his concerns for his children. There were suggestions that he had trouble with police and, in some way, the child protection system: he wrote of his ex-wife being manipulative.

60. He concluded the letter with the insight that there was something wrong with him and that he had carried a lot of scars from the past and present.

Mr Brecht’s opinion

61. It is not apparent that the health records in Exhibit 2 were considered by a forensic psychologist, Mr Oliver Brecht, who prepared a report for the offender for the purpose of the sentencing hearing (Exhibit 2).

62. Mr Brecht saw the offender, only once and by AVL, on 20 March 2024. He indicated that in addition to that source for information, he had reviewed other material in the Crown bundle: the indictment, the sequence particulars, the statement of agreed facts and the offender’s criminal history.

63. In the section of Mr Brecht’s report dealing with the offender’s family history, much of this was consistent with what appeared in the offender’s handwritten letter; which I referred to earlier. He had loving and supportive parents who he described as providing a relatively safe and happy environment. The family was financially secure. He grew up living on a farm. He had active grandparents. He had two younger siblings. The parents provided a model of a loving relationship. But, if he had to be critical of them at all, the offender was recorded as saying that they were sometimes absent because of work commitments. But there was nothing traumatic about his childhood; at least in any sense that could be attributed to his family upbringing.

64. The offender reported a generally positive experience of schooling. The psychologist referred to the offender having friendships through his childhood and adolescence which endured until his migration to Australia.

65. In 2004 the offender visited this country and met his now ex-wife at a friend’s wedding. It was meeting his now ex-wife that prompted him to migrate to Australia and then wed in 2006. Unhappily for the offender, this, in retrospect, proved to be a turning point in his life. They split in 2014 after another pivotal event in the offender’s life: the death of his mother. As noted, the offender was resentful of his ex-wife’s attitude towards that seminal event.

66. In his handwritten letter referred to earlier, he referred to having had a relationship with a woman for 10 years before the latter had another woman who had also died. He did not record anything negative about those particular relationships. With his ex-wife, he had two children and was a step-father to another from the ex-wife’s prior relationship. The offender asserted that, in striking contrast to his previous relationships, his ex-wife was physically, verbally and emotionally abusive towards him (and towards the children). Eventually, he reported, he obtained custody of the children. He said he tried to insist upon the continued association of the children with their mother but on one occasion, after taking them over to the ex-wife to a stay over, and when he went to retrieve them, the ex-wife had disappeared; leaving her property and taking the children with her. The offender claimed that he sought police intervention but, remarkably, they did not (it is not known whether he sought legal advice or assistance as to his position). In his mind, at least, he has ‘lost’ his children.

67. Whilst in the United Kingdom, after a short stint in the Army (two years), he had spent a decade or so obtaining an apprenticeship, working in and then being self-employed in the construction industry. When he came to Australia, he performed jobs as a handyman for several years (it was not known as to what attempts he made, if any, to work in the construction industry in this country). The offender was employed until 2015 as a heavy vehicle driver for a company. He lost his license because of an incident of his driving under the influence. The company found an alternative role for him until another year before he was arrested.

68. The offender reported to Mr Brecht that he had come to drinking early and from about the age of 23, began to take cannabis daily. The offender denied that illicit alcohol or drug abuse contributed to his offending.

69. In terms of his psychological history, in 2006, at the age of about 37, he was diagnosed with anxiety and depression. He reported that he had received medical advice that he may have undiagnosed PTSD from his relationship with his ex-wife.

70. Mr Brecht performed psychometric testing. The results indicated that he suffered from moderate depression; as well as moderate symptoms of PTSD.

71. Mr Brecht considered that despite a stable childhood, the offender had developed poor coping strategies to help manage periodic episodes of depression throughout his life. He opined that he met the clinical threshold for diagnosis of a major depressive disorder, and evidence of PTSD symptomatology (falling short of the threshold for clinical diagnosis).

72. Mr Brecht believed that there was a link between the offender’s mental health and his offending. Earlier in his life his attempts to address his mental health needs had been ineffective.

Reduced moral culpability?

73. In anticipation of the offender’s submissions (supplied on the eve of the sentencing hearing), in the Crown’s written submissions, the Crown expressed its position that neither Bugmy principles nor De La Rosa principles were engaged.

74. In the event, the offender’s Counsel did not suggest that Bugmy principles were engaged. In my opinion he was clearly right to do so: it might be said that the offender’s childhood background was the antithesis of the offender in Bugmy.

75. The offender’s counsel referred to the offender’s on-going mental health issues and substance abuse issues.

76. As to mental abnormality, I have some difficulty with the causal connection which the psychologist attributes to depression or PTSD symptomatology (whatever that is; which is not altogether clear) and the offending in question. For one thing, it amounted essentially to a bare assertion. Secondly, it did not appear that Mr Brecht took into account the offender’s other recent criminal history or if he did, explained how that influenced his thinking. Further, although the offender said he received a diagnosis of anxiety and depression back in 2006 and had a referral to a psychologist in Windsor, it was not apparent what if any treatment he actually received. The finding of a causal connection is a large conclusion to draw on this narrow basis, essentially, of commentary obtained in a single audio-visual link interview.

77. The Court can understand and, to a degree, sympathise with the unhappy events of the offender’s unhappy marriage, the strange loss of his children and the death of his mother; all events occurring when the offender was well into his adult years. I can also accept that he came to be in a position of some vulnerability in terms of his financial security and apparently had a desperate desire to help himself and his children.

78. But I regard as implausible what seems to have been conveyed to the psychologist regarding a virtual denial of awareness that the offender was couriering drugs and had, rather, been taken advantage of by the co-offenders. The facts that the offender has agreed to (especially AF 6-7) tend to fly in the face of that submission. He could not have performed the ‘jobs’ set for him without it, and I do not accept that this offender was of the type of person who would turn a blind eye to that he was asked to do.

79. Further, whilst PTSD symptoms could conceivably lead to a temporary impairment in executive functioning, the fact remains that count 1 of the offending was a course of conduct offence (committed over about three weeks); involving planning and direction with the purpose of thwarting detection. Further, no explanation was given by the offender to Mr Brecht as to why he had so many firearms or prohibited weapons in his possession. There was no reference to the firearm offending in Mr Brecht’s recording of the offender’s attitudes towards his offending. I find that the offender, unwittingly or otherwise, gave a distorted explanation to Mr Brecht such as to diminish the confidence I can repose in the latter’s expert opinion; leaving aside other reservations about the opinion that I have expressed.

80. Further, if at the date of the offending, the offender’s concern was only one of financial insecurity, it is passing strange that he would not seek to elicit help from his father or other siblings who he says have supported him whilst he is in custody.

81. I do not see much occasion to find any material reduction in the offender’s culpability on account of mental abnormality so as to reduce the salience of general or specific deterrence. That is not to say, however, that I do not find aspects of the offender’s background irrelevant. As will later be explained, they are relevant, specifically, for the consideration of hardship.

82. As to substance abuse issues, the difficulty for the Court is the vagueness of the extent of any addiction in the offender to drugs; manifested by the unwillingness or refusal of the offender to face up to the problem. I reach the same conclusion as to the relevance of this substance abuse to culpability as I did in relation to the circumstance of mental abnormality; that is, barely affecting his culpability and not materially diminishing the significance of general or specific deterrence; but being principally relevant to hardship.

Antecedents

83. For a man of his age, the offender’s criminal history in this country was limited, in terms of number of offences, and, subject to a qualification, relatively recent in occurrence (the first of them, a driving offence, occurring in 2014) but some of those offences were serious. The qualification is that he was convicted of an assault occasioning actual bodily harm in 1987 in the United Kingdom. That offence, however is so long ago as to have little, if any, salience to the current sentencing exercise.

84. A curious feature, as the Crown emphasised was that virtually all of the offending came to light only after the offender’s arrest for the index offending.

85. The Crown emphasised that other convictions of the accused included custody of a knife and possession of prohibited weapons in April 2019 and November 2022. This of course, post-dated the offending in this case so it is more appropriate for those offences to be weighed in relation to the fact of his rehabilitation prospects. There were two offences for drug possession in April 2019.

86. Also relevant to the question of rehabilitation, the offender had served a short stint in jail for the November 2022 offence of possession of a prohibited possession of a weapon. His custodial record was unremarkable; in terms of any disciplinary infractions.

87. As to the associated sentencing consideration of prior good character, beyond the criminal history, there was no additional matters in the offender’s favour, such as good works or contributions to the community.

88. Technically, as the Crown submitted, at the period when the offending occurred, the offender could be said to be of ‘prior’ good character and thereby obtain a measure of leniency. However, the positive impact of that factor in mitigation has to be reconciled with a more recent, and probative criminal history (in terms of its connection to the index offending) which does not assist the offender in connection with my assessment of his rehabilitation prospects and likelihood of re-offending.

Contrition and remorse

89. The Court has not received, as it very often does, any letter of apology from the offender.

90. In Mr Brecht’s report, the psychologist devoted a section of it to the offender’s attitudes and insight into his offending. Earlier in that report, he had noted the offender’s report to him that after the collapse of his marriage, he had struggled socially and in the course of living in a boarding house, whilst trying to locate housing for the longer term, he came to know and associate with other occupants in the boarding house who he identified as co-offenders.

91. He told Mr Brecht that he thought that these people wanted to help him, with offers of opportunities to act as a handyman and delivering equipment to Tamworth. Although, it appears, he understood that their repeated acts of taking his mobile phone represented a red flag, he explained that he wanted to earn money to afford housing for himself and to support his children. It was in performing these ‘jobs’ that his offending came to pass.

92. The offender told Mr Brecht that he felt very ‘embarrassed’ about his offending. He could not believe that he had been’ taken advantage of’. He said he felt sick at the horror that the illicit substances would have been brought to Tamworth; a town which reminded him of his home village in the United Kingdom. But Mr Brecht observed (paragraph 58) that he appeared to lack insight into ownership of his behaviour.

93. The Crown’s point about the offender being, in effect, in denial about illicit substance use is well made. Despite the offender telling Mr Brecht that he had ceased using alcohol and drugs a significant period before the index offending, he had committed an offence of drug possession in 2019. He has since taken drugs in custody. His denial of having used ice appeared to be at odds with the agreed fact that Cummins had offered him the opportunity to partake in the ice on one of the occasions of the couriering.

94. There is very little, however, in this that would admit of true remorse or contrition or the acceptance of responsibility for his conduct. I do not think it was an overstatement to regard his explanations, as the Crown submitted, to amount to self-pity. Further, although the offender ultimately entered pleas of guilty, that was done belatedly, and after earlier reversal in October 2022 (when most of the other co-offenders were being sentenced). I do not mention this to signify that the offender should sustain any detriment because of that circumstance; but rather to explain why I do not infer that the pleas he ultimately did make was for anything other than utilitarian purposes. Specifically, I do not infer remorse from those guilty pleas.

95. I am unable to find, even on the probabilities, that he is remorseful or contrite.

Rehabilitation prospects and likelihood of re-offending

96. I referred to aspects of the offender’s criminal history post-dating the index offending earlier.

97. Mr Brecht explained that he adopted a ‘Risk-Need-Responsivity’ model for evaluating his general risk of re-offending. His conclusion was that the offender presented a “moderate” risk of re-offending and he opined that the offender would need a level of intervention to help him to avoid re-offending.

98. Mr Brecht recorded that the offender had told him that his father and siblings were aware that he was in custody and were supportive of him. That is plainly of some assistance to him; although there was no greater specificity of what level of contact he had with either of them or its frequency. There is no other evidence of links to community or pro-social ties.

99. The offender’s Counsel noted the offender’s industrious nature; emphasising his past running of a business in the construction industry. That however, was a very long time ago. But Counsel pointed to offender’s work in the correctional centre in the print shop. He had also been a driver of a heavy vehicle until losing his license for driving under the influence. It is not known whether he could work in that particular industry again. Now aged 55 and with some relatively recent episodes of physical ill-health, not to mention his psychological conditions, his future employment prospects do not appear to be all that secure.

100. In the handwritten letter I referred to earlier to an earlier psychologist, Carlos, the offender wrote that he recognised that he had a problem. This at least shows some level of insight (that he has a problem). Counsel for the offender fairly submitted that his engagement of the psychologist, Carlos Manchinnio, for monthly sessions, as at the date of the offending, as evidencing a willingness to receive treatment. That, unfortunately, proved ineffective in terms of preventing the commission of the index offences.

96. The fact remains however, that for about the last decade or so, the offender has not been able to cope with the consequences of his mother’s death and the ill-treatment he asserts he has sustained at the hands of his ex-wife and the deprivation of contact with his children. It is also troubling that the offender had recently disclosed to Mr Brecht that he had resort to consuming buprenorphine twice to help him cope within the custodial environment.

97. I have noted the handwritten letter to Mr Manchinnio. As indicated, its date was not known. Although it offered insight into the offender’s background it said little if anything about his aspirations for the future. Indeed, it ended on a very gloomy note.

98. The offender did not supply anything to the Court contemporaneous with the this sentencing hearing that would furnish more current insight into his state of mind.

99. In conjunction with the absence of remorse or contrition, his criminal history post-dating the index offending and his drug and alcohol abuse issues; his prospects of his rehabilitating himself are guarded. Mr Brecht’s own assessment about his likelihood of re-offending (that it is ‘moderate’) is rather tepid. I cannot confidently say that he is unlikely to reoffend.

Hardship

105. I have noted that the offender reported being assaulted whilst incarcerated and indeed having received hospital treatment for it. The offender told Mr Brecht that he was having psychological consultations every 2-3 weeks and did not complain that this was inadequate. Nevertheless, having regard to the nature of his conditions of depression and anxiety and symptomatology of PTSD, I find that it is likely that he will find a sustained further period of imprisonment a more onerous burden upon him in comparison with the general population of inmates and this is a matter I take into account in his favour.

Parity

106. The Crown submitted that, in relation to the offence constituting count 1, I should treat Marshall as being the head of the hierarchy; with the offender towards the bottom of the hierarchy of the syndicate; possibly parallel, or similar to Neale, but above Weis. Mr Crown submitted that like Neale, the offender was a courier and street-level dealer. In their roles as courier, both Neale and the offender were subject to Marshall’s close direction.

107. Mr Neale was convicted and sentenced of the same offence under s 25(2) DMT Act for a period of 4 years and 3 months with a non-parole period of 2 years and 4 months. Mr Marshall, for the same offence as the offender, was convicted and sentenced to a term of 12 years with a non-parole period of 8 years and 2 months. Mr Weis was convicted on two counts of drug supply pursuant to s 25(1) of the DMT Act and received a sentence of 2 years, 2 months and 17 days’, to be served by way of an ICO.

108. The offender’s Counsel agreed that Marshall had the highest involvement, followed by Hanrahan. I do not accept the submission that the Crown had accepted that the offender’s role was less significant than the co-offender Neale or significantly less serious: this misstated the Crown’s position, which was that the offender’s position was on a par to Neale’s position. The offender’s Counsel acknowledged that the offender’s role in the syndicate was slightly more significant than that of Weis.

109. I accept that in terms of the objective seriousness, there is a broad functional equivalence to the role that Neale was performing. There was a greater quantity of ice that the offender couriered (483g) in comparison to Neale (294.95g); but offsetting that, there were a larger number of transactions that Neale had with Marshall than the offender did. Further on aspect of street level supply, it appeared to me that Marshall had a greater involvement than the street level of supply that the offender had. It appeared to me, however, that Neale was closer than the offender to Marshall and his planning and perhaps was someone that the latter reposed more confidence in. However, in respect to the last matter, I accept the Crown’s submission that the offender had closer interactions with Cummins who effectively acted as a delegate to Marshall.

110. A further difference is that the offender had multiple other offences on a Form 1 attached to the drug supply offence. Even though earlier remarks have indicated that I have not ascribed a great deal of weight to the additional offences, they are taken into account in augmenting the weight to some of the sentencing considerations in a way that did not apply to Neale.

111. I agree with the Crown’s submission that although there were differences, the seriousness of the offending as between Neale and the offender for the drug supply is comparable. But the offender committed the other offence as well.

112. As to subjective cases, there is obviously a much more substantial level of discount on the guilty plea in Neale’s case. More generally, their subjective cases were broadly comparable. Both Neale and the offender had unfortunate life experiences cast upon them and their offending could broadly be attributed to their common failures to devise adequate coping mechanisms to deal with adversity. Both had families that they cared for and worried about (although in Neale’s case he at least had a supportive and dependent partner as well).

113. The co-offender Weis was convicted of two less serious offences than Carruthers; which reflected the circumstance that the drug charge against the latter rolled up various transactions. Weis did not on-supply to drugs to third parties.

114. In relation to the offence constituting count 2, I note that in the case of the co-offender Cummins, an indicative sentence for the firearm offence was only 3 months’ imprisonment. However, that was predicated on a finding that there was no connection between that co-offender’s firearm possession and the drug trafficking. The co-offender Cummins was at a higher managerial level of the syndicate than the offender; who was ‘on the ground’, as it were; effectuating the supplies arranged by others.

115. Further, in contrast to Cummins, the offender had other convictions in respect to the possession of prohibited weapons. Also, Cummins was also entitled to a higher discount on his guilty plea than the offender.

116. I do not find that the offender could be justifiably aggrieved if he received a more substantial indicative sentence than the co-offender Cummins for this particular offence.

Instinctive synthesis

117. I have regard to the maximum penalties for the two offences; as well as the standard non-parole periods.

118. I also have regard to the considerations in s 3A of the Crimes (Sentencing Procedure) Act1999 (NSW). Foremost among the considerations are general deterrence and also the need to protect the community. Those considerations usually outweigh an offender’s subjective case: Parente v R (2017) 96 NSWLR 633 (“Parente”) at [108]-[110] and [127]. The same considerations are also especially germane to the firearm offence: Chandab at [81]. Allied to those considerations are those concerning specific deterrence, denunciation and retribution which are also applicable. I refer to what I remarked earlier regarding the offender’s rehabilitation prospects.

119. Acknowledging the indication (at [113]) from Parente it may not be a foregone conclusion that a sentence of imprisonment should be served for drug trafficking, I am satisfied that the s 5 threshold is crossed in this case. His Counsel conceded as much; although from his written submissions, it was not clear what the position was in relation to the firearms offence.

120. The conclusions I have reached on the indicative sentences below precludes consideration of the question whether the period of imprisonment could be served by way of intensive correction.

121. Indicative sentences are as follows (taking into account the 10% discount on the guilty pleas applicable to both offences – and rounding up or down the relevant number – and, in connection with count 1, the additional offences on the Form 1):

Count 1:   4 years & 11 months’ imprisonment (NPP 3 years & 3 months)

Count 2:   10 months’ imprisonment (NPP 6 months)

Totality

122. I apply the totality principle. There are different offences and, on the offender’s own case, barely any connection between the two primary offences. This gives rise to a need for accumulation with some level of concurrency in terms of the timing of the offending. The overall sentence is intended, however, to comprehend the criminality overall.

Prior custody

123. As to custody, the Crown indicated that from the date of his arrest (2 December 2020), there were two discrete periods of the offender being in custody. The first period was from 2 December 2020 until 29 January 2021 (when bail was granted). After bail was revoked, the second period in custody was 8 November 2022 to today’s sentencing date (7 June 2024). This yielded a total of 637 days (1 year, 8 months and 28 days).

124. Some of this second period however, related to another offence. The offender received a sentence from the Wyong Local Court on 23 November 2022 for 3 months, set to expire on 7 February 2022; and this particular sentence was varied so as to be a community corrections order (for a year, commencing on 25 January 2023).

125. The parties ultimately agreed, however, that the sentence should be backdated only to the extent of taking into account the aggregate period of 637 days.

Special circumstances

126. As to whether there should be any alteration of the non-parole period, the offender submitted that a finding of special circumstances should be made having regard to ‘green shoots’ in terms of the offender’s aspirations in relation to rehabilitation.

127. The Crown did not submit to the contrary.

128. Not without some hesitation, given the absence of remorse, in my view the circumstances of hardship and the circumstance in which the offender had shown some insight into his need to rehabilitate himself to deal with the grief associated with the unfortunate events over the last decade or more, as well as Mr Brecht’s view that he will need supervision to assist that rehabilitation, and the community’s benefit that he re-integrate more effectively, in combination all warrant a finding of special circumstances.

Sentence and orders

129. Mr Carruthers, please stand.

130. On counts 1 and 2 on the indictment, you are convicted.

131. I sentence you to a term of imprisonment of 4 years and 8 months, commencing on 9 September 2022 and expiring on 8 May 2027. The non-parole period is 3 years and 1 month, expiring on 8 October 2025; after which you will be eligible for release on parole.

Postscript

132. My remarks on sentences on 3 November 2022 for the relevant co-offenders were intended to be published on Caselaw, however, because of the pendency of the criminal proceeding against Carruthers and Weis, and at the urging of the Crown, publication of those sentencing remarks was restricted. Subject to hearing from the Crown, it is now appropriate for restrictions on the open publication of those respective sentencing remarks be lifted and I propose to do this following these sentencing remarks. There should be no impediment to the publication on Caselaw of these remarks as well.

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Decision last updated: 07 June 2024