R v Consigli

[2023] NSWDC 355

District Court

New South Wales

Medium Neutral Citation:

R v Consigli [2023] NSWDC 355

Hearing dates:

12 April 2023

Date of orders:

12 April 2023

Decision date:

12 April 2023

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Impose an aggregate imprisonment sentence of 2 years and 6 months with a non-parole period of 1 year and 3 months

Catchwords:

CRIME — Drug supply

CRIME — Knowingly deal with the proceeds of crime

SENTENCING — Should sentence be served subject to ICO — Community safety as the paramount consideration — Community safety best meet by fulltime custody — Specific deterrence

SENTENCING — Form 1

SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentence — Objective seriousness — Special circumstances

SENTENCING — Subjective considerations on sentence — Disturbed background — Personality disorder — Positive response to rehabilitation — Prior completion of drug rehabilitation programs — Good response to therapy — Pro-social bonds —Underlying mental conditions

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

EF v R [2015] NSWCCA 36

Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54

R v Burns [2010] NSWCCA 279

Ramos v R [2018] NSWCCA 206

Robertson v R [2017] NSWCCA 205

Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3

Zheng v R [2023] NSWCCA 64

Category:

Sentence

Parties:

Natascha Consigli (the offender)
Director of Public Prosecutions (the Crown)

Representation:

Counsel:
N Funnell (for the offender)
C Todd (for the Crown)

Solicitors:
CVC Law (for the offender)
Solicitor for Public Prosecutions (NSW) (Crown)

File Number(s):

2021/357162; 2021/357179

JUDGMENT – Ex Tempore REvised

Introduction

1. When she appeared before the Court this morning, through her counsel, Natascha Consigli accepted her guilt in relation to two offences of supplying a prohibited drug less than the commercial quantity: s 25(1) Drug Misuse and Trafficking Act 1985 (NSW), and one offence of knowingly deal with the proceeds of crime: s 193B(2) Crimes Act 1900 (NSW).

2. The s 25 offence carries a maximum penalty of 15 years imprisonment and Knowingly Deal with the Proceeds of Crime carries a maximum penalty of 15 years imprisonment.

3. When I sentence her for the first of the supply matters, Sequence 3, she asks that I take into account two further Supply Prohibited Drug Offences. I will do so. In taking them into account I do not sentence for those matters, but they do mean that greater weight has to be given to personal deterrence and community protection, in the sense explained in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW); Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [39] to [42].

Agreed facts

4. There are agreed facts before the Court. They require close consideration given the submissions in relation to what inferences can be drawn from them.

5. I sentence in accordance with the agreed facts and inferences that can reasonably be drawn from them. Matters of aggravation have to be proved beyond reasonable doubt. Matters in mitigation, on the balance of probabilities. Sometimes that distinction cannot be made, and the Judge has to sentence according to what is known; that is the agreed facts: Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54.

The supply matters

6. There was a police strike force investigating the supply of methylamphetamine on the South Coast of New South Wales. A man, soon to be sentenced, was identified as being responsible for obtaining and distributing large quantities of methylamphetamine. He was sourcing those amounts from another man, soon to be sentenced. That man was the partner of the present offender Natascha Consigli. At times she assisted him with his drug supply operation.

7. Most of the drug supply operation was conducted between the online supplier and the man I’ll call “the Principal”. The Principal would typically sell the down-line supplier amounts of the drug as either an ounce or one and a half ounces. An ounce was sold for $7,200.

8. Throughout the telephone intercepts, which were apparently extensive, it was clear that Consigli was very familiar with the Principal and the online supplier and would join in when they discussed drug supplies.

9. In August and September 2021 over half a kilogram of methylamphetamine was distributed. The offender now before the Court has been charged in relation to only a small portion of that quantity.

10. There are four supplies documented:

1. A supply on 17 August 2021, a matter on the Form 1, involving 3.54 grams of methylamphetamine;

2. A supply of 56 grams of methylamphetamine on 20 August 2021, a matter for sentence;

3. A further supply on 6 September 2021 of 56 grams methylamphetamine, a matter for sentence; and

4. The supply of 14.09 grams of methylamphetamine on 9 September 2021.

11. Given the factual dispute, or the factual matters that I have to determine, it is important that while I did not have to read all of the extensive material onto the record, I show I have some understanding and the community have some knowledge, of the nature of the telephone conversations and the supplies.

12. Most of the conversations recorded occur between the Principal and his online supplier, but reference is made to Consigli and her involvement in the delivery of the drugs. For example, how on 17 August 2021 she wanted to “tidy up” one of the dealings, her acknowledgement that she is aware of the debts owed by the online supplier to the Principal, and her involvement in attending on the online supplier and making deliveries.

13. It appears that some of the deliveries were made when the Principal was too busy working to make them. But it is also clear that the offender was:

• Aware of the conversations;

• Aware of the business relationship between her partner the Principal and his online supplier; and

• Aware of the nature of the transactions and the amounts involved.

14. The agreed facts, which are accepted, note that the online supplier was intending to supply to a large customer base. In calls preceding the supply of 6 September 2021, Consigli makes arrangements for the delivery. The agreed facts note she reassured the online supplier, there was no stress about his debt, “I know you always come good”, she said.

15. The strike force came to an end, so far as the offender and her partner were concerned, when she was arrested on 16 December 2021. She spent one day in custody.

The proceeds matter

16. Parallel to the investigation of the supply, police were conducting surveillance including the use of surveillance devices in a storage unit in Southern Wollongong. The devices captured two incidents in that storage unit. The first, on 19 November 2021, when her partner attended, opened the unit and placed a cardboard box inside. Shortly afterwards Consigli attended and closed the door behind her. She picked up the white cardboard box and emptied it and from the box she counted bundles of hundred-dollar notes.

17. On 7 December 2021 the two attended the storage unit and Consigli opened the padlock to it. Her partner entered and she gestured him to close the door. Inside she was captured doing things to some of the boxes there. She makes comments to her partner that indicate she is well aware of the contents of the boxes.

18. She is shown with boxes containing bundles of $50 and $100 notes. She asked her partner to hand her a shoebox. She removes bundles of $50 notes and places them on the floor of the unit and appears to count them. They discuss the quantity of what's there and discuss taking some out. At one stage she handed her partner a bundle of cash saying, “Put that in the bag. Is that all you want for now? What else do you need?”

19. Their other discussions indicate that she was well aware of the money and the quantities of the money and that they had previously discussed arrangements for the money. At one stage she says to her partner, “No just take it and put it in the account and then you've got money and stuff, you are going away and shit you are going to need money … I've still got mine at home.” As she packs the money away, she says, “I’ll miss playing with it.” Her partner says, “I don’t.” She replies, “I do, it makes me happy.”

Objective seriousness

20. The role of the offender is very relevant to my assessment of objective seriousness. We start from a premise that any supply of illicit drugs intended for online users is a serious offence. Quantity is important, although not determinative. The number of transactions and the degree of organisation is important. There is no indication here that Consigli was contributing financially to the costs of setting up the operation.

21. While there is no explicit evidence as to a wage or a payment being made to her it is abundantly clear from all the material, including that presented on sentence, that she lived a lifestyle that was in part funded by the supply operation with which she was involved. There is some evidence in the agreed facts that she played some role in the management of the operation, although it would appear always subordinate to her partner.

22. The drugs on the two occasions for sentence, and the two matters for supply were distributed with her active involvement. The seriousness of the retail distribution of drugs such as this lies, in part, in its contribution to the serving and maintaining the market for the drug methylamphetamine. This maintained market, in turn, provides the economic incentive for manufacture and distribution of the drug in bulk and at wholesale levels. On that, it is clear that her role is more than that of someone who is simply couriering the drugs from A to B in the hope of receiving a reward, such as a small quantity of drugs for their own use.

23. There was no evidence to suggest she was actively involved in the whole of her partner’s operation. To the contrary, there are only two supplies for sentence, and in the context of the half a kilo that he is responsible for, this is a relatively small part of that overall distribution. But as the Form 1 matters illustrate, those two matters for sentence are not isolated incidents.

24. Generally harsh deterrent punishment applies to those who engage at any level in drug supply networks. Absent the involvement of people prepared to do the work of the principal suppliers, drug distributions would not be able to operate at the same level, and this drug operation would not be able to operate at the same level.

25. All those matters establish what is common to most commercial supply operations, that it was committed without regard for public safety and was part of organised criminal activity. It is a serious example of its type and is accepted by the defence that a custodial sentence is warranted.

26. The factors which inform the assessment of objective seriousness of the s 193B offence of Knowingly Deal with the Proceeds of Crime are set out in Ramos v R [2018] NSWCCA 206 and R v Burns [2010] NSWCCA 279 at [27], to which I was referred by both parties.

27. Here the facts indicate that Consigli was dealing with the money on two occasions. There was no particular sophistication to what she did, but it was part of her involvement in her partner’s criminal supply operation from which the proceeds were derived. She was well aware of the value and quantity of the money, she took some relish in counting it, and in total over $900,000 was ultimately found.

28. The harm that may be occasioned from the offending has to be considered. The offence of Dealing with the Proceeds of Crime is intended to ensure that criminals do not retain the proceeds of their criminality and it is that aspect that is punished. It is not simply enough to say, as Simpson J made clear in Burns, that someone can escape additional punishment simply because they were possessing the proceeds of some earlier crime. With that said, there are only two occasions here where she actively involved herself with the proceeds of her partner’s crimes.

29. The maximum penalties are one guide to be exercised on my sentencing discretion, but those guides have to be balanced with all other relevant factors.

The case for the offender

30. Turning now to the offender. She has no criminal record. She is born in 1974. Her involvement with the Principal in this matter stems from her personal relationship with him, and that relationship is underpinned, in part, by her own psychological problems, if I can call them that loosely, which are carefully outlined in the report of Ms Hare which is put before me as Exhibit 1.

31. At par 40 Ms Hare states that, in her opinion, Consigli’s Borderline Personality Disorder features predisposed her to becoming involved in the current offences. She goes on to explain that while she, not being a psychiatrist, cannot diagnose that condition, all the material before her led her to form the opinion that she had features of Borderline Personality Disorder, matters to which I will refer in a moment.

32. She notes:

“Ms Consigli’s involvement in the criminal conduct was perpetuated primarily by it meaning her relationship with her partner (and co-offender) persisted (and she avoided the rejection [and] abandonment she feared). Her enjoyment of the lifestyle that her partner’s business brought, and a tendency towards risk taking / impulsivity endemic to her personality disorder were, in my opinion, also perpetuating factors, but secondary to her obsessive need [to] avoid rejection [and] abandonment.”

33. Her conclusions are supported by a history which is sad but uncontroversial and accepted by the prosecution.

34. Consigli was raised as a by her mother. Her mother was killed in a motor vehicle accident while they were living and travelling in India while she was a young girl. Her mother’s peripatetic lifestyle obviously had an influence on her. She described her mother as having a permissive parenting style with a lack of boundaries and discipline. At times her mother was – at one time at least – in a physically abusive relationship.

35. Her mother’s death led to an abrupt change in her life. She was confronted by evidence of her mother’s demise while being babysat by someone else. She then briefly returned to her grandparents in Australia before going to live permanently with her father in Switzerland. The change in the maternal and paternal style of parenting had a significant influence on her. The death of her mother at such a young age and in such tragic circumstances had a significant influence on her.

36. She was, however, able to finish her schooling. She was able to get qualifications. She has worked in various roles in the hospitality sector and as a dancer. She has worked as a cleaner. She is working now and was working at the time of the offending.

37. She has had a number of relationships with men that have been characterised by multiple breakdowns and reconciliations. She and one of her partners misused drugs together and she says, through Ms Hare, that in 2019 she “hit rock bottom”.

38. It would appear she then actively engaged in rehabilitation processes and did particularly well. It was while she was at the rehabilitation facility that she met the partner, the drug supplier, and she went to live with him.

39. The history given and medications taken led Ms Hare, who has considerable experience, to accepting a diagnosis, apparently given by a GP, that Consigli has Borderline Personality Disorder. She notes that Borderline Personality Disorder is characterised by a pervasive pattern of instability of interpersonal relationships, self-image and affects, and marked by impulsivity. It is not unusual to be associated with problematic drug use.

40. She reports that the partner, who she worked with in this crime, exercised some emotional manipulation over her, but she also told Ms Hare at par 26, she accepted accountability for her actions and acknowledged he didn't make her do it. She offered remorse for her conduct and indicated understanding of the devastating impacts that drug abuse can have on individuals, families, and communities.

41. From her history, Ms Hare concludes she has strong indicators Consigli suffers from Post‑traumatic Stress Disorder derived from her childhood experiences.

42. It is also clear that she has ceased drugs and engaged in intensive therapy which appears to have, at least been partly, successful in moderating aspects of her dysfunctional personality features. Since her arrest she has continued in therapy.

43. Ms Hare notes that her rehabilitation will be maximally supported within the community where she will be able to continue engaging with her treating psychologist and other mechanisms that she has in place to manage her borderline personality features.

44. Should she receive a custodial sentence, she will likely require support adjusting to the prison environment. She would benefit from engaging in the Real Understanding of Self-Help program (RUSH) which is a skills-based program treatment that addresses features consistent with Borderline Personality Disorder. Ms Hare makes a comment that I echo below. She is unaware of the current waiting list to access this program and she does not know whether she would be prioritised for treatment, but she certainly believes the program would meet her needs and would be appropriate.

Submissions

45. There were some disputes raised in submissions however on matters of general principle and assessment of objective seriousness, there was little between Mr Todd, Crown Prosecutor, and Mr Fennell, Counsel for the offender.

46. A submission was made for the defence that the supply matters could have been dealt with in the Local Court. Well, they were not and the maximum penalty that applies in this Court applies. The submission has merit in the sense that it puts these sorts of supplies towards the bottom of the range of matters that come to this Court for sentence, in that general sense.

47. The other question is whether her underlying Borderline Personality Disorder was causal, in the sense that it had some impact on my assessment of the objective seriousness of the offence.

48. Sometimes in matters where there are underlying mental health conditions it is almost impossible for a Judge to make such a determination. Often it is not necessary because one does not compartmentalise objective seriousness and matters going to moral culpability, as each have to be taken into account and synthesised. Here, clearly the underlying condition based upon childhood experiences, some of which were traumatic, means that the full weight has to be given to that experience, and it will be.

49. It means that in some aspects of her behaviour, principles relating to general deterrence carry less weight, a matter referred to in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194.

50. The manner in which mental conditions ameliorate moral culpability can also go to the aspects of rehabilitation. It does not mean that the specific deterrent aspect of a sentence is not important. Sometimes this factor can become more important depending on the nature of the condition.

51. Sometimes there is a need for protection of the community because of an underlying condition, but this offender has demonstrated that, particularly in relation to her drug use, she is able, without compulsion, to deal with her underlying drug problems.

52. A further submission was made about the question of remorse. In a matter such as this where there is no direct victim, but the community has suffered at the hands of an offender, an understanding of the impact to her offending is important in the process towards rehabilitation.

45. There is a passage in the Sentence Assessment Report (SAR) which, given her history, makes no logical sense. I cannot accept that she was ignorant of the fact her behaviours were criminal, and I think that has to be a typographical error because it just does not accord with any of the material before me. She did not attempt to minimise her involvement in the offences and admitted her wrongdoing which she identified as poor decision-making processes.

46. The SAR author also notes she expressed good insight into her behaviour. I accept that she has some insight into her offending behaviour. I accept she is sorry for what she did. I have to be guarded, however, because she was acutely aware of the harm that drugs cause people and she chose to actively involve herself.

47. But noting that she had already engaged in drug and alcohol services, the principal condition Community Corrections propose does not even involve any supervision, given what they regard as her low risk of reoffending. The only additional condition they suggest is community service.

Should there be an Intensive Correction Order?

56. The principal issue of dispute is the disposition of this matter, it being conceded that a custodial sentence has to be imposed.

57. Three steps have to be undertaken prior to an assessment that a sentence be imposed that can be served in the community subject to intensive correction.

58. I have to consider all possible alternatives and no other penalty other than imprisonment is appropriate. Here the seriousness of each of the offences individually compels a conclusion that a custodial sentence is appropriate.

59. I then have to determine the appropriate term of the sentence of imprisonment. Here there were two acts of supply. I have to take into account the Form 1 and I have to sentence for the dealing with proceeds matter.

60. There should be some independent punishment for each offence, but they were part of a course of conduct, and while there must be some accumulation there can be considerable concurrence.

61. I have to give her the full benefit of the subjective material put before me, including her underlying mental conditions. When I apply all those factors, I have come to the conclusion a sentence of less than 3 years can be imposed.

62. That gives rise to the third issue of whether or not to make an Intensive Corrections Order (ICO). The High Court of Australia has recently reviewed the intensive correction provisions in New South Wales in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3. They have been most recently applied by the Court of Criminal Appeal in Zheng v R [2023] NSWCCA 64.

63. The High Court judgment made it clear that while aspects of community safety underpin some of the general purposes of sentencing, they, I have here, have already been considered in determining whether to impose a sentence and the length of that sentence.

64. At this stage when considering the ICO question, requires a further consideration of community safety in s 66 Crimes (Sentencing Procedure) Act 1999. In Zheng, Gleeson JA distilled Stanley at [72] and [75] to five points. In summary:

“… the power to make an ICO requires an evaluative exercise that treats community safety as the paramount consideration, with the benefit of the assessment mandated by s 66(2). The issue is not merely the offender’s risk of reoffending, but the narrower risk of reoffending in a manner that may affect community safety … s 66(2) is premised upon the view that an offender’s risk of reoffending may be different depending on how their sentence of imprisonment is served, and [it] implicitly rejects any assumption that full-time detention of the offender will most effectively promote community safety … the nature and content of the conditions that may be imposed by an ICO will be important in measuring the risk of reoffending … the consideration of community safety required by s 66(2) is to be undertaken in a forward-looking manner having regard to the offender’s risk of reoffending …. while community safety is not the sole consideration in the decision to make, or refuse to make, an ICO, it would usually have a decisive effect unless the evidence is inconclusive.”

65. If a person is imprisoned, community safety can be protected by their removal from the community and by a period of supervised liberty on parole. If a court has some confidence in the existing process of rehabilitation already underway, the longer-term likelihood of reoffending may be diminished by not sending the person to prison. On the other hand, a sentence of gaol imprisonment may cause an offender to dwell on what they did and cause them to refrain from committing crimes on release.

66. There are downsides to imprisonment. They are well known. An extended period of full-time detention leads to dislocation from prosocial members of the community. It breaks up employment, housing, and existing social structures which, as here, have led this offender keep to her strict bail conditions, that were gradually reduced over time. She has, despite having this matter hanging over, resumed normal life in the community.

67. But prison and the retributive aspects of punishment are, and remain even in this consideration, important aspects of community safety.

68. A Judge’s a sentencing discretion is not judicially constrained, as has been made clear in drug supply cases such as Robertson v R [2017] NSWCCA 205 and EF v R [2015] NSWCCA 36. A sentencing judge does not start with the objective seriousness of the offence and then simply say, “Well, an ICO would be too lenient.” As the High Court and the Court of Criminal Appeal made absolutely clear, I must engage in a separate evaluative exercise with a forward-looking approach.

69. When I engage in that evaluative exercise, I cannot ignore the sentence that I have fixed in my mind and the importance of full-time custodial sentences.

70. Mr Fennell urges upon me a forward-looking approach. He says, simply, it is supported by material before the Court – this offender has not reoffended until this series of offending and past behaviour is a good indication of future behaviour. She has demonstrated a capacity to work in the community. She is now a mature woman who has dealt with drug problems and has done everything she can to deal with her underlying psychological problems.

71. Mr Crown says that community safety has many aspects and that a period of custody can have important retributive and also rehabilitative effects. He said particularly, a question mark arises here as to the exact reasons why this offender participated in the crimes for which she is to be sentenced.

Synthesis

72. I have given this matter anxious consideration. The decision in Stanley does not say that in every situation a person receiving a sentence of under 3 years (for more than one offence), who has demonstrated some progress to rehabilitation, will avoid a full-time custodial sentence.

73. In the material before me there are indications that the offender has a Borderline Personality Disorder, which predisposed her to becoming involved in the current offence. Once she formed of a relationship with her partner, because of her underlying condition, she found it difficult to separate from him.

74. As against that, her clear moral compass (which is set out in the report) shows she knew what she was doing was wrong and she knew the consequences of her actions. Further, the facts indicate at times she appeared to relish her involvement and that she actively persisted in her involvement (without any reluctance) in both the supply and the two aspects of her dealings with the large sum of cash.

75. Where a person has underlying mental conditions, matters of specific deterrence can be particularly important when it comes to community protection: DPP v De La Rosa at [177].

76. Were I to allow for the sentence to be served subject to intensive correction, the only conditions that can be put upon Consigli would be, to accept supervision (which Community Corrections do not believe is necessary) and community service.

77. Putting something back into the community by such service is always valuable. But there is also the importance of reinforcing, by retribution, insights, which were not shown at the time of the offending.

78. This is a matter where I believe, if Ms Hare’s report is sent to Community Corrections, appropriate programs can be made available to Consigli.

79. There has to be a period in custody. When I consider all of the material before me, the importance of sentence being served in custody (and not in the community) would best reflect protecting community safety as the paramount consideration.

80. The sentence can be moderated by a substantial finding of special circumstances, to avoid the length of the gaol term breaking pro-social bonds.

81. Where people offend in the way Consigli offended, community protection [as said], is also enhanced by them developing an understanding of the true consequences of their behaviour. Sometimes that can only be done, despite all the material before me, by a sentence of full-time imprisonment.

82. That is the conclusion I have reached. It is supported by the evidence of underlying risk of reoffending, as she has a tendency towards risk taking and impulsivity. While that may be endemic to her underlying disorder, she has to learn the consequences of giving in to those impulses.

Orders

83. There will be an aggregate sentence in this matter. In relation to the offence of Supply with matters on the Form 1, the indicative sentence will be 2 years and 3 months imprisonment. For the second Supply, there will be an indicative sentence of 1 year and 10 months imprisonment. For the third, Proceeds of Crime matter the indicative sentence will be 1 year and 10 months imprisonment.

84. The aggregate sentence of 2 years and 6 months imprisonment. The non-parole period will be one of 1 year and 3 months imprisonment. It will commence yesterday, on 11 April 2023. Consigli will be released to parole on 10 July 2024. There will be a period of parole of 1 year and 3 months, reflecting a substantial finding of special circumstances, which I believe is justified from all the background material before me.

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Decision last updated: 06 September 2023