R v Craig
[2021] NSWDC 465
•07 September 2021
District Court
New South Wales
Medium Neutral Citation: R v Craig [2021] NSWDC 465 Hearing dates: 8 July 2021; 13 August 2021; 16 August 2021; 7 September 2021 Date of orders: 07 September 2021 Decision date: 07 September 2021 Jurisdiction: Criminal Before: Wilson SC DCJ Decision: Intensive Corrections Order imposed. Full orders at [101] – [105]
Catchwords: CRIME – sentencing – uncontroversial – no issue of principle
Legislation Cited: Crimes Act (1900) NSW s 193B(3)
Crime Commission Act 2012 (NSW) s 27(1)
Crimes (Sentencing Procedure)Act1999 (NSW) ss 3A, 5
Drug Misuse and Trafficking Act 1985 (NSW) s 25(1)
Cases Cited: None
Texts Cited: None
Category: Sentence Parties: Regina (ODPP)
Kimberley Craig (Offender)Representation: Counsel:
Solicitors:
Mr C Allison (ODPP)
Mr J Trevallion (Offender)
ODPP Solicitor (ODPP)
Blaxland Law (Offender)
File Number(s): 2018/152481 Publication restriction: None
Judgment
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Delivering these remarks on sentence has been delayed by the application for a related matter to be heard by me before I sentence this offender. That was done, however it caused delay.
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Kimberley Craig (‘the Offender’) was born 16 December 1982 is now 39 years of age.
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She is to be sentenced for 3 offences, one being a related charge on a 166 certificate.
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The first charge is recklessly deal with the proceeds of crime in breach of section 193B(3) Crimes Act (1900) NSW. It carries a maximum penalty of 10 years’ imprisonment.
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The second charge is knowingly give false or misleading evidence during a hearing, in breach of section 27(1) of the Crime Commission Act 2012 (NSW). It carries a maximum penalty of 5 years’ imprisonment and/or a fine of $55,000.
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The third related charge is knowingly take part in the supply of a prohibited drug in breach of section 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). It has a maximum penalty of 2 years' imprisonment. The drug involved was 5.79 grams of methylamphetamine.
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The maximum penalties are guideposts for sentencing judges. It is an indication of how the community, through Parliament, views the seriousness of the offending.
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The Offender was arrested and charged on 17 September 2018. She was bail refused. She was released on conditional bail on 23 April 2019. The Offender spent a total of 7 months and 1 week in custody following her arrest.
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The Offender pleaded guilty in the Local Court and was committed for sentence on 4 March 2021. She is entitled to a discount on sentence of 25%.
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The Crown bundle identifies 5 people as being “related offenders”. There is no direct connection between those offenders and the offending in the index case. The charges against the other offenders are so disparate that questions of parity do not arise. The charges in the related matters arose following the murder of a teenage boy by the Offender’s brother. All other offenders committed offences prior to or after, but related to that principal offence. Prior to this offending, the Offender did not have any criminal history and is, therefore, entitled to a finding of good character.
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The Statement of Agreed Facts runs for 67 paragraphs. Only part of the Agreed Facts bear materially upon the sentence of this Offender.
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The Offender’s brother is Conrad Craig. He was recruited to join Brothers for Life, a criminal organisation formed by Bassam Hamzy. Mr Craig worked directly for Mr Hamzy.
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Prior to the murder, Mr Craig was last in custody from 15 October 2015 to 26 March 2017.
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Within a few days of his release, Mr Craig spoke with ARAM, who is Abdul Rahman Abu-Mahmoud, but is referred to in the Agreed Facts in this way. Mr Craig was informed of the death of Adam AM, who is Adam Abu-Mahmoud, but is referred to in the Agreed Facts in this way. Adam AM died after being stabbed with a knife on multiple occasions by Joshua Dillon on 18 July 2016. ARAM was the uncle of ADAM AM.
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ARAM asked Mr Craig to kill Brayden Dillon, the 15 year old brother of Joshua Dillon. Mr Craig agreed to do it, and ARAM agreed to supply Mr Craig with a gun, the address and money for the murder. A few days later Mr Craig obtained a pistol and ammunition from a man arranged by ARAM.
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Mr Craig then planned the murder, making arrangements for a getaway car to be parked near the Dillon family home in Glenfield.
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In April 2017, Brayden lived in a house in Glenfield with his mother, her husband and their 2 young children aged 6 years and 1 year.
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At around 4:50am on 14 April 2017 Mr Craig was driven to the Glenfield address, armed with the pistol, gloves and a balaclava.
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At around 6:00am Mr Craig broke through the front door of the house and entered it. He was initially confronted by Brayden’s mother, who was told by Mr Craig to get back in her room and shut the door. She did so and called 000.
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Mr Craig went into Brayden’s bedroom and shot him in the head whilst Brayden was lying in bed. The shot was fired from a range of between 10 centimetres and 1 metre. Mr Craig then ran out of the house.
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On 10 July 2017 Mr Craig was arrested by police.
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ARAM and others became concerned about what might be contained in the police brief and what information Mr Craig may provide about his engagement to perform the murder. Arrangements were made for Mr Craig to swear a false affidavit in order to exculpate the Abu-Mahmoud family and Bassam Hamzy from the murder of Brayden. A lawyer acting for the family indicated that if Mr Craig provided an affidavit $25,000 in cash would be paid to anyone Mr Craig directed. Later, Mr Craig insisted on being paid $40,000 for the affidavit.
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It was necessary for ARAM and others to have contact with Mr Craig about the affidavit. A system was set up whereby the Offender, who was an approved contact for Mr Craig, would facilitate three-way telephone conversations between Mr Craig and others. It is agreed that the Offender’s involvement in those calls was mostly passive, listening.
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On 27 January 2018 the Offender was visited by people in relation to the affidavit who said, amongst other things, that they had told Mr Craig not to sign anything without at least speaking to them first.
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On 29 January 2018 at 2:41pm police lawfully intercepted a phone call between Mr Craig and Witness A which was facilitated by the Offender.
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Later that afternoon at 2:57pm in another lawfully intercepted call between Mr Craig and Witness A, facilitated by the Offender, in which a further discussion took place. The discussion related to the affidavit and lawyers who had been retained to assist in its creation. After Mr Craig disconnected from the call the Offender asked Witness A “are you talking about the affidavit?”.
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On 30 January 2018 police lawfully intercepted a phone call between Mr Craig and Witness A, again facilitated by the Offender. Amongst other things, there was a discussion about ARAM wanting to come home and about the lawyer for the family coming to see Mr Craig. Other than facilitating the call, the Offender did not participate in the conversation.
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ARAM had left Australia following the murder.
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On 31 January 2018 at 1:05pm police again intercepted a call between Mr Craig and Witness A, facilitated by the Offender. After Mr Craig disconnected Witness A had a conversation with the Offender, in which she was told to visit her brother in prison to tell him “stop talking like an idiot... as it is going to get me in trouble and you in trouble, he doesn’t realise what he is saying”.
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Around this same time ARAM arranged a meeting between Witness A and some other men in Wollongong. At that meeting Witness A was told that the men wanted to get ARAM back into Australia. In the meeting, they spoke about getting money to the Offender, on behalf of her brother.
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On 27 February 2018 at 2:26pm a phone call between Witness A, Andrew Coe, Jessica Garn and Mr Craig was lawfully recorded by police. During that conversation Witness A and Mr Craig spoke about the $20,000 given to the Offender. Witness A confirmed that $20,000 had been dropped off to the Offender.
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On 28 February 2018 at 2:05pm another phone call between Mr Craig and the Offender was recorded, in which the Offender seemed to suggest that she understood that money would be dropped to her that afternoon.
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Ultimately, on 28 February 2018 the Offender received $20,000 on behalf of her brother, Mr Craig, for him to provide the false affidavit evidence.
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The Offender was aware that Mr Craig had some involvement with the creation of an affidavit, but there is no evidence that she knew any detail about what was said in the affidavit, nor what was proposed to be done with the affidavit. There is also no evidence that the Offender knew that the money she received was in payment for the creation of the affidavit.
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On 1 March 2018, a phone call between the Offender, Mr Craig and another male was intercepted. During that call, Mr Craig enquired of the Offender whether she had received all of the money ($40,000), or half of it. The Offender indicated that she had received half.
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After the Offender received the money, Mr Craig began to direct her on how to spend and distribute the money (see paragraph 54 of the Agreed Facts).
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Police identified about $19,600 being spent by the Offender on behalf of Mr Craig in the period to 18 March 2018.
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The $20,000 was the proceeds of crime, as it was money paid in exchange for the provision of a false affidavit and was dealt with, received and disposed of by the Offender, who was reckless as to whether the money was the proceeds of crime.
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The following facts relate to the charge under the Crime Commission Act.
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On 4 April 2018, the Offender was served with a summons to appear before the New South Wales Crimes Commission in relation to these matters. At the same time, she was served with, and had explained to her, written material relating to a non-disclosure order in relation to the Crime Commission hearing for the murder of Brayden Dillon.
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On 28 April 2018, the Offender spoke with Mr Craig about the summons to appear before the commission. Police intercepted a phone call. Mr Craig told the Offender that, if they ask questions, she should simply reply “I do not recall”.
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On 4 May 2018, the Offender appeared before the commission where she was informed of the obligation to provide truthful answers. She was questioned as to her disclosure of the summons. She indicated that she had not disclosed the summons to anyone except for a legal representative. The hearing was adjourned to 15 May 2018.
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On 15 May 2018, the Offender appeared before the Commission. She was reminded of the obligation to answer questions truthfully. She was asked whether she had disclosed the summons to Mr Craig, to which she answered “no”. The phone call of 28 April 2018 was played, and the Offender then made admissions to disclosing the summons to Mr Craig, her sister and her grandmother.
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The following facts relate to the drug charge.
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Telephone intercepts revealed that the Offender knowingly took part in the supply of the prohibited drug methylamphetamine. The supply was at the request of Mr Craig, who was in custody at Cessnock Correctional Centre.
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On 15 March 2018, Mr Craig told the Offender over the telephone to contact a particular woman they knew to book a visit to the jail, and that there would be 5 balloons for the woman to swallow. Mr Craig told the Offender to drive the woman to the jail for the visit. The Offender agreed to drive and organise the woman. Mr Craig told the Offender that he wanted to know what colour the balloons are so he could check to see if the drug had been swapped. Mr Craig indicated that he would pay the woman $1000 to bring the drugs to him in custody.
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However, the plan changed and a different woman, Kirstie Walker, was organised to bring the drugs to Mr Craig. Her partner was in the same pod in the jail as Mr Craig. The Offender then engaged in discussions with Ms Walker. The Offender indicated that she would get the drugs and drop them off to Ms Walker.
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On the morning of 16 March 2018 the offender and Mr Craig spoke by phone. The Offender indicated that she had the drugs (ice). Mr Craig asked her to weigh the drug. She weighed the drug and told Mr Craig that it was 7.76 grams (with the bag). She then weighed the bag which weighed 0.96 grams. The offender indicated that she would pay Walker after the drugs were delivered.
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On the morning of 18 March 2018, the Offender and Mr Craig spoke by phone. The Offender complained about Walker. There had been an argument with Walker about the drugs. Mr Craig told the Offender to “play her so she brings the drugs in”. The Offender complained about driving to Cessnock to visit Mr Craig. Later that morning the Offender was in Cessnock with Kim and engaged in a telephone call with Mr Craig. She confirmed that they had 5.79 grams of the drug. There is no evidence that Mr Craig ever received the drugs.
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Those are the Agreed Facts.
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The Offender’s case comprised 6 exhibits.
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Exhibit 1 was letter of apology. The Offender is the oldest of 6 siblings. She was taken away from her mother and placed in the care of a grandmother when she was only a couple of months old. She first met her father when she was 18 years old. She returned to live with the mother at the age of 7. The mother’s partner at that time was very violent with the Offender’s mother and, as the Offender became older, he became violent towards her. She returned to live with her grandmother.
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In the end, all 6 children were in the custody of their grandmother and the mother would come to visit for birthdays and Christmas.
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The Offender had her first child at the age of 16 and her second child of the age of 17. The father of those children was an alcoholic and physically and verbally abusive. At some point he “got physical” with their daughter, causing the Offender and the children to leave.
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When she was in her twenties, the Offender secured the care and custody of her youngest sibling who been taken away from their mother when she was just 2 months of age.
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The Offender’s mother passed away 5 years ago with lung cancer.
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The Offender has also always been very close to her brother Conrad. When he was 15 she witnessed him try to kill himself with a razor blade. After Conrad turned 18 he was going off track, and was on the run from the police. He was heavily influenced by his addiction to ice and the Offender knew that he was going to end up hurting himself or someone else. On one occasion, she assisted detectives to “get him off the streets”. They have always maintained close contact whilst he has been in custody.
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The Offender stated:
“whenever Conrad asked me to do things I was trying to keep him happy because I was afraid of what he would do to himself if I didn’t. I still get up every day and I pray that I don’t see on the news that he has killed himself in jail.”
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In relation to the dealing with the proceeds of crime charge, the Offender stated that she knew what the $20,000 was for and that it was to do with trying to cover up the murder. In relation to the crime commission offences, the offender said that she was “completely terrified when I was in there”.
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She described her period in prison after her arrest. She said that being in custody made her feel the way she felt when he when she watched her mother die. She had never previously been away from the children. Upon release, she was the subject of strict conditions, including a curfew.
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The Offender was examined by Dr Adam Martin, psychiatrist, via Zoom on 22 April 2021 resulting in a report dated 7 May 2021. The Offender identified as Aboriginal, and was not working but was receiving Centrelink benefits. She complained of difficulty sleeping. At around the age of 12 or 13, the Offender was placed into adolescent mental health care for a few days, following an overdose of medication which occurred due to distress from being bullied at school. She had psychological counselling as a young teenager, but has not received anything subsequently.
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The personal history provided to the psychiatrist captured a lot of the information in Exhibit 1. She has worked in a car wash, a takeaway shop and most recently as a cleaner. She described being the victim of regular domestic violence. She reported that her mother had mental health issues, including bipolar disorder exacerbated by heroin addiction.
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In respect of the index offending, the Offender expressed regret and indicated that she has not had contact with her brother Conrad for about 3 years. It was reported that the Offender recognised the wrongfulness of her behaviour and she noted the problems that it had caused her and her children, stating “it nearly destroyed their lives”.
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The psychiatrist described the Offender’s personal development as disorganised. There was a strong family history of mental health and substance use issues, consistent with psychological deprivation, neglect and parental absence. It is also accepted that the offender experienced protracted domestic violence at the hands of the father of her children.
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The Offender is not currently mentally ill, but reports ongoing insomnia, ruminations, stress and worry in relation to legal issues and the welfare of the children in the event of her incarceration.
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The psychiatrist expressed the opinion that:
“at the time of the offending, while there is limited evidence to suggest that she was severely impaired by mental disorder, it is reasonable to assume that her judgement would not be as sound as the average person because of long-standing vulnerability associated with adverse childhood experience and trauma, through experience of domestic violence, and with a high genetic loading apparently for mental health and substance use issues.”
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Further, the psychiatrist stated that “it is plausible and likely that she would generally be a person prone to poor decision-making at times, reflecting a difficult childhood and adult trajectory and life experience”.
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Concerning her brother, she again repeated that:
“she was worried that if she did not support him that she might be responsible for his self-harm or suicide. She described feeling a general duty to his welfare at that time and said more recently, in the aftermath of what has occurred, she had removed herself from his life.”
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The psychiatrist expressed the opinion that the Offender would generally have been prone to poor decision-making and have limited coping skills as a direct result of adverse experience.
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Further, he expressed the opinion that the Offender had good prospects of rehabilitation.
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Exhibit 3 is a reference from the Offender’s grandmother, Colleen Craig, dated 22 June 2021. Colleen Craig generally corroborates the information provided by the Offender, both in her letter of apology and in her history to the psychiatrist. She indicated that the Offender had expressed sorrow and remorse to her concerning this offending.
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Exhibit 4 is a reference from Michelle Harrison, the Aboriginal education officer at a school that is associated with the Offender’s family. She has been employed there for 27 years and first met the Offender about 20 years ago. She stated that the Offender’s children were “traumatised” when she went into jail.
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Courtney Orchard is the Offender’s daughter. She is now 22 years old and pregnant. She spoke about her mother’s plans for the future. That is, to move forward with her life and get back to working on being there for her own children. Again, Ms Orchard confirmed the Offender is very remorseful for her offending.
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Norman Orchard provided a reference, which was marked Exhibit 6. He has known the Offender for over 22 years, as she had 5 children to his brother. Mr Orchard speaks highly of the Offender, and confirms that she is remorseful.
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The Offender gave evidence at the sentence hearing on 8 July 2021. When asked how she felt personally about the offending, she stated that she was “disgusted with myself”. When asked why she helped out her brother, she stated “my brother is a very angry – and he’s got a lot of mental issues, and it’s like he makes me feel guilty sometimes if I don’t do something, and I had fears that he’d kill himself” (T18.7).
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The Offender impressed as an honest witness. I accept that her offending was the result of misplaced loyalty or a sense of obligation to her brother. She has now removed him from her life and that of her family. Given that the sentence he received included a 30 year non-parole period, it is unlikely that contact will be re-established between Mr Craig and his sister anytime soon.
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An outline of submissions for the Offender were marked MFI 2.
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Counsel began by referring to the delay between the offending and sentence, submitting that his client had been kept in a state of uncertain suspense. Further, it was submitted that the time on bail has been under strict conditions, amounting to a form of quasi-custody. Having regard to the submission concerning delay, I have taken the period since the Offender was first arrested into account, as initially a period during which she was in custody and then a period for which she was in quasi-custody. I have taken both of those factors into account in determining the sentence. To now have regard to the delay would risk double-counting that moderating factor.
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In relation to the recklessly deal with the proceeds of crime charge, counsel for the Offender submitted that it fell “towards the lower end”, for the reasons referred to in MFI 2 [23].
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In relation to the charge of knowingly give false or misleading evidence, Counsel again submitted that the offending fell at the lowest end of offending for that type, as the evidence did not go to any question of substance, but rather to peripheral matters concerning confidentiality.
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In relation to the drug supply charge, counsel for the Offender submitted that it fell towards the lower end, but not the lowest end, of objective seriousness.
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Counsel identified a number of statutory mitigating factors including:
the Offender has no record of previous convictions;
the Offender was a person of good character;
the Offender is unlikely to reoffend;
the Offender has good prospects of rehabilitation;
the Offender has demonstrated remorse; and
the early guilty plea.
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Counsel conceded that for the give false or misleading evidence charge the section 5 threshold had been crossed.
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Extensive submissions were made concerning the suitability of an Intensive Corrections Order.
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The Crown provided helpful written submissions, which were marked MFI 1.
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In relation to the recklessly deal with the proceeds of crime charge, the Crown submitted that factors relevant to determining the seriousness of the offending included:
that the receipt of money was related to the production of a false affidavit relating to murder;
that her role involved the single receipt of money which is then dealt with according to Mr Craig’s direction; and
that the proceeds, being $20,000, was a significant sum.
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In relation to the knowingly give false evidence charge, the Crown referred to a number of authorities indicating the seriousness of any offending that affects the administration of justice.
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In relation to the supply prohibited drug charge, the Crown conceded that the drug quantity was relatively small but that, however, the offending was elevated by the fact that the drug was to be supplied into a custodial setting, and that in the report of the psychiatrist, the Offender downplayed her role in the offending.
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I make the following findings:
none of the aggravating factors under section 21A(2) of the CSP Act apply;
in respect of mitigating factors under section 21A(3), I find as follows:
the offence was not part of a planned or organised criminal activity;
the Offender does not have any record of previous convictions;
the Offender was a person of good character;
the Offender is unlikely to reoffend by reason of her realisation of the adverse impact of offending upon her family’s life, and by reason of the fact that, prior to this offending, the Offender had never been charged with a criminal offence;
the Offender has good prospects of rehabilitation, by reason of removing herself from the influence of her brother, Conrad Craig;
the Offender is remorseful in that she has accepted responsibility for her actions and acknowledged the injury, loss and damage that they have caused others; and
the Offender has pleaded guilty;
I find that that the threshold under section 5 of the CSP Act has been crossed, and that no penalty other than imprisonment is appropriate; and
I find special circumstances on the bases that the bail refused period was the Offender’s first time in custody, she has excellent prospects of rehabilitation and that her risk of reoffending would be assisted by spending as much time as possible in the community on parole.
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In respect of the charge of recklessly deal with the proceeds of crime I find the objective seriousness to be at the low range, for the reasons submitted by counsel for the Offender at MFI 2 [23].
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For the charge of knowingly give false or misleading evidence during a hearing, I find that the Offender’s conduct falls at the low end of the range of objective seriousness, principally because the evidence did not go to any matter of substance, but was merely peripheral to the giving of evidence. That is not to say that even in respect of matters peripheral to a hearing offenders ought to be treated lightly for giving false evidence. The obligation to give truthful evidence begins upon the taking of the oath or giving of the affirmation to do so.
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For the charge of knowingly take part in the supply of a prohibited drug, I find that the objective seriousness of this Offender’s conduct falls at the low range, given the quantity of the drug and the fact that she was not the person intended to execute the supply.
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Turning to consider the purposes for which a sentence may be imposed, general deterrence is at the forefront of consideration. Courts must act so as to denounce offending of this type which:
in relation to the proceeds of crime charge, was derivative of a more serious form of offending;
in relation to the giving false evidence charge, undermines the confidence in the administration of justice; and
in relation to the drug supply charge, so as to reduce the movement of drugs within the community and, more particularly, from the community into a custodial setting.
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In my opinion, the need for personal deterrence is moderated by a reduction in the Offender’s moral culpability, by reason of her less than ideal upbringing and her misguided sense of obligation to her brother, Conrad Craig.
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I intend to impose an aggregate sentence for the 3 offences. Before doing so I am required to provide indicative terms. The following indicative terms are provided, after a discount of 25% for the guilty plea:
for the charge of recklessly deal with the proceeds of crime under section 193B(3) of the Crimes Act, I provide an indicative term of 18 months;
for the charge of knowingly give false or misleading evidence in breach of section 27(1) of the Crime Commission Act, I provide an indicative term of 6 months; and
for the charge of knowingly take part in supply a prohibited drug, I provide an indicative term of 9 months.
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Having regard to the period of time spent in custody (7 months and 1 week), and the onerous nature of the bail conditions following a release (including a curfew), I intend to impose a sentence of less than 3 years.
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In those circumstances, it is necessary to consider whether the sentence of imprisonment should be served by way of a full-time custody or, alternatively, whether it be directed that the sentence be served by way of an Intensive Corrections Order in the community.
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In doing so, I acknowledge that the safety of the community is the paramount consideration. I find that this Offender poses no risk to the safety of the community, as she has never engaged in antisocial, violent or destructive behaviour.
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When considering community safety, it is necessary to determine whether serving the sentence by way of full-time custody is more likely to reduce the risk of the Offender reoffending than serving the sentence in the community. I consider the risk of reoffending to be minimal, if not non-existent. In my opinion, given the strong bonds between this Offender and her family, she is most likely not to reoffend if left to serve her sentence in the community. Serving this sentence by way of an Intensive Corrections Order is more likely to address whatever remains as a risk of reoffending for this Offender. In making this determination, I am mindful of the purposes for which a person might be sentenced, as set out in section 3A of the CSP Act, and to which I have referred above.
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Taking into account the time spent in custody and the time on bail, I consider that the term of the Intensive Corrections Order should be for a period of 18 months.
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Ms Craig you are convicted of the offences to which you have pleaded guilty:
recklessly deal with the proceeds of crime, in breach of section 193B(3) of the Crimes Act 1900 (NSW);
knowingly give false or misleading evidence during a hearing, in breach of section 27(1) of the Crime Commission Act 2012 (NSW); and
knowingly take part in the supply of a prohibited drug, in breach of section 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW).
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For those convictions you are sentenced to a term of 18 months imprisonment. I direct that the term of imprisonment be served by way of an Intensive Corrections Order in the community. The Intensive Corrections Order commences today, 7 September 2021, and will expire on 6 March 2023. During that period you will be subject to the following standard conditions:
you must not commit any offence; and
you must submit to supervision by a community corrections officer.
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The following additional conditions also apply:
you must participate in whatever counselling or rehabilitation is recommended to you by a community corrections officer;
you must not contact or otherwise associate with:
Bassam Hamzy;
Torek Ayoub;
Ali Abbas; or
Abdul Rahman Abu Mahmoud.
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You will receive instructions from your lawyer about the signing of the Intensive Corrections Order.
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You must contact Blacktown Community Corrections within 48 hours to commence supervision.
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I certify that the previous 105 paragraphs are the reasons for the Remarks on Sentence of his Honour Judge D Wilson SC.
J Bailey
Associate
Decision last updated: 07 September 2021
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