R v Hay; R v Cross

[2023] NSWDC 234

District Court

New South Wales

Medium Neutral Citation:

R v Hay; R v Cross [2023] NSWDC 234

Hearing dates:

15 June 2023

Date of orders:

29 June 2023

Decision date:

29 June 2023

Jurisdiction:

Criminal

Before:

Priestley SC DCJ

Decision:

See [50 & 83]

Catchwords:

CRIME — Drug offences — Commonwealth offences — Attempted import marketable quantity of border-controlled drug

Legislation Cited:

Criminal Code Act 1995 (Cth)

Crimes Act 1914 (Cth)

Cases Cited:

Nasrallah v R [2021] NSWCCA 207

Bugmy v The Queen [2013] HCA 37

Huynh v The Queen [2022] VSCA 49

Siddiqi v The Queen [2015] NSWCCA 169

Robson Bolan [2022] NSWCCA 1

Totaan v R [2022] NSWCCA 7

Dunning v Tasmania [2018] TASCCA 21

Category:

Sentence

Parties:

Rex (Crown)
Tristina Hay (Offender)
Samuel David Cross (Offender)

Representation:

Hirst for the Office of the Commonwealth Director of Public Prosecutions
Sayad for Cross
Sahinovic for Hay

File Number(s):

2021/00356519, 2021/00356522

Publication restriction:

NA

JUDGMENT

1. Samuel David Cross and Tristina Hay each appear for sentence on one charge pursuant to sections 11.1(1) 307.2(1) and s11.2A of the Criminal Code (Cth) (“CCC”) of attempting to import border-controlled drugs, namely cocaine in an amount of a marketable quantity. The offenders will be referred to collectively as the offenders and where necessary to identify them individually by their surname or as the offender.

2. The offence has a maximum penalty of 25 years imprisonment. The maximum sentence serves as a legislative guidepost indicating the view of the legislature as to the seriousness of the offence to assist in arriving at the appropriate sentence.

3. The offence is made up by two occasions of attempting to import cocaine. On the first occasion the quantity involved was pure cocaine of 327.14 g and on the second the quantity involved was 370.239 g of pure cocaine, giving a total of approximately 697 g. The date range in which this conduct occurred was between 2 August 2021 and 19 October 2021. Both offenders were arrested on 21 December 2021. Hay was held in custody until 25 July 2022, so a period of 7 months and 5 days. Cross has been held in custody since his arrest so a period as at the date of these reasons of 18 months and 9 days.

4. There are no matters to be dealt with by way of a section 16AB schedule. Neither offender was on conditional liberty at the time of the offending.

The facts

5. The facts of this offending are set out in detail in the agreed facts for sentence. The facts are the same in respect of each offender. Without in any way diminishing the significance of the facts set out it is possible to shortly summarise what has occurred. In the period of the offending the offenders resided together at an address in Tallebudgera, Queensland. They had been in a relationship at the time of the offending for about 12 years. Cross has a sister named Hannah Wilson, a co-offender, and in mid July 2021 she purchased a property in Casino.

6. The first attempted import involved the offenders arranging on or about 2 August 2021 for a package containing cocaine to be sent from the United Kingdom to the Casino address. The package had a false cardboard bottom allowing the cocaine to be concealed. The consignee phone number for the delivery was subscribed to an unrelated person in Western Australia but records showed it was in use in the Tallebudgera area. The package was addressed to the co offenders’ business.

7. The package was intercepted by authorities and replaced with an inert substance and a controlled delivery was affected to the Casino address via the Australia Post office in Casino. When the tracking bar code was scanned by Australia Post an electronic notification was sent to the mobile phone used by Cross. He then notified Wilson that the package was ready for collection and kept her updated on its status. Wilson then collected the package; just why it was collected as opposed to actually being delivered to the Casino address is not clear. Cross communicated with Wilson by way of the Signal application. This application was used specifically for this attempted import with the messages set to disappear after one hour.

8. When Wilson attended to collect the package, she had insufficient information and later returned with a note with information including the name of the offenders’ company and was handed the package. Her intent was to deliver it to Cross. That day, which was 8 October, the police searched the Casino premises and found the unopened package in Wilson’s mother’s bedroom. Wilson was to be compensated for her efforts and ultimately received furniture in the amount of $3919 and had expected to receive $5000 when she delivered the package.

9. When the package delivery was delayed Hay had made enquiries including whether it would be going back to customs. She purported to be someone other than she was. She twice made enquiries as to the status of the delivery.

10. The amount inside the package weighed 499.46 g with a purity of 65.5% so that the pure cocaine was 327.14 g.

11. On 18 October the Tallebudgera property was searched by Australian Federal police and Queensland police. Two mobile phones and 2 Sim cards were some of the items seized.

12. The second attempt resulted in a package arriving in Australia on 19 October 2021 from the United States. It was addressed to an Alice Kelly at the business address of the offenders. A number different to the earlier telephone number provided was used; the declaration stated the package contained body creams and bath products. The cocaine was inside a bag labelled “bath salts”. The gross quantity was 499.649 g at a purity of 74.1% so the pure cocaine quantity was 370.239 g.

13. The total amount in question of 697.397 g is a marketable quantity; the required amount to be a marketable quantity is between 2 g and 2 kg.

14. The transport company this time was DHL rather than Australia Post and a card was left at the offenders’ address of business asking them to arrange a delivery time. Cross responded identifying himself as “Steve”. A controlled delivery was then affected on 29 October 2021. Cross was observed in the vicinity of where the delivery was to occur. Hay then approached an undercover police officer who was posing as the DHL driver and took the package and went to the car driven by Cross. Police then sought to apprehend the offenders, leading to Cross driving away at speed.

15. On 25 November police emailed Cross saying police had warrants for their arrest. The next day Cross asked to see copies of the warrants and police supplied that by return email. There was no further contact with the authorities by the offenders until 21 December. On 21 December 2021 the offenders were apprehended at Hay’s mother’s home in Barkers Vale New South Wales. Both had sought to avoid custody but were then apprehended.

16. The agreed facts include the facts of two further packages which were imported in a similar fashion also containing cocaine. This was in July and August 2021. The Crown does not rely on this for any other purpose than to show that the offending was not an isolated incident and the offenders except that to be the purpose of that evidence.

Objective seriousness

17. In the submissions of the Crown and of Hay there was consensus that the role of Cross was more significant, with the view being that as between Cross and Hay, Cross was the more dominant organiser. There is no information as to where the drugs came from in the agreed facts other than from either the UK or US. The subjective material suggests that contact was made through the “dark web”. In characterising the roles of the offenders, Cross should be seen to be the main organiser with Hay a willing participant acting at the direction of Cross. Both of them at different times made contact with the delivery services.

18. The Crown submissions very helpfully set out a detailed breakdown of the conduct of each offender. In respect of Cross, he facilitated the consignment to be sent to the Casino address, tracked the status of the consignment, informed Wilson of the delivery status and progress, directed Wilson to download the Signal application, directed Wilson to attend the post office for collection, including assisting after the first failed attempt, and offered to arrange for some payment to Wilson (what Wilson received is set out above; there was mention also of payment of $50,000 which never eventuated). That was all in respect of the first delivery or package.

19. With respect to the second delivery or package Cross facilitated the consignment to be sent to his business address, communicated with DHL or who he believed to be DHL, was at the delivery location and carried out surveillance and decamped the scene when aware of police.

20. I accept the Crown’s submission that Cross performed a directorial role.

21. The total of the pure cocaine involved in these offenses is 697 g. That plainly is well in excess of the minimum amount required for marketable quantity but also substantially less than the maximum. The weight of a prohibited drug is not the sole nor even determinative matter, but it is a relevant matter to take into account. The amount here in my view is however significant and certainly reflects that this is no minor occurrence of this type offending.

22. The Crown submission does not offer an assessment as to whether the objective seriousness is within a certain range. That is of course not necessary in this matter but in my view so common is that process undertaken that it does assist in exposing the reasoning of the sentencing Court and in my view the offending here although significant offending would still be below the mid range. That is because as submitted by the offender this is unsophisticated offending. Whilst there were attempts at subterfuge, the addresses used were both easily connected to the offenders with one of them obviously being their own business address and the other being the address of the sister of Cross. The use of mobile phones and the application Signal is hardly sophisticated and is readily available to the broader community. That they used addresses connected to them reflects what I consider to be the fairly amateurish nature of the offending. The first package was actually addressed to the offenders’ own business. As noted in the submissions from Cross, on the agreed facts there is no connection to any broader criminal association beyond the offenders and Wilson.

23. In respect of Hay in respect of the first package she facilitated it being sent to the consignee of their business name and made telephone enquiries under a false name. In respect of the second consignment, she facilitated the package to be sent to a consignee of her business name at her business address and attended at the delivery address and took possession of the consignment.

24. The Crown submission which I accept, and which was adopted by Hay, is that her role is less culpable than Cross. I do not consider however that her involvement could be described as “scant” as was suggested on her behalf.

25. In relation to Hay, it was submitted that by her plea she was not making an admission as to knowledge of the contents of the packages. This led to an exchange of submissions between the parties following the hearing. The point of the submission for Ms Hay was that section 300.6 of the CCC which applies to attempt offences only requires the prosecution to prove recklessness as the fault element.

26. For the Crown it was submitted that the offence is brought pursuant to section 11.2A of the CCC. That section relates to joint commission as opposed to attempt. Subsection (4) of that section provides that for a person to be guilty of an offence by reason of that section the person and at least one other party to the agreement must have intended that an offence would be committed under the agreement.

27. Section 300.6 deals with the fault element in relation to specified physical elements of the attempted offence, one of which is that a substance is a controlled drug. Looked at in isolation there may be some attraction to Hay’s argument. However the plea is to a charge brought pursuant to sections including section 11.2A so there is an admission to intending to commit an offence. In a case where s11.2A is what is pleaded to, it must follow that the offender intended to import a border controlled drug.

28. In any event the argument is somewhat moot as the evidence relied upon by Ms Hay includes her account to the psychologist Mr Brecht as recorded at [44] of his report, that she was presented with an opportunity to collect a package of “illicit substances”. There are also the admitted facts of two preceding deliveries of cocaine providing a sound basis to infer knowledge.

29. The sentence of Hay proceeds on the basis that she knew the substance was a border controlled substance. In the circumstances set out in the agreed facts even if that conclusion be incorrect the degree of recklessness is such that the broad assessment of the seriousness of the offending would not be affected. It is the case that it has not been established that Hay was aware of the precise quantity involved, other than it was a marketable quantity.

Subjective cases

30. The Crown accepts that there should be a 25% discount for each offender.

31. Each offender has a minimal criminal history. They were both convicted of a Commonwealth offence in 2012/2013 of dealing in proceeds of crime for which they were both convicted without sentence being passed and released on a good behaviour bond. They were also both convicted in 2014 of possessing a prohibited drug. In addition to those two offences Cross has one further drug possession matter from 2007. It is of course of concern that this is now their third occasion of being jointly engaged in criminal activity. Nevertheless, the offending is minor and, in my view, only minimally detracts from the leniency they would otherwise receive for a clear record.

Cross

32. Both offenders relied on a report of a psychologist Oliver Brecht. The report in respect of Cross records he was born on 30 November 1988 so is now 34 years old and sets out a history which was not challenged by the Crown. Cross had 4 half siblings; his parents separated when he was 2 and his needs were neglected by his mother who had drug and alcohol difficulties. This led to him living with his father at the age of 8. His father was a police officer but also a poor parent, aggressive and often drunk. At the age of nine, Cross suffered sexual abuse by an after-school carer. During adolescence his home varied between mother and father. When with his mother he was pressured into selling drugs. He became addicted to cannabis.

33. He completed year 12 at school and undertook tertiary study receiving a Diploma of Disability Support and a Bachelor of Social Science. He held employment in that field. Work became too much for him as he said he was in over his head and had a lack of support and he resorted to cocaine and alcohol to cope. This led to him being dismissed three months prior to his arrest for these offenses.

34. He has been in a relationship with the co-offender since the age of 21. He states that since his arrest he has separated himself from previous friends associated with drug use.

35. At the age of 8 he was taken to a psychiatrist for a period of six months, but no details are available. He did not disclose the sex abuse at that time. That there was counselling suggests that there was something about his behaviour causing concern and it would seem reasonable to infer that behaviour was triggered by the poor conduct of his parents and the sexual abuse. Apart from that he has had no treatment prior to his arrest to assist with drug use. Since arrest he has completed a number of courses for drug and alcohol addiction which has assisted his recovery. He reported feeling depressed throughout his life and that he managed stress with substance use. He continues to suffer distress as a result of the sexual assault including flashbacks. It is suggested that drug use was used to avoid the memories.

36. As to the offending. that occurred when he had a strong addiction to cocaine, and he was offered free cocaine for participating in the import. He says he was asked to act as the middleman.

37. He states that custody has been good for him, forcing sobriety and giving him some support that he had not had before and giving him a more realistic plan for the future. He has plainly accepted responsibility for his actions and acknowledged his wrongdoing.

38. His plans are to return to work in the disability support field, keep away from the adverse influences associated with drugs and to seek compensation for his abuse.

39. The psychologist considers Cross presents with symptoms consistent with stimulant use disorder and post-traumatic stress disorder.

40. The report recommends drug and alcohol counselling, attendance at NA or AA and psychological intervention for his PTSD.

41. There was no challenge to either the facts or conclusions of the psychologist’s report. The report in my view is logical and I accept the history it records and its conclusions.

42. Mr Cross swore an affidavit which was not the subject of cross examination. It confirmed the history given to the psychologist and added other drugs to the drugs used in adolescence. He had steady employment for about eight years and was doing his Masters in counselling when arrested. He explains the charges against him in prison which arose from one incident in which he says he was not involved as alleged. He has been drug-free since being in custody which is a period now of some 18 months. He says he has been able to secure work for when he is released with the NDIS which I note is in his field of previous practice.

43. He acknowledges the need for him to address the triggers that cause him to use drugs.

44. He also notes that in his time in custody he has been subject to approximately 150 days of continuous lockdowns due to Covid restrictions. In court it was said that the longest term of lockdown was 24 days. This involves being in his cell 24-hours a day with one other inmate and with a shower and toilet in the corner. By any measure of a civilised society that is extremely arduous; indeed, it is difficult to see how such conditions are permitted on the facts available. The submission that his time in custody has been more arduous than in pre-Covid times is very persuasive and I accept it and take it into account in determining his release date.

45. In his affidavit Cross expresses insight into the dangers of drugs and an intention to make changes to his life and use his experiences to help in the pursuit of his profession.

46. Additionally, there were five references from various people familiar with the offender. They are all consistent with the with the positive aspects of his subjective case just outlined, and are supportive of the offender. I note that a co-worker supports his assertions of a stressful work environment prior to his arrest. The letter from the mother of the co-offender shows that the offender is a person who takes time to assist others.

47. Lastly there was a sentencing assessment report dated 25 May 2023. It states that he did not accept responsibility for his role in the offence. The material I have just canvassed leads me to respectfully disagree with that view. It is perhaps a reference to the fact the offending continued after the first search conducted by the police. Whilst that is not favourable to Cross it does not result in the conclusion arrived at by this report. The report also states that Cross was self-focused in terms of the impact of his offending; again, the evidence just considered is inconsistent with that and just why that is said is not clear. It then almost begrudgingly records his acknowledgement of the benefit to him of time in custody.

48. He was assessed as suitable for community service work and was assessed as a medium risk of reoffending. That assessment is simply stated to be according to the often-used level of service inventory revised assessment which is a static assessment. Given my view of his prospects as being good, and that the most significant risk factor for reoffending would be relapsing into drug use, which based on the subjective material may well be avoided, my view is the risk of reoffending is lower than medium. That said it goes almost without saying that should Cross return to drug use then reoffending would be more than likely.

32. The proposed supervision is set out, emphasising alcohol and other drug programs and remarkably making no mention of the need to treat his trauma from sexual abuse. Whether that history was given to the report writer is not clear.

33. The submissions for the offender relied on the disadvantaged background to found a submission based on Bugmy. There are factors in this case supporting that conclusion; parental substance abuse; lack of appropriate care and occasions of scarce food. The courts commonly deal with circumstances far more disadvantaged than this, however it was not argued by the Crown that this was not an appropriate case for the application of Bugmy principles and the question of whether this amounts to profound disadvantage has not been raised. Sensibly so in my view for as recent authority shows whether or not the element of “profound” is required, the facts and circumstances of the background are still relevant in the general sentencing process; see Nasrallah. I accept that Bugmy principles apply. The result here is that it means the offender is less morally culpable, and he is a less suitable vehicle for general deterrence. The offender also relied on the discount for his plea, the fact that he had shown contrition, that his prospects were good and the Covid 19 impact which I have all referred to above. I accept all of these submissions.

34. Additionally, the background of Cross shows that he is capable of leading a prosocial lifestyle despite significant disadvantages in his upbringing. Not only in my view should consideration be given favourably to him due to his background of disadvantage but the fact that even with that disadvantage he obtained tertiary qualifications and meaningful work in the community gives a very sound basis for considering he has good prospects and is able to lead a pro social life. The mitigation available due to a disadvantaged background should not be lessened due to the offender demonstrating pro social behaviour, despite that disadvantage.

35. The Crown also provided helpful written submissions dealing sequentially with the provisions under section 16A of the Crimes Act (Cth) (“CA”). The Crown relied on the fact of there being a course of conduct as is borne out by the facts. The Crown makes the point which I accept that whilst the drugs do not reach the community there is still harm to the community not only by promoting the drug trade but also as the Crown points out the using up of public resources of law enforcement.

36. In oral submissions the Crown referred to the need for general deterrence. I accept that submission. That Bugmy applies to lessen moral culpability does not obviate the need for general deterrence but simply lessens it in the case of Cross. So too is there a need for specific deterrence.

37. The competing ultimate submissions in Cross were for the Crown to suggest that the period of imprisonment would exceed three years so that there would then need to be a non-parole period. There was really no dispute about that from the offender with the submission being that the non-parole period should be such that would see the offender released into the community either now or in the near future.

38. There were a number of comparative cases relied on by the Crown. The limitations on comparable judgment are well recognised. In one case of Huynh a seven-year head sentence was imposed in respect of a man with prospects considered as guarded. In the case of Siddiqi after a jury verdict in respect of cocaine of 1.48 kg pure weight the head sentence was seven years and six months with a non-parole period of three years and nine months. In the case of Hijazi for an amount of 1.25 kg of cocaine the offender received a sentence of five years 10 months imprisonment with a non-parole period of three years four months. The offender there was far more involved and had a more significant role in that whole operation than is present here.

39. In a similar vein was the case of UE, in that the degree of involvement was significant involving travel to Malaysia to organise shipment to Australia and then performing the role in Australia of collection. In that case the sentence was six years with a non-parole period of three years and four months.

40. In my view as a general observation each of the comparable cases just referred to are objectively significantly more serious than the present case; they involve significantly greater quantities with more significant roles being played by the offenders. I have also found that Cross has a particularly favourable subjective case.

41. One case more similar to the present was that of Dunning where a young 19-year-old had used the Internet to arrange for the import of drugs. Even in that case he was more integral in what occurred than can be said of the present offender. Furthermore, in terms of prospects it was found that offender had little evidence of a true commitment to rehabilitation. The sentence imposed was 6 years with a non-parole period of 3 years 6 months.

42. There is no issue that there needs to be a term of imprisonment. The question is how long and whether that period requires a non-parole period. This is of course a very serious offence as reflected by the significant maximum penalty of 25 years imprisonment. In my view prior to the application of the discount the sentence should be 4 ½ years. Applying the discount of 25% and rounding it down gives a period of three years and four months. In terms of the length of the non-parole period in my view the offender would undoubtedly benefit from an extended period of supervision. This is to assist the offender to remain abstinent, as far as reasonably possible without offending the principle of proportionality. Cross has good prospects of making meaningful contributions to the community if he can remain drug free and resume his career path. In my view the non-parole period should be 20 months. The date of commencement of the sentence will be the date of his arrest which was 21 December 2021.

Orders - Cross

60. I therefore make the following orders:

1. The offender is convicted of the offence under sections 11.1, 307.2, and 11.2A of the Criminal Code (Cth).

2. The offender is sentenced to a term of imprisonment to date from 21 December 2021 with a non-parole period of 20 months expiring on 20 August 2023 with a balance of term of 20 months expiring on 20 April 2025.

Hay

61. The history given to the psychologist is of being born in Sydney but moving to northern New South Wales at about the age of 3. The offender had one brother. She did not have a good relationship with her father who left the family when Hay was 8. She has a good relationship with her mother. She witnessed however a series of abusive short relationships of her mother with men. Her relationship with her brother is good. Her mother did not impose firm boundaries which Hay took advantage of and engaged in alcohol and other substance use. At about 11 or 12 she took on responsibility for running the house as her mother was very sick and was afterwards more defiant towards her mother. At 14 whilst intoxicated she was sexually assaulted. She tells of other antisocial incidents involving violence including a further attempted sexual assault and being attacked by a cricket bat. This fractured her skull.

62. It is not set out in the report, but it was said in submissions that her life growing up was on a rural property in a shed with a concrete floor and outdoor toilet and no power or running water. The report records that whilst poor the offender was not neglected.

63. The evidence shows that Hay did not have all of the advantages that many people do, and, as put by Hay’s counsel, there was some material deprivation. Yet it is not a case of significant social disadvantage attracting Bugmy principles, and the submissions were not put in those terms.

64. It is appropriate to take into account the trauma of a sexual assault and I do so. Hay’s background and the fact of her sexual assault assists in giving the context in which drug use has emerged, and also of course to found the conclusions of the psychologist.

65. Hay’s relationship with Cross has been ongoing since she was aged 19 and appears to be a positive one, save for the significant factor of the use of illegal drugs. In that regard just prior to the offending they had moved to Queensland to be away from an environment where drug use was normalised. In contradiction of that Hay then says the closing of the borders with Covid isolated them from the usual support network; yet the idea was to be removed from the area of that network. I infer there were supports other than anti-social associates.

66. Hay did not enjoy school but completed year 12. Following school, she worked in hospitality and other fields. She has a history of employment. She moved onto working for herself. Cross assisted with this. She is now engaged in a creative writing course at university.

67. Her alcohol and drug history were that her social network involved socialising with the consumption of alcohol. With respect that is hardly unusual. She has used cannabis since the age of 14 inconsistently. It was in her late 20s that cocaine use began on an increasing scale. Use was almost daily by the time of the offending. This led to financial stress.

68. She has not used any illicit substances since entering custody now more than 18 months ago. Upon her release on bail, she enrolled in and completed an online drug rehabilitation program at the Buttery. That was a five day a week program which she completed, and she is now engaged in what is called fortnightly maintenance counselling.

69. She is excited to remain abstinent and follow her creative writing ambitions. She currently has a support network that includes her mother.

70. The offending occurred when she and Cross were offered an opportunity via the dark web to collect packages in return for money and access to cocaine. As found above, it was known to Hay that the packages contained illicit substances.

71. Hay described entering custody as a real eye-opener. As submitted by her counsel she was 31 when taken to the Clarence Correctional Centre and had no prior experience of custody. It was put in submissions as a sobering experience. As already noted, she has not used drugs since. She has meaningfully engaged in rehabilitation since being on bail. There is evidence from the Buttery describing her in the most glowing of terms.

72. The psychologist carried out a comprehensive assessment of the risk of reoffending involving both static and dynamic risk factors. The conclusion reached was that there was a low risk of reoffending. I would adopt that assessment not only because it was not challenged but because it fits the facts of her first serious offence occurring at the age of 31 in the context of a person who has led a largely pro-social life. What has occurred here is the progression from social drug use into addictive drug use and it has taken the arrest of the offender and the shock of custody to give her the proper insight into the dangers of her lifestyle and the wrongfulness of her conduct. I am satisfied that she is fully appreciative of that.

73. The psychologist assesses that at the time of the offending Hay experienced symptoms of stimulant use disorder. The further view is offered that it is now in a state of remission. I accept both those opinions. I also accept as a matter of common sense that should habitual drug use recommence the risk of reoffending increases.

74. The psychologist recommends continued fortnightly drug rehabilitation counselling sessions as well as further counselling to deal with the distress caused by her father abandoning her. He also recommends disassociating with known drug users

75. Hay read an affidavit sworn by her which was consistent with the psychological report. It makes her circumstances at school clearer, where she said she suffered severe bullying and struggled to fit in. This led to some truancy though I note she still completed year 12 despite being asked to leave high school at year 10 due to her periods of absence. She also gives a better description of her self-employment activities which began at age 21 with the fashion business and at 26 she completed a Diploma of Management. Leading up to the offending she describes drug use as the means of release by herself and Cross from the various stresses they were experiencing which regrettably was self-perpetuating.

76. In the affidavit she states going into custody was eye-opening and that she is ashamed of her involvement in her offending and recognises the deep-seated social issues caused and fuelled by the drug trade. She recognises her circumstances are better than many.

77. She was released on bail on 25 July 2022 so that she has spent 7 months and 5 days in custody. Since being released on bail she has lived with her mother and grandmother and assisted with the care of her grandmother who is 87. She also has work as a cleaner for NDIS and does other disability support work for 10 to 15 hours a week. She also volunteers at a local flower farm, and she enjoys this contribution to her community.

78. Hay expresses sincere remorse and acknowledges her wrongdoing and shows insight into the dangers and damage caused by drugs.

79. There was a total of five character references including from a psychotherapist Mr Carthy referred to above. There were documents from the Buttery and NDIS corroborating what was said in the affidavit which in any event was not the subject of any challenge. The reference of Mr Carthy describes Hay as being in that category of person who would do anything it takes to address their drug problem. He says it is a pleasure to work with a person so committed to a better life. That view, which I accept, expressed by a professional in the field gives great support for the prospects of rehabilitation and is consistent with the low assessment of likelihood of reoffending.

80. The other testimonials describe the offender in favourable terms such as intelligent and honest. These are features that were plainly lacking at the time of the offending. However, that is not a true representation of Hay overall. Hay is a person who although not from a background of disadvantage has had her share of life’s troubles plus the significant trauma of being sexually assaulted, and managed until the age of 31 to remain largely offence free. That in itself is good evidence that she will be able to return to a prosocial lifestyle on the ever present proviso that she does not relapse into drug use.

81. Hay’s grandmother Jan Gracie Mulcahy lost her home in the Lismore flood in 2022 and has since moved four times. She is 87. The offender has helped her and is described as very patient. This shows a caring aspect of the offender far removed from the type of selfish personality often associated with drug users. It adds to my favourable view of her prospects.

Consideration - Hay

82. In addition to the comparable sentences referred to above there was in this case reference by counsel for the offender to a case of Robson Bolan [2022] NSWCCA 1. A number of offences were dealt with, including a charge of attempting to import a marketable quantity border-controlled substance. The sentence imposed for the attempt to import offence was 2 years and 3 months, to be released on a recognisance release order after 1 year and 6 months. The drug was cocaine in the pure amount of 300 g. The facts set out at [7] of the judgment are remarkably similar to the present matter. Arguably the offending there, was even more unsophisticated than the present though I do note that the arrangements were made over the dark web and the offender in that case attended a post office to collect the package whereupon he was arrested. He was 21 with no previous convictions apart from two minor driving offences. It is plain from the orders made that the offender was not on bail at the time the sentence was imposed.

83. In the submissions for the offender the favourable subjective features were emphasised as set out above namely that she has family support, has reintegrated with the community successfully whilst on bail and is engaged in numerous forms of employment as well as study. It is said that all this progression will stop along with her counselling if placed back in custody

84. Reference was also made to the assistance she gives to her grandmother which I have commented on above and in line with the recent decision of Totaan the impact of custody on the offender’s family does not need to be exceptional under the Commonwealth legislation for it to be able to be taken into consideration. It adds to the offender’s favourable subjective case.

85. As to the fact of the second attempted import happening 8 or 9 days after the house was raided this was said to show recklessness. It seems to me to be a reflection of the dire state the offender was in. It clearly adds to the seriousness of the offending but should also be seen as reflecting the degree of desperation brought about by drug addiction.

86. The ultimate penalty argued for was either an intensive correction order, a recognisance release order or a suspended sentence.

87. For the Crown the fact that this was not an isolated incident was again relied upon and quite rightly so. So too was the submission concerning the damage caused by such offences. The Crown accepted that Hay’s guilty plea can be taken into account as contrition but notes also the strong Crown case. The Crown notes that there has been no breach of bail which has been in place now I would note for 11 months. Until 8 June there had been a curfew condition. I take those bail conditions into account in the general sentencing process.

88. As to the prospects of rehabilitation the Crown noted in oral submissions there was nothing to suggest any relapse by Hay but did make a submission that her state of being recorded to the psychologist is not too different now to how she was before the offending. With respect I would not accept that given that she has now had the eye-opening experience of having experienced custody for seven months and has described the effect this has had on her.

89. Indeed, my view is that her prospects of rehabilitation are the same if not better than Cross given that she has now been in the community for 11 months and has remained abstinent and prosocial. I am satisfied that her prospects of reoffending are low and that her prospects of rehabilitation are good.

90. Hay’s position overall is similar to Cross’, and it was said in submissions that her less serious objective offending may be offset by her less disadvantaged background, that is, a less powerful subjective case. My view is that is not the case but rather the sentence to be imposed upon Hay should be somewhat less. She is recognised by the Crown, a view I accept, as having a lesser role in this offending and her background whilst not one of significant disadvantage is one of some hardship, and of trauma. She has demonstrated both before and after her imprisonment an ability to lead a prosocial life and has good support and prospects.

91. In my view the appropriate sentence for Hay prior to the application of the 25% discount is four years so that the term of imprisonment is three years.

92. This means that in accordance with section 19AC of the CA, the court must make a recognisance release order and not fix a non-parole period. I note the submission of the Crown that a non-parole period should be set which is an indication that the term would exceed three years. For the reasons that I have outlined above the conclusion reached is that the sentence should be just beneath the bottom of that range. The Crown quite properly did not suggest a non-parole period.

93. Despite the mandatory language of section 19AC(1), s19AC(4) of the CA provides for a discretion to not make a recognisance release order if the Court considers it is not appropriate. In all the circumstances of the case of Hay, a recognisance release order is appropriate, given both the seriousness of the offending, and her need for supervision. A recognisance release order is an order which by s20(1)(b) of the CA sees a person who has been sentenced to a term of imprisonment released from custody on conditions either immediately or after the person has served a specified time in custody calculated in accordance with s19AF(1) of the CA. That section provides simply that the pre release period ends not later than the end of the sentence.

82. The question arises as to whether Hay should be returned to custody. What benefits are to be served by returning a person in the position of Hay to custody having already demonstrated over a period of nearly 12 months a capacity for and engagement in meaningful rehabilitation and no further offending or drug use? Returning the offender to custody would most likely have a harmful psychological impact and could unravel the positive steps Hay has taken and on that view is not in the overall interests of either the community or the offender.

83. The argument against this is that to not return Hay to custody does not adequately take into account the general deterrent consideration of s16A(2)(ja) of the CA. When all relevant impacts of this offending on Hay are considered, my view is that the sentence carries adequate general deterrence if there is not a return to custody. At the age of 31 she experienced custody for the first time, for a period of 7 months. Thereafter she has spent 11 months on parole including for most of that time with a curfew condition. Should a recognisance release order be made it will mean that there has been a period 4 years in which the offender has been either in custody, on bail or subject to the recognisance release order with the prospect of the balance of the three-year prison term, that is two years and five months approximately, possibly being enlivened should she breach the recognisance release order. This provides for deterrence, both general and specific. In all the circumstances of this case that outcome achieves the sentence appropriate for this case.

84. The offender has spent 7 months and 5 days in custody and the sentence will be backdated accordingly, and that will be the pre release period. That will mean there will be a balance of approximately two years and five months remaining of the sentence. The recognisance release order will have conditions for a period of 2 years, which is the maximum term of conditions allowed by s20(1)(a)(iv) CA, save for the period of good behaviour, for which the CA allows a maximum of 5 years.

Orders-Hay

97. The orders are:

1. The offender is convicted of the offence under sections 11.1, 307.2 and 11.2A of the Criminal Code (Cth).

2. The offender is sentenced to a term of imprisonment of 3 years to date from 25 November 2022 and expiring on 24 November 2025.

3. Pursuant to s20(1)(b) of the Crimes Act (Cth) upon giving security in the sum of $500, the offender is to be released on a recognisance release order after a period of 7 months and 5 days, which is on 30 June 2023, on conditions that the offender:

1. Be of good behaviour for a period of 2 years, 4 months and 25 days from 30 June 2023, and ending on 24 November 2025;

2. Be abstinent of all illegal drugs, and of all prescription drugs not prescribed to her, for a period of 2 years commencing 30 June 2023 and ending on 29 June 2025;

3. That for a period of 2 years commencing 30 June 2023 and ending on 29 June 2025, the offender continue such treatment or rehabilitation programs as advised by Mr Carthy of the Buttery for such period that Mr Carthy recommends.

**********

Decision last updated: 30 June 2023