R v Kedwell

[2022] NSWDC 368

District Court

New South Wales

Medium Neutral Citation:

R v Kedwell [2022] NSWDC 368

Hearing dates:

14/4/22, 23/5/22

Date of orders:

23/5/22

Decision date:

23 May 2022

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 4 years with a NPP of 2 years (21/5/22-20/5/24).

Indictive sentences (25 percent discount taken into account):

Seq 5 Possess marketable qty border controlled drug – 3 years 10 months

Seq 6 Possess marketable qty border controlled drug – 3 years 10 months

Catchwords:

Crime – Sentence – Commonwealth offences – Possess marketable quantity of border controlled drug

Legislation Cited:

Crimes Act 1914

Cases Cited:

Allami v Commonwealth DPP (2021) VSCA 42

Balloey v R (2014) NSWCCA 165

BP v R (2010) NSWCCA 159

Cappis v R (2015) NSWCCA 138

Musa v R (2018) NSWCCA 192

Nipoe and Teah v R (2020) VSCA 137

Omorogbe v R (2013) NSWCCA 201

Onourah v R (2009) 234 FLR 377

R v Ajelara (2015) QCA 56

R v Laurentiu and Becheru (1992) 63 A Crim R 402

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

Totaan v R (2022) NSWCCA 75

Category:

Sentence

Parties:

Commonwealth DPP – Crown
Blake Anthony Kedwell - Offender

Representation:

Mr L McLaren for Crown
Mr W Buxton for Offender

File Number(s):

2020/284564

SENTENCE

1. Mr Kedwell is for sentence in relation to the following two offences. The sequence 5 offence, being an offence of attempting to possess a marketable quantity of a border controlled drug, namely Methylenedioxymethamphetamine (MDMA), and the sequence 6 offence being a similar offence of attempting to possess a marketable quantity of that same drug. The maximum penalty in relation to each offence is 25 years' imprisonment and/or a fine of up to $1,110,000. The maximum penalty is, of course, an important guidepost or yardstick to which I have had regard in the sentencing exercise.

2. There was a plea of guilty to each offence at the earliest opportunity. While the Crown's case was very strong, the pleas of guilty nonetheless have utilitarian value, and on that basis, I consider it appropriate to allow a 25% discount.

FACTS

3. The facts are agreed, and in summary are as follows. On 3 September 2020, two packages were sent by express mail from Paris, France. These packages are described in the agreed facts as "parcel 203" and "parcel 251", which on the outside were virtually identical. Each of them had the same consignee, which was as noted in the facts, "James Broughton, 11 Hiland Crescent, East Maitland, 2323, New South Wales". Each of the parcels declared that their contents were worth approximately 32 Euros, and consisted of a "Paris St Germain accessory kit" with the sender being recorded as "Marie Paris St Germain Football of 24 Rue du Commandant Guilbaud, Paris, France.” Both packages were very similar and had appearances consistent with being attempted importations into Australia following a purchase overseas on the "dark web" or "dark net". The dark web or dark net is a part of the internet that is hidden from view by regular search engines, and can only be accessed according to the facts by specific programs or web browsers, although many of these programs or browsers are publicly available.

4. On 14 September 2020, after arrival of the packages in Brisbane, the Australia Post Gateway Facility detected anomalies in one of them, namely parcel 251. Further examination of that parcel revealed that inside there was a large box sealed with "Marie Paris St Germain Football" branded stickers. Inside that blue box was a similarly branded pencil case and towel. Inside the towel was a silver heat sealed bag with the number "250" written on it, along with some other illegible writing. And within that bag was a heat sealed bag containing a quantity of beige crystals. Presumptive testing of those crystals returned an indication for MDMA.

5. On 16 September 2020, at the Australia Post Sydney Gateway Facility, anomalies were detected in relation to the second parcel, namely parcel 203. Further examination of that parcel revealed that it contained a crinkled blue cardboard box in which there was a Paris St Germain towel, some loose cardboard packaging label for the towel, an empty plastic sleeve with an attached plastic coat hanger apparently relating to the towel, a Paris St Germain flag in a clear sealed bag, and a silver heat sealed bag, with some markings on the outside, which included the numbers "250" similar to package 251. Inside the silver heat sealed bag was a clear heat sealed bag, in which was found a substance which presumptive testing indicated was MDMA.

6. The crystals found inside parcel 251, after weighing and formal testing, were confirmed to be 244.13 grams of MDMA which was 76% pure, amounting to 185.54 grams of pure MDMA. Testing of the crystals found inside parcel 203 confirmed them to be 246.56 grams of MDMA which was 77.5% pure, amounting to 191.1 grams of pure MDMA. The total pure quantity of MDMA in the two parcels taken together was 376.64 grams.

7. New South Wales police took possession of the two parcels and conducted investigations which revealed that both parcels originated in France and were registered with the French postal service within one minute of each other, and that between 10 September and 30 September 2020, the offender made in excess of 160 online inquiries about the tracking numbers for the parcels using his mobile phone as well as internet accounts held in the name of his mother at 11 Hiland Crescent, and his de facto partner, Taylor Bowden. The offender made repeated inquiries each day, and often inquired about each tracking number at the same time. In some instances, using Virtual Private Networks.

8. On 30 September 2020, police removed the MDMA from parcel 203 and replaced it with an inert substance. The parcel was then repacked with the intention of conducting a controlled delivery to the nominated address at 11 Hiland Crescent, East Maitland.

9. Shortly after 7am on 1 October 2020, an authorised Australia Post officer attended at that address with the reconstructed parcel. At 7.11am, the offender took possession of the parcel from the Australia Post employee and placed it on the ground next to the front door of the house. At 1.05pm, the offender, who apparently had subsequently travelled to his workplace, returned to the house at 11 Hiland Crescent. Upon arrival and between about 1.04pm and 1.13pm, he examined the package a number of times, bending down to do so, and walked around the area of the veranda, front door, letterbox, and his vehicle, whilst smoking a cigarette. These movements were captured by electronic means via a doorbell installed at the front of the house, which is capable of recording video and audio.

10. At 1.14pm, the offender went inside the premises, and later returned and stood at the front door with his mother. At that stage, and in the course of examining the package a number of times, a conversation occurred between the offender and his mother to the following effect:

"Mother: Do you think it's been opened?

Offender: Yeah.

Mother: When is that box going? Is someone coming to pick it up?

Offender: No, it's all good. I was just a little concerned this morning because old mate come pretty fuckin' early."

11. The offender left the premises at about 1.17pm and returned to his workplace. However, at about 1.24pm he was arrested at a service station in East Maitland, after which he was taken to Maitland police station where he exercised his right to silence. Shortly afterwards, police executed a search warrant at 11 Hiland Crescent. At that time, parcel 203 was located on the front veranda of the house, and was found to have been opened and the contents disturbed with the inert substance and its packaging being located in the bottom of the box. The agreed facts note that for this to have occurred, the offender must have opened a plastic bag sealed with plastic stickers.

12. In the course of the arrest, search warrant and other investigations, police found the following items: an opened Australia Post envelope addressed to "James Boughton" of 11 Hiland Crescent, which was found in the bedroom ordinarily occupied by the offender, and an Apple iPhone which was found on the offender's person. In the course of the search warrant being executed at the house, the offender's mother told police that James Boughton is the son of her former de facto partner, and has not resided at the address for eight years, but she was not sure why mail addressed to that person was in the offender's bedroom, and that the offender had told her that morning to leave the parcel on the veranda. James Boughton confirmed to police in a statement that he has had no contact with the offender since 2011, and had no knowledge or involvement in any packages in his name being sent to 11 Hiland Crescent, East Maitland. Those in summary are the agreed facts upon which Mr Kedwell is to be sentenced.

OBJECTIVE SERIOUSNESS

13. The maximum penalty of 25 years' in relation to each offence clearly marks the offences before the Court as being of a type that are of real seriousness. That is no doubt a recognition by the Commonwealth Parliament of the great harm that illicit drugs cause in our community, as is witnessed on a regular basis by judges of this Court. However, it is important that I make an assessment of the objective seriousness of the nature and circumstances of the particular examples of those offences that are before the Court, which involves consideration of a variety of matters and includes, importantly, the offender's role or what he did in carrying out the offences.

14. While the pure weight of the drugs involved is important, it is not by any means the principal or determining factor in assessing objective seriousness. In this regard, the sequence 5 offence involved an attempt to possess a pure quantity of 185 grams of MDMA, while the sequence 6 offence involved 191 grams. Those pure weights, therefore, respectively represented in each case more than 370 times the marketable quantity of 0.5 grams.

15. It was noted by Johnson J in R v Nguyen; R v Pham (2010) 205 A Crim R 106, that, "The weight of drug will have greater significance where the offender is aware of the actual quantity". This observation is relevant here in that the offender was clearly aware of the quantities of both packages, because it is accepted that he was the person responsible for their purchase.

16. In sentencing the offender and in assessing the objective seriousness of his offences, it is very important that I remain focussed on the offences to which he has pleaded guilty. In other words, the offences of "attempting to possess" the MDMA, and not some other offence such as importing the drugs. To do otherwise may involve De Simoni error. However, and as observed by Michael Adams J in Balloey v R (2014) NSWCCA 165, "Drawing the line between the permissible and impermissible use of evidence relating to an offender's role in an importation when the offender is charged only with possession 'is not always an easy one to make'".

17. On the other hand, in determining the nature of the attempt possession offences, it is appropriate for me to have regard to the entire transaction, R v Laurentiu and Becheru (1992) 63 A Crim R 402 at [415], which includes considering what he expected to take possession of, and what he was going to do with it once he obtained possession. Whether, for example, the drugs were for his own use, or whether he was attempting to obtain possession of them in the course of a commercial venture, in which he was a courier or a middle man or other intermediary. It is permissible and necessary for me to have regard in

18. this way to the entirety of the transaction insofar as it sheds light on the offender's moral culpability for the attempt possession offences for which he is to be sentenced.

19. Approaching the evidence in this way, it seems to me to be clear that the offender was not only the intended recipient of the drugs, but that he was responsible for their purchase over the "dark web", and responsible for their importation into Australia. The offender was also responsible for providing the name and address of the consignee in Australia. In short, it was he who was responsible for the purchase and importation, and it was he who was the intended recipient of the drugs. He was not acting as a middle man or intermediary in some greater commercial enterprise in which he played only a "bit part". In making these observations, I accept that the offender did, as he stated to the psychiatrist, Dr Bench, intend to on supply the drugs to another person or persons.

20. It is also apparent that the offences were committed with the aim of financial gain. However, that is an aspect of most offences of this kind, and does not in my view aggravate the offences. It is also relevant to note that, as has been said many times, these types of offences are relatively difficult to detect. It is for these reasons and the serious harm that illicit drugs cause in our community, that deterrence, both personal and general, must be given considerable weight.

21. As these are Commonwealth offences, I have considered insofar as they are relevant, the various factors in s 16A(2) of the Crimes Act 1914. In this regard, I make the following observations and findings. As to para (a) of s 16A(2), I have already referred to the nature and circumstances of the offence. In relation to para (e), as the drugs were intercepted by police, there was no direct injury, loss or damage resulting from the offences. As to the aspect of contrition, as referred to in para (f) of s 16A(2), I will consider this later in these remarks when examining matters personal to the offender.

22. There is no evidence of any real cooperation by the offender in the investigation of the offences or any other offences. This of course, does not render the offences before the Court any more objectively serious, but means simply that this is not a factor that can be taken into account in mitigation of penalty. Paragraphs (j) and (j)(a) of s 16A(2), refer respectively to personal and general deterrence, and as I have already noted these are very important considerations in sentencing for drug offences, and this case is no different. There is also the obvious need as recited in para (k) of s 16A(2) to ensure that the offender is adequately punished for the offences. Paragraph (m) requires me to take into account matters personal to the offender, and I will comment on these aspects shortly. Similarly, as required by respectively paras (n) and (p), I have taken into account the offender's prospects of rehabilitation, and the probable effects of the sentence on his family or dependants, matters which will be referred to below. Again, these are of course not relevant to the objective seriousness of the offences.

23. Having taken into account only the matters relevant to the objective seriousness of the offences, and leaving aside matters relating to the offender's subjective case, I regard the objective seriousness of each offence as being above the low range, but short of the middle range of objective seriousness.

SUBJECTIVE MATTERS

24. Turning then to subjective matters personal to the offender. He is 26 years of age now, and was 24 at the time of the offences. At the time of the offences, he had a very limited criminal history which involved one offence of larceny and two offences of driving whilst suspended. His criminal history does not include any prior drug offences, and he has never previously served a sentence of full time imprisonment.

25. He did not give evidence on sentence, but his personal case was placed before the Court essentially by a report from psychiatrist, Dr Bench, who has been treating the offender since 25 August 2021. As the Crown submitted, caution needs to be exercised with regards to the contents of Dr Bench's report, given that it is based essentially on the offender's self report. Having exercised that caution, however, I am satisfied that the contents and conclusions of the report are supported by a number of matters. Firstly, the views are not based on a single interview, but are made in a context where the author has been the offender's treating psychiatrist for more than seven months. Secondly, the history contained in the report is not suggestive of exaggeration or embellishment. In this regard, it is noteworthy that the offender had difficulty recalling his mental state at the time of the offences, and did not, for example, seek to excuse or minimise the offences by some claim of loss of reason, hallucinations, or any other mental condition. Thirdly, because the offender made admissions to Dr Bench which were against his interest. For example, that he personally bought the MDMA via the dark web, that he paid $4,000 for it, and that it was a quick way to make money. Fourthly, and in contrast to some of the psychological and psychiatric opinions that are regularly placed before this Court in support of offenders, the conclusions expressed by Dr Bench are in my opinion cautious and conservative, and not overstated. I have therefore placed some reliance on the contents of Dr Bench's report.

26. Dr Bench notes that the offender had some reading difficulties at school and a suggested diagnosis of ADHD, but that he completed year 10 and received his School Certificate. After school, he completed an automotive apprenticeship with Maitland Nissan, and then worked as a mechanic in an automotive business for eight years until his arrest. Since then, he has been working as a cook. He has been in a relationship with his partner, Taylor, for about three years, and the couple have a two and a half year old daughter, while Taylor has a five year old son from a prior relationship. The offender retains the support of his partner, who was present in Court during the sentence hearing.

27. The offender has some history as a binge drinker and has also used amphetamines and MDMA, but only infrequently. He reported, however, a gambling problem from around age 21, which involved almost daily use of poker machines, at times, involving his losing his entire wages. However, when assessed by Dr Bench on 1 April 2022, he reported not having gambled for four months. Dr Bench notes that the offender was diagnosed by a medical practitioner at age 12 with ADHD, and was treated with medication for about three years. Dr Bench also notes that the offender consulted his GP, Dr Esharagi, in late 2020 or early 2021, after a purported suicide attempt, and that the GP diagnosed depression, anxiety and possible ADHD. The report also notes that the offender subsequently attended Maitland Hospital, and was diagnosed with depression and possible bipolar disorder, for which he was prescribed the anti psychotic Seroquel, but that he stopped this medication after severe nightmares. Dr Bench refers to a reported history of auditory hallucinations and some paranoid thoughts of being followed.

28. The report notes a history of physical and psychological abuse by the offender's father when the offender was a child, and that he has been estranged from this father for some years, but remains close with his mother. Dr Bench found it difficult to elicit information concerning the offender's mental state at the time of the offences, essentially because the offender had difficulty recalling his mental state and mood at that time. The psychiatrist concluded, however, that it was unlikely that psychotic symptoms, delusions or auditory hallucinations played any causal role in the offences. Ultimately, Dr Bench expresses the view that the most significant mental health difficulties experienced by the offender at the time of offending were his gambling disorder and anxiety disorder. He was of the view that there was likely some nexus between the offences and the gambling disorder, by reason of the offender's financial distress at that time arising from his gambling, and that this was exacerbated by problems in the relationship with his partner, which also arose from his gambling. The offender told Dr Bench that it was in this context that he committed the offences as a quick way to make some money, and that he bought the drugs over the dark web for $4,000.

24. I accept therefore that in the lead up to the offences, the offender had a serious gambling problem, and that he committed the offences with the intention of making money to relieve financial problems he was experiencing at that time arising from his gambling. While this provides background and some explanation for the offences, it does not excuse or mitigate them because voluntarily engaging in gambling, much like the voluntary taking of drugs, involves a choice.

25. I accept that the offender's time in custody will be very difficult for him for a number of reasons. Firstly, because it is his first custodial term. Secondly, because of his mental health diagnosis, especially his anxiety disorder. Thirdly, his relative youth, and fourthly, due to separation from his family. I have taken these matters into account as part of the instinctive synthesis that I must perform in sentencing him.

26. The offender is, as already noted, in a relationship of some three years or so standing with his partner, Taylor, and the couple have a young child together. The household also includes an older child born to Taylor from an earlier relationship. As noted in Totaan v R (2022) NSWCCA 75, it is no longer the law that a Court can only have regard under s 16A(2)(p) of the Crimes Act 1914 to hardship to an offender's family and dependants if that hardship is "exceptional". In this case, I accept that the imposition of a sentence of full time imprisonment will have a significantly adverse impact on the offender's partner and on the children. While I have taken this into account, it was not submitted on behalf of the offender that there was any particular hardship or other adverse impact that was likely to arise in the circumstances of this case. And so, while I have taken it into account in a general way, it is not a matter that should in my view mitigate the appropriate penalty to a large degree.

REMORSE/REHABILITATION

32. Turning to issues of remorse. There is little in the report of Dr Bench that can be regarded as direct expressions of remorse by the offender. Nonetheless, I consider that his quite frank admissions about having himself bought the drugs online and as to his reasons for doing so, amount to some degree of remorse which I take into account in his favour. In terms of his risk of reoffending and prospects of rehabilitation, I accept the conclusions expressed by Dr Bench that these are closely linked to his willingness and capacity to abstain from gambling. As Dr Bench has said, "If he returns to gambling, his prospects for rehabilitation would likely be impaired". I also accept Dr Bench's view that, "Appropriate treatment of his anxiety disorders would likely further improve his prospects for rehabilitation".

33. The fact that he has reunited with his partner, is the father of a young child, and remains close to his mother, are protective factors which provide some support for a finding that he does have prospects of rehabilitation. The fact that he has experience as a qualified mechanic also provides some support for his prospects. In my view, his prospects are uncertain but reasonable, albeit linked to whether he can maintain the motivation to avoid gambling in the future, and seek out help for this and his other psychological problems.

THE PANDEMIC

34. I have taken into account that the sentence I will impose is being served during the current pandemic, with its associated uncertainty and risk, and in particular, the hardship that is frequently experienced by persons in custody resulting from frequent lockdowns due to outbreaks, and limitations on contact with family and friends.

YOUTH

35. The offender is not a youth, however, he is still very young and was only 24 at the time of offending. While his age is not such as to strictly enliven the principles that apply in sentencing children and young people, I regard his relative youth as a factor that needs to be taken into account in mitigating the sentence to some degree. As Hodgson JA said in BP v R (2010) NSWCCA 159 at [5], "... emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid 20's ...".

TIME ON BAIL

36. I have taken into account also that the offender has since his arrest been subject to fairly strict bail conditions, which have included daily reporting and a curfew, and that this has been to some extent a punishment already suffered by him.

CONCURRENCY/TOTALITY

37. As there are two distinct offences, I must set an appropriate sentence for each. However, in my view, the two offences ought largely to be treated as part of a single episode, given that the two quantities of MDMA were purchased and despatched as part of one transaction to the same consignee at the same address, and given also that the offender's actions were aimed at obtaining possession of both the packages by having them delivered to his mother's address. In submissions, the Crown accepted that there was a large degree of overlap between the two offences. Approaching the two offences in this way, it is appropriate in my view for there to be a substantial degree of concurrency between the sentence for each offence.

DETERMINATION

38. I am satisfied, having considered all other alternatives, that a sentence of imprisonment is required for each offence. In determining the sentence, I have had regard to statistics provided within the Judicial Information Research System, although having regard to the inherent limitations of those statistics. I have also had regard to the importance of consistency with outcomes in other Australian jurisdictions, given that I am sentencing for Commonwealth offences, and I have also considered a number of authorities of intermediate Courts of Appeal, including the following cases to which my attention was drawn by the Crown: Nipoe and Teah v R (2020) VSCA 137, Omorogbe v R (2013) NSWCCA 201, Onourah v R (2009) 234 FLR 377, and R v Ajelara (2015) QCA 56. I have considered also the following cases, which were pointed to by counsel for the offender: Cappis v R (2015) NSWCCA 138, Musa v R (2018) NSWCCA 192, and Allami v Commonwealth DPP (2021) VSCA 42.

39. Each of the decisions to which I have been taken involve fact and personal circumstances different from the matter before the Court, and cannot be aligned in any strict sense with the circumstances of Mr Kedwell's case. However, and while accepting that this is so, the Crown fairly acknowledged in oral submissions that the decision in Allami is of some comparative value, although noting that the offences charged in that case were "import", whereas Mr Kedwell is to be sentenced for attempted possession. As I have said, I have had regard to those various cases, but subject to the differences between the circumstances both subjective and objective when compared with Mr Kedwell's case.

40. I intend to impose an aggregate sentence in this matter. There is no need for me to make a finding of special circumstances given that this is a Commonwealth sentence. However, there is a need for me to nominate the indicative sentences that I would have imposed had I not imposed an aggregate sentence. The indicative sentences after the 25% discount are as follows. For the sequence 5 offence, three years, ten months' imprisonment, and I note that the starting point in that regard was a sentence of five years, two months, from which I have deducted a 25% discount. And for the sequence 6 offence, I nominate the same indicative sentence.

41. I impose a head sentence of four years, and a non parole period of two years. Each of those will date from 21 May 2022 in other words, two days' ago so as to take into account the two days of custody that has already been served. The head sentence will therefore expire on 20 May 2026, and the non parole period will expire on 20 May 2024.

42. Ms Crown and Mr Buxton, anything to raise? Any obvious errors?

43. BUXTON: No, your Honour. Just to note the offender has not received any application for forfeiture of the mobile phone seized. So, if I can just put that on the record that the requested return of that is sought. I appreciate it is not an order your Honour makes today.

44. HIS HONOUR: So, I am not asked to make any order?

45. BUXTON: No, your Honour.

46. HIS HONOUR: You are just noting it on the record. Thank you. Ms Crown, you had nothing to raise?

47. HIRST: No, your Honour.

48. HIS HONOUR: Thank you. Mr Kedwell, will have to be taken into custody. The Court will adjourn.

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Decision last updated: 23 August 2022