R v Kirby

[2024] NSWDC 495

District Court

New South Wales

Medium Neutral Citation:

R v Kirby [2024] NSWDC 495

Hearing dates:

20 September 2024

Date of orders:

18 October 2024

Decision date:

18 October 2024

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1 Isileli Kirby is convicted.

2 I impose an aggregate term of imprisonment of 4 years and 9 months with a non-parole period of 2 years and 5 months to date from 21 December 2023.

3 The non-parole period will expire on 20 May 2026 and the head sentence will expire on 20 September 2028.

4 The offender will be eligible to be released on parole on 20 May 2026.

Catchwords:

CRIME — Drug offences — Supply prohibited drug — Large commercial quantity

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Drug Misuse and Trafficking Act 1985

Cases Cited:

Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Rex (Crown)
Isileli Kirby (Offender)

Representation:

Counsel:
D Grippi (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Benjamin Leonardo The Defenders (Offender)

File Number(s):

2022/354934

Publication restriction:

None

JUDGMENT

1. Isileli Kirby (the offender) appears for sentence after pleading guilty in the Local Court to the following offences:

1. sequence 1: supply prohibited drug not less than the large commercial quantity (1,401.1g of cocaine) contrary to s 25(2) Drug Misuse and Trafficking Act 1985. The maximum penalty for this offence is life imprisonment and/or a fine of 5,000 penalty units ($550,000). Parliament has also prescribed a standard non-parole period of 15 years.

2. sequence 2: supply prohibited drug not less than the large commercial quantity (6,890.6g of MDMA) contrary to s 25(2) Drug Misuse and Trafficking Act 1985. The maximum penalty for this offence is life imprisonment and/or a fine of 5,000 penalty units ($550,000). Parliament has also prescribed a standard non-parole period of 15 years.

2. The offender also asks the Court to take into account an offence of participating in a criminal group contrary to s 93T(1) Crimes Act 1900 (sequence 3) on a Form 1 when passing sentence for sequence 2.

Approach to Sentencing

3. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and the matters set out in s 21A of that Act.

4. The offender entered pleas of guilty in the Local Court and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

5. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

6. I have taken into account the principles outlined in the guideline judgment relating to the Form 1 offences: Attorney General’s Application No 1 of 2022 (2002) 56 NSWLR 147.

Facts

7. The parties presented an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

Sequence 3 (Form 1 offence)

8. Between 1 September 2022 and 25 November 2022 at Caringbah and elsewhere in the State of New South Wales (NSW), the offender was a participant in a criminal group. The offender was employed as a runner in the criminal group where he would deliver large amounts of prohibited drugs and return the funds received for those drugs to members of the group.

Sequence 1

9. Between 1 September 2022 and 25 November 2022 at Caringbah and other places in NSW the offender supplied a total of 1,401.1 grams of cocaine in return for the payment of $425,000, constituted by the following five supplies:

1. On 1 September 2022, Raphael Kenny communicated with a buyer on Wickr who wanted to buy 10 ounces of cocaine. Mr Kenny offered “some better stuff” for $8,500 per ounce and sent images of the drugs to the buyer. Mr Kenny sent a screenshot of a conversation with his supplier to the buyer, requiring that the money be paid in eight $10,000 bundles and one $5,000 bundle. Mr Kenny then added the buyer to a group chat with Albert Cobeta and the offender. At about 9:30am on 2 September 2022, the offender placed three bags in the boot of Mr Kenny’s vehicle when it was parked in Mr Kenny’s driveway. Mr Kenny then drove to a service station and in Sutton and supplied 279.3 grams of cocaine in exchange for $85,000 in cash. Mr Kenny immediately drove from Sutton to Caringbah where he met with Jonathon Towers and Jemma Dann. Mr Kenny handed $85,000 to Mr Towers, before returning to Canberra. The drug was later analysed and found to have a purity of between 33-34%.

2. On 6 September 2022, the buyer requested to purchase another 10 ounces of cocaine for $85,000 in the group chat. Mr Cobeta responded and agreed to the supply, informing the buyer that Mr Kenny would meet him to complete the transaction. On 8 September 2022, Mr Kenny confirmed the supply would take place on the group chat. At about 9:45am on 9 September, Mr Kenny drove to a service station in Sutton with the offender. Mr Kenny supplied 279.9 grams of cocaine in 10 knotted bags in exchange for $85,000 in cash. Mr Kenny immediately drove from Sutton to Caringbah where he met Mr Towers and Ms Dann and handed over the $85,000. The drug was later analysed and found to have a purity of about 30%.

3. On 24 September 2022, Mr Kenny received a request to buy 10 ounces of cocaine on Wickr. He created a group chat with Mr Cobeta and the offender relating to this supply. On 27 September 2022, Mr Kenny messaged the buyer in the group chat confirming that he would supply 10 ounces of cocaine for $85,000. At about 1:20pm on 28 September 2022, Mr Cobeta provided an address in Caringbah on the group chat. He was then seen leaving the residence of Mr Towers and Ms Dann carrying a brown paper bag. At about 1:42pm, Mr Cobeta arrived at the address and spoke to the buyer telling him that “blob” (the offender) would be arriving shortly. The offender arrived and retrieved the brown paper bag from Mr Cobeta’s vehicle and entered the buyer’s vehicle. They had a discussion where the offender said he was a friend of Mr Kenny and Mr Cobeta, that they could supply MDMA and other drugs and that he would send the buyer the price list. The offender supplied 281.4 grams of cocaine in exchange for $85,000 in cash. The offender gave the cash to Mr Cobeta, who drove to the residence of Mr Towers and Ms Dann and entered the residence carrying the bag containing the cash. A short time later, the offender sent the buyer a price list for various drugs. The drugs were later analysed and found to have a purity of 28.5%. Mr Towers’ fingerprints were identified on the front and back of the vacuum-sealed package containing the cocaine.

4. On 13 October 2022, on a group chat on Wickr including Mr Kenny, Mr Cobeta and the offender, they agreed to supply a buyer with 1,000 MDMA tablets, 10 ounces of cocaine and 5 ounces of MDMA for $118,000. On 14 October 2022, the offender collected the drugs from Mr Towers and Ms Dann. The offender supplied 230.3 grams of cocaine to the buyer in exchange for $118,000 in cash. The offender immediately gave the $118,000 to Mr Towers. The drugs were later analysed and found to have a purity of 31.5%.

5. On 23 November 2022 on a group chat comprising Mr Kenny, Mr Cobeta and the offender on the application “Threema”, they agreed to supply 5,000 MDMA tablets and 10 ounces of cocaine for $171,000. On 23 November 2022, Mr Towers sent a photograph to the group chat with the order, along with a hand-written note in code as requested by the buyer and including the newspaper for that day. On 24 November 2022, Mr Kenny and the offender drove to Caringbah to meet Mr Cobeta. The offender handed a package to Mr Cobeta. Mr Cobeta attended the residence of Mr Towers and Ms Dann and collected a black backpack containing the drugs. The buyer received an encrypted message directing him to an address in Caringbah South. At about 10:30am the buyer met with Mr Kenny and the offender at the meeting location. They confirmed that the drugs were nearby and requested that the buyer provide the $171,000 and then the drugs would be delivered. The drugs seized were in a plastic package containing a compressed substance that was later analysed to be cocaine in an amount of 282 grams with a purity of 38%.

Sequence 2

10. Between 13 October 2022 and 25 November 2022 at Caringbah in NSW, the offender supplied a total of 6,890.6 grams of MDMA in return for payment of $179,000, constituted by the following three supplies:

1. On 4 October 2022, Mr Kenny was contacted on Wickr by a buyer seeking to purchase 5 ounces of MDMA and 2300 pills. Mr Kenny responded that the price of 1000 pills was $19 per pill and $2,800 per ounce if the buyer purchased 5 ounces. On 13 October 2022 on a Wickr group chat comprised of Mr Kenny, Mr Cobeta and the offender, they agreed to supply 1000 MDMA tablets, 10 ounces of cocaine and 5 ounces of MDMA for $118,000. The details of the exchange were the same as outlined for the fourth supply of cocaine, and I will not repeat them. The drugs supplied included a plastic package, numerous pink spade shaped tablets and powder being 750.7 grams of MDMA with a purity of 19% and five plastic packages comprising a compressed powder containing 140.4 grams of MDMA with a purity of 10%.

2. On 7 November 2022 in a group chat on Threema comprised of Mr Kenny, Mr Cobeta and the offender, they agreed to supply 3000 MDMA tablets for $60,000. On 8 November 2022, Mr Kenny and the offender drove to a carpark in Caringbah where the offender had a short conversation with Mr Towers and collected the drugs from Mr Towers and Ms Dann’s vehicle. The offender then supplied the drugs to the buyer in exchange of $60,000 in cash. In a conversation with the buyer Mr Kenny described Mr Towers as “the boss” and that he was “high up in the Commo’s” [Commanchero OMCG]. Mr Kenny told the buyer he was getting bulk orders for the pills to sell at a music festival and that he had been selling drugs for about three years. Immediately after the exchange the offender gave the cash to Mr Towers, who in turn gave it to Ms Dann and they returned home. The drugs were later analysed and were found to be of a light orange spade shaped tablets with 785.85 grams having 20% purity, 796.8 grams at 18.5% purity and 779.2 grams having 19% purity. The total quantity supplied was 2,361.5 grams of MDMA.

3. On 23 November 2022 on a group chat on Threema, Mr Kenny, Mr Cobeta and the offender agreed to supply 5000 MDMA tablets and 10 ounces of cocaine for $171,000. Mr Cobeta represented during price negotiations that the pills were “double the strength of normal eccies”. The details of the exchange are the same as those set out for the fifth supply of cocaine and I will not repeat them. The drugs supplied included five packages containing numerous orange spade and green grenade shape tablets that were later examined to be 3,638 grams of MDMA. The orange tablets (3254.7 grams) had a purity of 22%. The green grenade shaped tablets (383.3 grams) had a purity of 14%.

The Offender’s Case on Sentence

11. The offender relies on the following documents:

1. statement of the offender, dated 10 September 2024;

2. psychological report of Mitchell Ackerley, dated 12 September 2024;

3. statement of Chelsea Hammond, dated 11 September 2024;

4. affidavit of Loretta Durkin sworn 12 September 2024;

5. character reference letter of Loretta Rette Alamani Tulikaki Kirby, undated; and

6. letter of support of Ken Williams, dated 12 September 2024.

12. The following is a precis of the evidence relied upon by the offender.

13. The offender was born on 10 November 1999 and is 24 years of age. His mother is Indigenous, and his father is Tongan. His family are Wiradjuri. The offender was born in Orange.

14. The offender attended primary and high school between NSW and Canberra. He reported to the psychologist significant issues with attendance, often being suspended from school due to poor attendance. The offender stated that he was bullied occasionally at school and that he found it difficult to fit in and be accepted being half Tongan and half Aboriginal.

15. From around the age of eight to 10 years the offender lived in Orange with his birth mother and father, and his siblings. The neighbourhood in which the offender grew up was not safe and he remembers violent crimes being committed against his neighbours.

16. During this time, the offender was subject to frequent physical abuse by his father, including being belted with an extension cord for discipline. The offender was taken to the hospital more than once following incidents of abuse and still has scars on his body.

17. The offender also saw his father physically assault his mother. The offender’s mother obtained a restraining order against his father for her protection.

18. The offender was placed in foster care under the supervision of his grandmother as a result of the abuse. He stated that he and his grandmother had a healthy relationship and that she was “very loving and caring”.

19. Whenever the offender visited his siblings, who lived with his father, the offender would be physically abused by his father.

20. In her affidavit, Loretta Durkin, the offender’s grandmother confirmed that the offender began to live with her from about two years of age on and off due to the offender’s mother’s violent relationship with his father. She deposed that the offender lived with her permanently when he was in either Year 3 or 4 up until he was age 12 when he went back to live with his mother who had moved to Canberra.

21. Ms Durkin stated that she, the offender and the offender’s sister were exposed to physical abuse by the offender’s grandfather. She deposed that he would come home drunk every night and kick and hit the offender in episodes of violence. She further stated that the offender’s grandfather was controlling and would put tape recorders around the house and not allowing the offender or his sister to have more than two showers a week. The grandfather’s violence towards the offender escalated when he began high school and he started misbehaving as he felt like he did not need to go to school.

22. Loretta Kirby, the offender’s sister, confirmed that the offender was physically abused by their grandfather and biological parents.

23. Ms Durkin stated that the offender did not do well in Canberra, when he returned to live with his mother and became disconnected with his culture. He was raised as an Indigenous man and struggled with the cross over with his Tongan relatives.

24. The offender reported to the psychologist that he was hypervigilant around his father and would often keep away from him as a child to avoid physical abuse.

25. The offender began working around the age of 16 or 17. He was employed on a casual basis as a steel fixer for approximately a year and a half. He needed to commence working as his family was struggling financially. He then worked as a scaffolder and removalist.

26. The offender started drinking alcohol at 16 years of age to socialise with others. His alcohol use significantly increased when he turned 18 and he could buy alcohol legally. He told the psychologist that he has abused alcohol most of his adult life. Before his arrest he was drinking every day. He had lost a previous scaffolding job in 2021 due to his alcohol use.

27. At around the age of 18, the offender’s alcohol use led to him taking illicit drugs. He reported that he started taking MDMA, then began using cocaine, ice and synthetic opioids. He would often use cocaine and alcohol together.

28. At present the offender does not use any substances. The offender told the psychologist that he has been trying to join a group-based alcohol/drug rehabilitation program in custody, but has not been able to whilst on remand, awaiting sentence.

29. The offender told the psychologist that he had experienced withdrawal symptoms whilst in custody including increased stress, anxiety, nausea and tremors.

30. The offender told the psychologist that he also had a serious gambling addiction. Around four days each week the offender gambled on poker machines and/or online betting applications. Almost all the money he earnt working would be spent on alcohol and gambling.

31. The offender is in a long term relationship with his girlfriend, whom he has been with for five years. She is extremely supportive of the offender and has spoken with him about his desire to get work, save for a house and focus on family life once he is released from custody. She stated that leading up to his arrest and while living with her, the offender was drinking excessive amounts of alcohol and using drugs daily. She stated that the offender was not able to hold down a job at the time and “wasn’t doing well for himself at all”. She noted a change in the offender’s attitude while he was on bail. He was more positive and grateful, maintained work and would spend as much time as he possibly could with her.

32. When in the community, the offender was involved in Oztag and his friend’s boxing gym. He would often attend these recreational activities after work and reported to the psychologist that he is excited to re-engage with these activities when released from prison.

33. The offender is in good physical health. He reported that he lost 26 kilograms over four months while in custody, which he attributes to abstaining from drugs and alcohol.

34. The offender reported to the psychologist that his previous offences, including charges of larceny, custody of a knife in a public place and break and enter related to a “drunken night in a nightclub” in 2017.

35. In relation to the offences before the Court, the offender reported to the psychologist that he was involved with the criminal group as he was in financial debt, after losing his job. At the time of the offences he was a heavy drinker and drug user.

36. Whilst on bail for the current offences, the offender was employed as a full-time scaffolder at Birrabang Scaffolding Group Pty Ltd (Birrabang Scaffolding), an indigenous scaffolding company. He stopped using drugs during this time and has been clean. In his letter of support Ken Williams, the owner of Birrabang Scaffolding, stated that the offender is a valued member of the company in which he has a lot of trust. He stated that the offender was quickly promoted to leading hand as he displayed both skill and the capability. Mr Williams confirmed that the offender has been offered a full-time role in the company upon his release from custody.

37. He also obtained employment as a terminal operator on the train lines for a few months while on bail.

38. The offender, in his Statement, noted feeling isolated and having found it difficult being away from his support network who are based in the Australian Capital Territory while in custody at Wellington Correctional Centre. The offender stated that he was very much connected with his Indigenous culture before coming into custody and since returning to custody has lost that connection. The offender’s girlfriend confirmed that he has lost his connection culture without his support network around him.

39. The offender expressed remorse in his statement and to his character referees for his offending behaviour. He has the unwavering support of his grandmother, sister and girlfriend when he is released from custody.

40. The psychologist assessed the offender at a medium risk of general re-offending.

41. From the information available, the psychologist opined that the offender likely met the diagnostic criteria for severe methamphetamine use disorder, cocaine use disorder and alcohol use disorder at the time of the offending. The psychologist recommended further assessment be undertaken to explore post-traumatic stress in relation to the offender’s experience of domestic violence.

12. If released from custody, the psychologist stated that the offender would benefit from engaging in Narcotics Anonymous and Alcoholics Anonymous. If the offender is to remain in custody, the psychologist recommended that he become involved in a program that helps him remain abstinent from alcohol and illicit substances.

13. The psychologist further recommended that the offender not engage in alcohol/drug use over the 12-month period following his release and that after this period should be assessed for suitability for controlled alcohol use.

Consideration

Objective seriousness

44. The offences took place over a three month period with five separate supplies of cocaine and three separate supplies of MDMA. The drugs were supplied for significant amounts of cash.

45. The offender supplied 1,401.1 grams of cocaine and 6,890.6 grams of MDMA. The large commercial quantity of the cocaine was 1 kg and for MDMA was 500 grams. The drugs were exchanged for a total of $604,000. The amount of the cocaine supplied was almost 1.5 times the large commercial quantity. The amount of MDMA supplied was almost 14 times the large commercial quantity. There was a large degree of overlap between the offences.

46. The offender was an integral part of the drug supply operation. He was involved in negotiations as well as attending exchanges on other occasions. He drove to Sydney to obtain drugs and to provide the money he received for the supplies to people higher than him in the organisation. Taking into account all of the evidence, the offender’s role was at the lower end of the hierarchy in this organisation. Having said that, the offender was a trusted member of the organisation with some significant responsibility.

47. The offender had a deprived upbringing marred by domestic violence and upheaval. He lived between his parents and his grandmother and had intermittent patches of connection with his culture. He abused alcohol as a young adult and later progressed to using a variety of illicit drugs. He developed severe drug use and alcohol abuse disorders. His addiction issues led to his involvement in the offences after he incurred significant drug debts after losing his employment. In all of the circumstances, I am satisfied that his moral culpability for the offences is significantly reduced.

48. I have taken into account the maximum penalty for the offences and the standard non parole periods as legislative guide posts as to the appropriate sentence.

Deterrence

49. General deterrence is a fundamental consideration in serious drug offences. The sentence must be of such a severity to deter others from engaging in drug related activities. The sentence must signal to would be participants in drug offences that the financial and other rewards will be neutralised by the risk of severe punishment.

50. There is some need for specific deterrence but it is substantially reduced. After being granted bail, the offender obtained work and ceased using drugs and alcohol. He has maintained a steady and supportive relationship and has familial support to assist him with his rehabilitation.

Aggravating factors

51. There are no relevant aggravating factors.

Mitigating factors

52. The offender did not have a record of prior convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999 (NSW). The offender was 22 years of age at the time of the offending and had prior matters in the Children’s Court which should be disregarded.

53. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has demonstrated whilst he has been on bail that he has good prospects of rehabilitation. He has remained abstinent for an extended period and obtained work. He has tried to engage with drug and alcohol counselling whist in custody but was not eligible to do so. He has strong family support and prosocial plans for the future.

54. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender has expressed remorse to the psychologist, his family and to the Court. He has accepted responsibility for his actions and I am satisfied that he is genuinely contrite.

55. I have taken into account the conditions imposed on prisoners in New South Wales in response to the COVID-19 pandemic, which I accept may continue to be imposed for some time into the future. I am satisfied that the offender’s time in custody has been made more onerous by the restrictions imposed to deal with the COVID-19 pandemic and his mental condition.

56. The offender was in custody for these offences between 24 November 2022 and 19 April 2023 and from 16 May 2024 to the present date (301 days). I will back date the sentence imposed to 21 December 2023 to take into account the offender’s presentence custody.

57. I have had regard to parity. I have already sentenced Mr Kenny and Mr Cobeta for their involvement in this organisation and I will pass sentence for Mr Towers today. The offender faces the same charges as those to which Mr Kenny pleaded guilty and they involve substantially the same quantity of drugs. I am satisfied that the offender’s involvement was at the same level as Mr Kenny. His subjective case is on par with that of Mr Kenny. Taking into account all of the circumstances, it is appropriate that the offender receive a similar sentence to Mr Kenny.

Penalty

58. Isileli Kirby is convicted.

59. I have considered s 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that having considered all possible alternatives that no penalty other than imprisonment is appropriate.

60. I make a finding of special circumstances. This is the offender’s first time in custody and he has mental health and addiction issues that justify a longer period on parole.

61. I will impose an aggregate sentence: s 53A Crimes (Sentencing Procedure) Act 1999. The sentences I would have imposed after allowing for the appropriate discount, had separate sentences been imposed are:

1. Sequence 1 – 4 years with a non-parole period of 2 years and 3 months;

2. Sequence 2 – taking into account the matter on the Form 1 - 3 years and 6 months with a non-parole period of 2 years;

62. I impose an aggregate term of imprisonment of 4 years and 9 months with a non-parole period of 2 years and 5 months to date from 21 December 2023.

63. The non-parole period will expire on 20 May 2026 and the head sentence will expire on 20 September 2028.

64. The offender will be eligible to be released on parole on 20 May 2026.

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Decision last updated: 22 October 2024