R v Klein

[2024] NSWDC 412

District Court

New South Wales

Medium Neutral Citation:

R v Klein [2024] NSWDC 412

Hearing dates:

25 May 2024

Date of orders:

19 June 2024

Decision date:

19 June 2024

Jurisdiction:

Criminal

Before:

Tupman DCJ

Decision:

1. Offender is convicted.

2. For sequence 1, offender is sentenced to a term of imprisonment of 6 years and 6 months.

3. For sequence 2, offender is sentenced to a term of imprisonment of 4 years.

4. Set a single NPP of 4 years.

Catchwords:

CRIME – sentence – two Commonwealth offences – import commercial quantity of border controlled drug – s307.1(1) Criminal Code 1995 – maximum penalty life imprisonment – import marketable quantity of border controlled drug – s307.2(1) Criminal Code 1995 – maximum penalty 25 years imprisonment

OFFENCE – 59 paragraph agreed facts – in reality summary of evidence and too long – July 2012 – offender and co-offender recovered quantities of drugs from stockpile in offender’s apartment in Hong Kong – co-offender taped four bags of cocaine to inner thighs – offender carried methamphetamine in protein powder tub – boarded Cathay Pacific flight to Sydney – during flight offender concealed drugs behind business class toilet – offender’s brother employed by Cathay Pacific at Sydney Airport with security clearance – arranged to be on shift – recovered drugs – used clearance to leave Sydney Airport without passing security – placed drugs in car – arrested by AFP

ARREST – offender aware of brother’s arrest – met with AFP – told he was free to leave for Thailand but would be arrested at some future date – offender flew to Thailand where he resided for 11 years with wife and children – deported by Thai authorities in 2023 after 1 month in detention after visa expired – arrived in Sydney March 2023 – arrested immediately – bail refused since

OBJECTIVE SERIOUSNESS – middle range – offender played critical and central role in importation – actual knowledge of quantities – general deterrence

SUBJECTIVE FACTORS – offender now vastly different person – limited and irrelevant criminal history – dysfunctional upbringing – drug addiction from young age – met wife on holiday in Thailand – now have two children – overcame addictions upon return to Thailand in August 2012 – positive relationship with family – now suffering major depressive disorder – significant impact on family – expressed genuine remorse

SENTENCE – early plea – 30% discount – parity – three co-offenders have been sentenced – delay – demonstrated real rehabilitation in intervening period – single NPP

Legislation Cited:

Crimes Act 1914 (Cth): s 16A

Criminal Code 1995 (Cth): ss 307.1, 307.2

Category:

Sentence

Parties:

Rex (Crown)
Benjamin Klein (Offender)

Representation:

Counsel:
S Corish (Offender)

Solicitors:
Solicitor for Public Prosecutions (Cth) (Crown)
Purcell Lawyers (Offender)

File Number(s):

2017/00322535

Judgment

1. The offender, Benjamin Klein, is before the Court for sentence after pleading guilty in the Local Court to two charges involving the importation of drugs.

2. Sequence 1 is a charge that between 4 and 9 July 2012, jointly with Jonathan Klein, Christopher Vidler, Adam Griffin and unknown others, he imported a border controlled drug, namely methamphetamine, in a commercial quantity. This is an offence contrary to s 307.1(1) of the Criminal Code 1995 (Cth) brought as part of a joint offence and carries a maximum penalty of life imprisonment.

3. Sequence 2 is a charge that at the same time, jointly with the same co offenders, he imported a border controlled drug, namely cocaine, in a marketable quantity. This is an offence contrary to s 307.2(1) of the Criminal Code 1995 and carries a maximum penalty of 25 years imprisonment.

4. The offender pleaded guilty to these two offences in the Local Court early. I will deal with an assessment of the value of that plea of guilty in due course. There is a 59 paragraph so-called agreed statement of facts before the Court. It is too long and goes beyond a statement of facts, setting out some of the evidence which may have been relied on to prove the guilt of the offender had that been necessary. It is not, and was not, because these were pleas of guilty entered in the Local Court. It contains an enormous amount of material completely unnecessary for consideration by a judge sentencing for a matter such as this. For example, it is not necessary in a plea of guilty for a matter such as this for the statement of facts to include the colour of the plastic bag in which some of the drugs were being transported to the airport. Fortunately, however, in the Crown submissions, there is the summary of those facts provided, which is of assistance to the Court.

5. From those facts, I accept that the co-offender, Jonathan Klein, who is in fact the offender's brother, at the time of offending had been employed for 11 years by Cathay Pacific at Sydney Airport. Because of his employment, Jonathan Klein had an aviation security ID card which allowed him to access the security restricted areas at the airport and the airside security zone. Jonathan Klein, and the co-offender Christopher Vidler, according to the agreed facts, were associates of Adam Griffin, who was the person who requested that the drugs be imported and supplied to him. Jonathan Klein coordinated with Adam Griffin to arrange for Christopher Vidler to travel to Hong Kong for the purposes of the importation.

6. At the time of the offending, the offender before me was either normally resident or regularly resident in Thailand, but since January 2011 had also been renting an apartment in Hong Kong. That apartment was being used as a warehouse to store large quantities of the drugs the subject matter of this charge, and as I understand it, other drugs, on at least an earlier occasion.

7. In early June 2012, Jonathan Klein met Christopher Vidler in Sydney, I accept for the purpose of organising for Vidler to go to Hong Kong and transport drugs back to Sydney. Various steps were taken to undertake that, but it did not occur because of various issues that arose. The next attempt to do so was successful and is the subject matter of the sentence before me.

8. On 26 and 28 June 2012, Jonathan Klein and Christopher Vidler met at the Prospect Hotel. This was for the purpose of Jonathan Klein arranging for Christopher Vidler to go to Hong Kong to bring back drugs to him. Vidler did so at the request of Jonathan Klein.

9. On 4 July 2012, Vidler booked his return flight to Hong Kong, ensuring that he was on CX101, a Cathay Pacific flight due to arrive back in Sydney at 11.05am on 9 July. He booked accommodation at the Hong Kong Novotel Hotel. He arrived in Hong Kong on 6 July. The offender, Benjamin Klein, also arrived in Hong Kong separately on 6 July from Bangkok and recovered quantities of methamphetamine and cocaine from a stockpile which was held in his rented apartment in Hong Kong and on 8 July took them to the Novotel and met with Christopher Vidler where he was staying. On 7 July, Jonathan Klein had sent an SMS to another Cathay Pacific worker trying to swap shifts with him to ensure that he, Jonathan Klein, was on duty when CX101 arrived in Sydney on the morning of 9 July. Whilst there was some difficulty in doing so directly, in fact Jonathan Klein had arranged for himself to be present and either on duty or at least available to board that flight when it arrived on 9 July.

10. What the offender before me took to the Novotel on 8 July 2012 from his apartment was a black bag which I infer contained the cocaine and a red protein powder tub which, in fact, contained the methamphetamine. During the day he and Vidler attended various places, obtaining items to help conceal the drugs on Vidler's body. That included resealable plastic bags, garbage bags, freezer bags and black tape. Vidler taped four bags of cocaine to his inner thighs and at his request, the offender checked to ensure it was not noticeable. The methamphetamine, as I have already said, was in the protein powder tub inside a plastic bag that made it look like legitimate protein powder from a known company.

11. At 9.15pm, they travelled together in a taxi from the Novotel to Hong Kong Airport and both then boarded the Cathay Pacific flight CX101 to Sydney. Vidler passed through customs in Hong Kong with the cocaine strapped to his legs and carrying the methamphetamine in a protein powder tub. Their flight left just before midnight. They were seated adjacent to each other on the flight. After they boarded the flight, Vidler handed the protein powder tub to Klein and also removed the cocaine strapped to his body which he also gave to the offender, Benjamin Klein. During the flight, the offender before me secreted all of the drugs behind what is referred to as a plastic shroud in one of the business class toilets on the plane. When the flight arrived in Sydney, they both disembarked and went through customs in the normal way, leaving the drugs on the plane.

12. Then the co-offender, Jonathan Klein, who had made plans to ensure he was on the shift as an aircraft maintenance engineer, boarded the plane and recovered the drugs from where they were hidden. He then used his clearance as a trusted airline employee to leave the secure area of Sydney Airport with the drugs without having to pass through any customs screening. He then placed the drugs in his car before returning to complete his shift.

13. Later when he returned to his car, he was arrested by AFP officers. His vehicle was searched, and the drugs were recovered. He was charged with the importation of both these drugs. There was subsequently a search of the Hong Kong apartment by Hong Kong customs officers where they found significant quantities of cocaine and methamphetamine remaining there, over 3 kilograms of pure cocaine and over 10 kilograms of pure methamphetamine.

14. The offender before me was aware that his brother had been arrested for these offences on 9 July 2012 and was told that at some future date, he would also be charged but that did not occur immediately for reasons that are not disclosed in the evidence.

15. On 14 August 2012, the offender contacted an AFP officer and told him that he had received threats from Hong Kong and asked if there was any impediment to his leaving Australia. On the morning of 15 August 2012, he met and spoke with that officer and told him that he wanted to visit his partner and baby son who were living in Thailand and asked what had happened to his brother. The officer told him about the circumstances of his brother's arrest, including that the investigations had been ongoing for a period of time, involving both the AFP, New South Wales Police, Australian Customs, and Hong Kong Customs. The officer told the offender that he was not under arrest and was free to leave but that he would be charged at a later date with the same importation offences as his brother.

16. In those circumstances, the offender left Australia on 15 August 2012 for Thailand, where he had previously been living and he returned to live with his then partner and baby son. In fact, he did not return to Australia until March 2023.

17. The agreed facts state that between 8 November 2013 and 21 January 2021, there were what is described as numerous administrative procedures in relation to a possible extradition of the offender from overseas, but there are no details of those procedures and no evidence that anything was actively done about that in the intervening period. It may be that there was, but that evidence is not before me.

18. He was, in fact, deported by Thai authorities after spending a month in Thai immigration detention after his visa had expired. He did not contest his deportation and arrived in Sydney on 4 March 2023, where he was immediately arrested at the airport and charged with these offences. He has been in custody, bail refused, ever since.

19. The methamphetamine seized from Jonathan Klein's car, the subject matter of sequence 1, had a gross weight of 4,995.8 grams with a purity of 76.3% thus giving rise to a pure weight of 3,811.7 grams. The cocaine seized had a gross weight 998.6 grams with a purity of between 59.9 and 62.6% thus yielding a pure weight of 614.4 grams.

20. The commercial quantity of methamphetamine is 750 grams. There is no upper limit. The pure quantity of this drug then for this offence is more than five times the lower level for offences capable of being charged under this section. Whilst this is a relevant consideration in determining the objective seriousness of any drug supply or drug importation charge, this quantity, albeit large, is nowhere near the very large quantities regularly the subject of counts pursuant to this charge, particularly bearing in mind that there is no upper limit.   

21. The marketable quantity of cocaine is 2 grams. The pure quantity, the subject matter of sequence 2, is, therefore, considerably above the lower level of the weight range for this drug falling within the definition of marketable quantity, but far from the top of the weight range for marketable quantity of this drug, namely 2 kilograms.

22. I accept from the agreed facts that the street value of the cocaine was between $438,857 and $491,520 with a wholesale value of about $180,000. The street value of the methamphetamine had an estimated value of just over $3.7 million with a wholesale value of about $1.2 million.

23. These are Commonwealth criminal offences and, as such, I must sentence pursuant to the provisions of part 1B of the Crimes Act 1914 (Cth). Pursuant to s 16A(1), the Court is required to impose a sentence that is of a severity appropriate in all of the circumstances of the offence and in particular, taking into account s 16A(2), which sets out the matters which the Court must take into account where they are known and are relevant.

24. The first of those matters is the nature and circumstances of the offending. In this matter, the nature and circumstances of the offending are, to an extent, as set out in the summary of facts just recited. This also includes the quantity of each drug the subject matter of each count, albeit the quantity of any particular drug is not of itself determinative of the objective seriousness in any drug importation offence. It is, however, one of the circumstances to be taken into account when assessing not only the objective seriousness, but the overall sentence in due course.

25. One important aspect when determining the facts and circumstances of this offender's offending and, for that matter, any other person charged with offending in joint circumstances importing drugs and thus the objective seriousness of it, is the role which any offender played in the importation of those drugs.

26. The Crown submissions here describe the offender's role as critical. Submissions made on behalf of the offender himself describe the role as central. Both descriptions are correct. The offender played an important role, including being both critical and central in the importation of both of these drugs. This included:

1. Travelling to Hong Kong from his home in Thailand for the purpose of the importation,

2. Warehousing the drugs in an apartment leased by him in Hong Kong and collecting the imported drugs from that warehouse stock,

3. Taking the drugs to the Novotel to meet with Vidler,

4. Going with Vidler to buy supplies to enable the drugs to be secreted on Vidler's body,

5. Being present and assisting Vidler in doing so and ensuring that the drugs were secreted and thus could not be seen,

6. Taking the drugs from Vidler whilst on the flight, and,

7. Removing the toilet shroud on the flight and concealing the drugs there so they could be later retrieved by his brother.

27. Further, he had actual knowledge of the quantities of drugs being imported by him and Vidler because he had taken them from his own apartment and carried them to conceal them behind the toilet shroud on the flight. His involvement did amount to a course of conduct including, it would appear, having some knowledge that there were larger quantities of drugs stored in the apartment which he was renting. This is not a case however in which the evidence enables a finding that he was engaged in a course of conduct consisting of a series of criminal acts of the same or a similar character. There was a course of conduct and some planning but not the commission of a series of criminal acts of the same or similar character.

28. Whilst there is no evidence of what the offender was to gain in the same way that there was specific evidence for the co-offender, Vidler, the finding that this offender was engaged in this offending for financial gain is inevitable and has not been contested.

29. These are both serious offences. In objective terms, it seems to me they are probably around the middle or a little below the middle for the range of offences capable of being charged under these sections, albeit that that is not a finding that necessarily needs to be made for either of these two matters.

30. In particular in relation to the methamphetamine charge, as I have said, the quantity is nowhere near the extremely large quantities that are often seen in offences of this type and the role of the offender is, as I have already set out, nowhere near the top of the range of any drug syndicate, to the extent that they exist and certainly not, it would appear at least on the evidence before me, at the top of this particular drug syndicate, if in fact that is an appropriate description.

31. There is no direct victim of these offences, any impact on the victim being another matter that I must take into account pursuant to s 16A(2) of the Crimes Act 1914. However, it is clear from the quantity and purity of these drugs that they were both bound for the drug-using community in Australia where both the users of those drugs, those who become addicted to them and the community generally, would suffer. There is no evidence that this offender himself was to play any part in that distribution and from the evidence before me at least, it appears to be that that was the role Adam Griffin was to undertake once the drugs had been imported. Whilst any impact on the victim is not a separate s 16A(2) factor to be taken into account in this case, the fact that the drugs would have found their way into the community is a matter to be taken into account in determining the overall seriousness of these offences, in addition to taking into account the maximum penalty of life imprisonment for one offence and 25 years for the other set by the legislature.

32. These two maximum penalties of themselves indicate the seriousness with which the legislature, and thus the community, regard these offences. It is only too well known to this Court that drugs are wreaking havoc all over Australia and especially so, methamphetamine which appears to be a pernicious drug, highly addictive, very often used by those who have many other problems in their lives and often associated with aggression and violence. The community pays a huge price for drug addiction, not only for those who become addicted themselves, but also those against whom various crimes are committed by drug addicts in order to fund their addiction, and further, the cost of detecting drug importation and attempting to stop it.

33. Cocaine, too, appears to have become a drug very widely used, albeit by a somewhat different cohort, but, nonetheless, leading to serious problems of both addiction and financial problems within the community and within families. These are amongst the many reasons why these offences are serious and have the maximum penalties attached to them that they do.

34. The sentences for both these matters, taking these observations into account, must carry an element of general deterrence to send a very strong message to those who would involve themselves in the importation of these drugs to Australia, with the knowledge that they are to be distributed into the community, that they must expect terms of full-time imprisonment for relatively lengthy periods.

27. The sentences must also be ones that provide adequate punishment for the offenders having committed these offences always, of course, bearing in mind that the sentences must be appropriate in all of the circumstances. For reasons that will become clear in due course, it appears to me that the sentences in this case do not need to take into account issues of specific deterrence, given the rehabilitation that has been undertaken by the offender in the period of time since the offences were committed.

28. As I said, the offender here has pleaded guilty to both of these offences and done so early in the Local Court. The fact that he did so in those circumstances is a relevant consideration on two bases. While he is not entitled to any additional discount for assistance to authorities in the way that the others who have been sentenced for these offences were, nonetheless, he did plead guilty and that plea does represent a significant utilitarian value because a trial, which would have required evidence to be call from officers, much of which is now old and which would have been lengthy, has been avoided. It also represents an overall willingness to assist the interests of justice which is further evidenced by the fact that he allowed himself to be deported without contesting that deportation, knowing that he would be arrested and go into custody immediately on his return. Of course, his pleas of guilty are to what is a relatively strong Crown case which is a matter that also is to be taken into account. The value of the plea of guilty in these matters, given that they are Commonwealth offences, is not governed by any statutory provisions. I propose to reduce the appropriate sentences by a total of 30% to take into account these two bases for which a plea of guilty is able to be considered.

29. The other relevant parts of s 16A(2) fall within an assessment of the subjective case presented on behalf of the offender. He is now 43 and comes to be sentenced as a vastly different person to the person who left Australia in August 2012. He had a very limited and largely irrelevant history at the time that he committed the offences and there is no evidence of any other criminal offending, apart from his criminal history in New South Wales. This criminal history, albeit that it disentitles him to leniency, is nonetheless, in my view, irrelevant in determining the appropriate sentence and also irrelevant in terms of assessing his prospects of rehabilitation. In 2005, he was convicted and fined in the Local Court for an offence of common assault. In 2006, he was convicted and fined for an offence of possessing a prohibited drug and driving with an expired licence. In 2007, he was convicted and fined for larceny and also given a s 9 bond for 12 months. That is, as I understand it, the extent of his criminal offending and none of those is relevant to the sentence for the offences before me. This is clearly far and away more serious offending on his part than anything in the past.

30. There are a number of documents setting out his personal and subjective circumstances. Most significantly is a psychological report from Ms Fritchley and character references and letters from his mother, sister, wife and others. From that combination of material, I accept that he was born in Sydney as the youngest child in a family with an older sister and brother. His parents separated when he was young. He recalls ongoing verbal arguments between his parents. After his parents separated, he and his sister lived with his mother and his older brother lived with his father. He did not have a good relationship with his father and has no relationship with him now. His mother worked hard to support the family financially, but they were forced to move frequently into different rented accommodation.

31. I accept, both from the content of the psychological report and the letter that the offender's mother has written to the Court, that she herself suffered some difficulties as a single parent, including being hospitalised for mental health issues and being a user herself, from time to time, of amphetamines. When the offender was in primary school, his mother developed a new relationship. That person was aggressive and violent, and perpetrated physical and verbal violence towards him and his sister. He was exposed to domestic violence between his mother and stepfather. When he was 12, he reports having been sexually abused by his stepfather and the violence increasing. That relationship ended when he was 16 but has had a long lasting effect on him, something which is only too well known to this Court. He has an ongoing relationship with his mother and new partner and has regular contact with his brother and sister since he returned to Australia.

32. His upbringing, therefore, can properly be described as somewhat dysfunctional up until the point that he was in his mid-teens, characterised by exposure to domestic violence, his mother's own issues impinging on her ability to care for him and a degree of separation from his father, let alone the issues of violence and abuse at the hands of his stepfather.

33. The offender was an average student but in about year 8, he developed contacts with an anti-social peer group and his school attendance deteriorated. He was using drugs and was asked to leave school in year 11. He did some work as a roof tiler, then a trade assistant at Bankstown Airport, but continued to use drugs extensively which interfered with his ability to hold down a job.

34. His addiction to drugs has been a significant issue in his offending behaviour. He started to use cannabis at the age of 14, which escalated rapidly to almost constant use when he was about 16. He also used amphetamines at this time. He started using heroin at the age of 19 in the context of a relationship to which I will refer soon. After leaving school, he started to use heroin in circumstances where he commenced a relationship with a partner who herself was heavily dependent on that drug. They had a baby who was still born, and it was a very negative relationship, largely revolving around drug use. That relationship broke down and he went for a period of time to live in inner Sydney alone.

35. He started working and commenced a methadone maintenance program and there was a period of stability in his life at this time. But sadly, he started to use drugs again, including injecting methadone while still being on the methadone program and using amphetamines and excessive alcohol. This coincided with a period when he started to live between Thailand and Australia and committed the offences before me. He had gone for a holiday to Thailand where he met his wife, Kwan. They began a relationship. Then he travelled between Australia and Thailand for a period of time. They had a young baby at the time that he committed the offences before me and he returned to them, as I have already said, in August 2012. They now have two sons who are aged 8 and 12. After he returned to Thailand in August 2012 to his then partner, now wife and son, he remained living there with them until his return to Australia in March 2023.

36. When he went back, he was suffering from an opioid use disorder and amphetamine disorder and I accept he was suffering from those at the time he committed the offences. It was clearly self-induced and does not amount to a circumstance of mitigation, but, nonetheless, he was in fact suffering from those conditions. He overcame those addictions after his return to Thailand. He went what is known as "cold turkey" and withdrew from drugs with the assistance of his wife. I accept that he has not used drugs now for over 10 years and drinks alcohol only occasionally. He is extremely motivated to continue drug abstinence, particularly in the context of wanting to be a good and present father to his children. He has a very positive relationship with his wife and two children. His wife does not use drugs and rarely drinks alcohol. He has a strong commitment to his wife and children and because he was not permitted to engage in paid employment in Thailand because of his visa restrictions, he had a very significant and present role in the upbringing of his children until he returned to Australia in March 2023. In the period that he lived in Thailand from 2012, his wife was operating a home business. He was able to assist her but, as I have said, was not able to work in paid employment because of the conditions of his visa.

37. I accept that his drug addiction at the time, albeit that it was self-induced, and therefore not able to be viewed as reducing the objective seriousness of his offending, nonetheless played a part because he was always intoxicated at the time and was not making sound decisions. His focus, I accept, was on obtaining more drugs which is why he was involved in these offences. I do not make any finding about something that he told the psychologist, namely, having a desire to please his brother. The evidence is just not there to enable me to make any finding of that type. There is, however, an abundance of evidence that he engaged in these offences to obtain more drugs which, whilst it does not lower the objective seriousness, does provide a context in which to assess his prospects of rehabilitation, especially so because these offences occurred 12 years ago.

38. I accept that he has expressed genuine remorse and regret to the psychologist and others and that it is, in fact, genuine. It is not diminished because he took a considerable time to decide to come back to Australia. I accept that he did not make the decision to return initially because he was caring for his two young sons, in circumstances where his wife was running a business and earning the income for the family. Then circumstances arose during COVID where he was not able to return. I accept that he spent a month in immigration detention in Thailand after his visa expired before he was deported and, as I have already said, he did not contest that deportation.

39. I accept that he is now suffering from a major depressive disorder, assessed as severe by Ms Fritchley. She sets out at para 43 her opinion which I accept, that he suffers high levels of anxiety and I accept that he suffers, in fact, from generalised anxiety disorder. Overall, I accept her opinion at para 46 of her report that on psychometric assessment, he is at the extremely severe range for depression, the extremely severe range for anxiety, and the severe range for stress. These are relevant psychiatric disorders that I take into account on this sentence. They are not conditions for which there is any evidence that he was suffering from at the time of offending, and there is no evidence that they played a part in his offending. However, they do operate to an extent to make him a somewhat lesser vehicle for general deterrence.

40. I might just, as an aside, indicate that just as the so-called agreed facts were too long, so is the psychological report of Ms Fritchley, in which her opinions have been repeated at least twice, if not three times. It is to be encouraged that experts providing these reports to the Court do so perhaps in a somewhat shorter compass so that Courts have more time to do other matters and do not have to spend quite so long reading very lengthy psychological reports. That having been said, however, her report overall is of use to the Court in determining the current situation of the offender and his prospects of rehabilitation.

41. I accept, as I have said, that he is genuinely remorseful. He has rehabilitated himself very successfully over time, including giving up drugs. Now in custody, he is suffering from serious psychiatric conditions, and I accept he will continue to suffer from those whilst in custody which will make his experience somewhat more onerous than others. He is, however, making the most of his time in custody and will continue to do so, I accept.

42. The impact on his family is a matter which I must take into account pursuant to s 16A(2). It has been significant on his family, namely his wife and two children. He had been the carer for his children which enabled his wife to pursue her home-based business. That flexibility ended when he returned to Australia. She has had a lesser ability to earn extra income because he is no longer available to provide that childcare. Of course, his children also miss him, and he had been the person involved in many of their extracurricular activities. I accept from the letter that his wife has written to the Court that this has had a significant impact on them. His wife has now come to Australia and arrived, as I understand it, the day before the matter was before me last on sentence hearing and the children are with her. The circumstances that she is here are not necessarily known to the Court, but more probably than not, she is present on a tourist visa. There is no evidence before the Court about whether or not she will be permitted to stay. The Court could, however, take judicial notice of the fact that this offender is never likely to be allowed to go back to live in Thailand again because of his conviction for drug importation. There will be very significant difficulties with this family in due course because of their respective immigration problems, him in relation to Thailand, and her in relation to Australia. It is a significant impact on this family. It is not necessary for that impact to be determined to be exceptional before it is taken into account. It is a factor to be taken into account by the Court pursuant to s 16A(2) and I will do so in determining the appropriate sentence and particularly in determining the overall non-parole period that is appropriate in this case.

43. Regrettably of course, the actual long term impact is not known and will not be known for some time, largely because of the immigration status in Australia for his wife and children. However, there is an overall impact on them by his not being present to care for them, an impact on his wife who presumably has had to give up her business to come to be in Australia for a period of time, and it has an impact on him, I accept, because of the increased anxiety that he will suffer in gaol as he considers and continues to consider the impact on his family as a result of his offending. None of this, of course, is meant to minimise the fact that it was he who committed these offence and he who must bear the consequences. The legislation does, however, require the Court to take into account the impact on an offender's family and I do so for the reasons I have just set out.

44. Parity of course, is a significant issue in determining the appropriate penalty here. All three co-offenders were sentenced some time ago and again, as a side, I indicate that in this case, it would have been preferable and in fact, according to the Court of Criminal Appeal, desirable that these offenders were sentenced by one or other of the two judges who have sentenced the co offenders. That did not happen. It is unfortunate that it did not happen, but the parties and the registry should have been made aware so that when the matter was set down for sentence, it could have been set down in front of one of the two judges who sentenced the co-offenders. However, it was not a reason to adjourn the proceedings at the time it came before me, given the length of time otherwise into the future that the sentence would have been listed.

45. Jonathan Klein was sentenced by Judge Woodburne on 16 May 2014. He pleaded guilty to identical counts. Her Honour used a starting point of 11 years for the methamphetamine charge, then discounted that by 45% to take into account the combined plea of guilty and discount for assistance. He was thus sentenced to 6 years for that offence. For the cocaine offence, she used a starting point of 8 years and applied the same discount resulting in a sentence of 4 years and 5 months. There was a significant accumulation applied and he was sentenced to an overall sentence of 7 years with a single non-parole period of 4 years and 5 months. Her Honour found that he played a very significant role in this offence and that his role was critical to its success. She found that he engaged in the offence for financial reward and that his offending was not only critical, but involved a breach of trust with his employer, Cathay Pacific and that further, the need for general deterrence was increased because he was in a special position, placed as he was, at the border in circumstances where he could gain access to the plane and leave the airport without being screened.

46. It seems to me, compared to those findings, the offender Benjamin Klein's role in the offending is somewhat lower in particular because it did not involve a breach of trust, albeit it was nonetheless a central role. The other subjective circumstances involving Jonathan Klein are very similar to Benjamin Klein which is hardly surprising given that they are brothers.

47. Christopher Vidler was also sentenced by Judge Woodburne on 19 December 2014 for the same two offences after pleading guilty. Her Honour used a starting point of 10 years and 6 months for him, again with a combined discount of 45% for the same reasons, albeit, assessing the assistance of greater weight than the discount for the late plea of guilty, which led to a sentence of 5 years and 9 months. For the cocaine offence, she used a starting point of 7 years and 6 months and applied the same discount, leading to a sentence of 4 years and 1 month. The overall sentence was 6 years and 9 months with a single non-parole period of 4 years and 1 month. His role was found to be integral to the offence, but because he took the risk of personally bringing the drugs onto the flight, her Honour regarded him more in the role of courier, although not just a naïve drug mule.

48. If I had been sentencing each of those, I would have found Christopher Vidler's role to be somewhat lower and a sentence somewhat less in the circumstances of his role largely as courier. He was also sentenced on the basis that according to her Honour's judgment, he was to be paid $10,000 for his role, according to the agreed facts $40,000 for his role, but one way or the other, was to receive a sum of money for his role in the offending. Her Honour also found that there was a degree of non-exculpatory duress from Griffin towards him. She assessed his role as below that of either Jonathan or Benjamin Klein or Adam Griffin. His subjective case was not as good as the offender before me, to the extent that he already had a prior conviction for drug supply, otherwise it was not dissimilar.

49. Adam Griffin was sentenced by his Honour Judge Mahony on 7 April 2017. He went to trial pleading not guilty on the count of importing methamphetamine and pleaded guilty to offence of importing cocaine. He was found guilty by a jury of the methamphetamine offence and sentenced for both. His Honour used a starting point of 10 years and 9 months for the methamphetamine charge and a discount of 20% despite the fact that it was a plea of not guilty. Overall, this led to a sentence of 8 years and 6 months. The cocaine offence had a starting point of 8 years with a combined discount of 40%, leading to a sentence of 4 years and 10 months. For Adam Griffin, there was an overall sentence of 9 years and 10 months with a single non-parole period of 6 years. His role was found by Judge Mahony to be less than Jonathan Klein and involved his organising for Vidler to act as courier, including meeting with him, making arrangements for him, liaising with Jonathan Klein about the travel arrangements, and was planning to meet Jonathan Klein after the importation to take possession of the drugs for the purpose of on selling them. His role was found to be significant and there was substantial pre-planning. His Honour found the objective seriousness to be high. His Honour was, no doubt, entitled to make those findings but in my view, these findings do not accord entirely with the facts before me on this sentence, particularly in relation to para 4 of the agreed facts which state:

"Jonathan Klein and Vidler were associates of Adam Griffin. It was Griffin who requested the drugs be imported and supplied to him. Jonathan Klein coordinated with Griffin to arrange for Vidler to travel to Hong Kong for the purposes of the importation."

58. On the facts before me, Griffin seems to be at least at the same level of involvement as Jonathan Klein and was the person who was to take possession of the drugs to enable them to be on-sold. On the facts before me, I would find that Jonathan Klein and Adam Griffin appear to be, at the very least, around the same level in relation to this drug importation group.

59. The Crown has argued that I would find the offender Benjamin Klein's culpability as greater than that of Griffin and comparable to Jonathan Klein. I do not accept that. At least on the evidence before me on this sentence, whilst Benjamin Klein's role is important, he was not the one who was able in the vernacular, to pull this importation off. It was Jonathan Klein who was able to do that because he was able to abuse the trust he had with his employer in his position as an aircraft maintenance engineer with Cathay Pacific at Sydney Airport. The fact that this offender knew this was to occur does not, in my view, mean that he too was abusing any position of trust any more than that would apply to Christopher Vidler who apparently insisted on the return flight being CX101 because he obviously knew that that would enable Jonathan Klein to ensure he was on duty and use the special position of trust that he had.

60. On my finding, this offender's role is higher than that of Vidler but lower than that of Jonathan Klein and, at least on the evidence before me, lower than the role undertaken by Griffin. I am conscious that this involves my making a finding that is somewhat different to the findings made by Judge Mahony, but I do so on the basis of the evidence that is before me on this sentence, and the inferences and findings that in my view, are available from that evidence.

61. Last but not least, in relation to these sentences, is the issue of delay. There are two bases on which delay can be taken into account in sentencing. One of those is in circumstances where an offender has had the circumstances of his offending hanging over his head for a long period of time. This is not one of those cases. The other basis on which delay can be taken into account is in circumstances where an offender has demonstrated real rehabilitation in the intervening period. This is one of those cases.

62. This offender, of course, has to some extent been the author of delay but then doing the best I can from the evidence, it would appear so too have been the prosecuting authorities. There is no evidence that they acted quickly to try to extradite him although there would appear to have been a number of years between 2012 and when COVID made travel impossible, when that could have happened. As I have said, there is no evidence nor explanation for why this did not occur. The fact is that there has been a considerable delay and in that period of time, the offender has been able to demonstrate not only rehabilitation, but that his rehabilitation is real. I accept that his prospects of rehabilitation are excellent. He will however, need assistance on his release to the community to deal with the mental health conditions that have been identified and the fact that they are likely to be exacerbated whilst he remains in custody. He will also need assistance to obtain appropriate work and more probably than not, assistance to try to find a way to be reunited with his family when he is released from custody.

63. Taking all of this into account, in my view the starting point for sequence 1, the methamphetamine charge, should be 9 years with a reduction of 2 years and 6 months being an approximate discount of 30%, therefore giving rise to a term of imprisonment of 6 years and 6 months. The starting point for sequence 2, that cocaine offence, should be 6 years with a reduction of 2 years for an approximate discount of 30%.

64. That would give rise if entirely accumulated on each other to 10 years and 6 months. In my view, there should be a substantial concurrency between the two sentences, albeit that they are two drugs, they are effectively the same episode of criminality.

65. Overall, I will be setting a term of imprisonment of 7 years and 6 months with a single non-parole period of 3 years and 9 months. I recognise that doing so is a 50% non-parole period. In a Commonwealth offence such as this, there is no statutory provision that mandates the length of the non-parole period. There are factors however, that I take into account in setting a relatively low non-parole period. They include, the impact that the length of time in prison has on his family and the need for him to be released into the community as soon as possible to assist them, and also take into account his demonstrated rehabilitation and his need to be in the community as soon as possible with assistance to deal with his mental health issues, which, on my finding, are not likely to improve whilst he remains in custody. This all represents punishment to him, general deterrence, but there is no need for specific deterrence to be reflected in this sentence given what he has already undertaken towards his own rehabilitation.

66. In attempting to impose the relevant sentences, it became clear that my determination of a 50% overall non-parole period was not suitable in the circumstances. That would have given rise to a single non-parole period that was below the term of imprisonment for sequence 2. That cannot be the case and in those circumstances, it will be necessary for me to set a single non-parole period that is slightly more than the figure that I initially indicated.

67. The single non-parole period for both offences will be 4 years and that is for the same reasons that I have already indicated. It is somewhat more than 50% but only slightly and takes into account those same factors to which I have already referred.

68. In those circumstances then, I make the following formal orders. He is convicted on both offences.

69. For sequence 2, there will be a term of imprisonment of 4 years, commencing 4 March 2023, expiring 3 March 2027.

70. For sequence 1, there will be a term of imprisonment of 6 years and 6 months, commencing, 4 March 2024 and expiring 3 September 2030.

71. I set a single non-parole period of 4 years, commencing 4 March 2023, expiring 3 March 2027.

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Decision last updated: 11 September 2024