R v Lightfoot

[2023] NSWDC 132

District Court

New South Wales

Medium Neutral Citation:

R v Lightfoot [2023] NSWDC 132

Hearing dates:

2 February 2023

Date of orders:

01 May 2023

Decision date:

01 May 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1      The offender is convicted and the appropriate discount is 25%.

2     I impose an aggregate term of imprisonment for the Federal offences of 4 years with a non-parole period of 2 years to date from 10 April 2023. The non-parole period will expire on 9 April 2025 and the head sentence will expire on 9 April 2027.

3     I impose an aggregate term of imprisonment for the State offences of 5 years with a non-parole period of 2 years and 6 months to date from 10 April 2024. The non-parole period will expire on 9 October 2026 and the head sentence will expire on 9 April 2029.

4      The total effective term of imprisonment that I have imposed for all of the offences is 6 years with a non-parole period of 3 years and 6 months.

5      The offender will be eligible to be released on parole on 9 October 2026.

Catchwords:

CRIME — Drug offences — Commonwealth offences — Traffic controlled drug

CRIME — Drug offences — Supply prohibited drug

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes Act 1914 (Cth)

Crimes (Sentencing Procedure) Act 1999

Criminal Code Act 1995 (Cth)

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 546

Bugmy v The Queen (1990) 169 CLR 525

Deakin v The Queen (1984) 58 ALJR 367

Hili v The Queen (2010) 242 CLR 520

Johnson v The Queen (2004) 78 ALJR 616

Power v The Queen (1974) 131 CLR 623

R v El Karhani (1990) 21 NSWLR 370

R v Lamella [2014] NSWCCA 122

R v Nguyen (2010) 205 A Crim R 106

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Rex (Crown)
Richard Lightfoot (Offender)

Representation:

Counsel:
L Fernandez (Crown)
G Brady SC (Offender)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
McGirr and Associates (Offender)

File Number(s):

2019/174956

Publication restriction:

None

JUDGMENT

Introduction

1. Richard Lightfoot (the offender) appears for sentence after pleading guilty to the following offences:

Sequence H71385952	Offence	Maximum Penalty and SNPP
1	Supply a large commercial quantity of a prohibited drug, cocaine, contrary to section 25(2) Drug Misuse and Trafficking Act 1985 (NSW)	Imprisonment for life and/or fine of 5,000 penalty units SNPP – 15 years
2	Supply a large commercial quantity of a prohibited drug, methylone, contrary to section 25(2) Drug Misuse and Trafficking Act 1985 (NSW)	Imprisonment for life and/or fine of 5,000 penalty units SNPP – 15 years
4	Deal with cash, knowing that it was the proceeds of crime, contrary to section 193B(2) Crimes Act 1900 (NSW)	Imprisonment for 15 years
7	Traffic a marketable quantity of a controlled drug, cocaine, contrary to section 302.3(1) Criminal Code 1995 (Cth)	Imprisonment for 25 years and/or a fine of 5,000 penalty units
9	Traffic a marketable quantity of a controlled drug, cocaine, contrary to section 302.3(1) Criminal Code 1995 (Cth)	Imprisonment for 25 years and/or a fine of 5,000 penalty units

2. The offender also asks the Court to take into account a further offence of trafficking a marketable quantity of cocaine on a s 16BA schedule when passing sentence for Sequence 9.

Approach to Sentencing

3. 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).

Federal offences

4. I must have regard to Part IB Crimes Act 1914 (Cth) (the Act) in passing sentence and in particular the matters provided for in section 16A of that Act.

5. A court determining a sentence in respect of any person for a Federal offence must impose a sentence that is of a severity appropriate in all the circumstances: section 16A(1) of the Act. The Court must take into account the matters listed in section 16A(2) that are relevant and known to the Court: R v El Karhani (1990) 21 NSWLR 370. The list of factors in section 16A(2) of the Act is not exhaustive and common law principles apply: Johnson v The Queen (2004) 78 ALJR 616 at [15].

6. The offender entered pleas of guilty to the Commonwealth offences in the Local Court. The offender’s pleas of guilty have saved the need for witnesses to be called at trial and there is significant utilitarian value in the pleas of guilty. The appropriate discount is 25%.

7. I have had regard to the principles relevant to sentencing serious Federal drug offenders set out in R v Nguyen (2010) 205 A Crim R 106 at [72] (Johnson J) and the comments of Bathurst CJ in R v Nassir [2020] NSWCCA 88 at [100].

8. For a Federal offence the non-parole period is the minimum period that justice requires the offender to serve in custody, fixed by reference to s 16A(1), the relevant matters in s 16A(2) and by application of the principles set out by the High Court in Power v The Queen (1974) 131 CLR 623, Deakin v The Queen (1984) 58 ALJR 367 and Bugmy v The Queen (1990) 169 CLR 525: see Hili v The Queen (2010) 242 CLR 520 at [40]-[44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

State offences

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

10. The offender entered a plea of guilty in the Local Court to the State offences and is entitled to a 25% discount on sentence for Counts 3-7: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

Facts

11. The parties presented an Agreed Statement of Facts. I have taken into account the entirety of the document 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.

12. The offender took issue with some of the facts which were printed in red. I accept the offender’s submission that these paragraphs should be excluded from consideration. The effect of the paragraphs is to imply that the offender is guilty of uncharged offences. The offender accepts that the offences were not isolated and the disputed paragraphs are not otherwise relevant to the sentencing exercise.

13. In about 2017, New South Wales Police commenced an investigation into a large-scale organised drug importation and supply syndicate operating on the Central Coast. The investigation identified a number of people involved in the syndicate, including Levi Russell, the offender and Witness A. Witness A has not been charged, having been granted an undertaking from the Commonwealth Director of Public Prosecutions in exchange for giving evidence against the offender and Mr Russell.

Sequence 1 – Supply large commercial quantity of cocaine

14. On 2 and 3 June 2019 Mr Russell and Witness A exchanged messages on Ciphr about the supply of cocaine. The plan had been that Witness A would purchase 500 grams of cocaine for $120,000, which he would pick up from Mr Russell on 4 June 2019. However, on 3 June 2019 Mr Russell advised Witness A that the transaction would need to be delayed as he was unavailable.

15. On 4 June 2019, Mr Russell and Witness A exchanged messages on Ciphr. Mr Russell told Witness A the following:

1. a person could meet Witness A at the Tuggerah exit of the freeway at 12.45pm;

2. that the person would give Witness A one kilogram of cocaine, half of it being for Witness A and the other half for Mr Russell; and

3. that the person would be driving a black Toyota Rav 4.

16. At around 12.34pm on 4 June 2019, Witness A parked at the commuter car park on the north-western side of the Tuggerah M1 interchange at Mardi.

17. At 12.43pm, Witness A saw a black Toyota Rav 4 vehicle drive into the car park and park next to his vehicle. Witness A exited his vehicle and entered the front passenger seat of the Toyota. The driver of the Toyota was the offender.

18. After a brief conversation, the offender laid the rear seat of the Toyota forward and opened a hidden compartment under the floor behind the rear seat. The offender put a pair of black gloves on and reached into the compartment, pulling out a white plastic bag with a black package inside it. Witness A told the offender that he would get the cash out of his vehicle to pay him. As Witness A exited the vehicle, police officers ran over to the Toyota and arrested the offender.

19. Police seized the white plastic bag containing the black package that the offender was to give to Witness A from the Toyota. It was later analysed and found to contain 998.97 grams of cocaine.

20. The hidden compartment contained four plastic containers that contained 83.7g, 31.11g, 2.21g and 0.90g of cocaine respectively. The offender’s DNA was found on one container and his fingerprints were found on another.

21. The total amount of cocaine in the offender’s possession on 4 June 2019 was 1,116.89g.

Sequence 2 – Supply large commercial quantity of methylone

22. The hidden compartment also contained six yellow parcel boxes, each addressed to a different person and parcel locker address. The sender of each parcel was a ‘Mr HE’ with an originating address in Hong Kong. Each parcel contained varying amounts of methylone. There was also a ‘Foodsaver’ vacuum sealed plastic bag containing 481.7 grams of methylone.

23. The total amount of methylone found in the vehicle that the offender was driving on 4 June 2019 was 3,969.7 grams.

Sequence 4 – Deal with proceeds of crime

24. Police also located two ‘Coles’ shopping bags, containing $101,950 in bundles of $100 and $50 notes. The offender knew that this cash was the proceeds of crime.

Sequence 7 – Traffic marketable quantity of cocaine

25. On 3 May 2019 a parcel box was sent from Germany to Australia. The sender was listed as a bookstore in Dusseldorf and the consigned items were described as ‘Books’.

26. The parcel box was addressed to a parcel locker in Gladesville, to which two of the parcel boxes containing methylone found in the Toyota had also been addressed.

27. On 11 June 2019 New South Wales Police were advised that the parcel had arrived at Gladesville Post Office. Police attended the Post Office and seized the parcel.

28. Authorities opened the parcel and located three vegan cookbooks. Cocaine had been impregnated into the hard cover of each book.

29. The total gross weight of cocaine found in the book covers was 745.3g with a pure weight of 557.48g.

Sequence 9 – Traffic marketable quantity of cocaine

30. On 3 May 2019, a parcel box was sent from Germany to Australia. The consignor address and declared contents of the parcel were identical to the parcel referred to in sequence 7.

31. The parcel was addressed to a parcel locker in Chatswood. At around 8.21pm on 29 May 2019 the offender accessed the parcel locker and collected the parcel.

32. During the search of the Toyota on 4 June 2019, police located the parcel box beneath the front passenger’s seat. Authorities opened the parcel and located three vegan cookbooks. At the time, the parcel box and books were not seized by police as they appeared innocuous.

33. On 12 June 2019, following the seizure of cocaine from the three cookbooks referred to in sequence 7, the police returned to the vehicle and seized the parcel and three cookbooks.

34. Upon deconstruction of the cookbooks, it was revealed that cocaine had been impregnated into the hard covers of each of the books.

35. The total gross weight of the cocaine trafficked by the offender was 747.3 grams with a pure weight of 529.31 grams.

Sequence 10 (on a s 16BA schedule) – Traffic marketable quantity of cocaine

36. On 4 June 2019 police executed a search warrant at the offender’s residential address.

37. During execution of the warrant, police located the following in the garage of the residential premises:

1. two freezer bags containing 54.02 grams of cocaine; and

2. a white ‘Handy Pail’ bucket containing 24.45 grams of cocaine in the form of a crystalline paste.

38. The total amount of cocaine trafficked by the offender was 78.46 grams.

39. Additionally, during the execution of the search warrant on 4 June 2019 and a later search of the offender’s residential premises on 19 June 2019, police found the following:

1. a ‘Foodsaver’ plastic roll for vacuum sealing bags;

2. a vacuum sealer manual from ‘Target’;

3. a small set of silver scales;

4. numerous black gloves;

5. five ‘Lycamobile’ pre-paid SIM cards;

6. a parcel box with the sender listed as a bookstore in Dusseldorf and with the consigned items described as ‘Books’, addressed to a parcel locker in Macquarie Park;

7. an invoice from the bookstore dated 28 April 2019 for three vegan cookbooks.

Sentencing Assessment Report

40. The Court received a Sentencing Assessment Report (SAR) dated 1 March 2022. The subjective case of the offender referred to in the SAR is consistent with the evidence he has relied on and I will set out that evidence later.

41. The offender reported that he has been abstinent from cocaine since his arrest in 2019 and that was confirmed by other people spoken to. The offender has demonstrated an improved management of his finances, by entering into payment plans and securing ongoing employment. The offender appeared to accept responsibility for the offences and reflected on legal and more appropriate ways to address his financial difficulties.

42. The offender appeared to accept responsibility for the offences and displayed a degree of insight into his offending behaviour, recognising that he put “the community, my family and my friends at risk by my actions”.

43. The offender is currently consulting a psychologist on a weekly basis and his psychologist confirmed he is engaged and motivated to change his behaviour.

44. The offender was assessed as a medium risk of reoffending, suitable for supervision and community service work.

The Offender’s Case on Sentence

45. The offender tendered the following documents;

1. affidavit of Tracey Titlow dated 26 August 2022;

2. affidavit of Adam Stuart dated 26 January 2023;

3. affidavit of Ashe Filicity Vidgen dated 6 October 2022;

4. affidavit of the offender dated 2 September 2022;

5. report of Graeme Randall dated 28 September 2022;

6. report of Belinda Preston dated 13 October 2022;

7. a letter from the offender’s step-daughter; and

8. medical records relating to the offender’s upcoming surgery.

46. The offender was also called to give evidence and cross-examined. The offender presented as an honest and forthright witness. He made almost every concession he was asked to. He unreservedly accepted responsibility for his actions and appeared to be genuinely contrite. I am satisfied that he understands the impact that his actions have had on the community and his family.

47. The material relied on by the offender was very thorough and therefore voluminous. I have taken all of the material into account in coming to the appropriate sentence. What follows is a precis of the evidence relied on by the offender.

48. The offender was born in Sydney and is presently 36 years of age. He was neglected by his parents as a child. His father was largely absent and his mother had significant alcohol and mental health issues. His mother provided for his basic needs but she was largely emotionally unavailable to him.

49. The offender found school difficult. He was easily distracted and disruptive. He was eventually diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and prescribed Ritalin. He did not like the effect that the medication had on him and he did not take it. When it was discovered that he had been stockpiling the medication in his school bag, he was required to attend the office at regular intervals to be supervised while taking the medication.

50. He was bullied at school, got into a few fights and was suspended on a few occasions. He enjoyed sports and active pursuits, finding them a release.

51. His parents fought a lot before they separated when he was 11 years old. He found being involved in the ensuing family law proceedings very confronting. After living with his mother on the Central Coast for a period, she became mentally ill and was scheduled on a few occasions. He then went to live with his grandparents at Ryde but found it difficult to integrate into the school there. He then went to live with his father on the Northern Beaches and attended Davidson High School. He did not get on with his father’s partner. He was required to prepare his own meals but was not given food or money and often went without. His father ultimately told him to leave.

52. He began living with different friends for short periods so that he could stay at Davidson High School. He was ultimately taken in permanently by Tracey Titlow, the mother of his school friend, who incorporated him into the family and provided him with care and support.

53. He continued to have issues with school and decided to leave in Year 11 to work as an apprentice mechanic. About two years later, the offender moved in with friends from work who were a bad influence on him. He began to drink and gamble heavily; he became unreliable at work and was terminated. Excessive alcohol use also ended with the offender being charged with a number of property and driving-related offences. He was referred for alcohol rehabilitation which helped him control his alcohol use for a few months.

54. About a year later he relapsed into alcohol use and was charged with drink driving and a serious assault. He was 20 years of age when he was sentenced to 18 months imprisonment with a non-parole period of 12 months. He appealed the severity of that sentence and was given bail. He remained abstinent, completed the sober driver program and stayed out of trouble. When his appeal was heard the minimum term was reduced to 9 months. He found gaol difficult, but salutary. When he was released, he moved back in with Ms Titlow and realised what a negative influence his friends had been on him.

55. The offender returned to work in a gym and started an exercise regime. He re-established prosocial contacts and activities.

56. In or about 2010 the offender was walking home from work when he was struck by a motor vehicle. He suffered a ruptured medial cruciate ligament and underwent surgery to have part of his meniscus removed. He was put on light duties at work and could not exercise which adversely affected his mood. He wanted to return to work outdoors and was offered trial work with a friend who owned a landscaping business. He transitioned to working as a landscaper full time when his knee healed. When he got his licence back, the offender started his own landscaping business.

57. In 2013 the house where the offender was living was searched by the police. He was found in possession of fireworks and a book containing instructions on how to manufacture drugs. He was charged and fined for these offences. In 2014 he was charged with supply prohibited drug for putting an MDMA tablet into a friend’s beer. He was also fined for this offence. In 2015 he became involved in a fight and was sentenced to 2 years imprisonment to be served by way of an Intensive Corrections Order.

58. In about early 2017, the offender met his present fiancée. She had two children from her previous relationship, who were aged 11 and five at that time. Their relationship was platonic for a period because she was apprehensive about introducing the offender into her children’s lives.

59. On 18 October 2017 the offender was riding a motorcycle when a car collided with him. He suffered a fractured collarbone which required surgery, a degloved finger and an aggravation to his pre-existing knee injury. He was left with restricted movement and pain in his left shoulder. This incapacity required him to find people to complete his work on a number of projects. This was an additional expense that impacted the profitability of the business.

46. On 14 November 2017, the offender was driving a motor vehicle that was hit from behind by a truck. He suffered pain in his neck, right shoulder and back. He was referred for an MRI scan that demonstrated disc protrusions in his spine. At about the same time, the offender’s living arrangements came to an end and he expedited looking for a bigger place that could house his fiancée and her children. The offender suffered pain that impacted his ability to sleep and to help around the house and with the children. He increased the dosage of his prescription pain killers in an attempt to cope. In addition, his financial problems continued and he was upset by being unable to equally contribute to the household. He commenced legal proceedings but was advised that it would take some time for any compensation to be paid.

47. The offender’s pain was increasing and he was taking a month’s worth of prescription opioids in a few days. His general practitioner refused to increase his dosage because of the risk of addiction. He was referred by an employee to a person who could source opioid medication without a prescription. He began buying an extra 100 tablets of Tramadol or Endone each month at the cost of about $300.

48. In about June 2018, his fiancée learnt that she was pregnant. This made the offender very anxious as to how he would provide for the family. He was taking six to 10 pain killers per day and one to two Valium each night. He felt drowsy and found it hard to find energy to do anything.

49. The offender went to his general practitioner and was advised that she could not prescribe any stimulant drug to assist with his energy levels. The offender’s drug dealer then suggested that he try cocaine whenever his energy levels needed a boost and provided him with a $300 bag of cocaine on credit. The offender found this helpful and his use of cocaine escalated. The offender did not tell his fiancée about his illicit drug purchases and found them difficult to fund without her finding out. He began to obtain more and more drugs on credit.

50. Towards the end of 2018 the offender was advised that he would require surgery in the form of a spinal fusion to alleviate his pain. He was advised that the surgery would cost about $70,000 but that his treating doctor would seek payment for it from the third party motor vehicle insurer.

51. On 4 February 2019 the offender’s daughter was born.

52. On 19 February 2019 the insurer denied approval for the spinal fusion surgery and further steps were initiated to have the surgery paid for by the insurer.

53. In the period that followed, the offender and his fiancée considered other ways to pay for the surgery in an attempt to get the offender back to work. The offender found this to be a very stressful period. He had incurred a debt to his drug dealer of more than $10,000 and he could no longer afford to pay for the illegal opioid medication. He scaled back his opioid dose and began to experience drug cravings for opioids and cocaine. He felt sick and sluggish.

54. He returned to drug use on the basis that he would have to “work off” his debt with his dealer. He felt trapped by being unable to work and in financial difficulty.

55. In about May 2019 the offender began to suffer from bad heartburn and stomach pain and was referred to a specialist. He was advised to have urgent tests to exclude bowel cancer which were booked for 7 June 2019.

56. On 4 June 2019 the offender was arrested for the State offences and refused bail. He suffered significant withdrawal symptoms while in custody. He was granted bail on 12 June 2019 to undergo the necessary medical tests. He was not released for a few weeks until the surety could be paid.

57. The offender was cleared for bowel cancer. His back surgery was accepted by the insurer in about September 2019 and he underwent the surgery on 21 August 2020. The surgery improved the offender’s pain considerably, although he still has difficulty standing or sitting for long periods and has some discomfort when lying down.

58. In about late 2020 the offender was diagnosed with sleep apnoea as a result of displaced nasal passages. He underwent surgery on 3 March 2021 and 3 May 2021 to deal with his sleep apnoea. He required further surgery on 17 March 2023 for this condition. The parties requested that I defer passing sentence until after the date of this surgery and allowing for a period of convalescence.

59. The offender was referred to another specialist for his continuing reflux symptoms. He was diagnosed with Gastroesophageal Reflux Disease (GORD) which required a procedure known as Nissen’s Fundoplication. On 16 March 2022 the offender underwent this surgery. He continues to experience some minor symptoms.

60. In 2021 the offender consulted Belinda Preston, psychologist, for treatment and drug counselling. The offender has completed 36 treatment sessions with Ms Preston. Ms Preston opined that the offender has actively engaged with his treatment, demonstrates substantial insight and has made significant gains. She believes that he requires continuing treatment in the form of medication, counselling and assistance with understanding his complex psychological history.

61. The independent evidence of Ms Titlow, Mr Stuart, Ms Vigden and the offender’s stepdaughter corroborates the background to the offences put forward by the offender. They also independently confirm the offender’s insight and positive attitudes towards his rehabilitation.

Consideration

Objective seriousness – State offences

76. Taking into account all of the evidence, I am satisfied that the offender’s role was that of a user/dealer who took direction from others higher up in the organisation. He was entrusted to deliver significant amounts of drugs and to receive payment for them on behalf of others. I am not satisfied on the evidence that Mr Russell had direct contact with the offender to arrange the supply of the cocaine. The identity of the person that Mr Russell dealt with is unclear on the facts. It is reasonably possible that it was not the offender. There was some planning involved in the offences. The hidden compartment was used to avoid detection. The offending was not isolated and took place over a period of months.

77. The quantity of the cocaine was 1,116.89g, which is only slightly above the large commercial quantity threshold of 1kg.

78. The quantity of the methylone was 3.9697kg, which is close to double the large commercial quantity of 2kg.

79. The offender knew that the packages of methylone were in the vehicle and was aware that there was a reasonable possibility that the packages contained an illegal drug. There is no evidence that the offender was aware of the type or weight of the drug. There is no evidence that the offender was otherwise involved in dealing with the methylone in any way. In contrast, he was actively involved in supplying and using the cocaine that was located in the vehicle.

80. The cash was possessed by the offender on the day of his arrest. The amount of cash was significant but not large for this type of offence. The offender accepts by his plea that he had actual knowledge that the cash was the proceeds of crime.

81. The offender was not motivated by greed. He committed the offences to finance his addiction, which partly arose as a result of being prescribed opioid pain killers to deal with chronic pain from injuries sustained in motor vehicle accidents. The extent of his pain and the consequential financial strain placed on him caused him to be depressed, anxious and desperate.

82. The offender had a deprived upbringing in which his emotional needs were neglected and he was exposed to drug use and abandonment. He suffered from ADHD which was poorly managed. His condition made him susceptible to impulsivity and he developed maladaptive coping strategies that prevailed when he was faced with the pressure of difficult life circumstances. His moral culpability for the offences is reduced.

83. There are no relevant aggravating factors as provided for by s 21A(2) Crimes (Sentencing Procedure) Act 1999.

84. I have taken into account the maximum penalty for the offences and the relevant standard non-parole periods.

The nature and circumstances of the Federal offences

85. The offender had access to parcel lockers used to deliver the cookbooks impregnated with cocaine. He collected the books the subject of sequence 9 from a post office. The books, the subject of sequence 7, were delivered to the locker after his arrest and he did not take custody of them.

86. There is no evidence that the offender did anything to harvest the cocaine from the books or to prepare it for on supply. There is no evidence that he knew the quantity or the identity of the drug involved.

87. In both cases the pure weight of the cocaine 557.48g (sequence 7) and 529.31g (sequence 9) was a bit over twice the marketable quantity for cocaine of 250g.

88. I have taken into account my findings as to the offender’s motivation and his moral culpability.

Contrition and remorse

89. The offender has expressed remorse to his family and friends, to the psychologists and to the Court. He demonstrates exceptional insight into the circumstances that led to his offending conduct and the impact that his actions have had on his family and the community. The offender has accepted that he must be punished through the imposition of a significant sentence of imprisonment. The offender’s pleas of guilty also indicates remorse.

Deterrence

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

91. The sentence imposed must reflect the need for specific deterrence, but it is substantially reduced. The offender has accepted responsibility for his actions and spent his time on bail committed to his rehabilitation. He is remorseful and understands the impact that his offending has had on his life. I am satisfied that he has already experienced significant personal deterrence.

Character, antecedents, age, physical and mental condition

92. The offender is presently 36 years of age.

93. The offender has some criminal history and has been sentenced to imprisonment for serious assault matters. The matters on his record are not as serious as the present charges.

94. The offender has suffered from a variety of serious physical health issues in recent times. He has undergone multiple surgeries for those issues. He has some residual disability in his back, knee, shoulder. He continues to have some symptoms of sleep apnoea and reflux.

95. The offender suffers from a complex mental condition arising from his neglect as a child, poorly treated ADHD, alcohol abuse and substance use. He will require considerable psychological support in the future to assist him to process his childhood neglect and to avoid relapse into substance use.

96. The offender has excellent prospects of rehabilitation. He has strong family and community support and the physical condition that caused his pain and resulting drug addiction has been successfully treated through surgery. The offender has continued in employment and has a stable family life that will encourage him to avoid committing further offences. He has remained abstinent from illicit drugs and engaged in psychological counselling to give him coping strategies to avoid relapse. The offender has made substantial progress in his rehabilitation.

97. The offender was bail refused for these offences for three weeks in 2019. I will back date the first sentence to be imposed to 10 April 2023 to take into account his pre-sentence custody.

98. I have taken into account the restrictions imposed on prisoners serving sentences in New South Wales in response to the COVID-19 pandemic. I am satisfied that those restrictions will make the offender’s time in custody more onerous and that they may be imposed for some time into the future.

99. I have taken the s 16BA schedule offence into account in accordance with the principles in the guideline judgment, which have been held to apply equally to s 16BA procedure: Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 546 and R v Lamella [2014] NSWCCA 122 at [48].

100. For the State offences, I make a finding of special circumstances. The offender suffers from physical and mental health conditions that will be better treated in the community and that justify a longer period of supervision on parole.

Penalty

101. I have had regard to s 17A Crimes Act 1914 (Cth) and s 5 Crimes (Sentencing Procedure Act 1999. I am satisfied, having considered all other available sentences, that no sentence other than imprisonment is appropriate in all the circumstances of the case, for the reasons I have given in this judgment.

102. The offender is convicted.

103. This is an appropriate case to impose an aggregate sentence for the State offences and a separate aggregate sentence for the Federal offences, pursuant to s 53A Crimes (Sentencing Procedure) Act 1999. The two sentences will then be partially accumulated to reflect the totality of the criminality involved.

Aggregate sentence for the Federal offences

104. The terms of imprisonment that I would have imposed for the Federal offences, if separate sentences were to be imposed, after taking into account the discount of 25% for the pleas of guilty and the matter on the s 16BA schedule are:

1. Sequence 7 – 3 years;

2. Sequence 9 – 3 years and 6 months.

105. I impose an aggregate term of imprisonment for the Federal offences of 4 years with a non-parole period of 2 years to date from 10 April 2023. The non-parole period will expire on 9 April 2025 and the head sentence will expire on 9 April 2027.

Aggregate sentence for the State offences

106. The terms of imprisonment that I would have imposed for the State offences, if separate sentences were to be imposed, after taking into account the discount of 25% for the pleas of guilty are:

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

2. Sequence 2 – 3 years with a non-parole period of 18 months;

3. Sequence 4 – 18 months.

107. I impose an aggregate term of imprisonment for the State offences of 5 years with a non-parole period of 2 years and 6 months to date from 10 April 2024. The non-parole period will expire on 9 October 2026 and the head sentence will expire on 9 April 2029.

108. The total effective term of imprisonment that I have imposed for all of the offences is 6 years with a non-parole period of 3 years and 6 months.

109. The offender will be eligible to be released on parole on 9 October 2026.

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Decision last updated: 02 May 2023