R v McCauley; R v Johnston
[2017] ACTSC 84
•8 March 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v McCauley; R v Johnston |
Citation: | [2017] ACTSC 84 |
Hearing Dates: | 2 February 2017 |
DecisionDate: | 8 March 2017 |
Before: | Penfold J |
Decision: | See [97] – [108]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – drug offences – importing a marketable quantity of a border-controlled drug – arranging for cocaine to be sent to Australia from Thailand – no suggestion of a professional or organised importation scheme – police intercept of phone communication – application for sentencing judge to go beyond findings implicit in jury verdicts– scope for taking account of other facts adverse to the accused – scope for taking into account facts favouring accused – availability of intensive correction orders – intensive correction orders involve significant degree of leniency – intensive correction orders provide incentive to rehabilitation – scope for Crown submissions about disposition of a sentence after Barbaro principles. |
Legislation Cited: | Crimes Act 1914 (Cth), ss 19AB(3), 19AB(4), 20AB91AA)(a)(ix) Criminal Code 1995 (Cth), ss 307.2(1), 307.2(3), 307.4 Crimes (Sentencing) Act 2005 (ACT), s 11(3) |
Cases Cited: | Adegoke v R [2013] NSWCCA 193; 234 A Crim R 280 Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 The Queen v Pham [2015] HCA 39; 256 CLR 550 |
Parties: | The Queen (Crown) Paul McCauley (First offender) Christopher Johnston (Second offender) |
Representation: | Counsel Mr E Chen (Crown) Mr J Lawton (First offender) Mr S Whybrow (Second offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Legal Aid ACT (First offender) Sharman Roberston (Second offender) | |
File Number: | SCC 147 of 2015; SCC 33 of 2016 |
The offence
Christopher Johnston and Paul McCauley have each been found guilty by a jury of one offence of importing a marketable quantity of a border-controlled drug, namely cocaine, contrary to s 307.2(1) of the Criminal Code 1995 (Cth), an offence carrying a maximum penalty including imprisonment for 25 years.
The incident
The offences came to light in November 2014. Several months earlier, during a visit to Thailand, Mr Johnston had met a man, Victor, who offered to arrange for cocaine to be sent to Mr Johnston in Australia. Mr Johnston was a user of cocaine, as was his friend, Mr McCauley, and he was interested in sourcing cocaine that was both cheaper and of better quality than the cocaine he generally bought in Australia.
He arranged the importation of a quantity of cocaine through Victor. The evidence suggested that the actual quantity was not able to be definitively specified, but that an amount of around 50 gm was discussed. In fact, what arrived was something less than 50 gm of a substance that included cocaine, and Mr Johnston and Mr McCauley were impressed with the quality and the price. There is no evidence, however, of the quantity of pure cocaine contained in that importation.
Shortly after that, Mr Johnston contacted Victor again and arranged the importation of around 50 gm of cocaine. The purchase price for that importation was not clear on the evidence, but it seems likely to have been around $7,000. The original plan was for Mr Johnston and Mr McCauley to share equally in the cost of the cocaine and in the cocaine delivered, but at some point Mr McCauley became concerned about the amount he was required to pay, and invited other friends to become involved in the transaction. One of those friends was one Todd Bassingthwaighte.
Mr Johnston was in Thailand again by the time the second parcel of cocaine arrived in Australia, and Mr McCauley and Todd Bassingthwaighte collected the parcel from the home of Mr McCauley's grandmother, to whom it had been addressed.
Police involvement
Before Mr Johnston began dealing with Victor, police had begun, under a warrant, to intercept Mr Johnston's phone communications. When the second parcel arrived in Australia it was intercepted by the Australian Federal Police (AFP), who replaced the cocaine and arranged for the parcel to be delivered. The substance imported was seized by police and analysed; it was found to weigh 49.2 gm and to contain 29.7 gm of pure cocaine.
As soon as Mr McCauley and Mr Bassingthwaighte collected the parcel from Mr McCauley's grandmother's house, Mr McCauley and Mr Bassingthwaighte were both arrested.
Mr McCauley's arrest, and the AFP's interest in Mr Johnston, came to Mr Johnston's attention while he was still in Thailand. He telephoned the AFP in Australia and established from them that he was not being sought by the Thai police. He advised the AFP of the details of his flight back to Australia, and he was arrested when he arrived at Melbourne Airport several days later.
Time in custody
Mr Johnston and Mr McCauley were released on bail after being charged, having in each case spent one night in custody.
The charges
Mr Johnston and Mr McCauley were each charged with the offence of which they have now been found guilty, and they were also charged with a lesser offence under s 307.4 of the Criminal Code, constituted simply by importing a border controlled drug, being cocaine. That offence carries a maximum penalty including imprisonment for two years.
I note at this stage that Mr Bassingthwaighte was apparently not charged with any offences, and nor did he give evidence at the trial. As a result of the absence of his evidence, and of any explanation for that absence, I have not been confident in making some of the findings in relation to the intentions and knowledge of Mr Johnston and Mr McCauley that have been urged upon me on behalf of the Commonwealth Director of Public Prosecutions (CDPP).
The trial
On arraignment before a jury, both Mr Johnston and Mr McCauley pleaded guilty to the lesser offence, being the simple importation of cocaine. In relation to the more serious offence involving a marketable quantity of cocaine, each of them raised the defence provided by s 307.2(3) of the Criminal Code, namely that he neither intended, nor believed that another person intended, to sell any of the cocaine that had been imported. That defence is required to be proved by an accused person on the balance of probabilities.
At trial, Mr Johnston and Mr McCauley gave evidence that they were heavy users of cocaine, and intended all the cocaine imported for personal use. I mention at this point, however, that I have not been asked to find, and I do not find, that they were addicted to cocaine in any real sense.
As to Mr McCauley's invitation to other friends in relation to the importation, the defence case was in general terms that this was an invitation to buy in to the importation of the cocaine, not an offer to sell some of the cocaine that was being imported.
Significance of the offenders’ concessions
I note at this stage that for the purposes of the trial, Mr Johnston and Mr McCauley conceded the accuracy of the phone intercepts and retrieved text messages, and conceded their roles in those phone calls and text messages. Clearly those concessions significantly simplified the trial. The relevant facts could presumably have been proved by the Crown, if necessary, but it would have been a tedious and time‑consuming exercise. This concession will be considered in relation to whether either offender showed remorse or contrition.
Jury verdicts
The jury in the trial found each of the accused guilty of the more serious charge. The jury's verdicts mean at least that, in relation to each accused, the jury did not accept that it was more probable than not that:
(a)he neither intended to sell some of the cocaine; nor
(b)believed that his co‑accused or someone else intended to sell some of it.
I think that this can be expressed, in something of the vernacular and to avoid some of the multiple negatives, as meaning that the jury thought, for each accused, that it was at least as likely as not that he either:
(a)intended to sell; or
(b)believed that his co‑accused or someone else intended to sell;
at least some of the cocaine.
Factual inferences/findings available
The prosecutor submitted that I should make a number of factual findings, to be used in sentencing, that go beyond the findings that needed to be made by the jury in order to justify the verdicts the jury returned, although he did concede that I was not required to make any such findings. Other findings that in my view were available on the evidence also suggested themselves and I have considered them, too, by reference to the comments in the case of R v Olbrich [1999] HCA 54; 199 CLR 270 at [28] that in sentencing proceedings a court:
... may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities. (emphasis in original)
Inference that some cocaine was intended for personal use
The evidence in this case was that at least some of the cocaine was intended for personal use by each offender, and accordingly I do not conclude, about either of the offenders, that he intended all his share of the cocaine for sale, or believed that that was his co‑offender's intention.
Mr McCauley’s intentions
The evidence does establish that within the period between when the order was placed and when the parcel arrived Mr McCauley intended the transfer, or the sale at cost price, of some of his share of the cocaine, and that Mr Johnston was aware of Mr McCauley's intention.
In relation to Mr McCauley's intention, the prosecution also submits:
(a)that the imported cocaine was to be split three ways between the two offenders and Mr Bassingthwaighte, with each of the three contributing to the cost; and
(b)that I should find beyond reasonable doubt that Mr McCauley intended to sell part of his cocaine given his comment in evidence that "25 gm each was a lot more than what we would really want," and that he needed to get other people to pay for some of it.
Each of these submissions seems to detract from the strength of the other; that is, if Mr Bassingthwaighte was taking a share in the cocaine neither of the others would need to take 25 gm of a package expected to be around 50 gm.
The prosecutor referred to the case of R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106 (Nguyen; Pham) in which it was said at [72], in relation to drug importation offences, that:
as a matter of commonsense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit.
While I have found that Mr McCauley was attempting to transfer part of his share in the cocaine to a friend or friends, I have not found, and nor does the jury verdict seem to require a finding, that any of the imported cocaine would have been sold for profit as opposed to being “sold” at cost price.
Mr Johnston’s intentions
The prosecutor also argued that I should be satisfied beyond reasonable doubt that Mr Johnston intended to sell some of the cocaine, in reliance on his comment about the possibility that people other than Mr McCauley might take a share of the cocaine that "everyone having it just makes it harder for me to move". The prosecutor says, by reference to another comment of Mr Johnston's found in the intercepted material, that "move" means "sell".
Mr Johnston, however, explained this comment as relating to the difficulty of dividing the cocaine, after he had dried it, among multiple associates and working out how much each of them had to pay for their shares or, alternatively, how much cocaine each of them should receive for the money they had paid.
Other evidence does suggest that neither mental arithmetic nor attention to detail is a strong point for Mr Johnston, and I cannot exclude the possibility that this comment simply referred to his frustration at having an unnecessarily difficult distribution task imposed on him by Mr McCauley's invitation to others to take a share in the cocaine that he had ordered.
Intentions in relation to further importations
I am also satisfied that if the second importation had gone undetected Mr Johnston would have arranged further importations. I also suspect, but am not satisfied beyond reasonable doubt, that in those circumstances Mr Johnston might also have decided to buy larger quantities of cocaine intending to sell at least some of it. Accordingly, despite the prosecutor's submission, I do not accept that the evidence justifies the characterisation of Mr Johnston's actions as "the furthering of an emerging import business" or shows that "there was a clear commercial element to the offending".
In summary, I have concluded beyond reasonable doubt that:
(a)each offender intended to use some of the imported cocaine personally;
(b)that Mr McCauley was attempting to find other people to take over part of his liability for the cost of the importation, which on the evidence would have involved a transfer or possibly sale on a “cost recovery” basis – that is, recovering the cost of importing the cocaine that was being taken; and
(c)that if the subject importation had been successful, there would have been further attempts to import cocaine in the same manner.
I cannot, however, find beyond reasonable doubt:
(a)that any sale would have involved a profit (that is, a sale at a price higher than the “cost price” to the offender); or
(b)that the subject importation would inevitably have been followed, but for the police involvement, by further importations intended wholly or mainly for profit rather than for personal use.
Evidence
As well as the evidence given in the trial, the following material is before me:
(a)a criminal history for each offender;
(b)intensive correction order (ICO) assessments for each offender; and
(c)a transcript of an interview with Mr McCauley conducted by the AFP on 14 November 2014;
all of which were tendered by the prosecution.
Counsel for Mr Johnston tendered a bundle of documents consisting of:
(a)a pre‑sentence report for court in October 2015 (which had been prepared at a point when Mr Johnston had pleaded guilty to the offence, before being made aware of the possible defence that was raised in the trial);
(b)a CADAS report prepared for Mr Johnston in June 2015 in the same circumstances;
(c)Mr Johnston's Advanced Diploma in International Hotel and Resort Management;
(d)a letter evidencing Mr Johnston's full‑time employment as duty manager in a local hotel; and
(e)evidence relating to Mr Johnston's accommodation arrangements.
As well, oral evidence was given by Mr Johnston's partner, Madeleine Thomas, who is a registered nurse.
Objective seriousness
In considering the objective seriousness of the offence, I have had regard to the following matters.
The Criminal Code creates four offences of importing a border controlled drug with four different levels of penalty. The two offences in the middle of that hierarchy, the marketable quantity offence with which we are concerned, and the importation offence with a maximum 10‑year imprisonment penalty, both provide a “no-commercial intent” defence such as was pleaded in this case. The hierarchy of offences and penalties is as follows:
(a)the most serious offence, that of importing a commercial quantity of a border controlled drug (s 307.1) carries a life sentence;
(b)the offence of importing a marketable quantity of a border controlled drug, the current offence, carries a maximum imprisonment penalty of 25 years;
(c)the offence of importing a border controlled drug carries a maximum imprisonment penalty of 10 years; and
(d)the least serious offence, the offence of simple importation, carries a maximum imprisonment penalty of two years.
Thus, the offence for which I am sentencing Mr Johnston and Mr McCauley is the second most serious offence. It may be committed by importing at least 2 gm of cocaine. The commercial quantity offence is committed by importing at least 2 kg, that is 2,000 gm, of cocaine.
It is clear that the offence of importing a marketable quantity of cocaine, carrying as it does a maximum imprisonment penalty of 25 years, is a serious offence. On the other hand, it is also clear that the importation of 29.7 gm of pure cocaine is at the less serious end of the spectrum of offending covered by the relevant provision.
The prosecutor submits, accurately, that the 29.7 gm of pure cocaine imported by the offenders in this case is nearly 15 times the marketable threshold of 2 gm. It could just as easily and just as accurately be pointed out that 29.7 gm is less than 1.5% of the amount that could be imported without bringing an importer within the more serious offence of importing a commercial quantity of cocaine.
There is, in my view, little benefit in making apparently mathematical comparisons in cases of this sort. What can be said, however, is that the amount imported was not negligible but that it was a relatively small amount, especially when divided among two or three buyers, sitting well towards the lower end of the range of quantities covered by the relevant offence provision, and it does not suggest a professional or organised importation scheme.
The evidence was that the wholesale value of the cocaine imported was up to $12,000 and the street value was around $21,000. The price paid by the offenders appeared to have been considerably less, possibly around $7,000, but confusion in the evidence between this and the previous importation means that there is no certainty about this aspect of the price.
The importation of this cocaine was part of a course of conduct, in that it was the second importation. It was undertaken as a result of the success of the first importation, and I have found that, but for the intervention of police, it would have been followed by further importations, at least for ongoing personal use. As already indicated, I have, however, been unable to find beyond reasonable doubt that this importation would have been followed by importations of larger quantities of the drug wholly or mainly for commercial purposes.
Indication of contrition or remorse
The concessions about the authenticity of the intercepted phone calls and text messages made by the offenders are said to indicate contrition or remorse by them. However, I consider that any such contrition or remorse was a minor factor in the making of those concessions compared with the tactical advantage of conducting their particular defence against the background of those concessions about the evidence against them.
As well, I note that no particular remorse or contrition was reported by the authors of the ICO assessments, although the offenders did seem to have demonstrated some regret at having been found out.
Mr Johnston’s attitude to the offence and the trial
The prosecutor submitted that Mr Johnston's claim that he did not realise the gravity of his offence should not be believed; however, while it is true that Mr Johnston and Mr McCauley made some efforts to blur their involvement in the importation, for instance by having the package delivered to Mr McCauley's grandmother, this may be explained by the convenience of having a valuable package delivered to an address where someone was generally home during the day. Furthermore, Mr Johnston's claim of ignorance of the gravity of his offence is supported by his failure to take any particular care to avoid incriminating phone calls or to disguise his Western Union transaction.
I am not convinced by defence counsel's submissions that the phone calls Mr Johnston made from Thailand to the AFP showed him accepting his own wrongdoing and finding out the best way to come back and effectively deal with the consequences of his conduct. It seems to me more likely that those phone calls reflected his fear of finding himself in a Thai prison or subject to the Thai legal system.
On the other hand, those phone calls do seem to support Mr Johnston's claimed failure to appreciate that his actions constituted not a minor drug offence but a serious offence with a very high penalty.
Effect on ACT supply of cocaine
I also note the prosecutor's submission that, whatever the offenders' intentions in relation to the cocaine, their actions, if successful, would have briefly increased the total supply of cocaine available in the ACT.
Conclusions about gravity
Taking all those matters into account, these offences are, in my view, fairly low-range examples of an objectively serious offence.
Subjective circumstances
I have also had regard in this sentencing to the subjective circumstances of each offender.
First, I note that Mr McCauley and Mr Johnston are both reported to have complied satisfactorily with their bail conditions throughout the two years before their trial.
Mr Johnston
Criminal history
Mr Johnston is now 26. His criminal history in the ACT consists of a drink-driving offence and a contravention of the law relating to motorcycle helmets.
Upbringing and background
Mr Johnston had a difficult childhood, during which both his parents engaged in substance abuse, provided him with little family support over time, and separated when he was about 10.
Mr Johnston is currently in a relationship with a woman who is employed and does not use drugs. She gave evidence:
(a)that Mr Johnston no longer participates in the drug culture and that if he did, their relationship would be over;
(b)that Mr Johnston no longer associates with Mr McCauley;
(c)that Mr Johnston is employed as a full‑time duty manager at a hotel in Canberra;
(d)that she and Mr Johnston were both doing shift work and that they tried to organise their shifts so that their time off coincided and they could spend that time together;
(e)that Mr Johnston's associate, Ambrose, whose drug use was the subject of evidence at the trial and who is mentioned in the ICO assessment as possibly planning to move in with Mr Johnston and his partner, is still working in the mining industry, where he is subject to regular urinalysis, and would not engage in drug use around her, Mr Johnston's partner, because he knows it is not acceptable to her; and
(f)finally, that she understood and was willing to put up with the intrusive aspects of an ICO if such an order were made.
Education and employment
Mr Johnston's education was somewhat disrupted due to his behavioural issues, but he completed Year 12 through CIT when he was 20. He has since achieved an Advanced Diploma in International Hotel and Resort Management and is employed by two local businesses in hospitality-related positions.
Friends
Mr Johnston says that his current friendship group does not involve anyone who uses drugs or has a criminal history.
Health
Since being charged with the current offence Mr Johnston has seen a psychologist nine times for help with depression and anxiety. He claims to remain depressed, but to manage this by regular gym attendance.
Drug and alcohol use
Mr Johnston began alcohol use at age 12 and by 17 was drinking, and binge-drinking, regularly. He seems to have given up alcohol in 2014. He has used a variety of illicit substances over time, and for several years before he was charged he was using cocaine and MDMA regularly.
As mentioned, the evidence at trial was that Mr Johnston was a very heavy user of cocaine. There is also evidence that after his arrest, and despite being released on bail, Mr Johnston immediately stopped cocaine use and never once relapsed. He has returned negative results for all urinalysis since being released on bail more than two years ago.
Defence counsel pointed out that Mr Johnston had attended drug counselling from the time of his release on bail until June 2015, but his immediate cessation of cocaine use suggests that there was nothing stopping Mr Johnston from abandoning cocaine use at any time prior to his arrest either and, in particular, no unconquerable physical need leading to physically unpleasant withdrawal symptoms.
This is not to underestimate Mr Johnston's achievement in giving up cocaine, as it were, overnight, but it does highlight the fact that his continued and substantial cocaine use before he was arrested remained within his control.
Rehabilitation
As to rehabilitation, I have already noted Mr Johnston's claim to have given up cocaine use completely with counselling support, and there is no evidence casting any doubt on that claim.
The prosecutor conceded in oral submissions that Mr Johnston had, more generally, good prospects of rehabilitation.
Counsel for Mr Johnston submitted that Mr Johnston's successful completion of his studies, full‑time employment, current relationship and separation from former associates, including Mr McCauley, supported the ICO assessor’s conclusion that there was a low risk of his re-offending. Mr Johnston was assessed as suitable for an ICO.
Mr McCauley
Criminal history
Mr McCauley is now 24. His criminal history involves a common assault ... offence and several traffic and dishonesty offences ....
Upbringing and background
Mr McCauley lives with his mother, who separated from Mr McCauley's father shortly after Mr McCauley was born. Mr McCauley has had no contact with his biological father, but it seems that for some years his mother had a partner who abused alcohol and other drugs and committed acts of family violence, and that during that relationship his mother also abused alcohol and other drugs.
Mr McCauley's mother has recently been diagnosed with cancer, and he hopes to be able to support her through her treatment. He has an older sister who is supportive of him, as are his grandparents and an aunt. Mr McCauley has been in a relationship for around six months and his partner has confirmed her support for him if he is released on an ICO.
Education and employment
Mr McCauley struggled at school and did not complete his Year 10 Certificate.
Mr McCauley has been working as a renderer, but is dependent on the demand for such work, which has not been high over the summer months. Counsel for Mr McCauley said that the routine summer slowdown in the construction industry may explain the suggestion in the ICO assessment prepared in January this year that Mr McCauley is "not currently working”.
He has plans to start a renovation business, apparently with the support of his step-grandfather, depending on the outcome of this sentencing.
Gambling
Worryingly, it seems that Mr McCauley has been and still is a regular gambler, and that although he claims to be a successful gambler, he also admits to having lost large amounts of money in the past. Continued gambling can only put Mr McCauley at constant risk of financial difficulties that could lead him into further criminal behaviour.
Health
Mr McCauley has a heart condition connected with stress and anxiety for which he is medicated. He has been stressed by the ICO assessment process, and by his mother's illness, but does not appear to be receiving any psychological help with this stress.
Rehabilitation
Mr McCauley also claims to have given up using illicit drugs, and returned negative results to all seven tests administered during the ICO assessment process. His reported compliance with his bail conditions over the previous two years also supports his claim of avoiding illicit drug use during that period.
However, there are other aspects of Mr McCauley's circumstances that remain of concern, especially his relatively insecure employment prospects and his gambling.
The ICO assessor reports apparently inconsistent claims by Mr McCauley that he only gambled when he used illicit drugs, but that he has continued to gamble during his assessment period while also returning negative drug tests. The prosecutor noted that Mr McCauley's prospects of rehabilitation are less good than Mr Johnston's, mentioning, in particular, that he has not yet engaged in pro-social activities such as finding stable employment and abandoning his drug-using associates, but has apparently continued his gambling.
The prosecutor says that Mr McCauley is unwilling to accept help from Corrective Services, but this seems to be based on relatively limited comments in the ICO assessment report. On the other hand, Mr McCauley does seem to have substantial family support, especially from female relatives but also, notably, from his step-grandfather. Mr McCauley is assessed as at a medium to high risk of general re-offending, but has been assessed as suitable for an ICO.
I accept the prosecutor's submission that Mr McCauley's current rehabilitation prospects appear less good than Mr Johnston's. However, I also consider that Mr Johnston, who is both older and more intelligent, has a greater capacity than Mr McCauley to act in his own interests by recognising and meeting the expectations of others, and that these different capacities may explain much of the difference in the apparent willingness of the two men to rehabilitate themselves.
Mr McCauley is also noticeably less articulate than Mr Johnston. Mr McCauley's counsel suggested that some of the problems identified by the ICO assessor reflect not a failure by Mr McCauley to be frank but a failure of communication between Mr McCauley and the assessor, and I would not exclude that possibility.
Responsibility for the offence
I turn now to responsibility for the offence. The evidence is that Mr Johnston was the driving force in this offence, in that he was the one who had travelled to Thailand and met Victor and he was the one who made all the arrangements with Victor for the importation. Mr McCauley, who is apparently a reluctant traveller, was, however, clearly an enthusiastic participant in the enterprise, including by arranging for his grandmother to receive the parcel.
The evidence suggests that the fact that he later began, apparently, to regret the extent of his commitment did not reflect any kind of remorse, only a shortage of funds.
The prosecutor, while noting that Mr McCauley's role in the offence was essential, submitted that the objective seriousness of his conduct was lower than that of Mr Johnston's conduct because Mr McCauley was only planning to sell cocaine to his friends rather than to the general public, as Mr Johnston was said to be planning. However, since I have not found that when he imported the cocaine Mr Johnston had a formed intention to sell it to the general public, this submission seems to go nowhere.
I accept the proposition that Mr Johnston carries a greater responsibility than Mr McCauley for the offending and for that reason might deserve a longer sentence. On the other hand, his better rehabilitation prospects than Mr McCauley might suggest a shorter sentence. However, given that Mr McCauley's poorer rehabilitation prospects at this stage seem to reflect significantly greater immaturity and lack of sophistication, Mr McCauley's lesser culpability suggests to me that it would be appropriate to impose a slightly shorter sentence on Mr McCauley than on Mr Johnston.
Other sentencing considerations
General deterrence is a significant sentencing purpose in relation to drug importation offences. Personal deterrence may be slightly less significant in this case, but I am satisfied that a sentence that meets the general deterrence requirement will also provide adequate personal deterrence in each case.
General principles – sentencing for drug offences
The prosecutor referred to the case of Nguyen; Pham at [72], which set out a number of general principles about sentencing for drug importation offences. Those principles were adopted, albeit paraphrased, in R v Karan [2013] NSWCCA 53 (Karan), in which the Court said at [54], among other things:
(a)the criminality of an offender must be assessed by reference to the involvement of the offender in the steps taken to effect the importation;
...
(e)although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported;
(f)it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit;
(g)the difficulty of detecting importation offences, and the great social consequences that follow, suggest that general deterrence is to be given chief weight on sentence to signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment;
(h)involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served.
The Court in Karan went on at [56]:
The principles set out above indicate the greater relevance of objective criminality and general deterrence to the sentencing of offenders engaged in drug importation. Therefore although the starting points incorporate subjective factors, such factors play a much lesser role.
Availability of ICOs
The prosecutor initially submitted that ICOs were not available to these two offenders because:
(a)the High Court case of The Queen v Pham [2015] HCA 39; 256 CLR 550 requires first instance courts to apply consistent sentencing principles for Commonwealth offences as laid down by intermediate appellate courts; and
(b)there have been no intermediate appellate court decisions saying that ICOs were available in such cases.
I accept the first part of this submission, that is, that I should in this sentencing have regard to sentencing practices for Commonwealth offences across Australia, in particular by following relevant decisions of intermediate appellate courts in other jurisdictions unless they are plainly wrong. The second proposition, that ICOs are not available in cases of the current kind because there are no intermediate appellate decisions saying that they are available, is less convincing.
The prosecutor did in discussion concede that there is no intermediate appellate decision saying that ICOs are not available in a case of this kind. Significantly, I understand that, in most jurisdictions in which ICOs are available, the maximum term of imprisonment that may be served by an ICO is two years. The ACT may be the only jurisdiction in which an ICO is available for a prison sentence of up to four years.
This means that cases from other jurisdictions, suggesting that some offences are too serious for ICOs to be contemplated because of the kinds of prison terms required, are not necessarily of direct relevance in the ACT, where the court may impose a relatively long sentence that may still be served by an ICO. The prosecutor has not identified cases suggesting that even where the prison term imposed would seem to be within range, the relative leniency inherent in an ICO is nevertheless unavailable.
The prosecutor cited the case of R v Cahill [2015] NSWCCA 53 as authority for the proposition that ICOs involve "a significant degree of leniency". This is no doubt correct, but they are, at least in the ACT system, only the next step down from a sentence of full‑time custody, and must be accepted as sitting at the more severe end of the spectrum of sentencing options available to an ACT court. This clearly does not mean that they are necessarily available in all cases, but it does seem to mean that their impact should not be underestimated.
The prosecutor also mentioned the case of Di Tommaso v The Queen [2010] VSCA 178 (Di Tommaso) as showing that even being a relatively young offender does not entitle an offender to an ICO. It is, however, necessary to point out that in the particular case of Di Tommaso, an ICO would only have been available for a sentence no longer than two years.
As well as the cases I have already mentioned, the prosecutor has provided a list of comparable cases involving relatively small scale importations of cocaine either by people acting as couriers or by people importing on their own behalf, being the following cases:
Adegoke v R [2013] NSWCCA 193; 234 A Crim R 280
Chong v R [2011] NSWCCA 182
Harris (a Pseudonym) v The Queen [2016] VSCA 30
Manyathela v The Queen [2015] ACTCA 13
Ojielumhen v The Queen [2014] ACTCA 28
Omorogbe v R [2013] NSWCCA 201; 234 A Crim R 556
R v Onuorah [2009] NSWCCA 238; 76 NSWLR 1 (Onuorah)
R v Sutton [2013] QCA 151
Starmer v Regina [2008] NSWCCA 27 (Starmer).
The cases cited involve quantities of pure cocaine ranging from 32.4 gm up to 196 gm, pleas of guilty in almost all cases, and offenders of relatively good character, or at least without any significant criminal history. The sentences in those cases ranged from 30 months imprisonment, to be suspended after 18 months – Di Tommaso, which involved 34.5 gm of pure cocaine – to 8 years and 10 months, with a non-parole period of 4 years and 10 months (Onuorah, involving 107 gm of pure cocaine). The case involving the lowest quantity of pure cocaine, Starmer (32.4 gm), resulted in a sentence of three years imprisonment with an 18‑month non-parole period.
The prosecutor also noted that ICOs were available in all but four of the cases, but conceded that in all the other cases, ICOs were only available for sentences under two years imprisonment. Since the lowest sentence imposed in those cases was two and a half years, it is clear that ICOs were not a real option. Thus, nothing in particular can be taken from the fact that ICOs were not made.
Having regard to these comparable cases, I cannot see that sentences somewhere between three and four years would be clearly inappropriate in this case. Furthermore, while ICOs give an offender an opportunity to avoid full‑time custody, they also put an offender who is not seriously committed to rehabilitating himself at risk of serving a substantial part of the sentence in full‑time custody, possibly a greater part than would be served of a sentence that included a non-parole period or a period of suspension. That is, they provide a serious incentive to rehabilitation.
Other legal issues
Counsel for Mr Johnston, relying on the High Court case of Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 (Barbaro), took exception to the prosecutor's submission that this case required sentences of full‑time imprisonment. In the High Court case of Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate and Ors [2015] HCA 56; 90 ALJR 113 at [40], the plurality said, in the context of whether the Barbaro prohibition applied in civil penalty cases:
Apart from the Federal Court, the issue also received some reasoned attention in the Victorian Court of Appeal, in Matthews v The Queen, in which a majority concluded that the reasoning in Barbaro is concerned only with the role of the Crown in the sentencing process and therefore does not apply to civil proceedings. The reasoning in Barbaro was subsequently considered by this court in CMB v Attorney-General (NSW). In that case, it was reaffirmed that in criminal proceedings the determination of the appropriate sentence rests solely with the court, but that the prosecutor remains under a duty to assist the court to avoid appealable error where a sentencing judge indicates the form (as opposed to the duration) of a proposed sentencing order and the prosecutor considers it to be manifestly inadequate.
I accept the prosecutor's submission that the effect of this explanation is that the Crown may not make submissions about numbers, for instance, the length of the sentence, but may make submissions about disposition, for instance, whether imprisonment is necessary or the form in which a term of imprisonment could appropriately be served. Accordingly, defence counsel's complaint must be rejected. It may be useful to mention at this point that the prosecutor also noted that Barbaro does not restrict defence counsel in the sentencing submissions they may make.
Sentence
Mr Johnston and Mr McCauley, please stand. For each of you I record a conviction on the charge of importing a marketable quantity of a border controlled drug, namely, cocaine.
Mr Johnston, I now sentence you to imprisonment for 3 years and 6 months, to run from today and therefore to expire on 7 September 2020.
Mr McCauley, I now sentence you to imprisonment for 3 years and 4 months, to run from today and therefore to expire on 7 July 2020.
I now order that in each case the sentence be served by way of an ICO, which I note is an available order in the current circumstances under s 20AB(1AA)(a)(ix) of the Crimes Act 1914 (Cth). For the purposes of s 11(3) of the Crimes (Sentencing) Act 2005 (ACT), which applies where an ICO is made in relation to a sentence of more than two years, I note that I consider this order to be appropriate in each case having regard to the following matters as referred to in that section:
(a)first, there was no particular victim of this offence, and although the offence would have caused harm to the community in general if it had been successful, that harm does not in my view render it inappropriate to make an ICO;
(b)secondly, neither offender poses any kind of specific risk to any member of the community; and
(c)finally, I have concluded that the offences for which I am sentencing were relatively less serious examples of the offence concerned.
Next, under s 19AB(3) of the Crimes Act, I decline to set a non-parole period for the sentences, and as required by s 19AB(4) of that Act I state my reason for so declining. That reason is that having regard to the nature and circumstances of the offences for which I am sentencing these two offenders, and to the antecedents of those offenders as already recorded in detail in these sentencing remarks, I have concluded that it is appropriate to order that the sentences be served by ICOs, and it would be inconsistent with those orders to set non-parole periods as well.
Now, for each of you the ICO is subject to the standard core conditions for ICOs.
You will be given a written copy of the ICO and it will be read to you by court officials, but I'll mention first the core conditions just briefly at this stage. They are:
(a)that you do not commit any offence punishable by imprisonment during the term of this order;
(b)that you tell your supervisor within two days if you are charged with any such offence;
(c)that you tell your supervisor if your contact details change;
(d)that you comply with all your supervisor's directions;
(e)that you abstain from alcohol and illicit drugs; and
(f)that you don't leave the ACT without getting approval from your supervisor.
Mr Johnston, I note the advice from your assessor that under the implementation of your ICO the following factor will be targeted: that is, ensuring by way of random drug screening tests that you are not engaging in any illicit substance use.
Mr McCauley, I note the advice from your assessor that under the implementation of your order the following matters will be targeted:
(a)employment;
(b)alcohol and drug use;
(c)your financial situation;
(d)your friends and associates;
(e)your attitude towards offending; and
(f)stress management.
I also add a special condition to each of your orders, being that each of you does not associate with the other during the term of the ICO. I note that this condition was suggested by Mr Johnston's counsel and was recommended by the ICO assessor for Mr McCauley.
Mr McCauley, for you I also add two further special conditions, being that your supervisor may give directions:
(a)excluding you from all areas in the ACT that host gambling facilities; and/or
(b)imposing an overnight curfew at your place of residence.
Finally, I add to each ICO a condition that before close of business today, which you should assume is 4 pm, you attend Corrective Services at level 1, 249 London Circuit to arrange your ICO supervision.
Explanation
Now, Mr Johnston and Mr McCauley, I need to try and explain what the significance of this order is to you. I assume that your assessors have already explained how it would work, and you may already have talked to your lawyers about it as well, but I need to say a few important things to you.
The sentences, as I have said, will start to run today. They will run for 3 years and 6 months for Mr Johnston and 3 years and 4 months for Mr McCauley.
If you comply with all your ICO requirements, do as your supervisors tell you and generally keep out of trouble, then at the end of that 3 years and 6 months or 3 years and 4 months you will have finished your sentences without any time in custody.
If you commit another offence during the term of your ICO that has got a prison sentence attached to it, and that means an offence that carries a maximum term of a prison sentence, not necessarily an offence that you get sentenced to imprisonment for, but any offence that carries a prison sentence as punishment, then you will come back here and I will have to re-sentence you.
The expectation under the legislation seems to be that, at that point, if you came back here having committed another offence that carries a prison term, you would be required to serve out the rest of your current term, that is, the sentence that I have just imposed, in full‑time custody. That's not an absolute guarantee, but you should assume that that is what will happen if you commit another offence with an imprisonment penalty during the term of your ICO.
Apart from committing offences, if you breach the ICO, or don't comply with the directions of your supervisor, then there are various things that your supervisor or Corrective Services can do in dealing with that, starting with giving you warnings (and I understand that you can't get more than three warnings in a year), and moving up to putting you in prison for short periods, either three days or seven days at a time, to remind you that this is serious.
Finally, if your supervisor or the ICO authorities are completely dissatisfied with your behaviour and with your compliance with the order, then the ICO may be cancelled, and you will then find yourself serving the rest of the sentence, so from that date until the end date that I have mentioned you already, 7 September 2020 for Mr Johnston and 7 July 2020 for Mr McCauley. That is, from the date when the order is cancelled until that date you will be in full‑time custody and there is a real risk, and you may recall there was some discussion about this at the last hearing of this matter, there is a real risk that that cancellation could happen without you ever coming back before the Court, that it could be done by the Sentence Administration Board and it wouldn't involve any court discretion.
You would each be well aware that this order will impose heavy restrictions on you for the next three years and several months. However, that is what it will take to keep you out of prison for that period, and you need to keep that in mind every day for the rest of the term of your sentence. However, if you manage to complete the term of your sentence under the ICO conditions you will almost certainly, both of you, be better placed for a successful and satisfying future than if you had simply served your sentences in prison and on parole. The choice is yours.
If you have any particular questions about these orders, please ask the court officials or your lawyers. You may sit down.
| I certify that the preceding one hundred and seventeen [117] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: Nishadee Perera Date: 26 April 2017 |
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