R v Miller

[2024] NSWDC 169

District Court

New South Wales

Medium Neutral Citation:

R v Miller [2024] NSWDC 169

Hearing dates:

10 May 2024

Date of orders:

10 May 2024

Decision date:

10 May 2024

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1    Scott Andrew Miller is convicted.

2    Taking into account the matter on the Form 1 and the discount for the plea of guilty, I impose a term of imprisonment of 4 years and 3 months with a non-parole period of 1 year to date from 16 May 2023. The non-parole period will expire on 15 May 2024 and the head sentence will expire on 15 August 2027.

3   The effect of the sentence I have imposed is to increase the offender’s present sentence by 12 months overall and his non-parole period by 3 months. This disposition maintains consistency between the ratio of the sentence imposed by Hock DCJ and the overall result.

4   The offender will be eligible to be released on parole on 15 May 2024.

Catchwords:

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

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Drug Misuse and Trafficking Act 1985

Cases Cited:

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

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Rex (Crown)
Scott Miller (Offender)

Representation:

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Gregory J Goold Solicitors (Offender)

File Number(s):

2022/143020

JUDGMENT

1. Scott Miller (the offender) appears for sentence after pleading guilty in the Local Court to an offence that between 7 April 2020 and 16 October 2020 in Haberfield he did supply a large commercial quantity of a prohibited drug namely at least 504 grams of methylamphetamine contrary to s 25(2) Drug Misuse and Trafficking Act 1985.

2. The maximum penalty for the offence is life imprisonment and/or a fine of 5,000 penalty units. Parliament has also prescribed a standard non-parole period of 15 years.

3. The offender also asks the Court to take into account an offence of participate in a criminal group contrary to s 93T Crimes Act 1900 on a Form 1, when passing sentence for the principal offence. The maximum penalty for the Form 1 offence is 5 years imprisonment.

Approach to Sentencing

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

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

6. 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).

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

Facts

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

Participate in criminal group – 1 March to 16 October 2020

9. In around 2011, a co-accused Sharon Vader (a pseudonym) met the offender and his wife at a party. Ms Vader had worked from time to time as an escort for the offender’s escort agency. At times, Ms Vader consumed drugs with the offender.

10. For several years prior to their arrest on 7 June 2020, the co-accused William Clift and Ms Vader were engaged in a network of criminal associates who trafficked in drugs and fraudulent identification information for financial gain.

11. From at least 2018 to his arrest in June 2021, Mr Clift regularly created false documents such as bank statements and identification cards. He was paid to obtain leases in false names so that his criminal associates could have safe houses to store and process drugs.

12. Mr Clift, Ms Vader and their criminal associates used encrypted communications such as Cipher phones, AN0M, Signal, WhatsApp and Wickr to discuss criminal activities. They also used phones subscribed to false identities.

13. The offender used encrypted applications and devices. He used handles including, amongst others, “Joker”, “IQ”, and “Kong” which he changed regularly. The offender communicated with Mr Clift and Ms Vader via Cipher phones which he supplied to Ms Vader.

14. In about March 2020, Ms Vader introduced Mr Clift to the offender at Mr Clift’s unit in Waterloo. They discussed Mr Clift being able to set up false businesses, websites and other fraudulent activities, including finding a place to rent. The offender was aware that Mr Clift was able to produce false identification documents.

15. Following this meeting, the offender introduced Ms Vader and Mr Clift to an associate of his who went by the pseudonym “Rico”. Rico resided in Dubai and was a senior figure in a syndicate involved in various criminal enterprises including the supply of methylamphetamine. Mr Clift and Ms Vader’s ability to create and use fraudulent documents and identities made them of use to Rico’s criminal activities.

16. The offender spoke with Mr Clift and Ms Vader about obtaining premises and identification information for the purpose of furthering the group’s criminal activities including the methylamphetamine supply business.

17. The offender regularly participated in encrypted conversations on Cipher phones with Mr Clift, Ms Vader and in relation to a drug safe house at Ramsay Street, Haberfield.

Supply large commercial quantity of methylamphetamine – 7 April to 16 October 2020

18. The safe house at Haberfield (the premises) is a two-storey brick building consisting of a shop front with a kitchen and two upstairs bedrooms. In April 2020 a real estate agent was advertising the premises for lease for $350 per week. After viewing the property on 7 April 2020, Ms Vader completed a rental application to the real estate agent on 14 April 2020, giving the false name “Katherine Evans” and providing other false details and documents. On 29 April 2020 Ms Vader signed the lease paperwork as Katherine Evans and provided a cheque for the bond and rent. The rent money was always paid in cash into the real estate’s bank account.

19. Over the following months Mr Clift and Ms Vader used the premises to store and package at least 3 kilograms of methylamphetamine. They received one-kilogram quantities via contactless drop-offs called “dead drops” where the drugs were left in a vehicle to be collected. They used the premises to package these quantities into amounts of an ounce (28 grams) or half an ounce (14 grams). Mr Clift and Ms Vader concealed the smaller quantities in plastic and foil food containers, including noodle cups and dried seaweed packets, which they would delicately open and then reseal using heat guns, glue guns, vacuum sealers, foil and plastic wrap. They then supplied the smaller quantities of methylamphetamine concealed inside the noodle cups to customers for financial reward.

20. On 15 July 2020, a listening device was installed by police. It recorded the use of various machines used in the packing process and many discussions between Mr Clift, Ms Vader, and their associates.

21. The offender was aware of Mr Clift and Ms Vader’s activities at the premises including using it to store, conceal, package and refine methylamphetamine. He was in regular contact with them throughout this period, communicating via encrypted devices and applications to avoid police interception of their communications.

22. The offender attended the premises on at least 11 occasions, sometimes with Mr Clift or Ms Vader but sometimes on his own. He had a key to the premises. Between 10 July and 16 October 2020, the offender collected a total of at least 504 grams of methylamphetamine from the premises for the purpose of supplying the drug to others for financial reward. He obtained these amounts on credit which caused tension and financial problems between Mr Clift, Ms Vader and the offender at times.

23. The occasions that the offender attended the premises are set out as follows.

24. On 11 July 2020 the offender attended between 11:31am and 5:27pm, entering and leaving via the rear yard. Ms Vader and Mr Clift were also at the property, having attended separately.

25. On 12 July 2020 the offender arrived at 2:07pm via the rear yard. Ms Vader arrived a few minutes later and opened the front door with a key. The offender left carrying a blue freezer bag at 2:30pm. He returned for a short period at 4:07pm. Ms Vader left at 4:07pm.

26. On 3 August 2020, the offender, Mr Clift and Ms Vader arrived at about 9:30pm. The offender left at 10:28pm carrying a plastic shopping bag. Mr Clift and Ms Vader left at 11:32pm. While inside together they discussed methods of importation and evading Customs as well as the chemicals used in manufacturing and refining methylamphetamine. Ms Vader organised a bag for the offender to take with him before he left.

27. On 4 August 2020 Mr Clift arrived in a taxi at 5:50pm. The offender entered via the rear yard at 5:53pm and left at 6:21pm. While inside together they talked about the phone “ringing off the hook” due to the demand for methylamphetamine, the methylamphetamine being refined having a “gluggy” consistency and walking out of the building separately to avoid detection.

28. On 25 August 2020, the offender arrived at 3:58pm in his vehicle and entered via the rear yard. He left at 4:02pm and stopped to use his mobile phone in the rear yard. He returned with Ms Vader at 5:32pm entering via the front door. She was carrying various bags and the offender was carrying a large white shopping bad and a freezer style shopping bag. Mr Clift arrived at 5:37pm with a backpack. They each left and returned multiple times before Mr Clift ultimately exited via the rear yard at 8:36pm, Ms Vader leaving the shop at 9:13pm carrying a white bag with a coloured pattern and the offender leaving at 9:52pm via the rear yard.

29. While they were inside the premises on 25 August 2020, they discussed sending packages around Australia via post and via MBE. Mr Clift and Ms Vader also discussed the method they were using to refine the moist methylamphetamine.

30. On 27 August 2020, the offender arrived at 11:15am via the front door. While inside alone he moved items around and opened cupboard doors. Ms Vader arrived at 11:40am carrying various bags and Mr Clift at 12:09pm with a bag. At 12:59pm, a white courier van arrived and the driver delivered a red bag that contained 1 kilogram of methylamphetamine to be processed and packaged by Mr Clift and Ms Vader. Ms Vader left at 1:15pm and retuned at 2:45pm carrying a black handbag and 3 boxes of noodle cups. Mr Clift and the offender left at 4:06pm.

31. While in the premises on 27 August 2020, the offender said, “the prices are good” and that the methylamphetamine “looks like good quality”. They talked about the prohibited drug gamma butyrolactone and a “pick up”. The offender also talked about drug prices and told Ms Vader that he was selling an ounce of methylamphetamine for $5,000 to $10,000.

32. On 29 August 2020, the offender and an unknown woman arrived in a vehicle and unlocked the door at 6am. They stayed for 10 minutes before leaving and locking the door with a key.

33. On 31 August 2020 Mr Clift arrived at 4:13pm. The offender and the same unknown women arrived at 4:32pm in a charcoal coloured vehicle. The offender got out of the car and went inside, followed by his female associate knocking on the door and the offender letting her in at 5:08pm. When he left, the offender was carrying a white object and a cup of noodles with intact plastic wrapping around it. Mr Clift left at 5:16pm. While the offender and Mr Clift were inside there was the noise of various machines such as a centrifuge, drying machine and mixing as they worked, dried and packaged the methylamphetamine.

34. On 4 September 2020 Ms Vader arrived at 12:32pm. She came and went throughout the afternoon. Mr Clift arrived at 1:44pm and left at 3:28pm. At around 3:26pm Ms Vader and Mr Clift collected 1 kilogram of methylamphetamine from a dead drop in a van where they had left a cash payment. The offender arrived at 7:55pm and left via the rear lane at 8:53pm. Ms Vader left at 4am on 5 September 2020. While they were inside the premises together they discussed phones and how the “shards” of methylamphetamine were “heaps cleaner” and “different to the last one”. Ms Vader also told the offender that she had seen the person doing the dead drop that afternoon.

35. On 21 September 2020, Ms Vader arrived at 2pm. While inside she changed her clothes. She left and returned a few times carrying various things and ultimately leaving at 4:35pm. The offender arrived at 5:26pm carrying nothing. He opened the door without a key and left at 5:30pm carrying a clear plastic bag with 2-3 noodle cups inside.

36. On 1 October 2020 at 8:15pm Ms Vader arrived carrying multiple plastic bags. The offender arrived at 8:20pm carrying a backpack and opening the door with a key. Ms Vader exited at 8:40pm carrying a plastic bag which contained a box of noodle cups. She returned 2 minutes later without the bag. She left again and returned carrying a different plastic bag. By this process she had collected another 1 kilogram dead drop of methylamphetamine. The offender left with his backpack at 10:13pm. While they were in the premises together they used the money counter to count approximately $100,000 in cash which was revenue from the drug sales. They moved noodle cups around and worked on packaging methylamphetamine inside noodle cups and seaweed packages. They discussed the ledger that Ms Vader and Mr Clift prepared at the offender’s request with Ms Vader saying that “the price has come down a bit” and “depends what the bag weighs”. They also discussed a person who was offering to buy half a kilogram of methylamphetamine and that would make thousands of dollars, perhaps $120,000, in profit. Ms Vader told the offender that certain noodles were his.

37. On 15 October 2020, Mr Clift and Ms Vader removed their equipment and abandoned the location. Much of the equipment was moved to Ms Vader’s self-storage unit at Kennard’s Petersham which she leased using a fraudulent driver’s licence provided by Mr Clift.

38. In the middle of October, the real estate agent contacted “Katherine Evans”, Ms Vader’s fraudulent identity, in relation to late rent payments. Upon receiving no response, they made further efforts to contact her and, in the process, discovered that the documents submitted in support of the rental application were fraudulent.

39. On 13 November 2020 police executed a crime scene warrant at the premises. Trace amounts of methylamphetamine were located inside the oven, on the office floor and in a bowl in the bin. All the equipment which had been used to refine and package the methylamphetamine had been removed.

40. When police searched Mr Clift’s storage unit in Alexandria on 7 June 2021, they located a handwritten spreadsheet which set out the accounts in relation to 3 kilograms of methylamphetamine that were processed, packaged and supplied from the premises. The ledger set out roles, outgoings and incoming money, recording thousands of dollars of profit. References to “Kong” and “Joker” in these ledgers are references to the offender and the handles he used on encrypted messaging platforms. Police also located various items which could be used to refine and package methylamphetamine, including a large number of boxes containing glass beakers and laboratory equipment, pill presses, a Thermoline heater circulator, scales, a plastic wrap sealer and bunches of Ziplock bags.

41. When police searched Mr Clift’s residence in Redfern on 7 June 2021, they located a typed spreadsheet summarising the financial arrangements of 4 kilograms of methylamphetamine from the premises. It recorded the offender, who was again referred to as “Joker”, as receiving $120,845 in profit. They also located many handwritten drug ledgers and various items that could be used to refine and pack drugs in concealed packaging, including an air compressor, staplegun, glues, cutting blades and foil tape among other items.

Post arrest interviews

42. When arrested on 7 June 2021, Mr Clift and Ms Vader declined to be interviewed.

43. On 2 December 2021 and 28 February 2022, Ms Vader voluntarily took part in recorded interviews in which she made extensive admissions. She said that she and Mr Clift worked for the offender, that he was their boss and had instructed them to obtain the premises and that the offender had arranged the 3 or 4 one-kilogram dead drops of methylamphetamine. It is not alleged that the offender was Ms Vader or Mr Clift’s boss, nor that he instructed them to obtain the premises, nor that he had arranged the delivery of methylamphetamine.

44. The offender was offered an interview on 9 December 2021 which he declined. The offender was charged on 17 May 2022.

Pre-Release Report

45. The Court received a Pre-Release Report (PRR) dated 23 October 2023, that was prepared prior to his first eligibility for release on parole on 15 February 2024. The following salient points can be taken from the PRR.

46. The offender has stable accommodation to go to on his release and the support of his family. He intends to seek mental health treatment in the community on his release and is prepared to undertake drug counselling.

47. The offender has had a high classification for most of his time in custody, because of this unresolved charge. He has not incurred any offences in custody, has displayed a positive attitude and been commended by staff. He is deemed suitable for supervision. He has engaged in courses that were available to him as an unsentenced inmate. He has been employed in a number of responsible positions in the prison. He is engaged in studying for a university degree in construction management.

48. He is deemed as a medium-low risk of reoffending. A comprehensive supervision plan has been devised to assist the offender to engage in drug and mental health treatment in the community. The offender has good insight into his need for such intervention and is motivated to change.

49. The author’s overall assessment of the offender was that no further rehabilitative benefit would be achieved by keeping him in custody.

The Offender’s Case on Sentence

50. The offender tendered the following documents:

1. Affidavit of the offender dated 29 April 2024;

2. Report of John Machlin, clinical psychologist, dated 21 October 2022;

3. Letter from Trent Marr dated 8 April 2024;

4. Academic record from Curtain University dated 8 April 2024;

5. Peer mentor program certificate of achievement;

6. Intensive seven-day program certificate;

7. Enough is Enough Anti-Violence Movement certificate of participation;

8. Letter from Jennifer and Barry Miller dated 11 April 2024; and

9. Affidavit of Julie Nguyen dated 3 May 2024;

10. Letter from the offender dated 10 May 2024 relating to the conditions of his incarceration.

51. The following is precis of the evidence relied on by the offender.

52. The offender was born in 1975. He was raised in the Northern Beaches with one older sister. His father was an insurance assessor, and his mother was a swimming teacher.

53. He described his family environment to Mr Machlin as loving and harmonious. He denied any incidence of domestic violence, substance use or mental illness during his childhood.

54. The offender reported that his parents were not rich, but they provided him and his sister with everything they needed, including supporting the offender in his sporting interests. From a young age, the offender was involved in competitive swimming which he pursued to an elite level.

55. The offender attended primary school at Elanora Heights where he reported no significant educational, social or behavioural problems. He relayed only adverse memories of high school in Narrabeen to Mr Machlin, stating that his success in the pool attracted scorn and jealously from his peers and he was continuously teased for shaving his body. Academically he performed below his potential as he was often tired from early morning training.

51. At age 16 the offender went on scholarship to the Australian Institute of Sport (AIS) in Canberra. This required the offender to travel to Canberra and enter the swimming program. He was the youngest male to receive the scholarship.

52. He completed Years 11 and 12 at Lake Ginninderra College in Canberra. By this stage, his international swimming career was underway, and his education became less of a priority. In his affidavit the offender stated that he found the separation from his parents, friends and swimming companions to be difficult. He felt that his training was all about achieving a result for the country at the expense of everything else in his life.

53. The offender was a national junior record holder in multiple swimming and surf-life saving events. During the last two years of school, he travelled internationally including a three-month training program in Europe. He swam for Australia at the Pan Pacific Games at age 18 and at the Commonwealth Games at age 19 where he won two gold medals, a silver and a bronze.

54. The offender was favoured to win gold in the butterfly at the Atlanta Olympics in 1996 after breaking the Olympic record in the heats. The disappointment of ending up with silver became a defining moment for him. He felt “shattered” to the extent that he felt his life was ruined. He recalled coming home and going through the motions of the ticker tape parade, still feeling devastated. Support from his family and praise from the media did not change how he felt.

55. Following this, his swimming performance was patchy. Corporate sponsorships came with expectations both in and out of the pool and he struggled to find the same motivation that propelled him in his youth. The offender’s mother reported to Mr Machlin that the offender struggled with media attention both during his swimming career and after his retirement.

56. His public profile following his return from the Atlanta Olympics led to the offender meeting his first wife, whom he married in 1999. He moved back to Sydney from Canberra. He was first introduced to personal drug use through connections of his first wife in the fashion and media industry. He recognised in his affidavit that this was the start of his involvement with drug abuse. His drug use contributed to the break down of his first marriage which ended after three or four years.

57. The offender missed out on selection for the 2000 Sydney Olympics as a result of his drug use, a shoulder injury and later an ankle injury. He retired from swimming in February 2004.

58. Between 2004 and 2008, the offender worked in various administrative type positions, until with the help of a mortgage over his parent’s property he entered into the supply of “pink bats”. This enterprise was a failure and resulted in a significant debt to the Commonwealth Bank which was secured against his parent’s property. The impact of this loss and the grief it caused his parent’s still weighs heavily on the offender.

59. In 2008 the offender first got into trouble for his involvement with methylamphetamine.

60. The offender met his second wife in 2010 and they now have a 12 year old son. They conducted a business known as Caller Pty Ltd coordinating the provision of escort agency services and providing escorts who worked for the business. The hours required in operating this business were long and occupied extensive night-time periods which resulted in the offender falling back into using methylamphetamine. He was assisted by one of the escorts in acquiring the drugs for his personal use.

61. Caller Pty Ltd was wound up in August 2013, following which the offender spent six months in a rehabilitation facility in Victoria.

62. After his time in the rehabilitation, the offender was employed with URM as a senior supervisor administering a fleet of 50 trucks and drivers. He remained in that position drug free for four years. It was also during this period that his first wife committed suicide in 2015.

63. In 2018 the offender purchased his own truck and dog trailer with a deposit of $150,000 from his personal savings and borrowings, and a further commercial loan of $150,000. By 2019 he found an investor and grew his fleet to four trucks and trailers, rented a yard in Bankstown and formed a team of drivers.

64. The advent of COVID-19 in 2020 resulted in the decline of this business when the economy suffered and travel was restricted. During this time, he returned to using methylamphetamine to cope with the stress of his declining business.

65. The offender-maintained contact with the escort from his previous business and it was through this contact that he became involved in the offending conduct. He states in his affidavit that during this time he was using methylamphetamine heavily.

66. The offender had contact with a sports psychologist during his swimming career, mainly while at the AIS and not as much after the Atlanta Olympics.

67. He felt abandoned by his sport when he retired from swimming, conveying to Mr Machlin that he was taken from his home environment as a child where his life was built around a swimming race. He felt that when it was over that they turned their backs on him, leaving him “damaged” with “no life skills, no education”.

68. The offender has served the entirety of his earlier sentence as an A2 classification prisoner in maximum security gaols.

69. The offender recalls waking up to an assault by a cellmate while in custody. In his struggle to defend himself he tore a cartilage in his knee which caused problems walking for months. He feels helpless that the media attention on his Court appearances makes him a target in custody and impacts his son who has been teased at school for having a father in custody and is seeing a child psychologist.

70. During his time in the Hunter Correctional Centre, the offender held the position of light engineering clerk for 12 months and in the past month has been requested to take on the position of “gym sweeper”, where he is required to supervise the gym and provide programs to inmates.

71. While in custody the offender has also participated in the Positive Lifestyle Program, Enough is Enough Program and the Hunter Peer Mentor Program (H-PMP). He has completed four units of an 18-unit course in applied science and building and construction management at Curtain University. He has obtained high distinctions in each of his completed units. Trent Marr, custodial case manager officer with Corrective Services NSW, stated in his letter to the Court that the offender’s participation in H-PMP can be described as “enthusiastic, he was proactive, helpful and supportive”. He has subsequently been invited back twice as a mentor to assist with the delivery of the program.

72. The offender remains close to his family. His mother suffers from emphysema and osteoporosis. She relies on a walker and numerous prescribed medications. His father is an insulin dependent diabetic and has a pacemaker due to atrial fibrillation. They struggle financially and do not have any family in Sydney to provide assistance. The offender’s mother reported to Mr Machlin that the offender often talks about how he wants to move closer to his parents to care for them upon his release from custody.

73. The offender acknowledges guilt for his offending conduct and expressed regret and remorse to Mr Machlin and in his affidavit. He has also expressed a desire to Mr Machlin to give back to the community upon his release from custody.

74. Mr Machlin states that the offender has suffered an Adjustment Disorder at various times in his life. He specifies this to be an Adjustment Disorder with depression or an Adjustment Disorder with Mixed Anxiety and Depressed Mood. This reflects the offender’s distress and impairment of functioning in response to an identifiable set of stressors. Mr Machlin further commented that there may have also been times where a diagnosis of Major Depressive Disorder was appropriate when his symptoms were especially pronounced.

75. Mr Machlin also diagnosed the offender as having a Stimulant Use Disorder at the time of his offending conduct which is now in remission.

76. Mr Machlin opined that it is well-recognised that professional athletes face an elevated risk of mental health problems, including depression, anxiety and substance use. Athletes entering elite sport are driven toward perfecting themselves and achieving a specific goal of winning. This requires investments of time and energy while making extensive personal sacrifices such as forsaking education. They may experience a loss of personal autonomy and experience disempowerment and despair when they fall short of their goals. Recognition and financial reward often cease on retirement and losing their sense of purpose can leave them feeling empty. Post-retirement athletes are also vulnerable to difficulties transitioning into new careers. Mr Machlin stated that each of these challenges applies to the offender.

77. Mr Machlin recommended in his report that the offender engage in further rehabilitative measures as the opportunities arise and upon his release from custody, counselling with a private psychologist.

78. The offender in his letter to the Court stated that he has been in 24 hour lockdown for more than 180 days during his incarceration. He contracted COVID-19 twice and was sent to Silverwater to be placed in quarantine for one month on both occasions. He went close to 20 months without an in person visit with any of his family, including his young son.

Consideration

Objective seriousness

84. The offence involves some objective gravity.

85. The amount of the drug was significant, but the amount specified in the charge was only just over the large commercial quantity of 500 grams. The specified amount of 504g was the amount of the drugs personally received by the offender that he intended to supply to others. It is an aggravating feature that some of the drugs were disseminated into the community.

86. I am satisfied beyond reasonable doubt from the Agreed Facts that the offender received drugs on credit and on sold the drugs to others for financial gain, albeit that the money obtained and a proportion of the drugs were used to support his own serious drug habit.

87. The offender was well aware of the activities of the co-offenders at the premises that he visited regularly for different purposes. He was an active participant in discussions about drug supply. He took significant steps to avoid detection including the use of different vehicles, encrypted communication devices and leaving the premises separately to others. He was aware that the use of the premises had been arranged fraudulently and that the co-offenders were undertaking serious steps to conceal the drugs.

88. The offender introduced the co-offenders to the overseas upline supplier on the understanding that they would all benefit from the fraudulent lease of the premises. The offender was trusted by all of the people in the organisation. He had a key to the premises, received drugs on credit and had intimate knowledge of the activities of the organisation. It was not alleged that he was responsible for any part of running the organisation.

89. The offender was suffering from a mental condition arising from his status as an elite swimmer. He used drugs as a maladaptive coping mechanism to deal with the loss of his sporting career through injury and a lack of form. His mental condition and subsequent drug use led to his substance use disorder which further impacted his judgement. I am satisfied that his moral culpability for the offence is reduced to some extent.

90. I have taken into account the maximum penalty.

Deterrence

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

92. General deterrence may be afforded less weight where an offender suffers from a mental condition, because they are not an appropriate person to be made an example of. The offender suffered from an Adjustment Disorder with Anxiety and Major Depressive Disorder at times. I am satisfied that there is a causal link between his mental condition and the poor decisions that he made at the time of offending. It is appropriate to moderate the weight to be afforded to general deterrence.

93. There is very little need for specific deterrence. The offender has been in custody since February 2021. The material from Corrective Services indicates that he has served the majority of his sentence in maximum security because he has had unresolved charges. He has been a model prisoner and Corrective Services believe that he will gain no further rehabilitative benefit from continued incarceration. He has expressed remorse and I am satisfied that he has achieved substantial rehabilitation from imprisonment to date.

Form 1 offence

94. The criminal group of which the offender was a member was a highly organised and sophisticated group. He was a trusted senior member of the group and interacted regularly with the others. Within the bounds of the relevant principles to be applied, the sentence to be imposed for the principal offence will be increased to take into account the Form 1 offence.

Aggravating factors

95. There are no relevant aggravating factors.

Mitigating factors

96. The offender is unlikely to reoffend: s 21A(3)(g) Crimes (Sentencing Procedure) Act 1999. The offender has remained abstinent in custody and he is prepared to undertake further drug rehabilitation in the community. He has plans for the future and a family to care for. He will have the added scrutiny of the media and his public notoriety when he is released into the community. I am satisfied that his lengthy stint in custody will have a life long salutary impact on him and that he is unlikely to reoffend.

97. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has undertaken work and study whilst in custody and proved himself to be a model prisoner. Corrective Services report that he has already achieved substantial rehabilitative benefit from his time spent in custody.

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

99. I am satisfied that the offender’s time in custody has been made more onerous by the restrictions imposed to deal with the COVID-19 pandemic, his mental condition and his public notoriety.

100. The offender could not be sentenced for this offence at the same time as his earlier matter, because he did not accept Ms Vader’s allegations against him as truthful. The Crown have now accepted his plea on a basis that makes unnecessary to decide that issue. Had he been sentenced for this matter on 10 November 2022, when he was sentenced for the other matters by Hock DCJ, he would have received a substantial period of accumulation on that sentence. I must also ensure that the sentence imposed for this offence is consistent with the earlier sentence.

101. I must also have regard to parity. Ms Vader and Mr Clift were sentenced on the basis that they supplied at least 3kgs of methylamphetamine, when compared to 504g for the offender. Mr Clift’s indicative sentence of imprisonment for the principal offence had an undiscounted starting point of 7 years and 8 months. Ms Vader’s undiscounted starting point was 7 years. For transparency, I will impose a sentence on the offender with an undiscounted starting point of 5 years and 8 months.

Penalty

102. Scott Andrew Miller is convicted.

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

104. I make a finding of special circumstances. For the reasons given, had the offender been sentenced for this offence in 2022 when he was dealt with for other matters it would have been partially accumulated on that sentence. This is an unusual case. It is rare for the Court to be able to assess an offender at the end of their non-parole period. Taking into account all of the evidence, I accept the recommendation of Corrective Services NSW that the point has been reached where no further rehabilitative benefit will be obtained by keeping the offender in custody.

105. Taking into account the matter on the Form 1 and the discount for the plea of guilty, I impose a term of imprisonment of 4 years and 3 months with a non-parole period of 1 year to date from 16 May 2023. The non-parole period will expire on 15 May 2024 and the head sentence will expire on 15 August 2027.

106. The effect of the sentence I have imposed is to increase the offender’s head sentence by 12 months overall and his non-parole period by 3 months. This disposition maintains consistency between the ratio of the sentence imposed by Hock DCJ and the overall result.

107. The offender will be eligible to be released on parole on 15 May 2024.

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Decision last updated: 14 May 2024