R v Morris
[2017] VCC 1152
•16 August 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publishing |
CR 16-02228
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARK ANDREW MORRIS |
---
JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 August 2017 | |
DATE OF SENTENCE: | 16 August 2017 | |
CASE MAY BE CITED AS: | R v MORRIS | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1152 | |
REASONS FOR SENTENCE
---
Catchwords: Import a marketable quantity of border controlled drug. (196.4 grams pure cocaine)
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A Portelli | Commonwealth Director of Public Prosecutions |
| For the Accused | Ms F Todd | Stary, Norton and Halphen |
HIS HONOUR:
Mark Andrew MORRIS, you have pleaded guilty to one charge of importing a marketable quantity of a border controlled drug, contrary to s.307.2(1) of the Criminal Code (Cwth). The drug involved was cocaine.
You are 53 years old and have admitted a criminal history in your homeland, England.
Under the Criminal Code, a marketable quantity of cocaine is specified as being 2 grams or more, and below 2 kilograms. Two kilograms is therefore the threshold for commercial quantity. The pure weight of the cocaine imported by you was 196.4 grams.
The maximum penalty for this offence is, as you have heard, imprisonment for 25 years, or a very large fine, of about $900,000, or both.
Facts
The circumstances of your offending are set out in a short summary dated 8 August 2017, which was read aloud by the prosecutor, Mr Portelli. That summary was marked as Exhibit A on the plea. I was told by your counsel that this was an agreed summary, so I see no need to descend to the full details of the facts here. They are contained in that summary, and I will not stray beyond those agreed facts. Very briefly, as you know, on the morning of 16 September 2016, you arrived into Melbourne Airport on a flight from Jamaica via Los Angeles. Swabs of your phone and cabin luggage returned presumptive results for cocaine. You tried to explain that result away by admitting cocaine use in Jamaica. There was then another X-ray and a scan, which were not conclusive, and the matter then was referred to the Australian Federal Police, owing to the suspicions held. You told Border Force that they were wasting their time, and that you had nothing. You maintained that approach when Border Force made a formal request for a medical internal search, telling them they were wasting your time, that you had nothing, and that you wished to speak to a lawyer. You got legal advice, and then consented to a CT scan, and that scan disclosed the presence of a number of pellets in your body. You were arrested, and over the next few days, under guard, nature took its course, and you passed the 39 concealed pellets. You were interviewed at the end of that process, and you declined to comment, as was, of course, your right. You had, though, in fact, admitted to a doctor and to an Australian Federal Police member on the 17th that you had 39 pellets of coke secreted internally. Those pellets contained 295 grams of cream compressed powder which contained 66.6% cocaine, so that total mass therefore contained the 196.4 grams of pure cocaine.
The pure quantity was therefore 98 times the marketable quantity threshold, but only about one tenth of the commercial quantity threshold. There is a valuation statement and, I make due allowances for this style of statement. They do not pretend any precision, and they make assumptions about sale quantities and unit prices and purity percentage at sale, but the wholesale value was somewhere between $84,000 and $115,000, with a much higher street value, obviously, falling between $196.200 and $261,600. It demonstrates that which is perfectly obvious; cocaine is a highly valuable drug.
You pleaded guilty at the earliest stage, on 14 December 2016 at a committal mention. You have been in custody since your arrest, and you are evidently making good use of your time in custody.
Matters raised in mitigation
Your counsel, Ms Todd, conducted an excellent plea on your behalf. She left no stone unturned on your behalf. She was clearly, as you would have seen, very well prepared on your behalf, and had an obvious command of both the facts and the relevant law. In the course of the plea she raised a number of matters in mitigation. They were, chiefly:
· Your early guilty plea;
· The presence of some contrition or remorse;
· An increased custodial burden, in your case;
· She took me to your disadvantaged personal background and those circumstances leading to your descent into drug use and addiction, and she argued that those were, to some extent, not free choices made by you, and that there was therefore at least some reduction in your culpability, in that your crime was driven by your addiction;
· She argued that you had done well in custody to date, and that the court could find favourably as to your future prospects of rehabilitation;
· She relied upon a report from a psychologist, Carla Lechner, as well as character references and some hospital and medical records;
· She made some submissions as to your motivation or purpose in offending, and the nature and relative gravity of the offence;
· She also called your sister to give evidence on the plea. Your sister had also provided a written reference. Additionally, there were references from your wife, your sister in law, and a work colleague in England. You have been attending a number of sessions of drug counselling whilst you have been in custody;
Ms Todd conceded the seriousness of the offence and the inevitability of an immediate term of imprisonment, though she did not concede the inevitability of a term of such a dimension requiring the fixing of a non-parole period. She argued that it might be open to fix a recognisance release order. She in fact placed before me a couple of decisions, including a first instance sentence of one of my brother judges. If I might say so, that is not a helpful exercise, especially when the decision is an old one, from 2012, and involved a youthful offender, as it did (see Brown 2012 VCC 1640). The other case at least was a decision of the Court of Appeal, but had all manner of differences, including, importantly, the finding of exceptional circumstances in that case.
Prosecution submissions
The prosecutor, Mr Portelli, also made some brief oral submissions, but they supplemented the more detailed written sentencing submissions that have been marked as part of Exhibit A. I was reminded by the prosecutor of the provisions of s.16A(2) of the Crimes Act1914 (Cth), a provision which sets out many of the matters that I must have regard to under the Federal sentencing regime. The submissions, both written and oral, were quite uncontroversial, and mainly dealt with various matters of established principle, such as the relevance of the quantity of the drug, the significance of awareness or knowledge of the type of drug and the quantity, the importance of general deterrence and the need for adequate punishment in this sort of case. As to your instructions as to role and motive, whilst accepting that the materials established some problematic cocaine use by you, the Crown argued that there was no cogent evidence of your motivation here, that is, of your not intending any financial gain, or the suggestion of a large portion of the drug intended for personal use only. The prosecution reminded the Court that it is a complete defence to a charge of importing a marketable quantity if an offender proves that he neither intended to sell any of the drug nor believed that another person intended to sell any of the drug (see 307.2.4 of the Criminal Code). The Crown argued there was no cogent evidence in support of your claimed motive to keep half for personal use, but that, even if accepting your account, that this would place you as the principal, with no one above or no one below you in any hierarchy at all; that you have taken all these steps yourself, and were, on your account, the only person who had planned and executed this importation, which might be contrasted with the obviously inferior position of couriers in a larger hierarchy. You knew the amount and the nature of the drug, and had taken all these steps yourself to import it.
The prosecution argued that even on your own account to the psychologist, you intended to give half of the cocaine away as consideration for room and board. Now, the Crown argued that your account was implausible, given the circumstances of your leaving the country to obtain the drugs, and they argued that the usual or common sense inference as to financial motivation should be drawn here. The prosecutor referred me to some cases said to be in some way comparable, and to some matters of principle from many cases, including statements from the case of Nguyen & Phommalysack v R [2011] 31 VR 673. They argued that a sentence requiring the fixing of a non-parole period was really the only available disposition.
Background
I turn now quite briefly to your personal family background. It is referred to in great detail in your counsel’s written outline, which was marked as part of Exhibit 1, as well as in oral submissions that Ms Todd placed before me. It is also referred to in Ms Lechner’s report and the various letters placed before me. As I have said, your sister was called as a witness and expanded on many aspects of your background. I must say, I was most impressed by her evidence. She is clearly a witness of truth, and I do not doubt one word coming from her as to your early life. She is not just your sister, but happens also to have some relevant training as a family counsellor, and she has a degree also in psychology, I believe. I have no reason at all not to accept the family background that was placed before me. You are now 53 years of age. You were born on 28 March 1964. You were born in England and grew up in East London, in circumstances of deprivation and disadvantage, with a father who was lost often enough to prison, and a mother lost to addiction and mental health concerns. She tried to end her life on more than one occasion. This all resulted in a complete lack of supervision for you, and a lack of decent adult role models in your formative years and, I suspect, beyond. Very limited schooling was your lot, as well as violence and ridicule at the hands of your father, when he was present. The house was obviously dysfunctional. You protected your younger sister, Lorraine, but seemingly bore the brunt of much of your parents’ failings. You were not protected by anyone. You were probably led astray by one of your older brothers into the world of drug use. Throw into the mix some sexual assaults by non-family members, we then have a picture of disadvantage that is pretty well complete. You left home aged 15, but obviously enough from your account, you wound up in boys’ homes, and then, later, prison. I do take into account, as your counsel urges me to, your disadvantaged background insofar as I am allowed to. You did not choose this background. Who on earth would? I suppose there might be some jaundiced observers, seeing this sort of plea conducted, who might say, "Well, so what of the background? That was all those years ago. This crime was in 2016. So what if you had this background?" The answer to that sort of approach is that I have to sentence the person who faces me in court; you. This is your background. Our backgrounds can very much shape our later lives and attitudes. They are not so easily shaken off, though it must be said your sister has risen above it, and, seemingly, you did yourself, in the way you established a very strong work attitude and ethic, and successful business. Even the most jaundiced observer would surely conclude that your background was a far-from-ideal background, with, undoubtedly, very poor adult role models who provided at best some poor examples to you. You have siblings, full or half, and many are struggling with addictions to drugs. You wound up in the criminal justice system over in England at a young age yourself. You learnt a trade in prison as a youngster, and then pursued an apprenticeship upon your release.
You were obviously exposed to drugs at an early enough age; the suggestion is 15 or 18 years of age, depending on which account I act on - it matters little which - and you have been deeply affected by the addiction, I am sure of that. You have functioned to some decent degree, with the ability to work and have a family. It was suggested you are a high-functioning addict, but I really wonder if such a thing exists. I doubt if it does. I am not so sure how high-functioning an addict you were, given your criminal history, given the various medical documents from England, speaking of hospital admissions connected to drug use or suicide attempts; not to mention, of course, your presence in the dock of this court, facing sentence for a serious crime punishable by a 25-year maximum term. However, I take your counsel’s use of the term as referring, really, to your ability to hold down regular employment and maintain relationships. In that sense, it might have some application. It appears that you have never been shy of hard work, and you have chosen to work, rather than sponge off welfare, which is obviously a big plus. You have run businesses, and you are, by trade, a heating engineer or plumber. You were married, but that marriage has broken down in the lead up to the offending, but you hold some real hopes of reconciliation upon your ultimate release.
You have a prior criminal history, though the sixth entry was not admitted, and nor was it proved against you by the Crown, so I ignore altogether that entry from July 1982. You have served a handful of prison sentences, mainly for dishonesty offences. Many of those appearances are quite dated. You did receive a three-year prison term, of which you served 14 months, for a conspiracy to defraud, related to credit card fraud. That was in 1998. In 2007 you received 11 months' imprisonment, and more recently, in June 2014, you received eight months' imprisonment for possession of some amphetamine. There is certainly nothing in your history as serious as this offending for which I must pass sentence. You have that criminal history, I cannot ignore it; but it is of no great relevance to my task.
Guilty Plea
I turn, then, to the matters raised in mitigation; firstly, your guilty plea. You have pleaded guilty. You have done that at the earliest stage. You are entitled to have that plea taken into account in your favour, and I do take it into account. The community has been spared the time, the cost and the effort of a committal hearing in the Magistrates' Court, or a trial up in this court. Witnesses have been spared the experience of giving evidence, owing to your taking early responsibility for your crime. The sentence I intend to impose is less than would have been imposed if you had been found guilty after a trial. You have facilitated the course of justice. You have also facilitated the course of justice by cooperating, to some extent, at least, with Border Force and the AFP, ultimately consenting to the CT scan and admitting the presence of the pellets, and then, of course, by pleading guilty at the earliest stage of the proceedings. This is all deserving of a substantial discount in sentence.
Contrition/remorse
Ms Todd suggested that I should find that you have some contrition or remorse. I have your guilty plea, but of course, it was an overwhelming case. I have the evidence and the letter of your sister, and as I have said, I was most impressed by her evidence. In the circumstances, I am prepared to find that you do harbour some contrition or remorse for your offending. I do take that into account in mitigation, as I am asked to.
Increased burden
Your counsel was arguing that there is likely to be, in your case, an increased custodial burden, courtesy of your being held in Australia, and hence being geographically removed from most of your family and friends. Well, what is clear is that you have entered this country on 16 September 2016, intending to commit this serious crime. Indeed, I am told that you departed overseas from Australia, intending to get the cocaine to bring it back in. You were committing a serious crime, and you knew that fact. It was very much premeditated. It was inevitable that if you were caught running the gauntlet, that this would be your plight, that is, isolation from loved ones. That was the clear risk, and you were prepared to shoulder that risk. However, again, there is the evidence of your sister that I return to, and she speaks of the difficulties for you in serving a sentence in this country, removed, as you are, from your immediate family, in the particular circumstances of your background. Your mother is elderly. She is terminally ill, and it is unlikely you will see her again, and, of course, that is very sad. You father is elderly. In each case, there is the present inability to mend some of those bridges, which I am sure you, and, I would hope, they feel need to be mended. Your sister describes this as all part of the healing process. You also know that your wife is struggling without you in some ways. In the circumstances, whilst I do not believe that I can assign enormous weight to your increased burden, owing to this isolation and separation, I do believe it is still open to me to give it at least some weight (see Estrada 2015 45 VR 286).
Rehabilitation
I am prepared to accept your counsel’s submissions that you do have quite favourable prospects of rehabilitation. Different adjectives were applied by your counsel to describe those prospects. You have the criminal history of which I spoke earlier, and whilst, of course, I cannot ignore it, as I have said already, it is not of any great relevance to my task. You have committed a number of offences over the years, of sufficient seriousness to receive those terms of imprisonment. I note that you are doing what you can do in prison to improve your chances in the future by doing such courses or certificates as are on offer to you in custody. There is a useful letter from the Caraniche program, dealing with the many sessions of counselling you have attended already. You are, then, it would seem to me, at least, sensibly dealing with drug issues whist in custody. You are also back doing some study after all these years, which, again, I think is a positive. If you can deal with your drug addiction issues, then obviously your prospects would be far stronger than if you cannot, and the signs are good at this point. I take into account your sister's description of her interaction with you whilst in custody. Yours is a long-term addiction, so of course it is naïve to think it is an easily broken habit. It is not, and you recognise that. I am impressed by your sister’s account of your developing insight and your recognition of the need for meaningful treatment. She also speaks of your sense of regret, not just for the crime, but regret also for other aspects in your life, including, of course, your broken marriage. You wish to return home, you hope, and seek to pick up that relationship with your wife. I hope you can. You have had, as I have said already, a very decent past employment record, and the references placed before me speak of your many other qualities. I am prepared to find, then, that you do have very decent prospects of rehabilitation. Those prospects will undoubtedly lie in another country, as it is certain that you will be deported, but that is neither here nor there. They are you prospects as I assess them. They are good, and that is what is important to my task.
You wish to be deported, and you look forward to that day, so your counsel, Ms Todd, quite explicitly stated that none of the mitigatory considerations sometimes arising where there is likely deportation had any application here. The principles from the case of Guden and that line of authority were explicitly and correctly disavowed by your counsel.
Background/Addiction/Report of Ms Lechner/ Reduced culpability
Your counsel made some submissions as to your addiction, the cause of the addiction, and sought to invoke some mitigatory weight from these factors. I have no reason to doubt that you had an addiction to cocaine. How and why did that commence? Did it follow on from your disadvantaged background and poor role models in your life, as a kind of response to that emotional and physical abuse I am satisfied you were privy to? Even if it did, what am I to make of that, given the premeditated and serious nature of this crime? There are other suggestions in the materials, including your wife’s letter, as to your drug use being a response to stresses in your later life. There is reference in Ms Lechner’s report to the stress from the breakdown of the marriage, and the role that had in your “running off the rails”, as is described in the report. Your counsel is arguing that you had a disadvantaged life, that drug use has to be seen in that context, that there was really no free choice, and hence the addiction was not some free decision taken, but rather, if you like, a state foisted upon you by your background. It is then said that this offence was committed primarily to maintain your habit, with no monetary reward in mind, that all these matters connect up to operate in a mitigatory fashion. As I say, the addiction is the easiest of the steps. Yes, you were addicted - I am satisfied of that - but the how and why involves speculation upon speculation. But even if it did not, I flagged my reservations as to your instructions to your counsel relating to your motivation for this offending. I am certainly not satisfied, on the balance of probabilities of your "account", as to the motivation for the offending, that is, the desire to obtain a substantial quantity of cocaine at cheaper prices than were available in Australia, and so in this way to secure your personal supply either in Victoria or South Australia. Your counsel submitted in her written outline that your offence took place primarily to maintain your habit. You told Ms Lechner that you came back to Australia in June 2016 with the last money you had. You told her, “I had no money or drugs, and got into a situation." You told her that you went to Jamaica to buy it, as it is too expensive here, and that you would have given half of the drugs away for room and board. This all raises more questions than answers, it seems to me. What money were you using to fund the purchases? Such a trip, that is, leaving Australia on 2 September and travelling halfway across the world to Jamaica, to meet a person whose name you had been given to get drugs predominantly for personal use strikes me as highly implausible. It is a very long way to go to get a personal supply of drugs. Flying out of Australia and then to Jamaica, and then LA, and then back to Australia, away for over a fortnight. All for the savings, when at every step you are incurring costs. How was all of this being funded? How much did you pay for the drugs? What debt for room and board could you possibly have incurred that would suggest the need to give away half of the amount you had brought back, when the wholesale value of the total amount was around $84,000 to $115,000? I really don’t know where the truth lies in any of this, but I certainly do not accept your "account", on the balance of probabilities. I say your "account", but there is no account from you in any police interview or statement. I have what you have told Ms Lechner, and I have your instructions to your counsel. As a matter of fairness, I put your counsel on notice as to my reservations as to your account and my difficulty in accepting it on the state of the materials then placed before me. Ms Todd chose not to call you to give evidence. Incidentally, your own account is that you were the principal. I am certainly not prepared to act on your account as to your not being motivated by some financial reward. The fact is, even on your own version, the cocaine was going to be in part used as a valuable commodity, to deal with costs incurred for room and board. The suggestion, then, in the written submissions as to the harm from the importation substantially stopping with you is not borne out, even on your account.
There is already the reduction of your culpability flowing from your disadvantaged background, and I have taken that into account. That background may well have played some role in predisposing you to drug use, or maybe there were later events, including stress in your life, or maybe even a genetic predisposition. Who knows? Whatever the pathway or the cause, though, I am satisfied that you had an addiction to drugs, and I am prepared to give that some weight, by way of reduction of culpability as well.
Possibly it is not as simple as saying that you have woken up one day and exercised some free choice to use drugs. It probably never is that simple, and probably every person who uses drugs and forms an addiction has a complex array of personal factors and features, or traits or historical issues which have encouraged or driven the first use and then the addiction. It is almost always nigh on impossible to unpack these contributions, and that is the position here. The fact is, very many of those bringing drugs into the country or dealing with them within this country have some level of dependency to drugs. So I do not believe your drug addiction is greatly mitigatory in the circumstances of this case, and I am not satisfied, on the balance of probabilities of your account, as to lack of financial motivation. I believe that, as is usually the position, the motive here was financial gain - I am satisfied of that beyond reasonable doubt - though I am prepared to accept that at least some portion of the cocaine might have been used by you.
On any version placed before me, yours was obviously very much a calculated decision, and you had a significant time to rethink your involvement. Yours was obviously, as I have said, to some extent, a financial decision. You are charged with importing this cocaine. You did. You say no one else was involved at all. It follows that your involvement was obviously absolutely fundamental to the success of this importation. It was, after all, you who physically imported the drug. You have committed, by your actions, this serious offence, which, as you know is punishable by a 25-year maximum. Your offending is obviously very serious.
You role was critical, and that would of course be the position whether you were part of a larger group or acting alone, as you say you were. I have no evidence of any larger hierarchy, so I am not free to invent one or speculate about that.
The fact is, there have been very many occasions where higher courts in this land have emphasised that those who engage in the importation of drugs to this country must expect, if caught, to suffer significant punishment.
The President of the Court of Appeal stated in the case of Nguyen that the difficulty of detecting importation offences and the great social consequences that follow suggest that deterrence is to be given real weight, and that stern punishment is to be expected. He went on to say that sentences must signal to would be traffickers that the potential financial rewards on offer are neutralised by the risk of severe punishment[1].
[1]See Nguyen v R 207 A Crim R 380.
It is an inherently serious offence to bring drugs into this country. You, like so many others before you - and, I am confident, so many who will follow after you - were prepared to take a massive risk or gamble for some gain. You knew the stakes. You knew the risks. You must have weighed them up, and were prepared to take your chances.
The offending
Your crime, punishable by a 25-year maximum term was obviously a highly premeditated crime. You have travelled back to this country, bringing with you a marketable quantity of pure cocaine. You had in fact left these shores intending to bring back drugs. You, unlike some people bringing drugs in, knew the nature and quantity of the drugs that you were importing. You had internally concealed them. There is no suggestion of duress or threats as sometimes exist; nor, for that matter, in my judgement, is there any evidence of desperate financial need. This was, after all, on your own version, a self-funded exercise.
Try as we might, it is impossible to stop drug importations into this country. It is offending that is very hard to detect. People do run the gauntlet, and it is obvious enough that some of them get through undetected. You tried to, and even when selected by Border Force, you then persisted in your efforts telling them they were wasting your and their time, and that you had nothing. You could so easily have been waved through, and your drugs with you.
Any person apprehended importing into this country drugs of this quantity must expect to receive a substantial immediate term of imprisonment. Whatever the motivation, whatever the role, general deterrence has an absolutely vital role to play in this area. This was not some tiny quantity of drugs, but of course, nor was it anywhere near the top of the range. It was 196 grams of pure cocaine, obviously worth a good deal of money. It was 98 times the marketable quantity of that drug. But I must not lose sight of it being only about one tenth of the commercial quantity.
The simple fact is, this court must send a clear message to any like-minded person engaged in or thinking of being engaged in this sort of activity, even to those who are vulnerable, or young, or desperate, or financially pressured, or addicted; whether they are locals or whether they are foreign nationals: do not succumb to the temptation. Think twice before becoming involved in importing drugs into this country, for, if you are apprehended, the consequences will be dire indeed.
Consistency of sentencing is an important consideration, and I do pay regard to it. I have looked at the other cases involving sentencing for this type of offence, to which I was referred by each counsel at the Bar table. I have already commented on the lack of usefulness of the two cases to which your counsel referred me to. They were not comparable cases. The table of cases prepared by the prosecution was selected for the reasons spelt out in paragraph 28 and 29 of the written submissions filed by the prosecutor. They were at least sensibly grouped together in that table, owing to some common features, but as I thought would be the position, having now read those various cases, I have observed that even in those cases, there are a large number of differences in the personal circumstances of the offender or the offence circumstances. There is no arithmetic equivalence demanded with sentences passed in other cases. They are not precedents, and in any event, there are a host of differences. There almost always are.
In this case, as your counsel correctly conceded, there is no alternative but to impose a term of imprisonment upon you.
I take into account all of Ms Todd's submissions, as well as all of the materials that she has placed before me on the plea. I have regard to those relevant matters that are set out in s.16A(2) of the Crimes Act (Commonwealth). I have expressed myself in these reasons using language or terminology perhaps more akin to a State sentencing exercise, but that is just a matter of using the language that I am used to employing as a judge. The concepts, after all, are the same concepts as spoken of in the Crimes Act (Cwth).
I do not accept for one moment your counsel’s submission that it is open to pass a sentence which would permit your release on a recognisance release order. I have to pay regard to the seriousness of your crime, and, amongst other things, the need to deter you, and, more significantly, others. The table of cases demonstrate clearly enough that which I believed to be the position prior to even seeing any of those cases; that an outcome in this case, your case, which would permit a recognisance release order (an outcome involving a sentence of less than three years' imprisonment) is simply out of the question here.
It is plain that, given the nature of the offending, the sentence in this case must exceed three years. Hence, I will be obliged to fix a non-parole period, which, to some extent, I am sure will be illusory.
Sentence
Mr Morris, if you would stand up, please. Thank you. On the charge of importing a marketable quantity of a border controlled substance into this country, you are convicted and sentenced to 66 months or five and a half years' imprisonment. That sentence commences today.
Non Parole period
I direct that you serve a non-parole period of 33 months or two years and nine months. I think I will have you sit down now. I have just got to explain the non-parole period and what it means.
I am obliged to explain to you the effect and the purpose of that non-parole period, or parole order, even though it is almost inconceivable that you will ever be released into the community on parole. Still, I am bound to explain it. The purpose of that order is to permit, subject to certain conditions, your release from prison at the expiry of that non-parole period. It follows, then, that you will serve a sentence of two years and nine months. A parole order is then made automatically, and then you will have a period of service in the community, called the "parole period", to complete the service of this sentence. When a parole order is made, it would be subject to conditions which you would need to comply with. That order can be amended or revoked. I could not and cannot know now, in 2017, what those conditions might be. No doubt they would, to a degree, be informed by your needs years from now. The consequences, if you fail without excuse to fulfil these conditions on parole, would be your being ordered to serve the balance of the sentence, up to five and a half years. Now, as I say, there is a level of fiction here, as no one suggests you will be paroled. However, I have to proceed on the basis that you will serve every day of the head sentence I have pronounced. I cannot decline to fix a non-parole period, owing to your immigration status and the certainty of your deportation, or even take those matters into account in determining the quantum of the head sentence or the non-parole period.
I am obliged to state the reasons for proceeding to impose a term of imprisonment. I believe it is sufficient for me to refer to the various matters of gravity that I have listed in these reasons to date. For the purposes of the records of the court, I state that no other sentence was appropriate, given the nature and gravity of your crime[2], as was conceded to be the case by your counsel.
[2]See s.17A(2).
PSD
I make a declaration pursuant to s.18 of the Sentencing Act 1991, which, as I understand it, is brought into force by s.16E(2) of the Crimes Act1914 (Cth), as to the time that you have already served in custody. The total pre-sentence detention is 335 days. I declare, then, that you have already served that period of 335 days pursuant to this sentence, and I order that this be noted in the records of the court. What that means is you have already served that portion of the sentence.
6AAA
I have told you that I have reduced your sentence because you have pleaded guilty. That is the position. But for your guilty plea, I would have sentenced you to be imprisoned for a period of nine years, and I would have fixed a non-parole period of six and a half years. That statement is to be noted in the records of the court.
HIS HONOUR: Are there any other matter I need to deal with, Ms Todd or Mr Portelli?
MS TODD: If I might just very briefly speak to Mr Portelli.
HIS HONOUR: Yes, of course.
MS TODD: Nothing arising, Your Honour.
HIS HONOUR: All right. Are you going to see your client downstairs?
MS TODD: Yes, Your Honour.
HIS HONOUR: Yes, all right. That completes the matter, then, Mr Morris. As you understand - and your counsel will come down to explain this to you - you have received that term of imprisonment, the five and a half years, with a non-parole period of two years and nine months. I hope that you can continue in the efforts that you are engaged in at the moment, and that you have success upon your ultimate release from prison and arrival back in England. Yes, all right, if Mr Morris could be removed, please. Yes, I've got a trial - I'll stand down until 11.15.
- - -
0
0
0