R v MT

[2022] ACTSC 136

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v MT
Citation:	[2022] ACTSC 136
Hearing Date(s):	27 May 2022
Decision Date:	27 May 2022
Before:	Norrish AJ
Decision:	See [68]
Catchwords:	CRIMINAL LAW — JURISDICTION, PRACTICE AND PROCEDURE — Judgment and Punishment — Sentence — Import marketable quantity border controlled drug — Possess prohibited weapon — Young offender — Totality of sentencing — Plea of guilty — Purpose of sentencing — Progress of rehabilitation after delay — Impact of lesser sentence of imprisonment upon greater earlier term of imprisonment — Commonwealth and ACT sentencing exercises — Offender
currently serving sentence for significantly more serious offending
Legislation Cited:	Criminal Code Act 1995 (Cth), s 306.2(1) Prohibited Weapons Act 1996 (ACT), s 5(1) Crimes (Sentencing) Act 2005 (ACT), ch 8A, ss 7, 33, 35, 113D, 133C, 133G Crimes Act 1914 (Cth), s 16A(2)(g), 17A, 20, 20C
Cases Cited:	R v MT [2020] ACTSC 339 MT v The Queen [2021] ACTCA 26 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 R v TL [2017] ACTCA 18 R v Vincent [2006] NSWCCA 276 R v NE [2015] ACTSC 352 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 Dawson v The Queen [2019] ACTCA 9
Parties:	The Queen (Crown) M T (Offender)
Representation:	Counsel
K McCann (Crown)
S McLaughlin (Offender)
Solicitors
ACT DPP (Crown)
Legal Aid ACT (Offender)
File Number(s):	SCC 357 of 2019
NORRISH AJ:
Introduction

1.       In this matter the offender has pleaded guilty to two charges on indictment: one count

of importing a marketable quantity of a border controlled drug (contrary to s 307.2(1) of

the Criminal Code Act 1995 (Cth)) which has a maximum penalty of 25 years'

imprisonment, 5,000 penalty units or both; and a second count of possessing a

prohibited weapon (knuckledusters) without authorisation (contrary to s 5(1) of the

Prohibited Weapons Act 1996 (ACT)), which carries a maximum penalty of five years'

imprisonment, 500 penalty units or both.

2.       The Commonwealth offence was committed between 18 February 2019 and 1 March

2019. The second count in the indictment was committed between 16 March 2019 and

17 March 2019 as it is particularised in the indictment, but in fact was committed in the

circumstances of the arrest of the offender at his father's home.

3.       There are also two transferred offences from the Magistrates Court requiring sentence.

They are offences of possessing a prohibited substance contrary to the relevant

provision of the Drugs of Dependence Act 1989 (ACT). These offences are

particularised as being committed likewise with count 2 as between 16 and 17 March

2019. They each carry maximum penalties of two years' imprisonment and/or 50

penalty units and would otherwise have been dealt with in the Magistrates Court but for

the fact that they've been connected to the indictable matters.

4.       The offender pleaded guilty after committal for trial but at the time that he did plead

guilty there was no trial date fixed. The Crown provided a chronology of the relevant

dates in relation to this matter, bearing in mind of course the offender was arrested in

March 2019. In the context of considering the delay in entering the plea, I have to take

into account proceedings in the Supreme Court and then subsequently in the Court of

Appeal, which I will refer to later.

5.       The offender was a young offender, or a child, at the time of the commission of the

offences with which I am now concerned, being approximately 17 years and two

months of age. Immediately before his arrest in relation to the current matters, that is

on 15 March 2019, he committed very serious offences of murder, intentionally inflicting

grievous bodily harm, assault occasioning actual bodily harm particularly, and other

offences as well. He was subsequently sentenced in the Supreme Court on 16

December 2020 (see R v MT [2020] ACTSC 339).

6.       The sentences imposed upon him in relation to principally those most serious offences

were dealt with on appeal by the Court of Appeal of the ACT Supreme Court in the decision of MT v The Queen [2021] ACTCA 26. Ultimately, arising out of those

proceedings, the final sentence imposed upon the offender, which he now serves, was

a total sentence of 11 years and nine months' imprisonment commencing on 16 March

2019, with a suspended sentence order suspending the sentence on 15 September

2023 after he had served four years and six months of the total sentence.

7.       For present purposes there is no need to detail the precise structure of the individual

sentences imposed by the Court of Appeal; although I note in addition to the three

serious offences he was also sentenced in respect of a number of other offences that

have in their manner or character some relationship to the circumstances of the

offending with which I am concerned. These matters clearly reflected upon the

offender's use of prohibited drugs. He admitted guilt in respect of offences of, for

example, possessing cannabis, possessing a prohibited substance, as it is described

under ACT legislation, and in respect of those various offences he was either

sentenced to short terms of imprisonment or fined.

8.       He was ordered in respect of the good behaviour order to comply with various

conditions which will apply on the release of the offender from the sentence which I

now impose, and I do not propose to fix the same conditions, in due course.

9.       The total sentence imposed by the Court of Appeal expires on 15 December 2030. The

importation offence with which I am concerned was committed before the crimes for

which the offender is currently serving sentences. As I said, the crime of murder and

related offences involving that event, or those events, occurred on 15 March 2019. The

possess prohibited weapon charge arose out of the circumstance of the offender's

arrest, I understand during an investigation of the alleged murder occurring the day

before. The two transfer possession charges likewise arose out of the circumstances

of the offender's arrest. Obviously the offender has been in continuous custody since

his arrest.

10.     This sentencing exercise is complicated because the sentence I must impose will of

necessity be considerably less than the sentences that are currently being served. This

has the effect that, although it is theoretically possible to accumulate the sentences I

impose upon his current sentences, as I understand the situation that would make it

impossible to adjust what currently stands as what I will call the “minimum term”. Any

custodial sentences I impose must be, if they are to be accumulative upon current

sentences, accumulative upon the current minimum term. However, any sentences I

impose by definition will then be absorbed into the balance of the sentence that

currently exists.

11.     The other aspect is a matter I have just drawn to the attention of the parties and it was

not discussed directly in the case. I have to be concerned that in fixing a minimum term

for any sentences I impose that I do not substantially disturb the relationship between

the minimum term and what I will call the balance of the current sentences by adding

to what is the current “minimum term”. But there must be some adjustment for the

reasons I will outline; particularly having regard to the timing of the current offending

and, of course, principles of totality that are relevant in this sentencing exercise.

12.     From the outset, without seeking to avoid my responsibilities to outline all the relevant

material, a great deal of material relating to the subjective circumstances of the offender

and the detail of his previous criminality now the subject of custodial orders is set out

in the Court of Appeal judgment at [11]-[33] and later at [107]-[110]. There was

evidence in the previous proceedings that the offender on the night in question that the

murder occurred had ingested sedatives, LSD and cannabis, ultimately producing

either an altered state of consciousness and/or a very short period of a schizophrenic

state, or psychotic state to use my expression, which contributed to the horrific events

the subject of those charges.

13.     It was accepted by the Court of Appeal that before the commission of the offence of

murder and related offences the offender had used cannabis frequently and had

experimented with other illicit drugs previously, including LSD (lysergic acid

diethylamide) on about three occasions; although each use of that particular “drug” had

produced a “somewhat different effect”. The offender knew that when you use the drug

“things would be distorted” and on occasions he had been euphoric. Because the

offender has been in custody since 16 March 2019 his personal circumstances up until

that date are fully described, as I said, in the Court of Appeal judgment and no doubt

were covered by the sentencing judge at first instance and I can take them into account

as applicable here.

The Facts

14.     There was in this matter an “agreed statement of facts” which is uncontroversial in

terms of its detail. The import marketable quantity of border controlled drug offence is

in fact a rolled up count relating to two separate imports: one arising out of a parcel

intercept on 18 February 2019, and another arising out of another parcel intercept on

1 March 2019. The drugs, by definition having been imported and then intercepted, did

not make their way to the offender and, thus, to any other people to whom they may

have been supplied. Each of the packages were in fact addressed to the offender in

his own name at his home address, reflecting a considerable lack of sophistication on the part of the offender. It was not difficult thus to locate him in due course when the

Commonwealth investigations were underway.

15.     In respect of the first importation there were found 56 MDMA tablets with a total weight

– that is, I understand, to be a gross weight – of 17.228 grams. On the second occasion

there were 30 tablets containing MDMA with a total weight of 13.01 grams. The first

consignment was not less than 43.8 per cent pure. The second assignment was not

less than 36.7 per cent pure. There is some difference in the average purity of each

consignment, but they reflect the type of purity of drugs that seem to be imported of

this type from The Netherlands and Belgium. Usually in sentencing in Commonwealth

matters the percentage of purity is calculated by the Crown to reflect the real weight of

the drug that was imported. I have not done the mathematics on this occasion.

16.     The objective evidence arising out of material gathered in the course of the execution

of the search warrants on the offender's home revealed the offender had imported the

drugs either in part for himself and distribution and/or sale. He had, it would seem,

been involved in other importations before February 2019, however, the precise details

of these are not known. This is a conclusion one could reach from the circumstantial

evidence. But he is not being sentenced in relation to other crimes other than those

currently before the court. The inferences that might be drawn from previous activity

form a context for considering the current count.

17.     It might be fairly said ,of course, that the quantities with which I am concerned are at

the lower end of quantities contemplated by the legislation prohibiting such imports of

a marketable quantity into the country. The quantities and the other relevant material

do not reveal the offender to be a large scale drug distributor, but a small scale one. I

accept the submission of his learned counsel that he could be regarded as a user-

dealer in using the drug MDMA himself from time to time. His counsel said – it is not

evidence of course - that he was using MDMA every two or three days.

18.     It would seem that he had some knowledge of the consequences of such activity,

bearing in mind on his mobile phone and laptop there was found content relating to the

use and purchase of illicit drugs and drug paraphernalia. He had also downloaded, or

had provided to him by others, police media images of detained people and quantities

of currency. Thus he, at the age of 17, was well on notice of the consequences of

being involved in the importation of drugs, the use of drugs or the distribution of drugs.

19.     I note that no sums of cash were found in his possession. There is no indicia of wealth

or great financial advantage. Whether he was providing drugs to others to obtain funds

to provide drugs to himself obviously is a realistic possibility. However, there was evidence of indicia of packaging of drugs on previous occasions, or potentially in the

future.

20.     In relation to the purchase of the drugs, they were negotiated through what has been

described as the “dark web”. How he became introduced to this I do not know. But it

is not beyond a realistic appraisal of the matter to understand that a person of his age

with what computer skills young people have now would have no difficulty doing that.

21.     It seems to me, however, in the circumstances of the various facts before me that at

the time of his arrest he had not been subject, it must be said, to adequate supervision.

He was living with his father at the time. Whether he was deceiving his father or

anybody else who had interest in his supervision I do not know.

22.     In relation to the interception of the importations, if he had an expectation that they

would arrive before he was arrested, I accept the submission that there is no evidence

of him attempting to hide his activities. When the police arrested him on 16 March, it

would seem that, if I could call it, the “crime scene”, being his bedroom largely, was

undisturbed by the offender in anticipation of the police arriving.

23.     Then again, he might not have anticipated the police arriving up until 15 March because

as is clear from the facts in the Court of Appeal judgment, the horrendous murder that

he committed and the related crimes were not planned or premeditated crimes and he

was arrested the day after before he had time to think through his situation, I would

expect.

24.     In relation to count 2 in the indictment, police located two knuckledusters, one in the

bedroom of the offender and the other under a beanbag in the lounge room. His father

in fact told police that he had seen one of the knuckledusters before but no explanation

is forthcoming as to what action he took in respect of that matter. It seems a strange

thing that his father was aware of the existence of a knuckleduster and had done

nothing to either confiscate it or confront his son about it.

25.    Within the range of prohibited weapons, as his learned counsel has submitted,

knuckledusters, whilst clearly capable of causing considerable damage if used, could

fairly be described at the lower end of dangerous weapons contemplated by the

legislation. Of course why the offender would possess them is not entirely clear. They

were not, it should be fairly said, involved in the commission of the serious offence of

murder and the related offences and there is no evidence that he used the

knuckledusters at any point of time.

26.     As the authorities that I have been drawn to in relation to the possession of this

particular type of prohibited weapon make clear, when a person is involved in drug supply the possession of a prohibited weapon or weapons may have the connotation

of possession for enforcement or intimidation in respect of the recovery of debts or the

sale of the drugs.

27.     There are of course in existence other possibilities for possession of such items besides

matters related to drug supply. Clearly a more sinister inference could be drawn

against the offender if the possession of these weapons had occurred in the context of

a pre-existing history of violence or if it could be said that he was involved in some form

of organised criminal activity, but there is no evidence that the weapons have been

used, if I could use the expression generally, “to his advantage”, their possession is

unexplained including by the offender.

28.     Both offences reflect no degree of sophistication, except in respect of count 1, being

able to negotiate the “dark web”. This of course is concerning given the pernicious

character of the many activities in that regard. The dark web provides a source of

access to criminal activity including drug supply, child abuse material distribution and

manufacture, even contract killing and the like.

29.     That he was able to negotiate this source of information is disturbing for one so young.

But as I said, these capacities would fall easily to people within the age group of this

offender, not that all people of this person's age would be concerned with the dark web.

I am not suggesting of course that the offender's involvement with the dark web was

concerned with criminal activity other than that for which he appears today.

30.     I note that the offender was found by the investigation of the police in July 2018, when

I understand he would have been 16 years of age, to have received a “Bitcoin order”.

That may explain the absence of sums of cash in the possession of the offender. That

is, that he was negotiating the purchase of these drugs at least via Bitcoin but the

evidence is incomplete in this regard. However, the fact that at 16 years he is making

orders for Bitcoin reflects an absence of naivety on the part of the prisoner.

31.     The transferred offences are relatively minor matters. One concerned the possession

of two pink tablets containing MDMA, the other involved a clipseal bag containing

mushrooms weighing 0.88 grams and containing the prohibited drug psilone. These

possessions are consistent with personal use.

Personal Circumstances

32.     At the time of his arrest in relation to this matter and the other matters he had no prior

criminal convictions or findings of guilt, however, it was the case that the day before his arrest in relation to these matters, but after the commission of the acts relevant to count

1, he had committed very serious crimes of violence.

33.     The drug offences for which he has been previously sentenced were relatively minor

matters but consistent with the character of the drug offending with which I am

concerned and can be viewed as occurring in the same context and about the same

time as at least the transferred offences and reflect the fact that the offender himself

was a drug user.

34.     He comes before the Court now not as a person of good character, nor was he,

notwithstanding the absence of convictions, at the time of his arrest on 16 March.

However, his personal circumstances that touch upon the character of the current

offending overlap considerably, as I said earlier, with the personal circumstances of the

offender at the time of the other offending for which he has already been sentenced.

35.     Specifics about his upbringing and background were succinctly summarised by the

Court of Appeal at [107]-[108] of the Court of Appeal decision. The principal additional

material available to the court is an ACT Corrective Services report prepared very

recently which brings up to date the circumstances of the offender at the present time.

Whilst it covers some of the territory that is already exposed in the findings of the Court

of Appeal and the earlier Supreme Court decision on sentence, it also provides

information on the offender's progress whilst in custody which is of some importance.

The offender, on interview, was polite and responsive and forthcoming, very different

from the person he was on 15 March. He was, however, reluctant to talk about his

family background and as the Court of Appeal pointed out, he had had some history of

family instability. I note he is the second of four children. He continues to be supported

by his parents and his siblings although his parents are separated and it is reported by

the custodial authorities who look after young offenders that he has regular contact with

his family whilst in custody.

36.     When he leaves custody, he proposes to live with his father. During his incarceration,

he has completed year 12 through the Murrumbidgee Education Program and he is

undertaking currently a course in horticulture. He is reported as a “dedicated student”

and has been respectful towards other students and staff. His father apparently has a

landscaping business where he worked off and on before his incarceration and he

hopes to work with his father on his release.

37.     The offender is said to have “helped mentor fellow students and been a positive

influence on younger detainees”. In fact, in the judgment of the Court of Appeal at

[110], it notes the fact that the offender's behaviour in custody had improved over time:

“He had shown maturity and leadership during the August 2019 Bimberi riots. That trajectory

has continued.”

38.     The detail of these riots is not known to me personally but without objection, learned

counsel for the offender did set out some detail about that event. In other words, the

offender was a person not participating in the riots but trying to restore calm and protect

people who were in custody.

39.     As is self-evident from the detail previously provided, he has been a drug user for at

least two years before he came into custody. He has engaged in custody in prosocial

activities in a range of ways and completed other training programs. He currently has

no mental health or physical issues and his drug induced psychosis, as it was

described, that occurred at the time of the violence on 15 March was temporary. The

officer who prepared the report was of the view that there are protective factors at work

including support from family members, stable mental health as well as the offender's

attitude towards the offences. He takes full responsibility for his offending.

40.     I should point out that the delay in entering pleas to this matter has to be seen in the

context of the other proceedings having priority over the current matters and I draw no

adverse inference towards the offender by reason of the delay in entering pleas to the

current matters. In that regard, I propose where it is practical - and that is particularly

in relation to count one - to afford the offender a discount of 15 per cent upon the

otherwise appropriate sentence to reflect both the utilitarian benefit of the plea of guilty

and also the facilitation of the course of justice.

41.     The offender's plea of guilty in March occurred before a trial date had actually been

fixed so the Crown had not been put to the difficulty of having to organise witnesses

and the like at that particular point and the discount I give for the purposes of the ACT

offence, count two, is one that reflects the consideration of s 33 and in particular s 35

of the Crimes (Sentencing) Act 2005 (ACT) and also as the Crown drew my attention

to it, s 16A(2)(g) of the Crimes Act 1914 (Cth) in respect of count one.

42.     Importantly, the Corrective Services report states that he has demonstrated positive

behavioural change throughout his time in custody and this is relevant to assessing his

prospects of rehabilitation. Whilst he, in the context of all the criminality for which he is

responsible, be seen as a work in progress, there are certainly very positive signs which

I accept and he should be given credit for the progress that he has made.

43.     An actuarial risk assessment instrument has been applied and his general risk of re-

offending is regarded as “low”. He is suitable for various community based programs

but they are not practical or realistic at this time. The major matter requiring consideration and supervision on his release will be the issue of his illicit drug

consumption which is intimately bound up with much of the offending with which I am

concerned and the Court of Appeal was concerned. That is a matter catered for in the

judgment of the Court of Appeal under the heading “Sentencing Principles”.

44.     Putting aside recognition of the maximum penalties for each offence and proper regard

for them as yardsticks for considering the appropriate penalty to be imposed in the case

in accordance with, for example, the High Court judgment of Markarian v The Queen

[2005] HCA 25; (2005) 228 CLR 357, and noting the requirement to give full effect to

the principle of “totality”, taking into account the character of the offending, the temporal

connection between offences, whether offences reflect a course of conduct connected

in time and circumstance, and also having regard to the various legislative and general

principles relating to the sentencing of young offenders; this sentencing exercise is a

complex matter. In that regard, it is not necessary for me to reiterate all these matters

that I take into account because in respect of the very same offender, the Court of

Appeal has spoken in considerable detail as to the appropriate approach to be applied.

45.     With no disrespect to their Honours' erudition in their judgment and the complexity of

their reasoning, but bearing in mind their discussion of legal principles in respect to the

very same offender, it should be pointed out that arising out of the judgment, it was

held that the punitive and deterrent effect of sentencing was altered in the context of

the operation of chapter 8A of the Crimes (Sentencing) Act 2005 (ACT). I will

hereinafter refer to it as “the Act”. Their Honours held at [53]:

“Chapter 8A alters the way in which section 7 (of the Act) sentencing purposes are to operate

(to emphasise rehabilitation) elevates the importance of 'individualised justice' including by

requiring that a sentencing court consider additional matters relevant to the particular young

offender, tightly restricts a court's capacity to impose a sentence of imprisonment, excludes

the parole provisions and promotes combined sentences as the preferred way in which a

young offender should serve any sentence of imprisonment”.

46. Further, having regard to s 133C of the Act, despite s 7(2) (of the Act), in the case of

young offenders the sentencing purpose of rehabilitation is prioritised. It may be given

more weight than other purposes. Further, the sentencing court must pay “particular

regard” to “individualised justice”. I point out in passing, of course, their Honours are

discussing the operation of the ACT legislation. I am mindful that the principal count

with which I am concerned is a Commonwealth offence. But in the context of both the

ACT legislative provisions and many cases across the Commonwealth of Australia

dealing with the sentencing of young offenders in what I would call general “common

law” terms, there can be no doubt that matters pertinent to the sentencing of a young

offender under ACT law should be applied to the sentencing of a young offender in

respect of the Commonwealth offending as alleged in this case.

47.     The Court of Appeal further noted that whilst emphasising the sentencing purpose of

rehabilitation in the legislation, it does not exclude other sentencing purposes,

consistent with other authority of the Court (see R v TL [2017] ACTCA 18). The Chapter

does not distinguish between the sentencing purposes that may be relevant when

sentencing young offenders on the basis of the seriousness of the offence and the

legislation does not differentiate between offences that reflect “adult behaviour”. It does

not distinguish between young offenders based on their age.

48.     The Court noted that there are other additional relevant considerations to be taken into

account beyond those set out in s 33 of the Act (s 113D). Of course, in this sentencing

exercise where I have to consider Commonwealth and Territory provisions, s 33 of the

Act in the ACT sets out various matters that are required to be taken into account in

sentencing, as I do relevantly to this case as exposed by my reasons. Also there is

s 16A(2) of the Crimes Act 1914 (Cth) which set out likewise relevant matters to be

taken into account; sometimes referred to as a “checklist” in sentencing for

Commonwealth offending.

49.     In the Court of Appeal decision I note their Honours' comments in relation to the

imposition of sentences of imprisonment, particularly in the context of s 133G of the

Act, including the requirement that the sentence of imprisonment must be a last resort

and for the shortest appropriate term, and the Court must consider making a

combination sentence consisting of a sentence of imprisonment and a good behaviour

bond with a supervision condition (at [65]-[72]).

50.     I appreciate of course again that count one is an offence under Commonwealth law.

There are particular provisions relating to sentencing within that regime, particularly for

example s 20 of the Act, that set out the specific ways in which matters can be dealt

with by either suspending terms of imprisonment or, alternatively, imposing terms of

imprisonment which will be punctuated by a release on a recognizance order.

Section 20C of the Crimes Act 1914 (Cth) in my view makes it clear that a child or

young person who in a State or Territory is charged with or convicted of an offence

against the law of the Commonwealth may be tried or otherwise dealt with as if the

offence was an offence against a law of the state or territory.

51.     Of course, there is no room for the application of State or Territory laws to operate

inconsistently with Commonwealth laws, but it would be absurd to sentence this

offender on a basis differently than that that would be required to be applied in respect of any ACT offences; and particularly absurd in the circumstances of him having been

previously sentenced in the ACT Supreme Court in relation to far more serious matters.

I do not understand any submission of the Crown to be to the contrary of what I have

said.

Submissions

52.     In relation to the submissions the Crown has provided detailed written submissions that

I have read and take into account, as is obvious from what is immediately past and

what will follow from what I am saying now. The Crown's submissions dealt with the

objective seriousness of the offending and whilst I am assisted by a number of

authorities provided by the Crown relating to sentencing in respect of drug trafficking

cases and the like, there is no need to specifically cite any particular authority other

than to accept that the general principles to be applied are to be examined in the

context of the special provisions which relate to the sentencing of young offenders.

Noting most importantly that the dissemination of prohibited drugs for financial gain

increases the objective seriousness of the offending.

53.     But I note that in some cases the quantity of the drug will be so significant that the

inference of possession for profit would be intimately connected to the character of the

possession and, thus, would lead to some form of “double counting” on matters relevant

to the assessment of the objective seriousness of the offending. That does not apply

here. I accept the Crown's submission that the Court can conclude in relation to the

importation offence that the offender had knowledge both of the nature of the drug

being imported and the quantity of the drug involved on each occasion. But the Crown

accepts that the offender was unlikely to have known anything about the purity of the

drug. There was, as I said, something of a substantial difference between the average

purity of the drugs involved in the two importations.

54.     I have concluded on the basis of what has been said by counsel for the accused and

counsel for the Crown that the offending that I am concerned with here can be seen at

the lower end of offending of the character contemplated in respect of the importation

of a marketable quantity of border controlled drugs; particularly, to accept the

submission of counsel for the accused, the lack of “commerciality”. Appreciating of

course that quantity is not definitive of the objective seriousness of offending within the

range of offences contemplated by the legislation.

55.     As to the prohibited weapons charge, I have already made some comment about that.

Taking into account what the Crown has submitted, and noting observations of the New

South Wales Court of Criminal Appeal in the decision of R v Vincent [2006] NSWCCA 276 at [23], I cannot conclude obviously that it was used for any form of enforcement

in the circumstances, as I have said. The Crown noted that the charges concerned

with possession of prohibited substances were concerned with possession not use.

But, of course, the background of usage of drugs was established in the proceedings

before the Supreme Court previously. There is no suggestion of any use of the

prohibited weapons or the drugs by other people in the house.

56.     I have already dealt with the issue of the discount for a plea of guilty in accordance with

ACT law. The Crown said in her helpful oral submissions that the range of discount

that I am prepared to give is reasonable in all the circumstances of the matter. But that

I should not give any greater discount. I agree with that. I have taken into account the

Crown's submissions in relation to the purposes of sentencing generally pursuant to

s 7 of the Act, noting what the Court of Appeal has said about those matters. Here, in

relation to this offending, I do not believe that there is a relevant consideration of

protection of the community. There should be some elements of general and personal

deterrence ameliorated by consideration of the matters to be taken into account under

chapter 8A.

57.     I have taken into account the decision of R v NE [2015] ACTSC 352, and particularly

the observations of Refshauge J at [55]-[56] which are pertinent. But they are to be

seen obviously, notwithstanding his Honour's careful analysis, in the context of the

principles set out in the earlier decision of R v MT. In NE the learned judge reflected

in the final orders the fact that general principles have to be seen in the context of the

facts of the case and the varying degrees of intensity of application of general principles

and the particular personal circumstances of the offender. I note some distinction, if it

be relied upon for comparative sentencing purposes, between the totality of the

criminality, putting aside quantities of drugs, and of course the commerciality of the

criminality in the matter of R v NE.

58.     The Crown provided a schedule of comparative cases in respect of the prohibited

weapon matter, noting there were very few cases in relation to the offence in count one

concerning young offenders. The comparative cases referred to by the prosecution

are noted. But, of course, each case will have its own peculiar facts both objectively

and subjectively. It is obvious from the Crown's schedule of comparative sentences for

possession of a prohibited weapon such as knuckledusters much of the offending for

particular offences has to be considered in the context of other offending sentenced at

the same time. For example, in relation to the prohibited weapon offence, as I

understand it only two comparative cases involving an 18-year-old, therefore an adult, and a 25-year-old were concerned with the possession of the prohibited weapon

without any other offences being committed.

59.    Other cases cited involved adults aged variously 25, 28, 29, 37 and 54, thus,

substantially older than the current offender, many of them convicted for possession of

a prohibited weapon or prohibited weapons with other serious offences seemingly

connected; in one case offences of aggravated burglary on two separate occasions,

and trafficking in heroin in another matter after a plea of not guilty, findings of guilt in

relation to kidnapping, unlawful confinement, assault, hindering police and the like

where the prohibited weapon was “used in the course of other offending”. In another

matter possession of the prohibited weapon, as well as possession of prohibited

firearms and possession of ammunition, and cultivation of a trafficable quantity of

cannabis with intent to sell.

60.     The Crown reminds the Court that in sentencing for a Commonwealth offence I am

required to have regard to s 17A of the Crimes Act 1914 (Cth), which prohibits the

imposition of a sentence of imprisonment unless the Court is satisfied, having

considered all other available sentences, that no other sentence is appropriate in all

the circumstances of the case. It is quite clear in this matter, bearing in mind the current

sentences served by the offender, that no other sentence other than imprisonment can

be imposed for the two indictable offences.

61.     I have already dealt with the Crown's helpful submissions in relation to ACT law arising

from the Court of Appeal decision relating to this offender. I note by reference to the

Crown's submissions all pre-sentence custody at the present time is attributable to

other offending. I note the Crown submission that only a term of imprisonment is

appropriate in relation to count one and it would be “appropriate” in relation to count

two. I have got to have regard to totality principles and give little weight to the

circumstances of delay; although I noted it has provided an opportunity to gauge the

progress of the offender's rehabilitation. It is not a significant matter in this case, but it

is a matter that reflects positively upon the prisoner.

62.     With regard to the principle of totality I particularly note the decision of the High Court

in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, particularly in the majority

judgment at [45], and the summary of principles helpfully set out by the Crown in

Dawson v The Queen [2019] ACTCA 9, particularly at [37]. In the context of the reality

of existing sentences, I propose to accord concurrency of the much shorter sentence

required for the prohibited weapon offence with the sentence to be imposed in respect

of the import offence to try and achieve a proper recognition of totality by reference to

the other sentences now standing.

63.     The transfer offences are significantly less serious than the two indictable offences,

both by regard to the maximum penalty and the quantities of the drug involved. I have

taken into account all the additional oral submissions made by the Crown, which have

been most helpful. But the Crown ultimately submits, in the context of submissions

made by learned counsel for the accused, that there should be some additional

punishment to reflect the overall totality of the criminality. With that I agree.

64.     So far as learned counsel for the accused is concerned, I have noted a number of the

submissions he has made, which I have accepted. He reflected upon the principles

elicited in the Crown's submissions as approved by him or adopted by him, although

with some distinctions. He pressed upon me matters relating to what could be seen as

the “motivation” of the attempt to import the MDMA. He submitted in the overall scheme

of the evidence that I should regard the offender as a “user dealer”, which I accept. He

submitted specifically that I should conclude that primarily the importations were for

personal use. I am not in a position to come to that particular conclusion; there is

insufficient evidence.

65.     Certainly the quantity imported and the trouble gone to import it, such as it was, is more

consistent with use and distribution rather than personal use. In fact, it is not suggested

it was entirely for personal use, because that was a defence being considered to be

conducted at the trial, that was abandoned. I have accepted the submission made of

the absence of commerciality in the transaction. He also emphasised, as I have

accepted, that, to use his words, there were “no protective measures” taken by the

offender after the interception of the importations. Then again, it might be said he did

not have enough time to appreciate the fact that the drugs may have been intercepted.

66.     The decision of R v NE, to which I have referred, was, he submitted distinguishable for

comparative sentencing purposes for the reasons he advanced. In part I accept that.

He submitted ultimately that, by reference to the principles which I have summarised

from the earlier case, it would be appropriate to fix sentences that were, in effect, wholly

suspended. I do not believe that would fairly reflect the overall totality situation, as I

have already noted. All the personal circumstances of the offender have been taken

into account.

67.     I am prepared to accept as a mitigating factor here that his pleas of guilty, his openness

in discussions about the matter with the Corrective Services reporter and the like are

reflective of contrition and remorse on his part. Of course, these types of offences are

not significantly impacted by remorse as a general rule. But it is a relevant matter to

take into account in the sentencing exercise. Other matters arising under s 33 would self-evidently be reflected in my remarks, as would matters required to be taken into

account under s 16A of the Crimes Act 1914 (Cth).

68.     In respect of the offences to which the offender has pleaded guilty I will make the

following orders. Do you mind standing up please.

i) The offender is convicted of all offences on the indictment and both transferred

offences. Firstly, in respect of count one the offender is sentenced to one year

eight months' imprisonment, reduced from two years' imprisonment – there is a

slight rounding down there – commencing on 15 September 2023 and, on my

calculation, expiring on 14 May 2025.

ii)	The offender is ordered to be released after four months on 15 January 2024
on entering a recognizance release order (pursuant to s 20(1)(b), Crimes Act
1914 (Cth)) in the sum of $500 with conditions that he be of good behaviour and
appear before this court if directed.
iii)	In relation to count two he is sentenced to four months' imprisonment
commencing on 15 September 2023, expiring on 14 January 2024. In my view
it is not practical to apportion a discount for this sentence.
iv)	In relation to the first of the transferred offences, CH2019/513, the possess
prohibited substance offence (MDMA), he is fined $1,000. I direct no time to
pay. Finally, in respect of transferred offence CH2009/658 (sic) he is fined
$500. I direct no time to pay. You can take a seat thanks.

Postscript: After sentencing the Court was informed that the transferred offences had

already been dealt with and were wrongly before the Court. The orders made

in relation to them have been revoked in chambers.

I certify that the preceding sixty-eight [68] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Norrish

Associate:

Date: 9 June 2022