R v O'Brien

[2021] NSWDC 504

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v O’Brien [2021] NSWDC 504

Hearing dates:

3 September 2021

Date of orders:

23 September 2021

Decision date:

23 September 2021

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Community corrections order. For orders see [89].

Catchwords:

CRIME – possess prohibited drug – import marketable quantity of border controlled drug.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes Act 1914 (Cth)

Criminal Code Act 1995 (Cth)

Drug Misuse & Trafficking Act 1985 (NSW)

Cases Cited:

DPP v Costa [2019] VCC 695

DPP v MA [2019] VCC 301

DPP v Maxwell [2013] VSCA 50

Hili v The Queen (2010) CLR 502; [2010] HCA 45

R v Colledge [2010] NSWCCA 302

R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238

R v Pogson [2012] 82 NSWLR 60

Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
Jacqueline Frances O’Brien (Offender)

Representation:

Solicitor:
M. Leijins (Crown)

Counsel:
J. Klarica (Offender)

File Number(s):

2020/283473

REMARKS ON SENTENCE   

1. The offender is to be sentenced in respect of the following three offences to which she has entered pleas of guilty:

Count 1 – possess prohibited drug (methylamphetamine – 2.32 grams) contrary to s 10 of the Drug Misuse & Trafficking Act 1985 (NSW) (“DMTA”).

Count 2 – import marketable quantity of border controlled drug (gamma-butrolactone) contrary to s 307.21(1) of the Criminal Code 1995 (Cth).

The maximum penalty for this offence is 25 years imprisonment and/or 5000 penalty units.

Count 3 – possess prohibited drug (ketamine – 0.24 grams) contrary to s 10 of the DMTA.

The maximum penalty for Counts 1 and 3 is two years imprisonment.

2. The offender was arrested on 30 September 2020 and spent 38 days in custody until she was granted bail on 27 January 2021.

The sentence hearing

3. The sentence hearing occurred on 3 September 2021. The Crown Sentence Summary became Exhibit A. It included a disputed statement of facts which outlined the offending. In dispute were paragraphs 2 and 10 thereof. After hearing submissions from both parties, I ruled that the offender not be sentenced on the facts contained in those two paragraphs. In respect of each, the Crown submitted that they were relevant in two ways. First, they set out factors which informed the background to the present offending, the offender’s role and her intention as to the future use of the border-controlled drug, GBL. Secondly, the matters were relevant to the offender’s rehabilitation and informed her character, relying on Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14. The particulars set out in paragraphs 2(a) and 2(e) concerned events that occurred between 23 August 2020 and 28 September 2020. They did not relate to any of the three charges. Nor did they form part of the same course of conduct. They do not inform the offender’s intention as to the future use of the border controlled drugs. Rather, they would support a charge of supply prohibited drugs, with which the offender was not charged. I therefore found that those events are not of the same or similar character as the offences with which she is charged, and were not relevant to either her character or prospects of rehabilitation.

4. The contents of paragraph 10 are similarly irrelevant to the three charges for which the offender is being sentenced.

5. The facts on which the offender is to be sentenced may be summarised as follows. On 19 August 2020, the offender had a conversation on an encrypted messaging application known as Signal with a contact titled “zknt”. Zknt provided the offender with a Safety Data Sheet of a GBL Europe product which indicated the product was 98-99% y-butyrolactone (another name for GBL). The cost of the product was 28 euros.

6. On 26 August 2020, the accused purchased online one 250ml bottle of GBL Europe Multi Gel Remover for 28.88 euros on her own bank card.

7. On 27 August 2020 an air cargo consignment left the Netherlands with a consignment note setting out the offender’s details as consignee and details of the consignor, namely Trade Chemicals Europe BV, with an address in Holland.

8. On 15 September 2020, the parcel was selected for scrutiny upon arrival at the Sydney Gateway Facility. The two bottles of Multi Gel Remover were tested and returned a presumptive positive reading for GBL. The consignment was referred to the Leichhardt Police Area Command on 16 September 2020.

9. The offender tracked the consignment on 9 and 10 September 2020. On 10 September 2020, she emailed customer service of the consignor advising that she had not received her order and asking “is it normal to wait this long?” Customer service responded by stating there was no problem with the delivery and that she just needed to wait.

10. The offender again tracked the consignment on 18, 23 and 24 September 2020. On 30 September 2020, the offender and an associate attended the Broadway Post Office to collect the consignment. Shortly thereafter, she was arrested. Upon her arrest, she told the police she purchased a consignment online for 28 euros and she purchased it to use as a paint remover.

11. The contents of the first bottle were analysed to weigh 242.6 grams with a GBL purity of 93.5%. The second bottle weighed 238.9 grams with a GBL purity of 92%. The net weight of pure GBL was 446.61 grams.

12. In addition to the consignment, police seized from the offender two clear bags containing a crystalline substance. When tested, the substance was identified as methamphetamine weighing 2.32 grams.

13. When the offender was in custody, police searched her key chain and located, within a charm on the key chain, a clear bag containing a powder. The substance returned a positive test for ketamine, weighing 0.24 grams.

14. Exhibit A included the criminal history of the offender. She had a number of convictions for possess prohibited drug: 2013 (for which she received a fine), 2017 (for which she was sentenced with three s 9 bonds for six months), 2018 (for which a further s 9 bond was imposed), together with numerous driving offences and possess/attempt to prescribe restricted substance offences.

15. Exhibit B was a Sentencing Assessment Report (“SAR”) under the hand of Orion Faletolu dated 25 August 2021. The author noted a history of antisocial behaviour and that the offender’s criminal history reflected convictions for drug offences, theft and driving offences. Under the heading “Attitudes”, the author noted that the offender believed that her actions were “completely legal” prior to the offence. She appeared to minimise the offending by stating she had simply “not done her homework” on obtaining the product. The offender further attributed the commission of her offences to her companions at the time and claimed to be heavily influenced by their advice. She claimed she was no longer associated with those companions.

16. The offender reported daily use of methamphetamines in the month preceding her offending as a means of self-medication to address her mental health issues. She stated she was under the influence at the time of the offending and described substance abuse as a contributing factor to her offences. She attributed the commission of her offences to her inability to make sound judgments due to her mental state at the time.

17. The author noted that the offender displayed some level of insight into the impact of her offences. Despite this, she demonstrated an inconsistent approach to taking responsibility for her behaviour and appeared to shift blame onto her associates at the time.

18. The offender was assessed as a medium-high risk of reoffending and as suitable to undertake community service work.

The offender’s evidence

19. Exhibit 1 was a report from Mr C Awit, Psychologist, dated 30 August 2021. The author set out a family history which was marked by violence between her parents and sexual abuse by an elder brother. At age 16, the offender gave birth to a premature baby who died. She was thereafter diagnosed with Attention Deficit/Hyperactivity Disorder (“ADHD”) and struggled to focus at school. After school, she completed a nursing course and became an enrolled nurse. She worked in nursing for 16 years until 2000. She then left nursing to become a medical sales representative/technical consultant, a position which she held for 8 years. She held a role in medical device recruiting for a period of time, but had held no formal role since 2010. The author noted that the offender worked in the sex industry from 2010-2016. Over the last five years, she had been mostly unemployed.

20. Under the heading “Alcohol and Drug History”, the author noted the offender had been a regular drinker of alcohol in her twenties and had been introduced to cannabis at the age of 15. She commenced taking speed at the age of 19 years but stopped for 10 years whilst having her two children. She commenced using ice in 2003. Approximately four years ago she attempted a Drug Rehabilitation program at Concord Hospital for six weeks and then a Smart Recovery program six months later. She was clean but relapsed six months following. She “found herself in court” in 2018, following which she stopped abusing drugs again.

21. The author recorded that she had been in a turbulent relationship over the last ten years. Prior to that, she had been married twice and had several other failed relationships. For the six months prior to the current offending, she had been “moving from Air BnB to Air BnB” looking for a suitable place to live.

22. The author noted that the offender had been suffering from significant symptoms of anxiety and depression stemming from her childhood and adolescence. Her drug abuse was a maladaptive coping mechanism and her use of illicit substances improved her focus which was impaired as a result of the ADHD. She experienced uncontrollable worry, low mood, feelings of worthlessness, low self-esteem, hypervigilance, flashbacks, disturbed sleeping patterns, loss of interest in things she used to be interested in and memory and concentration problems.

23. The offender underwent psychometric testing. Mr Awit opined that she reported symptoms that met the DSM-V Diagnostic Criteria for Post-Traumatic Stress Disorder, ADHD, Generalised Anxiety Disorder, Major Depressive Disorder and Substance Use Disorder. His report enumerated the symptoms constituting each disorder which she exhibited.

24. In relation to the current offending, the author noted that the offender “has expressed her remorse and shame in relation to the offences”. She had been informed by an associate of a “loophole” that would enable a person to order GBL from Europe. She tried to ascertain whether or not it was legal by asking the exporter a number of questions and was told that if the product was used in the manner for which it was sold, then it was legal. Otherwise, the offender believed that if it was not legal then the parcel would be stopped at customs and she would receive a letter about it. She compared this to past incidents in which she attempted to have pipes delivered.

25. Mr Awit opined that a psychological link between the offender’s mental health condition and the offences existed. The link stemmed from her impaired decision-making ability in the lead up to the offending period.

26. Mr Awit opined that in order to reduce the offender’s risk of recidivism, intensive psychological intervention was required. She had agreed to such treatment and the fear of being incarcerated was acting as a further deterrent to reoffending. Mr Awit further opined that a sentence of imprisonment would only further exacerbate her condition. He then set out a treatment plan which included attending a long-term drug rehabilitation centre and to continue under the care of Ms Juliet Ardren over a period of 12 months together with other modalities of treatment.

27. Exhibit 2 was a report from Ms Ardren dated 31 August 2021. She had been treating the offender since January 2021 and over a nine month period the offender had willingly consented to random mouth swabs, all of which showed “nil detected” results to illicit substances. The offender was undergoing a trial program which included pharmacotherapy (primarily Mirtazapine taken nightly) and management reviews including counselling, therapeutic group work, psycho-education and mindfulness.

28. Ms Ardren opined that as a result of her treatment, the offender had gained insight and self-awareness into her offending behaviour. She took a history of multiple incidents of significant trauma including child sexual abuse and being exposed to domestic violence as a child which produced internalised shame and trauma.

29. The author noted that the offender presented as extremely motivated and dedicated to completely changing her life. She had expressed a desire to never go back to her old life and sought rehabilitation to become the best person she could be.

30. Ms Ardren opined that the offender’s childhood history made her vulnerable to substance abuse so as to self-medicate her overwhelming feelings of terror and abandonment. She displayed disassociation at a high-level. This was a psychological mechanism which acted as a coping mechanism. The offender had been completely abstinent from illicit substances since her release from custody and had demonstrated dedication, determination and commitment to maintaining abstinence.

31. Ms Ardren set out a treatment plan which included attending as an outpatient three days per week to a program called “Taking Responsibility Program”; ceasing contact with old associates or substance users; random weekly urinalysis and/or mouth swabs; twice weekly therapy with a trauma and substance use therapist and for her to gain employment and “continue to pay off state debt”.

32. Ms Ardren opined that this program will significantly impact the offender’s mental health and would direct her towards further recovery and away from “familial intergenerational patterns of substance use and forensic involvement”.

33. Exhibit 3 was a testimonial from Mr N. Smith dated 2 September 2021. Mr Smith had known the offender since primary school and had full knowledge of the drug possession charges and importation of a border controlled drug charge before the court.

34. Mr Smith attested to the offender’s successful career as a Registered Nurse and her strong motivation to focus on her children and grandchildren. He had observed the offender to be extremely restless around the time of her offences and had found out this was due to her unstable relationship at that time. She had entered a plea at the earliest opportunity and would accept the consequences of her “reckless and nonchalant” decision.

35. Exhibit 4 was a letter of apology from the offender expressing her sincere remorse for her criminal conduct. She stated that based on the information she was given at the time she was led to believe that importing the substance was not illegal. She described herself as an intelligent woman and that she should have done her own homework but rather was too trusting of her friend’s assurance as to the legality of the substance. She described her life at the time of the offending as very unsettled due to the breakdown of a long-term relationship which led to self-destructive behaviour. She had endured the embarrassment of public scrutiny following media coverage of her arrest and felt incredible shame and embarrassment. Her relationship with her sons had suffered as a result of her arrest and she had not seen her grandchildren as they resided in Queensland.

36. The offender stated that she was committed to her abstinence and to her rehabilitation. The COVID-19 pandemic had interfered with her securing employment. Finally, she stated that she would always strive to be the best person she could be and that she would not reoffend.

The Crown submissions

37. The Crown relied on a detail written outline of submissions which annexed the general principles of sentencing for Commonwealth offences.

38. In relation to the factors listed in s 16A(2) of the Crimes Act 1914 (Cth), the Crown made the following submissions:

1. 16A(2)(a) – The nature of an offence against s 307.2(1) of the Code.

The Crown submitted the maximum penalty of 25 years imprisonment speaks with unmistakable clarity of the seriousness with which such an offence is regarded. It was plainly the policy of the legislature that firm punishment is to be imposed. The court should therefore have regard to the maximum penalty and determine the degree to which the offender’s conduct offends against the legislative object of suppressing the illicit traffic in the prohibited drug.

2. 16A(2)(ja) – Need for general deterrence and denunciation.

Deterrence and denunciation were submitted to be primary considerations in sentencing because of the difficulty in detecting offending and the great social consequences that flow from the importation of illicit drugs. It was submitted that at the time the submissions were written, there was no material tendered to indicate the offender was not an appropriate vehicle for general deterrence.

39. In assessing the objective seriousness of the offending, the court would take into account the role played by the offender. The seriousness of the offence is greater when committed for financial reward. Further, the Crown submitted the moral culpability of the offender here was high. It was submitted that the offender knowingly imported the GBL for the purposes of selling it for her own financial benefit. Her friend had suggested that she purchase the GBL online and she subsequently used her own credit card and provided her own personal information for the shipping. The offender then tracked the package online on five different occasions and had emailed customer service asking how long the order would take to arrive. She had communicated with a friend asking when she could pick up the package.

40. The Crown conceded that GBL has been found by the courts to be of low commercial value compared to other drugs involved in offences of this type. Further, it was not contended that she participated in any form of criminal syndicate, but rather she was to receive all of the benefits of the sale of GBL herself.

41. Notwithstanding what she told the author of the SAR, the offender had told police that she purchased the product for use as a “paint remover”. She had also used coded language to communicate with an associate about the contents of the package. The Crown therefore submitted that the offender was aware of the illegality of the importation as she took steps to mislead the police as to the content of the package and disguise her intentions referring to it.

42. The Crown submitted that the weight of the drug was ordinarily a highly relevant factor in determining the seriousness of the offence. Here, the offender imported 446.61 grams of GBL. A marketable quantity of GBL was two grams, and she had therefore imported 223 times more than the threshold for a marketable quantity. The prescribed commercial quantity of GBL is one kilogram. The purity of the drug was also relevant and in this case was high, being between 92% and 93.5%.

43. The Crown submitted that the circumstances of the offender’s purchase of the drugs demonstrated that she was aware of the quantity, quality and nature of the drug to be imported.

The character, antecedents, age, means and physical and mental condition of the offender (s 16A(2)(m))

44. The offender was 53 years old at the time of the offending and is now 54. The Crown submitted she had a lengthy criminal history commencing in 2012, which largely comprised drug-related offences.

45. The Crown submitted that statements to psychologists and authors of pre-sentence reports should all be treated with considerable circumspection. Such evidence was untested and may be deserving of little or no weight.

Specific deterrence (s 16A(2)(j)) and prospect of rehabilitation (s 16A(2)(n))

46. The Crown submitted that the need for specific deterrence was high. The author of the SAR assessed the offender’s risk of reoffending to be medium-high. This was based on the offender’s history of antisocial behaviour, her minimisation and failure to accept responsibility for her offending by attributing blame to social networks and ignorance of the law, her substance abuse issues and her willingness to undertake intervention. The Crown submitted the offender’s prospects of rehabilitation should be seen as guarded. Further, her criminal history demonstrated bad character and this history is relevant to specific deterrence and her prospects of rehabilitation.

Guilty plea (s 16A(2)(g))

47. The utilitarian value of the offender’s plea is to be assessed according to the timing of the plea and the degree to which it resulted in any benefit to the community. The Crown conceded the plea was entered at the first reasonable opportunity, however, it was made in the context of a very strong prosecution case and as such it was made “in recognition of the inevitable”. It should be afforded minimal weight unless on the balance of probabilities the plea demonstrated genuine remorse, acceptance of responsibility and/or a willingness to facilitate the course of justice.

48. The Crown also annexed a table of comparative cases. The closest to the present facts was submitted to be DPP v Maxwell [2013] VSCA 50.

49. Finally, the Crown submitted that the seriousness of the importation offence and the lack of mitigatory circumstances are such that an immediate term of imprisonment with a non-parole period was required by way of sentence.

50. In her oral submissions, the Crown submitted that the offender’s prospects of rehabilitation were dependent on her not spending time with former criminal associates, however she continued to reside with her long-term partner and GBL was his illicit drug of choice. As he was the driver of her drug abuse, this presented a barrier to her successful rehabilitation.

51. The Crown submitted that the facts demonstrated that this was not a one-off impulsive decision by the offender. She had checked on the transit of the border controlled drugs five times, which demonstrated a sustained commitment by her to import the GBL.

52. The Crown submitted the court would not have regard to the impact of her sentence on her children, pursuant to s 16A(2)(p), as that would only occur if exceptional circumstances were established. Here, where both children were adults, any impact on them was an inevitable consequence of the offending.

The offender’s submissions

53. Counsel for the offender also relied on a detailed written outline of submissions. Counsel relied on the personal particulars and background of the offender set out in Exhibit 1. He submitted that the offending in Count 2 fell at the low range of objective seriousness for an offence of this type. The offender had purchased online in her own name a product called ‘GBL Europe Multi Gel Remover’ for approximately $47 AUD. It was submitted there was no actual evidence of any supply for profit and the offender denied any such assertion. The transaction was transparent and no fictitious pseudonyms were used for the purchase and importation process. There was no sophisticated planning involved.

54. The Crown submission was that the offender was importing the border controlled drug for her own financial benefit, however there was no evidence proving the same on the criminal standard. Sharing the small amount she obtained with friends does not prove an intention to benefit financially. It was further submitted there was no evidence that the offender misled or intended to mislead police as asserted by the Crown. Her moral culpability was significantly less in the factual matrix compared to others who import border controlled substances.

55. It was submitted that there was no victim of the offence and no loss or damage resulting from it.

56. Counsel submitted that the offender had displayed remorse and contrition. Whilst she was initially assured that what she was doing was legal, she accepts through her plea that she should have made further inquiries. As her plea of guilty was entered at the first available opportunity, the offender was entitled to the maximum discount available. She also cooperated with law enforcement agencies in the investigation, making full admissions and disclosures.

57. Counsel submitted that general deterrence should be attributed little weight as the offender suffered from a mental condition, namely, psychological symptomatology consistent with PTSD and a Major Depressive Disorder. She was therefore a poor medium for general deterrence.

58. Counsel submitted that having regard to the significant subjective factors, an alternative to a custodial sentence was appropriate in the circumstances here. The offender was 53 years of age at the time of offending and had demonstrated good prospects of rehabilitation, having advanced her treatment under Ms Ardren. Her rehabilitation ensures that she will not reoffend by addressing the underlying issues that bear upon the risk of recidivism, relying on R v Pogson (2012) 82 NSWLR 60 at [103]. It was further submitted, pursuant to s 16A(2)(p), that a custodial sentence would affect the offender’s children to whom she was trying to reconnect but for the current COVID-19 pandemic.

59. The offender also provided a list of comparative cases, of which the closest were submitted to be DPP v Costa [2019] VCC 695 and R v MA [2019] VCC 301, in which community correction orders of two years had been imposed in respect of the importation of 945.2 grams and 1.093 kilograms of GBL respectively.

60. It was submitted the court would consider the alternative sentencing option of an intensive correction order (“ICO”) and consider obtaining an ICO assessment.

61. In the alternative, if a custodial sentence was warranted, then the court would make a finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”). This finding would be based on the fact that it was the offender’s first time in custody, the offender has underlying drug issues that need to be further addressed, she has made progress with and has good prospects of rehabilitation and that she needs to be able to undertake the treatment plan outlined above for her.

62. It was further submitted by counsel that if no sentence other than a full-time custodial sentence was appropriate, then the court could adjourn the proceedings for the purposes of a home detention assessment. Otherwise, the court could consider a recognizance release order in accordance with Hili v The Queen (2010) CLR 502; [2010] HCA 45, taking into account the time already served.

63. It was submitted that the evidence established that the offender is a person who is capable of being a productive contributor to her family and the community and the court would give full weight to the deprivation she suffered as a child and young person by her exposure to domestic violence and child sexual abuse.

64. In his oral submissions, counsel for the offender rehearsed his submissions that the offender is progressing her rehabilitation, has insight into her offending and has accepted responsibility for it. It was further submitted that the author of the SAR’s assessment of her being of medium-high risk of recidivism was qualified by Mr Awit’s assessment in Exhibit 1.

65. Counsel submitted that intensive intervention was required for the offender’s rehabilitation. Whilst this takes time, she now has the comprehensive assistance of her drug and alcohol counsellor, Ms Ardren. The key issue was for her to avoid going back to her old associates which would minimise the risk of recidivism.

66. With respect to the comparative cases relied on by the Crown, counsel submitted that DPP v Maxwell was a completely different case, involving two counts of importing a commercial quantity of border controlled drugs for profit valued between $10,000 and $17,000. The offending here was unsophisticated, completely transparent and while she had a criminal history, it was in fact unremarkable. For that reason, it was closer to the decisions of Costa and MA referred to above.

67. Counsel acknowledged that it was unusual for a woman of the offender’s age to be charged with serious criminal conduct. However, she had demonstrated an ability to change and her previous time in custody following her arrest over 38 days had a salutary effect on her. The low objective seriousness of the offending and her strong subjective case warranted a non-custodial order.

Determination

68. Count 2 is the most serious of the three offences and must be dealt with pursuant to the provisions of the Crimes Act 1914 (Cth). Section 16A(1) provides that the court must impose a sentence or make an order that is “of a severity appropriate in all of the circumstances of the offence”.

69. In R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238, Johnson J summarised at [72] the following relevant principles that apply to the sentencing of Federal drug offenders for importation and possession offences (citations omitted):

“a)   problems may emerge when a sentencing court attempts to categorize the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court;

b)   although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported; the statements by the High Court in Wong v The Queen; Leung v The Queen do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type; in many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar;

c)    it is the criminality involved in the importation which must be identified…

d)    as a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit;

e)    the difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case;

f)   where offenders are not young (the offender here was 53 years old), the immaturity of youth cannot be claimed as a factor bearing upon their transgressions;

g)   where an offender is to be sentenced for an attempted possession offence, it should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, is relevant to determining the degree of moral culpability attached to the act of attempted possession itself, so that a sentencing Judge should have regard to the offender’s involvement in the overall transaction for the purpose of determining the offender’s degree of involvement in a drug-smuggling enterprise;

h)   offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugs;

i)   the range of sentences referred to in the decision of the Court of Criminal Appeal in R v Wong remain useful to sentencing for offences of this type; although they have no validity as guidelines, their utility results from the fact that they are based on the patterns of actual sentences, although allowance must be made for the repeal of s 16G Crimes Act 1914 (Cth).”

70. In relation to this offending, I make the following findings in respect of s 16A(2) of the Crimes Act 1914 (Cth).

Section 16A(2)(a) – nature and circumstances of the offence

71. By purchasing the GBL online using her own personal details and credit card for an amount less than $50, the offender was engaged in unsophisticated offending of an amount that was less than half the commercial quantity of GBL, which the Crown conceded has low commercial value by comparison to other border controlled drugs. Further, she was not participating in any form of criminal syndicate but rather was acting on her own accord and any financial benefit she was to receive by sharing the product with friends was likely to be minimal. Having regard to all of the circumstances of the offending, notwithstanding that the offender was aware that the activity was illegal, for an offence pursuant to s 307.2(1) of the Criminal Code Act 1995 (Cth), the objective seriousness of the offending was at the lowest end of the range for an offence under that section.

72. I take into account that the offender has expressed contrition for the offending, pursuant to s 16A(2)(f). I further take into account, pursuant to s 16A(2)(g), that the offender pleaded guilty at the earliest opportunity and notwithstanding that it was in the face of a strong Crown case, her plea had assisted the administration of justice by avoiding a trial. I intend to discount any sentence to be imposed by 25% as a result of her plea.

73. Whilst it was submitted that the offender assisted law enforcement agencies in the investigation of the offence by making admissions, I note that upon her arrest she told police she purchased the consignment for use as a paint remover. The degree to which she cooperated is therefore not to be given great weight in the sentencing process, pursuant to s 16A(2)(h).

74. Pursuant to sections 16A(2)(j) and 16A(2)(ja), the court must take into account general deterrence and specific deterrence. For the reasons outlined below in respect of the offender’s background, the impact of both general and specific deterrence in sentencing here is somewhat diminished.

Section 16A(2)(m) – the character, antecedents, age, means and physical or mental condition of the person

75. The offender was aged 53 years at the time of the offending and is now 54. Notwithstanding that the reports of Mr Awit (Ex 1) and Ms Ardren (Ex 2) must be approached with a great deal of circumspection in the absence of the offender giving evidence, I accept the personal history recorded by the authors of both reports. The offender’s formative years had been marked by exposure to domestic violence and also child sexual abuse. She was diagnosed with ADHD as a teenager and had struggled at school. Notwithstanding that she had worked successfully in nursing for 16 years and then as a sales representative for 8 years thereafter, those are matters which are relevant to diminishing her moral culpability for the offending.

76. The offender had been introduced to cannabis at the age of 15 and had commenced taking speed at the age of 19 years.

77. Whilst she stopped using speed for a period of 10 years while raising her two children, she commenced using methylamphetamine when in her mid-30s. Notwithstanding a number of unsuccessful attempts at rehabilitation, she had relapsed into drug use in the period leading up to the index offending.

78. The offender’s criminal history is reflective of that history of drug and alcohol abuse. The history disentitles her to leniency in sentencing, although leniency has previously been a feature of sentencing with numerous section 9 bonds being imposed for her to be of good behaviour.

79. I accept Mr Awit’s opinion that the offender’s drug use was a maladaptive coping mechanism. However, I do not accept his opinion that the offender’s mental health condition was causative of her current offending. That offending was the result of her ongoing drug abuse and association with other persons involved in the drug milieu.

80. I am satisfied that the offender exhibits symptoms of Post-Traumatic Stress Disorder, a Generalised Anxiety Disorder, a Major Depressive Disorder and Substance Use Disorder. For those reasons, she is not a suitable vehicle for general deterrence, which is otherwise important in sentencing for drug importation offences. It also diminishes somewhat the importance of specific deterrence in sentencing here.

Section 16A(2)(n) – the prospects of rehabilitation of the offender

81. The fact that the offender has engaged positively with the treatment regime of Ms Ardren since January 2021 and has had nil positive drug detection results during that time is compelling evidence that she has advanced her rehabilitation, that she has insight and self-awareness into her offending behaviour and that if she continues to engage in that program she has reasonable prospects of rehabilitation.

82. The offender’s risk of recidivism is inextricably bound to her adhering to her rehabilitation and relapse prevention program. I therefore do not accept the author of the SAR’s assessment that she is medium-high risk of reoffending. Given her age, the salutary effect of her arrest and subsequent imprisonment for 38 days, a more positive assessment of her risk of reoffending as that of Mr Awit is warranted.

83. Any effect that the offender’s sentence may have on her two adult children is not a relevant matter to take into account on sentence, pursuant to s 16A(2)(p).

84. Section 17A of the Crimes Act 1914 (Cth) provides that a sentence of imprisonment for a federal offence should not be imposed unless the court, after having considered all other available options, is satisfied that no other sentence is appropriate in all of the circumstances of the case. Here, given the low objective seriousness of the offending, the diminished moral culpability of the offender, her background and the subjective factors set out above, I am not satisfied that no other sentence than one of imprisonment is appropriate in all of the circumstances of this case.

85. I have had regard to the comparative cases referred to by both the Crown and counsel for the offender. The comparative cases are important for the distillation of sentencing principles and are illustrative of the range of sentences imposed for similar offending. Those sentences range from the imposition of community correction orders to sentences of imprisonment. In R v Colledge [2010] NSWCCA 302, the Court of Criminal Appeal imposed a fine in respect of the importation of a commercial quantity of GBL where the quantity exceeded two kilograms, twice the minimum commercial quantity. Sentencing is an idiosyncratic exercise, and each sentence must be determined on its own facts, having regard to the objective seriousness of the offending, any aggravating or mitigating factors and the offender’s subjective case.

86. Taking into account that the offender has already served 38 days in custody in respect of this offence, I intend to convict the offender of the offence in Count 2 and pursuant to s 20AB of the Crimes Act, impose a community correction order pursuant to s 8(1) of the CSPA for a period of 18 months. The standard conditions will apply, together with an additional condition that she remain under the care of Ms Ardren for a period of 12 months, or as long as Ms Ardren deems appropriate.

87. The objective seriousness of the offending in Count 1, possess prohibited drug (methylamphetamine – 2.32 grams) is at the lower end of the range of objective seriousness for an offence pursuant to s 10 of the DMTA. I intend to impose a fine of $300 for that offence.

88. In respect of the offence in Count 3, possess prohibited drug (ketamine – 0.24 grams), contrary to s 10 of the DMTA, I intend to convict the offender but proceed to no further penalty pursuant to s 10A of the CSPA.

Orders

89. I hereby order as follows:

1. You are convicted of the following offences:

Count 1 – possess prohibited drug (methylamphetamine – 2.32 grams) contrary to s 10 of the Drug Misuse & Trafficking Act 1985 (NSW).

Count 2 – import marketable quantity of border controlled drug (gamma-butrolactone) contrary to s 307.21(1) of the Criminal Code Act 1995 (Cth).

Count 3 – possess prohibited drug (ketamine – 0.24 grams) contrary to s 10 of the Drug Misuse & Trafficking Act 1985 (NSW).

2. In respect of Count 1, you are fined the sum of $300.

3. In respect of Count 2, pursuant to s 8(1) of the CSPA, instead of imposing a sentence of imprisonment you are ordered to comply with a Community Corrections Order. The term of the order is 18 months from today.

4. The standard conditions of the order apply:

1. You must not commit any offence;

2. You must appear before the court if called upon to do so at any time during the term of the order.

The following additional condition applies:

3. You must remain under the care of Ms Ardren for a period of 12 months, or as long as Ms Ardren deems appropriate.

5. In respect of Count 3, you are convicted with no further penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999.

6. You are directed to attend the court registry within two business days to obtain a copy of this order and have it explained to you.

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Amendments

23 September 2021 - amended case title

Decision last updated: 23 September 2021