R v Pickering-Wilson
[2022] ACTSC 353
•16 December 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Pickering-Wilson |
Citation: | [2022] ACTSC 353 |
Hearing Date: | 14 December 2022 |
DecisionDate: | 16 December 2022 |
Before: | Kennett J |
Decision: | See [69] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – attempting to possess a marketable quantity of an unlawfully imported border controlled drug, namely cocaine – where offender acted as courier – where 706.98g pure cocaine – where offender experienced extremely difficult childhood |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) ss 107, 108 Crimes (Sentencing) Act 2005 (ACT) ss 11, 37 Criminal Code Regulations 2019 (Cth) sch 2 |
Cases Cited: | Adams v The Queen [2008] HCA 15; 234 CLR 143 Blundell v The Queen [2019] ACTCA 34 Wong v The Queen [2001] HCA 64; 207 CLR 584 |
Parties: | The King ( Crown) Kyle Ian Christopher Pickering-Wilson ( Offender) |
Representation: | Counsel K Musgrove ( Crown) R Baldeo ( Offender) |
| Solicitors Commonwealth Director of Public Prosecutions ( Crown) Hugo Law Group ( Offender) | |
File Numbers: | SCC 65 of 2022 |
KENNETT J:
Introduction
The offender, Kyle Ian Christopher Pickering-Wilson, pleaded guilty to attempting to possess a marketable quantity of an unlawfully imported border controlled drug, namely cocaine, contrary to ss 307.6(1) and 11.1(1) of the Criminal Code 1995 (Cth) (the Code).
The maximum penalty is 25 years’ imprisonment, a fine of 5,000 penalty units, or both.
Facts
The facts are agreed and set out in an agreed statement of facts before the Court.
On 7 November 2021, an airfreight consignment arrived in Sydney from Nigera. The consignee was listed as ‘Samantha Cherry”. The consignee address was the offender’s residential address in Gordon. The consignment was declared as containing “weavon & eyelashes”.
Members of the Australian Border Force examined the consignment. They located 953.8g of cocaine in clear plastic bags concealed within sheets of cardboard attached to 20 packets of hair extensions. The consignment was seized by the Australian Border Force and later transferred to the Australian Federal Police (AFP).
On 10 November 2021, the offender sent the below encrypted text message to a contact saved in his phone as “Bonoboo”:
Offender: This thing is coming from overseas
Bonoboo: I thought it was comin within aus
Offender: Big dog said otherwise
On 21 November 2021, the AFP reconstructed the consignment by replacing the cocaine with an inert substance and installing a surveillance device.
On 24 November 2021, as part of a controlled operation within the meaning of s 15GD of the Crimes Act 1914 (Cth) (Crimes Act), an AFP member posing as a courier delivered the consignment to the offender’s residence. The listening device within the consignment recorded the AFP member asking for “Samantha Cherry”. The offender gave his name as “Kyle” and took possession of the consignment.
Later that day, the AFP executed a search warrant at the offender’s residence. The consignment was located on the floor of the offender’s bedroom. The AFP also located a set of digital scales, small clip-seal plastic bags, five mobile phones and two containers containing empty gelatine capsules
The offender agreed to participate in an electronically recorded conversation with the AFP, during which he made the following admissions:
(a) delivery of the consignment was organised by phone calls. He used his own mobile phone when doing this;
(b) he did not know the name or phone number of the person that contacted him in relation to the consignment;
(c) he had ‘no idea’ when he was receiving the consignment, except that it would arrive on 24 November 2021;
(d) he did not know the consignee;
(e) he did not know why the consignment was addressed to someone else. He had been told to receive the consignment. He was being paid in cash to do so but did not yet know the amount he would receive;
(f) he put the consignment straight in his room; and
(g) when asked what the consignment contained, he said “I’ve got no idea what is actually in the box. I was just told I was receiving it”. In response to further questions, he indicated that he suspected the consignment contained cocaine. He later said that, a little while after agreeing to take delivery of the consignment, he had made the assumption it would contain cocaine.
The AFP then arrested the offender.
Forensic analysis was undertaken on the cocaine. The gross weight was 952.8g. The purity was 74.2 per cent, giving a pure weight of 706.98g
General principles
The general principles applicable in sentencing for drug importation offences, including an offence against provisions in Division 307 of the Code, are well established. These principles were stated by Johnson J (with whom MacFarlan JA and RA Hulme J agreed) in R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106 (Nguyen) at [70]–[72]. For present purposes, it is sufficient to adopt Adamson J’s summary of these principles in R v Karan [2013] NSWCCA 53 at [54]. This summary was accepted by the ACT Court of Appeal as a correct statement of principle in R v Harrington [2016] ACTCA 10; 11 ACTLR 215, [46] (Murrell CJ), [109] (Refshauge ACJ and Gilmour J) and is set out below:
(a)the criminality of an offender must be assessed by reference to the involvement of the offender in the steps taken to effect the importation;
(b)offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugs;
(c)it is often difficult for a sentencing court to attempt to categorise the offender's role in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the court;
(d)the fact that another person may be characterised as the "mastermind" does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility;
(e)although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported;
(f)it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit;
(g)the difficulty of detecting importation offences, and the great social consequences that follow, suggest that general deterrence is to be given chief weight on sentence to signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment;
(h)involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served;
(i)the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence.
Objective seriousness
Role and involvement
The nature and extent of the offender’s involvement in the importation, as well as the offender’s role in the drug enterprise, are important when assessing the objective seriousness of drug importation offences.
Here the offender agreed to take possession of the consignment and store it, at least temporarily, in his residence. There was some degree of premeditation involved. As the text messages at [6] establish, by at least 10 November 2021, the offender was aware that the consignment would was being delivered from an international location and the offender had formed the assumption that the package would contain cocaine. There is not, however, any evidence that the offender had actual knowledge that the consignment would contain cocaine, or any awareness of the quantity of drug contained therein.
There is limited evidence before the Court as to the scale and sophistication of the drug enterprise or the exact role occupied by the offender. What is apparent from the text messages and admissions made by the offender is that the offender was taking direction from another individual, who organised for the offender to receive the consignment in return for payment.
This role is limited, but it is not insignificant. Such a role, often given the short-hand description of “courier”, is an important and necessary part of the enterprise. As Wood CJ at CL (with whom Spigelman CJ and Simpson J agreed) observed in R v Shi [2004] NSWCCA 135 at [34]:
… the culpability of those who engage, at any level, in drug supply networks is significant, and that deterrent sentences are necessary, since absent the involvement of couriers, warehousemen and so on, these networks, whether established for the purposes of importation or subsequent distribution, would simply collapse.
(citations omitted)
Motivation for offending
Motivation for offending is a relevant circumstance when assessing objective serious because it provides the context in which the offending occurred: see Kuo v R; Huang v R; Shih v R [2018] NSWCCA 270, [88]. The motivation of profit will, all other things being equal, increase the objective seriousness of the offending: see Kwan v R; Kwok v R [2020] NSWCCA 313, [44]; DPP (Cth) v Maxwell [2013] VSCA 50; 157 A Crim R 80, [21]–[30]. Profit is the “common sense” inference, as should be inferred unless there is specific evidence to the contrary: Nguyen, [72].
There is no evidence before me that would displace the inference that the offender’s motivation was financial. To the contrary, the offender knew he was to be paid in cash for receiving the consignment. He told the author of the pre-sentence report that he saw the offending as an “easy way to resolve his problems”, being financial strain, periods of unemployment, and a desire to relocate from the Territory to Queensland to escape anti-social peers. The offender willingly participated in the enterprise following discussions about it in a social setting.
Quantity of drug
Although not the controlling or chief factor to be considered when fixing sentence, the quantity of the drug being imported will usually be a relevant consideration when assessing objective seriousness. Its significance in the sentencing enterprise is often a function of the level of awareness of the offender; the greater the insight the offender had into the size of the importation, the greater the relevance of the quantity of the drug being imported.
The quantity of the drug imported was substantial. The pure weight of 706.98g is approximately 353 times the minimum marketable quantity of 2g of cocaine prescribed by sch 2, item 43 of the Criminal Code Regulations 2019 (Cth). As noted at [15] above, there is no evidence before the Court that the offender had any prior knowledge of the quantity of the drug contained in the consignment.
Consideration
Having regard to the above factors, I assess the objective seriousness of the offending as being in the low range, but toward the upper end of that range.
Subjective circumstances
Before the Court is a pre-sentence report and a psychological report of Dr Vanessa Edwige and it is from this material I have made findings about the subjective circumstances of the offender. The Crown submitted that I should treat the history given to Dr Edwige with caution as it was prepared on the basis of a two-hour audio-visual assessment and did not involve any verification of the history with third parties. The offender referred to the observations of McCallum JA (as her Honour then was) in Lloyd v R [2022] NSWCCA 18, where at [47] her Honour stated:
Where the report of a mental health professional is admitted without objection, qualification as to its use or cross-examination of the author, no principle of law requires the sentencing judge to exercise “very considerable caution” before relying on its contents absent evidence from the offender. It is by no means beyond debate that the court is the only forum in which a reliable medical history can be obtained. To sweep aside the considered opinions of medical experts with clinical experience in taking psychosocial histories and assessing their significance is, with respect, a lawyerly arrogance.
I do not take her Honour’s remarks as suggesting that, as a matter of general principle, the fact that statement made to a third party is untested cannot be considered when assessing the weight to be given to that statement or opinions of experts that use the statement as factual substratum: see R v Kember [2022] ACTSC 153, [67]–[68]. Rather, her Honour was suggesting that the weight and cogency of the evidence is a matter for assessment by the sentencing Judge. To disregard statements solely because they are untested as a matter of principle is to take an unduly restrictive approach to this task. What is required is critical analysis of the statement and how it sits with other evidence before the Court.
On balance, I accept the history given by the offender to Dr Edwige. Although it gives a greater degree of detail, it is broadly consistent with the history given to the author of the pre-sentence report which, at least in some respects, was verified by the author with the offender’s aunt.
The offender is 24 years old. His parents separated prior to his birth and he was raised by his mother and stepfather. He has two younger half-brothers and two younger half-sisters. Presently the offender is single, but he has had two previous intimate relationships.
From a young age the offender was exposed to family violence. He reported that his stepfather was a violent alcoholic who would verbally and physically abuse his mother. From the age of eight, the offender was also physically and verbally abused by his stepfather. This abuse continued until the offender was approximately 18.
At age 15, the offender left home. He would stay at the houses of friends for periods of weeks or months. Occasionally, he would return to live at the family home. However when he did, he would be subjected to abuse by his stepfather, prompting him to leave again. At age 17, he moved to Bateman’s Bay to reside with his grandparents for a year before returning to the Territory at 18. At age 20, he moved in with his aunt and uncle.
He maintains positive relationships with his mother and some of his siblings. He has a particularly strong relationship with his aunt, with whom he intends to live if released on a community-based sentence.
The offender left formal education during Year 11. He has been employed in various positions since, including working as a gyprocker and in steel fixing. Despite the effects of his difficult upbringing he has managed to remain in employment for most of the time since leaving school. He lost his job steel fixing two weeks prior to entering custody. While in custody, since 17 January 2022, the offender has been employed in a trusted employment position as a grounds maintenance member.
He has a history of drug abuse commencing at a young age. He first smoked cannabis at age 13, having been associating with anti-social peers who were doing the same. At age 15, he started using methamphetamine and quickly progressed to daily use. His use continued until he moved to Bateman’s Bay at 17 (a move that was, in part, prompted by a desire to “get off the ice”). On his return to the Territory, he started using cocaine and methylenedioxymethamphetamine. His use was initially recreational and limited to weekends. However, at age 22, he began using cocaine more frequently. His use fluctuated according to disposable income, but he reported using it “as often as he could”. The offender has not engaged in any drug counselling or rehabilitation.
Although he does not have any convictions for like offending, the offender does have criminal antecedents. Among other things, he has convictions for a range of driving offences, assault occasioning actual bodily harm and damage to property not exceeding $5000. These criminal antecedents demonstrate that, while the offending before the Court is an escalation in criminal behaviour, his failure to comply with the law is not an aberration.
The offender has a history of poor compliance with community-based sentencing dispositions. Most recently, on 18 November 2021, the offender was sentenced by a Magistrate for driving while his licence was suspended by law, driving a motor vehicle with alcohol in his blood or breath and failing to notify the Road Transport Authority of a change in address. The offender was convicted and released immediately on entering into good behaviour order. The offence before this Court was committed during the term of good behaviour orders and I was asked by the Crown to deal with this breach pursuant to ss 107 and 108 of the Crimes (Sentence Administration) Act 2005 (ACT). The offender has also previously breached good behaviour orders imposed in relation to offences of assault occasioning actual bodily harm.
The offender displayed insight into the impact his offending may have had on the community, stating that “such an influx of illicit substances was more than enough to ruin lives and destroy families”. He did not seek to minimise his responsibility for the offending; while he noted that when he learned the package was coming from an international location he wanted to remove himself from the process, he acknowledged that he should not have initially agreed to participate.
The offender expressed contrition towards both Dr Edwige and the author of the pre-sentence report and, given the degree of insight the offender has displayed into the offending, I am satisfied that this contrition is genuine.
Application of the principles in Bugmy and Verdins
On behalf on the offender it was submitted that he experienced an extremely difficult childhood that was marred by significant childhood disadvantage such that the principles in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy) were enlivened.
The Crown did not wish to be heard against the proposition that the Bugmy principles were enlivened but submitted that their application to the offender’s sentence was a matter of weight.
In Bugmy at [44], the High Court observed that:
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
Following Bugmy, it is now settled that the effects of “profound childhood deprivation” are to be given full weight in every sentencing decision. However, the reference to “full weight” does not require that they be given the same weight in every case. The extent to which the offender’s moral culpability is reduced, and how that interacts with the purposes of sentencing, will vary between cases. Although I consider that it is not necessary to establish a causal connection between the offender’s upbringing and the his offending behaviour before having regard to the Bugmy principles, such a causal connection would almost invariably tend to establish that moral culpability is reduced to a degree: see Dungay v R [2020] NSWCCA 2019, [136]–[153].
In the section of her report concerning the impact of childhood disadvantage on the offender, Dr Edwidge concludes that the disadvantage that the offender was exposed to has “significantly impacted on his social and emotional wellbeing” and that he has “externalized this trauma through his conduct and risk-taking behaviours”. In support of this conclusion, Dr Edwidge states, among other things, that:
Research indicates that children exposed to family violence and in particular witnessing their parent being assaulted have difficulties regulating their emotions and have emotional and behaviour issues similar to a child that has been sexually abused.
I accept that the offender experienced an extremely difficult childhood that was marred by significant childhood disadvantage, particularly prolonged exposure to family violence, and that this impacted on his social and emotional wellbeing enlivening the principles in Bugmy. However, I do not consider that this is a case where the circumstances of deprivation significantly reduce the offender’s moral culpability. I accept that the offender was a person who had “fewer emotional resources to guide [his] behavioural decisions” and therefore does not bear equal moral responsibility with a background that could be termed normal of advantaged: see R v Millwood [2012] NSWCCA 2, [69]. But it is not a case where, as might be with an impulsive or violent offence, that could be said to be substantially explained by dysfunctional tendencies absorbed as a result of the disadvantage to which the offender was exposed. Nor–given the offender’s positive relationships with some family members and his history of employment–does it appear that his childhood disadvantage has narrowed his choices in life to such an extent as to make recruitment to criminal activity hard to resist.
In this case, the application of the Bugmy principles also overlaps with the principles in R v Verdins [2007] VSCA 102; 16 VR 269 (Verdins): see also DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1. In the opinion of Dr Edwige, the offender’s childhood disadvantage and complex developmental trauma significantly contributed to the development of a range of mental health conditions. He was said to meet the DSM 5 diagnostic criteria for persistent depressive disorder, social anxiety disorder and substance use disorder.
In Verdins at [32] the Victorian Court of Appeal distilled six ways in which impaired mental functioning of an offender may affect the sentencing exercise. Although counsel for the offender referred to the Verdins principles generally, I understand (based on the submissions advanced) that what was sought to be invoked were the first and third limbs of those principles. These limbs are set out below:
Impaired mental functioning, whether temporary or permanent (“the condition”), is relevant to sentence in at least the following six ways:
1.The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
…
3.Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
It is well established that, in order for a court to find that an offender’s moral culpability is lessened, there must be a real or causal connection between the mental impairment and the offending (see, eg, DPP v O’Neill [2015] VSCA 325; 47 VR 395, [74], Ibrahim v The Queen [2016] NSWCCA 6, [36]). This may arise where the offender’s condition impaired their ability to appreciate the wrongfulness of his conduct, obscured their intent to commit the offence, or impaired their ability to make calm and rational choices or to think clearly at the relevant time. As a factor in mitigation, the requisite causal connection must be established by the offender on the balance of probabilities (R v Olbrich [1999] HCA 54 199 CLR 270). The focus of the inquiry should not be on diagnostic labels, but the nature, extent and effect of the relevant condition on the offender: see Brown v R [2020] VSCA 212; 62 VR 491, [21].
In Dr Edwige’s opinion, the combination of disorders referred to at [41] above “had a significant impact on [the offender’s] decision-making, judgement, behaviour and emotional regulation.” It was said that:
The ongoing toxic stress he experienced throughout his life has left [the offender] in a constant state of fight, flight, flee. His ability to employ executive functioning skills has been significantly diminished because of his perpetual state of anxiety and stress.
On balance, I accept that the disorders in combination impaired, to some degree, the offender’s ability to make a reasoned judgment about his initial decision to participate in the offence. However, I am not satisfied that this causal connection was so significant that the offender’s moral culpability should be greatly reduced. The agreed facts indicate that the offender knew the package was coming around two weeks before its actual arrival, and the tone of the text messages on 10 November indicate some prior understanding at that time. I am not persuaded that the offender did not have time and space to think carefully about whether to accept a role in the enterprise. Nor do I consider that the nature and severity of the condition is such that general deterrence should be substantially moderated as a sentencing purpose.
Prospects for rehabilitation
The author of the pre-sentence report assessed the offender as medium to low risk of reoffending.
Given his youth and protective factors such as stable accommodation and positive family relationships, I consider that the offender has reasonable prospects of rehabilitation. The greatest risk for recidivism is the offender’s illicit substance use and symptomatology associated with the impairments diagnosed by Dr Edwige, but I take some comfort in the insight he has shown when discussing these matters with Dr Edwige and the author of the pre-sentence report as well as his indication that he is willing to engage in counselling to address these matters.
Other sentencing considerations
Guilty plea
On 8 September 2022, the offender entered a plea of guilty. This plea was indicated at criminal case conferencing and prior to the matter being listed for trial. The trial had an estimate of five days.
Following an amendment to the Crimes Act, it is clear that the Court may take into account the utilitarian value of the guilty plea when considering it pursuant to s 16A(2)(g): see, eg, Small v R [2020] NSWCCA 216, [73]; R v Sagnelli [2020] ACTSC 348, [26]; R v Yavuz (No 2) [2020] ACTSC 248, [74]; cf R v Harrington [2016] ACTCA 10; 11 ACTLR 215.
While there is no requirement contained in the Crimes Act to specify the exact amount of the discount (cf, Crimes (Sentencing) Act 2005 (ACT) s 37), I consider that it is beneficial to do so in the interests of transparency. The approach taken in this Court when considering discount to be afforded to pleas of guilty entered at or as a result of criminal case conferencing is to allow a discount of between 15 and 20 per cent: see, eg, Blundell v The Queen [2019] ACTCA 34 [12], [14].
Notwithstanding the fact that the pleas were not entered at the earliest opportunity, the pleas had significant utilitarian value and I consider a discount of slightly above 15 per cent is appropriate.
Time in custody
The offender has spent a period of 387 days in custody since his arrest. I will backdate the sentence to 24 November 2021 to take into account this period in custody.
Comparative cases
The need for sentencing consistency throughout Australia requires this Court have regard to sentencing practices throughout Australia: R v Pham [2015] HCA 39; 256 CLR 550, [18].
The parties provided a number of comparative cases. None is on all fours with the present and many involved offenders with a higher degree of involvement in the drug enterprise than that of the present offender. Many also concern prohibited substances other than cocaine. In considering those cases, I have had regard to the quantity-based penalty regime imposed by the legislature and the impermissibility of adopting a “judicially constructed harm-based gradation of penalties” depending on the nature of the substance concerned: see Adams v The Queen [2008] HCA 15; 234 CLR 143, [10].
The Crown placed particular reliance upon Omorogbe v R [2013] NSWCCA 201; 234 A Crim R 556. The offender in that case attended a newsagency where a parcel containing 254.6g of cocaine (of 42 per cent purity) had been deposited into a private mailbox leased under the name “Stephen Wayne”. To police, the offender claimed that he had received a telephone call from someone asking him to collect a package, and that the key to the mailbox had been placed under his door. He claimed not to have known the package contained drugs.
The sentencing judge considered the offender’s role did not go beyond collecting drugs for an unknown person. This finding was not disturbed on appeal where Macfarlan JA and Adams J, writing separately, treated the offending as an isolated incident and sentenced the offender to four years’ imprisonment with a non-parole period of two years and six months.
Ojielumhen v The Queen [2014] ACTCA 28 is somewhat similar. Police intercepted a parcel said to contain a DVD player. Inside the parcel was 325.1g of cocaine of 60.4 per cent purity. Police substituted the cocaine with an inert substance. The offender and a co-offender collected the parcel from a post office. The Court of Appeal sentenced the offender to five years’ imprisonment with a non-parole period of two years and six months. His role, for which he was to receive payment of $1,500, was described as being to collect the parcel from the post office and provide it to another party.
A sentence of three years’ imprisonment including a condition requiring completion of a 12-month rehabilitation course was imposed in R v LeGros [2020] NSWDC 733. There, the offender pleaded guilty at the earliest opportunity to attempting to possess 739.86g of cocaine. A discount of 40 per cent was given in recognition of the early plea and the offender’s assistance to the Crown. The offender’s role in the drug enterprise was slight and the Court took into account on the schedule a similar offence of attempting to possess.
In Duque v The Queen [2019] VSCA 212 a sentence of six years’ imprisonment with a non-parole period of four years was found to be “plainly within range” for attempted possession of 704g of cocaine with a pure weight of 403g where the offender was the “Australian organiser” of the operation.
I was referred on behalf of the offender to, among other cases, Director of Public Prosecutions v Kachunga [2016] VCC 806. The relevant charge in that case involved the offender attending an address and asking the occupant to collect a parcel from a nearby post office. The parcel contained about 504g of methamphetamine. The sentencing Judge imposed a sentence of two years’ imprisonment. Save for the residual discretion (which was exercised because the offender had been released on parole), that sentence would have been increased to four years’ imprisonment on appeal: Director of Public Prosecutions v Masange; Director of Public Prosecutions v Kachunga [2017] VSCA 204; 268 A Crim R 483, [9]. I note that the offender had an ongoing role in the syndicate which involved more than simply collecting drugs.
In R v Keelan [2022] NSWDC 387, the offender attempted to possess, in total, 239.57g of pure heroin. The offender had a long criminal history. His moral responsibility was lessened by his difficult upbringing. He had diagnoses of complex post-traumatic stress disorder and substance use dependence and a depressive disorder. These challenges were found to have led to his poor decision making. After a discount of 25 per cent in recognition of his plea of guilty, the offender was sentenced to imprisonment for three years and four months, with a non-parole period of two years.
Consideration
The offender conceded, correctly in my view, that the only appropriate sentence is one of imprisonment. The maximum penalty of 25 years’ imprisonment indicates the seriousness with which the legislature regarding this type of offending, even where it falls towards the lower end of objective seriousness.
There was, however, some contest about how that sentence of imprisonment should be served. By operation of s 20AB(1) of the Crimes Act, this Court may impose an intensive corrections order (ICO) within the meaning of s 11 of the Crimes (Sentencing) Act 2005 (ACT). The Crown’s view was that a sentence of full-time term of imprisonment was required. The offender submitted that the sentence could be served by way of ICO.
I do not consider that an ICO is an appropriate sentencing disposition. As the High Court made clear in Wong v The Queen [2001] HCA 64; 207 CLR 584 at [64] (Gaudron, Gummow and Hayne JJ), great social consequences flow from the commission of drug importation offences and they are difficult to detect and prosecute. As was observed in Nguyen, as a matter of a general principle, general deterrence must be of paramount concern to deter those who would engage in such conduct. The sentencing purpose of general deterrence is ordinarily not served unless a significant sentence is imposed.
Although I have accepted that the principles in Bugmy and Verdins have some application to the present case, I still consider that general deterrence must play a prominent role and that this purpose is only adequately achieved by imposed a full-time custodial term.
In fixing the non-parole period, while still imposing a length of time that I consider to reflect the minimum that the justice of the case required in order to satisfy all of the sentencing purposes, I have placed greater weight on the offender’s youth and prospects for rehabilitation.
In respect of the breaches of the good behaviour orders imposed by Chief Magistrate Walker on 18 November 2021 I consider that, given the length of the custodial term that will be imposed for the offending before the Court, the appropriate course is to note the breaches but take no further action.
Sentence
The orders of the Court are:
(1)On the charge of attempting to possess a marketable quantity of an unlawfully imported border controlled drug, namely cocaine (CAN 11367/21) I convict the offender and impose a sentence of three years and seven months’ imprisonment (reduced from four years and three months’ imprisonment because of the guilty plea), from 24 November 2021 to 23 June 2025.
(2)I fix a non-parole period of two years’ imprisonment, from 24 November 2021 to 23 November 2023.
(3)I note the breach of the good behaviour orders imposed by Chief Magistrate Walker on 18 November 2021 for driving while his licence was suspended by law (CC2021/9259), driving a motor vehicle with alcohol in his blood or breath (CC2021/9260) and failing to notify the Road Transport Authority of a change in address (CC2021/9261) and take no further action.
| I certify that the preceding sixty-nine [69] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Kennett Associate: Date: |
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