R v Ritson

[2024] NSWDC 202

District Court

New South Wales

Medium Neutral Citation:

R v Ritson [2024] NSWDC 202

Hearing dates:

11 April 2024
10 May 2024

Date of orders:

10 May 2024

Decision date:

10 May 2024

Jurisdiction:

Criminal

Before:

Anderson SC DCJ

Decision:

(1) The offender is convicted in relation to both of the matters before the Court.

(2) With respect to the offence of possessing an unregistered firearm, the offender is sentenced to a fixed term of imprisonment of 4 months, commencing 15 February 2022 and expiring 14 June 2022.

(3) With respect to the offence of being involved in a conspiracy to import a commercial quantity of a border-controlled drug, the offender is sentenced to a non parole period of 7 years, commencing 14 March 2022 and expiring 13 March 2029, with an additional term of 3 years and 6 months, expiring 13 September 2032, making a total head sentence of 10 years and 6 months.

Catchwords:

CRIMINAL – sentence – Commonwealth drug importation offence

Legislation Cited:

Criminal Code 1995 (Cth)

Firearms Act 1996 (NSW)

Crimes Act 1914 (Cth)

Judiciary Act 1903 (Cth)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Procedure Act 1986 (NSW)

Cases Cited:

Tyler v Regina; Regina v Chalmers [2007] NSWCCA 247

Category:

Sentence

Parties:

Commonwealth Director of Public Prosecutions (Crown)
Peter Ritson (Offender)

Representation:

Counsel:
Ms R Suters (Crown)
Ms G Jewison (Offender)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
David Leamey Solicitor & Barrister (Offender)tyler

File Number(s):

2022/45040

JUDGMENT

1. The offender comes before the Court in relation to two matters. The first is a conspiracy to import a commercial quantity of a border‑controlled drug. That is an offence under s 11.5(a) and 307.1(1) of the Criminal Code 1995 (Cth) and carries a maximum penalty of life imprisonment and/or a fine of 7,500 penalty units.

2. There is a second offence, which is a New South Wales offence, brought pursuant to s 36(1) of the Firearms Act 1996 (NSW) that offence is for the possession of an unregistered firearm. The maximum penalty for that offence is five years imprisonment.

3. As one offence is a New South Wales offence and the other is a Commonwealth (or Federal) offence there are two parallel sentencing regimes in place. One is governed solely by New South Wales law, being the firearms offence, while the Commonwealth charge applies both Commonwealth law, being the Criminal Code 1995 (Cth) and the Crimes Act 1914 (Cth), and by virtue of s 68 of the Judiciary Act 1903 (Cth), where necessary, it also applies New South Wales law, for example, the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”) and the Criminal Procedure Act 1986 (NSW) where necessary.

4. Section 16A(2) of the Crimes Act 1914 (Cth), sets out a range of matters to which a sentencing court is to have regard when imposing its sentence. I will address each of the subsections where it is relevant.

Plea of guilty

5. The offender entered a plea of guilty in relation to this charge on 7 December 2022 at the Newcastle Local Court. As a consequence of that plea and the New South Wales early appropriate guilty plea (“EAGP”) regime, his sentence for the NSW firearms offence will be reduced by 25%. Although the EAGP regime does not strictly apply to Commonwealth matters, I will also apply a 25% discount in relation to the Commonwealth offence. The offender’s plea of guilty and its timing is to be considered by virtue of s 16A(2)(g) of the Crimes Act 1914 (Cth).

Form 1

6. In addition to those two principal sequences there are two matters before the Court on a Form 1, attaching to the firearms offence.

7. The first of those matters is a matter at s 65(3) of the Firearms Act 1996 (NSW), being the unlawful possession of ammunition. Secondly, a matter under s 39(1)(a) of the Firearms Act 1996 (NSW), that is, not keeping a firearm safely. With respect to the possession of the ammunition that is a matter that attracts a fine of 50 penalty units, and with respect to the not keeping a firearm safely charge that carries a maximum fine of 12 months imprisonment or a fine of 20 penalty units.

8. I consider it appropriate that I take those further matters into account, and I do so in accordance with the principles set out in the New South Wales Guideline Judgment, the effect of which is not to increase the objective seriousness of the principal offence, but to emphasise the role of specific deterrence.

FACTS

9. There is a detailed Statement of Facts before the Court in this matter which runs to 14 pages. I do not propose to read it all out, but I am going to refer to many of the key facts. The parties can be assured that I have read the entirety of the document and taken it all into account.

10. The facts are as follows. The offender, Mr Ritson, is currently approximately 62 years of age and his co-offender in this matter, Ms Felicity Fraser, is about 45 years of age. The offences occurred several years ago, when Mr Ritson was about 60 and Ms Fraser about 43.

11. Ms Fraser became acquainted with Mr Ritson in 2015. Between August 2017 and 3 October 2021 Ms Fraser and the offender conspired to import a commercial quantity of cocaine from South America to Australia. This began on 3 August 2017 when the offender created a company called Kray Services Pty Limited (“Kray Services”). He was its sole director. At some stage just before the company was registered Ms Fraser started working for Mr Ritson as the secretary.

12. On 8 August 2017, a bank account was opened for Kray Services with the Commonwealth Bank, nominating the offender as the director and authorised signatory of the account, with Ms Fraser as a co-signatory. This bank account was created and utilised to facilitate the conspiracy to import border-controlled drugs. The bank records for Kray Services demonstrate that during the relevant period. an amount of $1.5 million passed through that account. The offender admitted in his record of interview with police that about $350,000 of those funds had been deposited into the account and directly used as payment for the importation of the drugs.

13. There is no evidence that the offender personally gained any of the cash that was withdrawn from the bank account, rather those funds were used to further the conspiracy in some unspecified way.

14. Three containers were ultimately imported into Australia pursuant to the conspiracy to import a border-controlled substance, namely cocaine, but none of them contained the prohibited substance. The offender and Ms Fraser engaged in planning for a fourth shipment, but this did not eventuate.

15. The importations were organised by the offender through an associate in Peru, known only as “Benny”. The offender obtained cash from Benny or another associate to pay for the cost of the freight, other importation costs and materials associated with the three containers’ arrival. The drugs were to be provided upfront by contacts in Peru.

16. Ms Fraser assisted the offender with the importation by conducting the banking for Kray Services, including making the payments to Peru through Kray Services to bank accounts and organising and paying of invoices for the freight and importation fees. Ms Fraser also assisted the offender to unload the containers and acted as a confidante throughout the process.

17. During the relevant period the offender also organised various parcels to be received by air freight containing quantities of prohibited drugs that he referred to as samples, and which I will refer to again shortly. Ms Fraser received and delivered the offender’s parcels, knowing that they may have contained prohibited drugs and provided them to him unopened.

18. As I say, there were four planned shipments of border-controlled drugs. The first of these was expected to contain 100 kilograms of cocaine. Around 24 August 2018, the first shipment arrived at Port Botany. On 5 September 2018, it was forwarded to a property known as Dragonsfield in the Hunter Valley, which, as I understand it, is an area where the unpacking of the container was to occur. Both the offender and Ms Fraser attended the site for the purposes of unloading the container and they borrowed a forklift from someone in order to do so.

19. Benny provided the offender with instructions on how to remove the cocaine, which was supposed to be concealed within wood that was within the container. Benny advised that the shipments would be marked to indicate the precise location of the cocaine and the marking could only be identified using a special blue light.

20. Between 5 and 7 September 2018, Ms Fraser and the offender took steps to purchase to an ultraviolent light and black lights for the purpose of detecting the special markings. However, when the wood was inspected, no markings were identified. The co-offender and the offender then split all the wood in the shipment using an axe and a cutoff saw searching for the cocaine. No cocaine was found in that shipment.

21. The second shipment was expected to contain 200 kilograms of cocaine. On 10 December 2018 the second shipment was reported to Australian Border Forces Integrated Cargo System and on 13 December 2018 Ms Fraser and the offender had a phone conversation about the expected arrival of this container.

22. On 4 January 2019, the second container arrived in Port Botany. Prior to 20 January 2019 Benny informed the offender that “there was a problem on their end” and the second shipment would not actually contain any cocaine as expected.

23. On 23 January 2019, the second shipment arrived at the Dragonsfield property, and the offender and Ms Fraser unloaded it, but given they knew there was no cocaine, they made no attempt to breakdown the wood.

24. A third container with cocaine was arranged. This time the offender told Ms Fraser that it would contain something in the order of 250 kilograms of cocaine. Between 9 February 2019 and 20 August 2019, the offender and Ms Fraser discussed the logistical matters concerning the expected arrival of the third container.

25. On 11 June 2019, the offender had a conversation with an associate regarding accommodation for Benny when he came to Australia. On 21 June 2019 the offender and Ms Fraser met to discuss a fourth shipment that Benny was organising that would contain eight pallets of horse feeders.

26. Ms Fraser discussed opening a new company for it and told the offender that she would speak to the accountant later that day. The offender told Ms Fraser to include $2,000 for Benny’s accommodation to Australia.

27. On 28 August 2019, the third shipment arrived at Dragonsfield and the offender and Ms Fraser accepted the delivery. The offender used a forklift to remove a product known as Zeolite from a flatbed truck and trailer and unload it into a shed next to the teak timber. Nothing of interest was found in this shipment by Australian Border Force and it did not contain any cocaine.

28. Following receipt of the third shipment, between 11 September 2019 and October 2021, the offender and Ms Fraser discussed logistics and their expectations regarding the planned fourth container’s arrival. Planning for the shipment extended to 3 October 2021 – two years later than the others - due to logistical issues flowing from the COVID‑19 pandemic, but this fourth shipment never arrived. Part of this preparation included a meeting which occurred on 23 March 2021 where the offender met with an unidentified male at Umina Beach and later that day with Ms Fraser. They discussed the $35,000 shipment cost for the fourth shipment. This person stated that the shipment had been packed, not detected by local law enforcement and was ready to be loaded onto a ship and transported to Australia. They discussed the shipment, commencing with one smaller size and with larger sizes to follow. There were further discussions of this nature for several months. It was clearly the parties’ expectations that the fourth container would arrive.

29. In addition to the substantial amount of 550kg of cocaine, which was to be imported in the first three containers, smaller samples of illicit substances had been sent from overseas to the offender. Between 11 December 2017 and 16 October 2020, the offender arranged with his overseas contacts to sample quantities of border-controlled substances prior to the importation of the larger quantities. There were six samples. Two cocaine samples were hidden in a homemade juke box, a third cocaine sample was contained in an ink toner cartridge, a fourth sample was methamphetamine, hidden inside some coconut oil, a second lot of methamphetamine hidden inside A4 paper and a sixth sample, this time of heroin, held in what a Statement of Facts referred to as “compendiums”.

30. Between 23 March 2021 and 13 April 2021, these samples were analysed by Australian Border Force. The details of those quantities are not important for the purposes of my sentencing given that the offender is not charged with any offences arising from them, but it is sufficient to say they were significant amounts and are connected to the planning of the conspiracy.

31. With respect to the firearms offence, which includes the two matters on the Form 1, the firearms offence was detected on 15 February 2022. The firearm, the subject of the charge, was found at the offender’s residence during a time it was searched by police. It was found in a garage on the property, on top of a set of shelves. It was a .22 calibre Fabrique Nationale pump‑action repeating rifle. It was hidden inside a rifle case that was wrapped in a blanket. The offender did not hold a licence to possess the firearm and it was unregistered. Inside the rifle case police located 22 rounds of 0.22 long range ammunition capable of being fired from the rifle.

32. I note that before me as one of the exhibits tendered on behalf of the offender is a letter from his brother, Mr Luke Ritson, in which Mr Luke Ritson takes responsibility for the ownership of that rifle. Nonetheless it was an offence for the offender to have it in his care and unsecured and with ammunition at the time that the police seized it.

33. That is a relatively brief overview of the complex facts giving rise to these charges.

Objective seriousness

34. The objective seriousness of these offences is to be assessed without matters personal to a particular offender or class of offenders, it is to be determined wholly by reference to the nature of the offending.

35. In the case of Tyler v Regina; Regina v Chalmers [2007] NSWCCA 247, the Court of Criminal Appeal recognised that identifying the role of a participant in a conspiracy by reference to their position in the organisational hierarchy is a very difficult proposition for a court to resolve. It is often difficult to isolate the precise physical acts that can be attributed to a particular offender who is operating as part of a conspiracy. I have, however, considered the offender’s role that has been set out in the facts that I have just outlined.

36. The physical acts of the offender were significant and ran over several years. However, the volume of that work alone does not necessarily elevate his role to being one in a high position of importance within the organisational hierarchy. In my view, while Mr Ritson had an important role on the Australian side of the importation, he does not appear to be an important or senior figure within the syndicate itself. I have considered his role in the planning of the operation. While he does play an important part with respect to the unloading of the container, he is not involved in the actual planning or organisation, let alone the sourcing of the cocaine, and its shipment to Australia beyond simply receiving it.

37. In my view, he would be regarded as a low-level facilitator. The amount he was paid for his role was also minimal. However, the fact that he knew he was involved in an importation of a substance which was illegal, and he did so willingly for four years is important. His role in setting up bank accounts and working with both the co‑offender, Ms Fraser, and his contact from overseas, Benny, shows he played an important role.

38. He employed Ms Fraser, it seems, because of her initial naivety, her good character, and her actual ability to do the administrative roles that were required for this job. Both he and Ms Fraser appear to have been paid some money over the course of the conspiracy, but it is not clear exactly what they received.

39. I have considered the duration of his involvement, which at four years demonstrates an extraordinary commitment to the cause. I have considered the potential quantum of both the border- controlled drugs and its value, both matters are uncertain in this matter, because the shipments, of course, never arrived. However, the quantities of illicit substances discussed are well above the minimum threshold which defines a commercial quantity of a border‑controlled drug, which with respect to cocaine is 2 kilograms. Even in the absence of a precise amount this is a critical factor in raising the level of objective seriousness. The same goes to the actual dollar value of the cocaine involved and although there is no actual dollar amount known and I cannot speculate as to what it is beyond simply saying it would be considerable.

40. The offender’s contacts clearly had access to industrial quantities of cocaine, given that they had told him on several occasions that the amounts to be imported were 100 kilograms or more leading to approximately 550 kilograms of cocaine being imported to Australia if the conspiracies had all succeeded.

41. The offender’s role in the failed importations was important because he organised the openings of a bank account, which were used for the payments associated with the importation and liaised with the mysterious Benny. As I indicated earlier, about $1.5 million went in and out of that bank account which he and Ms Fraser had access to.

42. It is clear from the Statement of Facts that Ms Fraser was a willing participant in this illegality and was more than just a pacific receiver of instructions on behalf of the offender. That is an important point to note when it comes to issues of parity.

43. Clearly the offender expected there to be large quantities of cocaine imported into Australia and clearly, he expected a financial reward. The fact that no prohibited drugs arrived was due either to mismanagement on the part of other people involved in the drug syndicate or because it was intercepted by Australian authorities. Importantly, in terms of assessing the objective seriousness of his conduct, the offender did everything he was required to do in order to facilitate the four discrete importations, albeit that he was simply a small cog in a very large international syndicate.

44. With respect to the firearms offence, I note these are generally offences which are prosecuted in the Local Court, although that does not necessarily mean that a lesser sentence is warranted in this Court. The facts do not reveal whether the weapon worked or not, but it was unmodified. It was discovered by police at a rural property, in a rifle bag, wrapped in a blanket and out of way. It was found during a police search and not found in public. It was not involved in any criminality. The ammunition that was seized was not secured nor was the weapon itself, hence those two matters being on the Form 1.

45. I have considered the offender’s moral culpability in relation to the firearms matter and the importation offence and I have found that it is reduced to some degree, for reasons I will detail later, but as presently relevant, because of his childhood depravation issues.

46. I find the importation offence being well above the mid-range of objective seriousness for matters of that nature, and I find the firearms offence at the low end of the range of objective seriousness, to the extent that it is necessary to give any type of evaluative name to where on a range they fall.

AGGRAVATING AND MITIGATING FEATURES

47. With respect to the aggravating and mitigating factors which might be relevant to the firearms offence I am required to consider s 21A(2) and (3) of the CSPA. With respect to aggravating features the parties have not submitted that any of those considerations would apply.

47. With respect to mitigation, I will take into account the offender’s plea of guilty and his remorse, which was expressed to some degree in the material before the Court, including his oral evidence. Both the plea of guilty and the remorse are matters that are taken into account under the Commonwealth regime via s 16A(2)(f) and (g).

48. During his oral evidence before me, the offender acknowledged the potential harm done to the community that would have occurred had these importations been successful. Ms Jewison, who appeared on behalf of the offender, submitted that he has also shown remorse by his acceptance of full responsibility upon his arrest and submitted that at the time of his arrest he made full admissions to police and that this would weigh in his favour in terms of my evaluation of his plea and his remorse.

49. The offender’s oral evidence on the topics of contrition and remorse was fairly thin. In fact, in some ways, he did not strike me as being genuinely remorseful, but in other ways he did. I accept his evidence that he recognised the damage that could be done to the community by the importation and, as I have indicated, I also accept that he is sorry for being involved in this criminality. However, I did form the impression that his remorse about these matters was relatively recent and only came after he was arrested. These were not matters that he had considered at the time of his offending. Nonetheless, I find on the balance of probabilities that he is remorseful.

ANTECEDENTS

51. With respect to the offender’s antecedents, he does have several entries on his criminal history. He has received various sentencing outcomes since 2004 for offences including aggravated break and enter, possessing a prohibited weapon without permit and possessing a shortened firearm without authority. His antecedents do not entitle him to leniency, but given their age, with one exception, and they are all completely different to this type of offence, so in my view, he is still entitled to some leniency, but not as much as a person would receive if they had never committed any other offence.

SUBJECTIVE MATERIAL

52. As I have noted the offender gave evidence during the sentencing hearing. He provided the Court with some additional facts which I have considered. The offender gave evidence that he was paid somewhere in the order of $20,000 to $30,000 over four years, but he was quite vague about this both in terms of the quantity and how frequently he was paid. Some of the money in the bank account was used to facilitate the importation and some money was also given to Ms Fraser, but it is completely unclear to what extent he actually benefited himself.

53. The offender’s evidence was that he was acting on instructions from other people when he undertook his involvement in the conspiracy, and he employed the co-offender on other people’s instructions. He told the Court that the expectation on behalf of the syndicate was that they would receive millions of dollars because of the successful importations, but he had no expectation that he would receive anything close to that, although he did acknowledge that he expected further payments. The offender was very honest about his role, stating, “my feeling now about my role is this it was a job and I had to eat”. I am grateful for the honesty in such an answer, but it explains why I am somewhat cautious about the issues of remorse that I have already discussed.

54. During his evidence the offender referred to his post-traumatic stress disorder and the difficulty he has had while in custody receiving treatment for that. He said that he has no plans after his release and, sadly, reflected on the fact that he did not believe he had any support from anyone in the community.

55. In addition to his oral evidence Mr Ritson relied on the following material:

1. Letter from Victoria Ritson dated 3 March 2024;

2. Letter from Luke Ritson dated 26 February 2024;

3. Letter from Just Law dated 23 November 2023;

4. Report from Ms Laura Durkin, Psychologist;

5. Draft Report from Mr Lee Knight, Clinical Nurse;

6. Report from Dr Glenys Dore, Psychiatrist 20 March 2005; and

7. Extracts from Justice Health File.

56. Going through each of those documents, the offender’s ex-wife, Ms Victoria Ritson, stated that since the offender’s incarceration she has noticed a change in his personality and his outlook on life. She stated that he used to be full of confidence and self-assured. He is now, however, quite fragile, and prone to depression and uncertainty. She confirmed that his poor education and the abusive nature of his upbringing contributed to feelings of inadequacy both in his personal life and in employment.

57. The Court also received a letter from Just Law, acknowledging that they have commenced investigations in relation to issues of childhood sexual abuse which the offender has raised and which I will refer to again shortly. I note that at this point it does not appear that any proceedings have been commenced and no settlement has been reached in relation to them.

58. I have read the psychological report of Ms Laura Durkin from LSC Psychology. Ms Durkin is both a clinical and a forensic psychologist. The report sets out the offender’s background. His childhood is described as chaotic and unstable, with his father dying from complications to do with alcohol abuse when he was much younger, and his mother passed away around 2001 due to throat cancer. The offender reported that his father was, in his words, a tragic alcoholic and unable to care for his children. The offender reported that his father would often disappear for days at a time leaving children unsupervised. His parents reportedly attempted to give him and his siblings away to strangers as they were not able to afford raising them. The offender reported that his father would physically assault him and that his mother was also violent and she additionally tried to sexually assault him at one point. He believed that his mother was, in his words, a sick woman and was a threat to his life. He reported to Ms Durkin an incident which involved his mother, in his view, trying to kill him by having a vehicle collide with him and as a consequence of that, he suffered a traumatic brain injury.

59. The offender reported that he was removed from his parent’s care when he was four years old and placed with a family who operated a large group home. At the time he was removed from his parents, the authorities found him and his siblings naked and badly bruised due to the abuse and neglect of his parents.

60. At the foster home, the offender was sexually abused by the parents of the foster family and some other people with whom they were involved and that this lasted on and off for a period of about six years. He also reported being physically assaulted, with his carers provoking a horse to kick him on one occasion.

61. When he was 12 or 13 years old, his mother removed him from State care and he returned to live with her, her new partner, and some other relatives of her new partner. The offender was then sexually assaulted himself and by the age of 14, he absconded from home and became homeless.

62. He began abusing alcohol when he became homeless, and the quantity of alcohol gradually increased to a point where he was sometimes consuming 750mls of alcoholic spirits a day and sometimes a dozen bottles of beer per day.

63. Ms Durkin concluded that the offender described experiencing symptoms of post-traumatic stress disorder for much of his life and struggled to connect with people, finding a degree of connection with criminal associates, who do not seek to have a meaningful friendship, but simply had in common their criminality. Ms Durkin also concluded that the offender struggles with complex and higher order cognitive functioning.

64. I was also provided with a draft report from Mr Lee Knight, clinical nurse consultant. Given that it is only a draft I am a little cautious about attaching any weight to it. I am also unsure what to make of its observations. Mr Knight purports to undertake, “A mental state examination” and provide a “diagnostic impression”. However, it is unclear to me what those terms mean in the context of someone who is neither a psychiatrist nor a forensic or clinical psychologist. I do not find this report helpful, and I have not placed any weight upon it. I do note though to the extent that it provides a history of the offender, that history is consistent with the history taken by Ms Durkin.

65. I have also read the report of psychiatrist, Dr Glenys Dore, but this report is 19 years old. Other than to again reinforce the family history, which I have already set out, it adds no value to the sentencing exercise.

Mental health

66. An offender’s mental health may be relevant on sentence. Firstly, where it contributes to offending in material ways which could potentially reduce an offender’s moral culpability. Secondly, it may mean that the person is an inappropriate vehicle for general deterrence. Thirdly, custody may weigh more heavily upon such person. It may reduce or eliminate specific deterrence, or, conversely, such a person may present more of a danger to the community.

67. Where a causal connection can be established mental impairment may also affect both an assessment of moral culpability and the objective seriousness of the offence. The nature of the impairment, the nature and circumstances of the offence and the degree of connection between them all must be considered, in such a case objective seriousness might be reduced substantially, indicative in the conduct not being planned, premeditated nor without malice. Given the nature of the conduct which I have set out in this matter, there is no connection here which would reduce the objective seriousness, nor was it submitted that there was such a connection.

68. It is not argued that his post-traumatic stress disorder engages the De La Rosa principles I have set out above in a way that would reduce his moral culpability and thus reduce the impact of general or specific deterrence either. On the contrary, my impression from his evidence is that it appears that the offender is to some extent welcoming the stability that prison life has provided to him in terms of both food and accommodation. He does not seem to be finding it more onerous as a result of his mental health issues.

69. However, I have taken the post-traumatic stress disorder into account as part of his overall subjective case. I have also found that his moral culpability has been reduced because of the childhood depravation which I have discussed.

Childhood deprivation

70. It is well-established that the disadvantaged background of an offender may mitigate the sentence which would otherwise be appropriate. Although no submissions were expressly made about this in the offender’s case, based on Ms Durkin’s report, in my view, there has been relevant disadvantage and this does serve to lessen his moral culpability to some degree, albeit, as I said earlier, it does not lower the objective seriousness of the conduct.

Section 16A(2)(h) Crimes Act 1914 and s 23 of the Crimes (Sentencing Procedure) ACT 1999

71. I have taken into account s 16A(2)(h) of the Crimes Act 1914 and s 23 of the CSPA. As the parties will appreciate, this is a reference to exhibit 3. I have read the parties’ submissions on this topic which are now MFI 3 and MFI 4, both parties took a similar position as to how this matter should be dealt with. It is unnecessary to go into detail about the information contained in exhibit 3, beyond saying I accept the description that has been given in terms of value.

72. The co-offender, Ms Fraser, was sentenced by his Honour McGrath SC DCJ at Newcastle District Court on 11 August 2023. I note his Honour also considered s 16A(2)(h) and provided a discount of 8% for that issue. The legislation does not require a discrete discount for the matters that are referred to in exhibit 3, but I have taken it into account in the same manner in which McGrath DCJ did and I will give a reduction on the offender’s sentence to the same degree.

Delay

73. The offending occurred many years ago. The delay between the offending and the arrest was about four months, noting that the last date that is referred to in the Statement of Facts is October 2021 and Mr Ritson was arrested in February 2022. It is now May 2024. It is unclear why there has been such a substantial delay in the resolution of this matter. The degree of uncertainty and stress that Mr Ritson would have been under during this period does attract a measure of understanding and it is something I have considered in order to mitigate his sentence.

Prospects of rehabilitation and reoffending

74. The Crown submitted that the offender’s prospects of rehabilitation were at best guarded, noting that the offender’s potential rehabilitation in several areas has simply not been addressed since he has been in custody. The difficulty with this submission is that it is not always possible for a person who is on remand to access any rehabilitation services, so to use that against an offender is, in my view, unfair.

75. Ms Jewison submitted that the offender had some prospects of rehabilitation because he is now interested in seeking treatment, either in custody or upon release, for his post-traumatic stress disorder and that this will increase his prospects of rehabilitation. This is no doubt true, however, the offender did not appear particularly committed to this course of conduct during his evidence, so I am guarded about his prospects because it does not appear to be a high order priority for him. At least that is how I interpreted his evidence.

Parity

76. With respect to Ms Fraser’s sentence, McGrath DCJ found that Ms Fraser was not at the top of the conspiracy’s hierarchy. His Honour discounted her sentence by 33% for the plea of guilty and the other matter I have just dealt with.

77. Ms Fraser gave evidence at her sentencing hearing, and his Honour found it to contain genuine contrition and remorse. He accepted there was hardship to Ms Fraser’s family, including her children and elderly parents, and that she had excellent prospects of rehabilitation and a history of good character. The same observations, sadly, cannot be made about the offender.

78. Ms Fraser was sentenced to a period of 9 years and 6 months of fulltime imprisonment with a non-parole period of 5 years and 6 months. I note Ms Fraser is 17 years younger than the offender, she has three children and has no criminal antecedents.

79. It was conceded by Ms Jewison that the offender has a more significant criminal history and that his role in this importation was greater. I would go slightly further and add that Ms Fraser had a stronger subjective case and that she could also rely on a degree of naivety, at least initially, about what she was getting involved in. However, both Ms Fraser and the offender performed important facilitative roles over several years, but well removed from the pinnacle of the organisation. His Honour set a generous non-parole period to the head sentence with a ratio of about 60% for Ms Fraser. Although it is not expressly stated, the clear inference is that his Honour relied on her very strong subjective case and his Honour’s findings about her strong prospects for rehabilitation.

Purposes of sentencing

80. I have had regard to the various purposes of sentencing identified in s 3A of the CSPA. The Crimes Act 1914 does not have an equivalent section, but instead relies on common law cases for the same purposes and picks up s 3A via s 68 of the Judiciary Act 1903 (Cth). I have placed particular importance when it comes to assessing the purposes of sentencing, the importance of ensuring that the offender is adequately punished for his role in this offence, that his rehabilitation is promoted and to make him accountable for his actions and to denounce his conduct.

Sentence commencement date

81. The offender has been in custody since 15 February 2022 and his time in custody since his arrest is solely referable to these offences, so his sentence will be backdated to commence on that day.

Totality

82. I will take into account totality when I set the sentence for the two offences to make sure the sentence properly reflects the overall criminality represented by these two discrete offences.

Threshold

83. Having considered all the possible alternatives I am satisfied that the threshold of s 5 of the CSPA has been crossed and also the equivalent provision of s 17A of the Crimes Act1914, that is, no penalty other than imprisonment is appropriate. Ms Jewison, who appeared for the offender, did not submit to the contrary.

Special circumstances

84. With respect to the Firearms Act offence, it being a New South Wales offence, there is a need to address what are referred to as special circumstances. It was submitted that I make a finding of special circumstances, relying on the identified factors of the offender’s age, his need for rehabilitation and the need for him to initiate and maintain psychological treatment. Ms Jewison also submitted that accumulation between the sentences should be considered.

85. Given the sentence I am going to impose for the firearms offence will be a fixed term, the finding of special circumstances will be unnecessary. I will apply the usual Commonwealth sentencing ratio of about two-thirds between the head sentence and the non-parole period for the importation offence and there will be substantial concurrency between the sentences I am going to impose.

86. I note that I am going to impose a fixed sentence for the firearms offence and it will be less than six months. Setting a non-parole period is of no utility for that matter given the additional matter for which Mr Ritson is to be sentenced.

ORDERS

87. I make the following orders:

1. The offender is convicted in relation to both of the matters before the Court.

2. With respect to the offence of possessing an unregistered firearm, the offender is sentenced to a fixed term of imprisonment of 4 months, commencing 15 February 2022 and expiring 14 June 2022.

3. With respect to the offence of being involved in a conspiracy to import a commercial quantity of a border-controlled drug, the offender is sentenced to a non‑parole period of 7 years, commencing 14 March 2022 and expiring 13 March 2029, with an additional term of 3 years and 6 months, expiring 13 September 2032, making a total head sentence of 10 years and 6 months.

Mr Ritson, whether you receive parole in relation to this matter is a matter for the State Parole Authority not for the Court, but how you conduct yourself while you are in prison will have a big bearing on that.

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Decision last updated: 04 June 2024