R v Robson

[2022] NSWDC 645

District Court

New South Wales

Medium Neutral Citation:

R v Robson [2022] NSWDC 645

Hearing dates:

14 April 2022, 15 December 2022

Date of orders:

15 December 2022

Decision date:

15 December 2022

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph 109

Catchwords:

CRIMINAL LAW – sentencing – multiple drug offences - supply of commercial quantity of cannabis – offences attached on a Form 1 - supply of indictable quantity of cannabis – knowingly dealing in proceeds of crime – significance of drug rehabilitation program undertaken – parity principle where a (main) co-offender sentenced – whether s 5 threshold has been crossed – whether any sentence of imprisonment should be served by ICO

Legislation Cited:

Crimes Act1900 (NSW) ss 193B, 193C

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 11, 17C, 17D, 21A, 24, 48, 66, 68

Drug Misuse and Trafficking Act 1985 (NSW) ss 10, 25

Cases Cited:

Mandranis v R (2021) 289 A Crim R 260

Nguyen v R (2011) 208 A Crim R 432

Parente v R [2017] NSWCCA 284

R v Dang [2005] NSWCCA 430

R v Henry (1999) 46 NSWLR 346

R v Huang (2007) 174 A Crim R 370

R v Kalache (2000) 111 A Crim R 152

R v MA (2004) 145 A Crim R 434

Category:

Sentence

Parties:

Office of the Director of Public Prosecutions (NSW)
Mr C Robson (offender)

Representation:

Counsel:
Mr P Strickland SC for the offender

Solicitors:
Ms S Charles for the ODPP
Korn Tlais for the offender

File Number(s):

2020/00350905

Publication restriction:

Nil

SENTENCING REMARKS

1. The offender is before the Court for sentencing, following pleas of guilty (to which he adhered to in this sentencing proceeding) to three offences, concerning his conduct at Rose Bay on 10 December 2020.

2. The offences, the statutory provisions and the maximum penalties are indicated in the following table. There were no statutory non-parole periods for any of these offences.

Offence	Statutory provisions	Maximum penalties
Seq 11 Supply prohibited drug (not less than commercial quantity) (99.99 kg of cannabis leaf between 24.9.20 & 10.12.20)	S 25(2) Drug Misuse and Trafficking Act 1985 (NSW) (‘DMT Act’)	15 years imprisonment and/or 3,500 penalty units
Seq 3 Supply prohibited drug (more than indictable quantity but less than a commercial quantity) (10.2212 kg of cannabis leaf on 10.12.20)	S 25(1) of the DMT Act	15 years’ imprisonment and/or 2000 penalty units
Seq 4 Knowingly dealing with proceeds of crime (AUD $614,900)	S 193B(2) Crimes Act 1900 (NSW)	15 years’ imprisonment

3. The offender also acknowledges guilt for and asks the Court to take into account, when sentencing for the principal offence seq 11, the following offences on a Form 1:

Seq 5: knowingly deal with the proceeds of crime ($238,690) contrary to s 193B(2) of the Crimes Act 1900 (maximum penalty being

Seq 7: possessing a prohibited drug (2.14g of 3,4 methylenedioxy-methylamphetamine) contrary to s 10(1) of the DMT Act;

Seq 8: possessing a prohibited drug (0.11g of cocaine) contrary to s 10(1) of the DMT Act

Seq 9: possessing a prohibited drug (1.91 g of Mescaline) contrary to s 10(1) of the DMT Act;

Seq 10: possessing a prohibited drug (0.21g of ketamine), contrary to s 10(1) of the DMT Act

4. There is no dispute that the offender is entitled to a 25% discount on the guilty pleas to reflect their utilitarian value.

The offender’s adjournment application

5. When the sentencing hearing commenced before me on 14 April 2022, Senior Counsel for the offender sought and was granted an adjournment of the sentencing proceeding, under s 11(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the ‘CSP Act’) to enable the offender to complete his then current drug and alcohol rehabilitation program at Connect Global Ltd, which he had entered into on 24 December 2021. Prior to that date, he had been in custody since 10 December 2020, a period of 12 months and 15 days. On 24 December 2021, he had been granted bail in the Supreme Court. One of the conditions of that bail was his participation in this program¹.

6. For reasons given ex tempore by me on 14 April 2022, I granted the adjournment with the result that the offender has now substantially completed his program.

7. The matter came back before me today with the offender and the Crown serving supplementary submissions having regard to the circumstance of the offender having substantially completed that program.

CIRCUMSTANCES OF THE OFFENDING

8. An extensive Statement of Agreed Facts was signed by the offender and his lawyer. They may be summarised as follows.

9. The offender resided in Rose Bay and drives a Porsche Macan motor vehicle. He owns or operates a business called ‘True Building’. A co-offender (Mr Christopher Garget) owned or operated a business known as ‘Rapid Packaging’.

10. The offender, Mr Garget and others had all been identified by the police Strike Force Unara, which was investigating the supply of prohibited drugs. On 10 July 2020, police obtained a warrant to intercept messages from Garget’s mobile phone and on 30 September 2020 police obtained a warrant to intercept messages on the offender’s mobile phone. Further, in October 2020, police obtained surveillance device warrants for the installation of two listening devices and two optical surveillance devices to be installed at business premises in Kings Park (the Kings Park premises). Police also conducted surveillance at residential addresses of Garget and the offender (and another person of interest).

11. Police discovered that cannabis was being supplied by the offender and Garget to a broad customer base and was being received from interstate and sent via Australia Post bags. After it had been posted from interstate, it was collected from various post offices and stored by the offender and Garget in the Kings Park premises. In telephone calls, the offender and Garget communicated in code.

12. The offender collected Express post packages, containing cannabis on many occasions in the period from 3 November to 10 December 2020 in various post offices, at Bellevue Hill, Kings Langley, and Marayong. Surveillance device footage showed him taking sealed bags of cannabis out of boxes and putting them into supermarket freezer bags on occasions in this period. The Agreed Facts (numbered 14-16) referred, in extensive detail, to the content of intercepted phone calls between the offender and Garget in which they discuss their handiwork.

The seq 11 offence

13. Between 24 September and 10 December 2020, the offender supplied 99.99kg of cannabis to several people, including Garget and other persons of interest to police. In this period, he was seen numerous times in the home of Garget (and his partner and another co-offender, Lisa Grant) at their Glendenning residential premises.

14. From 1 October 2020 to 1 December 2020, the offender supplied cannabis to a different co-offender (Kenneth Neal) over 9 separate occasions; for Neal to on-sell the cannabis to his own customer base. There were many telephone intercepts in this particular period indicating contact between the offender and Neal and the offender was observed meeting Neal outside the latter’s home in Penrith on a number of occasions: Neal was seen taking out of the offender’s car supermarket insulated freezer or shopping bags containing cannabis. The intercepted telephone calls showed a pattern of customers contacting the offender and placing their order, with arrangements made for delivery within the next day or two.

15. The Agreed Facts referred to extensive calls between the offender and his interstate contacts for the receipt of the cannabis. The Facts show his preparedness to travel as well. There is much detail of his travel to South Australia (in November 2020) and he planned to travel to Orange.

The seq 3 offence

16. On 10 December 2020, police apprehended the offender. This was in circumstances where police attended Marayong post office, where they saw three parcels in Express Post packaging addressed to ‘True Building’ (the offender’s business). The offender drove from his home in Rose Bay towards that post office. He entered the post office and collected the three parcels. After leaving the post office, he placed the parcels in the boot of his car and then got into this car; before driving to Glendenning. But he was stopped by police along the way. Police cautioned and arrested him for the supply of drugs. The offender was co-operative in the sense of disclosing that in the boot of the car was ‘weed’ and 21 pounds (9.5kg) in total. Police opened the boot of the car and located three wine boxes. They opened each box and discovered seven vacuum-sealed bags of cannabis. They also discovered a small vacuum – sealed package of cannabis along the driver’s side of the door. Other items were seized. Subsequent analysis quantified the amount of the cannabis leaf to be in the order of 10.2212 kg.

The offences on the Form 1

17. A search warrant was executed at the offender’s residence in Rose Bay and a further search warrant was executed at the Kings Park premises.

18. As to the former, police located all of the currency and other drugs which made up the offences, seq 5, 7, 8, 9 & 10 attached to sequence 11 on the Form 1.

The seq 4 offence

19. Police also located the currency which sustained the third of the principal offences, being seq 4.

Disclosures to police

20. After the offender was taken to Mount Druitt police station, he participated in an ERISP. To a large extent he offered no comment to the matters raised of him, but he did make certain disclosures, regarding his ownership of certain things (the Porsche motor vehicle, his own business and his shareholding in ‘Rapid Packaging’) and other identifiers (his mobile number and residence). He also disclosed his association with Garget and the latter’s partner Grant.

Assessing the objective gravity of the offending

The drug supply offences (seq 11 & 3)

21. It is well recognised that the assessment of the objective gravity of offending for drug supply offences usually requires consideration of the quantity of the drug involved, the type of drug and the offenders’ role, and level of participation in supply.

22. In regard to quantity, as to the seq 11 offence, the offender supplied virtually 4 times the commercial quantity threshold for cannabis leaf. For the seq 3 offence, (a charge of deemed supply), he had possession, for supply, of over 10 times the indictable quantity.

23. In regard to the quality, as the Crown observed, the statutory regime prescribes a quantity-based regime and draws no distinction between drug types.

24. Generally, on the question of his involvement, the Crown alluded to warnings in authorities that labels given to try to describe an offender’s involvement are limited in their utility. Nevertheless, the Crown cited the description of a ‘principal’ afforded by Simpson J (as her Honour then was) in Nguyen v R (2011) 208 A Crim R 432 at [18], which connoted: financial contribution to the cost of setting up the operation; standing to share in the profit of the operation (as distinct from payment for services contributing to it); involvement in management of the operation and some decision-making role. It has been said that ‘principals’ who lead a well organised network in distributing large commercial quantities of drugs exhibit criminality of a high order: R v Kalache (2000) 111 A Crim R 152.

25. The Crown submitted that the offender played a significant and high-level role in the distribution chain of cannabis. I inferred from this that it submitted that his offending fell at the high end, or at least above the mid-range of objective seriousness for offending of the present kind. The Crown emphasised the offender’s: awareness and activity in collecting the cannabis upon its arrival in NSW, before conveying it to the storage facility in Kings Park; responsibility for packaging and storing the cannabis for on-sale, to his co-offenders (and other customers); responsibility for transporting the cannabis to co-offenders and other customers; awareness of and day to day involvement in the running of the enterprise, from which he was able to divine how much cannabis was at the facility, how much people had in their possession, how much was being sold and for what cost; he monitored the quality of the cannabis and in particular, techniques for preserving its moistness; his travel interstate to arrange for organising and packaging. The Crown noted that the offending occurred over a 4 month period and only ceased upon the arrest of himself and other co-offenders. Generally, the Crown submitted that the offender held a far more significant role than that of a street dealer, or even a lower-level distributor.

26. The Crown also emphasised that for the sequence 11, the quantity of drug amounted to four times the threshold for this offence and fell just below the threshold for a large commercial quantity. For the sequence 3 offence, the quantity was over ten times the threshold for the offence of having an indictable quantity.

27. The Crown further noted that the DMT Act draws no distinction in the type of drugs; and thus there is no need for the Court to try to assess how much harm might be caused by different types of drugs (R v Dang [2005] NSWCCA 430 at [29]).

28. The offender’s Senior Counsel, in his written submissions, submitted that the objective seriousness of the offending for the seq 11 offence was at the mid-range, mentioning only that it had occurred over a period of 2 months and 16 days (not 4 months as had been stated in the Crown’s written submissions).

29. Subject to the estimated period, I substantially agree with the Crown’s submissions and place particular weight upon the instrumental role played by the offender in the supply over a not insubstantial period. The quantity of the drugs was also very significant for the index offence. The offending for this offence was within the mid-range of offending for this offence.

30. Senior Counsel for the offender submitted that the objective seriousness of the offending for the seq 3 offence was below the mid-range. I disagree. Although the quantity was smaller (relative to the quantity for the seq 11 offending) proportionate to the threshold, the other matters elevating the seriousness of the seq 11 offending also applied to this offending. I find this offending to also fall within the mid-range.

The dealing with the proceeds of crime (seq 4)

31. The Crown submitted that the amount of money dealt with by the offender was significant and that he had profited from his drug supply activities over a significant period of time.

32. The offender’s Senior Counsel submitted that the objective seriousness for this offending was at the mid-range.

33. I agree with both submissions, but would add that this offence really represents the fruits of the offending which is captured by the other offences for sequences 11 and 3. This will be pertinent to what I say later about the totality principle.

Aggravating factors

34. The Crown submits (and the offender does not dispute) that the drug supply offences involved a series of criminal acts, thereby engaging the aggravating factor in s 21A(2)(m) of the CSP Act.

The offences on the Form 1

35. The drugs the subject of these offences were located at the offender’s residence, apparently for his personal use. In this way, the offences can be viewed as qualitatively different to the principal offence (seq 11). However, subject to a qualification, unlike the principal offence, which was directed to commercial criminal activity, I consider that his culpability in relation to these offences on the Form 1, which was directed to personal use, is materially more reduced on account of his longstanding drug addiction. In this way, the considerations of specific deterrence and retribution which are usually elevated on sentencing for the principal offence by reason of additional offences are not materially elevated in this case.

36. The qualification is the seq 5 offending, which has a clear connection with the commercial supply which is the subject matter of the principal offence. I agree with the Crown that this additional offence does lead to some increase in penalty on account of elevating specific deterrence and retribution. This is however subject to significant qualification having regard to matters arising in the offender’s subjective case to which I now turn.

THE OFFENDER’S SUBJECTIVE CIRCUMSTANCES

37. The offender was over 28 years of age at the date of offending.

38. An insight into the offender’s background emerges from an affidavit from his mother, Ms McNamee, affirmed on 13 December 2022. Ms McNamee was not required to attend for cross-examination, so her account is unchallenged, and I accept it. Ms McNamee spoke of her own difficult life, asserting that she was a victim of child sexual abuse when she was a very young girl, and problems at school. She got into drugs and fell pregnant when only 16 years of age and became a single mother. But she met up and married the offender’s father and she felt that ‘life was actually very good’ for a time. She and her husband came to Sydney after a period in Queensland as she was troubled by her distance from her family. Regrettably, she and her husband took to drugs, and became addicts of ‘speed’. They immersed themselves in a drug culture after moving to Baulkham Hills. Even more unfortunately, when the offender was aged only 5, her relationship to her partner broke down. Her partner then moved in with another woman and her children.

39. Ms McNamee deposed that she went to rehab and obtained counselling, but long pent up emotions erupted which she took out on the offender and his older sister, with acts of physical violence. Things were worse for her with a diagnosis of breast cancer. At this point the offender was only 6 years old. Through her chemo treatment and rehabilitation work to help her drug addiction, the offender spent weekends under the ‘care’ of his father. This led to another major problem for the offender: he was reportedly bullied and beaten by one of his ‘step-brothers’ and Ms McNamee complained that the offender’s father did nothing about it.

40. Ms McNamee recalled the impacts of this upon the offender. She was regularly called by after school care which reported upon maladaptive behaviour by the offender. When only 7 or 8 years of age, the offender reportedly became violent. He was struggling to make friends at school and at the age of 8 received a diagnosis of ADHD. The calm and improvement in his behaviour was impaired however when the offender visited his father, who, denying the diagnosis, apparently deprived the offender of his medication. There were further reports of violence when the offender spent time with his father, the latter’s spouse and her children.

41. The offender moved to different schools before settling at Quakers Hill High. But his mother met another man, had a relationship with him for a while but that also broke up and Ms McNamee moved to Adelaide to be with her own mother, who was diagnosed with cancer. This was not long after the offender completed his school certificate. The offender moved with her, but made it known of his displeasure at being separated from his older sister, who presumably remained in Sydney. He came back to Sydney, just short of his 17^th birthday.

42. She deposed to him confiding in her of his drinking, drug use and other things. She deposed to his having a few short-term relationships. Most dramatically, when 20 years of age, she deposed to the offender trying to end his life. He recovered and decided to travel overseas, but on his return, he resumed his drug-taking and drinking.

Culpability

43. His Senior Counsel relied upon the affirmed evidence of his mother and out of court accounts for the offending that the offender supplied, amongst others, to Dr Kala Ram, a forensic psychologist, who reported on 11 April 2022 and, more recently, on 23 November 2022. When giving evidence today, he affirmed the truth of what he told Dr Ram. The accounts given by Ms McNamee and the offender was also supported by other material.

43. The offender told Dr Ram that he had been running a legitimate construction business, with two employees on his payroll, but it had not been making any money. He alluded to a second business being run with the co-offender, Garget, which was doing better. But his drug addiction was such that it was costing him approximately $2,000 each week. Although he had equity in properties, he was ‘panicking’. The offender told Dr Ram that his drug supplier approached him to pick up parcels of cannabis (only). In exchange for this he received payment of $300 per pound and, further, he would receive a free supply of drugs. The offender agreed to supply the cannabis in the belief that cannabis was not harmful and that the cannabis that he was supplying was pure. Once embroiled in this arrangement, he felt that he was spiralling out of control. He did not know that there was any other way he could continue to feed his addiction.

44. The offender’s Senior Counsel argued that the offender’s moral culpability for these drug offences was reduced on account of a long standing serious drug addiction whose provenance stretched back to his childhood when he was the child of a broken marriage. In short, he invoked Bugmy principles and observations about the significance of a drug addiction made by Simpson J in R v Henry (1999) 46 NSWLR 346 at [336].

45. The offender informed Dr Ram that his mother was a speed and heroin addict at the time of her pregnancy and shortly after his birth. His father also reputedly had drug habits. Further, his step-brother had abused him. The offender, when aged 8, was diagnosed with ADHD (a letter from a paediatrician, Mr Paul Tait addressed to the offender’s father, dated 6 February 2001 indicated that diagnosis and that the offender had been placed on a trial of Ritalin). As a young teenager, he was placed in the care at Redbank House, on the grounds of the Westmead Hospital, where he witnessed several horrific incidents involving adolescents with significant mental health issues. When he was 16, he commenced drinking alcohol and he began to consume alcohol daily when he was 18. On one occasion, when he was 18, after he had been heavily drinking, he attempted suicide. Almost all of this was the subject of evidence by Ms McNamee.

46. Dr Ram essentially opined that during the period of commissioning of the offending, he was suffering from multiple diagnoses: a major depressive disorder and with anxious distress, PTSD, alcohol use disorder, cannabis use disorder and other hallucinogen disorder (the last three disorders currently being in sustained remission).

47. I accept that longstanding issues arising from the offender’s childhood was responsible for causing him to become a drug addict and the alcohol use disorder, which were intended to help the offender cope with his very troubled upbringing. This was not, as sometimes is the case, purely the product of choice, or free-will, on his part, given his young age. I accept, further, that his drug addiction had a connection with the offending.

48. However, the drug addiction and alcohol does not provide a full explanation for the offending. On the offender’s account, he was partly motivated by financial stress occasioned by struggles he had with legitimate business of his construction company. The precise cause of the troubles he had with his legitimate business were not explored, although it is not difficult to conceive that it may have been affected by the Pandemic, like most other industries. He saw an opportunity to combine his own need for drugs with a business opportunity to substitute for the legitimate business which he had been capable of engaging in, notwithstanding his entrenched drug addiction. In other words, he had shown his capacity to function effectively notwithstanding his drug addiction and other consequences from a deprived childhood. I agree with the Crown that the offender’s history, as an adult, up to the offending (when he was in his late 20s) showed that, in spite of his ADHD and any other mental condition, he had commenced businesses and obtained a builders’ license and had enough acumen to own four houses and a block of land. These are not facts which sit comfortably with someone with a want of functioning. Against this, Senior Counsel for the offender argued that these matters did not diminish Bugmy principles; given the enduring significance of the deleterious consequences of childhood disadvantage. I accept that the effects of childhood disadvantage may endure. Nonetheless, the question, which goes to the weight to be accorded to the principles, is the extent to which they actually bear upon assessment of the offending in issue.

49. The offender calculated that he could profit by immersing himself fully in the drug trafficking in the misguided, if not ignorant, belief that through the supply of pure cannabis, he would not be causing harm to others. I did not understand this to be any sudden decision nor was the product of any pressure exerted upon him; other than external circumstances. Thus, the impulsivity usually associated with ADHD, or even anxiety, is not a sufficient explanation for the business decision that he took. Further, a perusal of the nature of the communications which the offender had with the co-offender Garget, over an extended period, demonstrated calculation and planning which was the antithesis of impulsivity, or the temporary desertion of one’s critical faculties, usually associated with ADHD.

50. He enjoyed the financial fruits of his illegal activities, continuing to reside in Rose Bay and driving a flashy motor vehicle, whilst having the collateral benefit of feeding that addiction. There was nothing to indicate any likelihood that his criminal activities would stop until he was apprehended. Although I accept that, to a degree, his conduct was affected by a drug addiction for which he was not responsible, I am unable to accept that the business decision he took can be regarded as solely attributable to that addiction to a material degree. The offender did not say, for example, that he was unable to continue to feed his addiction without engaging in the criminal enterprise he embarked upon, for his substantial financial gain. He did not disclose attempts in engaging in alternative forms of honest business endeavour.

51. In saying this, I recognise that the drug addiction may have had some role in reducing his capacity to make a rational business decision, but that should not be overestimated: even through a difficult childhood he had managed to complete schooling, had undertaken an apprenticeship in carpentry and was able to commence and run a legitimate business. That he experienced financial difficulty in his business from 2020 hardly placed him in a unique position, during the first full year of the Pandemic affecting business activities, more or less, across the board.

52. Accordingly, on balance, although his addiction and other mental disorders reduce his culpability to a degree, and therefore the objective gravity for his offending, it does not do so to a substantial degree, in a way that would significantly reduce the force of the considerations of general deterrence for the principal offences.

Antecedents

54. The offender has had no prior convictions.

Prior good character

55. When the matter first came before the Court on 14 April 2022, the offender placed before the Court multiple character references. These were from the administrator of Connect Global, a resident of that program, a friend of his who had known him for 3 years, a high school friend who was close to him during 2007 and 2008, but had lost touch with and then re-connected in 2015, two Chaplains within the Silverwater Correctional Centre. Certificates of completion of courses he had undertaken whilst he was in custody were also in evidence. With the exception of the letters from the two friends, much of the content of these documents focussed on the offender’s life subsequent to the offending.

56. When the matter came back before the Court today, the offender relied upon other evidence. This included the affidavit of his mother, Ms McNamee, to which reference has already been made.

57. Further character references were supplied by an AA ‘Facilitator’ (Simone Payne), Angus Foss, Glynis Quinlan, Marga Marloth and Emma Garrett.

58. I accept that he is of prior good character, but that is more a function of having no prior offences than demonstration of good works within the community. For the offences for which the offender is to be sentenced, prior good character is not of significant weight in any event.

Discounts for guilty pleas

59. As indicated at the outset of these remarks, the offender is entitled to a 25% discount on the guilty pleas.

Contrition/remorse

60. The offender gave evidence. But there were multiple indications of his expressions of regret to Dr Ram, his mother, Mr Ross Pene, the program founder of Connect Global, that he interacted with.

61. I accept, on the probabilities, that with the rehabilitation that he has received, including abstinence from the drugs, that he has acquired insight and has accepted responsibility for his offending. When the offender gave evidence, he accepted that what he had done had contributed to damage within society and ‘affected the community in a negative way’.

62. The offender’s remorse, assists him in his argument about his prospects of rehabilitation. More than this, however, is the accumulative evidence of persons associated with the Connect Global rehabilitation program, principally the multiple letters from Ross Pene, the program’s founder. Even before the entry into that program, which I will turn to momentarily, during the period of his custody, he had been productive in undertaking certain programs. According to the Chaplains, he has also developed himself in a spiritual sense.

Rehabilitation prospects and likelihood of re-offending

63. I take into account Dr Ram’s evidence that, by the administration of the LSI-R inventory tool, the offender has a ‘Low’ risk classification for offending. Dr Ram had interviewed Mr Pene.

64. Dr Ram alluded to the offender’s strong family support, stable accommodation, prosocial attitudes, his abstinence from alcohol and drugs over a period nearing 2 years, his aspirations to commence a new business and financial stability. Dr Ram reported (positively) upon the offender being a goal-seeker.

65. In her most recent report, Dr Ram also referred to at least 15 counselling sessions with a psychologist attended by the offender. The offender spoke positively about the effect of this treatment.

66. Reports were furnished by the Director of Connect Global, Ross Pene, dated 9 December 2022. The Connect Global Ltd’s program comprises residential rehabilitation program, for men, offering what the company describes as a ‘holistic approach’ intended to ‘actively foster mental, emotional, spiritual and physical healing’.

67. The offender entered this programme on 24 December 2021. Mr Pene urges that he enter into an ‘Extension Program’ for another 6 months.

68. Mr Pene remarked upon the offender’s positive mindset and conduct (including some leadership responsibility) throughout the period of the program. Mr Pene opined, apparently on the assumption that it was within his province to opine, that any return to custody by the offender may ‘undo all the positive work that (the offender)’ has accomplished during the period of his rehabilitation. As I have remarked on some other occasions, I do not find such statements to assist the lot of a sentencing judge who, aside from an obligation to consider such subjective matters as an offender’s rehabilitation prospects, also has to consider other sentencing considerations of broader import, including without limitation, protection of the community and, as appropriate retribution and denunciation for offending. It has the hallmarks of attempted emotional blackmail. Aside from that, it was a bare assertion, missing any substantiation.

69. Included with the offender’s latest bundle of sentencing material are certificates of completion for a range of courses undertaken throughout the course of 2022. Some of these were vocational; others spiritual, but they do tend to show how the offender has used his time in the program productively. There were also diary notes prepared by the offender during the program which, it is fair to say, evince insights and reflections upon what the offender has learnt; as well as robust episodes of exercise consistent with Mr Pene’s observation of the offender having led a disciplined life during the period.

70. There was also evidence of (61) urinary drug analyses, all of which returned negative results.

71. The offender’s mother has spoken in very positive terms about her own rekindling of her relationship with her son through the rehabilitation. She also mentioned the help he provided to her younger daughter, who struggles with depression.

72. The offender spoke of living in Newcastle and his aspirations to get into the financial markets. His father lives about 45 minutes away (his father attended Court at the sentencing hearing). Connect Global is about 40 minutes away from Newcastle.

73. I find that his prospects of rehabilitation are very good.

Hardship in custody

74. Whilst he was in custody, the offender was remanded in the COVID Hub Silverwater Correctional Centre and during that period he was, by reason of the restrictions imposed as a result of the Pandemic, forced to spend many days entirely isolated in his cell. The offender also mentioned the difficulty he had in obtaining access to the psychologist during this period of custody. I accept that for an inmate with his mental disorder, that would have been especially hard for him and, any return to custody, absent material change in the conditions in the correctional centre, would also visit hardship upon him; and I take this into account.

Parity

75. Mr Christopher Garget was sentenced on 23 June 2022 by Acting Judge J Williams for two primary offences and an offence on a s 166 certificate. His Honour’s sentencing remarks were not supplied to the Court which meant that, among other things, the indicative sentences for each of the two primary offences was not apparent. The primary offences resembled, to some degree, two of the three offences to which the offender now pleads guilty; although the Crown emphasised that the offender faces charges more serious than Mr Garget. These were an offence under s 25(1) of the DMT Act, being supply of a prohibited drug being no less than a commercial quantity (in Mr Garget’s case, being 52.81 kg of cannabis) and a dealing in property associated with the proceeds of crime, contrary to s 193C(2) of the Crimes Act (in Mr Garget’s case, being AUD$2,500). For the two primary offences, Mr Garget received an aggregate sentence of imprisonment of a term of 2 years and 6 months, to be served by way of intensive correction. The s 166 offence (drug possession) was dealt with by way of an order that a conviction be recorded without additional penalty.

76. It will be noted that at least in terms of quantity of drug, there was significantly greater quantity on the commercial quantity offence for the offender than there was for Mr Garget. Further, there were multiple offences on a Form 1 attached for the commercial quantity offence, which was not the case for the commercial quantity offence involving Mr Garget. Similarly, putting aside relatively minor difference in the ‘dealing in proceeds offence’, there was a vastly higher sum for the offence in the offender’s case than there was for Mr Garget. In the offender’s case, there were also two drug supply offences for sentence whereas for Mr Garget there was only one. However, the roles of the offender and Mr Garget in the syndicate appear relevantly indistinguishable. Further, as the parties recognised, the co-offender’s offending occurred over a longer period. Senior Counsel for the offender also submitted that Garget also organised and supplied cannabis, on his own, to his own customer base. Nevertheless, the matters I have referred to indicate that overall, the offender’s offending was more serious than that of Mr Garget.

77. In contrast to the offender, Mr Garget had some convictions for earlier offending, although these were not naturally related to the index offending and were somewhat stale by the time he was sentenced. A psychologist had diagnosed him with an unspecified anxiety disorder and moderate cannabis use disorder, albeit with low risks of re-offending. Like the offender, he also grew up as a child with ADHD. But the Crown accepted that the offender had made greater strides in his rehabilitation than the co-offender.

78. The Crown submitted, and Senior Counsel for the offender agreed, that when balancing objective against subjective considerations, the differences between the offender and Mr Garget are not substantial. I also agree. The parity principle has a significant role to play in the sentencing exercise in this case.

79. Mr Garget’s partner, Ms Lisa Grant was sentenced to a 10-month ICO for taking part in the supply of 5.9kg of cannabis and supplying 499 g of THC in gummy bears.

80. Mr Kenneth Neale was sentenced to a 20-month ICO for two charges of drug supply of a prohibited drug and one of possession or use of a prohibited weapon (a taser/torch flashlight where it was not known it was not working). Details of the two offences for drug supply were: (a) supply of 24.99 kg of cannabis between 1 October 2020 and 1 December 2020; and (b) supply of 4.0709 kg of cannabis on 10 December 2020.

81. In my view, however, little weight would be ascribed to the sentences imposed upon Ms Grant or Mr Neal, whose offending does not appear to me, at least in an objective sense, to be comparable to that of this offender.

Instinctive synthesis

82. I take into account the maximum penalties for the two drug supply offences and the dealing in the proceeds of crime offence.

83. I must also take into account, and weigh, the sometimes conflicting considerations in s 3A of the CSP Act. This case is a clear example of such conflict: the offender has clearly benefitted from concentrated time in rehabilitation to aid his reformation. But to sentence on the basis of that consideration alone (or other considerations relied upon to make up his subjective case) would, of course, be unbalanced, particularly set against the more objective features of the sentencing exercise): R v MA (2004) 145 A Crim R 434 per Dunford J (Studdert and James JJ agreeing) at [27].

84. The Court of Criminal Appeal’s decision in Parente v R [2017] NSWCCA 284 indicated that it was not axiomatic that involvement in drug trafficking to any substantial degree would lead to a custodial sentence. Nevertheless, the Court recognised that in drug trafficking cases, the considerations of general deterrence and protection of the community are elevated, in view of the social impact of drug use as an underlying cause of other offending (at [109]-[110]).

85. I respectfully adopt and apply those considerations; although in the case of this offender, notwithstanding the gravity of his offending, his path to rehabilitation has reduced the weight ordinarily accorded to protection of the community. Further, some reduction in culpability in terms of the offender’s initial decision to enter into the offending moderates general deterrence. I would also add that for offending of this kind and given in particular the objective features of it, retribution and denunciation still have roles to play, even if moderated on account of the offender’s conditions.

86. In view of the offender’s strong subjective case, little weight is given to specific deterrence and enhanced weight is given to further aiding his rehabilitation.

87. Separately, I note, in R v Huang (2007) 174 A Crim R 370 at [36], the Court noted that any sentence for dealing with the proceeds of crime, a sentence should strongly reflect general deterrence.

82. As I have said I take into account the offender’s rehabilitation, which has been amply demonstrated with the aid of his participation in the Connect Global program during the course of nearly a year. As I have remarked, his rehabilitation, in conjunction with his remorse, has also reduced to a degree the concern that the Court as to the danger he presents to the community. I also consider that by reason of his drug (and to some extent his alcohol) condition, some moderation attaches to the considerations of general and specific deterrence, and retribution, applicable to these offences. The latter two considerations are moderated partly because of the very onerous period the offender has already spent in custody whilst awaiting sentence coinciding with the severe restrictions on inmates in correctional centres. These matters weigh in the offender’s behaviour. I also take into account the parity principle. Especially in view of the Crown’s submission that, on balance, there is substantial similarity in the offender’s position, viz-a-viz, Mr Garget, care needs to be taken lest that principle is infringed.

83. Nevertheless, the nature of the offending, including the very substantial role that the offender played in a not insubstantial criminal enterprise, means that the offender’s subjective case does not eradicate the force of general deterrence, denunciation and the need to hold the offender accountable for his offending.

84. In my view, the s 5 threshold is crossed. The offender’s Senior Counsel conceded as much.

The term of the sentence

Totality

91. The seq 11 and seq 3 offences were distinct in terms of when they occurred. The former offence represented offending over a period of two a half months. The latter offence occurred on the day of his apprehension. The seq 3 offending was committed in anticipation of offending of the same character as the offending for seq 11, and should be viewed as occurring, in substance, as the same criminality.

92. The seq 4 offence is separate and distinct, in terms of its element, although that too was connected with the seq 11 offending. However, there should be some accumulative aspect to the penalty for the seq 4 offending, to reflect the different offence and in recognition of the substantial financial rewards that the offender obtained from the seq 4 offending.

93. The aggregate sentence I impose is made with the intention of not having a crushing effect upon the offender.

94. The indicative sentences (factoring in the discounts on the guilty plea, and in the case of seq 11, the offences on the Form 1) are as follows:

Seq 11:    2 years and 6 months imprisonment

Seq 3:      1 year and 6 months imprisonment

Seq 4:      1 year imprisonment

95. Senior Counsel for the offender submitted that the appropriate term of imprisonment was 3 years or less. Mr Strickland SC cited all the objective and subjective circumstances (the latter including the discounts on the guilty pleas), time actually served in custody to date, and the 11-month period in rehabilitation in which he has achieved significant progress and the sentence imposed on the co-offender Garget (a term of imprisonment, to be served by ICO).

96. The Crown did not dispute this submission. I accept it.

Intensive correction order

97. The offender will therefore be eligible to serve his term of imprisonment by ICO: CSP Act, s 68(1).

98. The offender’s Senior Counsel submitted that it would be appropriate that any term of imprisonment be served by ICO. The Crown acknowledged that an ICO may well fall within the range as an appropriate sentence.

99. I should say to any reader of these remarks, who is concerned about a term of imprisonment being served in this way and who might think that the term is unduly lenient in view of the gravity of the offending, that an ICO is still made with reference to general sentencing principles (s 66(3)) and, as the offender’s Senior Counsel’s submissions acknowledged, involves the imposition of substantial punishment given the extent of mandatory obligations.

100. The legislative framework for that sentencing option requires the Court to assess community safety (s 66(1)) and, in doing so, the Court has to assess whether ordering that the sentence be served by way of full-time detention is more likely to address his risk of re-offending (s 66(2)). But although all sentencing principles are to be considered when deciding whether to impose an ICO, community safety is to be treated as the paramount consideration.

101. With reference to community safety, the offender’s Senior Counsel generally cited the circumstances that: this is the offender’s first set of offences; his early pleas of guilty; that general deterrence will be discharged by a sentence that has involved his confinement, in actual custody and a rehabilitation program (although it was not submitted that this constituted ‘quasi-custody’).

102. On the specific question of what mode of serving the term of imprisonment would more likely address his risk of re-offending, the offender’s Senior Counsel argued that an ICO would be more appropriate, especially in view of the opportunity for the offender to receive a 6-month extension program at the Connect Global Ltd. The offender spoke very positively of the prospect of this extension, including frequent drug tests, church attendance and AA meetings. He argued that a return to gaol would hinder his rehabilitation.

103. The Crown did not dispute these arguments. The offender’s submissions are persuasive and I accept them. I should say that it is not necessarily the case that any offender pleading guilty to an offence (or offences), who has spent some time in custody before release on bail, is subject to a sentencing hearing, but procures an adjournment to continue with a rehabilitation program will, upon proof of progress, automatically obtain an order for imprisonment to be served by ICO, such as might occur for this offender. Daunting though it may be, there are circumstances where such offender may be ordered to return to gaol after completion of a rehabilitation program. In the case of this offender, aside from his measurable progress in rehabilitation, he has other factors in support of a powerful subjective case.

104. The Court is inclined to order that the term of imprisonment be served by ICO. This is subject to a procedural matter that I am about to come to.

105. It was common ground that although an ICO commences on the date of sentence, the length of the term of imprisonment, to be served in that way, may be reduced to take into account pre-sentence custody: Mandranis v R (2021) 289 A Crim R 260 at [63].

106. A pre-condition, however, to the order that a term of imprisonment be served by ICO is that an assessment report is obtained (CSP Act, s 17D(1)), although that requirement can be waived (CSP Act, s 17D(1A)). Pending the provision of the assessment report, execution of the sentence is stayed. Neither Senior Counsel for the offender or the Crown submitted that this requirement should be waived in this case.

Time in custody

107. The offender has spent 380 days (12 months and 15 days) in actual custody.

108. Section 24 of the CSP Act indicates that time in custody can be taken into account. On the offender’s view, this would not mean that the sentence should be backdated but rather the term would be additional to time already spent in custody. This would, rather, mean an effective sentence of over 4 years. Adoption of this approach would adequately punish the offender; so much so as to effectively make punishment substantially longer than Mr Garget.

Sentence

109. Mr Robson, please stand.

1. You are convicted of the sequence 11, 3 & 4 offences.

2. Taking into account the discount on sentence for your guilty pleas, and the additional offences on the Form 1 attached to seq 11, I sentence you to a term of imprisonment for a period of 3 years commencing on 15 December 2022 and expiring on 14 December 2025.

3. Pursuant to s 17C(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW), execution of the sentence in order (2) (and the operation of s 48 of the Crimes (Sentencing Procedure) Act 1999 (NSW)) is stayed until 10 February 2023, having regard to orders 4 & 5 and the offender’s bail is to continue on its existing terms.

4. Pursuant to s 17C(1)(b)(ii) of the Crimes (Sentencing Procedure) Act 1999 (NSW), I request an assessment report requiring consideration only of the suitability of a Community Service Work Condition.

5. The matter is adjourned to 10 February 2023 at 10:00am before Abadee DCJ (part-heard).

6. The offender and Crown are at liberty to supply supplementary written submissions as to whether the Court’s preliminary view that an ICO is appropriate should be confirmed and, if so, appropriate additional conditions.

**********

Decision last updated: 16 December 2022