R v Rose Helena Thomas

Case •

[2019] NSWDC 364

•

19 July 2019

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Rose Helena Thomas [2019] NSWDC 364
Hearing dates: 24 May 2019; 13 June 2019; 19 July 2019
Date of orders: 19 July 2019
Decision date: 19 July 2019
Jurisdiction:Criminal
Before: Weinstein SC DCJ
Decision:

You are convicted of the following offence:

 

(1) Between 27 February 2018 and 1 March 2018, you aided and abetted an attempt to possess a commercial quantity of an unlawfully imported border controlled drug, namely methamphetamine, contrary to section 11.2(1) and 307.5(1) of the Criminal Code.

 

I sentence you to a term of imprisonment of two years.

 

Pursuant to s7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), I order that the term of imprisonment be served by way of Intensive Correction Order.

 

The sentence will commence today, 19 July 2019 and will expire on 18 July 2021.

You must report to the City Community Corrections Office as soon as practicable, but no later than 7 days from today. This means that you must report to the City Community Corrections Office by 26 July 2019.

 

The standard conditions of the order apply, namely:

 

(1) You must not commit any offence;

 (2) You must appear before a court if called upon to do so at any time during the term of this order; and

(3) You must submit to supervision by a Community Corrections Officer.

 

The following additional conditions apply:

 

(1) A rehabilitation or treatment condition requiring you to participate in a rehabilitation program or to receive treatment for twelve months. The treatment program that Ms Thomas is currently receiving with Ms Tangarife complies with this condition; and

 

(2) I order you to undertake community service work of 500 hours.

 

If you fail to comply with the conditions of this order, sanctions may be imposed. Those sanctions may include a formal warning, the imposing of more stringent conditions or it may include revocation of this order.

 If the order is revoked you may be required to serve all or some of the period of your sentence in full-time custody.
Catchwords: SENTENCING - aid and abet an attempt to possess a commercial quantity of an unlawfully imported border controlled drug – where there are unusual circumstances – Intensive Correction Order
Legislation Cited: Crimes Act 1914 (Cth), ss16A, 17A, Part 1B, 20AB
Crimes (Sentencing Procedure) Act 1999 (NSW), ss7, 66
Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)
Cases Cited: CMB v The Attorney-General for NSW (2015) 89 ALJR 407
El-Ghourani v R [2009] NSWCCA 140
Gadsden v R [2005] NSWCCA 453
Green v R; Quinn v R (2011) 244 CLR 462
Johnson v The Queen (204) 78 ALJR 616
Lodhi v The Queen [2007] NSWCCA 360
Neal v R (1982) 149 CLR 305 at 314
R v Blackman and Walters [2001] NSWCCA 121
R v Lelikan (No 5) [2019] NSWSC 494
R v MacDonnell (2002) 128 A Crim R 44
R v Mauger [2012] NSWCCA 51
R v Pogson; R v Lapham; R v Martin (2012) 82 NSWLR 60; [2012] NSWCCA 225
R v Pullen [2018] NSWCCA 264
Wong v The Queen (2001) 207 CLR 584
Category:Sentence
Parties: Regina (Crown)
Thomas (Offender)
Representation:

Counsel:
Mr Boulten SC and Ms Edwards (Offender)

  Solicitors:
Mr McCaw (Crown)
Giddy & Crittenden (Offender)
File Number(s): 2018/68679

Judgment

Background

  1. The offender Rose Thomas has pleaded guilty to between 27 February 2018 and 1 March 2018, aiding and abetting an attempt to possess a commercial quantity of an unlawfully imported border controlled drug, namely methamphetamine, contrary to section 11.2(1) and 307.5(1) of the Criminal Code (Cth) (the Criminal Code). The maximum penalty is imprisonment for life. The offender was born in December 1992 and is now 26 years of age.

Agreed Facts

  1. The Agreed Facts for the purpose of sentence are as follows. I set them out in full so that the context of the offending can be fully understood.

  2. The co-offender, Norma Alicia Zuniga Thomas, has pleaded guilty to the following offence that between about 26 February 2018 and 1 March 2018, she imported a commercial quantity of a border controlled drug, namely methamphetamine, contrary to Section 307.1(1) of the Criminal Code.

  3. Between December 2017 and 1 March 2018, Zuniga Frias was involved in importing a consignment of speakers that contained methamphetamine from Mexico. During this period, Zuniga Frias was regularly in contact with an associate in Mexico who was facilitating the importation. The associate in Mexico asked Zuniga Frias to book two separate Airbnbs, intending that the consignment would be delivered to each address. The consignment ultimately arrived at a third Airbnb that was booked by the associate in Mexico. The consignment arrived in Sydney on 21 February 2018 and was delivered on 27 February 2018. Between the arrival and delivery of the consignment, the methamphetamine was substituted with an inert substance by the Australian Federal Police (AFP).

  4. Thomas provided support to Zuniga Frias after the consignment arrived in Sydney by aiding her to purchase screwdrivers, backpacks and scales.

  5. During the relevant period, Zuniga Frias and Thomas were in a relationship and living together at an address in Despointes Street, Marrickville, NSW 2204 (the Marrickville address).

  6. Zuniga Frias is a Mexican citizen who arrived in Australia on 15 April 2017 on a student visa. Thomas is an Australian citizen.

  7. On 23 December 2017, Zuniga Frias used Telegram, an encrypted messaging application, to exchange text messages with a person with the username 'Julian'. During the conversation, Zuniga Frias and Julian discussed a package that would be sent from Mexico and arrive in Sydney on 27 or 28 December 2018. During that conversation, the following exchange took place:

Zuniga Frias: Listen, wouldn't it be easier if you rent the Airbnb directly? Instead of sending me the money?

Julian: But we don't have flights or anything to Aus. So we need you because you're there, to make it look as if you're going to rent it.

Zuniga Frias: Ah ok, ok.

Zuniga Frias: Yes but you said something about buying a mobile phone

Julian: Buy a mobile phone

Zuniga Frias: Which one, a cheapie?

Julian: When you pick it up they'll ask for a number so they can contact you raegarding the parcel.

Zuniga Frias: Ah, ok alright

Julian:   / also need your passport photo. Instead of your licence.

  1. On 24 December 2017, Julian told Zuniga Frias that ‘everything has been put on hold until Tuesday, but it will arrive the following week’. The next day, Zuniga Frias told Julian that she had emailed spare passport sized photos. On 29 December 2017, Julian told Zuniga Frias that ‘this will be organized after the New Year’. Zuniga Frias confirmed that she had bought a cheap phone.

  2. Between 29 December 2017 and 6 January 2018, Zuniga Frias exchanged numerous messages with Julian about:

  1. When Zuniga Frias would be available to receive the delivery;

  2. Zuniga Frias booking an apartment or house on Airbnb; and

  3. Julian sending money to Zuniga Frias to reimburse her for the cost of the phone she purchased and the Airbnb.

  1. On 6 January 2018, Zuniga Frias confirmed her contact phone number and the address of the Airbnb she had rented. Julian confirmed that he had transferred 20,000 Mexican pesos ($1,287.00 AUD) using a Western Union money transfer to pay for the cost of renting an Airbnb. The following messages were also exchanged:

Julian: The speakers come from a very important large company; Sony. The person inside Sony is working for us monitors the parcel until it arrives at the address ok? If he sees any (light bulb emoji)(red circle emoji) we'd let you know straight away. So all good.

Zuniga Frias: Ok excellent. Thanks for that, I won't worry then.

  1. On 8 January 2018, Zuniga Frias received $1,262.68 from Mexico via a Western Union Money Transfer. That day she sent a message to Julian saying ‘I took out the money and everything one hundred percent’. On 9 January 2018, Zuniga Frias told Julian that she had purchased another phone. She gave him the phone number so that Julian could register the number with a courier company. She also confirmed the dates for which she had booked the Airbnb.

  2. On 10 January 2018, Zuniga Frias and Julian exchanged the following messages on Telegram:

Julian: We're going to be rich

Awesome

Zuniga Frias: Hahaha

Ea aaaaa

(money with wings emoji)

  1. Between 10 January 2018 and 17 January 2018, Zuniga Frias regularly asked Julian for updates about when the package would arrive. On 17 January 2018, the following exchange took place:

Julian: I've just been told it's running behind schedule, maybe you can stay at the house for a few days and we'll rent another one next week.

Zuniga Frias: Okayaaay

I was keeping an eye on it

So it's not arriving this week?

Julian: Nope, not until next week beautiful

But enjoy the house with your girlfriend

Haha

A little present from the agency!

  1. Between 25 January 2018 and 30 January 2018, Julian asked Zuniga Frias to speak to a courier company and pass on their contact details to Julian so that the package could be sent. Julian also said that he would send some extra money to Zuniga Frias.

  2. On 30 January 2018, the following exchange took place:

Julian: Can't wait until it's all over so we can get paid

I actually just spoke about your share and as I told you 15 are yours sweetheart And that's just the beginning

Zuniga Frias: Trassss (Slang word for agreement)

  1. On 30 January 2018, Zuniga Frias received $400.00 from Mexico via a Western Union Money Transfer to book an Airbnb. On 1 February and 2 February, Zuniga Frias and Julian exchanged numerous messages about booking another Airbnb so that the delivery could be made. Julian also said that he would send Zuniga Frias more money to reimburse her for the booking.

  2. On 2 February 2018, Zuniga Frias and Julian exchanged the following messages:

Julian: Next week

As soon as that's done there, they'll give you your 15 thousand dollars

So exciting

Zuniga Frias: You're welcome, thank you!

Yes, fuckin good.

Can't believe it.

And next week, you would tell me what day?

So someone will give me the cash ?

Julian: Yep

They'll pay you straight away

You pick up, they pick up and they pay you when they pick up

Zuniga Frias: Yayyy

Awesome

  1. On 2 February 2018, Zuniga Frias received $800.00 from Mexico via a Western Union Money Transfer. Between 3 February and 13 February, Zuniga Frias and Julian exchanged numerous messages about when the package will arrive. During this period, Zuniga Frias twice changed the dates for the Airbnb booking at the request of Julian because of delays. On 14 February 2018, Zuniga Frias suggested she open a 'Go Fund Me' fundraising page as a covert method of receiving payment for her role in the importation. Julian also asked Zuniga Frias for a passport size photo so he could make a driver’s licence.

  2. On 19 February 2018, a package addressed to Zuniga Frias arrived in Sydney. The package contained two fraudulent NSW drivers’ licences.

  3. On 20 February 2018, Zuniga Frias told Thomas that she had received a message from DHL saying the consignment was on its way. Zuniga Frias exchanged further messages about tracking the consignment, its delivery, and what might happen if it were intercepted by authorities. During the exchange of messages, Thomas said ‘Im imagining they send police with the package’ and ‘Im scared of this convo on whatspp’.

  4. On 21 February 2018, a consignment of eight Sony Speakers addressed to Emily Clark of 95 Evans Street, Rozelle NSW 2039 arrived in Sydney Australia (‘the consignment’). 15.8744kg of pure methamphetamine was concealed inside a clear box wrapped in silver foil within each speaker. The estimated street value of the methamphetamine in the consignment was $13,691,670.00. On 23 February 2018, the consignment was deconstructed by the AFP, who replaced the methamphetamine with an inert substance for a managed delivery.

  5. At 10:34am on 27 February 2018, Zuniga Frias was in the vicinity of 95 Evans Street, Rozelle, NSW ('the delivery address'). At 10:51am, an AFP member disguised as a DHL courier arrived at the delivery address. The AFP member and Zuniga Frias had a conversation. Zuniga Frias identified herself as Emily and signed for the consignment. The AFP member placed the consignment in the hallway of 95 Evans Street and left.

  6. At 11:22am, Zuniga Frias was called by an unknown person involved in the importation. They discussed purchasing backpacks for the substance and when Zuniga Frias would pass the substance on to another person.

  7. Between 11:39am and 12:01pm, Zuniga Frias and Thomas exchanged messages about unpacking the consignment and putting the ‘stuff’ into backpacks on WhatsApp, a messaging application:

Thomas: Hiiiii whats going on???

Zuniga Frias: Nothing

Imma leave soon

I have to come back later tonight

To unscrew them

And etc

Thomas: ok bebe

far out

so intense

should I meet you there after work

Zuniga Frias: Bebe can you help me tonight

Or are you busy?

Thomas: she bebe I said just before should I meet you after work

Is someone going to meet you there

Zuniga Frias: Yes but later

Thomas: When

Zuniga Frias: I don’t know time yet

Let’s speak after work

About this

Thomas: Ok

  1. About 12:14pm, Zuniga Frias left the delivery address.

  2. Between 12:51pm and 3:04pm, Zuniga Frias and Thomas exchanged the following messages:

Thomas: bebe can we have some speaker do you think hehe

Zuniga Frias: Bebe we get to keep all speakers

But he says they don't know if they will work

Thomas: neta?

Zuniga Frias: But we can try

Thomas: how big r they

Zuniga Frias: Like meter tall?

Thomas: jojaja

oh ignore

Zuniga Frias: 1 meter

Very big

20 kilos each

Carried all of them myself

Thomas: far out

Zuniga Frias: Also the guy transferred me 500 bebe

Thomas: oh wow why

Zuniga Frias: So we get 350 extra, but it's all yours, I still owe you 100 I think

I have it written down

Because he's happy jaja no se

Thomas: ok no worries

Zuniga Frias: Hey bb

I need to buy backpacks

Thomas: why

Zuniga Frias: Because I have to put stuff in there

That's why he sent more money

But I don't know what is open at 6

Thomas: oh right ok

Zuniga Frias: / thought about bargain berserk

Obvio

Thomas: how many

Zuniga Frias: But it closes

4

Thomas: kmart is open 24/7

Zuniga Frias: Neta?

We could stop by one on the way

Thomas: seh

I can meet you at bway?

  1. At 6:58pm, Zuniga Frias and the offender walked into Kmart at Broadway Shopping Centre, 1 Bay Street, NSW. They purchased five backpacks, a 30 piece screw driver set, a cement pot plant and candles and left at 7:14pm. At 7:44pm, Thomas and Zuniga Frias arrived at the delivery address. They dropped off the items they had purchased at Kmart and left at 7:52pm in Thomas's car. They drove to a nearby pharmacy where Zuniga Frias was observed to leave the car and enter the pharmacy, and where she purchased a set of scales. They returned to the delivery address at 8:10pm. Zuniga Frias went inside and Thomas drove away.

  2. Between 8:13pm and 8:41pm, Zuniga Frias opened the consignment, removed the substance, and used the scales to weigh the substance. She attempted to divide the substance up and put each portion inside a backpack.

  3. At 8:31pm, Zuniga Frias messaged Julian and said ‘Dude the fucking scales I bought are no good...And my girlfriend did me the favour of taking me to buy it and to get the things but she dropped me off here...I can open everything up today but there's no scales and it's late, what do I do, should I buy one tomorrow and come back’. At 9:11pm, Zuniga Frias left the delivery address.

  4. Between 8:30am and 12:00pm on 28 February 2018, Zuniga Frias spoke to Julian about taking the backpacks to a hotel or back to her house, additional payments and preparing the 'stuff’ for collection. At 11:56am, Zuniga Frias arrived at the delivery address.

  5. Between 12:00pm and 5:11pm, Zuniga Frias spoke to Julian about preparing the ‘stuff’ for collection, getting paid for her work, the quality of the ‘crystals’, and using a serial number to confirm identity of the person who was to collect the consignment. During this period, Zuniga Frias continued to unpack the substance, attempting to weigh it and divide it up into five separate portions for delivery, in accordance with instructions she had received from Julian. Between 12:39pm and 6:10pm, Zuniga Frias exchanged encrypted messages with the intended recipient of the substance about the time and date of delivery, as well as the identity of the person collecting the backpacks.

  6. At 5:01pm, Zuniga Frias called Thomas and said ‘things, um, are changing’, that ‘they're gunna pick them up tomorrow’ and that Zuniga Frias would have to ‘take this with me’ because the Airbnb rental was ending. Zuniga Frias told Thomas she would ‘put them in two bags’ and bring the bags home.

  7. On 1 March 2018, the AFP arrested Zuniga Frias and Thomas and executed a search warrant at the Marrickville address. During a search of the apartment, the AFP found a blue bag in a bedroom shared by Zuniga Frias and Thomas. The bag contained screwdrivers, gloves, and an airway bill for the consignment. Located within the same room were three backpacks containing the inert substance.

  8. Zuniga Frias participated in a recorded interview with the AFP. She made full admissions during that interview. She also said:

  1. In November 2017 she was sent a phone from an unknown person who knew a friend of hers, who called himself Julian;

  2. She was not expecting to have to remove anything from the consignment, but rather simply hand it off to another unknown person. However, when the consignment arrived Julian instructed her to 'open them and get these bags out';

  3. The speakers were much, much bigger than she had expected;

  4. She thought the speakers contained 'coke or something';

  5. She was to receive money for collecting the package;

  6. She was supposed to receive another package containing photo ID, but it never arrived; and

  7. During the interview, an AFP officer said to Zuniga Frias ‘Because, from my perspective, you've been very truthful and honest in relation to the things you've told us today. Is there anything else you want to say?’ Zuniga Frias replied ‘Um, like, I regret this - ever doing this. Like, it's obviously, the worst thing I've ever done in my life. I regret meeting him. I regret even chatting to him. For the first time, I regret doing this stupid phone. I regret not having the balls to be like, 'I'm not doing this anymore', and let him deal with his problem because in the end, it was his problem. Like, I could've just walked away before it-doing anything’.

The Evidence

  1. The Crown tendered a bundle of documents consisting of:

  1. An Amended Court Attendance Notice;

  2. Agreed Facts (as set out above);

  3. The Crown Written Submissions on Sentence; and

  4. A Schedule of Cases.

  1. The offender tendered:

  1. Her conditions of bail (Exhibit 2);

  2. A bundle of defence documents (Exhibit 3); and

  3. Photographs of glass bathroom scales (Exhibit 4).

  1. A Sentence Assessment Report (SAR) was tendered before me today as Exhibit 5.

  2. I set out the offender’s evidence in detail, so that my conclusions on sentence can be properly understood.

  3. Exhibit 3 contains 12 documents and the offender’s written submissions. The first document is a report of Dr Bruce Westmore dated 9 April 2019, who examined the offender on 27 March 2019. The offender was then aged 26, single, living with her mother (and on occasions her siblings) in Sydney, and was working in digital marketing four days per week (a job she has had for two and a half years).

  4. The offender told Dr Westmore that she was living with her (then) partner at the time of her arrest. She had no previous criminal history. At the time of the offence, she had been in an on and off same sex relationship with a woman she had met in Mexico at the end of 2015. Her partner moved to Australia in the middle of 2017 and they started living together full-time about three weeks prior to the offender’s arrest. Apparently her partner had a contact in Mexico, and there had been ongoing discussions between that person and Ms Thomas’s partner. The offender said that her involvement in the offence came about because her ex-partner asked her to help her out by driving her to buy some backpacks and then drive her to a house. She said ‘the situation kind of hit me in the face and I left the house with her (Ms Thomas’s then partner)’ but her partner returned. She had been alarmed when she saw a tiny room where there were boxes of speakers on the floor. She left the house because she felt it was a dangerous situation and something that she wanted nothing to do with. She was aware that something wrong was being done, but the offender said she was unaware of the details of the illegal activity.

  1. The offender told Dr Westmore that she had been involved in a very deep and intense relationship with Norma, and at the time of the offending all she was thinking about was Norma’s happiness and her well-being. She described her mood at the time of the offending as ‘numb’, and she did not think that she was aware of how stressed she was. The offender confirmed that her actions were wrong, that she failed to stand up for what she believed in, that it was a greedy act, that she did not then know what methamphetamine was, but that she now has a greater understanding (after spending three and a half weeks in prison and seeing the impact of the drug on people). She said that the drug is disgusting and that it destroys entire communities.

  2. The offender confirmed that she has seen a counsellor on 12 or 13 occasions on referral by her general practitioner. Those sessions occur every 2 to 4 weeks. Her employer is aware of her current legal problems and remains supportive of her. She has many long-term friends, all of whom were aware of her problems and all of whom remain supportive.

  3. Dr Westmore diagnosed the offender with an Adjustment Disorder with Depressed and Anxious Mood, which is a reactive disturbance of mood occurring in the context of the offender’s multiple and severe psychosocial stressors. He was of the view that the condition is likely to remain in place up to and during the current legal proceedings, and will likely remain beyond the current proceedings.

  4. In Dr Westmore’s opinion, the offender became involved in the offending behaviour because the offender’s co-accused asked her for assistance. Thus in his view, the significance of that relationship to Ms Thomas was a critical factor in affecting her judgment in relation to participating in the offending behaviour. He says that the offender’s counsellor has used the word ‘enmeshed’ to describe the offender’s relationship with Norma. Enmeshment, he says, is an unhealthy factor in a relationship, and can affect a person’s judgment within a relationship. He is of the view that the offender now has very good insight into her involvement in the offending behaviour, and recognises the wrongness of her actions. He believes that she has genuine feelings of regret and remorse in relation to her behaviour.

  5. At page 5 of his report, Dr Westmore says ‘I think her prospects of reoffending are low to non-existent. In a general sense, her prognosis is extremely good both from a psychiatric and a forensic perspective’. He bases this opinion on the absence of an Antisocial Personality Disorder, no previous criminal/forensic history, good insight into the wrongness of the offending behaviour, feelings of regret and remorse, her level of intelligence, no personal long-term drug and alcohol problems, the presence of a very supportive family/employer and social network and the absence of the specific preceptive factor which he believes played a primary role in her participating in the offending behaviour, ie her relationship with her co-accused which has now ended.

  6. The second document is a letter from Carolina Barreto Tangarife, clinical psychologist dated 6 March 2019. She has counselled the offender on 12 occasions since 22 May 2018. Treatment has not concluded, given that the conviction and sentencing process has yet to be completed and that the offender remains vulnerable. Ms Tangarife is of the view that Ms Thomas’s coping mechanism was impaired by her strong desire to care for her partner Norma whom she had been supporting financially, socially and emotionally from the time of her arrival in Australia. The offender acknowledged becoming emotionally enmeshed with her partner. Ms Tangarife says that ‘enmeshment’ makes it difficult to maintain individuality and to see the ‘self’ outside the relationship, and which leads to blurred boundaries. During their first sessions, the offender appeared in a state of shock and struggled to fully understand what had occurred. It took months to integrate the fact that she had participated in a drug related offence into her personality. In Ms Tangarife’s opinion, the offender approached the offending with naïveté, which was the product of her coping mechanisms, her enmeshed relationship with her partner, her limited exposure to the world of drug trafficking, as well as her socio-economic and educational background which had sheltered her from drug related phenomena. She believes that the offender has done a lot to reflect on the reasons for her actions, that she has taken ownership of her behaviour and that she is regretful and remorseful for participating in the drug related offence.

  7. The third document is an affidavit from Jacqueline Maxted, the offender’s mother. She states that her daughter was Dux in year six and was always a diligent student. She excelled at sport and was accepted to a Bachelor of Arts in Communications with International Studies at the University of Technology Sydney. She spent two weeks as a volunteer in orphanages in Thailand and Nepal in 2012 and 2014 respectively. In 2015 whilst studying in Mexico, she built a website for a stray dog shelter. Ms Maxted met the co-offender Norma in Mexico, and observed then that her daughter and the co-offender were in love.

  8. Ms Maxted says that her daughter was financially independent and responsible, and held various jobs, throughout her studies. At the end of her degree, her daughter secured full-time employment at Elephant Room where she has continued to work. Once the offender was established in her position, the offender’s mother observed that she was stressed. She became concerned about her levels of stress then, and by the time Norma arrived in Australia she felt that work had become a significant part of her daughter’s life and it was demanding a lot from her.

  9. Ms Maxted observed that her daughter was very much in love and happy to be around Norma, whom she found to be a strong clear minded and independent woman. She thought that her daughter was very focused on Norma and concerned for her well-being. Ms Maxted in time became closer to Norma. The co-offender had recently lost her brother to cancer, and was very much alone in a new country. The young women were planning on getting married. Looking back, Ms Maxted says that the love they had for one another was real, but her daughter’s stress level, which was considerable, should have alerted her to the fact that there was more going on than she was able to manage. Ms Maxted is shocked at her daughter’s offending, as she has never been in trouble before. She observes that her daughter has changed since her arrest, and that she has come to terms with the bad decision she made and now understands the reality of what she did. Her daughter accepts full responsibility for her conduct and is devastated at the thought of the harm that the drugs could have caused, had they not been intercepted. She observes that her daughter has learned a lot about herself, which is manifest in observable increased levels of maturity and seriousness.

  10. The fourth document is a reference from Adam Sharon Zipser dated 10 May 2019. He previously provided a reference on 5 March 2018. (All referees are aware of the facts and circumstances of the offence.) Mr Sharon Zipser notes that since her release on bail, the offender has continued to work for him as a media manager. Her work primarily involves working with clients on building and optimising their advertising campaigns across Google and Facebook. He observes that the offender has a long career ahead of her and he looks forward to nurturing her in any way possible. He says that from his discussions with the offender, he believes that she is truly sorry for her involvement in this matter and is sorry for the distress that it has caused her family, her colleagues and herself. She holds herself to blame, and is aware and ashamed of the destruction that the drugs could have caused. He believes that the offence is out of character.

  11. The fifth document is from Paul Galea, Deputy Head of High School at International Grammar School dated 24 April 2019. He observes that the offender was a student at International Grammar School from 2005 until 2010. She is known to him in her role as the Director of Student Activities and as her mentor for year 12 in 2010. He says that the offender is an honest, caring, friendly, supportive and optimistic young woman, and that he was surprised to learn about her conduct which he believes is out of character.

  12. The sixth document is from Jake Thomas, who is the offender’s older brother. He is a full-time student at the University of Sydney. He reports that the offender has told him that she is aware of the gravity of the offence and the potential harm that may been inflicted by the drugs on our society. She blames herself and is ashamed and appalled at her actions. He says that she is a caring person who cannot bear the thought of hurt being caused to others. He describes the differences he observed in his sister when she was in her relationship with the co-offender. The main difference he noticed was that when she was with Norma, she withdrew from other relationships in her life. She would rarely physically separate from Norma and always had an eye on her. Mr Thomas says that his sister is devastated by her conduct and that her actions are out of character.

  13. The seventh document is from the offender’s aunt Suzanne Helen Blythin and is dated 16 April 2019. She is a primary and early childhood teacher and has worked in the field of education since 1986. Ms Blythin employed the offender on a casual basis while she was studying at university, when she was responsible for the supervision and safety of children at Bondi Beach Public School OCHC centre as an educator. She believes Rosie to be a responsible citizen with a strong commitment to environmental issues and human rights, and is intelligent, thoughtful and articulate. Ms Blythin has frequently seen the offender since her release on bail, and whilst Rosie has been quite candid about her experiences, she seems to Ms Blythin to be shaken and affected by the events. The offender has talked to Ms Blythin about her shame and deep regret at not convincing Norma to cease the activity. She has also told Ms Blythin of her shame that this could have resulted in harm to the community and how grateful she is that the drugs were seized by police. She believes that Rosie is genuinely remorseful for her actions, and that she is a truly good person.

  14. The eighth document is a reference from Lorraine Young dated 23 April 2019. Ms Young has had a career of more than 20 years in commercial and investment banking in Sydney. She volunteers as a court support officer with VWCCS in Parramatta. Ms Young has known the offender since she was a baby. She was shocked to hear of the offence and says that the offender has always been a law-abiding person and that her actions are out of character. She notes that the offender blames no one but herself, and that she regrets her actions. She observes that the offender’s remorse over her part in the crime is genuine and heartfelt, and that she has learned a strong lesson from the events leading to the charge.

  15. The ninth document is a reference from Sinead Carey Bryson and is dated 2 May 2019. Ms Bryson is employed as an Associate at the Fair Work Commission. She has been friends with the offender since early 2014. She observes that the relationship between the offender and the co-offender was genuine, that the relationship seemed ‘larger-than-life’ and that Rosie was enmeshed in it. The two were always together and were progressing through relationship milestones, culminating in their moving in together in February 2018. Since her arrest, the offender has expressed deep regret for her actions in supporting Norma and particularly for not stopping her from committing the crime. She has also expressed remorse to Ms Bryson with respect to the effect that the drugs could have had on the community had they reached the streets.

  16. The tenth document is a reference from Marcus Joshua Andersson dated 17 April 2019. He is a PhD candidate at the University of Sydney and is admitted to practice law in New South Wales. Mr Andersson has known the offender since 2005 when they both attended International Grammar School. He observes that the offender was supporting Norma financially to some degree, and would often seek out opportunities for Norma. He noticed that the offender would be a lot more open to compromise, and that there was a change in the dynamic of his relationship with the offender once Norma arrived in Australia. Since her release on bail, Mr Andersson says that the offender has taken many active steps to improve her well-being. She ensures that she makes no errors of judgment, and obeys all of her bail conditions. He says that she is fully aware of the impact of the offence and the consequences had the drugs not been intercepted, and that she is appalled that she could have been involved in this criminal activity in any way. He observes that she shows heartfelt remorse for her actions.

  17. The eleventh document is a reference from Millicent Middis-Engelear dated 12 May 2019. She is an acupuncturist, final year nursing student and the offender’s best friend. She notes that the offender is a kind, gentle and good person. She was staggered when she heard about this matter, which she says is out of character. Since the offender’s release on bail, the offender has told her of the regret she feels about ever being involved in the matter, and that she describes the time leading up to it and her time in gaol as a bad dream. The offender is genuinely horrified that she could have had any responsibility in causing ‘those awful drugs’ to come into our country. Ms Middis-Engelear believes that the offender is genuinely remorseful.

  18. The twelfth document is a reference from Natasha King and is undated. Ms King is a Kinesiologist and Integrative Complementary Medicine Practitioner. The offender has consulted with Ms King on 14 occasions commencing in April 2018 for the purpose of processing her understanding of the events. Ms King notes that the offender’s remorse was evident at the first session, and that the sessions have generally sought to address the offender’s low self-esteem which allowed her to be vulnerable. Ms King says that the offender has shown a constant and resolute demeanour in moving past this mistake in a constructive and meaningful manner.

  19. Ms Thomas gave evidence before me on 24 May 2019. She said that at 10:30am on 27 February 2018 whilst she was at work in her office in Alexandria, she became aware that her partner Norma was at the premises at Rozelle. Ms Thomas said that she was feeling very stressed and worried, and at that point she was very panicked as it finally hit her that ‘it’ was happening, that ‘it’ was real and that she wanted ‘it’ to be over. Ms Thomas said that prior to assisting Norma to buy backpacks, which she understood had something to do with an importation, she never expected to provide any form of assistance whatsoever. She told Mr Boulten SC that she assisted Norma just so that it could be over, and so that Norma would be okay. They went to Kmart where Norma bought the backpacks, and then they left and drove to Evans Street in Rozelle. As they drove to Rozelle, the offender said she was panicked, scared and worried. When they walked into the premises, Norma went to the bathroom and the offender sat on the bed. She saw some big speaker boxes on the floor and felt completely overwhelmed and didn’t want to be there. She said that she was in shock, as she believed illegal drugs had been delivered. She made an assumption that it was cocaine based on the country it was coming from. She never had an indication of the quantity. She thought that there was a package hidden inside the speakers, but had no hard information to that effect. She did not see any drugs when she was in the premises at Rozelle.

  20. Ms Thomas told the court that as soon as she stepped into the premises she wanted to leave, and she was about to tell Norma that she could not be there anymore when Norma came out of the bathroom and said that she needed to buy scales. The offender said that this was an opportunity to leave, so they left in the offender’s car and the offender drove Norma to the pharmacy which was about a kilometre away. There a set of scales were purchased by Norma, whilst the offender stayed in the car. The offender drove Norma back to Rozelle, but she did not re-enter the premises and instead met a friend at a bar in Redfern. Later that evening Norma returned to their home.

  21. The next day was a busy day at work, and at about 5pm the co-offender rang Ms Thomas and told her that ‘things were changing’ and there was a discussion about how Norma wanted to bring the drugs back into their house. The offender told the court that this was not part of the plan, as she understood it. She felt that it was the wrong thing to do, but she did not have another solution and although she felt very uncomfortable about it, she did not say no. She briefly saw Norma again that night at about 10:30pm or 11pm after she had spent the night drinking. She did not see the drugs when she got home that night and did not know where they were in the house. She did not talk to Norma about it, as she was not interested in details and didn’t want to know about it. The next morning she went to work.

  22. The next day the offender was arrested and taken into custody by police. She felt ashamed of having anything to do with it. She said to me: ‘I see anything in the drug trade as a completely greedy act as it’s something that millions or thousands of people lose their lives to every year and I have seen the impact of this drug now from being in prison and it’s just wrong’.

  23. The offender said that she had a very close and loving relationship with Norma and was deeply in love with her. She observed that Norma’s brother had recently died, and that Norma was still deeply upset and was estranged from her mother, in large measure due to her sexuality and her relationship with the offender.

  24. The offender did not expect to get any financial gain out of the transaction although Norma had talked about paying her $350 out of the money that she had received, which was money Norma owed the offender.

  25. The offender told the court that she is undergoing therapy which has been extremely helpful to understanding everything, including her role, in the offence. She said that she has been continuing her employment at the Elephant Room, and that if she does not go back to prison, she will be given a promotion at work.

  26. Mr McCaw cross-examined the offender. She conceded that at 20 February 2018, a week before she went with Norma to pick up the backpacks and scales, she was worried that the police might come with the package because she knew there was something illegal in it. She told Mr McCaw that at Evans Street she saw the speaker boxes, could not see any drugs, could not smell anything, that she did not want to be there, and that she assumed it was cocaine. She told Mr McCaw that bringing the substance back to Marrickville was not part of the plan. She conceded that at no time from 20 February 2018 up until the time of her arrest did she ever tell Norma that she should not go through with it, even though she knew it was illegal. She confirmed that the speaker boxes that she saw at Rozelle were approximately 80 cm wide and perhaps 60 cm tall.

  27. I found the offender to be a candid and thoughtful witness, who did not minimise her involvement. I accept her evidence, which goes some way to corroborating matters in the documentary material.

  28. Ms Maxted also gave evidence before me on 24 May 2019. She was not cross-examined by the Crown.

  29. Ms Maxted confirmed much of what was said in her affidavit (see above). She recalled that when her daughter was in prison, she was very scared and looked thin and pale. Since she has been on bail, Ms Thomas has been living with her mother and has been undergoing a course of therapy with a psychologist and seeing a kinesiologist. Ms Maxted says that she has observed a big change in her daughter over the last 15 months, and she sees a quieter, more mature and calmer person. She says that her daughter is extremely disappointed in herself, and is bewildered as to why she did not stop the offending and why she made the wrong decision. She is terribly ashamed about her role in such a crime, and understands some of the nature of the criminal underworld, which her daughter now thinks is despicable.

  1. Exhibit 5 is the Sentencing Assessment Report dated 10 July 2019 under the hand of Caroline Thomasen, Community Corrections Officer. That document is based on interviews with the offender, contact with her mother, brother and employer, and perusal of supporting documentation provided by the offender.

  2. Ms Thomasen reported that the offender appears to enjoy supportive relationships with her family, a close group of friends and her employer. The offender showed marked regret at her engagement in the offence. She has appropriately reflected on her actions and the potential impact to the wider community. The offender said that her co-accused was entirely responsible for the initiation of the offence, but that she had not been able to say no to her because of the nature of their relationship. Since the offence, she has engaged with a clinical psychologist in a positive and meaningful way. Ms Thomas was assessed at a low risk of reoffending according to the Level of Service Inventory – Revised (LSI-R). The offender was assessed as suitable to undertake 24 hours of community service work per month.

  3. I pause to note here that I have been assisted by the able and thoughtful submissions of Mr McCaw for the Crown and Mr Boulten SC and Ms Edwards on behalf of Ms Thomas.

Crown’s Submissions

  1. The Crown submits that due to the seriousness of this offence, the application of the primary sentencing objectives of general deterrence and denunciation requires the imposition of a full-time custodial penalty with a non-parole period. He submits that general deterrence and denunciation are the significant issues in this matter.

  2. The Crown acknowledges that the court must take into account those factors in section 16A of the Crimes Act 1914 (the Crimes Act) that are relevant and known to the court, including the character, age, antecedents, physical and mental condition of the offender (s16A(2)(m)), the offender’s plea of guilty (s16A(2)(g)), any contrition or remorse shown by the offender (s16A(2)(f)), and the offender’s prospects of rehabilitation (s16A(2)(n)). The Crown acknowledges that the offender is a 26-year-old Australian national with no criminal antecedents. He also acknowledges that the offender entered a plea of guilty at the earliest opportunity and is entitled to a discount for the utilitarian value of the plea.

The Offender’s Submissions

  1. Mr Boulten SC says that the nature and circumstances of the offence (s16A(2)(a)), which are set out in detail in the Agreed Facts, contain few references to the offender, although he accepts that she assisted the co-offender to commit an extremely serious offence. He submits, however, that her role in the offence places her at the very bottom of the scale of objective seriousness. His ultimate submission is that this is an exceptional case which warrants an exceptional outcome.

Objective Seriousness

  1. The Crown submits that the offender’s conduct, when compared to her co-offender, is more limited in duration and scope. She appears to have first become aware of the enterprise that her then partner was involved in on 20 February 2018, when the co-offender told Thomas about a message she had received from DHL. Ms Thomas conduct was limited to assisting the co-offender with locating and purchasing backpacks, tools, and scales that were going to be used by the co-offender to open the speakers, remove the drugs and weigh them. Thomas travelled with her co-offender to Kmart to purchase those items and dropped her off at the Airbnb where the consignment had been delivered. Thomas also allowed her co-offender to store the backpacks in the room they shared at Marrickville. These matters are not controversial.

  2. The Crown submits that the offender’s knowledge of the co-offender’s involvement in a drug enterprise is implicit in the text messages in which Thomas said ‘I’m imagining they sent police with the package’ and ‘I’m scared of this convo on whatsapp’. The Crown says that the inference is that Thomas was concerned that the co-offender would be arrested when she received the consignment, because she was aware that it contained an illegal substance. Whilst the Crown does not submit that Thomas knew the type of substance that the co-offender was importing, he submits that she was aware that it was a significant amount, based on the information later provided to her by her co-offender. On 27 February 2018 the co-offender described the weight of the speakers, being 20kg, and told Thomas that she needed to buy backpacks to put stuff in. Thomas was with the co-offender when she purchased five backpacks from Kmart and a set of (bathroom) scales from a nearby pharmacy. The Crown submits that an inference should be drawn that Thomas was aware that her co-offender had imported a large amount of an illegal drug, although the precise amount was not known to her. Further, the Crown submits that a feature of the seriousness of the offence is that the offender knew that her partner was involved in a drug enterprise and assisted in any event.

The Role of the Offender

  1. Mr Boulten SC submitted that the offender’s role in the offence placed her at the lowest end of the scale of objective seriousness.

  2. There is no doubt that the offence to which the offender has pleaded guilty is very serious and that the maximum penalty of life imprisonment demonstrates the gravity with which Parliament views the offence.

  3. Mr Boulten SC says that Ms Thomas provided extremely brief and minimal assistance to her girlfriend. She had no contact with the Mexican drug cartel and received and expected no payment. Her involvement, in Mr Boulten SC’s submission, can be distilled to discussions with the co-offender on 20 February 2018 indicating some awareness of the importation, including her fears about the co-offender being apprehended, attending Kmart with the co-offender on 27 February 2018 when the co-offender bought backpacks and screwdrivers to be used in the operation, driving the co-offender to the Evans Street premises on 27 February 2018 to deposit the purchased items and then driving her to a pharmacy to purchase scales before dropping her back a few minutes later and driving off, and reluctantly acquiescing on 29 February 2018 to the co-offender bringing the inert substance home overnight to their share house in Marrickville. I note that there is no evidence that the offender encouraged the co-offender to bring the inert substance to their home. I find that she reluctantly acquiesced, as submitted by Mr Boulten SC.

  4. Mr Boulten SC says that the offender’s involvement was very brief, and that her physical participation was limited to actions on a single day. She was engaged in busy, stressful full-time work throughout the co-offender’s involvement. Mr Boulten SC submits that the Agreed Facts and the subjective material demonstrate that the offender’s involvement was driven by a misplaced desire to support and protect her girlfriend and that she avoided contact with the cartel and drugs. She checked if any person would be present at the Evans Street premises before attending, and she did not stay and assist the co-offender to unpack the drugs after the purchase of the scales. He submitted that Ms Thomas’s motivation is relevant when assessing her moral culpability: Neal v R (1982) 149 CLR 305 at [314].

  5. In Mr Boulten SC’s submission, the offender’s role fell below even a mule or a courier. Unlike a courier, she did not perform any function crucial to the operation’s success or supply chain. The co-offender did not rely on the offender to complete her role. Rather she could have taken every step without her help, ie bought backpacks and screwdrivers alone, taken them and delivered them to the Evans Street house alone and walked to the nearby pharmacy to buy the scales. He submits that it is artificial to discuss the offender’s ‘role in the hierarchy’, because she stood well outside the operation and its participants, and they did not consider her to be playing any role. In particular, it is submitted that the offender did not initiate the offence or incite the co-offender but rather expressed reluctance, fear and concern, had no communication with any of the cartel members, occupied no role in decision-making or in the cartel hierarchy, did not engage in any ongoing illegal acts or course of conduct, received no payment or reward, did not know exactly what substance was being imported, did not unpack the drugs from the speakers and repack the bags for distribution, was not aware of the plans to distribute the drugs or how that might occur, did not falsify identity documents, did not engage in any steps to disguise the offence or avoid detection, had no communications with customs officials or DHL, used no skills, played no role in planning for distribution of the drug, and was perceived by the participants merely as ‘Norma’s girlfriend’ and someone doing Norma a favour rather than being a participant. Mr McCaw conceded that Ms Thomas’s involvement was lower than that of a courier.

  6. The Crown submits that even though Thomas’s role was more limited than her co-offender, the need for general and (to a lesser extent) specific deterrence, as well as denunciation, remains paramount.

  7. As to the weight of the drug, whilst it was significant at 15.8744kg, Mr Boulten SC notes that the Court of Criminal Appeal has recently warned of the danger of being overwhelmed by the quantity of the drug, and notes that it is not the sole or key determinant in assessing the objective gravity of drug offences: Wong v The Queen (2001) 207 CLR 584. He submitted that the role of the offender and the level of the offender’s participation in the criminal enterprise are regarded as more important in assessing objective criminality than the quantity of the drugs: R v MacDonnell (2002) 128 A Crim R 44. He further submitted that there is no evidence to suggest that the offender had any real conception of the scale of the operation, and that the intercepted call suggests only that she was aware of ‘the package’. He says that it cannot be inferred, as submitted by the Crown, that discovering that the speakers were large led to Ms Thomas having an awareness of the amount of the drug. She had no understanding of how the speakers were used, or how their size might matter, and she indicated surprise when told that the speakers were large. He submits that the messages contained in the Agreed Facts demonstrate how little the offender knew about the operation and indicate that she did not know why money was being transferred to the co-offender.

  8. I find that the role of the offender was considerably less than that of a courier, and I accept Mr Boulten SC’s description of her peripheral involvement, which I have set out in detail above. Of particular significance, in my opinion, is that there was no role for her to play in the operation, other than brief and non-integral assistance provided to her partner over a short period. This in itself sets this matter apart from the cases which have been provided to me for comparison.

  9. As to financial gain, Mr Boulten SC submitted that the offender was not motivated to obtain money or drugs. She received no payment and had no expectation of any financial reward. There is no suggestion of ‘trappings of wealth’ or lavish lifestyle. The fact that the offender might have received $350 is to be seen in the context of a partial repayment of an existing debt owed to her. There is ample evidence, he says, that in fact the offender financially supported the co-offender after she arrived in Australia.

  10. As to loss or harm (s16A(2) of the Crimes Act), the offender accepts that the drugs could have had a devastating impact if distributed but Mr Boulten SC observes that the actions of the AFP prevented any actual harm to the community, which is a relevant but minor dimunition of the offender’s culpability.

  11. As to sophistication, Mr Boulten SC stated that the actions of both offenders demonstrated a lack of sophistication. Ms Thomas took no steps at all to disguise her limited participation, she used her own phone and was seen on CCTV.

  12. Taking into account all matters, I find that the offender’s role in the offence placed her at the very low end on the scale of objective seriousness.

General and Specific Deterrence

  1. Mr Boulten SC submits that the role of general deterrence is significant and he accepts that the sentence must involve some component of punishment. He accepts too, that the maximum penalty is an important guide to the appropriate outcome for typical offences of this kind, and is demonstrated by the pattern of sentencing for this charge. However he submits that this case is far removed from a typical case, that drug and importation cases can encompass a ‘wide range of moral culpability’ and that sentences can encompass a wide range. He submitted that it would be an error to treat statistical outcomes as if they establish some sort of tariff: El-Ghourani v R [2009] NSWCCA 140 at [33] and [42].

  2. It was submitted by Mr Boulten SC that there is no requirement of law or policy that a particular penalty or sentence length must be imposed where the maximum penalty is life imprisonment, or that imprisonment must be imposed unless the case is exceptional: R v Lelikan (No 5) [2019] NSWSC 494, where McCallum J (as her Honour then was) made this observation. Further, it was submitted that section 17A(1) of the Crimes Act prohibits the court from imposing imprisonment, unless having considered all other available options, there is no other appropriate sentence. The court is also required by s16A(1) to impose a sentence of ‘a severity appropriate in all the circumstances of the offence’. As observed by Spigelman CJ in Lodhi v The Queen [2007] NSWCCA 360 at [81]:

The very generality of the language - ‘a severity appropriate in all the circumstances of the offence’ - indicates the breadth of the discretion conferred upon the sentencing judge. In this formulation the parliament has indicated that the sentencing principles developed at common law, rather than the various provisions in state legislation, should apply to sentencing for Commonwealth offences. (see Johnson v The Queen (204) 78 ALJR 616).

  1. Mr Boulten SC provided a Schedule of Cases which demonstrate that the courts have exercised leniency in a wide range of offences involving drug importations, to which I have had regard. It was submitted that the cases also provide guidance as to the type of circumstances where non-custodial terms have been imposed for Commonwealth offences with a maximum penalty of life imprisonment. While some of the cases involve drugs of a different nature or in smaller quantities, the case of Ms Thomas it is submitted stands apart, as she did not play a pivotal role in any enterprise and she received no payment. It is submitted that her extremely strong subjective case also suggests that her prospects of rehabilitation are greater than the offenders in the cases provided to me. Most cases involve either unusually strong objective features or unusually strong subjective features. It is submitted that Ms Thomas is rare even within that subset, because she has both strong objective and subjective features.

  2. The thrust of Mr McCaw’s argument was that, irrespective of the offender’s low level role, her subjective features and her excellent prospects of rehabilitation, a message must be sent to the community that her involvement is serious, and that the only appropriate punishment is a full-time custodial sentence. He did not, however, suggest that in every single drug importation case every person must go to gaol. He accepted that there are exceptional cases, but submitted that this was not one of them. I have had regard to the Schedule of Cases that Mr McCaw has provided to me, but ultimately I have found them to be of limited assistance because of the subjective and objective features of this case. It is trite to say that I must approach this sentence based on the particular circumstances pertaining to this matter: see s16A(1) of the Crimes Act.

  3. I find that personal deterrence has little work to do in the present case, particularly as I find that the offender will soon be completely rehabilitated (see below). It was also submitted that the ‘very specific preceptive factor’ in the offending as described by Dr Westmore, namely the offender’s relationship with Norma, has come to an end and that in this unusual case specific deterrence need play no role in the sentencing exercise. I accept that submission.

  4. So far as denunciation and general deterrence are concerned, to paraphrase McCallum J in Lelikan, I accept that the weight given to both are to be assessed as part of the complexities of the case.

Subjective Case of the Offender

  1. I do not repeat the matters set out above. The offender received no payment for all intents and purposes and was not motivated by greed with respect to her involvement in the offence. Her involvement in the offence was minimal. The offender has no criminal history or police history of any kind. She works full-time, having completed a degree in Communications with International Studies at the University of Technology in Sydney, and her employer is fully aware of the offence and continues to support and promote her. She has spent over three weeks in custody, which I take into account. She exhibits significant self-awareness with respect to her actions and her relationship with the co-offender.

  2. I take into account all the evidence tendered and adduced by the offender, which I have set out in detail above.

Sentencing Approach

Commonwealth Sentencing Provisions

  1. The sentence to be imposed upon the offender is to be determined in accordance with Part 1B of the Crimes Act. In sentencing an offender, the court is required to have regard to the matters set out in Part 1B of the Crimes Act, which provides procedural guidance on sentencing offenders who commit Commonwealth offences. In particular the court must have regard to the matters set out in Section 16A. Part 1B is not intended to cover the field and is not intended to operate as a code.

  2. Section 16A(1) of the Crimes Act states:

In determining the sentence to be passed, or the order to be made… a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

  1. The section 16A(1) sentencing obligation has been referred to by the Western Australian and New South Wales Courts of Criminal Appeal as the ‘primary obligation’. It is specifically set out in section 16A(1), before the non-exhaustive list set out in section 16A(2), and is reinforced in section 16A(2)(k), which requires the court to take into account the need to ensure that the offender is ‘adequately punished for the offence’.

  2. Section 16A(2) of the Crimes Act provides a non-exhaustive ‘checklist’ of the matters which the court must take into account if relevant and known to the court in the sentencing of federal offenders. Section 16A(2) makes clear that this checklist is not a catalogue of considerations which is exclusive of other relevant considerations. Each consideration is in addition to any other matters which are relevant on the question of sentence. In determining the appropriate sentence, the court must also have regard to the nature and severity of any conditions that may be imposed on, or may apply to, the offender under that sentence: section 16A(3) of the Crimes Act. I have referred to section 16A(2) matters already, but make further reference below.

  3. Section 17A of the Crimes Act provides that a court shall not pass a sentence of imprisonment in respect of a federal offender, unless the Court having considered all available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case. It was urged upon me by the Crown that no sentence other than a term of full-time custody would be appropriate. I reject that submission, so far as it relates to a full-time custodial sentence, as in my opinion this is an extraordinary case.

  1. I find that this is an atypical and exceptional case. In this matter, I am not satisfied that no sentence other than full-time custody is appropriate in all of the circumstances. Rather, I find that there is another sentence that is appropriate. In coming to that view, I note the s16A matters that follow.

The Nature and Circumstances of the Offence: s16A(2)(a)

  1. In this case, the nature of the offending and the circumstances in which it was committed are set out in the Agreed Facts. They are set out at length above.

  2. As to the offender’s role in the offending, I note paragraphs [79]–[90] above.

Contrition and Guilty Plea: ss16A(2)(f) and (g)

  1. Ms Thomas pleaded guilty on 7 November 2018 at Sydney Central Local Court. The plea was entered at the earliest opportunity. It is submitted, and I accept, that a discount of 25% is appropriate in the circumstances. In addition to the early plea, there is considerable evidence of remorse.

  2. The offender has devoted much time to processing how she came to be involved in the offending, and she has not sought to blame others or to minimise her conduct. It is submitted that her remorse goes well beyond regret at being before the court, and I note the following in support of that proposition. Her mother, in her affidavit, states that the offender now understands the reality of what she did, blames herself and accepts full responsibility for her conduct. She also says that her daughter is truly devastated at the thought of the harm that these drugs could have caused if they had not been intercepted. The offender’s employer states that the offender holds herself to blame, and is aware and ashamed of the destruction the drugs could have caused. Her friend Sinead Bryson says that she has expressed deep regret for her actions for not stopping Norma from committing the offence, and is remorseful after having seen the impact of drugs on inmates during her time in custody and appreciating the effect that the drugs could have had on the community had they reached the streets. Millicent Middis-Engelear notes the offender’s horror at the potential role she played in allowing the drugs to reach the community. The offender’s brother Jake says that his sister is ashamed and appalled at her actions. Other referees report similar things.

  3. I note that the offender gave evidence before me, and I find that she is genuinely contrite and remorseful. I find that she has significant insight into her offending and its effect on her family, herself and the community.

Character, Antecedents, Age, Means and Physical or Mental Condition: s16A(2)(m)

  1. Mr Boulten SC submitted that several subjective features of note are that the offender was 25 at the time of the offence, that she has a supportive and stable family, that she was the dux of her primary school and a school leader at her high school, that she was accepted into a prestigious university degree where she obtained excellent results, that she has been successfully employed in full-time work in digital marketing for almost three years and is so highly regarded by her employer that he has continued her employment in awareness of her offence and will likely soon promote her, that she has a long history of responsible citizenship prior to this offence including volunteering in Thailand and Nepal and building a website for stray dogs, she has no criminogenic features, no drug addiction or dependence on alcohol or gambling which might trigger offending behaviour, that she has disclosed her offence to a large number of loyal friends who have expressed their shock but have remained loyal and supportive, that she is consistently described as calm, quiet and intelligent and that she has received regular and ongoing support from a psychologist to process her involvement in the offence and is described as open, committed, interested and thankful in the treatment process. It is the case that the offender’s psychiatric and psychological evidence suggests that the offence is unexpected and out of character.

  2. Mr Boulten SC submits that the offender was involved in a very intense and significant romantic relationship and was fixated on her partner’s happiness and well-being at the time of the offence. I observe that the evidence discloses that the pair were in an emotionally co-dependent relationship which led to the offending.

  3. I have taken into account all of these matters.

Character, Criminal History, Time in Custody and Bail

  1. The offender has no criminal history and there is considerable evidence that her conduct was significantly out of character. It is suggested by Mr Boulten SC that the offence needs to be seen through the prism of a person who put the welfare of others before herself with tragic repercussions.

  2. The offender spent over three weeks in custody before obtaining bail, which I take into account. She had no experience with gaol previously and was, as expected, deeply affected and frightened by her experience. It is uncontested that the offender has complied with her bail without blemish since 23 March 2018, ie for approximately 16 months. It was submitted that her bail conditions (Exhibit 2) are onerous and close to the conditions of house arrest and include daily reporting to the police, the requirement to stay in New South Wales, and that she is unable to leave the house other than for employment and legal visits unless in the company of her mother or an adult approved by the AFP. Mr McCaw says that her bail conditions are not unusual and should be of little weight in my determination. I accord them little weight, but take them into account in my determination.

Personal Deterrence and Rehabilitation: ss16A(2)(j) and (n)

  1. It was submitted by Mr Boulten SC that the court could have complete confidence that Ms Thomas will not re-offend. She has no history of any offending or misbehaviour, has complied with the bail conditions, and has outstanding prospects of rehabilitation. I note that Dr Westmore considers that the offender has very good insight into her offending behaviour and is genuinely remorseful. I am particularly persuaded by Dr Westmore’s view that her risk of reoffending is ‘low to non-existent’, which dovetails with the opinion expressed in the recent SAR.

  2. The Crown conceded that the offender’s prospects of rehabilitation are excellent.

  3. Taking into account all of the evidence, I am satisfied that the offender will shortly be completely rehabilitated and, subject to the terms of my sentence below, personal deterrence has little role to play in this matter.

  4. In my opinion, the question remains as to how to satisfy section s16A(2)(k) of the Crimes Act, ie the need to ensure that Ms Thomas is adequately punished for the offence.

sentence

  1. The final matter I must consider is what alternative to a full-time custodial sentence I should impose upon the offender.

  2. Mr Boulten SC submits that there is considerable scope for sentence involving punishment to be imposed short of full-time imprisonment, including sentences under the Crimes (Sentencing Procedure) Act 1999 (NSW) made available through s20AB(1) of the Crimes Act, namely, community service orders of up to 500 hours as part of an Intensive Correction Order (ICO) or a Community Correction Order (CCO), the discretion to impose conditions amounting to quasi-custody including placed restrictions, curfew and home detention as part of an ICO, supervision, and requirements to attend counselling or psychological treatment.

  3. I am reminded that an ICO has been held in the State sentencing context to be ‘a substantial punishment to be utilised in an appropriate case’ and in some cases ICOs are considered ‘significantly more onerous than its predecessor of periodic detention’: R v Pogson; R v Lapham; R v Martin (2012) 82 NSWLR 60; [2012] NSWCCA 225 at [108] and Parente v R [2017] NSWCCA 284 at [89]. I note also the extensive comments about ICOs made by Harrison J, with whom Johnson and Schmidt JJ agreed, in R v Pullen [2018] NSWCCA 264, in particular at [64]-[66] and [84]-[89]. In the State context, an ICO is the most serious alternative to a sentence of full-time custody, and is characterised as a custodial sentence which is served in the community.

  4. The High Court has repeatedly emphasised, recently for example in CMB v The Attorney-General for NSW (2015) 89 ALJR 407, that the law reposes a wide discretion in a sentencing judge as to the determination of an appropriate sentence for an offender and the offence.

  5. It was submitted on behalf of the offender that the inevitable imposition of a conviction for a serious drug offence is also a punishment, and is likely to impact the offender more harshly than some offenders because her career prospects are so promising. Whilst her career is currently flourishing, it is submitted that it is reasonable to assume that a conviction will act in the future as an impediment. Possible future detriment to employment is a factor which, it is submitted, in parallel with demonstrated rehabilitation, can justify leniency and sometimes considerable leniency: R v Mauger [2012] NSWCCA 51 at [28] and Parente at [30]-[40].

  6. In this matter, the offender is being sentenced because she assisted her co-offender to attempt to take possession of the drugs in the manner set out in the Agreed Facts. I accept that this particular offender, in the particular, unusual and atypical circumstances of this case, falls within the category of offender where the community is best served by promoting her rehabilitation in the community and is a suitable candidate for leniency: R v Blackman and Walters [2001] NSWCCA 121 at [45], and Gadsden v R [2005] NSWCCA 453. I am satisfied that the various purposes of sentencing – including general deterrence and denunciation – can be fulfilled by imposing an ICO. She will be subject to onerous conditions whilst on the community-based order, which will serve the purpose of deterrence and, having regard to all the material, also fulfil the purpose of denunciation. It will also facilitate the final rehabilitation of the offender and ensure the protection of the community.

  7. I also note that in New South Wales, the passing of the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW) has provided for alternative sentencing options in order to provide justice to the community as a whole. For example, in the second reading speech regarding the legislation, the Attorney-General stated:

We know from Australian and international research that community supervision, combined with programs that target the causes of crime reduce offending. We know that community supervision is better at reducing reoffending than leaving an offender in the community with no supervision, support or programs. We also know that community supervision is better at reducing reoffending than a short prison sentence.

  1. Community safety is the paramount consideration when determining whether to impose an ICO (s66(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW)) when considering a state offence. Having regard to the subjective case of the offender, I am satisfied that the offender’s risk of reoffending, and therefore the safety of the community generally, will be appropriately addressed within the community rather than in gaol (s66(2) of the Crimes (Sentencing Procedure) Act 1999 NSW)). In arriving at these conclusions, I have also considered the provisions of section 16A and section 17A of the Crimes Act.

  2. In my opinion, I am satisfied that an ICO of two years duration, made with conditions including a requirement to continue psychological treatment and perform community service work for 500 hours, adequately addresses the requirement pursuant to section 16A(2)(k) that the offender be adequately punished for her offending.

Parity

  1. The Crown says that the principle of parity applies to federal offenders and requires that there should not be such a disparity between the sentences imposed so as to give rise to a justifiable sense of grievance. In this particular case there is a clear and significant disparity between the criminality of each offender. The co-offender played an important and essential role in planning the importation of the consignment into Australia over an extended period and acted out of greed. She recruited Thomas to assist her with matters incidental to the unpacking of the substance inside the speakers. Though both offenders and knew or believed that the speakers contained an illegal substance, the Crown submits that this is the only feature of each offender’s conduct that is similar. Outside of that knowledge, the level of criminality of the co-offender was significantly greater in the Crown submission, than that of Thomas. The Crown submits that the respective sentences imposed by the court ought to reflect that disparity. Mr Boulten SC submits that the offender’s involvement is at the very bottom of the available range and the need for the sentence to reflect the significant disparity with her co-offender is another reason justifying an exceptional outcome. I agree with and adopt that submission.

  2. The doctrine of parity on sentencing is a norm of equal justice and an essential element of the rule of law: Green v R; Quinn v R (2011) 244 CLR 462 at [28]. The principle of equal justice requires, as far as the law permits, that like be treated alike and that differential treatment be meted out to reflect differences between those that are relevantly different.

  3. Taking into account the relativities and significant differences between the offending of Ms Zuniga Frias and her co-offender Ms Thomas, and in particular the significantly lesser involvement of Ms Thomas and the objective seriousness which is much lower in the present case, I am satisfied that the sentence I will impose is justified in light of the differences in their respective offending, bearing in mind the qualitative and discretionary judgment of a sentencing judge.

  4. In my opinion, the very unusual facts of Ms Thomas’s case justify an unusual result, but a result which nonetheless recognises general deterrence and denunciation.

Orders

  1. You are convicted of the following offence:

  1. Between 27 February 2018 and 1 March 2018, you aided and abetted an attempt to possess a commercial quantity of an unlawfully imported border controlled drug, namely methamphetamine, contrary to section 11.2(1) and 307.5(1) of the Criminal Code.

  1. I sentence you to a term of imprisonment of two years.

  2. Pursuant to s7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), I order that the term of imprisonment be served by way of Intensive Correction Order.

  3. The sentence will commence today, 19 July 2019 and will expire on 18 July 2021.

  4. You must report to the City Community Corrections Office as soon as practicable, but no later than 7 days from today. This means that you must report to the City Community Corrections Office by 26 July 2019.

  5. The standard conditions of the order apply, namely:

  1. You must not commit any offence;

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

  3. You must submit to supervision by a Community Corrections Officer.

  1. The following additional conditions apply:

  1. A rehabilitation or treatment condition requiring you to participate in a rehabilitation program or to receive treatment for twelve months. The treatment program that Ms Thomas is currently receiving with Ms Tangarife complies with this condition; and

  2. I order you to undertake community service work of 500 hours.

  1. If you fail to comply with the conditions of this order, sanctions may be imposed. Those sanctions may include a formal warning, the imposing of more stringent conditions or it may include revocation of this order.

  2. If the order is revoked you may be required to serve all or some of the period of your sentence in full-time custody.

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Decision last updated: 29 July 2019

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