R v Russell

[2022] NSWDC 416

District Court

New South Wales

Medium Neutral Citation:

R v Russell [2022] NSWDC 416

Hearing dates:

29 July 2022

Date of orders:

16 September 2022

Decision date:

16 September 2022

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1 The offender is convicted.

2 The terms of imprisonment that I would have imposed for the State offences, if separate sentences were to be imposed, after taking into account the discount of 25% for the pleas of guilty are:

Count	Offence	Indicative sentence
3	Supply prohibited drug on 31 January 2019	18 months
4	Supply prohibited drug on 18 February 2019, taking into account the offence on the Form 1	2 years
5	Supply prohibited drug on 7 March 2019	3 years
6	Supply prohibited drug on 14 May 2019	2 years and 6 months
7	Supply prohibited drug between 26 February 2019 and 4 June 2019 being an amount not less than the commercial quantity	5 years with a non-parole period of 2 years and 6 months

3 I impose an aggregate term of imprisonment for the State offences of 7 years with a non-parole period of 3 years and 6 months to date from 8 May 2019. The head sentence will expire on 7 May 2026 and the non-parole period will expire on 7 November 2022.

4 The terms of imprisonment that I would have imposed for the Federal offences, if separate sentences were to be imposed, after taking into account the discount of 15% for Counts 1 and 2 and 25% for Count 8 for the pleas of guilty are:

Count	Offence	Indicative sentence
1	Attempt to possess a commercial quantity of a border control drug, between about 3 October 2017 on 13 October 2017, taking into account the proceeds of crime offence on the s 16BA schedule	8 years
2	Import a commercial quantity of border controlled drug, between about 15 November 2017 and 3 August 2018, taking into account the attempt to pervert the course of justice offence on the s 16BA schedule	6 years
8	Conspire with Witness A, Witness B and Witness C to import a commercial quantity of a border control drug, methamphetamine, between 18 April 2017 and 1 November 2017	12 years

5 I impose an aggregate term of imprisonment for the Federal offences of 14 years to date from 8 May 2021 and expire on 7 May 2035. I fix a single non-parole period of 7 years which will expire on 7 May 2028.

6 The total effective term of imprisonment I have imposed for all of the offences is 16 years with a non-parole period of 9 years.

7 The offender will be eligible to be released on parole on 7 May 2028.

Catchwords:

CRIME — Drug offences — Commonwealth offences

— Import/Export border-controlled prohibited plant or drug — Possess prohibited drug — Supply prohibited drug

CRIME - Money Laundering - Dealing with money suspected of being proceeds of crime

CRIME - Public justice offences - Do an act with intent to pervert the course of justice

Legislation Cited:

Crimes Act 1914 (Cth)

Crimes (Sentencing Procedure) Act 1999

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 546

Bugmy v The Queen (1990) 169 CLR 525

Cameron v The Queen (2002) 209 CLR 339

Danial v R [2008] NSWCCA 15

Deakin v The Queen (1984) 58 ALJR 367

Hili v The Queen (2010) 242 CLR 520

Johnson v The Queen (2004) 78 ALJR 616

Power v The Queen (1974) 131 CLR 623

R v El Karhani (1990) 21 NSWLR 370

R v Lamella [2014] NSWCCA 122

R v Nguyen (2010) 205 A Crim R 106

R v Olbrich (1999) 199 CLR 270

Xiao v R (2018) 96 NSWLR 1

Category:

Sentence

Parties:

Regina
Levi Russell (Offender)

Representation:

Counsel:
D Staehli SC with B Anniwell (Commonwealth Director of Public Prosecutions)
L Johnston (Commissioner of Police)
D Dalton SC with D McCallum (Offender)

Solicitors:
Commonwealth Director of Public Prosecutions
Crown Solicitor for NSW (Commissioner of Police)
Sage Solicitors (Offender)

File Number(s):

2018/239104
2019/174951

Publication restriction:

None

Judgment

1. Levi Russell (the offender) appears for sentence after pleading guilty to the following offences:

Count	Offence	Maximum Penalty and SNPP
1	Between about 3 October 2017 on 13 October 2017, he did attempt to possess a commercial quantity of a border control drug, methamphetamine, contrary to s 11.1(1) and 307.5(1) Criminal Code1995 (Cth)	Life imprisonment and/ or fine of 7,500 penalty units
2	Between about 15 November 2017 and 3 August 2018, he did import a commercial quantity of border controlled drug, methamphetamine contrary to s 307.1(1) Criminal Code1995 (Cth)	Life imprisonment and/ or fine of 7,500 penalty units
3	On 31 January 2019, he did supply a prohibited drug, cocaine, contrary to s 25(1) Drug Misuse and Trafficking Act 1985 (NSW)	15 years imprisonment and/or fine of 1,500 penalty units
4	On 18 February 2019, he did supply a prohibited drug, cocaine, contrary to s 25(1) Drug Misuse and Trafficking Act 1985 (NSW)	15 years imprisonment and/or fine of 1,500 penalty units
5	On 7 March 2019, he did supply a prohibited drug, cocaine, contrary to s 25(1) Drug Misuse and Trafficking Act 1985 (NSW)	15 years imprisonment and/or fine of 1,500 penalty units
6	On 14 May 2019, he did supply a prohibited drug, cocaine, contrary to s 25(1) Drug Misuse and Trafficking Act 1985 (NSW)	15 years imprisonment and/or fine of 1,500 penalty units
7	Between 26 February 2019 and 4 June 2019, he did knowingly take part in supplying a prohibited drug, cocaine, being an amount not less than the commercial quantity, contrary to s 25(2) Drug Misuse and Trafficking Act 1985 (NSW)	20 years imprisonment and/or fine of 3,500 penalty units SNPP- 10 years
8	Between 18 April 2017 and 1 November 2017, he did conspire with Witness A, Witness B and Witness C to import a commercial quantity of a border control drug, methamphetamine, contrary to s 11.5(1) and 307.5(1) Criminal Code1995 (Cth)	Life imprisonment and/ or fine of 7,500 penalty units

2. The offender also asks the Court to take into account the following offences on a s 16BA schedule:

1. deal with money that he believed to be the proceeds of crime with a value of more than $100,000, contrary to s 400.4(1) Criminal Code1995 (Cth), when passing sentence for Count 1; and

2. attempt to pervert the course of justice, contrary to s 43 Crimes Act 1914 (Cth), when passing sentence for Count 2.

3. The offender also asks the Court to take into account an offence of supply a prohibited drug, cocaine, in an amount not less than the commercial quantity contrary to s 25(2) Drug Misuse and Trafficking Act 1985 (NSW), on a Form 1 when passing sentence for Count 4.

Approach to Sentencing

4. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

Federal offences

5. I must have regard to Part IB Crimes Act 1914 (Cth) (the Act) in passing sentence and in particular the matters provided for in section 16A of that Act.

6. A court determining a sentence in respect of any person for a Federal offence must impose a sentence that is of a severity appropriate in all the circumstances: section 16A(1) of the Act. The Court must take into account the matters listed in section 16A(2) that are relevant and known to the Court: R v El Karhani (1990) 21 NSWLR 370. The list of factors in section 16A(2) of the Act is not exhaustive and common law principles apply to the sentencing of federal offenders: Johnson v The Queen (2004) 78 ALJR 616 at [15].

7. The offender has entered pleas of guilty to the Commonwealth offences. The pleas to Counts 1 and 2 were entered after they had been listed for trial in the District Court. The plea to Count 8 was entered in the Local Court. The offender’s pleas of guilty have saved the need for witnesses to be called at trial and there is significant utilitarian value in the pleas of guilty. The appropriate discount for Counts 1 and 2 is 15% and for Count 8 is 25%.

8. I have had regard to the principles relevant to sentencing serious Federal drug offenders set out in R v Nguyen (2010) 205 A Crim R 106 at [72] (Johnson J).

9. For a Federal offence the non-parole period is the minimum period that justice requires the offender to serve in custody, fixed by reference to s 16A(1), the relevant matters in s 16A(2) and by application of the principles set out by the High Court in Power v The Queen (1974) 131 CLR 623, Deakin v The Queen (1984) 58 ALJR 367 and Bugmy v The Queen (1990) 169 CLR 525: see Hili v The Queen (2010) 242 CLR 520 at [40]-[44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

State offence

10. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of that Act.

11. The offender entered a plea of guilty in the Local Court to the State offences and is entitled to a 25% discount on sentence for Counts 3-7: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

Facts

12. The parties presented an Agreed Statement of Facts which is very lengthy.

13. The offender took issue with some of the facts in two categories. First, the facts printed in blue in the document were not accepted by the offender, but not disputed by him so as to facilitate the course of justice. He accepted that those facts were proven beyond reasonable doubt and should be taken into account on sentence. Second, the facts printed in red on the document were disputed on the basis that they were not relevant and/or admissible in the sentencing exercise and should be excluded but, if admitted, were not disputed so as to facilitate the course of justice. If admitted, he accepted those facts were proven beyond reasonable doubt and should be taken into account on sentence.

14. I have taken the entirety of the Agreed Statement of Facts into account in coming to an appropriate sentence. What follows is a summary of the facts necessary to understand the reasons for the sentence I will impose.

15. In about 2017, New South Wales Police commenced an investigation into a large scale organised drug importation and supply syndicate operating on the Central Coast. The investigation identified a number of people involved in the syndicate including the offender, Witness A and Witness B who were associates of the offender and another person, Witness C. Witnesses A, B and C have not been charged because they were granted undertakings from the Commonwealth Director of Prosecutions in exchange for giving evidence against the offender.

16. The offender was the director, secretary and shareholder of Russtrans Pty Ltd (Russtrans) that operated an earthmoving business from premises at Tuggerah.

Count 1 – Attempt to possess a commercial quantity of border controlled drug

17. On 28 September 2017 an unknown person using the name “Robert Hayes” sent an email to the offender confirming his order for a Ferjovi brand heavy duty hydraulic cylinder (the hydraulic cylinder). The order was addressed to the offender and contained his details.

18. On 30 September 2017 “Robert Hayes” sent an email to the offender advising that the hydraulic cylinder was due to be shipped from the USA that day, enclosing a counterfeit version of a Ferjovi catalogue to give the importation an appearance of legitimacy.

19. On the same day, the offender sent an email to Trent Powell, the owner of a freight forwarding company St George Freight Pty Ltd, with the details of the shipment for the hydraulic cylinder. The offender’s email attached the shipment invoice, the cargo certification statement and the Air Waybill statement.

20. On 3 October 2017 the offender emailed Mr Powell the commercial invoice and packing list for the hydraulic cylinder which confirmed that Russtrans had paid for the hydraulic cylinder and the shipping.

21. On or about 5 October 2017 the offender directed the Operations Manager of Russtrans to pay the customs duties and freight costs of $6,118.39 associated with the hydraulic cylinder. On 5 October 2017 those costs were paid using a credit card in the name of Russtrans.

22. On 6 October 2017 the Australian Border Force (ABF) detained the consignment containing the hydraulic cylinder which was addressed to Russtrans at the address of the offender’s father’s business. It was common practice for employees of Russtrans to advise Mr Powell, on the instructions of the offender, that all items imported by Russtrans were to be delivered to the Tuggerah address, irrespective of the consignee address.

23. On 7 October 2017 the hydraulic cylinder was deconstructed by ABF officers locating 69.95 kg of methamphetamine at a purity of 80.1%, giving a pure weight of 56.09 kg.

24. The deconstruction process was complex and took more than eight hours to complete. The hydraulic cylinder was typically used in the construction of bridges and heavy lifting operations and was not an item used by Russtrans. Enquiries with Ferjovi in Spain revealed that the hydraulic cylinder was counterfeit and was not manufactured by Ferjovi. At around the time of the importation the offender used the Operations Manager’s computer to search for Ferjovi hydraulic cylinders.

25. On 9 October 2017 the methamphetamine was substituted with an inert substance and a listening device was placed inside the hydraulic cylinder.

26. On 11 October 2017 the hydraulic was delivered to Russtrans. The offender accepted delivery of the hydraulic cylinder and gave directions as to where it should be unloaded. Later that day the offender discussed with an unknown male how to open the hydraulic cylinder.

27. On 12 October 2017 the offender and Witness A had a discussion in the vicinity of the hydraulic cylinder, which was partially recorded. I cannot be satisfied beyond reasonable doubt of the content of that conversation in order to take it into account adverse to the offender’s interest.

28. On 13 October 2017 the offender travelled to Singapore.

29. On 14 October 2017 the hydraulic cylinder was taken by an unknown male from Russtrans to another location.

30. Witness B, an accomplice, told the Police that the offender told him on a date after 3 August 2018, that there were drugs in the hydraulic cylinder and that he travelled overseas so that he could deny knowledge of that.

31. On 8 November 2018, when discussing the brief of evidence against him, the offender admitted that he had organised the importation of the hydraulic cylinder through ordering it, paying the taxes on the consignment, speaking to the freight forwarding company and taking delivery of it.

s 16BA schedule offence attaching to Count 1 – deal with money believed to be the proceeds of crime with a value of greater than $100,000

32. On 3 August 2018 police executed a search warrant at the premises of Russtrans. The sum of $365,655 in cash packaged in vacuum sealed bags was located in a safe in a shed used by the offender. The offender provided the access code to the safe and accepted that he was the only person with access to it. On 5 November 2018 the offender told the police that the cash had been received by Russtrans for earthmoving work.

Count 2 – Import a commercial quantity of border controlled drug

33. On 17 November 2017 “Robert Hayes” sent an email to the offender confirming his order for two cylindrical bearings for a price of $11,559.78 with the enclosed invoice, addressed to the offender, recorded as paid. The offender forwarded the email to Mr Powell.

34. On 20 November 2017 the consignment of the bearings was sent from Los Angeles on flight UA839 to Sydney.

35. Between 21 and 23 November 2017, the offender exchanged emails with “Robert Hayes” as to the location of the consignment, its shipping from the USA and the payment of customs duties. The offender wrote to “Robert Hayes” that Russtrans would be ordering more of the bearings over time.

36. On 23 November 2017 the customs duties and freight costs for the consignment in the sum of $3,647.31 were paid.

37. On 23 November 2017 the consignment containing two large “NSK” branded ball bearings was detained by the ABF. The consignment was addressed to Russtrans at the address of the offender’s father’s business. An examination revealed that each bearing contained 12 cylindrical hardened steel rollers that each had a cavity that had been filled with compressed methamphetamine and sealed with a lead cap that sat beneath the steel.

38. The 24 rollers contained 15.18 kg of methamphetamine with a purity of 80.3%, giving a pure weight of 12.19 kg.

39. Russtrans had no commercial use for the ball bearings. Expert evidence concluded that the bearings were counterfeit and were not operational.

40. On 23 November 2017 the offender telephoned Mr Powell about the consignment and asked questions about how the consignment would be processed through customs and whether the bearings would be flagged for clearance. On 24 November 2017 the offender telephoned Mr Powell about delivery of the bearings. Mr Powell told the offender that the consignment was due to be delivered around midday the next day.

41. On 29 November 2017 the offender telephoned Mr Powell to discuss the delivery of the bearings. The offender was confused and angry that the bearings seemed to be lost in transit.

42. On 30 November 2017 the offender sent “Robert Hayes” an email stating that the consignment may not have been on the flight to Sydney and asked him to check with his agent whether the consignment was still in Los Angeles. Later that day Mr Powell called the offender to advise him that he still had not been able to determine the current location of the bearings. The offender told Mr Powell he had made enquiries with “Robert Hayes”.

43. On 5 December 2007 the offender and “Robert Hayes” exchanged email correspondence to the effect that the consignment could not be located and expressing anger that the bearings had gone missing.

44. On 6 February 2018 the offender asked Mr Powell if he had been able to locate the consignment. Mr Powell told the offender that it appeared the airline had lost the bearings. When asked by Mr Powell if he intended to import more of the bearings, the offender said that he did but that he wanted to see if this importation was successful.

45. On 18 July 2018 Mr Powell informed the offender that the bearings had been located in Western Australia and would be delivered in the next few weeks. On 31 July 2018 Mr Powell informed the offender that the bearings had arrived in Sydney and asked where he wanted them delivered to. The offender told Mr Powell to have them delivered to Russtrans’ premises.

46. On 1 August 2018 the consignment was delivered to Russtrans and was received by the offender. He expressed his anger to the delivery driver about the delay in delivery of the bearings. At about 2.50pm, the offender dismantled one of the crates containing a bearing. In a conversation, he claimed it was the “wrong bearing”.

47. On 3 August 2018 when the search warrant was executed, the bearings were located under a large dome at the back of the Russtrans premises.

48. The offender had other relevant discussions with Witness A about arranging dummy runs for the ball bearing consignment. On 11 October 2017 the offender told Witness A that he had arranged for the importation of bearings from Hong Kong, but he needed them to originate from Germany. On 26 April 2018, the ABF intercepted a consignment of an “SKF” branded ball bearing originating from Hong Kong, consigned to the Russtrans premises and addressed to the Witness B and noting the offender’s mobile telephone number. The consignment contained a certificate of origin stating that the goods originated in Germany. The consignment was examined and did not contain drugs.

49. On 21 December 2018 the offender discussed Count 2 with Witness A. He told Witness A that he deliberately referred to the bearings as the wrong bearings and by the wrong part numbers. He admitted to Witness A that the consignment contained drugs.

s 16BA schedule offence attaching to Count 2 – attempt to pervert the course of justice

50. In December 2018 while on bail for the offences in Counts 1 and 2, the offender instructed Witness B to obtain a trommel bucket design that incorporated two large ball bearings similar to the SKF ball bearings referred to in Count 2. The purpose of the design was to fabricate a defence to Count 2 by creating a legitimate purpose for the importation of the ball bearings.

51. On 29 December 2018 the offender instructed Witness B to find someone to do some 3D drawings for the trommel bucket to create a paper trail to prove a purpose for ordering the ball bearings. In or about the end of January 2019 a graphic designer attended the Russtrans premises and Witness B briefed him on the task. The designer said he would meet with the offender to see what he could do. On 2 February 2019 the offender told Witness B that he had spoken to the designer about the design of the trommel bucket and instructed Witness B to liaise with the designer and explain to him the details in terms that he would understand. On 7 February 2019 Witness B received an email from the designer attaching a computer-assisted drawing of the trommel bucket. Witness B observed that the design did not depict the bearings or specify their part name. Witness B instructed the designer to amend the design. On 8 February 2019 after Witness B showed the offender the amended drawings, the offender said that he wanted more detail in the drawings. The offender declined Witness B’s suggestion to meet with the designer, because he was concerned that the police could be following him.

52. Between 18 February 2019 and 25 February 2019, the offender provided instructions to Witness B via Ciphr messages, to include full details of the bearings including the part numbers, to backdate the date for delivery to September 2017 or to display no date at all and to be detailed for a “PC 450”. On 25 February 2019 the offender sent a message to Witness B stating that the part number needed to be specified “so if a judge looks at it he can see it detailed [in the] drawing”. Witness B conveyed these instructions to the designer. On 28 February 2019 the designer emailed a further revised design to Witness B.

Count 3 – Supply prohibited drug

53. At all material times, for Counts 3-7 Witness A operated under the authority of a Controlled Operation and participated in 14 recorded conversations with the offender between 5 November 2018 and 14 May 2019, authorised by a surveillance device warrant or the controlled operation authority.

54. On 29 January 2019 the offender told Witness A that he had access to cocaine and could supply it to Witness A. He told Witness A he could supply an ounce for $7,500 and that if he wanted it that he would leave it in the jet ski in his carport.

55. At 8.28am on 31 January 2019, the offender told Witness A that he had received the cocaine if he wanted it. Witness A stated that he did not have the money with him and asked if he could pay the offender the following week. The offender told Witness A that the cocaine was under a black cloth on a brown chair on the patio, if he wanted it. Witness A retrieved a freezer bag containing white powder that was later analysed to be 26.6 g of cocaine with the purity of 70%.

56. On 6 February 2019 Witness A told the offender that he would take more cocaine if he could get it, to which the offender replied, “sweet”.

57. On 7 February 2019 Witness A gave the offender $8,500, being $7,500 for the cocaine and $1,000 to repay a loan.

Count 4 – Supply prohibited drug

58. On 13 and 14 February 2019 the offender and Witness A exchanged messages on Ciphr relating to a further supply of one ounce of cocaine.

59. On the afternoon of 18 February 2019 at the offender’s home, the offender directed Witness A to the brown chair on the patio. Witness A retrieved a freezer bag containing white powder that was later analysed to be 19.9 g of cocaine the purity of 71.5%.

60. On 26 February 2019 Witness A gave the offender $6,000 in cash for the supply of cocaine on 18 February 2019. At this time, they had a conversation about the high quality of the cocaine.

Form 1 offence attaching to Count 4

61. On 26 February 2019 at a café in Terrigal, the offender told Witness A that he had recently brokered a deal between two parties for the supply of the commercial quantity of cocaine for the price of $550,000. The offender told Witness A that the buyer had “ripped” the supplier by using counterfeit cash as payment for the cocaine. The offender told Witness A that he was attempting to keep the peace between the parties.

62. There was no other evidence to indicate that the transaction ever took place.

Count 5 – Supply prohibited drug

63. On 27 February 2019 Witness A asked the offender on Ciphr if he could arrange 5 ounces of cocaine for $8,000. The offender responded that he could.

64. On 5 March 2019 at the offender’s house, the offender and Witness A discussed the supply of 5 ounces of cocaine to Witness A, that he would on supply to another on 7 March 2019 at a profit, to be applied to the debts owed by Witness A to the offender. On 6 March 2019 Witness A sent a message to the offender on Ciphr asking if he could pick up the cocaine and pay for it later. The offender agreed, telling Witness A where the cocaine would be.

65. At 9:52 am on 7 March 2019 Witness A retrieved a freezer bag containing white powder that was later analysed to be 133.4 g of cocaine with a purity of 76%.

66. At 11:30 am on 7 March 2019 Witness A attended the offender’s house with $40,000 cash in a silver carry bag. At this time, they discussed the profit they made from the transaction.

Count 6 – Supply prohibited drug

67. On 1 May 2019 the offender and Witness A exchanged messages on Ciphr in which the offender confirmed that he could continue supplying cocaine to Witness A for on supply to others. In this exchange the offender offered a discounted price for the cocaine based on an increased quantity of half a kilogram.

68. On 10 May 2019 the offender instructed Witness A to tell his mate to buy half a kilogram for $135,000 on which they would make $7,500 each.

69. On 11 May 2019 Witness A told the offender that his friend wanted to purchase 2 ounces of cocaine at $8,500 per ounce. The offender agreed to supply the cocaine.

70. On 13 May 2019 the offender told Witness A that the drugs would be ready to collect the next day from the brown chair on the patio.

71. At about 9 am on 14 May 2019 Witness A attended the offender’s house and retrieved the freezer bag containing white powder that was later analysed to be 52.2 g of cocaine with the purity of 72%. At about 1:50 pm Witness A returned to the offender’s house and placed $16,000 in cash on the table on the patio. Witness A told the offender that the buyer only paid $8,000 per ounce because that is what they had agreed to for the earlier supply of 5 ounces. They discussed the availability of similar quality cocaine.

Count 7 – knowingly participate in the supply of a commercial quantity of prohibited drug

72. On 26 February 2019 Witness A asked the offender how much it would be for his friend to purchase a kilogram of cocaine if he paid cash up front. The offender told Witness A that it would cost $215,000, but that Witness A should quote him $240,000 out of which the offender would receive $20,000 and Witness A would receive $5,000.

73. On 14 May 2019 the offender told Witness A:

1. that the price for a kilogram of cocaine was around $200,000 and half a kilogram would cost $120,000;

2. he had enough cash to buy 1 kilogram and that they would make $7,500 each if they could get it for $200,000; and

3. if Witness A’s friend bought a full kilogram that he could probably find “a bloke” to take half of it.

74. On 24 May 2019 the offender and Witness A exchanged messages on Ciphr. Witness A said that his friend wanted to purchase a kilogram of cocaine. The offender told Witness A to tell him that he could get a half a kilogram and that the offender would try to move the other half. The offender expressed reluctance to have that quantity in the vicinity of his house. The offender told Witness A that he would arrange the supply when the buyer had the money and sent him 2 pictures of blocks of cocaine.

75. On 25 May 2019 Witness A told the offender that his friend was keen for a full kilogram. The offender agreed to supply half a kilogram, advising Witness A to be careful.

76. On 30 May 2019 Witness A told the offender that his friend would have $120,000 in a few days and was still keen to purchase one kilogram. The offender was reluctant because of the arrangements he had made with the supplier but told Witness A that he would see what he could do.

77. On 2 and 3 June 2019 the offender and Witness A exchanged messages on Ciphr about when the offender would have the drugs to sell.

78. On 4 June 2019 the offender and Witness A exchanged messages on Ciphr. The offender told Witness A that:

1. his supplier could meet Witness A at the Tuggerah exit of the freeway at 9.30am;

2. his supplier would give Witness A one kilogram of cocaine, which Witness A would have to break in half using a knife and a tray;

3. Witness A would need big scales and a vacuum sealer which he could collect from the offender’s house;

4. if Witness A did not want to use the vacuum sealer, he could triple bag it in freezer bags and then put it “something bigger”;

5. Witness A needed to make sure that the buyer had the $120,000.

79. Witness A sent the offender two photographs of a shopping bag containing bundles of $50 notes. The offender told Witness A to hide the cash behind his seat and to look out for a black Toyota RAV 4 with an ETA of 12:45 pm.

80. At 12:43 pm Witness A observed a black Toyota RAV 4 drive into the car park at the Tuggerah M1 interchange and park next to his vehicle. Witness A got out of his vehicle and entered the front passenger seat of the Toyota. The driver of the Toyota, Richard Lightfoot, laid the rear seat of the vehicle forward and opened a compartment under the floor behind the rear seat. Mr Lightfoot reached into the compartment and pulled out a white plastic bag with a black package inside it. Witness A told Mr Lightfoot that he would get the cash out of his vehicle. As Witness A exited the vehicle, police officers ran over and arrested Mr Lightfoot.

81. Police seized the white plastic bag containing the black package from the Toyota. It was later analysed to contain 998.9 g of cocaine with the purity of 63.5%.

Count 8 – Conspiracy to import a commercial quantity of border controlled drug

82. In 2017 an agreement was formed between the offender, Witness A, Witness B and Witness C and diverse others including an associate of the offender based in Singapore to import commercial quantities of methamphetamine from Malaysia to Australia.

83. Between 18 April 2017 and 1 November 2017 approximately 203.81 kg of methamphetamine, with an average purity of 80.3% giving a pure weight of 163.66 kg, was imported within 93 consignments of compressor heads, including 11 dummy runs.

84. The compressor heads were delivered to three different addresses in New South Wales that were controlled or occupied by the offender or his associates (Witnesses A, B and C).

85. The conspiracy involved the secretion of methamphetamine in compressor heads, which are heavy machinery parts that usually house the piston assembly in a combustion engine. At the beginning, consignments containing one compressor head filled with rice were sent to three addresses as dummy runs in order to ensure the illegal importation stream was not compromised. The offender spoke extensively about the benefits of utilising the dummy runs to avoid detection by the authorities. Once the conspirators were satisfied with the dummy run, consignments containing two compressor heads were sent, each containing bags of approximately 2.487 kg of methamphetamine, concealed within the aluminium casing of the compressor head.

86. Apart from the addresses used, the consignee details for the consignments were fabricated. An encrypted email address which the offender had access to was used for some of the consignments. There were a number of similarities used in the consignment details used for the consignments sent to each address.

Witness A’s involvement

87. Witness A received 58 consignments of compressor heads, including three dummy runs, at his business address in Tuggerah pursuant to the conspiracy.

88. On an unspecified date, the offender asked Witness A if he would like to make some extra money. The offender asked him to accept delivery of cardboard boxes containing machine parts at his business premises, which someone else would collect later and that the boxes would come a few times per week.

89. From about May 2017, Witness A received and signed for consignments to fictitious companies. Witness A opened the cap of the first compressor head received and saw that it contained rice. He later understood that this was a dummy run. Witness A only opened the first package. He delivered each subsequent consignment to the Russtrans premises and put them into a large container at the rear of the yard.

90. The offender told Witness A that the first few packages were dummy runs and that after that “his people overseas” were going to load compressor heads with drugs. The offender did not say what the drugs were.

91. In the following months, the consignments arrived more frequently and the offender would message Witness A, via a Blackberry device the offender gave to him, when the consignments were due to arrive.

92. On 28 July 2017 Witness A sent a coded message via WhatsApp to the offender stating that two compressor heads had been delivered. The offender was angry that Witness A had not used the encrypted application, Biocode, to send the message.

93. The offender told Witness A that he would pay $5,000 per compressor head that he received. Witness A received approximately $530,000 in cash from the offender for receiving the compressor heads.

Witness B’s involvement

94. Witness B was employed by Russtrans. He received 27 consignments of compressor heads, including seven dummy runs, when they were delivered to the Russtrans premises.

95. In around March 2017 the offender approached Witness B and offered him $500 per compressor head to extract the drugs from them. The offender told Witness B to receive the consignments and put them in a large container in the yard, mark them “return to sender”, leave them for a few days to make sure they were not being tracked, to open boxes and crack open the compressor heads, remove the silver bags containing the drugs and place them in a black weatherproof drum at the rear of the yard (the Hole). Witness B agreed to do so. He was unaware of the type of drug in the compressor heads. He assumed it was cocaine.

96. When the first consignment arrived about two weeks later, Witness B followed the offender’s instructions. After a few days, the offender and Witness B went to the large container in the yard to access the compressor heads. The offender told Witness B what to look for in case the police or the ABF had accessed the consignment and that a dummy run would contain only one compressor head.

97. About two weeks later, more compressor heads started arriving. The first time Witness B accessed compressor heads on his own, there were six compressor heads. Witness B put the silver bags from the compressor heads into a green shopping bag and put them into the Hole, to be picked up by unknown persons.

98. On one occasion, Witness B picked up a box and thought that one of the compressor heads was moving around inside it. He messaged the offender on his Blackberry advising him that something was “not right”. The next day the offender attended the yard and told Witness B that it was alright but the package had not been packed correctly. Witness B extracted a silver bag from the compressor head that was weighed by the offender, recording a weight of 1.25 kg.

99. Witness B estimated that he opened at least 200 compressor heads, removed silver bags and put them in the Hole. The bags had a similar appearance, they were silver, sealed and had the same dimensions and were of similar weight.

100. The compressor heads were delivered to the Russtrans premises by courier or Witness A.

101. After Witness B opened compressor heads, he would message the offender on his Blackberry to tell him how many he had accessed. The offender would then tell Witness B where to collect his cash payment. Witness B estimated that he was paid between $30,000 and $40,000 and claimed that he was owed a further $36,000 for this work.

102. Witness B also had responsibility for disposing of the compressor heads after they had been opened. He did this alone and in the company of the offender and Witness A in a number of locations.

103. Witness B could not identify the “many people” who delivered consignments to the Russtrans premises.

Witness C’s involvement

104. Witness C was paid $30,000 for receiving seven consignments of compressor heads, including one dummy run, at his business address in Tweed Heads. He is the cousin of Witness A and was recruited by him at the offender’s request. Witness A told Witness C to receive and sign for the consignments and someone would come and pick them up. He told Witness C, “you do not want to know” what was in the packages when he asked.

105. The offender gave Witness A an encrypted Blackberry mobile telephone to give to Witness C for the purpose of communicating with him. The offender told Witness A that he and Witness C would receive $5,000 for each consignment received.

106. In about October 2017, prior to the first consignment arriving at Witness C’s address, there was a meeting between the offender, Witness A, Witness C and a friend of the offender at the Tweed Heads premises. It was agreed that Witness C would use the name “Gary” to sign for packages and that the offender’s friend would collect the packages from outside the premises.

107. Arrangements were put in place to send a series of coded messages when consignments were expected and then delivered.

108. The first dummy consignment was received by Witness C on 3 October 2017.

109. Consignments 2 and 3 arrived together. Witness C did not see the person who collected them. Consignments 4-7 were stored in the factory after they were delivered before Witness A arranged for them to be collected by an unidentified male.

110. Witness A paid Witness C the sum of $30,000 for the receipt of six consignments containing drugs. Witness A was reimbursed by the offender for these payments.

Interception of consignments by the ABF

111. Two consignments sent to Witness A’s premises and one consignment sent to Witness C’s premises were intercepted by the ABF prior to delivery and found to contain methamphetamine. The compressor heads were essentially identical in design, appearance, colour and size. The methamphetamine was concealed in an identical fashion, with identical packaging and almost an identical weight.

112. No consignments of compressor heads addressed to the Russtrans premises were intercepted by the ABF prior to delivery. The precise quantity of methamphetamine delivered to the Russtrans premises is unknown but was estimated to be 49.74 kg with the purity of 80.3%.

113. The last consignment was delivered to Witness A on 27 October 2017. At around this time a number of consignments had gone missing, and the offender told Witness A that he assumed they had been seized by Customs and that he would have to find other addresses before he could “start it back up again”.

Discussions between the conspirators

114. On 18 October 2017, before the offender was arrested and before either Witness A or B provided an induced statement to the Police, Witness A and Witness B had a conversation about the compressor head conspiracy in which they were angry that they were the most likely individuals to be caught by the police and complaining about the various instructions and directions that the offender was giving them in relation to the drug importations.

114. On 8 November 2018 the offender and Witness A had a conversation in which the offender stated that he knew that the consignments sent to Witness A and Witness C were all originating from one consignor for each. The offender confirmed that Witness C did not know that there was methamphetamine in the consignments. The offender stated that he had extracted drugs from a “heap” of compressor heads delivered to the Russtrans premises and that the drugs had been disseminated.

115. On 21 December 2018 the offender and Witness A had a conversation in which the offender said he was angry at the overseas supplier using the same consignor details on the consignments sent to the Russtrans premises and to Witness C. The offender stated he told the supplier to change consignor details to make it difficult for the authorities to link them. The offender stated that Witness C did not know that the consignments contained methamphetamine. The offender stated that the empty compressor heads were scattered everywhere and it would be hard to prove that they came from the Russtrans premises. The offender acknowledged the possibility that the police were trying to get him to “roll on his network” but they had not approached him to do so.

116. On 4 January 2019 the offender told Witness A that Witness C had “done a good thing” by telling the police that he did not know who the offender was and had never received any consignments of compressor heads. The offender instructed Witness A to go and see Witness C to ensure that he would not incriminate the offender.

117. The offender frequently liaised with an associate in Singapore who was the international facilitator of the compressor head importations. During the offending period, the offender travelled to Singapore on about six occasions. Witness A met with the offender’s associate in Singapore on two occasions in Singapore. The offender was present on both occasions. The offender had photographs of his associate in Singapore and his family on his personal mobile telephone. The offender communicated with his associate in Singapore via encrypted WhatsApp messaging in a WhatsApp group entitled “Despacito”. The relationship between the offender and his associate in Singapore broke down after his arrest on 3 August 2018. The offender believed that his associate in Singapore was assisting the Police.

The Offender’s Case on Sentence

119. The offender tendered the following documents:

1. Dr Susan Pulman, neuropsychologist, dated 25 June 2022;

2. Nuclear Medicine Report of Dr Haindl dated 25 November 2021;

3. Medical records from Dr Marc Coughlan, neurosurgeon;

4. Medical records from Berkeley Vale Private Hospital;

5. Medical records from Dr Ed Bateman, orthopaedic surgeon;

6. Medical records from PRP Diagnostic Imaging;

7. Medical records from Wamberal Surgery (offender’s general practitioner);

8. Medical records from Gosford Hospital;

9. Medical records from The Hills Private Hospital; and

10. An email from Detective Senior Constable Dean Latham dated 2 September 2019.

120. Asha Russell, the offender’s sister, and Dr Pulman were called to give oral evidence and cross-examined.

121. I found Asha to be a good witness. Her evidence was consistent with the contemporaneous evidence and I accept it. Dr Pulman is an eminent and well qualified expert. I found her report was well reasoned and considered. Her evidence was helpful and consistent with her duty to the Court as an expert. I accept Dr Pulman’s evidence.

122. The following is a précis of the evidence relied on by the offender, with the exception that I will deal with Dr Pulman’s evidence separately.

123. The offender is presently 46 years of age. He has an older brother (now aged 48) and younger sister (now aged 43).

124. The offender grew up in Wallacia. His parents’ relationship was toxic. His father was abusive and controlling to his mother as well as the children. There was frequent violence in the home and it was sometimes perpetrated in front of the children. His father went to the club and drank to excess most afternoons. When the offender was about 10 years of age he intervened in an altercation between his parents to protect his mother. His father picked him up and threw him across the lounge room and into a wall. On another occasion, his father deliberately crashed the family car with the family in it, because he was angry. The offender grew up frightened of his father.

125. When the offender was about 13 or 14 his parents separated. There were Family Court proceedings over the next three or four years. The children were required to attend Court on some occasions and were interviewed about who they wanted to live with. The children made a pact to stay together and they decided to live with their father.

126. The offender’s father tried to manipulate the children in relation to the Family Court proceedings, telling them that their mother had abandoned them, giving them money and buying them lavish gifts to curry favour. It took many years for the children to re-establish the relationship with their mother.

127. The offender was an average student, but excelled at sport, in particular rugby league. When he left school he obtained an apprenticeship as a carpenter. In about 1994 he was recruited by the Penrith Panthers Rugby League Club. He left the carpentry job and went to work in his father’s earthmoving business so he could focus on rugby league.

128. The offender played professionally for the Penrith Panthers between 1994 and 1998 in reserve grade and first grade. The family regularly attended matches to watch him play.

129. The offender commenced a relationship with Kelly at age 21. They have two daughters aged 24 and 21. Their first daughter was born in 1998 while the offender was still playing rugby league.

130. During the course of his rugby league career, the offender suffered a number of concussions. In 1997 he suffered a broken jaw in a game in Auckland and was unconscious for some time. He had surgery at The Hills Private Hospital to repair the fracture. Later in the same year he had surgery at The Hills Private Hospital to excise a fused disc in his cervical spine at C5/6.

131. He suffered headaches following his rugby league head injuries and would regularly binge drink after games.

132. In 1998, he was forced to retire from rugby league at age 23, after suffering a serious neck injury that required surgery and use of a neck brace for an extended time. He was in significant pain for about six months and became quite depressed.

133. From about 1999 the offender started using drugs, including ecstasy, amphetamines, steroids, ketamine and GHB.

134. The offender then purchased a delivery run and a truck and made deliveries for Boral. He did this work for some time before he separated from Kelly and sold the business.

135. In about 2005, he reconciled with Kelly and they moved to the Central Coast, where he bought a truck and an excavator and operated his own earthmoving business. At about the same time, his sister, Asha moved to the Central Coast and they spent a lot of time together. About two years later, the offender and Kelly separated again.

136. In about 2007 the offender started using cocaine and cannabis on a regular basis to manage pain from his pre-existing injuries.

137. After a year or so, the offender met Casey and they had a relationship for two to three years. In this period, Asha and Casey became close friends.

138. On 10 February 2008 the offender was assaulted leaving the Crowne Plaza at Terrigal after a night out. He was king hit from behind, fell down the stairs and was rendered unconscious. He went home initially and then to Gosford Hospital. He was later transferred to Royal North Shore Hospital. He was diagnosed with a broken jaw and bleeding on the brain. He remained in hospital for a few days.

139. In the period that followed, Asha observed that the offender was angry all the time and acting abnormally. Casey complained to Asha about the offender’s change in behaviour and their relationship suffered and then ended.

140. When he broke up with Casey in about 2010, the offender moved to Bondi and developed a new social circle and spent a lot of time “partying” and using cocaine. At this time, he saw Asha occasionally on weekends if he came to see his children.

141. In about 2013, Asha was in a relationship with one of the offender’s old friends and she saw the offender regularly. She began to notice further changes in his personality. She perceived him as aggressive and not thinking properly. He appeared to lose his filter on what he was saying and became forgetful.

142. In 2014 the offender consulted a psychiatrist, Dr Greg Wilkins. He was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and prescribed dexamphetamine. He did not like taking this medication and discontinued taking it shortly afterwards.

143. In 2015 the offender married Maria.

144. On 20 October 2015 the offender suffered a further head injury while intoxicated. He was rendered unconscious. When he came to, he had numbness on his right side and could not move for a period of time.

145. Shortly after the 2015 head injury, the offender began to suffer episodes of fitting.

146. By about 2015, the changes in the offender’s personality were significant and Asha described him as a “different person”. The offender was argumentative, aggressive and irrational at family functions and Asha found him difficult to be around. He would pick a fight in the family and then have forgotten about it the next day.

147. At this time, Asha also believed that the offender was making poor decisions about who he was associating with as well as making poor business decisions. In 2018, he refused a lucrative business offer from Asha because he would not negotiate on her remuneration. He also began to delegate management of his business to others and put them in a position to steal business away from him, which they did. He bought a $300,000 Mercedes-Benz without thinking whether it was a sensible decision. He had previously been a shrewd entrepreneur who had built a substantial business and his actions were significantly uncharacteristic for him.

148. On Australia Day in 2017, the offender had a seizure at a family holiday at Wiseman’s Ferry. Asha observed the offender to shake uncontrollably for about an hour with his eyes rolling back in his head and he was covered in sweat. The offender has suffered one similar fitting episode whilst in custody.

149. Over the years the offender has had treatment for injuries related to wear and tear on his body as a consequence of playing rugby league, including surgery on both shoulders (2015 and 2019), right knee pain (2019) and surgery on his cervical spine (1997 and 2016).

150. Whilst in gaol the offender has experienced a low mood as a result of the COVID-19 restrictions because he has not been able to see his family.

Dr Pulman’s report

151. The offender told Dr Pulman that he has experienced problems with his memory and concentration. He found it difficult to read a book without his mind wandering and he often forgot meetings and work tasks that he needed to attend to. He otherwise confirmed the history that I have already set out above.

152. As to the offences, the offender told Dr Pulman that he began to associate with people in the earthmoving industry when he moved to Bondi. He was using cocaine and taking regular trips to Thailand. It was these people who first approached him to receive consignments of machinery parts containing drugs. He refused to participate on a number of occasions before finally acquiescing to the request. He had no proprietary interest in the drugs and was paid a flat fee for his involvement.

153. Dr Pulman also took a history from Asha that was consistent with her evidence.

154. Dr Pulman thought that the oral histories given by the offender and Asha were consistent with the results of the neuropsychological testing, her assessment, the neuroimaging and what she expected from her knowledge of the neuropsychological literature.

155. Dr Pulman conducted a review of the medical records tendered by the offender. She recorded the following matters of interest:

1. a CT scan of the brain taken on 5 October 2001 showed two well-circumscribed areas of reduced attenuation in the basal ganglia on the right;

2. the Royal North Shore Hospital records recorded a small intracranial haemorrhage caused by a head injury sustained in the assault on 10 February 2008. A CT scan of the brain revealed small contusions within the right temporal and left parietal lobes;

3. on 8 March 2016 the offender gave a history to a general practitioner, Dr Oaks, of being knocked out on 20 October 2015 and suffering numbness on his right side and immobility on regaining consciousness. He complained of becoming easily fatigued particularly in his right arm and leg and of residual symptoms of incoordination and fatigue.

4. a brain MRI on 10 March 2016 was reported as showing multifocal small regions of marked susceptibility in the posterior left temporal lobe involving the cortex and grey/white interface. The appearances were consistent with haemosiderin deposition (iron deposits) from an old intraparenchymal haemorrhage, presumably related to a head injury in the remote past;

5. on 19 May 2016 Dr Coughlan recorded a history of the offender being knocked out on 20 October 2015 and having no feeling on the right side of his body for five minutes after regaining consciousness;

6. on 20 March 2019 the offender gave a history to his general practitioner, Dr Belthikiotis, that he had been assaulted on 14 March 2019, sustaining multiple blows experiencing daily headaches since the assault.

7. a Nuclear Medicine Report Brain Study dated 25 November 2021 was reported as showing areas of reduced cortical perfusion (blood flow through microscopic vessels in the brain) throughout the brain, including, in the left frontal/anterior parietal regions (the largest area), the lateral aspect of the right temporal lobe, the inferior and lateral aspects of the left temporal lobe, the superior and lateral aspects of the right frontal region and both fronto-orbital regions. Dr Pulman noted that the abnormal pattern of reduction in cortical perfusion is consistent with a diagnosis of chronic traumatic encephalopathy (CTE) but is not a specific sign of it.

156. In her oral evidence, Dr Pulman stated that the reduced cortical perfusion was widespread across the offender’s brain, but particularly significant in the frontal area which is responsible for impulse control, decision-making and complex thought. She thought that the changes were extensive, long-standing and could get worse.

157. Dr Pulman stated that concussion, or mild traumatic brain injury (mTBI), is a common injury resulting from a blow to the head that leads to temporary functional and structural alterations in the brain. Symptoms include nausea, vomiting, headache, irritability, insomnia, anxiety, depression and sometimes personality change. The symptoms are usually most prominent immediately post injury and resolve within days or weeks however, 15-30% of sufferers can experience persistent post-concussive symptoms.

158. The precise mechanism that links TBI to neuropathological changes is not completely understood. It is likely to involve a series of multifocal axonal injuries caused by the initial trauma, affecting the brain cells’ ability to metabolise. Other impacts include a decrease in total cerebral blood flow and a decrease in inhibitory neurotransmitters.

159. Research suggests that persons exposed to repetitive brain trauma may be at a higher risk for persistent post-concussive symptoms, structural alterations in the brain and developing a neurodegenerative disease such as CTE.

160. CTE is marked by a widespread accumulation of hyperphosphorylated tau (p-tau). Tau is a naturally occurring protein in the brain that when hyperphosphorylated loses its physiological function and becomes toxic. P-tau is a histopathological marker of Alzheimer’s disease.

161. CTE is most frequently observed in professional athletes involving contact sports who have been the subject of repetitive head impacts, such as boxers and footballers. To date, neuropathologically confirmed cases of CTE have had a history of repetitive head impacts including concussion and subconcussive impacts, suggesting that repetitive head impacts may be necessary for the initiation of the pathogenic cascade that eventually leads to neurodegeneration. Symptoms may begin years or decades following brain trauma, and include memory and other cognitive impairments, depression and suicidality as well as problems with impulse control. As the disease progresses, it may lead to dementia such as CTE or other neurological diseases.

162. Subconcussive head impacts produce neuronal change similar to concussion, but without acute physical symptoms. Subconcussive head impacts are far more common than those that cause concussion. Advanced neuroimaging techniques have demonstrated alterations in the brain’s microstructure in soccer players as a result of heading the ball. These findings are consistent with a series of studies demonstrating cognitive, functional and biochemical changes in the brains of contact sport athletes in the absence of diagnosed concussions. Accordingly, it may not be strictly necessary to have a history of repeated concussions to develop CTE, but so far all pathologically confirmed cases have done so. I pause to note Dr Pulman’s oral evidence that CTE can presently only be confirmed at autopsy.

163. Research suggests that traumatic brain injury can cause subtle impairments in cognitive, executive and decision-making functions that may lead to an increase in substance use or first time substance abuse.

164. It is well-known that traumatic brain injury can cause deficits in higher order reasoning due to damage to the frontal lobes of the brain. The orbitofrontal cortex (OFC) is especially vulnerable to traumatic brain injury from direct blows to the head as well as exposure to percussive shockwaves caused by the movement of brain within the skull. Injuries to the OFC may alter “agency” (the perception of self as the actor or instigator of behaviour), lead to personality changes and lead to increased impulsivity and poor decision-making, including engaging risky behaviours such as substance abuse. The OFC helps people make decisions based on the value of each option. When it becomes damaged, people tend to make poor decisions, even if they know what will happen. Most people with OFC damage seem blind to consequences and are motivated by immediate gratification only. Damage to the OFC can also change the way the body responds to emotions, which may contribute to impulsivity and poor decision-making.

165. In a recent Australian study, footballers with repetitive concussions and subconcussive injuries reported a higher incidence of concerns about their cognitive functioning compared to a control group. Participants reported symptoms including paranoid ideation, tendency for anger or rage and cognitive impairment. Carers of the participants reported irritability, difficult social demeanour, anger including physical rage and memory impairment.

166. Dr Pulman administered a number of neuropsychological tests. The offender was assessed as having an abnormal cognitive profile for current intellectual functioning. His processing speed was significantly impaired and that result was consistent with the neuropsychological sequelae of repetitive concussions. He performed poorly on a verbal learning and memory task presented in narrative form, scoring in the extremely low range with his recognition memory in the 3^rd to 9^th percentile. The testing of adaptive and executive functioning showed evidence of deficits in verbal memory and impairment in tasks such as planning, organisation and decision making. The offender did not report symptoms of depression, anxiety or stress. He completed the neuropsychological testing according to the inbuilt reliability measures in them with a satisfactory level of motivation and effort.

156. Dr Pulman formed the view that the offender was engaged in the assessments and did not try to exaggerate his symptoms. She thought he was quite worried about the prospect of getting dementia and that his anxiety could impact the results but did not ultimately do so.

157. Dr Pulman did not accept the offender’s earlier diagnosis with ADHD, stating that the symptoms he experienced at that time and subsequently, were more likely the cognitive and behavioural sequelae of repetitive head injuries. She opined that the offender’s risk-taking behaviour without considering the consequences demonstrated by the offending conduct, was consistent with the impacts of repetitive brain trauma documented in the neuropsychological literature.

158. Dr Pulman opined that based on his history of documented head injuries and the subconcussive impacts incurred as a professional athlete, the abnormal results of the neuropsychological testing and the neuroimaging which demonstrated a reduced cerebral blood flow consistent with CTE, that the offender was suffering from the neuropsychological sequelae of repetitive brain trauma, and that condition was longstanding and was present at the time of the offending conduct. She believed it was possible that his condition made him more susceptible to substance abuse, that contributed to his poor judgement and decision making.

159. Dr Pulman stated that the offender’s prognosis was unclear. It was possible that his condition could progress to a neurodegenerative disease such as dementia or CTE. She believed that there was a “reasonable risk” that it would. She recommended that he undergo regular neuroimaging and neuropsychological testing to monitor his condition for further decline. Whilst there is no cure for the offender’s condition, there are therapies and pharmacological treatment that can assist to ameliorate some of the cognitive deficits associated with it. Cognitive remediation strategies and therapies can be provided by clinical psychologists experienced in the treatment of brain injured patients.

160. Dr Pulman stated if the offender is diagnosed with dementia, his life expectancy will be substantially reduced to between five to 10 years from the date of diagnosis. If a diagnosis of dementia is made, pharmacological treatment is available from a treating neurologist or rehabilitation specialist. Dr Pulman’s evidence was that in the early stages of dementia it is important to provide a stimulating, caring and family-oriented environment and to encourage healthy eating and exercise. Conversely, isolation and depression were likely to accelerate the progression of the disease.

161. Dr Pulman stated that it was difficult to determine the effect that imprisonment would have on the offender’s neurological/neuropsychological condition. If he developed a dementing illness, his prognosis is poor and a lengthy custodial sentence may accelerate the progression of his illness.

Consideration

The nature and circumstances of the Federal offences

173. In relation to each Federal offence:

1. the offender used a number of means to distance himself from the drugs and to protect himself from detection by the authorities;

2. the offender had actual knowledge of the drugs involved and the amount of the drugs;

3. the offender had contact with others overseas with the capacity to source substantial amounts of drugs and the knowledge of how to send them surreptitiously to Australia;

4. the offences involved substantial premeditation and planning;

5. the offender participated in the offences for financial gain;

6. the offences were not isolated and formed part of a series of criminal acts over an extended period;

7. I have taken into account that the maximum penalty for the offences is life imprisonment.

174. At the time of the offences, the offender was suffering from a serious neuropsychological condition impacting his memory and executive functioning. I am satisfied that the offender’s capacity to reason was adversely impacted by his condition by leading him to discount the consequences of his actions and increase his substance use which further impacted his judgement and decision making. I am satisfied that there was some causal connection between his personality changes and poor decision making, and his involvement in the offending conduct. Further, the offender had a deprived background where he was exposed to domestic violence and alcohol abuse as a child. Taking these matters in combination, the offender’s moral culpability for the offences is reduced to some extent.

Count 1

175. The offender arranged and paid for the importation of the hydraulic cylinder. The offence involved some premeditation and planning. He knew that Russtrans had no legitimate use for the hydraulic cylinder and that many of the details relating to it and the consignment were false. The method of concealment of the drugs in the hydraulic cylinder was elaborate. The drugs were difficult to detect and extract. The quantity of the pure methamphetamine of 56.09kg was substantial, being more than 74 times the commercial quantity for that drug.

s 16BA schedule offence

176. I have taken into account the offence on the s 16BA schedule attaching to Count 1. The proceeds of crime offence involved the possession of a significant sum of cash that the offender believed to be the proceeds of crime. Whilst the sum of cash was above the $100,000 threshold, I note that there is no upper limit for this offence and it can be prosecuted in relation to much higher sums.

Count 2

177. The offender arranged and paid for the importation of the ball bearings. The offence involved some premeditation and planning. He knew that Russtrans had no legitimate use for the ball bearings and that many of the details relating to them and the consignment were false. The method of concealment of the drugs in the ball bearings was sophisticated. The offender was involved in the organisation of a dummy run for the importation. The quantity of the pure methamphetamine of 12.19kg was significant, being more than 16 times the commercial quantity for that drug.

s 16BA schedule offence

178. I have taken into account the offence on the s 16BA schedule attaching to Count 2. The attempt to pervert the course of justice was a serious one. The design was created for the purpose of giving false evidence in Court. The efforts gone to were significant. The offence was committed while the offender was on bail for the offences in Counts 1 and 2.

Count 8

179. In relation to the conspiracy count, the offender occupied a very senior position in the syndicate. He was the head of the syndicate in Australia and was responsible for its local organisation and operation. He directed others to perform necessary tasks and gave instructions as to how those tasks were to be carried out so as to avoid detection. He recruited and used others to distance himself from detection by the authorities. The offender used encrypted means of communication to conceal his involvement in the importations.

180. The method of concealment of the drugs was sophisticated and managed to evade detection for an extended period of time. The offender had a close connection and regular contact with his associate in Singapore, who was the international facilitator of the compressor head conspiracy. The offence was part of a course of conduct consisting of a series of criminal acts of a similar character. The quantity of the pure methamphetamine of 163.66 kg was large, being more than the commercial quantity for that drug.

The objective seriousness of the State offences – Counts 3-7

181. Counts 3-7 concern the supply of cocaine by the offender to Witness A in the following amounts:

• Count 3 – 26.6g;

• Count 4 – 19.9g;

• Count 5 – 133.4g

• Count 6 – 52.2g

• Count 7 – 998.9g, being an amount almost 4 times the commercial quantity.

182. The offender had access to an ongoing supply of cocaine in amounts up to one kilogram through his contact with unknown others. The offender had knowledge of the market for cocaine and the quality of the cocaine supplied. The offender had knowledge of how to divide and package the cocaine for on supply.

183. The offender used code and encrypted means of communication to avoid detection. Each supply involved some planning through negotiations, the making of arrangements, meetings, telephone conversations and text messages in code. The offences were committed for financial gain.

184. As to Count 7, the offender intended to keep about half of the cocaine for himself to supply to others.

185. I have taken into account my finding as to the offender’s moral culpability.

186. I have taken into account the maximum penalty for the offences and the standard non-parole period for Count 7.

Aggravating factors for the State offences

187. Counts 3-7 were committed whist the offender was on conditional liberty, in the form of bail for the serious drug offences the subject of Counts 1 and 2: s 21A(2)(j) Crimes (Sentencing Procedure) Act 1999.

Contrition and remorse

188. The offender’s pleas of guilty indicate remorse. There was no other evidence of contrition or remorse.

Deterrence

189. General deterrence is a fundamental consideration in serious drug offences. The sentence must be of such severity to deter others from engaging in drug related activities. The sentence must signal to would be participants in drug offences that the financial rewards will be neutralised by the risk of severe punishment.

190. There must be a significant element of specific deterrence in the sentence imposed, by reference to the objective gravity of the offences.

Character, antecedents, age, physical and mental condition

191. The offender is presently 47 years of age.

192. At the time of the offences, the offender had a criminal history of minor driving offences that are of no significance in this sentencing exercise. Prior to 2017 he was a person of good character.

193. The offender suffers from some physical injuries from his days as a professional athlete. I note Dr Bateman’s opinion that he will require further shoulder replacement surgery in about eight years.

194. I accept Dr Pulman’s opinion that the offender is suffering from the neuropsychological sequelae of repetitive brain trauma. I am satisfied that his condition will make his time in custody more onerous. The treatment that is presently available for the offender’s condition is specialised and more readily available in the community.

195. I am satisfied that it is likely that his condition will deteriorate in the next 10 years and that a prolonged period of incarceration is likely to accelerate his decline. I note that it is possible that he already has already developed CTE, but the present state of medical science does not allow a definitive diagnosis to be made.

196. I am satisfied that there is a significant risk that he will develop dementia or another neurodegenerative disease. If he does develop dementia or a neurodegenerative disease, his continued incarceration will be the antithesis of the nurturing and supportive environment that a person in the early stages of a such a disease needs. Further, treatment for a neurodegenerative disease is highly specialised and would be more readily available in the community.

197. I am satisfied that if the offender develops dementia that his life expectancy would be significantly shortened and that if he develops dementia whilst in custody, his continued incarceration will accelerate the progress of the disease.

Prospects of rehabilitation

198. The offender has good prospects of rehabilitation. The offender has good family support. His family are now aware of the extent of his neuropsychological condition and are willing to support him. In the lead up to the offences, they did not understand the reasons for his personality change and poor decision making. I am satisfied that the offender is now worried about his cognitive decline and is more likely to focus on obtaining appropriate treatment to delay any further mental decline.

Comparable sentences

199. I have had regard to the comparable cases referred to me by the parties and I have taken into account the limitations of that exercise: Hili v The Queen (2010) 242 CLR 520.

Presentence custody

200. The offender was arrested for the offences in Counts 1 and 2 on 3 August 2018. He remained in custody, bail refused, until 30 August 2018, a period of 27 days. He was arrested for the offences in Counts 3-8 on 4 June 2019 and has been bail refused since that day.

201. The sentences I impose will date from 8 May 2019, (27 days before 4 June 2019) to take into account the offender’s presentence custody.

202. I have taken into account the restrictions imposed on prisoners serving sentences in New South Wales in response to the COVID-19 pandemic. I am satisfied that those restrictions have made the offender’s time in custody more onerous and that they may be imposed for some time into the future.

s 16BA schedule and Form 1 offences

203. I have taken the s 16BA schedule offences and the Form 1 offence into account in accordance with the principles in the guideline judgment, which have been held to apply equally to s 16BA procedure: Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 546 and R v Lamella [2014] NSWCCA 122 at [48].

Setting the non-parole periods

204. For the State offences, I make a finding of special circumstances for the reasons that follow. This is the offender’s first time in custody. He suffers from cognitive deficits arising from repetitive concussions and subconcussive head impacts. He requires specialised treatment to arrest further decline in his mental capacity which is more readily available in the community. His condition is likely to make imprisonment more onerous on him and could accelerate his mental decline. He is at significant risk of developing dementia or CTE, which would substantially shorten his life expectancy.

205. For the Federal offences, I have fixed the non-parole period with regard to the matters set out at [9] and the factual matters set out in the preceding paragraph.

Penalty

206. I have had regard to s 17A Crimes Act 1914 (Cth) and s 5 Crimes (Sentencing Procedure Act 1999. I am satisfied having considered all other available sentences that no sentence other than imprisonment is appropriate in all the circumstances of the case, for the reasons I have given in this judgment.

207. The offender is convicted.

208. This is an appropriate case to impose an aggregate sentence for the State offences and a separate aggregate sentence for the Federal offences, pursuant to s 53A Crimes (Sentencing Procedure) Act 1999. The two sentences will then be partially accumulated to reflect the totality of the criminality involved.

Aggregate sentence for the State offences

209. The terms of imprisonment that I would have imposed for the State offences, if separate sentences were to be imposed, after taking into account the discount of 25% for the pleas of guilty are:

Count	Offence	Indicative sentence
3	Supply prohibited drug on 31 January 2019	18 months
4	Supply prohibited drug on 18 February 2019, taking into account the offence on the Form 1	2 years
5	Supply prohibited drug on 7 March 2019	3 years
6	Supply prohibited drug on 14 May 2019	2 years and 6 months
7	Supply prohibited drug between 26 February 2019 and 4 June 2019 being an amount not less than the commercial quantity	5 years with a non-parole period of 2 years and 6 months

210. I impose an aggregate term of imprisonment for the State offences of 7 years with a non-parole period of 3 years and 6 months to date from 8 May 2019. The head sentence will expire on 7 May 2026 and the non-parole period will expire on 7 November 2022.

Aggregate sentence for the Federal offences

211. The terms of imprisonment that I would have imposed for the Federal offences, if separate sentences were to be imposed, after taking into account the discount of 15% for Counts 1 and 2 and 25% for Count 8 for the pleas of guilty are:

Count	Offence	Indicative sentence
1	Attempt to possess a commercial quantity of a border control drug, between about 3 October 2017 on 13 October 2017, taking into account the proceeds of crime offence on the s 16BA schedule	8 years
2	Import a commercial quantity of border controlled drug, between about 15 November 2017 and 3 August 2018, taking into account the attempt to pervert the course of justice offence on the s 16BA schedule	6 years
8	Conspire with Witness A, Witness B and Witness C to import a commercial quantity of a border control drug, methamphetamine, between 18 April 2017 and 1 November 2017	12 years

212. I impose an aggregate term of imprisonment for the Federal offences of 14 years to date from 8 May 2021 and expire on 7 May 2035. I fix a single non-parole period of 7 years which will expire on 7 May 2028.

213. The total effective term of imprisonment I have imposed for all of the offences is 16 years with a non-parole period of 9 years.

214. The offender will be eligible to be released on parole on 7 May 2028.

Explanation of the Sentence Imposed

215. I am obliged to explain to the offender the effect of the orders I have made.

216. Levi Russell, the sentences I have imposed mean that you will be obliged to spend a minimum period in custody of 9 years. This means that, having regard to the time you have already spent in custody, you will be eligible for release on parole on 7 May 2028.

217. It will be a matter for the Federal Attorney General as to whether you will be released on that day. It may depend upon your behaviour in prison. It will also be a matter for the Attorney General to determine whether any conditions should apply to you while you are at conditional liberty upon parole after 7 May 2028. If you are released on that day, you will remain on parole for a further period of 7 years. If you were to breach your parole, you may be required to return to prison to serve the balance of the term of your sentence.

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Decision last updated: 16 September 2022