R v Sagnelli

[2020] ACTSC 348

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Sagnelli
Citation:	[2020] ACTSC 348
Hearing Dates:	14 and 15 December 2020
Decision Dates:	14 and 15 December 2020
Before:	Mossop J
Decision:	See [50]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – importing a marketable quantity of MDMA – importing a marketable quantity of LSD – scheduled offence of trafficking MDMA – low range of objective seriousness – unsophisticated offending – young offender – no criminal history – low risk of reoffending – custodial sentences to be served by way of
intensive correction order with a community service work condition
Legislation Cited:	Crimes Act 1914 (Cth), ss 16A(2)(g), 16BA, 17A, 20, 20AB Criminal Code 1995 (Cth), ss 302.4(1), 307.1(1), 307.2(1) Criminal Code Regulations 2002 (Cth), Schedule 4 Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT), ss 13, 46C, 46F
Cases Cited:	Adams v The Queen [2008] HCA 15; 234 CLR 143 Dunning v Tasmania [2018] TASCCA 21 Ludwig v The Queen [2015] VSCA 35 R v NE [2015] ACTSC 352 R v Faber [2020] SASCFC 49 Woods v The Queen [2020] NSWCCA 219
Parties:	The Queen (Crown) Benjamin Sagnelli (Offender)
Representation:	Counsel
D Berents (Crown)
B Morrisroe (Offender)
Solicitors
Commonwealth Director of Public Prosecutions (Crown) Sharman Robertson (Offender)
File Number:	SCC 160 of 2019
MOSSOP J:
Introduction

1. The offender, Benjamin Sagnelli, pleaded guilty to two counts of importing a marketable quantity of a border controlled drug, namely 3,4-methylenedioxymethaphetamine (MDMA) and lysergide (LSD) respectively, contrary to s 307.2(1) of the Criminal Code 1995 (Cth).

The maximum penalty for each of these offences is 25 years’ imprisonment, 5000 penalty

units or both.

2. The offender has requested that an additional offence be taken into account on sentence pursuant to s 16BA of the Crimes Act 1914 (Cth). That offence is trafficking in a controlled drug, namely MDMA, contrary to s 302.4(1) of the Criminal Code. The maximum penalty

for this offence is 10 years’ imprisonment, 2000 penalty units or both.

Facts

3. The facts are agreed and, in summary, are as follows. On 29 April 2018 Australian Border Force (ABF) officers at the Sydney Gateway Facility intercepted an envelope that arrived in Australia from the Netherlands. The envelope was addressed to the offender at his residential address. The envelope contained two heat-sealed packages. There were 100 pink tablets in each package. Forensic analysis of the pink tablets revealed that they contained MDMA with a purity of 36.4% and a pure weight of 36.2908 g of MDMA. MDMA is a border controlled drug and a marketable quantity of MDMA for the purposes of s 307.2(1) is 0.5 g: see Schedule 4, Criminal Code Regulations 2002 (Cth). The offender admits that he knew or intended the package to contain MDMA.

4.   On 29 June 2018 ABF officers at the Sydney Gateway Facility intercepted an envelope that arrived in Australia from Poland. The envelope was addressed to the offender at his

residential address. The envelope contained a clear heat-sealed plastic bag marked “200V”

in plastic marker. The bag contained two perforated sheets printed with a multi-coloured psychedelic pattern. One sheet consisted of 180 squares and the other sheet consisted of 20 squares. Forensic analysis of the sheets revealed that they contained LSD with a purity of 0.3% and a pure weight of 0.114 g of LSD. LSD is a border controlled drug and a marketable quantity of LSD for the purpose of s 307.2(1) is 0.002 g: Schedule 4, Criminal Code Regulations. The offender admits that he knew or intended the package to contain LSD.

5.    At about 2:30am on 31 July 2018, police conducted a traffic stop on the offender as he was

driving on Cotter Road, Weston. The police conducted a search of the offender’s vehicle and located two envelopes postmarked “Netherlands” and addressed to the offender at his

residential address. One of the envelopes contained an opened heat-sealed bag. The

police also located an envelope postmarked “Poland” and addressed to the offender at his

residential address.

6.   The offender’s mobile phone was located during the search and he unlocked it for the

police. Police examined the phone and discovered numerous text messages relating to the

importation and trafficking of drugs. The phone had an “onion browser” application which

could be used to browse the dark web. The offender utilised Bitcoin to purchase drugs via vendors on the dark web from the Netherlands and Poland. Between 11 April and 23 July 2018, the offender transferred $7,152.89 over 12 transactions from his bank account to a Bitcoin trader.

7.    In relation to the scheduled offence, the offender admits to trafficking in MDMA to three persons known to him on multiple occasions between 4 and 24 July 2018. One of these people was 18 years old, and the other two people are believed to be not less than 18

years of age. The offender’s phone records indicate that he had been selling pills

containing MDMA for $10 each. During this period he sold 300 pills to the three people.

Further examination of the offender’s phone indicated that on 24 July 2018 the offender

possessed approximately 500 pills of MDMA with the intention of selling them to the three

people. There were text messages on the offender’s phone which contained the making of

arrangements for the three people to purchase the pills.

8.   On 9 August 2018 the offender participated in a recorded interview with police. In this interview he stated, among other things, that:

(a)	he worked at a café and earned between $300 and $450 gross income per week;
(b)	he did not have any permit or authority to bring border controlled drugs into Australia; and
(c)	he was aware that LSD is a border controlled drug.

Objective seriousness

9. The importation of MDMA involves an amount that was approximately 72 times the marketable quantity of that drug. While the marketable quantity is 0.5 g, the commercial quantity is 0.5 kg or 1000 times the marketable quantity. The importation of a commercial quantity carries life imprisonment: s 307.1(1), Criminal Code. So far as the quantity of drugs imported is concerned, it is at the lower end of the marketable quantity range.

10. The position is the same in relation to LSD. The commercial quantity is 2 g, 1000 times the marketable quantity. The importation in the present case was approximately 57 times the marketable quantity and therefore at the lower end of the marketable quantity range.

11. The importation was unsophisticated. The offender was a sole operator. There was no gang or syndicate involved. He used his own address and his own name for the importation of drugs. He took few protective measures to avoid the discovery of his activities, having text communications on his phone and incriminating packages in his vehicle.

12. Clearly, having regard to the nature of the transactions and the quantity of drugs involved, he was undertaking the activity for profit.

13. The objective seriousness is at the lower end of the range for these offences.

Subjective circumstances

14. The offender is 20 years old and was 18 years old at the time of the offending. He was

born in South Africa and is one of his parents’ two children. His parents separated in 2007

and he lived with his mother in Melbourne until 2016 when he relocated to Canberra to reside with his father. Part of the reason for the relocation was significant discord in the relationship with his mother between the ages of 13 to 16. He reported a supportive

relationship with his father and his father’s new partner.

15. The offender has resided with a friend for the past two years.

16. Since completing Year 12 in 2018, the offender has been employed in the hospitality and fitness industries. He experienced financial stress following a car accident in 2017. The offender reported that this contributed to his motivation for his offending.

17. The offender commenced using illicit substances, including cannabis, LSD and MDMA at 16 years of age. He advised that he ceased using LSD and MDMA at approximately 17 years of age. However, he has continued to smoke cannabis. He provided two samples for urinalysis in November and December 2020 which did not reveal the presence of any illicit drugs. He reported no issues with alcohol consumption.

18. The offender reported that he spends his leisure time in organised fitness related activities, he has prosocial friends and has no ongoing concerns with his physical and mental health.

19. In relation to his attitude towards his offending, the offender’s description of the offences

was consistent with the Statement of Facts. He expressed regret for his offences and indicated that his offending was motivated by financial stress. The author of the

pre-sentence report was of the opinion that the offender’s “awareness of this offence pathway is seen as a positive as it demonstrates a level of insight” and that “Should [the

offender] engage in financial counselling, the risk of him repeating the thinking and

behaviours that led to the current offences may reduce”.

20. He was assessed as being at a low risk of general reoffending. Prior to the current offending, he appears to have had a number of prosocial factors in his life, including education, a supportive relationship with his father and a history of employment.

21. The offender was assessed as being suitable for a good behaviour order and a community service work condition. He was also assessed as suitable for an intensive correction order (ICO).

22. The offender’s father gave evidence. He explained in more detail the circumstances in

which the offender moved from Melbourne to Canberra. He described the disruptive effect that this had on the offender. He explained that the offender lacked motivation and direction during this period. He also described the circumstances in which the offender came to be liable to him for the costs of recovering a vehicle which the offender had been driving. He described the offender as having been aware of the perils and problems associated with drugs. However, he also described him as lacking mental maturity at the time that he committed the offences, having matured since then and being in a relatively stable position with family support now.

23. There was also evidence that the offender had attended the Directions Health Service and received alcohol and other drug counselling in relation to his recreational substance use between March and September 2019.

Criminal history

24. The offender has no criminal history prior to these offences.

Plea of guilty

25. The offender pleaded guilty to these offences on 19 August 2020. This was prior to the matter being listed for trial. A pre-trial application had been listed for 17 and 18 August 2020, however, this was vacated on 14 August 2020 when the offender indicated his intention to enter pleas of guilty.

26. Following amendments made to the Crimes Act, it is now possible to take into account the utilitarian value of the plea. Clearly the Crown case was a strong one. The approach taken in this court to pleas of guilty in the Supreme Court associated with criminal case conferencing has been to allow a reduction in sentence of the order of 15% to 20%. The usual maximum reduction for a plea at the earliest possible stage in the Magistrates Court would be 25%.

27. Although it is not required by the Crimes Act, I agree with the submission made on behalf of the Crown that there is utility in expressly identifying the reduction in sentence given on account of the plea of guilty. Not only is that useful in terms of indicating to the parties the approach that the court has taken, it is also useful more generally to make clear to accused persons the nature and extent of the benefit that may be obtained from early pleas. In the present case I consider that a reduction in sentence in the range of 15 to 20% under s 16A(2)(g) is appropriate.

Time in custody

28. The offender has spent no time in custody in relation to these offences.

Comparable cases

29. The Crown pointed to a number of comparable cases. R v Faber [2020] SASCFC 49 was a case involving an offence of importing 781 times the marketable quantity of MDMA. It

attracted a penalty of three years and nine months’ imprisonment with a non-parole period

of 16 months. There was a plea of not guilty. There were no prior drug convictions. The offender was 22 years old. It was a relatively unsophisticated scheme. Plainly the case involved a substantially greater quantity of drugs than the present case.

30. Woods v The Queen [2020] NSWCCA 219 involved a charge of importing a marketable quantity of a border controlled drug (MDMA, 50 times the marketable quantity and cocaine, seven times the marketable quantity). This resulted in a sentence of three years imprisonment which was then subject to aggregation.

31. Dunning v Tasmania [2018] TASCCA 21 involved a charge of attempting to import a marketable quantity of a border controlled drug (MDMA, 42 times the marketable quantity), but this was dealt with along with two other such attempt charges which resulted in an

aggregate sentence of six years’ imprisonment with a non-parole period of three years and

six months. One of the other charges involved 1203 times the marketable quantity of the relevant drug. Because of the recording of only the aggregate sentence, it is difficult to use this case as a comparable one.

32. Ludwig v The Queen [2015] VSCA 35 involved trafficking in a marketable quantity of a controlled drug for which the maximum penalty was 25 years. It involved a charge of trafficking 83 times the marketable quantity of methylamphetamine and 371 times the trafficable quantity of MDMA, 1.5 times the marketable quantity of LSD and 40 times the

marketable quantity of ketamine. That charge resulted in a sentence of 24 months’

imprisonment. The quantities were more significant, but the offending was unsophisticated in the same way as the present. Along with other charges, the total effective sentence was three years and 11 months with a non-parole period of two years and six months.

33. Counsel for the offender referred the court to R v NE [2015] ACTSC 352 in which Refshauge ACJ sentenced a young person who was 16 and 17 years old who had imported MDMA, cocaine and LSD. He had also trafficked in cannabis, MDMA and LSD. The

operation was described as “rather sophisticated but also naïve”. It involved receipt of

drugs from overseas, their repackaging in clip seal bags and gel capsules as well as weighing and packaging cannabis. It was naïve because, like the offender in the present case, he had the packages sent from overseas in his own name to his own home or to a post office box in his own name or, later, the name of a friend. The total quantity of MDMA imported was 64.4 g and the largest single quantity was 46.8 g. Refshauge ACJ imposed

an aggregate sentence of four years’ imprisonment. The various importation charges were

all made concurrent with the three year sentence for importing a marketable quantity of
MDMA. The sentence was wholly suspended.

Consideration

34. The importation in this case was of two different types of drugs in marketable quantities, but at the lower end of the range of objective seriousness having regard to the quantities and level of organisation and sophistication of the operation. I have had regard to the quantitative nature of the scheme under Criminal Code and the impermissibility of the court adopting a “judicially constructed harm-based gradation of penalties”: see Adams v The

Queen [2008] HCA 15; 234 CLR 143 at [10].

35. Although the offences occurred with a view to making a profit from the sale of the items, the evidence does not establish beyond reasonable doubt that the level of profit being sought exceeded that which was necessary to repay the debt that the offender had to his father as a result of the motor vehicle accident that had occurred.

36. I have indicated the significance of the utilitarian value of the guilty plea. That guilty plea also indicates an acceptance of responsibility for the offending and provides some insight into the prospects of rehabilitation.

37. The offender had only recently turned 18 at the time that he committed the offences. That appears to me to be a significant factor. Young people readily make foolish decisions involving breaching the law. They have more difficulty thinking through the consequences of their actions and appreciating the significance of compliance with the law. It is therefore easy to characterise their breach of the law as an aberration and to exercise leniency which would not be shown to an older person, by emphasising rehabilitation over general deterrence in determining the appropriate sentence. That is particularly so where, as here, the offender has no criminal history and any period of imprisonment served by full-time

detention would be the offender’s first such period of imprisonment. In this case, there was

specific evidence of the naïveté and immaturity of the offender at the time that he
committed the offences.

38. In my view, the prospects of reoffending are low. I consider the need for specific deterrence to be low. There is obviously the issue of general deterrence which must be significant for this type of offending. However, that must be tempered by the youth of the offender and the greater emphasis that must be placed on rehabilitation because of that.

39. Obviously, it is of great significance that the legislature has specified a maximum penalty

of 25 years’ imprisonment. This indicates the extreme gravity that the legislature attaches

to offences of this type. It makes it very difficult to characterise the offending as not having
passed the threshold in s 17A of the Crimes Act.

40. In relation to the MDMA charge, it is necessary to take into account the offence referred to in the s 16BA form.

41. In my view, the appropriate starting point for the MDMA offence is a period of imprisonment of 24 months. That is reduced to 20 months on account of the plea of guilty. That reflects a discount of approximately 17% on account of the plea of guilty. For the LSD offence the starting point is 22 months reduced to 18 months on account of the plea of guilty. This reflects a discount of approximately 18% on account of the plea of guilty. I consider that there must be some cumulation between the two offences. I will make the LSD count cumulative upon the MDMA count to the extent of four months, but these sentences will otherwise be concurrent.

42. As to how this period should be served, notwithstanding the seriousness of the offending and the need for general deterrence, the youth and personal circumstances of the offender at the time of the offending and since are such that I do not consider that it is essential that he spend time in full-time custody. Indeed, in my view such an outcome would be contrary to the interests of the community. The Crown did not contend that a disposition that did not involve a period of full-time detention was not available in the circumstances.

43. I do not consider that this is an appropriate case in which to impose an ICO. The pre-sentence report, usefully, included an assessment that the offender was suitable for an ICO. However, such an assessment had not been formally ordered by the court. Section 46C(7) of the Crimes (Sentencing) Act 2005 (ACT) permits the court to order that the intensive correction assessment form part of the pre-sentence report but no such order was made in the present case. Therefore, leaving aside the possibility of an order nunc pro tunc, it would be necessary to make an order requiring an intensive correction assessment. This may in turn provoke the preparation of a new intensive correction assessment and hence delay the finalisation of the matter. Had I considered that there would be significant utility in making an ICO, as opposed to some other form of order, then I would have attempted to deal with the matter in a way that met the requirements of the statute but also did not result in any significant delay. However, the circumstances of the offender are such that I do not consider that there would be much greater utility in an ICO than in a period of supervision associated with the suspension of the sentence.

44. In my view, a sentence which is of a severity appropriate in all the circumstances of the offence will be achieved by wholly suspending the sentence of imprisonment and combining it with a period of supervision and a requirement to perform community service. So far as community service is concerned, I was told that as a result of the COVID-19 pandemic such work was not presently available. However, during the period of the suspension of the sentence it is likely that such work will become available and hence may form a useful part of a sentence.

45. The total effective sentence is 24 months. I will make a recognizance release order that the offender be released immediately subject to being of good behaviour for a period of 24 months. I have not imposed any supervision requirement on the recognizance release order because to do so would necessarily include the condition referred to in s 20(1A) of the Crimes Act, the regime under a good behaviour order under the Crimes (Sentencing) Act being slightly less burdensome.

46. I will also, pursuant to s 20AB of the Crimes Act, make a 24 month good behaviour order under the Crimes (Sentencing) Act with a period of supervision and a requirement to perform 200 hours of community service within that period.

Orders

47. The orders of the Court are:

1.            On the charge of importing a border controlled drug (MDMA) (CC2019/7), the offender is convicted and sentenced to imprisonment for a period of 20 months.

2.            On the charge of importing a border controlled drug (LSD) (CC2019/8), the offender is convicted and sentenced to imprisonment for a period of 18 months, cumulative as to four months upon the previous charge but otherwise concurrent.

3. I direct that the offender be released forthwith upon entering into a recognizance under s 20(1)(b) of the Crimes Act 1914 (Cth) with security of $500 without surety to be of good behaviour for a period of 24 months.

4. Pursuant to s 20AB of the Crimes Act 1914 (Cth) I make an order under s 13 of the Crimes (Sentencing) Act 2005 (ACT) requiring the offender to sign an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 24 months with the following additional conditions:

i.          that he be subject to supervision by the Director-General administering the Crimes (Sentence Administration) Act 2005 (ACT) for that period or such shorter period as determined by the Director-General and obey all reasonable directions of the Director-General; and

ii.          that he perform 200 hours of community service within 24 months.

5. I note that pursuant to s 16BA of the Crimes Act 1914 (Cth) I have taken into account the offence of trafficking in MDMA contrary to s 302.4(1) of the Criminal Code 1995 (Cth) in passing sentence for the charge referred to in order 1 and I have signed the s 16BA document on the court file.

Updated Orders – 15 December 2020

48. Following the announcement of the orders, counsel for the Crown raised with the court whether it was open to the court to impose a sentence which combined a recognizance release order under s 20(1)(b) of the Crimes Act, as well as an order under s 20AB. Following a brief adjournment, counsel for the Crown submitted that it was not. The effect of this submission was that it was not possible to combine a suspended sentence with a requirement to perform community service. This meant that the only way in which there could be, in substance, the suspension of a sentence of imprisonment, combined with a requirement to perform community service, would be that if the only sentence imposed was one under s 20AB that the sentence was an ICO including a component of community service. It was therefore suggested that it was necessary, if the court wished to impose a requirement to perform community service, for the intensive correction assessment, referred to in the reasons given earlier, to be addressed. While this would involve some further delay it appeared to be possible to meet the requirements of the statute by seeking an updated pre-sentence report and ordering an intensive correction assessment so as to satisfy the requirements of s 46C of the Crimes (Sentencing) Act. Having regard to the potential for a pragmatic solution to the legal issue raised by the Crown, counsel for the offender did not wish to be heard in relation to the availability of a combination sentence. As a result, I vacated the orders that had been pronounced and made an order for an updated pre-sentence report and an intensive correction assessment. This morning an officer of ACT Corrective Services attended and gave evidence of an intensive correction assessment orally as permitted by s 46F of the Crimes (Sentencing) Act. The offender was assessed as suitable for an ICO.

49. I do not consider that a wholly suspended sentence without a period of community service would be a sentence of appropriate severity in the circumstances of the case. In order to lawfully give effect to a sentence that I consider to be appropriate, I will therefore make an ICO which includes a requirement for community service.

50. The orders of the Court are:

1. On the charge of importing a border controlled drug (MDMA) (CC2019/7) the offender is convicted and sentenced to imprisonment for a period of 20 months. Pursuant to s 20AB of the Crimes Act 1914 (Cth), I direct that the sentence is to be served by way of intensive correction which includes the following additional condition:

i. The offender is to perform 200 hours of community service work within 24 months.

2. On the charge of importing a border controlled drug (LSD) (CC2019/8) the offender is convicted and sentenced to imprisonment for a period of 18 months, cumulative as to four months upon the previous charge but otherwise concurrent. Pursuant to s 20AB of the Crimes Act 1914 (Cth), I direct that the sentence is to be served by way of intensive correction.

3. I note that pursuant to s 16BA of the Crimes Act 1914 (Cth) I have taken into account the offence of trafficking in MDMA contrary to s 302.4(1) of the Criminal Code 1995 (Cth) in passing sentence for the charge referred to in order 1 and I have signed the s 16BA document on the court file.

4.            The sentence in order 1 commences on 15 December 2020 and ends on 14 August 2022.

5.            The sentence in order 2 commences on 15 June 2021 and ends on 14 December 2022.

I certify that the preceding fifty [50] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.

Associate:

Date: 1 February 2021