R v Sikais

[2024] NSWDC 80

District Court

New South Wales

Medium Neutral Citation:

R v Sikais [2024] NSWDC 80

Hearing dates:

15 March 2024

Date of orders:

21 March 2024

Decision date:

21 March 2024

Jurisdiction:

Criminal

Before:

Newlinds SC DCJ

Decision:

An effective overall head sentence of 8 years and six months with an effective overall non-parole period of 4 years and 9 months to date from 28 July 2023 . See paragraph [76] & [77]

Catchwords:

CRIMINAL LAW – Sentence – State and Federal offences – Supply prohibited drug not less than large commercial quantity – Import a commercial quantity of a border-controlled drug – Maximum penalty for each life imprisonment – Criminal history – Long term drug addict – Prospect of rehabilitation – Subjective case.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW

Crimes Act 1914 (Cth)

Drugs Misuse and Trafficking Act

Cases Cited:

Abbas v R [2014] NSWCCA 188

Bott v R [2023] NSWCCA 255

Director of Public Prosecutions (Cth) v Maxwell (2013) A Crim R 218

Farkas v The Queen (2014) 243 A Crim R

Hili v R; Jones v R (2010) 242 CLR

Petkos v R [2020] NSWCCA 55

R v Chapman (2001) NSW CCA 457

R v Harris [2015] NSWCCA 81

R v Henry (1999) 46 NSWLR 346

R v Nguyen; R v Pham [2010] NSWCCA 238

Wong v The Queen (2001)207 CLR 584

Xiao v The Queen [2018] NSWCCA

Category:

Sentence

Parties:

The Crown
David Karlis Sikais

Representation:

Counsel:
K Fitzgerald – Crown
P.D. Lange - Offender

Solicitors:
Commonwealth Director of Public Prosecutions
Kadadi & Co Lawyers Pty Ltd

File Number(s):

2022/00221793

Publication restriction:

Nil

Judgment

INTRODUCTION

1. David SIKAIS (the offender) is to be sentenced for the following offences: Supply prohibited drug not less than large commercial quantity (24.24kg of 1,4 butanediol) s25(2) - s29 Drug Misuse and Trafficking Act 1985(NSW) (DMTA), (Count 1/Sequence 1) and Import a commercial quantity of a border controlled drug (43.26kg gammabutyrolactone) s307.1(1) Criminal Code (Cth) (Count 2)(Sequence 13).

2. The following four offences are to be taken into account on a Form 1 attached to Count 1/Sequence 1 (including three summary possession offences of possess prohibited drug which are each placed on a s 166 Certificate): Supply prohibited drug (16.6g methylamphetamine) s25(1) DMTA . Possess prohibited drug (27 bottles x 50 clonazolam tablets) s10(1) DMTA. Possess prohibited drug (0.47g methylamphetamine) s10(1) DMTA . Possess prohibited drug (31.3g gamma-butyrolactone) s10(1) DMTA .

3. The maximum penalty for both Counts is life imprisonment. Count 1 has a standard non-parole period of 15 years.

TIME IN CUSTODY

4. The offender was arrested on 28 July 2022 and has spent approximately 1 year, 7 and a half months in custody in relation to these offences. It is common ground that any sentence I impose ought be taken to have commenced on 28 July 2022. I propose to take that course.

OVERVIEW

5. The offending is set out in detail in the Agreed Statement of Facts. That document is annexed to these reasons and marked annexure “A”. I do not propose to read it out.

6. In summary the facts are:

Count 1/Sequence 1 and Form 1 offences

1. The offender accepted delivery of a consignment containing 24,242.5g (24.24kg) of Butanediol at an address where he was living. Butanediol is closely related to gamma hydroxybutyrate (GHB). It converts to GHB almost immediately when it enters the body.

2. The consignment was addressed to “James Hype” and declared as a ‘decolorizing agent’. The contact number for the consignment was falsely registered in the name “Andrew Sharkawi”.

3. A search of the offender’s home, where the consignment was delivered, revealed various drugs and drug paraphernalia.

Count 2/Sequence 13

1. The offender imported four consignments that contained GBL: two from Poland falsely addressed to “Tim Fields”, and two from Germany falsely addressed to “John Denny”. The total amount of GBL imported was 43.26kg.

2. The consignments were intercepted before they were delivered. The offender’s role in the importation is established through the numerous phone numbers, addresses, and phone data that were used by the offender in the importation scheme. Banking records show that the offender paid for the consignments.

SENTENCING FOR BOTH COMMONWEALTH AND STATE OFFENCES – GENERAL PRINCIPLES

7. The Offender is being sentenced for offences against both NSW and Commonwealth law. Accordingly, the Court is required to have regard to both Part 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSPA) and Part 1B of the Crimes Act 1914 (Cth) (the Crimes Act).

8. In respect of the state offence (Count 1), the Court is required to have regard to the purposes of sentencing as set out in s 3A of the CSPA as well as the various aggravating and mitigating factors provided for in ss 21A(2) and (3). The Court must not sentence an offender to imprisonment unless satisfied that no penalty other than imprisonment is appropriate: s 5.

9. In respect of the federal offence (Count 2/Sequence 13), the overarching requirement is that the Court impose a sentence which is ‘of a severity appropriate in all the circumstances of the offence’: s 16A(1) Crimes Act 1914 (Cth). Section 16A(2) requires the Court to consider the matters listed in that section to the extent that they are relevant and known to the Court. Section 17A(1) provides that a Court shall not pass a sentence of imprisonment unless satisfied that no other sentence is appropriate in all the circumstances of the case. Section 19AJ prohibits the fixing of a single non-parole period, or the making of a recognizance release order, in respect of both Commonwealth and State sentences of imprisonment.

S5/17A(1) THRESHOLD

10. It is appropriately common ground the threshold for imprisonment under both NSW and Commonwealth Statutory Schemes is crossed in respect of both offences for sentence and the only appropriate sentence for each of those offences, let alone a combination of both is one of full-time imprisonment.

PRINCIPLES OF SENTENCING FOR DRUG OFFENCES

11. General deterrence and denunciation are important considerations in sentencing for drug supply and importation offences. Such considerations will generally outweigh subjective circumstances, particularly in the determination of the total sentence, and condign punishment will be warranted in almost every case.

12. In R v Nguyen; R v Pham [2010] NSWCCA 238, Johnson J (with whom MacFarlan JA and RA Hulme J agreed) summarised the following principles that apply to sentencing for drug importation offences. The Crown submits and I accept that these principles are applicable to this matter:

1. the criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation;

2. problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court;

3. it is the criminality involved in the importation which must be identified – the fact that another person may be characterised as the mastermind does not mean that a person who is responsible for managing the importation into Australia is properly described as having only a middle level of responsibility;

4. although the weight of the drug imported is not the principle factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported;

5. the statements by the High Court in Wong v The Queen; Leung v The Queen (2001) 207 CLR 584 do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant fact in determining the objective seriousness of the offence;

6. as a matter of common sense it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit;

7. the difficulty of detecting importation offences and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case;

8. the sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment;

9. involvement in any level of a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served; the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence;

Role

13. A critical consideration is to determine what an offender did in participating in a drug offence. The Court should have regard to the actual role played by the offender and the activities undertaken by the offender in performing that role.

Quantity and value of the drug

14. The NSW Court of Criminal Appeal has emphasised, on a number of occasions, that in many cases the only factor that can lead to a determination that one matter is worse than another would be the amount of drug involved where otherwise the circumstances of the matter were the same or very similar. The weight of the drug is relevant, for example, as an indication of the potential harm that may be inflicted on the community and the size of any anticipated profit.

15. The value of the drug is relevant as demonstrating the commerciality of the offending, the motivation for the offender to commit the offence and the temptation for others to commit such offending because of the rewards involved.

16. In determining the objective gravity of an importation offence for GBL, it has been said in Victoria that the Court can have regard to the reduced reward differential between GBL and commercial quantities of other drugs when determining the objective gravity for offending. In Director of Public Prosecutions (Cth) v Maxwell (2013) A Crim R 218 at [24] the Court held:

“The offending in the present case may be contrasted with offences that involve complex international operations and millions of dollars of expected profits. This importation involved an online purchase at low cost and with low returns. Her Honour noted the relatively low value for the GBL as compared to other drugs and concluded that “objectively, the offending is at the lower end of seriousness within the range of this very serious offence.””

17. The NSW Court of Criminal Appeal adopted the rational of Maxwell with respect to dealing with the importation of GBL: Petkos v R [2020] NSWCCA 55 at [27]-[28]; Bott v R [2023] NSWCCA 255 at [99]-[100]. However, the amount of GBL imported in Maxwell was three litres, significantly lower than the amount the offender is to be sentenced for importing in the present case, being 43.26kg.

18. To sum up, the quantity and value of the drug together with the financial reward to an offender is but one factor to take into account, together with his role, the amount of drugs involved, the potential harm caused by those drugs, which are all to be considered as part of the instinctive synthesis.

Standard Non-Parole Periods

19. As I have already said, a Standard Non-Parole Period (SNPP) of 15 years imprisonment applies to Count 1/Sequence 1 (supply large commercial quantity of Butanediol). There is no SNPP with respect to the Commonwealth offence. Therefore, it is “neither necessary nor desirable” to fix objective seriousness on a scale for the Commonwealth offence: R v Harris [2015] NSWCCA 81 at [57]. That being said, it seems to me to be artificial, if I am considering objective seriousness for the State offence, by referring to that guidepost that I should then wholly ignore it for the purpose of considering the objective seriousness for the Commonwealth offence. This especially so where the offending quite clearly is at least related as part of one course of criminality.

APPLICABLE PRINCIPLES: STATE OFFENCE (SUPPLY LARGE COMMERCIAL QUANTITY OF BUTANEDIOL)

Objective seriousness – Count 1/Sequence 1

20. The Crown has submitted and I accept, that the following factors are relevant in determining objective seriousness:

1. The offender is to be sentenced for supplying 24.24kg of 1,4 Butanediol. The threshold for a large commercial quantity of this drug is 4kg, meaning the offender supplied more than 6 times the minimum quantity for this offence.

2. The purity level of the drug was high (97.5% pure).

3. The consignment containing the concealed drugs was addressed to James Hype of an address known to the Court. The offender admitted to police that he was the only person who lived at that address. He told the UCO that he was James Hype. The contact number for the consignment was falsely registered in the name of Andrew Sharkawi. These were attempts to avoid detection.

4. The supply involved planning and preparation in organising for the consignment to be delivered to the offender’s home under the false name.

5. Police located drug paraphernalia at the offender’s home including scales, syringes and ice pipes.

6. The offender’s phone was analysed and found to contain images, messages, and contacts that were consistent with the offender’s involvement in drug-related activities.

7. The offender was an active participant in criminal conduct.

8. The offender’s role appears to have been central to the supply of the drug: the consignment was addressed to his home and he and willingly accepted it whilst knowing what it contained.

21. I have already noted that the offender has referred me to what the Court of Criminal Appeal said in Bott v R [2023] NSWCCA at [85] – [87] per Danji J referring to comments by the Victorian Court of Appeal in DPP Cth v Maxwell (2013) 228 A Crim R 227.

22. It is submitted by the offender that the degree of differentiation in prescribed large commercial quantities between different drugs is a poor indicator of whether diminished weight should be given to sentencing factors such as general deterrence for so called “low reward" drugs. The offender’s point is that there can be no bright line and that the analysis in Maxwell's case cannot be inapplicable to the New South Wales Act simply because the New South Wales Act apparently provides for greater differentiation. The offender’s second point is that a proper reading of Bott’s case is that a court is entitled to discriminate between different prohibited drugs but must be cognisant of the fact that the legislature has provided for a degree of discrimination in Schedule One in the first place.

23. Ultimately, I think the offender’s point is that when performing the instinctive synthesis process the Court must consider the weight to be given to sentencing factors such as general deterrence. In the present case the offender submits that because of the likely lower reward involving an offence in respect of butanediol the Court ought to give less weight to that factor than it would for harder drugs

24. Finally the offender has submitted that I should give no weight to the prosecutors reliance upon the purity level of the drug in the absence of any evidence. See Farkas v The Queen (2014) 243 A Crim R 388 at [329].

25. I think there is much to be said for the various submissions made by the offender but nonetheless have concluded that the objective seriousness of the offending giving rise to count one is approaching the mid-range.

Other offences to be taken into account: s 32 CSPA

26. The offences on the Form 1 are to be taken into account when passing sentence for Count 1/Sequence 1 and may lead to an increase in the sentence for that charge: Abbas v R [2014] NSWCCA 188.

27. In this case, the Form 1 offences are all drug offences, being one offence of supply prohibited drug and three offences of possess prohibited drug. Factually they are all similar: each offence relates to drugs that were located when police searched the offender’s home.

28. The Form 1 offences reveal additional criminality to sequence 1. The offences are serious matters to consider when determining the appropriate penalty for sequence 1 and show the offender’s involvement with a range of illicit drugs. I have taken them into account.

Objective seriousness Count (2) /Sequence (13): The Commonwealth Offence: Importing commercial quantity of border controlled drug.

29. Other than the offences on the Form 1, which of course are only matters to be taken into account when considering the State offence, I think all that I have said in relation to the objective seriousness relating to the State offence is applicable to the Commonwealth offence. Taking all those matters into account I think objectively Count 2 - sequence 13 approaches the mid-range of seriousness for offences of these kinds.

SECTION 21A CSPA FACTORS

30. The Crown submits that the following s 21A(2) aggravating factors are relevant:

(d) the offender has a record of previous convictions

31. The offender has a lengthy criminal record dating back to 2017. The offences on his record are largely unrelated to the present offending, however there are a number of convictions for resisting and assaulting police officers and possession of drugs:

• 2017: Assault police officer, fail to comply with requirement to submit to search, behave in offensive manner, resist police, destroy/damage property

The offender was fined and a s 9 bond (as it then was) was imposed for 12 months, which was later called up and a Community Correction Order for 2 years was imposed.

These matters were again called up and an Intensive Correction Order for 12 months was imposed.

• 2017: Assault police, destroy/damage property, use offensive language in public.

The offender was fined and a s 9 bond imposed to be of good behaviour for 18 months.

• 2018: owner not disclose identity of driver/passenger .

The offender was fined $500.

• 2018: Assault police, resist officer, affray, destroy/damage property, behave in offensive manner, intimidate police officer

The offender received an Intensive Correction Order for 20 months.

• 2018: Possess prohibited drug, resist police officer

The offender was fined $600 for the drug offence and received a s 10A conviction with no other penalty for the resist police offence.

• 2020: Drive vehicle with illicit drug present, possess prohibited drug x 2

The offender received fines, a disqualification and a s10A conviction.

• 2020: Assault police x 2, common assault x 3, fail to leave premises when required

The offender received an Intensive Correction Order for 12 months.

• 2020: Resist officer

The offender received an Intensive Correction Order for 8 months.

• 2021: owner of dog which attacks person

The offender was fined $1200.

• 2021: possess prohibited drug x 2

The offender received a Community Correction Order for 12 months.

32. The offender ‘s criminal record is not something he ought to be proud of. It shows a general disregard for the law but in his favour nothing of the severity of these offences features in his past record.

(o) the offence was committed for financial gain (s-21A )

33. The Crown submits that the irresistible conclusion is that the offending was done for financial gain. It is not known how much the offender was likely to profit from the offending, however the amount of the butanediol (the subject of Sequence 1) was over 6 times the amount required for a large commercial quantity implying some significant profits could be expected.

34. I think that is correct but for reasons I will come to I don’t think it is as simple as that. The financial gain the offender hoped for was to pay off drug related debts, not to build his wealth.

35. The Crown submits that the following s 21A(3) mitigating factors are relevant:

(a) the injury, emotional harm, loss or damage caused by the offence was not substantial

36. Due to the drugs being intercepted before making their way into the community, the actual harm caused was minimal. However, the offence is targeted at drugs being caught before they enter the community, so the value of this mitigating factor is not significant.

(k) a plea of guilty by the offender

37. The offender pleaded guilty to this offence in the Local Court and is therefore entitled to a discount of 25% on any sentence that would otherwise have been imposed: s 25D(2)(a) CSPA.

The Offender’s subjective case

38. I am satisfied that the offender who has a long history of drug abuse and addiction, together with mental health issues, became heavily indebted to some criminals. This debt was incurred by purchasing drugs on credit for his own use.

39. It got to the stage where he owed these people approximately $140,000.

40. Sometime in 2022 a group of people, presumably some form of criminal debt collectors, invaded the home where he was living, physically assaulted him and then indicated that they would let him work off the debt by paying his rent and other expenses if he became involved in the importation and sale of drugs for them.

41. Neither type of legal “duress” is relied upon by the offender because it is not contended, nor could it be contended that the offending the subject of this sentence, was as a direct result of these threats and inducements. I do think that the circumstances leading to the offending, whilst consistent with a conclusion that the offender was doing what he was doing for financial gain is rather to mask the true situation which was he was involved in what he was doing so that he could pay off a debt he owed to criminals which debt had been run up by him because of his pre-existing drug addiction. This is not an excuse but does provide an explanation for these crimes. He was clearly worried that to not pay off the debt would cause him harm. All of this in the context of him being a drug addict.

42. The offender has pleaded guilty before me which under the state legislation. This entitles him to a 25% discount on his sentence but which also, is some evidence of genuine remorse and contrition, which is a mitigating factor under section 21 (A)(3)(1).

43. I do accept, and I do so acknowledging the criminal history of the offender that he is genuinely contrite and remorseful but perhaps more importantly is extremely motivated to get free of his drug addiction.

Prospects of Rehabilitation

44. As far as the prospects of rehabilitation of the offender are concerned, which is directly linked to his prospects of reoffending, this case, like so many of these cases, eventually boils down to the question of the prospects of him becoming drug-free.

45. In my judgement, if he can become and maintain a drug-free status he will probably not reoffend and is therefore not a danger to the community but on the other hand if he relapses and continues to take hard drugs he will almost certainly reoffend.

46. I have taken into account his history to date of trying but failing to become drug-free but also my finding that he does appear to be significantly motivated to achieve success. I think he has reasonable prospects of becoming drug-free which means that he also has reasonable prospects of not reoffending.

47. There is a body of evidence to suggest that he has attended a number of courses whilst in prison and successfully stayed off drugs whilst in prison. Whilst I appreciate that it is perhaps easier to become drug-free in the controlled environment of a prison, this is to his credit and is why I am satisfied that he is significantly motivated to getting off drugs.

48. As I have said, the offender is a long term drug addict. Whilst this is not a mitigating circumstance see R v Chapman (2001) NSW CCA 457 at [13] that does not mean it is not relevant. First of all it is relevant in the sense that it provides an explanation (albeit not an excuse for the offending) but secondly gives guidance as to his prospects of rehabilitation and re-offending.

49. As was explained in R v Henry (1999) 46 NSWLR 346 at [398] his drug addiction sheds light on both the objective seriousness of the offence and that there is an absence of any motivation to fund some other serious criminal venture .

50. The offender has submitted that I should take into account in his favour mental health issues. In support of that a report of Kris North psychologist has been tendered however that report whilst indicating that the offender suffers psychotic episodes and other symptoms consistent with various mental health conditions those symptoms are also consistent with his drug addiction including psychotic episodes when he is using or coming off drugs.

51. I think the furthest I can take the relevance of the mental health issue in this case is to identify that the offender potentially has mental health issues which may or may not be tied up with his drug addiction but most certainly are exacerbated by him taking drugs.

APPLICATION OF S 16A CRIMES ACT SENTENCING PRINCIPLES: COMMONWEALTH OFFENCE (IMPORT COMMERCIAL QUANTITY OF BORDER CONTROLLED DRUG)

Nature and circumstances of the offences: s 16A(2)(a)

52. The nature of the offence, and the circumstances in which it was committed, are set out in detail in the Agreed Statement of Facts. I also take into account the matters I have discussed under the heading “The Offender’s Subjective Case”.

53. With respect to the Commonwealth offence of importing a commercial quantity of gamma-butyrolactone (GBL), this is a serious example of this kind of offending. The threshold for a commercial quantity of GBL is 1 kilogram and the pure weight of the GBL imported was 43.26kg, over 43 times the threshold. The offender played an important role in importing the substance into Australia.

54. Regarding the offender’s role in the importation, the Agreed Facts show:

1. The offender imported four consignments that contained GBL: two from Poland addressed to “Tim Fields”, and two from Germany addressed to “John Denny”.

2. These consignments contained, respectively, pure weights of GBL of 10.7kg, 10.82kg, 10.89kg and 10.85kg. The combined weight of the imported GBL for which the offender is to be sentenced was 43.26kg.

3. The contact number for the consignment for sequence one (supply large commercial quantity) had also been nominated as the contact number for the Poland consignments.

4. “John Denny” was a stolen alias, with the real John Denny having lost his wallet and subsequently been the victim of identity theft. A phone with a number registered in the name of the offender showed an image of identity documents in the name of John Denny.

5. An analysis of bank accounts linked to the offender revealed a number of prior transactions in June 2022 in which PayPal payments were made from his accounts to a payee of “INDUSCLEAN” (being the vendor of the GBL). Payments were also made in June and July 2022 to “FORWARD2ME”, which was the consignor company for the Poland consignments and to “MYGERMANY”, which was the consignor for the German consignments.

6. The offender was keenly tracking the arrival of the German consignments into Australia.

7. The offender was integral to the scheme to import border-controlled drugs into Australia.

Contrition: s 16A(2)(f) Guilty plea: ss 16A(2)(g)

55. The standardised discounts applicable to NSW offences do not apply to Commonwealth offences. In relation to Commonwealth offences, when taking into account the guilty plea, the Court should have regard to the fact of the plea, the timing of the plea, and the “degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to the offence” (s 16A(2)(g)).

56. In Xiao v The Queen [2018] NSWCCA 4,the Court of Criminal Appeal held that a sentencing judge is entitled to take the utilitarian value of a plea into account in sentencing for Commonwealth offences, and that whilst there is no requirement to do so, it is desirable that the Court specify the discount applied. I propose to do so. I can see no reason why it should not also be 25%.

57. The subjective value of the plea may also warrant a discount for the Commonwealth offences should the Court be satisfied that the guilty plea and any associated evidence demonstrates genuine remorse, acceptance of responsibility and/or a willingness to facilitate the course of justice. In this case I do consider the pleas to be some evidence of contrition and remorse. I will take that into account.

58. The strength of the Prosecution case may be taken into account in assessing the subjective value of the guilty plea, and the Court may consider whether the Offender’s plea was in fact a ‘recognition of the inevitable’. The Crown case in this matter is strong, with ample evidence linking the offender to the addresses and phone numbers used in relation to the consignments.

59. For reasons I have already given I am satisfied that the offender is genuinely remorseful and contrite and determined to try and rehabilitate himself. I think his chances of doing so are reasonable.

Specific and general deterrence: ss 16A(2)(j) and (ja)

60. General deterrence is an important consideration in matters of this nature, and the seriousness of the offending is such that stern punishment will be warranted in almost every case.

61. The sentence imposed on the Offender must be of a severity such that it will act to deter others from engaging in illicit drug activities of this nature. The sentence must signal that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment.

62. Involvement at any level in a drug importation offence must attract a significant sentence otherwise the interests of general deterrence are not served. The sentence must also reflect the need for specific deterrence, noting the offender’s record. I have given significant weight to these matters.

The need for adequate punishment: s 16A(2)(k)

63. The offending is serious and requires condign punishment.

Offender’s character, age, antecedents, physical and mental condition and background: s 16A(2)(m)

64. The offender is aged 32. He has a criminal record as outlined above. I have already dealt with his drug addiction, mental health, remorse and contrition.

65. The weight and cogency of any third party references is always a matter for the individual assessment of a sentencing judge. There is no general principle that great caution will be exercised in relation to statements made to experts uncorroborated by oral evidence where the report of a mental health professional is admitted without objection.

66. The character evidence on behalf of the offender is cogent and persuasive. I have given it weight.

67. The circumstances under which he committed the offences which I have dealt with under the heading the ‘Offender’s Subjective Case’. These matters I have given significant weight.

Prospects of rehabilitation: s 16A(2)(n)

68. The Crown notes the offender’s record and the evidence outlined in the Agreed Facts that establishes his involvement in the illicit drug trade. His lengthy record would caution against any finding of overly positive prospects of rehabilitation. The offender has also breached court orders on previous occasions, indicating that he has little regard for the court’s authority.

69. As I've already discussed the offender's criminal record does weigh against my assessment of his prospects of rehabilitation however I have taken that into account and have concluded that he does have reasonable prospects of being rehabilitated .

COMPARABLE SENTENCES

70. In the case of federal offences, it is implicit in Part 1B of the Crimes Act that a sentencing judge must have regard to current sentencing practices throughout the Commonwealth. Comparable cases can be considered as yardsticks that may serve to illustrate (although not define) the possible range of sentences available.

71. 43. The High Court made clear in Hili v R; Jones v R (2010) 242 CLR 520 that consistency in federal sentencing is not demonstrated by, and does not require, numerical equivalence:

“Presentation of the sentences that have been passed on federal offenders in numerical tables, bar charts or graphs is not useful to a sentencing judge. It is not useful because referring only to the lengths of sentences passed says nothing about why sentences were fixed as they were. Presentation in any of these forms suggests, wrongly, that the tasks of a sentencing judge is to interpolate the result of the instant case on a graph that depicts the available outcomes. But not only is the number of federal offenders sentenced each year very small, the offences for which they are sentenced, the circumstances attending their offending, and their personal circumstances are so varied that it is not possible to make any useful statistical analysis or graphical depiction of the results.”

TOTALITY

72. The court must have regard to the totality principle to ensure a just and appropriate sentence: s 16B Crimes Act 1914 (Cth). In my judgment the two offences for sentence form part of the offender’s overall involvement with the illicit drug trade and are related in that sense but are otherwise distinct and separate offences. Some concurrency is warranted to avoid the imposition of a crushing sentence, but there must be a degree of accumulation.

CONCLUSION

DISPOSITION

73. Taking all the matters I have mentioned into account and being mindful that any sentence I impose must be such that reflects the overall criminality, but also takes into account of the subjective case of the offender I have concluded that the appropriate head sentence for each of the State offences and the Commonwealth offence is 10 years less 25% to give account to the plea.

74. There needs to be some modest accumulation of these sentences .

75. I have decided that special circumstances exist so that it is appropriate to adjust the minimum non parole period for various reasons, the most important being I think a significant period under supervision will greatly assist the offender’s prospect of staying drug free once he leaves prison. I propose the non-parole period be 50% of the head sentence.

76. The effective head sentence will be 8 years and 6 months (to give effect to partial accumulation) which will commence 28 July 2022 and will expire on 27 January 2031. The effective non-parole period will be 4 years and 9 months to be calculated from 28 July 2022 (to give effect to partial accumulation) and to expire on 27 April 2027 which is the first day the offender will be eligible for parole.

77. Orders:

1. In respect of Count 1(Sequence 1), after taking into account the 25% discount for the plea and the matters on the Form 1, there will be a head sentence of 7 years and 6 months imprisonment to commence on 28 July 2022.

2. There will be a minimum non-parole period of 3 years and 9 months .

3. In respect of Count 2, (sequence 13) taking into account a 25% discount for the plea there will be a head sentence of 7 years and six months imprisonment to commence on 28 July 2023.

4. There will be a non-parole period of 3 years and 9 months to commence on 28 July 2023. The first date the offender will be eligible for parole will be 27 April 2027.

Annexure A

Agreed Statement of Facts  (783260, rtf)

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Decision last updated: 21 March 2024