R v Singer
[2020] VCC 1005
•8 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-19-02258
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL VINCENT SINGER |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 July 2020 | |
DATE OF SENTENCE: | 8 July 2020 | |
CASE MAY BE CITED AS: | R v Singer | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1005 | |
REASONS FOR SENTENCE
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Catchwords: Import a commercial quantity drug (GHB); Import marketable quantity of border controlled drug (GBL); Possess drug of dependence (ecstasy and cocaine)
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms N. Kohn | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr I. Crisp |
HIS HONOUR:
Paul Vincent Singer, you pleaded guilty yesterday to one charge of importing a commercial quantity of a border controlled drug, as well as one charge of importing a marketable quantity of a border controlled drug. The charges relate to two different drugs, 4-Hydroxybutanoic Acid, or GHB, in relation to Charge 1 and
Gammabutyrolactone, or GBL, in relation to Charge 2.
You have also pleaded guilty to a charge of possession of a drug of dependence and that single charge relates to a small quantity of ecstasy and cocaine. That last charge is, of course, a State offence. The two earlier charges are Commonwealth offences.
You were born on 27 October of 1991 and were 27 years old at the time of the offence, but are now 28 years of age. You have no criminal history at all. Nothing prior or subsequent.
The summary sets out the thresholds for commercial and marketable quantities of the drugs. It also sets out the maximum penalties for the three offences on the indictment. The Federal offences are punishable by a maximum of life imprisonment in the case of the commercial quantity offence and 25 years' imprisonment for the marketable quantity offence. The State offence has a five year maximum term of imprisonment, unless the court is satisfied on the balance of probabilities that the offence was not committed for any purpose related to trafficking, in which case it is a 12 month maximum term of imprisonment. Here the Crown concede that the lower penalty provision should apply and whilst that concession does not bind me, given the small quantity of the two drugs of dependence involved, I am so satisfied on the balance of probabilities. Hence the lower maximum applies for the State offence.
Facts
The circumstances of your offending are set out in a short summary, dated 1 June 2020. It was read aloud yesterday by the prosecutor, Ms Kohn. The written summary was marked as Exhibit A on the plea. Mr Crisp, who appeared on your behalf, told me that it was an agreed summary. In such circumstances, I see no need to descend to the full details of the facts in these, my reasons. They are contained in that summary and I will not stray beyond those agreed facts.
It is simple enough offending. You had travelled overseas in late-June 2019 and returned home on an international flight into Tullamarine on 24 July of 2019. Upon arrival back at the Melbourne airport, you declared in your incoming passenger card, that you were not carrying any prohibited items, including illicit drugs and you lied in that respect.
You were subsequently asked some questions about some bottles of water you were carrying and lied about their contents. You gave a false account as to what you were using the water for. Those bottles were examined and presumptive tests disclosed positive results for 4-Hydroxybutanoic Acid, or GHB for short. Images on your phone mentioned drug use and drug purchases. Later more complete examination disclosed that one bottle had 1,113.9 grams of GHB. The other had 21.8 grams of the other drug, GBL. The summary sets out the multiples of the marketable quantity represented by the quantities, as well as the relationship to the commercial quantity spelt out in the Regulations. You were interviewed and made a large number of admissions. A search warrant was executed upon your house and that search disclosed a small quantity of ecstasy and cocaine, a small set of digital scales,
50 small clip-seal bags and 30 fillable clear capsules. You were held in custody for 26 days until your release on bail on 19 August 2019.
You pleaded guilty at the earliest stage at a committal mention last November.
Matters raised in mitigation
There were a number of matters raised on your behalf by Mr Crisp, who had prepared a written outline of submissions marked as Exhibit 1. Those matters in mitigation included the following:
· Your early guilty plea;
· Your high level of co-operation with the Authorities;
· The presence of remorse;
· Your age and lack of any criminal history;
· Your efforts since being bailed and very favourable prospects of rehabilitation; and
· The increased custodial burden posed by the Prison Authorities’ response to the COVID-19 virus.
Mr Crisp made submissions as to the nature of your offending, saying that it was unsophisticated and unaccompanied by any large criminal hierarchy or prospect of vast or even substantial financial gain, given the nature of the drug. Though it is true that this was a commercial quantity of one drug and a marketable quantity as well in relation to Charge 2, he submitted that you were a person heavily addicted to GHB and were bringing that drug back into the country, to some extent, for your own use.
I cannot act on any submission that the GBL, the subject of Charge 2, was entirely for your own use, as that would constitute a complete defence under the Criminal Code and would involve you traversing the plea. That cannot be allowed. Still,
Mr Crisp was submitting that the case could be easily be contrasted with importations of some of the powder drugs, in the sense that they are extremely valuable and often are connected up to large and sophisticated criminal gangs. The commerciality in relation to those sorts of drugs is a given. This drug is plainly far less valuable.
He took me to some decisions including the case of Maxwell [2013] VSCA 50, though accepted that a prison term was warranted here. He argued that it was possible to release you forthwith onto a recognizance release order. He relied upon reports from Mr Bilyk, Mr Healey and Dr Sullivan. Also a very positive CISP report from Kyle Miller, a favourable report from a drug counsellor, Mr Mohan, and references from your father, your brother, a friend and your employer. Your brother and father were called to give evidence yesterday and they are back in court today supporting you.
Prosecution submissions
The prosecutor, Ms Kohn, made some brief oral submissions. They were brief, as there were very detailed sentencing submissions, which were marked as part of Exhibit A. I was reminded of the provisions of s.16A (2) of the Crimes Act1914 (Cth), a provision which sets out many of the matters that I must have regard to under the Federal sentencing regime. The submissions, both written and oral, were really quite uncontroversial and dealt with matters of established principles, such as the relevance of the quantity of the drug, the significance of awareness or knowledge of the type and quantity of drug, the importance of general deterrence and the need for adequate punishment.
The prosecution written submissions incorrectly stated that it is a complete defence to a charge of importing such drugs as you imported, if an offender proves on the balance of probabilities that he neither intended to sell any of the drug nor believed that another person intended to sell any of the drug. That is only a complete defence in relation to the marketable quantity charge. See the Criminal Code 307.2.4.
So plainly the suggestion floated in your interview and by Mr Crisp on your behalf in relation to Charge 2, could not be acted on, as that would traverse the plea on that charge. Section 307.2.4 did not impede me from considering as part of the motivation, your intention to use some of that drug yourself. Nor did that provision have any application in relation to Charge 1 at all. I was free to make an assessment as to your motivation.
The prosecution argued that unlike some cases where there is a hierarchy, this was your importation. You were the principal. You were the only person who had planned and executed this importation. Hence you knew the amount of the drug and had taken all these steps yourself to import it and there must have been, they said, some profit in mind. They did not suggest it was a sizeable one and the figure of $4,000 to $5,000 was suggested by the prosecutor to be the value of two litres of the GHB in Victoria.
The prosecutor referred me to some cases, including the case of Maxwell [2013] VSCA 50, which explained why a far less punitive stance in terms of sentencing had been adopted in this State in relation to the particular drugs that you had imported. It came down to the enormous reward differentials. There was a chart of other sentencing decisions placed before me by the prosecutor, not to mention the chart actually contained within that decision of Maxwell.
The prosecution argued that a sentence involving your return to prison was required here, but submitted that it would be open to deal with you with a release mechanism by way of a recognizance release order.
Background
I turn now briefly to your personal family background. Your background is set out in detail in the report of Mr Healey and Dr Sullivan and to some extent, in your father's letter and there is no reason for me not to accept it. I do accept it, but simply see no need to restate it all. You are 28 years of ages and have no prior criminal history at all. Very sadly, you lost your mother when only three years of age and have no memories of her. That was a very bad start in life and your father in his letter describes the ongoing impact as you grew up. You and your younger brother were brought up for about eight to 10 months by your auntie and uncle, of whom you speak very fondly. Then your father took the reins. You had a strange sort of upbringing it seems to me, growing up on licenced hotel premises that your father was converting into a theatre restaurant. It became the Titanic restaurant down in Williamstown. You went to the local primary school and then onto the local high school. You are plainly a bright man and it would seem underachieved at school. You went on though to do an advanced diploma in Information Technology at RMIT and that has been the field you have worked in for most of your adult life, with some jobs from time to time in hospitality. You have had a variety of relationships that are spoken of in the reports.
You have had serious issues with a large range of drugs for a long period. I have no doubt that they became a large part of your life. From comments you have made to various experts, I suspect that you felt that you were a functioning user of the drugs. I am not sure there is such a thing as a ‘functioning addict’. It is true that you had no problem finding and holding down employment, but no doubt they had a role in holding you back from fulfilling your true potential. Mr Healey held some concerns as to the residual effect upon you of your past long-term use. You have had some health issues, with a diagnosis of ulcerative colitis, but that is not in any way relied upon as increasing any custodial burden. It has flared up recently, as it often does at times of stress. This is a stressful time for you coming to Court to hear your fate.
You worked overseas in the United Kingdom for a significant period of time and have been interested in dance and music festivals, where these sorts of drugs are rife.
I am prepared to accept that personal use had a large enough role to play in relation to your foolish decision to bring in these drugs. I will come back and discuss that later in these reasons.
You spent 26 days in custody before being bailed onto the CISP program and you did very well on that program. There is a very strong report from Mr Miller, as well as the report from Mr Bilyk and the drug counsellor, Mr Mohan. You did everything asked of you and it seems had a major shift in your attitude to drugs and how they had impacted upon you. You certainly needed a major shift, for when you started out on that CISP program, you were not convinced that drugs had been a major issue at all and that spells out just how unrealistic you were at that point. After all, you were before the Courts in relation to one charge with a maximum penalty of life imprisonment. You have family support from your brother and your father who, as
I say, were both present in Court yesterday and are both back here today. There is a strong reference from one of your friends, as well as from your employer. You are back in the workforce and doing very well. You continued to see the psychologist, Michael Bilyk, even well beyond the end of the CISP bail program.
I have mentioned the reports of Dr Sullivan and Mr Healy. I am not going to descend to the detail of those reports. They are useful, in that they set out your level of functioning and a detailed personal history. Part of that background is your addiction to drugs and I do not ignore that. They also comment on your rehabilitative prospects and the things that you need to do to enhance them, principally to continue to abstain from the use of illegal drugs. I take the reports into account as far as I am able to but, they do not greatly advance your position. There is not much by way of mitigation in those two reports.
Your counsel at one point suggested that the sixth limb from the case of Verdins [2007] VSCA 10 had some application here and pointed to paragraph [66] of
Dr Sullivan’s report. That did not come close to enlivening that limb. I asked him to take me to the condition giving rise to the application of the sixth limb and Mr Crisp took me to your drug addiction. That condition would not engage any limb of Verdins. It came down to him saying that sending you to prison would impact upon your employment prospects and rehabilitation and hence the sixth limb from that case ought apply. Well, there is no basis to find that any of the six principles from that case have any application here at all. They just do not. That is not to say that your rehabilitation is unimportant. Of course it is not.
Guilty Plea
I turn now to the matters raised in mitigation. Firstly to your guilty plea. You have pleaded guilty at the earliest stage. That is important. Witnesses have been spared the need to give evidence. The community has been spared the time, cost and effort of a committal hearing in the lower court or a trial up in this Court. The sentence
I intend to impose is less than would have been imposed if you had been found guilty after a trial. You have facilitated the course of justice. You also facilitated the course of justice by cooperating very fully with The Australian Border Force and the Australian Federal Police, as well as by consenting to forfeiture of some items. After a brief moment of trying to bluff your way out of trouble when first spoken to by the Border Force, you then made full admissions and backed that up by pleading guilty and at the earliest stage of the proceedings. This is all deserving of a substantial discount in sentence.
Contrition/Remorse
A guilty plea is often, but not always, indicative of some remorse or contrition. Here it was a very strong case against you, so not doubt that featured in your decision to plead guilty. I sense that you have changed a good deal since you were apprehended, especially in the period from being bailed where you have made some real gains. I am sure it has permitted you to recognise the seriousness of your crimes and the actual precariousness of your position. Some of the written materials refer to the existence of remorse and so too the evidence from your father and brother. I am actually prepared to find that you do have contrition for your offending. I take that into account in mitigation.
COVID-19
I accept that the COVID-19 virus and the response to it by those running the prisons, would undoubtedly increase your prison burden. It is impossible to know precisely how it would impact upon you if imprisoned. There are some lockdowns in place, but they do not exist across all prisons, so I cannot assume that they would necessarily apply to you in the future. Visits have already been suspended and so have some courses and programs. I cannot know how long those things would persist. If returned to prison, you would be held in a 14-day isolation period upon reception. That is not an easy start. According to a Corrections publication, which I mentioned to your counsel, any prisoner who is suffering disruption or deprivation due to the prison response to the COVID-19 virus, would automatically be considered for emergency management days. It is not exactly clear what that would mean for you. The fact is, the extent of any relief would be determined on a case by case basis. It will not be attracted merely by the suspension of personal visits.
What lies ahead? It is terribly difficult to forecast the impact of this virus, either on those in the general community or those in prison. Two months ago things looked very bleak. Two or three weeks ago they had looked up very markedly with a significant easing of restrictions. Two days ago things looked far less promising with spikes in infection and further lockdowns, including the first “hard” lockdown in this country. Yesterday afternoon metropolitan Melbourne was plunged into a six week lockdown with a return to the strong 'Stay at Home' directives. I believe it is reasonable for me to conclude that there are no prospects in the short term of any
in-person visits for any prisoner. That would undoubtedly make prison life harder.
I accept that there would be an increased custodial burden in your case for these reasons and I take this into account in your favour.
Addiction
Your counsel pointed to your addiction to drugs as your motivation for the offending.
I do not doubt the fact of addiction, though it is not the complete answer to these crimes. I am not satisfied that the drugs were exclusively for personal use and nor could I be as a matter of law in relation to Charge 2, as that would involve you traversing the plea. Mr Crisp recognised that fact and trod pretty carefully the course of the plea.
Being addicted is not of itself of any sizeable mitigatory value. Many people who commit crimes do so in the setting of an addiction to drugs. Because of the drugs, disinhibited by the drugs, or to feed the addiction, or all of the above.
I am satisfied on the balance of probabilities that your motivation for the offending was, in part, to obtain a quantity of GHB for your own use. I say 'in part', as I am not satisfied that all the drugs were destined for personal use. However I believe this goes some way to reducing your culpability. You were not part of some large criminal organisation bringing in drugs of vast value for inevitable on-sale and massive profit. This importation, which I am not satisfied was entirely for personal use, can though be contrasted with that sort of highly criminal and commercial setting. The role that your addiction played is something that can be addressed in the endeavour to avoid any repeat offending. You have already taken some very decent steps, which leads me now to state my conclusions as to your prospects of rehabilitation. What then are those prospects?
Rehabilitation
You have committed serious crimes, but you are no major criminal. You have never offended in the past or since. I am sure your addiction had a strong role to play in your decision to offend. Profit was not your major consideration. You have a supportive family, friends and employer. You have taken some very decent steps already along the road to rehabilitation. That much was plain from the written materials and re-enforced by the evidence from your father and brother.
You have also seen the inside of a prison for over 20 days, been deeply affected by that experience and then buckled down to the CISP bail and done everything asked of you with a major shift in your attitude. You have a good employment record and are back in the workforce and working hard and productively. You are engaged with your family.
I have a sense of your not really coming to grips with or recognising in advance the gravity of your decision to bring these drugs into the country. I have a feeling that your addiction perhaps permitted you to distinguish your conduct from that of the run of the mill drug importer, in terms of offence seriousness. No doubt the fact of being arrested and interviewed and charged will have a role to play in deterring you. So too the time spent already in prison and so too the sentences that I shall impose. You need to abstain from illegal drug use. You are recognising that now. You have been drug-free. There is the marked shift in attitude spoken of in the very positive CISP materials, as well as the letters and evidence from your family and the letters from your employer and Mr Gabbedy. I believe that you have very good prospects of rehabilitation and a very low risk of ever offending in this way again. For that reason, the weight to be given to specific deterrence and community protection can be moderated.
General
I turn now then to make some general remarks.
You are charged with importing the drugs concerned and of course you did. You cannot point to having some minor or peripheral role. This was your importation. No one else was involved at all. You were then the principal.
It is a serious offence to bring any border controlled drugs into this country, much less drugs in a commercial or marketable quantity. I must punish you and deter you and others.
As I said a moment ago, I cannot help but think that you downgraded the seriousness of your conduct in your mind, owing to the nature of the drugs and the fact that they were being brought in, in large part, to provide for your own drug use. Those things, I suspect, permitted you to rationalise the conduct and make it less serious in your mind. There is no suggestion that this was a purposeful mission overseas to obtain the drugs and bring them back. The fact is you travelled overseas and once over there, at some point, decided to bring back in some drugs.
Higher Courts though have often enough emphasized that those who engage in the importation of drugs into this country must expect, if caught, to suffer significant punishment.
It is an inherently serious offence to bring drugs into this country. However I do not treat these crimes as falling anywhere near the normal level of seriousness, for the reasons I have announced. Though there was a commercial quantity and a marketable quantity, these particular drugs are worth nothing like many of the other drugs which come into the country. I am satisfied that you took this decision and your addiction had a not insignificant role to play in taking it. You were looking to, in large part, supply your personal use. I am not saying that was the exclusive purpose, but it was a large enough factor here. There is, for these reasons, in my view, a sizeable reduction in your culpability. This was not a sophisticated importation by any stretch of the imagination, it was you bringing into the country low value drugs, in large part, for personal use.
The State offence is the least of your problems and falls at a low level. I will not further describe it.
The Federal crimes though are punishable by enormous maximum penalties, being life imprisonment and 25 years imprisonment. You knew, or at least thought you knew, the nature and quantity of the drugs you were importing. No doubt you thought you had purchased two litres of GHB. In fact you had a little over 1.1 kilos of the pure GHB and 21 grams or so of the GBL. You had also used some, of course.
There is no suggestion of duress or threats, as sometimes exist.
This was a self-funded exercise.
This is a quantitative based regime. I am not to be making judgements as to the relative harmfulness of a particular drug.
The quantity is what it is. The quantity of drug always assumes some importance, but it is by no means the only or even most important consideration. The fact is though that a commercial quantity charge would be the same charge levelled at players engaged in a large criminal syndicate bringing in a shipping container with many tonnes of drugs worth hundreds of millions of dollars. Your commercial quantity is a small bit over the threshold and it is worth a pittance by comparison to many other instances of importation. The marketable quantity of GBL is not a sizeable one at all.
It is nigh on impossible to stop drugs being imported into this country. It is offending that is very hard to detect and that is one of the reasons why general deterrence normally has such an important role to play.
This Court must send a clear message to any likeminded person thinking of being engaged in this sort of activity.
Consistency of sentencing is an important consideration and I do pay regard to it.
I have looked at the other cases involving sentencing for this type of offence to which I was referred by each party. The chart placed before me is of some use. Maxwell’s case has some important principles which I must apply to my task. It also has a table of cases. That decision explains in some detail why consistently there have been far less severe sentences imposed for importation of the types of drugs which you imported. It comes down the enormous differential in reward and how that impacts on the weight to be given to the various purposes of sentencing. Maxwell’s case explains the reasons for the material reduction in culpability, as well as the reasons why there can be some reduction in the weight that can be given to specific and general deterrence in this sort of case. One of the reasons general deterrence is usually so important is the need to neutralise the lure to likeminded offenders of the potential large financial rewards on offer. In a case such as yours, we are not dealing with much by way of financial reward at all.
There is though nothing in that case suggesting that importing such a substance in a commercial quantity is anything other than a serious offence. It should not be overlooked that the case of Maxwell involved a Directors’ Appeal as to the inadequacy of sentence. The sentences ultimately undisturbed were three years imprisonment on one importation of two litres and two and a half years imposed on an importation involving a little over 1.1 litres. What the case spelt out is the reasons why sentences were consistently lower. I apply those principles to my task. Indeed the submissions as to penalty made by the prosecution recognised all of this. It would be a rare case indeed for a principal offender in relation to a commercial quantity importation of, for instance, heroin or cocaine to hear the Director of Public Prosecutions suggest that a recognizance release order was open. Such an order only comes into play if the sentence is three years or less. The making of that submission involves the recognition by the prosecution of the key differences between this case and so many others cases brought before the court.
Whilst the table of cases prepared by the prosecution had some common features, having read those cases, there were a number of differences in the personal circumstances of the offender or the offence circumstances.
Those other instances of sentences being imposed by other Courts do not stand as some precedent which I must apply, unless able to distinguish them from your case. They are not precedents at all, but merely examples of the sentencing discretion exercised in those other cases. Another Judge in those other cases would have been entirely within their rights to impose a different sentence, as there is no such thing as one correct sentence.
What I must do is exercise my discretion in your case. I must take into account your personal circumstances and the circumstances of your crimes. They are unique. The answer is not provided by what has happened to another offender in another case at the hands of another judge.
I take into account all of your counsel’s submissions, as well as all of the materials placed before me on the plea. I have regard to those relevant matters set out in s.16A(2) of the Crimes Act (Commonwealth).
In the course my reasons, I have expressed myself perhaps using language more commonly used in a State sentencing exercise, which of course is the exercise which I must undertake in relation to Charge 3 on this indictment.
That is really just a matter of using the language that I am used to employing as a Judge when passing sentence, for most often I pass sentence in relation to State matters. It is just a matter of the terminology. The concepts are, after all, the same concepts, whether spoken of in the Sentencing Act 1991 or in the Crimes Act (Cth)1914.
In either case, so whether considering the State or the Commonwealth sentencing exercise, prison is a disposition of last resort. I must only impose a proportionate sentence and a sentence of a severity as appropriate in all the circumstances of the case. Each Act uses different language to describes these important principles or concepts, but what it comes down to is this; if there is a sentencing alternative not involving actual confinement that can achieve all the purposes of sentencing, then confinement must not be selected. In this case, the prosecution argue that you must be returned to prison and serve a period over and above the 26 days you have already served. Your counsel, Mr Crisp, conceded that there was no alternative but to impose a term of imprisonment upon you, but submitted that you might be released forthwith.
Importation of a commercial quantity of a drug can cover a vast array of conduct with massive differences in culpability, as well as scale and reward. So too, for that matter, importation of a marketable quantity. I have to pass an individual sentence for the individual crimes committed by the individual offender. Whilst, of course,
I must take into account the maximum penalties, I must not let them swamp or overwhelm my consideration of other matters, including the many matters which exist in mitigation in this case.
I must also have regard to totality of sentence. There is an obvious connection between the two Commonwealth offences. As I have described earlier, you intended to bring into the country the two litres of GHB. The charges are broken down owing to the fact that ultimately there were two different drugs. I have reviewed the total effect of the sentences I will impose to ensure that they are commensurate with the overall gravity of your offending.
I stood the matter down yesterday and had you assessed for your suitability for a community corrections order. I told you that my calling for that report did not bind me to release you on such an order, or at all. I told you that you should take no comfort from the Court calling for that report and that you may still be sent immediately to prison today and I meant what I said. I wanted to explore all options. I wanted also to read afresh all of the materials, which I have done overnight and again this morning.
You have been assessed as suitable for such an order, which is exactly as I would have expected. It is also a quite favourable report and makes recommendations as to treatment considerations into the future.
Charge 1
So, then I move to pass sentence in this case. First in relation to Charge 1 on the indictment. That is the charge of importing a commercial quantity of a border controlled drug. I will actually have you remain seated, as this will take quite some time.
There is no doubt in my mind that I must impose a term of imprisonment on the first Commonwealth charge. That is conceded by your counsel. It is, after all, a charge of importing a commercial quantity of a border controlled drug, punishable by a maximum term of life imprisonment.
On that charge you are convicted and sentenced to a period of two years and three months, or 27 months' imprisonment.
The question then for me is, how much, if any, of that sentence you should serve before being released into the community? Mr Crisp argued that it was open to release you immediately. The Commonwealth Director of Public Prosecutions argued that you must return to prison and serve a further period in prison. They are the arguments of the parties. Because they are arguments, well they do not bind me. I have to exercise my own sentencing discretion. Whilst I do not ignore any of the argument or submissions placed before me by either party, I am not bound by them. I do not ignore the submission made on behalf of the Commonwealth Director. I just do not agree with it.
I believe that the effect of the dispositions I intend to impose on the Federal offences will give adequate weight to the various purposes of sentencing in play in this case. I believe, therefore, that I do have an alternative to the imposition of an immediate term of imprisonment upon you. I believe that the orders that I will shortly pronounce can satisfy the various needs of sentencing, including the need to punish, to protect the community and the need to give adequate weight to specific deterrence, general deterrence, denunciation and rehabilitation. I believe that I can deal with you without imposing an immediate prison term upon you.
RECOGNIZANCE RELEASE ORDER
So on Charge 1, as I said a moment ago, I am going to impose a term of 27 months' imprisonment upon you.
Pursuant to s.20(1)(b) of the Crimes Act 1914 (Cth), I propose to order that you be released from this Commonwealth sentence forthwith, that is, immediately upon giving security in the sum of $3,000 to comply with the following single condition. It is a simple condition.
· That you be of good behaviour for a period of three years following your release on this recognizance.
I am going to place you on a community corrections order in relation to the second Commonwealth charge and I will deal with that shortly.
Effect of Recognizance Release Order
I am though obliged to explain to you the effect of this recognizance release order. You should really think of it as a suspended sentence. That is what it is. You will be released today from this Federal sentence, upon entering that recognizance. Recognizance is a long word, it is not one in common usage or readily understood. It is a promise, that is what it means. The promise that you will be making by signing the document in one moment. Your promise in the sum of $3,000 to be of good behaviour for the period of three years.
Should you commit any further offences in that three year period, should you not be of good behaviour, you would breach my order.
Breach it and you would be liable to forfeit the sum of $3,000. Well I suppose that is serious enough, but far more serious though is the fact that you would then be brought back before this court in breach. Before this Judge, as we deal with our own breaches. A court in a breach proceeding has a variety of options to consider. A court can vary or extend the order. The court can take no action. The court can impose a fine, or the court can revoke the order and then order that the offender serve the period of imprisonment that remains to be served. Here of course, that will be the full term, 27 months.
Now, on any breach, I would be required to consider all of those options that are listed in s.20A(5) (c) of the Commonwealth Crimes Act, but let me give you some words of advice. You are best to work on the theory that if you breach this recognizance release order, you will be ordered to serve the term of imprisonment held in suspense, being 27 months. Every day of it.
Now think about that. Possessing or using drugs would breach this order. Any act of bad behaviour would breach this order. Even breaching, for instance, the 'Stay at Home' direction would breach this order. You would put yourself in peril by committing any offence, so possessing or using drugs, well that is something you have done and have done over a number of years. Well, do so at your peril. I am required to tell you that you have the power yourself to apply for variation of this order, but having told you what I must tell you under the Act, it is, I must say, very difficult for me at this stage to think of any circumstance at all that would lead to any successful variation application.
So you understand that in relation to Charge 1, I propose to impose a term of imprisonment of 27 months, but have that essentially suspended over your head for a period of three years. Are you prepared to enter that recognisance or promise?
OFFENDER: Yes, Your Honour.
HIS HONOUR: All right, grab a seat then and I will have that prepared and I will clarify with counsel whether there is anything else I need to do, in terms of the wording of that document, but I will do that in one moment.
Charge 2
As to the second Commonwealth charge, that of importing a marketable quantity of a border controlled drug, I believe it is open to me to impose a community corrections order in relation to that matter. I may only do that if you consent. I need to explain the order to you and to obtain your informed consent, so you need to listen carefully.
I intend to impose in relation to that matter, a two year community corrections order. You will be convicted obviously and I will impose a two year community corrections order. Now, these things have been explained broadly to you yesterday in the assessment and I have a document spelling out that to you. But I still need to explain to you what all this means. I do not want anyone ever coming back in front of me saying, 'I didn't really know what I was obliged to do under that order', or 'I didn't know what could happen if I breached the order.' Well, no, and people do know when they appear in front of me, because I explain it and I am going to do that and take some time to do it and make no apologies for it.
You have never been before a court before. You have never been on these orders. You need to understand what you are actually consenting to.
So it is a two year order. It commences today and it runs to 7 July 2022.
You must attend at the Melbourne Community Corrections Services at Franklin Street, Melbourne, within two clear working days. That will probably be by way of a phone contact, as I understand it, but we will give you the details of that.
Community corrections orders have got mandatory terms. They apply to everyone who has one, so they apply to you.
The first of those is, you must not commit another offence for which you could be imprisoned during the course of the order. So in the next two years, because that is the length of this order, you commit any offence punishable by imprisonment, you breach the order. Possessing a drug of dependence is punishable by a term of imprisonment. It does not depend upon a court sending you to prison for the offence that is committed. It is whether in theory a prison term is available and it is for virtually every offence. So you stay out of trouble. If you do not, you will breach the community corrections order. Indeed you would also breach the recognizance release order obviously.
Secondly, you must comply with any obligations under the Sentence Regulations. That really relates to your need to turn up unaffected by alcohol or drugs, in a fit state to conduct any treatment or assessment or work under the order. Further:
You must report to and receive visits from the Community Corrections officer.
You have got to let them know within 2 clear working days of any change of address or job. All right, so no one is saying you cannot move address, no one is saying you cannot move job, just keep them informed and do so, you know, within two days. Do so in advance.
You must not leave Victoria without first getting permission to do so. Well that is not that easy for anyone at the moment to leave Victoria, but in the course of this order, you cannot just get up and leave. You cannot go off to some sort of dance festival over in Amsterdam. Hopefully you will not go to dance festivals, for obvious reasons. But I am not saying you would not be allowed to go interstate when we are free to travel again, you do not just get up and do it, you need to speak to Corrections. If you are doing well on the order, if you are doing well in terms of the unpaid work and you are ticking all the boxes, no doubt they would give you permission to travel, if there is a good reason, but do not just get up and leave, all right?
You must obey all lawful instructions from the Community Corrections officer.
Well they are pretty straightforward, they are the mandatory terms. You breach any of those, you breach this order.
There are also tailored conditions that can be applied, which I do apply here and that is for a combination of reasons, to both assist, in terms of your ongoing rehabilitation and treatment needs, but also unmistakably to punish you. An order such as this involves an aspect of punishment, even if there is no unpaid work, but here there is. That is one of the conditions that I am going to insert.
You must perform 175 hours of unpaid community work over the period of this order. Now, in the short-term, I think we are going to run into difficulties in terms of unpaid work. There have been some issues thrown up by COVID-19 virus. But it is a reasonably modest amount of hours. That is what you have got to do, 175 hours of work over a two year period.
That is the first of the special conditions.
The second is, you are going to be under the supervision of Community Corrections officer for the full period of this order.
Thirdly, you must undergo assessment and treatment (including testing) for drug abuse or dependency, as directed by the Regional Manager.
Finally, you must undergo any mental health assessment and treatment, as directed by the Regional Manager.
That is the full suite of mandatory terms and special conditions. You breach any of them, you breach the order. Well, you would be extremely foolish to breach the order. You would be extremely foolish to breach any of these orders actually, when you think about it, because at this stage today, you are going to be going home under your own steam. You are going to leave this court shortly, having signed these documents and return to the community. You did not know whether that would occur or not. Well, it is going to occur. You have avoided an immediate term of imprisonment. And that is the position. You can continue and you are going to continue to avoid that simply by complying, by being of good behaviour, by not breaching the recognizance release order, by not breaching the community corrections order.
As to the community corrections order, let me give you again a bit of advice. You have not had any dealing with courts before or these orders before. It is amazing how many of them are breached. They are breached by people who will be doing what you will be doing in a moment, consenting to an order, saying that you consent and probably leaving court with a sense of relief that you are leaving under your own steam. But it is amazing how many of those people I see again and when I see them again, generally they head out the door to your right. They avoided that on one occasion, but not on a second. Do not put yourself in that position.
Now, many of these people breach them by committing offences in the currency of the order. Well, all I can say to you is, just do not. It is very simple. If you need assistance in terms of drug issues, seek them out, that is critical, because otherwise you will breach this order. The best way of complying with this order, is to actually do what most people do not do and that is to form a decent relationship with your Corrections officer, all right? Treat them decently and appropriately and respectfully. Do not muck them around. If there is a particular reason why you are not going to be able to turn up at a particular supervision appointment or unpaid work session or treatment or assessment, let them know. Get on the phone. Straightaway, not two weeks later, that people ring up a month later and say, 'Look, I didn't turn up because I had an infected toenail', all right? You will be breached if you do that. Get on the phone, ring them up there and then and they will be extremely reasonable and reschedule. But do not just put your head in the sand.
Again, it is amazing how many people leave court under their own steam and breach these orders. They come back and there must be an aspect of people thinking, 'Well, the court case is finished and it's ended well.' Well, it has not ended, that is the answer. It will end for you three years from now, in circumstances where I am satisfied that there has been no criminal conduct occurring and you have behaved well for that three year period of the recognizance release order. The CCO is on foot for the next two years, all right?
So do not put yourself in that pack of people who come back by way of breach and you should not, because you have got very good prospects of rehabilitation. This is one of the reason that I am actually imposing the orders I am imposing. But for those things, I would have sent you to prison immediately, no question about it. But there is a range of factors at play here that persuade me that this is the appropriate sentencing structure, that is, the term of imprisonment is suspended and the community corrections order in play. Do not breach it, all right?
What happens if you do breach it? Well, what I would then be required to do, is act judicially. I would listen to anything that was said on your behalf and make judgments as to the nature of the breach of the community corrections order to assess the seriousness of it, to assess the extent to which you have made efforts on the community corrections order and I would then have to make judgments as to what to do with you on the breach. So I cannot tell you in advance exactly what I would do, but let me again give you a word of advice. There are only very limited options open to a sentencing judge faced with a person breaching one of these orders and the most likely outcome if you breach your community corrections order in this court, is to have the order cancelled and then to be re-sentenced.
Well, they are the various conditions and mandatory terms that apply and I will ask you in a moment whether you consent to the order. But as I say, do not, do not, please, in respect of either this community corrections order or the recognizance release order, think that you would be able to come back to court and say, 'Give me another chance'. Do not work on that theory, all right? Work on the theory that you have received a disposition that pays regard to the various matters in mitigation that have been placed before me. You have heard the Crown, the prosecutor here representing the Commonwealth Director of Public Prosecutions call for you to be sent back to prison. I am not doing that, all right? And I am not doing that for the reasons that I have announced to this point, I am extending to you a level of mercy here, for good reason, in my view, but do not expect that you can come back and say, 'Look, I’ll have my second chance now'. This is your chance, all right?
Breach either the CCO or the recognizance release order and you really should be left in no doubt that you are going to be heading out that door to start a prison term. Pretty straightforward.
Mr Crisp, I am assuming your client will consent. Do you want to have a go to have a quick chat to him and just - - -
MR CRISP: No, he'll consent, Your Honour.
HIS HONOUR: All right.
MR CRISP: Yes.
HIS HONOUR: All right, well again, I will ask you then, will you consent then to this community corrections order, Mr Singer?
OFFENDER: Ah, yes, I do, Your Honour, and appreciate the um consideration, thank you.
HIS HONOUR: All right. And you understand the effect of the conditions of this order?
OFFENDER: Yes, Your Honour.
HIS HONOUR: Yes. All right.
For someone like you, it should not be that hard. You have had a level of structure in your life that many people sitting in the dock do not have. You have got family support. Holding down a job is something that most people in the dock dream about. You do it. You have got that ability to actually have some structure and that should make compliance with this order something that should not be beyond your grasp. The only hiccup for you, I reckon, is if you get back into the drugs. If that occurs, it is going to be disaster for you, for your life generally, but also it threatens to bring you back by way of breach of both these orders, you understand?
OFFENDER: Yes. Yes, Your Honour.
HIS HONOUR: And to that extent, if you would let me say, Corrections, the Corrections officer who will be appointed, they are not going to come swinging back to court bringing you back by way of breach if they get wind of the fact that you have had a bit of a slip-up. They need to know if you have had a slip-up, so they can assist you. So do not be shy about that with them. If there are any sort of issues, raise them with them, all right?
Anyway, look, I will have those documents prepared. Grab a seat then for a second. I have not dealt with Charge 3. I should.
Charge 3
It brings me to Charge 3 on the indictment. That is a charge of possession of a drug of dependence. Well, it is a possession of a small quantity of cocaine and ecstasy.
I do not believe that that offence even warrants a term of imprisonment, such a sentence would not be proportionate, in my view. On that charge, you are convicted and fined the sum of $1,000.
Ms Kohn, I have pronounced the details of that sentence, in terms of Charge 1, the subject of the recognizance release order and I am looking at the order that I have just had prepared. It is him being released under the relevant provisions forthwith, upon him giving security by a recognizance of $3,000 to comply with the following conditions, and there is only one, that the defendant is to be of good behaviour for three years. And then there are the various other matters that spell out what I have to explain to him and the reasons why I have imposed this sentence that is imposed in relation to the importation of commercial quantity. It is a 27 month term and I have decided that he is to be released forthwith, if he complies with the conditions of this order, there being only one. Is there anything I have overlooked in terms of that order then, or not?
MS KOHN: No, Your Honour.
HIS HONOUR: So that, as far as you are concerned, that fits the bill, at least in terms of the Act and what I have to pronounce?
MS KOHN: Yes, Your Honour.
HIS HONOUR: All right, I will have that dealt with and likewise the community corrections order, you will understand, is for the second of the charges, that is, the marketable quantity charge. It is a two year order. It commences today and it runs for two years from today. It has those various conditions. As far as you are concerned, that complies with the actual legislative framework, as brought into play in the Commonwealth regime?
MS KOHN: Yes, Your Honour.
HIS HONOUR: Yes, all right, well I will have those documents signed then. I will have those come down to the Bar table and Mr Crisp, if you would have them signed in the appropriate place, and also the authorisation, in terms of the items to be disposed of.
MS KOHN: Thank you, Your Honour.
MR CRISP: May I approach the dock, Your Honour?
HIS HONOUR: Yes, of course, yes.
MR CRISP: Thanks. I just need to fill in one of the forms as a witness, Your Honour.
HIS HONOUR: No.
ASSOCIATE: I can witness it.
HIS HONOUR: All right, well I will have copies of these made in a moment.
If you would stand up again then, Mr Singer.
Do you confirm then that you have signed the recognizance release form relating to that 27 month term of imprisonment that now essentially is suspended over your head for the next three years?
OFFENDER: Yes, Your Honour.
HIS HONOUR: You understand that you must be of good behaviour for the next three years, failing which you would breach that order?
OFFENDER: Yes, I do, Your Honour.
HIS HONOUR: And secondly, you confirm that you have signed the community corrections order? That is a two year order, as I have said. You have signed it under the words, 'I understand the effects and the conditions of this order and consent to it being made', is that so?
OFFENDER: Yes, I do, Your Honour.
HIS HONOUR: That order, I should have explained. Normally there is a requirement to attend in person within two clear working days. There is a phone number on that document. You will need to actually make contact with them in that same timeframe. Get on the phone to them today and get that out of the way but you will have a copy of those documents.
Grab a seat again then please. Thank you.
I have dealt already with Charge 3.
Section 17A
Under the Commonwealth Crimes Act 1914, I am required to state the reasons for proceeding to impose a term of imprisonment on Charge 1. I believe the various matters I have referred to in these reasons explain why a prison term is required here. No other sentence was appropriate, given the nature and gravity of that crime, as was explicitly conceded by your counsel. Of course, as you know, by the barest of margins, you have avoided, for the moment, the service of that sentence, as you will be released immediately in the manner that I have described.
Again, hopefully my reasons will explain why I am taking what I acknowledge to be an unusual course. There are a large number of matters in mitigation, including your age and lack of any criminal convictions, the earliest of guilty pleas, cooperation and contrition. There are also, in my view, very good prospects of rehabilitation here and a very low risk of re-offending in this way. You have come a long way already. The CISP report of Mr Miller is very encouraging and sending you back to prison does not, in my view, in any way enhance community protection or adequately recognise your efforts, all of this in a setting where custodial conditions are far more onerous than usual, owing to the impact of the response to the COVID-19 virus.
Indeed returning you to prison may well set you back in your rehabilitation and that would represent a loss, both to you and to the community. The community after all has an interest in your rehabilitation. There is also the material reduction in culpability and the moderation of general and specific deterrence owing to the Maxwell matters discussed earlier in my reasons. The low value of the drug is conceded by the prosecution. Additionally, I am satisfied on the balance of probabilities that a sizeable enough part of your motivation for importing these drugs was to secure your own supply of the drug, given your addiction.
Had I been satisfied that this was a pure profit-making exercise, let me make very plain to you and to others, I would have sent you to prison immediately.
Now, I know that it is common enough for counsel conducting a plea to refer the Court to other sentences imposed, no doubt in the name of consistency of sentence. There is very often, I believe, an aspect of cherry-picking of cases. Cases that are selected for no other reason than to place before the Court a less punitive outcome. That happened in this case with Mr Crisp citing the NSW case of Colledge [2010] NSWCCA 302. Colledge was a case dealt with in 2010 which is itself a good reason for exhibiting significant caution. We know a lot more about this drug than we did back then. Further, Colledge gave evidence on the plea as to his lack of knowledge that it was even illegal to import the substance. That evidence was accepted by the sentencing Judge. The disposition was very much driven by those facts and is virtually irrelevant to my task.
Why then am I mentioning this as I come to the end of my reasons? It is not unreasonable to think that sometime down the track some defence practitioner may latch on to the sentence I have imposed in this case as illustrating the sort of sentence often enough imposed for a commercial quantity importation. It simply is not. Ordinarily, importation of a commercial quantity of any border-controlled drug will lead to a substantial immediate prison term and most often a sentence of a dimension not even permitting consideration of a recognizance release order. The outcome in this case is unique to this case. It is a most unusual one and is arrived at as a result of the combination of the large range of features I have spoken of, things which I am confident are highly unlikely to exist in other cases.
6AAA
I have reduced your sentence because you have pleaded guilty at an early stage. But for your guilty plea, I would have imprisoned you on the Commonwealth charges for a period of four and a half years. I would have fixed a non-parole period of
34 months, or two years and 10 months. That statement is to be noted in the records of the Court.
I make no s.18 or s.16E(2) declaration in relation to the 26 days that you have served by way of pre-sentence detention. I have had regard to that period and the impact of it in reaching the view that I can pass the sentences which I have passed, but do not think that it will be declared if you come back in breach of this recognizance release order. It will not.
Let me see if there are any other matters that I need to deal with.
Ms Kohn, firstly to you, any other matters that I need to deal with?
MS KOHN: No, Your Honour.
HIS HONOUR: All right. Mr Crisp, any matters from you?
MR CRISP: No. No.
HIS HONOUR: No, all right, well thanks each of you for your assistance and your client can leave the dock once I have left the Bench.
All right, well that completes the matter.
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