R v White

[2022] ACTSC 178

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v White

Citation:

[2022] ACTSC 178

Hearing Date:

18 July 2022

DecisionDate:

18 July 2022

Before:

Mossop J

Decision:

See [47]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – importing a commercial quantity of a border controlled drug – gamma-butyrolactone – failure to comply with an order made under s 3LA(2) of the Crimes Act 1914 (Cth) – importation at low end of objective seriousness – failure to comply with s 3LA(2) order at low to mid-range of objective seriousness – discount for guilty pleas – limited criminal history – steps taken to reduce risk of reoffending – significant period of pre-sentence custody – recognizance order imposed

Legislation Cited:

Crimes Act 1914 (Cth), ss 3LA, 19AC, 20(1)(b)

Criminal Code 1995 (Cth), s 307.1(1)

Cases Cited:

DPP (Cth) v Maxwell [2013] VSCA 50; 228 A Crim R 218

R v Colledge [2010] NSWCCA 302
R v Hill, Bakir, Gray and Broad; ex parte Cth DPP [2011] QCA 306; 212 A Crim R 359

Parties:

The Queen (Crown)

Vanessa Lee White (Offender)

Representation:

Counsel

A von Treifeldt (Crown)

E Chen (Offender)

Solicitors

Commonwealth Director of Public Prosecutions (Crown)

Legal Aid ACT (Offender)

File Number:

SCC 62 of 2022

MOSSOP J:

Introduction

1. The offender, Vanessa Lee White, pleaded guilty to the following offences:

(a)One count of importing a commercial quantity of a border controlled drug, contrary to s 307.1(1) of the Criminal Code 1995 (Cth) (CC2021/7085). The maximum penalty for this offence is imprisonment for life or 7500 penalty units, or both.

(b)One count of failing to comply with an order made under s 3LA(2) of the Crimes Act 1914 (Cth), contrary to s 3LA(6) (SCCAN2022/46). The maximum penalty for this offence is imprisonment for 10 years or 600 penalty units, or both.

Facts

1. The facts are agreed and are, in summary, as follows.

Count 1

1. On 8 February 2021 the offender registered an account with Coinspot, software that enables the trading of cryptocurrency. The offender registered the account in her own name, providing a proof of age card and Medicare card as identification.

1. On 25 March 2021 the offender converted approximately $2631.46 worth of Bitcoin to Monero. Monero is considered a more secure form of cryptocurrency than Bitcoin, which provides a higher degree of privacy and anonymity to its traders.

1. On 2 April 2021 the offender sent approximately $1142.66 (calculated according to the market value of Monero as at 2 April 2021) worth of Monero to a United Kingdom-based dark web seller called ‘thehypnotoad’.

1. On 24 June 2021 Australian Border Force officers examined a Royal Mail consignment addressed to Vanessa White at an address in Hughes, Australian Capital Territory (ACT). The consignment was described as “CeraVe Foam Cleanser 1 litre”.

1. The consignment contained a bottle labelled “CeraVe Foam Cleanser 1 litre” with a clear liquid inside.

1. A sample of the clear liquid was tested with a presumptive result for gamma‑butyrolactone (GBL).

1. Forensic examination of the liquid established:

(a)a total gross weight of 1127.5 g;

(b)an average purity of 92.1 - 92.3 percent; and

(c)a calculated total pure weight of 1040.6 g of GBL.

1. As at July 2021 the estimated street value of this GBL seizure was between $11,070 and $11,275.

1. On 30 June 2021 police obtained authority for a controlled delivery of the consignment.

1. On 6 July 2021 police reconstructed the consignment by substituting the GBL with an inert substance and repackaging the consignment. Police installed a surveillance device in the consignment.

1. At about 12:16pm on 8 July 2021 a police officer purporting to be an Australia Post employee delivered the consignment to the offender’s home. The offender took delivery of the consignment.

1. Shortly after taking possession of the consignment, the offender said “whoo, fuck yeah”.

1. At about 12:22pm police attended the offender’s home for the purpose of executing a search warrant.

Count 2

1. At about 1:26pm on 8 July 2021 police issued an order pursuant to s 3LA(2) of the Crimes Act requiring the offender to provide police with passwords or other assistance necessary to access her electronic devices. The offender read and understood the order.

1. The offender declined to comply with the order.

1. Subsequent examination of the offender’s electronic devices revealed the following information:

(a)The offender’s phone contained an application called “Exodus”, a cryptocurrency wallet.

(b)The offender used cryptocurrencies Bitcoin and Monero.

(c)The offender’s laptop computer used a Linux-based operating system called “Tails”, on which software called “Tor Browser” was installed. Tails and Tor Browser provide anonymity to its users by routing the internet connection over several different places on the internet, such that it cannot be traced back to its source.

(d)The application “Electrum Bitcoin Wallet” was also installed on the offender’s laptop.

Arrest and execution of search warrants

1. At about 12:24pm on 8 July 2021 police arrested the offender.

1. During the execution of a search warrant, police seized the following relevant items:

(a)the substituted consignment, located at the back of a corner cupboard in the kitchen;

(b)a blue diary, located on the kitchen bench;

(c)a mobile phone, located on the kitchen bench;

(d)a laptop with an attached USB, located in the living room. 

1. The diary contained handwritten entries made by the offender, including;

(a)“the hypnotoad  

GBL orderd [sic] on 1-4-21”

(b)Entries relating to various dark web sellers including drug type, price, quality and shipping policies.

Record of interview

1. On 8 July 2021 the offender participated in a cautioned record of interview. The offender told police the following:

(a)her address in Hughes, where she lives with three of her four children;

(b)no one else has access to the premises;

(c)she and her children regularly order packages to the premises;

(d)she was the only person present at the premises that morning; and

(e)her mobile phone is subscribed in her name.

1. Telephone intercepts prior to the offender’s arrest indicate that the offender was experiencing financial difficulties during the period of offending.

Objective seriousness

1. In relation to the importation offence, although the offence provision does not require the identity of the particular border controlled drug to be known, in the present case the offender did know the identity of the drug. The quantity of the drug was just over the commercial quantity. She intended to profit from the importation. The street value was, when compared to commercial quantities of other drugs, not very great although the level of profit compared with the level of investment was significant. The offender was the person fully responsible for each step in the importation process. There was a relatively low level of sophistication of the operation. It was simply an internet purchase although necessarily involving the dark web and the special browser required to access it. She was not part of a wider importation or trafficking operation. Overall, the objective seriousness is at the low end for this very serious offence.

1. In relation to the s 3LA order the offending is unremarkable. It simply involved a refusal to provide passwords to permit access to her electronic devices. In the present case that did not prevent police from ultimately obtaining access to the offender’s phone and laptop. It is in the low to mid-range of objective seriousness for this offence.

Subjective circumstances

1. The offender is currently 49 years old. She has a limited criminal history.

1. Her subjective circumstances are set out in a pre-sentence report dated 8 July 2022, a letter from Uniting Children and Families ACT, a letter from the offender’s child, a letter from ACT Corrective Services and a letter from the offender herself.

1. The offender was born and raised in Sydney, New South Wales (NSW). She experienced a stable and supportive environment with her mother, stepfather and siblings.

1. The offender ceased mainstream education following the completion of Year 8 at a private high school. The offender obtained long-term, stable employment in the beauty therapy industry within a family business. The offender claimed to have ceased her employment due to an abusive relationship. The offender intends to return to the business to support her family.

1. The offender has four children, two of which were born to a previous partner who is now deceased. The offender currently has two dependent children, who have recently returned to her care.  The offender has engaged with support and programs to create a safe environment for her children. She has reportedly been single for the past thirteen months following the breakdown of a relationship with an abusive partner who is now in custody after being sentenced for offences committed against her shortly prior to her arrest.

1. The offender has a history of drug use, beginning with cannabis use at the age of 15. At age 16 she had begun using methylamphetamine sporadically. At the age of 25 the offender had become addicted to the drug and was injecting it daily. The offender claimed to have used the drug sporadically over a 10-year period, prior to ceasing use approximately five years ago. Since being released from custody the offender has completed numerous urinalysis tests, all of which have returned a negative result.

1. Whilst the offender was in custody she was employed by the Alexander Maconochie Centre as a peer mentor for women. In a letter from ACT Corrective Services, it is noted that the offender was able to maintain strong lines of communication between detainees and staff. The offender acted with professionalism and was considerate of all parties involved in supporting the Women’s Correctional Centre. The offender obtained five certificates while in custody following the completion of a work safety course in the construction industry and several rehabilitation programs.

1. The offender stated to the author of the pre-sentence report that she was motivated by her ex-partner’s drug addiction and financial gain.

1. The author of the pre-sentence report assessed the offender as being a medium risk of general reoffending. This assessed risk is primarily due to the offender’s long history of drug abuse issues, mental health in relation to family violence and her anti-social ex‑partner, anti-social companions, unemployment and lack of leisure activities. It appears the offender has taken steps to address these risks by engaging in assessments, programs, treatment and counselling to address these issues which may reduce her risk of reoffending. She was assessed as suitable for a good behaviour order with a medium level of intervention by ACT Corrective Services, suitable for a community service work condition and suitable for an intensive correction order.

Criminal history

1. The offender’s criminal history in the ACT is limited to four driving related matters on one occasion in January 2018 and one further driving related matter in May 2018. The offender’s criminal history in NSW is limited to one incident in 2017, involving damage to property and use of offensive language in or near a public place/school. None of these prior offences are of significance in relation to the present offending.

Plea of guilty

1. On count one, the importation offence, the offender indicated a plea of guilty on 21 April 2022 following negotiations with the Commonwealth Director of Public Prosecutions. The offender was formally arraigned and pleaded guilty on 5 May 2022, after the matter was committed for trial. No trial date had been set. No criminal case conference had occurred. In the circumstances, a discount of 20 percent is appropriate.

1. On count two, the s 3LA offence, the offender pleaded guilty on 9 March 2022 in the Magistrates Court, before the matter was committed for trial. Having regard to the fact that the plea occurred in the Magistrates Court, a 25 percent discount is appropriate.

Time in custody

1. The offender was in custody from 8 July 2021 until being granted bail on 21 April 2022. The offender spent 288 days (nine months and 14 days) in custody.

Consideration

1. Obviously a very significant feature of the sentencing exercise in the present case is the fact that the maximum penalty for the importation offence is life imprisonment. That reflects the gravity of the offending so far as the legislature is concerned.

1. The Crown referred to three comparative cases involving the importation of GBL. They are DPP (Cth) v Maxwell [2013] VSCA 50; 228 A Crim R 218; R v Colledge [2010] NSWCCA 302 and R v Hill, Bakir, Gray and Broad; ex parte Cth DPP [2011] QCA 306; 212 A Crim R 359. These cases demonstrate dispositions by way of fine (Colledge) to very significant custodial sentences (Hill). Counsel for the offender pointed to the table of sentences which form an annexure to the decision in Maxwell which include a significant number of single judge decisions.

1. It is significant in Maxwell that although it is not permissible to apply a judicially discerned gradation of harm between different drugs, it is permissible to take into account the level of reward between different categories of drugs because this reflects the differing level of incentive in terms of potential profits and hence the need for general and specific deterrence.

1. The decision in Colledge must be seen as a case very much dependent on its particular facts involving investigation by the offender as to whether or not the drug was legal and a belief that it was, having no intention to make a financial gain from the importation, and the primary judge’s finding that he had “not the slightest doubt that [the defendant] would never offend in the same way again”: at [14].

1. Hill involved significantly larger quantities of the drug and a more sophisticated criminal scheme involving a number of different people.

1. In the present case, the offender has a significant history of drug use. However, she has had a significant period in custody and her conduct whilst in custody has been very favourable. She remains subject to supervision by Child and Youth Protection Services (CYPS) and appears motivated to remain drug free for the benefit of her children. She is now free of the malign influence of her former partner. Her period in custody, the absence of involvement with her former partner, the supervision by CYPS and the return of the children are all consistent with a significant motivation on her part to remain drug free and, as a consequence, crime free.

1. In the present case, the Crown did not contend that a period of full-time imprisonment beyond that which had been served on remand was required. In my view, the starting point on the importation offence is a sentence of 34 months’ imprisonment reduced to 27 months on account of the plea of guilty.

1. On the charge of failing to comply with the s 3LA order, a very significant sentencing consideration is the need for general deterrence of such offending. Without significant penalties there are strong incentives for persons to refuse to comply with those orders. However, it must also be taken into account that the s 3LA offending is closely associated with the underlying drug offences and there must be a degree of concurrency. On that charge the starting point is a sentence of 16 months’ imprisonment reduced to 12 months’ imprisonment on account of the plea of guilty. It will be cumulative as to six months on the substantive offending but otherwise concurrent. This gives an aggregate sentence of 33 months’ imprisonment. Because the overall sentence is not greater than three years it is necessary to make a recognizance release order: s 19AC of the Crimes Act.

Orders

1. The orders of the Court are:

1.On count CC2021/7085, the offender is sentenced to imprisonment for 27 months commencing on 3 October 2021 and ending on 2 January 2024.

2.On count SCCAN2022/46, the offender is sentenced to imprisonment for 12 months commencing on 3 July 2023 ending on 2 July 2024.

3.The sentences are suspended after the offender has served nine months and 14 days imprisonment upon the offender entering into a recognizance pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) in the sum of $100 and to be of good behaviour for a period of two years.

4.Note that the period of nine months and 14 days has been fully served.

I certify that the preceding forty-seven [47] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.

Associate:

Date: 20 July 2022