R v Woods

[2019] NSWDC 401

District Court

New South Wales

Medium Neutral Citation:	R v Woods [2019] NSWDC 401
Hearing dates:	14 June 2019
Date of orders:	17 June 2019
Decision date:	17 June 2019
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	See paragraphs [54] to [57]
Catchwords:	CRIME — Drug offences — Commonwealth offences — Import border-controlled prohibited drug — “dark net” — 3,4‑methylenedioxymethamphetamine — cocaine CRIME — Drug offences — Supply prohibited drug SENTENCING — Mitigating factors — Good character SENTENCING — Mitigating factors — No record of previous convictions SENTENCING — Commonwealth offences —Mitigating factors — Plea of guilty SENTENCING — Subjective considerations on sentence — Age of offender SENTENCING — Subjective considerations on sentence — Special circumstances
Legislation Cited:	Crimes (Sentencing Procedure) Act Criminal Code Act Drug Misuse and Trafficking Act
Cases Cited:	Muldrock v The Queen (2011) 244 CLR 120 Xiao v The Queen [2018] NSWCCA 4
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Christopher Woods (Offender)
Representation:	Counsel: P Lowe (Crown) P Lange (Offender)   Solicitors: A Soukie (Hanna Legal) (Offender)
File Number(s):	2017/00229228

SENTENCE

1. HIS HONOUR: The offender pleaded guilty in the Local Court and adhered to those pleas to the following offences; that between 24 November 2014 and 29 March 2017 at Clyde he imported a marketable quantity of a border‑controlled drug, being 3,4‑methylenedioxymethamphetamine and cocaine; that is charge sequence 1. There is a second offence that between 26 July and 2 August 2017 at Clyde he imported a marketable quantity of a border‑controlled drug being 3,4‑methylenedioxyamphetamine; that is charge sequence 20. Both those offences are Commonwealth offences being offences under s 307.2(1) of the Criminal Code Act and have a maximum penalty of 25 years imprisonment and/or a fine equivalent to 5,000 penalty units.

2. There are three State offences for which the offender also stands for sentence. The first State offence is that between 17 May 2017 and 6 June 2017 at Bligh Park, he did, on three or more occasions during a period of 30 consecutive days, supply a prohibited drug other than cannabis being 3,4‑methylenedioxymethamphetamine for financial or material reward. An offence of ongoing supply is an offence under s 25A of the Drug Misuse and Trafficking Act and has a maximum penalty of 20 years imprisonment and/or a fine equivalent to 3,500 penalty units.  That offence is contained in charge sequence 12.  When sentencing the offender on charge sequence 12, he asks that I take into account a further ongoing supply offence which is on a form 1 for which he acknowledges his guilt.  That offence is contained on charge sequence 11 and is an ongoing supply offence which occurred between 12 April and 11 May 2017 and also concerned the same drug that is the subject of charge sequence 12.

3. The second State offence is an offence that on 27 July 2017 at Wilberforce, the offender supplied a prohibited drug being cocaine; that offence is charge sequence 22. The third State offence is that on 27 July 2017 at Wilberforce, the offender supplied a prohibited drug being an amount of psilocin which was not less than the indictable quantity. That offence is contained in charge sequence 26. Those two offences are offences under s 25(1) of the Drug Misuse and Trafficking Act and have a maximum penalty of 15 years imprisonment and/or a fine equivalent to 2,000 penalty units.

Facts

4. I turn then to the facts which are agreed.  The facts are somewhat lengthy, seven pages in length.  The following is taken from them; a Strike Force Kirby commenced in December 2016 and was instigated to investigate the importation and supply of prohibited drugs by this offender and a Shorna Reinhardt.  During the investigation, it was identified that the offender was involved in the importation of marketable quantities of 3,4‑methylenedioxymethamphetamine, which I will refer to as MDMA, and cocaine from the "dark net", as it is referred to in the facts, as well as the ongoing supply of MDMA.  In terms of background, the facts set out what is meant by this concept of the “dark net” on the internet.

5. The offender admitted he had set up various post boxes which were leased solely by him.  They included a post office box at Kellyville, one at Rose Hill and one at North Richmond.  He also, in doing so, nominated his then‑residential address in Wilberforce, and had provided relevant identification.

6. In relation to the Commonwealth offences, the facts are as follows.  The Clyde International Mail Centre conducts the screening and sorting of intentional mail articles destined for delivery within New South Wales.  The centre identified prohibited drugs in five articles between 23 November 2014 and 29 March 2017, which were addressed to the offender's various post boxes and his residential address.  There were five separate importation offences between those dates and the offender imported a net weight of 24.7 grams of MDMA and 14.05 grams of cocaine.

7. The first importation governed by charge sequence 1 occurred on 24 November 2014; the article concerned did not identify a sender.  The country of origin was identified as the United Kingdom.  The article was addressed to the offender in his own name and to a particular post office box.  The article concerned contained a gross weight of 1 gram of the relevant drug, being 3,4‑methylenedioxyamphetamine.

8. The second importation that falls within that offence occurred on 29 June 2016 when a particular item was seized at the mail exchange.  The article identified the sender as someone from the Czech Republic; the article was addressed to the offender care of his residential address.  It contained a gross quantity of 18.8 grams of MDMA.

9. The third importation is encompassed within sequence 1; the facts of that are that on 8 March 2016, an article was seized at the international mail centre in Clyde.  It did not identify a sender.  The country of origin was identified as the United Kingdom and the article was addressed to the offender using his own name and at his residential home.  This particular article contained 13.5 grams of cocaine.

10. The fourth importation, the subject of sequence 1; the facts of that importation are that on 18 September 2016, another article was seized at the international mail centre in Clyde.  It was identified as being from a sender who was from the Czech Republic.  The article was addressed to the offender in his name and to his residential address.  That article contained 4.98 grams of MDMA.

11. The final importation that falls within charge sequence 1 occurred on 29 March 2017 when an item was seized at the international mail centre in Clyde.  No sender was identified but the country of origin was said to have been the Netherlands and the package concerned was addressed to the offender at his residential address.  It was found to contain 0.55 grams of cocaine.

12. In terms of the second Commonwealth offence being the second importation offence, being charge sequence 20, there were two separate importations between 26 July 2017 and 27 August 2017.  The net weight of MDMA imported was 257.25 grams.  Again, there were items stopped at the international mail centre in Clyde.  The first was on 26 July 2017.  It was an item that, on the face of it, was coming from the United Kingdom.  It was addressed to the offender care of a particular post office box in Rosehill.  It was found to contain 117.48 grams of methylamphetamine which was concealed within a protein powder satchel.  The purity of the drug was 76% and the net weight was 89.28 grams.  On 27 July 2017 the offender admitted to relevant officers that he had ordered the MDMA and confirmed another order was placed in the amount of 125 grams which was due to arrive.

13. On 22 August 2017, another article was seized at the international mail centre.  It appeared to have come from the United Kingdom and it was addressed to the offender care of a particular post office box in North Richmond; it was found to contain 139.77 grams of MDMA, the purity being 71% which produced a net weight of 99.24 grams.

14. In terms of the facts for the State charges, on 15 March 2017, a Controlled Operation Authority came into existence.  In terms of the charge on the form 1, charge sequence 11; between 12 April 2017 and 11 May 2017, a total of 10.55 grams of MDMA was purchased by an undercover officer from the co‑offender, Ms Reinhardt, on four separate occasions.  At the relevant time, the other material before me establishes she was in a relationship with offender.  The facts set out that it is agreed the offender knowingly supplied the prohibited drugs to the co‑offender for the purpose of receiving a financial and material gain for each separate supply.  In total, the 10.55 grams of MDMA was supplied for the total sum of $1,280.  The supplies occurred on 12 and 20 April 2017 and on 4 and 11 May 2017 when Ms Reinhardt, met with an undercover officer.  The details of those transactions are set out in para 8 of the agreed facts.

15. In terms of the facts for the ongoing supply matter, which is sequence 12, the substantive count; between 17 May and 6 June 2017, a total net amount of 45.44 grams of MDMA was purchased by two undercover operatives from the offender and the co‑offender on three separate occasions.  The facts record that it is agreed the offender knowingly supplied and took part in supplying those drugs to the undercover officer and did so for the purpose of receiving a material gain for each separate supply.  The particulars of the supplies are set out in para 9 of the agreed facts.

16. About 5.30am on 27 July 2017, the offender was arrested and he was conveyed to Windsor Police Station.  The police searched his home in Wilberforce and during the search a locked safe was recovered from underneath his bed and the offender told police there was an ounce of cocaine inside the safe.  Upon opening the safe the police, using a PIN number provided by the offender, located four resealable bags of white powder.  The white powder was later analysed and it produced a net weight of 34.67 grams of cocaine.  Those facts relate to charge sequence 22.  In relation to charge sequence 26, being one of the supply counts, there was also inside the safe a clear resealable bag containing an amount of dried mushrooms which when later analysed was confirmed to be psilocin.  The total mass of that substance was identified as 25.3 grams.  He admitted in his subsequent interview with the police that he purchased it online.  Whilst the commercial quantity for psilocin under the Drug Misuse and Trafficking Act is 25 grams, it is an agreed fact that the Crown cannot prove beyond reasonable doubt that the offender knew the quantity exceeded the commercial quantity.

17. There was evidence retrieved from the offender's mobile phone and computer depicting a large amount of data which recorded his access to various websites on what is referred to as the "dark net"; there were tick lists and price lists.  The offender identified the cost of various prohibited drugs as well as used encrypted messaging.

18. On 27 July 2017, the offender participated in an electronically recorded interview with the police.  He made a number of relevant admissions in terms of his obtaining of the drugs over the internet, the leasing of post office boxes, knowing of course that what he was doing was illegal and the selling of drugs of various amounts of money and the nature of his relationship with Ms Reinhardt.

Assessment of the Objective Seriousness of the Offences

19. I turn then to my assessment of the objective seriousness of the offences.  In relation to the two Commonwealth offences, I am required to sentence the offender pursuant to Part 1B of the Crimes Act (Cth).  In doing so, I am to take into account the matters listed in s 16A(2) of that legislation to the extent that those matters are known to the Court.  I have had regard to what is essentially a checklist in that provision in addressing both the objective seriousness and the subjective case of the offender.  I have already referred to the facts concerning the two importation offences.

20. In relation to the offence contained in sequence 1, there were five separate importations over roughly a two and a half year period with two border‑controlled drugs, cocaine and MDMA.  The offender was the principal organiser of those importations insofar as the Australian end is concerned and did so over what is called the "dark net".  There was some level of planning involved given the use of the “dark net” and a number of post boxes, although I note the parcels were addressed to his own name and in some instances to his home address.  In total there was 24.78 grams of MDMA and 14.05 grams of cocaine.  Clearly, the importations were done for financial gain although the evidence before me is that the offender was a cocaine user at that time.

21. The marketable quantity of MDMA is .5 of a gram and for cocaine it is 2 grams, so the quantities were well above the marketable quantities.  The commercial quantity of those two drugs under the Commonwealth's code is half a kilogram and 2 kilograms respectively so the amounts, the subject of sequence 1, are well below the commercial quantity.  I consider the importation offence in sequence 1 to be well below a notional midrange offence.  In relation to the importation offence contained in sequence 20, the two importations involve the importation of the equivalent of 89.28 grams and 99.24 grams of pure MDMA.  This in total is less than half the commercial quantity but well above the marketable quantity.

22. In terms of the offender's role it was, as with the first importation offence, that of a principal as he was the organiser of the importation at the Australian end if I can use that expression.  The degree of organisation is similar to that in relation to sequence 1.  While weight of the drug is only one factor to consider in determining objective seriousness, clearly this offence is far more serious than the first offence when regard is had to the offender's role; the fact that at that time the offender was no longer a user of MDMA and the amount imported.  I consider this offence to be a little less than a notional midrange offence in terms of objective seriousness.

23. In terms of the State offences, sequence 12 involves the ongoing supply of 44.44 grams of MDMA.  The amount of money derived from the sale of the three transactions that constitute that offence was relatively small.  I note, financial gain is inherent in the offence and is not an aggravating factor.  The supplies were to an undercover officer so, fortunately, the drug did not enter the user market,  although it is trite to say that the offender did not know that that was the case. I note the quantity supplied is well below the commercial quantity for MDMA under the State legislation.  Similar comments can be made in relation to sequence 11, which is the offence on the form 1, which I am to take into account when sentencing on count 12.  Clearly, its presence on the form 1 results in an increased sentence on sequence 12 in accordance with the principles discussed in the guideline judgment concerning taking matters on a form 1 into account when sentencing.  This offence is a serious offence but well below a notional midrange offence.

24. The offence in sequence 22 concerns the finding of 34.67 grams of cocaine in a safe at the offender's premises.  It too is well below the commercial quantity for cocaine under the State legislation.  Clearly, it was possessed, at least in part, for the purposes of supply.  Given the amount concerned was well below the commercial quantity, I consider the offence to be well below a notional midrange offence.

25. The offence in sequence 26 concerns the finding by police of 25.3 grams of dried mushrooms, later shown to be psilocin, in the safe in the offender's room. The commercial quantity, under sch 1 of the Drug Misuse and Trafficking Act is 25 grams so the amount involved is a little over the commercial quantity.  The offender is not, however, to be sentenced for supplying the commercial quantity as that is not the offence to which he has pleaded guilty, the Crown having conceded that it could not prove beyond reasonable doubt that he knew that quantity exceeded the commercial quantity for that drug.  I consider this offence to be a little below the midrange level of objective seriousness for such offending.

Offender’s Subjective Case

26. I turn to the offender's subjective case.  He is currently 25 years of age.  He was only 20 years of age as at the date of the first importation caught by the offence in sequence 1.  I think I should have some regard to his relative youth as at the time he commenced his involvement in these offences, the offences being committed between the ages of 20 and 23. 

27. He has no criminal history and I cannot find beyond reasonable doubt that his lack of criminal history was in some way used in the commission of the subject offences.  In these circumstances, his lack of a criminal record entitles him to some leniency in this sentence.  He has been in custody since the date he was arrested being 27 July 2017 and the sentences will be backdated to commence on that date.

28. There is evidence before me, which I will shortly discuss, which supports a finding that he was of general prior good character before the commission of these offences and that too, in my opinion, should lead to further leniency being extended to him. 

29. In terms of his subjective case, there are before me a sentence assessment report; a report of Dr Olav Nielssen, the well‑known psychiatrist, dated 12 June 2019, a number of testimonials from family members and friends, a document under the hand of Dr Rosemary Ambler, concerning a younger sister of the offender and notes from the offender's Corrective Services file.  The offender also gave evidence before me on Friday confirming the background information contained in the documentary material.

30. In terms of his family background, the sentence assessment report records that the offender was living with his parents at the time of the offences and he continues to have their support and will reside with them once released from custody.  A large number of family and friends were present in Court in support of the offender last Friday when I heard the sentence proceedings and there a number of such people here today.  He is the eldest of four children with a younger brother and two sisters, one of whom has an intellectual disability.  The evidence before me indicates that he is close to and supportive of that particular sister.  The impact of his incarceration upon her is something I have had regard to in the general mix of factors that impact upon sentence.  The material before me indicates that the offender was brought up in a good and loving home.  He appears to have not had trouble at school but left before completing year 10 to work in the family's air‑conditioning business.

31. In terms of his education and employment history, the sentence assessment report records that since leaving school, the offender has worked with his father in the family business servicing air conditioners.  His father has confirmed his willingness to provide the offender with fulltime employment upon his release from custody.  In custody, he has worked as a sweeper in his wing with positive reports.  It is recorded that his behaviour is considered generally compliant and that he gets on well with officers and inmates.

32. In terms of his substance use, the offender told Dr Nielssen that he began using MDMA when he was around 17 years of age and that he used that drug until he was about 20 years of age when he commenced to use cocaine.  He confirmed that in his evidence before me, and it appears that he has seldom used MDMA since turning 20.  He told Dr Nielssen that his use of cocaine had, at times, been as much as four or five grams a night.

26. In terms of his psychological and psychiatry history, Dr Nielssen found no signs of a neurological disorder and diagnosed a substance use disorder in remission.  While the offender had reported being depressed after arrest, which one might think is understandable, Dr Nielssen did not consider that he appeared to be depressed when interviewed by him.  In terms of his attitude to the offence, the sentence assessment report records that he justified his offending stating:

"It was driven by the need to financially assist the family business.  He claimed that the family business was in monetary trouble and that his spending was for financial gain.  He was considered by the author of that report not to demonstrate any insight into his offending.  Dr Nielssen, however, considered that he had an appropriate degree of contrition for his conduct and changed perspectives on substance use."

34. I gained the impression that he has some limited insight into the real seriousness of his offending when he gave evidence before me.  In terms of the future and his risk of re‑offending, I note he was assessed as having a medium to low risk of re‑offending in the sentence assessment report but Dr Nielssen considered that he has good prospects of rehabilitation.

Determination

35. I noted earlier, the offender gave evidence and in giving evidence, he accepted full responsibility for his offences and insofar as the State offences are concerned, did not seek to put blame on the co‑offender.  He confirmed the contents of the subjective material in his evidence.  He accepted that by the time of the importation of MDMA in 2017, that was not for his use but solely for on‑selling.  His overall evidence was that he sold drugs to maintain his supply of cocaine but also to supplement the family income.  However, there is no evidence that other members of the family were aware that he was selling drugs to supplement the family income.  Overall, I found him to be a witness of truth but as I said before, I think he has limited insight into the serious nature of the offences that he has committed.

36. His pleas of guilty were entered in the Local Court and should be seen as early pleas of guilty.  In relation to the State offences, I will allow him a discount of 25% of his sentences for the utilitarian value of his pleas.  In relation to the Commonwealth offences, I note it is now appropriate to allow a discount for the utilitarian value of his pleas of guilty:  see Xiao v The Queen [2018] NSWCCA 4. I also note that I should have regard to his willingness to facilitate the course of justice by virtue of his pleas. I propose to allow him a 25% of his sentence on the Commonwealth offences for both of those reasons.

37. There is some remorse in addition to the early guilty pleas and the admissions he made to the police when interviewed.  I do not, however, as I have said, consider he has full insight into the overall seriousness of his offending.

38. In terms of his prospects of rehabilitation, given his age, his family and community support and his behaviour since being in custody, I consider he has good prospects of rehabilitation and I think he is unlikely to re‑offend provided he is able, once released, to stay away from using prohibited drugs. 

39. As I say, I am satisfied on the evidence that the offender has good prospects of rehabilitation and has commenced his rehabilitation in custody although it is not yet complete.  In relation to the state offences, his prospects of rehabilitation will be assisted if he has a longer period on parole than that provided by the statutory ratio.  I, therefore, find special circumstances when fixing the state non‑parole period.  In making that finding, I have also had regard to his age and the fact this is his first time in custody.

40. It was accepted by the offender's counsel that no issue of parity arose in relation to the co‑offender and the State offences given the difference in the nature of the respective roles. 

41. I noted earlier that the offender has been in custody since the date of his arrest on 27 July 2017 and I will backdate the sentences to commence on that date.  In my opinion, there should be some accumulation as between the Commonwealth offences themselves as separate importations are involved.  There should be some accumulation as between the Commonwealth and State offences given the different nature of the offending.  The State ongoing supply offences occurred prior to the second importation offence.  There should be, in my view, limited accumulation between the State offences.  To some degree, the supply offences concerning the substances found at the offender's premises can be seen as being encompassed in the criminality involved in the ongoing supply offences.

42. In terms of the State offences, I have had regard to the objects of sentencing referred in s 3A of the Crimes (Sentencing Procedure) Act which include the need to impose adequate punishment, general and specific deterrence, protection o the community, denouncing the officer's conduct recognising the harm done to the victim and the community and rehabilitation of the offender.  It is always a serious offence where someone is involved in the supply of prohibited drugs for financial reward.  Prohibited drugs are destroying lives and families and undermining the very nature of our society and community.  Much of the criminal activity that the courts see is committed by those under the influence of prohibited drugs.  Protection of the community is therefore a factor to give weight to when sentencing for drug supply.  Those who supply prohibited drugs for financial gain must receive significant sentences in order to deter themselves and others from engaging in such offending.

43. Similarly, when sentencing for the Commonwealth offences of importing border‑controlled drugs, general and specific deterrence needs to be reflected in the sentences I impose for similar reasons which apply when sentencing for the State offences.  In relation to both the Commonwealth and State offences, the only appropriate sentence is one of fulltime custody.  The maximum penalties have been taken into account a legislative guidepost as explained by the High Court in Muldrock v The Queen (2011) 244 CLR 120.

44. I will deal with the Commonwealth offences first.  I do not require the offender to stand as he is appearing via AVL.  I will record convictions in relation to all the offences to which he has pleaded guilty.

45. Dealing then with the Commonwealth sentences; in relation to sequence 1, being the first in time of the importation offences, there is a sentence of three years imprisonment.  That sentence commences on 27 July 2017 and expires on 26 July 2020.

46. In relation to sequence 20, there is a sentence of five years and three months' imprisonment.  That sentence commences on 27 April 2018; it expires on 26 July 2023.

47. In relation to the two Commonwealth offences, I fix a single non‑parole period of four years to commence on 27 July 2017 and it expires on 26 July 2021.

48. In relation to the State offences, I will utilise the aggregate sentence provisions.  I will firstly indicate the indicative sentences before imposing the aggregate sentence.

49. In relation to sequence 12 and having regard to the offence on the form 1, there is an indicative sentence of three and a half years imprisonment.

50. In relation to sequence 22, there is an indicative sentence of two and a half years imprisonment.  In relation to sequence 26, there is an indicative sentence of two years and eight months' imprisonment.

51. In relation to the State offences, I impose an aggregate sentence of four and half years imprisonment with an aggregate non‑parole period of two and a half years.  That sentence and non‑parole period commences on 27 January 2020 and expires on 26 July 2014.  The non‑parole period, as I say, also commenced on 27 January 2020 and expires on 26 July 2022.

52. In determining the indicative sentences and the aggregate sentence in respect of the State offences, I have had regard to all of the objective and subjective factors discussed earlier.  There is, therefore, a global sentence of seven years imprisonment with a global non‑parole period of five years.

53. The earliest, Mr Woods, you may be released to parole is the date of the expiry of the overall non‑parole period, which is 26 July 2022.  Whether you are in fact released to parole that day is a matter for the State Parole Authority which will no doubt take account of your behaviour in prison in determining whether you are released then or another date.

Orders

54. In relation to 1st Commonwealth Offence, sentenced to a term of imprisonment of 3 years imprisonment commencing 27 July 2017 and expiring 26 July 2020.

55. In relation to 2nd Commonwealth Offence, sentenced to a term of imprisonment of 5 years and 3 months commencing 27 April 2018 and expiring 26 July 2023.

56. In relation to the Commonwealth Offences a single non-parole period is fixed of 4 years, commencing 27 July 2017 and expiring 26 July 2021.

57. In relation to the State Offences, sentenced to an aggregate term of imprisonment of 4 years 6 months with an aggregate non-parole period of 2 years 6 months. Sentence commences on 27 January 2020 and expires on 26 July 2024. Non-parole period expires on 26 July 2022.

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Decision last updated: 08 August 2019