R v Xavier

[2023] NSWDC 528

District Court

New South Wales

Medium Neutral Citation:

R v Xavier [2023] NSWDC 528

Hearing dates:

17 November 2023

Date of orders:

29 November 2023

Decision date:

29 November 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Garry Xavier is convicted.

2   The offender is sentenced to a fixed term of imprisonment of 4 months to date from 21 December 2020 and to expire on 21 April 2021.

Catchwords:

CRIME — Public justice offences — Conceal serious indictable offence

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Commonwealth Places (Application of Laws) Act 1970 (Cth)

Cases Cited:

Mok v Director of Public Prosecutions (NSW) [2015] NSWCA 98

R v Borkowski (2009) 195 A Crim R 1

R v Olbrich (1999) 199 CLR 270

R v Potter [2001] NSWCCA 441

R v Thomson and Houlton (2000) 49 NSWLR 383

Category:

Sentence

Parties:

Rex (Crown)
Garry Xavier (Offender)

Representation:

Counsel:
P Lange (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Hanna Legal (Offender)

File Number(s):

2020/362148

Publication restriction:

None

JUDGMENT

Introduction

1. Gary Xavier (the offender) appears for sentence after pleading in the District Court to an offence of conceal serious indictable offence, contrary to s 316(1), Crimes Act 1900.

2. The maximum penalty for the offence is 5 years imprisonment.

Approach to Sentencing

3. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

4. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of the Act.

5. The conduct constituting the offence occurred within the Bankstown Aerodrome. The offender was charged with a State offence, by application of s 4, Commonwealth Places (Application of Laws) Act 1970 (Cth). It was common ground that:

1. any law that is applied or deemed to be applied by s 4, becomes a Commonwealth law: R v Potter [2001] NSWCCA 441 at [35]-[43] (Spigelman CJ);

2. for the purposes of s 25A(1)(a), Crimes (Sentencing Procedure) Act 1999, the offence was an offence under a law of the Commonwealth: Mok v Director of Public Prosecutions (NSW) [2015] NSWCA 98;

3. the sentencing discounts for guilty pleas to indictable offences provided for in Division 1A of the Crimes (Sentencing Procedure) Act 1999 did not apply; and

4. the discount for the plea of guilty was to be determined by reference to s 22, Crimes (Sentencing Procedure) Act 1999 and common law principles: R v Thomson and Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1.

6. The offender entered a plea of guilty in the District Court to the indictment, which for the first time included the s 316 offence which was much less serious than any other offence he had previously been charged with. The plea of guilty has saved the need for witnesses to be called at trial and there is significant utilitarian value in the plea. By pleading guilty, the offender has facilitated the course of justice. The plea also indicates remorse. The appropriate discount is 25%.

Facts

7. The parties presented an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

8. The co-offenders in this matter are Lloyd Keen and Kevin Theobald.

9. On 11 December 2020, Australian Border Force x-rayed a consignment described as a ‘Toyota side footstep’ and identified irregularities. The consignment consisted of ten boxes, each containing two side steps. Within each of the steps, there was one large bag containing 2.6kg of pseudoephedrine. The bags were long and thin and had been glued down to the bottom of the inside of the step. There was 51.034kg of pseudoephedrine across 20 bags of seized material. A number of bags were tested for purity, with results ranging from 80.5–83%. Each bag was seized by police and the pseudoephedrine was replaced with pool salt and placed in the side steps. The steps were put back together and placed back into their boxes to make it look as though the packages had not been accessed.

10. It is not alleged that the offender was involved in, or had knowledge of, the importation of the consignment.

11. On 17 December 2020, police lawfully placed a tracking device and two listening devices in the consignment.

12. The consignment was delivered to the consignment address in Botany on 18 December 2020.

13. On 19 December 2020, Mr Theobald picked up the consignment from the Botany address and placed it in the back of a utility. He drove the utility to the premises of Aviation Welding Services Pty Ltd (AWS) at Bankstown Aerodrome. The consignment was unloaded by Mr Theobald and Mr Keen.

14. On 20 December 2020, Mr Keen arrived at the AWS premises and accessed the workshop that was being used to store the consignment. He placed one side step on a bench and cut into it, causing white powder to spill onto the benchtop, which had plastic tarp on it. This was filmed on the optical surveillance device. He folded up the plastic tarp and picked up the white wrapping that he had removed from the side step, as well as the power tool he had used. He took those items out of view of the optical surveillance device and left the premises. He went home to his residence in Picnic Point.

15. At 8:30am on 21 December 2020, Mr Keen arrived at the AWS premises. He left ten minutes later and went to Mr Theobald’s residence at Condell Park. He travelled back to the AWS premises and arrived at 9:06am.

16. At about 9:18am, the offender arrived at the AWS premises. He entered the consignment room. Mr Keen utilised grinders and blunt objects to access the side rails whilst the offender was there.

17. Mr Keen re-entered the main part of the workshop on several occasions, collecting tools and a large black garbage bag.

18. At about 10:23am, the offender and Mr Keen left the AWS premises in the offender’s vehicle. They drove to Payless Auto Spares in Condell Park, and then to a shopping centre. They entered a café and came out with a plastic bag. It is not known whether the attendance by the offender and Mr Keen at Payless Auto Spares, the shopping centre and the café were connected with Mr Keen’s attempts to remove the inert substance from the side steps.

19. The offender and Mr Keen then drove to Mr Theobald’s residence, parked and went inside at 10:56am. At 11:04am, the offender, Mr Theobald and Mr Keen left the residence in the offender’s vehicle. It is not known whether this attendance at Mr Theobald’s residence was connected with Mr Keen’s attempts to extract the inert substance from the side steps.

20. At around 11:09am, the three men arrived at the AWS premises. They entered the consignment room through the side garage door. Mr Keen and Mr Theobald used electronic grinders and blunt objects to access side rails within the consignment room.

21. At 11:50am on 21 December 2020, Mr Keen was arrested by police as he was leaving the AWS premises. Police seized a side step and a Makita angle grinder which had white powder on it. At the same time, the offender was arrested as he was leaving the premises in his vehicle with Mr Theobald. Mr Theobald had white powder on his t-shirt and shorts, which was examined and found to be derived from the side step itself and likely generated during the cutting process. Police did not observe any white powder on the offender’s clothing.

22. The offender was conveyed to Bankstown Police Station where he was interviewed and declined to make any comment. A buccal swab was taken.

23. On 21 December 2020, police executed a search warrant at the AWS premises and seized the following:

1. four side steps that had been cut and accessed;

2. a side step that had been wedged behind a blue cabinet and was covered in white dust;

3. nine of the ten consignment boxes;

4. a Master Bill for the consignment, describing the contents as “3 boxes of Toyota side footstep” addressed to the AWS premises;

5. a plastic tarp with white residue and a piece of plastic on the work bench in the middle of the factory; and

6. a document in the name of the offender dated 12 August 2020 found in a rubbish pile near the door.

24. The offender’s fingerprints were found in the dust on the surfaces of the side steps and also on the outside of a black plastic bag. His DNA was also found on a plastic wrapping bag of the side steps.

25. The following is accepted between the parties:

1. the offender believed that the co-offenders supplied a large commercial quantity of pseudoephedrine;

2. the offender had information which might have been of material assistance in securing the apprehension of the co-offenders or in the prosecution or conviction of those persons for the serious indictable offence; and

3. failed, without reasonable excuse, to bring that information to the attention of a member of the police force or any other appropriate authority.

Sentencing Assessment Report

26. The Court received a Sentencing Assessment Report dated 8 November 2023, which can be summarised as follows.

27. The offender resides with his partner in Winston Hills in private rental accommodation. They have been in a relationship for five years and he has a 13-year-old child with a former partner. That child is primarily under his former partner’s care. His parents reside in Western Australia. He has two siblings, with whom he has a distant relationship.

28. In October 2023, he and his partner opened a laundromat business and he works there seven days per week.

29. The offender has a criminal history with a pattern of drug-related offending, including an offence of manufacture an indictable quantity of a prohibited drug.

30. He told the author of the report that he was not involved in any illegal operation in relation to this offence, but that he did have some suspicions. The author of the Report opined that he had limited insight into the seriousness and consequences of not reporting or concealing illegal activities. He was only able to recognise the impact of the offending on himself and his family. He did acknowledge in hindsight that he should have reported his observations to police and not remained on the scene.

31. He is willing and able to undertake interventions to address his offending behaviour.

32. He was assessed as at a medium-low risk of reoffending.

Offender’s Case on Sentence

33. The offender tendered the following documents:

1. letter of apology dated 9 November 2023;

2. psychological report of Sam Borenstein dated 28 October 2023;

3. affidavit of Lyndal Sue Fewings dated 6 November 2023;

4. letter of Shaun Armstrong dated 13 November 2023;

5. letter of David Byrne dated 15 November 2023;

6. letter of Hendrix Clark dated 9 November 2023; and

7. letter of August Te Wata dated 6 November 2023.

34. The following is a precis of the evidence relied upon by the offender.

35. The offender was born in England and lived there until he was three years old, when his family migrated to Australia. He has two older siblings with whom he has a large age gap. His parents ran a successful car mechanic business in the Northern Beaches area. His mother also worked for Ansett and Qantas. His father was very strict and did not show much affection to the offender when he was growing up. His mother was diagnosed with bipolar disorder in 2010 and attended alcohol rehabilitation several times. His mother also had significant childhood trauma which the offender believes impacted her ability to look after him and his siblings. He described a close relationship with his sister. He described himself as “angry” during his childhood because of his homelife and his academic difficulties at school.

36. He attended four primary schools, as his family were required to move to Quakers Hill because of a recession, in which they lost the family home and business. He was required to repeat Years 1 and 4, as he has dyslexia and found reading very difficult. He also found it very difficult to concentrate during lessons and fell behind. He did not receive any treatment for his dyslexia. He attended Quakers Hill High School. He left high school in Year 9 after falling behind at school.

37. He started working for his father at age 14. His parents forced him to do a car mechanics course at TAFE, even though he had no interest in it. He found the course very difficult and struggled to understand the concepts. He felt that his father ignored him and did not help him with completing the course. After a dispute with his father, he left his family business and began working at Pizza Hut. He has worked as a general labourer in construction, in restaurants and clubs and briefly as a panel beater. When the offences occurred, the offender and his partner were running an online beauty products business together. When he was released on bail for the current offence, he worked for his friend’s installation company and for a furniture warehouse company. He and his partner recently opened a laundromat together.

38. He started smoking marijuana at about age 12 or 13. He started consuming alcohol around two years later. He also used speed, ecstasy and cocaine during his teenage years. He used ecstasy and cocaine into his twenties. He has completed drug programs whilst in custody for prior offences. Through reflection during these programs, he realised that he was using drugs to self-medicate when he was feeling angry or frustrated at himself or stressed because he was falling behind at school. The offender has not used drugs since his release from custody on the previous occasion in September 2018.

39. He and his former partner separated in 2011. His partner is the primary carer for their daughter, but his daughter visits him on one weekend per fortnight. He sees her outside of this arrangement whenever she needs or wants. He currently pays monthly child support, as well as fees related to her extra-curricular activities and phone plan. He prioritises spending time with his daughter and is very involved in her extra-curricular activities. They have a positive relationship and he expressed a wish to be a loving and supportive father.

40. The offender was badly injured in custody in 2015, from which he has chronic back pain. He had to obtain medical attention numerous times in custody to relieve the pain. The pain is occasionally debilitating, such that he is unable to walk or do basic tasks. This was very difficult to manage in custody. He struggles to sit or stand for too long. He was prescribed medicinal cannabis which did relieve his pain somewhat, but this treatment has become too expensive. When it is busy at the laundromat and he has been standing all day, he experiences a lot of pain at night. He was attending a physiotherapist but is struggling to afford such therapy.

41. In 2011, the offender was diagnosed with stomach cancer and had a tumour removed.

42. He has also had anxious and depressive thoughts since he was imprisoned in 2011, which worsened when his father was diagnosed with cancer two years ago. He was treated for depression whilst in custody and took antidepressant medication between 2012 and 2018. He has had several sessions with two different psychologists but did not find this helpful. In 2019, he had Neuro-Linguistic Programming (NLP) therapy and found this to be extremely useful. He did weekly NLP sessions with Daniel Tolson for six months but had to discontinue these sessions due to financial strain. He expressed a wish to seek further therapy to address his anxious and depressive thoughts.

43. Since his release from custody on remand for this offence, he has been attending weekly sessions with a business and life coach, which he has found beneficial with regard to his mindset, motivation and setting long-term goals.

44. The offender’s partner is reliant upon him to run the laundromat business, as she runs another business. He is integral to the business and has dedicated time and effort into developing and running the laundromat business. His partner has taken out three loans with monthly repayments which she cannot repay by herself.

45. The offender spent 8 months and 21 days in custody on remand for the current offence. He was arrested shortly before the Christmas and New Year period and was unable to contact his partner or daughter during this time, and they found out about his arrest on the news. He was incarcerated in Macquarie Correctional Centre in Wellington, so his partner had to drive five hours each way to see him. She did this almost every fortnight. His daughter was unable to see him during this period because there was a strict one-person limit for each visit. He was in lockdown for long periods during his incarceration and he found this challenging, but also an opportunity to reflect on the offending.

46. In relation to the offending, he told the psychologist that on 21 December 2020, he had dropped his daughter off at her mother’s residence and drove to the AWS premises which he believed were owned by his friend, Mr Keen, as he had cardboard boxes which he planned to throw out in the AWS skip bin. He also intended to purchase a pet lizard for his daughter for Christmas and Mr Keen’s son had a reptile licence. He remained in the vicinity of the AWS premises for around 2.5 hours, during which time Mr Keen asked for a lift to the Payless Auto Spares and suggested that they get some food. They passed by Mr Theobald’s residence, picked him up and went to the factory. He told the psychologist that he had just finished eating and was leaving with Mr Theobald to drive him home when he was arrested. He denied knowledge of the drugs. He claimed to have known Mr Keen for several years and met Mr Theobald through him.

47. He acknowledged that he should have reported the criminal activities of his co-offenders. He also acknowledged that he should never had associated or spent time with them and that it was irresponsible to place himself in that situation. He addressed the opinion of the author of the Sentencing Assessment Report that he had limited insight into the consequences and seriousness of the offending, writing in his letter to the Court that he is aware of the seriousness and consequences of his offending, and that the purpose of the offence is “for the detection and prevention of serious crime”. He wrote that he did not want his daughter and other innocent people to live in a community where drugs are present and distributed, and that he witnessed the effects of drugs on individuals and the community when he was incarcerated.

48. He expressed regret and remorse in his letter to the Court and to the psychologist, his partner.

49. The offender’s character references describe him as motivated and hardworking, and a dedicated father and caring friend and partner, who is committed to making positive changes in his life.

50. The psychologist opined that the related a history of combined drug and alcohol use disorders which are currently in sustained remission. The psychologist recommended that the offender address his dyslexia.

Consideration

Objective seriousness

51. The offender attended the AWS workshop at 9.18am on 21 December 2020 and was arrested at 11.50am on that day. This constitutes the maximum time in which the offender may have had relevant information about the activities of Mr Keen and Mr Theobald. The prosecution cannot specify the precise period for which the offender held the relevant information.

52. The prosecution did not allege that the offender’s attendance at Payless Auto Spares or at Mr Theobald’s residence were connected to Mr Keen’s attempt to access the inert material in the side steps.

53. On what the offender saw at AWS, I am not satisfied beyond reasonable doubt that he knew that Mr Keen and Mr Theobald were committing a serious indictable offence, but I am satisfied beyond reasonable doubt that he believed they were.

51. I accept that he attended the AWS workshop for a lawful purpose, to dispose of cardboard waste, and that he saw what occurred but was not really sure what was going on. The offender had very little opportunity to report what he saw but accepts by his plea that he should have done so.

52. I have taken into account the maximum penalty for the offence.

53. The offence falls at the very lowest end of the scale of objective seriousness.

Deterrence

57. General deterrence is of significance to the offence before the Court.

58. There is very little need for specific deterrence in this case. The offender’s parole was revoked for a period of 8 months and 21 days before being reinstated. I am satisfied that the offender has been significantly punished for this relatively minor offence.

Aggravating factors

59. The offence was committed while the offender was on conditional liberty in relation to an offence: s 21A(2)(j) Crimes (Sentencing Procedure) Act 1999. On 17 September 2012, the offender was sentenced to a term of imprisonment of 10 years and 6 months with a non-parole period of 6 years for drug and firearms offences. He was released on parole on 16 September 2018. He was arrested for this offence on 21 December 2020 and remanded in custody. His parole was revoked on 13 January 2021 effective from his date of arrest. His parole was reinstated and he was released on 10 September 2021 after serving 8 months and 21 days.

Mitigating factors

60. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. Since his release on parole in 2018, the offender has worked with his partner in a laundromat business. He is in a stable and supportive relationship. He had engaged with supervision on parole and his response was only deemed unsatisfactory because of the further offence committed.

61. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. In his letter to the Court, the offender accepted responsibility for his actions and he has expressed remorse to the psychologist, his partner and the Court. I am satisfied that he is truly contrite.

62. I have taken into account the offender’s presentence custody, which was solely referrable to this offence.

63. I have taken into account the restrictions imposed on prisoners serving sentences in New South Wales in response to the COVID-19 pandemic. I am satisfied that those restrictions made the offenders’ time in custody more onerous.

64. I have had regard to s 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied, having considered all other available sentences, that no sentence other than imprisonment is appropriate.

Penalty

65. Garry Xavier is convicted.

66. The offender is sentenced to a fixed term of imprisonment of 4 months to date from 21 December 2020 and to expire on 21 April 2021.

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Decision last updated: 01 December 2023