R v XY

[2010] NSWDC 217

CITATION:	R v XY [2010] NSWDC 217
HEARING DATE(S):	10/09/2010
JUDGMENT DATE:	23 September 2010
JURISDICTION:	Crime
JUDGMENT OF:	Norrish QC DCJ
DECISION:	Convicted. Sentenced to a term of imprisonment by way of a non-parole period of 2 years and 6 months. To commence on 17 March 2010 and expire on 16 September 2012. Balance of sentence of 2 years and 6 months. The balance of sentence will expire on 16 March 2015.
CATCHWORDS:	CRIME - Sentence - supply large commercial quantity of prohibited drug - cooperation.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Drugs, Poisons and Controlled Substances Act 1981 (Vic)
CASES CITED:	R v Fahs [2007] NSWCCA 26 R v Thomson and Houlton (2000) 49 NSWLR 383 SZ v The Queen (2007) 168 A Crim R 249 R v Sukkar (2006) 172 A Crim R 151 The Queen v El Hani [2004] NSWCCA 162 Davidson v The Queen [2009] NSWCCA 150 Califano [2002] SASC 320 R v Corbett [2008] NSWCCA 42 House v The King (1936) 55 CLR 499 R v Poon [2003] NSWCCA 42 Adams v The Queen [2008] HCA 15 R v Way (2004) 60 NSWLR 168 Ibbs v The Queen (1987) 163 CLR 447 Anderson v The Queen [2008] NSWCCA 211 R v MLP [2006] NSWCCA 271 Lovell & Anor v The Queen [2006] NSWCCA 222 Markarian v The Queen (2005) HCA 25 Wong v The Queen [2001] HCA 64
PARTIES:	Regina XY - Accused
FILE NUMBER(S):	2010/68830
COUNSEL:	Mr Gray - Crown Mr McMahon - Accused

SENTENCE

1 HIS HONOUR: My practice is not to keep prisoners in suspense. I always tell prisoners in advance what penalty I propose to impose. I have to give my reasons which will take some, time particularly in this case. This is a somewhat complicated case. I am prepared to give you a discount of fifty per cent upon the otherwise appropriate sentence, but in the context of the maximum penalty and the need to have regard to the standard non-parole period. The starting point I have fixed upon is ten years imprisonment and that means the total term of imprisonment you will serve will be five years. I will fix a non-parole period of two years and six months. That will commence on the date you came into custody in New South Wales, 17 March 2010, and will expire on 16 September 2012. So you have something just short of two years left to serve in your sentence and the balance of sentence will be two years and six months and that total sentence will expire on 16 March 2015. I have to give my reasons now and then I will make the formal orders, but you know in advance what sentence I propose to impose.

2 I will be using names of persons from the facts but Mr Crown and Mr McMahon, in due course your client’s name will only appear as initials in the judgment and the names of other people will only appear as initials in the judgment for reasons associated with both your client’s circumstances and forthcoming proceedings in relation to other people.

3 XY appears today for sentence in relation to an offence shortly described as supplying a large commercial quantity of a prohibited drug contrary to s 25(2) Drugs Misuse and Trafficking Act 1985. This offence to which the prisoner pleaded guilty at the Local Court and continues his plea of guilty in this Court carries a maximum penalty of life imprisonment. It has, under Pt 4, Div 1A Crimes (Sentencing Procedure) Act 1999, a standard non-parole period of fifteen years imprisonment. The precise particulars of the charge allege that the offence was committed between 25 December 2008 and 30 March 2009 “at Sydney” and involves 308 kilograms of a drug described as 1,4-Butanediol, which was an amount not less than a large commercial quantity. In fact, the quantity in the facts is referred to in litres and my calculation reveals that it is believed that at least 307 litres of this particular prohibited drug were supplied. I was informed that a litre represents slightly more than one kilogram in weight. Hereinafter I will refer to 1,4-Butanediol as “the prohibited drug”.

4 The prisoner was arrested in relation to this matter on 17 March 2010, I am informed, and was extradited without objection from Victoria to New South Wales. However, that is not a full summation of the situation, as I will reveal when I deal with the facts.

5 The circumstances in which the accused was initially arrested in 2009 and how he came to be extradited to New South Wales are of some importance in arriving at the appropriate sentence in this matter. I am informed there are a number of co-accused or persons alleged to be concerned with matters arising out of the prisoner’s criminality.

6 Those persons include ER, DA, CB, and WS. WS has pleaded guilty to an offence, the details of which are not abundantly clear to me, and is yet to be dealt with in the Sydney District Court. CB, DA and ER are currently awaiting committal from the Local Court.

7 The charge with which I am concerned arises out of an operation conducted by the Australian Crime Commission, the details of which I need not go in to. The operation related to activities of a group known as the ‘Hells Angels Outlaw Gang’, hereinafter to be referred to as the ‘Hells Angels’ and this operation commenced in August 2008. The investigation of the Australian Crime Commission involved obtaining a great deal of evidence, direct, physical and circumstantial, surrounding the trafficking and supply of the “prohibited drug” within the State of New South Wales.

8 The prohibited drug with which this prisoner is concerned and another prohibited drug called gamma butyrolactone, otherwise known as GBL, are both known as precursors to gamma hydroxybutyrate or GHB - variously known, it is said in the facts, as G, GHB, “fantasy” or “fanta.”

9 The prohibited drug with which the prisoner is charged with supplying, when ingested in whatever particular form it can be properly ingested, metabolises into GHB. I will deal with that matter from the evidence provided by the prisoner shortly.

10 I have been given a lengthy statement of facts which is described as an agreed statement of facts. It sets out details in relation to various supplies occurring at different times, one supply involving two litres, referred to as the “New Year’s Eve” supply occurred between 28 December 2009 and 31 December 2008. There was a further supply of 16 January 2009, of 25 litres, another supply on 22 January 2009 of no less than 60 litres, another supply on 5 February 2009, no less than 60 litres, a supply on 4 March 2009 of no less than 100 litres, and a supply on 29 March 2009 of 60 litres.

11 The supplies were arranged, in essence, because the prisoner was a friend of a woman named ER. She was an associate of people in Sydney who included persons that had alleged associations with the Hells Angels. I will deal with the background of the prisoner in greater depth at another time in these remarks, but the prisoner was a person who used the prohibited drug to alleviate pain. I am prepared to accept that he was relevantly addicted to it, or dependant on it, at all relevant times that this offence was committed. His involvement in the use of the prohibited drug was known to ER, a long term friend of the prisoner but not a person with a romantic attachment to the prisoner. I understand that she was a user of the prohibited drug and was well aware of the prisoner’s use of it. She was well aware that the prisoner could obtain quantities of the prohibited drug from an associate known to me in the facts as PM.

12 The various supplies set out in the agreed statement of facts essentially involve requests of the prisoner either directly from ER on behalf of others, (or by other means) the prisoner obtaining what was requested from PM and then on-supplying the prohibited drug either directly to ER to be taken back to New South Wales or to others associated with ER. The facts reveal that the communication with the prisoner was essentially conducted by ER, but at various times WS, CB, DA, amongst others had contact with ER. Another couple that are mentioned in the facts are BM and SC, who were involved in the supply of 4 March 2009 and apparently are associates of CB.

13 The persons other than ER were generally associated with New South Wales and it is clear that the accused understood that those quantities, the prohibited drug that he supplied other than perhaps the first supply, the “New Year’s Eve supply” of two litres, were being provided to persons to be taken away from Victoria to New South Wales.

14 The facts as they were presented to me - and this is not a matter I have discussed with the parties and it is certainly not a criticism of the very professional way the case has been conducted by Mr McMahon or the learned Crown Prosecutor - would have left some impression, at least on the first reading, that the various people named in the facts were persons who were personally known to the prisoner in some way, given the circumstances when, on occasions, named persons came into contact with the prisoner at the various places identified in the facts to pick up the quantities of prohibited drug that he provided.

15 In fact, subsequent to proceedings I more closely read the statement the prisoner had given to assist investigators on or about 20 January 2010. That was very illuminating and I have no reason to doubt his truthfulness given the assessment of the prisoner by other authorities in the context of their knowledge of this matter. What becomes apparent from reading his statement is that whilst the prisoner, in the course of the various supplies to persons other than ER, came in contact with a number of people named in the facts, these people were not personally known to the prisoner, but were known to ER. That is not to say the prisoner did not know that he was providing prohibited drugs to these “third parties.” But it does reveal the prisoner was largely ignorant of the details of the ongoing supply of the prohibited drug outside of Victoria.

16 The prisoner’s acts giving rise to his liability for the charge, alleging a “supply in Sydney” were all performed as I understand the facts, in Victoria. The prisoner of course is caught by the expanded jurisdiction that enables acts outside the State to be liable under New South Wales criminal law, and I need not dwell upon that as no issue has been taken as to jurisdiction.

17 The fact that these acts of the prisoner giving rise to the charge occurred in Victoria is of some relevance in this case, given some matters relating to the legal position in Victoria which I was asked to consider. The first supply to ER involved the prisoner providing two litres, just over two kilograms, of the prohibited drug to ER for which he paid $1,400 per litre.

18 He did not receive any money back from ER, but I draw nothing sinister from this, because ER was a very close friend of his. He did however receive payment for the other supplies, the price negotiated being somewhere between $1,100 and $1,200 per litre. As I have said I do not propose to reiterate the detail of the facts of the travels to Melbourne by various people on the arrangements made by ER for the prisoner to obtain the relevant drugs, beyond again stating that many of the named people were persons the prisoner could identify from photographs but were not personally known to him. A number of the supplies occurred at places nominated by the prisoner.

19 The exact amount of money paid to the prisoner is not clear but on the basis of the calculations made by the prisoner of payment per litre one would have thought that the payments involved something in the order of between $330,000 to $360,000. The prisoner has given evidence that all of this money was provided to PM and the prisoner did not receive any money from these transactions. However, the arrangements he made arose in the circumstances that he was aware that PM was capable of supplying these quantities and these arrangements were made because of his friendship with ER.

20 The Crown put to the accused a proposition that he in fact received something in the order of $100 per litre, which he denied as truthful. The Crown, in fairness, indicated to the Court, when I asked him the basis of that assertion given the material presented to me, that it was based on material available to him, as I would expect, given that he being an honourable and ethical practitioner. But in the circumstances where the prisoner denies that assertion and no other evidence is presented to the Court, I have decided, taking all matters into account, that I accept the prisoner’s evidence. The prisoner himself was an impressive witness in my view. Thus, there is no evidence before the Court that the prisoner received any financial advantage, although it may well be fair to point out that he would have been able to obtain some of the prohibited drug for his personal use.

21 Of course the quantity of the drug is very significant. A trafficable quantity of this prohibited drug is thirty grams in New South Wales, an indictable quantity is fifty grams and a commercial quantity is one kilogram. A large commercial quantity is four kilograms. The total supplied calculated is 308.8 kilograms. It has been said, without me having to do the mathematics, that the total amount supplied at least was seventy-seven times the minimum quantity required to establish a large commercial quantity. But the significant quantity, while clearly relevant, is not the only matter to be taken into account when assessing the objective seriousness of the offence.

22 There is some background to the matter arising from the character of the prohibited drug to which I have referred. One matter I mention in passing is that s 35A Drug Misuse and Trafficking Act 1985 provides that it is not an offence for a person to manufacture, produce, possess or supply a substance listed in Sch 2 (of the Act), if the substance is contained in the product for which the substance cannot be readily extracted or which is not for human consumption and the manufacture, production, possession of supplies in connection with an activity that is not unlawful or a person possesses or supplies such a substance for the purpose of its “disposal as waste.”

23 The reference in Sch 2 to relevant prohibited drugs relates to two prohibited drugs as I identified them, one of which is 1,4-Butanediol, the other being another drug chemically related to it. It was pointed out by learned counsel for the prisoner that this was an unusual circumstance which reflected the unusual character of this prohibited drug.

24 I was provided with a publication of the Commonwealth Department of Health and Aging that was published in March 2009 in respect of the prohibited drug. The report is entitled, ‘Chemical Hazard Assessment Report’. The prohibited drug is in fact an industrial solvent and “intermediate”, used in the production of various plastics and polymers, amongst other things. When ingested it is rapidly metabolised to form the prohibited drug GHB, which is described as a neuromodulator that “exerts potent depressant effects on the central nervous system”. Thus, amongst other things, it can act as a relief for pain. Its potential toxicity was not appreciated until 2007 in Australia and in 2008 the National Drugs and Poison Schedule Committee, or the NDPSC, ‘scheduled’ the drug by including the freeform of it in Appendix C of its schedule. It is a drug that was imported in large quantities into Australia. In 2001 to 2002, volumes in excess of 1,200 tonnes were imported for use in the production of various solvents, plastics, cleaning agents, adhesives as well as agricultural and veterinary chemicals. In 2003, according to the report, approximately one million was “consumed”, in the industrial sense, worldwide. In 2007 a study demonstrated “extensive conversion of the drug to GHB after oral administration”. The human body metabolises the prohibited drug naturally. It is not at the moment considered to be carcinogenic to animals.

25 In New South Wales, as I have earlier noted, obviously very severe penalties exist for the supply of this drug in particular quantities, particularly if in excess of a large commercial or commercial quantity. However, in Victoria, under the Drugs, Poisons and Controlled Substances Act 1984 the prohibited drug is a “prescribed precursor chemical”, but is not a “drug of dependence” for which trafficking in similar quantities carries maximum penalties of up to life imprisonment and other significant financial penalties. Possession of a quantity of the prohibited drug that is “not less than a prescribed quantity applicable to that precursor chemical” is an offence that can be dealt with on indictment, for which an offender may be liable to a penalty of not more than 600 penalty units or five years of imprisonment, which is described as a “level six” penalty under Victorian law. A life imprisonment is a “level one” penalty. These matters are set out in Pt 5, Drugs, Poisons and Controlled Substances Act 1981 (Vic).

26 The prisoner, prior to his arrest in relation to this matter, had no prior criminal convictions. However, when police were winding up their inquiries in relation to the prisoner and executed search warrants on the residences of, amongst other people, ER, PM and the prisoner, a quantity of the prohibited drug, 100 ecstasy tablets and a quantity of cannabis and cocaine, as well as empty plastic containers with orange lids, identical to those located in ER’s possession when she was arrested on 15 July, were found at the prisoner’s premises. He was charged with various offences under Victorian law. In fact four charges of possession of the drugs, ecstasy, cannabis and cocaine. He was fined an aggregate of $750 for those offences and no conviction was recorded.

27 The prisoner, as I understand the matter, from the time of his arrest on 30 July 2009 until he was extradited, or at least came into custody in relation to the current offence on 17 March, was on bail. He provided assistance. He was, of course, required under compulsion to provide assistance. I need not go into the detail of that, but the Australian Crime Commission had made various inquiries involving the prisoner. He made a statement to the ACC outlining his involvement in the offences and described. What is important to note about that particular statement is that he was offered no benefit for making that statement, although it might be fairly described as an induced statement. His cooperation with the ACC in that regard did not hinge upon the expectation of any benefit, the offer of any benefit, nor did the prisoner make his cooperation with the ACC in any way conditional. As I have earlier said when he came into custody and was charged in relation to this matter, he did not oppose his extradition to this State. The prisoner has signed an undertaking, dated 10 September 2010, to give evidence in any proceedings, including any appeal and retrial involving ER, CB, DA and WS, in respect of any matters relating to the supply of the prohibited drug with which I am concerned. He undertakes to give active cooperation, including truthful and frank evidence, in accordance with the statement dated 23 February 2010. He gave this undertaking on legal advice.

28 The statement I am concerned with was dated 20 January, it may have commenced on that date, but it was finally signed on 23 February 2010.

29 I have a document from the ACC confirming the matters I have outlined and providing information to this Court, assessing what has been providing to it. The value of the assistance has been assessed. I do not propose to go into the detail of that for the purposes of this judgment but that assistance I understand from the evaluation undertaken is regarded as concrete and of a high value. It shows full intention to cooperate, a full willingness to further other investigations and a timeliness of considerable significance. It is felt that there are risks to the prisoner through his cooperation, particularly given not just the reputation of the motorcycle club to which I referred, but also the practical reality of the conduct of members of that association against persons who might be regarded as a threat to their lawless activities. I have taken all that material into account and will assess that shortly.

30 I have a body of evidence from the prisoner through histories that he has given to the Probation and Parole Service, to the psychologist, Mr Watson-Munro, and of course from the oral evidence that he gave in this Court adopting the truthfulness of that material. In relation to the Probation and Parole report, the prisoner’s background is dealt with, and I will come back to that matter in a moment.

31 The Probation and Parole report notes the prisoner’s use of the prohibited drug, or its metabolised form, GHB, and his use of other drugs, including drugs with which he was found to be in possession when he was arrested in Victoria. His drug use had increased over the years leading up to the commission of the current offence. His use of prohibited drugs, or prescribed drugs in Victoria, caused him to have associations with people naturally who would supply him with those drugs, and it is through this knowledge that he was able to find the person who could provide the prohibited drug required by ER and her associates.

32 He acknowledges to the Probation and Parole Office the serious position he is in at the moment. Whilst he has had a stable domestic situation, his drug dependency arises out of the circumstances of injury suffered by him in a motor vehicle accident in about 1984.

33 He can be supervised in Victoria, and is regarded to be worthy of a medium level of intervention by the Service, particularly to address his drug dependency, and to monitor his associations.

34 From the combination of the prisoner’s evidence, and the histories that are provided, I find these matters established. The prisoner was born in Beirut, The Lebanon, in June 1962. He has three older sisters. His father died of emphysema about eight years ago at the age of seventy-one. His mother died unexpectedly sixteen years ago of a heart attack.

35 He lived in Lebanon through a period of great difficulty, sometimes referred to as the ‘civil war’ between competing religious factions, not assisted by the intervention of foreign countries, such as Syria and Israel from time to time. He was involved in and experienced those troubles in circumstances where he was exposed to great violence, and suffered some injury as a result.

36 He has a very high level of intellectual functioning. He is fluent in French, Arabic, Italian and English. He was educated in Beirut until the age of seventeen, and then was educated in France at the Sorbonne in Paris until the age of approximately twenty-one, studying a science degree in research development.

37 He emigrated to Australia at the age of twenty-one years. He did this in the context of the considerable instability of his native country, arriving in Australia, as I would understand it, about 1983.

38 On arrival in Australia he obtained employment, as one would expect with his intellectual capacities. However, as I understand the matter from the limited records that are now available from the Austin Hospital, he suffered severe injuries in a motor vehicle accident in approximately November 1984 in Noble Park, an outer eastern suburb of Melbourne.

39 He was admitted to intensive care, and, as I understand the document from the hospital, he was in the hospital for approximately three months. He was in traction for fifty-two days in the spinal unit, and there was an ongoing concern that he may be quadriplegic. For an extended period of time whilst in hospital he had no sensation from the neck downwards, he had excruciating pain, and he dropped something in the order of twenty-six kilograms during the time he was in hospital. His gastro-intestinal system was shutting down because of his condition and treatments given led to this significant loss of weight.

40 There are no complete records now from the Austin Hospital, but the records that are available, in conjunction with the prisoner’s evidence, confirm the seriousness of his injuries and the extended period of time that he was in hospital. He has had to return to that hospital for out-patient treatment, and other in-patient treatment from time to time, and has had a number of medical sequelae, including treatment for kidney problems, he has suffered from what are described as ‘ulcers’, but has continued to have severe back pain right up to the present time.

41 On release from hospital he eventually rejoined the workforce, and established what is described as a juice transport business, which he conducted up until the time of his arrest, and which is being supervised by his partner of the last thirteen or fourteen years. This business involves the delivery of fresh juice to an established client base for a major distributor. Apparently it is quite a successful business.

42 In addition he worked as a computer consultant from 1997 up until 2007, in other words he was working two jobs for a period of ten years. This is testimony, not only to his many abilities, but also to his industry. However he gave up the IT consultancy work because of the considerable pain that he suffered, and of course the stress upon him of working such lengthy hours, which no doubt contributed to the use of prohibited drugs in a range of ways.

43 He was married in 1990, but separated five years later. He has an eighteen year old daughter. He still supports her and I have read her eloquent testimony to his affection as a father, and the support that he has given her, his qualities as a father, and as a man, and of her continuing support for him. The differences between he and his first wife would appear to be largely cultural.

44 As I said, he established another relationship over thirteen years ago, and that partner, who is thirty-five years of age, is largely running his business for him. But there are financial difficulties, particularly in his absence. The opportunity for his family to visit him in Sydney has been restricted, both because of financial reasons, and because of the difficulties of his current custody.

45 He does not have any problems with the abuse of alcohol, but Mr Watson-Munro, as a psychologist, opines that he has many symptoms that are consistent with psychological issues arising firstly our of his experiences in the civil war in Lebanon, and also arising from his motor vehicle accident. The prisoner has great anxiety, hyper-vigilance to danger, flashbacks, nightmares, and some “survivor guilt”. He does say that the circumstances of his upbringing in the civil war in Lebanon was “a way of life”. He never received any treatment for his symptoms, but I am quite sure that he was exposed to many horrific things, as we well know in Australia from media coverage of those events.

46 Mr Watson-Munro, although not qualified to diagnose, states that his symptoms are consistent with post traumatic stress disorder, have been exacerbated by the consequences of his motor vehicle accident, the memories of hospital treatment, the pain he suffers and the fear of quadriplegia. His major problem, however, at the present time is chronic neck pain, which intrudes upon him on an hourly basis.

47 He started using GHB when he was told that it was a powerful pain relieving agent. As I understand it, this started maybe three to four years ago, and he is quoted by Mr Watson-Munro as saying that “within ten minutes the pain dropped for the first time in over twenty years”.

48 He also used other prohibited drugs, or prescribed drugs in Victoria, such as methylamphetamine, and the like.

49 Mr Watson-Munro points out there is a well established body of research material attesting to the deleterious impact stimulate drugs in particular have on the pre-frontal cortex of the brain, an area which is integrally responsible for forward planning, judgment and impulse control.

50 Whilst the prisoner was well oriented in time and place, he gave no indication of thought disorder, delusions, or any psychiatric, or psychotic condition, and whilst his interpretation of events is assessed as “highly subjective”, the view of the psychologist is that the symptoms the prisoner has suffered over a period of time reflect an underlying condition, which would lead him more readily to the use of prohibited drugs, or the particular prohibited drug with which I am concerned and which would also in due course affect his judgment in a range of ways.

51 He was considered as cooperative but anxious, perhaps to his circumstances. He is thought to be a person suffering from a ‘substance abuse disorder’ particularly relating to his multiple daily use of GHB, but other drugs as well. There was a direct nexus it was said between the issues that led to his drug use and his drug use causing declining judgment and his actions involving the commission of the offence. Part of the history I must say in passing, is an assertion he makes, which I do not have any reason to doubt, that he was shot on six occasions in Lebanon during the course of the civil war. The details of that are not abundantly clear. He still has flashbacks and other symptoms arising from his life experiences.

52 The effect upon his brain function by the use of drugs is said to be a matter that could explain his readiness to assist Ms ER. He has detoxified in custody. He takes Panadol for pain relief. He requires assistance on his release from custody in the form of one to one “psychotherapy”. He is not in full remission at the moment. His period of abstinence has only been limited, but with his pain ever present the temptation for him to use prohibited drugs in the future will require professional assistance as will the psychological conditions to which I have referred.

53 The prisoner is held in (a secure location – details deleted). There is evidence before me from the prisoner and some evidence in the material presented by the Crown as to his circumstances in custody. I have some personal experience of this location in my time at the Bar although I have been gone from the Bar for just on ten years. In the location prisoners are provided with a number. The prisoner has given evidence of restrictions upon his movements. The Crown has suggested in material provided to me, which I accept in good faith is the ‘theory’ of the services available in the location, he does not have severe restrictions upon services. He, of course, is isolated from the general population of inmates because of the fact that he is to be called upon to give evidence at some future time. He has had periods when he has only had a period of less than an hour out of the cell each day. There have been staff shortages responsible for that. His visits from his family have been limited and I accept that there are hardships in his custodial situation, at least up until the present time, which are different from the general hardships in custody. However, I think the most important matter which is clearly not in dispute particularly when one has regard to the material provided by the ACC, is that he will have until he finishes his sentence the constant fear of reprisal. I have no doubt that the fear of reprisal within the secure location would be real, even allowing for the professionalism of the correctional officers there and the very high security there. I have taken that matter into account.

54 In the submissions that were put to the court by counsel for the accused he emphasised these matters, that the accused’s moral culpability might be seen as lower in this case notwithstanding the very significant quantity of prohibited drug because, firstly, the prisoner received no financial benefit, secondly the prisoner, as he said in his evidence which I accept, had no idea of the significant criminality that his conduct represented under New South Wales law and, thirdly, because whilst the prisoner would have realised his conduct was illegal under Victorian Law, his understanding of the illegality of his supply of this particular prohibited drug would have extended to criminality somewhat less than the reality of the situation that he now finds himself.

55 The offence involved no particular “planning” as an aggravating factor as it might be understood under s 21A(2). That submission of course is consistent with the judgment for example of his Honour Justice Howie in the 2007 decision of the Court of Criminal Appeal of Fahs [2007] NSWCCA 26. There was obviously a series of arrangements made for each supply, but they were such as to be inherent in the character of the supply with which I am concerned. It is submitted that this is an offence at least on the part of the prisoner that had no great sophistication. Clearly what is revealed in the facts about the involvement of others including ER and the New South Wales connection reveals a degree of sophistication and secretiveness. But, as I have said earlier, when one reads the statement of the prisoner which I have no reason to doubt as to its accuracy given the assessment of the ACC the degree of organisation and the like from the New South Wales side of things was not known to him, although he obviously knew that he was supplying significant quantities far beyond the personal use of the few individuals with which he dealt. He must have also realised that ultimately there was to be commercial gain from it, although he himself did not receive such commercial gain.

56 His counsel submitted that he has a background of many years of hard work which I accept, that he had a drug dependency which was “medically acquired”. I do not believe it was “medically acquired” in the conventional sense, but it certainly was a drug dependency that bore a close relationship to his desire to quell pain, not simply for the thrill of taking prohibited or prescribed drugs. It was submitted as the evidence reveals that he has family support. The evidence reveals that he continued working right up until he was extradited and his co-operation extended to clearly not making any attempt to flee the jurisdiction pending the completion of New South Wales inquiries. It must have been, I must say, although this was not a matter specifically addressed in the evidence, a considerable shock to the prisoner to find himself, having been dealt with in accordance with Victorian law for a separate quantity of prohibited or prescribed drugs, to find himself arrested and charged with an offence that carried life imprisonment and being extradited to New South Wales to a totally different world having provided the co-operation that he did.

57 I note his continuing physical discomfort which will continue no doubt for years to come. This is a matter that will affect the circumstances of his custody as will the special character of the SPC. Particularly his fears of reprisal which will be very real, not only in custody but out of custody as well. It is submitted on behalf of the prisoner that the prisoner should receive the ‘maximum discount that is available under New South Wales law’ for the utilitarian benefit of the plea of guilty and/or to use counsel’s expression perhaps emanating from Commonwealth authority “facilitating the course of justice”. There are authorities that distinguish between the meaning of both those terms. It is not disputed by the Crown that he should receive a discount of twenty-five per cent in accordance with the guideline judgment of Thomson and Houlton or/and in accordance with the ‘trial case conferencing’ legislation.

58 With regard to his cooperation with the authorities the Crown, in its helpful written submissions, points to s 23 Crimes (Sentencing Procedure) Act and the terms of that legislation, which I must take into account. The Crown concedes that the assistance is valuable, he provided assistance to the police knowing that he was going to be charged and extradited to New South Wales, or that that was a probability, his assistance and undertakings to assist have been timely and not offered after the event of closed custody and the like. He has not been offered any specific benefit for his cooperation and, as I would understand it, he offered his cooperation with the statement and in other ways before he had been formally charged.

59 The circumstances of his custody are that he has been held in a special place in custody, for his own protection, and it is conceded by the Crown that evidence that he will give, particularly against DA and CB, as members of the Hell’s Angels, would leave him with genuine fears for his safety as an informer witness. He is also providing assistance in relation to the same offence in which he took part. These matters are all conceded by the Crown in the context of dealing with the various matters that are set out in s23 (2) of the Act. I do not propose to go through them in any greater detail than the helpful submissions of the Crown, beyond noting that I have given proper weight I trust, to the significance, the usefulness, the truthfulness, the nature and extent of his cooperation and its timeliness, and other matters that are required to be considered under s.23(3) of the Act.

60 Of course, there is a range of authority that deals with the issue of how much discount may be given. The matter has been somewhat complicated since the guideline judgment in Thomson and Houlton, by the fact that cases before that date, where discounts were given, sometimes greater than fifty per cent, did not require the Court to measure the “utilitarian benefit of the plea of guilty”. I believe it is generally agreed amongst the authorities - and there are many authorities to which I have been taken both here and in other cases most recently, including SZ v The Queen (2007) 168 A Crim R 249, R v Sukkar (2006) 172 A Crim R 151, The Queen v El Hani [2004] NSWCCA 162, and other decisions, where the issue of the calculation of the appropriate discount has been discussed, that a discount of up to fifty per cent, combined with the discount for the plea of guilty, may be given. However, such a high level of discount would be given only in exceptional cases, having regard to all relevant considerations. Justice Latham referred to the combined discount as being appropriate for assistance to a “very high order” in Sukkar, which is of course a Commonwealth case, but equally applicable here.

61 The Crown said in it’s submissions that “ for past and future assistance having regard to the conditions of custody, the Court could apply an additional amount, together with the plea of guilty, does not exceed fifty per cent.” I believe a discount of fifty per cent is appropriate here. I am particularly impressed with the circumstances in which this cooperation came before the accused was brought to New South Wales.

62 This discount will include however, a calculation of future cooperation. This is of course a predictive exercise which carries with it some considerable difficulty. However, I propose to calculate a discount of twelve and a half per cent out of the fifty per cent for future cooperation as an incentive, should it be needed, for the offender to continue his cooperation with the authorities.

63 In the course of the submissions in relation to this matter, in the context of a differing sentence regime in a State very similar in size of population and social circumstances to our own State, I was referred to a number of cases concerned with the supply or importation of GHB and related drugs. In Davidson v The Queen [2009] NSWCCA 150 the New South Wales Court of Criminal Appeal, in part, dealt with the sentence imposed upon an offender convicted of importing a commercial quantity of a border control drug. There being three such counts and one count of attempting to do so where the border control drug was GBL which with the use of caustic soda can be converted to another drug, that is GHB, the metabolised version of the prohibited drug with which I am concerned.

64 At that time of importation of the border controlled drug in question it was an offence against Commonwealth law, but GBL was not a drug recognised or prescribed by New South Wales law at that time. Furthermore, in comparable jurisdictions such as Canada, dissemination of the ‘border controlled drug’ was not prohibited. In considering the appropriate sentence in Davidson, Simpson J noted that GBL was not a drug with which the courts of New South Wales had acquired great familiarity. Her Honour referred to two authorities that were referred to, including the South Australian case of Califano [2002] SASC 320 where an offender who had imported the drug in question from Canada and paid $500, received a one year good behaviour bond and no conviction recorded. There the Court of Criminal Appeal, in declining to interfere in the sentence, said, “ … the sentence was surprisingly light.” These cases I hasten to point out provide of little assistance as to the issues that arise in this case and this was conceded in submission.

65 Simpson J referred to a decision also referred to by Mr McMahon, of Corbett [2008] NSWCCA 42, dismissing a Crown appeal against the imposition of a community service order for two offences of importing a total of four kilograms of GBL by holding that the sentence was ‘manifestly inadequate’, but declining to interfere in an exercise of discretion. Although it was conceded by counsel for the prisoner in this matter that it was of no great relevance or assistance here, in Corbett it was held that the reasoning of the judge at first instance in reflecting upon the then legality of possession of GBL in New South Wales and overseas, amongst other matters, and upon the extent of ‘moral culpability’, in so doing erred. This was so because the scheduled drug, for the purposes of the legislation under consideration, had to be treated as “identical to every other substance in the schedule of a commercial quantity”. It was pointed out, as it be relevant to this case, that the legislation in question dealing with the identification and scheduling of prohibited drugs and quantities of prohibited drugs for the purposes of particular charges did not “give any insight into the process by which, or pursuant to which, it was determined how and why the listed substances could variously be criminalised”.

66 The Court held there was one important consequence for sentencing, and that is there is “no scope for juridical or forensic inquiry about the individual characteristics of listed substances”. To do so and include such matters in one’s judgment would, in terms of House v The King analysis, be taking into account “extraneous or irrelevant and immaterial considerations” (see also Poon [2003] NSWCCA 42).

67 I do not undertake any such inquiry as was undertaken by his Honour Judge Bell to measure the potential harm or otherwise of the drug. I note in that regard also the decision referred to by counsel for the accused of Adams v The Queen [2008] HCA 15, particularly at [8]-[10]. It should also be pointed out that in Adams, at [11], the majority of the Court stated:

“Of course, the fixing a maximum penalty is not the end of the matter, as was emphasised in Ibbs v The Queen. But there is nothing in the Customs Act or the evidence, or the demonstrated state of available knowledge of opinion, which requires or permits a court to sentence on the basis that possessing a commercial quantity of MDMA (the drug in question) is in some way less antisocial than possessing a commercial quantity of heroin.”

68 The absence of similar sanctions to that existing in New South Wales in the State where the acts of the accused giving rise to the charge were performed, does however bring into consideration matters that were discussed in length in R v Way (2004) 60 NSW 168, a case of significance here given the fact that the offence for which the prisoner is to be sentenced carries with it a standard non-parole period which was discussed in that case. In Way the Court of Criminal Appeal sought to grapple with the meaning of the phrase “in the middle of the range of objective seriousness” in the context of Pt4 Div1A Crimes (Sentencing Procedure) Act 1999, amongst other matters. There the Court said the exercise would not differ from the exercise in every sentencing matter of evaluating the objective seriousness of the evidence by considering and stating where a particular offence falls in relation to various categories of offending, citing Ibbs v The Queen (1987) 163 CLR 447 and other cases. The Court said that the multiplicity of purposes of sentencing set out in s.3A Crimes (Sentencing Procedure) Act, which I take into account of course, do not suggest “a narrow perspective”, as to the range of the matters and facts that are to be regarded as objective facts and matters that may affect the judgment involved in assessing “seriousness”; (see [85]).

69 There may be matters which include not only the actus reus and the consequences of the conduct but factors, which might properly said to have impinged upon the mens rea of the offender [85]. The Court said that some of the relevant circumstances which can be said to “objectively” affect the seriousness of the offence will be personal to the offender at the time of the offence but become relevant because of the causal connection between its commission. Those matters including motivation and mental state. Such matters that might be classified as “circumstances of the offence and not merely circumstances of the offender that might go to the appropriate level of punishment”. Other matters which might be seen as more circumstances of the offender and not the offence will be considerations such as youth and the like [86].

70 The Court in Way noted the terms of s 21A(1) Crimes (Sentencing Procedure) Act, which specifically require the Court to take into account in addition of the aggravating and mitigating factors referred to in s.21A(2) and (3) and; “Any other objective and subjective factor that affects the relative seriousness of the offence”. These matters are “in addition to any other matters that are required or permitted to be taken into account by the Court under any act or rule of law”.

71 In this particular matter of course I take into account the absence of financial motive and the fact that the accused himself was a drug dependant person who by that reason was able to identify persons who could provide the prohibited drug to ER. That he facilitated the provision of the prohibited drug out of friendship in circumstances where his judgment may have been affected to some extent by his long term dependency upon the drugs also a relevant consideration.

72 In considering the relevance of Pt 4 Div 1A of the Act and the relevant standard non-parole period to a particular offence, the Court held in Way that the standard non-parole period directly became relevant in a sentencing exercise after trial. There the Court held the question to be addressed was “are there reasons for not imposing the standard non-parole period?” [117]. That question will be answered by adverting to those matters set out [118]. I refer generally to [121]-[126], particularly [122] of the judgment where the Court said that:

“Even after a plea of guilty the standard non-parole period can properly take its place as a guidepost or a reference point, (etc).”

73 The concept of the standard non-parole period having this relevance to the sentencing exercise on a plea of guilty that has been discussed in many cases, such as Anderson v The Queen [2008] NSWCCA 211. Particularly at [16] of the judgment of the learned Chief Judge at Common Law, where his Honour dealt with and approved of the observations of Kirby J in the decision of MLP [2006] NSWCCA 271. The Crown’s very helpful written submissions to which I earlier made reference and upon which I rely also advert to authority which deals with the appropriate way to deal with the standard non parole period in the circumstances in which this Court now finds itself, particularly at [8] where they refer to the observations of Johnson J in Lovell & Anor v The Queen [2006] NSWCCA 222, where his Honour extensively quoted parts of Way to which I have made some reference. I have taken those matters into account. Of course it should be pointed out that the standard non-parole period in whichever way it features as relevant to the sentencing exercise does not require:

“Resort to a rigid two-tiered approach which involves determining an objective sentence and then adjusting it to take into account subjective factors.” [127]

74 In Way at [131] the Court said:

“What is not appropriate … is for a sentencing judge to “commence the process for every offence (irrespective of its seriousness and irrespective of whether the offender’s guilt was established after trial or by a plea) of the standard non parole period and then to oscillate about it by reference to the aggravating and mitigating factors.”

75 Such a process will “fetter” the “important discretion … preserved by the Act”.

76 As the Court pointed out in Way at [126]:

“Had there been an intention to convert sentencing into a precise arithmetic exercise then those reference points would need to have been identified and consideration given to the weight to be attached to the adjusting factors.”

77 Even after trial, where Pt 4 Div 1A strictly applies, the exercise is not a “rigid mechanistic or arithmetic one of a kind which would be totally unsuited to the difficult task of sentencing”. Of course this approach was embraced subsequently by the High Court in Markarian v The Queen (2005) HCA 25.

78 In this particular matter for the purposes of fixing the appropriate sentence, bearing in mind that the standard non-parole period provides guidance as a reference point or guidance, I am prepared to conclude that the offence is within the mid range of seriousness, but at the lower end given the motivation and mental state of the offender, as well as his role. The Crown submitted it was way above the mid range of seriousness because of the quantity of the drug involved. The quantity of the prohibited drug involved is one relevant matter and, of course, I am very mindful of the very significant level above the minimum quantity required to establish a large commercial quantity.

79 However, in assessing the objective seriousness of the offence, in the manner discussed in Way and other cases, there are other considerations as well. As the Crown points out they include: the role of the offender, the supposed place of the accused in the “hierarchy” of the supply. It should be pointed out the prisoner was not part of a criminal organisation. He was effectively, on the material available to me a “middle man” assisting ER out of friendship. There were multiple transactions and the like, but there are other features of the matter including, as I said the “moral culpability” issue that arises from the prisoner’s personal circumstances leading to his involvement in the use of the drug and his circumstances in Victoria.

80 The Crown submits that the prisoner, of course, was important in supplying ER with the drug. It seems to me, on the facts, that if the prisoner had been disposed to tell ER of PM’s identity, assuming that she may not have known it, although that is not entirely clear, then others could have gone directly to PM. So ultimately, he was not indispensable and certainly not the main provider, as PM clearly was.

81 There is another feature of this matter which is of greater significance than the standard non parole period. That is the maximum penalty of life imprisonment. The legislature obviously regards an offence contrary to s 25(2) Drug Misuse and Trafficking Act as a very serious offence indeed, and it is commonly said, without having to cite authority, that a starting point of any sentencing exercise is to see the objective facts in the context of the maximum penalty imposed, or maximum penalty fixed I should say, for a particular category of offence. I am mindful of the fact that the maximum penalty of this offence places it at the top of a pyramid of offences with gradated maximums, depending upon the relative quantity possessed or supplied at a particular time. Our Act provides for indictable, trafficable, commercial and large commercial quantities. Although in DPP v Wong the High Court in struck down the guideline judgment for Customs Act offences, it still held that quantity was a relevant matter in sentencing for drug “possession” offences.

82 Whilst this case involves a very large quantity it is not the only consideration as I have said. In addition to calculating with the assistance of counsel the relativity of the quantity involved, to the minimum quantity to establish a ‘large commercial quantity’, I have undertaken the exercise of considering the amount of money that was paid for the purchase of the prohibited drug from the prisoner which he passed on. Although there was a very significant quantity, as I have said seventy-seven times the minimum quantity for a large commercial quantity, the amount paid for that was in the order of $350,000. That is of course a very substantial some of money, but if one was comparing for example the sale of 350 kilograms of heroin or cocaine, then my judicial and legal experience tells me that the sums of money involved, or which the prisoner would have handled, would have been much, much greater, and the profitability for others would have been much, much greater, than the sums and profitability in this matter. Of course I am mindful that the ‘large commercial’ quantities for other prohibited drugs such as amphetamines, cocaine and heroin, commence from a lower base, one kilogram in each case. But even allowing for that aspect of the matter, in the context of the fact that the prisoner was involved in transactions valued at something in the order of $1,200 per kilo, that fact provides some understanding of the character of the transactions with which we are now concerned.

83 The discretion existing for sentencing pursuant to s 25(2) of the Act, where the maximum penalty is one of life imprisonment, clearly could not be as wide as was available once when manslaughter carried the same maximum penalty. Although manslaughter is described as the most ‘protean’ of offences, this could not be said of this offence. Although it was common place for sentences for manslaughter to range as widely from life imprisonment as was imposed upon Robert Vincent Veen and confirmed by the High Court in 1988, to good behaviour bonds, usually in domestic homicides where women were charged, such range of penalty clearly would not be available in relation to this particular offence, given that one has to take into account the additional consideration of the standard non parole period and the gradated character of the offences relating to particular prohibited drugs as I have pointed out.

84 There were no specific submissions made about the statistical picture but it gives some indication of the width of sentencing discretion. I am mindful of the criticisms or limitations of statistics as articulated in cases such as Bloomfield. I undertook some research of the range of sentences for offences contrary to s 25(2) in relation to other prohibited drugs where the maximum penalty was life imprisonment. The only thing I learnt from that is that the life imprisonment had not been imposed in relation to any offence caught by the statistics, and the range of sentences for different types of drugs was quite marked, bearing in mind the different value of particular drugs and as I said the different minimum quantities.

85 I was asked rhetorically by Mr McMahon what I would do or what could be done with an offence with ‘cross border’ characteristics seen as more serious on one side of the border than on the other side. Ultimately, the short answer to the question that Mr McMahon posed to me, an answer that must inevitably follow, is that one is required to sentence the offender in the context of the maximum penalty provided for in the particular “State” where the relevant offence is said to have occurred. The only relevance of lighter penalties, if I might call them that, in Victoria or the rather incredibly different way in which the like offending is treated in Victoria, is to note that all of his acts were performed in Victoria in circumstances where he was ignorant of New South Wales provisions. However, ignorance of the law is no defence.

86 His performance of these tasks in Victoria may reflect upon his moral culpability to some extent but, obviously, not completely, because he must have realised the ultimate commerciality of the transactions, otherwise he would be pausing to wonder why people from New South Wales would want to come to Victoria to obtain a solvent that must have been available in New South Wales. Clearly what he did he knew was illegal in Victoria in any event. So it could not be said that he acted without any moral culpability. I have referred to s 3A Crimes (Sentencing Procedure) Act. I have endeavoured in fixing the appropriate sentence, bearing in mind the discounts that I have assessed, to give regard to and weight to general deterrence, particularly. I do not believe an issue of personal deterrence greatly arises here in the sense that I am quite satisfied that the prisoner’s experience in relation to this matter will deter him from further offending. But of course there must be an element of punishment and denunciation of his conduct in the context of the reality of the situation but I must also endeavour, notwithstanding the seriousness of the offence, to promote his rehabilitation.

87 In the context of the matters that might ordinarily arise under Pt 4 Div 1A Crimes (Sentencing Procedure) Act, I am required in fixing the appropriate sentence to have regard to s 21A, not only the general matters that affect the relative seriousness of the offence under s 21A(1)(c), but relevant aggravating factors and mitigating factors under s.21A(2) and (3).

88 The Crown, if I may say so, very fairly pointed to only one particular aggravating factor it submitted that applied here and that was that it was an offence committed for financial reward. I am not satisfied of that matter beyond reasonable doubt. In fact the evidence is to the contrary.

89 With regard to mitigating factors there are many. The offence was not part of a planned or organised criminal activity on the part of the prisoner, although I am mindful of the fact that those recipients of the drug could fairly be said to have involvement in “organised criminal activity.” The prisoner did not have any record of previous convictions and the prisoner was a person of good character. I am satisfied the prisoner is unlikely to re-offend. I am satisfied that the prisoner has good prospects of rehabilitation having regard to his background, his experience in relation to this matter and the support that he has in Victoria. I find as a mitigating factor the prisoner has shown remorse as required under s 21A(3)(i). The plea of guilty of course is a mitigating factor for which he receives a discrete discount and I accept that he has expressed remorse that is genuine. Another mitigating factor is the assistance he has given to the law enforcement officers as required to be considered by s 23 of the Act and I have taken that into account as well in the manner I have outlined.

90 I have also determined in relation to this matter that there are “special circumstances”. pursuant to s.44 Crimes (Sentencing Procedure) Act 1999, which is an additional issue clearly relevant clearly to the fixing of the non-parole period. In my view the prisoner will need assistance to adjust to community living. Having served his first term of imprisonment, he will require extended supervision to assist him in relation to monitoring the use of prohibited drugs or to prevent him from using prohibited drugs to moderate the pain that he will suffer for years to come. He will also need professional guidance and assistance in relation to the psychological conditions assessed, at least so far as symptomology is concerned, by Mr Watson Munro. The circumstances of his custody in my view also have some relevance in determining the issue of the non-parole period but are nowhere near as significant as the need for an extended period of counselling and supervision to assist the prisoner to adjust to community living. As discussed in Anderson, all the abovementioned matters are relevant to the fixing of the non parole period, even when the standard non parol period is ‘a reference point’.

91 As I have said, I have had regard to all the relevant submissions that have been put to me by the parties. This has been a most difficult matter because it has many unusual features which I have frankly not encountered before in a range of ways, including the circumstances in which the prisoner was recruited, the advantage, or lack of personal advantage, for the prisoner in his involvement and of course the context in which the offences were committed given the prisoner’s residence in Victoria.

92 Now before I move to sentence are there any other technical matters Mr Crown that I have missed?

93 GRAY: No thank you your Honour.

94 HIS HONOUR: Are there any other matters Mr McMahon?

95 Could you stand up sir. In relation to the offence for which you are to be sentenced today, you are convicted. You are sentenced to a term of imprisonment by way of a non-parole period of two years and six months. That will commence on 17 March 2010 and expire on 16 September 2012. I fix a balance of sentence of two years and six months. The balance of sentence will expire on 16 March 2015. I have no power to direct that you be released to parole at the end of the non-parole period because the sentence is in excess of three years. I do not propose to fix any conditions for your parole. The Parole Board and the Corrective Services authorities will in due course have my remarks on sentence and I am informed that close heed is paid to the sentencing judge’s remarks. I think it will be self evident from my remarks what assistance you may need on your release to parole. Just take a seat thank you very much.

96 Now are there any other matters Mr Crown?

97 GRAY: No thank you your Honour.

98 HIS HONOUR: Mr McMahon.

99 MCMAHON: One brief matter your Honour. I am in ignorance as to how this will be handled in New South Wales but your Honour mentioned that my client was in the [secure location].

100 HIS HONOUR: Yes.

101 MCMAHON: And I understand that the fact of where he is held would be not disclosed to any--

102 HIS HONOUR: Well I have disclosed it in the context of, I assume everybody in court having some connection with the case--

103 MCMAHON: I understand that.

104 HIS HONOUR: Including the correctional officers, I will ensure that is not published, if you like when the judgment comes back to me in draft form I will substitute the words “a secure location” for the description of the facility. I have mentioned it in the context of mentioning the names of people that will not be disclosed in the judgment.

105 MCMAHON: It’s only the particular facility, that’s my--

106 HIS HONOUR: No, I understand that. I understand your concern, that is why I will ensure that any material that might lead to the identification of a person or a place will be sufficiently disguised, it is proper in the context in which I make my remarks on sentence that I articulate particular places and people for the benefit of the parties who are very familiar with the facts of the case but for the general public and the wider world those particulars will be deleted.

107 MCMAHON: I certainly--

108 HIS HONOUR: No, no I understand that. But it is a matter that I will address.

109 MCMAHON: Thank you your Honour.

110 HIS HONOUR: Do you understand the sentence?

oOo