Rodgerson v R
[2022] VSCA 82
•6 May 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0115
| PAUL DAVID RODGERSON | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | KYROU JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 28 April 2022 |
| DATE OF JUDGMENT: | 6 May 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 82 |
| JUDGMENT APPEALED FROM: | [2021] VCC 155 (Judge Tinney) |
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CRIMINAL LAW – Appeal – Sentence – Possess substance, equipment or instructions for commercial manufacture of controlled drugs – Business of trafficking marketable quantity of controlled drug – Possess controlled drug – Fail to comply with order under Crimes Act 1914 (Cth) s 3LA(2) – Total effective sentence 6 years, 5 months’ imprisonment, non‑parole period 3 years, 8 months – Whether judge impermissibly had regard to possession of MDMA when assessing gravity of first charge – Whether parity principle infringed – Whether sentence manifestly excessive – Whether judge erred in not taking into account family hardship as a mitigating circumstance – Application for extension of time – Extension of time granted – Leave to appeal granted in respect of ground concerning family hardship, but otherwise refused – Totaan v The Queen [2022] NSWCCA 75 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P J Smallwood | Stephen Andrianakis & Associates |
| For the Respondent | Ms K Breckweg with Mr N Modrzewski | Mr S Bruckard, Solicitor for Public Prosecutions (Cth) |
KYROU JA:
Introduction and summary
On 9 October 2020, the applicant pleaded guilty to the charges set out in the table below and, on 18 February 2021, he was sentenced by a County Court judge as set out in that table:[1]
[1]DPP v Rodgerson [2021] VCC 155 (‘Rodgerson sentencing remarks’).
Charge Offence Maximum Sentence Cumulation 1 Possess substance, equipment or instructions for commercial manufacture of controlled drugs [Criminal Code (Cth) s 308.4(1)] 7 years 3 years 1 year, 3 months 2 Business of trafficking a marketable quantity of a controlled drug [Criminal Code ss 302.3(1) and 311.2] 25 years 5 years Base 3 Possess a controlled drug [Criminal Code s 308.1(1)] 2 years $750 fine — 4 Fail to comply with an order under Crimes Act 1914 (Cth) s 3LA(2) [Crimes Act s 3LA(5)] 2 years 6 months 2 months Total effective sentence: 6 years and 5 months’ imprisonment Non-parole period: 3 years and 8 months Section 6AAA statement: 9 years and 5 months’ imprisonment with a non-parole period of 6 years and 8 months
Sixteen months earlier, the same judge sentenced the applicant’s co-offender, Robert Olczyk. Olczyk pleaded guilty to the charges set out in the table below on 21 December 2017 and, on 7 October 2019, he was sentenced as set out in that table:[2]
[2]DPP v Olczyk [2019] VCC 1641 (‘Olczyk sentencing remarks’).
Charge Offence Maximum Sentence Cumulation 1 Import a commercial quantity of a border controlled drug [Criminal Code s 307.1(1)] Life 7 years Base 2 Business of trafficking a marketable quantity of a controlled drug 25 years 4 years 1 year, 4 months 3 Attempt to manufacture a controlled drug [Criminal Code ss 11.1(1), 305.5(1)] 10 years 2 years, 6 months 9 months 4 Possess a controlled drug 2 years 12 months 5 months 5 Fail to comply with an order under Crimes Act s 3LA(2) 2 years 5 months 2 months 6 Possess an unregistered handgun [Firearms Act 1996 s 7B(1)] 7 years $2,000 fine — Total effective sentence: 9 years and 8 months’ imprisonment Non-parole period: 4 years and 10 months Section 6AAA statement: 15 years and 6 months’ imprisonment with a non-parole period of 11 years and 6 months
The applicant has sought leave to appeal against his sentence on the following grounds:[3]
[3]In these reasons, proposed grounds of appeal are referred to as grounds of appeal.
[1]There was an error in the sentence first imposed on charge 1 arising from the sentencing judge having regard to the seizure of 27.4 g (pure) of MDMA (being pills seized from Robert Olczyk’s residence) when assessing the gravity of that charge.
[2]There was an error in the sentence first imposed on charge 2 arising from the sentencing judge:
(a)concluding that the applicant played a ‘superior’ role to that of the applicant’s co-offender Robert Olczyk; and
(b)imposing a sentence that was unjustifiably disparate from the sentence imposed on Olczyk.
[3]The individual sentences imposed on charges 1 and 2, and the order for cumulation made on charge 1 (via the order made in relation to the commencement date of that sentence), were manifestly too long.
[4]The probable effect that any sentence or order under consideration would have on any of the applicant’s family or dependants, which was a relevant sentencing consideration pursuant to s 16A(2)(p) of the Crimes Act 1914 (Cth), was not taken into account.[4]
[4]The applicant amended ground 1 and added ground 4 pursuant to leave. The Crown did not oppose the granting of leave.
The Crown conceded that, in the light of the recent decision of the New South Wales Court of Criminal Appeal in Totaanv The Queen,[5] and the desirability of national uniformity in sentencing for federal offences, leave to appeal should be granted in respect of ground 4. The Crown otherwise opposed the granting of leave to appeal.
[5][2022] NSWCCA 75 (‘Totaan’). See [107] below.
The applicant also seeks an extension of time within which to file his notice of application for leave to appeal. The Crown did not oppose the granting of an extension of time.
For the reasons that follow, the application for an extension of time will be granted, leave to appeal will be granted in respect of ground 4 and leave to appeal will be refused in respect of grounds 1 to 3.
Extension of time
Pursuant to s 279(1) of the Criminal Procedure Act 2009, an offender may file a notice of application for leave to appeal against sentence within 28 days after the day on which he or she is sentenced. Section 313(1) provides that the Court may extend that time.
Having been sentenced on 18 February 2021, the applicant had until 18 March 2021 to file a notice of application for leave to appeal. He filed his notice on 8 September 2021, nearly six months out of time. Accordingly, on that day, he also filed an application for an extension of time.
The applicant’s solicitor swore an affidavit in support of the application for an extension of time. He attributed the delay to a change in legal representation, the complexity of the case and the voluminous material that new counsel had to review.
In my opinion, the solicitor’s affidavit is too general in nature and does not provide a frank and thorough explanation for the delay, as required by the authorities.[6] However, it is clear from the affidavit that the applicant gave timely instructions for the proposed appeal and he and his sister made regular contact with the legal advisers to obtain updates on progress. As the applicant is not responsible for the delay and the Crown does not oppose the application for an extension of time, I will grant it.
[6]See Longley v The Queen [2021] VSCA 288, [11]–[13]; Lee v Yap [2021] VSCA 297, [48].
Circumstances of the offending
In the two and a half years leading up to May 2016, the applicant and Olczyk were in regular contact. During this period, ‘Flying Kangaroo’ began offering MDMA tablets or capsules for sale on the dark net marketplace platform ‘Silk Road 2’ (until that platform was closed down by United States authorities in November 2014) and by encrypted communications with already established buyers on the ‘Wickr’ application under the name ‘FKanga’.
From 22 July 2015, the applicant leased a factory at Keys Road, Moorabbin.
In early May 2016, Flying Kangaroo announced on the ‘Dream Market’ and ‘AlphaBay’ dark net marketplaces that it was relaunching and advertised MDMA capsules for sale. From 5 June 2016, instead of selling capsules, Flying Kangaroo sold distinctive MDMA tablets which were blue, circular, bevel-edged and impressed with the Qantas flying kangaroo logo. These tablets were advertised and sold by Flying Kangaroo on the dark net and by ‘NVSD’ via Wickr until the date of the applicant’s arrest on 23 November 2016. ‘NVSD’ is an acronym for the names of the applicant’s two dogs separated by the abbreviation of versus (‘vs’). A search of the applicant’s mobile phone revealed a photograph of three of the distinctive tablets taken at 1:03 pm on 16 May 2016. Charge 1 (possess substance, equipment or instructions for commercial manufacture of controlled drugs) relates to the 27-week period from the date of this photograph until the applicant’s arrest.
The applicant planned to manufacture MDMA with a constituent MDA precursor which was also to be manufactured. This planning involved instructions to manufacture, photography of the attempts to manufacture, the purchase of new ingredient substances, the purchase of new equipment and the receipt of instructions as to how to repair defective equipment and photography of such defective equipment. The applicant had major online input in relation to the ordering process and the after-sales liaison with Chinese suppliers when problems arose. Photographs still stored (and also sometimes probably deleted) from his mobile phone in combination with still-stored chat dialogues confirmed his direct overseas involvement.
Orders for MDMA placed through Flying Kangaroo were conveyed by the applicant to Olczyk who then packed and posted the orders.
According to the written prosecution summary, which the applicant accepted was factually accurate, Olczyk was the ‘hands on, head up’ contributor: collecting equipment, pressing pills, processing orders and posting packages. The applicant’s role was ‘more superior, cerebral, secretive and secure’. The applicant was very adept at concealing his identity. He exerted ‘considerable influence and commanding control vis à vis … Olczyk’. A number of messages sent between them during the period from 2014 until the date of their arrest confirm ‘the deprecating and demanding demeanour’ of the applicant towards Olczyk. The messages from Olczyk ‘only very rarely manifested any resistance or resentment towards such treatment’. The following paragraph from the written prosecution summary is instructive in this respect:
On 18th July 2016, [the applicant] had sent a message to Olczyk in terms ‘Fix wickr’. He then sent, ‘Don’t msg me dik. DEA all over this number’. This provoked an immediate apology from Olczyk ‘I know I’m so sorry’.[7]
[7]‘DEA’ means the United States Drug Enforcement Administration.
Between 6 June and 16 June 2016, 18 orders for a total of 330 of the blue Flying Kangaroo tablets were placed. Those orders comprised 14 orders for 10 tablets, two orders for 20 tablets, one order for 50 tablets and one order for 100 tablets. On 17 June 2016, Federal Agent Phelps first placed an order for some of the tablets.
Using three covert online personas, Phelps dealt with the operator of the Flying Kangaroo AlphaBay dark net marketplace site. Using the name ‘RedBandit’, she also later dealt with Flying Kangaroo (using the name ‘NVSD’) on the Wickr messaging application. The applicant was the operator of both the Flying Kangaroo AlphaBay site and the NVSD Wickr username.
Wickr messages exchanged between NVSD and Phelps in November 2016 confirmed that a ‘new batch’ of red tablets to be named ‘FK 2.0’ was then imminent.
Charge 2 (business of trafficking a marketable quantity of a controlled drug) relates to the 23-week period from the date of Phelps’ first order on 17 June 2016 until the applicant’s arrest on 23 November 2016. A marketable quantity of MDMA is not less than 100 g of pure MDMA. Under charge 2, the applicant trafficked at least a marketable quantity of MDMA. The prosecution was not able to more precisely quantify the MDMA. Charge 2 is based upon the following evidence:
(a)Purchase and receipt of nine orders by Phelps, plus an additional gratuitous supply in response to a complaint, comprising a total of 305 blue tablets. All tablets were sent by Australia Post Express Post mail to one of three Sydney addresses. The letters were collected, deconstructed and their contents analysed. The total net weight of pure MDMA was 21.6 g. Toolmark examination confirmed that the tablets were either produced by a pill press located at the factory, or were consistent with production by that pill press. Fingerprint analysis revealed Olczyk’s fingerprints upon one of the 10 envelopes.
(b)MDMA tablets supplied to one or two other customers, seized at Moorabbin Mail Centre on 9 September 2016. A total of 22 tablets were seized from two envelopes addressed to Western Australian addresses. These tablets contained 1.8 g of pure MDMA.
(c)Business records of AlphaBay seized by the FBI. These records show that, between 17 June 2016 and 22 November 2016, 116 orders were placed by 72 different buyers on AlphaBay for a total of 3,130 Flying Kangaroo MDMA tablets. The total noted Bitcoin amount payable in respect of those orders during the offence period was USD 31,190.83. This does not include the Wickr sales.
(d)The listing of sales of blue tablets as shown on the AlphaBay website. Screen images captured by Phelps commencing in early June 2016 show that, between 5 June 2016 and 23 November 2016, 118 sales of 2,170 tablets had been listed (70 orders for 10 tablets, 31 orders for 20 tablets and 17 orders for 50 tablets). There were also seven feedback reports from different AlphaBay buyers in relation to sales of 100 tablets per buyer (and thus 700 tablets). Adding those 700 tablets, at least 2,870 tablets were sold on AlphaBay. This does not include the Wickr sales.
(e)Documents seized from Olczyk’s residence show the names of very recent recipients of listed quantities of tablets. In addition to Phelps’ most recent purchases for ‘Smith’, there are seven names in relation to a total of 190 dispatched tablets (Albion [20], Bellicano [20], Brown [10], Gahnu [20 + 20], Guerin [50], Tan [10] and Welsh [20 + 20]).
(f)Messages sent by the operator of the Flying Kangaroo AlphaBay website to the online personality of Phelps in September 2016, which state that Flying Kangaroo dispatched ‘a shitload’ of orders and that, in a standard production run, ‘I make 1 kg at a time’.
(g)200 blue Flying Kangaroo tablets containing 27.4 g of pure MDMA seized from Olczyk’s residence. This verifies stock in hand then available for immediate packaging and dispatch as at 23 November 2016.
(h)Olczyk’s possession of $15,000 cash in combination with documentation seized from his residence on which he wrote ‘FK owes me 15’ and ‘FK owes 15’. A typed file located on the Lenovo laptop computer seized from the applicant’s residence, beneath a heading ‘FK’, deducts $15,000 from an amount of $25,400 and then deducts listed disbursements to ‘Robbie’ and ‘Paul’ leaving a balance of $7,600 which is split equally between ‘Paul’ and ‘Ogorki’ (a Polish nickname for Olczyk).
The applicant and Olczyk were arrested on 23 November 2016. Police searched their residences and the factory. The applicant’s fingerprints were located on some funnels, flasks and documents relating to MDMA manufacturing found at Olczyk’s residence. Consistent with the applicant’s acute aversion to risk, the police search of his residence failed to reveal the ‘mother lode’ of manufacturing paraphernalia, powder and product that was located at both the factory and Olczyk’s residence.
Police seized from the factory a small safe containing a substance (329.8 g of pure MDMA). They seized from Olczyk’s residence the 200 blue Flying Kangaroo tablets (27.4 g of pure MDMA) to which I have already referred, and a quantity of brown crystalline material (5.4 g of pure MDMA). The amount of pure MDMA seized from Olczyk’s residence was 32.8 g.
Seven tablets containing MDMA were located at the applicant’s residence: six blue tablets (which were not impressed with a flying kangaroo) in a plastic zip‑locked bag inside an ‘Eclipse Chewy Mints’ tin, and one red tablet with an impressed flying kangaroo in a clip seal bag. A sample blue tablet contained 25.3 per cent pure MDMA and the red tablet contained 24.1 per cent pure MDMA plus caffeine. The extrapolated pure weight of MDMA within the seven tablets was 0.3 g (charge 3 — possess a controlled drug). The six blue tablets had been pressed in one of the two presses located at the factory, whereas the red tablet had not.
At the time of the search, police were in possession of an order under s 3LA(2) of the Crimes Act, which required the applicant to assist police to access his computer and mobile phone. He refused to comply with a formal request to provide the password, or otherwise provide access, to his phone (charge 4 — fail to comply with an order under s 3LA(2)). Police were otherwise able to obtain access to his phone several months later, although never the Wickr application.
The items the subject of charge 1 were listed in Annexure A to the written prosecution opening (‘Annexure A’). Those items include:
(a)the six blue tablets seized from the applicant’s residence;
(b)a packing slip for three Teflon magnetic stirrer bars in an envelope addressed to the applicant at his work address, seized from his vehicle;
(c)photographs of blue tablets, a crystalline substance and equipment for manufacturing MDMA stored on the applicant’s seized phone and computer;
(d)instructions for manufacturing MDMA stored on the applicant’s computer;
(e)invoices stored on the applicant’s computer for the purchase of supplies for manufacturing MDMA;
(f)Skype chat records stored on the applicant’s phone and computer relating to the purchase of supplies for manufacturing MDMA, and relating to defective equipment;
(g)equipment and supplies for manufacturing MDMA seized from Olczyk’s residence and the factory, such as:
(i)funnels, flasks, retort stands, digital scales and magnetic stirrers;
(ii)numerous containers of helional, methanol, chlorine, xylene, bleach, hydrochloric acid and acetone;
(iii)a plastic bag of blue food dye;
(iv)two pill presses which had substantial amounts of blue powder residue on them;
(v)the 200 blue Flying Kangaroo tablets (27.4 g) and the quantity of brown crystalline material (5.4 g) seized from Olczyk’s residence (item 77);[8] and
(vi)the substance in the small safe seized from the factory (329.8 g) (item 80).[9]
[8]See [22] above.
[9]See [22] above.
The pure MDMA referred to in (v) and (vi) above totalled 362.6 g.
Applicant’s personal circumstances
The applicant was aged 37 at the time of the offending and 42 at the time of sentencing.
The applicant is the eldest of three children born in Australia to English immigrants. He has always been close to his mother but, for much of his childhood, he feared his father, who was a strict disciplinarian. He lived with his grandmother from the age of 15. In recent years, he has reconciled with his father and enjoys a close relationship with his brother and sister.
Although there were behavioural issues during the applicant’s secondary schooling, he completed his VCE. He twice commenced tertiary computing courses, but did not complete them. He later completed certification with Microsoft as a system engineer.
The applicant has been consistently employed since he was 15 years old. In his early 20s, he was self-employed as an IT contractor/consultant, building and setting up computers and installing software. He was later employed in various IT support roles. He operated a number of successful small businesses, before starting a building company with his brother, MPR Building Pty Ltd, in 2007 or 2008. The applicant initially worked ‘on the tools’ and then settled into a client management and accounts role once the company became successful. He stepped away from a public role in the company following media reporting on his offending.
The applicant has had three significant relationships. His first relationship lasted from the ages of 19 to 24. He was later in a relationship with Ayla O’heir from 2010 to 2015, including one year of marriage. They share one son, Michael, aged 7. The applicant is Michael’s primary carer. From 2015 to 2019, the applicant was in a relationship with Rachelle Kaldor.
The applicant experienced significant behavioural problems as a young person, and bouts of elevated anxiety from his late teens. He has participated in various episodes of counselling and medical treatment since secondary school. During this time, he has been prescribed several antidepressants, which he was continuing to take while on bail.
The applicant drinks alcohol only sparingly and does not use illicit drugs. He has no prior criminal convictions.
Olczyk’s personal circumstances
Olczyk was 32 years of age at the time of the offending and 35 at the time of sentencing.
Olczyk was born in Australia to Polish immigrants and had some exposure to family violence in his childhood. His brother and father have returned to live in Poland. He has a close relationship with his mother, who still resides in Australia, and also enjoys the support of his partner. He has no children.
Olczyk completed Year 12 then worked in a variety of jobs, most recently as a sales representative.
Olczyk began abusing cannabis at the age of 15, before progressing to abuse amphetamine, ice and then cocaine. In 2012, following the death of his grandfather and a friend, Olczyk increased his drug use, ceased work and withdrew from many of his stable relationships. He became close to the applicant during this time.
Olczyk has a handful of traffic matters recorded on his criminal history, but no relevant prior convictions.
Plea hearing
The indictment describes charges 1 and 2 in the following terms:
[1]The Director of Public Prosecutions, who prosecutes in this behalf for Her Majesty the Queen, charges that [the applicant] at Melbourne in Victoria between about the 16th day of May 2016 and the 23rd day of November 2016 possessed a substance, equipment or document containing instructions for manufacturing a controlled drug, namely [MDMA], intending to use the substance, equipment or document to manufacture [MDMA] and intending to sell, or believing that another person intended to sell, any of the [MDMA] so manufactured.
Statement of Offence — Possess substance, equipment or instructions for commercial manufacture of controlled drugs, contrary to sub‑section 308.4(1) of the Criminal Code (Cth).
[2]And the said Director of Public Prosecutions further charges that [the applicant] at Melbourne in Victoria between the 17th day of June 2016 and the 23rd day of November 2016 trafficked in a substance, the substance being a controlled drug, namely [MDMA], and the quantity trafficked being a marketable quantity as the [applicant] was engaged in an organised commercial activity that involved repeated trafficking in [MDMA] and the marketable quantity of [MDMA] was trafficked in the course of that activity.
Statement of Offence — Business of trafficking a marketable quantity of a controlled drug contrary to sub-sections 302.3(1) and 311.2 of the Criminal Code (Cth).
In written submissions for the plea hearing, the prosecutor stated that the quantity of 329.8 g of pure MDMA concealed in the small safe at the factory was relevant only to charge 1. The prosecutor did not rely upon that amount of MDMA in proof of the quantum of trafficking in charge 2 under the extended definition of ‘trafficking’ in s 302.1.1(d) of the Criminal Code. The prosecutor submitted in writing that ‘the magnitude of the criminal operation in this matter is reflected in the number of items included in [Annexure A], including the seizure of 329.8 grams of MDMA’.
At the plea hearing, the prosecutor provided the following explanation as to why the seized MDMA was included in Annexure A:
The reason why I’ve put [the seized MDMA in Annexure A], Your Honour, is that there has to be at that place, if there is a process of pressing going on, there has to be raw material in the way of MDMA. And what you then do is you combine it with blue dye so it does start to look like what’s actually ultimately the subject of what’s being sold. Because there’s no blue dye that’s been added to the raw material. There’s raw, very high concentration MDMA that’s found there. Ultimately, the stuff that’s actually marketed is sitting around between 21 and 25, 26 per cent pure. And so, there’s clearly been a dilution. But there nevertheless has to be some raw material there. … And we say that it’s relevant to the substance. … It’s relevant to Charge 1, Your Honour.
…
[I]nsofar as there are photographs of tablets there … we say that that’s in proof of the fact that it was for the purposes of production — that’s the end product, in other words. It’s part of Charge 1, but it’s for a purpose. It’s for the purpose of manufacturing of the tablets … and we say that that’s the end product. But he’s not charged with manufacturing.
…
[It is] relevant on a prospective basis in charge 1 … [It is] relevant to the scale of the enterprise which we say … is prospective in charge 1, it was more than a very small enterprise. We don’t say it was a massive enterprise. [10]
[10]Transcript of Proceedings (16 November 2020) 36.8–23, 67.27–68.4; Transcript of Proceedings (28 January 2021) 153.9–10, 15–18.
As I have already stated, the applicant accepted the accuracy of the written prosecution opening.
At the plea hearing, defence counsel stated as follows in relation to the relevance of the MDMA listed in Annexure A:
[The applicant] is not charged with manufacturing, any drugs. He’s charged with possessing items for the manufacture. … It’s not said he was trafficking those 300 plus grams the subject of Charge 1. … [I]t doesn’t necessarily aggravate the sentence because he’s not charged with the manufacture of it and he’s also not charged with trafficking. So on one view it is in many respects an uncharged act or evidence of context or background … [S]o it’s just another item contained within the list of items that are evidence of … possessing a substance, in that case equipment including laboratory items and some instructions.[11]
[11]Transcript of Proceedings (27 January 2021) 25.24–26, 25.31–26.1, 26.16–20, 29.15–18.
Defence counsel conceded that the applicant was ‘a more sophisticated offender than Olczyk’, that he ‘occupied the [manager] role between the two’, that he ‘was the domineering of the two’ and that he performed a ‘hands off technical’ role.[12]
[12]Transcript of Proceedings (27 January 2021) 21.16, 24.18–19, 25.6, 105.5–6.
The applicant relied upon a psychological report dated 21 December 2020 by Patrick Newton, and an addendum to that report dated 17 January 2021. Mr Newton also gave evidence at the plea hearing.
Mr Newton primarily diagnosed the applicant with a moderate narcissistic personality disorder with antisocial features. He also diagnosed the applicant with a mild mixed anxiety disorder with features of generalised anxiety disorder and obsessive-compulsive disorder.
Mr Newton concluded that there was a clear nexus between the applicant’s personality disorder and his offending conduct but that no clear nexus could be discerned between his anxiety disorder and his offending conduct. He opined that, due to the applicant’s pre-existing anxiety-related disorder, he would be likely to experience a resurgence of anxiety‑related symptoms during the early stages of any time in custody which the Court might impose upon him, which would be considerably greater than is typically the case. Mr Newton further opined that the applicant’s personality vulnerabilities are likely to make it more difficult for him to interact with other prisoners, such that his time in custody would be rendered somewhat more onerous than is typical on account of his pre-existing psychological conditions.
Mr Newton stated that the applicant acknowledged his offending in general terms and described his role as providing ‘back office support’ for Olczyk. He noted that the applicant’s expressions of remorse focused upon the impacts of his conduct for his son and family more broadly. He reported that the applicant stressed Olczyk’s role as the initiator of the criminal activity, and downplayed the broader societal impact of being involved in drug trafficking as well as the potential consequences for those who purchased the drugs.
In cross-examination, Mr Newton gave evidence that the applicant was evasive when they discussed his offending. Mr Newton stated that the applicant rationalised his offending as less serious than it was, and that he did not accept that the applicant’s rationalisation was truthful.
The applicant also adduced evidence of the hardship that his son would experience while the applicant was incarcerated.
Sentencing remarks relating to the applicant
The judge described the applicant’s offending as ‘unmistakably serious criminal conduct’ which was neither isolated nor a ‘youthful frolic’.[13] He said that it was ‘a highly organised and sophisticated criminal business’, which involved ‘multiple separate transactions’.[14] He said that the offending was calculated, with many levels of secrecy and dedicated steps taken to avoid discovery, identification and prosecution.
[13]Rodgerson sentencing remarks [117].
[14]Rodgerson sentencing remarks [14].
The judge stated that the offending the subject of charge 1 was a serious crime owing to its duration and the number and nature of the items particularised in Annexure A.
The judge stated that the MDMA the subject of charge 2 fell above the marketable quantity of 100 g and below the commercial quantity of 500 g. He said that he did not speculate as to the precise quantity, concluding that it was simply no less than 100 g.
The judge found that the possession of seven MDMA tablets the subject of charge 3 was ‘of no real consequence at all’.[15]
[15]Rodgerson sentencing remarks [128].
The judge held that charge 4 was a ‘serious enough crime’ because the applicant deliberately obstructed investigators in an attempt to protect himself.[16]
[16]Rodgerson sentencing remarks [129], [141].
The judge discussed the relationship between the offending the subject of charges 1 and 2 in the context of considering a submission by defence counsel that there should be significant concurrency between the sentences for those charges. Defence counsel contended that ‘the offending in Charge 1 [was] subsumed by the offending in Charge 2, as the drugs in Charge 2 derive from the offending in Charge 1’.[17]
[17]Rodgerson sentencing remarks [125].
The judge rejected defence counsel’s contention. He noted that charge 1 did not involve the manufacturing of drugs and stated that ‘[t]he actual MDMA referred to in Annexure A is in no way the subject of any activity in relation to Charge 2, the trafficking’.[18] He stated that, if the MDMA that the applicant possessed for the purposes of charge 1 was factored into the assessment of the quantity of MDMA trafficked for the purposes of charge 2, then that quantity would be approaching the threshold for a commercial quantity, and thus increase the seriousness of the offending the subject of charge 2.[19] The judge stressed that the items listed in Annexure A, including the quantities of MDMA, ‘are only relevant to Charge 1, not to the trafficking charge’.[20]
[18]Rodgerson sentencing remarks [125].
[19]Rodgerson sentencing remarks [8], [125].
[20]Rodgerson sentencing remarks [8].
Nevertheless, the judge accepted that there was a basis for some concurrency between the sentences for charges 1 and 2 owing to the overlap in timing between the two charges. He stated that the applicant was in the business of trafficking and, for much of the same period, he possessed various substances, equipment and instructions with the intent to use them to manufacture and sell a controlled drug.
The following observations in the judge’s sentencing remarks on the issue discussed above are set out because they are relied upon by the applicant in support of ground 1:
Even as to the charges on the plea indictment, [defence] counsel spoke of the ‘artificiality’ attending to the quantum of the trafficking charge and the almost metaphysical notion of divorcing from my mind when considering that issue, the 350 plus grams of pure MDMA which forms part of the possess substance charge (Charge 1). But that is what I must and will do. Those items appearing in Annexure A, including the quantities of MDMA, are only relevant to Charge 1, not to the trafficking charge. …
…
As I mentioned earlier, the prosecution stressed that the 329 grams of MDMA found in the safe at [the factory], as well as some tablets referred to in annexure A, were relevant only to Charge 1 and were not to be used by the court in any way in assessing the quantity of drug trafficked in Charge 2.
…
[Olczyk’s] possession charge (Charge 4), pertained to the 329 grams of MDMA, but had only a two year maximum term and was not associated with the contention in [the applicant’s] Charge 1 of possessing substances, equipment and instructions intending to use them to manufacture. [The applicant’s] offence does, and it has a seven year maximum.
…
The first charge on the indictment is itself a serious crime, when regard is had to the time period and the number and nature of the items particularised in Annexure A. [Defence] counsel suggests there is a basis for significant concurrency and the Crown do not disagree that there should be some. [Defence] counsel dealt with this … asserting the significant overlap by way of proximity, presumably a reference to timing and secondly factually. [D]ealing specifically with Charge 1, [defence] counsel argued that the offending in Charge 1 is subsumed by the offending in Charge 2, as the drugs in Charge 2 derive from the offending in Charge 1. Well that is plainly a submission which should not have been made. It is not the position at all. It is quite wrong. Had the defence wished to roll the more than 360 grams of pure MDMA referred to in Annexure A, (for charge 1) into the trafficking charge, (Charge 2) that presumably could have been negotiated. There are expanded definitions of trafficking which could have had an application, had that been the desire. See 302.1 Criminal Code. It was not in [the applicant’s] interests to do so, as that would have led obviously enough to a higher level example of the offence of trafficking, as the quantity would have sailed up towards the commercial quantity threshold. [Defence counsel] could not have made the submissions he then made as to quantity. [Defence counsel] submits … that the drugs in Charge 2 derived from the offending in Charge 1, whilst at the same time stressing to the court that the court is not dealing with [the applicant] for manufacturing drugs. I found it to be a confused submission. One thing is very plain to me. The actual MDMA referred to in Annexure A is in no way the subject of any activity in relation to Charge 2, the trafficking. It is in no way subsumed or even factored into the conduct the subject of Charge 2. So it is plain then, that there are serious factual aspects of Charge 1, which are in no way factored in, much less subsumed, as part of Charge 2. [The applicant] cannot have it both ways. [He gets] the benefit of the 329 grams of MDMA (Item 80) and the 200 tablets and the brown crystalline material (Item 77) containing over 32 grams of MDMA, not being factored into the assessment of the quantity of drug trafficked in Charge 2. That was the artificiality spoken of by both counsel.
Well I will act on that basis, but it is then abundantly clear that Charge 2 does not, by any stretch of the imagination, subsume the items in Charge 1. Those items for instance contain over 360 grams of MDMA possessed with the various other items specified in Annexure A. It is a charge of possess substances, equipment or documents (containing instructions), intending to manufacture and sell a controlled drug. Annexure A specifies the items possessed. It is a lengthy list and this is a between dates charge. It is, in my view, a serious example of the offence.[21]
[21]Rodgerson sentencing remarks [8], [26], [107], [125]–[126] (emphasis in original).
The judge accepted that the applicant’s guilty plea should be treated as given at an early stage. He stated that there were very significant utilitarian benefits as a result of the guilty plea, including the fact that the matter settled in the midst of the COVID-19 pandemic.
The judge remarked that, although a guilty plea is usually indicative of some remorse, he was not satisfied in this case that the applicant displayed any genuine remorse for his offending. That was said to be because, whilst the applicant was sorry for placing his family and building company in the positions that he had, the false and self‑serving statements he made to Mr Newton downplayed his role in the offending.
The judge acknowledged that there had been a significant delay between the applicant’s arrest on 23 November 2016 and the sentence delivered on 18 February 2021. He said that many of the steps — including a mutual assistance request involving the FBI — were unavoidable and outside the applicant’s control. He accepted that it would have been stressful for the applicant to have had the matter hanging over his head and that the applicant had conducted himself appropriately during the lengthy period. He concluded that the delay was a sizeable mitigatory factor.
The judge found that some modest weight was to be given to the fifth and sixth limbs in R v Verdins[22] due to the applicant’s anxiety condition. He did not accept that the first, third or fourth limbs were enlivened. That was said be because, in the light of the applicant’s untruthful account of his offending given to Mr Newton, it was simply ‘guesswork’ to attribute some nexus between the applicant’s personality disorder and his offending.[23]
[22](2007) 16 VR 269, 276 [32] (‘Verdins’).
[23]Rodgerson sentencing remarks [96].
The judge stated that in order for any hardship to the applicant’s son resulting from the applicant’s incarceration to qualify as a mitigating sentencing consideration, it had to be ‘exceptional’.[24] The judge found that the applicant’s imprisonment would not cause exceptional hardship to his son. He stated that the applicant’s son would be affected by the applicant’s absence, but that he would be well looked after by his mother and extended family. However, he accepted that the burden of imprisonment upon the applicant would be increased by the separation from his son. He also accepted that the pandemic would increase the burden of imprisonment upon the applicant.
[24]Rodgerson sentencing remarks [64]–[82].
The judge found that the applicant’s motivation for the offending was financial reward. He did not accept that the applicant gave his profits away by way of child support.
The judge concluded that the applicant’s prospects of rehabilitation were ‘quite reasonable’.[25] However, he added that ‘[t]here is at least some risk of re‑offence’.[26]
[25]Rodgerson sentencing remarks [117].
[26]Rodgerson sentencing remarks [117].
The judge accepted that the applicant and Olczyk engaged in ‘a co‑operative partnership’ involving equal division of money and that they were both crucial to the success of the enterprise.[27] However, he stated that the applicant was ‘the brains’ and ‘architect’ of the offending, was ‘superior to Olczyk in every way’ and played ‘a lead role’.[28] He remarked that Olczyk performed the riskier, day-to-day acts, whereas the applicant performed the principal executive role to facilitate the marketing and trafficking of MDMA. He noted that the applicant spoke to Olczyk in deprecating terms and issued him with instructions and commands. He said that, by virtue of his computer expertise, the applicant had the mastery of the medium that made this criminal conduct possible — which included use of the dark net, encrypted messaging and Bitcoin to avoid the risk of identification and arrest — and that Olczyk could not have set up or operated the scheme without the applicant.
[27]Rodgerson sentencing remarks [118]–[119].
[28]Rodgerson sentencing remarks [14], [28], [96], [111], [113], [118]–[119], [124], [140].
The judge stated as follows regarding the sentence imposed upon Olczyk:
Olczyk received a sentence of nine years, eight months with a non-parole period of four years, 10 months, but of course he had very different charges. There was the commercial quantity importation which received the longest of the terms by far. His Charge 2 for which he received four years, related to the same charge and subject matter as [the applicant’s] Charge 2. So that definitely requires me to consider and apply the principle of parity. [Olczyk’s] possession charge (Charge 4), pertained to the 329 grams of MDMA, but had only a two year maximum term and was not associated with the contention in [the applicant’s] Charge 1 of possessing substances, equipment and instructions intending to use them to manufacture. [The applicant’s] offence does, and it has a seven year maximum.
…
I cannot ignore the sentence imposed upon [Olczyk] when I come to sentence [the applicant] on Charge 2 and it does constrain me. Parity has a clear role as the prosecution correctly conceded. It constrains me to a degree.[29]
[29]Rodgerson sentencing remarks [107], [112].
The judge noted that the applicant and Olczyk had both pleaded guilty at early stages. However, he took into account the following differences between the offenders and their roles in the offending:
(a)Olczyk was younger than the applicant.
(b)Olczyk had a short motor vehicle criminal history.
(c)Unlike the applicant, Olczyk was a user of drugs.
(d)Olczyk had a supportive partner.
(e)Olczyk did not have an increased burden of imprisonment arising from the separation from a child or the impact of COVID-19.
(f)Olczyk could not rely upon any of the limbs of Verdins in mitigation, whereas the applicant had a modest allowance in relation to the fifth and sixth limbs.
(g)Although the applicant’s delay was longer, the delay in Olcyzk’s case was an excruciating one due to spending an ‘unprecedented’ period of close to two years on remand after he was arraigned and pleaded guilty.[30]
(h)Olczyk’s prospects of rehabilitation were more positive than the applicant’s.
(i)Unlike the applicant, Olczyk was genuinely remorseful.
(j)The applicant’s role was superior to that of Olczyk.
[30]Rodgerson sentencing remarks [63], [111].
The judge found that general deterrence was of real importance given the highly organised, highly sophisticated, serious offending. He said that he must also give some weight to denunciation, just and proportional punishment, specific deterrence and community protection.
Sentencing remarks relating to Olczyk
As with the applicant, the judge sentenced Olczyk on the basis that the MDMA the subject of charge 2 was simply no less than 100 g, being the minimum marketable quantity.
The judge noted that there had been a ‘most unfortunate delay’ of close to three years since Olczyk’s arrest on 23 November 2016 until the date of sentencing on 7 October 2019.[31] He stated that the delay of 22 months between the date Olczyk pleaded guilty in December 2017 and the date of sentencing was unique, albeit that the delay — which included mutual assistance requests involving the FBI in relation to both Olczyk and the applicant — was not deliberate. He said that the delay was of significant mitigatory value, especially because Olczyk had been held on remand throughout this period.
[31]Olczyk sentencing remarks [37].
The judge concluded that Olczyk committed the offending for financial gain, rather than to fund his drug habit. The judge said that Olczyk’s conduct was deliberate, sustained and not uncomplicated, and that this was not consistent with someone whose life was out of control with drug abuse.
The judge stated that Olczyk pleaded guilty at an early stage, which was of a very significant utilitarian benefit. He found that Olczyk displayed genuine remorse and had used his time in custody usefully: undertaking courses, working as a gym billet and remaining drug free since early 2017. He held that Olczyk had ‘really quite strong’ prospects of rehabilitation.[32]
[32]Olczyk sentencing remarks [38], [56].
Ground 1: Gravity of the offending the subject of charge 1
The applicant conceded that the 329.8 g of pure MDMA in the small safe that was seized from the factory and the 5.4 g of pure MDMA seized from Olczyk’s residence — which were included in items 77 and 80 of Annexure A — were relevant to the assessment of the seriousness of the offending the subject of charge 1. That concession was appropriate. These quantities of MDMA were ‘raw material’ which was intended to be converted into tablets and, thus, a ‘substance’ within the meaning of s 308.4(1)(a) of the Criminal Code. Conversion of the raw material into tablets is captured by the definition of ‘manufacture’ in s 305.1, which includes ‘any process by which a substance is converted from one form to another, including the process of extracting or refining a substance’.
However, the applicant submitted that the position was otherwise with regard to the 27.4 g of pure MDMA in the 200 blue Flying Kangaroo tablets that were seized from Olczyk’s residence and also formed part of item 77 of Annexure A. The applicant accepted that, as the 200 tablets were included in Annexure A and that annexure formed part of the agreed statement of facts, the tablets could not be said to be irrelevant to charge 1. However, he contended that the basis of relevance was unclear and, in any event, the quantity of 27.4 g of pure MDMA in the tablets was not relevant to an assessment of the seriousness of the offending the subject of charge 1.
The applicant relied upon the judge’s sentencing remarks set out at [59] above in support of a contention that the judge had regard to the 27.4 g of pure MDMA in the 200 tablets in his assessment of the gravity of the offending the subject of charge 1. He argued that the judge erred in doing so. The applicant conceded that if the Court could not distil from those sentencing remarks that the judge determined that the offending the subject of charge 1 was rendered more serious due to the applicant’s possession of the 200 tablets, then ground 1 must fail.
The applicant argued that, by having regard to the 27.4 g of pure MDMA in the 200 tablets when assessing the gravity of the offending the subject of charge 1, the judge infringed the principle that an offender is not to be sentenced for an offence that he or she has not been found to have committed.[33] That was said to be because the charge did not include either the manufacturing or trafficking of MDMA. Rather, so it was said, the charge merely alleged that the applicant possessed certain items with a certain intention, as set out at [39] above.
[33]The applicant relied upon R v De Simoni (1981) 147 CLR 383.
According to the applicant, the quantity of 27.4 g of pure MDMA in the 200 tablets could not be said to be relevant to the offending the subject of charge 1 on the basis that its possession by the applicant could support an inference that his possession of the other items in Annexure A was for the purpose of manufacturing the final product constituted by the tablets.
The applicant submitted that the judge’s error in having regard to the 27.4 g of pure MDMA in the 200 tablets in assessing the gravity of the offending the subject of charge 1 was material to the sentencing exercise and therefore leave to appeal should be granted in relation to ground 1.
The Crown submitted that the judge did not err in having regard to the 27.4 g of pure MDMA in the 200 tablets in assessing the gravity of the offending the subject of charge 1. That was said to be so for the following reasons.
(a)It was clear on the plea that the applicant was being sentenced on charge 1 for possessing a substance, equipment or instructions that could be used for the commercial manufacture of MDMA, and not for the more serious offences of manufacturing or trafficking that drug. The 200 tablets containing 27.4 g of pure MDMA were relevant to assessing the gravity of charge 1 as they were the ‘end-product’ which evidenced the applicant’s intention to use the raw materials to manufacture a controlled drug and to sell, or his belief that another person would sell, any of that drug. These tablets also provided context to the other items in Annexure A that made up charge 1, such as the otherwise benign blue food dye and funnels.[34]
(b)Annexure A, which listed the items (including the seized MDMA) said to have been possessed by the applicant for the purpose of commercially manufacturing MDMA, was annexed to the agreed prosecution opening. The applicant did not take issue on the plea about the relevance of any items listed in Annexure A for the purposes of sentencing on charge 1.
(c)Even if the judge did erroneously have regard to the 200 tablets in assessing the gravity of charge 1, they represented only 27.4 g of a total 362.6 g of pure MDMA and they were just one of a vast number of items listed in Annexure A on which the gravity of the charge 1 offending was assessed. Accordingly, the 200 tablets would not have materially affected the sentence imposed. In those circumstances, and given the matters outlined below for ground 3, there is no reasonable prospect that this Court would impose a less severe sentence on charge 1.
[34]The Crown referred to the second of the passages in the prosecutor’s statement set out at [41] above.
In my opinion, ground 1 is not reasonably arguable and therefore leave to appeal should be refused in relation to it.
The quantity of 27.4 g of pure MDMA in the 200 tablets was included in Annexure A with the concurrence of the applicant. Annexure A and the written prosecution opening which it accompanied formed part of the agreed facts upon which the judge was required to sentence the applicant. All of the agreed facts were placed before the judge on the basis that he should consider them in undertaking the sentencing exercise. Accordingly, it could not be said that the judge was required to treat any item in Annexure A as irrelevant. Of course, the weight, if any, to be given to any item was a matter for the judge.
As appears from [41] above, on the plea, the prosecutor submitted that the 200 tablets were relevant to proving that the purpose for which the applicant possessed the other items in Annexure A was to manufacture MDMA in the form of similar tablets, that is, that the tablets were the intended end product. Contrary to the applicant’s submission before this Court, the prosecutor’s explanation of the relevance of the 200 tablets was clearly correct. As appears from [43] above, defence counsel did not cavil with this explanation and made observations as to the relevance of the seized MDMA.
I accept that it can be concluded from the judge’s observations in his sentencing remarks set out at [59] above that he regarded the applicant’s possession of the 27.4 g of pure MDMA in the 200 tablets as relevant to the sentencing exercise in relation to charge 1. Although the judge did not elaborate on how the tablets were relevant, there is no reason to doubt that he relied upon the prosecutor’s explanation of their relevance. He did not err by doing so.
I am not persuaded that there is anything in the judge’s sentencing remarks set out at [59] above that indicates that he determined that the offending the subject of charge 1 was rendered more serious due to the applicant’s possession of the 27.4 g of pure MDMA in the 200 tablets or, put another way, that he treated that possession as an aggravating factor. Those remarks demonstrate that the context in which the judge repeatedly referred to the entire quantity of 362.6 g of pure MDMA in items 77 and 80 of Annexure A (inclusive of the 200 tablets) was the need to ensure that this quantity was not relied upon for the purposes of charge 2. Having regard to the applicant’s concession set out at [77] above, ground 1 is not reasonably arguable.
Even if, contrary to the above conclusions, I had been satisfied that the judge erred in relation to the manner in which he took into account the 27.4 g of pure MDMA in the 200 tablets for the purposes of charge 1, I would not have been satisfied that such an error was material to the judge’s exercise of the sentencing discretion. That is because, as submitted by the Crown, whether the applicant possessed 362.6 g of pure MDMA or 335.2 g of pure MDMA (that is, 362 g less 27.4 g) does not materially affect the gravity of the offending the subject of charge 1. For the same reason, even if the judge erred, there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence imposed by the judge in relation to charge 1.[35]
[35]CPA s 280(1).
Ground 2: Parity on charge 2
The applicant submitted that it was not open to the judge to find that he was ‘the brains’ of the criminal operation and ‘superior’ to Olczyk. He contended that the material before the judge showed that he and Olczyk were both equally culpable because they worked together in a ‘co‑operative partnership’, notwithstanding that Olczyk ‘played a more visible role’. According to the applicant, he and Olczyk both played crucial roles, both needed the other to execute the offending and both shared the profits equally. He argued that Olczyk was a willing participant in the offending.
The applicant referred to his sentence of 5 years’ imprisonment on charge 2 and Olczyk’s sentence of 4 years’ imprisonment on the same charge. He submitted that, having regard to the applicable objective and subjective considerations that informed both sentencing tasks, that disparity was unjustifiable. He contended that a different sentence could be imposed upon him on charge 2 without descending outside the range of appropriate sentences.
The applicant conceded that if he could not establish that the judge erred in finding that he played a superior role to that of Olczyk, then ground 2 must fail because he would not be able to demonstrate that the disparity in their sentences was unjustifiable.
The Crown submitted that it was open for the judge to conclude that the applicant was ‘the brains’ of the criminal operation and ‘superior’ to Olczyk. It contended that there was no dispute on the plea that Olczyk’s role in the offending was to perform ‘hands on’ tasks including collecting equipment, pressing pills, processing orders and posting packages. It was said that, by contrast, the applicant’s role was to perform more ‘cerebral’ duties and the principal executive role of facilitating the marketing and trafficking of MDMA.
The Crown acknowledged that the judge accepted that the criminal relationship between the applicant and Olczyk was symbiotic, in that the pair relied upon one another and were to share profits equally. However, it argued that it remained open for the judge to reject the applicant’s assertions that he was not superior to Olczyk. That was said to be so because the judge made the following findings:
(a)The applicant adopted a domineering, deprecating and demeaning attitude towards Olczyk.
(b)The applicant instructed and directed Olczyk to perform tasks, not vice versa, which the latter willingly performed.
(c)As the applicant knew, Olczyk could never have set up or run the scheme, particularly as he lacked the applicant’s computer expertise.
(d)Olczyk would not have been able to take the ‘determined and complex steps to isolate’ himself from discovery that the applicant took. Rather, Olczyk performed the visible, day-to-day tasks that generally carried the most risk of detection.
(e)The applicant was the architect of what was a complex scheme, in the sense of setting up the strategy.
(f)The applicant had the computer acumen, including using Bitcoin and the dark web, necessary to make the criminal conduct possible.
The Crown submitted that the judge plainly had regard to the principle of parity when determining the sentence to be imposed upon the applicant on charge 2. It contended that the sentencing differential of only 12 months was not so marked as to give rise to a justifiable sense of grievance.
The Crown argued that, despite the applicant having some matters in mitigation which Olczyk did not have, it was nonetheless open to the judge to impose a lower sentence on Olczyk. That was said to be because of three ‘weighty’ distinctions. First, although the delay in finalising Olczyk’s matter was shorter than the applicant’s, its effect on Olczyk was ‘excruciating’ and its circumstances were ‘unprecedented’ with him spending close to two years on remand before being sentenced. Secondly, Olczyk has better prospects of rehabilitation, exhibited actual remorse and had utilised his lengthy time in pre-sentence detention well. Thirdly, Olczyk’s role was subordinate to that of the applicant.
In my opinion, ground 2 is not reasonably arguable and therefore leave to appeal should be refused in relation to it.
The differences in the roles of the applicant and Olczyk were described in the written prosecution summary in the manner set out at [16] above and were also the subject of the concessions made by defence counsel set out at [44] above. The written prosecution summary which, as I have said, constituted an agreed statement of facts, expressly stated that the applicant’s role was ‘more superior, cerebral’ than that of Olczyk and that he exerted ‘considerable influence and commanding control vis à vis … Olczyk’. The concessions by defence counsel included that the applicant ‘occupied the [manager] role between the two’ and that he ‘was the domineering of the two’. In the light of the applicant’s acceptance that these and other similar phrases accurately described his role relative to that of Olczyk, it cannot seriously be maintained that the judge erred in finding that the applicant played a ‘superior’ role to that of Olczyk or that the applicant was ‘the brains’ of the criminal operation.
It follows that, consistent with the applicant’s concession set out at [90] above, ground 2 cannot be made out.
Ground 3: Manifest excess
The applicant submitted that the individual sentences imposed upon charges 1 and 2, and the order for cumulation made upon charge 1, were manifestly excessive in the light of the following matters:
(a) parsimony;
(b)the applicant’s guilty pleas, which were entered in circumstances where the COVID-19 pandemic has had a profound impact upon the administration of criminal justice;
(c)the absence of any criminal record;
(d)delay;
(e)the hardship that the applicant will endure in custody;
(f)the fifth and sixth limbs in Verdins;
(g)parity on charge 2;
(h)the judge’s assessment that the applicant’s prospects of rehabilitation are quite reasonable; and
(i)totality.
The Crown submitted that, in all the circumstances, the sentences for charges 1 and 2, and the order for cumulation on charge 1, cannot be said to fall outside the applicable range. That was said to be so because of the following matters:
(a)The maximum penalty for charge 2 was 25 years’ imprisonment, reflecting the seriousness with which Parliament considers the offending, and the maximum penalty for charge 1 was 7 years’ imprisonment.
(b)Charge 1 was a serious offence involving the possession of 362.6 g of pure MDMA, along with many other items listed in Annexure A, for the commercial manufacture and sale of a controlled drug.
(c)Charge 1 was not isolated but covered the period between 16 May and 23 November 2016.
(d)Charge 2 involved trafficking in a marketable quantity of MDMA, being not less than 100 g.
(e)Charge 2 covered a period of trafficking between 17 June and 23 November 2016 and concerned a ‘business’ operated by the applicant.
(f)The offending the subject of charges 1 and 2 was highly organised and sophisticated, involving:
(i)multiple transactions;
(ii)high-level preparation and planning, including marketing activities on the dark web;
(iii)encrypted communications to avoid detection; and
(iv)the use of Bitcoin for payment to ensure anonymity and prevent detection.
(g)General deterrence was of the utmost importance. The sentence also needed to reflect specific deterrence, community protection, denunciation, and just and proportional punishment.
(h)The offending was committed for financial gain, as opposed to need or drug dependence, and the reward would have been large enough to justify the risks in undertaking serious criminal conduct.
(i)The applicant lacked any insight or true remorse for his offending, despite the plea of guilty, because he downplayed his role in the account he gave to Mr Newton.
(j)The applicant’s degree of moral culpability — and the weight to be given to general or specific deterrence — was not reduced by the application of Verdins principles.
(k)The judge gave adequate weight to the mitigating factors put on behalf of the applicant, including the matters set out at [98(b) to (h)] above.
(l)The degree of cumulation between charges 1 and 2 appropriately reflected both the differences and the contemporaneity of the two offences.
In my opinion, ground 3 is not reasonably arguable and therefore leave to appeal should be refused in relation to it.
The offending the subject of charges 1 and 2 was very serious, for the reasons set out in the judge’s sentencing remarks. It was sophisticated, planned and extended over a period of many months, ceasing only upon the arrest of the applicant and Olczyk. Paragraphs (c) to (f) of the Crown’s submissions summarised at [99] above are particularly pertinent in this regard.
I accept that the applicant was able to rely upon the important mitigating factors set out at [98] above, particularly his guilty pleas entered during the pandemic. However, the judge gave appropriate weight to all of these factors and imposed sentences for charges 1 and 2 which would have been significantly greater but for those factors.
In the light of the above considerations and the matters set out in paras (a) and (g)–(j) of the Crown’s submissions summarised at [99] above, the sentences imposed by the judge for charges 1 and 2 could not be said to be wholly outside the range of sentences available to the judge for those charges.
Likewise, having regard to the serious and distinct nature of the offending the subject of charge 1, the cumulation of 1 year and 3 months’ imprisonment for the sentence for that charge could not be said to be manifestly excessive.
Ground 4: Family hardship
As discussed at [64] above, the judge found that in order for any hardship to the applicant’s son resulting from the applicant’s incarceration to qualify as a mitigating sentencing consideration, it had to be ‘exceptional’.
Section 16A(2)(p) of the Crimes Act relevantly provides that, in sentencing a person for a federal offence, in addition to any other matters, the court must take into account certain other matters ‘as are relevant and known to the court’. Those matters include ‘the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants’.
In Totaan, a five member bench of the New South Wales Court of Criminal Appeal determined that decisions holding that a court imposing a sentence for a federal offence may only have regard to hardship to a family member or a dependant where the circumstances of hardship satisfied the epithet ‘exceptional’, are plainly wrong and should not be followed.[36]
[36][2022] NSWCCA 75, [77], [92]–[93], [148]–[151.
In the light of Totaan, the Crown conceded that leave to appeal should be granted in relation to ground 4. The Crown emphasised that its concession was informed by the desirability of national uniformity in sentencing for federal offences.
In my opinion, the Crown’s concession was appropriate in the circumstances. Accordingly, leave to appeal will be granted in relation to ground 4.
Conclusion
For the above reasons, the application for an extension of time will be granted, leave to appeal will be granted in respect of ground 4 and leave to appeal will be refused in respect of grounds 1 to 3.
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