District Court New South Wales Medium Neutral Citation: R v Conroy [2020] NSWDC 604 Hearing dates: 11 September 2020 Date of orders: 11 September 2020 Decision date: 11 September 2020 Jurisdiction: Criminal Before: Neilson DCJ Decision: Sentence 4 years – NPP 2 years 4 months Catchwords: FEDERAL CRIMINAL LAW – SENTENCE Attempt to import a marketable quantity of methamphetamine (194.376 grams pure) – Offender 22 years old at the time of the offence, 23 years at sentence – No prior relevant conviction – Some disadvantage growing up – Suffering a generalised anxiety disorder at time of offence which affected his judgment – Offender knew what the drug was and how much drug there was prior to attempting the importation – Expected to make between $4,000 & $5,000. Legislation Cited: Criminal Code 1995 Cases Cited: R v Faver [2020] SAFC 49 Wong v The Queen (2001) 207 CLR 584 Category: Sentence Parties: Regina – Crown Luke William Conroy – Offender Representation: J. Rolan – Crown W. Brewer – Offender File Number(s): 2019/00315445 Publication restriction: Nil. Judgment 1. HIS HONOUR: Luke William Conroy stands for sentence as a result of pleading guilty to a charge that on or about 9 October 2019 at Sydney in this State he did attempt to import a substance, the substance being a border controlled drug, namely methamphetamine and the quantity attempted to be imported was a marketable quantity. By the combined operation of s 307.2(1) and s 11.1(1) of the Criminal Code, that is an offence punishable by imprisonment for 25 years and or a fine of 5,000 penalty units. The offender attempted to take delivery of an importation of 194.376 grams of pure methamphetamine at the Kensington Post Office on 9 October 2019. Facts 1. Prior to that event, the offender was a drug user. To communicate with those who supplied him with drugs, the offender used the Wickr application on his mobile phone. That allowed him to send encrypted messages which automatically deleted after a fixed time, no greater than six days. On 29 August 2019, he had a conversation with another Wickr user who used the name "Jackson 10". In that conversation this occurred. Offender: "I seen something on news not too long ago about baby formula getting bought in bulk and it gets used out hard, I think. So I'm surprised it's all working again with baby formula. Ha ha." Jackson 10: "No, it works. Cause it's organic like milk. Looks the same. On the x-ray." Offender: "Oh shit, really." Jackson 10: "The cameras don't work." Offender: "Ha, ha, ha, that's dope." A little later in the conversation, Jackson 10 said this: "And he said if you start doing runs, he want you to give(?) money out of each run so you don't have to tick he coke, I said, yeah, he will. Know what I mean bro". To that the offender replied in the affirmative. That clearly indicates that the offender knew that methyl amphetamine was being imported in shipments of baby formula and it was thought by those importing the methamphetamine into Australia that cameras used by the Australian Border Force would not detect methyl amphetamine concealed within baby formula. Furthermore, it indicates that another person using Wickr was prepared to have the offender distributing drugs. 1. Another Wickr user was "Nozeros". On Monday 7 October 2019 the offender had this conversation with Nozeros: Nozeros: "I have two five zero grams being delivered on Wednesday to a locker. Would you be interested in taking them and me telling you to send out ounces in express bags to addresses I give you and there is just under 9 ounces in that and that would be sent in two-4 ounces per express bag and you make $400 to $500 per ounce so potentially you could make $4,000 to $5,000 from that." Offender: "Yeah, bro, that sounds dope." Nozeros: "Okay I have a new customer. Well may [be] two that want it by this and I can get them to pay with Bitcoin but I'll pay you with cash of course. So you don't have to meet anyone or touch cash, just send out the shit." Offender: "Sounds good to me, bro." Nozeros: "Yeah, it will be a killer...". Offender: "So I grab the stuff, bring it up to my then bag it all up and send? Or do it in Syd somehow." Nozeros: "I have another 600 grams on the way too in six parcels and we have dropped the weight to try have a better success rate." 1. There was a further conversation on Wickr between the offender and Nozeros on Tuesday 8 October 2009. In that Nozeros told the offender that a consignment was at the post office at Kensington. However, the offender was at the time, I infer, on the Central Coast. If he went to pick it up at Kensington he would arrive back at his residence "just after 6pm". Nozeros inquired of the offender whether he had scales and the offender replied in the affirmative. Clearly that was for weighing out ounce amounts of the methamphetamine so that they could be distributed. Given the time requirements involved, Nozeros told the offender to leave the pick-up until the following day. 2. There was a further Wickr conversation between the offender and Nozeros commencing at 10.41am on Wednesday 9 October 2019. That provided in the agreed facts is this. Nozeros: "Remember to sign it to this time mate." Offender: "So I need to print something off? I just write the letter." Nozeros: "Just write the letter...". Offender: "Hey, I'm at the post office now about to grab it...". The agreed facts indicate that at the time the offender said that he was at the post office, it was 11.38am. 1. The consignment had been intercepted by the Australian Border Force ("ABF"). The consignment was sent from the United States of America. It was intercepted by the ABF on 29 September 2019. The consignment was said to contain a teddy bear, baby formula, bibs, a teething ring and bottles. No doubt the bottles were thought to be bottles for baby formula. The consignor was in Memphis, Tennessee and the consignee was described as "Jessica Dimis" whose only address was at a nominated parcel locker. The ABF found concealed within the baby formula clear plastic bag with a white crystal like substance. That returned a presumptive positive test for methamphetamine. A forensic examination of the crystalline substance showed it to weigh 249.2 grams, almost the 250 grams referred by Nozeros in the Wickr messages I have quoted. That substance had a purity of 78% and accordingly the weight of pure methamphetamine was 194.37 grams. In October 2019, the street value of that methamphetamine was approximately $190,000. The methamphetamine was replaced in the consignment by an inert substance. On 8 October 2019, the reconstituted consignment was transported to the Australia Post Office at Kensington and was placed in the manager's office. 2. On 8 October 2019, the New South Wales Police commenced surveillance at the post office. On Wednesday 9 October 2019 at 11.37am, an employee of Australia Post informed the New South Wales Police that a male customer was at the counter of the post office attempting to collect the reconstituted consignment. The police entered the customer area of the post office and commenced surveillance of that male person who was obviously the offender. The offender presented an authorisation letter purported to be signed by a person using the name Jessica Dimis. When he presented that authorisation, the member of the Australia Post staff handed the reconstituted consignment to the offender. He was then observed to walk out of the post office. He was then arrested. 3. When the police told him that he was under arrest for the importation of ice, the offender said: "Yes, ice? I don't touch that shit. I'm just picking up a parcel for a mate". The police after they arrested the offender seized the reconstituted consignment, the keys to the offender's motor vehicle, his mobile phone and his wallet. 1. At 1.55pm on that day, the accused took part in an electronic recorded interview with the suspected person. In that the offender said a number of things which were patently untrue. He told me in oral evidence today that he did so in order to not disclose those for whom he was working and in order to minimise his own involvement. The first thing the offender said was that he met another person when each of them was walking his dog on Avoca Beach. The dogs started playing with each other and he and the other dog walker commenced chatting and that dog walker asked him if he could drive down to Sydney and pick something up for him for which he would be paid $500. This is nothing other than a fable. The offender admitted that it may have been a suspect transaction and he thought it may have been a consignment of marijuana but he said that he had no idea that it was a quarter of a kilo of methamphetamine. That is patently untrue as the offender admitted today in his evidence. He also admitted writing the note but could not tell the police who had suggested that. That clearly pointed to the fabulous nature of the initial story in that the only person who could have told him to do so was the other dog walker. That he eventually seemed to admit. A little later in the interview, the offender admitted that he had provided to the police the password or passcode that he used for getting onto the Wickr application. Again when it was drawn to his attention that the Wickr messages suggested it was 250 grams of "ice", the offender maintained that he thought the drug was marijuana. 2. The offender was granted bail on 10 October 2019. Accordingly, he was in custody for parts of two days, 9 and 10 October 2019. If he be sentenced to imprisonment, the Crown in right of the Commonwealth has suggested that the sentence be backdated by one day but on the normal way these things are calculated, it will be backdated two days. Seriousness 1. The offender carried out a necessary or integral role in this attempted importation of methamphetamine. Theoretically at all material times, the importation was in the hands of Australia Post. Someone on behalf of the importing syndicate or cartel or criminal group had to collect the importation from Australia Post so that the drugs could be then processed by someone such as Nozeros or someone such as the offender as Nozeros had suggested to him. For performing that essential or integral role, the offender had been promised a sum of money that amounted to between $4,000 and $5,000. It would have also involved his being actively engaged in distributing the drugs but I need not consider that further, because, on any view of it, what he actually tried to do was being involved in drug trafficking for financial reward, to make money. It is irrelevant that the offender may have had substantial debts. He accumulated them for his own purposes and whether the profit making motive is merely to repay a debt or to make a gain is irrelevant. 2. The offender knew when he presented himself to the Kensington Post Office that he was there to collect 250 grams of methamphetamine. His criminality it is greater than many other people in the same position who often do not know what the drug is or how much drug there is but merely collect the assignment on the promise of a payment of a sum of money such as $1,000 or $2,000. The offender clearly wished to make as much money as he could from his involvement in this importation which he knew to be quite illegal. 3. The Crown has submitted that the offender's conduct falls within the upper extent of a low range of offending of this type. The offender through his counsel submits that this was within the low range of offence for this type of offence. The commercial quantity of methamphetamine is 750 grams. This amount of methamphetamine was about 195 grams. It was nowhere near the commercial quantity but as has been submitted by the Crown, it was 97 times the minimum marketable quantity of two grams or 25.9% of the commercial quantity. Unlike many other persons who commit the offence that this young man committed, he knew how much was involved and what the drug was. I would categorise the offender's criminality, subject of course to the other considerations which I must bear in mind as being between the mid-range to the upper mid-range of the low-range of objective seriousness. Personal circumstances 1. The offender at the time of the offence was 22 years old. He is now 23 years old. He has a criminal history but it is irrelevant, in essence, to the current offence. On 2 August 2017, he was charged at Gosford with a number of what can be described as traffic offences. The first one was exceeding the speed limit by more than 30 kilometres per hour. The other one was drive with three unrestrained passengers who were 16 years or older and the third offence was driving with the special range of prescribed concentration of alcohol. He must have been a P plater at the time. For those offences he was fined and disqualified from driving for periods of time. This represents one episode of driving at the age of 20 when he was on a restricted licence. It is irrelevant to the current proceeding. In essence I can approach this case as if this young man were of prior good character. The only thing which militates it is such a finding is the offender's use of illicit drugs. 2. The offender grew up in the western suburbs of Sydney. He has one brother with whom he did not get on well, albeit that they are now reasonably close. His father died when the offender was aged nine from an overdose of pain medication because of a back injury that he had suffered. The offender's father died in his sleep. After the offender's father's back injury, he became very difficult to live with. Up until that time he regarded his parents relationship as being a caring one. He described his mother to the psychologist, Mr Neil Ballardie, as being an alcoholic, being depressed and self-pitying. He found it difficult dealing with her alcohol use when he was growing up. 3. When he was growing up, his grandmother lived next door and he would spend much of his time with her. He clearly was very fond of his grandmother from what he told the psychologist. When the offender was about 15 years of age, his grandmother commenced to develop dementia and moved in with the offender's family. He commenced to be her carer when he was about 18 years old. His care for her increased when he was about 20 years old. However, she then was in a nursing home for either six or 12 months prior to her death which occurred one month prior to the current offence. 4. The offender has a girlfriend who is present in Court today to support him as is his mother and stepfather. Unfortunately, there have been periods of arguing and interim separations, which is not an uncommon phenomenon. Unfortunately the couple have had two conceptions and each has been aborted. The second abortion occurred about two months prior to the offence with which I am concerned. I mention the bereavement and the termination of the pregnancy because they are relevant to an assessment made by Mr Ballardie. 5. He believed that at the time of the offence, the offender was suffering from depression and anxiety and stress. At the time Mr Ballardie first interviewed the offender, sometime in June of this year, the offender was then suffering from depression, anxiety and stress. However, anyone awaiting sentence with a possible sentence of 25 years imprisonment would naturally be suffering from anxiety, depression and stress. The question that I found difficult to accept on a first reading of Mr Ballardie's report was whether those conditions existed at the time of the offence and whether they were somehow relevant to the crime. In his report, Mr Ballardie said this: "When asked about the period prior to his offending, Mr Conroy said his grandmother whom he was very close to passed away about a month prior to the index offence and that he was devastated by this. He said his partner had another termination about two months prior to him [sic] offending which very negatively impacted upon their relationship. He said he was became very depressed after his second knee injury and is not able to work. He commented ... 'this period was very negative, I hated having to sit at home because I could not work ... I was feeling really anxious and depressed and often thought about suicide'." A little later in his report Mr Ballardie said that at the time of the offence the offender's symptoms met the DSM5 requirements for a major depressive disorder, a generalised anxiety disorder and a drug use disorder. 1. I would not accept both a major depressive disorder and a generalised anxiety disorder merely because someone said he had both. He had one or the other but there was no need to diagnose both. From what the offender told me, it appears to be a generalised anxiety disorder. My initial scepticism of Mr Ballardie's formulation was assuaged by the offender's oral evidence. I accept that he was suffering from anxiety and depression at the time he committed this offence and that that affected his judgment. The offender told me of being under the care of a general practitioner at Terrigal and he made frequent complaints to her. It appears that he largely somatised those complaints and those complaints were investigated somatically, that is looking for a physical cause rather than a psychological or psychiatric cause. 2. At [8.2] of his report, Mr Ballardie said this: "In my opinion, on the balance of probabilities, the following factors were impacting [sic] on his functioning, behaviour and choices and contributed to him [sic] offending: (a) The extremely severe level of depression and anxiety affecting him at the time. (b) The distress he was experiencing as a consequence of his grandmother [sic] passing away a month prior, his inability to work because of his knee injury and his partner having a termination a few months prior. (c) His reported increase in the symptoms of his mental condition in the period leading up to offending and his ongoing drug consumption." I accept that the offender was anxious and depressed. It became clear to me that a large part of that was due to his lack of work and lack of income. I accept that it affected his judgment and to an extent mitigates his moral culpability for this crime. 1. Mr Ballardie obtained this education and work history: "Mr Conroy reported a smooth transition into formal schooling which he did not enjoy. He found it reasonably easy to make friends and was not the subject of notable bullying. He achieved above average grades prior to his father passing away and after this his grades deteriorated. He said he enjoyed sports. He was not able to concentrate at school and was easily distracted and fidgeting in class and rarely completed projects and his homework on time. He was not always respectful of his teachers until year 10, was rarely engaged in classroom activities and was often disruptive in class. He said he was suspended from school a few times and ended up in a behavioural school halfway through year 7. He said he was diagnosed with oppositional defiance disorder when he was about aged nine years old and was told he probably had attention deficit disorder. After leaving high school following year 11, Mr Conroy worked in a bakery and then in construction. He then worked as a shop fitter which he enjoyed. He said when he was 18 years of age he incurred a knee injury and then contracted glandular fever which inevitably affected his employability. After recovering from these he worked as a removalist but at 21 years of age, he injured his other knee. He said after this he could not work and joined a private health insurer so he could undergo elective surgery after a year. He said because of his inability to work he felt increasingly depressed and anxious and that this continued up until he was charged with the index offence. He said he had difficulties finding work because of gaps in his employment history due to acute sickness and injuries. He said he would like to undertake training and work in construction in the future." 1. The offender's employment history was explored in evidence. The offender said that he left school at the end of year 12 after gaining the Higher School Certificate. However, he had started school early and he believed that he finished high school in 2014. He told me he worked in a bakery for about one and a half years and was working in the construction industry concurrently for some time but only in the construction industry for a few months after he left the bakery. He worked as a shopfitter for only two weeks prior to injuring his left knee and contracting glandular fever. That led to his being off work for between 18 and 24 months. He then commenced working as a removalist which he did for at least a year, perhaps a year and a half, until he injured his right knee. He believed he had been unemployed for about one and a half years prior to the commission of the present crime. He told me that he had received some form of benefit following his right knee injury for three months but was not on any government benefit for a long period of time prior to the offence and that led to his being in debt and needing money to be able to continue to support himself. That combined with his depression obviously motivated him to commit this crime. 2. Since the wakeup call of his being arrested and charged, the offender has managed to find employment as a furniture removalist, a job he had before he injured his right knee. In evidence is a letter from the principal of Surfside Removals and Storage of the Central Coast, the letter bearing date 1 July 2020 refers to having known the plaintiff for about a year as an employee and stating that he is considerate, courteous and trustworthy. The offender told me that the work is casual, which I accept, and that the work has been substantially affected by the COVID-19 pandemic which has led people not to move as often as they were in the past. It is clear that the principal of Surfside Removals and Storage holds the offender in a positive regard and is happy to continue to employ him. The offender still owes a large debt. He owes it now to his mother and is seeking to pay it off by the work he was doing as a removalist. Consideration 1. Looking at the offender's social and family history and his educational history, one could accept the offender was suffering from some disadvantage growing up and suffering that disadvantage at the time that he committed this offence. Again, that speaks of attenuation of his moral culpability for this serious crime. Clearly, however, the offender has the support of his family, his girlfriend and his current employer. Mr Ballardie strongly recommends against a fulltime custodial sentence but that, I am afraid on the authorities, is not an option open to me, as has been properly submitted by the Crown and was not argued against by Mr Brewer who appears for the offender. 2. Happily, Mr Ballardie does in his report, in the final section of it, referred to a proposed mental health treatment plan for Mr Conroy if he be incarcerated. I will arrange for a copy of Mr Ballardie's report of 29 June 2020 to accompany the offender when he is taken into custody and that report can be considered by the custodial authorities in two ways: firstly, in arranging for his being interviewed by Justice Health with a view to him being treated by them and secondly with a view to the offender's classification. 3. In accordance with the decision of the High Court of Australia in Wong v The Queen (2001) 207 CLR 584, the matters properly taken into account in fixing a sentence for a crime of this nature include the quantity of the drug involved, the offender's knowledge and role in the importation and the offender's anticipated reward for participating in the importation. Neither the weight of the drug nor its identity is a chief factor to be considered in fixing a sentence. At [64], Gaudron, Gummow and Hayne JJ said this: "In general, however, the larger the importation, the higher the offender's level of participation, the greater the offender's knowledge, the greater the reward the offender hoped to receive the heavier the punishment that would ordinarily be exacted. It is by these kinds of criteria that comparisons are to be made between examples of the offence and the sentence that are or were imposed." The important thing in the current sentencing exercise is the fact that the offender knew how much was coming, what was coming and the reward that he expected to gain between $4,000 and $5,000. This offender's role must be contrasted with someone who merely agrees to collect the parcel suspicious that it might be an illegal importation but not knowing what the drug is or what the weight is and merely expecting a nominal reward. 1. The Crown has helpfully supplied me with a sample of relevant cases. They are contained in a schedule to the Crown's written submissions of 30 June 2020. Looking broadly at the sample of cases and bearing in mind the Court's experience of cases of this nature, I would normally start with a head sentence of six years imprisonment. However, bearing in mind the offender's disadvantage and the fact that he was suffering from anxiety and depression at the time clearly clouded his judgment or infected it, I propose to start this sentencing exercise with a head sentence of five years imprisonment. 2. The offender pleaded guilty. He did so at an early time. However, he did not do so at the earliest available opportunity. He was arrested and charged on 9 October 2019. He was bailed two days later. A brief was served by the Crown on 12 December 2019. The charge was certified on 11 February 2020. The matter was set down for a committal hearing at the Downing Centre Local Court on 7 April 2020 and on that day the offender pleaded guilty. He was then committed for sentence in this Court and at the first mention on 15 May 2020 the matter was listed for sentence on 3 July 2020 but the matter could not proceed on that day as the offender was unrepresented. He could have pleaded guilty when first charged but did not do so. He could have pleaded guilty when the brief was served but did not do so. He could have pleaded guilty when the charge was certified but did not do so. He pleaded guilty at the committal stage. In the circumstances, I am prepared to allow a discount of 20%. That reduces the head sentence to four years. 3. The question then becomes what ought be the non-parole period. The non-parole period is a minimum time that should be spent in custody to atone for the offender's criminality. Were this a New South Wales matter, I would have to consider a non-parole period of three years. I note that in one of the cases referred to me by the Crown, R v Faver [2020] SAFC 49, the Full Court of the Supreme Court of South Australia considered a non-parole period of 16 months to be manifestly inadequate. However, the appellant is a young man, now 23. This will be his first experience of fulltime custody. He has already embarked upon drug rehabilitation. Exhibit 3 tells me that on 23 June 2020, 30 June 2020, 14 July 2020, 4 August 2020 and 8 September 2020, the offender has attended online Smart Recovery Australia meetings for at least an hour and a half on each occasion. He is also undergoing treatment with Mr Ballardie. The offender in custody can continue a Smart Recovery program and the important thing is that he breaks his drug addiction. That itself is a problematic condition for the offender. 4. He started using alcohol at the age of 11 and he was originally binge drinking on weekends. At the age of 15, he increased his alcohol consumption so that he was also drinking during the school week. He started using cannabis at the age of 11. At the age of 13 he started daily use of cannabis interrupting its use after contracting glandular fever. However, he was still using cannabis up until the time of this offence. At the age of 16, he started using ecstasy on weekends with his friends. At the age of 18 he started consuming it a few days a week but stopped using it after contracting glandular fever. He has not consumed any ecstasy since that time. At the age of 17 he tried cocaine and was using it once every few months when he was using MDMA but stopped using it after contracting glandular fever. As I said, since the glandular fever, he has only used cannabis. It may be that he did not have the money to buy more serious drugs. However, the fact is that he commenced addictions as a young teenager when he could hardly appreciate what an addiction would do to him. However, the addiction appeared to have no role to play in this crime other than introducing him to drug suppliers, leading him to the use of Wickr, leading to the temptation offered to him by Nozeros to which he succumbed. It is therefore imperative that the offender in custody participates in alcohol and other drug rehabilitation and counselling, and testing. 5. However, the issue is the extent of the non-parole period. Again there is a minimum time to be served for this crime bearing in mind all the circumstances. Doing the best I can, I believe the appropriate non-parole period to be two years and four months. 6. Luke William Conroy, on the charge that on or about 9 October 2019 at Sydney in this State you did attempt to import a substance, the substance being a border controlled drug, namely methamphetamine and the quantity attempted to be imported being a marketable quantity, you are convicted. I sentence you to imprisonment for four years commencing on 9 September 2020 and expiring on 8 September 2024. I fix a non-parole period of two years and four months commencing on 9 September 2020 and expiring on 8 January 2023. Any further orders sought? BREWER: No, further order, your Honour. NOLAN: No, your Honour. HIS HONOUR: Mr Brewer, does your solicitor have another copy of Mr Ballardie's report? BREWER: Yes, I do, your Honour. HIS HONOUR: Give it to the Corrective Services officers please, or one of them. I hope you do well, Mr Conroy, I really mean that. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 October 2020