District Court New South Wales Medium Neutral Citation: R v LeGros [2020] NSWDC 733 Hearing dates: 09 October 2020 Date of orders: 09 October 2020 Decision date: 09 October 2020 Jurisdiction: Criminal Before: Neilson DCJ Decision: Sentence – 3 years with release on recognizance on day of sentence, including a condition requiring offender to complete rehabilitation course. Catchwords: CRIME – SENTENCE Attempt to possess a marketable quantity (739.86 grams) of cocaine. Offender drove from Rosebay to Balgowlah to collect a package from a postal locker – Package had been removed from locker by police – Court asked to take into account a similar crime on a schedule pursuant to s16BA, Crimes Act 1914 (Cth). Offender in gaol from arrest in 9 October 2019 until granted bail on 15 April 2020, to enter a 1 year full-time rehabilitation programme – Offender made excellent progress with rehabilitation to date of sentence – Had powerful subjective case – 40% discount for guilty plea and assistance. Legislation Cited: Crimes Act 1914 (Cth) Criminal Code (Cth) 1995 Cases Cited: Brown v R (2013) 228 A Crim R 298 R v Conroy [2020] NSWDC 604 R v Falls [2004] NSWCCA 335 R v Irusta [2000] NSWCCA 391 Category: Sentence Parties: Regina (Crown) Ryan LeGros (Offender) Representation: Cathcart (Crown) Thangaraj SC (Offender) File Number(s): 2019/00309070 Publication restriction: Nil. Judgment 1. HIS HONOUR: Ryan LeGros stands for sentence as a consequence of pleading guilty to a charge that on 26 July 2019 he did attempt to possess a substance, the substance having been unlawfully imported, the substance being a border controlled drug, namely cocaine, and the quantity possessed being the marketable quantity. That is an offence contrary to s 307.6(1) in combination with s 11.1(1) of Criminal Code (Cth). The maximum penalty for the offence is imprisonment for 25 years and/or a fine equivalent to 5000 penalty units. The offender asks me to take into account on a schedule pursuant to s 16BA of the Crimes Act 1914, a similar offence committed on 3 August 2019, when he attempted to possess a second marketable quantity of cocaine. Facts 1. The primary offence with which I am dealing occurred at the Balgowlah Australia Post Office. The matter which I am to take into account on the schedule occurred at the Chatswood Australia Post Parcel Lockers at Chatswood. A specified parcel locker at the Balgowlah Australia Post Parcel Lockers was registered in the name Keith Knight, and that person provided a telephone number and an email address for himself. On 25 July 2019 a parcel was loaded into the Balgowlah parcel locker to which I have referred. The parcel originated in Germany and was addressed to Keith Knight. On the same day, Australia Post officials removed the parcel and it was given to New South Wales Police officers. They pulled the parcel apart and found it to contain approximately 1 kilogram of a white powder which they believed to be cocaine. It was concealed in the cardboard covers of textbooks. 2. On the following day, 26 July 2019 at 9.29am, the offender searched the address of the Balgowlah Post Office on his mobile phone. At 9.46am a motor vehicle was driven along the Eastern Distributor in a northerly direction. A little later it was detected by a New South Wales Police Force Highway Patrol number plate recognition device as being driven north on Military Road. At 10.16am on that day the motor vehicle in question, registration number DFY 84U entered Totem Lane, Balgowlah and was parked. The offender alighted from the vehicle and walked to the Australia Post Parcel Lockers within the Balgowlah Stockland Shopping Centre. He was wearing a grey hooded jumper with a black logo on the back with the hood up and tan coloured long pants and white joggers. 3. At 10.18am he gained access to the parcel locker where the parcel had been delivered but from which it had been removed. Finding no parcel, the offender returned to the motor vehicle and drove from the location. 4. Records of the Roads and Maritime Services show that the registered owner of the vehicle was the offender's lady friend, Koedi-Lea Cope. It would appear that at the time of this offence, the offender and Ms Cope were in a committed relationship. The vehicle had been purchased on 26 June 2019 and transferred into Ms Cope's name. The facts do not disclose whether Ms Cope knew of this car being registered in her name. 5. The matter which I am asked to take into account on the schedule was a similar event. A parcel locker of Australia Post at Chatswood was registered in the name of Keith Knight, but with a different telephone number and a different email number. The email number suggested that the owner might be Corey Evetts. 6. On 2 August 2019 another parcel originating in Germany addressed to Corey Evetts was loaded into the Chatswood parcel locker. On the same day, the Australian Federal Police advised the New South Wales Police that there was a parcel being held at the Chatswood Australia Post Office. Later in the day, Australia Post officials removed the parcel from the parcel locker and handed it to the New South Wales Police. 7. The package was pulled apart at Manly Police Station. Like the earlier consignment, it contained textbooks. Hidden within the covers of the textbooks was approximately 1 kilogram of a white powder which was thought to be cocaine. The concealment is described in the agreed facts as being "sophisticated", but many such concealments can be so described. The package deconstructed by police and taken from the Australia Post Chatswood Office was identical to the package seized from the Balgowlah parcel locker. 8. On 2 August 2019 the offender had searched the Chatswood parcel lockers on his mobile phone. On 3 August 2019 the offender and an unknown man arrived in a grey coloured hatchback Mercedes-Benz in Katherine Street, Chatswood. The Mercedes-Benz was registered to the offender. It still bore Queensland registration plates. The offender comes from Queensland. 9. The offender and his unknown 'friend' walked down Thomas Street to the Australia Post location. On this occasion, the offender was wearing a grey, white and blue zip-up hooded jumper, again with the hood up, grey long trousers and white runners. The unknown male was wearing a full black tracksuit with its hood up. He was wearing black joggers. The unknown male appeared to act, using the Australian vernacular, as a "cockatoo"; a lookout, making sure that no one observed what was occurring. 10. At 1.06am on 3 August 2019 the accused gained access to the parcel locker to which the package had been originally delivered, but again there was no parcel there, it having been seized by the authorities. To gain access to the parcel locker the offender entered a code into the parcel locker computer, which unlocked the parcel locker door. When he found nothing in the locker, the offender appeared to be frustrated. He closed the parcel locker door using his foot and then left the scene. He was accompanied by the unknown male back to his vehicle, which was driven away. 11. There were then some intercepted telephone conversations which were clearly, lawfully intercepted. On 2 September 2019 the offender had a conversation with Koedi-Lea Cope. During the course of the conversation the offender indicated that he had fears for his safety because of an unknown threat and was concerned that people making the threat might ascertain his then whereabouts. In another conversation with Koedi-Lea Cope on 25 September 2019 at 6.48pm, the offender identified himself as being in Queensland, and Ms Cope indicated that she was leaving Sydney to go to meet him in Queensland. 12. On 29 September 2019 at 2.19pm the accused had a conversation with another person known as Corey Freeman. During that call, the offender, who was still in Queensland, and Freeman discussed an unknown person attending the residence where Freeman was living and where the offender had lived before moving back to Queensland. They discussed whether that unknown person's presence at their residence was a threat that was being either made or implied against the offender. Warrants and Arrest 1. On 30 September 2019 police executed two search warrants. One was at the offender's premises in Sydney, which were in Rosebery. During the search of his premises, the police found clothing matching the clothing which the offender was seen wearing, both to the Balgowlah parcel lockers and to the Chatswood parcel lockers. Police also found a very small amount of the prohibited drug 3,4-methylenedioxymethylamphetamine, or MDMA, as it is known for short. 2. Police then made an application for an arrest warrant. On 9 October 2019 Queensland Police arrested the offender, by virtue of the arrest warrant, on the Gold Coast. He was then taken to the Southport Watchhouse and was extradited from Queensland pursuant to the extradition warrant. He was transported by plane to Sydney and was taken to Mascot Police Station, introduced to the custody manager and had his rights read to him and was formally charged. The offender was in custody until obtaining bail from the Supreme Court, which led to his release on 15 April 2020. He spent 190 days in custody, which, on my calculation, represents 27 weeks and one day. The offender was released on bail subject to strict conditions. Those conditions are set out in [37] of the offender's affidavit of 9 October 2020, which is exhibit 1. Rehabilitation 1. The offender has, since 16 April 2021, been residing permanently at the Connect Global Drug and Alcohol Rehabilitation, Education and Training Centre at Swan Bay in this State. The offender has been residing there full time, and the course is supposed to persist for one year. That is, it is due to be completed on 15 April 2021. Seriousness (1) 1. The amount of drug reduced to its pure form contained in the Balgowlah offence was 739.86 grams of cocaine. The amount of drug contained in the Chatswood parcel locker attempted important was 785.49 grams. The marketable quantity is 2 grams. The commercial quantity is 2 kilograms. In the offence for which the offender is to be sentenced, it was approximately 370 times the threshold quantity for a marketable quantity. However, it was a little more than a third of a commercial quantity. 2. To understand the offender's role in this attempted importation, it is really necessary to consider all the circumstances of the case, so I shall defer referring to the seriousness of the offence until I have discussed the circumstances which brought it about. Motive 1. As I have already mentioned, the offender swore an affidavit on 9 October 2020. As could be expected, he is here in court today. He was not required for cross-examination on his affidavit. It can therefore be accepted that what he says about himself is uncontested. 2. In the offender's later years in high school he commenced to "rebel", like many teenagers do. He started engaging in what he describes as, "anti-social behaviour"; consuming alcohol and using recreational drugs. Those drugs included cannabis, but, initially, rarely cocaine. After leaving school, the offender commenced an apprenticeship as a motor mechanic but gave that up after three years. He then started working for another employer as a "mechanic", but he had not completed his apprenticeship. That job commenced in 2012. In 2013 he was given an opportunity to commence a good time job on a full salary as a sales representative for a scrap metal yard. He liked that job, but during that job commenced hanging out with an anti-social group of people and began using drugs "consistently". In 2015 he was given a chance to complete another apprenticeship and started one as an electrician. He kept that job about two years, however by that time he was using drugs daily and accepts that he was keeping company in "the wrong crowd". In his view, at that point his life started to go downhill and he started losing control of his life to drugs. 3. Towards the end of 2017 he became unemployed, and between then and the conduct which leads to his appearing in this court, he was unemployed, living on money that he had saved and on borrowings from his mother and sister. In early 2019 he moved to Sydney. Having done that, he made what he described as the worst decision of his life. He became involved in consuming cocaine and Xanax daily, and was accumulating a large drug debt. In [22] of his affidavit, the offender said this: "I was slowly descending into madness. I was losing my mind". 1. Before he moved to Sydney, the offender had met Koedi-Lea Cope and they had commenced a relationship. Koedi moved with the offender to Sydney and would stay with him for periods of time, "even during [his] worst stages of addiction". He expected her to leave him because his mental state was so poor that he was telling her to leave him. However, she stood by him. He now greatly appreciates her support. 2. His affidavit goes on to say this: "24. It came to a point where I had gotten myself into such a large amount of drug debt and was left in a position where I had to make a choice on my own to take part in the offending so that I could get out of the situation I was in. This only resulted in me using more drugs to overcome the anxiety and to numb myself. 25. I got to a point where I did not consider my life worth living. It was around this time that I consumed a cocktail of drugs and overdosed. This took place a few months before my arrest and I was taken to Prince of Wales Hospital at Randwick and treated overnight. A copy of the hospital discharge referral is attached and marked annexure AA". The hospital records indicate that the overdose occurred on 16 August 2019. That is, after the two offences that I have described. A further par of the affidavit is this: "27. There were other times where I got myself to a point of consuming such a high volume of drugs that I could have potentially overdosed, but I never ended up in hospital, likely because I had such a high tolerance. In any event, I was the most depressed I had ever been in my life and was losing my mind with serious paranoia". 1. There is no doubt that the offender had run up a large drug debt. There can be no doubt that that exigency forced the offender, morally at least, to engage in the activity which brings himself before this court; working for an organisation, cartel, whatever it might be called, importing illicit drugs into our community. 2. The facts contain one recorded conversation taken from the offender's telephone. It contains two other recordings taken from the offender's telephone, which are contested but appear to me to be somewhat relevant, although the relevance of them is not what the Crown asks to me accept. 3. The first conversation it this: the person in the conversation has the name "El TURISTA". The message sent by El TURISTA is this: "One more locker, bro - Pyrmont, 1 Darling Road. PIN 884034. Mob [telephone number]. If you have time grab lockers bro, you can pass both them to fantasma also". That may be a direction from El TURISTA to the offender to attend another post office parcel locker at Pyrmont. If so, the offender was required to pass on what he collected to someone known as "fantasma". 1. The second conversation is clearly a code, but it appears to be El TURISTA telling the offender the extent of the offender's debt, how it was being increased and how it was being reduced. Being increased, no doubt, by further drug purchases and being reduced, perhaps, by moneys being paid to El TURISTA by the offender or by the offender doing work by El TURISTA for which El TURISTA gave him a credit. It is consistent with the offender having a large drug debt. 2. The third agreed conversation again is one between El TURISTA and the accused, who is known as "MrMistys". El TURISTA: "Brother you still wanna treat me like a bad gronk? My money and car back, otherwise u and ur family are gonna have a big problem. I'm done. I'm done, brother. Can't treat me like a fkn idiot". MrMistys: "Bro I've organised van. It's been ready for a week. Just need details for who u want to sign it over too, I'm not treating u like a gronk bro. Have been trying to sort this out with you". The police believed that the motor vehicle which had been registered to Koedi-Lea Cope was, in fact, the vehicle that was being referred to as the "van" in that conversation. Again, that speaks of the offender being threatened or having moral suasion, perhaps immoral suasion, placed upon him to go along with what was proposed by El TURISTA, who appears to be someone in the illegal cartel or group that was involved in the importations. Seriousness (2) 1. What then did the offender actually do? That is what he is to be punished for. There is no evidence, not even an innuendo, that the offender played any role in organising the importation of the cocaine in the cover of books from Germany. He could not have had any role in the packaging or depositing of the parcel in the parcel locker. There is no evidence, nor any innuendo, that the offender played any decision-making role in the circumstances in which the cocaine was to be collected from any parcel locker. The only inference that could be drawn is that he was asked by El TURISTA to pick a parcel up and to deliver it. 2. The evidence does not permit me to find beyond reasonable doubt that the offender knew what the drug was or how much of the drug there was, although he must have known from those with whom he was dealing, such a person as El TURISTA, that it was something to do with illegal drugs. 3. The offender, in fact, performed a necessary or vital role, but probably the most dangerous role in this purposed importation. Essentially, from the time the parcel was posted in Germany until it arrived in Australia, it was the hands of either the German Postal Service, an airline, or the Australian Postal Service, and someone had to collect it from authorities and hand it over to those concerned with the importation. That person ran the risk of being intercepted by the police or the Australian Border Force if it was thought that the package was suspicious. The offender was so "nabbed" in carrying out the dangerous job of collecting the parcel in order to move it from what might be thought to be lawful custody to the custody of ne'er-do-wells. He was the person that the police managed to intercept. 4. It has been submitted by the Crown that the offender's role was no more than that of a "courier". Even that description probably exceeds what this offender did. He wasn't moving the substance from a wholesaler to a retailer or from a retailer to the ultimate consumer. He was not distributing the drug, as such, rather he was taking it from lawful custody to those who wanted to receive so that they could do with it what they wanted, which was, no doubt, to sell it in the underworld to those who use illicit drugs. 5. I accede the submissions put to me by Mr Thangaraj SC on behalf of the offender that this really was at the bottom of the range for the offence of attempting to import a border controlled drug. The offender was performing an essential albeit risky role, and the amount of effort he put into it was actually small. As Mr Thangaraj points out in his written submission, the time spent in the physical act comprising the offence occupied less than one hour a day; driving from his place of residence in Rosebery onto the Eastern Distributor, under or over the harbour, and along Military Road to Balgowlah, going to the parcel boxes at Australia Post to try to collect the consignment and then returning whence he had come in a car. 6. Furthermore, there can be little doubt that the offender was acting as he did on instructions from someone, either El TURISTA or someone like El TURISTA in the gang for whom he was working. The fact that the offender needed to search the whereabouts of the Balgowlah parcel boxes and the Chatswood parcel boxes indicated that he was unfamiliar with the geography of Sydney, and such a lack of familiarity is inconsistent with the offender having any substantive or important role in the commission of the offence. Again, I accept the proposition that the offender's conduct was at the bottom of the range of offending for those who get themselves involved in attempting to possess illegal substances. 7. It has been submitted on behalf of the offender that his moral culpability for the principal offence and also the offence on the schedule is attenuated by his personal circumstances. I have already cited portions of his affidavit which show the mental state he was in at the time of the offences. The offender's motivation for engaging in the offending conduct is also relevant to his moral culpability. He had fears for his safety and that of his family as stated in his conversations with Koedi-Lea Cope on 2 and 25 September 2019 when she had remained in Sydney but he had returned to Queensland. 8. The offender's solicitors have qualified Dr Sathish Dayalan, a forensic psychiatrist. He assessed the offender by audio visual link on 25 September 2020. He also had available to him much of the written material that is before me. Before citing his opinion it is important to bear in mind the history which the offender gave him of his drug use. It is this: "Mr LeGros had used cocaine, Xanax and cannabis on a daily basis for a few years in the lead-up to the offences. He had also smoked 'crack cocaine' daily for six months prior to the offences. He had used GHB three times a week and smoked crystal methamphetamine once a week. He denied intravenous use of illicit drugs. He reported to have drunk alcohol in a binge pattern on the weekends around the time of the offences." The doctor's opinion is this: "Mr LeGros probably suffered from attention deficit hyperactivity disorder in his childhood manifesting as attention deficits, hyperactivity and poor impulse control. These symptoms had affected his performance at school. His traffic record and use of substances in adulthood indicate persistence of the poor impulse control. The strained relationship with his father and the challenges experienced at school due to his attention deficits appear to have contributed to the chronic low self-esteem reported by Ms LeGros [his sister]. In the context of low self-esteem and impulsivity, Mr LeGros had developed substance disorders from an early age. The abuse of substances had worsened his depressive symptoms and contributed to development of anxiety symptoms and transient psychosis. He had subsequently developed dependence upon benzodiazepine to manage his anxiety symptoms. The history provided by Mr LeGros is consistent with a diagnosis of cannabis, stimulant and benzodiazepine use disorder. Mr LeGros had increased his use of substances following the death of two individuals he had regarded as very close to him. This pattern of increased use of substances had continued until the time of his arrest. Around the time of the offences, he had been subjected to psychosocial stress such as financial debts and strained relationship with his partner. He reported having suffered from low mood, reduced energy levels, impaired sleep, poor appetite, low self-esteem, anhedonia, and suicidal ideation. He had made a suicide attempt around the time of the offences. Mr LeGros was probably suffering from a substance-induced depressive disorder at the time of the offences. Mr LeGros had also suffered from psychotic symptoms such as persecutory delusions and auditory hallucinations that were probably induced by his use of cannabis and stimulants. It is quite likely that his judgment and cognitive capacity to fully understand the consequences of his offending behaviour were impaired by his depressive disorder, psychotic symptoms and use of substances. Mr LeGros regretted his offending behaviour and appears to be motivated to rehabilitate himself following the birth of his daughter. It is noted that he has engaged well in rehabilitation and treatment following his release on bail. He has enrolled in a course to assist with his future plans of working as a counsellor in rehabilitation facilities." Perhaps quoting the last paragraph I have jumped a little bit ahead of myself. However, I accept that the offender's moral culpability was attenuated by his psychiatric condition which resulted largely from his drug abuse but has its origin in perhaps a misdiagnosis in his childhood days and some unfortunate experiences that he had when growing up following the separation of his parents. Personal Circumstances 1. I have been provided with affidavits not only from the offender but from his sister, his mother, his partner Koedi-Lea Cope, and references from seven sources, one of which is from the gentleman who is in charge of the offender's current drug rehabilitation program. 2. Insofar as the documentation before me relates to the offender's early days, his childhood and youth before being carried away by drug use, the offender was a well-respected, well-regarded athlete although he admitted to being a relatively poor academic student. His interest at school was in sports rather than academic subjects. Everything tells me that the offender was doing very well initially and he might have had the expectation that he would do very well. However, he was thrown off the path that would have got him where he ought to be by illicit drug use. 3. There are two references from non-family members which point strongly in that direction. One of them is from Mr Lane Moore, the national manager of Lifestyle Accessories Pty Ltd since 2006. His company manufactures and produces fast fashion accessories throughout Australia, the United States of America and the United Kingdom. Mr Moore met the offender in the middle of the first decade of this millennium when he was a student on the Gold Coast. His reference says this: "We would catch up from time to time as a result of having mutual friends. He was a funny and charismatic individual and I share many fond memories with him. I would catch up with Ryan from time to time until he moved to Sydney in what I believe was 2018 or 2019. He was always such a lovable character. I came to learn about Ryan's offences at some stage in late 2019. Prior to this I had caught up with Ryan for lunch when he was on the Gold Coast shortly before his arrest. To be completely truthful, I was disappointed to see the damage he was causing himself - in short, he did not look well whatsoever and was different from the person I had known." Towards the end of his reference he said this: "I would lie if I were to say that I am not disappointed and shocked at what Ryan has got himself into, but at the same time I can say the person I have spoken to now from the person I saw in late 2019 is in itself proof of what changes he has been able to consciously make. I look forward to seeing him continue living a positive lifestyle for himself and his family." 1. Another reference is from an Australian Olympic swimmer, Mr Dan Smith, who captained the Australian swimming team at the Olympics in Rio de Janeiro. He has known the offender for 13 years. They became friends in year 8 at school and had been able to stay reasonably close. He had a good opinion of the offender and many good memories of their valued friendship. However, he knew that the offender had made some very poor choices in recent years because of his drug use. He accepts that the offender has been remorseful since his incarceration and then entry into rehabilitation. He went on to say this: "I feel he has been honest with me on a regular basis and is growing into an honest and respectful man. I have watched him grow closer to his partner, mother and sister and also me as a friend. I know in his program now, he has been giving it his all. He is a great leader and an inspiration to the guys in the program." He ends his reference with this: "Ryan has a bright future ahead and I believe that he is positive about wanting to keep his life on track. I hope he can continue to keep focused on the path before him and continue to give back to others. In my eyes I believe he can do both. The best is yet to come." 1. Those who had a high regard for him have been shocked by what has happened but remain confident that things have now been put on a much better footing than they were. 2. Time is running out and I shall endeavour to be short. 3. The offender's background was marred by the separation of his parents. On one view of the evidence it happened when he was seven or eight years old. On another view of the evidence it happened when he was about nine or ten years old. It matters little: it was before puberty. The offender's father was perhaps not the best role model for any person on what I have read but of course I have not heard from him. However, the evidence strongly suggests that the offender sought to have a positive relationship with his father. That did not occur and that affected the offender's self-esteem and probably predisposed him to develop the anxiety and depression which have been affecting him for many years. Indeed, prior to his offending he came under the care of a psychologist on 12 July 2014 on the Gold Coast and has remained under that psychologist's care, Mr Craig Holt, ever since that time. 4. Even now whilst performing a full-time residential rehabilitation course he remains under Mr Holt's care. Their consultations are obviously by telephone these days because there is between New South Wales and Queensland an impenetrable barrier which perhaps should be called a palisade. Furthermore, the offender is unable to leave the residential rehabilitation facility he currently attends because of his conditions of bail. 5. Since his arrest and incarceration, the offender has been doing very well. He has set himself on a course of rehabilitation which is being effective. His affidavit contains this: "31. When I was arrested, I had never been in custody before. It was one of the scariest moments in my life. It was a huge wake-up call." He was initially taken to the Surry Hills holding yard for four days in which he did not see the light of day. He was then at Parklea Correctional Centre for three weeks before being transferred to Cessnock. He was then transferred to the Mid North Coast Correctional Centre at Kempsey where he remained until granted bail. At Kempsey he was employed as a sweeper. A sweeper is the person who hands out meals for other inmates, sweeps out the pod and takes in laundry and washing. He worked from 8am to 3pm each day. Sweepers are generally the most trusted of the inmates in a gaol. In other words, he was reacting positively to custody. 1. One of the references is from Mr Ross Pene who works at the Connect Global drug and rehabilitation centre at Swan Bay. His letter commences with a brief description of the course which the offender entered on 16 April 2020. He says this: "Ryan has applied himself well since his arrival into Connect Global Limited's (CGL) program. Ryan has not missed one program and has been a great contributor to all the group sessions he has participated in. Urine tests are taken regularly and randomly and are supervised. Urine drug analysis tests have all returned negative. Ryan has demonstrated deep remorse for his actions/behaviour and has displayed a strong mindset never to revert to his old ways. Ryan is working through the following lifestyle solutions: …" I need not quote what the programs are. He then continues thus: "I have known Ryan since he began his recovery program. I have found him to be very respectful, adaptable and flexible. He has shown a deep desire to change his life, with him putting all his words into action. During this time of mentoring Ryan and watching and observing his behaviour, he has demonstrated respect and care for others, responsibility in daily behaviour, appreciating and valuing the opportunity to change. Ryan has now assumed the role of senior resident at Connect Global and has excelled given this additional responsibility. Some of the added tasks that Ryan now is responsible for include assisting other patients in making sure there are arrangements for them to attend their scheduled appointments, whether they be legal, medical or psychologist appointments. Further, I have witnessed Ryan continuing to mentor his peers in addition to other daily tasks I may ask of him. He has excelled at every opportunity presented. This includes leading church groups as well as group drug and alcohol classes." 1. Mr Pene's opinion leads me to the next issue which I have to discuss, that is, what is to be done with the offender. Clearly, he should be able to complete his rehabilitation course. Mr Pene says this: "I strongly believe that a return to custody may undo all the positive work that Ryan has accomplished during his time at Connect Global. If he is fortunate enough to have the courts grant him the opportunity to continue his rehabilitation with us, it would truly make a world of difference not only to him but to the others which I can see him helping from his own experiences. Ryan's decision to learn and gain insight, to grow, to lead a successful life will equip him with skills, strength and determination and with continued progress, Ryan will walk with confidence knowing he made the right decision to change and to live in the wider community a better man. Ryan is currently studying a diploma of counselling to equip him to be a mentor to others. He has been offered a permanent job as a support worker/counsellor working in a facility in Queensland that takes care of substance and dual diagnosis abuse. I know the coordinator of this facility in Queensland personally and he is more than willing to have Ryan join his team in the future upon the completion of his court matters and his diploma in counselling. I am confident that if he applies him to study and finishes the course, he will be a valuable member of their team." 1. The offender has commenced a course to obtain a diploma in counselling. He has completed one unit of that course thus far. It will take two years for him to complete the full course. Clearly, when he completes his one year with Global Connect in June next year, he will not be able to take up the job that Mr Pene refers to immediately but will have to complete his studies. In the interim, he has another job offer. 2. One of the references is from Mr Nicholas Mitrossilis, the managing director of a company which has a chain of quick service Greek restaurants in Queensland. The letter is undated but it refers to there being a chain of seven such restaurants, soon to be eight. Mr Mitrossilis employs 120 staff. He has been a close friend of the offender for five years. He was clearly shocked by what happened to the offender but maintains a high regard for him. Mr Mitrossilis says that on completion of his court matters he will offer the offender a full-time managerial position in one of his restaurants on the Gold Coast or in Brisbane. In other words, when the offender completes his drug rehabilitation program he can walk straight into a managerial job in a restaurant on the Gold Coast or Brisbane before completing his diploma in counselling and when that has been done, he can turn to the subject which is now dear to him, helping others avoid doing what happened to him. 3. The important thing to note is not merely the job offers but the fact that returning the offender to custody may well undo the advantage that he has gained thus far. A similar opinion is held by Dr Dayalan who said this in his report: "It is evident on the references and affidavits provided that Mr LeGros has a strong social support network in the community. He has good insight into his substance use disorder and offending behaviour. He has actively made efforts to address his substance use and mental health issues. Provided Mr LeGros successfully completed the rehabilitation program and remained abstinent from substances, he would be regarded as having a low risk of reoffending. The impact of incarceration would include disruption of his rehabilitation program and diminution of his social support that has been pivotal to his rehabilitation. If Mr LeGros were to receive a non-custodial disposal, he should continue his residential rehabilitation program to completion. He should continue consultations with his psychologist on a regular basis following discharge from the rehabilitation facility. The consultations should focus on relapse prevention and also his impulse control. He should be willing to consider trial of psychiatric medication if features of depressive or anxiety disorder are identified by his psychologist. He should also comply with any requests to provide urine samples for drug screening as part of his rehabilitation." 1. Common sense also indicates that sending this 30 year old man back to gaol either now or on completion of the one-year residential rehabilitation course would not be in his interests or the interests of the community. The effect of the rehabilitation which is being undertaken might be undone. It would certainly be minimised. He would be re-exposed to the criminal milieu in gaol and although we hope most persons sentenced to imprisonment rehabilitate, there are many who do not. 2. Furthermore, the longer he stays away from his support network the less influential it will be and the less effect it will have on him to maintain his abstinence from illicit drugs. That support network includes his mother and his sister, both of whom have provided very powerful affidavits, and his current partner Koedi-Lea Cope. She and he have been blessed with a daughter Karli-Lea who was born on 12 June this year. She is now some four months old. It is significant, in my view, that the offender was granted leave by the authorities to attend the birth of his daughter in Queensland and return back to the rehabilitation facility to continue on his course after his daughter's birth. Not only does he have their support. They need his support both financially and emotionally and physically. Consideration 1. This is a very powerful subjective case. The objective seriousness of the offence is towards the bottom of the range; in fact, at the very bottom of the range. The countervailing factor is of course the maximum penalty. However, the maximum penalty is for the principal offence and here the offence is merely an attempt. Where an attempt to commit the substantive offence has a maximum penalty the same as that for the substantive offence, as a general proposition a person convicted of an attempt should be punished less severely than if the attempt had been successful: R v Irusta [2000] NSWCCA 391 at [47]. A reason for that is that the criminal law has always regarded the actual consequences of criminality as a significant marker of the extent of retribution that should be reflected in a sentence: R v Falls [2004] NSWCCA 335 at [19]. 2. On 11 September this year I sentenced another young man to imprisonment for four years with a non-parole period of two years and four months for the same offence but where he knew what the drug was, knew how much of the drug there was and expected to earn between $4,000 and $5,000 and to obtain that money also needed to break up the imported drugs into one ounce lots so that they could be easily marketed to users of illicit drugs. The reference to that case is R v Conroy [2020] NSWDC 604. That offender's criminality was greater than the present offender's criminality. 3. It is accepted by the Crown that the offender pleaded guilty at the earliest available opportunity. That entitles him to a discount for the utilitarian value of the plea. I would allow a 25% discount for that. The offender has given assistance to the Crown. That can be seen in exhibit 14 which I order be sealed up in an envelope with the seal of the Court and is not to be opened other than by order of a judge of this Court or the Court of Criminal Appeal. I proposed to the representatives of the parties that there be a further 15% discount for that assistance and no counsel wished to be heard. Accordingly, the offender is entitled to a total discount of 40% of the sentence otherwise to be passed upon him. 4. I have reached the view that the appropriate head sentence before discount is imprisonment for five years. Discounting that by 40% I reach the period of three years. The offender has, as I said, spent 190 days or six months in gaol. Since then he has been at a full-time residential rehabilitation course. That is often seen to be equivalent to full-time custody. This form of quasi custody entitles the offender to a credit which can be anywhere between 50% and 75% of the time spent in the rehabilitation course: Brown v R (2013) 228 A Crim R 298 commencing at [20]. For a full-time residential course of 12 months duration I would believe that to be equivalent to nine months imprisonment. 5. The offender was arrested one year and one day ago. I would see that period as being a period of full-time custody. Furthermore, if one adds approximately six months to the nine months that I would give to the one-year rehabilitation program, one can see a total custodial period of some 15 months. 6. I have come to the conclusion, in the special circumstances of this particular case, that sending this young man back into custody would be completely counterproductive, counterproductive for him and counterproductive for the community because it is in the interests of the Commonwealth that the offender compulsorily complete rehabilitation and take his place in our society, living lawfully. Furthermore, it is in the interests of others than himself. As Mr Pene's reference points out, he can enter the counselling role to try and help others who may be affected in a similar way to the way in which the offender was prior to his arrest. He can also support his partner and their child, support they do need. I am not suggesting that they have no support at the moment but the support of a father for his partner and their child is very important in any child's development as the offender himself must realise. 7. I have come to the view that the offender should be released on recognisance today and I am going to announce a number of conditions. Learned senior counsel for the offender has raised questions as to whether I have the power to impose some of the conditions which I propose to do. They are essentially to continue the conditions of bail applied to the offender's attending the rehabilitation program until that program be completed. If any of the conditions that I impose are thought to be beyond power, then it is my firm recommendation that Community Corrections, the referable probation authority for the purposes of the federal legislation, impose those terms as part of their power under the Corrective Services legislation. 8. I just add this. There is reference in Dr Dayalan's report to the offender's driving record being indicative of poor decision-making. The offender's Queensland driving record is before me and it is appalling, lending firm weight to the observation of Dr Dayalan that it indicates his poor impulse control. Sentence 1. Ryan LeGros, on the charge that on or about 28 July 2019 at Balgowlah in the State of New South Wales you did attempt to possess a substance, the substance having been unlawfully imported, the substance being a border controlled drug namely cocaine, and the quantity to possess being a marketable quantity, you are convicted. I sentence you to imprisonment for three years commencing on 9 October 2019 and expiring on 8 October 2022. Pursuant to s 19AC(1) of the Crimes Act 1914 I order that you be released today upon entering into a recognisance in the sum of $1,000 on condition that you be of good behaviour for a period of two years, and in addition it is a condition of the order that you observe the following further conditions: 1. You are to return to and continue to reside at Connect Global drug and alcohol rehabilitation education and training centre at Swan Bay until 15 April 2021. 2. You are not to leave those premises unless in the company of a staff member for any reason at all unless it is to (a) attend Community Corrections; (b) attend a police station for any reason; (c) attend an external medical, dental or mental health appointment; or (d) attend a medical emergency. 3. You are not to have more than one mobile phone. 4. You are to provide your current mobile phone number to Community Corrections as soon as possible. 5. You are not to use any encryption application on your mobile phone. 6. After completion of your rehabilitation at Global Connect you are to be subject to the supervision of Community Corrections. 7. You are not to leave the State of New South Wales without the written consent of Community Corrections. 8. If you be permitted by Community Corrections to move to another State or Territory of the Commonwealth of Australia, you are to submit to supervision by the correctional authority of that State or Territory. 9. You are to comply with all directions concerning drug rehabilitation including undergoing random drug testing. 10. You are to remain under the care and direction of Mr Craig Holt, psychologist, of Mermaid Waters, Queensland. 1. HIS HONOUR: Any other orders sought? THANGARAJ: No, thank you. HIS HONOUR: We may have a physical problem. The physical problem is I don't know whether there will be anyone in the registry who can type up the recognisance. There is somebody there. So could those instructing you, Mr Thangaraj, take Mr LeGros down to the registry to get the recognisance signed? THANGARAJ: Yes, your Honour. HIS HONOUR: You realise what's happening, Mr LeGros? OFFENDER: Yes, I do. HIS HONOUR: Good. I didn't commit any mathematical errors, did I? THANGARAJ: Not that we could tell, your Honour. Could I just ask, where is the registry, is there one in this building or in-- HIS HONOUR: Downing Centre. The Court will adjourn. ********** 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: 26 November 2020