District Court New South Wales Medium Neutral Citation: R v Pink [2021] NSWDC 47 Hearing dates: 21 January 2021 and 15 February 2021 Decision date: 19 March 2021 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Full-time custodial sentence. For orders on re-sentence see [109] Catchwords: Supply prohibited drug; attempt to possess a marketable quantity of unlawfully imported border controlled drug. Legislation Cited: Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 Criminal Code Act 1995 (Cth) Drug Misuse & Trafficking Act (NSW) 1985 Cases Cited: Adams v The Queen (2008) 234 CLR 143; [2008] HCA 15 Aryal v R [2021] NSWCCA 2 Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1; R v Achurch (2011) 216 A Crim R 152; [2011] NSWCCA 186 R v Badanjak [2004] NSWCCA 395 R v Booth [2009] NSWCCA 89 R v Cicekdag (2004) 150 A Crim R 299; [2004] NSWCCA 357 R v Danhach (Court of Criminal Appeal, 12 August 1977, unreported) R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238 R v Vachalec (1981) 1 NSWLR 351 Zahab v R [2021] NSWCCA 7 Category: Sentence Parties: Director of Public Prosecutions (Crown) Michael Robert Pink (Offender) Representation: Counsel: T Jackson (Crown) S Corish (Offender) Solicitors: M Oleg (Crown) P Purcell (Offender) File Number(s): 19/368684 Publication restriction: Nil REMARKS ON SENTENCE 1. The offender is to be sentenced in respect of the following two matters for which he has entered pleas of guilty: Count 6 – offence pursuant to s 25(1) of the Drug Misuse & Trafficking Act (NSW) 1985 ("DMTA") of supply prohibited drug (Ketamine). The maximum penalty proscribed is imprisonment for 15 years and/or a fine of 2000 penalty units (up to $420,000). Count 8 – offence pursuant to s 307.2(1) and s 311.1 with s 11.1 of the Criminal Code Act 1995 (Cth) ("the Criminal Code") of attempt to possess a marketable quantity of unlawful import border controlled drug (Ketamine). The maximum penalty proscribed for that offence is 25 years imprisonment or a fine of 5000 penalty units (up to $1,000,050,000). 1. The offender has asked that two matters be taken into account on a Form 1 attached to Count 6 as follows: Sequence 5 – offence pursuant to s 25(1) of the DMTA – supply prohibited drug (MDMA); and Sequence 7 – offence pursuant to s 25(1) of the DMTA – supply prohibited drug (cocaine). 1. The offender has admitted his guilt in respect of Sequences 5 and 7 on the Form 1 and has asked that both matters be taken into account on sentence for Count 6. 2. The offender was arrested on 13 November 2019 and has been in custody since that date. The sentence hearing 1. The sentence hearing commenced on 21 January 2021. The Commonwealth Crown Sentence Summary became Ex A and included a Statement of Agreed Facts which may be summarised as follows. Count 6 concerned a supply of ketamine on 14 November 2019, in a quantity of 34.97 grams. The two drug supply offences on the Form 1, namely, Sequences 5 and 7, involved supply of 44.74 grams of methyldioxymethamphetamine (MDMA), and 9.72 grams of cocaine, respectively. 2. Sequence 8, the offence pursuant to s 307.6 and s 311.1 with s 11.1 of the Criminal Code concerned an attempt to possess a marketable quantity of 854.4 grams of ketamine, an unlawfully imported border controlled drug. 3. The offender is a citizen of the United Kingdom. In November 2019, police began an operation to determine the identity of persons who attempted to import a border controlled substance, namely, ketamine, which had arrived in a suspicious package from the United Kingdom. The package was addressed to a pseudonym "Holly Greet" at an address in Bellevue Hill to avoid detection. The border controlled drug was substituted for an inert substance and sent to the Bellevue Hill post office. A co-offender, (Perera), was arrested outside the post office with the substituted consignment in his possession and the offender and another co-offender (Stankler) were arrested in a vehicle close to the post office. 4. Police seized mobile phones from all three co-offenders which contained evidence that revealed that all three had been in contact with persons overseas in relation to the importation of ketamine. A search of the residence of the offender revealed prohibited drugs contained in a black magnetic box in the garage, namely, MDMA (44.47 grams), ketamine (34.97 grams), and cocaine (9.27 grams). A bag containing the drugs was examined and the fingerprints of the offender were located on the bag. 5. In relation to Count 8, the attempted importation of ketamine, the offender had asked a co-offender who he worked with in a hotel, to provide her home address at Bellevue Hill for delivery of a consignment of border controlled drugs from the United Kingdom. On 3 November 2019, an air cargo consignment arrived at the Sydney International Airport Air Cargo Centre, through the Royal Mail International Shipping UK, addressed to the pseudonym at the address in Bellevue Hill. The consignment purportedly consisted of shoes. On the same day, a further consignment, purportedly consisting of shoes, arrived in the same manner, addressed to the same place (consignments 1 and 2). 6. Australia Border Force ("ABF") officers examined the consignments which showed anomalies revealed to be a heat-sealed bag containing a white crystalline substance. A presumptive test was undertaken which produced a positive result for ketamine. 7. On 4 November 2019, a third consignment arrived, which, upon examination, also contained ketamine. 8. The consignments were handed over to the New South Wales Police Force, who substituted an inert substance into the shoes, which were repacked into the shipping material and sealed. Arrangements were then made with the manager of the Bellevue Hill post office for a "Mail to collect form" to be filled out and delivered to the address in Bellevue Hill. 9. The Agreed Facts set out in detail numerous messages on the offender and co-offenders' mobile phones relating to the collection of the imported border controlled drugs. There is no need for the purpose of sentencing to repeat all of those messages, however, the offender, on 13 November 2019, received a message requiring him to engross a false authority so as to collect the consignments from the Bellevue Hill post office. On 13 November 2019, the offender had SMS communications with his work colleague. At 4.15pm the same day, police observed the offender and co-offenders in a vehicle parked opposite the post office. At the same time, the co-offender Perera entered the post office and handed to a member of staff a handwritten letter of authority in the same terms as the draft which had been sent earlier to the offender. At 4.25pm, the co-offender Perera walked out of the post office carrying the three consignments and was arrested by NSW police. The offender was immediately arrested and his mobile phone seized. Subsequently, his residence was searched pursuant to a search warrant and the drugs referred to above were located in the garage. 10. The offender declined to answer questions in relation to his involvement in the attempt to import border controlled drugs, or the supply of prohibited drugs. The offender's evidence 1. The offender relied on a bundle of documents which became Ex 1.1 to 1.6. Exhibit 1.1 was a report of Dr M Milic, forensic psychologist, dated 18 January 2021. Dr Milic had interviewed the offender for one hour by telephone on 18 December 2020. He took a family history which revealed that the offender's family were in England, and his parents were supportive of him. His father, however, suffered type 1 diabetes and had undergone a kidney and pancreas transplant. The offender had an older brother who was doing well in life in the UK. 2. The author noted that the offender had been in a relationship for three years and his partner was supportive of him and did not take illicit drugs. Under the heading "Health history", the offender reported that he had suffered an injury to his knee requiring surgery and had a history of seizures starting from when he was 14 years of age. The seizures would last for half an hour to 45 minutes, however, he had suffered them less frequently from the age of 21. Whilst in custody, the offender had suffered a seizure at Parklea Correctional Centre, following which, he spent 58 days in hospital. His last seizure occurred on 28 November 2020. As a child he had ambitions to become a professional football player, but could not progress in the sport because of his seizures. He had commenced illicit drug use as a teenager and that progressed from marijuana to MDMA and cocaine abuse. 3. The author reported that the offender had left England and travelled overseas. When he arrived in Australia, he had met up with "party-oriented" people and fell into bad habits of drinking alcohol excessively and taking illicit drugs. He found work as a technical assistant/electrician in Sydney, however, he lapsed into smoking marijuana every day and using MDMA, cocaine and ketamine on weekends. When he ran out of money he started getting drugs "on tick", and those who he was indebted to offered to wipe his drug debt in return for helping them import the border controlled drugs, the subject of the index offence. 4. The offender reported being chronically worried about his father's illness and his own health. His mental health issues made him more susceptible to substance use problems, and it was the author's opinion that he was suffering from Substance Use Disorders which played a major part in his offending. Dr Milic recommended that the offender "attend Narcotics Anonymous meetings, and undergo drug relapse prevention treatment and treatment for mental health issues, including chronic worry and disillusionment". Because of his separation from his family in England, his immigration status and severe worry about seizure attacks, Dr Milic opined that his time in custody will be more onerous than that of the average prisoner. 5. Exhibit 1.2 comprised extracted Justice Health notes recording treatment the offender has undergone in custody for the seizures that he has suffered. He was initially diagnosed with Postural Othostatic Tachycardia Syndrome ("POTS") during a prolonged admission at Blacktown Hospital. However, his specialist was not convinced he had POTS and opined that he may have an inappropriate sinus tachycardia. He is awaiting cardiological review. 6. The clinical notes revealed that he was suffering recurrent episodes of unexplained tonic-clonic seizure-like activity with numerous presentations to the emergency department. 7. At the outset of the sentence hearing, the Crown accepted that the offender was suffering an underlying medical issue that will have some adverse effect on him in custody, but without further information, there was no concession as to the level of that effect. The Crown conceded that it will be open to the court to find that a custodial sentence will be more onerous for the offender than the general prison population. The offender was now housed at Long Bay Hospital, but was off all previous medications prescribed for him. 8. Exhibit 1.3 was a letter from the offender to the court dated 21 January 2021. In it, the offender set out his life and family history, together with the history of his seizures. After suffering a knee injury, he left school and went to a college to study electrical installation and completed his course in electrical engineering in 2013. He obtained employment in that field in 2014, however, during 2014 and 2015, he was taking recreational drugs on weekends. 9. He arrived in Australia on a two year working visa and after travelling through the Northern Territory, he did sugar cane cutting in Queensland, which was extremely hard work. He moved to Sydney and in late 2017 obtained employment as an electrician. He began working for a hostel near Central station as a caretaker maintenance person and became heavily involved in what he described as "the party scene", smoking cannabis every day, and taking ketamine and cocaine on weekends. 10. In August 2018 he was arrested for supplying cocaine. The offender met his partner and they decided they would apply to stay in Australia together. Eventually he owed $6,000 for drugs and he agreed to a proposition from his dealer to obtain an address and oversee the collection of imported border controlled drugs so as to wipe his debt. 11. Following his arrest in November 2019, his childhood seizures returned. He now has insight into the problems that prohibited drugs cause in the community and how far reaching that damage is. 12. The offender acknowledged that he will be returned to the UK at the end of his sentence and he hopes to re-engage with his trade and start his own business. He also wishes to engage in a relapse prevention program and is now housed at the Long Bay Hospital so that when he has a seizure he is close to medical treatment. When last seen by his cardiologist he was told that he should have a cardiac loop inserted to regulate his heartbeat, however, to date that has not occurred. He described being in custody with his condition, without a diagnosis, as "terrifying". The advent of Covid-19 had made the situation even more stressful. The offender apologised for his conduct and stated that he now realised that he needed help, that he intended to get help and that he was no long involved in drugs. 13. Exhibits 1.4, 1.5 and 1.6 were character references written by the offender's mother, his partner, Beatrice Diaz San Juan, and a long-time friend, Alexander Anthony. The testimonials speak highly of the offender as someone who previously led a very positive lifestyle and for him the offending is out of character. They record that he deeply regrets the offences, that he will learn from this experience, and will have the support of his family upon his return to the UK. They attest to the fact that the offender now has insight into the harm prohibited drugs do in the community and is sincere in his remorse and desire to change. The Crown submissions 1. The Crown relied on a written outline of submissions in which it set out well established principles for sentencing for both Commonwealth and State offences. In relation to the index offence in Sequence 8, the following submissions were made in respect of s 16A(2) of the Crimes Act 1914 (Cth). Section 16A(2)(a) – nature and circumstances of the offence 1. The Crown submitted that the offender was an important cog in the criminal enterprise attempting to import the border controlled drug Ketamine. The court would have regard to the role played by the offender and the particular activities he undertook in performing that role. The Crown submitted the offender was actively involved in the commission of the offence. That was evidenced by the messaging between the offender and others regarding the status of the border controlled drug during transit, the creation of the fake authority letter and its contents, and the instructions given to the work colleague in organising the package to be addressed to her house, and the use of the fake recipient. 2. The Crown submitted that the offender's role was clearly that of a trusted intermediary in relation to the collection of the drugs and its subsequent distribution. The court would reject any suggestion that he was a mere collector of the border controlled drugs. First, he had a significant level of involvement with the unknown person who was sending the drugs, and secondly he had a significant involvement in the collection of the drugs, creating the fake letter of authority, organising the address to which the drugs were to be delivered, and the pseudonym for the addressee. 3. The Crown submitted that there was a clear intention to supply the drug based on: 1. The amount of ketamine found secreted in the magnetic box which was almost three times the indictable amount, 2. The fact that the drug was secreted in the magnetic box in the garage, and 3. The existence of other prohibited drugs in the magnetic tin and their weights, and 4. The fingerprints of the offender being on the bag containing the prohibited drugs. Having regard to all of the facts in combination, the Crown submitted it was clear that the offender had an intention to supply the prohibited drugs. 1. The Crown submitted that pursuant to s 307.6 of the The Criminal Code, it was not necessary for the Crown to prove that the offender knew or was reckless as to the identity of the particular border controlled drug. Rather, it was sufficient that the Crown established that he was reckless as to it being any border controlled drug, of which ketamine was one. 2. Here, the Crown submitted the offender attempted to take possession of the border controlled drug by use of encrypted messages from two phones, a subterfuge engaged in organising a fake addressee, and a contrived letter of authority to pick the package up. The Crown submitted he was highly reckless as to what he was taking possession of. 3. The Crown noted that the Commonwealth drug legislation imposes a quantity based penalty regime which distinguishes between quantities but not otherwise making any distinction between prohibited drugs in terms of maximum penalty, including by reference to harmfulness, relying on Adams v The Queen (2008) 244 ALR 270 at [2]. 4. The Crown submitted that whilst the value of the drug is relevant and the total seizure of ketamine related to Count 8 was 972.8 grams, which gave a value range between $194,000 and $350,000 (the ketamine relating to Count 6 was 35.97 grams giving a value range between $7,000 and $13,000). With respect to the Form 1 matters, the MDMA was 44.47 grams, giving a value range between $4,500 and $18,000, and cocaine volume 9.72 grams gave a value range of between $1,500 and $6,000. 5. The marketable quantity threshold for ketamine is 500 grams (pure). The total pure weight here was 854.4 grams, almost double the minimum pure weight. Section 16A(2)(ja) – need for general deterrence 1. The Crown submitted general deterrence was a fundamental consideration in sentencing for drug importation offences. Any sentence should be of such severity so as to act to deter others from engaging in smuggling prohibited goods into Australia. Section 16A(2)(g) and (h) – guilty plea incorporation 1. The Crown accepted that the offender pleaded guilty at the earliest opportunity and that his plea was of benefit to the community and thus he should receive a discount. 2. The Crown submitted that should the court be satisfied that the guilty plea and any associated evidence demonstrates genuine remorse, acceptance of responsibility and/or a willingness to facilitate the course of justice, that should be reflected in the discount. Further, the strength of the Crown case may be taken into account in assessing the subjective value of the guilty plea. Here, the plea was in fact a "recognition of the inevitable", although it did indicate some contrition and a willingness to facilitate the course of justice. Section 16A(2)(m) – character and antecedents 1. The Crown submitted the offender was 30 years of age at the time of the offending and was a citizen of the United Kingdom. He has been in custody bail refused since 13 November 2019. Section 16A(2)(n) – prospects of rehabilitation 1. The Crown submitted that the offender has demonstrated an escalation in offending and as such, any prospects of rehabilitation must be viewed with caution. 2. The Crown submitted that rehabilitation should not be the sole focus of sentencing and should not be relied upon at the expense of other important sentencing considerations such as general deterrence, relying on R v Booth [2009] NSWCCA 89 at [47]. 3. Annexure A to the Crown submissions set out general principles in sentencing for Commonwealth offences, including s 17A of the Crimes Act which provides that a court shall not pass a sentence of imprisonment for a Federal offence unless the court, having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances. 4. In respect of Sequence 6, the index offence of supplying 35.97 grams of ketamine, the Crown submitted that financial gain was a clear motive and an aggravating factor pursuant to s 21A(2)(o) of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"). 5. Further, the nature and circumstances of the Form 1 supply offences clearly evinced an intention on behalf of the offender to engage in sustained criminal offending, being the supply of drugs. They represented a persistent and sustained course of criminal conduct engaged in by the offender and demonstrated that the offender was running a drug supply business. 6. The weight of the MDMA (44.47 grams) was nine times greater than the indictable threshold and the weight of the cocaine (9.72 grams) is almost twice the weight of the threshold. The Crown submitted that the only available inference is that the offender intended to supply those drugs for the purpose of financial gain. 7. It was accepted that the offender had pleaded guilty to the offence at the earliest opportunity, however, it was an aggravating factor that he was on conditional liberty at the time of the offending pursuant to s 21A(2)(j) of the CSPA. 8. Pursuant to s 74 of the CSPA, the s 9 bonds were converted into Community Correction Orders. The Crown submitted this was conditional liberty, relying on R v Cicekdag (2004) 150 A Crim R 299; [2004] NSWCCA 357, breach of which amounted to a "betrayal of the opportunity for rehabilitation". 9. The Crown submitted that any appropriate penalty was a sentence of full‑time imprisonment, and provided in Annexure B to its written outline, a table of comparative cases. 10. In his oral submissions, the Crown submitted that the objective seriousness of the offending in Counts 6 and 8 did not fall towards the lower range of objective seriousness. Having regard to all of the circumstances, the role of the offender here in the attempted importation went beyond a mere courier or conduit between the sender and eventual users. 11. The offending was characterised as not being based on elaborate planning, nor did the Crown seek to establish a level of intention, but rather the attempted importation was highly reckless. 12. In respect of Count 6, the Crown conceded there was no indicia of supply in respect of the deemed supply offences, including the Form 1 offences. 13. In respect of the offender's subjective factors, the Crown conceded the offender had significant education, was articulate and had advanced his rehabilitation whilst in custody. He will, however, be deported once his sentence has been served and punishment and denunciation for his criminal conduct were very relevant. The Crown characterised the offender as a foreign national who had come to Australia to engage in the supply of drugs. His purpose in offending was to clear his drug debt and to get further drugs for himself. It was not, however, submitted that he was involved in the dissemination of drugs into the broader community. The Crown in other words relied on the commercial purpose, namely, for his own circumstances, that is for his drug debt to be cleared and for his own personal use. 14. The Crown conceded that the offender had clear remorse for his offending, however, the breach of the two s 9 bonds was an aggravating factor to be taken into account. 15. The Crown advocated that the offender should be sentenced for the Commonwealth offence first and the accumulated State matters thereafter, with any sentence to be backdated to 13 November 2019. Submissions on behalf of the offender 1. Counsel for the offender also relied on a written outline of submissions. Counsel submitted that in respect of the attempted importation offence, the offender's role was limited both in timeframe and in steps taken. It was evidenced by: (a) Messages in relation to the transit/delivery of the package, (b) Pick up the package at the post office, (c) Relaying information regarding the address of the package. 1. The role of the offender was to be determined by reference to all of the circumstances. Here, the description "collector" of the drugs was apt. This was consistent with the discussions contained in the offender's messages, and also consistent with the offender being reckless as to the presence of the particular drug rather than it being some kind of border controlled drug. 2. In relation to the State offence of supply, this was a deemed supply offence. It was not an aggravating factor that the drugs were "secreted", rather they were stored in the magnetic box. It was submitted that there were no indicia of actual regular drug sales, such as small plastic bags, scales and cash. 3. In relation to the price ranges contained in the Crown submissions, it was noted that the prices were calculated per gram and if relevant in any way, the lower end of each range should be used. The street value was tenuous in any event, given that the offender was not alleged to have been dealing with amounts in single gram quantities. In any event, care was required in citing the value of the drugs alone as an aggravating factor. 4. Whilst the offender did engage in a commercial type sale of drugs business, there was no evidence to suggest that the drugs in the four offences were to be his to "package up" and sell in a commercial way only for profit. 5. With regard to the $1,750 in cash, it was noted that the offender had not been charged in relation to that cash which was located in the glovebox of a car. The offender had been observed in the passenger seat of that car which was driven by the co-offender Stankler. 6. The offender was a person with a longstanding drug use and abuse problem. He lacked the trappings of wealth or assets associated with a profit making enterprise. Rather, he was feeding an insatiable drug abuse need by engaging in the supply offences. 7. The offender submitted that he had pleaded guilty at the earliest opportunity and had demonstrated a willingness to facilitate the course of justice. He had also demonstrated contrition and insight into his drug abuse problem, as well as the impact drugs have on others. 8. The offender submitted the following subjective matters should be taken into account. He was now 31 and had ongoing significant health issues. The offender had no family in Australia and had a positive history of employment and educational qualifications. As a citizen of the UK, he was likely to be deported at the end of his non-parole period. It was submitted that his prospects of rehabilitation should be regarded as positive and that given his health issues, his time in custody will be more onerous than others in the prison population. 9. In his oral submissions, counsel rehearsed his written submissions as to the characterisation of the offender's role in the offence of attempt to possess a marketable quantity of unlawful imported border controlled drug (Count 8). Counsel submitted that this was entirely unsophisticated offending compared with other importation methods. The objective seriousness of the offending fell in the low to mid-range for this offence. 10. The State offence, Count 6, involved a quantity well above the deemed supply quantity, however, there were no indicia of supply. The court would accept the offender's remorse and contrition as set out in his letter to the court. It was clear from the testimonials relied on by the offender that he had supportive family and friends, was educated and had a good work history. The offending was borne of a need to fund his own drug use and there was no evidence that he was leading a high life. 11. It was submitted on behalf of the offender that he acknowledged his drug abuse problem and had shown insight into it. This would lead to a positive finding that he had good prospects of rehabilitation. The offender also had a good work ethic and the court would accept that once he is reunited with his family and partner in the UK, he would be able to restart his life constructively. 12. It was submitted that the court would reduce any non-parole period to enable him the opportunity to chart the course he is to take in life. His early plea of guilty was indicative of genuine contrition and a willingness to facilitate the administration of justice. 13. The offender submitted he had a serious health issue which meant his time in custody was unpredictable and uncertain and more onerous than the general prison population. Further hearing 1. The sentence hearing was adjourned to 15 February 2021 to receive further evidence and submissions relating thereto. The Crown tendered a bundle comprising the Court Attendance Notice in respect of the offender's previous offence on 17 August 2018 of supply prohibited drug, namely cocaine, and the facts relating to that incident for which the offender was sentenced on 11 September 2018 by way of a good behaviour bond for 12 months pursuant to s 9(1) of the CSPA. The offender admitted his breach of that bond which occurred half way through the term of the bond. 2. A report from Dr J Ette dated 29 January 2021 became Ex C. Dr Ette, who was described as Staff Specialist Primary Care, Justice Health Forensic Mental Health Network, prepared her report from the patient's paper‑based and electronic medical records supplied by Justice Health. She noted that the offender had been extensively investigated during an admission to Blacktown Hospital in November 2019. At that time he was diagnosed with Inappropriate Sinus Tachycardia and POTS. 3. The offender attended numerous electrocardiograms ("ECG's"), some of which were normal and others showed tachycardia. He underwent the following investigations: * CT with spiral angiography showing no evidence of aortic dissection * VQ scan which is a ventilation and perfusion scan with SPECT which showed no evidence of pulmonary embellism * CT scan of the abdomen was normal * CT scan of the head demonstrated no intracranial pathology * CTPA with no evidence of pulmonary embellism * Transthoracic echo cardiagram (TTE) and Stress TTE showed normal left ventricular size with normal systolic pressure and normal left ventricular ejection a fraction of 63% 1. Dr Ette reported that in June 2020 the offender was reviewed by the cardiology department at Prince of Wales Hospital ("POW"). The POTS diagnosis was revoked and he ceased all medications. She reported: "They recommended an implantable loop recorder and electrophysiology study (EPS) for further assessment of Inappropriate Sinus Tachycardia as a possible alternative diagnosis. He is on the waiting list for both these tests." 1. The offender has reported numerous episodes of chest pain and seizures activity. On 7 July 2020 he underwent an EEG which did not show any epileptiform activity, nor clinical or sub-clinical seizures. At that time he was diagnosed with seizure-like episodes. He was referred to the neurology department at POW for investigation for possible Pseudoseizures. 2. Dr Ette noted that the offender currently takes only magnesium tablets as a supplement and Rabeprazole for reflux. She then set out the areas of care available through Justice Health and stated: "That services available to those in custody are commensurate with those available to the wider community." 1. The offender tendered the following documents: * Copy email from the offender's solicitor to Justice Health re the report of Dr Ette, seeking clarification on eight separate matters raised in her report, including what she meant by the offender being "on the waiting list for both the tests". Dr Ette was also asked to confirm that the offender is currently housed in the Long Bay Prison Hospital and asked whether that was because of acute health care concerns. There was no reply to the email. * Exhibit 3 was a printout from the Department of Corrective Services listing 18 separate occasions when the offender had been subjected to unscheduled medical escorts to and from hospitals, for what were submitted as serious medical conditions. They dated from 26 November 2019 to 9 January 2021. * Exhibit 4 was a further printout from the Department of Corrective Services in relation to the offender's custody movements, showing his admission to Long Bay Hospital on 2 June 2020. * Exhibit 5 was a further letter from the offender dated 12 February 2021. In it, the offender referred to the advice given to him in June 2020 that he required a recordable implantable loop inserted to monitor his heart activity. He stated that on subsequent admissions, treating doctors had expressed surprise that this had still not occurred, and he did not know when any surgery was scheduled. The offender was moved to Long Bay Prison Hospital on or about 2 June 2020 and has remained there since On 9 January 2021 he had another seizure, following which he was taken to POW. He was treated on that occasion with the treating doctor expressing surprise as to why he had not received the implantable loop previously recommended in June 2020. He was not given any further information as to when that was likely to occur. Further Crown submissions 1. The Crown relied on a further written submission conceding that the medical condition of the offender may be of some relevance to the sentencing exercise. It was submitted, however, that the offender here had not demonstrated that the medical issues suffered by him would lead to hardship warranting mitigation on sentence. 2. The Crown referred to well know authorities relating to the responsibility of prisoner authorities to provide adequate and proper medical treatment for prisoners, including R v Vachalec (1981) 1 NSWLR 351, cited with approval in R v Achurch (2011) 216 A Crim R 152; [2011] NSWCCA 186 at [135], and R v Danhach (Court of Criminal Appeal, 12 August 1977, unreported). 3. The Crown submitted, relying on R v Badanjak [2004] NSWCCA 395, that: "The health of an offender will only be a factor tending to mitigate punishment where there is evidence to show that where there is a serious risk that imprisonment would be a greater burden on the offender, by reason of his ill health, or where there is a serious risk that imprisonment will have a grave adverse effect on the offender's health." 1. The Crown relied on the report of Dr Ette to submit that the treatment received by the offender is commensurate with treatment available in the community, and the offender's incarceration does not give rise to any further hardship experienced by other prisoners. Further submission on behalf of the accused 1. Counsel for the accused also relied on an additional written outline, maintaining the offender's submission that he suffers from a serious medical condition which will make his custodial conditions more onerous. 2. The report of Dr Ette was described as a summary of the various clinical notes and records maintained by Justice Health. It was submitted that Justice Health does not have a management plan for the offender's condition going forward. Counsel referred to the fact that the offender is on a waiting list for the tests referred, but submitted there was no scheduled or anticipated date when those tests will occur, or what would occur thereafter, subject to results of the test. 3. It was submitted that the offender's condition required acute medical treatment and that the report of Dr Ette merely set out the departmental policy position in respect of health care for prisoners generally. It was submitted that the custodial burden on the offender was self-evident from the fact that he continues to be housed at the Long Bay Hospital, and that special medical treatment and diagnostic testing that had been recommended had not occurred as he was still on a waiting list. 4. In his oral submissions, counsel for the offender rehearsed his submission that Dr Ette had provided no information about any plan to treat the offender's serious medical condition. Being on a waiting list whilst in custody made the conditions of his custody more onerous and warranted mitigation of his sentence towards the lower end of the range of appropriate sentence. Determination 1. Section 3A of the C(SP)A sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community." 1. The quantity of ketamine the subject of Count 6, was 34.97 grams, against a commercial proscribed quantity of 1.25 kilograms of ketamine. The Crown submitted that quantity left a street value in the range of $7,000 to $13,000, and I accept the Crown's submission that financial gain was a clear motive, and an aggravating factor pursuant to s 21A(2)(o) of the CSPA. The Crown submitted that the only available inference was the offender intended to supply the drug, but conceded there were no indicia of supply present. Having regard to the whole of the circumstances, the objective seriousness of the offending in Count 6 fell in the low-range of objective seriousness for an offence pursuant to s 25(1) of the DMTA, and below the middle of the low-range for that offence. 2. In respect of the two matters on the Form 1, Sequence 5 involved a deem supply of 44.74 grams of MDMA, which was nine times greater than the indictable threshold. Sequence 7 involved the deem supply of 9.72 grams of cocaine, which was almost twice the weight of the indictable threshold. I accept that there were no indicia of supply present and the objective seriousness of the offending for each charge fell below the middle of the low range for an offence pursuant to s 25(1) of the DMTA. There will, however, be some accumulation on sentence in respect of Count 6 for the two matters on the Form 1. 3. General deterrence is important in the sentencing for drug supply matters and a clear message must be sent to like-minded members of the community that Parliament has proscribed lengthy maximum penalties for such offences, and that the courts will impose condign punishment in appropriate cases. 4. Specific deterrence is also important here, given that at the time of the offending, the offender was subject to a two year good behaviour bond for a previous drug supply offence which represented a failure of his rehabilitation following that offence. The fact that the offender was subject to conditional liberty at the time of the offending is a further aggravating factor pursuant to s 21A(2)(j) of the CSPA. 5. I take into account the offender's early plea of guilty, for which he is entitled to a utilitarian discount on sentence of 25%. I also accept that the offender has expressed remorse for his offending and has insight into the damage done to the community by the supply of prohibited drugs. I have also taken into account the maximum penalty for the offence pursuant to s 25(1) of the DMTA of 15 years imprisonment and/or a fine of up to $420,000. The maximum penalty is a guidepost in the sentencing process. 6. I am satisfied that the threshold in s 5 of the CSPA has been crossed in respect of Count 6, and having considered all possible alternatives, no penalty other than imprisonment is appropriate for this offence. 7. The offending pursuant to Sequence 8 of attempt to possess a marketable quantity of 854.4 grams of ketamine, was objectively serious offending. The offender played an integral role in that offending, first, by obtaining the agreement of a co-worker to provide an address for delivery of the consignment of border controlled drugs. Secondly, he had prepared the false authority for collection of the consignments from the Bellevue Hill post office and was involved in the arrangements relating to the collection of the border controlled drugs from the post office. Further, whilst a co-offender entered the post office and collected the consignments, the offender was seated in a car nearby and was immediately arrested by investigating police. I therefore find that the offender played an active role as a facilitator of the attempted possession of the marketable quantity of unlawful imported border controlled drugs, and was not a "collector" as advocated by his counsel. I further find that by comparison to other entrepreneurial operations of importing drugs, this operation was relatively unsophisticated offending. 8. Pursuant to Commonwealth legislation, the commercial quantity of this particular border controlled drug was 1 kg and therefore the amount the subject of the attempted importation here, was only slightly below the commercial quantity. In R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238, Johnson J summarised at [72] the following relevant principles that apply to the sentencing of Federal drug offenders for importation and possession offences (citations omitted): "a) problems may emerge when a sentencing court attempts to categorize the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court; b) although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported; the statements by the High Court in Wong v The Queen; Leung v The Queen do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type; in many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar; c) it is the criminality involved in the importation which must be identified … d) as a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit; e) the difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case; f) where offenders are not young (the Offender was 41 years' old), the immaturity of youth cannot be claimed as a factor bearing upon their transgressions; g) where an offender is to be sentenced for an attempted possession offence, it should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, is relevant to determining the degree of moral culpability attached to the act of attempted possession itself, so that a sentencing Judge should have regard to the offender's involvement in the overall transaction for the purpose of determining the offender's degree of involvement in a drug-smuggling enterprise; h) offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugs; i) the range of sentences referred to in the decision of the Court of Criminal Appeal in R v Wong remain useful to sentencing for offences of this type; although they have no validity as guidelines, their utility results from the fact that they are based on the patterns of actual sentences, although allowance must be made for the repeal of s 16G Crimes Act 1914 (Cth)." 1. In relation to this offending, I make the following findings in respect of s 16A(2) of the Crimes Act 1914 (Cth). Section 16A(2)(a) – nature and circumstances of the offence 1. The offender clearly played an important role in the attempt to import the border controlled drug ketamine, and was actively involved in the commission of the offence. That was evidenced by the messaging between the co‑offenders regarding the status of the border controlled drug during transit, his role in creating the fake authority letter and the instructions given to his work colleague in organising the consignment to be addressed to her house, and to a false name. Thus, I find the offender's involvement was significant, and it may be inferred as submitted by the Crown, that he was clearly a trusted intermediary in facilitating the attempted importation. I further accept the Crown's submission that the offender was reckless as to the consignment being any border controlled drug, of which ketamine was one. Relevant to the seriousness of the offending was that the seizure of ketamine related to Count 8 was 972.8 grams, giving a value range between $194,000 and $350,000. The pure weight was 854.4 grams and the marketable quantity threshold was 500 grams (pure). The offending clearly constituted very serious offending. Section 16A(2)(f) - The degree to which the person has shown contrition for the offence 1. I find that the offender has shown contrition for the offence by acknowledging his insight into the offending, taking responsibility for it and acknowledging the harm done to the community by such offending. Section 16A(2)(g) – the offender's plea 1. I accept that the offender has entered a plea of guilty at an early stage which entitles him to a utilitarian discount on sentence and has facilitated the course of justice. Notwithstanding that the plea was entered in the face of a strong Crown case, I find that the offender is entitled to a 25% utilitarian discount on sentence. I further find the offender is remorseful for his offending conduct and has accepted responsibility for it. Section 16A(2)(h) – co-operation with law enforcement agencies 1. Whilst the offender's early plea of guilty has facilitated the course of justice, I note that he refused to answer police questions following his arrest. Section 16A(2)(j) – specific deterrence 1. Specific deterrence is important in sentencing for drug offences. The offender must understand that if he were to re-offend, he would be subject to increasingly lengthy custodial sentences being imposed upon him. Section 16A(2)(ja) – general deterrence 1. As outlined above, general deterrence is important in sentencing for offences involving the importation of border controlled drugs and offences of attempting to import the same. Such offences are difficult to detect and result in grave social consequences. A clear message must be sent to the community that Parliament has proscribed heavy maximum penalties and that the courts will impose lengthy periods of imprisonment in appropriate cases. The maximum penalty for the offence in Count 8, pursuant to s 307.2(1) and s 311.1 with s 11.1 of the Criminal Code, is 25 years imprisonment and/or a fine of up to $1,000,050.00. This is to be taken into account as a guidepost in the sentencing process. Thus, the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment by imposition of significant custodial sentences. Section 16A (2)(m) – the offender's subjective matters 1. I accept that the offender comes from a supportive family and had a good education culminating in his qualification in electrical engineering in 2013. He demonstrated a good work ethic, including in this country where he did sugar cane cutting in Queensland before moving to Sydney in late 2017, where he obtained employment as an electrician. The offender is aged 31 and has the support of his partner. 2. The offender had suffered seizures as a teenager, and following his arrest in November 2019, those seizures returned. He has had a number of seizures whilst in custody for which he has been hospitalised at Blacktown Hospital and subject to numerous pathological testing. I accept that his diagnoses remains provisional, and that he is on a waiting list to undergo further testing, and has been on that list since June 2020. 3. I accept the submission made on the offender's behalf that he suffers a serious medical condition, requiring his custodial sentence to be served in Long Bay Prison Hospital. I further accept that given the uncertainty surrounding his diagnosis, the unavailability of immediate testing and treatment, notwithstanding the best efforts of Justice Health, have caused his time on remand to be stressful, together with his separation from family and his immigration status. I am satisfied that any sentence imposed will be served in conditions more onerous for the offender than the general prison population. I therefore take that into account as a mitigating factor in sentencing – see Zahab v R [2021] NSWCCA 7. Section 16A(2)(n) – prospects of rehabilitation 1. I accept that, with help, the offender has good prospects of rehabilitation. That assistance will hopefully be provided in terms of drug and alcohol rehabilitation courses whilst he is in custody. Provided he does not relapse into drug abuse, I find that he will present as a low risk of re-offending following his release. Upon release he will of course be deported to the UK. 2. I am satisfied pursuant to s 17A of the Crimes Act 1914 (Cth), having considered all other available sentences, that no sentence other than imprisonment is appropriate in all the circumstances here. 3. Having regard to the impact of the offender's health issues, his separation from family, and the fact that this is his first time in custody, I find that there are special circumstances pursuant to s 44(2) of the CSPA. I therefore intend to vary the statutory ratio between head sentence and non-parole period. 4. In arriving at an appropriate sentence, I am required to take into account the principles of proportionality and totality in sentencing. In Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1, Howie J outlined the principle of totality in sentencing at [27] as follows: "There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both." The sentence to be imposed therefore involves an assessment of what is appropriate to reflect the totality of criminality in all of the offending - see Aryal v R [2021] NSWCCA 2 at [47]. 1. In applying that principle here, there must be some accumulation in sentence between the two offences. I intend to sentence the offender in respect of Count 6 to a term of imprisonment of 2 years and 6 months with a non-parole period of 12 months commencing on 13 November 2019. In respect of Count 8 I intend to sentence the offender to a term of imprisonment of 4 years and 6 months, with a non-parole period of 2 years commencing on 13 November 2020. The effective sentence will be a term of 5 years and 6 months imprisonment, with a non-parole period of 3 years. Orders 1. I make the following orders: 1. You are convicted of the offence in Count 6, an offence pursuant to s 25(1) of the DMTA (NSW) of supply prohibited drug (ketamine) 2. I sentence you to a term of imprisonment of 2 years and 6 months with a non-parole period of 12 months commencing on 13 November 2019. 3. You are convicted of the offence in Count 8, an offence pursuant to s 307.2(1) and 311.1 with s 11.1 of the Criminal Code of attempt to possess a marketable quantity of unlawful imported border control drug (ketamine). 4. I sentence you to a term of imprisonment of 4 years and 6 months with a non-parole period of 2 years to commence on 13 November 2020. 5. I certify that I have taken into account the two matters on the Form 1 attached to Count 6. 6. I note the breaches in respect of Sequences 1 and 2 and take no further action in relation thereto. 1. You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that you will almost certainly be deported upon your release to parole. ********** Amendments 22 March 2021 - Amendment on re-sentence Deletion of aggregate sentence and indicative sentences 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: 22 March 2021