District Court New South Wales Medium Neutral Citation: R v Robson-Bolan [2021] NSWDC 48 Hearing dates: 26 February 2021 Date of orders: 5 March 2021 Decision date: 05 March 2021 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraph 53 and 54 Catchwords: CRIMINAL LAW – sentencing – supply of a prohibited drug – cocaine – importation of marketable quantity of border-controlled drug – cocaine – importation through the 'dark web' – interaction in sentencing between federal and state offences Legislation Cited: Drugs Misuse and Trafficking Act 1985 (NSW) s 25 Criminal Code 1995 (Cth) ss 11.1, 307.2, 308.1, 400.9 Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5 16A, 17A, 45 Crimes Act 1914 (Cth) s 19AF Confiscation of Proceeds of Crime Act 1989 (NSW) s 13 Cases Cited: Xiao v R (2018) 329 FLR 1 R v Pham (2015) 256 CLR 550 Stemler v R [2017] NSWCCA 320 R v Faber [2020] SASCFC 49 DPP v Thomas [2017] VCC 1060 DPP (Cth) v Frendo [2019] VCC 1548 Texts Cited: Nil Category: Sentence Parties: The Director of Public Prosecutions (Cth) Mr T Robson-Bolan Representation: Counsel: Ms K Edwards for the offender Solicitor Advocate for the Director of Public Prosecutions (Cth) Solicitors: Dowson Turco Lawyers for the offender File Number(s): 2020/63047 Publication restriction: Nil SENTENCING REMARKS Introduction 1. The offender is to be sentenced, following his pleas of guilt to the Burwood Local Court on 28 October 2020, to the offences that: 1. on 26 February 2020 he supplied a prohibited drug, being cocaine, contrary to s 25(1) of the Drugs Misuse and Trafficking Act 1985 (NSW) ('the state offence); and 2. between 1 and 26 February 2020, at Canterbury, he attempted to import a marketable quantity of a border-controlled drug, being cocaine, contrary to ss 11.1(1) and 307.2(1) of the Criminal Code 1995 (Cth) ('the federal offence'). 1. The maximum penalty for the state offence is 15 years' imprisonment and/or 5,000 penalty units. There is no applicable standard non-parole period for this offence. The maximum penalty for the federal offence is 25 years' imprisonment and/or 5,000 penalty units. 2. Through his Counsel, the offender has also asked the Court to take into account the following additional offences on a Section 16BA Schedule (Cth), being that on 26 February 2020 he: 1. dealt with money or property reasonably suspected as being the proceeds of crime which at the time of dealing was valued at less than $100,000, contrary to s 400.9(1A) of the Criminal Code (the maximum punishment being 2 years and/or 120 penalty units); and 2. possessed a controlled drug, cannabis, being contrary to s 308.1(1) of the Criminal Code (the maximum punishment being 2 years and/or 120 penalty units). 1. For the federal offence, the Court is required to take into account a mandatory, but non-exhaustive list of factors, contained in s 16A of the Crimes Act 1914 (Cth). Many of those factors overlap with considerations referred to in the Crimes (Sentencing Procedure) Act 1999 (NSW) ('CSP Act'). 2. This sentence concerns the relatively recent and insidious phenomenon regarding the importation of drugs on the 'dark web'. The 'dark web' is part of the internet that is not visible on search engines. Access has to be reached by specific web browsers. The underlying intention is to keep internet activity anonymous and private. It is tailor-made for criminal activity. Circumstances of offending 1. Agreed facts were placed before the Court, which formed part of the Crown sentencing bundle (Exhibit A). The salient facts are that: 1. The offender used the 'dark web' to attempt to purchase a marketable quantity (pure weight being 300.83 grams) of cocaine, within a ruler, in a mailed package originating from Chile. 2. The package was intercepted by Australian Border Police Officers on 17 February 2020. 3. The package was sent to the address of the offender, using his own name and phone number. 4. On 26 February 2020, at about 3:06pm, the offender was observed to have left a post office in Canterbury with the package in his possession. As the offender approached his motor vehicle, he was arrested and cautioned. The offender's counsel aptly acknowledged that the offender was caught 'red-handed' with the parcel. At the time other items of property belonging to him were seized. His motor vehicle was inspected and other items seized, including his lease agreement of the premises he resided in (with his partner); and a money order receipt for USD$3,280.39. 5. Following the execution of a search warrant at the offender's premises, a unit, on 26 February 2020, officers of the NSW Police Force also located items comprising other quantities of cocaine and $31,900 in cash. It is these items which comprise the additional offences on the s 16BA Schedule. In drawers located within a closed cupboard, other items indicative of drug supply were located: a set of 'Mylo' scales and a box containing drug paraphernalia. The offender's counsel acknowledged that these items were probative of drug supply, although, by themselves, they did not indicate the frequency, size and scale of the actual supplies. 6. After his arrest, the offender participated in a recorded interview. Relevantly, he told police he was unemployed at that time, having quit his job two months before and was living off his savings. The objective gravity of the offending 1. It is common ground that there was a lack of sophistication in the offending. As the offender's Counsel wryly noted, it did not portend a likely successful career in crime: the offender's name, address and phone details were conspicuous. Other features commonly associated with 'dark web' importations, such as establishing a crypto-currency account or post office box, serving to conceal and deflect law enforcement, were missing here. 2. There was some dispute about the level of planning. The Crown emphasised that the offender went on to the 'dark web', and must have known of the specific drug, and quantity of drugs to be acquired. If there was any impulsivity in the transaction itself, the offender still had the time to consider whether he would collect the package from the post office; but he went through with that collection anyway. These things were true but they inhere in any offence of importation. 3. Counsel for the offender submitted, without real disagreement by the Crown, that it was difficult to assess the level of sophistication and planning associated with the state offence. All that was located was scales and bags that were not different from the garden variety supply offence. 4. Further, as Counsel for the offender noted, with reference to the features apparent in other 'dark web' drug importation cases, this is not the archetypal drug importation case involving a syndicate, or enterprise: where there are middle men, couriers or mules. Although 'dark web' cases should not be marked out, more leniently, as a special category, or perhaps sub-category, it remained the case that highly serious offences can be committed by lonely or isolated individuals, who hitherto have not had any or any real exposure to criminal elements, over minutes at the press of a few buttons. I consider that there is substance to this submission; in that the considerations of general and especially specific deterrence may have greater force against criminal enterprises rather than ad hoc activities of isolated individuals, where there is apt to be a grander scale of planning and concealment. 5. Counsel for the offender also noted that unlike other cases, the offending (for the federal offence) involved a single transaction. The pure weight of the drug, though falling within the marketable range for the drug, was well short of the commercial threshold (2 kg), but it was still 150 times greater than the marketable quantity threshold. 6. There is no dispute that, to some extent, a desire for financial gain motivated the offender, but Counsel for the offender submitted that this was not the sole consideration. Indeed, there was no demonstrable gain in the transaction at all; though the cash located in the offender's apartment constituted one of the additional offences to be taken into account in relation to the federal offence. The offender has few assets and was unemployed at the time of the offending, living off savings from earlier employment after paying $278 weekly rent. 7. The offender also submits that other considerations motivated the offending. In particular, the evidence indicated that, aside from other troubles affecting the offender, to which I will shortly make reference, about 5 months before the offending, the offender learnt that his mother received a diagnosis of cancer and the offender – who had a very close relationship to his mother – had vague aspirations (if not fantasies) to try to help her, and the offender's father, to finance the costs of her expected treatment. He also spoke of his desire to help his girlfriend. 8. The Crown accepts that profit was only part of the offender's motivation, but the desire for financial gain is indicative of the need for a sentence to recognise general deterrence; in particular to deter others from viewing drug importation and supply as an easier way to earn a living otherwise than through legitimate employment. 9. The offender submits that there was no demonstrable harm to the community arising from the federal offence as the drugs were confiscated. The cocaine in the offender's unit was also confiscated. Though the offender accepted that there was harm in the state offence, which is inherent in the offence. But as the Crown noted, however, the circumstance of interception, whilst it might serve to provide a forensic benefit to the offender, in preventing the commissioning of other, more serious offences, should not lead the Court to lose sight of the circumstance that at least economic harm is done to the community by the resources that need to be utilised in law enforcement to detect and investigate criminal activity. 10. For the state offence, the Crown emphasised that the cocaine that was discovered in his bedroom had been packaged in clear resealable bags; which was consistent with the intention to supply. This, it was submitted, demonstrated his key role in distribution; though the Crown did not articulate what that role actually was. 11. Overall, I consider that the offender's commission of the federal offence falls at the low end range of offending of that kind. The commission of the state offence also falls at the low end. SUBJECTIVE CIRCUMSTANCES Character, age, antecedents and background 1. The offender was aged 21 at the time of offending. The Crown acknowledges that the age of an offender is a mitigating factor and can moderate, to a degree, the usual force of general deterrence and denunciation, but submits that the factor cannot be taken too far in mitigation, particularly in sentencing for serious drug offences. 2. Character references tendered on the offender's behalf indicate a supportive family and an especially close relationship with his mother. 3. The offender attended the Newtown Performing Arts High School. He had an unhappy time there. He reported cutting himself at the age of 14 and wearing long sleeves to disguise the scars. He had difficulty making friends. An assortment of written references describes him as loyal, polite and caring, but also shy and sensitive. He struggled with his studies, having difficulties concentrating and applying himself. This led the psychologist, Ms Cauchi, whose report I will go into in greater length momentarily, to provisionally identify that he had ADHD. At any rate, he left school in year 9 to become an apprentice as a butcher. 4. After a brief period, he started working as a sign maker, when he was aged 17. This was in the family business run by his father and uncle. He worked hard: when travel to and from home was taken into account, his working day ran to over 12 hours. However, his interest in the business waned, resulting in his leaving the job at a point approximately 6 weeks prior to his offending. It clearly appears that he was at a loose end and directionless at the time of offending. 5. A circumstance that has debilitated him is the offender's drug use. He commenced from a relatively early age, but stepped up the frequency when he was aged between 18 and 21 so that he "wouldn't feel so shit" about himself. 6. Most significantly, however, is the evidence of a clinical psychologist, Ms Serena Cauchi, who prepared a report dated 16 February 2021. Ms Cauchi is a very mature woman with impressive academic qualifications in psychology, with studies stretching back to the early 1990s. She has practised as a psychologist for 25 years. Before that she was a trained nurse and midwife. 7. Ms Cauchi conducted a three-hour interview with the offender, via AVL, in December 2020, followed by multiple one-hour interviews with him. 8. In assessing the weight to be given to her findings, I accept the Crown's admonition to exercise care when evaluating opinions based upon instructions and beliefs from an offender whose evidence has been untested in cross-examination. Nevertheless, Ms Cauchi's views were not entirely based upon her consultations with the offender. She did also speak with the offender's mother. Further, the offender's character references provide some measure of corroboration for matters disclosed to the psychologist by the offender. Further, it is not apparent that the Crown has required Ms Cauchi to attend for cross-examination for the purposes of challenging the contents of her opinion. That being so, and particularly having regard to her impressive credentials, in terms of her experience and academic qualifications, I place substantial weight upon her opinions. 9. I have noted Ms Cauchi's provisional diagnosis of ADHD. But in addition, she opined that the offender suffers from other disorders, some of which are in remission in the controlled environment where the offender now is. The latter include the polysubstance use disorder and alcohol use disorder and gambling disorder. Other disorders that she diagnosed, using the DSM-V criteria, are persistent depressive disorder, generalised anxiety disorder, social anxiety disorder and panic disorder. Overall, she considers that he presents as a 'highly psychologically vulnerable and immature young man'. She felt that he had suffered from an undiagnosed neurodevelopmental disorder, consistent with possibly low cognitive function and ADHD. She noted further that, although well-meaning and generally supportive, the offender's manifested signs of trouble had been missed by his family; perhaps a reflection of denial. As can be well imagined, his parents are themselves grief-stricken by the present plight of their son and have expressed determination to assist with his rehabilitation upon his release from incarceration. To that end, steps have been put in place to ensure his re-integration into the community, including if appropriate, provision of employment. I will return to that aspect later when assessing his prospects of rehabilitation and the likelihood of his re-offending. However, the immediate consequence of not addressing the plaintiff's signs of trouble through his adolescence was the missed opportunity to diagnose and treat his conditions before they were allowed to develop. This contributed, I think, to the drug addiction as a form of self-treatment for his psychological troubles. 10. Importantly, Ms Cauchi opines that the offender's mental state, sleep deprivation and the distorting effects of his severe drug addiction would have been contributing factors to his impaired cognitive performance which, in itself, contributed to errors in his judgement. In a balanced way, the offender's Counsel did not argue a direct causal connection between the offender's mental troubles and the offending, although his troubles were relevant to a range of other matters in the offender's subjective case. But overall, his immaturity and disorder, in the circumstances of his being unemployed and troubled by the recent news of his mother's diagnosis, did soften his culpability; and do serve to moderate further the weight to be given to general deterrence and denunciation. The combination of the offender's immaturity, his psychological condition and, to a much lesser extent, his drug addiction, in the words of the offender's counsel, all 'go into the mix'. The Crown fairly acknowledged that impaired mental functioning (the end result of the plaintiff's conditions) may reduce his culpability, moderate general and specific deterrence, result in the penalty weighing more heavily on an offender than a person of normal health and even have an adverse effect if the offender is incarcerated. These last two matters are emphasised in the case of this offender, in a way I will return to later in these remarks. 11. The offender has a very limited criminal history, being confined to relatively insignificant driving offences. 12. As might be regarded as foreseeable for a person with his conditions, the offender's time in jail has been especially onerous for him. For one thing, like other inmates, because of the Pandemic, he has been isolated. That circumstance does not, itself, set him apart from other inmates. But it has had greater impact on the offender. He has not had access to treatment programs to help alleviate his conditions. He has not had trips from family members. But worse, he has been a victim of violence, manifested – according to Ms Cauchi – in conspicuous marks of bruising and even damage to the offender's teeth. The offender has not complained about this; fearing reprisal. He tried to harm himself with the edge of a tuna can when he first entered custody. I accept Ms Cauchi's opinion that for someone with this offender's immaturity and cognitive functioning, the victimisation that he also already been subjected to remains an ongoing risk for him. 13. I have read the written testimonials tendered on the offender's behalf. These include, but are not limited to, the references of his parents and one of his half-brothers. His parents can barely believe that their son has come to this pass, but speak of his deep remorse as well as his sensitive and caring nature. Similar observations were made by the other referees, who occupied the positions of a Chief Financial Officer of a Sydney-based firm, and a Chief Executive Officer of the NSW Users and AIDS Association, but who wrote in a personal capacity, as mothers of children who had befriended the offender. I accept that the offender was a person of prior good character. Guilty plea and contrition 1. There is no dispute that the offender pleaded guilty at the earliest practicable opportunity and is entitled to the 25% discount. That applies to both offences (see Xiao v R (2018) 329 FLR 1 in connection with the federal offence). 2. The offender wrote a letter to the Court. In the letter, he acknowledged the harm that his offending has done to the community and acknowledged the insidious influences of the drug trade. He expressed his shame and embarrassment and, it appears that he has had something of a spiritual awakening. A large part of his sense of shame is attributable to the pain that he has caused his parents. 3. This was evident, also, in a handwritten letter to his parents on the eve of Christmas 2020, which was in evidence. There is no obvious indication that this was written with the intent that it would be placed before the Court; so I treat it as an authentic expression of the offender's feelings. He spoke in emotive and disparaging terms about himself: alluding to a feeling of guilt and "hating" himself. This also supports the psychologist's opinions about his psychological conditions. 4. I fully accept that the offender is contrite and remorseful. Prospects of rehabilitation 1. Counsel for the offender submitted, primarily with reference to Ms Cauchi's opinions, that these hinge upon his capacity to receive the treatment he needs, which he has largely been denied, in the year or so that he has been in custody. Various diagnoses need to be further tested. Ms Cauchi opined that he was a good rehabilitation prospect: he was not completely incompetent to manage his life and with appropriate psychological and family support, and was unlikely to relapse. 2. The Crown did not vigorously contest that assessment. Nevertheless, the Crown pointed to what it characterised as an absence of express commitment to engage in rehabilitation and expressed a concern about the absence of a concrete plan for the offender's treatment. 3. I confess to finding that submission somewhat baffling. Whilst he may not have expressed himself in so many words, in my view, the offender has implicitly indicated a willingness to rehabilitate himself. In his letter to the Court, he pointed out that he was more mature, with a greater handle on his life and was not abusing drugs, but he also indicated that he had seen what the drug trade could do. He stated that he wants "nothing to do with drugs ever again." I construe that as a commitment to do what he can to avoid further criminal activity of the kind now in question. It is almost certain that upon his release he will return to the family fold, and his parents, to the extent that they are able, will take all necessary steps that they can to assist him in that endeavour. Further, as his Counsel submitted, the offender's indication that he wants to engage in a carpentry endeavour and, if that does not succeed, the assurance which the offender has of a fall back position within the family business, it is probable that he will be occupied in legitimate activity. As to the absence of a concrete plan for treatment, the submission overlooks the circumstance that for the last year that the offender has been in custody, it is has not been practicable to identify a plan. 4. I consider that his prospects of rehabilitation are good. 5. Further, given the experience he has suffered in custody, his eyes have been opened to the criminal consequences for offending of this kind, which have been more onerous for someone in his position than other offenders. I consider the prospects for his re-offending to be low. Sentencing options and weighing the considerations 1. It is common ground, having regard to the nature of the offence, manifested in the size of the maximum penalties, that the statutory thresholds for a sentence of imprisonment, under s 17A of the Crimes Act and s 5 of the CSP Act, have been crossed. Sentencing practices 1. It has been said to be implicit in Part 1B of the Crimes Act that the sentencing judge dealing with federal offences must have regard to current sentencing practices throughout the Commonwealth (R v Pham (2015) 256 CLR 550 at 556-558). The Crown acknowledged, however, that the desirable objective of sentencing consistency does not require numerical equivalence. 2. The Crown and Counsel for the offender supplied to the Court schedules of comparable cases. The cases that the Crown relied upon demonstrated the predominant weight to be given to general deterrence and denunciation. The Crown drew to the Court's attention, in particular, the case of Stemler v R [2017] NSWCCA 320, which dealt with the same state offence and a similar federal offence (possession rather than importation) of a marketable quantity of the same drug, cocaine. As occurred in this case, the usual accoutrements of supply were manifest upon a search of the offender's car and home. A particularly severe punishment was imposed for the federal offence, being a head sentence of 7 years and 9 months (with a non-parole period of 5 years). However, as Counsel for the offender noted, the circumstances cited by the Crown took no account of the important circumstance that the weight of the drug almost reached the commercial threshold (which was not the case here) and paid no regard to a host of subjective circumstances operating to the offender's situation in this proceeding which did not feature in Stemler: the offender was not a first-time offender; there was an aggravating circumstance in that case that the offender was on conditional liberty at the time of the offending; there was a much more detailed level of planning signalling commercial dealing; the offender there was not beset by undiagnosed psychological issues and financial gain was his only motivation. 3. Counsel of the offender identified as perhaps the most comparable case the decision of the Full Court of the Supreme Court of South Australia in R v Faber [2020] SASCFC 49. That case concerned the same federal offence as in this proceeding and also a not dissimilar federal offence to the extant supply offence, being possession of the drug. Counsel focussed her submissions on the head sentence of 3 years, 9 months, with a non-parole period of 16 months, given for the federal offence. But there were matters favourable to the offender in this case that were not present for the offender in Faber. Although the offender in that case was only slightly older than the offender in this proceeding (age therefore being essentially a neutral point of comparison), the offender in Faber did not plead guilty, it was apparent that he showed no remorse, and although he had to some extent a difficult background, there were no serious psychological issues, or drug addiction. 4. Another case drawn to the Court's attention was the decision of the Victorian County Court in DPP v Thomas [2017] VCC 1060, where the federal offence was the attempt to possess a marketable quantity of controlled drug. There the offender received a head sentence of 3 years and 6 months' imprisonment (with a non-parole period of 2 years). There were similarities in the subjective circumstances of that offender and the offender here, in the sense that the offender in that case also had difficulty controlling his impulses. But unlike the offender in this case, the offender in Thomas did not plead guilty at the earliest opportunity and had only a short period in custody prior to sentence. Further, the offender in Thomas was much older and had a prior criminal history; which elevated the consideration of specific deterrence. 5. A further case which the offender drew to the Court's attention was the decision of the Victorian County Court in DPP (Cth) v Frendo [2019] VCC 1548. For the same federal offence, the head sentence was 4 years and 1 month' imprisonment (non-parole period of 2 years and 8 months). In Frendo, the offender received a significant (but not specified) discount for a guilty plea, but there were other objective and subjective matters which indicated a heavier penalty than in this case. As to the objective matter, there were five importations. The offender in Frendo was older than the offender here but had a prior history of serious drug offences, his offending occurred whilst he was subject to a community corrections order and he was not shown to be afflicted by any psychological affliction. 6. Counsel for the offender acknowledged the importance of general deterrence, but submitted that this consideration should be moderated in the circumstances of: the offender's young age at the time of offending; the offence being committed at a time when he was mentally impaired by an as yet undiagnosed psychological or psychiatric condition or illness; that for someone who has already served a year in custody he has suffered more onerously than other offenders who do not suffer from his conditions and his ready contrition. Counsel for the offender also developed the submission that, at least in relation to the federal offence, the isolated instance of importation through dark web internet usage was less grave than the usual type of offending associated with drug importation; said to involve a level of participation in a hierarchical enterprise of scale. 7. Of the other cases relied upon by the Crown, counsel for the offender emphasised that Faber was closest in terms of its comparative range of features to this offender. The balance of the cases concerned older offenders; none of whom had the undiagnosed psychological issues of this offender. Overall synthesis 1. I acknowledge all of the factors in s 16A(2) of the Crimes Act and the sentencing principles in s 3A of the CSP Act. I also acknowledge as legislative guideposts the maximum punishments for the federal and state offences. Further, in connection with the federal offence, I take into account the additional offences which elevate the considerations of requirements for retribution and enhanced subjective deterrence. 2. Whilst I accept that general deterrence and denunciation are paramount in cases of this kind, I am persuaded that those considerations should be moderated in the circumstances of this offender. However, a very important sentencing consideration for offences of this kind is the protection of the community. So too, generally, is specific deterrence. However, specific deterrence has already been substantially achieved by the especially onerous conditions that the offender had already endured. I have referred to the relatively low level of objective seriousness for both offences. In the circumstances of this particular offender, given that he is relatively young, is a first time offender, has already endured a traumatic experience after a year's custody and is patently in need of treatment for a range of matters, rehabilitation is a more elevated consideration in this case than it might be in other cases involving the same subject offending. That is not only for the offender's benefit, but also for the community's benefit in having him more effectively re-integrated after his period of incarceration. 3. The aggregate sentence I impose is intended to reflect the principle of totality. There should, as Counsel for the offender correctly acknowledged, be notional accumulation, given that there were separate and distinct offences. Because of the structure of the sentence that I am imposing, reflecting sentences for both state and federal offences, I have not set a non-parole period for the state offence (s 45 of the CSP Act). Time in custody 1. The sentence for the state offence is to be backdated to commence on 26 February 2020, when he was remanded in custody. 2. Mr Robson-Bolan, please stand. You are convicted of the state and federal offences to which you have pleaded guilty. 3. Taking into account your guilty pleas, in relation to both offences, and taking into account the additional offences to the federal offence, I sentence you as follows: 1. As to the state offence, I sentence you to a term of imprisonment of 1 year's imprisonment, commencing on 26 February 2020, expiring on 25 February 2021. 2. As to the federal offence, I sentence you to a term of imprisonment for a period of two years and six months, commencing 26 February 2021 and ending 25 August 2023, however, pursuant to s 19AF of the Crimes Act 1914 (Cth), you are to be released, upon giving security in the sum of $100, after a minimum term of one year and six months, being 25 August 2022. 1. I also order that pursuant to s 13(2)(a) of the Confiscation of Proceeds of Crime Act 1989 (NSW), upon the application of the Commonwealth Director of Public Prosecutions, the sum of $31,900 be forfeited to the State. ********** Amendments 24 March 2021 - Fixed typographical error 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: 24 March 2021