District Court New South Wales Medium Neutral Citation: R v Sinclair Hull [2023] NSWDC 199 Hearing dates: 12 October 2022 Date of orders: 14 October 2022 Decision date: 14 October 2022 Jurisdiction: Criminal Before: Priestley SC DCJ Decision: See [90] Catchwords: CRIME — Drug offences — Supply prohibited drug — Large commercial quantity Legislation Cited: Drugs Misuse and Trafficking Act 1985 (NSW) Crimes (Administration of Sentences) Act (NSW) Cases Cited: Muldrock v The Queen [2011] HCA 39 R v Shi [2004] NSWCCA 135 R v Qi [2019] NSWCCA 73 R v Shi [2004] NSWCCA 135. Parente v The Queen [2017] NSWCCA 284 Texts Cited: NA Category: Sentence Parties: Rex (Crown) Tyler William Sinclair Hull (Offender) Representation: Counsel: Carty for the offender Franklin for the Director of the Department of Public Prosecutions (Crown) File Number(s): 2018/00393878 Publication restriction: NA Introduction 1. Tyler Sinclair Hull appears for sentence in respect of one count of supplying a prohibited drug of a large commercial quantity in breach of section 25 (2) of the Drugs Misuse and Trafficking Act 1985. The maximum sentence for that offence is life imprisonment. There is a standard non-parole period of 15 years. I take both the maximum sentence and the standard non-parole period into account as legislative guideposts indicating the legislature's view of the seriousness of the offence to assist me in arriving at the appropriate sentence. 2. I note as was stated in Muldrock that the standard non-parole period serves this purpose regardless of whether the offending may fall in the low middle or high range of objective seriousness. 3. The date of the offending was 12 March 2021. The offender was arrested on 13 May 2021. The offender has been in custody since his arrest so has now spent one year, five months and one day in custody in respect of this offence. 4. There are no matters to be taken into account pursuant to the Form 1 procedure nor are there any matters on a section 166 certificate. 5. The offending occurred whilst the offender was on conditional liberty having been placed on a Community Correction Order (CCO) on 10 March 2020 for 18 months. 6. The offender is also to be dealt with in respect of the breach of the CCO. Facts 1. The agreed facts are set out fully in the Crown bundle which is exhibit A. Without detracting from the seriousness of this offending the facts can be shortly stated. The offending was detected due to police investigations which were conducted from 11 November 2020 through to 3 June 2021. The investigations included the use of tracking devices on motor vehicles and also listening devices. The police were focusing on a Billy Dolar and a Nathan Dyson in connection with suspected drug offending. The police learnt of a car being used which had a hidden compartment used to transport prohibited drugs. 2. The investigations uncovered significant communications between the offender and Dolar and Dyson via unmonitored or encrypted phones and using self-deleting or undetectable platforms such as Snapchat and Whatsapp. 3. Part of the relation between Dyson and Dolar was to recruit people to do "runs" and also provide cars for that purpose including the car with the hidden compartment. 4. On 11 March the offender took possession of a particular motor vehicle from Dyson. Later that day the offender and one Spencer travelled in that vehicle to Sydney and collected methylamphetamine. They returned on 12 March 2021. They were stopped at Urunga by police. The offender initially denied having been to Sydney but when confronted with a receipt showing they had been in Sydney and being told Spencer admitted to being in Sydney, also made that admission. 5. The police seized the vehicle and on examination the hidden compartment was discovered. An airbag compartment had been modified and it was accessed via strong magnets. Within the compartment was 992 g of methylamphetamine with a purity of 71%. These are the drugs the subject of the offence. 6. There were three phones in the car with Spencer and the offender acknowledging one each but denying ownership of the third phone which was a cipher or encrypted phone. 7. Recorded conversation on 17 March between Dyson and the offender shows that they were aware of the illegal activity of some kind and this at a time prior to the police declaring they had seized the drugs. 8. Paragraph 24 of the agreed facts states that the offender took the cipher phone with him. 9. A recorded conversation of 9 April 2021 shows the offender stating that he thought it would be more than a kilo. 10. On 21 April 2021 the offender told his partner that he expected to be paid the whole $1500, which I infer is reference to the payment for doing the drug run. 11. On 13 May 2021 the offender was arrested. Paragraph 31 of the agreed facts states the sentencing basis to be that the offender reached an agreement with Dolar on 10 March that he would travel to Sydney to courier a large quantity of methylamphetamine to Coffs Harbour using Dyson's car for a fee of $1000 and a personal payment to himself on return of $1500. It is unclear if the offender knew the precise quantity but he saw the size the bag of the drug prior to concealing it in the hidden compartment and believed it to be over 1 kg. Objective seriousness 1. In terms of quantity this is double the amount needed for a large commercial quantity. The quantity of drug is not determinative of the seriousness of the offending. In this case it is a factor that I take into account adding to the seriousness of the offence, as the offender was well aware that the amount of drugs involved was significant. 2. In terms of role, it is plain that the offender's involvement is that of a courier or runner; he was not involved in what might be termed some kind of management role in organising or making arrangements for the collection of the drugs with those further up the chain making the drugs available. 3. The offending in my view is somewhat sophisticated. There is the utilisation of the hidden space together with the use of communication platforms from which those messages disappear, albeit that those platforms are readily available to the public. There was also the involvement of cipher phones. 4. The agreed sentencing basis (par 31) of the facts, limits the involvement of the offender to having agreed to the couriering. The Crown argues that there is significant trust placed in the offender, and that is true, but that cannot enlarge the objective basis of the offending which is stated at par 31. In fact, that par makes clear the offender did not know what quantity was being collected, reflecting his role as courier as opposed some more involved role. He was however aware the amount of drugs being collected was significant, saw the bag he was collecting, and believed it was more than a kilo. 5. In my view the objective seriousness of the offending should be assessed as being in the high low range. Aggravating factors 1. In terms of aggravating factors the Crown relies on the previous convictions, the fact that the offence was committed without regard for public safety, that the offence was committed whilst on conditional liberty, and that it was part of a planned or organised criminal activity and was committed for financial gain. 2. It is not in dispute that the offending was committed whilst on conditional liberty, and I take that into account as an aggravating factor. I also take into account the organised nature of this activity. As to the offender's previous convictions, in my view that does not aggravate this offending, but does have the consequence of requiring the sentence to be heavier to reflect a greater need for deterrence than may otherwise have been the case. I accept that the fact the offending was committed for financial gain is an aggravating matter. It is of some greater significance here as the offender was not acting to satisfy any drug dependency, but simply to obtain funds for his own purposes. I do not however consider that the characterisation of the offender as being motivated by "pure greed" is apt for this case. The offender sought to obtain a modest amount of money. Whether that was to gain bond money for accommodation, or some other purpose does not really matter. Whilst it is an aggravating matter, in my view it does significantly aggravate the offending. I do not consider the matter is aggravated by disregard for public safety because although that is true due to the obvious harm caused to the community by this type of offending there is nothing about the actual commission of the offence itself that added to that disregard. Subjective case 1. It is agreed that the offender is entitled to a 25% discount on sentence due to the time at which he entered his plea. 2. The offender was born on 14 December 1995 so he is now 26 years old. His criminal history does not assist him. Between 2015 and 2018 he committed a number of driving offences of driving whilst disqualified on two occasions and driving whilst license suspended or cancelled on three occasions. Things took a turn towards the more serious in 2018 when he was sentenced for supplying a prohibited drug of a commercial quantity in December 2017. He received a CCO for two years and three months for the period 29 October 2018 and concluding 28 January 2021. Within two months of that CCO commencing he committed a further drug offence of supplying a prohibited drug on an ongoing basis. The offender spent 16 months on remand awaiting sentence. On sentence for that matter a CCO for a period of 18 months for the period 10 March 2020 to 9 September 2021 was imposed. The conditions on that CCO included attending a GP to see if he was suitable for a mental health care plan and to participate in addiction programs namely the EQUIPS program. 3. The present offending occurred in March 2021 so at least it can be said that he did not come to the attention of police for approximately one year, and he had in that time largely been employed. 4. Significantly and adverse to the offender, his further offending whilst on a CCO, and for a second time, is clearly a factor to take into account should any application be sought for the imposition of a further CCO or of an ICO. It also shows that there is a need for significant deterrence, and detracts from the offender's argument as to his prospects. 5. The custody record shows that since he has been in custody there is a record of 18 infractions, 16 occurring in the current period of custody. Without more than that record the gravamen of those infractions are difficult to assess; it does allow however for the view that the offender continues to disregard the expected or required norms of behaviour. 6. The offender's mother gave evidence at the sentencing hearing. Her evidence was that she had read the psychological report relied on by the offender. She attested to the truth of the contents of that report and was not challenged in that regard. The mother's evidence was that the offender's father was absent and had no role in his life having met him only twice. There are six children in the family, at least two of which were present in court. Those two daughters were children of a subsequent relationship of the mother. That relationship was one where the mother was the victim of domestic violence however there were also positive aspects of that relationship. The relationship with the offender and that partner of the mother was good.That relationship ended after seven years. A following relationship was not so positive for the offender. 7. The offender was initially raised in a Housing commission property. At about the age of 16 the family moved to Coffs Harbour. After leaving school the offender did have work at the age of 15 and 16. In the 12-month period prior to the present offending he had been in work for the majority of that period. The Crown submitted that the evidence in this regard was inconsistent. In my view the evidence whilst it was expressed differently from various sources allows for the conclusion that there was work as the mother stated. That was that she said that he had started work in late 2020 and worked all the way up to his arrest which was in May 2021, which approximates the 8-month period referred to in other evidence. 8. The mother was clearly intensely supportive of her son and spoke very highly of him. She spoke of his support for the family demonstrated by him spending time with them, taking his younger brothers to a car rally, and helping family members get jobs where he had been working. 9. The mother said that the offender had expressed remorse to her about his offending and that he was kicking himself for having let down the family. 10. The offender relied on a sentencing assessment report dated 16 August 2022. The report states the offender to have been employed for eight months prior to his arrest and before that was receiving Centrelink benefits. At the time he was living with a former partner and that relationship is now ended. He plans to live at his family home on release with his mother and siblings. 11. The report notes his criminal history and also 18 institutional infractions. 12. He says he was motivated for financial gain. It was not said that it was motivated by the need to fund any drug habit. The evidence shows, albeit by the offender's self report, no drug use of significance since 2018. 13. He had what he described as minor affiliations with an outlaw motorcycle gang. He says he has cut his ties with them. 14. He says he had refused the offer to commit the offending on prior occasions. 15. In terms of insight, he was able to acknowledge the impact on the community and his family and expressed remorse. He also said it was his fault that his friend got involved. 16. He said he was willing to undertake intervention and community service work. 17. He was assessed as a medium risk of reoffending. 18. So far as it goes this is a favourable sentencing assessment report when considered at face value. Yet the matters just stated in the previous 4 paragraphs largely appeared in the SAR of 2020 (which was in evidence). The insight he sought to evidence then, and seeks to now, was not sufficient to see him choose not to commit the current serious offending. 19. The offender also relies upon the report of a psychologist Mamta Sidhu dated 20 April 2022. 20. The offender gave a history of having a father who was persistently incarcerated and who has only met twice at age 5 and 15. He has a good relationship with his mother. He grew up in housing commission accommodation and was exposed to fighting drinking drugs and crime 21. From age 7 he was exposed to violence inflicted by his mother's new partner upon his mother. Despite this this person was the closest he had to a father figure. This man worked hard and was not violent to the children. 22. That relationship ended at age 10 and for a time he resided with his mother and siblings in refuges. After this time his mother's health declined. He did not suffer any childhood sexual abuse and there was no involvement with child protection services. There were no periods in juvenile detention. 23. He was disruptive as a child and struggled in some respects at school but did not require assistance or support classes. School attendance ended at about year 9 though subsequently he received a certificate level III in business and partly completed a certificate level III course in hospitality. He has not had stable employment. He had been employed for 11 months of the past 14 prior to arrest and he intends finding employment upon his release to keep busy which is what he needs in his view. That is an encouraging insight, but of course needs to be acted upon. 24. He has never been a big drinker. His drug use started with cannabis at 15 which had been problematic by age 22 and he described it as self medicated in response to stresses he experienced at the time. He ceased cannabis in 2018. He did use other drugs casually. On his account there was no existing problematic drug use at the time of the offending. He says he is not using any drugs presently. 25. He engages in gambling to the point of spending more money than he has and accruing debts but does not consider this problematic. 26. He has experienced periods of low mood but there is no formal mental health diagnosis. 27. This is the second significant period in custody for the offender having first been remanded for 16 months in 2018 through to 2020. 28. He described the offending as the stupidest and dumbest thing he had done. It was motivated by a need for money to get a bond for a rental property. He expressed what the report writer accepted as being a genuine motivation to change his current trajectory. 29. Overall the report notes the lack of any positive male role model though I note there were some positive aspects of the first stepfather. The report notes the support of his family and his asserted motivation to engage in interventions. It recommends attendance at the EQUIPS program, something that had been recommended back in 2020. It can also address gambling issues. 30. The view is expressed of the disrupted childhood resulting in a deprivation of healthy coping skills particularly in relation to distress tolerance. No submission was made as to some connection between any psychological condition and the offending. The motivation for the offending on the offender's account is funding for his accommodation bond. 31. Programs are recommended to strengthen his adaptive skills. 32. There was a testimonial from a long time family room which became Exhibit 2. The offender is the godfather to this person's daughter and there is plainly much support offered to him from her. 33. The offender also wrote a letter to the court. He accepts full responsibility for his actions. He refers to his work before his arrest and his then current relationship. He talks of letting down his family. He states that he has completed some programs inside prison and would like to continue it when he has a chance though there was no certificates in evidence. He expresses the desire to no longer engage in criminal behaviour. The parties submissions 1. The offender submitted that the matter should be assessed as being low in objective seriousness due to his role as what was submitted to be a driver/courier. In this regard the Crown submitted that the role was more than this and that the evidence showed a degree of involvement of the offender beyond simply being a courier. The Crown submitted that he was trusted with a significant amount of drugs and that his conduct showed that he was familiar with those that he was dealing with. The Crown pointed to the degree of interaction between the offender and the others involved in the drug activity in particular pointing to the use of the motor vehicles. 2. The offender accepted a need for the sentence to reflect greater deterrence given his breach of the CCO. It was also accepted that the section 5 threshold had been crossed. 3. The offender submitted there were reasonable prospects of rehabilitation. The Crown submitted there was little prospect of rehabilitation and I discuss this below. 4. The offender submitted that there had been a background of some social deprivation. That deprivation consisted of experiencing domestic violence in the home albeit in good times there was a positive relationship with the perpetrator of that violence. It meant that the offender along with his mother and family members had to seek refuge in shelters, so were at times bordered on homelessness. There was also reference to growing up exposed to crime, fighting, drinking and drugs 5. I accept that there were difficulties in the upbringing of the offender. Yet his mother was so far as the evidence reveals a pro social person who raised six children as a single mother. There were times of hardship but on the evidence I do not find that the upbringing of the offender overall could be described as one of significant social disadvantage. Some of the difficulties he faced may explain why he engaged in antisocial behaviour but overall it is not a matter which I consider results in significant leniency though I do accept it should not be disregarded so that I do place some, albeit limited, weight on this aspect. Findings 1. I have assessed the objective seriousness and aggravating features of the offending above. I agree with the submission of the Crown that, at least in general terms, the involvement of the offender in relation to drugs likely extends beyond this act of couriering. The agreed facts show the offender to be a close associate of Dyson, and knew of Dyson dealing in cocaine; par 9 of the facts. Yet the basis of the sentence is as set out above, taken from par 31 of the agreed facts, and I have proceeded on that basis. 2. The offending is aggravated by the matters identified above. 3. I accept that the offender has some prosocial qualities as demonstrated by his ability to obtain work, complete a TAFE course and his supportive role that he played for his family. 4. There is evidence which I accept of expressions of remorse by the offender to various people including his mother and the report writer. Those expressions of remorse which I have no reason not to accept as I do as being genuine nevertheless need to be weighed up with the way in which the offender has conducted himself. That is his criminal history shows repeated drug offending suggesting either a lack of remorse for the earlier offending or disposition on his part to continue to offend despite his realisation of his wrongdoing. Put another way, expressions of remorse by the offending have been shown not to translate to a change in longer term behaviour. The accepted expressions of remorse therefore will be treated cautiously. 5. As to the parties competing submissions one key difference was the prospects of rehabilitation. The case is different to what might be termed the ordinary run of cases of this type where there is a courier like involvement by the offender in that the offender does not have a drug habit. There is no need for rehabilitation in the sense of overcoming drug dependency. Relevant to this case is the need for rehabilitation from his antisocial conduct. The Crown points to the criminal history set out above and says that the prospects of rehabilitation are poor. The likelihood of reoffending on the facts of this case it was submitted must be considered high. I have indicated that I accept the likelihood of reoffending to be medium as assessed by the sentencing assessment report. The basis for that finding is balancing the contrary indicators of the pro social qualities of the offender against his repeated offending. 6. The gist of the Crown argument was that there should be no mitigation of the sentence on the basis of the prospects of rehabilitation. The Crown also submitted that it could not be said that the offender at the age of 26 was a person who had youth on his side. 7. With respect I consider the Crown's submissions in this regard to be too absolute. My view is that whilst certainly the offender is of an age that he should know better and that his conduct to date supports the view that he is likely to reoffend again he is not in my view of such an age that one should despair of rehabilitation. Further that view of the evidence goes beyond the aspirational in that he clearly has a very supportive family, he will have somewhere to live on his release, and he does have a work history. Not only that but the work history supports the view of him being considerate of others in that he was a positive influence with his family including by supporting them in obtaining employment. 8. I accept there was a degree of social disadvantage in the upbringing of the offender and give that other some albeit limited weight. This impacts on the moral culpability of the offender and the need for deterrence. Overall however, even allowing for this, and as the offender accepted, deterrence needs to be given significant weight, in my view both general and specific. 9. A second major difference between the parties was as to whether a finding of special circumstances should be made. Again, with all due respect to the Crown its approach here is my view one which is more absolute than the evidence permits. This point is really the first point as to rehabilitation being expressed in regard to a different consideration. It is true on the evidence that the offender has re offended in spite of the earlier sentences being structured to assist rehabilitation. That does not mean that he should not be provided some extended period of supervision in an effort to assist him to remain on a pro social footing. This is particularly so where he has demonstrated an ability to conduct himself in a pro social way as demonstrated by gaining employment and he did complete 12 months of a 18 month CCO before committing this offence. These positive aspects need to be taken into account, and the consideration of the issue does not stop with the fact of the reoffending. 10. I therefore do make a finding of special circumstances. Sentencing considerations 1. The purposes of sentencing are as follows: 1. To ensure the offender is adequately punished. 2. To prevent crime by deterring the offender and others from committing similar offenses. 3. To protect the community from the offender. 4. To promote the rehabilitation of the offender. 5. To make the offender accountable for his actions. 6. To denounce the conduct of the offender. 7. To recognise the harm done to the victim of the crime in the community. 1. In this case it is the purposes of deterrence denunciation and accountability as well as protecting the community need to be recognised in particular. At the same time there should be the promotion of rehabilitation in the way discussed above. 2. There is no argument contrary to a finding that the section 5 threshold has been crossed. Nor with respect does it seem to be seriously argued that an ICO should be imposed, if not prohibited by s68. In that regard it was argued that there are two offences being sentenced for here so that the prohibition on an ICO by section 68 is three years not two years. 3. Having determined the section 5 threshold is crossed and in my view it clearly is given the very serious nature of this offending, the amount of drugs involved and the clear need for deterrence in this matter, it needs to be determined what the length of the sentence should be. 4. The Crown referred to a number of cases, two of which assist more than the others. The first is the case of Qi [2019] NSWCCA 73. In that matter the Court of Criminal Appeal on re sentencing an offender imposed a sentence of three years with an 18 month non-parole period. The offence was under section 25(2) and the amount involved was 1.9 kg of methylamphetamine. The role of the offender was of transporting the drugs similar to the present case. The offending was found to be towards the lower end of the range of objective seriousness. Subjectively the offender was 24 at the date of sentence. He had worked and studied after leaving school. He had no prior criminal history apart from two driving matters. He had a drug dependency. The finding was that whilst in custody he had ceased drug use and "got himself together" he had undertaken courses in custody for the offending he received forgiveness with $30,000 debt which I infer was connected to his drug use given the comments at paragraph 80 of the judgement. 5. The finding of special circumstances was made to assist with his rehabilitation. The offender received a 25% discount for his plea so the starting point was 4 years for the head sentence. 6. The significant point of distinction between this case and the present is that there had not been two earlier significant matters of drug offending. The findings of the likelihood of rehabilitation could be made in that case with greater optimism than they can be made here. 7. The second case to mention is that of Shi [2004] NSWCCA 135. That case involved 992 g of methylamphetamine, a very similar amount if not precisely the same as here. There was a relatively minor matter on a Form 1. The offender at the time of the offending was indebted to his drug supplier in the amount of between $2000 and $3000. This would be cleared if he committed the offence. The offender had no prior convictions and was of good character and was found to be unlikely to reoffend. He received a 25% discount and had shown genuine remorse. He had youth on his side being at the time of the offence 18 years old. 8. The Court of Criminal Appeal found that the sentence of four years with a non-parole period of two years was manifestly inadequate and imposed on resentence a term of six years with a non-parole period of three years. 9. With respect these decisions reflect the instinctive synthesis nature of the sentencing process, and that each case turns on its own particular facts. I note that Shi was decided in 2004 as opposed to Qi which was decided in 2019. There have been some significant changes in the approach to sentencing to drug matters in that period, including the decision of Parente [2017] NSWCCA 284. I consider the more recent decision of Qi likely to be more in line with current sentencing practices. 10. The Crown also provided some statistics (aide memoire 1). I note the well-established need for caution in referring to statistics. One graph setting out terms of head sentences is almost a bell curve with the apex being 6 years. 11. In my view and bearing in mind the seriousness with which this offending is viewed, reflected not only by the maximum sentences and the standard non-parole period but also the fact that the threshold amount was reduced from 1 kg to 500 g for it to be large commercial quantity, my view is the starting point before the discount should be six years. The head sentence would therefore be 4 ½ years. 12. As to the non-parole period I consider that there needs to be a minimum period of 2 ½ years to reflect the seriousness of this offending. This results in a balance of term of 2 years, which I consider reflects the allowance for special circumstances discussed above. 13. There remains the matter of the breach of the CCO. There was in evidence in the Crown bundle the reasons on sentence for the imposition of the CCO. At the time of CCO was imposed the offender had already spent 14 months on remand. The fact that it was a CCO did not represent the view that it was not serious offending, but that by the time of sentence the punishment had been largely received. I accept the submission for the offender that in determining the re-sentence of that matter the fact that 14 months had already been spent in custody needs to be borne in mind. The Crown's submission was that there needs to be some further punishment to reflect the need for significant deterrence. The offender submitted that any additional period of custody in respect of this offence should be either nil or modest in all the circumstances. 14. In my view, taking into account the time in custody already spent in respect of that matter but also recognising the need for the additional deterrence, my view is there should be a further three months in custody which after a discount and rounding it down results in an additional two months in custody. The CCO will therefore be revoked and pursuant to s107D of the Crimes (Administration of Sentences) Act the offender will be resentenced accordingly. 15. It is simplest to impose one aggregate sentence of 4 years and 8 months. The non-parole period I propose maintaining at 2 years 6 months. An aggregate sentence will avoid any possible complications that may arise from the stepping of the 2-month sentence. The sentences should be cumulative, to achieve the purpose of the further two months in respect of the CCO breach. 16. This means that even allowing for the time in custody of now 17 months and 1 day, the balance of the term is more than 3 years, so that s68 prohibits the imposition of an ICO. It is therefore not necessary to consider that issue, though I would note a significant hurdle for the offender would in any event have been s66(1) and the paramount consideration of community safety given his repeated offending, and the damage to the community of the availability of methylamphetamine in the community. Orders 1. The orders will therefore be: 1. The offender is convicted in respect of the section 25 (2) offence. 2. The CCO imposed on 10 March 2020 is revoked, and in that regard the offender is sentenced to a term of imprisonment of an indicative term of 2 months. 3. In respect of the section 25 (2) offence the offender is sentenced to a term of imprisonment with an indicative term of 4 years and 6 months. 4. The offender is sentenced to an aggregate term of imprisonment to date from 13 May 2021, with a non-parole period of 2 years and 6 months expiring on 12 November 2023, and with a balance of term of 2 years and 2 months, expiring on 12 January 2026. ********** 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: 14 June 2023