Supreme Court New South Wales Medium Neutral Citation: R v Standen [2011] NSWSC 1422 Hearing dates: 14/03/11 - 11/08/11, 01/09/11, 14/11/11-16/11/11, 22/11/11 - 23/11/11 Decision date: 08 December 2011 Jurisdiction: Common Law - Criminal Before: James J Decision: For the offence of conspiring to import -sentenced to imprisonment for 18 years to date from 2 June 2008. Fixed a non-parole period of 12 years to date from 2 June 2008. The earliest date on which the offender will be eligible for release on parole in respect of this offence will be 1 June 2020. For the offence of knowingly taking part in the supply of a large commercial quantity of a prohibited drug - sentenced to a non-parole period of imprisonment of 16 years commencing on 2 June 2008 with a balance of the term of six years making a head sentence of 22 years. The earliest date on which the offender will be eligible for release on parole in respect of this offence will be 1 June 2024. For the offence of conspiring to pervert the course of justice - sentenced to imprisonment for three and a half years to date from 2 June 2008. In the circumstances including that the sentence has now expired I decline to fix a non-parole period or to make a recognizance release order in respect of the sentence for this offence. Catchwords: SENTENCE - importation of drugs - supplying drugs - perverting the course of justice Legislation Cited: Crimes Act Crimes (Sentencing Procedure) Act (NSW) Commonwealth Crimes Act Commonwealth Criminal Code Drug Misuse and Trafficking Act (NSW) Cases Cited: R v Lee [2007] NSWCCA 234 Category: Sentence Parties: Regina Representation: TA Game SC / HK Dhanji / S Buchen - Crown Director of Public Prosecutions - Commonwealth Elliot Lawyers File Number(s): 2009/8922 REMARKS ON SENTENCE 1On 11 August this year, after a trial conducted before me, a jury found Mark William Standen (who I will generally refer to as Mr Standen or the prisoner) guilty of the three offences with which he had been charged, namely:- 1.That between 1 January 2006 and 2 June 2008 he conspired with Bakhos Jalalaty, James Henry Kinch and divers others to import a substance believing that another person intended to use any of the substance to manufacture a controlled drug, the substance being a border controlled precursor, namely pseudoephedrine, and the quantity being a commercial quantity. 2.That between 1 January 2006 and 2 June 2008 he knowingly took part in the supply of an amount of a prohibited drug, to wit 300 kilograms of pseudoephedrine, being an amount not less than the large commercial quantity applicable to that prohibited drug. 3.That between 1 January 2006 and 2 June 2008 he conspired with Bakhos Jalalaty and James Henry Kinch to pervert the course of justice in relation to the judicial power of the Commonwealth, by agreeing that he would use his knowledge and information obtained by him in order to avoid proceedings being instituted or successfully prosecuted with respect to an offence of importing a substance in contravention of Commonwealth law. 2The first offence can conveniently be referred to as the conspiracy to import offence. 3The second offence, although correctly pleaded in the indictment, was based on part of the extended definition of "supply" in the Drug Misuse and Trafficking Act (NSW) and can be more transparently described as an offence having the elements that Bakhos Jalalaty attempted to have in his possession a large commercial quantity of a prohibited drug for supply and that the prisoner, having knowledge of all of those matters, took steps in the process of Jalalaty attempting to have in possession a large commercial quantity of a prohibited drug for supply. The second offence can be referred to conveniently, even if perhaps somewhat misleadingly, as the supply offence. 4The third offence can conveniently be referred to as the conspiracy to pervert the course of justice offence. 5The conspiracy to import offence and the conspiracy to pervert the course of justice offence were offences under Commonwealth law. The supply offence was an offence under New South Wales law. The prosecution of all of the offences was conducted by the Commonwealth Director of Public Prosecutions. 6The conspiracy to import offence was an offence under s 307.11 and s 11.5 of the Commonwealth Criminal Code . The maximum penalty for the offence is imprisonment for 25 years. 7The supply offence was an offence under s 25(2) of the Drug Misuse and Trafficking Act (NSW). As the amount of the prohibited drug involved was not less than the large commercial quantity applicable, the maximum penalty for the offence is imprisonment for life. There is a standard non-parole period of 15 years for the offence when the offence involves not less than the large commercial quantity applicable to the drug. 8The conspiracy to pervert the course of justice offence was an offence under s 42 of the Commonwealth Crimes Act for which the maximum penalty is imprisonment for five years. Since the time of the prisoner's offending the maximum penalty for the offence has been increased to ten years but this increased penalty does not apply to the prisoner's offence. 9As I have already stated, the jury returned their verdict of guilty on 11 August, nearly four months ago. Most of the delay in the sentencing of the prisoner was caused by applications for adjournments which were not opposed by the other party and to which I acceded. Mr Standen has, of course, been in custody since the jury returned their verdicts and has, indeed, been continuously in custody since his arrest on 2 June 2008. To allow for this pre-sentence custody I will make the sentences I impose, or at least the first sentence I impose, commence from 2 June 2008. 10A sentence hearing was held on 22 and 23 November. At the conclusion of the hearing on 23 November I reserved my sentencing decision until today. The trial 11The trial of the prisoner lasted nearly five months. The Crown closed its case on the 58 th day of the trial. The prisoner gave evidence in his defence case, his evidence commencing on the 59 th day of the trial and concluding on the 87 th day of the trial. The trial transcript, not including the transcript of the summing up, occupies more than 5,000 pages. 12Very broadly stated, the Crown case on the three charges, which the jury by returning their verdicts of guilty must be taken to have accepted, was:- 1.As to the first offence, that an agreement had been made, the parties to which included Mr Standen, Jalalaty and Kinch, that a large quantity of pseudoephedrine, a precursor used in the manufacture of illicit amphetamine type drugs, would be imported into Australia from Pakistan, concealed in a container of rice consigned to a food importing and distribution business conducted by Jalalaty. No pseudoephedrine was actually imported. 2.As to the second offence, that Mr Standen, knowing that Jalalaty was attempting to obtain possession of a large quantity of pseudoephedrine, being the same quantity of pseudoephedrine as was referred to in the first offence, took steps in the process of that attempt by Jalalaty. 3.As to the third offence, that an agreement had been made, the parties to which included Mr Standen, Jalalaty and Kinch, that Mr Standen would use his knowledge and information obtained by him in the course of a long career in law enforcement and particularly as a high-ranking investigator with the New South Wales Crime Commission, to prevent criminal proceedings being instituted or, if instituted, successfully prosecuted with respect to the importation of the pseudoephedrine. 13A large part of the evidence in the Crown case consisted of evidence of communications to which one or more of the named conspirators were parties, which had been obtained by authorised covert surveillance over a period of many months down to the time of the arrest of the prisoner and Jalalaty on 2 June 2008. These communications included email messages, telephone conversations, SMS's and face-to-face conversations between the prisoner and Jalalaty. 14Although the prisoner, Jalalaty and Kinch did not suspect, until, perhaps, shortly before their arrest that they might be under surveillance, they communicated with each other in covert ways as a precaution against their criminal enterprise being detected or investigated. 15In their communications the prisoner, Jalalaty and Kinch used oblique and coded language. In emails they adopted pseudonyms, including female names. Jalalaty was usually referred to as "Myrtle". Kinch was referred to by a variety of female names, such as "Jo-Jo". The prisoner was usually referred to as "Maurice", which was clearly used as being a female name. 16The prisoner, Kinch and Jalalaty also used techniques of communicating by email, which they thought would make an email less susceptible to being intercepted or to being retrieved by any investigator. A system was applied whereby draft emails could be viewed by the intended recipients without the emails being overtly sent. 17Apart from this evidence of communications to which I have referred, many witnesses gave oral evidence in the Crown case and there was much documentary evidence. 18It would not be possible, and it would not be appropriate in remarks on sentence, to attempt to summarise the prisoner's evidence at his trial. Broadly stated, the defence case at the trial was that the prisoner denied that he had been a party to any agreement to import pseudoephedrine or any illicit drug; denied that he had knowingly taken part in any attempt by Jalalaty to obtain possession of pseudoephedrine or any illicit drug; and denied that he had been a party to any agreement to pervert the course of justice. The prisoner asserted that, if Jalalaty and Kinch had entered into such an agreement, they had done so without his participation and he had not subsequently become a party to any agreement made between Jalalaty and Kinch; and, notwithstanding some things said to him and by him in communications, he had never seriously believed that Jalalaty had been a party to an agreement to import or had been attempting to possess pseudoephedrine or any illicit drug. 19In his evidence Mr Standen offered explanations, which would be consistent with his innocence of the charges, of pieces of circumstantial evidence relied on by the Crown and, in particular, offered explanations of apparently incriminating remarks made by him and to him in emails, telephone conversations, SMS's and face to face conversations, which had been captured by covert surveillance. 20The jury in seeing and hearing the prisoner give evidence for approximately 25 days had an extended opportunity to assess his general credibility and to assess whether the explanations he offered of particular items of evidence might reasonable possibly be true. It can be inferred from the verdicts of guilty returned by the jury that the jury formed an adverse view of Mr Standen's credibility and rejected, as not even reasonably possibly being true, at least many of the explanations he proffered of apparently incriminating evidence. The evidence in the proceedings on sentence 21All the evidence at the trial is, of course, available to be used in the sentencing of the prisoner. The additional evidence in the proceedings on sentence, leaving aside some documents which were marked as exhibits but were not strictly evidence, consisted of:- 1.Evidence by Mr Wayne Creighton, the general manager of the Special Purpose Corrections Centre at Long Bay, about the prisoner's present and likely future conditions of custody 2.Photographs of the prisoner's present cell in the Correctional Centre where he is being held, and of a kitchenette and a small exercise yard adjoining the cell 3.A document showing that Mr Standen has no previous criminal convictions 4.A psychosocial assessment of Mr Standen dated 14 November 2011 by Danielle Castles, manager Client Assessment and Referral Unit within the Department of Correctional Services 5.Oral evidence by Dr Bruce Westmore, psychiatrist, who examined Mr Standen on 19 January 2011 and again on 22 November 2011, immediately before giving evidence in the sentence hearing 22Mr Standen himself did not give evidence in the proceedings on sentence. He had, of course, given lengthy evidence at the trial. Principles governing the finding of facts relating to the offences 23In making findings of fact relating to the offences I am mindful of the principles that all facts I find must be consistent with the jury's verdicts, that I should not find any fact which would be adverse to Mr Standen, unless I am satisfied that the fact is established beyond reasonable doubt, whereas I should find any fact which would be favourable to Mr Standen, if I am satisfied of that fact on the balance of probabilities; that not all the facts which could be relevant to sentencing are necessarily capable of being classified as either facts adverse to Mr Standen or facts favourable to Mr Standen; and that the state of the evidence may be such that I am unable to make any finding on some matters. 24Some of the findings I will make relate to facts which, if they occurred, occurred outside the periods alleged in the indictment as being the periods within which the offences were committed but the findings are nevertheless relevant to the sentencing of the prisoner. 25I will not attempt in these remarks to make findings about all of the very large number of matters which were raised in the wide ranging submissions of counsel in the proceedings on sentence. I will make findings only about some matters which appear to me to have significance in the sentencing of the prisoner or are essential to an understanding of some of the submissions made by counsel. 26I am conscious that I am sentencing for three offences, and not a single offence. However, it was common ground at the sentence hearing that there was substantial, indeed complete or virtually complete overlap, of the facts of the three offences. I will return to the subject of the degree to which the facts of the three offences are co-extensive, when I determine what sentences I should impose for the individual offences and consider questions of totality and of concurrency and cumulation of the sentences for the individual offences. Background facts Mr Standen 27A critical fact is that between 1 January 2006 and 2 June 2008 and for some years previously Mr Standen had been the Assistant Director Investigations of the New South Wales Crime Commission. The only persons senior to him in the Crime Commission were the Commissioner Mr Bradley and the Director Mr Giorgiutti. 28Mr Standen had a long history of working for law enforcement and investigative bodies, including the Australian Customs Service, the Australian Federal Police and the Australian Crime Commission. He joined the New South Wales Crime Commission in 1996. 29The Crime Commission had the objective of reducing the incidence of illegal drug trafficking and organised crime. Its functions included investigating criminal activity referred to it, particularly drug trafficking and money laundering, and making applications for orders under proceeds of crime legislation. 30For a number of years down to the time of his arrest Mr Standen headed one of the two investigation teams in the Crime Commission, focussing on investigating drug trafficking and money laundering. Mr Standen had acquired a deep understanding of the membership, structures and methods of operation of criminal organisations and of the methods and practices of law enforcement bodies. 31Much of Mr Standen's knowledge was derived from his extensive personal dealings with registered informers of the Crime Commission, that is persons, themselves involved in criminal activities, who secretly provided information to the Commission about the criminal activities of others, and from intelligence received by Mr Standen from other law enforcement bodies, such as the Australian Federal Police. Mr Standen had personal contacts with a number of investigators in other law enforcement bodies. Kinch 32Kinch is an Englishman, who used to live mainly in Portugal. He was involved in international drug trafficking and money laundering. He was associated with a drug syndicate of Dutch nationals. 33Kinch came to Australia in 2003 to continue his drug trafficking activities. He became the subject of a criminal investigation. On 14 March 2003 Kinch was arrested and charged with offences of money laundering and supplying drugs. He was not initially granted bail. 34Kinch provided assistance to the Crime Commission, that is information about the criminal activities of himself and others. Mr Standen and a New South Wales police officer who was much junior to Mr Standen became the co-handlers of Kinch as an informer. 35In June 2003 the Office of the Director of Public Prosecutions withdrew the money laundering charge against Kinch and in July 2003 Kinch was released on bail. The decision to withdraw the money laundering charge followed a letter written by Mr Standen to the Deputy Director of Public Prosecutions, which was favourable to Kinch. I do not, however, make any finding that the letter was improper. 36In January 2004 the remaining charges against Kinch were withdrawn. Mr Standen had written a letter to an officer of the Director of Public Prosecutions on 28 November 2003, referring to the considerable and continuing assistance Kinch had provided, for which Mr Standen said Kinch had not received any recognition. 37In February 2004 Kinch left Australia. 38In the period between Kinch being released on bail in July 2003 and Kinch's departure from Australia in February 2004 there were many contacts between Mr Standen and Kinch, which, in contravention of Crime Commission guidelines for dealing with informers, were not documented. The relationship between them had gone far beyond being merely a relationship of law enforcement officer and informer. Jalalaty 39Jalalaty carried on a food importing and distribution business from premises in Blacktown. 40Jalalaty entered into a relationship with, and in 1998 married, a woman who I will refer to as Mrs Jalalaty. Mrs Jalalaty had once been a colleague of Mr Standen in the Australian Federal Police and had maintained some contact with him. It was she who introduced Mr Standen to Jalalaty. In time the relationship between Mr Standen and Jalalaty became much closer than any relationship between Mr Standen and Mrs Jalalaty. Further events 41In late 2004 the Crime Commission received information from an informer that Kinch, who was overseas, was a "big mover" of drugs. 42On 19 December 2005 an amount of 20,000, which at the rate of exchange then applying, was $47,192.17 Australian, was transferred by Kinch into a bank account of Jalalaty's company. Payments totalling $47,000 were made from the bank account to Mr Standen in December 2005 and January and February 2006. 43These transactions amounted to a gift of $47,000 by Kinch to Mr Standen. The gift was not made directly, because Mr Standen did not want the Crime Commission to know that he was receiving money from Kinch. Mr Standen asserted in his evidence that Kinch had offered to send him as a Christmas present the amount of money required for an operation to Mr Standen's eyes. However, the cost of the operation would have been only $5,000 or $10,000. 44I find that by his acceptance of this substantial sum of money Mr Standen was irretrievably corruptly compromised, so far as Kinch was concerned. Undisputed or clearly established facts relating to the offences 45In this part of my remarks I will make findings only about matters which I consider were undisputed or quite clearly established, reserving to a later part of my remarks some matters which were the subject of serious dispute. 46Between 19 January 2006 and 22 January 2006 Kinch and Jalalaty were both in Bangkok Thailand. 47In February 2006 Kinch lent the sum of one million dollars to Jalalaty. The loan was made by a man associated with Kinch, who was referred to at the trial as the "Portuguese guy" or the "Portuguese mate", handing to Jalalaty in a Sydney suburb a bag containing a million dollars in cash. Later in these remarks I will consider what was the purpose of the loan. 48Mr Standen knew about the loan at or about the time it was made. Contrary to some evidence given by him at the trial, he was aware that the loan was made in the form of cash. 49A large part of the cash in the bag was sent by Jalalaty in instalments to CWL Investments, a company operated by Mr Bruce Way, for investment. In November 2006 Mrs Jalalaty prepared a list of the payments which had been made to CWL for investment, totalling $580,000. Nothing was received from the investment and attempts to recover the money were unsuccessful. 50On 9 February 2006 Kinch sent an email to Standen saying that an English criminal named Doyle was heading to Australia to find out about the availability of acetone and its storage. 51A witness Warren Stevenson, who assisted Jalalaty in the conduct of his legitimate business, gave evidence at the trial, which I accept, that he observed a number of drums of acetone stored at Jalalaty's premises. Jalalaty told Stevenson that acetone could be used in the manufacture of drugs. 52An expert witness Mr Heagney gave evidence at the trial that acetone can be used as a solvent to convert methylamphetamine in an oil form, which has been manufactured from pseudoephedrine, into a powder or crystalline form. 53On 24 September 2006 Jalalaty sent an email to Mr Standen, in which he asked Mr Standen "what does he (clearly referring to Kinch) want me to do with the drums? It's no problem to store them and keep them until they need them". 54The drums of acetone were disposed of by Jalalaty in November 2007. 55Later in these remarks I will consider the relevance and significance of the evidence about the acetone. 56Between 24 and 29 January 2007 Mr Standen and Louise Baker, a young woman with whom he was in a relationship but who had no knowledge of any drug conspiracy, were in Dubai. Jalalaty and Kinch were also in Dubai at about the same time. 57The only time Louise Baker saw Kinch while she was in Dubai was at a restaurant for a meal, which was attended by all of Mr Standen, Kinch, Jalalaty and Louise Baker. Louise Baker made an entry in her diary "dinner at Marrakesh restaurant with Bill and Jimmy (who thought I wasn't to be trusted)". 58Louise Baker gave evidence at the trial that while she was in Dubai with Mr Standen in January 2007 she was with Mr Standen 99% of the time. 59Between 9 March and 11 March 2007 Kinch and Jalalaty were both in Bangkok. There was no direct evidence at the trial of what they might have talked about at any meeting. 60On 13 March 2007 Kinch sent an email to Mr Standen with an attachment indicating that Kinch was staying at a hotel in Bangkok. 61On 14 May 2007 a facsimile transmission, purportedly from a company in India MDL Food and Services but actually from members of the Dutch syndicate, was sent to Jalalaty from an internet caf in Amsterdam. In the fax MDL described itself as a manufacturer and supplier of food and beverages and offered to supply samples of its products to Jalalaty. 62This fax was intercepted by law enforcement authorities and the first step in the investigation of the present offences, namely the interception of Jalalaty's telephones, commenced soon afterwards. 63On 15 June 2007 Mr Bruce Way and Mr Frank Wheeler, a debt collector, attended at the offices of the Crime Commission. Mr Way was questioned in Mr Standen's office by Mr Wheeler and by Mr Standen about what had happened to the funds sent to him by Jalalaty for investment. 64On 16 June 2007 police conducting covert surveillance observed Jalalaty meeting an unknown male at Bondi Junction, who may have been the Portuguese guy, and inspecting food samples which had been sent by the Dutch syndicate. 65On 22 June 2007 Rene Brusse, a member of the Dutch syndicate who gave evidence at the trial, arrived in Pakistan to deal with the syndicate's contacts in Pakistan for the purpose of obtaining pseudoephedrine to be exported to Australia. 66On 29 June 2007 Kinch was covertly observed and photographed meeting with high-level members of the Dutch syndicate, including Ronald Haaklander and Loek Weerden in Amsterdam. 67On 6 July 2007 the Commissioner of the Australian Federal Police informed Mr Bradley of the New South Wales Crime Commission that an operation involving Mr Standen was being conducted by the Australian Federal Police. Covert surveillance of Mr Standen's telephones and computer began at about this time. 68On 21 July 2007 a fax was sent by the Dutch syndicate from the internet caf in Amsterdam addressed to "Abdul" in Pakistan, saying in part "agreement is 300 x $300 = $90,000 US dollars". I find that the "300" is a reference to 300 kilograms of pseudoephedrine. 69On 15 September 2007 the first of a number of face-to-face conversations between Mr Standen and Jalalaty which were captured by listening devices took place. 70On 4 October 2007 a container of rice from Pakistan, which had been ordered by Jalalaty arrived in Sydney. The container did not contain, and was not intended to contain, any drugs. This importation was intended to develop the profile of Jalalaty's business as a food importer and as a test run for a later shipment which would include drugs. 71On 23 November 2007 in a face-to-face conversation between Mr Standen and Jalalaty which was captured by a listening device, Jalalaty said that in the next container there would be 60 bags, that is 300 kilograms. Mr Standen said "right down the back of the container...hopefully". In the same conversation Jalalaty remarked that at about $100,000 a kilo 300 kilos would be worth 30 million dollars. 72On 21 January 2008 Dutch syndicate members communicated with Pakistani contacts about the faxing of a certificate of analysis of 1,000 kilograms of pseudoephedrine. 73On 14 February 2008 Mr Weerden of the Dutch syndicate sent a fax from his home fax machine to a Pakistani number, referring to "300", which I find to be 300 kilograms of pseudoephedrine and added "manufacturer adds 200 himself. These 200 are also tested with test certificate". 74This fax also contained specifications of the number and size of the bags in which 18,000 kilograms of rice were to be packed. These specifications corresponded with the specifications sent in an email of 30 January 2008 from Kinch to Jalalaty, giving Jalalaty particulars of the order he should place for rice. 75On 26 April 2008 a container of rice, which was believed by Mr Standen, Kinch and Jalalaty to contain drugs concealed in it, arrived in Sydney. A delay of about a month occurred in Jalalaty obtaining possession of the container. 76On 30 April 2008 Mr Standen had one of a number of telephone conversations with Mr Gavin Whalebone a Customs officer. 77On 12 May 2008 Mr Standen had a telephone conversation with Mr Mercer, another Customs officer, in which he told Mr Mercer that he had received information that a shipment of crystal MDMA had just arrived in Sydney or was on its way, concealed in a shipment of bath salts from China. This information had been supplied to Mr Standen by Kinch. 78On 20 May 2008 the original bill of lading for the shipment of rice from Pakistan, which was needed in order to obtain delivery, was at last received. 79Between about 23 and 26 May 2008 the container was searched by Australian Federal Police officers and found not to contain any drugs. 80On 28 May 2008 the container was delivered to Jalalaty's premises at Blacktown. 81On 29 May and 30 May members of the Dutch syndicate were arrested in the Netherlands. On 2 June 2008 Mr Standen and Jalalaty were arrested in Sydney. Kinch was arrested overseas. The principal disputed issues of fact 82The principal disputed issues of fact at the sentence hearing were:- 1.When did the offending in the offences begin 2.What was Mr Standen's role in the commission of the offences 3.What was the quantity of pseudoephedrine to be imported or to be possessed by Jalalaty 83At the sentence hearing it was common ground that of these issues issue 2 was the most important. I will now consider each of these issues. When did the offending in the offences begin 84Subject to some submissions made by counsel for Mr Standen about the first offence, it was common ground that the offending in all three offences had commenced at the same time. 85It was submitted by the Crown that an agreement to import illicit drugs, although not necessarily pseudoephedrine, had come into existence and the offending in all three offences had commenced, by the time of the payment of the one million dollars by Kinch to Jalalaty in February 2006. 86The Crown submitted that the payment of one million dollars was an act done in furtherance of the conspiracy to import. It was submitted that the purpose of the payment was to provide funds to Jalalaty to develop his business as a cover or front for the future illicit importation. 87Counsel for Mr Standen submitted that I could not be satisfied that the payment of one million dollars was made in furtherance of the conspiracy to import or for any criminal purpose. It was submitted that it was reasonably possible that the payment was simply an innocent investment by Kinch in Jalalaty's legitimate business activities. 88It was also submitted by counsel for Mr Standen that the payment might have been made by way of money laundering. It was suggested that the sending of a large part of the money to Mr Way would be consistent with such a purpose. 89Counsel for Mr Standen submitted that I should find, as being reasonably possible, that no criminal agreement had come into existence until March 2007, when both Kinch and Jalalaty were in Bangkok, and that the criminal agreement which had then come into existence was an agreement only between Jalalaty and Kinch. 90Counsel for Mr Standen submitted that there would not have been any opportunity for an agreement to which Mr Standen was a party to have been made in January 2007, when all three of Mr Standen, Jalalaty and Kinch were in Dubai, because Louise Baker had been with Mr Standen almost all of the time they were in Dubai and nothing about an illegal importation had been discussed in her presence. However, although an agreement to which Mr Standen was a party could not have been made in Dubai in January 2007, Jalalaty and Kinch would have had opportunities to meet privately while they were in Dubai and could have made an agreement between themselves which did not include Mr Standen. 91It was accepted by counsel for Mr Standen that the jury's verdict of guilty on the first count required that I find that Mr Standen had become a party to the agreement at some stage but it was submitted that I could not be satisfied that Mr Standen had become a party to the agreement until shortly before the long, covertly recorded conversation between Mr Standen and Jalalaty on 15 September 2007, in which there were clear indications that a criminal agreement in which Mr Standen was participating was already on foot. 92Counsel for Mr Standen submitted that a finding that an agreement for an illegal importation had first been entered into in March 2007 in Bangkok, or possibly in January 2007 in Dubai, and then only between Kinch and Jalalaty, would be consistent with evidence given by Mrs Jalalaty at the trial of what her husband had told her about his meeting with Kinch in Bangkok and would be consistent with the timing of a number of events of which there was evidence, including the facsimile transmission of 14 May 2007 purportedly from MDL Food and Services but actually from the Dutch syndicate, the sending of Brusse to Pakistan on 22 June 2007, the meeting of Kinch and members of the Dutch syndicate on 29 June 2007 and a later meeting of members of the Dutch syndicate at which Mr Brusse heard Jalalaty's company mentioned. 93Counsel for Mr Standen drew a distinction between offences 2 and 3 on the one hand and offence 1 on the other. As to offences 2 and 3, it was conceded that I could be satisfied that Mr Standen's offending had commenced by the time of the recorded conversation on 15 September 2007. 94However, an essential element of the first offence was that the substance to be imported was to be pseudoephedrine and it was submitted by counsel for Mr Standen that there was no evidence that Mr Standen knew what the substance to be imported was, until a recorded conversation between Mr Standen and Jalalaty on 21 May 2008, when Jalalaty said that the substance being imported was a precursor. 95It was conceded by counsel for Mr Standen that much evidence had been given at the trial on the basis of which I could find that for many months before 21 May 2008 Mr Standen had been a party to an agreement to import a large quantity of some illicit drug or some drug to be used illicitly and it would not much diminish his criminality, if he had not been aware until 21 May 2008 of the precise nature of the drug. 96I consider that I should find that the offending in all three offences commenced in early 2006. The payment of about $47,000 by Kinch to Jalalaty, to be disbursed to Mr Standen, was made on 19 December 2005. I accept that the payment was not made in furtherance of any criminal enterprise which had already been entered into. However, the payment of such a substantial sum would not have been made by Kinch without good reason and strongly suggests that a criminal enterprise in which Kinch wanted to be assured of Standen's participation was imminent. It is significant that the payment was made with the co-operation of Jalalaty. 97The payment of one million dollars in about February 2006 was, to the knowledge of Mr Standen, intended to be used by Jalalaty as capital for the development of Jalalaty's business. The method and manner of the payment, that is the handing over by the Portuguese guy to Jalalaty of a bag containing one million dollars in cash strongly suggests that the payment had a clandestine ulterior purpose and cannot be reconciled with the view that the payment was merely a legitimate investment by Kinch in Jalalaty's business. I find, as was submitted by the Crown, that the ultimate purpose of the payment was to provide funds to Jalalaty to develop his business as a cover or front for an illicit importation. 98It is true that a large part of the money was, in effect, squandered by Jalalaty sending it to Bruce Way for investment. However, I consider that such conduct would be quite consistent with Jalalaty's erratic, impulsive temperament, as manifested by him in many of the recorded conversations and as commented upon by Mr Standen and Kinch in emails passing between them. 99Mr Standen evinced an interest in the money which had been sent by Kinch and then sent by Jalalaty for investment. He participated in the meeting with Bruce Way and Frank Wheeler at the Crime Commission on 15 June 2007. In conversations about the money he used the plural pronoun "we", thereby including himself with Jalalaty as a person having an interest in the money. Jalalaty delivered the paperwork about the investment to Mr Standen and Mr Standen kept the papers in his office at the Crime Commission. 100I have already referred to the evidence about the drums of acetone stored at Jalalaty's premises in 2006 and 2007, the evidence about the use of acetone in converting methylamphetamine in oil form, which has been manufactured from pseudoephedrine, into a powder or crystalline form and the evidence by Mr Stevenson of Jalalaty's knowledge of the use of acetone in the manufacture of drugs. 101A number of submissions were made by counsel for Mr Standen about the acetone including that acetone can be used for other, lawful purposes, that there was no evidence of any communication about the acetone between Mr Standen and Jalalaty after September 2006, that Mr Standen had proffered an innocent explanation of the acetone and that there was no evidence that Mr Standen had participated in the disposal of the acetone. 102The terms of part of Jalalaty's email to Mr Standen of 24 September 2006, in which Jalalaty asked Mr Standen what Kinch wanted Jalalaty to do with the drums but said that it was no problem for Jalalaty to continue storing the drums until they were needed, strongly indicates that an agreement to which all three of Mr Standen, Jalalaty and Kinch were parties, to which acetone would be relevant, was already in existence. 103The disposal of the drums of acetone in November 2007 is not inconsistent with the conclusion I have reached. The hasty disposal of the acetone at a loss militates against the acetone having been held for a lawful commercial purpose. A ready explanation of the decision to dispose of the drums is that it was considered to be too likely to attract suspicion for a number of drums of acetone to be stored in the premises to which the pseudoephedrine was to be delivered. 104As to the alternative explanation suggested by counsel for Mr Standen, that a criminal agreement was first made at the meeting between Kinch and Jalalaty in Bangkok in March 2007 and that it was an agreement merely between Kinch and Jalalaty, there was no evidence at the trial of what happened at any such meeting, apart from some hearsay evidence by Mrs Jalalaty of what her husband told her some time later about the meeting. There was no evidence at all at the trial of any private conversation between Kinch and Jalalaty in Dubai in January 2007. 105I am satisfied that Jalalaty was, as Mr Standen himself suggested at the trial, a frequent liar and a person of little credibility. He was quite capable of deceiving others, including Mr Stevenson and his wife. Jalalaty knew, of course, that his wife was a former police officer and there was good reason not to make any, or any full and accurate, disclosure to his wife. 106The times of the occurrence of the events in 2007 which were referred to by counsel for Mr Standen, while consistent with an agreement having been made in early 2007, were not inconsistent with the agreement having been made earlier. 107As to the submissions made by counsel for Mr Standen about when the offending in the first offence commenced, it was conceded at the trial, in my view properly, that, if the other elements of the first offence were established, Mr Standen could not have effectively performed his role in the enterprise, unless he knew what the drug to be imported was. For example, he could not effectively have made enquiries of Customs officers about what incoming shipments were attracting the notice of Customs, unless he knew what the drug was which he was a party to importing. Unless Mr Standen knew what drug was going to be imported and how much was going to be imported, he would not have known what remuneration he should seek or would be receiving. The intercepted conversations between Jalalaty and Mr Standen including the conversation of 23 November 2007 contained passages in which the value of the drugs being imported was estimated. These estimates presupposed a knowledge of the nature and the amount of the drug being imported. 108It was submitted by counsel for Mr Standen that information about the nature of the drug could only have come from Kinch and that there was no evidence at the trial of such information being conveyed by Kinch to Mr Standen. However, it is likely that not all communications between Kinch and Mr Standen were intercepted by the authorities. 109I find that the offending in all three offences commenced at about the same time, in early 2006. I find that by the time of the email about the acetone in September 2006 it had been agreed that the illicit drug to be imported would be pseudoephedrine. Even if the offending had not commenced until some time shortly before the recorded conversation of 15 September 2007, the offending would still have continued over a period of about nine months. What was Mr Standen's role in the commission of the offences 110At the sentence hearing there was little dispute about a number of acts Mr Standen did in furtherance of the conspiracy to import, in the commission of the supply offence and in furtherance of the conspiracy to pervert the course of justice. 111Drawing on his knowledge and experience, he advised Jalalaty what steps should be taken to lessen the risk of the criminal enterprise being detected. He advised Jalalaty what procedures law enforcement authorities might use in relation to the shipment. He gave advice to Jalalaty about what Jalalaty should say, by way of an innocent, false, explanation of his conduct, if he was questioned by law enforcement authorities. 112Utilising his personal contacts, Mr Standen made enquiries of officers of law enforcement authorities, for example Mr Whalebone and Mr Mercer of Customs, for the purpose of ascertaining whether the shipment of rice had come to the attention of Customs and he reported, usually only to Jalalaty, the results of his enquiries. The enquiries made by Mr Standen were necessarily oblique and general, as in the conversation of 12 May 2008 with Mr Mercer about bath salts from China, because a specific enquiry about the rice shipment might attract suspicion to it. 113Mr Standen, while not generally supervising Jalalaty, oversaw what Jalalaty was doing and gave Jalalaty advice. From time to time Mr Standen acted as an intermediary between Kinch and Jalalaty. 114Towards the end of May 2008, when Jalalaty, concerned by the delay in obtaining the container, was showing signs of wishing to withdraw from the criminal venture, Mr Standen applied pressure to Jalalaty to remain in the venture. 115I accept submissions made on behalf of Mr Standen that there is no evidence on which I could find that Mr Standen controlled what substance was to be imported, how much was to be imported, when it was to be imported or how it was to be packed. However, I find that at least for many months Mr Standen knew what the substance was which was going to be imported, how much of it was going to be imported and its value and that he expected to receive a share of the profits of the venture. 116My findings about what were acts done by Mr Standen in furtherance of the conspiracies and in the commission of the supply offence do not determine the question of what his position was in the criminal organisation or group. 117At the sentence hearing the Crown submitted that Mr Standen was a principal. Counsel for Mr Standen submitted that Mr Standen was not a principal and that the co-principals were Jalalaty and Kinch. 118It was submitted by counsel for Mr Standen that each of Jalalaty and Kinch was an essential member of the criminal enterprise. Jalalaty was the importer of the cargo in which the pseudoephedrine was to be concealed. Jalalaty had a number of overseas meetings with Kinch, inferentially to discuss the criminal enterprise. Jalalaty had dealings with the Portuguese guy, Mr Weerden of the Dutch syndicate and with some Pakistanis. Kinch was the link with the Dutch syndicate which was arranging the procuring of the pseudoephedrine. 119It was submitted that Mr Standen, by comparison, was merely an adviser. In counsel for Mr Standen's submission Mr Standen merely "added to the prospects of success" of the venture, without being essential to its success. 120It is necessary for me to determine what Mr Standen's position was, while recognising the need for caution in attaching significance to the use of any label in describing his position. Identifying the physical acts performed by Mr Standen, as I have done, does not determine the question of what his relative position was in the criminal organisation or group. 121In the unreported Court of Criminal Appeal decision R v Lee [2007] NSWCCA 234 the Chief Judge at Common Law, with the concurrence of the other members of the Court, pointed out that in sentencing an offender for an offence relating to the importing of drugs into Australia, it is the criminality involved in the importation which is significant and the persons primarily responsible for effecting the importation into Australia are not to be sentenced as having merely a middle level of responsibility, because there are persons overseas whose activities are required in order that the drugs should be available for importation into Australia. Applying this reasoning, it would be possible for any one or more of Mr Standen, Kinch and Jalalaty to be a principal in the importation into Australia, irrespective of the parts played overseas by members of the Dutch syndicate or their Pakistani contacts. 122I find that Kinch was a principal with respect to the importation of the pseudoephedrine into Australia. I do not consider that Mr Standen was inferior in rank to Kinch. Kinch and Mr Standen communicated with each other on terms of equality. 123Evidence was given at the trial which would support a finding that Mr Standen's position was superior to that of Jalalaty. Jalalaty sought and accepted advice from Mr Standen and sought reassurance from him. 124Jalalaty had no access to the line of communication between Kinch and Mr Standen and Kinch and Mr Standen resisted an attempt by Jalalaty to gain access to that line of communication. On the other hand, evidence was given at the trial of Mr Standen having access to the line of communication between Kinch and Jalalaty. 125Kinch and Mr Standen kept some matters secret from Jalalaty. In an email of 24 November 2007 from Kinch to Mr Standen, Kinch said "she (that is Jalalaty) likes it when she can spy on us". 126Kinch and Mr Standen commiserated with each other about what they saw as the shortcomings of Jalalaty. In an email of 30 January 2008 from Kinch to Mr Standen Kinch said "I had a think about Mirth. It seems that I was right to worry about her". Between 13 February 2008 and 24 February 2008 there was a series of emails between Kinch and Mr Standen about Jalalaty's shortcomings. In an email of 21 February 2008 Kinch said of Jalalaty "she is a proper Walter Mitty. You cannot believe a word she says". 127In an email of 24 February 2008 Mr Standen said to Kinch about Jalalaty "I will do some coaching (again). I will be cautious in believing everything she says. I need her help now, so I will stick with her but with a more wary approach this time". 128In emails from Kinch to Mr Standen Kinch asked Mr Standen to "keep an eye" on Jalalaty. Kinch said that Jalalaty was "young and nave". In an email of 19 May 2008 from Mr Standen to Kinch, Mr Standen assured Kinch "I'll keep her (that is Jalalaty) focussed". 129In late May 2008 when a deeply worried Jalalaty was contemplating withdrawing from the venture, Mr Standen, in coded language, applied pressure to Jalalaty to remain in the venture, not to "pull out of the course" and not to "pull out of the tennis match". Jalalaty submitted to this pressure. 130I find that Mr Standen was a principal in the group on the same level as Kinch and superior to Jalalaty. What was the quantity of pseudoephedrine to be imported or to be possessed by Jalalaty 131I find that the quantity was not less than 300 kilograms. The amount of 300 kilograms was referred to in recorded conversations between Mr Standen and Jalalaty and is in accordance with other evidence. An expert witness gave evidence at the trial that in about May 2008 the black market wholesale price of pseudoephedrine was $40,000 a kilogram. 132Counsel for Mr Standen pointed to a part of the recorded conversation of 21 May 2008 in which Jalalaty was recorded as saying "there's 18 tonne (of rice). I was expecting you know 100 kilos in there" and submitted that this was the most reliable evidence of what Jalalaty and Mr Standen believed would be the quantity of the pseudoephedrine. However, I do not consider that this remark, which was made in passing by Jalalaty, prevents my finding that the quantity known to Jalalaty and Mr Standen was at least 300 kilograms. 133There is some evidence suggesting that the quantity to be imported was larger than 300 kilograms. However I could not make a finding beyond reasonable doubt that the quantity was to be more than 300 kilograms. Further facts of the supply offence 134The further facts of the supply offence are facts occurring between the time of the delivery of the container to Jalalaty's premises at Blacktown, when the importation can be taken to have been completed, and the arrest of Jalalaty and Mr Standen on 2 June 2008, and conversations which occurred before the delivery of the container but related to what should happen after the container had been delivered. 135In a recorded conversation of 23 November 2007 between Jalalaty and Mr Standen Jalalaty said that the bags containing the drugs, after being delivered to his premises, would be picked up by the Portuguese mate. Mr Standen asked whether the bags were marked with anything which could link them to Jalalaty's shipment and advised that the Portuguese mate should take only the inner bags, because the rice bags themselves might be recognised. 136In a conversation on 21 May 2008 between Jalalaty and Mr Standen, Mr Standen cautioned Jalalaty against the use of "helpers", because "helpers is when you go wrong". 137On 28 May 2008 Kinch, after having been notified that the container had been delivered, sent a coded email to Jalalaty saying that it was nice to hear that "the children" were home and that they should be put in bed "until Dr Maurice says that they are fully recovered". 138Kinch then sent a coded email to Mr Standen, saying that "mirt" (that is Jalalaty) had reported that the children were feeling a lot better, adding "can you advise her to keep them off school and leave them in bed as long as possible, better not to remove any bandages until the doctor says". 139In a recorded conversation on 29 May 2008 between Jalalaty and Mr Standen, Mr Standen passed on to Jalalaty an instruction from Kinch not to unload the container. In this conversation Mr Standen advised Jalalaty about the disposal of the bags and advised that they should continue to communicate about purported legitimate business plans so as to provide an innocent explanation for the high level of contact between them. 140In this conversation Mr Standen and Jalalaty discussed, critically, the two emails from Kinch of 28 May 2008 to which I have referred. Mr Standen thought that the email from Kinch to him was "obvious" and Jalalaty thought that the email from Kinch to him was "stupid", that is both Mr Standen and Jalalaty thought that Kinch had not sufficiently disguised his true meaning in the two emails. 141In this conversation Mr Standen and Jalalaty discussed what false but plausible explanations they should give for the amounts of money which Jalalaty had been giving Mr Standen. 142On 31 May 2008 Kinch sent an email to Mr Standen saying in part "I'm so happy that you are keeping an eye on mirt and the kids as I was really worried she did not seem to be coping that well". 143On 31 May 2008 Kinch sent an email to Jalalaty reporting the arrest of members of the Dutch syndicate, saying "can you ask Maurice for advice on moving the children. I think that it would be better if they went to stay somewhere more quiet as soon as possible". 144On 1 June 2008 Kinch sent an email to Mr Standen saying "can you ask Mirth to get a metal detector to take for the kids to go treasure hunting". In this email Kinch was asking Mr Standen to assist Jalalaty in his unavailing attempts to find drugs among the rice. 145The evidence I have referred to constitutes additional facts of the supply offence and shows how deeply Mr Standen was involved in the criminal venture and the importance of his role in the venture. Subjective matters 146Some matters I will refer to under this heading were also relied on by counsel for Mr Standen as being relevant to the objective seriousness of the offences. Ms Castles' report 147I have already referred to the psychosocial assessment of Mr Standen by Danielle Castles and this report is the main source of information about Mr Standen's subjective circumstances. For the purposes of preparing her report Ms Castles interviewed Mr Standen and also interviewed his three oldest children, one of his brothers and his mother-in-law. I accept the information and opinions I will now refer to. 148Mr Standen was born on 1 March 1957 and is one of six brothers, two of whom attended many days of his trial. 149Mr Standen married in about 1984. There are three adult children of the marriage. The youngest child is a girl aged nine, nearly ten. All of the adult children, when interviewed by Ms Castles, spoke well of Mr Standen as a father. 150I have already referred to Mr Standen's history of employment with law enforcement agencies. 151An important matter in Mr Standen's personal life is the long-standing alcoholism of his wife, attested to, not only by Mr Standen but also by his children and his wife's own mother. Mr Standen's wife's alcoholism increased after the birth of their youngest child and Mrs Standen became floridly psychotic. She has been involuntarily admitted to hospital as a psychiatric patient on four occasions. Ms Castles expressed the opinion that Mr Standen in a non-confrontational manner bore the brunt of his wife's anger, aggression and paranoia. 152At some time after Mr Standen's arrest his youngest child was removed from her mother's care. A placement of the child with an aunt broke down. The child is now in foster care. She has behavioural problems. 153Mr Standen expressed to Ms Castles his concern about his youngest child. He has only four visits a year from her. 154Mr Standen entered into a relationship with Louise Baker in mid 2006. They maintain a friendship and Louise Baker has visited him in prison. Mr Creighton's evidence 155As a prisoner Mr Standen is potentially at risk of violence from other inmates because of his law enforcement background and he is therefore being held in a Special Purpose Prison. 156Mr Standen currently has an A classification. Even if his classification progresses, he will continue to be held in a Special Purpose Prison until the last three years of his sentence. 157Mr Standen is held in a cell measuring only 4.3 metres x 3.1 metres, with an attached kitchenette and a very small exercise yard, with no equipment. His cell has a bed, television, radio, shower, sink and toilet. There is very limited natural light in the cell when the door between the cell and the exercise yard is closed. 158Mr Standen is let out of his cell at some time after 7 o'clock in the morning and then has access to the kitchenette and the rear yard. For an hour at lunch time he is locked in the cell, while still having access to the rear yard. He is locked in his cell at some time before 3 o'clock in the afternoon. 159Mr Standen is a limited association prisoner. For most of the time he has been in custody he has not had any association with any other inmate. He had some association with one other inmate between 23 March 2009 and 26 January 2010 and he has had some association with another, different inmate from 26 July 2011. Association takes place for one or two hours by mutual consent of the prisoners in very small areas designated as the education room, the gymnasium, the library and the yard. The library has a few, very basic books from the prison's main library. Dr Westmore 160Dr Westmore is an eminent forensic psychiatrist. He saw Mr Standen on 19 January 2011 and again on 22 November 2011. 161Dr Westmore took a history from Mr Standen which was consistent with the history obtained by Ms Castles. Dr Westmore noted Mrs Standen's drinking, violent and abusive behaviour and involuntary admissions to hospitals as a psychiatric patient. 162When asked by Dr Westmore whether his wife's problems had had any bearing on the matters which had brought him before this Court, Mr Standen said "I don't know". 163When asked by Dr Westmore whether he had become depressed at times, Mr Standen said that he thought that the many demands of his work had prevented him becoming depressed. 164Dr Westmore asked Mr Standen about his conditions of custody. Mr Standen told Dr Westmore, among other things, that he had one or two visits a week, of 60 to 90 minutes, by visitors out of his eight approved visitors. 165While in custody Mr Standen has been medicated with an anti-depressant and a minor tranquiliser. 166Dr Westmore expressed the opinion that the family situation and the relationship with his wife "is more likely than not to have caused him to become distressed, maybe depressed at times, but I can't find any direct relationship between that and the offending behaviour". 167Dr Westmore said that Mr Standen does not acknowledge any wrongdoing and "we need to know more history from him, trying to make some link between these reported family problems, a possible mood state disturbance and his inappropriate behaviour". 168Dr Westmore said that it could be assumed that Mr Standen's personal life was desperate and that he did appear to have been trapped and trapped people can sometimes become desperate and do irrational things. 169In cross-examination Dr Westmore agreed with counsel for the Crown that any link between Mr Standen's family situation and his offending would remain hypothetical, until Mr Standen gave an account such that a depressive illness of some kind could be identified, which could then be linked to his offending. Commonwealth and State Legislation 170Offences 1 and 3 are Commonwealth offences. Offence 2 is a State offence. Commonwealth Crimes Act 171In determining the sentence to be passed for each Commonwealth offence I am required to impose a sentence of a severity appropriate in all the circumstances to the offence. 172In addition to any other matters I must take into account such of the matters in s 16A(2) of the Commonwealth Crimes Act as are relevant and known to the Court. I will briefly refer to such of those matters as are relevant and known to the Court. 173(a) The nature and circumstances of the offence. I have already referred to the facts relating to the offences and will further consider them later in these remarks. 174(e) Any injury, loss or damage resulting from the offence. No injury, loss or damage actually resulted from either offence. 175(f) Contrition. Mr Standen has not shown contrition for either offence. 176(j) and (k) I take these matters into account. 177(m) The character, antecedents, age, means and physical or mental condition of the person. I have already dealt with some of these matters and will further consider them later in these remarks. 178(n) The prospects of rehabilitation. Although Mr Standen has not admitted his guilt, I consider his prospects of rehabilitation are good and it is most unlikely that he would re-offend. 179(p) I take into account the probable effect that any sentence will have on members of Mr Standen's family and particularly his youngest child. 180As well as the matters listed in s 16A(2), I take into account the need for general deterrence and other factors which are relevant under the general law. As to s 17A of the Crimes Act I am satisfied that no sentence other than a sentence of imprisonment would be appropriate for each of the Commonwealth offences. Crimes (Sentencing Procedure) Act (NSW) 181I take into account the purposes of sentencing in s 3A of the Act. 182As to s 5, I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate for the State offence. 183As to the aggravating factors in s 21A(2):- 184(o) The offence was committed for financial gain. I will examine Mr Standen's motive in more detail later in these remarks. 185A number of the factors listed in s 21A(2) were present but are not aggravating factors in the relevant sense because they are elements of, or inherent in, the offence for which Mr Standen is to be sentenced. 186As to the mitigating factors in s 21A(3), I find that factors (a), (e), (f), (g) and (h) were present. Mr Standen has not shown any remorse. 187There are, of course, a number of matters which the Court is required or permitted to take into account under the general law. Sentencing 188The prisoner is to be sentenced for three offences. The conduct of the prisoner constituting the three offences almost completely overlaps. All of the conduct in the conspiracy to import offence is conduct in the supply offence. There is some additional conduct in the supply offence which is not included in the conspiracy to import offence. All of the conduct in the conspiracy to pervert the course of justice offence, with one negligible exception, is conduct in the supply offence. 189A sentencing judge sentencing for more than one offence, where the conduct in the offences overlaps, is required to avoid double punishment, that is punishing the offender more than once for the same conduct. 190In the present case a conceivable way of avoiding double punishment would be to select one of the offences and make the sentence for that offence the leading sentence and make the sentences for the other two offences nominal sentences. However, a disadvantage of adopting that course would be that the imposition of nominal sentences for obviously serious offences would appear anomalous and would be liable to give rise to misunderstanding of the sentences. 191At the sentence hearing it was common ground between counsel for the Crown and counsel for the prisoner that I should fix an appropriate sentence for each offence, as if it was the only offence for which the prisoner was being sentenced, and I should seek to avoid double punishment by making the sentences wholly or largely concurrent. I was referred to New South Wales Court of Criminal Appeal authorities sanctioning the setting of fully concurrent sentences, where the sentence for each offence comprehends and reflects the criminality in the other offence or offences. 192Although counsel for the prisoner did not dissent from the approach to the sentencing of the prisoner which I have just outlined, he submitted that the conspiracy to import offence should be regarded as the principal offence and that in sentencing the prisoner for the supply offence which caries a higher maximum sentence, I should be constrained by the maximum sentence for the conspiracy to import offence of 25 years. 193I do not consider that I should accept this submission. The maximum sentence for the supply offence is the maximum sentence which the New South Wales legislature has fixed for an offence of that type and the range of possible sentences for the offence should be regarded as extending up to imprisonment for life. I note that no submission was made by counsel for the Crown that a life sentence would be appropriate in the present case. 194Each of the three offences had the same features aggravating their objective seriousness, including the long period of time over which the offence was committed, the acts which the prisoner performed in committing the offence and the rank which I have found that the prisoner had in the criminal group. Even in the case of the supply offence, where the prisoner's offence was to knowingly take part in an attempt by Jalalaty, the prisoner was not subordinate to Jalalaty. 195The criminal enterprise in which the prisoner participated was to bring into Australia and obtain possession of a quantity of pseudoephedrine vastly greater than the commercial quantity for pseudoephedrine set by the Commonwealth Criminal Code and also vastly greater than the large commercial quantity for pseudoephedrine set by the New South Wales Drug Misuse and Trafficking Act . I have found that the prisoner was aware of what the substance was which was going to be imported and how much of it was going to be imported. The anticipated profit from the criminal enterprise was many million of dollars and the recorded conversations between the prisoner and Jalalaty indicate that each anticipated a very large remuneration. 196It is true that no pseudoephedrine was ultimately imported or taken possession of. Why no pseudoephedrine was included in the container of rice can, on the available evidence, only be a matter of speculation and it is unnecessary to attempt to make any finding for the purpose of sentencing the prisoner. That no loss or damage was actually caused is a relevant factor in sentencing the prisoner for both the Commonwealth offences and the State offence. 197A matter seriously aggravating the prisoner's criminality was his misuse of knowledge and contacts he had acquired in his career as a law enforcement officer and the abuse of his position with the New South Wales Crime Commission. As an Assistant Director Investigations with the New South Wales Crime Commission one of his duties was to investigate drug trafficking, that is criminal conduct of the very sort in which he engaged. 198The prisoner's motive was clearly financial gain for himself. It was submitted on his behalf that remarks made by him in the recorded conversations showed that he sought money, not for the purchase of luxury items, but to clear himself of his debts. It was also submitted that some of his debts, for example money owing on the house purchased in 2006, could be attributed to the prisoner's wish to provide for his wife. It was submitted that his financial predicament was related to his commitments to his family. 199I take these matters into account. However, I consider that they afford little mitigation. The amount of money which the prisoner anticipated receiving as his remuneration went far beyond the amount required to pay off his debts. 200It was submitted that I should find a causal link between the prisoner's family situation and his wife's behaviour on the one hand and the prisoner's offending on the other hand. It was submitted that, although Dr Westmore had not drawn such a link because of a lack of history from the prisoner when he was interviewed by Dr Westmore, I could utilise the history given by the prisoner to Ms Castles. It was suggested that there was a definite temporal connection between the prisoner's offending and Mrs Standen's increased drinking and psychotic behaviour after the birth of the youngest child. However, having regard to the evidence of Dr Westmore which I have referred to, I do not consider that I should find such a causal link. I do not make any finding that Mr Standen suffered from any mental disability while he was offending. 201I find that the objective seriousness of the supply offence was above the middle of the range of objective seriousness for offences of its type. 202An important subjective factor is the onerousness of the prisoner's conditions of custody, compared with the conditions of custody of prisoners in the general prison population. The prisoner is confined alone in a small cell with a small kitchenette and a small exercise yard. For most of the period he has been in custody since his arrest he has not had any association with any other prisoner. When he has had association it has been with only one other prisoner. He has no access to any programs for prisoners. These onerous conditions of custody are likely to continue until at least the last three years of his sentence. This is an important factor in determining the length of the sentences I should impose. 203I take into account other subjective features of the prisoner, including his family situation and his relationship with his wife and with his children. He has no previous criminal convictions. He had a long and successful career as a law enforcement officer. He has suffered extra curial punishment in the loss of his career and in public disgrace and humiliation. He suffers from depression, for which he receives medication. He is unlikely to re-offend. I accept that he is distressed about his youngest child, with whom he has minimal contact, and his inability to assist her. I take into account the impact the sentences will have on members of his family and particularly his youngest child. 204In sentencing the prisoner the purposes of sentencing of general deterrence and denunciation are particularly important. I accept that there is little need for specific deterrence. 205I propose to make all the sentences I impose commence from the same date 2 June 2008, being the date on which the prisoner was arrested and from which he has remained in custody. The sentence for the conspiracy to pervert the course of justice offence will be totally subsumed in the sentences for the other two offences. The sentence for the conspiracy to import offence will be subsumed in the sentence for the supply offence. The sentence for the supply offence, which includes some additional conduct and has a higher maximum sentence, will be longer than the sentence for the conspiracy to import offence. As regards the sentences for the Commonwealth offences, there is no longer any rule about the relationship which the non-parole period of a sentence should bear to the head sentence. I propose to make the non-parole period of the sentence for the conspiracy to import offence two thirds of the head sentence. There will be no point in setting a non-parole period in the sentence for the conspiracy to pervert the course of justice offence. As regards the sentence for the State offence, it was submitted that I should find special circumstances in the onerousness of the prisoner's conditions of custody. I have already allowed for this factor in determining the head sentence. I am prepared to make a slight further allowance for it in determining the non-parole period. 206MARK WILLIAM STANDEN stand up. 207For the offence of conspiring to import I sentence you to imprisonment for 18 years to date from 2 June 2008. I fix a non-parole period of 12 years to date from 2 June 2008. The earliest date on which you will be eligible for release on parole in respect of this offence will be 1 June 2020. 208For the offence of knowingly taking part in the supply of a large commercial quantity of a prohibited drug I sentence you to a non-parole period of imprisonment of 16 years commencing on 2 June 2008 with a balance of the term of six years making a head sentence of 22 years. The earliest date on which you will be eligible for release on parole in respect of this offence will be 1 June 2024. 209For the offence of conspiring to pervert the course of justice I sentence you to imprisonment for three and a half years to date from 2 June 2008. In the circumstances including that the sentence has now expired I decline to fix a non-parole period or to make a recognizance release order in respect of the sentence for this offence. 210I will rely on the prisoner's legal representatives to explain to him the effect of the sentences, including the sentences for the Commonwealth offences. ********** 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: 08 December 2011