District Court New South Wales Medium Neutral Citation: R v Birnie [2014] NSWDC 146 Hearing dates: 05/03/2014 Decision date: 13 March 2014 Before: S Norrish QC Decision: Convicted, sentenced to a term of imprisonment by way of nonparole period of 3 years and 10 months with a balance of sentence of 2 years and 7 months. Catchwords: Criminal - sentence, supply prohibited drug (methylamphetamine) not less than large commercial quantity, standard non-parole period, aggravating and mitigating factors, objective seriousness. Legislation Cited: Drug Misuse and Trafficking Act 1985 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Hill v R [2012] NSWCCA 265 Wienand v R [2013] NSWCCA 202 Ayik v The Queen [2013] NSWCCA 119 Buttrose v The Queen [2011] NSWCCA 35 Wang v R [2009] NSWCCA 223 Markarian v The Queen [2005] HCA 25 Muldrock v R (2011) 244 CLR 120 Thomson and Houlton [2000] NSWCCA 309 Category: Sentence Parties: The Crown (Cth) Camas Birnie - offender Representation: Mr Lee - The Crown Mr P Boulten SC - offender File Number(s): 2013/00173395 SENTENCE 1HIS HONOUR: Camas Birnie appears today for sentence in relation to an offence committed by him on 5 June 2013 at Bondi Junction in the State of New South Wales. On that date at that place he supplied an amount of prohibited drug to wit 2.98 kilograms of "methylamphetamine (ice)" being an amount which was not less than the large commercial quantity applicable to that prohibited drug. This is an offence contrary to s 25(2) Drug Misuse and Trafficking Act. It carries a maximum penalty of life imprisonment and/or a monetary penalty of $660,000. It has a standard nonparole period of 15 years imprisonment. 2The prisoner was arrested on the date that the offence was finally completed, those words being apposite given the build-up to his arrest, and he has been in custody since 5 June 2013. All the time spent in custody is solely referrable to this offending. It shall be taken into account in the fixing of the sentence. The Crown has tendered a statement of facts, criminal history, a supplementary statement by one of the investigating police, a pre-sentence report and other material which has obviously all been taken into account. 3In determining the facts in relation to this matter I have taken into account the evidence given by the prisoner and the material that I accept from prisoner's evidence I have included in my factual assessment, bearing in mind that the statement of facts, or probably correctly said the agreed statement of facts, does not include any version given by the prisoner on his arrest as he exercised his right to silence. The first occasion the prisoner has disclosed any version of events in relation to the current matters is when he gave evidence. I know that he has given a history to psychologists and the Probation and Parole Service officers, but those matters really are disclosures in private before they are tendered in court. 4The prisoner, as I understand it, is now 38 years of age and he is a citizen of Canada. He was living in British Columbia and was approached by a man who he named as 'Benjamin', as I understood the spelling of the surname, 'Wha,' who was his regular marijuana supplier and requested him to assist in the delivery of a package here in Sydney, Australia. Whatever the prevarications in the evidence of the prisoner about the matter, it is clear that he must have known that he was being asked to involve himself in the supply of prohibited drugs. 5At the time that the prisoner was approached to involve himself in the criminal enterprise that leads him to this Court he was recovering from a severe motor vehicle accident in 2012 when he suffered a damaged ankle and shoulder which for over 12 months rendered him unable to undertake work in the construction industry, where he had been occupied at that particular time. Over that 12 months period he had spent a number of months living with his sister. He had, he said, no financial resources and no access to money. Although he had employment lined up on his proposed return to Sydney. 6At the time of his motor vehicle accident he worked as what was described as an industrial rope access technician, and I have seen a number of photographs which show the character of that work. The fracture and/or dislocation of his ankle and his shoulder damage obviously would have rendered him unfit to do the precarious and dangerous work that he had previously with which he had been involved. 7He said in his evidence before me that he was to receive for his involvement in this crime a return airfare between Vancouver and Sydney and $4,000 Canadian. He was given cash to purchase the airline ticket. He arrived in Australia on 17 May 2013 and initially, as I understood his evidence (I have to point out for the purposes of the record I have no transcript of last week's proceedings) he was initially to return on 3 June. 8For a period of time he lived in various backpackers premises and ultimately in early June moved into the Quest Apartments in Bondi Junction. Whilst he was in Australia the plans as he understood them of delivering a package by taxi changed. He had contact with a number of people, including a person who met him and took away his passport and his airline ticket. He also spoke to a Canadian and an Australian man who, I assume, had connections with the criminal organisation or enterprise in Canada that had recruited him. He also said in his evidence he spoke to an Asian man. 9Eventually, a few days before he was arrested, a package was dropped off for him to look after, on the understanding that he was to deliver the contents of that package, as he described it, to another Asian man. He made arrangements after the delivery of the package to meet the Canadian and the Australian at a nearby café to where he was staying. The prisoner was noticeably vague about any names and details of the people with whom he was dealing. One approaches these rather vague descriptions of events with considerable circumspection, particularly in the circumstances where a person has not chosen to provide any assistance to the authorities before he gave evidence in this court. In any event, unbeknown to him, the New South Wales Police had setup a strike force to investigate the supply of methylamphetamine by members of an organised crime syndicate based in Sydney, and particular people became targets of this investigation, including a man by the name Giang Nam Nguyen who was involved in "the large scale supply of prohibited drugs". 10On 5 June 2013 information became available that Mr Nguyen had been in conversation with another person in respect of matters obviously related to a large scale drug supply. At 2.02pm Nguyen contacted the prisoner on a mobile phone service which was registered in the prisoner's name and had a conversation "via text messaging". Nguyen requested to meet the prisoner the next day but the prisoner indicated that he was about to leave for Canada and they should meet that night, sometime about 7pm. They agreed to meet at 30 Spring Street, Bondi Junction, where I understand the Quest Serviced Apartments were located. It was not difficult for the name of the prisoner to be identified from the particulars of the telecommunication service that he was using. 11At about 6.45 pm Nguyen, who was under police surveillance, arrived at the premises carrying what was an empty backpack. The prisoner met Nguyen outside the premises and they went back inside. At about 10 past 7 Nguyen left the lifts of the Quest Apartment with the backpack strapped to both of his shoulders. He was arrested by police and police on searching the backpack found a package wrapped in redcoloured wrapping paper, having a yellow envelope attached to it. Inside this wrapping there were three Glad resealable plastic bags containing an off-white crystallised substance which later was established to be methylamphetamine, otherwise referred to in the facts as "ice" weighing a total of 2.983 kilograms with a very high level of purity of 85.5%. 12Police then went to the unit of the prisoner. They were armed with a search warrant. They found the prisoner inside the unit and they arrested him. Both prisoners were conveyed to the police station. The prisoner was in possession of a modest amount of cash, something in excess of $500. The matters that were within the possession of Nguyen are of no relevance to Mr Birnie, nor are claimed to be of any relevant to him. The prisoner when interviewed exercised his right to silence, hence the situation where he did not give a roughly contemporaneous account of what had happened. 13The prisoner at the time of this offending had no criminal convictions in Canada or in Australia. I have details about his background from his evidence, the history that he gave to a psychologist and from his mother. In relation to the other evidence in the case I firstly deal with material in the defence case, the psychology report, because it provides the most amount of detail of the two reports I have concerning the prisoner's background. The Probation and Parole Service does in general terms accord with the detail of the psychologist's report. I will refer to it in a moment. 14Mr Bradley Jones, a psychologist, prepared the report setting out the personal history of the prisoner, the prisoner's explanation to him of his offending and details of the prisoner's education, employment, history of drug and alcohol use and some assessment, not a complete assessment, by the psychologist with any skills of the psychological profile of the prisoner. Of course a number of the tests that the psychologist administered are known to this Court and known to be self-reporting tests. Thus a number of the results are very much dependant upon the reliability of the reporter. 15In conjunction with the prisoner's evidence and from the evidence from the prisoner's mother I am satisfied that the prisoner was brought up in remote areas of Canada described as the Yukon in the area between British Columbia and Alberta and Alaska. He was educated at remote schools, usually in company with many First Nation children. He displayed in his early years a great deal of oppositional behaviour and would appear to have suffered symptoms consistent with ADHD. As a consequence his education was interrupted. He went to a more urban high school for one year, on the evidence of his mother, but still left prematurely. 16He described to the psychologist that he had been working since the age of 17 in the oil fields firstly before then embarking upon a range of unskilled and semi-skilled occupations in the timber industry, road engineering, construction, and forestry exploration. I would imagine many of these occupations led to long periods of time away from urban living. He was the eldest of three children. As I understand the matter, two of his siblings are considerably younger than he. 17Between 2004 and 2009 he worked for the municipality of Whistler, an area famous for its ski resorts and walking trails. It would appear, although the details are somewhat opaque or limited, the prisoner had a relationship that broke down about three or four years before his motor vehicle accident. Also there were some issues, as I understand it, arising from the impending commencement of the Winter Olympic Games at Whistler in 2010 that led to the prisoner leaving the employment with the municipality, although he became involved in the rope technician work, which involved rope access and rope rescue work. He apparently did some work at various venues where the Winter Olympics were held. 18He ceased employment in December 2010 to travel overseas, returning to Canada in 2012 and shortly after his return he was involved in the serious motor vehicle accident to which I refer. These injuries I accept prevented him from working and caused him to have significant financial difficulties. He became reliant upon family and friends for financial assistance and shelter and was, as I said earlier, expecting to return to work after his return from Australia. As I understand his history, not only were his occupations concerned with adventurous and dangerous conditions, but also were his leisure pursuits. He claimed to have been a heavy drinker of alcohol in his teens and twenties, but that had moderated. But he had consumed over a period of time since his teens a number of prohibited drugs, as we would describe them in Australia, including cocaine, marijuana and MDMA, although he was never drug dependant, he described himself as being more a social user of drugs, or using drugs in a social context. 19The testing of the psychologist revealed current mild levels of anxiety and what the psychologist described as current "severe levels of depression". The prisoner's personality profile was that of a person of dependence, and for reasons that are not fully explained, constant feelings of guilt and selfcondemnation, a markedly deflated sense of self esteem and with an expectation of repeated personal failures. These were said to constrain his efforts to become "more autonomous or independent". 20In the context of the interviews conducted earlier this year he reflected upon becoming increasingly pessimistic about the future and brooding over past events. His personality profile revealed him to be largely timid, shy, apprehensive, sensitive to public humiliation and rejection with a willingness to accept feelings of worthlessness and guilt. In the testing there was no evidence of malingering or deception. 21Tests administered, such as the LSI-R an accredited standardised assessment measure of re-offending, revealed him to be at low risk of reoffending. It was said that factors that were protective against re-offending were what the psychologist described as "behavioural self control", emphatic concern for others, his attitude towards authority, stable living conditions in Canada, supportive family network, evidenced by his mother's presence here, as with his father's, and his sister's testimonial and future family support on release from custody. Of course, it must fairly said that some of these aspects of the prisoner's profile were somewhat missing in the course of the offending behaviour with which I am concerned. 22His agreement to come across the Pacific to commit a serious crime in this country does show a very serious lack of self control. I also found startling the prisoner's claim that when he committed this offence he did not fully appreciate the impact of illegal drugs upon others until he went to Long Bay Gaol and saw the damage that had been done or rendered to fellow inmates. One might have thought that his experience of using drugs in Canada would have made the dangers and damage of prohibited drug self-evident to him well before he came to these shores. 23Given his history of drug usage and his obvious association with drug suppliers one would have thought that the situation in Canada was not dissimilar to Australia and that in effect he should have truly been familiar with the damaging effects of drug dependence, even if he was not so drug dependant. 24The psychologist opined that he did have a tendency to minimise his behaviour, which I believe was reflected in his evidence in this court, given that his conduct in the commission of this offence was very much at odds with what I accepted of his usual self-belief system. The psychologist further opined that he committed the offence to be less reliant upon others focussing on what the psychologist described as "a positive financial outcome". I must point out this analysis by the psychologist, presumably based upon what he was told by the prisoner, is somewhat at odds with the prisoner's evidence of committing the crime for what he said either expressly, or in paraphrased form, a "paid holiday". 25The psychologist believed the prisoner "engaged in self-deception and minimisation of his offending" and failed to view his behaviour other than in isolation from the larger implications of the drug enterprise. 26I noted earlier that he viewed his behaviour somewhat in isolation from the larger implications of the drug enterprise. I am paraphrasing when using that expression the words of the psychologist, but it may be one way of putting it. I accept however the view of the psychologist that his current realisation and remorse with regards to his offending, and particularly noting his current circumstances in custody, have had a significant effect upon him and will be and have been a major salutary factor to prevent him re-offending in the future, to my mind as important as the other matters identified by the psychologist. 27Whilst the psychologist expressed an opinion that the accused is "suffering" from a "major depressive disorder, single episode, moderate," it is clear that that "diagnosis," if it could be classified as such, is concerned with the prisoner's current circumstances. The psychologist noted that this clinical condition is "relatively transient," that it was waxing and waning in its prominence and intensity depending upon "the presence of environmental stress." I take that to be another way of saying, as a consequence of being in gaol. 28Clearly having regard to the absence of any history of past diagnosed depressive illness requiring treatment, this condition that he currently suffers is reactive to his current circumstances of custody, and I accept that those circumstances are very foreign for him and present for him a very stressful environment. Unfortunately for people such as this offender, this is the consequence of committing serious crimes. He is not however a prisoner who could fear any reprisal from his employers because frankly, even allowing for what he gave evidence about in my court, he has done nothing really to cause any harm to those in Vancouver who hired him, or those in Australia with whom he dealt. On the other hand, I accept in the context of his naivety that the prisoner may well have been denied relevant information about the identity of the people with whom he was to deal here in Australia. 29The psychologist recommends a treatment program including cognitive behaviour therapy, counselling and other therapy to assist him in the future. The psychologist also noted a strong willingness and motivation to undertake a treatment program and what was described as greater insight into his offending behaviour. One must note however that it would not take a great deal of insight if one had a moderate degree of intelligence which the prisoner obviously has, to have an understanding of this particular offending behaviour given the absence of any really impulsive element of the offending. Of course, he may have impulsively agreed to the proposition from a man in Vancouver that he would fly across the Pacific and commit a serious crime in Australia, but he had the time of that flight plus almost two weeks before the delivery of the package to him to consider his situation. 30The psychologist rather optimistically noted that if he was "fortunate enough not to receive a custodial sentence...he be required to undergo therapy, et cetera, for a minimum period of six to nine months." Whilst of course I recommend he receives such psychological and medical assistance as is available in the gaol system and can be provided to him in custody, there is clearly no prospect of a non-custodial sentence for this type of offending given the maximum penalty and the guidance provided by the standard non-parole period. 31The evidence of the prisoner reveals no matter other than the personal financial circumstances of the prisoner that had any causal relationship with the offending and thus in the context of the assessment of the prisoner's presentation at the time of interview, no issue arises as might be identified from what could be loosely described as 'Hemsley' or 'De La Rosa principles' for consideration in this sentencing exercise, as was conceded in submissions. 32The Probation and Parole Service report sets out in summary much the same history, reflects upon the prisoner's tough upbringing as a child and some emotional disconnection from his parents. The report also notes the prisoner's academic underachievement, but also refers to his extensive employment history and the interruption of it by his motor vehicle accident. I accept the prisoner has a long history of employment and industry and that he is not a person who is disposed ordinarily to commit crime for financial again. The report of the Probation and Parole Service reflects upon a history of cannabis use and some abuse of Xanax after a relationship break-up and particularly after his motor vehicle accident. This was a matter not particularly dwelt upon by the psychologist. 33The report reflects upon the prisoner's financial difficulties after the motor vehicle accident but also stated that the prisoner took full responsibilities for his actions and expressed "considerable shame." The Probation and Parole 34Service officer assessed that the prisoner's conduct was at odds with his value system and that the prisoner had learned a valuable lesson. The Probation and Parole Service report suggested that the prisoner's use of Xanax may have been a contributing factor, impairing his cognitive judgment. This was a matter not particular pressed in the evidence of the prisoner nor worthy of comment in the psychologist's report. 35In assessment, the Probation and Parole Service officer noted the prisoner's "extensive network of pro-social supports in Canada" and his extensive employment history, his contrition and his low risk of reoffending given the absence of any factors that might cause him to offend, and confirmed that on his release he will be deported. 36I also have a number of references from the prisoner's parents, his mother having given evidence, the prisoner's sister and two friends. His parents speak of his loyalty to family, his problems growing up in remote areas of Canada with his ADHD, his love of adventure activities, the support that he received from his younger sister, and the effect upon him of his motor vehicle accident in 2012, affecting his finances and his security. 37The parents and his sister reflected upon his contrition and his insight into the circumstances that he currently faces. His sister, who is approximately ten years younger than him, spoke of his kindness, his selflessness, his sense of adventure and his loyalty and she, as I said earlier, confirms his financial difficulties. She felt that in the weeks before he came to Australia he was avoiding her "because he was ashamed of the direction he was headed." 38Ms Rotheram, a friend of four years, spoke of his good manners, said that he was a carefree, easygoing person, but his attitude changed just prior to coming to Australia. She was concerned about his circumstances of custody "breaking his spirit." A co-worker from the municipality of Whistler who was a supervisor, Mr Ross, described him as having a positive attitude, being honest and hardworking, with a "warm and compassionate heart." 39I have already dealt with the evidence of the prisoner in relation to his involvement in this offending. He said in his evidence before me that he regarded himself as generally a good person, but he did not understand fully the impact of "ice" upon other people. In prison he works as a sweeper, but has no visits because his family are overseas, as are his friends. He said he is unlikely to ever get into serious trouble again. He accepts his greed led him to his current circumstances. He saw this as a quick way of obtaining some money to hold him over until he got a job. 40His mother also gave evidence of his difficulties in upbringing, living in a remote community, struggling with studies, going to schools with other young children from 'First Nation' peoples, apparently affecting his capacity to succeed at school. She was concerned that after he left high school he did not have any skills, but his parents were busy raising two smaller children and they had brought the family back to an urban environment to assist with their education. She confirmed his industry and his regular employment and, as I said earlier, his various financial difficulties. She did say in answer to a question from myself that if he had asked for financial assistance that his parents would have provided it. He has been in contact with his mother three times a week and said that he was genuinely remorseful for his involvement in the offending. 41In submissions on behalf of the prisoner, learned Senior Counsel for him pointed to objective features of the matter that assisted the prisoner in the assessment contended of his role in relation to this matter. The prisoner made no attempt to disguise his identity. He booked his accommodation and registered his mobile phone service in Australia in his own name. It was conceded he had an important role, but a limited one, and his involvement was for a limited period of time. His evidence sat comfortably with the facts. It was submitted that the offending fell at the bottom range of seriousness and I should give proper regard to his absence of criminal record as a matter relevant both subjectively and the assessment of the objective facts. It was also submitted he was remorseful and that there were special circumstances. 42I was referred to three judgments which I will refer to in a moment for comparative sentencing purposes. It was conceded that no issue arose of causal connection between any mental disability or mental illness with the offending behaviour. 43The Crown submitted that the offending was within the middle range of objective seriousness but conceded his role was not clear. The Crown initially submitted that he was a "trusted member of the syndicate" that had recruited him. Certainly great trust was placed in him, but I could not conclude that he was any relevant member of a syndicate as such. The Crown submitted that I should reject his evidence about his financial reward, but noted it would be difficult to assess his real role beyond what was known from the objective facts. The Crown submitted the prisoner sought to downplay his role and had not been truthful about his remuneration. The Crown did not oppose a finding of special circumstances and conceded that the prisoner in the context of all the evidence had good prospects of rehabilitation. 44This brings me to the comparative cases, because consideration of them raises a number of issues that are obviously pertinent in this sentencing exercise and clearly a consideration of Pt 4 Div 1A Crimes (Sentencing Procedure) Act 1999. The three cases to which learned Senior Counsel Mr Boulten referred me to were the decisions of the Court of Criminal Appeal of Hill [2012] NSWCCA 265, Wienand [2013] NSWCCA 202, and Ayik v The Queen [2013] NSWCCA 119. Hill and Wienand were co-accused dealt with by the same judge at first instance but at different times, whose appeals came forward at different times. Ayik is an unrelated matter. Another judgment I have had regard, to that I was not referred to, is the decision of Buttrose [2011] NSWCCA 35, an appeal against sentence which I will refer to in a moment. 45In the matters of Hill and Wienand the total quantity of drugs supplied that was common to the two offenders in a rolled-up charge related to four supplies over a one month period of a total of 1.75 kilograms of methylamphetamine with a purity that ranged between 3% and 4%. The accused Hill had introduced the two co-accused, Wienand and a man called Robinson, with Wienand obtaining the drugs from the head of the supply chain and delivering them to Robinson at the business premises of the prisoner. The prisoner had allowed his business premises to be used for the handing over of the drugs and stood guard to ensure that no one else walked in during the exchanges. Mr Hill also passed on information between Wienand and Robinson and was on occasion a go-between in negotiations on price. He did not profit greatly financially for his role, as I understood the facts receiving $1,000 for his involvement in one of the supplies. It is a little unclear as to what he received for the others. 46Mr Hill received a substantial discount for his plea of guilty and assistance amounting to 50%. The starting point of the sentence for him at first instance was 12 years imprisonment. He ended up with a head sentence of six years and a non-parole period of four years, but on appeal the Court of Criminal Appeal adjusted the sentence to a total sentence of three years with a non-parole period of two years, with a conclusion that the learned sentencing judge had not given sufficient weight to his powerful subjective case, particularly his proven history of industry and employment with a "prodigious work ethic." He was described as being "naïve and gullible." He also had a significant clinical condition that had rapidly deteriorated in custody because of the shock to him of being in custody for the first time. His role was identified as generally "unsophisticated" with little in the way of financial advantage. He also had considerable fears of being harmed by Mr Robinson and Mr Wienand, as well as fears for the safety of his family. He was of good character with no prior convictions with proven remorse and contrition, and with timely co-operation with the authorities. 47The Judge at first instance concluded that Wienand was higher up the "supply chain" than Hill, but for reasons that are not explained and obviously required some consideration by the Court of Criminal Appeal, he made the starting point of the sentence for Mr Wienand ten years, ultimately fixing a total sentence of eight years with a non-parole period of five years and six months with a discount for the plea of guilty. Wienand, for some reason best known to himself, complained of a lack of parity with the outcome in Hill. But his appeal was dismissed by the majority. Apart from his greater role in the criminal enterprise, Mr Wienand had a less favourable subjective case and there was no suggestion of coercion as arose in Hill's matter. Wienand's criminality was regarded as below but not far below the mid-range of objective seriousness of such offences. Mr Wienand neither offered nor provided assistance to the authorities. The only positive features for him were some aspects of the objective case and some good prospects of rehabilitation. He had a minor criminal history although none for drug supply or use. 48Mr Ayik was knowingly concerned with the supply of 28.75 kilograms of heroin and sentenced by her Honour Judge Flannery to nine years imprisonment with a non-parole period of five and a half years. The value of the drugs at wholesale level was 7.2 to $8 million. The applicant's role in the offence is that he stored the drugs at his own premises for a three day period and assisted in the transfer of drugs to someone "higher in the hierarchy." That person described in the facts as 'C' received a sentence of six years imprisonment with a discount of 50% for "truly exceptional" cooperation. The sentencing judge found that he had acted, that is Ayik had acted, under duress. 49Complaint was made on appeal for Ayik that parity principles demanded a lesser sentence for him. Other issues were raised but ultimately the appeal was dismissed. The Court proceeded on the assumption that the starting point of 12 years imprisonment was within the legitimate sentencing discretion for both men but for different reasons. Complaint was also made on appeal about a failure to reflect sufficient proportionality given C's greater total criminality, a point not raised at first instance. 50One matter to be pointed out about these matters brought to my attention is the general proposition that every case is different and purported comparative cases only provide general assistance and guidance where the issue of a potential range of penalty arises for consideration from decisions of superior courts. Here, as in Hill, the accused had no prior criminal convictions and acted as a type of middleman, but Mr Hill's role was to some extent dictated by the character of his relationship with the two main players. Like this prisoner, he had an impressive established work record, but this prisoner does not have the significant psychological and medical impact upon him of incarceration, although there is impact upon him as the psychologist makes clear. Here it could be fairly said that the significance of the psychological evidence is not as great as it was in Hill. Of course, when one is comparing offenders with no prior criminal convictions who are mature adults with no significant antisocial personality disorders or prior conduct disorders, comparisons of subjective cases may only lead to marginal differences. 51Here the prisoner was concerned with the transfer to a person he would have known was taking the drugs for distribution in Australia of a quantity that was only a few grams short of 3 kilograms. The precise weight, of course, he may not have known but, of course, he had to handle it to give it to Nguyen so he could place it in the backpack so he had a general idea as to its size. He should have reasonably have known, given the fact he was recruited in Canada to come to Australia for a Canadian crime group, that the drugs had been recently imported. Of course, he would not have known the precise level of purity but the objective facts are that the drugs in question had a very high level of purity as opposed to the fact in Hill and Wienand that the purity was at street level of 3 to 4%, greatly broken down methylamphetamine. Of course, there is no evidence that Mr Hill knew what level of purity were in the drugs but as the Court of Criminal Appeal observed there, as applies here by reference to the quantity, "this was a significant quantity of methylamphetamine with a potential to cause widespread harm." It should be further pointed out Mr Hill did not undertake any special arrangements to make himself available to act as a go-between as the prisoner did here. Here, the prisoner was recruited to be the courier, flew the Pacific to Australia obviously with instructions as to how he was to contact, or be contacted by, other people he did not know; that they tracked him down as he asserts means nothing so far as his role was concerned because that arrangement no doubt suited those that recruited the prisoner. His main concern was to do the task which he had been recruited for in a manner that suited his masters. There was no element of duress. Whilst the prisoner may fear some retribution from others hence his lack of cooperation with the authorities, this has not been positively asserted. There is no evidence of any particular threat to him or his family from the failure of his involvement. 52These other cases are of some assistance in the assessment of where this offence falls by relationship to an assessment of the 'middle range of objective seriousness'. One such case also is the case of Buttrose v The Queen, a case to which I was not taken (I particularly refer to [40] - [46] of that judgment). This is a case I have been taken to on a number of occasions before in other cases as providing some assistance in a comparative way. Of course, Mr Buttrose was dealt with for a number of supply offences but those offences included one offence contrary to s 25(2) Drugs Misuse and Trafficking Act with a maximum penalty of life imprisonment and a standard non-parole period of 15 years imprisonment. Buttrose was described as a person involved in "large scale retail drug supply" over a lengthy period of time including substantial quantities of prohibited drugs with significant profits, features that are absent here. He was in possession of $1.313 million at the time of his arrest being proceeds of crime, an offence to which he admitted his guilt, this was some measure of the profit available to him and others. 53In the paragraphs above quoted the Court looked at a number of judgments involving sentences in relation to the supply of large quantities of prohibited drugs. Each of the cases cited involves significantly greater quantities of prohibited drugs than here. Of course, some of the cases quoted in the paragraphs I have cited involve significantly greater discounts for the accommodation of pleas of guilty and cooperation, although some of the cases involve no discounts at all. Such as the decision of Wang [2009] NSWCCA 223. Mr Wang was a retail dealer who pleaded 'not guilty'. When one looks at those various authorities, including the outcome in Buttrose, and sees the assessment of the offending by reference to the middle range of offending for like offences and considering relevant matters such as the character of the reward, the role of the prisoner and the like, one can better assess where this offence stands. These other judgments do provide some assistance in relation not only to the range of penalty but also the assessment of where this offence may be assessed by reference to the middle range of objective seriousness. I need not go over the circumstances of the various roles of the other offenders but I note in relation to Hill, he was assessed as being below but not far below the middle range of objective seriousness. I note in relation to Hill, of course, the Court of Criminal Appeal observed in dealing with the appeal that that assessment was not "controversial." 54On one view of it, whilst the role of this prisoner was straightforward he had the responsibility of looking after the drugs delivered to him and then delivering them to another person. In that sense, it was an unsophisticated role. I have already indicated I accept the prisoner has displayed in his evidence and by his involvement in this matter given his background a considerable degree of naivety. However, he performed this role in the context of an understanding that he was being recruited in a scheme of international drug distribution which would include consideration of the mechanisms of importing these drugs to avoid detection and did so in circumstances where he had made himself available to be contacted by other people who had been given information about his identity to enable them apparently to surreptitiously deliver the drugs to him and have him deliver them to others. The overall scheme could not be described unsophisticated, his role was important but simple. He was also disposable. I have no doubt that he was not one of the organisers or financiers of the enterprise. The Crown used the expression, in fairness to the learned Crown Prosecutor he did correct it, that the prisoner was a "trusted member" of the syndicate. I could not conclude reasonably as I said earlier that he was a "member" of any syndicate in the sense that he participated in relevant decision making and profit taking that would connote membership. 55As has been pointed out in a number of cases including the Court of Criminal Appeal decision of Lee, the sentencing judge is truly ignorant of the character of an organisation responsible for organising crimes of this type. People arrested do not carry around in their pockets organisation charts of the organisation that they represent. What the Court can do is as the High Court made clear in Olbrich, on the objective facts, assess precisely what the prisoner did. The evidence of the prisoner's mother and the evidence otherwise available as to his background and the absence of criminal convictions show that the prisoner was vulnerable to temptation. He was clearly no criminal mastermind as was his inability to disguise himself and he was clearly lured into this enterprise by the offer of short term financial gain without any real consideration of the consequences. The prisoner's naivety was reflected to some extent by the use of his own name to register at the Quest Apartments and to register the mobile service in his own name. The truth of the matter was that either because of his own lack of sophistication or because of his stupidity, or the stupidity of his masters, he was an obvious open target for the authorities who were investigating this matter. There is no evidence that this prisoner exchanged any money for the drugs that were delivered to him either, or that he delivered to Mr Nguyen. 56Having regard to what can be established as to his role and examine closely what he did in the context of the objective facts I have come to the conclusion of the objective seriousness of the offences below the middle range of objective seriousness. I do not accept the submission, if I have correctly recorded it not having a transcript, that the offending is at a 'low level'. I appreciate, of course, the authorities that indicate that the quantity of the drugs supplied are imported it is not necessarily a determinant of the objective seriousness of the offending, the role of the offender is one that may take into account the quantity but it is not determinative. I also note that the offender was recruited for a relatively short period of time to perform the middle man or warehousing function that he did without knowledge as to the precise quantity or the purity of the drugs. But he was recruited in a foreign land and he came to this country to commit a serious crime with obvious potential adverse impacts upon our citizens and residents. The mere fact that he had to travel across the world whatever the financial reward was to be in circumstances where he remained in this country for over a fortnight before he actually committed the crime making himself available to be contacted by others and readying himself for the task at hand shows his devotion to his responsibility in this regard. The prisoner had ample opportunity to reflect upon what he was doing and he could not claim he was the wrong person at the wrong place at the wrong time. He had no obligation to agree to commit the crime, he was in need of money but difficult financial circumstances are not an excuse or mitigating factor. 57In terms of matters that arise as aggravating factors under s 21A(2) the most prominent aggravating factor although it is at least implicitly a feature of this type of offending in all occasions, was that the offence was committed for financial reward. This was the aspect of the prisoner's evidence I found most unconvincing but not to the extent that would cause me to disbelieve other aspects of his evidence. I have already pointed out what he claimed that he was to receive. He seem to prevaricate as to whether he was to take his living expenses out of the modest amount he claimed he was to be paid. Even accepting for the moment that he lived cheaply for a period of time until he moved in the Quest Apartments at Bondi Junction, there clearly must have been a number of expenses he would have incurred transport, food, accommodation, cost of the mobile phone and other out-of-pockets. I cannot accept that he was only to be paid $4,000 Canadian to perform the role that he agreed to perform, but what he was to receive I cannot say. Certainly, I am prepared to accept he was not to receive anything other than a modest amount of money, in context, but the precise amount is impossible to identify. As I said in his evidence he seemed to treat this matter as a paid holiday. This is an explanation that does not sit squarely with other material suggesting that he committed the offence for out of financial necessity having no home, not having a job until he returned to Canada in June 2013 and having been the beneficiary of his sister's largesse for a period of nearly 12 months before he committed this crime. Obviously, he could not work for those 12 months but the evidence he gave did not sit squarely with his reasons otherwise express for committing this offence. So far as this is an aggravating factor, it is to be fairly said an aggravating factor to be assessed in the context of the types of financial advantage that may be received. There was obviously also a degree of planning in the commission of the offence, but so far as this prisoner's involvement in the crime was concerned, the planning that he was directly concerned with was not of such a character beyond that which would be normally expected in the commission of such an offence to make it a relevant aggravating factor pursuant to s 21A(2) of the Act. 58In relation to matters arising under s 21A(3) I accept that the prisoner was a person of prior good character without criminal convictions; that he has good prospects of rehabilitation; that he is not likely to offend again; that he has expressed remorse and taken responsibility for his actions although not in a timely fashion and that he has pleaded guilty for which he receives obviously a discreet discount. In relation to the prisoner not given any pre-trial disclosure but is warranting a finding of a mitigating factor pursuant to s 21A(3). 59With regard to this matter, of course, I am required to have regard to the amended provisions of Pt 4 Div 1A Crimes (Sentencing Procedure) Act. Section 54A(2) in its amended form now provides that: 60"For the purposes of sentencing an offender the standard non-parole period represents the non-parole period for an offence in the Table to this Division that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness." 61Section 54B(2) provides: "The standard non-parole period for an offence is a matter to be taken into account by a Court in determining the appropriate sentence for an offender without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender." 62Those other matters, of course, matters such as those that might arise under s 21A(3). The repeal of the previously worded s 54B and the phrase, "is to set" has left the situation now that the Court is to regard the standard non-parole period not of determinative significance in the sentencing exercise but one of a number of matters that are required to be considered particularly in the context of the judgment of the High Court in Markarian v The Queen (2005) 228 CLR 357, particularly in the judgment of McHugh J at [51], and of course the decision of the High Court in Muldrock v The Queen (2011) 244 CLR 120, particularly at [20] to [29]. 63In this matter, I have made a finding of 'special circumstances'. In the sentencing the offender I have concluded that I should adjust the relationship of the non-parole period to the balance of sentence. I am mindful of the fact the prisoner will be deported on his release from custody. But that is not a basis for concluding that there is not a finding of special circumstances nor should I not determine a non-parole period. The relevant matters to the determination of special circumstances of this matter are the need to provide the prisoner with professional assistance on his release to the community to adjust to community living. The fact that the prisoner whilst in custody will have various hardships of being in custody for the first time and being disconnected from family and friends. He will need professional guidance on his release to deal with some of the contributing factors to his offending particularly matters relating to his problematic use of prohibited drugs and obviously his financial management. There are also, of course, present mental health issues that may need addressing by what would ordinarily be expected of supervision. 64In sentencing the prisoner I have had regard to s 3A of the Act, the purposes of sentencing. Clearly there is a need for adequate punishment and the need to deter this offender and others from committing similar offences. The community's protection is not paramount in this matter in one sense because the prisoner per se does not present a danger to the community, although the consequences of this offending could have caused damage to the community had the drugs been disseminated. I am also required, however, to promote his rehabilitation, make him accountable for his actions and to denounce his conduct. 65As I foreshadowed to the prisoner taking all relevant matters into consideration I have concluded that the starting point for any sentence to be imposed should be a term of eight years six months imprisonment with a discount of 25% for the utilitarian benefit of the plea of guilty in accordance with the guideline judgment of Thomson and Houlton, the sentence to be imposed will be six years and five months imprisonment. As I have earlier indicated, I have concluded there are special circumstances I thus propose to fix a non-parole period of three years ten months with the balance of sentence of two years seven months. Thanks very much, Mr Birnie, you can stand up. 66In relation to the offence to which you pleaded guilty you are convicted. You are sentenced to a term of imprisonment by way of non-parole period of three years and ten months that shall date from 5 June 2013, the date you came into custody, and expire on 4 April 2017. I fix a balance of sentence of two years seven months to expire on 4 November 2019. It will be a matter for the Parole Authority whether you are released to parole, I cannot direct that you be released to parole at the expiry of your non-parole period. You can take a seat, thanks very much. 67HIS HONOUR: Yes, Mr Crown, any technical matters from you, any matters from you, Mr Hanna? 68HANNA: Your Honour, only in relation to the discount, the sentence after your Honour takes into account the 25% discount. It maybe a matter on which nothing turns but if I could just bring it to your Honour's attention, your Honour stated that the starting point would be eight years and six months with a 25% discount that is six years and five months. I accept that there is no requirement for the discount to be exactly 25%. 69HIS HONOUR: I should have explained, I have rounded up the total sentence but I have rounded down the non-parole period. Would you like me to round up the non-parole period, Mr Hanna? 70HANNA: Certainly not, your Honour. 71HIS HONOUR: No, seriously, would you like me to do that? 72HANNA: Certainly not, your Honour. 73HIS HONOUR: I apologise to you, I should have said, I have rounded it up to an even month so I have brought it up to 77 months but I have rounded down the non-parole period about .3 of a month. 74HANNA: Thank you, your Honour. 75HIS HONOUR: What I have given away with one hand I have taken back with the other. 76HANNA: Thank you. 77HIS HONOUR: I do not think to the detriment of your client, with respect. Yes, thank you, Mr Birnie, you are excused. ********** Amendments 01 October 2014 - Grammatical errors amended Amended paragraphs: Judgment [53] 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: 01 October 2014