District Court New South Wales Medium Neutral Citation: R v Fitzsimmonds [2018] NSWDC 470 Hearing dates: 4 December 2018 Date of orders: 04 December 2018 Decision date: 04 December 2018 Jurisdiction: Criminal Before: Neilson DCJ Decision: Head sentence of nine years imprisonment. I discount that by 25% for the utilitarian value of the offender's plea of guilty. That reduces the head sentence to six years and nine months. Non-parole period for this offence is four years and six months. Parole for a period of two years and three months. The sentence must commence at the time the offender was taken into custody on 16 February 2017. Catchwords: CRIME – SENTENCE – Attempting to possess an unlawfully imported border controlled drug, 39.52 kgs of methylamphetamine – offender involved with a Chinese syndicate which imported 118.24 kgs of methylamphetamine collected nearly 40 kgs of that substance from another (unknown to him) at Auburn and transported to Wiseman's Ferry where he was arrested - offender had been promised by a person in Hong Kong about one and a half months earlier A$2000 to "pick up some bags in Sydney" – offender trusted with a large quantity of the drug – 42 year old male with 2 dependent teenage children with long history of drug addiction and personal difficulties – sentence of 6 years 9 months, NPP 4 years 6 months Legislation Cited: Criminal Code Act 1995 (Cth) Crimes Act 1914 (Cth) Cases Cited: Chan, Lo and Nguyen v R [2010] NSWCCA 153 Dao v R [2011] NSWCCA 183 Lau and Lau v R [2014] NSWCCA 179 Luong & Anor v DPP (Commonwealth) [2013] VSCA 296 R v Phelps [2018] NSWCCA 192 Xiao v R [2018] NSWCCA 2 Yu v R [2016] NSWCCA 73 Zhang v R [2010] NSWCCA 105 Category: Sentence Parties: Regina (Crown) Bradley Ross Fitzsimmonds (Offender) Representation: Counsel: Ms S Hatch (Crown) Mr I McLachlan (Offender) Solicitors: Solicitors for the DPP (Crown) Not recorded (Offender) File Number(s): 2017/00050667 Publication restriction: Nil Judgment 1. HIS HONOUR: Bradley Ross Fitzsimmonds stands for sentence as a consequence of having pleaded guilty to a charge of that between 16 February 2017 and 17 February 2017 at Wiseman's Ferry in this State he did attempt to possess a substance, the substance having been unlawfully imported, the substance being a border controlled drug, namely methylamphetamine and the quantity possessed being a commercial quantity. 2. The commercial quantity of methylamphetamine is 750 grams. As this is a Commonwealth prosecution the amount in question must be the pure drug. The 750 grams represents pure methylamphetamine. The offender attempted to possess 39.52 kilograms of pure methylamphetamine. As the Crown submissions state that was 52.69 times the commercial quantity threshold. The offence in question is one contrary to s 307.5 of the Criminal Code. The maximum penalty for this offence is imprisonment for life and/or a fine of $1,575,000. 3. The offender was scheduled to stand for sentence with Ho Pan Chan, but for some reason Chan was unable to be sentenced today. The offender's offence was secondary to the importation into Australia by Chan of a much larger quantity of methylamphetamine, namely 118.24 kilograms of the pure substance. Facts 1. On 1 February 2017 a sea cargo consignment, purportedly consisting of kitchen utensils, arrived at Port Botany aboard the SC Mara which had sailed from Hong Kong. The consignor was said to be CHL Supply Chain Services Ltd of Hong Kong and the consignee named on the bill of lading was Rachel Ray (Digital) LLC of 5 Percy Street, Auburn. The gross weight of the consignment was 1,637.6 kilograms. 2. Between 7 and 9 February 2017, the Australia Border Force and Federal Police conducted an examination of the consignment. It contained 142 large brown cardboard boxes and 240 small cardboard boxes, each labelled, "Chef's Expert" utensils. An x-ray of the 142 large cardboard boxes displayed anomalies. Within the 142 large cardboard boxes were found four smaller boxes. Each smaller box contained plastic kitchen utensils in cardboard display trays. Concealed under each display tray was a plastic package between two sheets of white A4 paper. Each plastic package held a clear plastic clip-seal bag containing a clear plastic sealed bag which in turn contained a vacuum sealed bag containing an amount of white crystalline substance. A total of 568 vacuum sealed bags were found concealed in the consignment, each containing an amount of white crystalline substance which on testing was established to be methylamphetamine. The gross weight of the powder was 147.89 kilograms with a purity of 80%. The calculated pure weight of the methylamphetamine was 118.24 kilograms. 3. In order to obtain custody of this imported material, Chan had rented a storage unit at Kennards Self-Storage facilities at 5 Percy Street, Auburn. On 2 February 2017 Chan applied for registration of a company under the name of Rachel Ray (Digital) LCC Pty Ltd with the registered place being Station Street, Auburn and with Chan as the sole director of the company. Eventually by means of subterfuge Chan arranged for what he thought was the consignment sent from China to be delivered to the Kennards Self Storage facility at 5 Percy Street, Auburn, and delivered into the unit which he had rented in the name of the consignee, unit 1011. In the meantime the Australian authorities had substituted the methamphetamine with an inert look-alike substance. The consignment was delivered to the address at 5 Percy Street, Auburn on 13 February 2017 and was unloaded and stored in the unit rented by Chan. 4. On the following day the present offender, Fitzsimmonds, used a telecommunication service ending in 136 to communicate via WeChat with a contact displayed as "Belle" which was using a Hong Kong telecommunications service ending in 3172. Fitzsimmonds identified himself by transmitting a photograph of a $5 Australian banknote with a given serial number. This is a common way in which those dealing in drugs or money identify themselves to the satisfaction of those higher in the chain of command of whatever illegal syndicate is involved. 5. The communication between "Belle" and the offender had to do with making arrangements for Fitzsimmonds to provide transport. Belle informed the offender that the transportation would not be required on the day of communication but it might be on the following day, or a following Thursday. In the communication it is clear that the current offender was somewhat impatient, having been forced to wait for contact for over one hour. The communication ends with Belle saying this: "Just got a call from Boss, will call you at 10am to arrange. Remember to buy battery for weight machines. Check weight fifty." 1. The word "fifty" could refer to the fact that the gross weight of the drug which the offender was eventually to receive was 49.4 kilos. 2. Amongst other things, Chan attended the Auburn shopping centre and purchased large blue suitcases and pink backpacks from Big W and travelled with those purchases to the storage unit in Percy Street. He then, at Percy Street, gained access to the 568 vacuum sealed bags containing the methamphetamine substitute and placed those vacuum sealed bags into either black garbage bags, three blue hard-shelled suitcases, and two pink backpacks. 3. Later, on 16 February 2007, there was a further chat between Belle and the current offender via WeChat. Again in it the offender complained about having to wait for instructions using some very colourful language, including a very colourful but typical Australian simile. Later on that day at 2.08 Chan again attended the 5 Percy Street address and entered storage unit 1011. About 2.42pm a white van attended the front of the Kennards hire facility unit and they loaded into that white van three hard shell suitcases containing what eventually was found to be the 39.52 kilograms of pure methamphetamine. 4. The white van left 5 Percy Street at 2.45pm and then drove erratically around Auburn where Chan alighted on the nature strip with the three blue suitcases in Verona Street. There were telecommunications between the offender and Chan on this day. It is clear that precautions were being taken lest the movement of the three blue bags intercepted or be thought to be suspicious. 5. Initially Chan told the offender to go to Auburn Railway Station. When he reached there Chan told him to go to 22 Gibbons Street, Auburn between 2.30 and 3pm. The offender did so and said that he was outside in a red four wheel drive. He was then instructed to wait and that wait could be perhaps an half hour or longer. Later the offender said that he in his red four wheel drive vehicle was on the corner of Rose Street. Chan instructed him to make a U turn and go to 10 Gibbons Street, which is what the offender did. The offender was driving a maroon Suzuki Vitara registered number YAT 632. When he drove up towards Chan he stopped with the vehicle and spoke with Chan. During the conversation the offender handed Chan another Australian $5 note with a particular serial number. That permitted Chan to handover the three blue suitcases to Fitzsimmonds and they were placed in Fitzsimmonds' vehicle. Chan left the area on foot. 6. Fitzsimmonds drove the Suzuki with the three blue suitcases to Wiseman's Ferry, where he boarded the ferry in his Suzuki. Fitzsimmonds then sent a message to Belle via WeChat, telling Belle that he was back at Wisemans, meaning back at Wiseman's Ferry and Belle responded "One-two-three death check". The significance of that message is unclear. Arrest and Searches 1. On 16 February 2017 at 4.32pm the offender was arrested by Australian Federal Police Officers whilst he was on the Wiseman's Ferry in his Suzuki vehicle. At the time of his arrest the three blue suitcases were observed in the boot of the vehicle. The offender was cautioned and read his rights under the Crimes Act 1914 (Cth). The offender then made certain admissions to the police. They were these: 1. He had been approached by a person in Hong Kong about one and a half months earlier who offered him A$2,000 to pick up some bags in Sydney upon his return to Australia. 2. He had not received any contact until that day when he received a text message telling him where to go to collect the bags. 3. He did not know the person from whom he collected the bags and could only describe him as a "Chinese man". 4. He had been told by text to go to Wiseman's Ferry, travel on the ferry to the other side of the river, at which point he would be contacted with instructions on where to go after that. 1. Initially the offender agreed to assist the Australian Federal Police. At about 5.03pm Australian Federal Police Officers took possession of the Suzuki and drove it to the vicinity of the Rosevale Caravan Park on Wiseman's Ferry Road, as directed by the offender. However, he then withdrew his assistance at about 6.30pm. 2. At the time of his arrest the offender was found to have on him a ZTE Smartphone with a telecommunications service ending in the number 264 and a Huawei Smartphone ending in the number 136, the service that he used to communicate with Belle via WeChat. He was also found to have a wallet containing various identity cards. 3. At 9.20pm on the day of his arrest the Australian Federal Police executed a search warrant at the offender's then address at Wrights Creek in this State. They found an international drivers licence in a foreign language, an Australian passport in the offender's name, a small glass pipe, a large spoon with white residue, two small plastic cups with white residue of a crystallised substance and small clip-seal bags containing a crystallised substance. Subsequent testing showed traces in the pipe, spoon, cups and bags of traces of cocaine and methamphetamine. That merely establishes that the offender himself had a drug habit. Offender's Role 1. As has been submitted by the Crown, a critical consideration for the Court is to determine what the offender did in participating in the drug importation. The Court should have regard to the role played by an offender and the particular activities undertaken by him or her in performing that role. Care must be taken to ensure that a shorthand description of the offender's role does not obscure an assessment of what the offender actually did. Where the evidence establishes the acts performed by the offender and his or her position within the criminal organisation, the criminality of the offender is to be assessed by consideration of both the offender's actions and his or her role in the organisation or syndicate carrying out the drug importation. 2. The offender admitted to the police that he had been approached by someone in Hong Kong about six or seven weeks earlier to pick up some bags in Sydney when he returned to Australia, in consideration of payment to him of $2,000. Only the most naïve of persons would believe that this was because of some lawful activity. The offender must have known that he was being recruited to perform some criminal act for somebody based in Hong Kong. It is clear that he knew how to communicate with Belle. He was using a Hong Kong telecommunications service and indeed he referred to needing to speak to Hong Kong to obtain instructions. He had also been introduced to the system of using $5 notes to identify himself or to have another identify himself or herself to him. The offender knew that he was waiting for something to pick up and transport elsewhere. He dealt with Belle on WeChat and then by text message with Chan on 16 February 2017. He was prepared to take possession of three bags containing a gross weight of 50 kilos and transport them. 3. He was trusted. The commercial value of almost 50 kilos gross of methamphetamine is not given in evidence. To me it would be substantial. He was trusted by those in the syndicate to transport the material and therefore must have been decided by the others to be reliable. He transported the material from Auburn to Wiseman's Ferry and, but for interception by the Australian Federal Police, may have transported it elsewhere, which is what he told the police he was supposed to do. 4. It is unlikely that the offender was to distribute nearly 50 kilograms of gross methamphetamine to drug users. It is highly likely he was to convey the drugs to someone who would distribute it to other drug dealers and then the drugs might be sold on to drug users in the community. 5. It would be erroneous to merely classify the offender as being a "courier". He knew something of the mechanics of the importation and was taking an active part in moving a substantial quantity of the imported substance out of Sydney. He was dealing with roughly a third of the total importation. 6. That having been said, there is no evidence to suggest that he had previously known or met Chan and there is no evidence to suggest that he knew eventually where the drugs were to be delivered. However, he was a trusted member of the organisation and the principals of the importation were clearly prepared to accept the offender as a trustworthy transporter of its goods. 7. The mere weight of the three bags which the offender took into his possession must have alerted him to the fact that he was dealing with a large quantity of some illegal import. It is likely, albeit I cannot find beyond reasonable doubt, that the offender knew that it was illegal drugs. As I shall eventually show, the offender was himself used to dealing with illicit drugs. It is fortunate indeed that the original consignment was intercepted and that with which the offender was dealing was an inert substance which even if it had made its way into the community would not have caused any harm because it would not have led to drug overdoses and perhaps even deaths. Personal Circumstances 1. At the time of this offence the offender was 42 years old. He is now 44 years old. The offender has not given evidence but relies upon a report of a psychologist, Ms Laura Durkin, who interviewed the offender for two hours on 30 November 2018 at Long Bay Gaol. As has been very properly submitted by learned counsel for the offender, there was no attempt by Ms Durkin to "sugar coat" his client's history or background. Her report is, in my view, objective, bearing in mind the many psychologists' reports I have read over many, many years when sentencing many, many offenders. The offender was raised in North Turramurra and appears to have lived most of his life in the northern regions of this city. He is the younger of two children born to his parents. His father died of prostate cancer in 2016. The offender left home at the age of 14. He did so by going to live with family friends, but 12 months after that secured his own accommodation. That is an early age in which to start living by oneself. However, the offender described his childhood years to Ms Durkin as years in which he was largely unsupervised by his parents and left to his own devices and was offered little, if any, support, guidance, affection or attention. 2. After reporting that the offender obtained his own accommodation about the age of 15 or 16, Ms Durkin said this: "He denied being homeless at any point since, but it sounds that he has struggled to maintain stability, or at least experienced significant pressure in that regard. In that context, Mr Fitzsimmonds repeatedly discussed his drive for 'survival' which seems to be underpinned in his mind by factors such as stable accommodation and the acquisition of money. He appears to have formed the view that, through these means, he will be safe and protected and his life will be stable and sufficiently comfortable. As such, he has apparently spent much of his time in pursuit of such, which it is argued has been a significant source of stress for him." 1. Ms Durkin then went on to point out that the offender has had little, if any, contact with his nuclear family or other family members since he left home. The offender told Ms Durkin that he was below average academically and was regularly in trouble at school for minor fights, disruptive behaviour and defiance. He left school at the end of year 8. 2. He commenced an apprenticeship as a painter and decorator, but only did that for two years when the business that he was working for closed down. In any event he found that he was not particularly interested in painting and decorating. He did not continue with his apprenticeship. He then started working in various labouring roles, including within the construction industry and landscaping and he had also been farming cattle, goats and chickens while also selling rare plants such as orchids. For 12 months in 2010 he was the sole caregiver for his children and was not in employment during that time. The offender denied to Ms Durkin being terminated from any employment, or being disciplined in the workplace. 3. The offender has had three significant intimate relationships. The first was one he commenced when he was 21, but unfortunately his partner died at the age of 20 after being hit by a motor vehicle. The offender told Ms Durkin that he struggled to describe how he coped with her death. To do that he moved to Western Australia for "approximately two years". The offender's second significant relationship began in 2002, which means when the offender was about 28 years old. Early in the relationship his second partner became pregnant and a child was born in 2002. A second child was born in 2003. Those children would now be approximately 16 and 15 years old, perhaps a year older, perhaps a year younger. In about September 2016, five months before the offender was arrested for the present offence, the children's mother sought contact with their children. The offender's relationship with his second partner ended about 2006, but the children remained with the offender because their mother had developed a drug dependence. When in September 2016 the children's mother sought contact with the children, they moved to live with her. However, after the offender was arrested, the children were abandoned by their mother and they are now living with family friends. According to the history given to Ms Durkin the offender commenced a further relationship in about 2014, but the couple had never lived together and the description of the relationship provided to Ms Durkin indicates that it is probably merely a casual friendship. 4. The offender commenced using cannabis at the age of 13. In fact the history obtained by Ms Durkin is that the offender commenced regular use of cannabis at the age of 13. Initially he was smoking a gram of the substance a day, but that increased to 5 grams per day during the course of the offender's adolescence. According to Ms Durkin the offender was abusing cannabis until the time of his recent incarceration. She believed, despite what the offender told her, that the offender's use of cannabis was consistent with his being dependant on the substance. The offender has tried many other illicit drugs. In mid-adolescence he commenced using amphetamines, commonly known as speed. He sometimes injected that drug. He was at least a weekly user of that drug until about the age of 28. In the late 1990's and early 2000's the offender reported he also used methylamphetamine, but denied being dependent upon the drug. It would appear from what was found at the offender's home at the time of the execution of the search warrant that he was still using methylamphetamine up to the time of his arrest. The offender also said that he used LSD between the ages of 14 and 18 and had tried opium and heroin on four occasions. He tried magic mushrooms on a trip to Amsterdam and other vegetable drugs. It is clear that the offender has also used cocaine, because traces of it was found at his home on the execution of the search warrant. 5. The offender has a criminal history, which, unsurprisingly, commenced with the possession of prohibited drugs and the possession of equipment used for administering prohibited drugs at the age of 17. At the age of 22 he was found to have a cultivated prohibited plant, namely, cannabis. For that offence he was sentenced by a judge of this Court sitting at Penrith on 12 December 2007. He was sentenced to 18 months imprisonment with a non parole period of nine months. Prior to that sentence being imposed he committed an offence of stalking or intimidating with intent to cause fear of physical or mental harm, a domestic violence offence, and also failed to appear in accordance with a bail undertaking. For those offences he was sentenced to imprisonment for one month. 6. The offender's other criminal history was in that two year period when he was in Western Australia. It appears that in early 2001 he was charged with a Commonwealth offence of knowingly obtaining a payment to which he may not have been entitled. He was due to appear in the Perth Court of Petty Sessions, but failed to do so. A warrant issued for his arrest in April 2001. It it is still outstanding. When he was leaving Western Australia the offender was found to be in possession of cannabis and appeared before the Court of Petty Sessions at Eucla and was fined $100 for possessing cannabis and $150 for possessing an implement for smoking that substance, perhaps a pipe or a bong. 7. In her report Ms Durkin questioned the offender about his medical history. The only thing that the offender told her that is of significance is that the offender has significant dental problems and all his teeth now require urgent removal and replacement. He went on to tell Ms Durkin that the promise of $2,000 was money that he was hoping to use to pay for the necessary dental treatment. 8. Concerning the offences Ms Durkin's report says this: "Mr Fitzsimmonds has pleaded guilty to the offending currently before the Court and he agreed with the account outlined in official documentation. He reportedly engaged in this offence for financial gain, noting that he was hoping to obtain enough money to pay for the removal of his teeth. That suggests that Mr Fitzsimmonds struggles with pro-social problem solving, as it is evident there are other means to achieve that goal. Consistent with that, his account also indicates that Mr Fitzsimmonds maintains permissive views about criminal conduct. He said that others would have perpetrated the offending if he did not; that his conduct was 'not like [he was] taking money off mum and dad' drug buyers; and he believes it is necessary to prioritise his own needs, and his family's needs, before the wellbeing of others. To Mr Fitzsimmonds' mind, again, this offending was for the purpose of survival. Providing some additional explanations for the offending, Mr Fitzsimmonds advised that he was introduced to the other offenders by an associate, he claimed to have been doing a 'favour' by engaging in this crime, minimising his culpability to some extent. He also claimed to be disinclined to participate in the crime at the time, but his loyalty to his friend apparently encouraged him [to] engage in the offending. Mr Fitzsimmonds said that he respects the role of police and understands the importance of laws, but he has always struggled to abide by regulations and respond to authority, and he reportedly disagrees with many laws currently in place. For instance, he discussed the lack of justice in fining minor offenders for driving related crimes. However, he acknowledged that drug laws are important and necessary and that 'ice', in particular, is a 'terrible' drug. He added that he is 'remorseful' and 'ashamed' of his conduct in this case and distressed by the impact his behaviour is having on his children. Although Mr Fitzsimmonds is reportedly understandably stressed about the wellbeing of his children, he is apparently otherwise coping satisfactorily with his period of incarceration. There is a possibility he will receive treatment for his teeth in custody." 1. Ms Durkin tells me that the offender's use of drugs has had a significant and impairing impact on his life and wellbeing. She also points out that it may have caused tension and difficulties in his relationships with others. The offender could hardly have realised the development of such problems when he took up smoking cannabis at the age of 13. That, to an extent, decreases his culpability for much of his offensive behaviour since that time. By offensive behaviour I mean his resort to drug taking and other criminal activities. It may also ameliorate his culpability for many aspects of his character. 2. On testing, using standard psychological tests, the only notable elevation for this offender were 'antisocial traits'. Those antisocial traits indicate that the offender struggles to operate within society's boundaries. He also considers himself to be a thrill seeker and risk taking individual who is both irresponsible and unreliable. Ms Durkin also refers to egocentric behaviour. 3. The report makes it difficult for me to make any well informed finding concerning the prospects of rehabilitation. True remorse does not come through. Undoubtedly the offender is unhappy with his behaviour which has caused real problems for his children. But that is concern about his own wellbeing and not the wellbeing of the community which he has hurt by his offending behaviour. He should realise that drugs destroy lives or make lives very unhappy. They destroy families, they destroy relationships, and the offender was engaged in seeking to distribute unlawfully imported drugs. That is what he should really feel sorry about. However, the offender is now, as I said, 44 years old. He is looking at a substantial gaol sentence and that ought be sufficient deterrent for him and for others no to engage in such conduct again. 4. Ms Durkin recommends courses that could be undertaken by the offender both in custody and whilst on parole. The best thing for me to do is to forward a copy of the report with my remarks on sentence to Corrective Services so they can use the material in plotting the future for this offender both in custody and on parole. SENTENCE 1. The majority of time spent at this sentencing hearing has been taken considering what might be thought to be comparable cases. The Crown has referred me to Zhang v R [2010] NSWCCA 105, Dao v R [2011] NSWCCA 183 and Yu v R [2016] NSWCCA 73. Mr McLachlan has referred me to Chan, Lo and Nguyen v R [2010] NSWCCA 153, Luong & Anor v DPP (Commonwealth) [2013] VSCA 296, Lau and Lau v R [2014] NSWCCA 179 and R v Phelps [2018] NSWCCA 192. None of those cases could be seen to be exactly on point with the current one and trying to use comparable cases can lead to error. Every case must be decided on its own facts by reference to not only the decided cases but the maximum penalty of life imprisonment and to the acts of the offender which brings him before the Court. 2. I have come to the view that I should commence this sentencing exercise with a head sentence of nine years imprisonment. I discount that by 25% for the utilitarian value of the offender's plea of guilty following upon the decision of the Court of Criminal Appeal in Xiao v R [2018] NSWCCA 2. That reduces the head sentence to six years and nine months. I then must turn to the non parole period. It appears to me that the appropriate non-parole period for this offence is four years and six months, meaning that the offender will be on parole for a period of two years and three months. The sentence must commence at the time the offender was taken into custody on 16 February 2017. 3. Bradley Ross Fitzsimmonds, on the charge that between 16 and 17 February 2017 at Wiseman's Ferry in this State you did attempt to possess a substance, the substance having been unlawfully imported, the substance being a border controlled drug, namely methamphetamine, and the quantity possessed being a commercial quantity, you are convicted. I sentence you to imprisonment for six years and nine months. I fix a non-parole period of four years and six months. The sentence commences 16 February 2017. 4. I direct that my remarks on sentence and a copy of exhibit 2 be attached to it and sent to the Department of Corrective Services. ********** 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: 27 February 2019