R v AA

R v Engert (1995) 84 A Crim R 67 R v Hemsley [2004] NSWCCA 228 Cameron v The Queen (2002) 209 CLR 239 R v Thomson and Houlton (2000) 49 NSWLR 383 R v Bugeja [2001] NSWCCA 196 R v Otto (2005) 157 A Crim R 540 R v El Hani [2004] NSWCCA 162 DPP v Sukkar [2006] NSWCCA 92 CASES CITED: R v NP [2003] NSWCCA 195 JMS v The Queen [2010] NSWCCA 229 R v Jimmy [2010] NSWCCA 60 R v Henry (1999) 46 NSWLR 346 R v Blackburn & Walters [2001] NSWCCA 121 Yardley v Betts (1979) 22 SASR 108 Pearce v The Queen (1998) 194 CLR 610 R v Bernier (1998) 101 A Crim R 444 R v Riddell [2009] NSWCCA 96 R v XX [2009] NSW 115

PARTIES: Regina AA

COUNSEL: Mr Y Shariff - Commonwealth Crown Ms J Ghabrial - Offender

1 The prisoner, AA, has pleaded guilty in this court, having previously pleaded guilty at the Local Court, to a charge of importing a commercial quantity of a border controlled drug, namely cocaine, contrary to s.307.1(1) of the Commonwealth Criminal Code "on 1 April 2009 at Mascot" and a further charge of between 2 and 12 April attempting to traffic in a commercial quantity of a border controlled drug, namely cocaine, contrary to s.302.2(1) of the same Code.

2 The maximum penalty for each offence is life imprisonment and/or a fine of $825,000. The prisoner has been in custody since his arrest on 12 April 2009, although he was not charged with the current offences until 14 April 2009.

3 The evidence in this matter, including the statement of facts and the prisoners evidence, establishes that AA is a citizen of Canada, who came to Australia on 17 November 2008 for the sole purpose of "shepherding" importations of cocaine into this country, sent by other persons in Canada.

4 The current charges arise out of the fact that on 1 April 2009 an air cargo consignment consisting of four cardboard boxes arrived in Sydney from Canada on an Air Canada flight. The prisoner was described as the "consignee", with his address details at [PART OF JUDGMENT NOT FOR PUBLICATION] NSW on the consignment note. The consignor was purportedly an auto parts business in British Columbia Canada.

5 The consignment was examined by Customs officers and found to contain a white powder concealed in the spokes of one of four wheel rims which constituted the consignment. Testing revealed the white powder to contain cocaine, the consignment was thus seized by the AFP and without too much difficulty the prisoner's identity was established, given the details on the consignment note.

6 When the prisoner had arrived in Sydney, he obtained a tourist visa and then a bridging visa. The prisoner received three other consignments on 30 November 2008, 9 December 2008 and 20 February 2009, by air cargo from Canada, these consignments having the same consignor's details. The goods delivered on 30 November 2008 were described as "hydraulic auto parts and accessories". The goods consigned on 9 December 2008 and 20 February 2009, each being described as "four aluminium wheel rims". These items were never the subject of any Customs inspection. On 21 March 2009 the prisoner exported a consignment to Canada, comprising four packages each containing one alloy wheel which was examined before export. This was examined by Customs when it left Australia. Three of the four wheel rims on presumptive tests indicated traces of cocaine. Thus, it would appear that the prisoner had at least received on one occasion a consignment of wheel rims which had some unknown quantity of cocaine in them. The prisoner has admitted in evidence, under protection of a certificate issued pursuant to the Evidence Act, that there had been a previous importation of cocaine.

7 The seizure of 1 April 2009 led to further investigation and ultimately the Federal Police identified 8.951 kilograms of white powder which contained 6.416 kilograms of pure cocaine (calculated on the usual sampling method). The cocaine is estimated to have a wholesale value of between $1.655 million and $2.237 million and a 'street value' considerably higher.

8 The consignment was reconstructed, putting in an inert substance as replacement for the cocaine, and on 3 April 2009 the prisoner provided authority for customs brokers to act on his behalf to finalise the importation. He paid a total of $1,436 for customs clearance and other charges by the use of a credit card in his name.

9 There was a controlled delivery to the prisoner's address at [PART OF JUDGMENT NOT FOR PUBLICATION], where he rented a flat, on 6 April and lawfully conducted telephone intercepts revealed conversations between the prisoner and another person where the prisoner said, "It is done".

10 By lawful methods of surveillance the investigators were able to establish directly that the prisoner removed one wheel from one of the four packages, dismantled it using power tools and then put the outer rim back in its original packaging. The prisoner then used a hydraulic machine to remove the metal insert from one of the spokes and removed a plastic bag containing the substituted material from a cavity behind that metal insert and examined its contents. He replaced the plastic bag containing the inert substituted material into the cavity of the spoke of the dismantled wheel hub.

11 On 7 April 2009 the prisoner was visited by a man called DD. During the visit the prisoner described his role in relation to the importation of the cocaine for which he said he was to receive $20,000. The prisoner complained to DD that he did not think that it was "coke", that it "looked like fucking flour" and that he was "not doing it until he (got) the go ahead". The prisoner further deconstructed one of the wheels and removed the inert material. Later that day he would appear to have rung one of his Canadian or overseas contacts to advise that "something was not right". He purchased a large plastic container at a supermarket after that call and then returned to continue to deconstruct the remaining wheels, smelling and tasting the contents of each plastic bag as it was removed. The prisoner reported by telephone in a number of conversations to an overseas contact how many wheels had been deconstructed and commented upon the quality of the material that had been delivered. There was obvious concern by the prisoner and his contact that the goods had been tampered with by others.

12 Subsequent conversations between the prisoner and this contact highlighted the fact that this was not the first importation of cocaine. This particular importation being described as "easy" this time, that there were "some things that are different than before", discussion of the concealment method on "the last two times", and other comparisons with previous events.

13 On 10 April 2009 the prisoner also discussed with his contact removing the wheels from his premises and this was arranged with a person known as BB.

14 On 11 April 2009 the overseas contact, in an intercepted telephone conversation, suggested that the prisoner should be prepared to "give out a little" that day. Subsequently the prisoner repackaged the inert material into plastic bags, sealing those bags with grey electrical tape. Police would appear to have intercepted the wheels on the 12 April 2009 at BB's premises and on the same day executed a search warrant upon the prisoner's premises where they found seven plastic bags sealed with grey electrical tape each weighing approximately one kilogram containing the substituted material, three mobile phones, the metal inserts used to conceal the cocaine in the spokes, scales, clip seal bags and other documentation and items consistent with the importation. The prisoner was arrested at 4.15 pm on the same day and conveyed to the AFP headquarters. He spoke to a lawyer but offered his cooperation to the authorities over the next two days before he was formally charged. This cooperation, in my view, is clear evidence of remorse by the prisoner. The cooperation he offered was clearly timely, genuine and forthright, although at that point not complete. I will discuss the issue of his cooperation when I deal with the other evidence on this matter.

15 On 22 April 2009 although charged and in custody he returned to the AFP Sydney office and participated in a taped interview with police and made various admissions concerning his involvement in the importation summarised in the statement of facts. I have also been provided with the interview transcript. The prisoner indicated in that interview that the various one kilogram units that he packaged where to be given to another person and that he was to be paid between $15,000-$30,000 for his activities in relation to the consignment. He admitted coming to Australia for the purposes of making money through his involvement in the importation of drugs and that he had been provided with money to travel to Australia and paid living expenses during his stay. His evidence before the Court revealed that he was initially paid the sum of $10,000 for airfares and initial expenses. He was paid other moneys for expenses at fortnightly or so intervals although at one point he was required to borrow approximately $6,000 either because there was some delay in expenses being provided to him or a refusal to provide further moneys for expenses.

16 He told the interviewing police that he had committed the offence under the pressure of financial difficulties, having lost his job and having been threatened with the loss of his home in British Columbia arising out of his addiction to drugs.

17 The prisoner was experienced in the use of cocaine. He was recruited some weeks before he came to Australia, he said because he was indebted to drug suppliers in Canada for cocaine and other drugs he had abused for some years until 2008. He was in a desperate situation financially and the trip to Australia was not only a means of meeting some of his financial obligations, it gave the prisoner a break from the pressures and an extended holiday in Australia. I had concerns as to why a drug dependant person would be recruited for this important task, but ultimately I am satisfied that his desperation made him a dependable recruit. Further, he is very engaging and presentable.

18 He was also recruited because he could be trusted and relied upon, in the view of those who recruited him. I refer to the lead up to his recruitment elsewhere. But I am not satisfied he was a member of 'the syndicate' that recruited him, as it was described in confidential material tendered. The prisoner was an essential link as an "employee" in a plan to import quantities of cocaine secreted in auto parts, amounting to kilograms (not ounces or grams) on each occasion and there were to be a series of importations in the 12 months or so that the prisoner was staying in this country.

19 Of course, once recruited the prisoner was 'trapped' in the arrangement in a sense. He was largely dependant upon his employer's financial allowances. He travelled under his own name and the consignments sent, until his arrest, were consigned to him in his own name. He used a credit card in his own name to pay the customs agents. He was a 'large target' so to speak. All suspicion would be directed to him and he, or his employers, took no real steps to disguise his identity. He was to be the 'Australian connection' of the persons who planned the importation, facilitating clearance of customs, taking delivery, unpacking, repackaging, warehousing then passing the drugs onto a 'wholesaler' for subsequent distribution in Australia (although he had no control over, or investment in, that aspect). He was paid a wage, about $20,000 for the importation the subject of this charge, which might be regarded as a share of the 'profit' but was in reality a modest 'slice' given its value. Whilst he was paid living expenses (up to $30,000 in total while here) at the time of his arrest he had not received his wages it would appear, nor all his expenses.

20 The prisoner claimed he tried to get out of the arrangement, threatening his Canadian handlers with departure, but took no practical steps to do so and was fully involved in the affair at the time of his arrest. His prevarication arose more from a failure of his minders to live up to the financial arrangements than a guilty conscience.

21 In Australia he received regular instructions as to what he was to do, dropped his drug consumption, although he continued to smoke marijuana and occasionally used other drugs including cocaine and ecstasy. He felt that he had to continue through with what he was doing because he had no choice having accepted the money.

22 He admits to prior advice of consignments and obtaining a customs broker, although by the time the consignment arrived in early April he was a bit concerned at some reported delay.

23 He claims 'second thoughts' about his involvement, but was still actively concerned at the time of arrest with no fixed plan to return to Canada.

24 He gave evidence about his early cooperation and the positive steps that he took in custody. He initially was sent to Parklea Correctional Centre and after three and a half months moved to Long Bay. He is undertaking correspondence courses through a Learning Network and has completed courses in Canadian law and English and has undertaken other courses. He claims that being arrested was the "best thing for me", he needed a "wake up call to life". He claims that he is "genuinely happy".

25 He understands that it is "strange" that he would assert that coming to prison would be a "blessing". He is anxious to get back to his family and repay the love and affection they have given him. He expressed considerable remorse and regret for his conduct during his evidence.

26 In evidence he tended to over explain things. He was quite voluble and verbose. I see this as part of his normal personality and presentation, not as an indication of obfuscation on his part. He was generally frank and straightforward. He was, however, somewhat coy about his expectations of the amount of cocaine he was to 'steward' with each consignment, reluctantly conceding that it would be in the kilograms (within reason given the capacities of the car parts) not grams. His experience as a drug user gave him insight into the potential value of the cocaine. I reject any suggestion by him of ignorance of local values for cocaine. Any differences between Canadian and Australian values would have been fully understood by him given the 5 months he had to familiarise himself with Australian conditions.

27 There were some continuing pressures from Canada to settle debts, but they were remote and were an incentive to remain in Australia. No issue of duress arises. Although the prisoner was kept on his toes by the 'Canadian connection' and the prisoner understood 'betrayal' would have repercussions, no issue of 'duress' arises to explain the prisoner's recruitment and continued involvement. He followed orders, reflecting the complexity of the organisation. He was vigilant (as were the Canadians) to avoid detection with various subterfuges, including use of draft emails, multiple phone services that could not be traced, use of internet cafes and the like. Threats in Canada to him and associates were over drug debts, not this affair.

34 [PART OF JUDGMENT NOT FOR PUBLICATION] He has criminal convictions and findings of guilt in Canada. One, in 1994, recorded in a Youth Court was for possession of a narcotic drug, for which he was fined modestly. This merely confirms the truthfulness of his assertion that he has had a long association with the use of "prohibited drugs". Otherwise it is of no significance. He has findings of guilt against him for assault in 1996 and 2003. The convictions in 2003 involved a number of offences, such as "escape lawful custody", "assault" (x3) and "break and enter and commit". These offences were dealt with with what appear to be very modest penalties. Naturally, I have no knowledge of Canadian sentencing law. He was effectively sentenced to the rising of the court, $50 fines, a "six months conditional sentence" and one year's probation. These offences would appear to have been dealt with in a court of summary jurisdiction and were committed at a time when the prisoner was in permanent employment, which apparently was not jeopardised by these findings of guilt. The prisoner has given evidence of the circumstances of these offences as relating to a form of "domestic dispute", and a "break in" into a property owned by him in that context. Ultimately, I have no reason to doubt his explanations for that offending.

35 These findings of guilt in 1996 and 2003, although relatively minor, do not reveal him to be a person of "excellent character". They do confirm some instability in lifestyle, notwithstanding at the time the prisoner was in employment, consistent with either impulsive behaviour and/or dependence upon or abuse of drugs.

36 I earlier referred to the fact that I have a great deal of evidence concerning the background and circumstances of the prisoner at the time of his commission of these offences.

37 His personal history, I will deal with later in detail. Some of it is summarised in the Probation and Parole Service Report prepared by Mr West. Mr West who is a very experienced Probation and Parole officer. After setting out relevant family and social factors, education and employment history and factors relating to offending, which I will detail later, he noted that in discussing the offences the prisoner explained that his cocaine use in Canada had placed him in an impossible financial situation and that he saw the 'enterprise' as an opportunity to clear his debts as well as having an extended holiday in Australia and escape from the pressures he was placed in whilst in Canada. This is greed not real 'need'. Thus, it could be fairly said on all the evidence that the prisoner clearly committed the current offences for financial gain. Although it will be analysed later in dealing with s.16A(2) Crimes Act (Cth), the financial gain was essentially in the character of payment for services rendered to employers who were responsible for organising the importation.

38 Mr West said that the prisoner presented "as a person of considerable potential, which has not been realised, as a consequence of his long history of drug abuse and perhaps some underlying mental health issues, which may be linked to his childhood accident". He noted the prisoner is "fortunate" to have strong family support and this will be of importance in assisting him on his return to Canada. The prisoner, who has no disciplinary matters of substance in custody, has "demonstrated he will continue to use his period in custody as constructively as possible by completing education courses and addressing drug and alcohol issues". He would be expected to be returned to Canada on the expiration of his sentence.

39 The prisoner gave extensive oral evidence and called evidence from Peter Baines, a Minister of Religion and Chaplain at Long Bay Correctional Centre, who also provided a reference.

40 He has produced a wide range of documentary material, including his own statements, references, a number of certificates relating to educational attainments, rehabilitation courses undertaken by him, including drug and alcohol counselling and a medical and a psychological report. I have also had regard to many certificates confirming the prisoner's attendance upon various courses, or involvement in the spiritual life of the various institutions in which he has been placed and the like. These include undertaking the SMART course and involvement in Narcotics Anomous meetings, to which the prisoner made reference in his oral evidence. There is also evidence of the prisoner's plans to participate in the "Celebrating Recovery" Program in custody and on his return to Canada. This is a worthwhile Christian based program to assist people to recover from drug abuse, including family members and supporters. It is being promoted by the prisoner's older brother with a view to the prisoner encouraging the program in custody and on his release from custody.

41 I completely accept he has taken all reasonable steps to advance his rehabilitation in custody, to take steps to change his life style and to be a constructive member of the inmate population. As a general proposition I conclude on the totality of the evidence relating to the prisoner's conduct in prison that he is not only a model prisoner, but he has demonstrated, in my experience the highest degree of "self improvement" or genuine "self reformation". He seems quite obsessed about it. Clearly the prisoner has impressed many others with his interest in helping himself and helping other inmates. Reverend Baines described him as a "workaholic". He said that the fact that the prisoner's foreign national status made it difficult for him to take courses in NSW, would also make it difficult for him, if not impossible, to have opportunities for pre release programs whilst in custody and that he was dependent primarily upon financial assistance from his own family to finance educational programs that might otherwise be denied to him.

42 The evidence of Reverend Baines confirmed that the prisoner was in a way "glad" to have been arrested because this provided a "circuit breaker" for the situation in which he had placed himself. Reverend Baines thought his commitment to education and rehabilitation was "towards the top" of what he had experienced. The above matters are confirmed from the timetable of his work structure and his various activities.

43 I am satisfied on the evidence that the prisoner is prepared to continue his self reformation and assistance to others on his release on his return to Canada as well as whilst in custody. The prisoner is anxious to teach parents about the effect of drugs given the ignorance of his own family of his difficulties. I point out that the prisoner whilst in custody has been given a number of trusted inmate positions, both as a sweeper and as a "reception clerk" and has also undertaken trusted work for Corrective Services which has saved that organisation, in company with the efforts of others, considerable amounts of money. This evidence reflects further upon his sincere contrition and regret for his criminal conduct. He has apologised to the Australian community for his actions.

44 The evidence establishes that the prisoner comes from a law abiding, upstanding family. [SECTION OF JUDGMENT NOT FOR PUBLICATION] His older siblings are law abiding citizens. His brother has encouraged the prisoner to take up, within custody, the "Celebrate Recovery Program". [SECTION OF JUDGMENT NOT FOR PUBLICATION] They, with his parents, have provided both written and electronically recorded material in support. I have taken that material into account as it reflects upon the prisoner's positive qualities, their ignorance of his predicaments in Canada, their shock and grief at his arrest and detention, their willingness to support him and their request for mercy.

45 He was brought up in a secure middle class environment and was not the subject of any abuse. However, at the age of four he suffered a "traumatic brain injury".

46 He described to the neuro psychologist who reported to the Court thereinafter experiencing some learning difficulties and that he was not particularly gifted at school although he completed at least high school education.

47 There is clear evidence that the prisoner when four years of age fell from a sundeck about fourteen foot to the ground, suffering an external injury to the right forehead, with vomiting. On medical examination brain tissue could be seen herniating through a small laceration site over the right frontal lobe area. He had a fracture in that area diagnosed as a compound fracture of the "right frontal skull". He undertook a surgical procedure. The surgery revealed contused brain tissue and some haemorrhaging requiring a burr hole and a craniectomy. Some bone fragments were removed. Subsequent follow up showed no fitting or seizures and no leaks. Physically he recovered well.

48 The psychologist's reports were prepared on 2 October 2009 and on 10 November 2009. The second report reviewing the medical evidence from the discharge summary to which I referred above. The psychologist expressed the view that whether a subsequent diagnosis of ADHD would have occurred without the brain injury was unknown. However difficulties with self-regulation and judgment can, or may, follow traumatic brain injuries in childhood. The neuro psychologist expressed the opinion that the brain injury suffered by the prisoner "has contributed to some degree to his offending behaviour".

49 A psychiatric illness or a psychological condition, if established as having a causal connection to offending behaviour, may be considered as relevant to sentencing in a range of ways, as discussed, for example, by Gleeson CJ in R v Engert (1995) 84 A Crim R 67, and Sperling J in Hemsley [2004] NSWCCA 228. It may also be relevant in other ways, such as considering the need for specialised treatment or counselling.

50 I note the detailed submissions on the part of the prisoner on this issue. I do not agree that Dr Pulman, the neuro psychologist, expressed the opinion that the head injury at four has a causal link to the offending behaviour the subject of the charges. If it purports to do that there is no analysis of the "causal connection", in a factual way, or how there was a direct causal relationship between injury and the crimes. I could not conclude in any event, on the balance of probabilities, that the prisoner committed the current offence because of an injury suffered as a child when he was four years of age. In fact, that proposition is completely unsupported by the totality of the evidence. The neuro psychologist's opinion is very general and lacks real particularity on this matter. The objective facts, the accused's explanations of his conduct leading up to the events of early April and other material, speak not of spontaneity, or impulsiveness, or lack of time for formulation of judgment, or confusion of thinking, at the relevant time. No such matter is revealed consistent with a "causal link". I am prepared to accept that the head injury may have contributed to subsequent behavioural characteristics and the like, including impulsive behaviours, that made the prisoner more susceptible to risk taking behaviour, including the use or abuse of prohibited drugs. I am well satisfied on the balance of probabilities that the prisoner by reason of his drug dependency and his indebtedness arising out of that drug dependency, was made susceptible to the offer of financial advantage to come to Australia to assist in the importation of cocaine. The prisoner was also vulnerable because of the loss of his employment contributing to his increasing indebtedness and his emotional vulnerability with the loss of his relationship, the loss of his licence and the like, of which he speaks. It may be that his general personality contributed to these difficulties as well. Unscrambling the component influences upon the development of his personality is now an impossible task.

51 There is, in this context, to be seen, an indirect connection between his early head injury as a child and the circumstances in which he found himself accepting the financial incentive to involve himself in these crimes. The crimes that he admits to are not "impulsive" crimes, even allowing for the very brief time that elapsed between the offer and his departure from Canada to Australia. He had time to reflect upon the matter and, in my view, had the opportunity to withdraw from the enterprise, at least before he left Canada. In reality, even when he arrived in Australia, he could have withdrawn. That he continued his involvement in Australia over a number of months (at least five) whilst in a relatively sober state severs any realistic connection between his head injury and the cause of his offending. His articulate reasoning and explanations to how he got involved and what he did betrays claims of direct causal connection.

52 His early head injury does provide some important background evidence to the course his life took in adulthood. Its possible 'indirect connection with his offending' is also shown in the evidence that he was diagnosed with ADHD at the age of fourteen and prescribed Ritalin and the opinion expressed by Dr Pulman that there could be a connection between this and his head injury.

53 The prisoner apparently was a good sportsman if not a good student, particularly good at the sport of Lacrosse, but also playing other sports popular in North America. He commenced using prohibited drugs at high school claiming to be "kicked out of grade 12" due to using cocaine. This may be hyperbole on his part. On leaving school he undertook some management and other skills programs. He worked in various sales occupations. [SECTION OF JUDGMENT NOT FOR PUBLICATION]

54 He began as a manager of ticket sales and moved into higher management position and had a number of important responsibilities. I understand that during this period of time he was a casual user of drugs particularly cocaine, but had difficulty managing his dependency and built up considerable debts. He acted out, using drugs as a crutch. He was able to develop a relationship that appeared to offer the prospect of some stability however, around July 2007 things started to go backwards for him. He lost his drivers licence in 2007, there were problems in his relationship ending in a break up which led to unhappiness. Then the [PART OF JUDGMENT NOT FOR PUBLICATION], leading to the prisoner's dismissal in August 2007.

55 The payout he received did not meet his debts. His abuse of alcohol and drugs escalated. This was not ameliorated by another position with [PART OF JUDGMENT NOT FOR PUBLICATION] where he worked for less money. He lost that job after nine months because of his increasing unreliability and he described his life as "totally unmanageable". He borrowed thousands of dollars from his parents and sold personal possessions to obtain cocaine, offering a $40,000 car, so it is claimed, as collateral for drugs purchased. He described himself as "totally delusional" in this period. Many threats were made from people seeking to recover money from him for drug debts. Then in early November 2008 he said he was contacted by a person who offered him the opportunity to come to Australia. He was told that he was to be in Australia to receive consignments of drugs. He was given $10,000 in advance and realising that they were serious and that there was money to be made, he took up the offer and left Canada on the 15 November 2008 to fly to Australia.

56 I have a reference from Reverend Paul Drury, confirming the prisoner's interest in bettering himself, his involvement in positive activities within custody and his willingness to help other inmates. He refers to his respectful manner and his desire to improve himself. Pastor Phillip Daffern, another Prison Chaplin has dealt with the prisoner and speaks of the prisoner's clear remorse and expressions of regret and sadness for his actions. He spoke of the prisoner's assistance to other prisoners and the clear insightful way in which he sees his situation and the situations of others.

57 I have reports from the Department of Corrective Services, both on reception and subsequently, setting out contemporaneous observations of his demeanour. These reports show generally his positive interaction with the authorities, his productiveness in custody, his general good health and drug free lifestyle. He has a clear disciplinary record.

58 There is some brief medical evidence indicating that his mother was diagnosed with bladder cancer in May 2007. It would appear to be in remission but will require regular monitoring in the years ahead.

59 The neuro psychologist's first report of 2 October 2009 involved a neuropsychological assessment, in the context of the history of ADHD diagnosis when he was about fourteen and previous head injury. He had a childhood and early adulthood characterised by easy distraction and lack of application. There is also reference to symptoms of "delirium", with highs and lows in his outlook, to what extent caused by drug abuse not fully explained.

60 On the Wechsler Adult Intelligence Scale his IQ performance was average (around the 50th percentile) with better performance in verbal and perceptional comprehension and organisation, than in memory and processing information. His intellectual functioning on a full scale IQ measurement was at a level above 55 percent of the normal population. His memory 'under performance' may have been a result of his traumatic brain injury and also may be consistent with ADHD diagnosis. His performance on the task of higher level thinking or 'executive functioning' was generally commensurate with his overall level of intellectual functioning. His visuo-spatial planning and organisation skills were also intact. He has had symptoms on testing of "severe levels of depression and anxiety" and "moderate levels of stress". The conclusion was that in the context of his history, whilst the prisoner had average intellectual ability, "aspects of his cognitive functioning remain disturbed". His capacity to retain "auditory information over time is impaired" which might be consistent with traumatic brain injury sustained as a child.

61 Although his executive functioning and higher order reasoning was normal he had difficulties with impulse control, thinking through the consequence of his actions and self regulating behaviour, "most likely attributable to his traumatic brain injury, ADHD or both".

62 I have a great deal of material from members of his family and friends. His family and friends all reside in Canada and they have great difficulties maintaining contact with him.

63 His parents speak of the prisoner's remorse and his concern for his own family at his current situation. The prisoner had a stable life, was not subject to physical or sexual abuse or family dysfunction, however, there is a belief in his family that his problems in life are attributable his ADHD and the head injury.

64 His family continue to support him and provide material support for him in custody, particularly in relation to providing funds for him to undertake learning courses that are not available here in Australia. His parents speak of their ignorance of his drug dependency and express their regret for not having earlier provided assistance to him.

65 Members of his family speak of changes they have noted in his attitude since he has been in custody, however there are concerns about his time in custody in Australia, the adverse affect upon him that prison will have and the like.

66 A former employer spoke of the value of the prisoner to the organisation as a manager, his positive and "magnetic personality" and his ability to deal with other people. He spoke of the prisoner's positive qualities as an employee and the remorse the prisoner had expressed to him for his conduct.

67 There are other references from friends, persons who have known him through sport and other people that have known him in various circumstances in his life in Canada.

68 Generally the documents speak of the prisoner's positive qualities, his friendliness, openness, his loyalty, politeness, generosity and the like. The material evidences not only a strong family support circle but a wide network of friends, people respectable and responsible in their communities, who generally speak of a person whose normal behaviour is entirely uncharacteristic of a person involving themselves in significant drug importations. There can be no doubt that the prisoner has many admirable qualities and generally is regarded by his family and friends, themselves respectable law abiding people, as a person of good character, notwithstanding the absence of a clean criminal record for him.

69 The truth is however, that in cases such as this where people are sent from overseas to manage the importation of drugs into the country, respectability, outgoing personality and the like, are desirable characteristics for people who are to perform such important tasks. They will not ordinarily attract suspicion. Certainly, those organising drug importations do not send convicted drug importers to this country to undertake important tasks on their behalf. This 'double life' is reflected in the reference of a friend now living in Canada who knew him in Australia and was living in [PART OF JUDGMENT NOT FOR PUBLICATION] when he was there. She stated: "I had no indication that [AA] was involved in any illegal activity", understanding that "this was the only secret that (he had) held from me, considering he has always and continues to be a very upfront and honest person".

70 Of course I accept her letter is written in good faith to 'enlighten' the Court on the "true person that [AA] is". Although the author speaks of people making mistakes in their lifetime, which this Court fully understands, the character of the mistake, the amount of premeditation involved, the seriousness of the consequences of the mistake, are all factors to take into account when assessing such opinions.

71 Clearly, the prisoner has made an impression upon a number of people in a positive way, as he has done to those he has met in custody. One person who has known him for many years talks of his "charisma". Some of the references confirm the prisoner's unstable circumstances before he travelled to Australia. One of his friends speaks of "two very poignant situations" that gave that friend some insight into his "every growing problem with substance abuse". That referee speaks of the "knife edge" upon which the prisoner was placed before he came to Australia.

72 I note the report from the alcohol and drug workers at MSPC at Long Bay that the prisoner has "demonstrated a serious effort to rehabilitate himself and address his behaviours. He has shown he is developing insights into his lifestyle and issues that contribute to his offences. This is evidenced in his consistent attendance and attitude towards the work he has undertaken".

73 In the context of the evidence in the sentence proceedings, I was provided with very detailed written submissions by both the learned Crown Prosecutor and counsel for the prisoner. Both parties are to be commended for the excellent assistance provided in dealing with the legal principles to be applied in the written material and supplemented by succinct oral submissions. I have had regard to the written and oral submissions both in relation to fact finding and the exposition upon appropriate and relevant legal principles. I have taken those submissions into account, as has been and will be reflected expressly and implicitly in these remarks on sentence.

74 Many of the legal principles to be applied both in general terms and by reference to s.16A Crimes Act (Cth) 1914, are not in dispute.

75 One must have regard to the maximum penalty for each offence, noting that it indicates that the offences for which the prisoner has been found guilty are objectively very serious. The Court is to consider the degree to which the prisoner's conduct in each matter offends against the legislative objective. The Crown submits that the prisoner's conduct constitutes a "significant" breach of the relevant provisions, the accused's counsel says it is at the "lower end of the scale".

76 The prisoner, as earlier indicated, had an essential role in the commission of each offence and although he was not an organiser, nor a principal of the syndicate that recruited him, established clearly on the evidence and acknowledged from the subsequent investigations in which the prisoner has cooperated, the prisoner was not a 'mere courier'. He was an entrusted employee crucial to the success of the importation enterprise.

77 In sentencing the prisoner in relation to each offence it is clear that notwithstanding the decision of Wong v The Queen (2001) 207 CLR 484, the weight of the drug concerned in relation to each of the charges is a relevant factor, amongst many other matters including the role of the prisoner in determining the seriousness of the offence. The prisoner had a concept of the range of quantity of the drug that could be imported and which he would be required to handle, although the precise quantity could not have been known to him. The quantity imported was 6.416 kilograms, a commercial quantity of cocaine is 2 kilograms.

78 Clearly the sentences to be imposed must commence from the time that he commenced custody, which was the date of his arrest on 12 April 2009.

79 With regard to s.16A of the Act, the Court is required to fix a sentence in relation to each offence which is appropriate having regard to all relevant circumstances, both the objective circumstances and relevant mitigating or subjective matters.

80 General deterrence for offences of this type is a significant and very relevant matter to be taken into account, notwithstanding s.16A's silence on the topic.

81 As far as the "factors" set out in s.16A(2) which "must" be taken into account "in addition to any other matters" required to be taken into account, I have earlier dealt with the "nature and circumstances of the offence" as contemplated in s.16A(2)(a). They were offences committed for financial gain (which is almost exclusively the case in offences of this type). I accept that the prisoner in accepting the offer did so with his judgment somewhat blurred by his drug dependency and its consequences of financial pressure and fear of harm from his suppliers. However, the prisoner continued his involvement for a number of months after that initial agreement. Whilst he may have had some misgivings, given his generally good prior character, he actively pursued the interests of his employers with no contemporaneously observed or recorded reluctance.

82 As I have earlier indicated, whilst his childhood brain trauma may have had an unsettling affect upon his personality, rendering him more prone to impulsiveness and perhaps contributed to ADHD symptomology, and the like, the prisoner at the time of the commission of the offence did not suffer from a mental disorder or abnormality which would warrant consideration of less weight being given to general deterrence. His propensity for risk taking may explain his willingness to be involved, but it must be borne in mind that the offending with which this Court is concerned, in context, was not "impulsive" but was sustained and considered.

83 A submission is made that the offender's role was "very limited when looks at the larger picture". But even if that is an accurate description, that is not a basis for concluding that the offending was at the "lower end of the scale", given the substantial control the prisoner had over the process of "importation" once the goods had arrived in Australia. Clearly, the prisoner did not design the method of importation, control the quantity of prohibited drugs in any particular consignment, or formulate the general plans for each importation. But he had to attend to particular tasks and exercise some discretion in the performance of those tasks given the situations as he found them. The superior courts have frowned upon "labels", although in a number of cases the expressions "courier", "middleman", "principal" may adequately describe a person's role. If a "courier", ignorant of organisational matters, is at the lowest end of the scale, clearly this prisoner is more culpable than that hypothetical person. Even if his specific role was "limited" in the scheme of things it was, as the Crown correctly pointed out, still 'crucial'.

84 Finally, in relation to this aspect of the matter in conjunction with other observations that have been made, the prisoner's offending not a "one off" event. It was part of a pre planned, pre meditated, course of conduct as the facts clearly demonstrated (see s.16A(2)(c)).

85 There are no other offences required to be taken into account (s.16A(2)(b)). There is no relevant "victim", or any injury, loss or damage resulting from the offences (s.16A (2)(d)(e)). Of course, prohibited drugs do great damage to our community, but in my view the weight to be given to that consideration is generally subsumed into the consideration given to general deterrence and personal for such offences, rather than as a discrete issue to be addressed.

86 The prisoner has expressed and demonstrated a great deal of contrition for his involvement in these offences (s.16A(2)(f)), both by his willingness almost immediately to provide active and meaningful cooperation to the authorities, continuing with that cooperation, by his efforts in prison to help himself and others and by his many expressions of contrition to family, friends, this Court and those who have interviewed him.

87 There were extensive submissions in relation to the issue of the pleas of guilty. The fact that there are pleas of guilty is a matter that must be taken into account (s.16A(2)(g)), but beyond the section there are wider implications. I do not propose to do an analysis of the competing authorities dealing with the proper consideration of the plea of guilty. Here in my view it is to be regarded as a mitigating factor, as it demonstrates a willingness in this case to facilitate the course of justice as contemplated in Cameron v The Queen (2002) 209 CLR 239 (of course it is further evidence of remorse and acceptance of responsibility). Although the guideline judgment in Thomson and Houlton (2000) 49 NSWLR 383, only applies to "State" offences, the Court may specifically quantify the sentence discount for the guilty plea in Commonwealth matters (Bugeja [2001] NSWCCA 196; R v Otto (2005) 157 A Crim R 540; DPP v El Hani [2004] NSWCCA 162; DPP v Sukkar [2006] NSWCCA 92; R v NP [2003] NSWCCA 195) and I propose to quantify that discount in conjunction with the discount to be provided to the prisoner for his cooperation. There have been observations made in some cases such as NP and El Hani, that the discounts for the plea of guilty and the measure of the cooperation with the authorities ought be fixed as a two staged discount. On the other hand in many decisions of the Court of Criminal Appeal, when the issue is discussed, it is discussed and calculated on a combined basis. I note Hodgson JA favoured the two staged discount (which leads mathematically to a "lesser" reduction in sentence in NP), but in JMS V The Queen [2010] NSWCCA 229, his Honour recently approved a combined discount in the disposal of that matter without discussion [37]-[38], I contemplate that the combined discount will include a discount of 25% to recognise the plea of guilty, bearing in mind that the prisoner in facilitating the course of justice did so well before the plea of guilty was entered.

88 In considering the cooperation with law enforcement agencies (s.16A(2)(h)), I propose to provide a sentence discount, as I have foreshadowed calculated on objective and pragmatic grounds. It has been said that combined discounts have customarily ranged between 20% and 50%, with a discount of 50% as appropriate for assistance of a "very high order" (R v Sukkar (2006) 172 A Crim R 151 [167]).

89 Discounts for plea of assistance more than 40% nowadays should be exceptionally, if at all, granted in cases where there is no evidence that the prisoner will spend his sentence, or a substantial portion of it, in more onerous conditions than the general prison population (see R v Sukkar, R v Jimmy [2010] NSWCCA 60). One must have regard to the practical value of the assistance, the actual benefit which will flow from such assistance, but also its timeliness and a range of other factors. The Crown submits, given the assessment of the cooperation as "low", by the AFP, that the combined discount to be given would be 40% at its highest. The defence argues for a greater discount having regard to the genuineness of the cooperation, its fulsomeness, its timeliness and the extent of cooperation. There is also the promise of "future assistance", by the "Undertaking" the prisoner has signed, the potential for threat to the prisoner's family and the like should the cooperation given thus far be exposed, and other matters. In this regard I have taken into account the very detailed submissions by the prisoner's counsel who very eloquently detailed many matters.

90 The evidence does not establish that the prisoner is serving his sentence in circumstances of hardship by reason of his cooperation. I accept as a Canadian citizen that the prisoner has a struggle to get access to some courses, is required through his family to finance educational courses that are not available to him because of his "immigration" status and the like, and there are other disadvantages. Although it is a well recognised principle that foreign citizens who come to this country to commit serious crimes can receive no special consideration because their own criminal conduct leaves them in a difficult situation as a foreigner in a "strange land". The matters the subject of extensive evidence concerning the circumstances of the prisoner's custody and the like however, bear no relationship to the prisoner's status in the eyes of the authorities, which I will not openly comment upon in detail, or the cooperation he has provided up to the present time, or possibly will provide in the future. He is not under any special protection regime. He moves amongst the general population and the like, although that may change at some time in the future if he ever is required to give evidence in Australia.

91 As to the 'Undertaking' to give evidence, I am not in a position to calculate a discrete discount for "future cooperation" given that future cooperation may never be required. At this stage nobody has been arrested in Australia in relation to the assistance he has given. There are no plans for the prisoner to give evidence. On the other hand I should provide the prisoner with some very modest "encouragement" to continue his cooperation in the future should it be called upon and I cannot discount that that will not occur. Noting all that has been put, but particularly noting, notwithstanding the assessment by the AFP, the timeliness and extent of cooperation, I have determined that a combined discount for the plea and the cooperation, should be 42.5%, I cannot calculate a proportion attributable to "future cooperation", but I factor into the calculated discount the possibility of future demands upon him given his 'Undertaking' and continuing investigations.

92 I am required to impose a sentence of severity to act as a specific personal deterrent to the prisoner (s.16A(2)(j)), although I have no doubt the prisoner's experiences here will have that effect in any event. I am also required to ensure that the prisoner is adequately punished for the offences (s.16A(2)(k)), which includes consideration of the proposition that the calculation of the appropriate sentence, with relevant discounts, should not fall to a level that does not represent, even allowing for mitigating factors and other considerations, "adequate punishment".

93 With regard to the prisoner's character, antecedents, background, physical and mental condition (s.16A(2)(m)), I have already referred to matters established on the evidence. I have taken into account all that material. The prisoner did not come to this matter with "excellent character", although I accept that he is a person with many positive qualities and I am satisfied that he is not generally an antisocial, irresponsible individual. Even in cases where an offender has "excellent character" it has been held that such a matter carries less weight in crimes of this character. I have pointed out that people of good character are recruited to commit these crimes so as not to attract attention. The prisoner's criminal history, as I have pointed out, is minor and in my view does not substantially disentitle him to any leniency available on that basis. The prisoner's "mental condition" I have already discussed. Whilst it might have some indirect connection with his current circumstances it is not a matter that requires treatment at the present time, nor does his ADHD.

94 The truth is the prisoner is a mature man, who is well aware, as his evidence before me revealed, of the consequences of his conduct and well aware of what he needs to do to address the issues that led to the circumstances in which he now finds himself. That is not to say that the prisoner will not need professional assistance in the nature of counselling on his release, but the prisoner has demonstrated a capacity to "self counsel". He will need professional assistance to adjust to community living. The issue of "character" is somewhat complicated in light of the fact that the matters for which I am sentencing the prisoner, as the Crown correctly observes, are not "an isolated event", occurring in the course of conduct, some of which will not be the subject of charges. The prisoner does not have any significant physical issues that affect the circumstances of his custody or are requiring medical treatment. That he is a foreign national, to be deported at the end of his served term of imprisonment, is not a basis for declining to fix a non parole period or not applying relevant principles to the fixing of the non parole period.

95 I accept the submission of the accused's counsel that he has excellent prospects of rehabilitation (s.16A(2)(n)) and he has demonstrated that in a range of ways. The prisoner demonstrated in his evidence that he was capable in the wider community of leading a useful, productive life and with the family support that exists, will do so on his return to Canada. I trust his good intentions in assisting others not to fall into the trap that he fell into, will be carried out and I act on the expectation that that will occur given the family support in that regard. I do not believe the prisoner will be involved again in drug importation matters. Certainly he will never have the opportunity to commit such an offence in Australia as he will almost certainly not be permitted ever to return to Australia. Even generally he would now be well and truly 'on the radar' of law enforcement agencies in the North American continent. I accept the submission that his willingness to undertake educational programs also shows very positive signs of a successful rehabilitation.

96 The prisoner has no dependants, although he has elderly parents and other family members who are concerned about him. Ultimately, whilst his sentence will be a cause of concern to his family, his mother has a cancer that is in remission, the "probable effect" upon his family of any sentence imposed can only be categorised as being no more onerous than any such sentence would be on any similar family connection, save for the fact that his family lives some distance from Australia. This, however, is a situation of the prisoner's making.

97 I have also had regard to the prisoner's drug dependency and its relationship with his offending, providing an explanation for a person of the prisoner's background becoming involved in such serious criminality. I note the submissions that have been made about the relevance of the drug "addiction" in sentencing for serious offending (R v Henry (1998) 46 NSWLR 346, particularly the observations of Wood J at [273]). Counsel for the accused has noted the adoption in R v Blackburn & Walters [2001] NSWCCA 121 of Chief Justice King's remarks in Yardley v Betts (1979) 22 SASR 108 at [112]-[3]. This prisoner is not a young offender who is "at the cross roads", nor is the offending of a character that might provide an opportunity to make an order of the type contemplated in Blackburn & Walters, or in Yardley v Betts. Furthermore, it is the Canadian community that will bear the risk of the prisoner's return, not the Australian community. In any event I have already indicated that I am prepared to accept the prisoner has excellent prospects of rehabilitation, and that is taken into account as is required under Commonwealth law.

97 There has been a submission made by the accused's counsel in relation to "delay" in this matter. However, this is not a "Todd" situation. The delay in this matter is not of such a character as to suggest the offender has been left in a "state of uncertain suspense". I accept if there has been some delay (this matter has taken somewhat longer than this Court would normally expect for disposal before it came before myself), that delay has provided the prisoner the opportunity to demonstrate those matters that I have found in his favour. I do not understand that this is a matter where any relevant "delay" could be properly regarded as a "matter in mitigation", because I do not understand any evidence to suggest any particular "hardship". The prisoner must expect a sentence far greater than the time taken thus far for the matter to be dealt with in this Court. The prisoner has provided staged cooperation which has required investigation. The prisoner has not signed an 'Undertaking' to assist until June of this year (I accept through no fault of his own). So, in a range of ways, there are matters that have required attention over which the Court could have no control, nor, in many respects, the parties. In an extreme situation such as "Todd", the delay occasioned by the Federal nature of law enforcement meant that special consideration could be given to a particular prisoner to acknowledge time spent in another jurisdiction in relation to related criminality. That unique, or exceptional, circumstance does not arise in this matter. As to the question of whether any delay was through "no fault of the offender", the issue is not one of "fault", but that adjournments have been granted to both sides to enable particular enquiries to be undertaken to enable the Court to have all relevant information before it. That there has been delay is regrettable, but this case in no respects advances any "exceptional matter".

98 The Court is required to impose a sentence of imprisonment if it is satisfied that imprisonment is the only appropriate sentence and such is the case here (s.17A of the Act).

98 I am required to fix a separate sentence for each offence in the context of the principles set down in Pearce v The Queen (1998) 194 CLR 610 ( at [45]). In fixing the appropriate total sentence I have to have regard to the totality of the criminality. I am required when fixing a sentence of more than three years to fix a non parole period and I note what the Crown submits is the general range of non parole period for Commonwealth sentence, such as approved in cases such as R v Bernier (1998) 101 A Crim R 444. Of course, the fixing of non parole periods is a discretionary matter and notwithstanding the submissions of the accused, the concept of "special circumstances" is not legislatively mandated in Commonwealth sentencing. I accept as a general principle, however, that matters which in State law be "special circumstances" may have relevance in Commonwealth law, as factual matters relevant to assessing the appropriate non parole period. Matters such as the need for supervision and counselling, professional assistance to adjust to community living, and the like.

99 A number of submissions were made by the accused's counsel in relation to the fixing of the non parole period. Some of the matters raised, under State law, might however, militate against a finding of special circumstances, for example if there was no utility in extending the period of supervision in accordance with s.44 Crimes (Sentencing Procedure) Act 1999 (NSW) provisions and relevant interpreting authorities.

100 In one of the "comparative" cases referred to by the Crown, R v Riddell [2009] NSWCCA 96, a very similar case to this involving a Canadian citizen performing a very similar role to the accused in respect of similar quantities of cocaine (but acting under duress falling short of a defence) specific attention was paid to the question of whether related offences, as here, where the criminality substantially overlaps, as it does here, ought be the subject of concurrent or partially accumulative sentences. Here, although the 'attempt traffic' offence is very intimately bound up with the circumstances of the importation, the totality of the criminality is increased (see R v XX [2009] NSWCCA 115 at [52] per Hall J). I appreciate that if one performs the warehousing role in an importation ultimately one will have the responsibility of passing the drugs on to another person, or planning to do so, which might, (or might not), require a further charge of "attempt traffic", or something similar. But in Riddell, it was held that the totality of criminality was somewhat increased by the offences being related.

101 I have had regard to the various comparative case sentences relied upon by the parties. Each case must be decided on its facts, but I appreciate that sentences in other matters might provide assistance in structuring the discretion to be exercised here and are some indication of ranges of appropriate sentences, as do statistics to a lesser extent. Where any sentences referred to predate the repeal of s.16G of the Act, I have taken into account that aspect, as discussed in a number of authorities including R v Clarkson [2007] NSWCCA 70 and R v Studenikin [2004] NSWCCA 164

102 Finally, I have had regard to the submissions made on behalf of the accused about "justice and mercy". One would always hope that a judge would do "justice" to every individual case. That requires consideration of matters not peculiar or confined to the prisoner, but also to the community as a whole. As to the issue of "mercy" that will have varying effect depending upon an appropriate consideration of both the objective circumstances and the subjective circumstances of the prisoner. One cannot be so 'merciful' as to be disconnected from the reality of the case at Bar. In any event, the "quality of mercy" very much depends upon the options realistically available in a particular case. An act of mercy would be to permit the prisoner to return home to his family tomorrow. But that action would not involve any consideration of the wider interests in this matter, including the community's interests in preventing or deterring people from importing prohibited drugs, or "border controlled drugs", that do damage to lives, as is claimed by the prisoner to have occurred to himself.

Order

1. Attempt traffic commercial quantity border controlled drug - Convicted: Sentenced to a term of imprisonment of 5 years and 6 months from 12 April 2009 and to expire on 11 October 2014.

2. Import commercial quantity border controlled drug - Convicted: Sentenced to a term of imprisonment of 8 years and 7 months which consists of a non parole period being 4 years and 9 months, to commence on 12 January 2010 and to expire on 11 October 2014.

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