R v Antony

Maximum penalty

1. The maximum penalty serves as a yardstick for the appropriate sentence and must be balanced against all other factors.

General principles

1. The governing principle under s 16A(1) of the Crimes Act 1914 (Cth) ("Crimes Act") is the imposition of a sentence which is of "a severity appropriate in all the circumstances of the offence." In addition to any other matters, the Court must take into account matters listed in s16A(2) of the Crimes Act that are relevant and known to the Court.

Principles of sentencing drug offences

1. In R v Nguyen; R v Pham (2010) 205 A Crim R 106 ("Nguyen") at [72], Johnson J summarised the principles to apply and factors to consider when sentencing Commonwealth drug Offenders for importation/possession of border-controlled drugs.
2. The factors referred to in Nguyen were endorsed by the Court of Criminal Appeal in R v Kassir [2020] NSWCCA 88. Bathurst CJ added: "To this statement I would only add what was said by Bell and Gageler JJ in R v Pham (2015)256 CLR 550; [2015] HCA 39 ... at [45] that "the quantity of the drug is not the controlling factor when it comes to the assessment of the seriousness" but will usually be a relevant and in some cases, the most significant consideration."

Consideration of specific matters relevant to this case

Nature and circumstances of the offence - s16A(2)(a) Crimes Act

1. The nature and circumstances of the offending are set out in detail in an Agreed Statement of Facts. In summary, the Offender and Gnanatheepan Gopalakrishnan ("GG") were involved in the attempted importation of a commercial quantity of pseudoephedrine from India into Australia in March 2021, known as the 'Cats Eyes Consignment'. The Offender aided and abetted the commission by GG of this offence by agreeing to assist him to obtain money for payment for the Consignment. He also assisted GG to attempt to access the Consignment once it had arrived in Australia. The Offender knew that he was aiding and abetting the importation of a commercial quantity of a border-controlled substance.
2. The Crown submits that I should conclude that the Offender played a "trusted and indispensable role" in aiding the importation. This is because the facts disclose that he discussed with GG the arrival of the Consignment, provided GG with the money needed to pay the offshore members of the syndicate for the Consignment, and attempted with GG to access the Consignment from its concealed location once it had been collected by GG. The Crown also contends that the Offender's role was more "serious" than GG's.
3. On behalf of the Offender, Mr James KC disputes that the evidence demonstrates that he played a "trusted and indispensable role" in the importation and that the Offender occupied a more "senior role" than GG.
4. The Offender accepts, as he must, that he: 1. assisted GG in obtaining money for payment of the Consignment; and 2. attended GG's residence shortly after he had collected the substituted Consignment to assist him with accessing what they believed to be pseudoephedrine.
5. It is emphasised on behalf of the Offender that there is no evidence to support a finding that he was involved in the planning of the bringing of the precursor into Australia, nor was he responsible for devising the method in which the precursor would enter Australia. The Cats Eyes Consignment was but one of a number of similar consignments, but there is no evidence the Offender was involved in the others.
6. Mr James submits that the success of the operation did not hinge on the Offender's involvement. It is significant that those occupying more senior roles in the enterprise were able to coordinate the import of the border-controlled substance into Australia without any involvement of the Offender. It is also significant that the material got into the possession of GG, i.e. it was imported, without the Offender having yet provided any money.
7. Mr James submits that I ought to find that the importation was instigated by others and the efforts of others to ensure the arrival of the Consignment was well under way before the Offender was involved. It was not until the Consignment had landed in Australia, and that GG was aware of the fact of its landing that he engaged the Offender to provide him with any money to remit offshore. It was not until 17 May 2021 that the Offender was aware of the precise amount of money GG required from him.
8. The Offender also takes issue with the Crown's submission that the Offender knew how much the importation cost and had knowledge of the amount of drugs to be imported. It is accepted that the Offender knew that the offence of importing a commercial quantity of pseudoephedrine was the offence that he was aiding and abetting, however, the submission is that the Court would not be satisfied beyond reasonable doubt that he has specific knowledge of the precise amount involved, or that the Offender knew, or of the precise cost of the importation.
9. Finally, in writing, the Offender submitted that the Court should not lose sight of the fact that the substance involved is not in fact a drug. This is recognised expressly by the lesser penalty that applies for importing a border-controlled precursor rather than a border-controlled drug under The Criminal Code (Cth) ("Criminal Code"): see for example the decision of the Victorian Court of Appeal in DPP (Cth) v Maxwell (2013) 228 A Crim R. 218 at 227 ("Maxwell") [33]-[36].
10. The submission is that pseudoephedrine is in fact legally available. The comments of the Victorian Court in Maxwell were recently approved of by the Court of Criminal Appeal in Bott v R [2023] NSWCCA 255 at [85]-[87] per Dhanji J.

Resolution as to objective seriousness

1. Whilst it is true that the Offender played a trusted role in the importation, in the sense that others involved trusted him, the role does not appear to me to have been an indispensable one.
2. There were many other consignments apparently successfully imported into Australia by the same criminal syndicate without the Offender being involved. This indicates that, whilst the Offender was involved and was trusted by those in the criminal syndicate in relation to one consignment, he was not indispensable.
3. Moreover, I am not at all convinced that he held a position in the hierarchy of criminals in the syndicate above that of GG. My judgment is he probably fell below GG in the hierarchy.
4. It is true that what was imported was not, in fact, an illegal drug. However, that is reflected in the charge itself. The Offender has not been charged with importing methamphetamine, he is charged with aiding and abetting the importation of a precursor, namely pseudoephedrine.
5. There is no doubt that, in doing so, the Offender knew that the only reason for the importation was to use that substance to create large quantities of illicit drugs to be sold into the Australian community.
6. Whilst the quantity cannot be said to have been known with precision by the Offender, he certainly knew that it was a very significant quantity. The amount was, in fact, 33.78kg, some 28 times the commercial quantity.
7. I am satisfied beyond reasonable doubt the Offender was motivated in part by a desire and expectation for financial reward.
8. The evidence tendered on behalf of the Offender, in particular an affidavit of his wife, suggests that he got involved because he was "helping out a friend". I do accept this as an explanation, but only in the sense that it was part of his motivation. The fact is the Offender did not agree to do what he did without expectation of payment. He expected to be paid or rewarded financially, and thus his motive at least included a desire for financial reward.
9. All in all, I consider the objective gravity of the offending to be serious in the way I have described. If I had to place it somewhere on a scale, I would say somewhere below what might be described as the middle of the range.

Degree to which the Offender has shown contrition/remorse - s16A(2)(f) of the Crimes Act

1. The utilitarian value of a plea of guilty (s. 16A(2)(g)) and contrition (s. 16A(2)(f)) are conceptually different. Justice Yehia in Giles-Adams v The Queen; Preca v The Queen [2023] NSWCCA 122 at [78] said that "[t]he former is an objective factor that should be quantified…. The latter is a subjective factor that does not require quantification but may operate to mitigate the sentence as part of the process of instinctive synthesis."
2. The strength of the prosecution case may be taken into account in assessing contrition which facilitates the course of justice. That is, the guilty plea may be actuated by an acceptance of the inevitable in the face of an overwhelming Crown case.
3. It is submitted on behalf of the Offender that, on the basis of the material tendered on the Offender's behalf, and by virtue of his plea, the Court ought conclude that the Offender is genuinely remorseful and contrite.
4. As noted by Davies J in Richards v The King [2023] NSWCCA 264 at [60], with whom Ward P and N Adams J agreed regarding an appeal ground concerning a failure of an offender to give evidence of remorse and how this was treated by the sentencing judge: "That if an offender does not give evidence and accordingly is not exposed to cross-examination that the sentencing judge may not give significant weight to the lack of evidence from the Offender when determining whether a finding of remorse should be made. It is one matter for an offender to express remorse to a psychologist and a psychiatrist or even when interviewed by the police and quite another matter to give sworn evidence and be cross-examined about the issue. When interviewed by the police or by a psychiatrist or psychologist it is unlikely that the Offender's response will be challenged. It may be otherwise when the Offender gives evidence. Furthermore, an issue of remorse may be susceptible to evaluation by consideration of an offender's demeanour an opportunity which will be denied the sentencing judge unless the Offender gives evidence."

Resolution as to contrition

1. In this case, the Offender has chosen not to give any evidence before me. Rather, he relies on his belated guilty plea, to which I will come, together with statements from his wife and a psychologist Professor Stephen Woods. Professor Woods notes that: "his level of offence remorse related focus for the well-being of his family are such that he is unlikely to reoffend".
2. I accept that the Offender has shown remorse over and above remorse for the fact that he has been caught, prosecuted, and now stands to be sentenced for a very serious crime. For this reason and other reasons I will come to, I consider it unlikely that the Offender will reoffend.

Guilty plea - s16A(2)(g) Crimes Act

1. The Offender is entitled to a discount on the sentence that would otherwise have been imposed to reflect the utilitarian value of his plea.
2. In this case, in relation to objective utilitarian value, the plea was entered on the second day set down for his three-week trial, shortly before a jury was to be empanelled, and approximately two and a half years after his arrest. The plea has some utilitarian value by avoiding the expense of a trial and sparing witnesses from having to attend court to give evidence at any trial.
3. Mr James submits that, even though the plea of guilty was on the second day of trial (prior to any jury being empanelled), the utilitarian value of the plea is considerable given that the expense of the trial was spared substantially, and witnesses were spared from having to attend court to give evidence. Accordingly, it is submitted that a discount in the order of 20% is warranted.

Resolution

1. The fact is the plea was very late, the second day of what was scheduled to be a three-week trial, it did however have real utilitarian value, but I think, in the circumstances, a discount of no more than 10% is justified.

Specific deterrence - s16A(2)(j) of the Crimes Act

1. The need for specific deterrence must be adequately reflected in both the head sentence and in the period of actual custody. Given the seriousness of the offending, specific deterrence has a significant role to play in this sentencing exercise.

General deterrence - s16A(2)(ja) Crimes Act

1. General deterrence is a fundamental and important consideration when sentencing an offender for a Commonwealth drug offence. The sentence imposed on the Offender must be of such a severity that it will act to deter others from engaging in illicit drug activities of a like nature. The sentence must signal to any person considering any involvement in drug trafficking that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment. Involvement at any level in a drug importation offence must attract a significant sentence otherwise the interests of general deterrence are not served.

Offender's character, age, antecedents and background - s16A(2)(m) Crimes Act

1. The Offender is a 39-years-old, with no relevant criminal history. The evidence of his character demonstrates that he is considered by those who know him to ordinarily be of exemplary character.
2. He has a very good employment record, including long periods of being employed and has run a number of small businesses quite successfully.
3. At the moment the business that he is running is struggling financially and, on the evidence before me, will be unlikely to survive in the event the Offender is subjected to any lengthy period of imprisonment.
4. He is a very good family man. He is married, he has two small children and appears to be a committed father to them. He is good friend to a number of people.
5. Both he and his wife migrated to Australia from Sri Lanka after the Civil War. Undoubtedly the Offender suffered from what he saw during the time in Sri Lanka, and he continues to carry that burden, as is explained in the report of Professor Woods, who has diagnosed him with sub-threshold PTSD, a single episode of a major depressive disorder, and generalised anxiety disorder.
6. Professor Woods has assessed the Offender in the low range of reoffending and thinks that he would benefit from treatment for his psychological issues.
7. Finally, the Offender's wife is in chronically poor health and both his children suffer from developmental disorders. They will all suffer significantly if the Offender spends any significant period in custody.

Resolution

1. The Offender comes before the Court with no prior criminal history and a record of being a good contributor to society. Full weight must be given to that factor when coming to an appropriate sentence.
2. The Offender has had a difficult life to date, and it is a credit to him that he managed to come to Australia and build a life for himself and his family and escape the war-torn nature of his original homeland. For all intents and purposes, he has otherwise behaved as a good, productive, and useful member of the community. The Offender does have some psychological issues which I accept were in part causative of the offending because as Professor Woods puts it: "The nature of his symptoms along with his sense of being obliged to assist a friend who had previously assisted him with interest-free loans would have, in all probability, impaired his judgement when deciding to continue his involvement in the matter despite knowing it would be illegal"

Prospect of rehabilitation - s16A(2)(n) of the Crimes Act, s21A(3)(h) of the CSPA

1. Mr James submits that the Court would find that the Offender has excellent prospects of rehabilitation.
2. The Court need not be satisfied beyond reasonable doubt that an offender will in fact re-offend in the future. It is sufficient, for the purpose of considering the protection of the community, if a risk of re-offending is established by the Crown.
3. I am satisfied that a variety of factors led to the Offender offending. He was no doubt attracted to the lure of easy money in a time of financial stress, he probably wanted to help out a friend whom he felt he owed either money or a favour, and his ability to make sensible decisions was impaired as a result of his psychological issues.
4. Professor Woods considers the Offender would benefit, from a future risk minimisation perspective, from ongoing psychological treatment, which I accept. If the Offender follows through with such treatment, I also accept Professor Wood's conclusion that he is unlikely to reoffend and can be rehabilitated.
5. Most importantly, the Offender's wife has made it clear that she will leave him if he reoffends. If this happens, it will mean he will lose touch with his children. I think that threat of itself is very significant on the questions of specific deterrence and rehabilitation. It may well have more impact on the Offender's conduct than any sentence I impose.

The probable effect on any of the person's family or dependants - s16A(2)(p) of the Crimes Act

1. When the Court has regard to the probable effect that a sentence would have on any of the person's family or dependants, there is no need to demonstrate "exceptional hardship" (see Totaan v R (2022) 108 NSWLR 17 at [82] - [83]).
2. The Offender is a devoted and involved husband and father. He was bail refused for a period of 3 months during which time his wife describes as the most difficult 3 months that she has ever experienced being left to care for the business, the families' financial affairs and the children who have high needs. Given the horrific situation experienced by the family earlier this year where armed intruders stormed into their home, combined with his wife's pre-existing health problems, the family's high anxiety about the prospect of the Offender returning to custody is understandable.
3. There is no doubt that any period of incarceration will be hugely detrimental to the Offender's wife and children. He will no longer be able to run his business and therefore there will be less money available for the family. They will be separated from their husband and father in circumstances that will cause them great distress and hardship. If it were necessary, I would find their circumstances exceptional.
4. That being said, the fact is the consequences to close family members of people who commit serious criminal offences and are sent to jail will almost inevitably be significant. Nonetheless, I take into account and give significant weight to the probable devastating effect any period in custody will have on the Offender's wife and children.

Parity

1. GG was sentenced on 18 July 2024 before Hunt DCJ for offences under s307.11(1) and 11.1(1) of the Criminal Code and an offence under s25(2) and s29 of the Drug Misuse and Trafficking Act 1985 (NSW) of supplying 34.33kg of pseudoephedrine, being not less than a commercial quantity. GG entered a plea at a Super Call Over following committal for trial from the Local Court. He received a 17.5% discount in respect of count 1. He also received the statutory 10% discount in respect of the State offence in count 2. GG was sentenced, as part of count 1, for his involvement in "the Cats Eyes Consignment", but also "the Coconut Consignment" (40.1kg) and "the RIEAD Consignment" (40.3kg). The combined pure weight of the three importations for which GG was sentenced was 114.8kg, or approximately 95.15 times the commercial quantity.
2. On the evidence before me, I have come to a different conclusion as to the relevant positions of the Offender and GG in the "hierarchy". As I have already said, it is my assessment based on the evidence before me, which undoubtedly was different to the evidence before Hunt DCJ, that at worst the Offender was at the same level as GG, but most likely he was less involved.
3. GG was sentenced on the basis that he was not a senior member of the syndicate, because he was in receipt of directions from the Offender and did not provide directions to him. It was held that some of the actions GG undertook could be clearly linked to the Offender, making it more likely he was lower down the hierarchy. He was sentenced on the basis that the Offender was "higher up the chain" than GG. I have come to close to opposite conclusions as to these matters.
4. GG was sentenced on the basis that he was initially operating under a degree of non-exculpatory duress. Hunt DCJ held that GG initially became involved in the offending due to this circumstance, but thereafter became interested in making large amounts of money.
5. GG was found to have "a very difficult past" including imprisonment in Sri Lanka under suspicion of being a spy, during which he was physically and sexually assaulted, together with his circumstances in fleeing to Australia as a refugee. Regard was also had to his family, who remains overseas. These factors, and his diagnosis of PTSD, gave rise to a reduction in his moral culpability, served to make his time in custody far more onerous.
6. It was held that the specific circumstances that gave rise to the offending, including personal strains on him, difficulties because of the COVID 19 pandemic, and the implication of the duress, were highly unlikely to ever repeat themselves. This finding gave rise to an assessment that his prospects of rehabilitation were "extremely good".
7. GG was sentenced on count 1 to a head sentence of 10 years. After the application of a 17.5% discount for the utilitarian value of his early plea, this was reduced to 8 years and 4 months. A non-parole period of 5 years was then fixed.
8. MP was also sentenced on 22 April 2024 before Bourke DCJ for an offence under s11.5 and 307.11 of conspiracy to import a commercial quantity of a border-controlled precursor, namely pseudoephedrine. This offence was a 'rolled up' charge encompassing some 27 consignments. Count 4 related to the 'RIEAD' consignment, an offence in respect of which GG was sentenced, but not one for which this Offender is to be sentenced. The other 26 consignments are unrelated to this Offender. MP was sentenced on the basis that he had an involvement in the importation of at least 82.73kg of pseudoephedrine across the 27 consignments. After the application of a 25% discount MP received a head sentence of six years and seven months, with a non-parole period of three years and nine months.

Resolution as to parity

1. It is extremely difficult, perhaps impossible, to weigh up and compare the Offender's offending and sentencing considerations against that of GG. First, GG was sentenced in relation to 2 consignments, adding up to very considerable commercial quantity. Second, he was not sentenced for the offence that the Offender has accepted he aided and abetted. Third, GG was sentenced for a number of other offences. Fourth, as I have said, GG was sentenced upon the basis that he was lower down the hierarchy than the Offender. I do not, upon the evidence, come to the same conclusion. I think the role of GG was much more involved than that of the Offender. Fifth, GG was sentenced upon the basis of a finding that he was operating under a degree of non-exculpatory duress. Sixth, GG was found to have had a very difficult past and a diagnosis of PTSD, which reduced his moral culpability and would make time in custody more onerous. Finally, GG also had a finding that it was highly unlikely that he would reoffend and that his prospects of rehabilitation were "extremely good".
2. So, it can be seen that, in some ways, GG's case was objectively more serious than the Offenders. In some ways his subjective case bears similarity to the Offender's, and in some aspects GG subjective case appears to have been stronger than the Offender's, in other aspects the Offender's subjective case seems significantly stronger than GG's.
3. I think the circumstances of GG's offending and his subjective circumstances are so far removed from that of the Offender, that the questions of parity do not have any part to play. However, the sentencing of both GG and MP, who of course was not a co-offender, are helpful "comparable" sentences to be taken into account.

Sentences imposed in other cases

1. In Hili v The Queen (2010) 242 CLR 520, the High Court of Australia, by majority, affirmed that consistency in federal sentencing is achieved with regard to what has been done in other cases through the work of the intermediate courts of appeal. This was reaffirmed by the High Court of Australia in The Queen v Pham (2015) 256 CLR 550 at [28].
2. As well as the two cases to which I have already referred, the Crown has provided me with several decisions of intermediate courts of appeal: Ribbon v The Queen [2022] SASCA 15; R v Madgwick [2018] NSWCCA 268; MI v R [2017] NSWCCA 225. The Offender has also relied on the recent decision in R v Butler [2024] NSWCCA 133 ("Butler"). It is not suggested any of the cases in the schedule are 'comparatives' in the sense that they are factually similar in all respects to the current offences. One thing that is clear from a review of these cases is that the notional 'range' for such offending is extremely broad, which no doubt reflects the infinite variety of factual circumstances both objective and subjective. Butler makes it clear that there is no "presumption" in favour of full-time custody, rather that is the usual outcome. Non-custodial options are not outside the range.

The Crown's submission

1. The Crown submits that, having regard to the maximum penalty for the offences, the objective seriousness of the offending, the Offender's role, and the importance of general and specific deterrence, notwithstanding the Offender's subjective case, a substantial period of full-time imprisonment should be imposed on the Offender with a substantial non-parole period to be served.

The Offender's submission

1. Taking into account the objective seriousness of the offence and the need for general deterrence, it is accepted by Mr James that no penalty other than imprisonment is appropriate. However, whether that term of imprisonment is served in a custodial setting or in the community is a live issue. Mr James submits that a custodial sentence of less than 3 years is open to me and that therefore I ought consider ordering the immediate release of the Offender on a Recognizance Release Order.

Resolution

1. The offending is, on any view of things, serious. The Offender presents with what I consider to be a strong subjective case. I really do not think that sending the Offender to gaol will do him any good, however, because of the objective seriousness of the offending and what I consider to be the need to give significant weight to general deterrence, I have concluded that no penalty other than a sentence of full-time imprisonment is appropriate.
2. I have taken into account the Offender's prior good character, the fact that I am satisfied that he is otherwise a productive member of the community in regular employment, and a good family man.
3. I have taken into account and given significant weight to the impact any time he spends in prison will have on his wife and children and what I consider to be slightly reduced moral culpability as a result of the psychological issues identified by Professor Woods. I have taken into account the almost 2 and a half years the Offender has been on bail, not as quasi-custody, but because living with this sentence hanging over his head must itself have been onerous.
4. I accept that he is genuinely remorseful and very unlikely to reoffend. His prospects of being rehabilitated are good, so long as he adopts a treatment plan along the lines suggested by Professor Woods. Unfortunately, such services will not be available to him whilst in prison.
5. The question then becomes what period the Offender should serve. Mr James has powerfully submitted that a sentence of less than 3 years imprisonment would be appropriate, and that in those circumstances, serious consideration ought be given to a release, either forthwith or within a short time, on a Recognizance Release Order.
6. Whilst I do consider that a Recognizance Release Order would be beneficial to, not just the Offender and his family, but to the community generally and if the option was available to me, I would use it to at least shorten any period of imprisonment. However, it is important that I do my best to avoid a process of "backwards reasoning". Having carefully considered the submissions of the parties and in particular the factors I have referred to and taking into account the sentences in the various "comparative" cases to which I have referred, I have come to the conclusion that an appropriate starting head sentence of 4 years is the sentence of minimum severity appropriate in all the circumstances.
7. From this, there should be deducted 10% for the utilitarian value of the guilty plea. Thus, reducing the head sentence to 3 years and 7 months, allowing some rounding in favour of the Offender.
8. That then leaves the question of the minimum non-parole period, which I consider, in light of all of the matters discussed above, should be 2 years. I consider it would be beneficial to the Offender to have a longer period than usual under supervision. Of course, that does not mean the Offender will be released at the end of that period. That is a matter for the parole authorities, but it is this period that I consider should be the minimum amount of time the Offender should be in gaol.
9. The sentence should be taken to have commenced 79 days ago, on 18 September 2024, to take into account the time already spent in custody.

Orders

1. The orders I make are the following: 1. The Offender is convicted. 2. Having deducted 10% for the plea of guilty with some rounding in favour of the Offender, the Offender is sentenced to imprisonment for 3 years and 7 months to commence 18 September 2024 and expire 17 April 2028. 3. The minimum non-parole period is 2 years, commencing 18 September 2024 and expiring 17 September 2026. 4. The first day that the Offender is eligible for parole will be 17 September 2026.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 December 2024