Stuart Ayrton, the prisoner, appears today for sentence in relation to an offence alleging that he between 1 September 2015 and 25 December 2016 did conspire to import a commercial quantity of a border controlled drug, namely cocaine.
The offence carries a maximum penalty of life imprisonment and/or 7500 penalty units. In this matter it is not practical to impose a pecuniary penalty.
The prisoner appears for sentence in relation to two acts of criminality that are connected. A Federal Police investigation in conjunction with the New South Wales Police Force commenced investigation in relation to a person who was subsequently found to be involved in the importation of border controlled drugs into Australia. That person who I will not name was subsequently found to be involved in five significant importations or attempted importations each representing a distinct conspiracy. That person, who has been dealt with in circumstances I will refer to later, was the person who recruited this prisoner.
Those five conspiracies occurred respectively between 14 August 2014 and 13 January 2015 (in the first instance) relating to 28 kg of heroin, 13 January 2015 and 13 May 2015 (in the second instance) relating to 400 kg of cocaine, 1 September 2015 and 13 March 2016 (in the third instance) relating to 610 kg of cocaine, 1 May 2016 and 5 November 2016 (in the fourth instance) in respect of 500 kg of cocaine and, finally, the fifth conspiracy occurred between 1 April 2016 and Christmas Day 2016, again in respect of approximately 500 kg of cocaine. I will refer to these separate conspiracies (which overlap in some respects particularly in relation to the dramatis personae) as the 1st to 5th conspiracies, rather than by reference to the names given to each conspiracy in the Statement of Facts by reference to a particular sea going vessel, or location, concerned with the each particular conspiracy. The reason for that and for my reluctance to identify particular individuals by name is because I was informed by the Crown that at the time of preparing this judgment there was a trial proceeding in the Supreme Court involving an individual who is concerned with one or other of the individual conspiracies. Publication of specific detail, in for example news reports relating to their sentence, may lead to disruption of that trial. That situation changed on the day that judgment was delivered, but the judgment was delivered in this form nevertheless.
R v Ayrton [2020] NSWDC 45 | Case summary | Zoe
The prisoner was involved in the third and fifth conspiracies. He was recruited as I earlier indicated by a principal in all the conspiracies responsible for organising the planned pick up of border controlled drugs and their distribution. In each conspiracy the modus operandi was to have people directly connected with Australia travel overseas and take possession of the relevant border controlled drug off shore and return it to Australia. In the case of the second, third, fourth and fifth conspiracies, this involved sailing a vessel from Australia to what is described as a "mothership" (from South America), unloading the border controlled drugs from the relevant mothership onto the Australian vessel and then the Australian vessel bringing the drugs back to Australia. In each of these instances the "mothership" was a different ship originating from South America. In respect of the fourth and fifth conspiracies the same Australian vessel was used, having been purchased for that purpose. In respect of the first, second and third conspiracies three different vessels were used chartered for that purpose. Ultimately, four separate vessels were used. Of the 5 conspiracies only the 5th conspiracy resulted in border controlled drugs coming into Australia. But not for the want of trying on each occasion.
The offender is a mariner with a number of qualifications which entitled and/or permitted him to be the Master (from time to time) of the relevant vessels by which he participated in the two conspiracies giving rise to the single charge to which he pleaded guilty. This charge represents what is described as a "rolled up charge" or "count" to which he pleaded guilty in early July 2018. As I understand it he was committed for trial on separate charges in respect of each conspiracy. The current charge represents the result of some negotiation between his legal representatives and the Crown. No injustice arises from the way in which the matter is pleaded. Amongst other reasons, because the particulars of the two conspiracies are identified in the indictment and co-accused have had similar treatment. Importantly as it transpired from submissions and the evidentiary material available, of two "co-conspirators" in relation to one, or both, of the conspiracies admitted by the prisoner, one of them was sentenced in respect of a particular count that in its particulars identified two "conspiracies", as well as an additional count for a separate conspiracy. That co-conspirator I will identify by his role, but not his name, for the reasons earlier identified for not naming particular vessels. He was involved in the third, fourth and fifth conspiracies. Thus he was a co-conspirator with this prisoner in respect of the "third" and "fifth" conspiracies. He was an intermediary between the organisers of the importations and the crew of the boats or vessels upon which he travelled. Apparently, he also had a role to oversee the transfer of drugs from the mother vessels and deal with any issues on behalf of the Australian organisers. I will call this man "co-conspirator "A". He was sentenced by Justice Wilson on 14 December 2018, at the same time as her Honour sentenced two of the principals, including the principal who recruited this offender ([2018] NSW SC 1953). That is a "Restricted Judgment", restricted to the parties and parties in related proceedings pending resolution of outstanding related trials.
Co-conspirator "A" was sentenced to an aggregate term of 12 years imprisonment with a non-parole period of eight years and six months imprisonment. In respect of one offence encompassing the two conspiracies which the current prisoner admits, that co-conspirator was sentenced to an indicative sentence of 8 years 11 months imprisonment. I have noted what her Honour said at [441] about the impact of totality upon the sentences she imposed for that offender. But having regard to everything that her Honour said about that topic and having regard to the principles that apply in such matters, such as in Pearce v The Queen (1998) 194 CLR 610, per majority at [45], I must of necessity regard that indicative sentence as representing the appropriate sentence for that offender in respect of common criminality to this offender. Taking into account all relevant matters to that offender, including a 25% discount upon the otherwise appropriate sentence for the utilitarian value of the plea of guilty. That is the only way I can regard the sentence imposed. It has integrity for 'parity' purposes. Whilst that offender was no more important in his role in giving effect to the conspiracies, he was a link between the principals and the offender with a more senior 'executive' function than this prisoner.
The other offenders (who were more senior and culpable than "A"), sentenced by her Honour, were respectively sentenced to 22 years 6 months imprisonment, with a non-parole period of 14 years in respect of one principal and, as I calculated, a total sentence of 17 years imprisonment with a non-parole period of 11 years in respect of the other, slightly less culpable principal. Those sentences provide a context for the sentencing of the current prisoner and I suppose to some extent for "parity purposes". But in the understanding that their culpability and criminality is greater than this prisoner, not only because of the greater number of offences and/or conspiracies in which those offenders were involved, but also having regard to their substantially greater role in the planning and execution of the respective conspiracies. The offender sentenced to the longer sentence was the person who recruited this prisoner.
The other relevant "co-conspirator" (who was not sentenced by her Honour) was a seafarer like this prisoner. Whilst he was a "co-conspirator" in respect of the fifth conspiracy he was not involved in the third conspiracy. He played a similar role to the prisoner in the fourth conspiracy as the prisoner did in the fifth conspiracy (with some differences which I will later identify as I must for parity purposes). I will call this offender "co-conspirator "B". He was sentenced by his Honour Judge Maiden SC last year and those remarks on sentence have been produced. "B" was sentenced by his Honour to a total sentence of 8 years imprisonment with a non-parole period of 4 years 3 months. It was the case that his Honour was dealing with two separate offences, one for each conspiracy in which that offender was involved. But his Honour's reasoning is transparent in so far as the final orders reflect his Honour's view of the totality of the criminality. His Honour's judgment of the matter, although difficult to understand at times, reflects recognition of the sentences imposed by her Honour in the case of "A". The total sentence imposed upon "B" is likewise of relevance for "parity purposes". The Crown in its written and oral submissions recognises the relevance of the sentences imposed upon these two particular co-conspirators to this sentencing exercise. Although it submits in essence that the sentence for "B" is of less salience than the sentence imposed upon "A". In respect of that person it is submitted that I should pay heed to what her Honour said at [441] of her judgment, which I have done. In acknowledging those sentences as providing a measure for the appropriate sentence to be imposed here, it is acknowledged by both parties that the discount for the plea of guilty, which I may give noting the Crown's written submissions on this matter, will be less here than it was in those two cases.
Although "A" and "B" were sentenced at different times by different judges they each received a discount of 25% upon the otherwise appropriate sentence to recognise the utilitarian value of the pleas of guilty. Both men pleaded guilty at the Local Court and were committed for sentence. Given the complexity of the prosecution their pleas of guilty had significant utilitarian value. This prisoner was committed for trial. There were delays in the matter being listed for trial (no fault is attributed to either party), but the Crown did offer this prisoner the opportunity to plead guilty to the charge he eventually pleaded guilty to (that is by rolling up two charges into one) a year before the trial of this prisoner was to commence. The trial ultimately was listed to commence in August 2018. The prisoner had a change of legal representation and discussions commenced in June 2018 with a view to the prisoner pleading guilty. This he did in early July 2018, approximately a month or so before his trial was to start. This prisoner was to be tried with another two people at that time. The trial proceeded in relation to one of those co-accused. I acknowledge, in the context of measuring the utilitarian value of the plea of guilty, that at the time of the commencement of negotiations up until the entering of the plea of guilty, there had been considerable preparation for the trial. It is to be recognised that a deal of that preparation was still required to conduct the trial that eventuated. However there was also some adjustment to that preparation to be made in light of the relatively late plea of guilty.
On the other hand there can be no doubt that the plea of guilty entered by this prisoner would have substantially reduced the period of time required for any trial of all co-accused together. I was told that the estimate for the original trial was up to 10 weeks, although I appreciate trials can go longer than the estimates. The plea entered by the prisoner was not a plea entered at the doorstep of the court as the trial was about to commence. Whilst I am mindful that the 'guideline judgment' of Thomson and Houlton, [2000] NSW CCA 309, does not apply as such, that judgment does identify features of the timing of the plea that may reflect upon the utilitarian benefit of a particular plea. The greater distance the plea from the commencement date of the trial usually the greater the utilitarian value, although not always. Noting the obvious complexity of the particular trial that could be anticipated involving three co-accused and the timing of the plea, I am prepared to afford the prisoner a discount of 12½% upon the otherwise appropriate sentence to reflect the utilitarian benefit of the plea of guilty and to some extent the facilitation of the course of justice.
The plea of guilty represents some contrition on the part of the prisoner, as does his letter of apology. However contrition is not a significant matter in this sentencing exercise. His contrition as expressed is to be viewed in the context of the delay in entering the plea and the lack of co-operation with investigating officials on arrest and subsequently. It was submitted by his counsel that I should provide the prisoner with a discount of 15% upon the otherwise appropriate sentence. The Crown submitted that the discount should be 10% if a discount was to be given. Noting the timing of the plea consideration of the 15% discount is not one that is outside the bounds of reasonableness. But in this particular matter that extent of discount is not appropriate having regard to the earlier offer of a plea of guilty to the one charge made by the Crown and declined by the prisoner. The timing of the plea in relation to the date for the commencement of the trial also reflects upon the value of the plea as some evidence of contrition, but belated. When one has regard to the 'Agreed Statement of Facts', it is clear that there could be no doubt that the accused was relevantly involved in the respective conspiracies. That is, that he had agreed to commit particular crimes before embarking upon conduct evidencing the existence of that agreement.
With regard to the issue of 'parity' this was the subject of discussion with both learned counsel. It was agreed that the appropriate approach in the circumstances of this case, given the different roles of different co-conspirators and other points of difference and similarity, was to approach the matter on the basis that "alike shall be treated alike and the unlike will be treated unlike in proportion to their unlikeness on rational and reasonable grounds", consistent with principles of "equal justice" laid down in decisions such as Postiglione v The Queen (1997) 189 CLR 295, at [301]-[302] per Dawson and Gaudron JJ; Jimmy v Regina [2010] NSWCCA 60, per Rothman J at [254]- [255]. Of course, this general principle has application not just to comparing the sentences imposed upon "A" and "B", but sentences imposed upon other offenders. In that regard particular significance must be given to the sentences imposed by Justice Wilson given her opportunity to sentence three co-conspirators at the one time, including a principal that recruited this offender.
There is no need for me to go into great detail about the role of others because the case was conducted here by the prosecution with an acknowledgement that there was a clearly identifiable hierarchy within which this prisoner and others fitted, or whose roles could be clearly identified. It is acknowledged by the Crown that "B" performed very similar roles to this prisoner in respect of not only their common conspiracy but also as between this prisoner's role in conspiracy "3" and that co-conspirator's role in conspiracy "4". Putting aside the distinction between this prisoner and "B" because of the different discount for the pleas of guilty, there are other matters that distinguish this prisoner from that co-conspirator in respect of either common criminality, or different criminality although of a highly similar character. It is to be acknowledged that conspiracy "3" and conspiracy "4" are highly similar conspiracies with many common elements, concerned with a very similar quantity of drugs (both conspiracies being unsuccessful in obtaining the drugs) and with identical modus operandi. The same can be said for conspiracy "5".
"B", in respect of conspiracy "4", assumed a role identical to this prisoner in respect of conspiracy "3", in that he ultimately became the "skipper" of the commercial fishing vessel that was to pick up the relevant drugs from the mothership. But in conspiracy "3" (concerning this prisoner) he agreed to perform that role and participate in the conspiracy before the vessel that he took control of had left port in Hobart. "B" assumed control of the vessel after the vessel had left port when the designated skipper declined to be involved in the conspiracy having become aware of the true purpose of the voyage after the vessel had left Sydney en route to Lord Howe Island. In respect of this prisoner he had agreed in respect of conspiracy "3" to skipper the vessel for the sum of $150,000. This prisoner was ultimately only paid $5000 in respect of conspiracy "3" when it failed to achieve the agreed purpose.
In respect of the common conspiracy between this prisoner and "B", this prisoner agreed to perform the role he did for 1½ million dollars, the co-conspirator agreed to perform his role for $1 million. That is a substantial difference in remuneration. There may have been in the proposed payment to Mr Ayrton a component of the payment taking into account what he had not been paid for his involvement in the third conspiracy. Although that is not expressly identified in the facts. Whilst this prisoner and "B" had very similar roles in their participation in the final conspiracy it is clear that both men were performing their functions at the direction of others. I assess the criminality of this prisoner in respect of conspiracy "3" to be greater, although marginally so, than that of "B" in respect of the fourth conspiracy, primarily because of the longer period comparatively that this prisoner could be identified as the skipper of the relevant vessel compared to the role being played by "B". Likewise, bearing in mind the greater financial reward for this prisoner, I identify the objective criminality of this prisoner in conspiracy "5" as very slightly greater than that of "B", albeit that they performed very similar roles. Given the character of the vessel and the fact that there were only two experienced crew on board the two men obviously shared many of the same duties in performing their fundamental task of piloting the boat to the rendezvous to obtain the drugs at sea and piloting the ship back to Sydney Harbour to enable the drugs to be unloaded. Thus, he was to all intents and purposes, the "skipper" of the vessel for the period of its sailing although he shared that responsibility. Subjectively, "B"'s relevant circumstances were similar to this prisoner, save for greater contrition, more cooperation with the investigators, and a diagnosis of throat cancer.
I am required to sentence this prisoner in accordance with the provisions in Part 1B, Commonwealth Crimes Act, 1914. I am to impose a sentence of "a severity appropriate in all the circumstances of the offence" (s.16A(1) of the Act). From the Agreed Statement of Facts I can determine the nature and circumstances of the prisoner's involvement in conspiracy "3" as follows (16A(2)a): others organised the importation of 610 kg of cocaine on a mothership from Panama to be collected at sea by a vessel and crew provided by the principal organiser. The principal organiser arranged for the charter of the relevant vessel, organising another skipper at first who had to withdraw after being diagnosed with throat cancer and then the prisoner, who the principal organiser had known for up to 20 years through their common involvement in commercial fishing and like activities. Arrangements for the crewing of the vessel and the like were in the hands of others. The initial discussions and then planning for this conspiracy started in December 2015. In February 2016 the principal organiser contacted the prisoner, initially asking if he would be interested in some work on a charter boat as a skipper or an engineer. The original skipper hired was aware of the true purpose of the charter and in fact agreed to contribute $50,000 towards payment to this prisoner with the principal organiser paying the balance. This agreement from the original skipper occurred a fortnight after he indicated that his medical treatment would preclude him from sailing on the boat. The prisoner was given information about the forthcoming trip on the vessel to be sailed from Hobart, including the fact that the nets would be taken off the vessel to remove the need for an observer from the Australian Fisheries Management Authority to be present.
The prisoner flew from Melbourne to Sydney to meet the principal organiser where the prisoner was told on 1 March 2016 that the vessel would be meeting another boat at sea and the prisoner's financial interests would be taken care of if he captained the ship. Unbeknownst to the prisoner and others, the mothership, a Panamanian flagged vessel, was intercepted by the French Navy near French Polynesia and a search of the vessel located approximately 610 kg of cocaine consistent with the quantity organised by others. The facts state that the prisoner was "eased into" knowledge of the true purpose of the voyage. The prisoner, one of the principal organisers and "A", as well as the man who recruited the prisoner, travelled on the vessel from Hobart to Sydney between 10 March and 14 March. The vessel was on its way into the Tasman Sea, or Pacific Ocean, on 14 March but later that day the principal organiser who was on the vessel was advised by other co-conspirators of the interception of the mothership and that the arrangement had to be called off. As I earlier pointed out the facts provide a great deal of detail about the communications between various co-conspirators other than this prisoner and the detail of that need not be repeated other than to note that this prisoner returned to Tasmania on the vessel that had been chartered on 18 March 2016. The machinations of the lack of trust between the co-conspirators and their arrangements for payment of one another is not pertinent to this sentencing exercise other to demonstrate their greater involvement in arranging and furthering the purposes of the conspiracy.
The drugs seized by the French Navy had a median wholesale value of approximately $129.5 million and a median street value of approximately $182 million. There were 610 blocks of powder with a minimum purity of 73.9%, or an estimated total weight of pure cocaine of 449.24 kg, the relevant weight for Commonwealth sentencing purposes.
His role in relation to this conspiracy was, as an experienced fishing boat operator, to captain the vessel. He was obviously highly trusted by the principal organiser. He was to receive $150,000 for performing his role. He only knew the full nature and extent of the enterprise, however, shortly before the vessel departed Tasmania (after his recruitment) although he understood the unusual nature of the charter. He was entrusted with the coordinates for the drug handover and in fact expressed some concern about the rendezvous being too close to Norfolk Island, which increased the chance of detection by authorities. The conspiracy ended when the boat was a few hours out of Sydney but 3 ½ days from the rendezvous point. He at one point turned the vessel around when there were difficulties associated with establishing communication with the mothership, although the extent to which he was solely responsible for that decision cannot be determined. His involvement in the first conspiracy informed him of the significance of the tasks he undertook in relation to the second conspiracy of a similar nature. The prisoner was told in May 2016 that he would be paid $5000 compensation for his frustrated efforts in furtherance of the first conspiracy in which he was involved.
In relation to the second conspiracy in which the prisoner was involved (conspiracy "5"), the principal organiser contacted the prisoner in September 2016 to tell him about another arrangement to obtain drugs by picking them up at sea. The principal organiser who recruited the prisoner purchased the commercial fishing vessel used in the fourth and fifth conspiracies in that month. Most of the preparations for the voyage through September and October were undertaken by others, including the principal organiser. It is of some significance that the prisoner was not involved in, nor was aware of, the fourth conspiracy which involved both "A" and "B" but not this prisoner. The prisoner became aware of the failure of the fourth conspiracy after the event and it was in preparation of the vessel for the fifth conspiracy that the prisoner was offered $1.5 million to be in charge of the vessel. The prisoner arrived in Sydney on 14 November 2016 and on 22 November 2016 he was given information by the principal organiser of the plan for the importation. The prisoner then involved himself in various tasks associated with the final preparations for the voyage and the vessel with the prisoner as skipper, assisted by "B" (an experienced mariner). "A" and another person, more highly placed in the syndicate, were on board. During the voyage the prisoner had direct communication with the principal organiser giving him updates and advice as to what was occurring.
The prisoner with the assistance of "B" coordinated the rendezvous with a Colombian mothership and 500 kg of cocaine was transferred to the vessel, with a Rigid Hull Inflatable Boat (RHIB) piloted by "B" to affect the transfer. This occurred on 17 December 2016. The vessel was piloted back to Sydney by the prisoner and "B". When the vessel was anchored in Sydney Harbour off Parsley Bay the RHIB was loaded with the cocaine and taken by the more highly placed member of the syndicate into shore where he and those awaiting him were arrested, as were the prisoner and "B" on the vessel.
In relation to this offending the prisoner was fully aware of the purpose of the voyage and performed his responsibilities in piloting the ship, affecting the transfer of drugs, reporting the progress of the enterprise and returning the drugs to Australia efficiently and professionally. The prisoner had some input into the arrangements for the handover, advising that it not occur within Fiji's Exclusive Economic Zone. Although one might have thought this advice amounted to common sense. Whilst he may not have known the precise amount or type of drug being collected at sea he was well aware of the sophistication of the arrangements to affect the transfer and having regard to the size of the financial reward for him, the value in general terms and the character of the importation must have been well known to him. Once the drugs were delivered to his vessel he had a clear understanding of the quantity of the drugs involved. He performed an essential function as did "B". I note the submissions of the Crown in respect of the importance of identifying what an offender did and recognising the importance of sentencing participants in such conspiracies making due allowance for their relevant role. The success of such operations depends upon people such as this prisoner being ready, willing and able to undertake particular roles at the direction of others. I also note the observation by the Crown of the prisoner bringing essential technical skills to bear to permit the risky and complicated process of transferring the drugs at sea to avoid detention.
The statement of facts in relation to the fifth conspiracy contains a great deal more detail about the character of the communications to further the conspiracy as well as actions other than those of this prisoner. Many of the details available to the court of the extent of communication between parties, their actions and the like, arise from the extent of the surveillance of the various co-conspirators unbeknownst to them. I have taken into account specific detail contained within those facts as it identifies specific things done by the prisoner within the ambit of the summary above of the prisoner's role and function and the breadth and character of the conspiracy. The offence for sentence represents a course of conduct as I have outlined (s.16A(2)(c)).
The drugs that were seized in Sydney on Christmas Day 2016 comprised 500 individual blocks of powder constituting 501 kg of substance with an average purity of between 74.8% and 79% of cocaine, arriving at a quantity of 388.8 kg of pure cocaine. The median wholesale value of the bulk with that level of purity was approximately $106.5 million, the median street value was approximately $150.3 million. The purported fee for the prisoner was in context not an insignificant amount, allowing for the proceeds of the crime being shared by a number of people, many of whom would expect to receive greater remuneration than this prisoner.
The prisoner when arrested declined to participate in a record of interview and in reality is provided no cooperation to the investigation. Of course, he does not get extra punishment for that. But no issue of assistance or cooperation arises in his case. No other offences are to be taken into account and no particular victim is identified (although there was potential for victims to be affected) and no loss or damage identified.
As I earlier indicated the prisoner has expressed contrition through his plea of guilty and through his counsel, but contrition is not a significant matter in this sentencing exercise for the reasons I earlier indicated (16A(2)(g)). Its expression is far from timely.
There is without doubt in this sentencing exercise, having regard to the character of the offending and the willingness of the prisoner to participate in the offending in each instance for a substantial period of time, there is a need for some weight to be given to specific deterrence (s.16A(2)(j)). Notwithstanding the fact, I acknowledge, that there is no evidence of antisocial conduct of substance, nor association with drug dealing and distribution before his involvement. I make this finding taking into account his period of general good character and absence of significant criminal history. The sentence I propose will be salutary given these matters.
Obviously in drug importation matters weight is required to be given in sentencing to general deterrence (s.16A(2)(ja)) and "adequate punishment" (s.16A(2)(k)). These are highly significant factors. These and other relevant matters in this sentencing exercise are emphasised from the helpful summary of principles set out by Johnson J for the Court in R v Nguyen and Pham [2010] NSWCCA 238, at [72]. Those principles have application both to the completed conspiracy and the conspiracy that was unrequited (for example at [72 (l)]. The quantity of the drug and the sophistication of the plans for importation in this matter underline the weight required to be given to general deterrence. Of course, these matters were clearly taken into account by her Honour Justice Wilson in the related sentencing proceedings.
So far as the character, antecedents, age, means physical and/or mental condition of the offender (s.16A(2)(m)), I note that he was a man of industry and skill as a mariner, no doubt the reason for him to be recruited. Notwithstanding that he did not give evidence I generally accept the detail of his background as is set out in the history provided to Mr Borenstein who prepared a psychological report of the prisoner dated 11 February 2020. Although born in Britain he has lived in Australia most of his life and has been working in the fishing industry and related areas for over 35 years. The prisoner is now aged 57. He was 53 and 54 at the time of the relevant offending. He was a mature man who made considered decisions under no pressure. There is nothing about his background that speaks of social alienation, dysfunction or disadvantage. I note his explanation for his agreement to participate in this crime being financial difficulties is not a mitigating factor. I also note that the relationship he had with the principal co-conspirator creating some sense of indebtedness towards that person for opportunities that person had provided the prisoner in legitimate employment. Again, this merely explains how he was recruited.
In that regard I note the details of his curriculum vitae setting out the width of his experience as a seaman, engineer, deckhand and Master. The prisoner speaks of some deterioration in his health whilst in custody, having never been in custody before and also the fact that it would appear his marriage of approximately 30 years is at an end. He has family connections to Victoria. His imprisonment will involve a degree of isolation from family and support, which will render some additional hardship to his circumstances in custody. This is a matter, it must be said, that would be reasonably expected by committing a crime that could involve imprisonment in a State other than Victoria or Tasmania. He states that his wife has not spoken to him since his arrest. His mother, who is still alive (and I take to be someone in her 80s), is unable to visit him for financial reasons. The prisoner states that he has been productive in custody, working in the 'maintenance department' of one section of Long Bay Gaol for the past 18 months. I have no doubt given his background and his technical skills he will be a useful and trusted inmate as he has demonstrated in custody thus far.
The prisoner has no significant prior convictions. Some minor dishonesty in Queensland in 1982, three drink-driving offences in Tasmania in 1991, 1994 and 1995 (dealt with by fines or a suspended term of imprisonment) and what appears to be intoxication related offences of criminal damage and being on premises without lawful excuse, dealt with by small fines in Albany, Western Australia during 1989.
Mr Borenstein could find no evidence of historic or contemporaneous mental disability or psychiatric disorder. There are no current symptoms of thought disorder or perceptual disturbance. There is nothing in his history to demonstrate antisocial or criminogenic attitudes. There is no detail of psychometric testing, but the psychologist is an experienced clinician and his assessment of the prisoner is uncontroversial.
Within the material tendered on behalf of the prisoner were references from the sister of the prisoner and his mother. Those references contain information supporting the general history of the prisoner which I have outlined, confirm the difficulties in visiting him in custody in New South Wales and express their continuing support for him in custody and on his release. They confirm his industry and application to better himself over the years. His sister gave specifics of the circumstances in which he became unemployed shortly before his recruitment to this criminal enterprise. A trawler that he was working on was pulled out of service in Australian waters to return to Holland fairly abruptly and this left him without work at short notice. I note the Crown's submissions concerning the weight to be given to "self-reporting". But my findings are not at odds with anything that has been submitted by either Crown or defence about the prisoner's character antecedents and other relevant personal circumstances.
I assess the prisoner as having good prospects of rehabilitation. His detection and incarceration have been a salutary experience for him. He has no prior history of anti-social conduct of significance, nor anything other than generally pro social attitudes, although his agreement to be involved in these two conspiracies reflect a very significant lapse of moral judgment which possibly could be repeated, but most likely would not (s.16A(2)(n)). No significant effect on third parties is established (s.16A(2)(p)).
The Crown has provided details of comparative cases to which I have had some regard in the context of close consideration of the reasons of Justice Wilson and Judge Maiden SC. So far as comparative cases are concerned they provide some guidance both in terms of general principles and ranges of sentence appropriate for like offending. However the sentencing of co-conspirators to this offender provides surer guidance given the common facts, or highly similar facts, to those that I am required to consider in this sentencing exercise (cf R v Hili [2010] HCA 10; R v Gow [2015] NSW CCA 208).
In that regard returning to one aspect of the submissions of the Crown on the 'parity' issue, it is submitted that when the prisoner is compared to "A" and "B", his overall criminality should be assessed as being closer to "A". I am not entirely in agreement with that analysis, although I accept the prisoner's overall criminality in an objective sense is slightly higher than "B" for the reasons I have earlier indicated. "A" performed different functions, but had a significant executive role. He was also involved in three of the conspiracies, not two, showing his more intimate connection with the intricacies or machinations of the various conspiracies. Both this prisoner and "B" could be sentenced as having insignificant criminal histories (allowing for the fact that prior good character is generally given less weight as a mitigating factor on sentence, amongst other reasons because such people are less likely to attract attention from authorities). "A", however, had a "more serious criminal record" and was subject to significant conditional liberty at the time of his offending, on bail in relation to drug trafficking offences in Queensland. There can be no doubt having regard to his role that he was a person with experience in drug trafficking which is a matter not only relevant to his subjective circumstances, distinguishing him from this prisoner, but explaining his involvement in the offending and his capacity to perform such roles as were allocated to him.
It follows from the various findings I have made that I have had regard to the various submissions of the parties. So far as the prisoner's counsel's oral submissions are concerned he particularly stressed (in the context of "parity" principles the close relationship of the criminality of this prisoner to "B", the significant differences between this prisoner and "A", this prisoner's "long and productive" work history, his comparative isolation in custody, his regret for his offending and the calculation of the discount for the plea of guilty (all of which have been taken into account and referred to in my earlier remarks)
I have concluded that the starting point of the sentence for this prisoner should be between what I calculate to be the starting points for the sentences imposed on "A" and "B". Slightly closer to the sentence for "B". In the case of "A" 11 years and 10 months imprisonment, in the case of "B" 10 years eight months imprisonment. Thus, the starting point for the term of imprisonment for this prisoner is 11 years imprisonment. With the discount for the utilitarian benefit of the plea of guilty the sentence should be for this offender 9 years 7 months imprisonment, to date from 25 December 2016. In respect of that term of imprisonment I fix a non-parole period of 5 years 9 months imprisonment to expire on 24 September 2022.
In sentencing the prisoner I have had regard to s.17A and s.19AB Crimes Act (Cth), 1914. The non-parole period represents the minimum period the prisoner should be in custody having regard to the objective seriousness of the offending, the subjective circumstances of the offender, the need for the prisoner to receive professional assistance to adjust to community living and receive guidance as to employment, training and his personal associations.
[2]
ORDER
The prisoner is convicted. He is sentenced to 9 years 7 months imprisonment to date from 25 December 2016, expiring on 24 July 2026. I fix a non-parole period of 5 years 9 months imprisonment, expiring on 24 September 2022.
[3]
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Decision last updated: 13 March 2020