HIS HONOUR: Josef Barber‑Battese stands for sentence as a consequence of pleading guilty to a charge that between 8 September 2022 and 16 September 2022 at St Peters in the State of New South Wales and in the suburbs of Brisbane in the State of Queensland did aid in the trafficking of a substance which was a controlled drug, namely, cocaine, and the quantity trafficked being a marketable quantity, namely, 492.7 grams.
That is an offence contrary to s 302.3(1) of the Criminal Code Act of the Commonwealth of Australia. The maximum penalty for this offence is imprisonment for 25 years and or a fine of 5,000 penalty units. There is no standard non-parole period.
The Crown filed an indictment on or about 28 June 2024 and the offender was arraigned on it today and pleaded guilty to the charge on that arraignment. However, it is common ground that the offender pleaded guilty to the charge in the Local Court, as I understand it, at the earliest available opportunity. He is therefore entitled to an appropriate discount for the utilitarian value of his early plea of guilty.
[2]
Facts
There are a set of agreed facts between the parties. They comprise some nineteen paragraphs over five pages.
In 2022 the New South Wales Police commenced an investigation into the importation and trafficking of prohibited drugs by a number of individuals. They were investigating a syndicate which was importing and distributing throughout Australia many kilograms of cocaine and methamphetamine. The syndicate was dealing with millions of dollars.
As a result of investigation between September and November 2022, charges were laid against a number of people. They included:
1. Watcharaphong Aphichotnithithon to whom I shall refer, if necessary, as WA;
2. Tung Huu Bui, to whom I shall refer as Bui;
3. Mr Joseph Campbell, to whom I shall refer as Campbell; and
4. Sutthichai Torthitithan, to whom I shall refer to as ST.
On 6 September 2022, ST exchanged messages with a person known only as "Razor" on the messaging service Threema about sending a worker, who was later identified to be the present offender, to Queensland to assist in the trafficking of cocaine. The agreed facts then set out the conversation between Razor and ST, and the times of each call. Essentially, Razor told ST that he had recruited a "new worker" in Sydney and he was available to be flown to Brisbane to do work and then to fly back to Sydney. Later, ST advised Razor that he could sort out everything else, such as flights, accommodation, car rentals and driver's licence from interstate.
Later, Razor advised about drugs that he was going to make available and there appears to have been a discussion about price.
In the next set of remarks made by ST, he indicated that he would cover the expenses of the worker recently recruited by Razor and that he would need to talk to the new worker in person to explain things to him. On 7 December 2022, there were further conversations between Razor and ST. Essentially, Razor asked ST to send an address to him where the new recruit, the offender, could meet ST. ST suggested a venue known as Societe On King, an outlet on King Street, St Peters. At the same time ST asked Razor whether his new worker could be able to "handle all paper" meaning paperwork. A little later Razor suggested that it may be prudent to have the worker stay in Queensland overnight because flying to Brisbane in the morning and flying back in the afternoon could be seen as being suspicious. A response made by ST seemed to accept that proposition.
On the morning of 8 September 2022, it was agreed between Razor and ST that a meeting between ST and the present offender would take place at 10am. Razor told ST the person he was meeting with was "like a red haired guy" and "young bro, like 20s." At the time, the offender was 24 years old and he sits in the dock today with red hair, and photographs exposed in 2022 tell me that he was red headed at that time. Call charge records of the offender's telephone suggest that he did make that appointment with ST.
On 12 September 2022, Razor and ST exchanged numerous messages to organise how they would send drugs to Queensland. The conversation concluded with this message from ST:
"Get it to me tomorrow. It will be ready Thursday morning. Therefore our a mob at warehouse [which was incorrectly spelt]."
Shortly after 11pm that day, Bui sent to ST numerous messages including photographs containing detailed instructions of how to access the Kennards Self Storage facility at 21 Turbo Drive, Coorparoo in Queensland, that Campbell had rented earlier that morning.
At 4.36pm on 13 September 2022, Razor told ST that he was sending what would appear to be codewords for a quantity of drugs to Queensland. ST said that they would get there on Friday morning.
On the morning of 15 September 2022, Razor set up a group chat on Threema to introduce ST and the offender. Flights were organised for the offender, leaving Sydney for Brisbane at 6am on 16 September and returning from Brisbane that afternoon at 3.05pm.
ST gave the offender detailed instructions as to what he was to do in Queensland. He gave him details of the storage unit at Coorparoo, told him that when he arrived there, he was to park in a parking bay and he would see lifts. He told him to use the lift on the lefthand side, told him the PIN code to enter into the lift and to select level 3, and told him when he arrived at level 3, and gave him the unit number, and the PIN code for that unit.
At 5.37am on 16 September 2022, it is clear from the records of the offender's phone that he went to Sydney Domestic Airport. By 7.18am he was in Queensland. His phone accessed base stations around Brisbane, including Coorparoo, South East and Brisbane Domestic Airport until 2.57pm. It is clear that he was therefore taking a plane back to Sydney that left Brisbane at 3.05pm.
Earlier on that day at 8.17am, the offender sent a message to the Threema group chat that had been arranged with Razor and ST. The offender asked whether the package which he was to receive was in fact a Sydney Tools red box, which it was.
Closed-circuit television (CCTV) records from Kennards Self Storage at Coorparoo showed the red Sydney Tools box being unloaded from a truck at 8.32am. Other images show the offender pushing the toolbox up to level 3 using the lifts. At 8.52am, the offender sent to both Razor and ST via the group chat photographs of the Sydney Tools box in the storage unit. At 11.32am, ST sent to Razor and the offender photographs of what was inside the toolchest, that is, not only the tools on top of a false bottom but what was under the false bottom. At 5.54pm, the offender sent a message both to Razor and ST that he had arrived home. At 7.51pm, ST sent a message again through the group chat saying that "Ur money counter has arrived mob".
On 21 and 22 September 2022, the Queensland constabulary executed search warrants at the Coorparoo storage unit that Campbell had rented and which had been visited by the offender on 16 September 2022. The Queensland Police located the large red toolbox which had an Apple AirTag located on its undersurface. Within it they found three blocks of white powder contained within heat-sealed plastic bags and covered in duct tape. The blocks were analysed and found it to be a total of 2.9868 kilograms of cocaine cut with levamisole and lidocaine. The total amount of pure cocaine was determined to be 492.7 grams.
The minimum marketable quantity of cocaine is 2 grams. The commercial quantity, however, is 2 kilograms. The total amount of the marketable quantity was substantially less than the commercial quantity. If the commercial quantity had been established, the offender would be facing a potential life sentence.
[3]
Arrest
The offender was arrested by police on 10 August 2023. He declined to comment on the allegations made to him in an electronically recorded interview. After he was arrested, he was held in custody until granted bail on 17 November 2023. He spent 100 days in custody.
His initial conditions of bail were onerous. The original conditions were so strict that the offender was unable to work and therefore unable to support his family. He was required to live with his mother in South West Rocks. Before he was arrested, he was living in Sydney with his partner.
On 29 April 2024, those conditions were relaxed to the extent that the offender was permitted to work but he is still required to live with his mother and grandmother in South West Rocks, rather than with his partner back here in Sydney. Being, essentially, housebound with his mother persisted for some six months.
By occupation, the offender is a plumber and since he was permitted to work has found steady work with a local plumber, Mr Richard Burns, who has provided the offender with an excellent reference.
[4]
Level of Involvement in Criminal Activity
I am required to consider the offender's part in the criminal activity involved. Here, the allegation is his involvement between 8 and 16 September 2022 both in Sydney and in Brisbane aiding in the trafficking of the marketable quantity of cocaine. The offender's role appears to have been limited to making contact with Razor who clearly recruited him into being a "worker" for this syndicate, and of his taking the role of flying to Brisbane, taking delivery of the Sydney Tools toolbox in which the cocaine was concealed, and moving it from where it was delivered at Coorparoo into the storage facility and making sure that it was received, put in the appropriate storage unit and that what was supposed to be there was there. He then flew back to Sydney. There is no suggestion that he took any further part.
From the subjective material it is clear that the offender did that work for this drug syndicate for the promise of money because he had run up a large debt because of his own drug habit.
[5]
Criminal History
At the time of the offending, as I said, that the offender was 24 years old. He is now 26 years old. He has a criminal history, but it is minor.
On 10 June 2017, he committed the offence of driving with the middle range prescribed concentration of alcohol in his breath or blood. For that, he was fined $500 and was disqualified from driving for six months. That is of little moment in the current case.
On 10 April 2018, he was charged with possession of a prohibited drug. He was dealt with under s 10 of the Crimes (Sentencing Procedure) Act 1999 and was released on a Conditional Release Order without any conviction being recorded. It does, however, tell me that the offender was using drugs at that time.
On 16 January 2020, the offender was found to have been driving a vehicle with an illicit drug present in his blood or breath. For that he was fined $500 and was disqualified from driving for four months. Again, it is consistent with being a drug user.
Both drug offences were dealt with by the Local Court at Kempsey and one, assumes, therefore that they were committed when he was still living at home with his mother in South West Rocks.
It is noteworthy that when in custody for 100 days the offender committed no offence against prison discipline.
[6]
Objective Seriousness
In R v Campbell [2024] NSWDC 413, I sentenced Joshua Campbell for his role in this drug syndicate. Campbell committed a number of offences. However, one of them was the same offence for which the offender currently stands for sentence. When considering the objective seriousness of Campbell's offence I said this:
"44 ….As far as Count 2 is concerned, the offender's only involvement was his hiring the storage facility at Kennards Storage facility at 71 Turbo Drive, Coorparoo, which is a suburb of Brisbane. There is no suggestion that he did so by travelling to Brisbane. It was obviously done in some electronic way. He did that at the request of Bui and sent details of the hiring back to Bui. There was no other involvement in the trafficking of the marketable quantity of cocaine.
45 By his plea, the offender admits that he was reckless about whether the substance was a border-controlled drug. His plea does not contain an admission that he knew what was being dealt with was cocaine or some other border-controlled drug. As I said, he was reckless. The fault element for the quantity of the drug being trafficked is absolute liability under the Criminal Code s 302.3(3). His involvement in the trafficking of the cocaine was minimal and therefore, as submitted by the offender's learned counsel, his conduct was at the lower end of the range of objective seriousness."
This offender's role was merely to travel up to Brisbane, take delivery of the toolbox from Sydney Tools when it was delivered to the storage facility, and then to move that toolbox through the facility into the hired storage unit and to place it there, and to then see whether it had been tampered with, which it had not. He then returned to Sydney. Like the involvement of Campbell, his involvement in the trafficking of the cocaine was minimal and therefore should be seen as being at the lower end of the range of objective seriousness.
Indeed, in one respect, this offender should be seen as having, perhaps, a lesser role than Campbell in that he physically went to Brisbane, went to a facility where there was CCTV, went to a facility where his presence could be easily ascertained by the police, who obtained the CCTV after the event. It was more likely that he would be detected there than, for example, somebody hiring the unit under a false name, merely by dealing on the telephone or by using a computer to make a booking over the internet. The role played by this offender was much more dangerous than the role played by Campbell. Although he may not have realised it at the time, it was potentially more dangerous than the role of Campbell.
[7]
Personal Circumstances
I turn now to consider the offender's personal circumstances. There are before me a number of affidavits. There is one affirmed by him on 3 September 2024. There is another affirmed by his mother on 5 September 2024. There are affidavits from his lady friend, Ms Sarah Nogotau, one affirmed on 12 September 2023 and another affirmed on 11 September 2024. None of the deponents have been required for cross-examination.
In his affidavit, the offender said this:
"[4] My parents separated when I was two, due to my father's consistent drug addiction and social status. Growing up, my father was a member of an Outlaw Motorcycle Gang. After a 'shootout' occurred that involved my father in Mackay, my mother took the step to leave the relationship and retain full custody of my older brother and [me] due to the imminent threat to our safety.
[5] We have not had a relationship with our father until very recently.
[6] After leaving the relationship, my family and I struggled to make ends meet despite my mother working full-time as a bartender. She would often have to borrow money from family or friends to cover our necessities such as rent, utilities, groceries and the like. During this period, my father would visit for a weekend, and then we wouldn't hear from him again for another two years. This pattern repeated throughout my entire adolescence, which has had significant ramifications on my mental and emotional well-being.
…..
[8] I graduated from Melville High School [at South Kempsey] completing my Higher School Certificate. I immediately entered at the workforce to facilitate a better lifestyle and opportunities for myself and my family, both financially and mentally.
[9] I currently reside at home with my mother and grandmother. My mother and grandmother have both developed a significant reliance on me to support them financially, emotionally, mentally and otherwise.
[10] My grandmother is 83 years of age and has recently moved in with my mother and [me]. Due to her old age, she constantly struggles to carry out basic daily tasks without assistance. My mother and I typically substitute care depending on our work schedules.
[11] Furthermore, I am a significant contributor to the household expenses. I am responsible for paying the rent and contributing to other household expenses and bills. My mother and grandmother would struggle to make ends meet in my absence.
[12] For the last three and a half years I have been financially supporting my partner. She has been saving to buy a property whilst also supporting her family financially and playing in the National Rugby League Women (NRLW). During this time, I have been responsible for the majority of her financial obligations.
[13] Although I have other siblings, they do not reside in New South Wales. My eldest brother currently resides on the Gold Coast and is employed fulltime as a fly-in and fly-out worker in Perth. My youngest brother lives in Melbourne. I have never resided with him before.
[14] I am a qualified plumber and employed fulltime with Bill Burns Plumbing and Roofing. Prior to my arrest, I often volunteered at the surf club teaching young children and teens how to surf. Furthermore I currently volunteer as a trainer at my local NRL club, and I assist in organising community events such as raffles and barbeques to ensure I can stay connected with my community.
….
[16] Approximately two weeks ago, I ruptured my anterior cruciate ligament (ACL) during a sporting match. I am scheduled to have surgery in October 2024."
Annexed to the affidavit is a letter from the offender's treating orthopaedic surgeon, Dr Jason Chinnappa, to whom the offender was referred by his general practitioner at South West Rocks, Dr Khump. It is clear that the offender has completely ruptured his anterior cruciate ligament. Dr Chinnappa's report also tells me that he has an arcuate popliteal ligament tear and there would appear to be low grade sprains of the deep medial collateral ligament and the lateral collateral ligament. However, there appeared to be no damages to the cartilage surfaces.
At commencement of the final paragraph of his report, Dr Chinnappa said this:
"We have tentatively scheduled surgery for Josef as a self-funded private patient in early October to allow Josef time to rehabilitate with a physiotherapist to regain knee range of motion and quadriceps strength prior to surgery."
I have no hesitation in accepting that the offender is due to undergo surgery to his left knee on 10 October this year. Of course, that will only occur if the offender is not in prison. The offender's affidavit continues thus:
"[17] Growing up, I struggled to make friends and was always the odd one out. To fit in, I would recreationally smoke cannabis and drink alcohol in social groups, as all I saw were my friends doing it.
[18] As time passed, it became more frequent as I grew a tolerance to cannabis, and it no longer gave the same effect as it used to. At this point, I began recreationally using harsher drugs such as cocaine on weekends. My addiction gradually progressively grew up until the time of the offence, in which I would consume substances up to three times a week.
[19] Since being granted bail, I have remained entirely sober and have significantly changed my attitude, demeanour, and overall outlook on life.
[20] Since being charged with these offences, I have had the opportunity to reflect on my actions.
[21] I understand that my actions were very reckless and irresponsible. I know that my actions have consequences, and that the ramifications of my actions could have been worse. I understand that my decisions could have led to the substances being supplied to children, the elderly and vulnerable individuals in the community, which is against the morals I have reinstated since the offence.
[22] I understand that my actions not only have an impact on myself and my loved ones but extends to the wider community.
[23] I am filled with shame, guilt and regret for my actions. Since being charged with this offence, I have taken active steps to change my life around and become a better version of myself.
[24] Since this offence, I have faced many sleepless nights and increased stress and anxiety. I understand that my actions have consequences and I'm deeply remorseful for the offences that have transpired.
[25] I have made a list of goals to achieve in the future, of which include continuing to improve myself on a spiritual, emotional and mental level. I believe that I am very resilient, and I will be able to bounce back from the obstacles and challenges I have faced. I also plan to get married and build a family with my partner.
[26] On April 29th I applied for and was granted a bail variation that allowed me to continue my employment. I have since been employed with Bill Burns Plumbing and Roofing which has enabled me to support my family and [me]. Once I have gained enough experience, I intend to open my own plumbing business, further facilitating opportunities and providing a better lifestyle for myself, my partner, and my family.
[27] Moreover, I have expressed to my family and friends that I wish to engage in ongoing sessions with my current psychologist. I believe that this will be very beneficial for my mental and emotional health."
On that last issue, the offender's solicitors have qualified Ms Kris North a Forensic Psychologist who interviewed the offender by zoom for two hours on 28 August this year. She recommended that the offender engage with the psychologist to whom he has been referred by Dr Khump but has not yet had an opportunity to see because of the extent of the bookings made by others with that psychologist. In other words, the offender has realised that he would benefit from some psychological assistance.
Having said that, I note that Ms North expressed the view that the offender did not present with any significant mental health issues at the time of her assessment and was not assessed as meeting the criteria for any mental health diagnosis. She did, however, point out that the offender could have been diagnosed with stimulant use disorder, cocaine and ecstasy, which was moderate, but that is now in sustained remission.
The affidavits of the offender's mother and his partner are consistent with what the offender himself told me in his affidavit. Criticisms are often made of those standing for sentence who rely on letters, not sworn affidavits, who are not able to be cross-examined, but this gentleman is able to be cross‑examined yet there was no suggestion that anything he said is untrue or exaggerated.
There is a Sentencing Assessment Report which is, again, consistent with what the offender said and consistent with the offender's having insight into his offending and being willing and able to improve himself. He was assessed as having a medium or low risk of reoffending by the Community Corrections Officer. It was thought that nothing other than simple supervision was required unless there was further offending. The offender was also assessed to be able to undertake community service work.
I should add that the offender's subjective material includes, not only a reference from Mr Richard Burns of Bill Burns Plumbing and Roofing, which is entirely positive and supportive of the offender, but there is also a letter from Mr Grant Schubert who is, and has been for some time, the head coach of the South West Rocks Marlins Rugby League Club. He has been a member of the South West Rocks community for the past 40 years and has known the offender and his family for the last 15 years. He said this about the offender's involvement in the local rugby league club:
"This year I have been head coach of the local rugby league team, The South West Rocks Marlins. I have come back into this role after eight years and it has been very exciting and rewarding being back around the young men who want to enjoy their sport and be competitive as a team. Josef's effort and commitment from our first session has been remarkable and he is without doubt a significantly influential leader amongst the group. He has returned home from playing league at a high level in Sydney and is more than willing to mentor and develop our younger and more inexperienced players. Josef has taken the lead of running optional extra sessions during the season where he plans and delivers fitness and skill sessions for our playing group. His commitment to our team and desire to make these new and younger players feel welcomed and supported needs to be commended. Josef is held in high regard from our coaching staff and the players, and we are appreciative of these efforts. Josef has been an excellent leader of our team this year as our club captain and has gone above and beyond for not only the playing group but the committee and the community in general. Josef is a true leader in this sport and leads through his actions and supportive nature. He has the ability to make others around him gain confidence in their ability and skill level."
As I mentioned earlier, there is also a reference from the boat captain of the South West Rocks Surf Lifesaving Club. The author, Mr Paul Owens, says this:
"It has been a pleasure to be involved with Joey with his South West Rocks Surf Lifesaving Club. During his time in the club, Joey was a nipper, cadet and bronze medallion member. He has been a competitor for the club and has dutifully carried out his patrol obligations. His influence on our younger members has always been positive. Joey always displayed and pushed positive attitudes toward younger members. He was a member of the rowing team and represented the club proudly. Joey has always been held in high regard by the club."
[8]
Parity
The matter of concern in the current proceedings concerns parity. I have already referred to my decision in R v Campbell and Mr Campbell, as I have said, was charged with the same offence and pleaded guilty to it, as this offender has. Again, the offending of Campbell was at the lower end of the range of objective seriousness, as I have stated. Although, one could argue that, perhaps, this offender's was somewhat less.
At [93] of my reasons in Campbell, I said this:
"For Count 2 in the indictment, aid in the trafficking of a marketable quantity of cocaine, I start with a head sentence of four years. I reduce that by 25% for the offender's early plea of guilty. That leads to a head sentence of three years. I fix a non-parole period of two years. The sentence will commence on 11 December 2023 and will expire on 10 December 2026. The non-parole period will expire on 10 December 2025."
Prior to imposing that sentence, I had imposed an aggregate sentence for offences against State law. That sentence commenced on 11 November 2022, the date on which Campbell was arrested. Under the State sentence, the offender would have been theoretically eligible for parole on 10 December 2023. However, I commenced the Commonwealth sentence for the present offence on the following day, 11 December 2023. The non-parole period for the first Commonwealth sentence would, theoretically, expire on 10 December 2025. But, at the date on which the non-parole period expired, I commenced a sentence for a much more serious Commonwealth offence. That was not to expire until 10 June 2029 with a non-parole period expiring on 10 December 2027. Accordingly, for Mr Campbell's case, effectively the sentence of imprisonment for the like offence was only two years.
It must be recorded also that Mr Campbell committed, as I have said, a number of State offences, and, more importantly, he aided in the importation of a commercial quantity of a border-controlled drug, namely 53.46 kilograms of methamphetamine, the maximum penalty for which was imprisonment for life and/or a fine of 7500 penalty units. Mr Campbell was also much older than the current offender. He had not been able to work since 2012 and had a very serious drug dependency, and had a very lengthy criminal history which included offences, some of which were committed again when he stood for sentence before me. His criminal history also involved breaching non‑custodial orders which led to a callup and his being sentenced to imprisonment for a breach of what had originally been non‑custodial orders. Mr Campbell's case is a very different one to that of the current offender.
[9]
Consideration
Under s 17A of the Crimes Act 1914 (Cth), a court must not pass a sentence of imprisonment on any person for a Federal offence unless the Court, after having considered all available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.
The Crown has submitted that a fulltime imprisonment is appropriate and that no other sentence than fulltime imprisonment should be imposed. On the other hand, the offender, through his learned counsel, asked me to deal with him by way of an Intensive Corrections Order which I am able to do, under s 20AB of the Crimes Act 1914 (Cth) and/or reg 6 of the Crimes Regulations 1990.
It is really common ground that I can do so, and I have been referred by the learned Crown Prosecutor to the decision of Chan v R [2023] NSWCCA 206. That was a case in which a judge of this Court, the sentencing judge, found that a term of imprisonment was warranted but declined to impose an Intensive Corrections Order. The sentencing judge was satisfied that the applicant was remorseful, had good prospects of rehabilitation and was unlikely to reoffend. The sentencing judge gave the following reasons for declining to impose an ICO:
"69 ….I note that because I am dealing with a Commonwealth offence, I have taken into account the s 16A matters rather than the s 3A matters. Whilst I'm satisfied that the offender's risk of reoffending would be better addressed by serving a sentence as an intensive corrections order, I consider that only a fulltime custodial sentence can address the need for punishment, denunciation, fulfil the very strong need for general deterrence."
The Court of Criminal Appeal held that her Honour had misdirected herself in law and that she should have considered the matters referred to in s 3A of the Crimes (Sentencing Procedure) Act 1999, rather than the matters referred to in s 16A of the Crimes Act 1914 (Cth).
At [100] in Chan, N Adams J said this:
"...the Crown's position was that when considering whether to impose an ICO, s 66(3) of the [NSW] Sentencing Act requires the Court to have regard to the purposes of sentencing in s 3A of that Act, even when sentencing a Federal offender. This position is consistent with Stanley [v Director of Public Prosecutions (NSW) (2021) 107 NSWLR1; [2021] NSWCA 337] and the language of s 66: there are mandatory considerations in s 66 of the Sentencing Act, one of which is that the sentencing judge must have regard to the s 3A factors (s 66(3)). In circumstances where the statutory language of s 66(3) is clear and neither party suggested that s 66(3) should somehow be read subject to s 16A [of the Crimes Act 1914], I am prepared to proceed on the basis that the sentencing judge was required to have regard to s 16A of the Crimes Act for the purposes of the first two steps determining whether a sentence of imprisonment is required, and if so the length of that term, but then have regard to s 3A when considering whether to impose an ICO."
Section 16A of the Crimes Act 1914 (Cth) provides in subsection (1) that, in determining the sentence to be passed or the order to be made in respect of any person for a Federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. Subsection (2) provides a list of other matters that the Court must take into account in determining the requirements of subsection (1), which is often referred to as a checklist.
Here, although the maximum penalty is high, the objective seriousness of the offence is at the lower end, in fact, one could almost say, the bottom of the range of seriousness for such offences. The offender is remorseful. The offender pleaded guilty, as I understand it, at the earliest available opportunity. That is consistent with contrition and remorse as well. He has great insight into his offending behaviour and is working hard to turn his life around. He is one of the very few offenders that I have seen in the last 20 years who stands for sentence when he has fulltime employment, albeit that he has in the past had a drug addiction.
He is well regarded in his local community. He is well regarded by his family. His mother, his girlfriend and his girlfriend's parents are present in court today to support him. He thinks positively. He works well with his community. He contributes more than many other people. He erred by running up a drug debt that he found he could not repay and therefore agreed to do a job for a drug syndicate to earn some money to get rid of his debt. It was not as if he were trying to profit by wrongdoing.
I have reached the view that an appropriate sentence in the circumstances is one for 2 years. Let me explain that. Doing the best I can, I start with a head sentence of two years and eight months. I discount that by 25% because of the offender's plea of guilty at the earliest available opportunity which reduces the head sentence to two years. That enables me to consider whether I should impose an intensive corrections order.
Section 66 of the Crimes (Sentencing Procedure) Act 1999 provides this:
"66 Community safety and other considerations
(1) Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender.
(2) When considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending.
(3) When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant."
As the section requires, I have to consider as the paramount consideration, the safety of the community. I am also required to consider the provisions of s 3A of the Act. Section 3A lists the purposes of sentencing. There are seven of them. They are these:
"(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community."
As far as the last consideration is concerned, the offender clearly recognises the general nature of the harm potentially done to the community. There is no particular victim. The only victim is the community itself.
I am sure the offender is aware that the community denounces his conduct and his contrition and remorse and shame is indicative of that. As far as protecting the community from the offender is concerned, I do not perceive at the current time that there is any risk to the community from the offender but, rather, positive things that he offers to our community. There would only be a prospect of the need to protect the community from the offender if it were likely that he would reoffend in a similar fashion. However, on all the evidence before me, that is highly unlikely.
That leaves me to consideration (d) to promote the rehabilitation of the offender. Promoting the rehabilitation of the offender, which he is already undertaking, is likely to lead to no further risk to the community because he will have been rehabilitated and therefore will not relapse to offending conduct. Furthermore, keeping him out of gaol is likely to enhance his prospects of rehabilitation. Gaol can be a soul destroying place as I am sure he is currently aware. In the circumstances, I am prepared to impose an Intensive Corrections Order which I will need to carefully craft.
HIS HONOUR: Does anyone want any further reasons?
VELLA: No, your Honour.
[10]
Sentence
HIS HONOUR: Josef Barber-Battese, on the charge that between 8 September 2022 and 16 September 2022 at St Peters in this State and in suburbs of Brisbane in the State of Queensland, you did aid in the trafficking of a substance which was a controlled drug, namely cocaine, the quantity trafficked being a marketable quantity, namely 492.7 grams, you are convicted.
I sentence you to imprisonment for a term of two years commencing today, 12 September 2024 to be served by way of intensive correction in the community. Terms of the orders are:
1. You must not commit any offence;
2. You must submit to supervision by a community corrections officer;
3. You must complete community service work for 400 hours;
4. You must participate in any rehabilitation program offered to you by community corrections, in particular a SMART recovery program or any other program to reduce relapse to drug use;
5. You must participate in a treatment program for mental health as currently prescribed by Dr Sai Woon Khump or, if you move to Sydney, on a mental health care program to be provided to you by a local medical practitioner to be engaged in by you within 28 days of your moving to Sydney;
6. You are to abstain from drugs; and
7. You are to report to the Community Corrections Office at Kempsey by telephone within seven days of today.
In passing that sentence, I take into account that you have previously served 100 days in custody for this offence.
Any other orders sought?
VELLA: No, your Honour.
EDWARDS: No, your Honour.
[11]
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Decision last updated: 28 January 2025