R v Baxter

District Court of NSW|2022-07-11|Before: Spiegelman CJ

Mr I Lloyd QC (Senior counsel for the Offender) File Number(s): 2021/144076

Judgment

When Nathan Baxter was born 31 years ago both his parents were heroin addicts. They both have criminal histories. He grew up in a housing commission environment and he reported a history of childhood neglect. He was physically abused by his father. His father physically abused his mother.
As Dr Furst, the psychiatrist who also has expertise in forensic psychiatry and criminology, stated in his psychiatric report: "Mr Baxter's adverse developmental history, especially a genetic vulnerability towards addiction, coupled with his ADHD and the poor role models provided by both parents, helps to explain the origin of his drug addiction and does mitigate against the seriousness of his actions and reduces his moral culpability to some extent in accordance with the principles elucidated by the High Court of Australia in Bugmy and Fernando".
The Crown does not dispute the proposition put by Mr Lloyd QC on behalf of Mr Baxter, that those factors should be taken into account in the sentencing exercise upon which I now embark.
Mr Baxter has pleaded guilty to a number of charges. First, sequence 12, an offence contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985, that between 10 July 2017 and 20 March 2018 at Arncliffe he did knowingly take part in the supply of an amount of a prohibited drug, namely 1,001 grams of methylamphetamine, an amount not less than the large commercial quantity. The offence carries a maximum penalty of life imprisonment with a standard non-parole period of 15 years.

Facts on Sentence

The agreed facts show that in July 2017 the offender, using a false name of Nathan Roger, leased property at 19 Tower Street, Arncliffe which consisted of two separate units, one upstairs and one downstairs. He signed a lease for both of them at $1,500 a week. He told the property manager that his parents would be living downstairs, and he would be living upstairs with his wife. He paid the rental bond to the first month's rent in cash, totalling $12,000.
In late November he spoke to the agent and said that his parents and ex‑wife wanted to move out so he would be living there with his mates. He asked to put two names on the lease. On 1 December the offender, Sofia Lee (aka Shannen Rattanotai) and Lee's mother, Angela Chedid, attended the agent's office and signed a new lease agreement for the upstairs unit for one year at $850 a week.
Intelligence material indicates that the offender moved out of the premises on 1 December and moved to another place at Arncliffe with his wife and family, but he was still on the lease for the bottom unit at Tower Street. After that time Amir Hasanovic, Joe Leaaetoa and Joshua Golfis lived downstairs.
Police obtained a search warrant for the premises and on 20 March 2018 they executed a search warrant. Leaaetoa, Hasanovic and Golfis were present. Hasanovic subsequently died of a drug overdose.
Police found a locked door in the downstairs area and forced entry to it. The located soft body armour, ballistic vests, 88 plastic bags containing crystallise substances in compressed white powder, Australian currency divided across a number of envelopes with writing on it, electronic scales and envelopes with names and numbers written on it, gloves and a metal bowl with crystal residue, empty water bottles and a tray containing scissors, knives, spoons scales and cuts.
In total 1,001 grams of methylamphetamine (sequence 12) was found, made up in different amounts in various bags and bowls. Across various bags, 164 grams of cocaine was located (sequence 14). Cash in an amount of $50,636, (sequence 16) was found
In the locked study five body armour vests were found (sequences 7 & 8)
Baxter's DNA was found on the end of a package containing 3 grams of methylamphetamine, on the mouth of an empty bottle, on an envelope with names and numbers written on it and on a pair of gloves on the filing cabinet.
Telephone intercepts before the search warrant was executed showed the offender talking about the locked office on a number of occasions: 1. On 25 October he told Cheryl Baxter that the office was locked so no one could get in. 2. On 26 October he referred to the fact there should be two keys, one for the house, one of the office. 3. On 1 November Baxter was talking about moving something into the office. 4. On 6 November the offender was angry and told Druze to close the office. 5. On 15 November he told Druze that he was in the study downstairs. 6. On 19 December he told Druze to lock the office door. 7. On 1 December he spoke to Hasanovic and asked whether some keys were in the office.
As to the Form 1 matter of participate in a criminal group (sequence 3), a phone call in March 2018 has an unknown person telling the offender that Rattanotai had been arrested and Baxter said, "I got two other mates that fuckin they're in trouble now. They're at fuckin' they were, their house in Arncliffe got raided. So I fuckin' I need to know what the fuck's going on, man". And the conversation continued for some hours over that day.
At 12.44pm Baxter left his house in Arncliffe and got into a white van and picked up two males. Shortly after Baxter had a conversation with Hasanovic and Leaaetoa and said "we should have trained for this". He said, … "I'm so scared for the boy. Get some paper and call Fadi, get them a barrister and get to the boys ASAP… then, I go keep calling until he answers. I want these boys looked after straightaway", and there was discussion about the raid that had been carried out at the Arncliffe premises. He then had a discussion about booking a hotel that was cheap and could be paid with cash and no name.
Later that day Baxter was talking to Leaaetoa and Hasanovic and there was discussion of what was apparently an internet search being conducted at the time in which details of the raid had been made public.
During the course of a conversation Baxter said, "… they seized two cars. Fuck I hope it's not the car, bro, you know how I said there was firearms in a car". He said, "They would have said firearms were found in cars, they would have said that … So she's not charged with drugs".
Later that evening Baxter said, "you know what? I'm not stressing for me, I'm stressing for you, lads. I don't care about me, I love this shit, I don't have that thing, I'm built for - I know what, I know what the outcome it".
As to sequence 17, the second proceeds of crime offence, Baxter had been stopped by police in December 2017 while driving a car in which Leaaetoa was in the passenger seat, $17,850 was found in cash in a bag in the back passenger seat. Baxter and Leaaetoa denied knowledge of the bag and he told police he had borrowed the car from a friend and that the bag was not his but a DNA sample from a post-it note found in the cash bundles matched the offender.
The offender was not arrested in relation to these matters for some time. He left Australia in May 2018 and went to Thailand and although he was due to return a few days later he did not come back until 7 May 2021. He went into hotel quarantine and on 21 May he was arrested as he was leaving hotel quarantine.
He consented to a forensic procedure and photographs were taken of body tattoos and photographs were also taken of items in his luggage which included a vest indicating that he was the vice president of the Comanchero national motorcycle gang.
There has been some evidence and submission said to go to the question of remorse and rehabilitation in relation to his involvement in an outlaw motorcycle gang to the author of a sentencing assessment report prepared this month.
He said he is a member of an outlaw motor gang. He said his involvement in the club was not related to the offences andhe is currently in the process of leaving the club.
Detective Senior Constable Spelling gave evidence today. He is an experienced police officer and has had lengthy involvement with organised crime and outlaw motorcycle gang investigations. In short, he says without contradiction, that the tattoos and the items of clothing would seem to indicate that Mr Baxter was the Australian National Vice President of the Comancheros. He says that if a member seeks to leave the Comanchero outlaw motorcycle gang they are required to remove or cover over or blackout tattoos that indicate membership.
In January 2022 a recording was taken of a conversation held between Baxter while in custody and a man named Jake Bathis. In the course of that conversation Baxter said, "I'm hoping to fucking beat this charge or at least fucking get a good deal, hopefully I'll get out this year or early next year." Cash Douglas said, "Oh fucking oath. You'll make summer this year". Baxter replied, "100% we're starting the east crew again, bra. I'm going to come back out there and we're going to train and just kickback".
Detective Spelling says, that based upon his knowledge and experience that conversation is consistent with Baxter's intention to re-establish a chapter of the Comanchero outlaw motor gang in the eastern region based in the Sydney area of New South Wales. This was a chapter where Mark Buddle was a member and the geographical area where he resided prior to his departure from Australia. Buddle is described as an International Commander or world leader of the Comanchero outlaw motor gang and he is currently offshore and Baxter is a close associate of Buddle.
Detective Spelling agreed with the proposition put to him by Mr Lloyd QC, that while he has been in custody Mr Baxter has not had access to the items of clothing and thus has not been able to return them and nor has he had facilities to remove, cover over or blackout the tattoos that indicate membership of the gang. Although the evidence is of some concern, as Mr Lloyd QC puts it, I cannot be satisfied beyond a reasonable doubt, which is the requisite standard in making a finding against the offender, that he does ever intend to continue membership of the gang and restart a crew again in the light of the limited evidence.

Criminal History

Baxter's record is one which commences in 2005 with an assault occasioning, dealt with in the Children's Court by a bond. There are driving offences, PCA, in 2009 and driving while disqualified. In 2009 there was an assault occasioning dealt with by a fine and a bond, a breach of that was called up and he was dealt with by community service order for 50 hours. In 2011 a destroy or damage property charge was dealt with by a eight months sentence suspended pursuant to s 12. There was a further drive while disqualified in 2012. A count of affray in 2015, dealt with a community service for 80 hours. A possess prohibited drug in 2012, dealt with by a fine. An assault occasioning actual bodily harm in 2013, dealt with on appeal by 12 months with eight months non-parole period imprisonment. Also in 2013, a charge of assault officer in the execution of duty, dealt with a one month sentence on appeal. There was an affray charge arising out of an incident in 2015 which was not dealt with until March 2022 and a community corrections order was imposed for two years commencing March 2022, but obviously as he has been in custody since the imposition of that order it is of academic interest only at this stage.

Co-offender Joe Leaaetoa

I deal with the sentence imposed by Madgwick ADCJ in October 2019 in relation to Joe Leaaetoa. There were two sets of agreed facts before his Honour. The first in relation to a charge of knowingly giving false or misleading evidence at the hearing of the Crime Commission, each carrying a maximum penalty of five years imprisonment. In short, the facts about that were that in March 2017 a man named Barakat was shot and killed inside his home at Mortlake and a police strike force was investigating it. Baxter was a suspect in the murder. Police knew that Leaaetoa was an associate of Baxter and Leaaetoa was asked questions about his knowledge of Baxter when he appeared before the New South Wales Crime Commission in May 2018. He gave false evidence about whether he knew if Baxter would drive a certain car and about his residential address. The facts also summarise the search warrant carried out on 20 March 2018 at Towers Place at Arncliffe where the kilogram of methylamphetamine, 163 grams of cocaine and approximately $60,000 in cash were seized from the locked bedroom. Leaaetoa's and Baxter's DNA were found on the inside of the same pair of grey and black gloves as well as on gold packaging in a white envelope containing traces of crystal substances believed to be prohibited drugs. Leaaetoa's fingerprints and Baxter's were identified on plastic bags containing methylamphetamine and Leaaetoa's fingerprints were on a bowl used as a mixing bowl for the preparation of drugs.
At the time of giving evidence before the Crime Commission Leaaetoa was well aware that Baxter was involved in the supply of prohibited drugs and as such the evidence he gave was false or misleading.
The second set of agreed facts before his Honour sets out in a little more detail the findings on the execution of the search warrant at Tower Street, Arncliffe on 20 March 2018.
Leaaetoa was sentenced on four charges, one of knowingly giving false and misleading evidence at the Crime Commission which is not a charge faced by Baxter; the charge of knowingly take part in the supply of the kilogram of methylamphetamine, which is the same charge as Baxter faces; a charge of dealing with the proceeds of crime in the sum of $50,000 plus which is the same as that faced before Baxter; and one charge of possessing a prohibited weapon, namely the body armour vest. On the Form 1 for Leaaetoa was the charge of supplying 163 grams of cocaine, another charge of possessing a soft body armour vest, and also supplying 118 grams of ethylone
Madgwick ADCJ described the role of Leaaetoa was as an assistant generally in relation to the drug dealing business that was carried on from the premises and he admitted to packaging the drugs, handling them and generally cleaning up and putting drugs in the room in which the drugs and other incriminating items were found. His assertion that he was merely assisting Hasanovic in return for free drugs and accommodation could not be rebutted and his possession of the vest and the money was on the basis of joint possession with the other occupants.
In relation to his lies before the Crime Commission, there was no evidence that they were pre-meditated. He said that he had feared retaliation by Baxter if he gave incriminating information about him, but he also said that he was acting out of a misguided sense of loyalty to Baxter.
His criminal record was relatively limited, there was a short period of imprisonment for nine months with a four-month non-parole period following an affray in 2008 when he was 20 years of age and there was a charge of possess prohibited drug dealt with pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999. He was 31 years of age at the time of sentencing.
He had a troubled upbringing. His father was alcoholic, he was in trouble at school. He was binge drinking from age 14 or 15 and smoking cannabis. For some reason he took to ice in about August 2017. Under the influence of Hasanovic and the free availability of drugs at the Arncliffe premises resulted in a significant increase in his intake of drugs. His Honour described the quantity of his consumption of drugs as "verg[ing] on the heroic or perhaps better said the anti-heroic".
He had been in custody for 13 months at the time of sentence. Dr Furst recommended intensive drug treatment for him. He expressed remorse. As his Honour said, "I have yet to see a case where a prisoner comes along and denies remorse but there is reason to think that he is genuine in this. There was enough in his background of conventional adherence to the law, to hard work and family values, to make one think his expressions are probably genuine, but overmuch much weight should not be given to that".
Turning to the sentence that had to be imposed his Honour said, "His role in the drug dealing hierarchy was about as low as it could go, but he was not simply involved on one occasion as courier or at the level of courier but involved over a considerable period and that is a matter of some significance. However the overwhelming picture is of someone who was used as cheap and unskilled labour in the enterprise, and, who, because of his addiction, was happy enough that that be so. … [T]he unavailability of a stable law-abiding male role model during his crucial formative years is likely to have had some lasting effects on him by way of increasing the prospects that he would from time to time of make bad decisions. "
His Honour did not specify, notwithstanding the legislative requirement, indicative sentences for the various offences or indicative non-parole periods where appropriate. His Honour said, "His involvement in drug dealing falls well towards the lower end of seriousness and after a trial I think should not warrant a period of imprisonment of more than five years."
Mr Lloyd puts that the most favourable interpretation of that sentence, from his point of view, is that Madgwick ADCJ was wrapping up the supply, the proceeds of crime and the possess prohibited weapon as one set of offences which would have been dealt with by a sentence of no more than five years after trial.
His Honour continued, "Nor after a trial would I think that the lying to the Crime Commission would necessitate a sentence of more than one year. The offences occurred out of the same matrix of involvement with ice, Baxter and his friend the now deceased Amir, and there so be considerable measure of overlap, a conclusion also mandated by the principles of totality".
His Honour said, "By the time all that is done and by the time his 25% discount is taken into account it will be difficult to think that she (sic) should receive an actual sentence of more than four years or so and he has, as I have said, served 13 months in custody already"
His Honour accepted the submission put by Mr Lloyd QC, who was alos appearing for Leaaetoa, that a head sentence of three years as an aggregate would not be inappropriate and described that as the functional equivalent of a four year plus prison sentence and he may serve the sentence in the community by way of intensive corrections order.
The figures that his Honour was suggesting back in October 2019 are remarkably similar an example set out by Simpson J at [63] of Mandranis v R [2021] NSWCCA 97 in May 2021, where her Honour expressed some doubt about whether such a process would be a legitimate exercise of the sentencing discretion. Adams J was perhaps more forceful in indicating agreement with those doubts at [67], it would be a rare case in which an ICO could be considered appropriate for an aggregate sentence the starting point of which exceeds three years (before the pre-sentence custody has been taken into account). The fact that s 68(3)(b) sets an upper limit of three years for an aggregate sentences before an ICO is available is consistent with a legislative intention that any aggregate sentence that exceeds three years would be inconsistent with s 68 and reflect criminality too serious for an ICO
But Adams J, as did Simpson J, noted that the question did not arise in this case and therefore does not need to be decided.
The ultimate submission put by Mr Lloyd QC is for a similar disposition in this case, namely that a head sentence of four years as an aggregate should be reduced by 13 months, thus permitting any sentence to be served by way of intensive corrections order.

Offender's subjective case

There is a significant quantity of subjective material before the Court. As Mr Lloyd QC points out, the general observation made by Smart AJ in R v Qutami (2001) 127 A Crim R 369, more than 20 years ago, is not, according to McCallum JA in Lloyd v The Queen [2022] NSWCCA 18 (at [45]) and subsequent cases, a statement of principle; if it were, it would be a wrong principle which required correction.
In short there has been no cross-examination of any of the deponents of the documents put forward in the subjective case and I am largely prepared to accept the history and subjective circumstances set out in the documents as a reasonable basis upon which to proceed.
As McCallum J in Lloyd at [47], Where the report of a mental health professional is admitted without objection, qualification as to its use or cross-examination of the author, no principle of law requires the sentencing judge to exercise "very considerable caution" before relying on its contents absent evidence from the offender.
I should note, of course, that the sentencing process must take account of the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. I must consider the maximum penalties and where appropriate the standard non-parole periods as important yardsticks in the sentencing process.
Mr Baxter told the author of this Sentencing Assessment Report that he became involved in the offences to fit in and he desired a sense of belonging within his associates. He said he was not thinking of the harm the offences could have had on the community at the time, and at the time of the offence he did not understand the effect of drugs on people. Although as the Crown points out having grown up in a household where both parents were criminals and drug addicts it is difficult to see how he did not have at least some understanding the effect that drugs have on people.
He attributed his offending behaviour to wanting to be part of the crew and described himself as a somewhat of a follower. He said that he was receiving financial gains from his associates for the offences and the money was the reason he continued to engage in the antisocial behaviours.
He says, on reflection, he does not want to return to this antisocial lifestyle and that he has matured and he is disgusted with what he did and he has now seen the effect that drugs have on others.
He said that he ceased alcohol consumption in 2020. At the time of the offending he was using cocaine on weekends and using sleeping pills daily, but he has been abstinent since 2020.
As Mr Lloyd QC points out there has been no evidence of any offending since early 2018, he having spent some considerable time in Thailand before returning in May last year.
He was assessed as being at a medium risk of re-offending. More detailed subjective history is set out in reports of Dr Furst and a clinical psychologist.
In short, he has been married since 2017. He has a five-year-old daughter from that marriage, he also has a 13-year-old son from a previous relationship.
He said he spent three years in Thailand after the death of Hasanovic from a drug overdose and he wished to clean himself up and get his health back.
He detailed a history of binge drinking commencing at age 14 to 15 and developing cirrhosis of the liver during his 20s. While he was in custody after the assault involving an incident at a pub, he was to do an intensive drug and alcohol treatment program but that did not eventuate and he had no courses or counselling while on parole.
During his mid to late-20s he was using ten Endone tablets per day, combined with heavy drinking. He was using cocaine from age 18.
He worked as a forklift driver and in warehousing and tiling and demolition during his 20s. He expressed to Dr Furst similar sentiments about wanting to fit in and have a sense of belonging as motivating his offending and expressed complete and utter regret. He sees people in jail suffering from the effects of drug addiction and he knows that his parents were badly affected by their drug use and drug addiction and he understands the negative impact of drugs on the community in general.
He was of average intelligence, and he was diagnosed as having alcohol and substance use disorder and ADHD with an inherited vulnerability towards alcohol and substance dependence by virtue of his parents' addiction, meaning he was at a much higher risk of developing problems with alcohol and drugs than the average person from birth.
Dr Furst said the offending in question was probably related to his alcohol and drug addiction problems, coupled with negative peer associations at the time. His adverse developmental history helps to explain the origin of his addiction and does mitigate against the seriousness of his actions and reduces his moral culpability, as I have indicated, to some extent in accordance with Bugmy v The Queen (2013) 249 CLR 571.
He recommended intensive drug and alcohol counselling and support and suggested that he had good prospects of being successfully rehabilitated if he is given adequate support and opportunity. He recommended that his report be made available to Justice Health and other treatment agencies to assist in planning and implementing appropriate treatment for Mr Baxter.
The psychologist describes him as being born depend on methadone and required a period in a humidity crib and he had to be weaned off methadone. He suffered expressive/receptive language delay and was always behind the other students at school. The psychologist obtained primary school reports which indicated significant problems with attention and concentration from year 4 and behavioural problems outside the classroom.
The psychologist said that the aetiology of the complex trauma was his history of physical abuse in childhood, and there was a complex but well-established correlation where children who have been exposed to substance at an early age go on to model their carer's behaviours which can lead to more engagement with deviant peer groups and criminal behaviours. The psychologist also expresses views supportive of the Bugmy point made by Mr Lloyd.
Mr Baxter has written a letter to the Court expressing his sorrow for his actions and how they have affected the community, his family and himself. He says, "I helped with some duties such as counting money, bagging up, cleaning up and gave them lifts when asked but I never sold drugs or delivered drugs direct … I was born addicted to methadone as my mother and father were recovering heroin addicts and my mother and father still use methadone to this day, so I know and totally understand the effects drugs have on people, not just short-term but long-term. … I want to stay sober, clean and fit. … I just want to close this chapter of my life and move forward in a positive way"
He details 140 days that he spent locked away in his cell due to COVID restrictions while in custody.
I have an unchallenged affidavit from his partner or his wife. It says that he had a hard time after his good friend Amir passed away. He was not coping well, he was abusing drugs and alcohol and she agreed with the suggestion that he go overseas to Thailand to work on his mental health. She said that when they moved out of the Tower Street premises in late November 2017 she cleaned the entire home, including the study and there were no drugs in that room. Clearly there were, as Mr Lloyd said her statement may be explicable by a less than thorough check and clean of the study.
She had regular contact with him while he was in Thailand, and she wishes to go into business with Baxter. He has been offered employment and she believes that counselling will help him.
His father provided a reference describing him as a loving and nurturing father, son and husband. He is confident that he has matured and he is eager to return to a lawful and sober life.

Submissions

The Crown and Mr Lloyd have both put very detailed extensive written submissions and spoken to those submissions, both on Monday of this week when the sentence proceedings commenced and today after evidence was given by Detective Spelling.
The Crown submits the offending, that is the principal drug offence, falls above the mid-range of objective seriousness having regard to a number of factors, and that having regard to those factors the role of the offender was higher and more significant than Leaaetoa. In support of this submission the Crown points to the amount of drugs; the payment of the bond and rent in cash, using a false name by Baxter; the duration of his involvement in the operation, given the plea to charges covering the period from July 2017 to March 2018; the large amount of cash found; his DNA being found on various items; the large amount of cash found in the car in November 2017 and the telephone intercepts indicating his knowledge and his care about the locked study and his anger about the room being left unlocked; and the telephone intercepts following the search warrant execution in which Baxter spoke with Leaaetoa about the police raid and what they should do.
The Crown refers to what Simpson J said in Nguyen v The Queen (2011) 208 A Crim R 432 about the indicators of the role of an offender as a principal involving at least some of the following characteristics, namely:

contributing financially to the cost of setting up the operation,
standing to share in the profit as distinct from receiving payment,
having some hand in the management of the operation,
having some decision-making role, and

The Crown submit that an offender who is a principal and leader of an organised network exhibits criminality of high order: R v Kalache (2000) 111 A Crim R 252.
As Mr Lloyd QC puts there is no evidence that Baxter was involved in the actual supply of drugs.
Having regard to the factors summarised in relation to his role, my view is that the principal drug offence falls slightly below the mid-range of objective seriousness. My view is that his role was considerably more significant than that of Leaaetoa, given the facts that I have outlined in relation to both of them.
It is clear that general deterrence and specific deterrence play a significant part in the sentencing process. I take account of his relatively limited criminal record prior to his offending. It is, as Mr Lloyd acknowledges, strictly speaking an aggravating factor under s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999, but it is not of great significance.
He is, as the author of the Sentencing Assessment Report put, at some risk of re-offending but I think his prospects of rehabilitation are reasonable given the absence of evidence of offending since March 2018, notwithstanding the lengthy period overseas, but those prospects must be guarded and would depend significantly upon his engagement in intensive counselling and treatment.
I accept his expressions of remorse to the Court and others.
Mr Lloyd points to what was said by Bell CJ recently in Doyle v The Queen [2022] NSWCCA 81 as to the 25% discount on sentence for the utilitarian value of the plea. At [16] his Honour said: Following the introduction of s 25D, the utilitarian value of any guilty plea is quantified by that section in respect of state offences. If an offender also shows remorse and/or has manifested a willingness to facilitate the administration of justice, they are considerations to be taken into account quite separately from the utilitarian value of an early guilty plea.
I accept as I have previously indicated that to an extent the offender's moral culpability is, in Bugmy terms, less than an offender whose 40 years had not been marred by a deprived upbringing and the effect of that deprivation do not diminish over time and should be given full weight in determining the sentence.
As to time being served in custody during the COVID pandemic the courts have been hearing evidence on an almost daily basis during the pandemic leading to statements such as those of Beech-Jones J in Toller v The Queen [2021] NSWCCA 204 at [25], …the impact of the COVID-19 pandemic on prisoners is far from over. It can be accepted that sentencing judges are entitled to consider those impacts and the potential imposition of restrictions in the future.
Although neither counsel was able to point authority one way or the other as to whether evidence as to this pandemic should be reflected in a head sentence or a non-parole period or both, my view is that it should be reflected in both areas and I will do so.
There is clearly a basis for a finding of special circumstances given the subjective case to which I have referred and the consequences of the COVID pandemic on conditions in custody and I would depart from the standard non‑parole period where applicable given his early pleas of guilty, his relative youth and the finding of objective seriousness that I have made.
It is not disputed that it would be appropriate to impose an aggregate sentence and for there to be a degree of concurrency in the individual indicative sentences.
Mr Lloyd QC refers to the statistics principally for the s 25(2) offence and they have been supplemented by statistics as to a range of some 300 cases since September 2018, showing both the aggregate head sentences and the non‑parole periods.
Both counsels have dealt with at length the question of parity, having regard to the sentence imposed on Leaaetoa. Numerous statements of principles are set out by the Crown which are uncontroversial. Courts should strive for consistency and equality before the law, but parity does not permit a sentence of an offender to be reduced because of a reduced sentence previously imposed on a co-offender after a Crown appeal, and there was no Crown appeal in the matter of Leaaetoa.
There is no requirement for parity where the offences are not identical, and the courts should not strive for parity where there exists diverse objective and subjective circumstances between the accused and differences in sentences are justified by differences in the character and antecedence of the accused or because of a difference in culpability.
The Crown's assertion, as I have indicated and as I have found, is that Baxter's role was higher and more significant than that of Leaaetoa. Baxter has, as the Crown acknowledged, the additional matters of participate in a criminal group dealt with on a Form 1, and the additional proceeds of crime offence.
The Crown digests 12 cases in which the Court of Criminal Appeal has dealt with sentences for s 25(2) offences and contained within one of those cases, namely Ebrahimi v The Queen [2019] NSWCCA 273, is a summary of a further seven cases and sentences for the same offence. Almost universally they indicate significantly higher sentences being imposed than that imposed by Madgwick ADCJ on Leaaetoa.
Mr Lloyd's response to that summary is that they are but 19 cases out of some 300 in the range covered by the statistics, and there is force in that submission. The statistics themselves and a detailed reading of other cases, which are here attached to the Crown sentencing submissions, which have been marked for identification, can do no more than indicate sentences that have been imposed in other cases, depending upon the particular objective and subjective circumstances of the case in question.
Mr Lloyd's ultimate submission as I have put is that the offender should receive much the same sentence as that imposed on Leaaetoa otherwise Baxter would be entitled to a justifiable sense of grievance if he were to be treated more harshly than Leaaetoa. That proposition depends upon firstly and broadly speaking a relative equality of objective seriousness, involvement and culpability, and as I have indicated that is not a view that I accept.
In DS v R; DM v R [2022] NSWCCA 156, which is a judgment delivered yesterday, the Court noted a three points about the relationship between objective seriousness and moral culpability (at [90] - [96]). 1. Various High Court authorities refer to factors that operate to diminish or reduce, in Bugmy terms, moral culpability. 2. Prases are apt to require a sentencing judgment to determine the seriousness of an offence and how much blame the offender bears, but only as part of a consideration of the weight to be attached to various sentencing factors and for the purpose of undertaking instinctive synthesis described in Markarian. 3. The Court said that it follows that an offender's mental impairment is a matter that can affect both an assessment of moral culpability and objective seriousness. While a mental impairment may affect an assessment of the objective seriousness of an offence it will not necessarily do so, even if it is said that there is a causal connection between the impairment and the offence.
The offender's moral culpability here is, as I have indicated, reduced to some extent by reason of the Bugmy factors that I have summarised. However, his involvement in the offending to which he has pleaded guilty requires in my view the following sentences being imposed.
The orders that I make are: 1. The offender is convicted of each offence. 2. Taking into account a 25% discount for the pleas of guilty, the indicative sentences will be: 1. Sequence 12, taking into account the Form 1 matter, four years with an indicative non-parole period of two years. 2. Sequence 14, 22 months. 3. Sequence 16, 18 months. 4. Sequence 17, 12 months. 5. Sequence 7, taking into account the Form 1 matter, eight months with an indicative non-parole period of four months. 1. I impose an aggregate sentence of imprisonment of four years and nine months commencing 21 May 2021. 2. I impose a non-parole period of two years, expiring on 20 May 2023. 3. I find special circumstances. 4. I make confiscation orders pursuant to the short minutes of consent dated 14 July 2022.

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 March 2023

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Judgment (8 paragraphs)

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Cases Cited (8)