R v Campbell

District Court of NSW|2024-08-16

Judgment

HIS HONOUR: Joshua Michael Campbell stands for sentence as a result of pleading guilty to four charges contained on an indictment on which he was arraigned before me on 14 August 2024. He also asks me to deal with him on a charge contained in a certificate under s 166 of the Criminal Procedure Act 1986 for a crime to which he has pleaded guilty in the Local Court. The indictment was presented only as a matter of convenience. It is agreed that the offender pleaded guilty to all relevant charges at the earliest available opportunity in the Local Court.

Charges

Charges under both Federal and State laws are contained in the indictment. For charges under State law, the offender is entitled a discount of 25% of the sentence properly to be passed for his offending. For the charges against the law of the Commonwealth, I shall allow a discount under s 16A(2)(g) of the Crimes Act 1914 (Cth) in conformity with Xiao v R [2018] NSWCCA 4. There are three charges under State law. The first is Count 3 in the indictment. The second is Count 4, but that is to be dealt with on a Form 1 referable to Count 3. The third State charge is the one on the s 166 certificate. For the State offences, I intend to impose an aggregate sentence.
There are two charges under Federal law. They cannot be dealt with in an aggregate sentence including State offences. As to whether the Court can impose an aggregate Federal sentence, there is currently some doubt. It is an issue on which the New South Wales Court of Criminal Appeal is currently reserved. Accordingly, I shall impose two separate sentences for the two Federal offences.

Facts

I turn now to consider the facts. I should observe at the outset that the agreed facts are contained on 20 pages which include 83 paragraphs using very small print and there are a number of lengthy tables within those 20 pages. The facts are also referable to two other persons, one of whom as at 1 August had yet to be committed to this Court either for trial or sentence, and the other offender is currently listed to be sentenced on 12 September 2024. The first four paragraphs of the agreed facts give an overview of them. They are essentially what I now repeat.
The offenders are Watcharaehong Aphichotnithithon, to whom I shall refer hereafter as WA. Another of the offenders is Tung Huu Bui, to whom I shall refer merely as Bui. The third offender is of course the current offender. Two other individuals, Sutthichai Torhitithan, to whom I shall refer hereafter as ST, and Joseph Barber-Battese, to whom I shall refer, if necessary, as JBB, are alleged to have performed criminal acts in connection with the offences in the agreed facts.
I should indicate that a number of other names are given in the agreed facts, but the correct identity of those others is not known, and the facts merely refer to those persons by their assumed monikers.
Bui and ST were involved in the importation of commercial quantities of methamphetamine and cocaine that they then transported to Brisbane and to Perth. They were dealing in many kilograms of those drugs and dealing with millions of dollars, the proceeds of crime. The offender provided fraudulent identification documents that were used to lease storage facilities in an attempt to evade detection. The offender assisted Bui in coordinating the delivery to storage units of a commercial quantity of imported methamphetamine. WA assisted the syndicate with the transportation of prohibited drugs.
Drugs that were sent to Queensland and Perth were sent in two boxes which were tracked using air tags. The drugs would be placed underneath a false bottom, and the false bottom would be covered with tools.
All of the offenders frequently used encrypted messaging applications, primarily Threema and Signal, where they had usernames other than their own names. WA went by the name of "Gop" or "Gof". Bui used the names "SuSpecT888" and "SuSpect168". The current offender was known as "Fuckity Fuck Fucks Cousin". ST had the usernames "Provider" and "Provider new".
The facts relevant to Count 2 in the indictment, abetting the trafficking of a marketable quantity of cocaine, namely 492.7 grams of that drug, are contained in paragraphs numbered [26] and [32] and also in [36].
At about 12.34pm on 9 September 2022, Bui was at Kennards Self Storage Kingsgrove. He wheeled a large red "Sydney Tools" chest to a waiting flatbed truck. The chest was placed onto the truck which then left the Kennards storage facility shortly afterwards. That evening, Bui was in Queensland and set up a "new branch".
A storage unit was rented at Kennards storage at Hillcrest in Queensland using a fake licence under the name Tam Thanh Ha that contained a photograph of Bui. Bui told "LouisKo": "Right now my crew is moving 20 to Perth every week. Today I'm in Queensland to set up shop for quest and Queensland will be doing ten there weekly".
At 6.31pm Bui sent him a message saying: "Bro, if you have a good contact with a 100 keg, if they want to give us the contract we will pump that out in one month with payments regularly twice a week."
At 6.46 on 12 September 2022, Bui asked the current offender "Have you fixed the new storage place…He wanted a closer one to the city". Bui indicated he would be catching a flight soon. The offender then rented a storage facility at Kennards Self Storage facility at 21 Turbo Drive, Coorparoo in Queensland. To do that, he used the same fake licence that had been used by Bui to set up the Hillcrest storage unit. The PIN code for access to the Coorparoo facility was set at 178118. Just before 10am, the offender sent a message with details of the storage facility that he arranged at Coorparoo to Bui.
At 4.36pm on 13 September 2022, an offender known only as Razor told ST that three units of B-grade were being sent to him for him to transport to Queensland. ST indicated that the drug would arrive on the following Friday morning. Bui was tracking the shipment to Queensland. On the morning of 14 September 2022, Razor sent a group chat on Threema to introduce ST and JBB. JBB was to help in setting up the Queensland operation. ST said that JBB would need to go to Brisbane the following morning. The current offender was not part of that group chat.
On 15 September 2022, ST sent JBB numerous messages including photographs containing detailed instructions on how to access the tool chest contained in the Kennards Self Storage facility at Coorparoo.
On 21 and 22 September, Queensland Police executed search warrants at the Coorparoo storage unit that this offender had set up for use by the syndicate. In the Coorparoo storage unit, police located a large red toolbox which had an Apple AirTag located on its bottom and three blocks of white powder contained within heat-sealed plastic bags covered in duct tape.
The blocks were analysed and found to be a total of 2.9868 kilograms of cocaine which was mixed with levamisole and lidocaine. The total amount of pure cocaine was determined to be 492.7 grams."
The facts for Count 1 in the indictment commence, in essence, at [37] of the agreed facts and continue until [63] of the agreed facts. Shortly after 12.30pm on 12 September 2022, an offender whose moniker was "Harvey De Monster" gave ST instructions on retrieving drugs that were being delivered in plastic rolls. The details are this: "8 pallets in total 4 have small tt [obviously a code for methamphetamine] Tiny white labels on actual roles [sic, scilicet. rolls] So on the pallets are rolls of green plastic. The tt is crushed flat and rolled into the rolls of plastic. To, remove, just unroll the plastic sheeting and collect the flat bags of tt. 68kg in total."
It was anticipated that the plastic rolls which were being imported from Penang on the ship MSC Shahar would arrive in Sydney on that day, 12 September 2022. Ultimately, they were not able to be picked up until 20 September 2022. Shortly after 11pm on 12 September, Bui sent to ST numerous messages including photographs containing detailed instructions on how to access the Kennards Self Storage facility at Coorparoo that the offender had rented earlier that morning.
Around 11.30pm on 14 September 2022, the offender sent Bui a link to track the ship that the methamphetamine was on before sending a screenshot of the relevant Sea Ship Arrival Notice. At 2.11pm, "Harvey De Monster" asked how long it normally took for a box to be delivered. ST replied: "Once it land within seven days. I will know all the movement. If it get pulled out of Botany Bay to go to custom clearance location I will know."
At 3.10pm, ST said, "The cargo ship our container is on are being unloaded today." A screenshot was sent from "Harvey De Monster" subsequently showed that the container was sent from Georgetown in Singapore on 26 July 2022, and arrived in Sydney on 15 September 2022. At 12.14pm on 19 September 2022, Bui told ST, "The box has been customs held behind the scenes", "it arrived on the 12th…high chance it's fucked". At 12.28pm Bui sent a message saying: "ITM said they organise picking up tonight". ST replied, "If they just scanned the container it would be really hard to pick it up. It's flat and rolled in an roll [sic, scilicet. rolled] into the plastics." That evening, Bui sent ST his expense sheets.
At 12.38pm Bui messaged the current offender "Can you call Camperdown see if they can accept side loader deliveries or drop deck deliveries?" The offender responded that they did, before forwarding to Bui a photograph of an International Trade Management (ITM) invoice displayed on a screen. The invoice was dated 19 September 2022, and was addressed to "Cox Architecture". It indicated an ETA of 13 September 2022, and required payment for "Storage at wharf - one day". The invoice stated: "Container subject to X‑ray hold and not lifted until late Friday. One day storage at wharf applies. Urgent payment required". In the background of the invoice was a browser tab open for an email inbox with the logo "COX" and the username "Lauchlan Abercrombie".
Throughout the day there had been email communication with Whites Transport Services who were going to be collecting the imported goods from the port, about delivering a load to Kennards Storage at Camperdown. At about 9.27pm, WA sent ST photographs of what appears to be a storage facility. WA said that the password "178118" was not working. At 10.43am on 20 September 2022, the present offender sent Bui a message saying, "They couldn't unload at Camperdown so it's headed back to Sydenham, they will unpack it direct onto truck".
At 11.08am, Bui called a truck driver saying, "There's about 20 pallets of...those plastic sheets...pickup from transport company to storage". At 11.31am, Bui called back again advising that there was a change of plans. He said that he needed a box picked up from Sydney Tools at Alexandria and dropped off in Tempe. Bui said, "After that you're going to head over to Sydenham and pick up four pallets....drop it off to Camperdown...I'll meet you down at Sydney Tools".
At around 11.30am, closed-circuit television (CCTV) captured eight pallets of green builder's film being unloaded at Whites Transport at Unwins Bridge Road, St Peters. At 11.34am Bui called Sydney Tools, Alexandria to advise them that he was going there to pick up a red toolbox. At 12.37pm, Bui was seen at Sydney Tools at Alexandria overseeing three yellow boxes that he had purchased being loaded onto a flatbed truck. The truck then travelled to Bridge Street, Tempe, where it was seen at 12.52pm before continuing on to Storage King, St Peters where between about 1.10pm and 1.23pm the toolboxes were unloaded.
As the truck had been taking its route, the offender had arranged a storage unit at Kennards Self Storage, Petersham using fake identification documents provided by Bui. Bui provided the offender with two licences in two different names, the first of which was Hai Dang Tran and the second was Tam Thanh Ha, both of which contained a photograph of Bui. Bui was seen on CCTV later that day attending the Kennards Self Storage facility at Petersham.
At about 1.48pm, the truck driver arrived at Whites Transport to pick up the pallets of builders film. He phoned Bui at 1.50pm to say that he could only carry four pallets at a time. He said that he would have to move the four he could not fit onto his truck that day on 21 September. Shortly before 2pm, the flatbed truck was seen driving out of 15 Unwins Bridge Road, Sydenham, loaded with four pallets containing green rolled plastic. The truck drove to Kennards Self Storage, Petersham, arriving about 2.14pm. Shortly after that, Bui was seen leaving the location.
At 2.12pm, ST sent a message in a group chat, but the current offender was not included in that message. The message said: "We won't be doing any unrolling and unpacking tonight. My guys are just going to relocate the pallets into our shed and scanning for any bugs or tracking devices." At 4.42pm, ST told Razor, "The boys will start unrolling tomorrow".
On 20 September, WA was seen coming and going from 14 Bridge Street, Tempe, on at least two occasions. About 6.20pm, WA was captured on CCTV arriving at Kennards Storage, Petersham on his scooter. He moved the four pallets of green film that had been unloaded earlier by the truck driver from the loading dock and into the storage area. At 6.24pm, WA sent photographs to ST of the pallets of rolled plastic. He left the storage facility on his scooter at 7.39pm. That evening ST and Razor exchanged messages about how they would distribute the drugs interstate.
The next paragraph of the agreed facts, which is numbered [58], records what commenced to occur on 21 September 2022. On that day there were at least two group chats. The offender was not included in either of them. Indeed, the offender had no further role to play in the methamphetamine which was included in the rolls of green plastic.
Paragraphs [70] to [74] of the agreed facts are also relevant to this importation but they mainly show what the police found, the amount of methamphetamine found in each of five rolls of green plastic, the purity of the amount and the calculation of the pure methamphetamine involved, which was 53.467 kilograms.
The only other relevant facts are those commencing at the paragraph numbered [82] of the agreed facts, which tell me about the arrest of the offender and what the police found at the time of his arrest. What the police found at the time of his arrest gave rise to the charges under State law.
The offender was arrested at his home in Woolloomooloo on 11 November 2022. He declined to comment on allegations that were put to him. Police performed a search of the offender's home and located in the lounge room a gel ball air pistol on the floor. That meets the definition of both a pistol and a prohibited firearm. The firearm was in working order although it had a depleted battery. The police also found a gel ball hopper, which is a magazine for the air pistol, under the cushion of a lounge chair.
The police also found other indicia of being involved in drug trafficking, such as numerous mobile phones and a number of SIM cards. They also found a folder in a cupboard underneath the stairs containing documents in the name of WA.
In the bedroom of the offender's house, the police also found a pump action repeating gel ball air gun. A mixed DNA profile was located on the forestock and the offender could not be excluded as a contributor to that mixture of DNA. Of course, the finding of the gel ball air gun gives rise to Count 3 in the indictment and the finding of the pump action repeating gel ball air gun gives rise to Count 4 in the indictment.
The police also found equipment to make identification information which is the offence on the s 166 certificate. They found an ID card printer, drivers licence hologram stickers and blank drivers licence cards, as are stated in the Court Attendance Notice for that offence.
Until Wednesday, I knew nothing about gel ball air pistols or gel ball air guns. I was very happy to be advised by learned counsel for the offender, Ms Khalilizadeh, of the decision of Conlon SC ADCJ in Rex v Smith [2023] NSWDC 254; (2023) 40 DCLR (NSW) 348. At issue in that case was whether a gel ball air pistol was within the Firearms Act. I was concerned as to the damage which might be inflicted by such a device if it were discharged. Commencing at [81] his Honour said this: "Ultimately, I am satisfied that the gel blasters are air guns as defined in section 4 [the Firearms Act 1996] and that Parliament intended this type of gun to be subject to the firearms legislation. 82. When reading Dr Siddhpura's report, I did note that on the seventh page (in the top paragraph) he made reference to a recent research study on the type and level of injury caused by gel blasters. The study was not attached to his report, but he said that it had concluded that injury was possible, 'a minor recoverable ocular (eye) injury and accordingly safety goggles are recommended'. Of course, that level of injury to one's eye would be affected by the distance of the gel blaster from the eye of the individual struck."
His Honour's judgment also points out the difference between these gel ball firearms and paintball firearms. Madam Crown advised me that the major damage that could be caused by one of these devices was bruising, that is, it could cause actual bodily harm, but there is no suggestion it could cause any grievous bodily harm.

Count 2

I now turn to consider the seriousness of these offences. 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.
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.

Count 1

I turn then to consider the seriousness of Count 1. The offender's involvement in this importation was somewhat greater. It is important not to categorise him but rather to note what he actually did. He sent to Bui a link to track the ship that had the methamphetamine on it and later sent to him a screenshot of the relevant Sea Ship Arrival Notice. This conduct obviously arises from his having been told that something important was on the ship. Again, this speaks of recklessness as to what may have been on the ship.
He also sent Bui a copy of the International Trade Management invoice re the cargo on the ship which he had the ITM being addressed to Cox Architecture. He also advised Bui that Camperdown could accept side loader deliveries and/or dropdown deliveries which required him to obtain information from that facility. He obviously was keeping track of the imported items, advising Bui that the Camperdown facility could take the goods and that they were being taken back to Sydenham. He arranged another storage facility, Kennards at Petersham.
In her submissions, learned counsel for the offender said this: "The fault element for the element of the offence involving the fact that it was a controlled drug is recklessness (section 307.1(2) of the Criminal Code). It cannot be proven beyond reasonable doubt that the offender had actual knowledge of that substance in the package was a border-controlled drug. The highest finding that can be made as to the offender's state of mind is one of recklessness. The fault element for the quantity trafficked is absolute liability under s 307.1(3). There is no requirement to prove knowledge nor recklessness, and there is no evidence of either knowledge or recklessness. The offender's role was limited to arrangements to do the storage and some limited passing on information to do with shipping. When making these arrangements he was not the sole organiser (see agreed fact [39]). Even when arranging the storage unit in Petersham he was provided with fake identification from Bui (agreed facts [51]). The offender was acting on the directions of other offenders and each of the other offenders played far more significant roles than this offender. For these reasons it is submitted that the offending falls below the mid-range of objective seriousness for offences of this kind."
I accept those submissions as being accurate. It is to be noted that although the offender was trusted to do certain things, his role was limited, and he is not involved in the group chats at all. There is no evidence that he recruited anyone, or of his being superior in the syndicate to any other person. The only evidence of his reward for his involvement in this offence and the offence that is Count 2 in the indictment was the expectation of "free drugs". That is recorded in the history obtained by Ms Kris North, a psychologist, who interviewed the offender on 24 July 2024, and issued a report bearing date 7 August 2024. The relevant admission is contained in [6] of Ms North's report.

Counts 3 and 4

I turn to Counts 3 and 4 concerning the air pistol and the air gun. As far as I can ascertain, these "weapons" are at the bottom of the range for firearms. These "weapons" are not unlawful in Queensland as Conlon SC ADCJ pointed out in R v Smith (supra). I find it understandable that a man who was for a number of years homeless, as I shall discuss later, may have obtained them to deter others who might steal from him.
As far as the s 166 certificate matter is concerned, I believe it to be below mid-range but of concern, especially when, as will later become clear, this was a second offence of this nature. However, the only inference to be drawn from the facts pleaded and given in the agreed facts is that the offender was making false NSW Drivers Licences, not, for example, credit cards or the like.
The offender has a criminal record, but I shall describe that after I have summarised the offender's personal circumstances which throw light on that criminal history.

Personal Circumstances

I turn then to the personal circumstances. As I have already mentioned, the offender was interviewed for over two hours on 24 July 2024 by the psychologist, Ms Kris North, who produced the report of 7 August 2024. It is Exhibit 1 item 1. I take the offender's circumstances mainly from the history recorded by Ms North.
The offender identifies as an Indigenous Australian. That heritage is confirmed in a number of documents before me, in particular, police records and also by the offender's appearance. The offender was born in Sydney and grew up on the north shore. He described being the youngest of three children born to his parents' union. His parents separated in 2020, after it was discovered that his father had a second family. The offender described a dysfunctional childhood, noting that he had never felt loved by his father and had been afraid of his father, whom he described as having been violent towards his family throughout his youth. For example, the offender reported that his father had been abusive towards his mother, in addition to having been physically abusive towards himself and his two older siblings.
When describing his home life in his youth, he reported witnessing domestic violence towards his mother and physical abuse of his siblings, as well as being physically abused by his father himself. The physical abuse towards the offender commenced when he was nine years old. The offender described to Ms North instances in which he had been hit with a belt, lifted up by his ears, hit with pots and pans, and being nearly drowned in a fishpond. He described himself as always being scared within his childhood home, and reported his family members had to be submissive in order to avoid further abuse from their father. The offender also reported that his sister had been subjected to sexual abuse by a family member during her childhood, indicating a dysfunctional home environment.
The offender told Ms North that his mother had struggled with mental health issues, including emotional lability and episodes of mania. However, the offender could not tell Ms North whether his mother's mental health issues had developed as a result of domestic abuse within the marriage. However, he could tell Ms North that her condition had improved since she had engaged in treatment subsequent to the divorce from the offender's father.
The offender reported that he had moved out of the family home at the age of 16 to escape his dysfunctional home environment and he maintained part-time employment to support himself whilst completing his schooling. The offender told Ms North that he had no recent contact with his father or his siblings. He believed that his siblings had taken their father's side when his parents divorced. He has maintained regular contact with his mother, and he told Ms North that she would provide him with stable accommodation upon his release from custody. The offender's mother and sister-in-law were present in court during the sentencing hearing last Wednesday, and I believe they are here again today. They clearly show their support for the offender.
The offender attended Beauty Point Public School prior to attending an expensive private school for years 5 and 6. He attended Sydney Church of England Grammar School between years 6 and 12. He reported no issues at school prior to experiencing sexual abuse between the ages of ten and 12. He was molested by a male teacher. He described the abuse to Ms North as having gradually escalated from cuddling and kissing to very serious unlawful conduct. He told Ms North that the perpetrator would threaten him when he tried to end the abuse. The offender told Ms North that he had since recognised that his dysfunctional home life had made him vulnerable to being groomed, noting that he had been searching for a male role model at the time and described himself as "desperate to please" at the time in order to receive positive attention. The offender reported that he subsequently changed schools at end of year 6 in order to avoid further abuse. However, he did not disclose that abuse until very recently.
The offender described himself to Ms North as having been an above‑average student, being involved in both sports and music. Prior to the abuse, he had a lot of friends at school. After being abused, he struggled with authority figures and expressed the view that he did not like being told what to do. He appears to have developed a lack of interest in the academic side of school. However, he developed an interest in theatre in year 9 and onwards and described being in a theatre program in late high school which gave him opportunities to tour within Australia and overseas. The offender completed year 12 in 1995 and reported obtaining an average TER.
The offender described having maintained part-time employment whilst in school, including working in cafés and take-away restaurants. Subsequent to finishing high school, he continued to pursue a career in acting and described having been a working actor for five to six years. The offender reported he began hosting dance parties in 2000, and started working in events from that time, including having been a licensee for bars and clubs up until 2011/2012.
The offender told Ms North that his work within the hospitality industry led to an escalation in drug use and he reported that he began to steal money from his business to support his drug habit and also a gambling habit. The offender told Ms North that his life had spiralled out of control from about 2012. That led to his being separated from his wife and declaring bankruptcy, and he was subsequently homeless for five years.
The offender reported that he had not been able to maintain employment in the community since 2012 as a result of his drug use issues and unstable lifestyle. However, Ms North noted that the offender had recently completed a barbering course whilst in custody and has been cutting the hair of other inmates. As I understand the evidence before me, that continues to be the case. The offender told Ms North that he plans to obtain employment, either as a barber or a kitchen hand upon his release from custody. Previously, the offender had some employment as a kitchen hand with Corrective Services.
What I just described brings me to the issue of the offender's drug abuse history. The offender first used cannabis at the age of 13 years at the commencement of his high schooling. He used that on a daily basis throughout high school, noting that cannabis reduced his anxiety and stopped him from thinking unwanted thoughts. He also described recreational use of LSD and ecstasy during his adolescence and described having used LSD on a daily basis during his high school years. As an adult, the offender had used cocaine habitually between the ages of 21 and 26. He also used benzodiazepines daily.
To Ms North, the offender identified that his primary drugs of concern from age 27 onwards had been methamphetamines and GHB. He was using those drugs daily prior to his arrest. Clearly to support the drug habit, he became involved in the crimes for which he now stands for sentence. Under closer questioning by Ms North, the offender described his use of methamphetamine to block unwanted thoughts and emotions relating to his history of traumata, the traumatic and abusive home environment, and the later sexual abuse.
The offender recognised that he had been using substances as a maladaptive means of avoiding addressing the past traumatic issues which have now become more important during this period of incarceration. At the time he was interviewed by Ms North, he had been in gaol for about 20 months. He told Ms North that those 20 months had been the longest period of sobriety since he was a teenager.
In the past, the offender has sought some drug rehabilitation but has not been successful in that regard. He told Ms North that he had two episodes of drug use treatment at The Sydney Clinic in 2006 and in 2010, before his life went haywire. He had treatment at Odyssey House in 2019, but that treatment clearly did not prevent his continuing use of drugs. Ms North obtained a treatment report from Odyssey House which confirmed his reported history of childhood abuse and emotional neglect and his early onset of drug use.
The offender was married between 2005 and 2011. As a result of that marriage, he has two children who, when the offender was interviewed by Ms North, were aged 16 and 13. The marriage broke down because of his drug use, and the breakdown of the marriage led to stress relating to his failed business venture and related financial hardship. The offender has sought to maintain regular contact with his children, but that contact has been reduced because of the offender's drug habit. However, since being in custody and being sober, he has been able to maintain a relationship with his children.
Ms North recorded this history about the offender's physical and mental health: "Mr Campbell described having struggled with symptoms of depression and anxiety since his adolescence, and described having used drugs to manage his symptoms. As such, he reported he had not engaged with a psychologist in the past and it was noted that he had not disclosed his history of sexual abuse when initially engaged at Odyssey House. Mr Campbell thus reported that he never addressed his unresolved history of trauma when in the community and described an escalation of his symptoms since being in custody, noting that he was 'currently forced to deal with it' as he was not able to use drugs. When questioned about his psychological symptoms, Mr Campbell described difficulties in managing his emotions, difficulties sleeping, nightmares, generalised fears, increased levels of physical tension, difficulties experiencing positive emotions, and reduced motivation levels consistent with mixed symptoms of anxiety and depression. It was my opinion Mr Campbell's symptoms directly stemmed from his history of childhood trauma and represented symptoms of post‑traumatic stress. For example, he described experiencing intrusive memories, avoidance behaviours (relating to drug use), a negative emotional state, and heightened levels of physiological arousal (including difficulties sleeping and increased physical tension). Mr Campbell reported he was currently prescribed sertraline and melatonin to assist in managing his symptoms of depression and difficulties sleeping. Justice Health records also noted history of depression and reported Mr Campbell had also experienced dental issues in custody in relation to damage resulting from his methamphetamine use. He reported he planned to have his teeth fixed upon his release into the community."
On her mental state examination, Ms North expressed the view that the offender was "candid in his responses." That is a way of telling me that she believed that he was telling the truth. She administered the depression and anxiety stress test, and that recorded an extremely severe range for anxiety, a severe range for depression, and a moderate range for stress. However, one must be careful when considering those matters because any person standing for sentence facing possible life imprisonment would be unnatural not to be suffering from anxiety and depression.
She eventually provided diagnoses of stimulant use disorder and sedative, hypnotic, or anxiolytic use disorder. Such diagnoses are invariably made when a person gives a history of having been addicted to illicit drugs. She also diagnosed provisionally post-traumatic stress disorder, which she laid at the feet of the offender's childhood trauma both at home and at school. She recommended treatment.

Criminal History

I turn then to the offender's criminal history. It commenced when the offender was 18 years old. On 10 July 1996, he was charged with possessing a prohibited drug and possessing equipment to administer a prohibited drug. Each of those charges was dismissed under then s 556A of the Crimes Act 1900. On 13 November 2012, he was again charged with possessing or attempting to possess a prescribed restricted substance. He was placed on a bond to be of good behaviour for a period of 12 months.
On 14 March 2013, at the age of 35, he was charged with shoplifting, possession of equipment for administering prohibited drugs, and again possessing or attempting to possess prescribed restricted substances. He was again placed on a bond to be of good behaviour for a period of 18 months. On 29 September 2014, he again possessed equipment for administering prohibited drugs and possessing or attempting to possess prescribed restricted substances. He was 36 years old at that time. A s 10A conviction was recorded in respect of each offence.
In July 2016, when he was 38 years old, he was fined for having goods in custody suspected of being stolen, and placed on a bond to be of good behaviour for a period of 12 months for possessing a prohibited drug. However, he breached that bond and was called up and was sentenced to imprisonment for three months commencing on 17 May 2017. He was called up because on 16 May 2017, he was charged with further drug offences and with having goods in personal custody suspected of being stolen, and using a false document to obtain property, and possessing equipment and the like to make a false document. Again, the same charge contained on the s 166 certificate in the current matter.
He was also charged with five counts of making a false document to obtain property. He was also charged with receiving and manufacturing a prohibited weapon and some sundry other offences. For those, the maximum penalty imposed for those offences was imprisonment for 12 months with a non-parole period of six months.
On 12 January 2019, he was charged with dealing with property the proceeds of crime, for which he was given a Community Corrections Order for a period of nine months commencing on 10 February 2020. However, on 5 February 2019, he was charged with further offences. They were possessing identity information to commit an indictable offence, possessing an unauthorised prohibited firearm, possession or use of a prohibited weapon without a permit, goods suspected of having been stolen, possession of equipment to make identity information - again, the s 166 offence before me - and possessing a false document to obtain a financial advantage. That led to both a Community Corrections Order, and an Intensive Corrections Order, but those orders appear to have been observed.
I have excluded from that criminal history some traffic offences which are of no current moment. The criminal history is largely what one comes to expect from a person who turns to drugs as a form of self‑medication, especially at the age of 13 years.
Prior to going into gaol on 11 November 2022 as a result of the current charges, the offender spent six months in custody between 17 May 2017 and 16 November 2017, and for five months between 5 February 2019 and 11 July 2019. It would appear that because those were relatively short periods of incarceration, not much benefit was achieved as far as rehabilitation is concerned.

Contrition and Remorse

I turn now to consider the issues of contrition and remorse. In her report of 7 August 2024, Ms North recorded this at the commencement of [4]: "With regard to his offending behaviour, Mr Campbell expressed regret for his involvement and had accepted responsibility for his offending behaviour."
At the commencement of [5] of the same report, she said this: "Mr Campbell has accepted responsibility for his involvement in the offences, has entered pleas of guilty, and expressed regret and embarrassment for his behaviour."
Contrition and remorse are also attested to by the offender's early pleas of guilty. Acting on legal advice perhaps, but also in fear of retribution, the offender declined to give an electronically recorded interview to the police at the time of his arrest. However, he did agree to tell something to police "off the record". The officer-in-charge gave oral evidence last Wednesday. He confirmed that, as far as his memory allowed him to say, the accused did not provide any information that would have assisted the police with things other than what they already knew. The accused, however, was provided a fact sheet to read prior to completing the charge work that the police needed to do. When he spoke with the offender, the offender "pretty much agreed with the facts sheets and said it was pretty accurate".
He also agreed that the offender apologised on a number of occasions to the police for not being able to give a formal interview. The "admission" made by the offender to the police "off the record" clearly foreshadowed his pleas of guilty. It also displays a prosocial attitude to life in our community and a positive attitude to those in authority, such as the police. The offender does not, very properly, seek any additional discount on sentence for his cooperation with the police. It is, in my view, evidence which shows that he is truly remorseful.

Rehabilitation and Prospects of Reoffending

I now turn to the question of rehabilitation and the prospects of reoffending. These two topics are two sides of the one coin. The larger the one, the larger the other. Ms North said in her report that the offender's substance use issues were identified as the main criminogenic risk factor. It was her opinion that the risk for reoffending could be reduced should the offender engage in appropriate treatment. After sentence, the offender ought to be able to undertake courses to help him abstain from drugs and overcome his addiction. He is now 46 years old. If he does not seize this opportunity to overcome his drug habit, he would be losing the best opportunity he has to return to a normal, law-abiding life.
It is of concern that Corrective Services records show that on 24 February this year, he failed a prescribed drug test, and as a result, on 14 March 2024, was given 42 days off contact visits and 42 days off buy-ups. However, no-one is perfect. The Court is aware that illicit substances are trafficked in gaols, and that this is but one offence in almost 22 months. If he is sincere and does diligently attend rehabilitation courses back in custody and whilst on parole, the prospects of rehabilitation are good, and the likelihood of reoffending is low.
I note that the offender's mother is prepared to accommodate him on his release from custody. As I have earlier mentioned, his mother and sister‑in‑law were present in Court on Wednesday and also today, showing clearly their support for him. That augurs well. In her submissions, Ms Khalilzadeh said this: "35. He has spent his time in custody in protection because of various reports of being 'stood over…for buy-ups or anything', fearing for his safety, and having been 'stood over for money and making threats to stab him'".
His custodial inmate profile document has a record of SMAP protection from July 2023 to July 2024. It appears that that status is continuing. The offender has engaged in art classes in 2023, with his level of understanding noted to be "high". He is currently employed as barber in custody and has done some previous work as a cleaner, kitchen hand and in metal fabrication. He has not worked during previous periods into custody other than a period of ten days as a farm general hand in 2017, and in food services for three weeks in 2017.
These submissions point in a positive direction towards rehabilitation. Also in evidence is a letter from solicitors who are acting for the offender in proposed civil proceedings. That letter says, inter alia, these things: "We confirm that Mr Campbell says he has suffered institutional abuse as a child. We confirm we have commenced investigations in relation to these claims and as part of this process, our client has disclosed to us [his] past criminal history, but also [his] intentions to take positive steps towards avoiding further incarceration. Mr Campbell says he intends to seek justice and acknowledgement for those crimes committed against him as a vulnerable child in order to seek opportunities to better his life for the future. ..... Mr Campbell says that he has a willingness and desire to receive treatments such as mental health support to address the trauma suffered, and this treatment is generally more readily available and effective within the community."
Not only does the offender realise his drug use is or has been a form of self‑medication for his prior abuse, he has also resolved to avoid further offending and is prepared to seek appropriate treatment. That also augurs well for the future. Learned counsel for the offender referred me to a number of sections of the Bugmy Bar Book. They provide me with generalities. In the present matter, the specifics are provided in Ms North's report which clearly shows the disadvantage suffered by the offender in his childhood, the reason he sought a male role model other than that of his father, which led to even worse abuse.
Those disadvantages and abuse led to the commencement of illicit drug use as a 13-year-old, leading to addiction, leading to a broken marriage, unemployment, homelessness and then crime. In her submissions, learned counsel for the offender said this: "This Court will be very familiar with Bugmy v R (2013) 249 CLR 571 (Bugmy). In the recent decision of Rex v MJ [2023] NSWCCA 306, Price J summarised recent decisions that considered Bugmy factors and the role played in the sentencing exercise. In the present case, the combination of his exposure to domestic violence, his disconnect with his family, his exposure to childhood sexual abuse and exposure to his mother's mental health issues give rise to disadvantage in a way that moderates his moral culpability. This is particularly so where there is a connection between drug use and his offending, where the drug use has emerged as a maladaptive coping mechanism for the trauma he has suffered."
I accede to that submission. Ms Khalilizadeh submitted that this is a case calling for a finding of special circumstances. That would only be necessary if the relevant sentence to be imposed was a State sentence, but that is not what I intend to do. I agree that the longer the offender has on parole in the community under the supervision of Community Corrections, the greater will be his opportunity to resume a normal social life. I intend to fix a longer than usual parole period for the last Commonwealth sentence to be imposed to allow for that. I believe that this is permitted under the Crimes Act 1914 (Cth) s 16A(2)(n).

Explanation

I now provide an explanation of the sentences I intend to pass. The State offences, as I have earlier mentioned, will be dealt with in an aggregate sentence.
Count 3, the possession of the gel air pistol, including the offence on the Form 1, Count 4. I start with a head sentence of one year and four months. I reduce that by 25% as a discount for the offender's plea of guilty at the earliest available opportunity. That leads to an effective head sentence of one year. As Count 3 carries a standard non‑parole period, I am required to specify the non‑parole period that I would impose solely for this offence. That non‑parole period would be nine months. For the s 166 certificate offence, the possession of equipment to make ID information, I start with a head sentence of one year and four months. I discount that by 25% because of the offender's plea of guilty at the earliest available opportunity. That gives a head sentence of one year.
I intend to aggregate those two sentences. The aggregate sentence I intend to pass is for one year and six months with a non‑parole period of one year and one month. That sentence will commence on 11 November 2022. The offender would theoretically be eligible for parole on 10 December 2023.
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. This sentence will commence on 11 December 2023 and will expire on 10 December 2026. The non‑parole period would expire on 10 December 2025.
For Count 1, aiding the importation of a commercial quantity of amphetamine, I start with a head sentence of five years' imprisonment. I reduce that by 25% for the offender's early plea of guilty. That leads to a head sentence of three years and six months. I have determined that the non‑parole period, in order to aid in the rehabilitation of the offender pursuant to the Crimes Act 1914 (Cth) s 16A(2)(n), to be two years. This sentence will commence on 11 December 2025. It will expire on 10 June 2029. The non‑parole period expires on 10 December 2027.
The overall effect of those sentences is that the offender will be in custody from 11 November 2022 to 10 December 2027, a period of five years and one month, and will be released on parole for a further period of one year and six months, expiring on 10 June 2029.

Sentence

Joshua Michael Campbell, on Count 3 in the indictment and also in respect of the matter on the s 166 certificate, you are convicted. I sentence you as follows. I set a non‑parole period of one year and one month commencing on 11 November 2022 and expiring on 10 December 2023. I impose a further period of imprisonment of five months to commence upon the expiration of the non‑parole period and expiring on 10 May 2024. The total sentence is, therefore, one year and six months comprising the non‑parole period and the balance of the sentence. I do not find special circumstances. You are eligible to be considered for release on parole at the expiration of the non‑parole period. I take into account the matter on the Form 1, namely, Count 4. That is an aggregate sentence. The indicative sentences for Count 3 are a head sentence of 12 months and a non‑parole period of nine months, and for the s 166 certificate, the indicative sentence is a head sentence of 12 months.
In respect of Count 2 in the indictment, you are convicted. I sentence you to imprisonment for three years commencing on 11 December 2023. You are to be released on a Recognizance Release Order on 10 December 2025 subject to the next sentence.
In respect of Count 1, you are convicted. I sentence you to imprisonment for three years and six months commencing on 11 December 2025, and expiring on 10 June 2029. I set a non‑parole period of two years expiring on 10 December 2027.
I find that you are an "eligible convicted offender" under s 5A of the Drug Court Act 1998. Pursuant to s 18B of that Act, I refer you to the Drug Court to determine whether you should be the subject of a compulsory drug treatment order. Pursuant to s 18B(4), I direct the Registrar to send to the Registrar of the Drug Court the material required by that subsection.
I order that the affidavit of Nidal Abdi sworn 9 August 2024, being item 2 in Exhibit 1, and the affidavit sworn 13 August 2024, being Exhibit 1-1, together with the notice of motion filed in Court on 14 August 2024, be placed in an envelope and sealed and endorsed "Not to be opened other than by a Judge".
Pursuant to the Crimes Act 1914 (Cth) s 17A, I declare that both the Crown, the offender and I agree that no other sentence is appropriate for Counts 1 and 2 other than a sentence of full-time imprisonment.
HIS HONOUR: Any other orders?
THOMS-PACKER: No, thank you, your Honour.
HIS HONOUR: I wish you well, Mr Campbell.
OFFENDER: Thanks.
HIS HONOUR: Good luck.

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: 11 September 2024

Criminal Code Act 1995(Cth)s 307.1(1)., s 302.3(1).

Crimes Act 1914(Cth)s 16A(2)(n)., s 16A(2)(n), to, s 17A, I

At a glance

Court

Decision date

Source

Judgment (13 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (4)

Cited By (1)