R v Faria

The penalties are 20 years imprisonment and 2 years imprisonment respectively. The maximum penalty operates as a legislative guidepost and represents the legislature’s assessment of the seriousness of the offence.

I have taken into account the timing of the pleas in the Local Court. I will reduce each sentence by 25%. By these pleas the offender has facilitated the course of justice.

There are facts contained in the Crown tender bundle. I have had regard to the full facts and distil only salient aspects as relevant to assessing the seriousness. Responding to a complaint of a smell emanating from a unit, the police attended the residence where the offender was in the process of attempting to extract cocaine that was impregnated in rubber. The chemicals were available, and the offender had detailed instructions in text supplemented by his handwriting as to the process to be undertaken. Cocaine was located in several items, with the total pure weight of cocaine calculated at 782g. This weight is to be assessed against the offence range of between 250g and 1 kg. The offender, who was caught in the act, admitted his conduct to police and advised that he had been involved for about a week. He performed necessary acts with knowledge and maintained his involvement over a number of days. He did not voluntarily desist.

He informed police he was to be paid $10,000 for his work.

The offender was not a drug user and was involved for recompense. The amount was relatively high although not reflective of what others would have obtained if the attempt proved successful. He said he did not know who had asked him to undertake this role. This is unlikely to be truthful but it is not to his disadvantage that he failed to nominate who had recruited him. He entered an operation that was already in possession of the cocaine and performed his role as recruited without any planning.

His role was important, and he was entrusted with the chemicals and equipment to extract a highly valuable commodity. He was at risk of injury given he was functioning with chemicals and there is no evidence he had any particular skill or training. Although an attempt to extract, it entailed extracting the actual drug from another substances.

Counsel for the offender submitted the seriousness fell at the lower end of objective seriousness. I do not accept this characterisation. The offence is relatively serious example of the offence provision and the role of the offender not insignificant.

The other offences for sentence involved possessing the notes required to attempt the extraction process.

I accept the offender sought money out of need rather than pure greed. He was impecunious and homeless. The offender detailed his exposure to non-sexual violence perpetrated by both his parents and sexual violence by his godmother’s partner. This is part of his background. This background informs the diagnosis of mental health issues. Those mental health issues inform both the past and the present. He was otherwise prosocial and was able to obtain employment. I consider that the offender became involved out of financial need and exhibiting a lapse of judgement. Although there is a background that contains trauma, there are no factors that lessen moral culpability.

The offender is now aged 46. In addition to his own affidavit, the offender relied upon material contained in the psychological report and other testimonials. There is relevant material contained in the Sentencing Assessment Report.

The offender has expressed remorse directly and through hearsay accounts. Based on the offender’s evidence, and the immediate acceptance of his offending, I accept there to be both insight and remorse.

I do not determine the offender provided assistance to authorities in accepting his involvement when he was caught in the act of committing the offence. I do not accept that there need be a specific percentage reduction for this act. The conduct has already favourably informed the consideration of remorse.

The offender has a minor driving offence and is to be regarded as a person of good character. The offender’s limited antecedents operate to entitle him to leniency.

I consider his prospects of not reoffending and of rehabilitation to be promising. I note and accept the assessment of low risk of reoffending. He has some support in the community. There is an offer of employment in addition to his own business plans. Personal deterrence continues to serve a role given the ease with which the offender committed this offence acting out of character.

General deterrence and retribution are important factors in drug related offences. I do not overlook the principal offence for sentence is inherently serious. It is not victimless. Drugs cause direct and indirect harm to the community. The extraction process was conducted in a residential area. There was a risk of damage to property and harm to residents. This potentially dangerous activity, conducted by a person untrained in chemistry, is to be deterred.

I have considered the limited assistance derived from the provided statistics.

Having considered all the possible alternatives, I am satisfied no penalty other than imprisonment is appropriate for the principal offence. I do not determine the s.5 threshold is passed for the summary offence.

In considering an overall appropriate sentence I am cognisant of the factual link between both offences.

Submissions on behalf of the offender were directed at the appropriateness of the imposition of an Intensive Correction Order (ICO). I am required to embark on an evaluative exercise that treats community safety as the paramount consideration. This consideration requires an assessment of a number of factors including the risk of reoffending in a manner that may affect community safety and the conditions that might be included in an ICO and enforced by Community Corrections. I am satisfied that the risk of reoffending in a manner that may affect community safety would be better reduced by an ICO than full-time imprisonment.

The offender is convicted of both offences.

The sentences imposed are:

On sequence 2, a fine of $1000.

On sequence 1, the sentence imposed is one of 1 year and 10 months. The sentence imposed is to be served by way of an intensive correction order. The offender must report to the Community Corrections office at Leichhardt within 7 days.