R v Keo; R v Faulkner

District Court of NSW|2014-10-17

Solicitors: Commonwealth Director of Public Prosecutions AXL Legal Solutions Pty Ltd - F Keo Bannister Lawyers - B Faulkner File Number(s): 2011/353666 2011/353793

INTRODUCTION

HIS HONOUR: Mr Keo, the sentence I propose to impose upon you, with a combined discount of 27.5% for facilitating the course of justice and your past cooperation, the past cooperation component being 2.5%, is six years and six months imprisonment, with a three year three month non-parole period, backdated to 4 November 2011. You will be eligible for parole, on my calculation, on or about 3 February 2015, taking into account everything that has been said today by your counsel.
Mr Faulkner, you understand of course you face a much more difficult task than Mr Keo. The total sentence I propose to impose upon you is a sentence of imprisonment of 26 years and six months. It involves a non-parole period of 18 years. In relation to count 2 I propose to sentence you to 16 years and six months imprisonment to date from 11 November 2011.
I have given you a discount of 25% for that count, a combined discount for the facilitating the course of justice, a term that you may not be particularly concerned about because it's a term of art in one sense, and for past cooperation with the authorities. In relation to count 1 you understand of course not only do I have a significant offending in that count to deal with, but I have got a number of significant matters in the 'Schedule'. They are all very serious charges in their own right.

THE FACTS

As earlier mentioned I sentenced Mr Patino on 1 May 2013 and a number of the matters that I found in relation to that case are concerned with matters that relate to Mr Faulkner particularly, but also Mr Keo. The facts that have been presented in court in relation to the matters that are for sentence very much depend upon the detailed induced statement that Mr Patino gave to the Australian Federal Police in a relatively timely manner which permitted the further investigation of the case such as to enable the prosecution to bring further charges against Mr Faulkner, which are before me today in one form or another.
The consideration of the facts presented by the Crown requires regard also to be had to the evidence given by Mr Faulkner and Mr Keo in these proceedings. The proceedings in relation to these two prisoners commenced in February 2014. We are now at 17 October. The last submission in this matter, or the last comment about the matter was made shortly before 5pm on Friday, 19 September 2014.
Part of the delay in the conclusion of the sentence proceedings was because of the illness of counsel. Obviously these matters arise from time to time in proceedings and no criticism can be made for the delay on that occasion. However, we were able to take some short evidence in Mr Faulkner's case because the evidence did not affect Mr Keo. It is clear obviously when one has regard to the extensive transcript that these proceedings have taken what could be called a considerable period of time.
It must be said also from the outset, and I will deal with this matter in some detail later, that the sentencing of these offenders takes place in the context of the sentence imposed upon Mr Patino which is to be seen as a significant reference point given the fact that I sentenced him in relation to common criminality in different ways of both offenders.
These prisoners obviously pleaded guilty at a time after they had become aware that Mr Patino had provided extensive information to the Australian Federal Police, and after he had pleaded guilty in the Local Court to be committed for sentence to this Court. The proceedings involving Mr Patino were occurring before me at the very time that arrangements were being made, for example, by Mr Faulkner, to cooperate with the Australian Federal Police.
There are of course differences in the criminality of the respective offenders in relation to the common offending; they have different subjective circumstances, different levels of cooperation, and other matters that are unique to each offender warranting a careful exercise of discretion. Again, I will deal with these matters later in some greater particular.
I am very mindful in the context of considering not only the sentence imposed upon Mr Ream, and the sentence that I imposed upon Mr Patino, of the problems with relying upon comparative sentences. In this matter the Commonwealth Crown referred to, and defence counsel in part referred to, other sentencing matters involving Commonwealth prosecutions relating to importations of border controlled drugs.
There are difficulties in this area of sentencing as there are in relation to the sentencing of offenders for large commercial quantities, or commercial quantities of the supply of prohibited drugs under State law as is recognised in cases such as Pham v R [2014] NSWCCA 115 at [56], and Dang v R [2014] NSWCCA 47 at [55]. It is clear that the totality of the offending.
It is clear that the totality of the offending of Mr Faulkner requires the imposition of sentences far greater than that imposed upon Mr Keo, and greater than that imposed upon Mr Patino. The level of culpability in respect of the common offending, whether we are talking about objective criminality or moral culpability, in Mr Faulkner's case it is greater than that of Mr Patino, and much greater than that of Mr Keo.
This was self evident not just from the facts presented by the Crown, but by the very evidence given by Mr Faulkner and Mr Keo about matters relevant to those facts. The version given by Mr Keo was not substantially challenged by Mr Faulkner's counsel.
In relation to the facts it is required of me to first of all deal with the first three offences required to be taken into account on the form, or the schedule, to be considered pursuant to s 16BA Commonwealth Crimes Act.
In respect of the first count to which that prisoner pleaded guilty on the indictment, on my calculation that is the fourth offence in time. The second count on the indictment and the last two matters on the s 16BA schedule, or "list", as it was referred to by the learned Crown Prosecutor's written submissions, occurred at the time of the accused's arrest and were the last in time.
In assessing the Crown's facts in conjunction with Mr Faulkner's evidence, I found Mr Faulkner's evidence insofar as he implicated himself was largely frank and generally honest, although I am not sure he has told us everything that he did know. But I acknowledge part of the problem with his evidence and the disclosure of relevant information is that his willingness to come forward with what relevant information he had came many months after his arrest and occurred in circumstances where possibly corroborative or independent evidence had been lost.
His own actions in disclosing to a particular source that he had been "done", permitted his Blackberry to be wiped by a third party, preventing any investigation of matters that might have brought to justice those who are more culpable than he.
Mr Faulkner in his evidence described how he was recruited and by whom and provided background for the circumstances in which the offences were committed, which material not otherwise available to the Crown except from Mr Faulkner. He provided information about how the consignee was identified and the relationship of the niece of the owner of the restaurant that was identified as the consignee of the first three importations at least, and the circumstances in which arrangements were made for the delivery.
He also gave details of how very, very substantial sums of cash that he was entrusted with were delivered to others, or how drugs that were imported into the country were delivered by him to others. One of the problems again with his evidence, and I ascribe some fault to him in this regard, is that his description of people, identification of their names, their cars, is almost completely useless for any further inquiries to be made.
The first matter that I am concerned with in terms of the criminality of this prisoner involves the importation of what is alleged to be methamphetamine and cocaine that arrived from Canada on or about 21 April 2011, sent by a "Matthew Smith", obviously a fictitious name and a frequent consignor of the importations with which I am concerned.
Within the goods that were imported were an icemaker and a trolley, as they were described on the consignment invoice, with a combined value purportedly of $4,550 in Canadian dollars. As this importation was never intercepted the facts as revealed to me, although I appreciate the prisoner has given oral evidence about relevant matters too, are largely dependant upon what can be gleaned from surviving documentation, some physical evidence located on 4 November, and the account of Mr Patino.
It is clear that Mr Faulkner was aware that the consignment was to arrive. He had provided details that would enable the consignee to be identified. He arranged to have it picked up, to unpack it and distribute what was contained within the consignment.
The evidence available to the Court reveals there were 20 packages of border controlled drugs removed from a metal frame that was part of the consignment, by both Mr Patino and Mr Faulkner, at an address at Canley Vale. The remnants of the frame as I understand the evidence in relation to this importation were found in the warehouse that was raided by Australian Federal Police at Wetherill Park on 4 November 2011, at the time of the arrest ultimately of Mr Faulkner, Mr Keo, Ms Nguon and Mr Ream.
Mr Faulkner, in respect of this first consignment took the packages in three bags, as I understand it a suitcase a sports bag and a backpack, and handed them over to an unidentified Asian male at Westfield Parramatta. He paid Mr Patino $1,000 to assist him. At about this time Mr Faulkner had moved into an address at Acacia Street, Cabramatta, and as I understand the facts, approximately a few weeks later stopped working at a business called Fantastic Furniture, which apparently was his last job before his arrest. It would seem that he was in receipt of some form of Centrelink.
This matter of course is relevant to some evidence Mr Keo gave as to how he believed Mr Faulkner and Mr Patino could afford to supply him with the drugs that he said he consumed over a period of time prior to his recruitment by Mr Faulkner sometime in early or mid October 2011. Mr Patino moved in with Mr Faulkner later in the year, in approximately July 2011.
The second consignment, which is identified in the s 16BA schedule as item 2, arrived in Australia on 16 August 2011, and again the consignment came from Canada. The consignee was Alice Thai Restaurant in the Australian Capital Territory. The consignment was a "gas baking oven" and a "trolley". As I understood the facts the remnants of this consignment, that is, bits and pieces of the oven and/or the trolley were found at an address in Sydney that was associated with Mr Patino's mother.
In order to pick up the consignment an organisation, described as "the freight forwarding company", known as Toll Dnata was given a mobile phone number of a phone that was in the possession apparently of Mr Faulkner subscribed to a person called Sean Jones with an address in South Australia, the State from which Mr Faulkner had come to live in the Australian Capital Territory in about 2009 or 2010.
The delivery of this consignment was made to the home of Mr Patino's mother. Fees were paid for the importation at the Australian end in the sum of $6,300, and Mr Faulkner to his credit has given some evidence about how that was paid. Patino and Mr Faulkner removed the packages that were in the frame of the trolley as I understand it. This was a smaller consignment, or a smaller space than the previous importation and ultimately 12 packages each weighing 1 kilogram were taken from inside the four sides of the frame.
These packages were put into a black suitcase which Mr Faulkner later told Patino he had taken to the city and obviously distributed. With regard to these packages, as with the first and third importations, the purity of the contents of the packages is not known and the specific quantity thus of the border controlled drugs is not known. But it is conceded by the pleas or admissions of the prisoner that they are greater than the minimum quantity required for commercial quantities of methamphetamine and cocaine.
At about this time Mr Patino made an overseas trip. To summarise that trip he apparently laundered, or assisted in the laundering of, 235,000 Euros by delivering it from Hong Kong, as I understand it, to Barcelona. The facts available to this Court state that Mr Faulkner paid for his passport and Mr Patina's ticket to Hong Kong, and gave him a Blackberry phone. He also gave him $10,000 Australian which I take to be either some form of fee or combination of fee and spending money.
The evidence does not establish that Mr Faulkner knew all the details of Patino's travel. But clearly he must have known that Patino was travelling some way in relation to the general criminal enterprise of importing border controlled drugs with which he was then intimately concerned. Apparently Patino was sent overseas because he could speak some Spanish which Mr Faulkner could not.
The third consignment arrived in Australia on 30 September 2011, and again, this is the importation referred to in the s 16BA schedule. It again came from Canada. It again was addressed to the restaurant in Canberra. It comprised a steel roll cart, an icemaker and an ice storage bin. These items were later found at the Wetherill Park warehouse in November 2011 when the police arrested Mr Faulkner and Mr Keo and undertook extensive investigations there.
Fees paid at the Australian end were $1,333. This consignment contained a commercial quantity of methamphetamine and cocaine according to the matter admitted to by the prisoner. Faulkner organised for the hiring of the truck on 28 September, and also another truck on 4 October 2011 in anticipation of the importation. Mr Patino, as I understand the facts, arrived back from Barcelona some time after this importation had occurred.
The frame that contained the border controlled drug was recovered by police at Acacia Street on or about 4 November 2011. Again the precise quantity of the relevant border controlled drugs is not known. Nor thus the purity. On about 4 or 5 October 2011 Mr Faulkner, with the assistance of Mr Patino leased the warehouse at Wetherill Park where ultimately they were arrested.
Mr Faulkner organised the bond and the rent and the lease commenced on 17 October 2011. Some of the items that had previously been dismantled were moved to this warehouse is obvious from what I have previously said. In respect of the first count on the indictment relating to Mr Faulkner, this consignment came from Canada into Australia on 15 October 2011. The consignor was the same 'Matthew Smith' who had sent two previous consignments. The consignee as I understand it was the restaurant in Canberra with which the prisoner had a past association.
The consignment comprised a heavy duty steel trolley and a six burner gas range. These were subsequently located at the Wetherill Park warehouse. The fees were apparently $1,154. These items were the subject of X-ray examination, but no abnormalities were found when it was cleared by Customs. However, subsequently abnormalities were revealed.
This consignment contained a commercial quantity of methamphetamine. Mr Faulkner hired a truck on 17 October and organised the hire of another truck on 19 October. The consignment ultimately arrived at the warehouse at Wetherill Park on that date or shortly afterwards. Mr Patino and Mr Faulkner opened up the steel frame on which the oven was placed and removed 21 bags containing a white rocklike substance. It was described as "ice".
There were as well clear bags containing a yellow coloured rocklike substance. One of the bags was ripped apparently and was repackaged and all the bags were put into a car that belonged to another person and taken to Acacia Street. The bags were weighed there and each bag weighed about a kilogram. The bags were placed in a black bag which Mr Faulkner took into his room. Mr Patino said that he smoked some of the white rocklike substance that had fallen out and believed it to be good quality "ice".
Mr Patino, also at Mr Faulkner's direction, took an ounce of the white substance from one of the packages in the suitcase, presumably as a sample. During this week Mr Faulkner used Mr Patino and another man who figures elsewhere in the facts, called Costa, to act as some sort of security while he delivered a significant sum of money, said to be as much as $1 million, but which I understood from the prisoner's evidence was slightly less than that, $850,000, to a person in the Riverview area who could never be identified on Mr Faulkner's evidence.
After the prisoner, Faulkner, was arrested, police found a commercial quantity of methamphetamine in a padlocked cupboard which came from this importation, along with $135,700, electronic scales, money wraps, all within a bedroom used by Patino, but which on the admissions of the prisoner belonged to him. The facts presented in this case state that the money and the methamphetamine did not belong to Patino.
The monies are, as I understand the evidence, apparently a part of the proceeds of the importation that occurred on 15 October 2011. The possession of the cash and the possession of the 5 kilograms of methamphetamine are matters that are identified on the s 16BA schedule. Mr Faulkner approached Mr Keo some time in early or mid October 2011 to see if he was interested on behalf of Mr Faulkner obtaining an Australian Business Number, or an "ABN", in Mr Keo's name after Mr Patino's then girlfriend refused to be involved.
He understood Mr Keo was in need of money. He offered Mr Keo $20,000 to assist, which Mr Keo accepted. Apparently Mr Keo was never paid the money. This ABN was connected to the last importation, the common count between Mr Faulkner and Mr Keo. That count was concerned with the fact that on 25 October 2011 a consignment from Canada consisting of one tractor grapple bucket, or claw, weighing approximately 790 kilograms arrived in Australia. A number of photographs of that consignment I saw in the sentencing of Mr Patino.
The consignment was addressed to Mr Keo with an address in Canley Heights. The freight forwarder was WL Global Logistics at Botany Bay. The consignor obviously was fictitious. The declared value of the consignment was approximately $21,500 Australian. On 26 October 2011 Mr Keo, Mr Faulkner and Mr Patino attended upon "Global Logistics" and Mr Keo paid $4,268 in cash, which money had been provided to him by Mr Faulkner.
Mr Keo provided his contact details and a mobile phone. It must be said as a comment about the facts that throughout the process of Mr Keo's involvement he was fully exposed, giving his name, his mobile phone number and other means of identification which could be easily traced. On the same date a representative of Toll Dnata, earlier involved with other importations, advised that the consignment was on Customs hold.
On 29 October 2011 the facts state that $10,000 was deposited in Mr Keo's bank account, ultimately to be paid to obtain the consignment, although the evidence of Mr Keo, and not much turns upon this, suggests the circumstances of the payment into his bank account of the relevant monies was somewhat different. In the meantime Customs officers had intercepted this consignment, examined it, and located within the consignment 24 rectangular bags containing a total of 24 kilograms of cocaine and 27 plastic bags containing 27 kilograms of methamphetamine, with some admixture.
The pure weight of the drugs was 17.314 kilograms of pure cocaine and 20.548 kilograms of pure methamphetamine. The wholesale value of the cocaine is estimated at approximately $5.263 million, and there is a street value or it in the range of $12.3 to $13.8 million. The wholesale value of the methamphetamine is estimated at $6.675 million with a street value of approximately $16.048 million. One might reasonably have expected, subject to of course the level of purity, which we do not know, of the previous importations to have much the same proportions.
I bear in mind of course street values are very rough figures and one should not get carried away with those figures as a final calculation of what the drug may be worth. I bear in mind in favour, particularly of Mr Faulkner, as he is more intimately involved in this aspect of the matter given the facts, that the true street value of the drugs, if they made it to the street, may have been something less.
In any event Customs officers and officers of the Australian Federal Police replaced the border controlled drugs with controlled samples and in their usual thorough way placed a listening device in the grapple. The consignment was cleared and made available for collection on 2 November. A truck was hired allegedly by Ms Nguon, who has been later acquitted. Mr Keo spoke to Mr Faulkner and then WL Global Logistics on that date, about the importation or the consignment.
When I refer to the importation I bear in mind as I subsequently identified that there is no evidence upon which can conclude that Mr Keo had any real understanding of the quantity of the prohibited drugs, or the border controlled drugs that were coming into the country. Mr Keo eventually paid a sum of approximately $11,000 to, as I understand it, Toll Dnata, and the distinction between that corporation and Global Logistics in their functions in this regard is not particularly well explained in the facts.
There is a suffocating degree of detail about who contacted who over this matter in the 'Statement of Facts', but the bottom line is that Keo and Patino attended upon Toll Dnata, paid the money that had been deposited into Mr Keo's bank account, and at about 12.30pm on that date the two offenders drove the truck containing the consignment they obtained firstly to Mr Faulkner's address at Cabramatta, under surveillance.
Mr Faulkner was, unbeknownst to him of course, observed to inspect the rear of the truck. Arrangements were made for the return of the truck to the hirer the next day. Patino drove the truck from Cabramatta in the early evening of 2 November to the warehouse at Wetherill Park, and thereinafter the contents of the truck were under the direction of Mr Faulkner and to a lesser extent, Mr Patino. It was on this date that Mr Keo ceased his connection with the importation as the pleadings make clear.
During 3 November 2011 there was some toing and froing with the rental of the truck. The first serious attempt to retrieve the consignment that had been imported commenced some time after 1.15pm on 4 November 2014. Largely due to the efforts of Mr Patino, Mr Faulkner and, as I understand it, Mr Ream. The facts speak of the involvement of Ms Nguon, although in light of the findings of Whitford DCJ and the acquittal of Ms Nguon, not a great deal turns upon that aspect of the facts.
Almost the entirely of recorded conversations from the listening device is provided in the facts between pages 20 and 29, and I do not propose to reiterate that detail. It is only necessary to point out that shortly after 3.14pm, while Patino, Faulkner, and as I understand it, Ream and Nguon were present, the listening device was found when an anomaly in the grapple bucket was identified.
Apparently there was timber seen where there should have been metal and all of those present, at least then, realised that the consignment had been interfered with and they sought to make themselves 'invisible' in circumstances where they could not. The four of them were arrested some time after 3.18pm by various Australian Federal Police members.
The Australian Federal Police found at the scene, the grapple bucket and such parts of it that had been removed and some parts of that 'consignment' separated, revealing the substituted controlled substance. They also found various tools, and also various items concerned with previous consignments. Swabs revealed the presence of methamphetamine on some of those other items.
Subsequently, with Mr Faulkner and Mr Patino arrested, the address at Acacia Street, Cabramatta was searched and various items relating to previous consignments or the general character of drug supplying were found, including clip seal bags, some containing powder, some tablets and, importantly, the 5 kilograms of methamphetamine and sum of cash and scales and money wraps that I referred to earlier. These are the matters, as I said earlier, placed on the "Schedule" for Mr Faulkner.
Remnants of one of the importations were found at Ms Patino's home. Mr Keo was arrested on the same day.
The prisoner, Mr Faulkner, sent a message on his Blackberry phone when he realised police were involved, indicating that the importation had been discovered. The message was, "We've been done." This allowed the receiver of the message to wipe the Blackberry and make it useless for further investigation. Mr Faulkner did not provide any information to police nor consent to being interviewed. This is entirely his right but it is a matter to be taken into account in assessing the character and value of his later cooperation.
Relevant matters of course to the investigation were found in his possession. On the other hand, Mr Keo participated in a record of interview in which he made a number of admissions against interest about his knowledge and involvement in the last importation, his involvement in obtaining the ABN, discovering the assignment had been assigned to him, being ordered by Mr Faulkner as to what to do, arranged to pick up the grapple bucket, paying for various things, and his expectation of being paid a sum of money for his involvement.
Mr Ream and Ms Nguon gave interviews but denied knowledge of any criminality. Mr Patino initially exercised his right to silence, like Mr Faulkner. But some time later gave an induced statement, which I referred to in my remarks on sentence. I will deal with the issue of Mr Faulkner's cooperation and Mr Keo's cooperation later.

ANTECEDANTS OF MR KEO

So far as the subjective circumstances of the prisoners as known by the Crown are concerned, Mr Keo, to put it shortly, was born in Cambodia, he is an Australian citizen, he was unemployed at the time of his arrest, in receipt of a Centrelink Youth Allowance, although he had previously had employment, and he had no prior criminal convictions.

ANTECEDANTS OF MR FAULKNER

Mr Faulkner was born in South Australia and he had a number of findings of guilt and/or convictions that go back to 2003, when he was 13 or 14 years of age. I understand of course that his criminal history is to be seen in the context of circumstances relating to his upbringing and other deprivations completely beyond his control.
However, the criminal history shows a lengthy attitude of disobedience of the law in various ways including acts of violence, damage to property, dishonesty, misuse of motor vehicles, public order offences, failing to comply with bail agreements and the like, most of which arise in the Children's Court in South Australia, a jurisdiction with which I am not familiar.
None of his prior offending is of course anywhere near as serious as what this Court is now concerned with. Some of the offences may fairly be described as minor. I counted 11 separate appearances in what were called Family Conference Proceedings, some of which of course were concerned with welfare and behavioural issues about which I can draw no conclusions adverse to the prisoner.
Some appearances however involved multiple offending over a short period of time. On 18 July 2008 he appeared at the Adelaide Children's Court in respect of what I counted to be, although some of them may be leftover offences from previous appearances, 24 separate offences, a number of which were committed on the one date, although some went back as far as 2006. It could be that these matters involved, as I say, a revival of previous matters for reasons best understood by those familiar with South Australian law.
The bottom line is, however, that for whatever reason the offending occurred, the offender, by the time he became an adult was well familiar with various aspects of the criminal justice system in South Australia. As an adult in South Australia he had findings of guilt for street offences and driving offences, and failing to comply with bail conditions.
In New South Wales he was convicted on 8 March 2011 of damaging property, and convicted of two counts of common assault. He was placed on s 9 bonds for a period of 12 months for which he was in breach by reason of the offending of which I am now concerned. Those offences appear to arise out of the one incident. In the scheme of things it does not matter very much, but it must be said that a breach of conditional liberty is to be regarded seriously by courts as a matter to be taken into account adversely to an offender.
Of course, one has to keep one's feet on the ground. Breaching a section 9 bond is not as serious as being in breach of parole, but it is serious nevertheless. In respect of Mr Faulkner a presentence report was prepared setting out a number of details about his background, including what was described as a dysfunctional childhood.
His parents separated when he was a baby, although apparently he lived with his father for a period of time between the ages of seven and 12. Apparently his father suffered a form of mental illness. His father died when he was 16 years of age. The prisoner at this stage was living with his mother but the prisoner left his mother's home, not getting on with her or his stepfather, at the age of 16.
He thereinafter had something of peripatetic existence in South Australia before coming to the Australian Capital Territory in late 2009 or early 2010, to commence a relationship eventually with the niece of the owner of the Thai restaurant which was the consignee for some of the importations with which we are now concerned. This background is supported in the evidence given by the aunt of the offender and some of the reference material that I have.
It is suggested in the presentence report and in the evidence from the aunt that the death of the prisoner's father in 2006 had a profound effect upon him which he had not adequately addressed. He has had various employment opportunities since leaving school in South Australia, but as I said earlier, was unemployed at the time of his arrest.
He conceded to the Community Corrections officer that his involvement in this offending arose out of the financial incentive offered. Given his own evidence one could not understand him to do it for any other reason. He also told the Community Corrections officer that he did not consciously think of the seriousness of his involvement as his focus was on the money.
He said that he had not become really aware of the damage of drug use during the course of his offending but now regretted his involvement. Having regard to his evidence I accept that he regrets his involvement, but I do not accept that he could not be really aware of the damage of drug use given the fact that he was a reasonably regular user of drugs, certainly not to the point of addiction.
Certainly every aspect of his involvement in the offending with which I am concerned reflects upon deliberation and consideration consistent with a clear mind. He gave a somewhat contradictory account to the Community Services officer of his financial circumstances, claiming at one point to be living a hand to mouth existence at the same time as having money to engage in drugs, consume alcohol and participate in gambling, although he did not claim a particular gambling addiction.
He gave a history to that officer of a regular use of ecstasy and the use of cocaine from the early months of 2011. But, as I said, denied any addiction. He admitted regular use of those "prohibited drugs". In custody since November 2011, which obviously will be taken into account, he has not caused any disciplinary difficulties, he is described as a competent worker and he has submitted to regular urine analysis and provided negative results. He has not received any particular medication for mental health issues or the like of any significance since July 2013. Although he did receive antidepressants when he first came into custody in 2011.
In the context of reflecting upon his troubled childhood and his lack of a positive relationship with his mother and his stepfather and the loss of support of his father, the Community Corrections officer observed that the prisoner appeared to be lured by the lifestyle of easy money to involvement in this offending and he acknowledged that at the time he was involved he was not thinking of the wider implications of drug distribution.
The Service, rather surprisingly, thought he needed a medium level of intervention by it. Of course the level of supervision he will require will have to be assessed on a different basis after a significant time in custody.

MR FAULKNER'S CASE

Mr Faulkner gave evidence about his cooperation with the authorities, and I deal with that issue in some detail elsewhere. There is also evidence from an Australian Federal Police officer about this matter which I have taken into account. There appears to me, really, no significant differences of note in their evidence. The prisoner gave evidence of how he became involved in the current course of conduct, noting that through antisocial activity in South Australia he came to meet a person that he named in this Court, who I will not name at this point, who ultimately recruited him into this criminal enterprise.
As the Australian Federal Police agent said, the information provided by the offender ultimately was of little value because it was not supported or verifiable. It was noted by the Australian Federal Police, in its assessment of the information the offender provided over a period of time in 2013, his cooperation was infected by the delay in providing that information and the fact that consequently the "trail" had gone cold and evidence that might support of shed more detailed light on the material provided by the prisoner had disappeared.
In any event, as the evidence of the prisoner before me made clear, the prisoner really is not able to provide particular details about people to whom he provided the drugs that were imported, or from whom he received money or gave money which could usefully lead to further investigations. He said in relation to the first importation with which he was concerned, in April 2011, that after money was transferred to him, presumably by his recruiter, into bank accounts over which the prisoner had control for payment of expenses, he gave 20 packages to a man he did not know and that he cannot really remember the details of at Westfield Parramatta.
He later received the sum of $45,000 a few days later which apparently was used for expenses relating to that and subsequent importations. As for the second importation he says he took the packages removed by him and Patino and gave them to a person called "Barry", who was a member of a motorcycle gang. This person contacted the prisoner through the prisoner's Blackberry which had apparently been provided to him.
The prisoner said he delivered ten packages to Barry at an oval "in the Merrylands/Greystanes" area, which is quite a big area of Sydney. He received from him $850,000 as I understood his evidence in relation to the second importation. He also, as I understood his evidence, received another $10,000 from Barry, which he kept for himself. This $850,000 he gave to two different people.
To one person he gave $350,000. To another person he gave $500,000. These particular details seem at odds with the facts but nothing really turns upon this ultimately. He gave $350,000 he said to a man in Sans Souci driving a "yellow Monaro", whose name he could not remember. He gave $500,000 to a woman a Riverwood, driving a BMW, after meeting some Chinese or Vietnamese bodyguards or intermediaries.
In relation to the third importation he said he delivered 19 packages to a person at a carpark in China Town, receiving $150,000 from what I understood to be a Vietnamese man at a subsequent time, whose car the prisoner could generally describe and who he met at a hotel near Liverpool at the "Crossroads". The prisoner said he kept $10,000 of that money for himself. Some monies he had sent to his recruiter via Western Union.
The $137,000 that was subsequently found at his residence on 4 November was part of the proceeds, as I understood his evidence, of $150,000. As to the fourth importation, after delivering samples to Bass Hill and Penrith, he said he delivered all the other packages except five which were still in his possession at the time of his arrest, to a man who was "around the Brighton-le-sands area."
He indicated the area to the Australian Federal Police officers off a map. He said he never learnt the man's name. He said he was given $25,000 for this. He said he was to be paid $10,000 for this importation out of that money that he had in his possession at that time. His version of events about the various importations largely accords with that given by Patino, although it must be fairly said that Mr Faulkner's evidence does fill in a number of gaps as to sums of money that he may have handled, how drugs were distributed and the like. Many of the details are vague and unable to be investigated.
Many of these matters were matters about which Patino had no knowledge of, unless he had been told about them by the prisoner. Although, on the prisoner's account, Mr Patino would have at least known of the prisoner's visit to particular places to obtain particular sums of money. I formed the impression from the prisoner to the extent that he was willing, he was endeavouring to tell the truth, and he gave some information that I would understand that was not known by the Australian Federal Police.
However, there were a number of aspects of the matter that were light on for details such as the circumstances in which he passed the $850,000, how he came into possession of that money, why he would hand over cash to complete strangers in the circumstances he outlined, how he knew who to give particular drugs to and receive money from.
Looking back over the transcript and on my memory of day in question, my understanding was that counsel proceeded to call the prisoner on an assumption it seemed to me that the prisoner would just give a very brief account of relevant matters to the matters with which he was charged. If he was going to give evidence about those matters, he was required one would have thought to give all the evidence he could about all of those matters.
It certainly is important for me to understand the full facts because he is the person who knows all the relevant matters that need to be known about the facts of the case. I was not present with him when he unpacked the importations. I did not give him the $850,000, or take possession of the drugs. He was there at relevant times. He had the information, if he chose to give it.
Again, I am not criticising his counsel and I am not criticising him, but it seemed to me, with respect, that the real detail of what he did and how he went about things came about in an incidental sort of way. He probably was not given a full opportunity to shed every detail that may have been able to be provided to the Court. He provided a lot more detail in one sense than in the draft statement for the AFP, which is a confidential exhibit.
That statement in its terms highlights, so far as the Australian Federal Police is concerned, the lack of verifiable detail that was otherwise not known to the authorities. The prisoner has never been provided with an undertaking in relation to the giving of evidence.
The prisoner also gave evidence about assaults that were committed upon him, as I understand from the prison records, on 12 and 13 May 2013. These assaults occurred after he started giving evidence before me, but before he completed his evidence, or resumed his evidence on 23 May 2014. He is now classified in some form of protection program, Special Area Management Placement, the acronym of which is SMAP. As a result of the assaults his protection status means he has a non-association component and he has a reduction in the number of contact hours he has with other offenders
His current classification reduces his access to programs in a number of ways. He was at least able to work however, as he continued to work in the print room. Whilst these matters involve some restriction upon him, this is not as severe as other forms of segregation about which the Court has had evidence in other cases.
He gave evidence of the two assaults, one causing a laceration to his face, another as a result of a blow to the ear or the head, causing some hearing loss. The second assault involved people coming to his cell and making a demand for money and threatening him with being "killed". The prisoner understood the demand was related to the assault that occurred the day before. The assaults that were committed upon him are said to be related to the brother of Ms Nguon. As I understand the matter there is nothing in the evidence of the prisoner or by association of the purported architect of the assaults identified to suggest that these assaults have anything to do with any claimed cooperation by the prisoner with the authorities.
These matters appear to be related to personal matters arising from resentment or anger at the fact that Ms Nguon, who was as I pointed out earlier was acquitted, was dragged into a criminal enterprise in which this prisoner was intimately involved.
The Crown cross-examined him about his contact with his recruiter and established that Mr Patino had also had contact with this person. He made concessions about his arrangements for Mr Patino's travel overseas, which I have already dealt with. He also agreed with the Crown that Mr Patino had first been recruited to assist him in opening up a steel frame to get access to packages associated with the first importation. He also agreed with the Crown that he had organised Mr Patino to go to Adelaide in about May or June 2011. On that occasion the prisoner paid him $500, organised his travel, and independently of him, sent a duffel bag containing jackets which had originated from China soaked or impregnated with methylamphetamine, which the prisoner believed could be melted down to extract crystal methylamphetamine for later use. This is a matter about which the prisoner has not been charged. The prisoner, in cross-examination, had trouble accepting that he organised anything, choosing to regard his task as more delegating responsibility. Of course, delegating responsibility is a character of having managerial responsibilities; otherwise the Chief Judge would be doing every case in this complex one would have thought.
He agreed also that he sent a message to the recruiter saying that he and others had been "done", and that he believed his Blackberry was wiped, as I earlier said. He agreed with the Crown he could not provide registration details of cars that either were associated with people who had picked up money or took deliveries of drugs.
He also agreed in cross-examination by counsel for Mr Keo that Mr Keo was not made aware that his address and his name was to be used as the appropriate delivery address and consignee for the last importation, which supports the evidence of Mr Keo.
I had a number of other pieces of evidence, letters from members of the family, the aunt included, who gave oral evidence, and evidence of employment by the prisoner for eight months by Greyhound Australia, which is to his credit, and certificates of completion of studies and the like whilst in custody. I have a report from a psychologist, Ms Duffy; that does not identify any mental illness or disorder contributing to his offending behaviour.
The psychologist in the context of the history given by the prisoner of conflict with his mother and stepfather and acting out as a child, being shuttled between his mother and his father, and the adverse reaction to his father's death, came to the conclusion that the prisoner was currently experiencing symptoms of "major depression", and "anxiety", as well as "post-traumatic stress disorder", with a number of personality characteristics which led to insecurities and behaviours which sabotaged some of his attempts at achieving a settled existence.
The psychologist identified from the history given by the prisoner the offender's friendship with his co-accused, renewed contact with what was described as "a friend" from Adelaide and a growing cocaine habit as all contributing factors to his committing the "offence"(sic). Also significant was said to be his need for money, not only to support himself, but also to appear successful and gain the respect of admiration of others.
In fact he gave some history to the psychologist of showing off some of what he had acquired through his criminal conduct when he flew a family member from Adelaide to Sydney on one occasion. Some of this potted summary of course may be just inaccurately recorded, but it does not fully reflect exactly what is revealed by the prisoner's evidence and the facts in the Crown case.
The psychologist said the prisoner now acknowledged the wrongfulness of his actions but appeared oblivious at the time to the consequences, having been convinced by his associate from Adelaide that "nothing could go wrong". This situation seems to reflect upon a moral universe which does not do the prisoner much credit. It certainly cannot possibly reflect the reality of the situation. The psychologist said that this reflected some naivety on his part, as well as the prisoner's capacity to be seduced by others involved in this venture.
I believe this to be a somewhat naive analysis by the psychologist. But then again, the psychologist does not have all the information available to her. It is based upon what is primarily a self-serving account by the prisoner of his involvement. The psychologist opined that his actions were consistent with his need for recognition and an acknowledgement of what had been lacking in his life.
In somewhat of an understatement the report said that he anticipated spending time in custody as a result of his actions. This seems to me to either represent some irony on the part of the prisoner, or really a lack of appreciation by either the prisoner or the psychologist of the significance of the criminality with which the prisoner was concerned.
The psychologist made various recommendations for educational programs, self development courses, a need for counselling for the symptoms of what were described as post-traumatic stress disorder as well as "addictions" to drugs and gambling, although the prisoner eschewed such addictions with speaking to the Community Services officer. The psychologist's testing of the prisoner was limited to personality questionnaire type testing. The prisoner's personality pathology is said to be "severe". His results were significant on the "borderline scale".
There was no testing as to his intelligence, but comments of the psychologist suggests that he is clearly of at least average intelligence. There was no specific mental disability or disorder that affected his ability to understand the consequence of his actions or the seriousness of the offending.
In relation to the assaults committed upon him, I earlier referred to those. As I said earlier, the claim of being assaulted appears to have no relationship to the prisoner's attempts to cooperate with the authorities. They are related to his involvement in the criminal enterprise, but not directly, rather, because of the implication of Ms Nguon, and the anger that that caused a relative of hers.
I accept that the prisoner has suffered some injuries although the hearing matter is problematic at the moment, slowly being resolved. I have read the documentary evidence that was prepared in relation to his complaints. From the facts that I have seen it is clear that Mr Faulkner was responsible for bringing Nguon into the enterprise, and gave her relevant directions in relation to matters that led to her charging.
The assault of the prisoner was not punishment for him for committing a particular crime against a particular individual, or some payback for committing a particularly category of crime which can sometimes occur with sexual offenders and the like. The assault, as I understand it on the available evidence, which is clearly incomplete, because I do not have the version of the other people, was an act of retribution for implicating the assailant's sister by associates of a sister, in criminal activity.
This is not the usual form of 'extra curial punishment', as it was described in submissions, that one sees. It certainly was not an assault related to the offer of assistance, as I said, or by reason of committing the particular crimes with which I am concerned. Whilst it might have been a fearful thing for the prisoner it was a relatively minor assault in terms of physical injury. It did have the effect of causing the prisoner to be placed in some form of administrative protection, which I have taken into account.
Whether the assailants now present a continuing threat to the prisoner, bearing in mind Ms Nguon has been acquitted, it is impossible to say. Certainly I have got no idea for what length of time the prisoner's fears for his safety will continue given the length of time he would spend in custody, and no knowledge of the time the other people will spend in custody.
Of course, the fact the prisoner has been placed in protection will become known to the wider community. I had a case only last Wednesday of a man being beaten up because he ripped up a statement after an AVL interview with his counsel, from which there was held a false belief by others that he ripped up the statement because he had been charged with a child sex offence, when in fact he had been charged with an armed robbery.
I have taken into account the assault and its implications for the prisoner as a matter that may adversely affect his circumstances in custody for a period of time. However, as I said earlier, given the time the prisoner would otherwise be required to spend in custody, particularly having regard to the objective criminality of the offences that he has committed taking into account the relevant mitigating matters, it is not a matter that I can see as having implications for him in the longer than short term.
If it is to be categorised as extra curial punishment it certainly is at a lower level that other examples that have been discussed in cases such as R v Alpass (1993) 72 A Crim R 561 at 566-7, or R v Daetz [2003] 139 A Crim R 398, a case as my memory now of the facts reveals, where a man got a broken jaw when struck by someone who was aggrieved by the fact that the accused had assaulted a relative of his.
Of course, the Court can take into account extra curial punishment, that is, a loss or detriment imposed on an offender by persons other than the sentencing court for the purposes of punishing the offender for his offence, or at least by reason of the offender having committed the offence, as it was described in Silvano v R (2008) 184 A Crim R 593 at [29]. There is a lengthy discussion in that judgment between [26] and [33]. The weight to be given to the matter of extra curial punishment will depend on all the circumstances of the case, as I have done.
To return to the evidence of the aunt of the prisoner, including her oral evidence and her written evidence, I accept that she supports the prisoner's claims of family dysfunction, disruptions in his upbringing, aspects of his character and personality that might have been lost by reference to just the criminal history and this offending.
She provided evidence of the details of his teenage years and the explanation for some of his antisocial behaviour, reflected in his criminal history, the bad influence of his father's lifestyle and physical and emotional abuse that is claimed by her of his stepfather and his mother.
She expressed some views about the prisoner's mother that are unfavourable, although little borne out in the histories provided by the prisoner to others. In fact, as I understand it, reliance is put by the prisoner upon a testimonial provided by the mother. I accept the prisoner has had a disadvantaged upbringing in a range of ways. It may be the explanation for his knowledge of the person who recruited him. But it barely explains, or does not fully explain, the conduct of which I am concerned.
I accept that his aunt and her family will provide him with support on his release. It is fair to say that the reference she provides and the information provided by her daughter puts a human aspect to the prisoner. The aunt expressed the opinion that the prisoner was a product of his "environment and subsequent lack of parental support and guidance." This may be true and I have taken that into account, but it scarcely, as I say, explains the circumstances of this criminality. The support of his aunt and her children I accept as a matter that will provide some stability on his eventual release to parole.
In relation to the material from the family I note communications from him about his experiences in custody, his interest in his family and his aspirations for the future, which I have taken into account. I bear in mind of course that his time in custody now is really the only significant time he has ever spent in adult gaol custody. This is a matter that should be taken into account in assessing his criminal history as well.
I also take into account the material that has been tendered, setting out his interests in study and personal development. The prisoner's mother's reference, which is relied upon notwithstanding the criticism of the aunt, confirms the general history provided. The mother speaks of the fact that when the prisoner left South Australia he was not a "drug addict", although he was "an upset, emotional teenager without guidance."
She notes the prisoner's regret and remorse for his involvement in the offending, and the experience of being is prison is a salutary lesson. She said in her statement he is: "not a criminally minded person, or a bad person, or even opportunistic. It was very surprising that he committed these crimes. He is actually a very caring, kind and sweet, despite having adolescent difficulties after his father died. He is generally shy, quiet and unassuming. He has realised his wrongs…he has learnt his lesson and is regretful for what he did."
I have taken that into account as well as the references from his grandparents.

MR KEO'S CASE

If I may turn to Mr Keo's case. Mr Keo had a Community Corrections report prepared, noting his background of coming from Cambodia, and the fact that when he was 11 his father moved to Melbourne and has another family down there. The prisoner has two older sisters who live in Sydney, and one of those sisters has given evidence before this Court.
The presentence report said that the prisoner had had a good childhood and a good relationship with his parents, although he sought to suggest, that is, Mr Keo sought to suggest something different in his oral evidence. There was some conflict with his family arising out of his charging in relation to this matter, but the Community Corrections officer said his family continue to support him.
The history given to the Community Corrections officer notes the prisoner obtained his School Certificate. He undertook a course at TAFE, which he did not complete, and he worked as a courier for three years with a couple of courier companies. He was unemployed for eight months prior to his arrest in relation to these matters. He told the Community Corrections officer that he started using methylamphetamine and cocaine from the age of 18, and he used drugs regularly until his arrest.
He had some withdrawal symptoms after coming into custody but he was clean whilst in custody, with one urine analysis with a negative result. He also claimed gambling as a factor in his offending. But his sister was not aware of any problem gambling. He told the Community Corrections officer that he was "really scattered" at the time of the offending due to drug use and that he would never have become involved otherwise. I regret to say I cannot accept that explanation by him.
He expressed regret for his conduct, particularly the effect of his arrest and conviction upon his family. He had good work reports although he has restrictions on being able to work and study whilst on remand. The Community Corrections officer said his drug use appeared to impact upon his involvement in the offence and he had a desire to start afresh on his release. He required low to medium intervention from the service with particular attention to alcohol and drugs.
The prisoner's evidence concerned a lot of matters which do not appear to be in dispute. He said that he did not know that he was to be the consignee and I need not go into that matter. I accept that evidence from him, supported by his co-accused, although one could have one's suspicions about the matter on the other evidence. He agreed that he was offered $20,000 to open an ABN number. He claimed at first he did not know what it was required for and he gave details of how he had monies deposited in his bank account to assist in paying for the consignment.
He said that he did not think much about why he was getting paid the $20,000. He put his lack of interest in the matter to using drugs. It is to be borne in mind that this is not an offence committed spontaneously, or impulsively over a short period of time, consistent with a person affected by drugs, or whose judgement is clouded to the extent that they do not understand what they are doing.
This offender may have been ingesting drugs at a particular time in his involvement in this matter, but I do not accept for one moment that he was affected by drugs throughout the time of his involvement, particularly picking up the consignment and involved in transporting the consignment, taking money out of a bank account, paying for items and the like. He said that he needed money to buy a car and to help his mother with the rent.
This was sought to be categorised in submissions as a crime of need rather than of greed. One could hardly think that being involved in the importation of a substantial quantity of border controlled drugs, accepting that the prisoner did not know the precise quantity or even the full extent of the quantity or even the specific drugs that were involved, was justified by the desire to buy a car.
He said that he had met Mr Faulkner about a year before at the wedding of Peter Ream, who he had known from school, that Faulkner and he became friends, they had socialised and that he had been supplied drugs by Faulkner about which I draw no inference adverse to Faulkner. These he readily took without any questions, never querying how Mr Faulkner financed his lifestyle, and how he could afford to be so generous to him.
The fact that he said that Patino and Faulkner had jobs to justify their expenditure, scarcely explains how they could have afforded to be generous with quantities of prohibited drugs. In any event, the evidence is quite clear that Mr Faulkner did not have a job for five or six, or maybe up to eight months, before the offending of Mr Keo. Mr Keo said that Mr Faulkner gave him cocaine on two occasions, but that Mr Patino had given him, as I understand it, methylamphetamine or methamphetamine throughout their relationship on a regular basis.
He said that he tried to assist the police as best he could when he was interviewed, and he made an endeavour to tell everything that he knew. The Crown in cross-examination pointed to parts of the interview where the prisoner referred to having suspicions rather than beliefs about the conduct of Faulkner and Patino. But given that English is his second language, his youth, his lack of sophistication and his lack of education, I would not regard that a great deal turns upon Mr Keo's understanding of the meaning of specific words.
In evidence before me he said that he had been using 'ice' since he was 16 or 17, and cocaine since he was 18, and had a "significant gambling problem", but he did not tell his family about his gambling or his use of drugs. This reflects to my mind that rather than being conflicted by his conduct, he was more than happy to embrace his drug use and see it as a lifestyle with which he was comfortable.
He said that he was grateful that the police had intercepted the importation. He said his conduct was shameful and that his involvement was "awful". He said he did not want to repeat this experience again. He said in custody he had been entrusted with a number of jobs, including using particular welding equipment, and he had undertaken some courses, the certificates of which are produced and I have taken all that into account.
He had not really looked at a particular further program he could do whilst he was in custody or whilst released. He said that whilst he was in custody, however, he had become more in control of his life and closer to his family. Some further aspects of his involvement in this matter emerged in cross‑examination, although not a great deal turns upon it. I accept the matters put by the Crown because they were accepted by the prisoner.
This included some involvement in the hiring of another truck at a particular time before the truck that was used to drive the consignment, the number of times that he contacted the customs clearance organisation inquiring about the whereabouts of the call and other matters. I have taken those matters into account. He was questioned about his background, drug use and "dealing" which appears to be small time and opportunistic.
It was clear in my view that he was happy to share in the party lifestyle made available to him by Mr Patino and Mr Faulkner. As far as his need for a car was concerned it was pointed out to him, and he agreed, that he was driving his father's car, his father living in Melbourne. So much for the effect of the separation from his father one would have thought. I had evidence from his older sister who is now aged 30 or 31, the eldest child of his parents' marriage. She has two young children.
She said that the other members of the family did not have good English. She confirmed details of the prisoner's background concerning the separation of the parents, and the difficult financial circumstances of her mother, difficulties with paying rent and bills, and the fact that she was struggling financially. She said she was aware that her brother during 2011 was using drugs but she did not know what kind of drugs, and he would not talk to her about it much before he went into custody.
She said that in October/November 2011 he seemed to her like a "troubled teenager, being angry with his mother and being aggressive." She thought he was on something but she did not know what it was, but she had noticed substantial change in him since being in custody. He had expressed regret for his conduct and she said that he had told her he wanted to help his mother. She said that she had been told by her mother that he had said he was going to get her a car, as it turns out, apparently from his proceeds in the involvement in this crime.
When released from custody he will return to the family home with a much improved relationship with other members of the family and hopes to get a better education and a better job. She was cross-examined about the circumstances in which she understood he was to obtain a car. There is a letter from his mother setting out the details of his background and the circumstances of separation from her husband, his father, and the expressions of regret by the prisoner whilst in custody.
She wrote a further letter to the Court providing more details about him "not at home much", and "locked himself in his room a lot", which I approach with some circumspection. I will later consider some of the matters that were raised in the psychiatric report that was prepared in relation to this matter.
There was material presented about the timing of the plea, some delays in the delivery of the brief and negotiations, which I have taken into account. The matter was adjourned a number of times to the Local Court, on one occasion adjourned for s 91 submissions and/or direction, and/or to set a committal date. There were, bearing in mind what I know of the Patino matter, that there must have been some delays in the delivery of the brief given the circumstances in which Mr Patino made his induced statement.
It seems to me also that whilst there may have been delays in the delivery of the brief, one factor common to both Mr Faulkner and Mr Keo relevant to the circumstances in which they entered their pleas of guilty was their knowledge of the fact that Mr Patino had prepared a statement that implicated both of them. There is another feature of this matter that nobody is prepared to address. That is they both knew what they had done, as they admit by their evidence. It does not take much in the way of provision of statements or details of the Crown case against them for them to have understood, given the charge(s) brought against them in first instance and the particulars of the allegation against them, that they have admitted their guilt to and which, by their evidence, they had sufficient knowledge of, to plead guilty at an appropriate time.
I was also provided with statistics in relation to the matter from counsel for Mr Keo, setting out the range of sentences from Judicial Commission statistics between 2009 and 2014. These statistics are very general and have even more deficiencies than the deficiencies which are identified in the cases discussing the use of comparative decisions for sentencing purposes. I also note of course, what the former Chief Justice, Spigelman CJ, said in the decision of Bloomfield in 1998.
Mr Keo produced transcripts of his TAFE records and other courses that he had undertaken. The prisoner wrote a letter to the Court, which I have taken into account, expressing his regret, and other expressions of remorse, and reasons he said for his offending. He says in that letter that his eyes are "now open", and he can see "the right path".
One might have thought, with respect, that he would have been well aware of the dangers and damage caused by drugs of the type that he was involved in and attempting to possess, as it has been particularised in the charge. Although, I accept he is implicated by reason of a joint criminal enterprise and he was not going to actually possess the drugs, given his own experience with drugs.
I turn now to Dr Allnutt's report which sets out some history that is not of great controversy. There is no claimed history of mental illness, significant health problems, nor treatment for mental illness. There is reference in the history provided by the offender of the use of multiple recreation substances, at least by the age of 18, but there is also a history after the separation of his parents of mixing with the "wrong crowd". He gives no history of auditory hallucinations, panic attacks or any significant mental illness phenomena. He gives no evidence of cognitive impairment, nor any current symptoms of mood or psychotic disorder.
The most significant stress reported at the present time is his incarceration, which one would expect, and the fact that he is facing the current charge. As to his mental state at the time of the offending there is reference to a condition called "social phobia", for which to my mind, even allowing for the mother's late reference, there is no clear independent evidence and certainly no clear evidence from the prisoner, whatever 'social phobia' may actually be.
The doctor claimed a history of deterioration in his behaviour after the father left the family and spoke from the history available to him of an: "increased sense of loneliness, isolation and depression, making him more vulnerable to behavioural problems, social isolation and mental conditions such as depression due to a temperamental tendency to be socially anxious in the first place, to quote the doctor's analysis", to quote the doctor's analysis."
It is said that in this context the prisoner started manifesting juvenile delinquent behaviour, none of which appears in his criminal history I hasten to say: "and by use of substances would have been vulnerable to developing a substance use disorder both as a consequence of his social circumstances and also his depression, and because he describes the substance providing him with relief from his dysphoric and anxious feelings, likely increasing his social confidence."
The doctor said that he went on to develop a substance dependence disorder and: "became involved in a drug abusing subculture as his negative attitudes towards substances became eroded…this would have contributed to increased risk of engaging in the offending behaviour that he engaged in at the time of his arrest. Thus there was a causal change that relates to his family of origin, temperamental vulnerabilities, developmental experiences and mental disorder contributing to his offending."
I do not accept this analysis. I am prepared to accept that he began involvement in a drug abusing subculture which enabled him to meet Mr Faulkner and be tempted by the offer of $20,000. I do not believe the doctor has analysed the matter on anywhere near the complete picture, which includes the evidence of the prisoner, which is devoid of many of the characteristics that the doctor refers to, the facts as presented by the Crown, and other matters.
The doctor states there is a favourable prognosis and suggests that he would be assisted by the trial of antidepressant medication to assist in what is claimed to be his underlying anxiety disorder. He would also benefit from consultation from a psychologist, a drug and alcohol rehabilitation counsellor, and of course abstinence from prohibited drugs. I agree with that analysis. In general terms he certainly will need assistance once he is released from custody to adjust to community living, notwithstanding the strenuous attempts in submission to make good the analysis of the doctor.
When one has regard to the prisoner's reasons for his involvement in this matter, the time over which his involvement was concerned, the deliberate steps he took, I see no causal connection, if it can be called that, between the "claimed" social phobia, and his involvement in this crime. In fact, I do not see evidence of a particular social phobia in any way inhibiting the prisoner.
I am mindful of the analysis of the doctor that the taking of drugs would "disinhibit him, to give him greater social confidence", but in the context of having seen very serious examples of agoraphobia over the years, and the like, true "social phobias", verifiable, identifiable, and established if not overwhelmingly on some occasions at least on balance from independent evidence. The material to support the analysis of the doctor is very weak indeed.
The doctor in a supplementary letter makes the self evident point that the prisoner is at lower risk of reoffending if he maintains abstinence from "substances". He also would be at a lower risk of reoffending if he engaged in further treatment for his substance abuse and his anxiety disorder. I turn now to the submissions of the parties.

MR FAULKNER'S SUBMISSIONS

The oral and written submissions from Mr Faulkner's counsel acknowledged his breach of conditional liberty required me to take it into account, to take into account the time spent in custody since 4 November 2011 and submitted that the plea of guilty was at an early opportunity, prior to committal, after lengthy negotiations, Mr Faulkner not being part in any "s 91" directions.
I was taken through the s 16A(2) Crimes Act 1914 (Cth) matters to take into account the degree of contrition shown, the degree of cooperation, the deterrent effect of any sentence, the need for adequate punishment, his character antecedents, his age, his physical and mental condition, his prospects of rehabilitation and the probable effect on his family.
It must be said that nearly all of those matters are of course relevant in this matter although the effect on his family seems to be a matter of no moment. No particular member of his family claims any dependence upon him, and there is no evidence that that is so. I was taken through the various facts in relation to the matter and the role of the prisoner and it was submitted that the prisoner was not a "principal" in the commission of the offence.
He was not a principal it was submitted because he was not the "mastermind". He was not to receive a "share in the profits", but a "flat rate of payment", although I do not understand how the payments that he identified in his evidence could not be classified as "share of the profits". It was noted of course that he did not distance himself from the day to day operation as a "mastermind" might do.
The prisoner did not have considerable control over the enterprise it was submitted, he was ultimately following instructions and using funds provided by others or from the proceeds of the importation. He was actually involved it was said on a "needs to know basis", and just doing what he was told. I was reminded of the value of the plea or the admission in relation to the money and the drugs found at his home on 4 November, given the fact that a "Filipetti" type "defence" may have been raised.
Filipetti, a case arising from the Wollongong District Court from 30 odd years ago involving the issue of possession of drugs, reflected on the difficultly establishing beyond reasonable doubt "possession" when a particular area where the drugs was found was one where a number of people had access. In this matter Mr Faulkner's fingerprints were found on relevant items.
I accept of course, as I said earlier, that the value of the plea for judging and facilitation of the course of justice is very high in relation to the matters the subject of the schedule, and the subject of count 1 in the indictment, given the reliance of the Crown to prove those matters upon Mr Patino and some circumstantial evidence.
It was also important to note it was said, and I accept, that admission of commercial quantities of the drugs in relation to charges where the drugs were not found is an important matter given no measure of the weight of the drugs or their purity. With regard to the cooperation with authorities, noting all the evidence, it was submitted ultimately that the accused should receive a discount of up to 45%.
With regard to specific deterrence it was noted that grief and anger figure prominently in his criminal history. They had not been addressed at the time of the offending. Many of the offences were committed when he was young. There was no prior history of supply or trafficking in drugs. All of those matters I take into account.
The problem of course with dealing with one aspect of that submission is that by the time the prisoner was arrested and charged in relation to the importation in late October, that is, on 4 November, the prisoner was already an unconvicted, uncharged supplier in significant quantities of drugs and a dealer in proceeds of crime relating to the supply of those drugs on his own admission. So viewing his criminal history as it was officially known at that time, also requires consideration of what he admits to be criminal conduct for which he had not been previously charged.
His troubled upbringing was the subject of comment in written submissions and oral submissions. It was noted that he candidly stated he was attracted to the lifestyle and the prestige and related matters. Reference was made in the material in the written submissions to the psychological report, lack of anger management, the death of his father, family relationship issues, the loss of a promising sporting career as it was described, and the stress from personal relationships all contributing to his psychological makeup. I have taken that into account.
It was submitted that his evidence was candid. His current circumstances in custody are required to be taken into account as well as his long term plans. The issue of extra curial punishment was raised and I have already referred to that. The circumstances of the assault, and his non-association classification were matters I am required to take into account.
It is suggested that a significant discount should be given for the time that he will serve his sentence in protection. The problem with that submission is the cases cited, such as Cartwright, are cases where protection is directly related to the circumstances of the cooperation, which is not the case here. There was some suggestion made in relation to the assessment of Mr Patino's criminality that he, Patino, had independent connections with the prisoner's recruiter, but it was conceded in submission ultimately that Mr Faulkner is more culpable than Mr Patino and that is self evidently true. It was submitted that regard should be had to the fact that he will return to his family and the like.

MR KEO'S SUBMISSIONS

Detailed written submissions were also provided by Mr Keo's counsel. In oral submissions it was submitted that his decision making was affected by drug use, and I have already dealt with that matter. I see though evidence that that was the case but obviously not all the time. I accept that he was a user of drugs, but I also note the various actions he took were undertaken in circumstances where he could not have been affected by drugs.
In relation to Dr Allnutt's opinion it was submitted that his analysis should lead the Court to conclude that there was a relationship between a mental disorder and the offending. I cannot find that relationship established on balance. It is submitted that the disruptions to the offender's life contributed to his drug use and his drug use led to his association with the prisoner. That I do accept. But whether it is anything to do with social isolation or social phobia is something that is not established on the evidence notwithstanding Dr Allnutt's opinion.
Dr Allnutt's opinion is based upon self serving statements and incomplete history as I earlier made clear. Those matters identified by McClellan J in the decision of De La Rosa, to which I will refer shortly, particularly at [177] of that judgment, did not arise in this particular matter. In any event there is nothing about the current incarceration of the prisoner that suggests that he requires particular medical treatment.
In any event, some of the history provided to Dr Allnutt does not sit squarely with the history the prisoner has given, for example, to the Community Corrections officers. The reason he got involved in this offence, assuming that it arose out of his enjoyment in using drugs, was that he was lured into providing assistance of the promise of a substantial sum of money far greater than the money that might have been earned by Mr Ream.
One of the matters that I need to deal with that arose out of the submissions concerning Dr Allnutt was the observation made by counsel that the doctor may not have had sufficient time to get a sufficient history, I had pointed out the insufficiencies of the information that he reveals in his report. If Dr Allnutt felt that he did not have enough time to get a sufficient history to form an opinion then he should not have written a report.
The facts of the matter are that he wrote a report and he expressed opinions. I can assume by that that he felt that he had sufficient history. I asked counsel to specifically assist me by pointing out what parts of Dr Allnutt's report reflected upon the relationship of Mr Keo with Mr Faulkner or Mr Patino. Ultimately, and I mean this not disrespectfully of counsel, she could not assist me in that regard.
The only parts in the report that deal with this matter are at the bottom of page 3 of the report and that material just speaks of self serving statements made by the prisoner about being lonely. It is scarcely a basis for claiming a mental disability causally connected to the offending of this type. As for his isolation as a result of his separation from his father I accept that his father had gone to Melbourne and started up with another person and had a second family, but he was not so separated from his father that he could not drive his car around.
There are other criticisms that could be made of the doctor's report but again, many of the things upon which he bases his analyses are based upon things told to him by the prisoner, not based upon any sort of independent history. It is well and good to get a history from the offender as the doctor has, but it is a major failing in such a report not to examine that history more closely in the context of what are going to be the accepted facts of the matters for which the prisoner is required to appear at Court.
The written submissions of course were very detailed, as they are required to be. This is a very complex area of sentencing and this case is a very difficult and complex case. I was reminded of the value to be given to the plea of guilty, bearing in mind that it was submitted that the plea was entered at the first reasonable opportunity. The assessment of the objective seriousness of the offending, weight is not the sole determinant as I understand from the decision of Wong, and the Crown points that out too, but it is still a relevant matter.
I need to assess the role of the offender and the like in accordance with Olbrich principles. It was submitted that there was no evidence that the offender knew the extent of what he was getting into, but his involvement was "very limited". He had no decision making power but acted at the direction of others, which I accept, no attempt to disguise his identity, which I have already pointed out, and did not have a full understanding of the quantity or type of drugs to be imported, which I accept.
However, he did understand that there were to be a commercial quantity of drugs imported, so far as Mr Faulkner was concerned from his knowledge of previous importations. He must have well known the significance of the last importation, particularly given the size of the grapple bucket. It is submitted that the prisoner, Mr Keo, is at the lowest end of the scale of objective seriousness.
I must say I cannot accept that submission, particularly in light of the findings that have been summarised in relation to Mr Ream. But he is at a substantially lower level than Mr Patino and Mr Faulkner. I accept this prisoner never saw the drugs, he never attempted to handle the drugs, he "simply paid the fees". His counsel asserted he did that under direction. He did significant things, as a purportedly "innocent cypher", to enable Mr Faulkner to gain access to the consignment to get access to the drugs.
I accept, as it was submitted, that it was important to note the prisoner was 19 years of age at the time, which is very young. Mr Faulkner of course was not a great deal older. I accept that he had a drug usage problem although I do not accept, as I said, the analysis of the disorder identified by Dr Allnutt. Various points were made that reflected upon the more limited role that he had, many of which are self evidently reflected in the facts.
It was submitted, particularly in relation to the nature and circumstances of the offences, that it is to be considered under s 16A(2) of the Act, that the offender's moral culpability and the weight to be given to general deterrence were lessened, and that retribution and denunciation were diminished, it was submitted, by reason of his mental condition. This I do not accept.
There was no evidence that he was unable to make any reasoned judgements because of any matter concerning his mental health. Although he may have been vulnerable to the entreaties of Mr Faulkner, this was more out of his greed, or perhaps his wish to continue using drugs with Mr Faulkner or Mr Patino, than any matter that is identified in submission or by Dr Allnutt.
He had willingly engaged in a relationship with Patino and Faulkner to his benefit, to the point where they were able to provide him with drugs for an extended period of time for nothing. He could not be bothered asking them any questions about how they could afford so to do. It is noted that there was no specific loss or damage resulting from his actions, although at great cost to the community in investigating the matter, but this would have occurred whether Mr Keo was involved or not.
It was submitted that the accused had demonstrated contrition, which I am prepared to accept. I also accept in support of that submission his early cooperation with the authorities by his admissions against interest in November. It was submitted that he should receive a discount for facilitating the course of justice by reason of his interview and his early plea, but also his offer to assist at a later time to provide material to the prosecution.
The assessment of his later offer of cooperation was that it was "low". He was assessed as being frank and honest but the information he provided did not go any further than his first interview. He was very much "at the bottom of the food chain", and he provided information that was ultimately of no value in any other prosecution. I accept that the prisoner's disclosure of information inculpating himself was very timely, but that is a matter that to my mind goes to the assessment of the discount for facilitating the course of justice.
His actual offer of cooperation was considerably delayed and ultimately was of not practical experience. I am required, as it submitted by his counsel, to take into account the deterrent effect of any sentence to be imposed and the need for him to be adequately punished, but I also need to reflect upon his role in the proceedings and the favourable subjective considerations, which I do.
I do not propose to analyse what further was written at some length about the matters discussed in the decision of De La Rosa [2010] NSWCCA 194, at [177], or the High Court judgment in Muldrock, particularly at [53]. The emphasis was placed upon his prior good character in the absence of prior criminal convictions, and the fact that his involvement in this offending was out of character, which I accept.
It was submitted his prospects of rehabilitation were excellent and I am prepared to accept that is so. Reliance was made upon some of the assessment made in the guideline judgment of Henry by Wood J at [273] of that judgment. Some submissions were made about the delay occasioned by the service of the brief and the negotiations leading to the plea being entered, thus the delay in him being committed for sentence. I have taken that into account. I have factored that into my assessment of the facilitation of the course of justice.
So far as there has been considerable delay in this matter finally coming to conclusion, however, in neither prisoner's case could I concern myself with or identify a relevant period of delay occasioned by forces beyond the control of the prisoners. That would lead to favourable consideration of the matters that were discussed by the Court of Criminal Appeal in the decision of Todd, and by the High Court in the decision of Mill. There is insufficient evidence to show that any particular delay in relation to the entering of a plea of guilty was solely attributable to forces beyond the control of the prisoner.
As to the delay since the matter came into the Court I have already dealt with that and the tortured history of the proceedings today. I appreciate of course delays left both prisoners in a state of uncertainty and I have taken that into account. Delay and thus lengthy periods in remand have denied the prisoners access to particular programs they may have been able to have whilst in the general gaol population. I have taken that into account in their favour.
It was submitted that I should fix a non-parole period in the exercise of the discretion that has been discussed by the High Court in Hili and Jones and other cases had closer to 50% of the head sentence. Also, matters of parity were the subject of specific submission and I have taken that into account.

PROSECUTION'S SUBMISSIONS

The Crown provided extensive written submissions as the Commonwealth Crown always does, and went through the statutory scheme and the complex statutory matters to be taken into account. So far as the oral submissions of the Crown with regard to Mr Faulkner were concerned, and the written submissions that were filed on his behalf, it was submitted that the prisoner, Mr Faulkner was involved in the day to day operations concerning the importations. He had admitted his in his evidence in court.
He had considerable discretion in a managerial role. He organised others and recruited people. He had power to distribute drugs and receive money for the drugs and thus controlling the delivery of the items and organising for their handling by other people, and himself; he had a very important role in the importation.
This is clearly the case and I do not for a moment, nor does the Crown, suggest saying that the prisoner financed these importations, or "organised". But he certainly played a very important part in the organisation of the receipt of the importations, the distribution of the drugs to others that he knew would be further distributing them to other suppliers to the community, and of course being entrusted not only with those drugs but very substantial sums of cash that he had the responsibility of passing onto others on direction.
The Crown, so far as his cooperation was concerned, referred to its lack of timeliness and the assessment of it to be undertaken in the context of his actions in wiping the Blackberry.
So far as Mr Keo was concerned the Crown submitted that he was a willing participant in the acts that he had admitted. It was submitted initially that he, Mr Keo, was at a "similar level to Mr Ream", but as I have already discussed with the parties, it is clear when one looks at the assessment of the evidence before Whitford DCJ, that Mr Keo's involvement, was for a longer period. It involved more deliberate conduct on his part and greater financial remuneration.
The Crown took me in its written submissions to the structure of s 16A, and otherwise relevant parts of Pt 1B Commonwealth Crimes Act. I was advised to have regard to R v Nguyen; R v Pham [2010] NSWCCA 238 at [72] in particular, in the judgment of Johnson J, set out in detail in para 11 of the Crown's submissions in relation to Mr Faulkner.
A number of submissions were made in written submissions specifically concerning Mr Faulkner that did no affect Mr Keo, including of course relevant matters to the nature and detail of the criminality with which I am concerned. In respect of the consideration of the matters on the Schedule, I was taken to the decision of Spigelman CJ in the guideline judgment from 2002, and the observations about that in the recent judgment of Bathurst CJ in Abbas & Ors [2013] NSWCCA 115. It is to be borne in mind the significance of the matters on the Schedule pursuant to s 16BA in relation to Mr Faulkner.
As was said in the guideline judgment of Spigelman CJ, the fact that there are matters to be taken into account, on what was there a "Form 1", means the greater weight should be given to the need for personal deterrence and the communities' entitlement to extract retribution, "The entire point of the process", in the appropriate cases was to impose a longer sentence than would otherwise have been imposed for the principal offence standing alone. It was wrong to suggest the additional penalty would be small; sometimes it will be substantial.
The sentencing process of course is only concerned with the principal offence, not to determine appropriate sentences for the matters listed on a Schedule or a Form, or to determine an overall sentence that would be appropriate for all the offences, and then to apply a discount giving appropriate weight to the matters referred to elsewhere in the judgment. However, the Court said the deterrence and retribution are entitled to be given greater weight than they otherwise may be given when sentencing for the primary offence.

CONSIDERATION OF OUTSTANDING ISSUES

In relation to the Crown's submissions I note the submission that Mr Faulkner, played a crucial role. I am not sure that the use of the word "principal" is of any assistance however. I note what the High Court said in Olbrich v R, [1999] 199 CLR 270, that categorising a person by a label should not disguise what the person actually did. I have already set out what the prisoner actually did and that summary of the evidence shows the important role the prisoner played in a managerial sense to manage the receipt and then the distribution of the drugs, and payment of them on various occasions.
The prisoner obviously played a pivotal role in the organisation of people, the organisation of delivery and the like. So far as his possession of the cash and his possession of the 5 kilograms of methamphetamine, of course he is responsible for that. What he proposed to do with them, whether he proposed to profit from them is a matter of some speculation on my part and thus is not a matter that I could be satisfied of beyond reasonable doubt.
Certainly his practice before had been to use cash that he had obtained from importations to provide funds for him to assist him in paying for subsequent criminal activity. Whether there were going to be any more importations or not of course is not a matter I can resolve. He obviously had been recruited to do what he did and he was a key person in the distribution of the drugs.
Relying upon the evidence provided by Mr Patino, I accept that the previous importations were not as great as the one involved in the attempted possession offence, but each matter involved multiple kilos of border controlled drugs. Clearly, in the context of the Crown's written submissions about Mr Keo's role, it was less than Faulkner to a considerable degree, I have already been through the detail of that and I have noted everything the Crown has said.
I accept the prisoner Keo may not have known the full extent of the importation but he must have understood that there was a very significant importation of border controlled drugs. I bear in mind that the commercial quantity of cocaine, I am informed, is 2 kilograms, and methamphetamine is 0.75 kilograms. The object that was imported containing the relevant border controlled drugs, the subject of the count concerning Mr Keo and Mr Faulkner jointly, was a very sizeable object.
In my view it is significant as far as the prisoner being categorised as a hireling that once the package was delivered he had no other role. Clearly he committed the offence for financial gain for the not insignificant promised sum of $20,000. Whether he would have actually been paid that or not of course is another matter. He may have also been doing it for the benefit of the drugs he would receive.
The issue of cooperation I have earlier mentioned was raised by both offenders. In my view the cooperation that was provided by both offenders can only be categorised as past cooperation of no great value to the prosecuting authorities, less so in the case of Mr Keo given his disclosures already in the course of the first interview.
I note what the Crown has identified in its written submissions and its reference to cases that are footnoted, such as R v El Hani [2004] NSWCCA 162, R v Sukkar (2006) 172 A Crim R 153, that is an appeal from a decision of mine I point out so I am well familiar with that decision, R v SZ [2007] 168 A Crim R 249, particularly in the judgments of Howie J at [3], and at [53], as per Button J, and also the judgment of C v R [2013] NSWCCA 81, particularly at [35] - [41], which deals with the relevance of the discount for cooperation to the hardships of custody arising from that cooperation. In the case of both Mr Faulkner and Mr Keo, I accept their offers of assistance reflect some evidence of contrition on their part.
In relation to Mr Keo, there is not a great need for personal or specific deterrence, although that is a significant element of punishment that must be imposed upon Mr Faulkner, notwithstanding his favourable presentation in this Court and I believe some progress, since he came into custody. I bear in mind in Mr Faulkner's case in the context of specific deterrence his breach of conditional liberty.
Obviously, as I said earlier, the matters with which I am concerned are far more serious than the matters that he previously had been involved in. I have noted the youth of both men. This is extremely distressing for this Court to have to deal with. Mr Keo of course was younger than Mr Faulkner and less deliberately involved.
Mr Faulkner is not entitled to any particular leniency having regard to his previous offending, although his previous offending is not an aggravating factor.
In Mr Faulkner's case there is no suggestion or aberration or isolated offending in this matter. There is no serious issue of drug addiction in relation to Mr Faulkner, although he may have been a regular drug user. The facts of the matter are that Mr Faulkner was involved in offending that involved, or required, a clear head, as to some extent was the offending of Mr Keo, and most of the observations of Wood J in Henry are of little moment here.
In relation to Mr Faulkner the sentences to be imposed on him would have the effect of ultimately deterring him from committing like offences or committing any crime again, one would have thought. The issue of Mr Faulkner's rehabilitation is clearly something to be considered, but it is a matter that will only practically arise in the distant future. Problematic gambling, if it be a relevant matter to both prisoners, is caught by the observations of Latham J in Le v R [2006] NSWCCA 136, [32] in particular.
The case of Le and related cases are very much concerned with people who are lured into committing crimes, usually acting as couriers, because of gambling debts that they have acquired. I have taken into account of course the Crown's submissions in relation to the setting of the sentence, the fixing of non-parole periods, the decision of Hili v R [2010] HCA 45, and the cases otherwise referred to, Bernier, Stitt and lastly Behar, in which I had the honour of appearing in many years ago, but which is now largely otiose to the current exercise.
I turn to the issue of cooperation again. It occupied a disproportionate amount of time in these proceedings, or certainly a substantial period of time. I have had regard to all the evidence of the cooperation explained by the prisoners and reflected in the material produced by the Crown.
The lack of timeliness of Mr Faulkner's cooperation is a critical matter to take into account. The first offer of cooperation coming from this accused, bearing in mind he did not cooperate in any way with the authorities on his arrest, occurred some time in April 2013, by which stage Patino had pleaded guilty in the Local Court and was awaiting sentence in the District Court having made an induced statement which no doubt Mr Faulkner was aware of, or at least knew the import of at that time.
I have received the confidential information about Mr Faulkner's cooperation and the details of what he did, but ultimately it is assessed at the low to medium value. The prisoner's details of his recruitment and the like fills gaps in the understanding of the authorities, but little can be done about it and certainly nobody has been charged with related offences. Much has been lost by reason of the delay of the prisoner in providing assistance.
Notwithstanding the insistence of Mr Faulkner's counsel, the facts are that she was unable to point to any future assistance that I can identify warranting a discount. Certainly nobody at this stage has been prosecuted on his cooperation and Mr Faulkner has provided no evidence in any trial that has thus far been completed. Thus, in the assessment of Mr Faulkner's assistance it is a matter of past assistance of limited worth.
It is a matter that requires the consideration of some recognition. I accept that there is a genuine effort on the part of the prisoner to cooperate. But the submission that either in the total discount the prisoner should receive, or the discreet discount that the prisoner should receive, should be anything like 45% is in on my view on all the evidence and on the authorities that I have been referred to, unrealistic.
With regard to Mr Keo, his cooperation with the authorities did commence when he was arrested, but I have taken that into account at that point, not because he offered to give evidence against his co-accused, but as evidence of his facilitation of the course of justice and a matter reflecting upon his contrition. His offer to assist the authorities in the prosecution of others was more timely than Mr Faulkner. But clearly, by reason of his role and what he would have known, he can provide no further material other than what he had previously advised the authorities. His first offer of assistance in November 2012 and a later officer of assistance have led to the conclusion that there is nothing of value within it. There is no issue in relation to Mr Keo of assessment for future assistance. Ultimately, in combination with the discount of 25% for the facilitation of the course of justice of the prisoner by his plea and his admissions of guilt, I am prepared to give Mr Keo a discount combined of 27.5%.
With regard to Mr Faulkner, I have concluded that the assessment of the cooperation should be different for the particular counts that I am considering for reasons I will explain in a moment.
I was also, I must say, referred to a number of comparative cases by the Crown in respect of Mr Keo and Mr Faulkner. One or two of the cases were common to both men, others were said to be particular to their circumstances. I have taken them into account but they have their limitations as I have already explained.
In another respect I have also had regard to the decision of Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194 [2007], [253], and also at [263], and the schedule of cases attached to that judgment. Notwithstanding some prevarication in the Crown's submissions that it is regularly the case in this State that specific discounts for facilitating the course of justice are provided at [263] of De La Rosa it is made clear that that appeal proceeded on an assumption that the appellant was entitled to a particular discount.
In fixing the appropriate sentence for each offender ultimately, having taken into account all relevant objective and subjective features, aggravating and mitigating factors into account, the basis of sentencing in respect of which there are common counts between the co-offenders requires an identification of where the culpability of a particular offender stands in relation to another offender, or other offenders.
I have already commented upon the comparative roles of Mr Faulkner, Mr Patino and Mr Keo, having had the opportunity of being involved in sentencing each of them, noting of course the fact that each of them face, or were to face sentence in different objective factual contexts. Although each of them has at least one common act of criminality, that is, the criminality reflected in count 2 in the indictment relating to Mr Faulkner, Mr Faulkner of course faces an additional charge and additional matters to be taken into account.
Identifying their respective roles between each other is not a matter of great difficulty. As I have already made clear Mr Faulkner was clearly the most culpable in relation to the common charge, with Mr Patino sentenced as a principal assistant in the background or context of having direct connection with a number of importations for which he was not specifically sentenced but which were taken into account as providing a context for his offending.
In that context the matter for which he was to be sentenced was not an uncharacteristic or aberrative event. He was sentenced in the context of having been involved with Mr Faulkner for an extended period of months, assisting with the unpacking of prior importations and undertaking a trip to Hong Kong and Spain to deliver a very substantial sum of money in laundered cash. The sentence imposed upon him had a starting point of 17 years and nine months. I took into account this background, or context, when I arrived at that starting point, taking into account all other matters.
It must be understood he was not sentenced in respect of one count on the basis of one-off offending. It must be said of course that it very fortunate that he received the benefit of the pleadings settled upon by the Commonwealth Director of Public Prosecutions or his advisors. Mr Faulkner was not as fortunate as Mr Patino in his negotiations, but then again he was obviously more dilatory in coming forward to offer his cooperation and expose all that he knew about the matters in which he was involved.
To some extent Mr Patino was the beneficiary of the timeliness of his offer of cooperation in many ways. The context of the criminality of Mr Faulkner and Mr Patino provides very clear bases for identifying the relationship and the comparability of the respective moral culpability and objective criminality of these two people. Their culpability provides also an opportunity for assessing the objective criminality and/or the moral culpability to some extent of Mr Keo.
The starting point of the sentence imposed upon Mr Patino is of course a relevant matter. As I pointed out by reference to other authorities, there are many different matters to be taken into account in sentencing, but clearly Mr Faulkner's greater significance in the enterprise and slightly less favourable subjective circumstances, he being slightly older with a lengthier criminal history and the like, requires a starting point for the sentence to be imposed upon him for the common count with Mr Patino to be greater than that for Mr Patino.
It is also the case that the admitted guilt of Mr Faulkner to prior criminality of greater significance than the self-admitted prior criminality relating to this enterprise by Mr Patino, is a relevant matter in assessing the last offence in time. The sentence for the last offence in time on the indictment, that is, count 2, requires consideration, as it did for Mr Patino, that the offence occurred as part of a relatively lengthy course of criminal conduct of considerable significance.
Mr Faulkner committed some of the offences on the Schedule at about that time. That is, the proceeds of crime offence and the possession of the 5 kilograms of border controlled drugs at the time, or about the time he committed count 2. Of course, as I say, those matters are taken into account on the schedule. Thus, all matters taken into account, the starting point for the sentence to be imposed upon Mr Faulkner for count 2 is 22 years imprisonment.
In relation to that sentence I propose to afford the prisoner a combined discount for cooperation in the past and for facilitation of the course of justice of 25%. This leaves on my calculation a sentence of 16 years and six months to date from 4 November 2011. In his case the discount for facilitation of the course of justice for this count should be less than that for the other count which includes the matters on the schedule. I have heard the Crown concede that the pleas of guilty in relation to both counts were given at the first reasonable opportunity; that was the submission of counsel for Mr Faulkner.
I have taken those submissions into account, but I have also taken into account the chronology and other matters raised from the bar table about delays in getting the brief, and other matters. This is well and good, but in the context of assessing the facilitation of justice, as I said earlier, Mr Faulkner was caught "cold", as the colloquial expression goes. He was caught with his hands in the till, and I cannot see how any delay in service of statements, which itself is not very well particularised, would warrant a delay of 18 months in relation to pleading guilty to that particular charge. The only particular that the prisoner needed to know was the precise quality of the border controlled drugs that he attempted to possess what from his experience from the many months before would have been known to him to be, and his legal advisors, a commercial quantity.
He knew in October/November that he was expecting kilograms of relevant drugs with that importation, well in excess of the minimum commercial quantity for methamphetamine and cocaine. He knew that by reason of his previous experience of importations and what would have been self evidence from the size of the container of the border controlled drugs. For that reason facilitation of the course of justice in relation to the charge for which he was self evidently guilty, is diminished to some extent.
Even though the Crown made the concession to which I earlier referred, it does not necessarily follow in the context of the general principles such as those discussed in Thomson & Houlton that I am obliged to fix a discount of 25% or any particular fixed percentage. The discount I have given may in fact be seen to be somewhat generous. However, in all the circumstances I believe it to be fair, particularly in the expectation by the prisoner from the concession made by the Crown. Thus the discount is 20% for facilitating the course of justice and 5% for past cooperation.
With regard to the first count on the indictment however, and most of the matters on the Schedule, not including the offences arising from what was found in the prisoner's residence after his arrest, there was a very high level of facilitation of the course of justice by the plea entered and taking matters in account on the Schedule given the salience of matters on a Schedule in the sentencing process.
The Crown, to prove these matters, had to rely upon the circumstantial evidence available and the evidence of Mr Patino, which if called at trial would have been the subject of significant attack and warnings as to its reliability, given the fact that he had bargained for the indulgence given to him by the Crown through his induced statement. Thus, in relation to count 1 I propose to give the prisoner a combined discount of 30%.
In practical terms however, given that the sentence in relation to count 1 must be greater than the sentence in relation to count 2 and will be partially accumulative, the sentence I impose has no practical impact upon the ultimate release date of the prisoner. In the partial accumulation of course I have had regard to the principles set out in the High Court judgment of Pearce v R [1998] 195 CLR 610, at [45] in particular.
In respect of count 1, taking into account the matters on the Schedule, the starting point of the sentence is 28 years imprisonment. With the discount the actual sentence to be imposed is 19 years and six months, rounding down the sentence, commencing seven years into the sentence for count 2. Thus, the total sentence to be imposed upon the prisoner as I calculate it is 26 years and six months, with an effective non-parole period of 18 years imprisonment. The non-parole period in relation to the second sentence will thus be fixed at 11 years.
In fixing these sentences, as I have said, I have had regard to the analysis of McClellan CJ at CL in De La Rosa and the comparative cases. I found I must say in McClellan's analysis some difficulties because many of the features he identifies in what he describes as group 2 offences and group 3 offences may be said to be relevant to Mr Faulkner, but it does not appear to me that his analysis or his grouping of offending covers the field in any event. It certainly does not specifically deal with the particular situation that I have here.
So far as the comparative cases are concerned I have already mentioned the limitations that might be taken from comparative cases discussed in Pham and other cases. With regard to Mr Keo the sentencing of him again is concerned in a not insignificant way in establishing an appropriate relativity between he and other offenders, giving due weight to variations in role, varying subjective circumstances and the like.
As with Mr Faulkner, this aspect of the sentencing exercise, given that other offenders have already been sentenced, and I am sentencing Mr Faulkner at the same time as Mr Keo, reflects the Aristotelian principle of equality to which Rothman J referred to in the 2010 judgment of Jimmy which examined various aspects of the concept of parity or disparity of sentencing. In summary, to achieve equal justice, alike must be treated alike and the unalike must be treated unalike to the extent of their unlikeness.
Patino and Faulkner are significantly more culpable objectively and substantially, or significantly less favourably viewed so far as their subjective cases is concerned, particularly considering the common count that they shared in the context of their previous, then uncharged conduct. Mr Keo does not have that burden. I have also been given details in relation to the sentencing of Mr Ream who was sentenced by Whitford DCJ, as I said earlier, to six years imprisonment with a non-parole period of three years after pleading not guilty.
He did not have the benefit of any discounts. But then again, on the analysis of Whitford DCJ from the evidence of that trial, comparing it to the facts concerning Mr Keo, it is quite clear that Mr Keo was more objectively inculpated that Mr Ream. I have taken into account all that has been put by counsel for Mr Keo. I have already made comments about that in the context of the information provided by the Crown today.
So far as Mr Keo is concerned I have taken into account his contrition. I have also I hasten to say taken into account what counsel for Mr Faulkner said about Mr Ream's sentencing, although it hardly has any connection with this prisoner directly. Certainly, anything said adversely about Mr Faulkner by Mr Ream I do not take into account. The Crown in submissions in this matter, as I said, sought to see initially the culpability of Mr Ream and Mr Keo as equal; I have already dealt with that matter in earlier discussion.
Mr Ream's involvement in this matter was assessed by Whitford DCJ to be at the lowest level. It was fortuitous in some respects. It was relatively spontaneous with little or no forethought, with little or no financial advantage, either promised or given. There are significant differences between he and Mr Keo. Thus, in relation to this prisoner, the starting point of any term of imprisonment to be imposed on his should be nine years imprisonment.
With his past cooperation, assessed at just 2.5%, and given its almost non-existent value on top of his earlier interview, which was essentially self-inculpatory and provides no assistance to the authorities in prosecuting other people, but with a discount of 25% for the facilitation of the course of justice I afford him a discount of 27.5%. Thus, on my calculation, the total sentence to be imposed upon him is six years and six months.
Having regard to his youth, his prospects of rehabilitation, his past abstinence from antisocial conduct, and his clear record, I am of the view, given his time in custody is his first time in custody, he needs an extended period of supervision to adjust to community living. I fix a non-parole period in his case of three years and three months. All these sentences will date from the period of time he came into custody, on 4 November 2011. I must say in relation to Mr Faulkner, I have favourably considered the fixing of the non-parole period for him in the context of the general principles that apply from the 1989 High Court decision of Bugmy and the 1974 decision of Power.
Of course, in his case, given the extensive character of the sentence matters relating to adjustment to community living and the like have less salience given the fact that, by virtue of the lengthy sentence I impose and given the proportional non-parole period I will fix, he will have a period of parole supervision that will far exceed the period of time that he actually will be subject to parole supervision in the usual course of events. Certainly the relationship of a non-parole period to the total sentence in the case of Mr Keo is for the reasons I have advanced and are more favourably viewed than it is in relation to Mr Faulkner.

CONCLUSION

Would you stand up please Mr Keo. In relation to the matter to which you pleaded guilty you are convicted and you are sentenced in accordance with the Commonwealth provisions identified in the Crown's submissions to a term of six years and six months imprisonment. That sentence is to commence on 4 November 2011. On my calculation it expires on 3 May 2019.
In relation to that sentence I fix a non-parole period of three years and three months to commence on 4 November 2011, and to expire on 3 February 2015, on which date, subject to s 19AL Crimes Act 1914 (Cth), you are to be released on parole. If you commit any offences whilst on parole or fail to comply with the conditions of parole, your parole will be revoked by the New South Wales Parole Authority. Thank you, just take a seat.
Stand up please Mr Faulkner. In relation to count 2 you are convicted. You are sentenced to 16 years and six months imprisonment. Your sentence is to commence on 4 November 2011, and on my calculation expires on 3 May 2028. In respect of count 1 you are convicted. In sentencing you I take into account the matters on the s 16BA Crimes Act 1914 Schedule. You are sentenced in respect of count 1 to 19 years and six months imprisonment. That sentence is to commence on 4 November 2018 and that is, on my calculation, seven years into the first sentence. It will expire on 3 May 2038. In respect of that sentence I fix a non-parole period of 11 years to commence on 4 November 2018, and to expire on 3 November 2029. On that date, subject to s 19Al Commonwealth Crimes Act as it is currently enacted, you to be released on parole. If you commit offences whilst on parole your parole will be revoked. You will subject to direction and supervision by the New South Wales Parole Authority. You can take a seat, thanks very much.
Madam Crown, are there any matters from you?
JAMSHIDI: No, your Honour.
HIS HONOUR: Any matters from you Ms Phelps?
PHELPS: No, your Honour.
HIS HONOUR: Any matters from you Ms Ghabrial?
GHABRIAL: No, your Honour.

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Judgment (13 paragraphs)

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