R v Mackenzie Dingwall

District Court of NSW|2022-02-10

a (the Crown) Mackenzie Dingwall (the Offender) Representation: Counsel: Ms S Short (the Crown) Mr M Thangaraj SC with Ms C Nguyen (the Offender)

Solicitors: Commonwealth Director of Public Prosecutions (the Crown) Mardini Defence Lawyers (the Offender) File Number(s): 2020/00311245

Judgment

Mackenzie Dingwall (the offender) has pleaded guilty to one charge of attempting to possess a marketable quantity of border controlled drugs (ketamine) contrary to ss 11.1 and 307.6 of the Criminal Code Act 1995 (Cth) (the 1995 Act). This is an offence which carries a maximum penalty of 25 years imprisonment or 5,000 penalty units or both.

Nature and Circumstances of the Offence - s 16A(2)(a) of the 1914 Act

A critical consideration for the Court is to assess the offender's role in the nature and circumstances of the offence. In El Jamal v R [2021] NSWCCA 105, Payne JA at [29]-[30] held that whilst a particular circumstance may be relevant to both an importation and possession offence, what must ultimately be kept in mind is that the offender can only be sentenced for attempting to possess the drugs. In El-Ghourani v R [2009] NSWCCA 140 Spigelman CJ (with whom James J and Simpson J (as her Honour then was) agreed) said: "[33] ... the act of possession can be attended by a wide range of moral culpability. The circumstances in which a person charged with a possession offence came into possession of the offending matter, and what it was that the person intended to do with that matter, can all be relevant to determining the degree of moral culpability attached to the act of the possession itself."
The quantity of the drug in question was 258 times the threshold for marketable quantity of ketamine. The offender's admissions indicate that he had actual knowledge that prohibited drugs were involved however he knew neither the type nor quantity of drug involved. He did however know that he was to receive a sizeable payment for his work. Drug weight is not an automatic principal factor on sentence especially in cases where the offender was ignorant of the amount imported: cf Wong v The Queen [2001] HCA 64; 207 CLR 584; 185 ALR 233; 76 ALJR 79 at [68]-[70]. It is accepted that the offender's role and level of participation in the criminal enterprise are more important than the mere quantity of drugs, subject to the recognition that the gradation of seriousness is reflected in the increase in statutory maximum penalties as the quantity of drug increases: cf R v MacDonnell (2002) 128 A Crim R 44. Specifically the quantity of the drug remains material, given the potential size of the profit and the harm inflicted are likely to be proportional to the weight of the drug: cf R v Stanbouli [2003] NSWCCA 335; (2003) 141 A Crim R 531 at [102].
The offender's task was to collect and transport the drug on instructions. He was involved in communications including with a mobile phone user on 29 October 2020 regarding the delivery of the consignment and on the Signal app regarding avoiding possible detection. The identity of the phone user was not apparent. The offender also had conversations with the building manager on 29 and 30 October 2020 regarding the delivery and pick up. His iPhone showed conversations from 1 August 2020 to 14 October 2020 relating to drug milieu and drug delivery. He searched on his phone for delivery details 5 times on 28 October 2020. Whilst his actions were for financial reward, this was a fixed amount not based on proceeds from the drug sale.
The Crown pointed to evidence it submitted supported a degree of planning on the offender's part. One feature of this was said to be the use of "an encrypted communication app which deletes messages after 24 hours "indicative of a degree of subterfuge to avoid detection by authorities." There is nothing in the agreed facts that supports the nature of the Signal messaging service as being encrypted and nothing to indicate the deletion of messages. Indeed there is evidence of messages being retrieved that plainly were not deleted.
I accept that the consignment was addressed to a false name at the offender's former business address which the offender later sought to change. It is not apparent who was responsible for the false name. In any event, the change in address may well have arisen following the offender's departure from the consignment premises consequent to the collapse of his business.
The fact that his initial business address was used hardly speaks of sophistication. There is nothing in the agreed facts as to where the proposed new consignment address was. The fact that he spoke to the building manager about collection after he was unable to change the consignment address also does not speak of sophistication. It is accepted that in one communication he stated that he was prepared for detection stating "I'm across it lol That's why I am on foot I just need to locate it inside then hide it then get it later." Again however this does not speak of any particular sophistication. The fact that he was warned to have an alibi up his sleeve also adds little as there is no evidence that the offender utilised one.
The Crown at one point suggested that the offender had a sufficiently senior role in the importation pointing to the extent that he was kept abreast of the consignment details by his associates on the Signal app. As the Defence correctly pointed out, the offender could not have engaged in the task he was asked to perform without this information. I do not accept the Crown submission that this evidences "seniority in the drug hierarchy." Nor in my view does the fact that the offender was given a warning to have an alibi or the payment amount signify such seniority. [1]
Overall, whilst there was participation in offending over a few months it was relatively unsophisticated and consistent with involvement at the lower level of the drug hierarchy where the offender was left exposed. There is no evidence that the offender had any input into the "design" of the import. I accept that the evidence is consistent with the offender following instructions and not engaging in any "driving mind" premeditation or planning that would have been undertaken by his instructors.
In summary, the offender's involvement was to collect and transport the drugs on the instructions of another. So much was acknowledged in the agreed facts.

Course of Conduct - s 16A(2)(c) and Injury Loss and Damage - s 16(2)(e) of the 1914 Act

The offending was not part of a course of conduct for the purposes of section 16A(2)(c) of the 1914 Act. Further, as the package was the subject of a controlled operation there was no actual injury, loss or damage in this sense pursuant to section 16A(2)(b) of the 1914 Act.
The Defence acknowledged and I accept that the above two factors attract lesser weight albeit still relevant.

Mental Health at the time of the Offending

A significant aspect of the Defence submissions as to the objective seriousness of the offending related to the offender's mental condition at the time.
Tendered in the Defence case was a psychological assessment dated 10 October 2021 prepared by Mr Neil Ballardie. [2]
Mr Ballardie recorded that the Offender had received some adolescent treatment for deficit hyperactivity disorder (ADHD) but no other treatment for his mental conditions prior to the offending. That history is consistent with that provided to the Court by the offender, [3] the offender's parents Rose-Marie Hillier and John Dingwall and family friends Trevor Calloway [4] and Gail Abbott. [5]
Mr Ballardie records that when he asked the offender about the period prior to and during the offending he said he lost his music, touring, light and sound production business that he had built over eight years due to COVID-19 and was devastated by the loss. He recorded that he the offender had to leave his house because his flatmates had to return to their respective homes and he ended up sleeping in a warehouse or staying with his friends. It was further recorded that the offender felt feeling the most depressed in his life which he said led him to making poor decisions. This history was also replicated in the offender's letter. [6]
Following administering the Depression, Anxiety and Stress Scale 21 (DASS21) (being a self-reported instrument) based on the offender's mood and functioning at the time of the offending, Mr Ballardie found that the offender had extremely severe depression and severe anxiety during that period. In his assessment, Mr Ballardie found that the offender had negative and persisting cognitions. Mr Ballardie found that these negative cognitions made the offender more vulnerable to anxiety and depression. The offender also met the criteria for a drug use disorder for a high level during the period of the offending.
So far as ADHD, Mr Ballardie found that the offender's responses were consistent with DSM-5 adult ADHD diagnostic criteria.
On the balance of probabilities, Mr Ballardie found the following factors were impacting upon the offender's functioning, behaviour and choices contributing to the offending: 1. The extremely severe level of depression and severe level of anxiety, and untreated adult ADHD affecting him at the time; 2. The distress he was experiencing as a consequence of having lost his business due to COVID-19 restrictions, having to leave his accommodation and living in a warehouse or with friends and his relatives in the US having died of COVID-19; and 3. The offender's reported increase in the symptoms of his mental conditions in the period leading up to and while offending, and his ongoing high level of substance use.
So far as the impact on the offender's mental condition on his decision making, Mr Ballardie referred to research and summarised that: Many studies have shown that depression can have very negative impacts on decision making by promoting a pessimistic cognitive style and a tendency to anticipate disappointment, and by increasing risk-aversion, listlessness, passivity and hopelessness. Recent research explains how anxiety works to disengage the part of the brain that is essential for making good decisions. ADHD is associated with an increased risk for behaviours reflecting poor decision-making skills such as unsafe driving, sustaining injuries and social dysfunctions. Recent research has confirmed that decision-making deficits in ADHD are driven by suboptimal decision-making and not by risk seeking.
Mr Ballardie referred the offender to Dr Tanveer Ahmed (Consultant Psychiatrist). In his report dated 20 October 2021, Dr Ahmed records a history that the offender committed the crime to pay for his worsening drug habit consequent to financial strain brought about by the lockdown and pandemic. [7] Dr Ahmed stated that the offender suffered an adjustment disorder with mixed anxiety and depressed moods based on the response to the lockdown and the pandemic.
He was also diagnosed with ADHD for which he had been on treatment for over a decade. In relation to substance abuse, Dr Ahmed stated: In particular he was becoming increasingly depressed and self-medicating with substances. This also had its roots in his poor impulse control and judgement linked to an underlying ADHD diagnosis for which he was no longer taking treatment. Using substances further worsened his impulse control and judgement to the point where he engaged in the relevant crime to support his habit. [8]
The Defence submitted that the Court could be satisfied that at the time of the offending, the offender suffered from a unique combination of serious and comorbid mental health problems that contributed to the commission of the offence. These significantly reduced his moral culpability. In particular, the undiagnosed presence of adult ADHD in the offender's psychological makeup with its debilitating effect on his risk-assessment and decision making, meets the threshold of contributing to the offence in a material way within the first principle of DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177].
The Defence, pointed to the diagnosis not being been challenged and the fact that the offender did not give evidence did not diminish the weight that should be ascribed to the opinions. Specifically, the Defence submitted that whilst the offender may well have been aware that his conduct was wrong, he did not appreciate the consequences of that conduct. The Defence submitted that in all the circumstances the offence falls at the lower end of objective seriousness.
The Crown referred to the sustained nature of the offender's preparatory actions including conversation regarding avoiding detection and the offender's acknowledgement that he wasn't getting paid for nothing. The Crown submitted that the offender did not act impulsively and that he was financially motivated. The Crown disputed that that the mental health diagnosis materially impacted on the offender's judgment within De La Rosa pointing out that Mr Ballardie and Dr Ahmed were dependent upon the offender's own statements in circumstances where he had not given sworn evidence: R v Qutami [2001] NSWCCA 353 at [58]-[59].
The Crown submitted that the offending falls within the mid-range of objective seriousness.
The medical and psychological evidence as to the offender's mental health at the time of the offending was unchallenged. At the time of preparing their reports both Mr Ballardie and Dr Ahmed had amongst other material the police facts sheet. It can be inferred that this embraced the features of the agreed facts before me. Neither Mr Ballardie nor Dr Ahmed sought to qualify their opinions based on the nature and duration of the offender's participation. Nor did they suggest that the impact of the offender's mental health was confined to impulsive decision making. The offender himself did not give evidence. However, the history as to the offender's mental health at the time is consistent not only in the offender's letter to the Court but also his parents and the other testimonials that have been tendered. It was also consistent with facts that could not be seriously in issue. The offender plainly did work in the music industry, established a business that had operated from the consignment address and which like many other businesses would have been adversely affected by the pandemic. The agreed facts acknowledge that the offender vacated the "multi- level art studio." I am prepared to accept the background history and the diagnoses which follow from it.
In R v Nguyen [2010] NSWCCA 238; (2010) A Crim R 106 Johnson J (with whom MacFarlan JA and RA Hulme J agreed) stated at [72]: (l) …it should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, is relevant to determining the degree of moral culpability attached to the act of attempted possession itself, so that a sentencing Judge should have regard to the offender's involvement in the overall transaction for the purpose of determining the offender's degree of involvement in a drug-smuggling enterprise;
To the extent the offender's participation was brought about because of his addiction, it is not an excuse to commit any crime. The fact that an offence is motivated in part by such a need may be taken into account as a factor relevant to the sentencing. It allows an understanding as to why an otherwise law abiding person did what he did and to understand his state of mind and capacity to exercise sound judgment cf Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [273].
Overall, taking into account the nature of the offending conduct including the offender's low position in the hierarchy, the relative lack of knowledge as well as the impact of his mental health on decision making, I am prepared to accept that the offending falls within the lower range of objective seriousness.

Character, Antecedents, Age, Means and Physical and Mental Condition - s 16A(2)(m) of the 1914 Act

The offender is aged 31.
Mr Ballardie obtained a history that the offender was born in Australia, grew up in the inner western suburbs and that he was the only child. While growing up the offender outlined a positive and caring relationship with his parents. His father was described as supportive although he was often absent while working and missed him considerably. The offender described his mother as overly invasive, very controlling and focussed on her career. He reported a smooth transition into formal schooling however he was not able to concentrate and was easily distracted in class and rarely completed projects and his homework on time.
When the offender was 7 years of age he was diagnosed with ADHD and was prescribed Ritalin which he took until 16 years of age. He did not like taking this medication because of the side effects. After leaving high school at the beginning of year 12, the offender worked in his father's carpentry business and said he also worked in construction, hospitality and in event management and activation. He stated that he built a music touring, light and sound production business but it had to close due to COVID-19 restrictions. He reported that he is currently working with his father while fitting out a bar for a client and would like to continue working in commercial fit outs in the future.
The aforementioned history was supported to varying extents by the statements of the offender's parents: Mr John Dingwall and Mrs Rose-Marie Hillier, [9] his friends Mr Trevor Callaway [10] and Ms Gail Abbott [11] and a past business partner Ms Janine Sanders. [12]
The offender's own letter to the Court along with the reference from Ms Janine Sanders documents that the offender has engaged in valuable community service.
Dr Ahmed obtained a report that the offender was diagnosed with ADHD as a child and was on the medication (Ritalin) up until late high school. He stated that it may have helped marginally. He has not been on the tablet since age 17. He experienced behavioural disturbances as a young child from early primary school and was assessed by paediatricians and diagnosed with ADHD. Dr Ahmed records that the offender did not have any significant medical history and noted that he was socially fine and that he was good with his hands and sport and that he was socially well liked and able to sustain friendships. It was noted that he left school in year 11 as he was expelled.
So far as substance abuse is concerned, Mr Ballardie recorded that the offender started cannabis use when he was 16 years of age initially consuming it once a month and then increasing to two or three weeks when he was about 17 years of age when he was at boarding school and daily when he was at home. He consumed cannabis to age 24 years and ceased consumption thereafter. At age 27 he started to use cocaine stating that it made him feel normal. Mr Ballardie stated that this was often reported by adults using cocaine with ADHD. A history was recorded that the offender used it about once a week until charged with the index offence. The offender stated that he first tried ketamine when he was about 16 years as it made him feel focused, intense and self-contained. He gave a history of using it a few times a year up until age 22 and then started consuming it on the weekend until he was about 29 years of age when he started consuming it daily. He stated that he has not consumed any prohibited drugs since he was charged with the index offence. [13]
Dr Ahmed also recorded a history of polysubstance abuse including using ketamine most days and other illicit drugs recreationally. Illicit drug use was noted to have first started in the offender's late teens in high school. He describes the offender as now being in remission.
Overall, the offender is a young man with no antecedents. The evidence supports that he has had a pro-social upbringing and continues to have pro-social support. He was diagnosed with ADHD since age 7 resulting in him taking medication that he ceased at age 16 due to side effects. From age 17 however he commenced illicit drug use which continued in various forms and intensity until the index offence.
The Defence accepts that the offender's involvement in the index offence occurred through connection involved in his illicit use of drugs.

Contrition - s 16A(2)(f) of the 1914 Act

The Crown accepted that the offender's plea may be indicative of genuine remorse, acceptance of responsibility and/or a willingness to facilitate the course of justice such that it should be afforded a discretionary weight. [14]
The Defence drew attention to the offender's plea of guilty, his frank and forthcoming admissions he gave to police in his interview following arrest and his expressions of contrition to Mr Ballardie, his parents and his friends. In his own letter to the Court, the offender has stated that he accepts full responsibility for his action and is overcome with regret and remorse and taken steps to ensure that this behaviour is not repeated. [15] Mr Ballardie recorded that the offender recognised the impact of his actions on others in the community. [16]
The offender has entered a plea, made admissions to police acknowledging his wrong doing and taken substantial action to address underlying issues in relation to his mental health and substance abuse.
I take this into account and I am satisfied that contrition has been demonstrated pursuant to section 16A(2)(f) of the 1914 Act.

Guilty Plea - s 16A(2)(g) of the 1914 Act

The offender's plea was entered at the earliest possible opportunity in the Local Court on 29 June 2021 (s 16A(2)(g)(ii) of the 1914 Act). Both parties accepted that the plea indicated a willingness to facilitate the course of justice.
This it was said was augmented due to the substantial stresses courts face on their capacity to conduct jury trials and clear the backlog of adjourned matters. [17] The Defence submitted that a discount of 25% should be allowed. I accept and proceed on this basis.

Cooperation with Law Enforcement Agencies - s 16A(2)(h) of the 1914 Act

The Crown accepted that the assistance provided by the offender increases the subjective value of the offender's plea, and indicates an acceptance of responsibility and willingness to facilitate the course of justice such that it should be afforded some discretionary weight. [18]
I accept that the offender did provide assistance to authorities by providing his PIN to allow police access to his mobile phone along with various admissions in his recorded interview. There is nothing in the agreed facts which lends support to the Crown submission that the offender gave multiple conflicting versions.
Overall, some allowance should be afforded for cooperation with law enforcement in the circumstances.

Prospects of Rehabilitation - s 16A(2)(n) of the 1914 Act

Mr Ballardie assessed the offender as being at low risk of recidivism based on the following: 1. The police facts outlining the nature of his offending; 2. The untreated mental conditions impacting on him at the time of his offending; 3. His positive engagement during assessment, fair level of insight and motivation to make positive changes in his life; 4. Improvements in his mood and anxiety following interventions and cessation of substances; 5. His opinion that on the balance of probabilities, there was a causal connection between his mental conditions, external stressors, an exacerbation of his symptoms, an ongoing high level of substance use, the impact on his behaviours and judgment and offending; 6. His consistent and responsible employment history and willingness to work; 7. His reported refraining from substances since the index offence and expressed commitment to refrain from them in the future; 8. His positive relationship with his family; 9. His positive engagement with the SMART recovery program and stated commitment to ongoing counselling; and 10. The absence of prior convictions and his expressed remorse at having offended.
The Defence accepted that the offender's cocaine and ketamine habit at the time of the offending were the channels that provided the drug syndicate with access to him. It noted that since his arrest the offender has taken responsibility for his drug habit and has now ceased all consumption. This was supported by pathology reports from bi-weekly drug screening. [19] It was not in issue that the offender has tested negative in almost a year's worth of testing from 09 November 2020 to 16 September 2021. There is further evidence that the offender remains negative with four further tests conducted between 25 October 2021 and 20 January 2022. [20]
The offender has also engaged in the SMART program which, according to Mr Ballardie, the offender was finding helpful. Mr Ballardie noted that the Offender said that it made him realise that a significant part of his drug consumption was self-medicating symptoms of adult ADHD. [21]
Dr Ahmed noted that the SMART recovery program is a known relapse prevention program conducted through group therapy which will helps one in a social context better understand the triggers to prevent ongoing drug use. [22] It was also noted that if the offender was permitted to serve a sentence outside full-time custody, his mental health treatment plan would include completing a SMART recovery program and reporting his progress to Mr Ballardie. [23]
So far as ADHD treatment is concerned, the Defence pointed to the fact that he had received proper adult ADHD diagnosis and is on prescribed medication such that it nullifies any need to turn to illicit substances and allow improved functioning in all other areas of his life crucial to rehabilitation.
Mr Ballardie recorded the offender reported that the medication has helped him be more focussed, keep on task and manage himself better and also helped his cravings for stimulant drugs and considers that his abstinence from drugs has been the greatest deterrence to relapsing. The offender was also recorded as having a better relationship with his family and other people and does not have problems with money and everything has come together and just wants to get on with his life.
Overall, the Defence submitted that the Court could be satisfied that the ADHD was now managed such that the need for self-medication through drugs, impulsivity and poor risk-assessment and decision-making that led to the offence is now controlled.
So far as the commitment to mental health treatment is concerned, the Defence submitted: 1. Appropriate treatment for his mental health issues, in line with the detailed mental health treatment plans tailored towards his circumstances (see Mr Ballardie's report at [11] and Dr Ahmed Report at p3). The offender's particular issues require specialised support, unavailable to him in custody (Mr Ballardie's report at [12(4)]) but on hand to him in the community and already demonstrably facilitative of his rehabilitation. 2. Professional mental health support from his clinicians (Mr Ballardie and Dr Ahmed) fully apprised of his previous offending and the risk factors involved, including his ADHD. Should the Court impose an order that Mr Dingwall comply with the treatment plan, both Mr Ballardie and Dr Ahmed have undertaken to report any breach to supervising authorities (Mr Ballardie Report at [11(8)], Dr Ahmed Report at p3). 3. Professional mental health support from a mental health team consisting of Mr Ballardie, his ADHD- specialised psychiatrist Dr Ahmed, his general practitioner, and any other professionals as considered appropriate as his treatment progresses. This team would not be available to him in custody to provide such a coordinated, efficacious response. 4. Ongoing professional monitoring from this team, which will facilitate early intervention should the offender ever re-experience stress factors, thereby avoiding the kind of collapse and behaviour that led to his offending.
The Defence highlighted that treatment in the community has led to demonstrated improvements, strengths and protective factors which was evident from the fact that when the second pandemic wave hit, he has not relapsed notwithstanding the pressures of COVID-19 since. This appears supported by Mr Ballardie's second report dated 8 February 2022. [24]
Further, the Defence noted that the offender is now in stable employment with his father which is reported in his parents testimonial and noted that although he previously worked on and off in the family business, following arrest and rehabilitation, he has taken increased responsibility such that his parents are not factoring him into the business succession plans and are concerned about the impact a custodial sentence may have on this. In terms of the social support that he has from his parents together with the rehabilitation that he has undertaken, it was submitted to demonstrate strong protective factors. The fact that he has not breached any bail conditions was recited as evidence of his prospect of rehabilitation.
The Defence submitted the offender's mental health circumstances are such that he would deteriorate in prison based on the opinion of Mr Ballardie.
The Defence argued that the offender's rehabilitation was closely connected with his mental health management such that a hard custodial sentence would: 1. Undo the significant rehabilitative progress he has made so far due to his own efforts and commitment; 2. Remove the protective factor of the mental health team currently progressing his rehabilitation, as well as his family; 3. Cause mental health setbacks and possible further damage such that his rehabilitation would be severely compromised; and 4. Be experienced by him at a level of severity and harshness disproportionate to his offending.
The Defence further argued that the impact of COVID-19 has relevance because of the unusually onerous custodial conditions including isolation, reduced social interaction, reduced ability to engage rehabilitative programs or recreational activities, all of which would have a serious effect on the offender in light of having ADHD. In these circumstances, custody would not be conducive to the offender's rehabilitation and greatly reduce the extent to which that purpose of sentencing could be served.
The Crown contended that Justice Health would be well equipped to manage the offender's issues in custody and Mr Ballardie's opinion otherwise was based on a report from a Senate Select Committee report that was published in 2006.
Mr Ballardie's opinion as to the impact of custody was that given the offender's pre-existing mental condition a custodial sentence would cause psychological distress and his overall mental condition would likely deteriorate. He added that he would suffer prison harder than ordinary hardship experienced by other inmates due to his pre-existing mental condition which would make it more difficult for him to manage the stress and deal with the pressures experienced while incarcerated. Mr Ballardie also opined that COVID-19 restrictions have capacity to further impact on the offender's mental condition. [25] These opinions were not disputed.
Dr Ahmed recommended a stimulant for the treatment of ADHD (Vyvanse) which was reported as assisting the offender in managing symptoms. Mr Ballardie raised the potential limitation to prescribing psychostimulant medications in a custodial setting due to risk for secondary diversion. Even accepting that the capacity of Justice Health to manage is greater than Mr Ballardie believed was the case, this does not detract from his opinion as to heavy impact of incarceration on the offender's mental health and the consequent impact on rehabilitation.
Mr Ballardie identified a community based treatment plan that he proposed. This included psychological treatment (including cognitive behaviour therapy and mindfulness and cognitive therapy), regular counselling, psychiatric treatment, and medication, completion of the SMART recovery programme and any other referrals deemed appropriate. [26] This was supported by Dr Ahmed. It is also apparent form Mr Ballardie's second report that thus far the offender has successfully engaged with treatment.
Overall, I accept that the offender has demonstrated good insight into the underlying causes of his offending and taken positive steps to address them over a sustained period. Subject to continuing on this path, I am satisfied that there are good prospects of rehabilitation and a low likelihood of reoffending.
I also accept that at least for the time being COVID-19 is making incarceration more difficult for the reasons submitted by the Defence.

General Deterrence - s 16A(2)(ja) of the 1914 Act

The Crown submitted that the sentence must be of such a severity that it will act to deter others from engaging in activities associated with smuggling prohibited goods into, distributing such goods throughout, Australia. The sentence must signal to would-be-smugglers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment.
I accept that general deterrence still has a role to play on sentence in the matter.
However, in the circumstances of this case general deterrence has to be viewed in light of: 1. The level of objective seriousness including reduced moral culpability as earlier discussed; 2. The offender's mental health especially his adult ADHD making him less of a vehicle for general deterrence in line with the second principle in De La Rosa; and 3. Where there has demonstrated rehabilitation, general deterrence will play a lesser role in sentencing. cf Thorn v R (2009) 198 A Crim R 135 at [57]-[58].

Specific deterrence - s 16A(2)(j) of the 1914 Act

Notwithstanding that the offender did not have a history of drug offences, the Crown contended that with regard to specific deterrence the Court should take into consideration that the offending comprised a lengthy course of conduct of over four months.
The Defence argued that the case for specific deterrence is to be of limited relevance in view of the fact that rehabilitation had been demonstrated: cf R v Stafford [2007] NSWCCA 73 at [19]. The Defence submitted that key areas of his rehabilitation are closely tied with his mental health issues and his mental health management met the threshold of the fourth principle in De La Rosa that his specific mental health situation can be seen to "reduce or eliminate the significance of specific deterrence." In particular, his mental health condition is currently managed as not presenting a danger to the community as it is being managed.
This is the offender's first offence and I am satisfied that it has been a salutary lesson to him. To the extent that his mental health factors played a role, I am satisfied that these have now been managed such that there is for a reduced need for specific deterrence.

Sentence

Section 16A(1) of the 1914 Act provides that "in determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence".
I have had regard to the relevant factors as referred to pursuant to s 16 A(2) of the 1914 Act so far as they are known and relevant to the Court noting that the list of factors are not exhaustive and common law principles relevant to sentencing such as proportionality and totality continue to apply.
In sentencing the offender, I have regard to the maximum penalty as a yardstick for comparison with a worst case. [27]
In this context, the Crown submitted that section 17A of the 1914 Act applies and that the threshold for imprisonment was met and that imprisonment was the only appropriate sentence in the circumstances.
I accept this submission which was also embraced by the Defence.
Section 16A(2)(k) of the 1914 Act requires that I have regard to the need to ensure that the offender is adequately punished for the offence.
I am mindful of the general principles referred to in R v Nguyen (supra) by Johnson J at [72] to the extent they relate to possession type offences.
In Wong v R (supra) Gaudron, Gummow and Hayne JJ stated: The sentencer must, therefore, "impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence": s 16A(1). Standing alone, the reference to imposing "a sentence ... of a severity appropriate in all the circumstances of the offence" might be read as directing the sentencing judge to determine a sentence proportionate to the wrong-doing without regard to considerations of rehabilitation or incapacitation of the offender[67] or the offender's prior criminal history[68]. But s 16A(1) does not stand alone. To the extent that the matters identified in s 16A(2) are relevant and known to the Court, the sentencer must take those into account. This group of matters is very diverse. It includes not only "the nature and circumstances of the offence"[69] but also matters such as the degree to which the offender has shown contrition[70], the offender's "character, antecedents, cultural background, age, means and physical or mental condition"[71] and "the need to ensure that the person is adequately punished for the offence"[72]. What is notably absent from s 16A is any guidance about the accommodation that is to be made between these various factors or between these factors and the general requirement that the sentence be of a severity appropriate in all the circumstances of the offence. There is no statement of the kind found, for example, in the Sentencing Act 1991 (Vic)[73] of the purposes for which sentences may be imposed, and there is no statutory requirement which obliges a sentencer to give particular weight to one or other of those purposes in sentencing certain kinds of offender[74]. Section 16A obliges the sentencer to take all of them into account and effect must be given to that legislative command
I accept the fact that what was being performed was what might be described as a menial or limited role, does not necessarily entitle one to leniency as illicit drug organisations are only able to prosper because people are ready, willing and able to undertake these types of roles and that it is well established that persons who participate in the illicit drug trade, at any level, should expect to receive heavy penalties. [28]
The Defence argued that a sentence by non-custodial means would adequately and appropriately ensure adequate punishment. Whilst it acknowledges that the offence with which the offender is charged is serious, it submitted the lower-range of seriousness of his offending and the unique combination of subjective factors provides the Court with a safe and compelling basis to extend leniency to him.
I have earlier addressed these issues.
Both parties submitted cases for consideration on sentence. [29] I have given consideration to these noting that each were decided according to their own circumstances. The "combination" of circumstances in the index case are somewhat unique and distinguishing.
In this case having regard to all relevant matters, I would but for the plea, have sentenced the offender to a term of 3 years and 4 months imprisonment. Having regard to the plea, I would sentence the offender to 2 years and 6 months imprisonment.
The sentence does not allow for it to be served by way of intensive correction.
As the sentence is less than three years the question which arises as to the setting of the recognizance release order (RRO) will be considered.
McLure P in Lam v R [2014] WASCA 114 observed, at [57]: because a non-parole period is a mitigation of punishment in favour of rehabilitation, positive sentencing factors in favour of rehabilitation in a particular case can reduce not only the length of the head sentence but also lower the proportion that the non-parole period bears to the head sentence. However, as Power makes clear, there is a limit below which the non-parole period cannot go. It cannot be reduced below the minimum that the justice of the case requires in order to satisfy all of the other sentencing objectives, including punishment, retribution and general deterrence.
In De Hollander v The Queen [2012] WASCA 127, Buss J (McLure P and Mazza J agreeing) stated: 86 …. the question whether to release a federal offender forthwith under s 20(1)(b) of the Crimes Act is part of a process which may involve three steps. The steps are as follows. First, all relevant sentencing factors (notably, those referred to in s 16A) must be taken into account in deciding whether to impose a term of imprisonment and, if so, the length of the term. Secondly, it may be necessary for the court to consider whether, pursuant to s 19AC(4), it should decline to make a recognizance release order in respect of the offender. Ordinarily, s 19AC(1) requires a court to make a recognizance release order where a person is convicted of a federal offence and the court imposes a term of imprisonment not exceeding 3 years, but that provision is subject to, relevantly, s 19AC(4). Thirdly, the court must take into account, in deciding whether to release the offender forthwith under s 20(1)(b), the same factors as those applicable to the imposition and fixing of the term of imprisonment (notably, those referred to in s 16A). However, the weight to be given to these factors, and the manner in which they are relevant, will differ as a result of the different purposes underlying each function. [30]
In this case, there was no suggestion that a RRO should not be made, hence s 24A(4) of the 1914 Act was not an issue. The option that the Court was requested to consider is to enable the offender to be released forthwith under a RRO.
In R v Zamagias [2002] NSWCCA 17 Howie J (Hodgson JA and Levine J agreeing) stated at [31] that a suspended sentence then available under NSW law can be a significant and effective punishment. His Honour added: 32 Further, a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be a sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognised that the fact that the execution of the sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment. The question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender. It is perhaps trite to observe that, although the purpose of punishment is the protection of the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate. [31]
The protection of the community is contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits: cf Yardley and Betts (1979) 22 SASR 108 applied in R v Blackman and Walters [2001] NSWCCA 121 at [44]-[45].
That still leaves the question of general deterrence. I am conscious of the proposition discussed in R v Saleh [2015] NSWCCA 299 at [42] that suspended sentences provide little if anything by way of general deterrence. To that end, I have considered in imposing a custodial component in the context of the requirements of s 16A(2)(ja) of the 1914 Act. Were I to do so, the component would be short relative in relation to the overall term.
In light of the following: 1. The offender's impressive rehabilitation and the desire that the gains be consolidated; 2. His mental health issues and the potential for relapse in custody with consequent negative impact on rehabilitation and recidivism; 3. The restrictions imposed by COVID-19 in terms of the capacity of the system to consolidate the gains; and 4. The reduced need for general and specific deterrence in the circumstances discussed; I have come to the view that the legislative requirements can be met by way of the imposition of a RRO to enable immediate release.
For these reasons: 1. The offender is convicted and sentenced to serve a period of 2 years and 6 months imprisonment. 2. The offender is ordered to be released forthwith upon entering into a RRO with a surety in the sum of $500 subject to the following: 1. To be of good behaviour for the duration of the period of the imprisonment; 2. That he accept supervision by NSW Community Corrections with the supervising office to be in Leichhardt. He is to report to that office within 48 hours for the purposes of commencing the supervision; 3. That he engage in treatment under his Mental Health Care Plan supervised by his general practitioner, the treatment plan of Mr Neil Ballardie specified in [11] of his report 10 October 2022 and Dr Tanveer Ahmed specified at p3 of his report dated 20 October 2021. Such engagement includes compliance with all reasonable requests that are made pursuant to those plans for such period as directed not to exceed the duration of the sentence.

Endnotes

Crown submissions at [28(a)].
Exhibit 1.
Exhibit 3.
Exhibit 5.
Exhibit 7.
Exhibit 3.
Exhibit 2
Exhibit 2.
Exhibit 4.
Exhibit 5.
Exhibit 7.
Exhibit 6.
Exhibit 1 at [5.1]-[5.3].
Crown written submissions at [39] and [42].
Exhibit 3.
Exhibit 1.
Perrin v R [2021] NSWDC 408 at 120 as applied in Chenhall v R [2021] VSCA 175; R v Diez [2020] NSWDC 351 at [37]-[38].
Crown written submissions at [42].
Exhibit 9.
See Exhibit 8.
Exhibit 1(1) at [9.2].
Exhibit 2 at p3.
Exhibit 1(1) at [11.4].
Exhibit A(2).
Exhibit 1 at [12].
Exhibit 1 at [11].
Markarian v The Queen (2005) 228 CLR 357; Elias v R (2013) 248 CLR 483 at [27].
R v Shi [2014] NSWCCA 135, [34] (Davies J); R v Oprea [2009] QCA 184, [14] (McMurdo P); R v Le Cerf (1975) 13 SASR 237, 239 (Wells J); Laurentiu & Becheru v R (1992) 63 A Crim R 402, 417 (Wood J).
Omorogbe v R [2013] NSWCCA 201; Eriyo v R [2015] NSWCCA16; R v Ajera [2015] QCA 56 and R v Pink [2021] NSWDC 47 (submitted by Crown): R v O'Brien (2021) NSWDC 504; R v Sagnelli [2020] ACTSC 348 and R v Udeh [2017] NSWDC 401 (submitted by Defence).
These comments were reiterated in Larkin v The Queen [2012] WASCA 238 at [74]-[75].
These comments were echoed in subsequent decisions. See R v Nahilous [2013] NSWCCA 90 at [86] and Zaky v R [2015] NSWCCA 161 at [30].

Amendments 29 March 2022 - Coversheet 07 April 2022 - Typographical errors DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 April 2022

Criminal Code Act 1995(Cth)ss 11.1, 307.6

Crimes Act 1914(Cth)ss 16A, 17A

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