Mr Markwart I have to give my reasons for the order that I am going to make but I believe in telling someone in advance what sentence is to be imposed because at the end of the day you are more interested in the sentence to be imposed than the operation of s 16A of the Commonwealth Crimes Act. I propose to impose upon you a sentence of seven years, eight months imprisonment. That will date from 29 March 2018. I am required to give you a year's credit for the time you have spent in custody including the last fortnight, and I propose in your case to fix a non‑parole period of four years three months commencing from that date and on my calculation that non‑parole period will expire on 28 June 2022. You will be eligible for release to parole subject to your appeal rights and the Crown's appeal rights. Whether you are released to parole will be a matter for you and the Parole Authority subject to any other intervening circumstances. That is the order I propose to make but I have to give my reasons.
Jayson Markwart appears today for sentence in respect of an offence to which he pleaded guilty on indictment on 22 October 2018. The offence he admitted to was, that he, between 6 March 2017 and about 20 April 2017 in Sydney in New South Wales, did import a substance, that substance being a border controlled drug, namely cocaine, and the quantity imported being a marketable quantity. This was an offence contrary to "subs 307.2(1) Criminal Code (Cth)." This offence carries a maximum penalty of 25 years imprisonment and or a pecuniary penalty of $5,000 penalty units which the Crown informs me amounts to $900,000.
There is a matter on a Form pursuant to s 16BA of the Commonwealth Crimes Act. This is an offence contrary to s 302.4(1) of "Trafficking in a controlled drug"; in this case methylenedioxymethamphetamine or MDMA. When dealt with on indictment or summarily if that can be done, it carries a maximum penalty of ten years and or a pecuniary penalty of 2,000 penalty units. The Crown's coversheet said that the penalty units amounted to $360,000. The two figures that I have been provided do not appear to be reconcilable but I am not proposing to impose a pecuniary penalty in any event.
As I said the prisoner pleaded guilty on 22 October 2018 and appeared before me off bail. He had been in custody, up until his first appearance before me a fortnight ago, between 20 April 2017 and 3 April 2018. I was informed a fortnight ago that that amounted to 11 months and 15 days in custody. It has been a fortnight since he appeared before me but he has been in custody during that period of time and I propose to give him a credit of one full year. I bear in mind of course we are currently in March. Thus, the sentence I impose, taking into account the matter on the Form will commence on 29 March 2018.
In respect of the matter on the Form, I am required to sentence the offender with regard to that matter, as the Crown has pointed out in its written submissions, in a matter that is consistent with principles that have been laid down by the Court of Criminal Appeal in decisions such as Attorney General's Application (No 1) (2002) 56 NSWLR 147. I appreciate the Commonwealth is not bound by guideline judgments fixed by the New South Wales Court of Criminal Appeal pursuant to New South Wales legislation, but it has been accepted that the principles in that guideline judgment have equal effect to matters on a Commonwealth "Schedule" or "Form".
The Court of Criminal Appeal observed in the judgment to which I have just referred particularly at [18]-[44] that in taking into account matters on a Form "the entire point of the process" is usually to impose a longer sentence or to alter the nature of the sentence that would have been imposed if the principal offence had stood alone.
In that regard, the taking into account of matters on a Form involves a number of considerations. The Court of Criminal Appeal in that instance and subsequent decisions has confirmed that usually the consideration of a matter or matters on a Form will require greater weight to be given to personal deterrence and the community's entitlement to extract retribution. It was wrong to suggest that the additional penalty would be small. Sometimes it will be substantial however the sentencing process is only concerned with what is described under State legislation as the "principal offence" and not to determine appropriate sentence for matters listed on a Form but to determine an overall sentence that would be appropriate for all the offences and then apply a discount giving appropriate weight to the matters earlier referred to in the judgment.
The Court said amongst other things, that usually "deterrence and retribution are entitled to greater weight than they may otherwise be given when sentencing for the primary offence." It would be rarely appropriate for a sentencing judge to attempt to quantify the effect on the sentence for the principal offence in common law sentencing, taking into account any matter on a Form. However, it is to be pointed out, as the Court noted, that there are a number of considerations to be taken into account, such as the relationship of the matter on the Form or the Schedule to the principal offending. Sometimes matters on a Form explain the context in which the principal offending comes forward which is the case here.
The greater weight required to deterrence and retribution that usually applies, might be seen to apply in this particular matter. But it is not a matter where that greater weight would be significant. This is not a case of sentencing someone in relation to an armed robbery, for example, requiring the Court to take into account three or four totally unrelated armed robberies on a Form.
Of course the Court must always, as the Court of Criminal Appeal pointed out, be careful to proceed on a basis where the administration would not be brought into disrepute by sentencing a person guilty of a course of criminal conduct on a,
"manifestly inadequate unduly narrow or artificial basis."
In this matter the Crown provided the Court with an Agreed Statement of Facts which is very detailed as is always the case in Commonwealth matters. I do not propose to outline all the detail contained in that document. That Agreed Statement of Facts incorporates the facts that relate to the matter on the Form. It must be seen through the prism of the Agreed Facts that the offending that I am sentencing the prisoner for, arises in a wider context than simply the circumstances of the arrest of the offender in the manner in which I will describe.
The facts outline a background that shows that between 24 December 2016 and 5 March 2017, three DHL consignments arrived in Australia from France. Each of those consignments, one that arrived on 24 December 2016, one that arrived on 9 February 2017 and another one that arrived on 5 March 2017 were addressed to this prisoner. They were apparently addressed to his place of work. The prisoner at the time working for an IT company in Clarence Street, Sydney. A mobile phone number was provided on the consignment note which apparently was the prisoner's mobile phone number and in respect of each of those consignments there is evidence that the prisoner made enquiries about the whereabouts of the consignment before it arrived. Each consignment described the contents as being bottles of wine to varying degrees. The first consignment had bottles of wine or alcoholic beverages. The second consignment had two bottles of wine. The third consignment had six "wine bottles". There were fees to be paid in the case of the third consignment by the prisoner, and each of those consignments were delivered to the business address of the prisoner. What was contained within those prospective consignments is not known beyond reasonable doubt, but the character of the consignments and their description and the manner of their delivery, the origin of the consignments all coming from different addresses in France are strikingly similar, if I might use that hackneyed common law expression, in relation to similar facts to the consignment the subject of the charge.
In relation to that matter on 9 April 2017 a consignment arrived from France, as had the other consignments, addressed to the prisoner at the same contact details, with a description of the contents as "white French wine". This was examined and ultimately it was discovered that there had been six wine bottles within the package but two of those were broken. The liquid in four of the intact wine bottles returned a positive result to the presumptive testing for cocaine.
The prisoner made a number of enquiries about the delivery of the consignment which was obviously delayed as the Federal Authorities conducted their enquiries. He confirmed details about himself in the course of these phone calls of which there were quite a number. The prisoner's home was ultimately searched by police, according to the facts, on 29 April 2017. Enquiries were made about the consignment but he told them that he did not know anything about it. He had paid the tax for some form of import duty on that particular consignment. That was the fourth consignment, but he was not expecting such a consignment and he said that there was cocaine in his house.
The search of his property by the police on 20 April 2017 revealed amongst other things the presence of the drug methylenedioxymethamphetamine or MDMA, electronic scales, multiple small plastic clip seal bags, drug administering paraphernalia including a bong and a glass drug administering instrument, alcohol wipes, empty pill capsules, a Blackberry phone and a Samsung phone containing a SIM registered to the prisoner's mobile phone number, and various records of outgoing calls to DHL in the manner described in the Statement of Facts as occurring between 6 March 2017 and 18 April 2017. His computer was also found to contain images of MDMA and clip seal bags and what was called a "Tor Browser" that is a network for accessing the "dark web" and seen in this Court from time to time in relation to people charged with possession and dissemination of child pornography, although there is no suggestion the prisoner was involved in that.
The car of the prisoner was searched and an empty DHL box which had been used to house consignment number three was found linking the accused to one of the three previous consignments addressed to him directly. None of the French wine was found in the prisoner's residence or his car that purportedly was previously delivered. With regard to the examination of the bottles of wine that were intercepted by the authorities, after a presumptive test for the presence of cocaine, the four intact bottles containing liquid in which cocaine was suspended was found to contain a pure weight of cocaine of 1.0413 kilograms which had a purity of 31.3%. As I said the broken bottles returned positive results to trace presence of cocaine. MDMA found at the prisoner's home in his bedroom had purities of 74.7% and also 30.9%, although in what context I am not informed. But the total pure weight of the MDMA was 25.2 grams. There was some cocaine also found in the prisoner's bedroom that had a purity of 67.2% but only a weight of 0.1 grams. I point out that, apart from the fact that items were found in the prisoner's property consistent with trafficking and dissemination of prohibited drugs as is described under New South Wales law if the drugs are supplied in New South Wales otherwise referred to in Commonwealth legislation as border controlled drugs, there was also material that was consistent with the prisoner's use of drugs which is one of the contextual issues evident from the evidence available to the Court.
The prisoner was interviewed by police and maintained a position of denial. I find it extraordinary that he was ever granted bail I must confess. That is no disrespect to the prisoner but the Crown case against him was completely overwhelming. He was certainly entitled to defend the case if he so chose. As I earlier indicated he pleaded guilty on 22 October. Why his bail was continued after he pleaded guilty I do not know either. To be found guilty of this offence inevitably would lead to a substantial term of imprisonment. But, in fairness to the prisoner there are a number of things that have happened since he was released on bail that do to some extent work to his favour in this sentencing exercise. I will come back to them shortly.
To return now to the investigation, the prisoner maintained the earlier denials and told a number of lies to the investigators. He denied ownership of the Blackberry phone. He did not know why the phone was in his bedroom. He did admit, in fairness to him, that the drugs and the other property were his and he had told searching police when they gained access to the house that there was cocaine in the house. He explained that he had $50,000 in debt including a bank loan, a credit card bill and money owed in respect of a car accident and his salary at work was $50,000 plus what are described as "penalties". He claimed that he had never had similar deliveries to his house before. He did at a particular point of the interview exercise his right to silence. There were a number of details found from a search of the prisoner's workplace. His internet history on his work computer showed information that was referrable to consignments delivered to him in the past.
The matter on the Form, as is self‑evident from what I have outlined, arises from the possession of the relevant drug, MDMA, in his home in the course of the police investigation. I will come back to an analysis of the character of the offending shortly after I have dealt with the other evidence that was available to me.
The prisoner was born in October 1988. According to his criminal history, at the time of the commission of the offences with which I am concerned he would have been 28 years of age.
He comes before me with a prior conviction in relation to the supply of "prohibited drug" under New South Wales Legislation, s 25(1) Drug Misuse and Trafficking Act. He was convicted on 27 July 2011 at the Parramatta District Court in respect of an offence committed on 12 October 2010 and he was sentenced to a term of imprisonment of 12 months commencing on the date of the sentence of 27 July 2011. He was given a non‑parole period of six months commencing on the same date and expiring on 26 January 2012. He had in his favour on that occasion a finding of special circumstances.
The prior conviction of supply a prohibited drug of course is of some importance in the sentencing exercise. The prisoner is not entitled to any special leniency in respect of this sentence by reason of that conviction. That conviction could be taken into account adverse to the prisoner's interests if it was concluded that it effected any consideration of his prospects of rehabilitation and the like. But there is a body of other evidence that does come to the prisoner's aid in that regard. Whilst, however, the conviction does not entitle the prisoner to any particular leniency, it is a matter that occurred some seven years before the matter with which I am concerned. There is no suggestion that that offence involved any particular breach of Commonwealth law. Although it does show something that is evident from the objective facts, conceded by his counsel, that the prisoner was substantially involved in drug trafficking at the time of the offence with which I am now concerned.
I had in the defence case, a psychologist's report which I will come back to in a moment and references from a number of his friends and associates many of whom, as I understand it, came to Court to support him on the last occasion and I note that they have returned. They are to be commended for supporting their friend. Their various references were tendered without objection. The references themselves on their face value at least come from young men of about the same age or in some instances, younger than the prisoner. A number of those people have known the prisoner for over ten years, which is for a substantial period of his adult life. Judging from the personal details contained within the references many of them have responsible jobs and are people, in some instances, of some achievement.
The various references that were tendered on behalf of the prisoner confirm amongst other things, his industry, in that he has by and large been regularly employed. I note in his favour when released on bail having lost his job at the IT company, he was able to obtain employment during the period of time that he was on bail. Thus, they confirmed his capacity to obtain and generally hold down employment. To quote some of the words that were used in the references he was variously referred to as "decent", "trustworthy", "humble", "respectful", "genuine", "kind-hearted", "inclusive", "kind", "generous" and "loyal." Of course one usually would not expect anything adverse to be said about someone in a reference that is tendered for sentencing purposes. But amongst his peers he is, if I could use the expression, fondly regarded and the presence of his peers through the sentencing exercise supports that. There appears to be little or no material from his family, a matter about which I cannot comment because it was not the subject of comment in the course of the proceedings. A number of the references note expressions of remorse and regret for his conduct. The anxiety caused to him by the proceedings and his expectation particularly after his plea of guilty of the substantial term of his imprisonment. One of the referees refers to his compliance with "stringent bail conditions". One referee has noted to his credit, during the course of time that he was on bail, his performance of community service through an organisation called 'Samaritan Purse Australia' which has some form of charity drive called "Operation Christmas Child". Particularly in his case, packing shoes for children in need from developing countries. There is also evidence in the reference to the constructive steps he has taken, some thwarted by his bail conditions, to prepare himself for life after custody. Endeavouring to save money, for example, to undertake a course in fitness training. Apparently he is a person committed to physical fitness, at least he has been since his release from custody. Whilst in custody one of the referees has referred to his assistance to the inmates in the area of physical fitness.
The affection with which he has been held by his friends as I have pointed out was demonstrated by those friends attending Court. Also, within the evidence tendered on behalf of the prisoner, was reference to the fact that he has had hair samples tested, apparently scientifically, judging from the certificates on 7 December 2018 and on 21 February 2019 which show no drugs present within the hair sample. This, in the context of his life before his arrest in relation to this matter, is a substantial achievement. I accept from the material available to me that the prisoner's conduct since arrest, particularly while on bail, has reflected a degree of contrition and the taking of responsibility for his conduct. I note of course that the plea entered was late having pleaded on the day the trial was supposed to start. This was, in the context of what I said earlier, a very strong Crown case. The timing of the plea and the evidence that has emerged of his contrition diminishes the weight to be given to contrition in this particular case. I regard it still as a mitigating factor, but not a significant mitigating factor, having regard to, for example, the attitude of the prisoner at the time of the arrest, the untruths he told the investigators and the delay in entering a plea of guilty to the offences which I am not concerned.
I appreciate of course all people charged with serious criminal offences are in a difficult situation confronting the reality that they face, but it is not uncommon in these Courts for people to enter early guilty pleas to very serious matters indeed.
I have a psychological assessment report that has been prepared by a psychologist, Kerry Watson. This report is more in the character of a pre-sentence report. I must confess I would have been aided I think in this matter with a Community Corrections Report, bearing in mind the prisoner had previously been on parole. But this matter came to me in the usual way, given to me without any notice and it was a matter where one could not reasonably delay it for the purposes of a Community Corrections Report. I did not seek that one be prepared in any event. I am prepared to accept the history that is set out in the report. Some of the material within the report is confirmed in part by material within the references but I appreciate, as the Crown points out to me, the need for some circumspection in considering a report, such as a psychologist's report which is primarily based on hearsay representations of the prisoner which have not been subject to the test of cross‑examination. That having been said the report is unremarkable. It is not suggested, based only on the word of the prisoner, that he suffers some severe psychiatric or psychological illness or disability which has inhibited his reasoning and is causally connected to the offending with which I am concerned.
The prisoner, in giving his history, made no complaint about his upbringing. His schooling was not completed with the Higher School Certificate and he attributes his decline in his academic performance to the use of alcohol and illicit drugs in the last few years at school.
The history reflects fairly regular employment from the age of 14; in a range of ways and he has worked for several substantial organisations. He obtained employment after his release from gaol with what is described as a "steelworks company" for about six months and was working as a 'blinds technician' for a company that provides window coverings. The historical account was described as "not indicative of social functioning deficits" and he related good physical health. He claimed a history of some decline in his mental health in 2015, 2016 following the breakdown of his relationship but nothing that speaks of a diagnosable psychiatric or psychological disability but seemed that he was adversely affected by a relationship break up. He did receive some psychological counselling but it did not assist him in relation to his reaction to that situation.
He has a long history of the use of illicit drugs. It is reflected in the circumstances even of the earlier offending with which I am concerned. He has since his teenage years used ecstasy and cannabis and commenced using cocaine when he was about 22. He also was using at the same time MDMA, Ketamine and prescription type drugs such as Xanax and Valium.
He was thought to of be of average intellectual functioning and there were no deficits in his cognitive function. He was engaging and co-operative with the psychologist. He has had what is described as persistent anxiety since his adolescent years. He would have various symptoms consistent with a high level of anxiety from time to time. It was not thought to be of "diagnostic proportion" but was thought to be quite persuasive and enduring" and could interfere with his personal functioning. He had sleep disturbance and persistent despondency as it was described particularly after the breakdown of his relationship and many ruminations of regret. He was able to accurately identify the impact of his drug abuse on his personal life and his well-being and he also understood that much of his use of drugs was in the form of "self-medication" to relieve him of other tensions such as his anxiety.
The psychologist proffered the opinion that "he was quite committed to turning his life around" and also to "remain drug abstinent for the long term." Whether that is true or not, I cannot say.
While on bail pending sentence, he was subject to some psychometric testing on 12 March 2019 when he was interviewed by the psychologist. He reflected symptoms of anxiety and depression, described as "mild" in respect of "depression" and severe in the case of stress and anxiety consistent with his situation of awaiting sentence in relation to the current matter.
He is thought, based upon the history he gave, to be at the time of the offending substantially involved in the use of drugs and was a person who demonstrated by his conduct at that time a tendency to "act recklessly and without reflection", which is consistent with people who abuse prohibited drugs.
It is always to be remembered, in the context of considering the prisoner as a drug supplier, that the people who are supplying drugs and using the drugs that are affecting them in this way, are providing the opportunity for other individuals to suffer the same effects and consequences as they themselves suffer from their use of drugs.
So the report provided some background information from the mouth of the prisoner that has not been subjected to the test of cross‑examination. But as I said the report is unremarkable. There is certainly nothing in the report that raises any matter that I should consider was to be derived from the Court of Criminal Appeal decision of DPP (CTH) v De La Rosa [2010] NSWCCA 194 at [177]-[178] in the judgment of McClellan CJ at CL, when he discussed the relevance of mental disability or mental illness in the sentencing of offenders which involves a very careful assessment by his Honour of various authorities that have gone before. Certainly there is nothing in the material that warrants lesser weight to be given to general deterrence and personal deterrence. There is nothing in the material, apart from the usual hardships that would be suffered by a person of the prisoner's background arising from the circumstances of the prisoner's custody.
As is usual the Crown has provided detailed written submissions. As I said to the learned Crown Prosecutor, in a somewhat light‑hearted manner, I keep all the Commonwealth submissions for a range of reasons including reliance of the detail of them. But often many of the submissions merely reflect things that I have been told many times before, which is not necessarily a criticism of the submissions in this particular matter. I reaffirm the fact that the submissions are very helpful.
If I could just pick up some of the detail of principle from the Crown's submissions, without having to recite the submissions, and then come back to consider them. The Crown correctly points out that I am required to impose a sentence of severity appropriate in all the circumstances of the offence (s 16A(1) Crimes Act 1914 (Cth) hereinafter to be referred to as "the Act"). I am required to give an analysis of the nature and circumstances of the offence. As the Crown outlines it, there are a number of matters identified most of which in my view are perfectly proper submissions to be made about that aspect of the matter. I conclude, having regard to all the material, that the prisoner was clearly the principal importer, in the sense that it was to him the relevant containers with the drugs hidden inside them were addressed and in the context of the previous importations of a very similar character, about which I have made comment, addressed to the prisoner.
Of course, it must be said in relation to the earlier importations of those packages I am unable to conclude beyond reasonable doubt what, if any, controlled drugs or the quantities, were contained within those packages. Perhaps some or all of those previous consignments were "dummy runs" which is not uncommon in drug importation cases. In any event, in relation to the quantity of drugs that I am principally concerned with that were the subject of importation and were detected, the real quantity within the package was diminished by breakage of bottles. Again, the extent of this I am unable to conclude. Other than to know that two of the six bottles had been broken and there were some traces of cocaine left after the breakage.
Within the prisoner's home there were indicia of drug supply, as well as a quantity of MDMA, consistent with two things. First of all, the prisoner's use of MDMA, as well as the prisoner's role as a drug trafficker. There were no substantial quantities of cocaine found within his home other than a very, very small quantity which would be described in the argot as, "a point", which was probably from an imported source but certainly having regard to the dates of the previous consignments arriving there is no evidence within his home of substantial cocaine previously having been in his possession. The prisoner was himself a user of cocaine and MDMA and had been so for some years before his arrest in relation to this matter. He has a proven history of drug supply; apparently being in possession of a substantial number of MDMA tablets at a music festival for which he received a gaol sentence. He was not solely in the business of drug supply, I point out. He had a responsible job, albeit that he was modestly remunerated, but it is clear that being in drug supply provided him with the funds, not only for his lifestyle, but also for him to obtain other drugs or to use the drugs that were imported.
In relation to some submissions the Crown made about the existence of a syndicate it is highly possible that he was part of a wider group that could be described as an organisation. He has provided no details of this and I have noted in the context of things I have to consider, the prisoner has not really offered really co-operation to the investigating authorities. Not that he is penalised for that. But certainly it could have been a mitigating factor to take into account which does not arise.
The Crown submits in the context of having to describe what the prisoner did, consistent with what the High Court said in R v Olbrich [199] HCA 54; 199 CLR 270, the prisoner was more than a "courier" and it submits that he was "more likely an intermediary" which I agree, but within "organised international syndicate". Obviously the character of the importation with which I am concerned had international connotations. The packages were very cleverly constructed and sent from France. But whether this could be described as "an international syndicate" of which the prisoner was a part, or whether the prisoner was the recipient of drugs that were prepared overseas for provision to a local group or network with international contacts, is equally possible. I cannot conclude from the material available to me that arrangements were in place for the supply of the drugs from overseas to the prisoner in a sophisticated package prepared in a foreign country.
The Crown conceded that the prisoner, on the evidence available to the investigators, did not have the means himself to finance the importation, unless of course it was funded by previous importations. This is matter of which I cannot be certain beyond reasonable doubt, but it remains a suspicion. Certainly, the prisoner had no trappings of wealth as I understand it and there was no evidence of large sums of cash within the home of the prisoner at the time of his arrest.
The controlled drug found within the packages addressed to the prisoner was substantial. The Crown used the mathematical device of indicating that the relevant quantity was in multiples of the minimum quantity required for cocaine to be of a marketable quantity. I am informed the marketable quantity of cocaine is in the range between two grams and two kilograms. I also looked at it from another perspective. The quantity was approximately 52% of the quantity of cocaine required to be considered a "commercial quantity." The drug's purity of 31.3% was a reflection of the character of the packaging. Of course we know that cocaine imported into the country in powdered form can be of a far higher purity than 31.3%. In fact, the man I will sentence after I sentence this prisoner was supplying powdered cocaine in purity percentages of between 89 and 91%.
To reflect upon some other aspects of the Crown's submissions, the prisoner was clearly trusted. But then again he had substantial advantages to be co-operative with other people, both financial and for the purposes of obtaining drugs for his own purposes. It is to be pointed out that he did not at any time attempt to disguise his identity. He was completely exposed to detection when the consignment was intercepted by the authorities, it was addressed to him and despite his denials of having done so, he made a number of enquiries in his own name endeavouring to track the movement of the consignment and paying any relevant duties or taxes that were required to be paid. In other words he was easily detectable and it seems to me, easily expendable. He played, as the Crown pointed out by reference to the actual importation, an integral and pivotal role. But not under the guise of anonymity. The conduct was clearly premeditated and was in the same course of conduct as other importations of very similar and highly suspicious character. But as I said, drawing conclusions as to precisely what came of those previous consignments beyond reasonable doubt is not something I am able to do. The principal offence is to be considered in the context of the character of the offending demonstrated in the Form, or Schedule, that I have taken into account.
Returning, if I may, to the Crown's helpful written submissions, I have taken into account the quantity of the drug. It is not a defining matter but it is a relevant consideration notwithstanding of course the striking down of the guideline judgment in Wong(v R) (2001) 2017 CLR 584. Clearly, as the Crown points out, it is common sense that the prisoner was to obtain some financial benefit from the drugs that were imported. I am required to have regard to the fact that the maximum penalty for the offence for which the prisoner has pleaded guilty is 25 years, and the maximum penalty always serves as a yardstick and a basis for comparison between this matter and a "worst case" as it is described in the Crown's written submissions by reference to Markarian v R (2005) 228 CLR 357. Of course when one refers to "the worst case" one also needs to consider by reference to the maximum penalty, that the maximum penalty will be imposed upon the "worst case" in terms of its objective facts, committed by the "worst prisoner."
So far as the offence is concerned I am prepared to accept that it was an offence committed in the "course of conduct" reflected in what I have said about the previous consignments. The extent of the criminality in the previous consignments I am unable to measure. But certainly those previous consignments at the very least were a prelude to the commission of this offence. I have already noted I am required to take into account pursuant to s 16A(2) the offence on the Form as a related matter. There is no particular victim to take into account in this matter and there was no damage done to the community because of the good work of the Commonwealth investigators. There is no particular injury, loss or damage resulting from the offence save for, of course, a loss to the community of the investigation of the matter and the prosecution of it, so no victim impact statement is required obviously.
I have already noted that I am prepared to give the prisoner credit for contrition shown in his conduct since his release on bail in the manner that I have earlier outlined but it is a mitigating factor of no great substance in this matter. I take into account that the prisoner has pleaded guilty. I have noted the Crown's helpful submissions in relation to the authorities that discussed the issue of a discount; the fact that there is no "obligation" to give a discount. I pointed out to the Crown although my researches are not exhaustive, but every case that I have considered that has been decided in the Court of Criminal Appeal, particularly since the decision of Xiao v R [2018] NSWCCA 4, where the Court of Criminal Appeal had to re‑sentence an offender in respect of Commonwealth offending, the Court of Criminal Appeal has ascribed to the offender where there was a plea of guilty a discount.
I propose in the consideration, of course, of the helpful details set out at paras 19 and 20 of the Crown's written submissions to give the prisoner a discount of 10% upon the otherwise appropriate sentence to recognise both the utilitarian benefit of the plea of guilty and also the limited facilitation of the course of justice, in the face of other matters that are required to be taken into account in that respect. As the Crown points out there was no co-operation to be taken into account. There was a requirement pursuant to s 16A(2), for proper weight to be given to both general and personal deterrence as reflected in s 16A(2)(j) and (ja). I am required to ensure the prisoner is adequately punished for the offending. I am required to take into account his character, antecedents, age, physical and mental condition as I have done.
So far as his prospects of rehabilitation are concerned, as reflected in s 16A(2)(n), I regard his prospects of rehabilitation much more favourably than might have been the case had I considered the matter from the perspective of where the prisoner stood when he was released on bail. I have noted some of the material within the references that speak to positive steps that he has taken. He has been able to remain drug free apparently, on the information available to me, which is in his case, quite an achievement; and of course the fact that he has abilities that show that he has qualities that could assist him in the future to avoid offending. Whether he is capable of avoiding the use of drugs, of course, will depend upon the willingness of the prisoner to seek professional assistance and guidance particularly from the relevant supervising authority in New South Wales, that being the Parole Authority and the officers of Community Corrections. He certainly needs an extended period of time of professional assistance and an extended period of time to adjust to community living upon his release from custody. The Crown has pointed out of course that the matters that arise under s 16A(2) are not a "catalogue of considerations which is exclusive of other relevant considerations". These are particular matters that must be taken into account in conjunction with all other matters arising in the case. There are no third parties or dependants that I need to consider in the matter.
The Crown's submissions reflected upon the need for consistency of sentencing and that brings me to the consideration of what were matters brought to my attention both by the Crown and defence as relevant for comparative sentencing purposes if I might use that expression.
The Crown referred me to four cases; UE [2016] QCA 58, DPP(Cth) v Gow [2015] NSWCCA 208, R v Alaby [2014] VSCA 25 and the decision of Iyoha v R [2011] WASCA 46, a decision obviously from Western Australia. It is proper that the Crown should bring the Courts' attention to decisions from other jurisdictions to try and ensure some consistency through the sentencing of Commonwealth offenders throughout the Commonwealth of Australia.
To reflect on some of the facts that emerge from some of these cases; Gow was concerned with a matter that related to the importation of a commercial quantity of a border controlled drug and it was a matter which does provide wider assistance in the consideration of matters that were raised with me by learned counsel for the prisoner. These were matters arising from another section of McClellan CJ at CL's judgment in De La Rosa, the case to which I earlier referred appearing at [216] through to, without extracting some of the less relevant paragraphs, [255]. The learned counsel for the prisoner relied upon McClellan CJ at CL's characterisation of various types of offenders by regard to the quantities of the drugs as either commercial or marketable quantities. It should be pointed out however, perhaps as a cautionary nature, something I said to the learned Crown Prosecutor in the course of submissions. As my research has revealed, McClellan CJ at CL, himself said in the decision of R v Holland [2011] NSWCCA 65, at [3], that it was wrong to seek out his categorisations in De La Rosa and then to impose a sentence appropriate to a particular category. Rather, he said, one should proceed on the basis that other cases;
"can stand as a yardstick against which to examine a proposed sentence."
This was the view expressed directly by Simpson J in De La Rosa at [304]. This was the view also expressed in Gow by Garling J who was in minority in terms of the disposition of the appeal at [63]. It was the view of the majority, that is Basten JA and Hamill J agreeing with Basten J, set out in a rather lengthier discourse on matters of comparative sentencing at [35]-[52]. This may well be the reason for McClellan CJ at CL's reflection upon his judgment in De La Rosa, or perhaps the use of it subsequently in the decision from the High Court of the same year as De La Rosa, that is Hili and Jones v R [2010] HCA 45, particularly at [54].
In the decision of Gow, which as I said, was a helpful decision to me, even though the prisoner was being sentenced for a similar but more serious offence, the offence Mr Gow was sentenced for carries a maximum of life imprisonment. The majority decision contains a discussion on the comparative sentencing of other offenders with a range of outcomes largely defined by role at [44]-[45]. As Basten J said at [39] agreeing with Garling J on this point, in terms of the exercise of comparative sentencing a more helpful exercise would involve identifying the key characteristics of the case then seek out cases with similar characteristics and then identify the range of sentences in those cases. Their Honours, I hasten to say, were dealing with the issue of this comparative sentencing exercise in the context of the appellate atmosphere where the learned Judges have more time to reflect upon the detail of the material provided to them. In sentencing at first instance a matter reflected in the High Court judgment in Markarian, one of the great difficulties for a sentencing judge considering other cases is the myriad of different circumstances to be considered that are both the objective matters and subjective matters. The quantities, as I have earlier pointed out, are relevant considerations, but it is only one of many relevant considerations. Obviously the role of the offender is vital in this regard, as the High Court in Olbrich made clear. But sometimes defining a role for a person associated with a group of people for which there is no organisational chart is a difficult matter. The Courts have to be very careful not to speculate and to look into crystal balls and see things that are not really there to be seen.
There is also the human element in sentencing. Imposing a substantial sentence on a relatively young man whose criminal conduct is guided by, in part, a drug dependency, rather than solely sheer greed, as with entrepreneurs and managers in drug supply situations, is a significant responsibility. This is not a case of a person cynically exploiting others in need of a particular drug and there is also in every sentencing exercise, where appropriate, consideration of that element of mercy tempered as always by the avoidance of unsuitable or inappropriate leniency, bearing in mind that in these sentencing exercises there is always the need for proper weight to be given to general deterrence.
I bear in mind when one reflects upon the human aspect of this I have a young man who in my view is very fortunate to be released from bail, manfully, as I could describe it, turning up here in Court knowing that he was to be remanded back into custody in circumstances where he has at least some knowledge of the character of the community to which he will return as a result of any order that I make. It is a wonder in some instances in this system how much the cooperation of individuals is important in delivering justice. In this particular matter having regard to the cases supplied by the Crown and the information provided by counsel for the accused, including the information contained within the analysis of McClellan in De La Rosa, there was not any particular case with highly comparative characteristics both as to role, quantity and perhaps other subjective circumstances as this matter here. I do not feel bound to try to categorise this offending within the categories identified by McClellan CJ at CL because of his Honour's own subsequent observations and also the observations of both the majority and the minority in Gow. Most of the cases cited in McClelland CJ at CL's "second category" of importation or possession of the marketable quantity of a controlled drug are concerned with people usually described as "couriers". The case of UE that the Crown provided to me was a case involving a lower quantity of a different drug, that is, an amphetamine type drug, where the prisoner travelled overseas to facilitate an importation of a quite sophisticated character. He was of a similar age and had no criminal history. It was said in the judgment, "it is not suggested that he had not previously committed a serious criminal offence". The idea of someone travelling overseas in order to facilitate the commission of a crime in this country of this type is a substantial aggravation. I note in relation to the sentence imposed on him that he did receive a discount for future cooperation, but he also recruited other people to be involved in the offending. There is no suggestion that this prisoner of recruiting anybody.
A similar role to this prisoner was reflected in Gow. He was not an organiser. But it is to be borne in mind that he was responsible for the importation of a commercial quantity of cocaine, a quantity approximately two times the quantity with which I am concerned. He faced the maximum penalty, as I said, of life imprisonment. Importantly in his case, he had travelled from overseas to commit the crime that he was sentenced for in Australia. Again one would ordinarily regard a person who travels from overseas to commit a crime in our country of any type as a matter of aggravation. That aggravation is not present here. Of course in Gow there was an early plea, there was no criminal history but also there was "no remorse" The sentence, I hasten to say, was held by the majority to be "lenient", that is at the bottom of the range of sentences that the Court thought may have been appropriate but was not outside the range.
In relation to the other two judgments cited by the Crown there is the decision of Alaby to which I earlier referred from Victoria where the offender had a somewhat similar role to this prisoner and there was an early plea, there was a lower quantity but it was also a different drug. The Western Australia case, again, a somewhat similar role, a different quantity. But the role was considered a significant one because he was a "substantial link" in a chain of importation. There was no plea at the earliest opportunity as is the case here. There was some dispute as to any cooperation he provided. I note he received a sentence of 11 years imprisonment. But I also note that prisoner had a prior conviction for an almost identical crime in 2001 where he had imported heroin into Australia for which he was sentenced to nine years imprisonment. A substantial factor to be taken into account in the consideration of the penalty imposed. I was provided also with the schedule of decisions from the public defender's tables. I could not find any particular decision that was comparable other than the decision of Siddiqi [2015] NSWCCA 169 and the decision of Atanackovic [2015] VSCA 136. It was to be pointed out, having read the decision of Siddiqi, that he was 19 years of age. He received a sentence of seven years, six months imprisonment with a non‑parole period of three years, nine months in respect of his involvement with others who were also sentenced but to lesser sentences in respect of the importation into the country of 1.48 kilograms in pure weight of cocaine. He had a "major depressive disorder". I note the sentences imposed on the co-accused. They had greater discounts available to them for various reasons and were substantially less than the sentence imposed upon him. I also note his age.
As for the decision of the Victorian Court of Appeal to which I have just referred, the quantity was similar to the quantity here. It was a plea of guilty and it was a case where he was also sentenced in respect of an offence of trafficking cocaine. The prisoner was a type of minder for the drugs having been sent from the United States motivated by financial gain, but also dependent upon the use of drugs with genuine remorse and good prospects of rehabilitation. He received a total sentence of four years with a non‑parole period of two years, six months and a sentence of three years, six months in respect of the cocaine importation case. Time is limited for the extent to which I can reflect upon all the matters that arise in relation to those comparative cases. But I do in the context of the principles that were discussed in Gow and by reflection upon other judgments. I was also given some statistics but in this particular matter those statistics relating to non‑parole periods were of little value to this Court.
In the consideration of the matter I have not specifically reflected upon the helpful submissions of counsel for the prisoner directly, although a number of matters that were the subject of submission by him I have already dealt with or expressly stated without proper accreditation to the assistance that counsel for the prisoner provided. He pointed out that the prisoner had the capacity to make a positive contribution to the community and I accept that that is so but he also pointed out that the prisoner had to deal with the difficulties that had brought him into custody in the first place and he submitted to me, which I am prepared to accept, that the prisoner had exhibited, particularly since his release on bail, good prospects of rehabilitation. However, he needs assistance.
The Crown's oral submissions supplementing its written submissions were very short for obvious reasons. But the Crown did make the point that whilst the subjective material was "largely self-serving" it was fair to say, if I may quote his words, subject to the accuracy of my note-taking with no transcript, that it was not "throw away the key time" with which I generally agree. But it is substantial offending in the context that I have already explained. It is in these circumstances that I have concluded that I should impose the sentence that I foreshadowed to the prisoner but providing him with a non‑parole period that provides a substantial period of time to receive guidance to adjust to community living and to receive assistance which he no doubt will receive and should receive to avoid drug usage in the future. Otherwise I have taken into account everything that has been put to me by the parties.
There is a lot to cover, I am sorry about that. If you would mind standing up Mr Markwart. In relation to the offence of import marketable quantity of border controlled drug, taking into account the trafficking controlled drug matter pursuant to s 16BA of the Crimes Act (Cth), you are sentenced to seven years, eight months' imprisonment to date from 29 March 2018. That sentence expires on 28 November 2025 with a non‑parole period of four years, three months' imprisonment expiring on 28 June 2022. So you become eligible for release to parole on 28 June 2022. Do you understand that?
OFFENDER: Yes your Honour.
[2]
Amendments
09 October 2020 - spelling check
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: 09 October 2020