R v McNab; R v O'Brien

District Court of NSW|2018-08-20

REMARKS ON SENTENCE

Henry McNab and Darren O'Brien have pleaded Guilty to and are to be sentenced in respect of the following charges:- 1. On the third day of August 2016 at Maroubra in the State of New South Wales did supply an amount of a prohibit drug to wit 393.3 grams of 3,4 methylenedioxymethamphetamine (MDMA), being an amount which was not less than the commercial quantity applicable to that drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. [1] This constituted Sequence 2. 2. On the third day of August 2016 at Maroubra in the State of New South Wales did supply an amount of a prohibit drug to wit 206.83 grams of MDMA, being an amount which was not less than the commercial quantity applicable to that drug contrary to s 25(2) of the 1985 Act. This constituted Sequence 6. 3. Between the tenth day of June 2016 and the third day of August 2016 at Sydney in the State of New South Wales did supply an amount of a prohibit drug to wit 25.29 grams of Cocaine contrary to s 25(1) of the 1985 Act. This constituted Sequence 3.
The Co-offenders are each asking the Court to take into account 2 matters attached to Sequence 2 on a Form 1, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 [2] . Those charges are:- 1. Sequence 4: That between the tenth day of June 2016 and the third day of August 2016 at Sydney in the State of New South Wales did supply an amount of a prohibit drug to wit 25.29 grams of Cocaine contrary to s 25(1) of the 1985 Act. 2. Sequence 5: On the third day of August 2016 at Maroubra in the State of New South Wales did deal with the proceeds of crime to wit $1500 (15 x $100 notes) knowing that it was the proceeds of crime.

Sequence 6 Supply Prohibited Drug-Commercial Quantity (206.83grams of MDMA)

Between 10 June 2016 and 3 August 2016, the Co-offenders, supplied or agreed to supply an amount of MDMA, being not less than the commercial quantity, comprising transactions as follows:-

Agreement to Supply 10 MDMA Pills (4.3 grams) - 10 June 2016

On 10 June 2016, Police intercepted calls and text messages between Offender McNab and a person known as Paul McGrath. Paul McGrath informed Offender Offender McNab that there was a male at the Aurora Hotel and was asked for 10 "yokes" and enquired if Offender McNab could "sort him out". McNab agreed and informed the male to tell the purchaser that it would cost $300 or $350. Before leaving, Offender McNab had a telephone conversation with O'Brien, during which he told him that he was going to the Aurora Hotel because someone wants "10 little" and that he did not want to talk on the phone. Offender McNab started to make his way to the Hotel area but on route he was called by the male, who told him that the purchaser said to "leave it".

Agreement to Supply 11 MDMA Pills (4.73 grams) - 12 June 2016

On 11 June 2016, Police intercepted coded calls and text messages between Offender McNab and a male person, referred to as "Bistro". A male person known as Anthony Flood initiated communication with Offender McNab stating that another person was looking for 15 pills. They arranged to meet the following day and the male enquired about the cost for 15 pills. Offender McNab said that he would charge $30 for each and enquired who the person was.
At 11:20am the following day, the male sent Offender McNab a message saying that the purchaser was after 19 pills and was in Coogee. Offender McNab said that he would be there at 12:30pm. At 12:05pm, Offender McNab called O'Brien and asked him to meet "Bistro" and supply 19 pills for $30 each. O'Brien agreed and asked Offender McNab to send him "Bistro's" number. At 12:29pm, a female named "Amy" sent a text message to Offender Offender McNab informing him that her friend only had cash for 11 pills. Offender McNab replied that it was OK. "Amy" sent Offender McNab an address in Coogee.

Supply 300 MDMA Pills (129 g) - 15 June 2016

On 15 June 2016, police intercepted calls and text messages between Offender McNab and Offender O'Brien. Offender O'Brien asked Offender McNab to get a postage bag because "Cian is looking". In a later call Offender O'Brien said that "Cian" wants 200 of them. Offender McNab asked if he had paid money and O'Brien replied that he had not, but was going to deposit the money on Friday. Offender McNab asked for the address and Offender O'Brien told him to take 200 pills out of the car and to move the car.
In a call at 3:50pm, O'Brien asked if Offender McNab had grabbed an envelope and Offender McNab replied that he had not. O'Brien said he would do it, and that "Cian actually wanted 300 pills.
At 4:41pm on 15 June 2016, CCTV footage showed O'Brien enter Australia Post at Maroubra where he purchases an "Express Post" soft parcel and writes on it. He then walks across Maroubra Rd before returning a minute later and places the envelope in a yellow express post box.
On 24 June 2016, police intercepted a call between O'Brien and Offender McNab in which they discuss that "Cian" had deposited $2750 into an account. Offender McNab complained that he owed more than that and said that he would not be getting another thing until he paid everything he owed them.

Agreement to Supply 100 MDMA Pills (43 grams) - 14 July 2016

On 14 Jul 2016, police intercepted conversations between Offender McNab and a male by the name of "Dan". The male person is known as Dan O'Flaherty. The male tells Offender McNab that another person told him to grab "100 straws". Offender McNab replies by text message saying that O'Brien would be home in 30 minutes and that he will drop around the drugs. One minute later, Offender McNab calls O'Brien and they have a lengthy conversation about the sale, during which Offender McNab enquires if O'Brien is charging $15 per pill. They agree to go and see the male at 5:30pm. In a text message a short time later, O'Brien told Offender McNab to text "Dan" that the cost is $17 per pill.
At 6:10pm, Offender McNab called "Dan" and told him that he would drop the drugs around in about 90 minutes but "Dan" says that he will just see him tomorrow after work.

Agreement to Supply 10 MDMA Pills (4.3g) - 17 July 2016

On 17 July 2016, police intercepted calls and SMS between Offender McNab and phone used by a male referred to as "Bistro". "Bistro" asked Offender McNab if he had any pills and Offender McNab inquired how many he was after. "Bistro" says "10". Offender McNab ascertains that "Bistro" provided an address on Elizabeth St, Surry Hills. A minute later, Offender McNab sent a message to Offender O'Brien telling him that "Bistro wants 10 sweets". In a subsequent text message to "Bistro," McNab refers to "Es".
Ten minutes later "Bistro" called the service ascribed to a fictitious name which was used by both Offender O'Brien and Offender McNab and spoke to O'Brien who asked him what he is looking for. "Bistro" said, "10 bumbles". O'Brien tells him that he will drive Offender McNab to his location in about 40 minutes. Subsequently Offender McNab calls "Bistro" and states that O'Brien will be the one attending. A minute later O'Brien sent a message to "Bistro" saying that the cost for 10 pills was $300.

Supply 50 MDMA Pills (21.5 grams) - 19 July 2016

On 19 July 2016, police intercepted calls and text messages between Offender O'Brien and a male named Paul Wade. Wade informed Offender O'Brien that he wanted 50 pills of MDMA and confirmed that the pills were "strawberries". Police intercepted a calI between Offender O'Brien and Offender McNab during which Offender McNab stated that he was at home and O'Brien asked him to grab 50 pills and he was meeting someone in Randwick. At 6:01pm Wade called Offender O'Brien and asked him how far away he was. Offender OBrien said he would not be long.
At 6:07 pm O'Brien sent a message to Wade saying he was arriving in Randwick. At 6:10pm a white truck with one male occupant seated in the driver's seat was observed driving out of the laneway followed by Offender O'Brien driving his Volkswagen Amarok. Wade confirmed that he would buy ecstasy every 6-8 weeks from an Irish male he knew as "Darbar".

Sequence 3 - Supply Prohibited Drug - Indictable Quantity (25.29 grams of cocaine)

Between 10 June 2016 and 3 August 2016 Offender McNab and Offender O'Brien supplied, offered to supply or agreed to supply an amount of cocaine which was not less than the indictable amount of cocaine. The discrete transactions were as follows:-

Supply of 0.65 grams of Cocaine - 11 June 2016

On 11 June 2016, Police intercepted calls and text messages between Offender McNab and a female named "Roslyn" - now known as Roslyn Cosgrove.
Roslyn inquired if it was too much hassle for "1". Offender McNab agreed to supply and "Roslyn" provided an address in Clovelly. Offender McNab travelled to Clovelly and supplied the drug at about 6:30pm. Later that evening, "Roslyn" sent a message to Offender McNab complaining of the quality of the drug and Offender McNab offered to replace it. She declined the offer and Offender McNab said that he would look after her next time.

Supply of 1.3 grams of Cocaine - 11 June 2016

On 11 June 2016, police intercepted calls and text messages between Offender McNab and a male named "Tony" - now known as Tony Brennan. He inquired if Offender McNab would be around after "the match". Offender McNab confirmed that he would be and asked what he was after. Tony said "just 2 of them." Offender McNab said that he would try his best but there were "checkpoints everywhere".

Agreement to Supply of 1.3 grams of Cocaine - 12 June 2016

On 12 June 2016, police intercepted calls and text messages between McNab and a male named "Al Kelly". "Al Kelly" informed Offender McNab that he was in a bad way and asked Offender McNab to drop "2 bags" down and that he would pay in cash.
In an intercepted conversation between O'Brien and McNab at 10:31am, Offender McNab tells Offender O'Brien that Kelly wants a "couple of things" and that he was going to see him. Offender O'Brien asks if Kelly wants "2".

Supply of 6.5 grams of Cocaine - 5 July 2016

On 2 July 2016, police intercepted calls and text messages between O'Brien and a female named "Shar". In a conversation between Offender O'Brien and "Shar", it is clarified that she is after "bags of sniff" (Cocaine) not "e's". O'Brien agrees to post her the drugs and informs "Shar" that the drugs will be there in 2 days and there are no checks b customs because the package is sent within Australia. "Shar" informs Offender O'Brien that he can "just send [her] ten buggie…" meaning 10 bags of cocaine.
On 5 July 2016, Offender McNab is captured on CCTV entering Australia Post at Randwick and buying an "Express Post" soft parcel. Police intercepted a message from "Shar" to the service in a fictitious name, used by both Co-offenders, providing an address in Darwin.
On 6 July 2016 and 7 July 2016, police intercepted calls and text messages between "Shar" and Offender O'Brien providing the tracking number of the parcel and inquiring when the drugs should arrive. Offender O'Brien provides details of his personal bank account for "Shar" to deposit payments for the drugs.

Supply of 0.65 grams of Cocaine - 13 July 2016

On 9 July 2016, police intercepted a telephone call between Offender McNab and a male person named "Adam Hitch". He asked "Adam" to send him the address again. On 12 July 2016, "Adam" initiated communication by sending a message providing an address in Melbourne. A short time later, police intercepted a text message from Offender O'Brien to Offender McNab telling him to get onto "Adam" to put the money in before he sends him the drugs.
At 4:35pm, police conduct surveillance operation and observed Offender O'Brien leave the residence and drive to Maroubra where he is seen to place an "Express Post" soft parcel into the yellow express post box located at Maroubra Rd, directly outside the Pacific Square Shopping Centre. The male, "Adam" was supplied with 0.65 grams of Cocaine by Post.

Supply of 13.5 grams of Cocaine - 28 July 2016

On 24 July 2016 and 25 July 2016, police intercepted text messages on the service with a fictitious name used by both Co-offenders and a number used by a female name "Shar". Offender O'Brien asked "Shar" if she wanted "to go again?" "Shar" confirmed that she did and would put money into the account. "Shar" provided the address at Darwin and requested that they put it in an envelope that would fit into a post box so she did not have to go to the post office to collect it. Offender O'Brien confirmed that he would do this.
On 25 July 2016, Offender O'Brien asked "Shar" to put the money in today. "Shar" asked if the package was in his name or the same name. O'Brien replied that the drugs were in an envelope addressed to "Ciara Dunn". At 4:27pm, police conducted surveillance and observed Offender O'Brien's black Volkswagon Amarok stop on Maroubra Road and observed Offender McNab carrying a white and yellow envelope going to a yellow express post box outside the entrance of the Pacific Square Shopping Centre. Offender McNab then ran back across Maroubra Road, not carrying the envelope. Surveillance was maintained on the yellow express post box. Later that day, Police seized an envelope addressed to Ciara Dunn which contained 21 bags of cocaine, totalling 13.5 grams.
On 28 July, police intercepted a phone call between Offender O'Brien and Offender McNab in which Offender McNab says that he had checked the status of the envelope and it said "pending" which he believed was because the envelope was too thick and not considered a letter.

Agreement to Supply of 1.3 grams of Cocaine - 29 July 2016

On 28 July 2016, police intercepted a telephone call between Offender O'Brien and a male person referred as "Steve" - now known to be Steve Crosdale. The male told Offender O'Brien that a fella was looking for 2 bags. Offender O'Brien asked where the male was and "Steve" said that he did not know but would provide the person with the "bat number". Offender O'Brien said to tell the male that he would be back at 9:00pm. "Steve" said that the male wants 2 bags for $500 cash and said that he had tole the male that he would give him good gear.
Later that evening, police intercepted a call between Offender McNab and Offender O'Brien during which Offender O'Brien tells Offender McNab that "Steve" called him and said that someone was looking for "2 things… 2 sacks". Offender McNab asked what Offender O'Brien said. Offender O'Brien said that he agreed to supply and that the transaction was set up for tomorrow.

Sequence 2 -Supply Prohibited Drug -Commercial Quantity (393.3 grams of MDMA) and Form 1 Offences

On 3 August 2016, Police were conducting a surveillance operation on Offender McNab were following his vehicle in an unmarked police car. At 2:59pm, police intercepted a telephone call between Offender McNab and Offender O'Brien, during which Offender McNab said O'Brien, "I'm getting followed here" and "go and get the key out of the shelf in my room."
At 3:00pm, police intercepted a telephone call between Offender McNab and Offender O'Brien. O'Brien says, "where is it?" Offender McNab replies, "it is just in the draw in my room." O'Brien says, "Bud there is a big bag of coke here." Offender McNab says "take it all with you" and "they're right behind me, two cars, they are going to box me in here." Offender O'Brien responds, "they are going to block you in?" Offender McNab says, "Yeah don't say anything, yeah."
A short time later, police arrested Offender McNab and Offender O'Brien. A search warrant was subsequently executed at their residence at Maroubra on 3 August 2016. During the search of the premise, items of interest were seized including $1,500 in cash (Sequence 5), 41.4 grams of Cocaine concealed in a container under the front passenger seat of a Holden Commodore with a purity determined to be 29% (Sequence 4), also located with a container, stored in the boot of the vehicle was 393 grams of strawberry shaped pink tablets, which subsequent analysis revealed contained MDMA. Each tablet was estimated to weigh 0.47 grams with a purity of 25% (Sequence 2).
Between 10 June 2016 and 3 August 2016, Offender O'Brien and Offender McNab supplied approximately 25.29 grams of Cocaine (Sequence 3) and 206.83 grams of MDMA (461 pills) (Sequence 6).

OBJECTIVE SERIOUSNESS

The Crown submitted that all three charges fell towards the mid-range of objective seriousness for offences of this kind. [3] That submission was said to take into account:- 1. The quantity of the drugs relevant to the applicable legislative threshold, with Sequence 2 being just over 3 times the commercial quantity threshold, Sequence 6 being over 1.5 times the commercial quantity threshold and Sequence 3 being over 5 times the indictable quantity threshold. 2. The role of the offenders and their level of participation in the offences.
The Crown submitted that both offenders had comparable roles in the supplies and the quantity of the prohibited drugs involved in the offence, together with the length of time over which the supplies took place, disclosed that the co-offenders were not small time suppliers.
Attention particularly was drawn in the case of Sequence 6, to the fact that supplies varied from between 10 pills to 300 pills, supplied to different persons in different locations. Further the supply of 300 pills indicated a level of supply to a street level supplier, rather than a user. The Crown did not submit the Offenders were at the top of the hierarchy in their distribution of drugs but asserted that it was serious and sustained offending. The Crown did not contest that the co-offenders were user-dealers and engaged in supply to fund their own drug habits, although it questioned the honesty of the offenders in relation to their oral evidence account as to the extent of their use. It is submitted that both offender remain clear thinking enough to be able to carry on selling drugs in a rational, clandestine and efficient manner. [4]
It was not submitted that the seriousness of the offences were elevated by the purity. [5]
The Defence submitted that the offences should be viewed in context of the relatively low position on the hierarchy of offences of this nature, drawing attention to the following factors:- 1. The purity of the Cocaine and the MDMA had little relevance as it was not suggested that the purity was known, they were intending to cut it and obtained from someone close to the source of manufacturing or importation. 2. The offence did not involve a degree of sophistication or use of detection prevention measures. 3. Although a mobile was subscribed to a false name, that measure facilitated proof rather than obstructed it and the language used on the phone was not coded but street-argot or short hand terms for drugs were used. It was transparent and no undercover operatives were necessary. 4. The supplies were committed by Offender McNab and Offender O'Brien personally, without the use of third parties. 5. There was a nexus between engagement in the supply of prohibited drugs and psychological functioning decline and addiction at the time of the offending.
It was further submitted that the offences involved minimal planning and was more spontaneous and responsive to demand.
Whilst I accept that the offences were not part of a planned or organised criminal activity with the terms of s 21 A (2) of the 1999 Act they nevertheless did involve some planning including obtaining a mobile phone under a false name which was used in responding to varying customer needs as required, [6] use coded language and coordination of activities. I do not accept that the language used was street argot. I accept that both offenders undertook comparable roles
In Vu v R Hall J set out the following factors as relevant to determining the objective seriousness of an offence under s 25(2): [7] • The terms of the offer, in particular, as to the quantity of a drug, its price, etc. • Whether a particular offer is an isolated one or whether it occurs in the context of an ongoing supply of prohibited drugs. • Whether, and if so, the extent to which the offer is motivated by reasons of commercial gain or greed. • Whether the offeror at all material times had the intention to fulfil the offer. • Whether the offeror had the capacity to fulfil the offer to supply. • Whether the offeror attempts to fulfil the offer. If not, whether any failure to perform was the result of a decision by the person concerned not to supply or whether it was due to some intervening or extraneous circumstances
The offending in Sequence 6 occurred over a number of transactions. It involved some 4 agreements to supply (56.33g) and 2 actual supplies (150.5g) of MDMA. The amounts varied from 10 to 300 pills. Overall 206.83 g was involved. The thresholds for a commercial quantity of MDMA is 125 g and for a large commercial quantity 500g.
The offending in Sequence 3 occurred over the same period being 10 June and 3 August 2016. It involved 25.29g of cocaine being 2.69 g where there was an agreement to supply and 22.6 g where there was an actual supply. 7 transactions were involved being 2 agreements to supply and 5 actual supplies. The supply was street level and by post packaging interstate. The amount involved was more than 5 times the indictable threshold although well below the 250 g threshold for a commercial quantity.
Sequence 2 involved a larger quantity than the other offences at 393.3g of There is no issue that this intended for the purposes of supply.
I accept that both offenders were user dealers and engaged in the offences motivated to fund that addiction. The circumstances of that addiction are described below. There was evidence that they negotiated price. There was no suggestion they did not have the capacity to meet the requests for supply the subject of the charges. The Crown conceded that the role of the offenders was relatively low in the hierarchy of drug distribution. Each offence involved significant quantities and different drugs were involved. I accept that the transactions involving smaller quantities were for street deals. However I am not so satisfied that this was necessarily so where a larger quantity was involved in the case of Sequence 6 particularly where 300 pills were transacted on 15 June 2016.
Overall bearing in mind the timespan, quantities and the position of the offenders I would accept that the salient features of the offending are so as to bring Sequence 3 as being in the lower range objective seriousness whilst sequences 2 and 6 were more towards the mid-range of objective seriousness.
Consistent with the approach in Subramanian v R [8] matters pertaining to the offenders' mental state at the time are discussed below as relevant to the offender's moral culpability for objectively serious offences.

Substance Abuse - O'Brien

It was argued on behalf of the Offender O'Brien that at the time of the offending he was addicted to Ecstasy and Cocaine and he was suffering from a major depressive disorder such that his capacity for rational thought was strongly influenced by substance abuse and depressive disorder. It was submitted in this context that Offender O'Brien's mental health contributed to the offence in a material way, as evidence by the report of Mr Neil Ballardie.
Offender O'Brien stated that he was able to work despite drinking on the weekend and using MDMA and Cocaine all weekend. He stated that he was coping with a volatile on-and-off relationship with his girlfriend, however, to use his words, "it all fell apart on 3 June 2015 when his nephew, Cole died." Cole was the Offender O'Brien's godson and he felt that he could not sleep and could not think straight. He said that he took Xanax from June 2015 but that did not help. He was also taking sleeping pills but he still could not sleep and felt alone and could not get out of bed and had no energy. He stated that he felt guilty that he could not get back to Ireland to be with his family, his relationship with then partner Abby was rocky and that he had no-one.
At about this time, he stated that he was drinking a lot and taking a lot of drugs. Before his godson had died, he was able to pay for the drugs with his weekly wages, however, after his death, he stated that he was using a lot of MDMA and Cocaine and he got a drug debt. Together with Offender McNab, he decided that he would supply some drugs to potentially pay off the drug debt and get some drugs for themselves. Offender O'Brien stated that people would contact them for Cocaine and MDM, and that sometimes they would supply it and other times they would not. He said that they started in June 2016 and were arrested in August 2016. He did not know how much money was made but anything that was made, went to the drug supplier to pay the drug debt and to get more drugs for drug-use.
Offender O'Brien gives an account in relation to his substance use which was recorded in the psychologist report by Neil Ballardie, dated 14 May 2018. The history obtained records that Offender O'Brien started consuming alcohol when he was 16 and would binge drink every second weekend with friends. It said that after his godson died, his alcohol consumption increased for a few months, drinking 3 to 4 times a week. This decreased to every second weekend after he started taking MDMA, until he was incarcerated. The history recorded that Offender O'Brien started using Cannabis when he was 16 years of age and that he had first tried MDMA at 20 years of age, initially consuming it once a month. When he came to Australia, this increased as he was away from home has was subject to less boundaries from his family.
A history is obtained that after the godson passed away, Offender O'Brien's consumption significantly increased to large quantities, about 3 nights a week and this level continued until he was charged. He stated that he first started Cocaine when he was about 21, describing this making him feel positive and outgoing. This pattern of Cocaine consumption had matched his pattern of MDMA consumption. Offender O'Brien also stated that he started anti-anxiety medication, Xanax in June 2015 just after his godson passed away. He fell into a pattern of taking large amounts of drugs over the weekend and then taking Xanax when he was not taking drugs to relax and to address the anxiety which he was feeling from his exacerbated drug use.
Mr Neil Ballaradie recorded:- "[6.7] Drug use Disorder - Criteria Met, High Level at the Time of Offending When he was previously regularly using MDMA and cocaine, Mr O'Brien had problems controlling his use, was preoccupied with these drug[s] and continued to use them even when they caused him problems. His consumption resulted in a high level of distress, problems functioning in his daily life, and occasional failure to fulfil role obligations at work and home. He would spend a high amount of time obtaining these drugs, consuming them and recovering from their effects. When consumed they was often taken in larger amounts or over a longer period than was intended. His pattern of consumption, behaviour, attitude and choices relating to drug use met the symptom criteria in the DSM 5 for a high level of drug use disorder, in sustained remission." [9]
In his conclusion, Mr Ballaradie assessed that on a balance of probabilities, the high level of drug consumption was impacting on Offender O'Brien's functioning, behaviour and choices which contributed to him offending.
Both Ms Karen O'Brien (Offender O'Brien's mother) and Mr Stephen Williams (Mr O'Brien's step father) testify as to the impact the loss of Offender O'Brien's godson. Ms Valerie O'Brien stated that she noticed a deterioration. Ms Karen O'Brien said that Offender O'Brien did not call as regularly as before and when he did, he was either flat, did not say much or he was intoxicated and slurring his words.
Mr Ballardie noted the impact that the death of Offender O'Brien's godson and nephew had according to the history that he obtained. In administering psychometric testing, Mr Ballardie recorded:- "[6.2] Psychometric Testing I administered the Depression, Anxiety and Stress Scale (DASS-21) on Mr O'Brien. This is self-report instrument designed to measure the three, related negative emotional states of depression, anxiety and tension/stress. It has been validated in a number of populations and the findings show that the DASS-21 is psychometrically sound with good reliability. a) His initial instructions were to complete the measure based on his present mood and functioning. He scored in the moderate range for depression, and the low range for anxiety and stress. b) I then instructed him to complete the measure based on his mood and functioning during the period prior to offending. He scored in the high range for depression, anxiety and stress." [10]
As a consequence of these results, Mr Ballardie assessed the offender as meeting the requirements of DCM 5 for a major depressive disorder, a generalised anxiety disorder and a drug misuse disorder. He noted that he had a problem with a poor self-concept, negative ideations and a catastrophizing cognitive style. He then concluded:- "[8.2] In my opinion, on the balances of probabilities, the following factors were impacting on his functioning behaviour and choices and contributed to him offending: a) The mental conditions affecting him at the time. b) The distress he was experiencing as a consequence of his loss and grief and not being able to grieve with his family over his godson's death, feeling isolated from his family in Ireland and the stress he felt over the deterioration of his relationship with his partner at the time. c) His high level of drug consumption." [11]
I am conscious of the limitations of relying on psychologist's reports. [12]
The Crown drew attention to the fact that Offender O'Brien stated that he had used drugs prior to arrival in Australia. He stated that this increased after his arrival, including the use of MDMA and Cocaine. In cross-examination, Offender O'Brien conceded that he used drugs because people around him did and he did not think he had a problem, though the matter escalated after his godson died. He stated that he did not reveal his drug use when he was received into gaol because he was trying to get a job in custody.
The Agreed Facts and the details of the transactions which the Offender participated demonstrate a rational thought process which included the need to operate clandestinely and transact with customers. I accept that the Offender's use of drugs was impacted on by his depression and addiction.
The decision to take drugs in the first instance however was a choice the Offender O'Brien took. So too course of addiction must be treated as choice as to its consequences. To persist in that course subsequent to the passing of his godson rather than seeking assistance is also a matter of choice. [13] Whilst I bear in mind these matters by way of general background this warrants little if any in reduction of moral culpability of the offender.

Substance Abuse - McNab

In the case of Offender McNab in October 2015, he apparently trod on a discarded needle in the shower after work in a fitness first gym at Royal Randwick Shopping Centre. According to material before me, he presented to Dr Peter Holloway at Royal Randwick Medical Centre on 29 October 2015. He represented on 13 November 2015, 12 April 2016 and 16 May 2016. Despite reassurance that it was extremely unlikely that there would be any infection from the injury, Offender McNab presented with anxiety, manifesting with insomnia and was prescribed Temazepam. On 13 November 2015, he recorded that Offender McNab also presented with other unrelated issues. On 16 May 2016, he determined that Offender McNab should be referred to a psychologist. Dr Holloway narrated that the problem was purely one of Mr McNab's mental state with respect to the needle stick injury. He was prescribed medication, included Stilnox which escalated to taking Valium.
According to Offender McNab's statement, dated 10 May 2018, before he knew it, he was on a slippery slope, ending up in prison. He stopped training and stopped attending his course and ceased working, according to the history obtained by Kathryn Wakely, forensic psychologist. [14] The course was that of a personal trainer and I will return to this later in these reasons. The college he was attending advised him that due to repeated absences, he was not eligible to complete the course. He was advised to provide medical certificates in support of his claims of what had happened. Whilst he endeavoured to resume his own training and course in 2016, he was unable to do so, as he did not provide medical certificates as directed. Though he contacted other courses, he was advised that he would not be given credit for what he had completed. He found this difficult to deal with as he assumed that he would be fully qualified by March 2016. According to the history obtained, Offender McNab again stopped attending the gym and stopped engaging in work and his lifestyle deteriorated.
Offender McNab was seen by Tobias Churchill, psychologist from Life Resolutions for an initial consultation on 17 May 2016 and subsequently on 31 May, 16 June, 21 June and 9 July 2016. Sessions lasted between 50 to 70 minutes. He noted that Offender McNab was due to attend a further session on 4 August 2017 but did not attend having been arrested on the previous day.
In Mr Churchill's report, a history is obtained that Offender McNab discussed his father's significant gambling addiction which caused significant conflict and strain on his family during Offender McNab's childhood. Offender McNab's father moved in and out of the family home on several occasion, during this time which resulted in significant parental conflict contributing to much instability and much unpredictability. Offender McNab discussed being introduced to gambling at the age of 16 by his father and he soon became dependant on the activity. He noted that Offender McNab reported that he continued with the behaviour until 18 months prior to the initial consultation when he was able to stop "cold turkey". Offender McNab also described severe physical discipline that he experience throughout his childhood and the personal resentment built up for him as a result.
Mr Churchill obtained a history following the needle stick injury, that Offender McNab was unable to continue with regular employment and maintain his long-term relationship. He noted that he was distancing himself from other social supports, including parents despite maintaining regular contact with them and until the incident. It noted that Offender McNab was untrustworthy towards others, describing his relationships as "fake". Offender McNab also gave up his personal training course despite the likely implications for his future pursuits, due to the severity of his symptoms. Mr Churchill opined that he would benefit from extensive treatment and rehabilitation to reach his potential in the future. He noted that he appeared to be addressing the trauma of his childhood and developing a more robust understanding of his mental health, impacts of upbringing and triggers to allow him to function most effectively in society, to enhance his emotional and psychological wellbeing.
In December 2015, Offender McNab returned to Ireland to spend Christmas with his family. Ms Valerie McNab noted:- "December 2015, Henry came home to spend Christmas with his family. This is when I noticed that he behaved in a different manner. His behaviour and personality changed. He wasn't the same person who had left Ireland. He was drinking heavily and became very remote. He kept himself at a distance. Myself and my husband, became very concerned about him [and] tried to encourage him to talk to us about how he was feeling and why he was feeling that way as we have always done but he refused to open up. This is when I knew something was wrong. I asked him to speak to someone professional, so I made an appointment with a family doctor." [15]
Similar changes were noted by Offender McNab's sister, Paula McNab. She noted that he was "standoffish and did not say much". She noted that he suffered from anxiety and panic attacks whilst at home and was out drinking heavily everyday. Ms Paula McNab described his trip to Ireland for Christmas 2015 as "a bad Christmas" and "noticed that all he did was drink and sleep."
Offender McNab stated that when he returned to Australia he stopped using sleeping tablets and medications and attempted to return to his course but was unsuccessful and the stress and anxiety and the resumption of sleeping tablets resumed. It was recorded that he continued from February through most of the time leading to his arrest, taking medication, sleeping for lengthy periods and not attending work and utilising illicit substances. He stopped taking care of himself and his relationships deteriorated and began taking Xanax which he obtained from a friend. It is in those circumstances that he realised that he had a problem and referred himself to a psychologist.
In the account given to Ms Kathryn Wakely, Offender McNab describes the turning point as being the use of sleeping pills. He said that before he began using this medication, he had not encountered any serious difficulties. Notwithstanding this, his evidence before me was that he had consumed drugs and illicit substances before his needle stick injury, including Cocaine and MDMA. An account of this was provided to Ms Wakely, however a history was obtained of substance abuse in which Mr McNab described himself as never having been a big drinker, although more recently before his arrest, he was engaging in "benders" and consuming large amounts of alcohol. According to the account obtained, he was consuming large amounts of alcohol and Cocaine from February through to May 2016. He described himself as using alcohol and cocaine from Thursday through to Sunday consistently and then using sleeping tablets from Monday to Thursday.
A couple of weeks before his arrest, he described using 3 ounces of Cocaine often on him own and at times, in the company of friends. The account given to Ms Wakely was that he began offending to cover the cost of the debt that he had accrued from his drug use. He was told that he needed to sell substances to repay the debt and cover the cost of ongoing use. In his evidence before me, he stated that in the 2 weeks before the charge for which he was arrested, had been accumulating a debt of some $20,000. Over the period of 9 weeks, he stated that he was consuming around $5,000 of drugs and the drug debt had escalated. He stated that he borrowed money to buy drugs.
Overall Ms Wakely's report indicates that Offender McNab has insight into his offending behaviour, expressing that he is fortunate to have been arrested because it stopped him from engaging in this behaviour. Ms Wakely records:- "Henry stated, "Everyone is going to make mistakes but mine was a big one but I have no sympathy for people who come back here repeatedly… it's stupid and they don't learn." Henry described his arrest as "my lowest point." Henry said he is aware he has done the wrong thing and people who break the law, end up in the same place' - in custody. However, Henry said, "although we're in the same place I'm not like them." He spoke of the antisocial attitudes of those he is surrounded by and their constant discussions of substance use and offending. He noted his frustration that most of the people around him do not seem to have any desire to change their behaviour or learn from their mistakes and said he has no intention of ever returning to the custodial environment, or engaging in behaviours that could result in legal problems." [16]
Tests carried out under the Depression, Anxiety and Stress Scale Short Version, DASS-21 was found by Ms Wakely to be as follows:- "Henry's results across the scales measuring depression and stress placed him within the normal range, or between the 15th and 60th percentiles. His score on the scale measuring anxiety placed him within the mild range, above the 78th percentile. This indicates Henry is currently reporting symptoms of anxiety that would be expected to be greater than those reported by at least 78% of a typical, nonclinical population" [17]
The personality assessment inventory found that the most prominent elevation across the profile were difficulties managing substance abuse which has had prominent impacts upon interpersonal relationships and has led to vocation and legal problems and possible medical complications. So far as his risk for reoffending is concerned, the report noted a significant elevation on the scale measuring alcohol and drug abuse. It indicated a need for interventions to address substance abuse.
Ms Wakely recommended that he would benefit from engagement in a treatment program aimed to address his substance abuse and dependence on drugs, enhanced relapse prevention skills and assistance to improve coping mechanisms for the management of subsequent life stresses he will inevitably face. [18]
Ms Wakely expressed the view that assessment for recidivism placed Offender McNab in the Low range. Consistent with the Offender's account history, drug and alcohol abuse was identified as an area of risk and treatment. [19]
In a subsequent report, dated 30 April 2018, following a further consultation on 23 April 2018, Ms Wakely recorded that at the time of his consultation with Mr Churchill, he had been under the influence of Xanax which caused him to "talk rubbish". He stated that his recollection of previous treatment sessions was significantly impaired and he attributed this to his consistent use of substances at the time and said that he believed that this was the reason that he provided a somewhat inaccurate account of his upbringing. Further tests undertaken, using the Depression, Anxiety and Stress Scale Short Version, DASS-21 revealed that he was within the normal range, suggesting that he was not suffering from clinically significant symptoms of Depression, Anxiety or Stress - being a slight improvement on the scores which showed a mild elevation for anxiety. She concluded:- "Overall, my professional opinion of this man and his circumstances since I first saw him in 2017, remains unchanged. He has made significant changes and does not display an antisocial orientation. He has appropriate familiar supports for once he returns to Ireland which will assist him. Should Henry adhere to the positive changes he has made, he will have positive prospects for rehabilitation and remain at low risk for recidivism. His physical health condition is ongoing, and this is something that requires more consistent, specialised care than he is receiving in custody. Unfortunately, whilst he remains in custody this is unlikely to change." [20]
In custody, Offender Mr McNab has incurred no custodial punishments. He is employed in a trusted position as a sweeper. He was noted in the records to be a good worker, follows routine and is respectful to other workers.
In a report from the NSW Prison Chaplaincy Service, Reverend Steve House, deposes of the Offender as a welcoming, helpful and encouraging inmate who was employed as the head sweeper in pod 8, which is difficult pod as it houses offenders of all categories. He states that he performs his duties well and is a respected worker. Reverend House also records that he is also the Chapel sweeper and in this position he has had many positive contacts and conversations with Offender McNab
The Offender's counsel relied on the findings of the Psychologist, expressed at [72] on page 14 in the following terms, which argued that there was a causal link between the offender's mental state and his offending:- [72] Overtime, Henry's use of prescribed and illicit substances increased and from lat[t]er 2015 and until the time of his arrest in 2016, Henry was engaging in a pattern of serious substance dependence. It was this dependence that resulted in his involvement in the offending due to debts accrued from this use and his deteriorating lifestyle. Given his negative and disordered state of mind at the time, particularly when paired with the consistent use of multiple substances, Henry's ability to make rational and considered decisions would have been severely impaired." [21]
I am satisfied that at the time of his offending Offender McNab was suffering from depression, stress and anxiety. The history leading to it appears complicated by a number of factors in his personal life. His use of illicit substances however preceded his needle stick injury and involved a conscious choice as was his decision to persist following the needle stick injury.
Whilst I take these matter into account by way of general background little if any reduction in moral culpability is appropriate in the circumstances.
I am satisfied that in neither Offender's case are the provisions of s 21A(3)(j) of the 1999 Act invoked.

Police Involvement

Relying on Gedeon and Dow v Commissioner of the New South Wales Crime Commission [22] it was further argued that the fact that police whilst having the Offenders under observation allowed the dissemination of drugs in the community without possibility of recovery was a factor relevant to sentence. It was contended that the penalty imposed ought to incorporate a measure of leniency which reflects both the fact that they ought to have been arrested much earlier and that the dissemination of drugs into the community occurred under the watchful eyes of those who enforced the law. [23]
This submission relates to Sequences 6 and 3. It cannot be accepted in light of the decision in R v DW where RA Hulme J stated: I have no difficulty in accepting that, absent circumstances where criminality has been exacerbated by or at the instigation of authorities, the circumstance that the authorities have been complicit in offending or have prevented drugs from being disseminated into the community, in no way mitigates the subjective criminality of the offender. [24]

Prospects of Rehabilitation and Likelihood of Reoffending - O'Brien

Offender O'Brien prepared a statement for the Court, the contents of which, he affirmed in his evidence. [25] In the statement, Offender O'Brien stated that he is 29 years of age and his parents separated when he was 6 and he went backwards and forwards between his mother and father. His father was a drinker and there was a lot of shouting and screaming between his parents and even today, he has problems hearing raised voices in angry situations. He stated that it was a chaotic life being with his parent which meant a change of school each time he moved between them. He described having 5 sisters and 2 brothers. Some of them live with his mother and others live with his father. His father re-married to his step-mother who had 3 children and his father and step-mother had 2 children together. As a consequence of living with his father, he stated that he was close to his new family, especially to Jade and Shauna, who were his father's 2 children.
Offender O'Brien left school at 15 and a half years of age to do casual work and started an apprenticeship as a carpenter. He completed his apprenticeship over 4 years and worked for a builder for one year, when the recession hit and he was only able to find casual work, building kitchens and driving a delivery van. Consequently on 6 May 2014, he travelled to Australia on a 1 year working holiday visa. After arriving, he approached a Mr Louie Abboud for work. Mr Abboud sponsored him from mid-2014 on a 457 Visa and he worked with him until he was arrested in August 2016. Offender O'Brien stated that he enjoyed working of Mr Abboud and was in a relationship with a friend called Abby from 2015 to 2016. The relationship being broken off following his arrest.
A number of written testimonials were presented to the Court which supported the statements made by the Offender.
Mr Declan Heaney of Upfront Constructions in Dublin, describes Offender O'Brien as working on and off for a number of years and being very enthusiastic and a great time keeper. He described him working well with other contractors and supported the team in getting the job done.
Mr Thomas Buckley, Transport Manager at Buckley Rent-a-Van stated that Mr O'Brien worked for 2 and a half years between December 2011 and May 2014. He describes Mr O'Brien as a hardworking helper on one of the rigid lorries but eventually was promoted to become a driver within 12 months. He stated that he excelled to such degree that he was asked to train new drivers. He states that Offender O'Brien received positive feedback from customers that were surveyed regarding the team of drivers/helpers. Whilst he was surprised and disappointed at the situation that Offender O'Brien found himself in, he indicated that should Mr O'Brien return to Ireland, he would have no hesitation in offering employment with the company or recommending him to another employer. He states that he knows Offender O'Brien and knows that he will endeavour to make up for the distress caused to him and his family in time and can hopefully put the foolishness behind him.
Mr Louie Abboud who sponsored Mr O'Brien on a 457 visa, also spoke positively of his work. It is clear that he had a relationship with Mr O'Brien outside of work. He stated that he trusted Mr O'Brien, even to the point where he undertook an extensive renovation to his parents and developed a warm friendly relationship with his mother which was pleasant to witness over a period of time and he knew that he did not have an family here and he took comfort in making him feel as part of the family. He stated that he witnessed him take on a lot of responsibilities, both at work and in his personal life, including of taking charge of another 3 employees and numerous contractors on site daily. Mr Abboud stated that he observed that he was in a relationship with a girl, which he could see would make Offender O'Brien happy and that he had also bought a new work vehicle. Towards the end of the time, he observed that Offender O'Brien missed days, particularly on Mondays, which was odd, because he was always reliable. He recorded that he spoke to Offender O'Brien after he went into custody and recorded stating:- "I got to know Darren well enough to know that I can honestly say that he would be very disappointed in himself for doing what he did. He would do anything to reverse what he did that day. His life was moving in a beautiful direction and he had beautiful plans settling down and having a family here in Australia which he loved so much and respected."
Offender O'Brien's custodial work history was also before the Court. It recorded that in around September 2016, the offender was employed in maintenance, fitted in well, was polite, self-motivated and a self-starter, looking for tasks and had no issues conforming to routine. It also recorded that he was interested in small projects and maintenance repair jobs and was interested in learning other skills. Offender O'Brien progressed to become a Maintenance Sweeper in 12 Wing where he was observed to be helpful and polite, getting along with fellow sweepers and inmates. He has employed that employment throughout his time in custody and it was noted that he has a good attitude and work ethic that has been at the highest level and that he is respectful to staff and inmates and takes pride in maintenance work around Long Bay Hospital and sets a great example to other inmates. The various references which followed record that he is in a trusted position, a good positive role model and that other workers look up to him.
Various testimonials have also been presented by family members, in particular Valerie O'Brien (Mr O'Brien's step-mother), Ms Karen O'Brien (Mr O'Brien's mother) and Mr Stephen Williams (Mr O'Brien's step father).
It is clear from all of the references that Offender O'Brien has a strong family network. Mr Stephen Williams also records that he is a carpenter by trade and stated that at age 16, Offender O'Brien was a mature and independent and confident young man who knew what he wanted to do with his life. He left school, started his apprenticeship, however following the recession, the building trade was hit badly and he undertook a job as a delivery driver. He recorded that he was hardworking, trustworthy and adaptable.
Support for Offender O'Brien extends also to family friends, including a Mr Darren Armstrong and Mick Harrop.
Mr Ballardie records that Offender O'Brien needs to be referred to a drug and alcohol service for follow-up treatment and support to prevent relapse. In addition to any other services recommended by his drug and alcohol counsellor. Following further assessment he opines that he needs to attend referral to other mental health professionals or services as directed by his treating psychologist and drug and alcohol counsellor. He also recommended psychological strategies to be used by his treating psychologist including cognitive behaviour treatment to treat drug and alcohol addiction and to prevent relapse. In conclusion, he said that he would also benefit from continuing to attend a drug and alcohol program as they provided him with an opportunity to learn and express feelings in a validating group setting. [26]
Offender O'Brien has attended a remand addictions program and the Court has before it a letter of attendance. [27]
Reverend Peter Baines, Chaplian at Long Bay asserts that Offender O'Brien is now able to see how reckless and foolish he was and how fortunate he is to be alive. He expresses the view as follows:- "I am impressed with Darren's openness regarding his criminality and wayward life. I am impressed with his insight into his failings and his desire to change. This openness means that he is much more likely to seek assistance should stressors again arise. He is much better placed to identify, and deal with issues, that in the past have led to "self-medication" using harmful substances. Darren is now enjoying his sober life and all it has to offer. He doesn't want to damage this previous thing." [28]
Overall, I accept that Offender Mr O'Brien is well motivated to address the issues underlying his offending and subject to him doing so he has good prospects of rehabilitation.
Mr Ballardie found the risk of reoffending to be low to moderate, taking into account all of the circumstances and I accept that this so.

Prospects of Rehabilitation and Likelihood of Reoffending - Henry McNab

Offender McNab is also presently 29 years of age and aged 27 at the time of the offences. He was born and raised in Ireland. He was 1 of 3 children and the only son of his parents. His mother, Frances McNab has provided a testimonial along with his sister, Paula McNab. Both describe Offender Nab's years in positive terms, highlighting his supportive family and early passion which Mr Nab had for football to which he excelled, travelling at times, to clubs within Europe. The Prior of Benburb, in a testimonial dated 29 August 2016, testifies to Offender McNab attending Parish Schools in Blakestown. Reverend McGlynn came to know Offender McNab and his family from his time as the school chaplain and curate and parish priest of Blakestown. He described him and his family as helpful, active and supportive in the parish lifestyle.
Between 2009 and 2012, Offender McNab worked as a volunteer coach with the Mountview Boys and Girls Football Club. Mr Mick Harrop of the Executive committee described Offender McNab as having gone on extremely well with is peers and the children that he coached, was always willing assist that extra mile, had a pleasant demeanour and assisted the club at many events. He was described as good natured and dependable and put in above-average effort for a person of his age.
When Offender McNab finished school, he began working for a family business, installing windows and doors. At that time, he played semi-professional football until the age of 21 when Offender McNab described in his own letter to the Court, that a previous hamstring injury ended his dreams of playing professional football.
Jonathan Callaghan of J & F Callaghan Constructions provided a reference, dated 1 September 2017 in which he described the Offender as an employee of a previous company, Glandore Constructions Ltd for a number of years (2 years) and J&F Callaghan Building Contractors for a further 3 years, in part time role. He described Offender McNab as exceptionally honest and hardworking and was impressed with the way in which he approached his work, being always willing to help and dependable. He states that he would have no hesitation in employing him back to the company if the opportunity arose and the company would support him, regardless of the outcome of the case.
According to Ms Paula McNab, the Offender made a decision to become a fitness instructor. When the economy was in severe downturn in Ireland, there were not many opportunities for him to progress and he decided to move to Australia to study and become a fitness instructor/personal trainer. She states that they spent several months researching and planning his career and how to approach the move to Australia.
Offender McNab stated that he first came to Australia in 2010 for 1 year to work and then returned to Ireland in 2011, before leaving again for Australia in 2014 to pursue his studies in health and fitness. There is evidence that in 2011, he participated in Ireland in a 5 month gambling program followed by 12 months of aftercare to address addiction issues. [29] The statement of the Program Manager, Mr Martin states that although Mr McNab struggled for periods of times over the course of his period due to chronic gambling addiction, due to support and commitment, he stopped gambling in 2012 and maintained complete abstinence for a long period of time before he emigrated to Australia.
Offender McNab had first registered to complete a 2 year personal training course in Ireland, however was then encouraged to return to Australia and complete his course there, which he agreed to do. He registered to begin in 2015 through "Sclec Fitness" where he completed his Certificate 3. In October 2015, he was two thirds of the way through Certificate 4.
.I am satisfied that Offender McNab has good insight into the circumstances of his offending and is well motivated to address them. He expressed to Ms Wakely that his time in custody has caused him see 'how lucky I am with family and opportunities.' He expressed to Ms Wakely that he will reside with his family and has opportunities with his brother in law's construction business as soon as he returns. [30]
The evidence of Frances McNab and Paula McNab satisfy me that the Offender has good family support. Furthermore the report rom Maureen Penrose from Blachardstown Family Support in Dublin satisfies me that there is good community support. Ms Penrose stated that; "There are many services available to Harry and many options as to progression on his return to Ireland and to the family home in Blanchardstown. Harry will be welcomed home by his family and would not be excluded in the community. In relation to frug charges, there are local drug services who would be willing to assess and work with Harry to keep him stable and drug free. They include Mulhuddart/ Corduff community Drugs and Alcohol team, and also a full time day programme called the Tolka River Project. At Harry's age, a return to education at third level is do-able as a mature student. In order to retain a balanced approach to living I would refer harry to volunteer his services with Inner City helping Homeless. This group exercises a positive influence on volunteers and also a sense gratitude for the homes and families they themselves are blessed." [31]
Overall I am satisfied that the offender has good prospects of rehabilitation. and the likelihood of reoffending is low to medium depending on his satisfactorily addressing his behavioural issues. [32]

Previous Convictions/ Previous Character

Offender McNab has a record of two previous offences for shop lifting in 2013 and 2014 in respect of which he received monetary penalties.
Offender O'Brien had an offence of contravene an Apprehended Violence Order prohibition/restriction in 2016 and drive with a low range PCA in 2017 respectively. He received a section 10 bond for the twelve months for the first and a monetary fine and disqualification for the second offence.
I accept that both Offenders do not have a significant record of previous convictions for the purposes of s 21A(3)(e) of the 1999 Act.
The Crown conceded that the Offenders may further be regarded as being of previous good character. [33] Overall despite the previous convictions I am satisfied that it is appropriate to proceed on this basis.

Aggravating Factors on Sentence

Offender O'Brien committed the offences whilst he was on bail for an offence, constituting an aggravating matter on sentence pursuant to s 21A(2)(j) of the 1999 Act.
Whilst any breach of conditional liberty is a serious matter, the Crown acknowledged that the offence for which he was ultimately sentenced after his arrest led to the imposition of a bond pursuant to s 10 of the 1999 Act and that the offence was not of a similar kind to that for which the Offender is to be sentenced. Overall while the aggravating matter is established I do not regard it as of significant consequence.

Plea of Guilty

Both Offenders pleaded Guilty in the Local Court and was committed to sentence on 6 April 2017. In these circumstances, it is appropriate for each to receive a utilitarian discount on sentence of 25% in accordance with ss 21A (3) (k)and 22 of the 1999 Act and the principles articulated in R v Thompson; R v Houlton [34] and R v Borkowski. [35]

Remorse

Both offenders have expressed remorse for their offending both to this Court and to through various testimonials and reports submitted. Particularly I note the following.
In Offender O'Brien's case I note the contents Mr Abboud's letter and that of the Rev Peter Baines.
In Offender McNab's case I note that Ms Wakely in her report noted the Offender took full responsibility for his role in his offending and did not attempt to minimise it. Further that he was attempting to utilise his arrest and incarceration as a positive experience, being his arrest would likely stop him from further deterioration and potential harm. [36]
Rev Steve House noted that Offender McNab discussed the charges with him and appears to be extremely remorseful for his actions the pain and stress it has caused his family, friends, loved ones and the community. [37]
I am satisfied that both Offenders are remorseful within the terms of section 21 A (3) (i) of the 1999 Act.

Conditions of Custody

Both Offenders have been in custody since 3 August 2016 to date, on remand in maximum security. The delay in the sentencing being finalised is a matter for which this Court can take into account bearing in mind that there was no suggestion it was of their doing. [38]
The submission was advanced in regard to the state of health of the Offender McNab ought to be taken into account in mitigation. It noted that the offender has significant facial pain and headaches which was reported to corrective services and resulted in admission to hospital.
Dr Kate Johnson reported on 12 October 2017 that the Offender suffered up to 100 attacks of sharp pain radiating down the right side of his face and sometimes followed by throbbing on the right side of the head, lasting several hours. He came to be admitted at the Prince of Wales Hospital in August. Professor Zagmi confirmed that the most likely diagnosis was proximal hemcrania and noted that the MRI Brain Scan during his admission showed the right Trigeminal nerve is in contact with the superior cerebral artery without any deformity or signal changes in the nerves. The significance of this was described as unclear and it may be incidental.
Though a submission was made that the ongoing medical problems for the offender makes his custodial sentence harsher than other prisoners, it was not ultimately contended that this would displace the need for parity between the two offenders.
I bear in mind that the Offenders are Irish nationals. There was no evidence before me as to the offenders' experience as a prisoner. Whilst this is not a factor which in my view requires substantial recognition, some recognition may be appropriate. [39]

SENTENCE

In sentencing both Offenders I have regard to the purposes in s 3A of the 1999 Act. The Offenders need to be adequately punished, made accountable and their conduct denounced. The harm to the community whose laws have been violated must be recognised. General deterrence remains an important consideration in offences of this nature. [40] I accept that the Offenders have to a large extent already been specifically deterred. I do not consider there is any particular need to protect the community from the Offenders and I acknowledge that the sentence must also promote their rehabilitation.
The maximum penalties for the offences the subject of Sequences 2 and 6 were 20 years imprisonment and or 3500 penalty units. There is a standard non-parole penalty of 10 years imprisonment. The maximum penalty for the offence the subject of Sequence 3 is 15 years imprisonment and or a fine of 2000 penalty units.
I have regard to these legislative guideposts.

Commencement of Sentence

Both offenders have been in custody since their arrest. It is appropriate that the sentence in each case commence from 3 August 2016. [41]

Special Circumstances

The Crown did not oppose a finding of special circumstances. It is the Offenders first occasion in custody and both have good prospects of rehabilitation and a low to medium likelihood of reoffending.
Notwithstanding the difference in the subjective grounds of both offenders and the aggravating factor on sentence concerning McNab it was ultimately conceded that it was appropriate for the sentence of both offenders to be the same in accordance with parity principles, [42] so as not to give rise to a justifiable sense of grievance.
Whilst it is acknowledged that the offenders will be deported on completion of their sentence, it is accepted that it is irrelevant as a sentencing consideration in determining the length of the non-parole period, even though there will be no supervision by NSW Community Corrections. On this basis, the Court is not to discriminate against the Offenders. [43]
I am satisfied that a finding of special circumstances is appropriate, bearing in mind the fact that this is their first time in custody, their relative youth and their good prospects of rehabilitation. In setting the appropriate boundaries between the non-parole period and head sentence it is necessary to avoid double counting matters that have already been taken into account in calculating the head sentence. [44]

Totality and Accumulation

The offending involved a discrete time period and overlapping criminal conduct. Nevertheless different quantities and drugs were involved. In the circumstances, I accept that a degree of concurrency is appropriate, in accordance with the principles outlined in R v XX. [45]

Aggregate Sentence

I propose to sentence the Offenders to an aggregate sentence.
In setting an indicative term for sequence 2 I take into the account the offences on schedules to the Forms 1 pursuant to s 32 of the 1999 Act, in accordance with the judgment of Spigelman CJ in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002. [46] In this respect I give greater weight personal deterrence and retribution.
The indicative terms I would have sentenced the Offenders are as follows:
Sequence 6 but for the plea of guilty the indicative sentence would be 5 years imprisonment. In light of the plea the indicative sentence would be 3 year and nine months imprisonment. I would have set a non-parole period of 2 years and three months an additional term of 1 year and six months
Sequence 3 but for the plea of guilty the indicative sentence would be 2 years. In light of the plea the sentence would be 18 months imprisonment
Sequence 2 but for the plea of guilty the indicative sentence would have been 5 years imprisonment. In light of the plea I would have imposed an indicative term of 3 years and nine imprisonment. I would have imposed a non-parole period of 2 year and three months and an additional term of 1 year and six months.
Having regards to principles accumulation concurrency and totality I impose a sentence in the case of each Offender of 5 years and six months imprisonment comprising a non-parole period of 3 years and three months and an additional term of 2 years and three months during which the Offenders shall be eligible to be released to parole

ORDERS

Darren O'Brien 1. You are convicted. 2. Sentenced to an aggregate term of 5 years and six months imprisonment to commence on 3 August 2016 and to expire on 2 February 2022. 3. To serve a minimum term of 3 years and three months to commence on 3 August 2016 and to expire on 2 November 2019. 4. Thereafter to serve an additional term of 2 years and three months from 3 November 2019 to 2 February 2022 during which eligible to be released to parole.
Henry McNab 1. You are convicted. 2. Sentenced to a term of 5 years and six months imprisonment to commence on 3 August 2016 and to expire on 2 February 2022. 3. To serve a minimum term of 3 years and three months to commence on 3 August 2016 and to expire on 2 November 2019. 4. Thereafter to serve an additional term of two years and two months from 3 November 2019 to 2 February 2022 during which eligible to be released to parole.
Each Offenders earliest release date is 2 November 2019.

Endnotes

Hereinafter referred to as the 1985 Act
Hereinafter referred to as the 1999 Act
Crown written submissions at [9].
Jadron v R [2015] NSWCCA 217.
Lamb v R [2014] NSWCCA 50; R v Blare [2015] NSWCCA 78.
Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(3)(j).
Vu v R [2006] NSWCCA 188, [89].
[2013] NSWCCA 159, [56]-[58] (Latham J with whom Simpson J agreed).
Exhibit 1, tab 1, Report of Neil Ballardie, p. 4 at [6.7].
Exhibit 1, tab 1, Report of Neil Ballardie, p. 3 at [6.2].
Exhibit 1, tab 1, Report of Neil Ballardie, p. 5 at [8.2].
WW v R [2012] NSWCCA 165, [58].
See R v Henry (1999) 46 NSWLR 346 (Spigelman CJ).
Exhibit 2, tab 4 at [16].
Exhibit 2, tab 11.
Exhibit 2, tab 4, Report of Kathryn Wakely, dated 9 October 2017 at [48].
Exhibit 2, tab 4, Report of Kathryn Wakely, dated 9 October 2017 at [54].
Exhibit 2, tab 4, Report of Kathryn Wakely, dated 9 October 2017, p. 15 at [78].
Exhibit 2, tab 4, Report of Kathryn Wakely dated 9 October 2017, p. 14 at [76].
Exhibit 2, tab 5, Report of Kathryn Wakely, dated 30 April 2018, p. 15 at [14].
Exhibit 2, tab 4, Report of Kathryn Wakely, dated 9 October 2017, p. 14 at [72].
(2008) 236 CLR 120.
Submissions of Bart Vasic MFI 2 pp 4-5
[2012] NSWCCA 66, [117] (Hall J agreeing).
Exhibit 1,tab 2.
Exhibit 1, tab 1, Report of Neil Ballardie, pp. 5-7.
Exhibit 1, tab 3.
Exhibit 1, tab 4, Letter of Rev Peter Baines, dated 29 August 2017.
See Statement of Teach Mhuire, dated 5 October 2016.
Exhibit 2, tab 4, Report of Kathryn Wakely, dated 9 October 2017, p. 10 at [52].
Exhibit 2 tab 11.
S 21A(3)(g) and (h) of the 1999 Act.
Crown submissions at [14].
(2000) 49 NSWLR 383.
[2009] NSWCCA 102.
Exhibit 2, tab 4, Report of Kathryn Wakely dated 9 October 2017 at [74] also tab, 5 Report of Kathryn Wakely dated 30 April 2018 at [5].
Exhibit 2, tab 10 letter dated 16 June 2017.
In Sabra v R [2015] NSWCCA 38, Bellew J cited with approval the Victorian Court of Appeal decision in R v Schwabegger (1998) 4 VR 649 before continuing at [48].
R v Huang (2000) 113 A Crim R 386, [19] (Adams J).
Jaafar v R [2017] NSWCCA 223; Scott v R [2010] NSWCCA 103.
s 24(a) of the 1999 Act
Lowe v R (2004) 154 CLR 606.
R v Shrestha (1991) 173 CLR 48, 71.
Ho v R [2013] NSWCCA 174, [33].
(2009) 195 A Crim R 38, 52 (Hall J).
(2002) 56 NSWLR 146; [2002] NSWCCA 518.

Amendments 15 October 2018 - Paragraph 146 amended - typographical error 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: 15 October 2018

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