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[2024] ACTSC 364
Supreme Court of the ACT
2024-11-15
Taylor J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: R v Merrilees (No 2); DPP v Merrilees Citation: [2024] ACTSC 364 Hearing Date: 29 October and 14 November 2024 Date of Last Submission: 14 November 2024 Decision Date: 15 November 2024 Before: Taylor J Decision: See [142]. Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – trafficking in a commercial quantity of a controlled drug – where offender absconded from Australia for nine years – delay of offender’s making – history of non-compliance with court orders – mental health diagnoses relevant to offending – where offender spent period in immigration detention before extradition – pre-sentence custody relevant to totality only – sentence of full-time imprisonment imposed CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Breach of Good Behaviour Order – whether to impose suspended sentence or re-sentence – charges of perjury and possessing a drug of dependence for sale or supply – error of law in initial sentence – offender had achieved some rehabilitation during intervening period of absconsion – re-sentenced Legislation Cited: Crimes (Sentence Administration) Act 2005 (ACT) s 104, 110, 116 Crimes (Sentencing and Restorative Justice) Amendment Act 2016 (ACT) Crimes (Sentencing) Act 2005 (ACT), ss 7, 12(1), 63 Criminal Code 2002 (ACT), ss 602(e), 603(7), 702(1) Criminal Code Regulation 2005 (ACT), sch 1 Drugs of Dependence Act 1989 (ACT) s 164(2)(c) Cases Cited: Alimundin v McCarthy [2008] NTCA 7; 23 NTLR 102 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Bui v The Queen [2015] ACTCA 5 Burge v McCarron, Vincent & Tanner [2011] ACTSC 87 Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 DPP v Le [2024] ACTSC 31 DPP v Wright [2023] ACTSC 196 Fusimalohi v The Queen [2012] ACTCA 49 Guy v Anderson [2013] ACTSC 5 Hawkins v Hawkins [2009] ACTSC 148; 3 ACTLR 210 Henry v The Queen [2019] ACTCA 5 Taylor v The Queen [2014] ACTCA 9 Higgins v The Queen [2022] ACTCA 26 Hili v The Queen [2010] HCA 45; 242 CLR 520 Islam v The Queen [2014] ACTCA 2 Laipato v The Queen [2020] ACTCA 35 Lawrence v The Queen [2007] ACTCA 10; 1 ACTLR 158 Marai v R [2023] NSWCCA 224 McIver v The King [2023] ACTCA 48; 20 ACTLR 303 Mill v The Queen [1988] HCA 70; 166 CLR 59 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 NC v The Queen [2017] ACTCA 31 Ngata v The Queen [2020] ACTCA 18 R v BC [2020] ACTSC 308 R v Blanco [1999] NSWCCA 121; 106 A Crim R 303 R v Chatfield [2021] ACTSC 352 R v Donald [2013] NSWCCA 238 R v Harmouche [2020] ACTSC 194 R v Kelly (No 2) [2021] ACTSC 253 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 R v McCallum [2020] ACTSC 15 R v Merrilees (Unreported, Australian Capital Territory Supreme Court, Higgins CJ, 11 June 2013) R v Nchouki [2022] ACTSC 227 R v Pahl [2022] ACTSC 113 R v SP [2004] ACTCA 16; 149 A Crim R 48 R v Todd [1982] 2 NSWLR 517 R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 R v Verdins [2007] VSCA 102; (2007) 16 VR 240 Sayer-Jones v The King [2024] NSWCCA 73 Scook v The Queen [2008] WASCA 114; 185 A Crim R 164 Parties: Director of Public Prosecutions (Crown) Gregory Jason Merrilees (Offender) Representation: Counsel K McCann (DPP) A Williamson SC (Offender) Solicitors ACT Director of Public Prosecutions Coda Law a(Offender) File Number: SCC 287 of 2024 ACTCA 37 of 2013 TAYLOR J: Introduction
Background
It is necessary to first set out the background to this matter.
The offender was sentenced by Higgins CJ on 11 June 2013 for a charge of aggravated perjury and a charge of possessing a drug of dependence for the purpose of sale or supply (SCC 141 and 24 of 2012, R v Merrilees (Unreported, Australian Capital Territory Supreme Court, Higgins CJ, 11 June 2013) (Merrilees)). The drug offence was committed in breach of a suspended sentence order imposed for an offence of driving a motor vehicle with level three alcohol in his breath, as a repeat offender (the PCA offence) (CC2011/4118). The period suspended, being four months of imprisonment was imposed by Higgins CJ. The offender was sentenced a total sentence of three years of imprisonment.
His Honour directed that the sentence be served in the following way: nine months of the sentence was to be served by fulltime imprisonment, a further nine months was to be served by periodic detention and the remaining 18 months of imprisonment was suspended upon the offender entering a good behaviour order for three years and six months. I observe here that ‘periodic detention’ was a sentence of imprisonment previously provided for by the Crimes (Sentencing) Act 2005 (ACT) (the Crimes (Sentencing) Act) now unavailable, the enabling provisions having been repealed by the Crimes (Sentencing and Restorative Justice) Amendment Act 2016 (ACT) in 2016.
An appeal was lodged in respect of that matter. The appeal was ultimately discontinued. As a result of the stay imposed on the sentence for the purposes of the appeal, the dates of the offender’s sentence required amendment. On 19 August 2014, Murrell CJ made orders by consent, adjusting the sentence and giving effect to the original orders.
The index offence (CC2016/2384) was committed on 26 June 2015 and first appeared in the ACT Magistrates Court on 4 March 2016. On 15 April 2016 a warrant was issued in the ACT Magistrates Court for the offender arising from his failure to appear in that court.
The matter was listed before Murrell CJ on 2 February 2017 for the purposes of dealing with an alleged breach of the good behaviour order imposed by Higgins CJ. The offender’s alleged breach was set out in an affidavit of a Corrective Services Officer Bestmann dated 17 November 2016. The breach was alleged to be by virtue of unsatisfactory compliance and engagement with the supervision requirements of the good behaviour order. The offender did not attend the 2 February 2017 listing and Murrell CJ issued a warrant under s 104 of the Crimes (Sentence Administration) Act 2005 (ACT) (the CSA Act) for the offender’s arrest.
As will become clear, the reason for the offender’s non-compliance with the obligations of the good behaviour order and for his failure to attend court on various occasions was that he left Australia and absconded to Thailand after the summons was issued requiring his attendance at court on 4 March 2016.
Facts in relation to the index offence
On 25 June 2015, police were granted search warrants by a deputy registrar of the ACT Supreme Court in respect of the following: (a) The offender, Gregory Merrilees; (b) An address in Lyons; and (c) Southern Cross Health Club in Phillip.
At about 9:50am on 26 June 2015, police attended Southern Cross Health Club located in Phillip to execute the warrant. During the execution of the search warrant, a number of documents were seized relating to the offender’s membership and the hiring of locker number 57.
Police opened locker 57 and all other lockers in the area. In locker 57, police found a plastic tub containing weight training supplements. The locker directly above it was locker 42. Police forced entry to this locker and located a black ‘Adidas’ sports bag containing $3,550 in Australian currency and a plastic container which contained a plastic bag of white powder, suspected of being cocaine. Police seized these items.
At about 10:50am on 26 June 2015, police forced entry the offender’s address in Lyons. Upon entering the unit, police located the offender in the ensuite adjoining the main bedroom. He was observed to be flushing plastic bags containing white powder down the toilet. Police observed numerous plastic bags and white powder on the floor of the ensuite.
The offender was removed from the ensuite and shown a copy of the warrant. He was cautioned and provided with his rights in accordance with Part 1C of the Crimes Act 1914 (Cth).
During the digital record of conversation, the offender stated: (i) There was cocaine stored in the top drawer of his bedside table; (ii) The cocaine is for personal use; (iii) There was about eight grams in the drawer; (iv) He uses about three grams a week; (v) He bought half an ounce (14 grams) for $3,000; (vi) The white powder in the ensuite was cocaine; (vii) There was a couple of grams there, also for personal use; (viii) He spilt the cocaine on the ensuite floor when he flushed it down the toilet; (ix) He thinks he flushed about 3.5 grams; (x) He flushed it because he could hear police entering the house; (xi) He knows cocaine is illegal; (xii) He denied selling cocaine; and (xiii) He has supplied it to friends “a long time ago”.
At the time, in the ACT, cocaine was selling for an average of $300-350 per gram.
The offender claimed to be using 3 grams a week, and earning $1200 from his employment as a carpenter. He had no other sources of income and was paying $250 a week in rent.
During the search warrant, police seized cocaine from the offender’s bedside table drawer, as well as the ensuite, floor, toilet and sink area.
During the record of conversation, police also informed the offender they were executing a search warrant at Southern Cross Health Club. The offender stated the following in relation to the warrant: (i) He is a member of the Southern Cross Health Club; (ii) He hired a locker there but doesn't know the number; (iii) He trains at the gym every day; (iv) He usually stores a gym bag and a pre-trainer powder in his locker; (v) He denied knowledge of the powder and cash found in the locker above his; and (vi) He does not have access to other lockers.
Sentencing considerations
Nature and circumstances of the offending
The substantial maximum penalty for this offence reflects the gravity attached to the trade in controlled drugs other than cannabis. It is on any view serious criminal activity. There is a range of conduct that can establish the offence. The nature and extent of the conduct engaged in by an offender will necessarily inform the objective seriousness of the offence.
In this jurisdiction, and indeed elsewhere, observations have been made as to the utility of categorising the objective seriousness of an offence by reference to “low”, “mid” or “high” range. Nonetheless, an assessment of where the conduct sits on the spectrum from the least serious example of the offence to the most serious example, is an important consideration. I have approached the task of assessing the objective seriousness of this offence by identifying the features of the conduct engaged in by the offender that inform it: see R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 at 108 [24] and Laipato v The Queen [2020] ACTCA 35 at [156].
The factors relevant to an assessment of the objective seriousness of drug trafficking offences were outlined in Bui v The Queen [2015] ACTCA 5 at [41]: (a) The role of the accused is an important consideration, those whose level in the operation is at a higher level of the hierarchy being more culpable: MacDonnell (2002) 128 A Crim R 44 at 50; (b) While, as decided in Wong v The Queen at 609; [67]-[70], the weight of the amount of drug is not of chief importance in determining the appropriate sentence, it remains a relevant factor, particularly in the context of the harm from its distribution effects: R v Bezan (2004) 147 A Crim R 430 at 438; (c) The motivation for the offence is highly relevant, the purpose of profit being a more serious matter: R v Speechly (2002) 133 A Crim R 26 at 30; R v Day (1998) 100 A Crim R 275 at 277.
In this instance, the offender trafficked in cocaine by virtue of s 602(e), that is, he trafficked cocaine on the basis that he possessed it with the intention of selling any of it.
Role of the offender
The prosecution conceded that the characterisation of the offender as a “street level dealer” was revealed by the circumstances of the offending, submitting “there is no evidence capable of establishing where the offender sits in any hierarchy, noting the lack of trafficking indicia”. This was not an especially sophisticated or well organised example of individual drug trafficking. The facts that make up the offending revealed that the offender was in possession of a trafficable quantity of cocaine and an amount of cash. In addition, he admitted to supplying cocaine to some friends “a long time ago”.
The offender was himself using cocaine at the time of the offending. This does not undermine or excuse the seriousness of his conduct but does provide some context. The offender’s preparedness to supply cocaine forms part of the trade in controlled drugs that contributes to the harm caused by the use of such drugs. As I observed in DPP v Le [2024] ACTSC 31 at [31], “the sum of the smaller parts” is the capacity for a drug business to successfully operate. The success of a drug operation driven by profit relies on the preparedness of “street level dealers” to supply the drug to others.
Quantity and value of the trafficked drugs
The total amount of cocaine seized was 70.049 grams. Schedule 1 to the Criminal Code Regulation 2005 (ACT) provides that a trafficable amount is over six grams and under three kilograms. The amount possessed by the offender is considerably more than the lower amount and substantially less than the upper amount.
There is no information as to the purity of the cocaine and accordingly this is not a factor that influences an assessment of the seriousness of the conduct engaged in by the offender.
According to the agreed statement of facts, at the time of the seizure, cocaine was selling in the ACT at around $300 to $350 per gram, putting the value of the seized cocaine between $21,014.70 and $24,517.15; a not insignificant sum.
Motivation for the offending
Subjective circumstances
Pre-Sentence Report
The offender reported a “normal” upbringing to the author of the pre-sentence report despite his parents’ separation and his eventual estrangement from his father. He reported his relationship with his mother had slowly declined due to her mental health and dementia, resulting in him not having had contact with her for the past nine years. He had similarly not had substantial contact with his three siblings over the last 10 years. He is currently single and reported difficulty in maintaining romantic relationships long term.
The offender left formal schooling after Year 11 to pursue an apprenticeship. He held various employment positions until 2013. He had a period of unemployment until 2016 when he absconded to Thailand, which he reported was for the purpose of pursuing an investment opportunity. He informed the report author that he has since purchased an investment property in Thailand and generates an income through leasing the property as well as working as a personal trainer in a local gym.
The offender disclosed a history of problematic alcohol use that began when he was 12 years old. He reported his alcohol consumption gradually increased until he was drinking eight standard drinks per day in the period following his incarceration in 2015. He advised that his alcohol consumption over the past 12 months had been limited to a couple of drinks per day. The report author noted that previous service records demonstrated a history of problematic illicit substance use, consisting of cannabis and methamphetamine use as a teenager and occasional cocaine use throughout adulthood, typically up to once every two weeks. The offender also disclosed a history of using steroids, using injectable steroids twice per week. He reported not having used cocaine since absconding in 2016 and that his drug use was generally limited to the consumption of Valium.
The offender agreed with the statement of facts. He claimed that his decision to move to Thailand was unrelated to his criminal charges and his upcoming court dates. He told the author of the pre-sentence report that he had not intended to ever return to Australia. In relation to his offending, he claimed to have been motivated by finances and his former peer group. The report author formed the view that the offender minimised and justified his behaviour to some extent, stating that he did not think of himself as a street dealer as he only sold “organic” drugs to his friends. The report author ultimately concluded that the offender’s insight into the negative impact of his offending and decision to abscond was limited.
The report author noted that the offender had a history of poor compliance with community-based orders which would be further compounded by his apparent lack of pro-social support in Australia.
Psychological report
The report produced by Ms Frew canvassed the offender’s upbringing and his relationships with his parents and siblings. The offender described his parents’ separation as having had a substantial detrimental effect on his mental health as a child and young person. In particular, the offender detailed the significant effect upon him of the debilitating depression his mother suffered after her marriage ended which left him largely without parental supervision or role models from the age of 11 onwards.
The offender was regularly employed after leaving school and worked as a sole contractor in commercial construction in the years before he left Australia for Thailand. He reported being in a good financial position in Thailand although was concerned about his assets while in Australia. He has two French bulldogs which he was distressed about leaving in Thailand under the care of a friend.
The offender reported he has had “limited” contact with any family members except his sister while in Thailand, stating his mother has dementia and they have not spoken in a long time, and his other siblings are “busy with their lives and kids”.
The offender reported he had turned to heavy drug use after a previous relationship breakdown which had an impact upon his business, and that he had attempted suicide twice in his thirties. The offender reported only using cocaine three times in the past nine years while in Thailand and that he only drank alcohol socially.
Ms Frew considered there was a connection between the offender’s upbringing and adolescent experiences and his offending, in particular his attitude towards the offending. Ms Frew wrote that the offender initially connected the reason for the offending to his personal belief that drug use should not be controlled by the government and that he believed he was being a good friend by providing “safe” drugs for his friends. Ms Frew identified the offender’s fractured relationship with his father and subsequent resentment towards authority, as related to his inability to connect his conduct to broader concepts of public safety and drug regulation.
Ms Frew considered the offender’s experience in the Thai immigration detention centre had led to new insight into the offending, citing the following statement from the offender: I now realise I should not have sold coke to my friends; it was irresponsible. I now understand what can happen to people when there are not enough rules to keep people and the government in line.
Ms Frew recorded that the offender had been exposed to numerous traumatic events, both in his childhood in the form of abandonment by his father and his mother’s mental ill-health, and more recently when he was in the immigration detention centre in Thailand.
Ms Frew diagnosed the offender with Autism Spectrum Disorder (ASD), with a moderate severity. She relied on the offender having reported periods of becoming non-verbal, after attempting suicide and while in the detention centre, as well as observations of his blunt communication style. She considered he had difficulties with understanding social relationships particularly romantic relationships, citing statements made by the offender about his rigid expectations for his female partners. She also considered he had a history of obsessional interests in technical skills and systems, as well as dogs. The offender reported having meltdowns in school where he would spin on his chair, pace or jump.
Character references
References were tendered on behalf of the offender from his mother, sister, brother-in-law, and a friend. All the references noted that the authors had not been regularly in touch with the offender for many years since he had moved to Thailand. The references generally attested to the offender’s hard-working nature and good character, as experienced by them when the offender was still regularly in their lives. The references provided further context to the nature of the offender’s upbringing and the struggles he has had with mental ill-health and drug use.
The offender’s sister described that their mother’s depression weighed heavily on the offender, noting that he had spent some time as an in-patient receiving psychiatric treatment when he was a young man. The offender’s sister described the offender as hard-working, responsible and with a sense of familial duty. The offender’s mother acknowledged the impact of her mental health struggles on the offender when he was a teenager and confirmed the significant impact the offender’s father leaving had on the family. She described the offender as kind, compassionate, with career ambitions and a strong work ethic. The offender’s brother-in-law who was also a long-term friend, described the offender as dependable and trustworthy, and indicated his awareness of the offender’s mental health struggles over the years.
The offender’s friend Mr Bieniasz confirmed his support for the offender including that the offender could reside with him if released into the community, and further that he would assist the offender to find employment. Mr Bieniasz indicated that if the offender engaged in criminal activity he would not hesitate to report him to police as he would not jeopardise his own employment and family.
Remorse, responsibility and rehabilitation
To the extent that he is able, I accept that the offender has demonstrated some remorse. His capacity to express remorse, viewed through the prism of the unchallenged conclusions of Ms Frew as to the influence of his ASD, is somewhat limited. This is consistent with views expressed by the author of the pre-sentence report as to the offender minimising and justifying his actions.
While initially reflecting little insight, as recorded by Ms Frew the offender did accept his conduct to be “irresponsible” and acknowledged that he should not have supplied drugs. The offender attributed some of the shift in his mindset to his experience of the conditions in the Thai immigration detention centre.
The offender’s ASD was considered by Ms Frew to “causally explain Mr Merrilee’s offending to a moderate extent”. The connection was made by reference to the offender’s use of cocaine as driven by his experience of finding “social interactions overwhelming” in the context of people with ASD being “more vulnerable than the general population to using substances to cope with reality”. I have already accepted that the offender’s cocaine addiction was a factor motivating his offending conduct.
The more substantial connection Ms Frew made was between the offender’s diagnosis and his conduct in deliberately avoiding prosecution for the offending by relocating to Thailand. Ms Frew described this as the offender perceiving the move to Thailand as the “path of least resistance to reduce his distress”. Ms Frew concluded: If Mr Merrilees did not have Autism, he may have been able to think about adjusting his plan concurrent to feeling emotional about the arrest, to end up making the right decision to remain in Australia for the charges.
The Court of Appeal in Higgins v The Queen [2022] ACTCA 26 at [40] confirmed that which had been observed in Ngata v The Queen [2020] ACTCA 18 at [18] as to the application of R v Verdins [2007] VSCA 102; (2007) 16 VR 240 and the necessity for there to be a “real or causal connection between the impairment and offending”. The offender submitted that his ASD should “operate to significantly moderate the assessment of his moral culpability”.
To the extent, first, that the offender’s cocaine addiction was explained by his ASD and secondly, that the trafficking offence was motivated by his cocaine addiction, I am satisfied there is a material connection between the offender’s ASD and the offending.
I do not consider that this connection warrants a reduction in the offender’s moral culpability to the extent he submitted. The offender’s moral culpability should be moderated though not to the extent that it should result in a significant reduction in the weight to be afforded to general deterrence and punishment.
The offender sought to invoke the principles in Bugmy v The Queen [2013] HCA 37; 249 CLR 571, arising from the difficulties he experienced upon the breakdown in his family unit with his father’s abandonment and the subsequent debilitating effect upon his mother. The effect upon her saw the offender left largely without parental boundaries, discipline or structure and I accept this negative childhood experience sheds some light on the attitudes that enabled his offending conduct. The requirement to afford this negative childhood experience “full weight”, in this instance does not operate to moderate to any significant degree the offender’s moral culpability nor the need for punishment, denunciation and deterrence.
Pleas of guilty
Criminal history
Time in custody
The offender has been in custody in Australia solely in relation to the index offence and the breach matters since 2 August 2024 when he was apprehended by the Australian Federal Police (AFP) at Sydney Airport and taken into custody. This time in custody will be taken into account in the sentence I impose.
The offender was detained in Thailand by immigration officials on or around 29 May 2024. He was then held in immigration detention in Thailand until he was returned to Australia. I am obliged to take into account any period in which the offender has been in custody “in relation to the offence”: s 63(2) of the Crimes (Sentencing) Act. The Act does not define “custody” or “in relation to the offence”. The Court of Appeal in McIver v The King [2023] ACTCA 48; 20 ACTLR 303 (McIver) considered the power to backdate a sentence contained in s 63 and held at [87] that “the words ‘in relation to’ are broad in meaning” citing Hawkins v Hawkins [2009] ACTSC 148; 3 ACTLR 210 at [8] and Alimundin v McCarthy [2008] NTCA 7; 23 NTLR 102 at [24], before confirming, “[i]t is not necessary for the presentence custody to be exclusively referable to the crime for which the offender is being sentenced”.
McIver also stands for the proposition that presentence custody can nonetheless be taken into account by a sentencing court where it is determined not to have been “in relation to the offence”, at [104]-[105]: 104. It may be accepted that s 63 of the Sentencing Act is not an exclusive statement of the circumstances in which presentence custody may be taken into account by a sentencing court. Many of the purposes of sentencing may be impacted where an offender has served a period of imprisonment prior to the offence for which they are being sentenced: s 7 of the Sentencing Act. It is well open to a sentencing court to take these matters into account: see similarly Hampton at [31]. In addition, in considering the application of principles of totality, a court may take into account prior custody in respect of unrelated offending: Mill v The Queen [1988] HCA 70; 166 CLR 59. Generally speaking, where presentence custody is relevant for these purposes, it will be taken into account by the sentencing court as a part of the determination of the appropriate sentence to be imposed, rather than as a backdating or other similar accounting of “days served”. 105․ However, although presentence custody for unrelated offending may be taken into account when considering the offender’s subjective case and issues of totality, we do not consider that time spent by an offender in custody for wholly unrelated offending should be taken into account in and of itself as “time served”. The criticisms of such an approach in New South Wales authority considered above, and by Weinberg JA in Karpinski are well-founded.
This is consistent with observations by Court of Appeal in Islam v The Queen [2014] ACTCA 2 (Islam) where the possibility of taking a presentence period of immigration detention not referable to the offence into account as part of the application of the totality principle, was considered at [31]: In these circumstances, there is no need to pursue the question of the first period spent in immigration detention and whether it should have been taken into account for totality purposes. However, we should say that we are not convinced by the respondent’s argument that since that period could not have been taken into account by the SAB in cancelling Mr Islam’s parole, it could not be taken into account, in recognition of the totality principle, in determining for instance the concurrency and accumulation as between the two sentences. The SAB does not exercise a sentencing discretion, and does not concern itself with matters such as totality. The fact that the SAB could not take account of a particular matter in cancelling an offender’s parole has in our view no necessary implication for the exercise of the sentencing discretion conferred on a judicial officer.
Wright
Nchouki
The offender in this matter was sentenced, amongst other charges for one count of trafficking cocaine, being a combined amount of 408.8 grams of cocaine. The offender had a problematic history of alcohol and illicit substance abuse but was assessed by Mossop J as having genuine desire to rehabilitate himself with good prospects for doing so. He had a limited criminal history. His offending was motivated in part by his addiction to cocaine and accrued drug debts. He was sentenced to 2 years of imprisonment reduced from 2 years and 6 months imprisonment for his plea of guilty, to be suspended after serving 4 months. Pahl
The offender pleaded guilty to one count of trafficking cocaine, along with four other firearms related offences. The trafficked amount was 352.28 grams of cocaine and indicia of drug trafficking was located. The offender was classified as a user-dealer and “sold for both financial gain and so as to support his habit”. Justice Mossop found that the trafficking offence was of low objective seriousness. The offender had an ongoing addiction to cocaine and had engaged in some rehabilitation in this respect. He expressed insight into and regret regarding his offending. The offender had a limited criminal history. An intensive correction order was imposed to reflect the offender’s prospects of rehabilitation. He was sentenced to 19 months of imprisonment reduced from 2 years of imprisonment for the plea of guilty, to be served by way of an intensive correction order with a community service work condition.
Harmouche
McCallum
In this matter the offender was sentenced for trafficking 405.85 grams of cocaine amongst other offences. Other indicia of trafficking was discovered. The offender had previously been involved in the Comanchero Outlaw Motor Cycle Gang but the offender maintained his offending was independent from that organisation. This membership was nonetheless relevant to his character though he appeared to be taking steps to distance himself and towards rehabilitation. Chief Justice Murrell considered the offender was involved at the lower end of a drug distribution chain. He had a substantial drug addiction and experienced significant childhood deprivation. The offender was afforded a discount of 25 per cent for his plea of guilty. For the offence of trafficking cocaine, he was sentenced to 22 months imprisonment. The total sentence of imprisonment was to be served by way of an Drug and Alcohol Treatment Order. Breach matters
The index offence was committed while the offender was subject to a suspended sentence order. This is a circumstance of aggravation, the offender having betrayed the opportunity extended to him to serve a period of imprisonment the community.
The suspended sentence order imposed on 11 June 2013 was in relation to the following offences: (a) CC2011/6252: aggravated perjury contrary to s 702(1) of the Criminal Code with a maximum penalty of 1 400 penalty units, imprisonment for 14 years or both. (b) XO 2013/30020: possession of a drug of dependence for the purpose of sale or supply to another contrary to s 164(2)(c) of the Drugs of Dependence Act 1989 (ACT) with a maximum penalty of 500 penalty units, imprisonment for 5 years or both.
The drug offence was committed in breach of a suspended sentence order imposed upon the offender on 7 September 2011 in relation to the PCA offence (CC2011/4118). The suspended period of imprisonment, being four months, was “activated” by Higgins CJ.
The offender was sentenced in the following way: (i) For the aggravated perjury offence: 2 years of imprisonment. (ii) For the possess drug of dependence for sale or supply offence: 15 months of imprisonment. (iii) For the breach of suspended sentence order: 4 months of imprisonment.
The sentences were structed to produce a total period of three years of imprisonment. Six months of the period imposed on the possess drug of dependence for sale or supply offence was concurrent with the aggravated perjury period of imprisonment, and one month of the breach period was concurrent with the period of imprisonment imposed for the possess a drug of dependence for sale or supply offence.
The sentencing orders directed the sentence be served in the following way: The first 9 months served by full time imprisonment, the second 9 months by way of periodic detention to commence on 18 February 2014 and the remainder of the sentence to is to be suspended upon the offender entering into a good behaviour order for a period of 3 years, 6 months.
The original offences (i) Aggravated perjury
(ii) Possession of a drug of dependence
This offence involved the exchange of amphetamines for money on numerous occasions. Chief Justice Higgins observed in Merrilees: It was clearly a business, albeit I accept it was not a very high-profile business and whether it allowed for a profit I cannot say in terms of any particular level of profit, but certainly some level of profit would seem to have been the intention, particularly as Mr Merrilees was not himself, it would seem, addicted or an habitual user of methamphetamine. This is not to say that he did not have other drug problems, but it was not that one. (iii) The breach offence
The facts of the offence committed in breach of the suspended sentence order are outlined above at [11]-[24]. Significantly, this offence also involved the possession and supply of an illicit substance. Principles
In Kelly Refshauge AJ at [15] outlined the following factors as relevant to the question of whether to impose the suspended sentence or re-sentence: (a) the proportion of the Good Behaviour Order served before the breach occurred. (b) the rehabilitation achieved in the time during which the Good Behaviour Order has been served. (c) the prospects of further rehabilitation. (d) the relative seriousness of the offence, or offences, which constituted the breach of the Order, and, in particular, whether imposing the suspended sentence would be disproportionate to that seriousness. (e) whether the breaching offence, or offences, is, or are, of similar conduct. (f) whether the breach is, or breaches are, so serious as to show a disregard of the need to be of good behaviour. (g) whether the offender has been warned of the breaches, especially if they are not breaches constituted by further offending. (h) the offender’s level of understanding of the obligations and the terms of the Good Behaviour Order and of the consequences of the breach. (i) the nature of judicial and community resources previously devoted to the offender. (Citations omitted).
Relevant to those factors, the offender submitted the following: (a) supervision was not tailored with the offender’s then undiagnosed ASD in mind; (b) the offender was addicted to cocaine at the time of the breach; (c) while the breach offence was committed relatively early on in the GBO the offender had been subject to conditional liberty and supervision in relation to the offences from 2010; (d) the original offences and the breaching offence involve the sale of drugs and the perjury charge is of a different nature; (e) the offender has very good prospects of rehabilitation and has led a pro-social life in Thailand; (f) the offender did not receive any warning in relation to breaching the GBO and that while he was aware of the consequences of breaching a GBO, the move to Thailand was already planned, referencing Ms Frew’s commentary on the decision making process behind the move (to which I have referred at [62]); and (g) minimal judicial and community resources have been devoted to the offender.
The prosecution emphasised the fact that the breaching offence occurred while the offender was on a good behaviour order for similar offences involving the sale and supply of illicit drugs and occurred relatively early on in the period the offender was required to be of good behaviour. The prosecution conceded that the decision to re-sentence may depend on what is ultimately made of the offender’s prospects for rehabilitation and his recent diagnosis of ASD which was accepted to be a relevant subjective circumstance.
Determination
The purposes of sentencing to which I must have regard are set out in s 7 of the Crimes (Sentencing) Act. The purposes of sentencing of particular significance in this matter are punishment, general deterrence, accountability and rehabilitation. Trafficking in illicit substances facilitates the harm that arises from the use and supply of those substances. That harm extends beyond the often paralysing effect of drug use on the lives of individual users and includes the misery visited upon their families, friends and communities who for the most part, helplessly bear witness. Indeed the offender himself is an example of the spiral into crime and chaos that drug use can generate. The Court of the Appeal’s approval of the primary judge’s observation, in Lawrence v The Queen [2007] ACTCA 10; 1 ACTLR 158 at 161 [6] is apposite: [D]rug dealing is a blight upon the Australian community and it seems to me that the consideration for general deterrence require that a custodial sentence, a full-time custodial sentence, be imposed.
The prosecution submitted that the seriousness of the offence demanded a period of full-time imprisonment be imposed. The offender submitted the offending fell to the lower end of the spectrum of objective seriousness and that the question of whether a sentence of full-time imprisonment ought to be imposed was “finely balanced”, submitting a sentence either fully suspended or partially suspended with a short period of imprisonment, would be the most appropriate outcome in the circumstances.
In my view, only a sentence of imprisonment will give proper effect to the purposes of sentencing and reflect the seriousness of the offending. I turn then to a consideration of how that sentence ought to be served.
I have accepted that there is a basis to be cautiously optimistic about the offender’s prospects for rehabilitation. That optimism is tempered by the offender’s history of non-compliance with community-based orders and the absence of a plan for treatment of his mental health condition and his ASD. I do not consider the support available to him from family and friends to be an entire answer to that history or to those mental health conditions.
Against the background of several sentencing outcomes from this Court to which I have referred, and pursuant to s 34AA of the Crimes (Sentencing) Act, the offender submitted that a sentence in the vicinity of six months of imprisonment would be appropriate. The prosecutor contended that the submission ought to be approached with some caution given the select nature of the comparable sentences put forward as analogous in support of the period nominated. As the prosecutor pointed out it is uncontroversial to acknowledge that offences contrary to s 603(7) have been the subject of sentences that include community-based sentences as well as substantial sentences of full-time imprisonment. This range is consistent with variances in the subjective circumstances and objective seriousness of matters that come before the Court.
Orders
I certify that the preceding one hundred and forty-two [142] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor. Associate: A Turner Date: 15 November 2024
R
Merrilees
(2007) 16 VR 240
The offender was arrested by Thai immigration officials on 29 May 2024 and placed in a Thai immigration detention centre before being deported back to Australia. On 2 August 2024 the offender was arrested on the outstanding warrants at Sydney airport. The offender has been remanded in custody since his arrest.
Accordingly, the outstanding breach of the June 2013 sentencing orders by virtue of the fresh offending and non-compliance must be dealt with in these proceedings pursuant to s 110 of the CSA Act.
At about 1:00pm the search warrant was complete, and the offender was informed he would receive a summons to attend Court at a later date.
On 24 August 2015, police received the results of the analysis of the suspected drugs located in the offender’s residence. The result of the analysis revealed the substance contained cocaine and levamisole. The weight of this seizure was 17.614 grams.
The results of the analysis of the suspected drugs located at the Southern Cross Health Club revealed the substance contained cocaine and levamisole. The weight of this seizure was 52.435 grams.
The plastic bag containing the cocaine was forensically examined and a DNA profile was obtained, from which the offender could not be excluded.
Ms Frew considered the ASD diagnosis explained the offender’s drug use and association with drug users, explaining that people with ASD often seek the alleviation of social anxiety that drugs provide. She further identified that drug “sub-cultures” have specific expectations, a language, and rituals and considered this would have contributed to the offender’s desire to “fit in” and socialise. She also considered the offender’s ASD explained the pride he took in being able to provide his friends with cocaine. Ms Frew ultimately concluded that the offender’s ASD, as well as his background of neglect, causally explained his offending to a “moderate extent”.
Ms Frew connected the offender’s lack of remorse or demonstrated insight into the offending, to ASD, concluding that expressing or articulating remorse would be difficult for the offender. She considered his stated change in beliefs about the offending was demonstrative of some insight or remorse, within his capacity.
Ms Frew also diagnosed the offender with post-traumatic stress disorder (PTSD) with dissociation, borne of his experience in the Thai immigration detention centre where he reported he witnessed human suffering, overcrowding, disease and medical neglect, limited food, filth, death, forcible detainment and poverty. He reported remaining partially non-verbal and unable to sleep since returning to Australia. Ms Frew considered this condition would require medication and psychological treatment.
Ms Frew explained that a full-time custodial sentence would weigh more heavily on the offender due to his diagnosis of ASD. She noted the offender had nominated himself as being too vulnerable to be placed in the community and expressed a preference to being sentenced to a period of imprisonment and that he did not wish to compromise his capacity to return to Thailand. She considered the structure and routine associated with incarceration would be beneficial for the offender while an unstructured sentence in the community would lead to boredom, frustration and a sense of uselessness which would be a risk factor for substance abuse and re-offending. She considered support from the National Disability Insurance Scheme (NDIS) might ameliorate these risks.
A supplementary report from Ms Frew dated 28 October 2024 was also tendered. Upon reviewing additional material, namely character references from the offender’s family and friends that demonstrated that the offender would have access to pro-social supports, stable accommodation and employment, Ms Frew determined it would be in the offender’s interests to serve a sentence in the community. She considered he would be of low risk of re-offending given the support from his family and a friend. She also considered that having received confirmation of support from his family after a long period of no contact, the offender now felt safer to serve a sentence in the community rather than in custody. She noted it would be of benefit for the offender to access supports such as the Disability Support Pension (DSP), the NDIS and a regular general practitioner if released into the community.
I am satisfied that the offender has demonstrated some remorse which is a significant consideration in the assessment of his prospect for rehabilitation: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at 169-170 [41]. Rehabilitation operates to protect the community against the prospect of future reoffending. In this matter, an assessment of the offender’s prospects for rehabilitation is not straight forward.
The offender deliberately fled to Thailand and has spent the better part of a decade there. He went to Thailand in the knowledge that he had obligations to fulfill arising from the suspended sentence already imposed upon him and after he had been arrested in relation to the index offence. The offender frankly conceded that he had no intention of ever returning to Australia. His action represented a deliberate abrogation of responsibility where he now submits to the Court that he is prepared to take responsibility for his offending and further, that he is now capable of attending to any obligations that might be imposed upon him as part of the sentence imposed. I accept that his ASD contributed to some extent to his decision to flee the country. Nonetheless, it was a decision motivated by the intention to deliberately avoid criminal sanction. The offender harbours a desire to return to Thailand and resume his life there.
During the sentencing proceedings I enquired about the information available as to the circumstances of the offender being deported back to Australia. The Crown prosecutor helpfully undertook to make those enquiries, the result of which was the provision of information upon which I do not consider I can place any weight. Accordingly there is no evidence that the offender engaged in any criminal activity or anti-social conduct while living in Thailand.
The circumstances of the offender’s removal from Thailand being unknown, I make no finding that the offender was removed arising from concern about his conduct while in Thailand. The offender had been living in Thailand for a significant period and prior to May 2024 had not come to the attention of the authorities there sufficient to warrant his removal.
The offender did not give evidence in the proceedings, though consistently described to Ms Frew and the author of the pre-sentence report that he was a pro-social member of the expatriate community in Thailand, including that he worked as a personal trainer and that he had an investment property and legitimate business interests. The offender stated he has been abstinent from drugs for the last nine years to the author of the pre-sentence report, though did disclose to Ms Frew that he had used cocaine on three occasions while in Thailand.
There is no basis upon which to reject the position advanced by the offender as to the overall positive nature of the progress he has made in the nine years he was in Thailand. The offender, I am satisfied, has achieved a level of rehabilitation.
That said, the offender’s recent ASD diagnosis together with what I have accepted to be its connection to his offending conduct, in the absence of treatment or a plan for treatment, does raise the need to consider it in the context of rehabilitation.
The offender’s ASD was identified as a causative factor in the decision he made to avoid responsibility by leaving the country. While Ms Frew has made suggestions as to appropriate treatment options in the community, no plan or proposal for treatment has been put forward to further underpin the offender’s rehabilitative prospects. Initially Ms Frew was concerned that a sentence served in the community would expose the offender to “unstructured time” which she considered to be a “risk factor for substance use and re-offending”.
Ms Frew reconsidered this opinion in her supplementary report and determined the offender to have some capacity for rehabilitative progress in the community. She placed reliance on the social and familial supports now available to the offender, reflected in the references tendered on his behalf, in reforming her opinion. As Ms Frew notes apart from these proceedings, these were not supports the offender had recently drawn upon. Indeed they were supports available to him at the time he engaged in the offending and at the time he determined to move to Thailand. The material revealed that the offender has not had substantial contact with his Australian family or friends since his move to Thailand and in more recent times had only had limited contact with his sister.
This is not an observation as to the willingness of those who care for him to support him. I accept that the authors of the references are genuinely desirous of assisting the offender. But the capacity of those supports to meaningfully assist the offender are, to an extent, limited by the effect of the offender’s untreated ASD in circumstances where it contributed to his reluctance to face the consequences of his actions and to his offending. Ms Frew identified the availability of accommodation and the potential for employment as positive factors. I accept they address to some extent, Ms Frew’s concerns about “unstructured” time in the community.
For many years now the offender has avoided the consequences of his failure to comply with a community-based sentence and of his further drug related offending. The offender did not return to Australia voluntarily to resolve these outstanding proceedings. The offender’s capacity to remain in the community, take responsibility and fulfil any obligations imposed upon him remains largely untested.
Nonetheless I consider that there is a foundation for cautious optimism as to the offender’s prospects for rehabilitation. That said, the offender’s history of non-compliance evidenced by his long-term avoidance of consequences, connected to his recently diagnosed and untreated ASD, requires a regime of support and accountability for the offender when he is released back into the community.
Elsewhere, the Court in Islam considered error had been demonstrated where the sentencing judge had given no explanation for ignoring periods of presentence immigration detention which were directly referable to the offence, as well as other periods of presentence custody when sentencing the offender. The Court concluded the error was “perhaps best characterised as a failure to have regard to relevant considerations”: at [26]. While not the subject of argument in the appeal the Court noted at [7] that the prosecution had conceded that a period of immigration detention pending trial “should be accounted for in the backdating” of the sentence.
The NSW Court of Criminal Appeal in Marai v R [2023] NSWCCA 224 per Sweeney J at [60]-[84] (Kirk JA agreeing and Fagan J also agreeing though differing as to the extent of the backdating) identified numerous cases where, pursuant to s 63(2) statutory equivalents, periods in immigration detention have been taken into account as presentence custody before concluding at [83]: So it can be seen that there have been a range of approaches by courts to taking immigration detention into account on sentence. Some sentencing courts have allowed credit for the full period of immigration detention, particularly, as in Dadash, where the sentencing judge took the view that the offender was in immigration detention because he had been prevented from being returned to his home country by the prosecution requiring that he be kept in Australia pending the disposition of his criminal proceedings. Generally, although not always, the courts have required a nexus between the immigration detention and the offence to take it into account in the sentence. That is, they have approached the question in terms of the provisions in the sentencing legislation, whether the offender’s immigration detention was “in relation to” the offence for sentence. Otherwise, relevant factors seem to have been fairness and transparency in the sentencing process, and construing the sentencing provisions broadly to achieve those aims.
The offender conceded that the precise detail of the reason for his detention by Thai immigration officials are not known to the Court. Accordingly, he could not submit that the period from 29 May 2024 until being taken into custody in Australia on 2 August 2024 was “wholly referable” to this offence. The offender submitted that “it would be surprising if the AFP did not speak to Thai officials and inform them of his prior convictions in Australia and the outstanding warrant”. Accordingly, the offender submitted a reasonable inference could be drawn that the existence of the Australian warrants “played a role” in the immigration detention such that I could conclude the period in immigration custody was “in relation to the offence”. Notwithstanding that I accept broad meaning should be given to the words used in s 63(2), I am not satisfied that there is sufficient evidence before me such that the inference the offender invites me to draw, could be properly made.
Undoubtedly the time the offender spent in immigration detention in Thailand was restrictive and burdensome. The unchallenged description of the conditions experienced by the offender while in immigration detention were harrowing enough to have left him with PTSD, and I accept, to have had a deterrent effect upon him.
The offender has been denied liberty since 29 May 2024. I consider it fair and reasonable to take the period of immigration detention into account in considering the application of the totality principle and in determining the overall sentence to be imposed. Delay
Plainly, many years have passed since the offender committed the offences and the first appearance of the matter in the ACT Magistrates Court. In certain circumstances delay can be a factor that warrants an element of leniency: see R v Donald [2013] NSWCCA 238 at [49], citing Scook v The Queen [2008] WASCA 114; 185 A Crim R 164 at [31]- [34] and [59]-[64]. See also R v Blanco [1999] NSWCCA 121; 106 A Crim R 303 (Blanco), R v SP [2004] ACTCA 16; 149 A Crim R 48, NC v The Queen [2017] ACTCA 31 at [77] and Sayer-Jones v The King [2024] NSWCCA 73 per N Adams J (with whom Leeming and Campbell JJ agreed).
The delay was not caused by any failure of investigating or prosecuting authorities, or by a delay in court processes. The delay is entirely explained, and was plainly occasioned by, the offender’s choice to leave the country and thereby avoid prosecution. The delay was not such that the offender was kept in a “state of suspense” (Blanco at [17]) or was operating on the basis that there would be no action in relation to the offending in which he had engaged.
The observations of Refshauge J in Fusimalohi v The Queen [2012] ACTCA 49 at [12] (Burns and Lander JJ agreed as to the outcome though expressed no view on this aspect of the appellant’s circumstances) are apposite: It is relevant to note that, while the sentencing occurred over four years after the first of the offences for which he was sentenced, over two years of that time elapsed because Mr Fusimalohi had failed to appear to answer his bail and had not thereafter surrendered to police or the Court but was only returned to Court when he was arrested. He cannot, therefore, rely on the delay resulting in him being sentenced for stale offences as any matter of mitigation because it was a result of his own actions. As Angel J, with whom Martin CJ agreed on this issue, said in Braham (1994) 73 A Crim R 353 at 365, “[c]ourts are careful not to encourage absconding by affording leniency in relation to it”. Indeed, as was said by Sheller JA, with whom James and O’Keefe JJ agreed, in R v Trad [2003] NSWCCA 213 at [58], an offender who absconds after pleading guilty will ordinarily receive a reduced benefit for the plea of guilty.
As I have noted, the offender absconded before entering a plea of guilty to the offence but otherwise his Honour’s analysis is relevant. I am not satisfied that considerations of fairness to the offender because of the delay, of the kind encouraged in R v Todd [1982] 2 NSWLR 517, have application to this matter. I do not consider that the delay in this matter warrants the extension of leniency to the offender.
I have accepted that the offender has achieved of a degree of rehabilitation during the delay and weight should be afforded to that purpose of sentencing. Current sentencing practice
No sentencing outcome is a precedent. Sentencing statistics and comparable cases do not define the possible range of available sentences nor do they place a cap on the upper or lower ranges of possible sentences: see Hili v The Queen [2010] HCA 45; 242 CLR 520 at 537 [54] and Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at 445 [51]-[53].
The offender drew the Court’s attention the following sentencing outcomes imposed for offences contrary to s 603(7) of the Criminal Code. The offender contended that these outcomes could be distinguished from the present case in regard to the seriousness of the offence, the amount trafficked and the subjective circumstances of the offender; contending the offender’s case was more favourable. Those outcomes were: DPP v Wright [2023] ACTSC 196 (Wright), R v Nchouki [2022] ACTSC 227 (Nchouki), R v Pahl [2022] ACTSC 113 (Pahl), R v Harmouche [2020] ACTSC 194 (Harmouche), and R v McCallum [2020] ACTSC 15 (McCallum).
The offender completed the nine months of full-time imprisonment and the nine months of periodic detention.
The suspended sentence order imposed by Higgins CJ and adjusted by Murrell CJ, was breached in two ways. First, by the commission of the index offence and secondly, by the offender’s failure to engage in supervision. The effect of the breach is that the offender remains liable to serve a total of 18 months of imprisonment.
Where an offender breaches a good behaviour order that was part of a suspended sentence order, the Court must cancel the good behaviour order and either impose the suspended sentence or re-sentence the offender pursuant to s 110(2) of the CSA Act. There is no presumption in favour of the imposition of a sentence that was suspended: Guy v Anderson [2013] ACTSC 5 at [83]-[87]; R v BC [2020] ACTSC 308 at [35].
The good behaviour order expired some time ago. The expiration of the good behaviour order does not prevent action in relation to the breaching conduct: s 116 Crimes (Sentence Administration) Act; see R v Chatfield [2021] ACTSC 352 at [96].
I must have regard to the facts of the original offending and the conduct establishing the breach: R v Kelly (No 2) [2021] ACTSC 253 (Kelly).
Ordinarily for the reasons emphasised by the prosecution, and considering the factors identified in Kelly, this is a matter where it would be appropriate to impose the outstanding period of imprisonment. However, the circumstances here are not ordinary because of the significant period that has elapsed and that the offender now presents to the Court with two factors not present when he was originally sentenced. First, he has been diagnosed with two mental health conditions that were not known in 2013 and secondly, he has achieved a degree of rehabilitation.
Imposing the sentence in this instance would not take account of the circumstances now known to the Court. Re-sentencing the offender allows the entirety of those circumstances to be considered.
There is another factor which favours re-sentencing the offender and it concerns the nature of the orders originally made. Respectfully, I consider that there is room for doubt about whether the sentences imposed by Higgins CJ were imposed according to law. His Honour imposed individual periods of imprisonment with respect to all three offences. He then made a global suspended sentence order with respect to all three offences. I do not understand the Crimes (Sentencing) Act to make provision for the imposition of a general or global sentencing order covering more than one offence: Burge v McCarron, Vincent & Tanner [2011] ACTSC 87, unreported 26 May 2011 at [33]-[34]. Section 12(1) of the Crimes (Sentencing) Act, which provides for the imposition of a suspended sentence order, applies the section to circumstances where the court convicts an offender for “an offence” and imposes a period of imprisonment for “the offence”.
While his Honour referred to the start date of the sentence and indicated the extent of concurrency as between the three offences, the order directing how the total period of imprisonment should be served purports to apply to all three offences generally. It is not immediately apparent on the face of the order how the 18 months of imprisonment remaining under the suspended sentence order is referable to each of the three offences. Helpfully the Crown prosecutor suggested a mathematically accurate construction of the remainder, but ultimately the doubt I have about the global nature of the order, lends weight to the appropriate course in this instance being a resentence.
On re-sentencing the offender, I consider that there is a basis to depart from the sentence originally imposed for the drug offence noting that the offender’s ASD informs to some extent the offender’s motivation for that offence, though the offence was in relation to a drug the offender was himself apparently not using. The offence of aggravated perjury was a serious example of the offence and I consider the original sentence was just and appropriate. The circumstances of the breach of suspended sentence order imposed on the PCA offence warranted the imposition of the four months of imprisonment originally suspended.
It would be plainly unjust to resentence the offender to actually serve any more than 18 months of imprisonment in addition to that already served in relation to the breach matters. The sentence imposed arising from the re-sentence will need to be crafted to reflect the nine months of full time imprisonment and nine months of periodic detention that the offender successfully completed, as well as the period he has spent in custody since 2 August 2024. The mechanism to do this is to backdate the sentence. This will result in a somewhat artificial result in that the sentence will record the offender as having been in custody in relation to the offences at a time when he was not in fact in custody. The parties agreed this was unavoidable in the circumstances, in order that the offender be given credit for the portion of the total sentence that he has already completed.
To be clear, I will take into account that as at today, the offender has effectively already served 21 months and 14 days in custody referable to the offending he now stands to be sentenced for.
While the index offence in this instance was not an especially serious example of the offence, it was committed when the offender was subject to a suspended sentence order for similar offending; a circumstance not replicated in any of the sentencing outcomes relied upon by the offender, referred to [96].
The offender did not seek assessment for an intensive correction order. The offender submitted that a sentence of imprisonment immediately suspended which did not impose any supervision obligation upon him, permitting him to return to Thailand, would be an appropriate outcome. Immediate suspension of the sentence imposed would, in my view, by unduly lenient and fail to give effect in particular to the need for punishment, accountability, denunciation and deterrence.
I accept that by virtue of the offender’s PTSD, which is a permanent, life-long condition, his experience of a full-time custodial environment will be made more difficult, and further that arising from his ASD he “is more vulnerable” than other detainees and is made “prone to being socially manipulated by people with conning personalities”.
I acknowledge that the offender appears to have built something of a positive life for himself in Thailand and returning there may ultimately be in his and the community’s interest. The offender’s capacity to return to Thailand is entirely unknown; so much was conceded by him. As I have already observed the offender’s capacity to be in the Australian community is largely untested, with no substantive plan proposed for any treatment for his PTSD or his ASD. With the prospect that on his release the offender will not be permitted to enter Thailand, I consider supervision necessary to protect the community and to assist the offender with personal challenges that remain unaddressed and which contributed to his offending conduct.
The history of non-compliance, together with the uncertainty as to the offender’s resolve to comply with community-based obligations, weigh against the offender being again extended the opportunity to serve periods of imprisonment in the community. I consider the rigour that attends to parole supervision to be what is required. The supports available to the offender will undoubtedly be of assistance when he presents to the parole authorities.
In re-sentencing the offender for the breach matters and the index offence I must fix an appropriate sentence in each case and then consider concurrency and cumulation, and totality. The overall sentence I impose must reflect the total criminality involved in the conduct and be “just and appropriate” in all the circumstances: Mill v The Queen [1988] HCA 70; 166 CLR 59 at 63 [8].
The index offence being entirely separate offending to the breach matters, substantial concurrency as between them is not warranted. I consider that a degree of concurrency as between the breach offences is warranted though not to a degree that substantially departs from that originally afforded. The application of the totality principle will see some reduction in the total sentence imposed on the breach matters which I consider to be appropriate in the circumstances as they now exist.
I am required to set a non-parole period. The relevant principles in relation to non-parole periods have been discussed in Henry v The Queen [2019] ACTCA 5 at [33]-[37] and Taylor v The Queen [2014] ACTCA 9 at [19]. I have had regard to those principles. The setting of a non-parole period involves a consideration of the sentencing purposes contained in s 7 of the Crimes (Sentencing) Act. I bear in mind that the non-parole period is the period that justice requires that the offender be actually incarcerated: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at 139-140 [57]. In determining the appropriate non-parole period I have had regard to the seriousness of the offences, the rehabilitative prospects of the offender and the overall period the offender has already spent in a custodial environment.
On the charge of trafficking in a controlled drug other than cannabis, the starting point for the sentence is 12 months of imprisonment, reduced to 9 months of imprisonment in recognition of the plea of guilty.
I find the offender to have breached the good behaviour orders imposed on the breach matters and accordingly the good behaviour orders must be cancelled.
The appropriate sentence for the offence of aggravated perjury is 2 years of imprisonment.
The appropriate sentence for the offence of possess a drug of dependence for sale or supply is 12 months of imprisonment.
The appropriate sentence for the PCA offence is 4 months of imprisonment.