R v Moquet

District Court of NSW|2021-10-21|Before: Ms J

sentence

Mr Rudy Moquet is for sentence in relation to an offence of supply prohibited drugs on an ongoing basis, that being an offence under s 25A of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum penalty of 20 years' imprisonment. Of course the maximum penalty is an important guidepost in the sentencing exercise to which I have had regard. He pleaded guilty at the earliest opportunity and I have allowed a 25% discount upon the sentence that would otherwise have been imposed.

FACTS

The facts are agreed and are as follows. The offender was born on 1 July 1989. He is a French national who has been in Australia since 2018. In July 2020 he was residing in a hostel at Bayswater Road, Potts Point. The offending in this matter involved the offender supplying methylamphetamine and gamma-Butyrolactone to friends that he had made on "Grindr", as well as other people. At all relevant times the offender was using a mobile phone with a number ending in 199. The Cellebrite mobile phone examination conducted by police indicated that between 1 July and 27 July 2020 the offender used messaging services, adopting coded language, in order to arrange and facilitate the supply of methylamphetamine and gamma Butyrolactone. The offender referred to selling the prohibited substances as "food" and "drinks." "Food" was a reference to methylamphetamine and "drinks" referred to gamma Butyrolactone. In total, between 1 and 27 July 2020 the offender agreed to supply or did supply methylamphetamine on 35 occasions totalling 7.75 grams and gamma Butyrolactone on eight occasions, totalling 115 millilitres, the estimated total value of those drugs being not less than $7,730.

Paragraph 8 of the agreed facts sets out some examples of messages exchanged between the offender and his customers, and that is in the form of three tables, as follows: Supply 1 - 1 July 2020 - Time Sender Recipient Text 13:29 61400303086 61478645199 - Rudy How much are drinks? 13:30 61478645199 - Rudy 61400303086 7 13:37 61400303086 61478645199 - Rudy Are they any good? 13:38 61478645199 - Rudy 61400303086 Honestly Yes 13:39 61400303086 61478645199 - Rudy Can I grab like 6, I know only small order, but I am scraping up coins until I get paid tomorrow 13:43 61478645199 - Rudy 61400303086 Yeah ok 14:14 61400303086 61478645199 - Rudy I have $50 14:14 61478645199 - Rudy 61400303086 Good 14:15 61478645199 - Rudy 61400303086 117 Macleay Street 14:28 61400303086 61478645199 - Rudy Ok, coming now. 14:28 61478645199 - Rudy 61400303086 Ok. 14:30 61400303086 61478645199 - Rudy Here 14:33 61400303086 61478645199 - Rudy Just at the front door 21:02 61478645199 - Rudy 61400303086 How was G? 21:42 61400303086 61478645199 - Rudy Amazing 21:43 61400303086 61478645199 - Rudy Thank you

Supply 6 - 11 July 2020 Time Sender Recipient Text 22:05 61421575988 61478645199 - Rudy Do you need cash or pay id 22:06 61478645199 - Rudy 61421575988 I prefer cash cause tonight received a order 22:06 61478645199 - Rudy 61421575988 Wanna try the G? 22:06 61421575988 61478645199 - Rudy Ok will bring cash 22:07 61421575988 61478645199 - Rudy Only like a little g 22:07 61478645199 - Rudy 61421575988 Me too like 1ml 22:07 61421575988 61478645199 - Rudy Ok. Be there soon 22:07 61478645199 - Rudy 61421575988 How many points 22:08 61421575988 61478645199 - Rudy 2 22:10 61478645199 - Rudy 61421575988 150 22:22 61421575988 61478645199 - Rudy 5 minutes away 22:23 61421575988 61478645199 - Rudy What apartment number 22:23 61478645199 - Rudy 61421575988 There is no buzz 22:24 61421575988 61478645199 - Rudy You coming down? 22:24 61478645199 - Rudy 61421575988 now? 22:24 61421575988 61478645199 - Rudy 'Yes' and 'Here'

Supply 33 - 27 July 2020 Time Sender Recipient Text 18:11 61478645199 - Rudy 61400303086 Yeah Chase, how much would you like 18:27 61400303086 61478645199 - Rudy Maybe like $200 worth. How many will that get me? 18:31 61478645199 - Rudy 61400303086 35ml 18:31 61478645199 - Rudy 61400303086 40 because it's you 18:33 61400303086 61478645199 - Rudy Naww, that's awesome. Thank you am getting ready and will head in. Will let you know when on the way 19:00 61478645199 - Rudy 61400303086 Instead of cash can you do payID 19:32 61400303086 61478645199 - Rudy Yeah no worries. Finally ready. Heading to you now 19:40 61478645199 - Rudy 61400303086 I had to leave my place 19:41 61478645199 - Rudy 61400303086 So I put the drink 19:41 61478645199 - Rudy 61400303086 In the tree 19:41 61478645199 - Rudy 61400303086 Just payID me 19:41 61478645199 - Rudy 61400303086 When you got it 19:42 61400303086 61478645199 - Rudy Ok sweet as, will do. Is that tree at the main front door? 19:42 61478645199 - Rudy 61400303086 Watch the video

As the substances agreed to be supplied or actually supplied were never seized, weighed or tested, there is no proof beyond reasonable doubt that the substances supplied or agreed to be supplied were in fact prohibited drugs.
However, the offender, in his record of interview with police, made full admissions and believed he was, and purported to be, agreeing to supply and supplying prohibited substances. The weight or purity is not able to be established beyond reasonable doubt because the substances were never seized or tested and it is common for the actual weight supplied to be a bit less than what the buyer has requested. These are matters that are set out, as I said, in the agreed facts.
It was on Friday 22 January 2021 that the offender, who was at Kings Cross police station for an unrelated issue, was approached and placed under arrest for the supply of prohibited drugs. He was interviewed by police and made full and frank admissions, and gave explanations to the police about his involvement in the agreement to supply prohibited drugs and in the actual supply of prohibited drugs for financial gain. He admitted to police that the mobile phone number was used by him and that he was the person engaging in communications about agreeing to supply and actually supplying drugs. He openly explained different code words that he had used in his communications.
In his interview, he also made numerous references to his own significant drug use, and there were messages which indicated that he was using drugs as well as supplying drugs. He also told police that he was in financial difficulties and engaged in the supply of prohibited drugs because of those difficulties and also to fund his own drug habit. Those are the agreed facts upon which he is to be sentenced.

OBJECTIVE SERIOUSNESS

It is important that I make of course an assessment of the objective seriousness of the particular offence before the Court. The maximum penalty of 20 years' imprisonment for the offence is a clear indicator that it must be regarded as serious. The courts of this country have for many years said that drug offences, and in particular drug supply offences, must be treated very seriously. However, it is important that in assessing the objective seriousness I make an assessment of the particular circumstances of this offence. There mere fact that the offence is one of ongoing supply does not, in itself, make it more serious than, for example, a single episode of supply: Kennedy v R [2020] NSWCCA 49 at paras 35 to 38. Rather, it is important that I make an assessment of the objective seriousness of the particular offence before the Court.
The ongoing supply offence in this case occurred over a period of about 27 days, but involved fairly small amounts of drugs on each occasion. However, while the offence under s 25A can be made out by just three or more occasions of supply during a period of 30 consecutive days, in this matter there were more than 30 occasions on which such supplies or agreements to supply occurred.
On the other hand, and as noted in the agreed facts, the substances supplied were never seized, tested and weighed and there is no proof, therefore, beyond reasonable doubt that the substances supplied or agreed to be supplied were in fact prohibited drugs.
The significance of this part of the facts was a matter that I raised with the parties in oral submissions, and it was agreed that I should approach the various supplies of drugs on the basis that the offender believed that actual drugs were being supplied, but that there is no evidence as to the quality or purity of those drugs. In those circumstances, it is appropriate, in my view, to approach the various supplies on the basis that they did involve actual drugs of the kind intended to be supplied, but that their purity or quality was not high. This conclusion (that actual drugs were supplied) is supported, to some degree, by the fact that several of the persons to whom drugs were supplied were "repeat customers." Given the absence of any testing, however, I have assumed that the drugs were generally in the lower range of purity.
While there was some degree of coded conversation used, that is, the reference to "drinks" and "food" that I have referred to earlier, it was very unsophisticated and cannot, in my view, be described as involving planning or organisation. I regard the offence, therefore, as being a very unsophisticated one man operation in which the offender supplied small quantities of drugs of relatively low purity, as and when opportunities arose, and that those opportunities involved at least 13 separate customers.
As the Crown submitted, there is no evidence that the offender was an up line supplier and no evidence that there were any other participants in the enterprise, other than the customers to whom I have referred. There is also no evidence that the offender had access to or ever sought to market large quantities of these drugs. The Crown submitted that the objective seriousness falls below the mid-range, while the offender submitted that the objective seriousness was above the low range and, presumably, well below the mid-range. While there is not a lot of difference between these two positions, it seems to me that the objective seriousness falls comfortably below the mid-range and towards the lower range.
While not relevant to objective seriousness, the offending is aggravated because the offender was at the time on bail for a charge of reckless wounding, for which he was later sentenced to a Community Correction Order.

SUBJECTIVE MATTERS

Turning to subjective matters relating to Mr Moquet. Those subjective circumstances have been placed before the Court by means of a Sentencing Assessment Report, a psychological report and the offender's evidence on oath. He is 32 years of age and is a French national who has been living in Australia for three years on a working visa. He relocated here in 2018 with his brother and a friend. At the time of committing the offence before the Court, he had no prior criminal convictions. However, since the offending occurred, he has been convicted and fined for shoplifting and placed on Community Correction Orders for stealing property in a dwelling and for reckless wounding.
The psychological report of Ms Watson was admitted in evidence and the offender gave evidence affirming the history and other matters contained in it. The report describes a difficult upbringing as a child in a dysfunctional home environment in which the offender's mother and stepfather were frequently violent towards him. The offender, in his evidence, said that he was punched in the face at one stage by his "father", which I think was a reference to his stepfather, and also was hospitalised with a broken arm after being pushed downstairs by his mother. The psychological report also records that at about age 9 the offender was sexually abused on an almost nightly basis by a step uncle over a period of about three months, and that he still experiences unresolved feelings about this time in his life.
The offender fled from the family home when he was about 15 years old, due to the continuing physical abuse, and he then lived in a refuge for about five years. Since leaving school in France he has completed a course in hospitality and was consistently employed in the hospitality industry in France, and in Australia, until he lost his employment in March 2020 due to Covid restrictions. The offender commenced using drugs such as cocaine, ecstasy and GHB from about age 20, basically on a weekend binge basis. Since being in Australia he has had a similar pattern of using these types of drugs, with some drug free periods, but after losing his job in March 2020 he relapsed to daily use of methamphetamine and this continued during the period of his offending.
The Sentencing Assessment Report notes that the offender is single and has no dependents. He told the author of that report that at the time of his offending he was living between hostels and the homes of friends. The Sentencing Assessment Report confirms that the offender had lost his employment from about March 2020 due to Covid restrictions and that this had been the main motivator for his offending, given his concern that he would end up living on the streets. He told the author of the Sentencing Assessment Report that this was what led to his offending and that, as a foreign national, he had no other means of supporting himself after losing his job. He also reported to the author of the report that he had a history of drug use from his late teens and that, in the lead-up to his offending, he was using illicit drugs on a daily basis, which involved about $200 per day.
It was submitted on the offender's behalf that his childhood background of domestic violence and the absence of responsible parental support was such that the principles discussed by the High Court of Australia in Bugmy v R [2013] 249 CLR 571 should be applied in this case. In that case the High Court said that because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving full weight to an offender's deprived background in every sentencing decision. Of course, and as the High Court acknowledged, while an offender's exposure to violence and deprivation will in some cases reduce moral culpability, there will be other cases in which an offender's inability to control their recourse to criminal conduct may increase the importance of protecting the community from the offender.
The Crown, quite fairly, indicated in oral submissions that it did not wish to be heard in opposition to a finding that Bugmy principles are engaged in this case. In my view, those principles are applicable in Mr Moquet's case. His background, in my view, involved significant deprivation of the emotional and physical care that he should have received as a young child. He should have been nurtured and supported by his parents, but he was not. He should have been safe when being looked after by members of his extended family, but he was sexually abused, and he should have been cared for in a family home with loving and supportive parents until he chose to leave and look after himself. But instead he had to flee the family home when he was only 15 and live in a government refuge for five years, a matter which is confirmed by a certificate from the Gardera Care Institution of France.
His was not a normal childhood. Whether or not his background amounts to "profound" deprivation as referred to in the Bugmy decision is a matter on which reasonable minds might differ. However, as has in recent times been said, there is no "magic" in the word "profound" and it is not necessary to fit an offender's childhood within that term before the Bugmy principle is engaged: see Hoskins v R [2021] NSWCCA 169. In my view, the offender's childhood can be described as involving very significant neglect, trauma and abuse. In my view, that background reduces his moral culpability to a significant degree.
While the abuse of drugs almost always involves some level of choice, it seems to me that the offender's childhood background, his loss of employment due to the pandemic, and his relative isolation in Australia, when taken in combination, provide relevant context around his offending which, in my view, arose from need and not from greed. As I have said, I consider that his childhood background and the difficult circumstances of the pandemic which precipitated his offending to some degree, are such that his moral culpability is reduced to a significant degree.
I have considered whether, on the other hand, the offender's background of deprivation means that the importance of protecting the community needs to be given greater weight, such that the offender's childhood background should not lead to any reduction in sentence. However, given the offender's lack of any criminal history in France, and his limited criminal history in Australia, I do not consider that he is generally a person who presents a significant risk to community safety.

REMORSE

The offender made full and frank admissions to police on his arrest and openly explained different code words that he used. He has expressed regret and remorse to the psychologist and took full responsibility for his offending without excuse or justification. He took a similar approach in his evidence in this Court, saying that his offending had potentially ruined people's lives, just like ice had ruined his life. I accept in this matter that there is significant and genuine remorse.

FUTURE RISK

The offender has been assessed under the LSI-R test as being a medium risk of reoffending. However, the Sentencing Assessment Report also notes that the offender acknowledged the need to address mental health issues that affect him. He is willing to undertake intervention to address his offending and he had some insight into the impact of his offending. In my view, the offender's risk of reoffending depends, firstly, on whether he can avoid drugs and excessive alcohol. It is positive that he says he has had no drugs while in custody and that he feels better for it. His risk will also depend, secondly, on whether he can obtain and commit himself to psychological counselling to give him the coping strategies he needs in order to deal with the effects of a most difficult childhood, in which he did not get the love and support that he should have. In this regard, it is also positive that the offender said he wants to start therapy when released and is interested in an apprenticeship in hairdressing. I assess his prospects of rehabilitation and avoiding further offences as reasonable, but at this stage uncertain, given that the real test will be once he is released.

DETERMINATION

I convict the offender of the offence under s 25A. I have taken into account the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999. I am satisfied that a period of full-time custody is the only appropriate penalty in this case. I impose a term of imprisonment of two years. I have given consideration to whether that sentence ought to be served by full time custody or whether it is more appropriate to order that it be served in the community by means of an Intensive Correction Order.
Section 66 of the Crimes (Sentencing Procedure) Act 1999 provides in part that community safety must be the paramount consideration when deciding whether to make an Intensive Correction Order. It also provides that when considering community safety I must assess whether making the order or ordering that the sentence be served by way of full-time detention is more likely to address the offender's risk of reoffending. In making these assessments, I must also consider the purposes of sentencing set out in s 3A and any relevant common law sentencing principles, as well as any other matters I consider relevant.
I have considered community safety. However, as I have already observed, I do not consider that the offender is generally a person who presents a significant risk to community safety. I have also considered the important purposes of sentencing set out in s 3A, including the need for adequate punishment, personal and general deterrence, the need to denounce the conduct and make the offender accountable for his actions, and to recognise the harm caused by his offence. I have also taken into account the importance of promoting the rehabilitation of the offender, which in my view is a significant consideration in this case.
Having balanced these various matters, I am of the opinion that the offender's risk of reoffending would be better addressed by the imposition of an Intensive Correction Order. In making this assessment, I have taken into account the fact that the offender has already spent more than nine months in custody and that this has occurred during the current pandemic, with its associated lockdowns, restrictions on contact with family and friends, and limitations on work and studies that this has involved for persons held in New South Wales prisons.
I am conscious of the suggestion set out in the Sentencing Assessment Report that because of this conviction the offender may be of interest to the Department of Immigration. Whether or not he will be permitted to remain in this country once released from prison is therefore a matter that remains to be seen. However, the question of whether or not the offender will be deported is not a matter that I can take into account in sentencing.
Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999, I order that the term of imprisonment of two years be served by way of an Intensive Correction Order in the community. That will be subject to a number of conditions. The first are standard conditions. Firstly, that the offender not commit any offence. Secondly, that he submit to the supervision of a Community Corrections officer. I impose two additional conditions. The first additional condition is that the offender undertake counselling or treatment for drug and alcohol abuse as directed by Community Corrections. The second additional condition is that the offender undertake such other counselling or treatment as directed by Community Corrections.
The offender is to report to the city office of Community Corrections within seven days. I recommend that Immigration authorities give favourable consideration to any application by the offender to remain in Australia, assuming he wishes to do so. In my view, the offender's prospects of rehabilitation would be enhanced by permitting him to serve the terms of his Intensive Correction Order in New South Wales, and those prospects would be likely diminished if he is deported from this country against this wishes.
Mr Moquet, I have imposed a period of imprisonment of two years. However, I have ordered that you serve that period in the community under an Intensive Correction Order. That means that the papers for that Intensive Correction Order will be sent, as I understand it, to where you are located and once you enter into that order by signing it, you will be eligible for release from your current custody.
Whether you are taken into custody by Immigration authorities or not, I don't know, and I don't have any say in relation to that. But, as you have heard, I have made a recommendation that if you wish to remain in Australia that favourable consideration be given to that wish. Whether that carries any weight with the Immigration authorities is a matter for them to decide. I will order that a copy of my remarks on sentence be transcribed.
So, Mr Moquet, you must understand that if, indeed, you are released into the community, that you will be subject to this Intensive Correction Order for two years from today, and if you were to breach any of the conditions of it then you will be taken into custody and you would serve the remainder of the term of two years, do you understand?
OFFENDER: Yes, your Honour.
HIS HONOUR: I have ordered that you undertake counselling, drug and alcohol and any other counselling. So if you're directed to do that you must do that as directed, otherwise you will be in breach of the order and you are likely to be taken into custody. I note that an application was made by the Crown for me to make a drug proceeds order under the Confiscation of Proceeds of Crime Act 1989. The making of such an order is opposed by the offender and I note that further written submissions on this topic were sent to the Court yesterday evening and were seen by me only this morning. What I intend to do is I will consider those further submissions and I will deliver a decision in relation to this issue on Monday, 1 November, that's this coming Monday. Anything to raise, Ms Crown, Mr Woolf?
ROGERS: Your Honour, just in relation to my friend's further submissions, I would just note that whilst the Crown has particularised an amount in the application, your Honour is not bound by the specific amount sought by the Crown. Once the application is made under the Act it's a matter for your Honour to make the assessment of any such value.
So if your Honour takes issue with the amount specified by the Crown as suggested by my friend in his written submissions, that does not mean that the application fails. It is a matter for your Honour to make an assessment based on the information before the Court as to the value of the benefit, and then once that assessment is made your Honour must make an order. The section is not discretionary.
And I would also note for your Honour's assistance, which is something that I'm sure your Honour is aware of, that as these are civil proceedings the standard of proof is on the balance of probabilities.
HIS HONOUR: Yes, thank you, Ms Crown. I'm conscious of the submissions you've made, which are issues that I have some concern about, but one of the difficulties in my making an assessment is that there is really no material that's been placed before me from which I can - for instance, purchase price of the drugs that were being supplied that would assist me in making the assessment, and I am effectively left almost with making a guess about it.
Anyway, I note that Mr Woolf has put in these additional submissions this morning and so if there's any wish by the Crown to put anything further in response to that, then that should be done within 24 hours by written submissions to my associate, all right?
ROGERS: Yes, your Honour.
HIS HONOUR: And as I've said, I'll deliver a decision on Monday next at 9.30am. Mr Moquet does not have to appear on that occasion and I'm content - Mr Woolf, if you're in agreement that the Crown appearing on your behalf just to receive the decision, but if you wish to appear electronically also then that's also not a problem.
WOOLF: Thank you, your Honour.
HIS HONOUR: All right, so you understood all that Mr Moquet?
OFFENDER: Yes, your Honour.
HIS HONOUR: All right, thank you. Sorry?
SPEAKER: I have understood everything, too.
HIS HONOUR: Right, very good. Mr Moquet, I wish you well in your future.
OFFENDER: Thank you very much. Good day, your Honour.
HIS HONOUR: The Court will adjourn.

Amendments 17 February 2022 - Removed text stating that tables would be inserted into the judgment when published. 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: 17 February 2022

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Judgment (12 paragraphs)

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Cases Cited (2)