R v Rispen

District Court of NSW|2018-11-01

REMARKS ON SENTENCE

The Offender Darren Ronald Rispen has pleaded guilty to five charges of supplying a prohibited drug which is not less than a large commercial quantity contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (the '1985 Act'), together with one charge of cultivate prohibited plant not less than a large commercial quantity contrary to section 23(2)(a) of the 1985 Act. In sentencing the Offender in respect of these offences, I have also been requested to take into account charges relating to Forms 1 in respect of sequences 39, 41 and 36.
According to the agreed facts tendered, [1] in 2001 Michael Bell was introduced to the Offender by Vanessa McGrath, the sister of the Offender's partner, Tracy McGrath. In the following years, Bell was involved with the Offender in the supply of cannabis and Bell was a "runner" to the Offender's contacts in the Campbelltown area. From early 2003, Bell and the Offender went into business together and were engaged in the enhanced indoor cultivation of cannabis. As part of that operation, Bell and the Offender set up a company called "Amazing Outdoor Construction". Registered to that company was a table top truck, which was modified by the Offender to contain a secret, concealed trundle tray underneath which operated by a remote device.
Yousef Sammak met the Offender and Bell when they were both engaged as contractors by the NSW Department of Housing. The three became associates and were involved in the supply of prohibited drugs.
In about March 2014 the Offender and Bell wanted to rent a small factory in the area of Minto. Bell approached a real estate agent who told him of the address in Essex St, Minto. This property was ultimately rented in the name of Daniel Phillips, a false identity created by the Offender. Bell had keys to the factory.

H56279528/1 - Supply prohibited drug (107.4g methylamphetamine) s 25(1) of the 1985 Act (part of the Form 1A to be taken into account in respect of sequence 39)

H56279528/35 - Supply prohibited drug which is not less than a large commercial quantity (1.003 kg of MDMA) s 25(2) of the 1985 Act

H56279528/36 - Supply prohibited drug which is not less than a large commercial quantity (1.857kg of Methorphan) s 25(2) of the 1985 Act

Around early June 2014 the Offender and Bell were in the process of trying to sell methorphan, a prohibited drug similar to methamphetamine. The methorphan was not considered marketable since it was apparently not of a quality that purchasers would accept. The Offender and Bell secreted 1.857kg of methorphan in the hidden compartment of their company truck and 1.271kg of methorphan was stored in their warehouse at Essex St, Minto. The Offender, Bell and Sammak developed a proposal that Bell would obtain 1kg of 3,4 methylenedioxy-n-menthylamphetamine (MDMA) through one of Sammak's contacts who would arrange for the MDMA to be mixed with the methorphan to make it marketable. An associate of the Offender known as "Gypsy" was going to mix the drugs and make the mixture into pills. It was expected that with the addition of the MDMA, the final product would be saleable.
On 6 June 2014, Bell drove with Sammak to his residence at Blair Athol. The two then drove in Sammak's vehicle to meet the Offender in Sydney CBD. In the car, Bell and Sammak's conversation was recorded pursuant to a listening device inside the vehicle. Bell provided an induced statement explaining the meaning and significance of the recorded conversation. Sammak told Bell that he was just waiting for his contacts to tell him the time that they could deliver the MDMA to his house. Sammak said that it would cost $75,000 per kilogram. Bell offered to "test" it at the races, the next day, but Sammak told him that he and the Offender had already tested the MDMA and it was "cracker" (very good quality).
Sammak and Bell agreed that they would first need to get clearance from the Offender for the scheme to go ahead. However, they both expressed annoyance that the Offender was being somewhat uncooperative. At one stage Sammak said that they should "just take the initiative and fucking get on with it". However, they both expressed concern that the Offender had access to the pins for the pill press that would be needed to complete the operation.
Later that day, Sammak told Bell "… well call us when you're back in the area, and I'll 'berry' you as soon as they tell me the time… and… I want to pick it up straight away at least come and put it in the back of the tray… so it's not sitting at mine". Bell responded, "I'll come down to the warehouse…".
The Offender eventually agreed that same day to, "come on board". He drove to Bell's house where he and Bell counted out $70,000 in cash. They drove to Sammak's house at Blair Athol. After parking in the drive way, the Offender got out of the car and gave the money to an unidentified "runner", who had also parked near the driveway. Bell drove the Offender to "Gypsy's" house in Mt Hunter, so the Offender could let him know that the MDMA would be available that afternoon to start the process. Sammak sent the Offender a blackberry message saying that the MDMA was ready to be collected. Bell collected the MDMA from Sammak's house at Blair Athol and placed it into the concealed trundle tray beneath the truck.
Police monitored Bell driving the truck directly into the warehouse at Essex St in Minto and stopped him at the gates of the complex. The truck was searched with Bell's permission. During the search, Bell sent the Offender a text message warning that the Police were searching the truck. The Police located the concealed trundle tray, and found 107.4g of methamphetamine, 1.003 kg of MDMA contained in a red plastic shopping bag, and 1.857kg of methorphan. These were sequences 35 and 36 and sequence 1 (to be dealt with on Form 1A attached to sequence 39).
After receiving a text message from Bell that police were searching the truck, the Offender travelled to Bali. He returned to Sydney shortly thereafter.

Sequence 7 - Supply a prohibited plant (11.121kg cannabis) s 23(1)(b) of the 1985 Act (to be dealt with on Form 1A attached to sequence 39)

Sequence 37 - Supply a prohibited drug which is not less than a large commercial quantity (1.271kg methorphan) s 25(2) of the 1985 Act

Sequence 38 - Supply a prohibited drug which is not less than a large commercial quantity (1.343kg MDMA) s 25(2) of the 1985 Act

Sequence 39 - Supply a prohibited drug which is not less than a large commercial quantity (6.641kg methamphetamine) s 25(2) of the 1985 Act

Sequence 26 - Accessory before the fact - dishonestly obtain financial advantage or cause disadvantage by deception s 192E(1)(b) of the Crimes Act 1900 (NSW) (to be dealt with on a Form 1A attached to sequence 39)

On 7 June 2014 a search warrant was executed at 4/4 Essex St, Minto. Inside the storage premises were significant amounts of prohibited drugs, including 11.121kg of cannabis, 1.271kg of methorphan, 1.343kg of MDMA, and 6.641kg of methamphetamine. Also located inside the premises was a Jeep Cherokee.
In March 2014, Sammak decided to stage a fake break and enter with the assistance of the Offender and Bell, so as to make a fraudulent claim on his insurance policy with AAMI/Suncorp (covering both the home contents at the residence and also the Jeep Cherokee motor vehicle).
On the evening of 19 March 2014, the Offender and Bell, both dressed so that their features were hidden, entered the house with the permission of Sammak and removed alcohol, sports memorabilia and keys to the vehicle which had been left on a hook in the kitchen. They loaded the goods into the Jeep Cherokee and drove away. Sammak's insurance claim was processed with a pay out of $80,736.26.

Arrests

Michael Bell was arrested, charged and sentenced by Haseler SC DCJ at Campbelltown District Court on 23 June 2016. Yousef Sammak was arrested, charged and sentenced by Culver DCJ at Parramatta District Court on 21 August 2017.

Sequence 2 - Deal with property suspected proceeds of crime ($63,496), s 193C(1) Crimes Act 1900 (NSW) (to be taken into account on a Form 1A attached to sequence 39)

On 8 July 2014 a search warrant was executed at the Offender's unit at 1503/101 Bathurst St, Sydney where he resided with his partner, Tracy McGrath. During the search police located:

$5000 in a yellow envelope labelled "Landscaping Receipts", secreted in a small slip in the lounge in the living room;
$1400 on a shelf in the living room;
$2000 on the top shelf above the kitchen bench;
$100 on the kitchen bench;
$55,000 located behind a false wall in the bathroom
Several letters in envelopes addressed to 'Amazing Outdoor Construction'
Numerous mobile phones

The Offender was placed under arrest, cautioned and taken to Central Police Station. He took part in a recorded interview but declined to comment on allegations put to him. Sequence 2 was also part of the Form 1A attached to sequence 39.
On 14 July 2014, the Offender was granted bail.

Sequence 16 - Organises and conducts or assists in organising and conducting drug premises (26 & 28 Princes Street Riverstone) s 36Z(1)(b) of the 1985 Act (to be taken into account on Form 1B attached to sequence 41)

Sequence 22 - Interfere with network operators etc and electricity works without authority (26 & 28 Princes Street Riverstone) s 65 Electricity Supply Act 1995 (NSW) (to be dealt with on a Form 1B attached to sequence 41)

Sequence 41 - Cultivate prohibited plant not less than a large commercial quantity - cannabis (723 cannabis plants) s 23(2)(a) of the 1985 Act

In about 2013, two unidentified Asian males employed Bell and Offender Rispen to build a hydroponic set up inside the premises to grow cannabis. The Asian males gave Bell and the Offender $150,000 to buy the timber for the framework, air-conditioning units, lights and the irrigation system. In April 2013, the Offender signed the lease. The Offender did all the electrical work including air conditioning, lights and timers in a way that would bypass the main. Bell did all the carpentry work, including building all the frames and structures to house the equipment and plants. The profits from the harvest were to be distributed 60% to the unidentified Asian males and 40% to Bell and the Offender.
On 11 September 2014 Police executed a warrant at a factory building at 26 & 28 Princes Street Riverstone. During the search, Police located an elaborate and sophisticated indoor hydroponic cannabis crop set up: a total of 723 plants at various stages of growth in pots, soil fertiliser, chemicals and artificial light sourced by way of suspended shades and water and light systems controlled by timers. The electricity was consumed by way of by-passing the main.

Search Warrant - 50 Chamberlain Street Campbelltown on 19 September 2014

On 19 September 2014 a search warrant was executed at 50 Chamberlain Street Campbelltown. At the rear of the backyard of the property was a white caravan. Inside the caravan, Police located the Offender laying on the bed. The Offender was placed under arrest, cautioned and conveyed to Campbelltown Police Station where he was read his rights. He declined to participate in electronically recorded interviews. On 2 October 2014 the Offender was granted conditional bail at Central Local Court. However, on 10 December 2014 the Offender failed to appear at Campbelltown Local Court and an arrest warrant was issued.

Search Warrant - 50 Chamberlain Street Campbelltown on 4 March 2015

Sequence 28 - Take conveyance for fraud purpose without consent of the owner - s 154A(1)(a) Crimes Act 1900 (NSW) (to be dealt with on a Form 1C attached to sequence 36).

On 4 March 2015 Police executed a search warrant at 50 Chamberlain St, Campbelltown. Police seized the caravan in which the Offender had been living at the time of his arrest on 19 September 2014. The caravan was a regent cruiser model and had been reported stolen in 2012. On 25 June 2012 the Offender, with the assistance of Bell, stole the caravan from a self-storage unit at 153 Airs Road Campbelltown. The Offender rented a space at the self-storage facility and while there noticed that one of the caravans stored there was not locked down properly.
The Offender had a friend open an account under a false name and provide the Offender with a new security code. On the night, the Offender drove a green Ford F250 with stolen licence plates into the storage complex, reversed up to the caravan, hooked it up to the tow-bar and left the site with the caravan. The Offender parked the caravan in the Leumeah area to see if there was a tracker on it. After a few weeks, the Offender and Bell took the caravan to the Offender's house in Spring Creek Rd in Mount Hunter. They peeled off all the stickers and then took the Caravan to 50 Chamberlain St Campbelltown where it was located by Police.

Sequence 33 - Resist officer in execution of duty - T2 s 58 Crimes Act 1900 (NSW) (to be dealt with on a Form 1C attached to sequence 36)

Sequence 34 - Deal with property proceeds of crime < $100,000 - T2 s 193C(2) Crimes Act 1900 (NSW) (to be dealt with on a Form 1C attached to sequence 36)

The Offender remained at large until 26 June 2017 when he was arrested by Police. While conducting surveillance in Nelson Bay, Police located the Offender. When the Offender saw Police, he picked up and threw a rubbish bin at an officer before being tackled to the ground. The Offender struggled by thrashing his arms and legs before he was handcuffed and placed under arrest. The Offender was cautioned and conveyed to Nelson Bay Police Station where he declined to participate in an electronically recorded interview.
A search warrant was executed by Police at 10/21 Stockton Street, Nelson Bay where the Offender had been residing. Police located a number of cards in the name of James Davis, including a NSW Drivers Licence, Medicare Card, Scuba Diving Licence and a NAB Visa Card. Police also located $4000.

OBJECTIVE FACTORS

The Crown submitted that each of the offences were aggravated pursuant to s 21A(2)(e), (n) and (o) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the '1999 Act') in that they were committed in company, they were planned and organised, and they were done for financial gain.
The Defence cited Wat v R and submitted that these were a feature of the offences and "its only if it's really much more significant that you would get it in such an offence." [2]
The Crown did not identify the characteristics of the offending that extended beyond what might be expected in the lowest level of offending of these types of offences.
Furthermore the fact that the offending in each case was part of a joint criminal enterprise meant that the participation of the co-offenders was an element of the offence such that the aggravating factor could not apply. [3]
These features of the offending are nevertheless matters I have regard to in sentencing the Offender.
In relation to Sequence 35 the quantity of the drug was 0.553 kilograms over the threshold for a large commercial quantity. For sequences 36 and 37 the quantity was 0.857 and 0.271 kilograms beyond the threshold amount for a large commercial quantity. For sequences 39 the quantity was 0.843 kilograms beyond the threshold for a large commercial quantity. In relation to sequence 39 the quantity of 6.641 kilograms was significantly above the threshold quantity for a large commercial quantity of methylamphetamine at the time of 1.0 kilograms. The agreed facts do not disclose the purity in respect of any of the drugs in question.
In relation to sequence 41, the quantity of plants is 723 which is well above the threshold for a large commercial quantity of 200 plants. The stage of growth of the plants was described as being at various stages.
It is acknowledged however, that the Offender's role and level of criminality is more important in determining a sentence than the quantity of drugs involved. [4]
The Defence submitted that the agreed facts in this case, unlike those submitted in the sentence of the two offenders Sammak and Bell, reflected an equivalence of roles. The Crown ultimately accepted that the agreed facts did not disclose that the Offender's role was higher than Bell's. The background facts were that Offender Rispen and Bell had been engaged in an illicit drug supply business together since 2013 and as part of the operation established a company together building fences. In 2014, both rented a factory which Bell arranged and signed the lease, although the Offender established the false identity. Both Offender Rispen and Bell secreted the methorapan in both the hidden compartment of the company truck and in storage at the Minto warehouse. Both Offenders together with Sammak developed the proposal to obtain the MDMA and mix it with the methorapan to make it marketable. On 6 June 2014, Sammak had told Bell that Offender Rispen had already tested the MDMA and it was a "cracker."
The Crown submitted that the fact that Bell and Sammak required the clearance of Rispen indicated that he had power and put his role a bit higher. The Defence submitted that the agreed facts demonstrated reluctance on the part of the Rispen to participate.
Whatever reluctance there may have been, the facts do not identify its nature and whether it related to participation at all or timing. Any reluctance was clearly of short duration as on the same day of 6 June 2014, Offender Rispen is noted to have come on board. Beyond that, Offender Rispen had developed the proposal with the others for Bell to obtain the MDMA and use one of his associates, Gypsy, to mix the drugs. Sammak told Bell that the Offender (Rispen) had already tested the MDMA and it was cracker. Both the Offender and Bell counted the $70,000 and drove to Sammack's house where the Offender (Rispen) handed it over. It is not apparent however, who of the two was the source of the funds. Bell and the Offender then drove to the Gypsy in Mt Hunter so as to arrange the starting of the process when the MDMA was ready for collection.
In respect of the offence in sequence 41, the Offender signed the lease to the Riverstone premises in 2013. Both the Offender and Bell were described as being employed to build the hydroponic set up inside the premises which was funded by two unidentified Asian males to the sum of $150,000. Both the Offender and Bell however, carried out the construction work which was described as 'elaborate and sophisticated" and the profits were to be divided as earlier described.
All relevant offending in the sequences to be sentenced occurred over a period in 2014, although it was clearly not isolated to that period. It involved a level of planning and coordination including concealing the operations. On the facts before me, the Offender was plainly a principal along with Bell.
The Crown submitted that each of the offences fell well above the mid-range of seriousness. The factors on which it based that submission included the quantities and the types of drugs, the planning involved, and role of the Offender.
The Defence did not submit directly as to where the offences fell in the range of seriousness, although it acknowledged the difference in the agreed facts on which the co-offender Bell was sentenced compared to the agreed facts before me. [5] Bell's sentence is discussed below.
My assessment differs from the Crown in the respects I have indicated. Further on the agreed facts before me I accept that Bell and Offender Rispen had relatively equal roles overall. On an assessment of the objective factors affecting the relative seriousness, I am satisfied that each of the offences falls within the mid-range of seriousness.

No significant record of previous conviction (s 21A(3)(e)).

The Offender contended that he does not have a record (or a significant record) of significant conviction, a matter of mitigation under s 21A(3)(e) of the 1999 Act.
The Offender had a single prior entry on his criminal record, namely a charge of affray in 2008 that was dealt with by way of fine. There is however, also a matter of failing to appear in accordance with the Offender's bail undertaking in October 2014. In this respect, it was deemed inexpedient to inflict punishment pursuant to s 10A of the 1999 Act.
The Crown none the less did not submit against this mitigating factor being found. I accept it is a matter of mitigation.

Guilty Plea

The Defence contended that the Offender entered his guilty plea at the earliest opportunity prior to committal hearing in the Local Court such as to warrant a discount at the top of the range as formulated in R v Thompson and Houlton. [6] It was submitted that this would be 25% for the utilitarian value pursuant to s 22, and s 21A(3)(k),(n) of the 1999 Act.
The Crown argued that whilst the plea was entered in the Local Court, it was not at the earliest opportunity due to the fact that the Offender had absconded for two and a half years.
The absconding occurred on 10 December 2014 after the Offender having been charged and bailed, failed to appear at Campbelltown Local Court.
In R v Thomson and Houlton [7] Spigelman CJ held at [154]: There are however two circumstances which will generally affect the appropriate level of discount in a particular case: (i) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial. (ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea.
In R v Trad Sheller JA held that an Offender who absconds will ordinarily receive a reduced benefit for the plea of guilty. [8] His Honour stated: [58] Account must be taken of the disruption to the court process and to the administration of law caused by the applicant's absconding. It is true that an occurrence such as the present one is not mentioned in R v Thomson as part of the complex web of interconnected participants which comprises the criminal justice system. That is not surprising. In the passage in R v Thomson that I have quoted, the Chief Justice referred, amongst the benefits to be achieved by early pleas, to the reduction of the waste of the limited resources available to the Director of Public Prosecutions, the Public Defender and Legal Aid and of the waste of time of witnesses including police witnesses. A discount of 25 per cent is not appropriate where, after pleading guilty, the Offender absconds and fails to attend on the date set aside for sentencing. The court time wasted and inconvenience of setting in train the process of arresting the applicant, not to mention the waste in the abortive attempt to arrange some rehabilitation process, are factors which must be weighed in determining what the discount should be. [59] Putting aside any consideration of the strength of the Crown case and of the delays in sentencing when determining the utilitarian discount and bearing in mind the time at which the pleas of guilty were entered and the disruption and inconvenience caused by the Offender's absconding, a utilitarian discount of 10 to 15 per cent was appropriate. In my opinion, the individual sentences imposed and the resultant total sentence and non-parole period her Honour set were warranted in law. No lesser sentences should have been passed. .
More recently this reasoning was affirmed in Samuel v R [9] a case which bears some analogy. In that case Basten JA with whom McCallum J agreed added at [5]-[6]: The applicant's case in this regard was based on two unjustified propositions. The first was that, absent some valid reason for a lower discount, he was entitled to a discount of 25%. That suggestion involved a misunderstanding of the guideline judgment in R v Thomson. The principles set out in that judgment were carefully formulated as guidance to the exercise of the statutory discretion vested by s 22 in the sentencing judge. To state that a discount should "generally" be assessed within "the range of 10-25 per cent" should not be understood as conferring a contingent entitlement, subject only to justified reductions from a maximum discount of 25%. The second proposition was that a valid reason for a lower discount might arise where an offender had absconded, but only if it could be shown that police or court time had been wasted and resources diverted by the process of arresting the offender. For that latter proposition, reliance was placed upon R v Trad.[2] However, Trad was of no assistance, being the antithesis of the present case. In Trad the offender entered pleas of guilty and then absconded after a sentencing hearing had been fixed; in the present case, the applicant absconded before entering pleas of guilty. In any event, the fact that a waste of court time was demonstrated in Trad does not elevate that circumstance to an element necessary to justify a lower discount. Nor was it correct to assume that similar detriments did not arise in this case.
The Defence accepted that the plea was entered on 23 May 2018. [10] Whilst this was prior to committal it was well after proceedings against the Offender were commenced. To say that the plea was entered at the earliest opportunity ignores what preceded it. Taking all matters into account in relation to the sequences before me, the Offender is to be sentenced applying a discount appropriately reflecting the reduced utilitarian value of the plea. I would assess this at 15%.

Remorse

The Defence submitted that the Court would be satisfied that the Offender was remorseful and has provided evidence that he has accepted responsibility for his wrongdoing and acknowledged the harm done by his offences.
Although the Offender did not give oral evidence, in the clinical psychologist report prepared by Mr John Machlin dated 26 October 2018, [11] Mr Machlin recorded: "Mr Rispen related that he has remained drug free since before entering prison on this occasion. He resolves never to use drugs again. He has become aware of the damage drugs have caused to his life. He regrets the pain he has caused his family, especially his son who misses him greatly and his mother, who at times shows her distress. He related a heightened awareness of the seriousness of his offences and of the impacts of drugs on others, particularly within the prison system, where he sees other inmates continuing their addiction. He said that he feels ashamed that he plays a part in such a destructive industry."
Mr Machlin also had a telephone interview with the Offender's mother. It was noted by Mr Machlin: "Mrs Rispen said her son has since acknowledged the impact on her and the rest of the family, and has apologised for it."
Mr Machlin stated in conclusion: "He acknowledges his offences and engages in open and reflective discussion. While he recalls being invincible on cocaine, he did not seek to absolve himself of responsibility. Nor did he attempt to minimise the seriousness of his actions or their impact. He is contrite and apologetic about the drug offences and decisions to skip bail. He laments the impact on family and the loss of contact with his son. He has apparently rehabilitated himself from drug use, and relays positive goals for the future. In view of these factors he demonstrates a high level of remorse for his offences."
The Crown did not seek to cross examine Mr Machlin on his report.
In a letter addressed to the Court dated 31 October 2018, which was admitted over objection by the Crown, Mr Rispen stated: [12] "Your Honour I lost my moral conscious. I want your Honour to know I never intended any malice to society. At the time I justified my actions in my subjective mind and now I completely understand the wrong. I was trying to unburden myself of my obligations through drugs and gambling. I was introducing to other people lives the very thing that was ruining mine. I am truly sorry for this and recognise the unlawfulness of my conduct… Your Honour in gaol I have spoken to inmates convicted of crimes ranging from stealing to break and enter, and even armed robbery, who have committed these crimes to fund their addiction. I understand the bigger picture and the true impact that drugs have on our society and for my contribution to all of that, I truly apologise and promise to help others avoid drugs so long as I live. I have looked into programs such as the nuclear program which allows me to counsel other Offenders against being involved in any other types of drug offences or any crimes and would like to be of assistance to such a program that I can if at any stage my sentence correctives approve this.
A number of character references have been presented to the Court.
Ms Kasey Jones had been in a relationship with the Offender for some four years. [13] In a reference dated 22 October 2018 she records: "Darren sees the gravity and effect that his actions have had not only on certain people but their families and the community as a whole. He has had many confronting moments where he has been forced to see the reality of it and the consequences. He has talked about the drug use in gaol, how addicts act and what terrible crimes happen because people will do anything to get drugs. He speaks with authority about how the drugs, the subject of the charges, have affected the victims. Darren is deeply ashamed of the person he was, his criminal behaviour and the company he kept. He now finds comfort in wanting and organising to help bring awareness to drugs and the effect and impact it has not just only on the drug users and he community, but the families as well. He has quite excitedly discussed with me certain outreach programs he wants to volunteer in and get involved to help bring awareness and attention to the impact drugs have and to share his story in hope of steering young teens away from making the same poor and immoral decisions he did."
The Offender's partner Alicia Rispen reports in her reference dated 25 October 2018: [14] "I want the Court to know that Darren is now very vocal about staying away from drugs and that he has spoken at length to Jordan about it. Darren has told me that he feels guilty for having supplied drugs to young people and I think it has been a very big lesson for our sons seeing what his father has been going through. I can see how sorry he is for the total change in his life and his hopes and aspirations for the future."
Sandra and Trent Cuncliffe from Cuncliffe Consulting Pty Ltd also prepared a character reference dated 10 September 2018. [15] They state: "… He has expressed his sincere repentance about selling drugs to other people and the effects it has on other peoples' lives and that he ran away from it all and he wasn't man enough to face up to his actions. … Nobody has been harder on Darren than himself and we truly believe in our hearts that he will never do anything like this again. He is extremely remorseful for his actions."
Pursuant to section 21A(3)(i) of the 1999 Act remorse shown by the Offender can only be taken into account if: 1. The Offender has provided evidence that he or she has accepted responsibility for his or her actions, 2. The Offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both).
The Defence submission was that the Court could rely on the untested statement of the Offender, bearing in mind that the contents of the various character references referring to the Offender's remorse.
Although in this case the Offender did tender a written statement, it was accepted that this could be given limited weight in circumstances where he did not volunteer to be cross examined and the Crown objected. [16] Nevertheless the Defence argued that it could be taken into account where it corresponds with the other evidence. [17] In Imbornone v The Queen [18] Wilson J stated: [57] This Court has frequently said that untested out of court statements made to third parties should be treated with caution. Although it should be a principle that is well known and understood it seems necessary to restate it. The following statements are derived from the authorities: (1) Although statements made to third parties are generally admissible in sentence proceedings (subject to objection and the application of the rules of evidence) courts should exercise very considerable caution in relying upon them where there is no evidence given by the Offender. In many cases such statements can be given little or no weight: R v Qutami [2001] NSWCCA 353 at [58] - [59]. (2) Statements to doctors, psychologists, psychiatrists, the authors of pre-sentence reports and others, or assertions contained in letters written by an Offender and tendered to the court, should all be treated with considerable circumspection. Such evidence is untested, and may be deserving of little or no weight: R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 at 185, [40]-[41]; R v Elfar [2003] NSWCCA 358 at [25]; R v McGourty [2002] NSWCCA 335 at [24] - [25]. (3) It is open to a court in assessing the weight to be given to such statements to have regard to the fact that an Offender did not give evidence and was not subject to cross-examination: Butters v R [2010] NSWCCA 1 at [18]. It is one matter for an Offender to express remorse to a psychologist or other third party and quite another to give sworn evidence and be cross-examined on the issue: Pfitzner v R [2010] NSWCCA 314 at [33]. (4) If an Offender appearing for sentence wishes to place evidence before the court which is designed to minimise his or her criminality, or otherwise mitigate penalty, then it should be done directly and in a form which can be tested: Munro v R [2006] NSWCCA 350 at [17]-[19]. (5) Whilst evidence in an affidavit from an Offender which is admitted into evidence without objection may be accepted by a sentencing judge (see Van Zwam v R [2017] NSWCCA 127), generally the circumstances in which regard should be had to such untested evidence is limited. Affidavits relied upon in the absence of oral evidence on oath frequently contain self-interested assertions of a character which makes them almost impossible to verify or test (particularly when served on the Crown in close proximity to, or on, the date of hearing). In the absence of any independent verification of the asserted behaviour, or state of mind, or of a tangible expression of contrition, "to treat this evidence with anything but scepticism represents a triumph of hope over experience": R v Harrison [2001] NSWCCA 79; (2002) 121 A Crim R 380 at [44].
In this case, the Offender failed to appear at Campbelltown Local Court on the 10th of December 2014, resulting in the issue of an arrest warrant. He came to be arrested on the 26th of June 2017 at Nelson Bay in the circumstances described above.
The Crown argued that these circumstances indicated a lack of some remorse. [19]
I accept that the Offender has regretted his involvement and the impact that it has had on himself and his family. Beyond that, he has sought to turn his life around and remain abstinent. The fact that he is regretful should be taken into account. [20]
As for remorse, it was for the Offender to establish remorse on the balance of probabilities. The assessment of the genuineness of remorse is to be better informed when expressed directly. [21] It is not a task to be out sourced to those whom the Offender has interacted with.
The Offender's decision to abscond and avoid taking responsibility at the time is relevant but is not in itself determinative. In all the circumstances, whilst I acknowledge the evidence in Exhibits 1-6, I am unable to ascribe much weight to it as I cannot determine that the expressions of remorse are genuine and heartfelt.

Offender's Background

According to the report of Mr John Machlin, the Offender was born in Sydney and raised in Campbelltown as the second of four children. The Offender recalled having a good upbringing within a stable family environment and could not fault his parents. His father died in 2016 and he reported a good relationship with his mother and siblings over the years.
A statement from the Offender's mother, Vicky Rispen, dated 1 November 2018, [22] states that she resides some four hours away from the Offender at Long Bay. The Offender's older brother lives roughly two and a half hours drive away. The Offender's other younger brother resides in Queensland. The Offender's mother acknowledges that the family doesn't get to see the Offender that often but states that they communicate through telephone. Mrs Rispen confirms that the Offender appears to have support from his immediate family, including herself.
According to the report of Mr Machlin, the Offender completed high school in Campbelltown and progressed to Wollongong TAFE where he started a systems analysis and design course, before transferring to an electrical apprenticeship. At age 21, he was involved in a motor cycle accident, in which he injured his elbow against a pole. He thereafter discontinued the apprenticeship, as he could not meet the physical demands of raising his arms for sustained periods to do overhead wiring. He underwent rehabilitation for two years and worked in light duties as a Console Operator. He later undertook landscaping and carpentry work and for some time ran his own landscaping business, employing people to relieve him of some of the physical work in view of his injured arm.
In 2005 he undertook a franchise at the Crepe Café. However, Mr Machlin reports that the Offender returned to landscaping and fencing five years later, and by 2012 his drug use was increasing. The evidence was that he worked up until 2012, but has not held legitimate employment in the community since that time.
So far as substance abuse is concerned, Mr Machlin noted that the Offender started smoking marijuana in his teens and increased his alcohol intake over the years, especially when his business declined in 2011. The Offender was married to Alicia in 2005 and had a son, Jordan, in 2007. They however, subsequently separated. Alicia Rispen in her reference of 25 September 2018 notes that she observed the change in the Offender's behaviour after the break up, and that he was always sweating, agitated, had diluted eyes and was unhappy when they spoke. She further noticed that the Offender was hanging around numerous people that she "didn't get a good vibe from". She indicated that she suspected that the Offender was using drugs and found this disappointing.
The Offender's next relationship was with a woman named Tracey. However, whilst the Offender was at large in 2015 to mid 2017 he formed a relationship with Kasey Jones, who had three children aged 13, 11 and 6. Ms Jones did not know about the Offender's fugitive status. Ms Jones expressed her extreme anger and hurt about the Offender's involvement in the offences and being "absolutely gobsmacked to say the least when it all came out". She remained supportive of the Offender and has stated that she is confident that he will not reoffend and that he wants to live the rest of his life being a better person and a more selfless one.

Physical and Mental Health

In his report, psychologist John Machlin notes that the Offender did have a motor cycle accident at age 21 and although the injury has improved, he suffers some pain. He further notes that the Offender was a heavy user of alcohol and drugs for a number of years, resulting in possible liver damage but has no other significant medical history. He has not had any mental health intervention. He did suffer some trauma as a result of the motor cycle accident and a significant period of stress in 2010-2011 when his business and marriage collapsed and his father's health was in decline. The report notes that the Offender feels well mentally and has not suffered from significant symptoms of trauma or depression. Mr Machlin observed that the Offender's substance use disorder and gambling disorder were in remission and that he has no other diagnosable mental condition and his current stress levels do not exhibit symptoms consistent with a reactive mood condition.
I accept Mr Machin's conclusions.

Prospects of Rehabilitation and Likelihood of Reoffending

Based on the contents of Mr Machlin's report and the contents of the statements recorded by exhibits 2-6, I accept that the Offender has good prospects of rehabilitation and is unlikely to reoffend. The Crown did not submit otherwise. I particularly bear in mind the factors identified in Mr Machlin's report to the extent they accord with my findings being: 1. The Offender has no prior record of offences of this nature or on this scale 2. There is no identifiable psychopathology. The Offender is family oriented and is not antisocial by nature 3. The Offender's apparent rehabilitation of himself and maintenance with drug absence for an extended period. 4. The Offender's strong employment record, optimism about gaining further employment, and his strong family support base 5. The Offender's recognition of the error of his offending

Form 1 Matters

In sentencing the Offender for sequences 36, 39, and 41, I am asked to take a number of offences into account on Forms 1.The matters on the Forms 1 can and do operate to increase the sentence that would otherwise be appropriate to recognise the need for personal deterrence and retribution for the principal offence. [23] This does not mean that the Court imposes a separate penalty in this regard. Rather, the Court takes them into account as part of the synthesis in determining the appropriate penalty for the offences for which the Offender has pleaded guilty. [24]
Some of the offending the subject of the Forms 1 inform the general objective circumstances of the offending and the relationships between the parties and would not lead to a significant increase. Other matters involved in the possession for supply of quantities of drugs however, require greater weight to be given to specific deterrence and retribution.
Where asked to take into account Form 1 matters of a different kind, I bear in mind the comments and approach taken in R v Harris. [25]

Special Circumstances

By reason of this being the Offender's first period in custody, his good prospects of rehabilitation and low likelihood of reoffending, I am satisfied that it is appropriate to make a finding of special circumstances.

Parity

The general principles of parity were discussed by the High Court in Green v R [26] and most recently summarised in King v R. [27] I have borne them in mind.
Bell was charged and pleaded guilty to the same five offences as Offender Rispen under s 25(2) of the 1985 Act, although in respect of the parallel offence to sequence 35, the quantity of MDMA for Bell was 1.146 kg compared to 1.003 kg for Rispen. Bell furthermore was not charged in respect of the matter under s 23(2)(a) of the 1985 Act, being sequence 41.
In the sentencing of Bell, each of the s 25(2) offences were found to be below the mid-range of seriousness.
In respect of the matter parallel to Offender' Rispen's sequence 39, Bell had attached a Form 1 with 4 offences listed that Haesler SC DCJ noted operated to increase the sentence that would otherwise be appropriate. Two of Bell's Form 1 offences are parallel to Offender Rispen's sequences 1 and 7 (on Rispen's Form 1A) and one offence parallel to sequence 16 (on Rispen's form 1B). Furthermore, there was a further offence on Bell's Form 1 of participating in a criminal group contrary to section 93T (1) of the Crimes Act 1900 (NSW). Offender Rispen was not charged with that offence.
In the case of Bell, his Honour found genuine remorse and contrition. It was noted that as a consequence of his assistance, the Offender was held in the Special Purpose Centre. It was expected that protection would continue both in custody and beyond and as such this was taken into account. He was found to be a model prisoner. It was further noted that because of his chronic adjustment disorder with mixed anxiety, Bell would serve his sentence more severely and harshly than others who keep their mouths shut and go into general discipline.
Further to the discount of 25% due to his guilty plea, his Honour allowed a discount of 25% for assistance. Proceeding to an aggregate sentence his Honour outlined indicative sentences of four years head term and parole of two years for each of counts 1 to 4 [28] ( parallel to Rispen's sequences 35, 36, 37 and 38) and six years head term and three parole years for count 5 [29] (including taking into account the Form 1 matters). Count 5 was parallel to the Offender Rispen's sequence 39. Offender Bell's sentence was an aggregate non parole period of four years, with an additional four years on parole.
The aggregate sentence that would have been imposed in the case of Bell by Haesler SC DCJ absent the plea and assistance would be the equivalent of 8 years non-parole and 16 years head term. I have earlier mentioned the parallel indicative sentences.
Although the quantity of the drug in Bell's case was greater for the parallel offence to Offender Rispen's sequence 35, that is not of much, if any, significance in the circumstances. There are further matters on the Forms 1 to be taken into account in the case of Offender Rispen's sequences 36, 39, 41.
Whilst on the agreed facts before me the roles and criminality of Bell and Offender Rispen were relatively equal, I cannot overlook that Bell was sentenced on different agreed facts. Specifically Haesler SC DCJ found Bell to be a trusted lieutenant, not a principal, and having been shown a different world by his co-offenders (Rispen and Sammak), which he chose to join. Bell's sentence furthermore entailed a greater discount and subjective findings that differ from Offender Rispen's case.
Sammak was sentenced on a single charge of an offence parallel to Offender Rispen's sequence 35 (1.003 kg MDMA) with a single offence attached on a Form 1 of recklessly possessing the proceeds of crime (maximum penalty of 10 years). The agreed facts noted a purity of 79%. Culver DCJ accepted that the syndicate had been operating before Sammak's involvement and that he had not made a fully trusted entry into the syndicate. Nevertheless, her Honour found that for this particular offence Sammak was pivotal, although the methorphan was already in existence and he was not charged in respect of that matter. Her Honour found that Sammak had a limited degree of autonomy and was someone who was able to issue directions or instructions and initiated some ideas and sourced the drugs. The offending was found to be between the low and mid-range of offending. It was isolated offending that was found to provide for mitigation in sentencing.
Culver DCJ noted that Sammak was a person of prior good character and was entitled to leniency in this respect. He descended into a drug habit at the time of the offending as his father became ill about 6 months beforehand and his business was failing.
Sammak was found to suffer from a major depressive disorder with melancholic self-guilt remorse features by way of a single episode together with a generalised anxiety disorder. This was found to make custody more onerous. The Crown conceded that in respect of the cash it could not prove beyond reasonable doubt this it was connected with the proceeds of any drug supplies. A plea discount of 12.5% was allowed. Remorse and strong prospects of rehabilitation were found. Special circumstances were also found. Sammak was sentenced to 5 years head term with a 2.5 year non-parole period.

Concurrency, Accumulation and Totality

The charges here arise within a course of conduct. The offences are separate and discrete but they contain a number of elements which are not strictly in common such as the different drugs involved. However, there are factors which overlap considerably.
Whilst a level of concurrency is appropriate there must also be some accumulation to take into account the individual quantities of drugs, the individual charges and to allow for an appropriate sentence to match the criminality of the Offender's involvement. I have also borne in mind the principles of totality.
I have regard to the maximum penalties of life imprisonment of each of the s 25(2) offences and 20 years for the offence under s 23(2) (a) of the 1985 Act.
I also have regard to the standard non-parole penalties of 15 years and 10 years, respectively. This represents the non-parole period for the offences, taking into account only the objective factors affecting the relative seriousness of the offences in the middle range of seriousness after an offender has been found guilty at trial.

Commencement of Sentence

The Offender entered his pleas on 23 May 2018 prior to committal. He was committed for sentence on that date. He had previously been refused bail between 08 July 2014 and 16 July 2014 (9 days inclusive). He was refused bail again on 19 September 2014 and released on bail again on 15 October 2014 (27 days inclusive). He was arrested and refused bail on the last time on 26 June 2017. In these circumstances it is appropriate for the sentence to commence from 21 May 2017.

Sentence

In sentencing the Offender, I have had regard to a schedule of similar cases submitted by the Defence (MFI B) and statistics provided by the Judicial Information Research System (JIRS) (MFI D). In this respect, I have had regard to the principles in Hili v The Queen [30] and Barbaro v The Queen. [31]
In sentencing the Offender, I have regard to the purpose of sentencing in section 3A of the 1999 Act. In particular I bear in mind for offences of drug supply, apart from punishing offenders and denouncing their conduct, the sentences must be sufficiently severe to deter them and others from committing similar conduct. [32] The destructive impact of the offending on society is reflected in the guidepost of the maximum penalties and the standard non-parole period that the legislature has imposed.
I propose to proceed by way of aggregate sentence.
Each indicative term takes into account the discount for the guilty plea. I have taken care when accumulating not to erode the benefit of those pleas. I have taken into account the Forms 1 where applicable. For each matter I indicate the following sentence; 1. Sequence 35: 8 years and 6 months imprisonment with a non-parole period of 5 years and 8 months. 2. Sequence 36 (taking into account the Form 1C matters): 9 years imprisonment with a non-parole period of 6 years 3. Sequence 37: 8 years and 6 months imprisonment with a non-parole period of 5 years and 8 months 4. Sequence 38: 8 years and 6 months imprisonment with a non-parole period of 5 years and 8 months 5. Sequence 39 (taking into account of the Form 1A matters): 10 years imprisonment with a non-parole period of 6 years and 8 months. 6. Sequence 41 (taking into account the Form 1B matters): 4 years and 6 months imprisonment with a non-parole period of 3 years.
On each of the sequences the Offender is convicted.
The aggregate sentence will be 15 years to date from 21 May 2017 and to expire on 20 May 2032 with a non-parole period of 10 years to date from 21 May 2017 and to expire on 20 May 2027. The Offender shall be eligible for release at the conclusion of the non-parole period subject to a decision of the State Parole Authority with the Offender's earliest release date being 20 May 2027.

Endnotes

Exhibit A.
Wat v R [2017] NSWCCA 62, [44] (Per Price J, with whom Bathurst CJ and Walton J agreed).
The 1999 Act s 21A(2).
Melikian v R [2008] NSWCCA 156, [42] (Per Price J, with whom Spigelman CJ and Hidden J agreed); R v MacDonnell (2002) 128 A Crim R 44, [33] (Per Wood CJ at CL, with whom Sully and Dowd JJ agreed).
T 20.41-21.2 and Defence written submissions at [9]-[13].
(2000) 49 NSWLR 383, 418, [152].
[2000] NSWCCA 309; 49 NSWLR 383 (Wood CJ at CL, Foster AJA, Grove and James JJ agreeing)
[2003] NSWCCA 213 (with whom James and O'Keefe JJ agreed).
[2017] NSWCCA 239, [58]-[60] (Per Wilson J, with whom Basten JA and McCallum J agreed).
Defence written submissions at [7]
Exhibit 1.
Exhibit 2.
Exhibit 4.
Exhibit 5.
Exhibit 6.
T 4.39.
T 22.28-24.49.
[2017] NSWCCA 144 (with whom Hoeben CJ at CL and RA Hulme J agreed).
T26.45.
R v Johnson [2005] NSWCCA 80, [28] (Per Santow JA, with whom Bell and Howie JJ agreed).
Alvares v R (2011) 209 A Crim R 297, [44] (Per Buddin J, with whom McClellan CJ at CL and Schmidt J agreed); Mun v R [2015] NSWCCA 234, [37] (Per Gleeson JA with whom Adams and Beech-Jones JJ agreed).
Exhibit 3.
Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1) (2002) 56 NSWLR 146.
Markarian v R (2005) 228 CLR 357, [51]-[54] (Per McHugh J).
[2001] NSWCCA 322, [36]-[43] (Per Simpson J, with whom Spigelman CJ and Einfield AJ agreed).
(2011) 244 CLR 462 [2011] HCA 49 (French CJ, Crennan and Kiefel JJ) see in particular [28]-[29].
[2018] NSWCCA Johnson J (with whom Simpson AJA and RA Hulme J agreed) at [113]-115].
Numbers are taken from MFI C
Referred to also in MFI C as sequence 14
(2010) 242 CLR 520, [18], [43], [53].
(2014) 253 CLR 58, [40]-[41].
See Collier v R [2012] NSWCCA 213, [40] (Per McClellan CJ at CL with whom RA Hulme and Schmidt JJ agreed); Wu v R [2018] NSWCCA 74, [46] (Per Davies J, with whom Hoeben CJ at CL and Fullerton J agreed).

Amendments 18 December 2018 - Typographical error amended 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: 18 December 2018

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Judgment (34 paragraphs)

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