R v Robertson; R v Westwood

R v Robertson; R v Westwood - [2024] NSWDC 528 - NSWDC 2024 case summary — Zoe

[5]

The objective seriousness of the offending

The first issue is what is the proper characterisation, upon analysis of the objective seriousness of the offending, of each Offender in relation to their role in the principal offence.
There is no issue at the Bar table as to a general proposition that each Offender's involvement in the conspiracy was indistinguishable from the other's. However, as between the Crown and each of the Offenders, there is a serious issue as to the level of objective seriousness, or, to use the language of s 16A(2)(a), "the nature and circumstances of the offence". The Crown submits that I should be satisfied beyond reasonable doubt that the Offenders are "leading members of the criminal syndicate", that they "stood to earn a considerable financial advantage from the importation" and that the "offending was not only serious but it was sophisticated". Ultimately the Crown submits that the offending ought be seen to be in the "high range" of objective seriousness.
On the other hand, on behalf of each Offender, Mr Strickland SC who appeared with Ms McMahon for Mr Westwood and Mr Buchen SC who appeared with Ms Caldwell for Mr Robertson have reminded me that it is dangerous and probably counter-productive to try and apply labels by reference to some sort of notional range such as "high-range" or "mid-range" of the offending, but rather I should focus more on what the Offenders actually did. Nonetheless, having counselled me against the use of labels, they each urged me, using slightly different language, to find that the objective criminality was very much towards what might be described as a lower end of seriousness in this type of conspiracy.
For reasons I will come to, I accept in general terms the submissions made on behalf of each Offender that the objective seriousness of the offending is much less than contended for by the Crown. I reject the Crown's characterisation that the Offenders were "leading members of a criminal syndicate". I also do not consider what they did to be particularly sophisticated at all. How much money they stood to make is not clear.

[6]

The 'ANOM' issue in the context of the pleas of guilty

The second matter of some significance is what is described as the 'ANOM' litigation.
The topic arises in the context of how much weight, if any, over and above a specific identifiable discount for the utilitarian value of the plea of guilty itself, should be allowed for the benefit to the community and the administration of justice in Australia generally, by pleas of guilty in these sort of cases (i.e. Reliance by the Crown on ANOM material) in the current circumstances.
The point is made on behalf of both Offenders that they have pleaded guilty in circumstances where there is a serious challenge on foot to the admissibility of what is, in effect, the entirety of the Crown case. The Crown accepts that in the peculiar circumstances of the unresolved issues concerning the admissibility of ANOM evidence, the pleas have a significance over and above the ordinary. How much weight should be given to that factor divides the parties.
It is a matter of public record that there is a significant issue before the Courts in this country, arising out of evidence obtained by various prosecuting authorities from what are described as 'ANOM' communications. 'ANOM' is some form of application ("app") used on computer type devices that allows for encrypted communication between participants: See Question of Law Reserved (Nos 1 and 2 of 2023) [2024] SASCA 82 ("the South Australian litigation") and for example, Lee v R (Cth) [2024] NSWCCA 202 at [18]-[32].
My understanding is that the investigating authorities developed the app, building into it for themselves secret access to the app's content, which has allowed the authorities to 'intercept' what people thought was a means of communication that was encrypted in a way that could not ever be accessed by others. This has resulted in very many prosecutions against people for very serious criminal activity. In short, the prosecuting authorities developed the encrypted messaging application, but left for themselves a 'backdoor', where they could access 'encrypted' communications freely.
The admissibility of that material is under challenge in various Courts throughout the country. In the South Australian litigation, the question has been decided both at first instance and before the Court of Appeal, where the objection to admissibility failed. Those matters are now the subject of an appeal to the High Court of Australia, special leave having been granted on 7 November 2024: CD & Anor v Director of Public Prosecutions (SA) & Anor [2024] HCASL 297.
In New South Wales, there is another stream of litigation. I understand there has been considerable evidence heard before a Local Court on a committal hearing as to how the prosecuting authorities managed to effectively "crack" the system and obtain the information. I am told that there are significant expert issues between competing experts and that the factual underpinning of any challenge to evidence from ANOM in New South Wales will be based on that evidence, which is different to the evidence that was before the Courts in South Australia. What this means is the outcome of the South Australian litigation in the High Court may well not be determinative of the admissibility of ANOM evidence in NSW or indeed anywhere.
All of this has resulted in approximately 50 significant Commonwealth criminal prosecutions in this state, and many others throughout Australia, being effectively put on hold pending resolution of this issue.
It is in that context that I have been invited, on behalf of both Offenders, to give significant weight, over and above what might ordinarily be attracted by an early plea of guilty, when coming to a conclusion as to an appropriate sentence. It is submitted that the plea should be seen as powerful evidence of a willingness to facilitate the orderly administration of the course of justice in Australia: see for example Giles-Adams v The King [2023] NSWCCA 122 at [79]. There is another point made by the Offenders, which is that the pleas should not be seen to have been made in the face of a strong Crown case. Even though the Offenders entered their pleas after the first instance decision in South Australia, the fact is their pleas were entered against the background where it must be accepted that there was a serious challenge to the viability of the Crown case against them. It is clear that the Crown case against the Offenders is based entirely on the material obtained from the ANOM source. If that material is not admissible, the Crown case against each of the Offenders will collapse. On the other hand, it is equally clear that if that evidence is admissible, there is an overwhelmingly strong case against the Offenders. The submission is that I should not assess the plea of guilty against a starting point that it was in the face of a strong, or even inevitable, Crown case. Rather, it should be seen to have been given in circumstances where the Offenders were giving up a real chance of being acquitted.
Secondly and perhaps more importantly, the submission is that the plea of guilty does not just represent significant evidence of contrition and remorse on behalf of the Offenders but it also has produced a significant benefit to the ongoing course of the administration of justice in this country and that there is real utility in there being seen to be a recognition of that and perhaps a message sent to others in similar positions to these Offenders that pleas of guilty entered in circumstances where the outcome of the admissibility of the ANOM communications remains unknown will likely be recognised as beneficial to the orderly operation of the justice system in this country and will have benefit to Offenders on sentence. What weight is given to that benefit will, of course, be dependent on all the factors present in any given case. Nonetheless, there is an obvious benefit to the justice system in providing encouragement to pleas of guilty in these cases in the current, highly unusual circumstances.
I will come to this issue again in my reasons, but in short, I accept the submissions made on behalf of each Offender and propose to allow each Offender not just an expressed percentage to represent the utilitarian value of the plea, but in the overall process of sentencing will give significant weight to the pleas of guilty over and above any arithmetical discount. This is because of the reasons I have just given, but also because I do think that the pleas represent, when taken in context of all of the circumstances, objective evidence of real contrition and remorse.

[8]

Governing approach

The Court must sentence the Offenders to a sentence that "is of a severity appropriate in all the circumstances of the offence": s 16A(1). To arrive at such a sentence, the Court "must" have regard to the factors in s 16A(2) so far as they are "relevant and known" to the Court.
There is nothing in s 16A(2) which "as a whole suggests any hierarchy of considerations or that varying degrees of importance should be placed upon each of the matters set out in subsection (2)": see Totaan v The Queen (2022) 108 NSWLR 17 ("Totaan") per Bell CJ at [83]. However, that also does not mean that the application and weight of principles governing the exercise of the sentencing discretion, developed by Courts of Appeal and the High Court, do not apply for particular classes of offences. It has been determined and said over and over again that general deterrence for drug-related offences is a leading consideration in the sentencing exercise: see for example Lazarus v The King [2023] NSWCCA 214 ("Lazarus") at [1]-[6] per Beech-Jones CJ at CL.
There was some debate before me as to whether the passage in Lazarus is in any way inconsistent with or alters the law as stated in Totaan. I do not think there is any inconsistency. Totaan stands as authority for the proposition that, as between the various criteria identified in the statute, there is no "hierarchy", meaning that there is no starting point as to what weight should be given to any particular factor in any particular case. What Beech-Jones CJ at CL in Lazarus was explaining was that does not mean that, in certain types of cases, certain criteria tend to be more or less significant than in other types of cases. For example, there are types of cases where it is often said that it is almost to be expected that people charged with such offences are otherwise of good character: see for example Director of Public Prosecutions (Cth) v Garside [2016] VSCA 74 at [63]; and R v Howe [2017] QCA 7 at [25]. Thus, such a fact might often attract less weight in the given circumstances of such a case. Another example is the often stated importance of general deterrence when dealing with drug importation type offences. Statements by Appellate Courts to the effect that, in those sort of cases, there is a tendency to more or less weight being given to any one or more of the criteria is not, to my mind, inconsistent with the general proposition that there is no statutory command of a hierarchy. In any event, nothing that is said in any of the cases detracts from the overall proposition that each case must be judged against its own facts to come to an appropriate sentence in light of all of the relevant circumstances. The proposition that, in certain types of cases, some factors tend to attract more or less weight than in others, does not mandate that to be the approach in any particular case and is therefore not inconsistent with the proposition that there is no statutory hierarchy of factors.
The Court can only sentence the Offenders to imprisonment if it is satisfied that no other sentence is appropriate in all the circumstances of the case: s 17A(1).
Regarding the Schedule offence, the proper approach is to increase the penalty for Mr Robertson's importation offence to address principles of specific deterrence, accountability, denunciation, and adequate punishment. The Schedule offence plays no part in the assessment of the objective seriousness of the principal offence.

[13]

Conspiracy offences

Sentencing for a conspiracy offence involves the Court considering factors in addition to and distinct from sentencing for a substantive offence. In particular the Court must consider: 1. The substance of a conspiracy offence is the agreement to participate in organised criminal activity; 2. The overt acts of the co-conspirators, insofar as they bear upon the content, duration, and reality of the conspiracy, including the extent to which the objectives of the conspiracy were achieved; and 3. The conduct of an offender and co-conspirators is relevant as part of identifying the offender's role and position in the conspiracy.
The approach to sentencing for a conspiracy offence was summarised by the NSW Court of Criminal Appeal in Tyler v R [2007] NSWCCA 247 ("Tyler") at [78]-[85]. The Court said (my emphasis added): "It has Long been the case that a relevant consideration in sentencing for conspiracy is the "role" played by the offender being sentenced... ...those who have managerial or decision making functions are seen to occupy a more senior position, and, accordingly, to be more culpable. A relevant factor here is the level of profit to be derived. That is not the same as saying, as was here said, that a participant in a conspiracy is to be sentenced (solely) for what he or she does... Identifying the "role" of a participant by reference to his position in the organisational hierarchy is a very different proposition from isolating the precise physical acts that can be attributed to the particular offender and selecting the punishment by reference solely to those isolated acts. It would be quite artificial, and contrary to the very concept of a conspiracy, to dissect with precision the physical acts of each of the conspirators, and to sentence that conspirator for those acts alone... That is not to say that the physical acts of the offender whose sentence is under consideration are irrelevant. They are relevant, as one part of a complex tapestry..."
Because of the organisational and ongoing nature of a conspiracy, it is wrong to assume that to be involved in a conspiracy is invariably less serious than an equivalent substantive offence. That is demonstrated by the fact that the Code provides the same maximum penalty as for the substantive offence the subject of the conspiracy.
In DPP v Fabriczy (2010) 30 VR 632 ("Fabriczy"), the Victorian Court of Appeal, in rejecting an argument that conspiracy was generally less serious than a substantive offence, stated (my emphasis added): "The element of concert makes the offence of conspiracy more serious than if an individual were acting alone to plan and commit the offence, as the likelihood of the crime occurring is increased by the involvement of multiple participants making a commitment to each other to do so. There is said to be a "dangerousness" inherent in the plotting, "either because several may achieve what an individual would find difficult or impossible, or because other criminal plans may emerge from the group."
On behalf of the Offenders, issue is taken with the Crown's analysis and application of what was said by the Victorian Court of Appeal in Fabriczy. The Offenders accept, as they must, that an offence of conspiracy is complete once the necessary agreement to be involved in the criminal enterprise is reached. However, the Offenders submit, correctly in my judgement, that within any offence of conspiracy there will always be different levels of involvement, and that it may well lead almost to inevitable error on sentence if the starting point for assessing the objective seriousness of what any particular offender did in relation to an involvement in a conspiracy is to equate what that offender actually did with what everyone else involved in the conspiracy was doing. Such an approach would lead as a matter of logic to the same conclusion as to objective seriousness being visited on all people involved in the same conspiracy. Thus, the Offenders emphasise the important distinction between liability and culpability. I accept the Offenders' submissions in this regard, although I feel they were probably overstating what the Crown was trying to say in its submissions. Nonetheless, for the purpose of sentencing for the conspiracy charges, I keep steadily in mind a need to focus on what each Offender actually did.

[14]

The nature and circumstances of the offending: s 16A(2)(a)

I have already largely addressed this issue.
The Offenders take issue with various propositions in the Crown submissions, to the effect that the Offenders "each had leading, instructive, and principal roles in the conspiracy and the importation", which carried with it a "higher degree of responsibility" and that the Offenders were "leading members of the criminal syndicate".
As I have said, the totality of the Crown's case is effectively found in the ANOM communications which are set out in full in the Agreed Statement of Facts.
Both the Crown and the Offenders invited me to read those communications for myself and form a view as to what the Offenders were actually doing and where they stood in the hierarchy of people involved in the criminal syndicate.
I have done that and the end result is that, in my opinion, the Crown is significantly overstating the involvement and position in the conspiracy of the Offenders, whilst the Offenders are perhaps understating their role. Trying very hard to resist the urge to use a "tag" to describe what the Offenders were doing, the analogy that I see here is with an "investor", who is investing money into a joint enterprise with a view to making profit. Unlike some investors who have no visibility as to how their investment is being managed, and little or no ability to give directions as to how it should be managed, it is clear that the Offenders here knew the venture involved the importation of large quantities of drugs into the country and had an ability to ask questions and receive information as to how the shipment of drugs was proceeding, what type of drugs were involved, and what the return on their investment might be. They certainly felt able to offer suggestions, although it is not clear whether anyone else in the syndicate took any notice of those suggestions. I also think that the Crown has not proved that they were a major investor. There is no evidence at all as to how significant their contribution of capital to the enterprise was in terms of amount or even relative to others involved.
I am not satisfied that they were leading members of the syndicate or that they had a principal role in the operation.
Rather, I think that they invested money into an illegal venture which they knew would involve the importation of a significant amount of illicit drugs into Australia with a view to making profit. It cannot be demonstrated, although the Crown has tried to do so by an arithmetical exercise linked to some statements in the communications, how much that financial reward might have been, however, I think it would be fair to say, and I do not think this is in issue and I am satisfied beyond reasonable doubt, that the anticipated return on investment was "significant".
As to the nature and quantity of the drugs imported, Mr Strickland SC has emphasised that it would be quite wrong as a matter of law to accept the Crown submissions as to quantity of the drugs, which is not based on any analysis of the pure amount of drugs imported, but rather is based on a gross weight of drugs, presumably mixed with other material: see R v King (1978) 24 ALR 346 and paragraph 7.3.1 of Anderson, Commonwealth Criminal Law (3rd ed, 2022) at 235. I accept that submission. Nonetheless, the plea indicates that the amount of drugs was above the threshold, but more importantly on any view of the evidence, the amount of drugs involved was significantly above the statutory threshold. However, I can make no finding as to precisely by how much.
For all those reasons, I reject the Crown's invitation to find that the level of offending is in the "high range" and prefer the description that I have tried to set out above, which I think (again at the risk of being criticised for adopting "tags") places the activities of the Offenders significantly below the high range, as an investor with some transparency into management of the investment, but little or no control.

[15]

Other offences required to be taken into account: s 16A(2)(b)

As I have said, Mr Robertson admits that he also conspired to deal with the proceeds of an indictable crime by attempting to "clean" over $1,000,000.
From the Agreed Facts, the amount in question was approximately $5,000,000 in cash.
There is an issue between the parties as to any extent of the overlap in criminality between the money-laundering offence and the conspiracy offence. On behalf of Mr Robertson, it was submitted by Mr Buchen SC that I should find on the balance of probabilities that the money, the subject of the money-laundering offence, was the proceeds of the conspiracy importation. The Crown takes issue with that and submits, I think with considerable force, that a simple review of the chronology makes it unlikely, to the extent that it becomes close to implausible, that it is the same money. The dates are just too close for that to make sense.
Having considered the competing arguments on this issue and having closely scrutinised the chronology of events from the facts disclosed in the ANOM communications, I am not satisfied on the balance of probabilities that the money, the subject of the money-laundering offence, is the proceeds of the conspiracy. I am satisfied beyond reasonable doubt by inference that the money was sourced from activities involving illegality.
Accordingly, I am left in the state of not knowing whether the monies are linked to the conspiracy to import or not.
What that means is that when I come to assess the impact that the s 16A(2)(b) considerations might have on Mr Robertson's sentence, I do not know the degree, if any, of overlap between the two offences.
There is little doubt that the messages between Mr Robertson and "mr.monopoly" or "nobodyhurry" demonstrate that he gave considerable thought to the logistics and cost of laundering the money to avoid detection, although the exact details of how the money was to be "cleaned" did not appear to have been finalised.

[20]

Mr Westwood

Dealing firstly with Mr Westwood.
He was 46 years old at the time of committing the offence and is 49 today.
His background and personal circumstances are comprehensively set out in a series of affidavits from his mother, his wife, his own letter and "life story" document, and reports of Dr Ellis and Professor Parker.
Mr Westwood does have some limited criminal history. In 2000, he was sentenced to a full-time term of imprisonment of 2 years with a non-parole period of 1 year for a drug supply offence with a number of other offences on a Form One. He also has a record of a minor driving offence in 2018.
In light of his background and deprived childhood to which I will come, I put to one side his previous criminal history. The supply offence in 2000 involved him performing the role as a "driver" for his stepfather's brother. I think that offending was a consequence of his deprived background and exposure to his stepfather, and, in any event, occurred almost 24 years ago.
Quite frankly, in light of the personal circumstances of the Offender, notwithstanding that he has a criminal history, the relevant factor to my mind is a lack of any significant criminal history for the last 24 years.
Mr Westwood suffers from a reasonably significant mental condition. Dr Ellis has diagnosed him with substance use disorder, personality disorder, substance induced mood disorder, generalised anxiety disorder, and a reading disorder. Professor Parker has diagnosed the Offender in addition to the above with bipolar disorder, and Dr Ellis in a subsequent report has accepted that diagnosis. Dr Ellis has provided an opinion, which I accept, explaining how these conditions contributed to the offending, in that he was under psychological stress at the time, including financial stress and the stress of supporting a child with special needs. The offending was motivated by that financial stress in circumstances where his decision-making was affected by his personality disorder, which in turn arises out of his developmental history of parental abandonment and exposure to domestic violence.
As to the Offender's experience of childhood and adolescent trauma, they are described in detail in the material and I do not think it is productive to record in detail in these reasons what occurred to him as a boy. Sufficed to say, Mr Westwood was a direct victim of significant family violence at the hand of his stepfather, he had early exposure to alcohol and other substance abuse and violence and crime within his extended family and communities, and his parents separated and he lost contact with his biological father.
It is common ground that the experiences of Mr Westwood engage the principles described in cases like Bugmy v The Queen (2013) 249 CLR 571 ("Bugmy"), as explained in cases like R v Irwin [2019] NSWCCA 133.
Whilst it is not necessary to establish a causal link between the disadvantaged situation to enliven the principles (see for example R v MJ [2023] NSWCCA 306), in this case, I am comfortably satisfied that there is a direct link between Mr Westwood's traumatic and disadvantaged upbringing and the offending and will give it full weight. The same can be said of his mental health issues, which I think are causally connected to the offending and are probably themselves in part a consequence of his traumatic childhood.
As to Mr Westwood's prospects of rehabilitation and likelihood of reoffending, I consider that he has significantly good prospects of being fully rehabilitated and indeed, I suspect he has already been largely rehabilitated and consequently has a very low likelihood of reoffending.
The reports of Mr Westwood's behaviour whilst in custody to date are outstanding.
The case notes from the Correctives staff paint the picture of a highly motivated and responsible prisoner who is doing his very best to improve his own lot and the lot of those around him whilst in custody. He has recognised the harm his offending has done to both himself, his family, and his community. He has pleaded guilty and accepted responsibility for the offence, he has expressed significant and genuine remorse, he has a strong work history, and very good prospects of obtaining work upon being released.
Mr Westwood has a deep love and commitment to his children and a deep sense of responsibility, in particular to his youngest son who requires significant support. There is a comprehensive and holistic treatment plan recommended by Dr Ellis which the Offender is committed to undertaking upon his release.
I conclude that Mr Westwood has excellent prospects of rehabilitation and is unlikely to reoffend.

[21]

Mr Robertson

Dealing then with Mr Robertson.
Mr Robertson is also 49 years old and was 46 at the time of the offending.
Mr Robertson has a criminal history which is largely historical and unrelated and relatively minor. Like Mr Westwood, I will put that to one side, although I again note that in light of his upbringing the surprising factor is the lack of any significant criminal history.
Mr Robertson's childhood involved deprivation of a most significant kind. His history is considered in detail in reports of Dr Anthony Henderson and of Professor Stephen Woods. Again, I do not think it productive to go through the Offender's life history in excruciating detail. It is corroborated from a variety of sources and not challenged by the Crown, I accept it. In short, his father was a heroin addict and his mother "dabbled in drugs", his earliest childhood memory is of his mother's boyfriend entering the house with a gun and threatening to shoot his father, people also often came to the house looking for his father because he owed them money for drugs, his father was consistently involved in criminal activity and was "almost always on drugs" and would often shoot up heroin in his presence. He moved regularly which involved going to many schools, his stepfather was an extremely violent man who assaulted his mother at least once or twice a week, and so on.
The medical practitioners who have seen Mr Robertson believe that there is a direct causal relationship between his background and the offending.
I accept that Mr Robertson is entitled to the full benefit of the Bugmy-type principle.
Mr Robertson's motive was a perceived desperate need to extract himself from poverty. This it seems was based on a misguided belief that his children could avoid the type of upbringing that he endured, if only he could get some money together. It is accepted that this thinking was irrational, but that irrational thinking was a consequence of his upbringing.
Mr Robertson suffers from PTSD, major depressive disorder, and a stimulant and sedative substance disorder.
The PTSD is as a direct consequence of his childhood related trauma. Dr Henderson concludes that there is a significant material relevant causal relationship between Mr Robertson's deprived upbringing, his mental health impairment, and his offending behaviour.
As to remorse and contrition, like Mr Westwood this is significant in Mr Robertson's case.
It is plain to me that Mr Robertson is genuinely and deeply remorseful for his conduct and has insight into the consequences of his offending. He has been an exemplary prisoner.
The Chaplain of the Metropolitan Remand and Reception Centre, the Reverend Steve House, speaks highly of Mr Robertson and has said "he appears to be extremely remorseful for his actions, the pain, the stress, and the cost it has caused his family, friends, loved ones, and the community".
Like Mr Westwood, Mr Robertson's conduct in custody can only be described as exemplary. Mr Robertson has taken advantage of the limited options available to him whilst on remand, to improve himself he has completed various programs with distinction. Mr Robertson has been described as "welcoming and encouraging and to have a good rapport with staff and fellow inmates".
Finally, Mr Robertson suffers from a significant spinal issue, he has lumbar spine degeneration and disc protrusion and annular fissuring with potential impingement on the L5 nerve root.
This has made and will continue to make the time he spent in custody more onerous than on people without such issues.

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Judgment (28 paragraphs)

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Cases Cited (17)