R v Sikais

R v Sikais - [2024] NSWDC 80 - NSWDC 2024 case summary — Zoe

[8]

PRINCIPLES OF SENTENCING FOR DRUG OFFENCES

General deterrence and denunciation are important considerations in sentencing for drug supply and importation offences. Such considerations will generally outweigh subjective circumstances, particularly in the determination of the total sentence, and condign punishment will be warranted in almost every case.
In R v Nguyen; R v Pham [2010] NSWCCA 238, Johnson J (with whom MacFarlan JA and RA Hulme J agreed) summarised the following principles that apply to sentencing for drug importation offences. The Crown submits and I accept that these principles are applicable to this matter: 1. the criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation; 2. problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court; 3. it is the criminality involved in the importation which must be identified - the fact that another person may be characterised as the mastermind does not mean that a person who is responsible for managing the importation into Australia is properly described as having only a middle level of responsibility; 4. although the weight of the drug imported is not the principle factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported; 5. the statements by the High Court in Wong v The Queen; Leung v The Queen (2001) 207 CLR 584 do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant fact in determining the objective seriousness of the offence; 6. as a matter of common sense it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit; 7. the difficulty of detecting importation offences and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case; 8. the sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment; 9. involvement in any level of a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served; the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence;

[10]

Quantity and value of the drug

The NSW Court of Criminal Appeal has emphasised, on a number of occasions, that in many cases the only factor that can lead to a determination that one matter is worse than another would be the amount of drug involved where otherwise the circumstances of the matter were the same or very similar. The weight of the drug is relevant, for example, as an indication of the potential harm that may be inflicted on the community and the size of any anticipated profit.
The value of the drug is relevant as demonstrating the commerciality of the offending, the motivation for the offender to commit the offence and the temptation for others to commit such offending because of the rewards involved.
In determining the objective gravity of an importation offence for GBL, it has been said in Victoria that the Court can have regard to the reduced reward differential between GBL and commercial quantities of other drugs when determining the objective gravity for offending. In Director of Public Prosecutions (Cth) v Maxwell (2013) A Crim R 218 at [24] the Court held: "The offending in the present case may be contrasted with offences that involve complex international operations and millions of dollars of expected profits. This importation involved an online purchase at low cost and with low returns. Her Honour noted the relatively low value for the GBL as compared to other drugs and concluded that "objectively, the offending is at the lower end of seriousness within the range of this very serious offence.""
The NSW Court of Criminal Appeal adopted the rational of Maxwell with respect to dealing with the importation of GBL: Petkos v R [2020] NSWCCA 55 at [27]-[28]; Bott v R [2023] NSWCCA 255 at [99]-[100]. However, the amount of GBL imported in Maxwell was three litres, significantly lower than the amount the offender is to be sentenced for importing in the present case, being 43.26kg.
To sum up, the quantity and value of the drug together with the financial reward to an offender is but one factor to take into account, together with his role, the amount of drugs involved, the potential harm caused by those drugs, which are all to be considered as part of the instinctive synthesis.

[13]

Objective seriousness - Count 1/Sequence 1

The Crown has submitted and I accept, that the following factors are relevant in determining objective seriousness: 1. The offender is to be sentenced for supplying 24.24kg of 1,4 Butanediol. The threshold for a large commercial quantity of this drug is 4kg, meaning the offender supplied more than 6 times the minimum quantity for this offence. 2. The purity level of the drug was high (97.5% pure). 3. The consignment containing the concealed drugs was addressed to James Hype of an address known to the Court. The offender admitted to police that he was the only person who lived at that address. He told the UCO that he was James Hype. The contact number for the consignment was falsely registered in the name of Andrew Sharkawi. These were attempts to avoid detection. 4. The supply involved planning and preparation in organising for the consignment to be delivered to the offender's home under the false name. 5. Police located drug paraphernalia at the offender's home including scales, syringes and ice pipes. 6. The offender's phone was analysed and found to contain images, messages, and contacts that were consistent with the offender's involvement in drug-related activities. 7. The offender was an active participant in criminal conduct. 8. The offender's role appears to have been central to the supply of the drug: the consignment was addressed to his home and he and willingly accepted it whilst knowing what it contained.
I have already noted that the offender has referred me to what the Court of Criminal Appeal said in Bott v R [2023] NSWCCA at [85] - [87] per Danji J referring to comments by the Victorian Court of Appeal in DPP Cth v Maxwell (2013) 228 A Crim R 227.
It is submitted by the offender that the degree of differentiation in prescribed large commercial quantities between different drugs is a poor indicator of whether diminished weight should be given to sentencing factors such as general deterrence for so called "low reward" drugs. The offender's point is that there can be no bright line and that the analysis in Maxwell's case cannot be inapplicable to the New South Wales Act simply because the New South Wales Act apparently provides for greater differentiation. The offender's second point is that a proper reading of Bott's case is that a court is entitled to discriminate between different prohibited drugs but must be cognisant of the fact that the legislature has provided for a degree of discrimination in Schedule One in the first place.
Ultimately, I think the offender's point is that when performing the instinctive synthesis process the Court must consider the weight to be given to sentencing factors such as general deterrence. In the present case the offender submits that because of the likely lower reward involving an offence in respect of butanediol the Court ought to give less weight to that factor than it would for harder drugs
Finally the offender has submitted that I should give no weight to the prosecutors reliance upon the purity level of the drug in the absence of any evidence. See Farkas v The Queen (2014) 243 A Crim R 388 at [329].
I think there is much to be said for the various submissions made by the offender but nonetheless have concluded that the objective seriousness of the offending giving rise to count one is approaching the mid-range.

[17]

(d) the offender has a record of previous convictions

The offender has a lengthy criminal record dating back to 2017. The offences on his record are largely unrelated to the present offending, however there are a number of convictions for resisting and assaulting police officers and possession of drugs:

2017: Assault police officer, fail to comply with requirement to submit to search, behave in offensive manner, resist police, destroy/damage property The offender was fined and a s 9 bond (as it then was) was imposed for 12 months, which was later called up and a Community Correction Order for 2 years was imposed. These matters were again called up and an Intensive Correction Order for 12 months was imposed.
2017: Assault police, destroy/damage property, use offensive language in public. The offender was fined and a s 9 bond imposed to be of good behaviour for 18 months.
2018: owner not disclose identity of driver/passenger . The offender was fined $500.
2018: Assault police, resist officer, affray, destroy/damage property, behave in offensive manner, intimidate police officer The offender received an Intensive Correction Order for 20 months.
2018: Possess prohibited drug, resist police officer The offender was fined $600 for the drug offence and received a s 10A conviction with no other penalty for the resist police offence.
2020: Drive vehicle with illicit drug present, possess prohibited drug x 2 The offender received fines, a disqualification and a s10A conviction.
2020: Assault police x 2, common assault x 3, fail to leave premises when required The offender received an Intensive Correction Order for 12 months.
2020: Resist officer The offender received an Intensive Correction Order for 8 months.
2021: owner of dog which attacks person The offender was fined $1200.
2021: possess prohibited drug x 2 The offender received a Community Correction Order for 12 months.

The offender 's criminal record is not something he ought to be proud of. It shows a general disregard for the law but in his favour nothing of the severity of these offences features in his past record.

[22]

Prospects of Rehabilitation

As far as the prospects of rehabilitation of the offender are concerned, which is directly linked to his prospects of reoffending, this case, like so many of these cases, eventually boils down to the question of the prospects of him becoming drug-free.
In my judgement, if he can become and maintain a drug-free status he will probably not reoffend and is therefore not a danger to the community but on the other hand if he relapses and continues to take hard drugs he will almost certainly reoffend.
I have taken into account his history to date of trying but failing to become drug-free but also my finding that he does appear to be significantly motivated to achieve success. I think he has reasonable prospects of becoming drug-free which means that he also has reasonable prospects of not reoffending.
There is a body of evidence to suggest that he has attended a number of courses whilst in prison and successfully stayed off drugs whilst in prison. Whilst I appreciate that it is perhaps easier to become drug-free in the controlled environment of a prison, this is to his credit and is why I am satisfied that he is significantly motivated to getting off drugs.
As I have said, the offender is a long term drug addict. Whilst this is not a mitigating circumstance see R v Chapman (2001) NSW CCA 457 at [13] that does not mean it is not relevant. First of all it is relevant in the sense that it provides an explanation (albeit not an excuse for the offending) but secondly gives guidance as to his prospects of rehabilitation and re-offending.
As was explained in R v Henry (1999) 46 NSWLR 346 at [398] his drug addiction sheds light on both the objective seriousness of the offence and that there is an absence of any motivation to fund some other serious criminal venture .
The offender has submitted that I should take into account in his favour mental health issues. In support of that a report of Kris North psychologist has been tendered however that report whilst indicating that the offender suffers psychotic episodes and other symptoms consistent with various mental health conditions those symptoms are also consistent with his drug addiction including psychotic episodes when he is using or coming off drugs.
I think the furthest I can take the relevance of the mental health issue in this case is to identify that the offender potentially has mental health issues which may or may not be tied up with his drug addiction but most certainly are exacerbated by him taking drugs.

[24]

Nature and circumstances of the offences: s 16A(2)(a)

The nature of the offence, and the circumstances in which it was committed, are set out in detail in the Agreed Statement of Facts. I also take into account the matters I have discussed under the heading "The Offender's Subjective Case".
With respect to the Commonwealth offence of importing a commercial quantity of gamma-butyrolactone (GBL), this is a serious example of this kind of offending. The threshold for a commercial quantity of GBL is 1 kilogram and the pure weight of the GBL imported was 43.26kg, over 43 times the threshold. The offender played an important role in importing the substance into Australia.
Regarding the offender's role in the importation, the Agreed Facts show: 1. The offender imported four consignments that contained GBL: two from Poland addressed to "Tim Fields", and two from Germany addressed to "John Denny". 2. These consignments contained, respectively, pure weights of GBL of 10.7kg, 10.82kg, 10.89kg and 10.85kg. The combined weight of the imported GBL for which the offender is to be sentenced was 43.26kg. 3. The contact number for the consignment for sequence one (supply large commercial quantity) had also been nominated as the contact number for the Poland consignments. 4. "John Denny" was a stolen alias, with the real John Denny having lost his wallet and subsequently been the victim of identity theft. A phone with a number registered in the name of the offender showed an image of identity documents in the name of John Denny. 5. An analysis of bank accounts linked to the offender revealed a number of prior transactions in June 2022 in which PayPal payments were made from his accounts to a payee of "INDUSCLEAN" (being the vendor of the GBL). Payments were also made in June and July 2022 to "FORWARD2ME", which was the consignor company for the Poland consignments and to "MYGERMANY", which was the consignor for the German consignments. 6. The offender was keenly tracking the arrival of the German consignments into Australia. 7. The offender was integral to the scheme to import border-controlled drugs into Australia.

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