R v Pham [2010] NSWCCA 238
R v Osenkowski (1982) 30 SASR 212
(1982) 5 A Crim R 394
Tiknius v R [2011] NSWCCA 215
Category: Sentence
Parties: Regina (Commonwealth Director of Public Prosections)
Source
Original judgment source is linked above.
Catchwords
R v Pham [2010] NSWCCA 238
R v Osenkowski (1982) 30 SASR 212(1982) 5 A Crim R 394
Tiknius v R [2011] NSWCCA 215
Category: Sentence
Parties: Regina (Commonwealth Director of Public Prosections)
Judgment (5 paragraphs)
[1]
Mr A Djemal (Counsel for Offender)
File Number(s): 2020/00279215
[2]
Judgment
Beau Van Der Maas, who is now 41 years old, has pleaded guilty to Commonwealth and State offences in relation to his involvement with a drug operation over a short period of time in September 2020. He has been in custody since his arrest on 25 September 2020. It is agreed that, having regard to Commonwealth and State sentencing principles and legislation, a term of fulltime custody is required and it is unnecessary for me to consider any alternatives.
It is clear that an aggregate sentence may be imposed for the Commonwealth offences and a separate sentence for the State offences.
He has pleaded guilty at an early opportunity, in circumstances justifying a 25%discount, pursuant to both State and Commonwealth sentencing regimes.
The offender has been charged with the following Commonwealth offences:
1. Sequence 5 an offence of trafficking in controlled drugs in excess of the commercial quantity contrary to s 302.2 of the Criminal Code (Cth) in relation to 1.784kg heroin, 793g of monacetylmorphine (MAM) and 1kg of cocaine, totalling 3.758kg of controlled drugs. The maximum penalty for this offence is life imprisonment.
1. To be dealt with on s 16BA schedule in relation to this sequence, is an offence of trafficking in a controlled drug contrary to s 302.4 of the Criminal Code (Cth) namely 2.8g of methylamphetamine (Sequence 7). The maximum penalty for this offence is two years imprisonment.
1. Sequence 17 is an offence of being recklessly deal with proceeds of crime money/property contrary to s 400.4 of the Criminal Code (Cth), in relation to $314,000 which was located on his arrest. The maximum penalty for this offence is 10 years imprisonment.
The offender has been charged with the following State offences:
1. Sequence 10, supply a commercial quantity of prohibited drug, being 1.2678 kilograms of Alprazolam, or Valium as it is more commonly known contrary to 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty is 20 years imprisonment with a standard non-parole period of 10 years.
1. To be taken into account on a Form 1 attached to sequence 10 is sequence 12 of possessing equipment or material designed or adapted for making a false document contrary to s 256(2) of the Crimes Act 1900. Sequence 12 carries a maximum penalty of three years imprisonment.
The matters on the Form 1 and on s 16BA schedule will be dealt in the way suggested by analogy by CJ Spiegelman in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146.
The agreed facts are commendably short, particularly in Commonwealth matters but they have been supplemented by a very significant degree of evidence as to what is put as non-exculpatory duress, in relation to the circumstances of the offending, as well as a significant largely unchallenged subjective case on his behalf.
The agreed facts show that the offender was 38 years of age at the time of the offences. He is an Australian citizen. Between 6 September 2019 and 1 August 2020 he lived overseas. The Australian Federal Police commenced an investigation in September 2020 into the importation of border-controlled drugs through the postal system. In the course of that operation, a one-bedroom apartment in Crows Nest with a secure car spot was identified as a location of interest.
Mr Van Der Maas started renting these premises about a month before his arrest on 25 September 2020. He booked and paid for the rent until 26 September at a cost of $4,500.
On 25 September the police executed the search warrant at the premises, he was there. They found $315,200 in various denominations of Australian cash. They found bags including 14 boxes of heroin and MAM, prescription drugs, utensils for smoking drugs, a heat-sealing machine, numerous mobile phones for encrypted communications, numerous SIM cards, a BMW Coupe parked in the car spot which had the number of the offender's mother on a tag on the key chain. The Police also located a money-counting machine during their search.
On a number of occasions before his arrest, witnesses had observed Mr Van Der Maas in the company of another man in the secure carpark. They were going to and from the unit carrying bags from the carpark to the premises. There was a black Mercedes frequently parked in another parking spot.
The BMW was searched and there were blocks of heroin and MAM and cocaine found in it. His DNA was on the gear stick and handbrake. The BMW was registered to a Mr Carn, who is a friend of the offender. Mr Carn told Police that in April 2016 the offender asked if he could register a BMW in Carn's name, to which Carn agreed.
The weights of the drugs seized are as I have already indicated. The items which are the subject of sequence 12 and were located in the truck of the white BMW. They included laminating patches, holographic stickers, imaging paper and blank cards. They were designed for making false documents, namely New South Wales drivers' licence.
After his arrest, he declined to take part in a record of interview, but he did have a conversation with Police in which he said that he smoked heroin around 6 am on the day the search warrant was executed and may need some medication because he would withdraw from the drugs. He took drugs daily. During the course of the search, he went into the toilet and vomited.
The offender was charged and refused bail.
His phone was examined. There were a number of messages which referred to what was said originally in the facts, but there is a dispute, to be the use of manufacture of illicit drugs but the evidence did not take that point very far.
His criminal record is not one that entitles him to any leniency. He has spent, according to his evidence, about 10 years in custody and served terms of imprisonment in total of about 20 years, including the non-parole periods. Principally, there was a supply prohibited drug offence in 2001, for which he was given a term of imprisonment of 18 months suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999. In 2005, there was a sentence of two and a half years with a non-parole period of 12 months for supply prohibited drug. Another offence of goods in custody for which he served six months in prison. There was a further term of imprisonment imposed in 2008, of nine years and six months with a non-parole period of five years and one month for supplying prohibited drug. There also appears to be a concurrent sentence of three years and six months for receiving. Ultimately, he last went into custody for the lengthy term of imprisonment for drug supply in July 2008 and was released to parole in April 2015.
The offender gave evidence and confirmed the detailed history which was set out in the psychologist's report. In short, he was born in Melbourne, his parents separated when he was two, when his father returned to his homeland in the Netherlands. His mother is Australian. He said when he was in after-school care at age five, he was abused by two different carers, and the sexual abuse went on for 18 months. He said he did not know what to say, he was hiding blood from his underpants. He said he used to be outgoing as a kid but he became very timid after the sexual abuse.
Then again at age seven, he was sexually abused by a cleaner or personal assistant. He said he was terrified of the threats that he was told by this abuser, "If you say anything to your mum, I'll kill her." He had memories of being locked in the closet and the evidence shows that he has instructed solicitors to commence civil proceedings, no doubt seeking damages in relation to those matters.
At a very young age he witnessed his mother go through extreme depression and felt a responsibility for caring for her. He started using drugs at age 11, being cannabis and LSD. At age 12 he had a friendship with two people at school and one of them disclosed that she had been sexually abused by her father and, up until that point, he had never disclosed his abuse to anyone. He said he blocked it out.
He has had four significant relationships.
He went to primary school and then to Cranbrook where he said he was not accepted; he was bullied for coming from a public school. He finished the second half of Year 11 at Balmain High School.
He started his involvement in criminal activity at age 22. He started using buprenorphine while in gaol. When he was released from his long sentence at age 33, he worked in a car yard for about six months. He had other employment as a general manager and a sales representative.
He then went to Holland to spend time with his father, worked at a petrol station and he went back and forth to Australia for about two years.
He said he started using drugs while looking for ways to forget his sexual abuse. He said his time in Goulburn involved him being with some of the most violent inmates who had committed serious offences, such as murder and serving life imprisonment. He was fearful and witnessed stabbings and other acts of violence.
When he came out of prison after that lengthy sentence, he was motivated to help himself. He engaged in counselling sessions with a psychologist, and he started to make some gains. He found work. After he finished his parole in 2018, he went to meet his father in Thailand. They had a fight and he ended up in someone's house where the people were smoking ice. He suspected that his drink was spiked. He was involved in a fight and suffered severe injuries in trying to retrieve his wallet, which had been stolen. After five hours of beatings, he said he was let go and he went back to Holland.
There was a disconnect with his father and feeling of resentment towards him, and there was another relapse because being with his father had triggered memories of his abuse once again.
He started to use heroin heavily and accrued a drug debt of $120,000.
He left Australia in an attempt to get himself clean and was scheduled to attend a rehabilitation centre in Portugal in October 2020. There is a letter from that retreat in evidence which confirms that assertion.
He wanted to assist his mother with her property, after a storm damaged her house and led to him coming back to Australia.
He said that threats were made by drug dealers. He had been contacted by a previous drug supplier in January 2020. That man made threats to him, on the phone, against himself and his mother. He said to the psychologist and in evidence that he believed the threats were genuine and the thought of any harm coming to his mother distressed him, as they knew where she lived. They said, "We will force you to come back" and there is a statement from the mother which confirms the threatening behaviour and his story of substance abuse.
She said that she received text messages which seemed to be threatening and when she went to visit him at Parklea one day, she said she was approached by two men who said to her, "You'd better tell your son that he'd better put his hand up to all the drugs and everything else found. We know [where you live] and we'll be back." She believed the man had a gun and she was frightened for her safety. She called Australian Federal Police and she made a statement to Hornsby Police.
In August 2020, Mr Van Der Maas came back to Australia and spent 14 days in quarantine. He agreed to meet the drug dealers, thinking they would have compassion for his situation, and he asked for six to 12 months to allow him to get some money together. He said he was told that if he ran away again, they were going to approach his mother and they did not care that she had no money.
He was told, "You have to do anything we say. We'll use your place and don't ask questions." He was instructed to sleep on the couch in the lounge room and was not allowed in the bedroom. He told them he had a heroin addiction and needed to go out in order to obtain heroin and they put heroin and Xanax in with the groceries that they provided. He said he did not ask any questions.
He said he was constantly intoxicated and did not shower for a few days. All he wanted to do was get high. These people had a gun and they were angry and aggressive towards him, constantly asking whether he was going to run away again. He had suicidal ideation.
One of the drug dealers had a key to the unit and dropped by periodically to ensure that he was there. He said he did not know what was being stored inside the premises, but he accepted that he was guilty for allowing them to use his premises and he turned a blind eye because he was scared for his life and his mother's life at the time.
He said his arrest was the best thing that had happened to him because he is drug free which has allowed him to focus on his underlying psychopathology and work during his current period in custody.
He was diagnosed as having post-traumatic stress disorder, major depressive disorder, anxious distress, opioid use disorder, cannabis use disorder and a sedative, hypnotic and anxiolytic use disorder. A psychologist said his significant trauma experiences predisposed him to interpersonal difficulties, depression, drug misuse and criminality and his drug use was compounding or exacerbating his cycle of helplessness and thus his overall depression. The threats made to him and his mother were significant and relevant to his childhood trauma and it is likely that he was retriggered by trauma, helplessness and hopelessness, making him more compliant of such demands.
There was a clear trajectory between his comorbid mental health impairments and his index offending, so that, in the absence of his trauma, he would not have committed the offence.
He has abstained from drugs for almost two years that he has been in custody, so his substance use would be in sustained remission. This is the longest period of abstinence that he has sustained to date.
Additional protective factors include his appraisal of gaol being salutary, the strong support of his partner and family, stable accommodation and plans to obtain employment inside and commitment to engage in therapy to resolve his longstanding, unresolved traumas that have perpetuated his ongoing drug misuse, reported progress made in psychotherapy. All of those factors support a positive prognosis and a reduced risk of recidivism.
There is a very substantial quantity of written material from family and friends and his partner, which all support the case that is put by him. His partner says that, sadly, they both share the same trauma of childhood abandonment and sexual abuse.
There is a letter from his counsellor who saw him between July 2017 and May 2018, and at that time he was highly motivated and committed to recovery, with consistent and reliable attendance to therapy sessions. He was described as a resilient and kind-hearted individual with a motivated, open and positive attitude.
There is a lengthy letter from the offender to the court, pointing out his private counselling sessions that he has been having in custody since October 2020, which are helping him to challenge his negative self-beliefs. He has been employed while in custody and there are a number of certificates which show his dedication to completing courses while in custody.
He has a detailed letter of support from the prison chaplain, who says that he has shown a deep sense of remorse for the wrongs he has committed and that being in gaol is a real wake-up call for him, it has saved his life. He has taken responsibility for what he did and his main motivation is to become a better person.
A prison officer wrote a note that says,
"Inmate has great work ethic and is always consistent. He is completing set tasks in the timeframe given. He follows workshop routine and wears appropriate PPE. He is also a peer mentor and has been able to help a lot of new inmates coming into gaol and he has a lot of respect from them because of it. Nil issues with his behaviour."
There is an affidavit from the offender's solicitor which sets out the significant periods of isolation that the offender has endured while in custody, giveN the COVID pandemic. There have been lengthy periods where he has been unable to make phone calls, have contact with his family or be out of his cell. He has been locked in his cells for many, many days since being taken into custody and that evidence is consistent with material being put before the court on an almost daily basis in respect of people in custody during the pandemic and there is no indication of the situation changing for the better in the foreseeable future.
When Mr Van Der Maas gave evidence on the last occasion, it was put to him that the reason why he stayed in the premises was because he expected he would be receiving drugs in return for the safekeeping of the drugs and he said, "That's correct."
It was put to him, "It wasn't because you had a great fear for your safety and your mother's safety; what do you say to that?" and he said, "That's incorrect. I was very much in fear for my safety and my mother's safety."
It was put to him that the great motivator was the free supply of drugs, as opposed to the safety of his mother and himself and he frankly acknowledged, "I was definitely a junkie but the priority was always and always will be the safety of my mother and my family."
In answer to the proposition that he should have gone to the police, he said,
"My mother's very old. To uproot her from where she lives and ask her to go into witness protection was a lot to ask someone and that period of my life I was not thinking clearly. I was very in the deep and thick of an addiction and extreme opiate addiction. I wasn't thinking clearly at the time."
But, on reflection, he says if he was approached again about those circumstances, he would definitely contact the authorities because he is clear headed now and has had time to think about it.
The court has been assisted by helpful written submissions from the Crown Prosecutor and by Mr Djemal for the offender. The general principles for sentencing, for both State and Commonwealth offences, have been summarised and annexed to the Commonwealth submissions.
The guiding principle under s 16A of the Crimes Act 1914 (Cth) is to impose a sentence of a severity appropriate in all the circumstances of the offence, taking into account the factors which are set out as relevant matters to be considered.
As to the State offences, clearly the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999, as well as various aggravating and mitigating factors, should be considered.
The maximum penalties in each case and the standard non-parole period, where appropriate, are important yardsticks in the sentencing process.
The Crown notes that the offender bears an evidentiary burden of establishing on balance, the non-exculpatory duress which has been at the forefront of Mr Djemal's submissions. The policy considerations underlying consideration of duress must be kept in mind, including the reasonableness of the person's failure to report it in relation to the police and seek protection.
General deterrence would also have a significant role because it can operate as a disincentive to criminal intimidation by those imposing duress.
The general principles for sentencing for drug offences were set out in R v Nguyen; R v Pham [2010] NSWCCA 238. The important feature to consider is the involvement or the role of the offender and the criminality involved in the offending, rather than purely focusing on the amount of drugs involved in any particular offence.
The offender in this case was, as the Crown submits, a trusted custodian of drugs and money on behalf of those people with whom he associated in connection with his drug habit. This submission must be used carefully in the context of his evidence, as to his drug addled condition and his fear for his safety and his mother's safety.
As to the Commonwealth money laundering offence, the charge to which he has pleaded is that he was reckless as to the money being the proceeds of crime. He accepts by his plea that he was aware that there was a substantial risk that those funds were the proceeds of crime. I accept the Crown's submission that the objective seriousness of that offence is towards but slightly above the bottom end of the range.
As to the State drug offence, the amount of drug that was involved has been specified and the Crown acknowledges that the offence being committed for financial gain would be an aggravating factor. The fact that he was acting under duress may be taken into account in mitigation to a certain extent.
The Crown correctly highlights, against the background of the significant criminal record, the need for specific deterrence to feature in the sentencing process, as is the need for general deterrence in cases involving trafficking and supply prohibited drugs and the proceeds of crime offences related to it.
The Crown acknowledges that the offender's mental conditions contributed in some way to his offending in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 terms but asserts that there is a need for specific deterrence, notwithstanding that causal nexus. because, as the Crown points out, the causal nexus presents him as someone a danger to the community, although his steps towards rehabilitation, which the Crown acknowledges, are positive factors.
The Crown accepts that he has made promising steps towards rehabilitation, but his prospects are probably guarded, given the lengthy history of criminal activity. In my view, given his acknowledgement of the seriousness of his offending and his abstinence and willingness to engage in rehabilitation programs in custody and on his release, his prospects are reasonably favourable.
The Crown has provided reference to four cases which, as Mr Djemal points out, were not on all fours with this case because of the unusual factual circumstances. As the Crown points out, reference to statistics alone may not be of great help but there is, as the courts have said, some benefit in looking at sentences imposed in other cases, as a check against the sentence that is proposed in the present case and I have taken account of what was said in the judgments provided by the Crown, namely R v Blair [2005] NSWCCA 78, DPP (Cth) v Merrill (a Pseudonym) [2015] VSCA 52; , Du Randt v The Queen [2008] NSWCCA 121 and Lim v The Queen [2018] VSCA 64.
The Crown puts that if the court finds that duress did contribute to the offending in such a way that his moral culpability is reduced, then such reduction ought be marginal because, on the Crown's submission, his conduct was primarily motivated by his intention to obtain a constant supply of drugs and reduce his drug debt. For the reasons which have been set out by Mr Djemal in his submissions, which I will come to, I do not accept that the reduction should be marginal; rather, it should be relatively significant.
The offender's submissions as to the Commonwealth drug offence point to his role, occurring over a limited period of four days as a custodian or, as Mr Djemal puts it, as a bailee of the drugs, between the period of 21 and 25 September 2020. His involvement in storing the drugs exposed him to a great risk of being caught, which is consistent with it being low within the hierarchy of a drug supply chain.
Ultimately, I accept the submission that the objective seriousness of that offence was below mid-range.
Apart from the De La Rosa element which has been dealt with, Mr Djemal also points out that the childhood of the offender is such as to enable the court to give significant weight to his deprivation in the way described by the court in Bugmy v The Queen (2013) 249 CLR 571.
As Wood J said in R v Fernando (1992) 76 A Crim R 58,a background of that kind may compromise a person's capacity to mature and learn from experience. It is a feature of a person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending because the effects of childhood deprivation do not diminish with the passage of time and repeated offending.
He has clearly demonstrated remorse, by his timely plea and the letters evidenced to the court and statements to family and friends and the psychologist.
He is entitled to the benefit of a finding that there was non-exculpatory duress, in the way described by Johnson J in Tiknius v R [2011] NSWCCA 215 so that the threats which I find were made to him may affect the degree of his subjective or moral culpability. It also affects his prospects of rehabilitation because the fact the offence has not been committed out of motives of greed or malice but rather out of fear, may carry with it the consequence that if the fear is removed the offender will be unlikely to offend again.
The Crown did not challenge the offender as to the veracity of the threats and there is unchallenged evidence from his mother as to the threats. The Crown rather put the proposition only that the alternative available to him was to report his threats to a third party, which he dealt with satisfactorily. Thus, the sentence should be mitigated in accordance with what was said in Tiknius v R [2011] NSWCCA 215.
There is clearly a basis for a finding of special circumstances, given that his offending behaviour was directly linked to his mental health conditions and drug use and the conditions in custody during the COVID pandemic are also matters to be taken into account.
He is perhaps truly one of those people who are at the crossroads of his life, as the Chief Justice said in R v Osenkowski (1982) 30 SASR 212; (1982) 5 A Crim R 394 or as Wood CJ at CL said in R v Henry (1999) 46 NSWLR 346, namely that if he does not tackle his drug problem he will have a wasted life, but all the signs are that he has recognised that he has wasted a large part of his life to date and he is on the road to becoming a prosocial member of society.
The ultimate sentence which I will impose is admittedly slightly less than that suggested by Mr Djemal, but it is my considered view, in light of the evidence. The orders that I make are:
[3]
Commonwealth offences
1. The offender is convicted of each offence
2. Taking into account a 25% discount for the plea of guilty the indicative sentences are:
1. Sequence 5, taking into account the s 16BAschedule matter (sequence 7): six years.
2. Sequence 17, 12 months.
1. I impose an aggregate sentence of six years and three months, commencing 25 January 202.
2. I impose a non-parole period of three years and three months, expiring 24 June 2024.
[4]
State offences (Sequence 10)
1. The offender is convicted of the offence.
2. Taking into account a 25% for the plea of guilty and the Form 1 matter (sequence 12), I impose a sentence of imprisonment of 27 months to commence on 25 September 2020.
3. I impose a non-parole period of 14 months expiring 24 November 2021
4. I find special circumstances.
5. I make forfeiture orders pursuant to the signed consent orders.
Do you need me to repeat those or clarify anything, Mr Fennell or Mr Djemal?
DJEMAL: No, your Honour. I think we've got it down. The start date for the Commonwealth offence was?
HIS HONOUR: 25 January 2021. So it is cumulated by four months on top of the State offence.
DJEMAL: Thank you, your Honour.
HIS HONOUR: My associate will email through the orders to you in a moment.
DJEMAL: Thank you.
HIS HONOUR: So that expires 24 June.
DJEMAL: Because we've calculated that to be a total effective sentence of non-parole, three years and nine months.
HIS HONOUR: No, sorry, it's 24 April 2024. Wait a minute, sorry. Yes, the total effective sentence is three years and nine months non-parole period.
DJEMAL: Thank you, your Honour.
HIS HONOUR: Let me just make sure if I've got this right. So, three years and five months non-parole period from 25 January, takes one to 24 June 2024.
DJEMAL: Yes.
HIS HONOUR: Which is three years and nine months non-parole period.
DJEMAL: Thank you, your Honour.
HIS HONOUR: Anything further, Mr Crown?
FENNEL: Your Honour, nothing further. I didn't check this, but did your Honour check that Mr Van Der Maas was content for you to take into account the Form 1 and 16BA offences? I think, as a formality, it just needs to be put on the record.
HIS HONOUR: I'll turn on the microphone for Mr Van Der Maas and confirm that and confirm that he understands the sentence. Mr Van Der Maas, I just need you to confirm for the record that you want me to take into account the Commonwealth matter on the schedule, that is sequence 7, trafficking in the small amount of methylamphetamine and also to take into account sequence 12, that is the possess material for a false document, on the State offence; is that right?
OFFENDER: Your Honour, yes, I do.
HIS HONOUR: And the sentence that I have imposed on you is an aggregate sentence of six years and three months with a non-parole period of three years and five months from 25 January 2021, which expires on 24 June 2024 and that sentence commences four months after the start of the State offence which starts the day you went into custody and that is 27 months with
14 months non-parole period.
So, the effective total non-parole period is three years and nine months, right?
OFFENDER: Yes, I understand clearly, your Honour; thank you.
HIS HONOUR: I wish you all the best in your endeavours to rehabilitate yourself.
OFFENDER: Thank you, your Honour.
AUDIO VISUAL LINK CONCLUDED AT 1.21PM
[5]
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Decision last updated: 27 January 2023