R v Waters

The sentence hearing

1. Following the jury verdict on 1 August 2023 the matter was set down for sentence hearing on 19 October 2023. The offender was unable to obtain the expert evidence he was to rely on and by consent the matter was then stood over for sentence hearing on 16 February 2024. The Crown bundle on sentence became Exhibit A. Exhibit A.2 was a conviction report confirming that on 18 March 2013 the offender had been convicted of possessing dangerous drugs. No conviction was recorded and a fine was imposed.
2. Exhibit A.4 were the remarks on sentence of Judge Culver in the matter of R v Rohan Peter Arnold on 20 February 2020. The remarks are relevant to the application of the principle of parity in sentencing the two co-offenders notwithstanding that Arnold had pleaded guilty to an offence of conspiring to import a commercial quantity of an unlawfully imported border-controlled drug namely cocaine.

The offender's tender bundle

1. The offender relied on a bundle of documents which became Exhibit 1.1 to 1.13. Exhibit 1.1 was a letter from the offender's wife, Sian Waters dated 13 February 2024. She had been with the offender for over 14 years and they have been married for 11 years. Early in the marriage he had been hospitalised for two years undergoing multiple surgeries and she had become his full-time carer. She described the offender as "the most generous, and caring man I've ever met". Since the offender's incarceration in 2018 she has raised their child on her own. She described the personal and financial hardships caused by the offender's arrest and incarceration and particularly the impact on his young son. Mrs Waters also stated that the offender has completely changed and she expressed confidence that he would not reoffend. They had previously run successful development businesses before the offender's arrest in 2018 and he intends to return to that work. Mrs Waters also described the offender as being a model prisoner, doing whatever he can to better himself by participating in courses and attending bible studies.
2. Exhibit 1.2 is a letter from the offender's father Mr Geoffrey Waters in which he states that the offender has repeatedly expressed to him his absolute regret for his past criminal behaviour. The offender has apologised to his wife for the last six years during which they have had to struggle emotionally and financially.
3. Mr Waters stated that he had been heartened by the fact that the offender had used his time in custody to his advantage by undertaking numerous beneficial courses. He now has a responsible position employed in clerical work for the benefit of staff and inmates. He has also been conducting a Bible course via mail.
4. Mr Waters also outlined the offender's previous engagement in the construction industry and his intention to recommence his construction business and to contribute to society by the construction of rental units.
5. Mr Waters referred to the dedication shown by the offender's wife to him together with the difficulties he has had to cope with during his incarceration as a result of his Crohn's and ulcerative colitis diseases. The offender also expressed to him an intention to refrain from associating with bad individuals as he had previously done.
6. Exhibit 1.5 is a letter from Rev.S House, Chaplain at the MRRC who described the offender's behaviour during his time in custody as being "exemplary". Over the last four years he had many conversations with the offender who had expressed extreme remorse for his actions and the pain, stress and cost it had caused his family, friends, loved ones and the community. He had attended numerous courses and was employed in a trusted position as a clerk to the Manager of Industries.
7. Exhibit 1.7 is a letter from Mr F Lemusu who described himself as employed by Community Services New South Wales at the MRRC as a First-Class officer, Health and Safety Representative, COVID-19 Liaison Officer, Chairperson Health and Safety Committee and A/Fire Safety Manager. He stated that the offender had immersed himself in rehabilitative proactive activities in custody. He had attended workshops, completed courses and had been employed in several jobs. He further voluntarily assisted in COVID-19 operations and assisted in the logistics for the implementation of COVID-19 policies. He described the offender as "working tirelessly on the frontline" in the implementation of COVID-19 policies and that his dedication had played a big part in minimising the risk of COVID-19 transmission throughout the gaol. He described the offender as being "punctual, polite, hard-working and passionate about health and safety". He stated that the offender's contribution had a major impact on both the operational functionality at the MRRC, and the health and safety of all officers, staff, visitors and the inmate population.
8. Exhibits 1.8, 1.10 and 1.12 were various certificates of attainment and attendance at various courses. Exhibit 1.13 was a report under the hand of Ms Lucienne Barhon, Clinical Neuropsychologist dated 7 February 2024 in respect of Mrs Sian Waters. The author took a history that the relationship between Mrs Waters and the offender had been for the most part tumultuous, "due to the long-standing conflict between her and his family, his health battles, and strains in their marriage following the birth of their son in September 2016." Following the birth of their son she had returned to Dubai to find the offender "a different person" who she described was consumed in the lifestyle and behaviour of those he was associating with through his business. This led to further strain in their marriage and she was unable to find out what was going on in his life.
9. Following the offender's arrest Mrs Waters had returned to Dubai with her son to find all their money and assets were frozen and seized. She returned their 18-month-old son to Australia to be cared for by her parents while she spent time in Serbia, where she sourced medical supplies for the offender who was at risk of infection and severe ill-health whilst in custody there. She too felt severely depressed and anxious throughout that period. Upon her return to Australia in early 2019, Mrs Waters had moved into a rental unit and was dependent on Centrelink benefits. She had difficulty obtaining employment and for several years felt constantly depressed and completely overwhelmed. The author noted her as "having repeated suicidal thoughts and outbursts due to being unable to hold in her emotions any longer."
10. Mrs Waters also reported significant behavioural problems from her son which had impacted on his social interactions with peers and teachers. There has however been marked improvement in his behaviour since the offender has been able to recommence AVL contact with him since around the start of his trial.
11. Mrs Barhon opined that it was evident that the offender's wife and his son had been subjected to significant hardship over the last six years. She opined that this had an immense toll on Mrs Waters' mental health and that she had experienced symptoms of severe and pervasively depressed mood with suicidal ideation. She further opined that her symptoms amounted to a clinical DSM-5 diagnosis of Major Depressive Disorder.
12. Exhibit 1.19 comprised numerous case note reports from the New South Wales Department of Corrective Services outlining the significant health difficulties the offender had faced whilst in custody, as well as the considerable progress he had made with his rehabilitation. Following the sentence hearing learned Senior Counsel for the offender provided an extract from 11 of the case notes between 1 December 2019 and 8 August 2023 relating to the offender's reports of physical and psychological sequelae of his offending and incarceration. His psychological sequelae included depressive symptoms, panic attacks, nightmares and massive anxiety. The last entry dated 8 August 2023 confirmed his employment as MRRC Manager of Industries Head Clerk since mid-2019, a role that he had performed exceptionally well. He was described as "motivated, self-driven and willing to perform any task that is requested. What comes across with a positive attitude with realistic goals. Waters is well mannered, polite, very respectful to fellow officers and sets a great example to fellow inmates."
13. Exhibit 1.80 was a report from Dr Antony Henderson, Consultant Forensic Psychiatrist dated 14 February 2024. Dr Henderson took a history of the offending. The offender told him, "I participated in a conversation in an attempt to possess a commercial quantity of cocaine." He gave a history of residing in Dubai with his family since 2016 working in property development. He had lost a lot of money in a commercial development and owed a significant amount of money to an individual referred to as "Gov." He had first met Gov at 19 years of age when he was a student at the ANU, Canberra. Gov came from a very wealthy family and after university the offender had built residential and commercial buildings for Gov and his family. He had also met Rohan Arnold who was a friend. Mr Waters told Dr Henderson that around October 2017 he found out that Gov and Rohan had been involved in criminal activity. The container of drugs had gone missing and Gov suspected that Rohan was behind it. He had received a text message from Gov on 26 December 2017 asking him to go with Rohan Arnold to Belgrade, Serbia to retrieve the missing container of drugs in exchange for clearing his debt. Mr Waters refused and Gov got angry.
14. Dr Henderson then took a history that the offender was confronted by a criminal associate of Gov who assaulted him in Dubai, and threatened his family if he did not go to Belgrade with Rohan. Dr Henderson took a history that the offender travelled to Belgrade with his family on 12 January 2018 and attended the meeting at the Metropol Hotel on 16 January 2018 when they were arrested. He took a further history that the offender was detained in a Serbian prison for around 12 months where he suffered recurrent complications for his physical conditions. He had been diagnosed with Crohn's disease at the age of 26 and had thereafter experienced severe abdominal pain, loss of bowel continence, bleeding and fatigue in the years that followed. In 2013 he had spent 12 months at St Vincent's Hospital and in 2014 he underwent multiple surgical procedures for recurrent bowel fistulas. He also had his bowel and rectum removed and a colostomy. His mental health had been significantly affected by having a colostomy, reporting feeling depressed, embarrassed, self-conscious and experiencing bouts of low mood and anxiety.
15. The offender was also affected by the death by suicide of a close friend and colleague shortly after moving to Dubai in May 2016. He became profoundly depressed and started using excessive quantities of alcohol and illicit substances, mainly cocaine and GHB. His excessive alcohol abuse worsened his depression and anxiety. This led to conflict with his wife and he made poor decisions resulting in failed construction contracts and significant financial loss. He became a daily user of cocaine and would spend up to $5,000 per week on that drug. In addition to GHB, he was also using benzodiazepines, Xanax and Valium on a daily basis.
16. Dr Henderson opined that the offender developed symptoms consistent with post-traumatic stress disorder ("PTSD"). His mental state further deteriorated whilst he was incarcerated in Serbia but he had experienced modest improvement in his mental health since his transfer to custody in Australia on 24 January 2019. He had continued to suffer significant ongoing symptoms of depression and had been unable to secure a reliable supply of maintenance items for his colostomy. When asked by Dr Henderson about his offending behaviour the offender replied "I'm sorry for the mistake. I should have gone to the police. I made the wrong decision."
17. Following mental state examination Dr Henderson diagnosed the offender as suffering PTSD, Major Depressive Disorder and an Alcohol and Stimulant (cocaine) Use Disorder which was in remission. He set out a proposed treatment plan for his return to the community. Given his physical and mental health disorders and the limited availability for appropriate treatments for trauma related disorders in custody together with his low risk of further offending, Dr Henderson opined that the court "may consider the offender appropriate for a non-custodial disposition relevant to the issue of sentencing".
18. Exhibit 1.97 was a report from Professor S J Woods, Forensic Psychologist dated 13 February 2024. The offender was assessed by audio-visual link on 5 February 2024 over a period of four hours. The author set out a number of stressors including the harsh conditions of custody the offender was held in isolation in a Serbian prison and the suffering caused to him at the MRRC since January 2019 as a result of his inability to obtain appropriate maintenance for his colostomy.
19. Professor Woods took a history similar to that outlined above in which his friend committed suicide in August 2016 and he became indebted to Gov. Professor Woods took a medical history as outlined above and a custodial history based on the case notes. Following assessment the offender was diagnosed with complex PTSD, Panic Disorder, Major Depressive Disorder, Alcohol Use Disorder and Substance Use Disorder (in remission).
20. Professor Woods opined that the offender's long-term mental health prognosis must be viewed as being poor. He set out a treatment plan involving weekly consultations with a clinical psychologist for treatment of complex trauma and monthly reviews by a psychiatrist and commencement on prescribed medication. He further opined that the type and level of treatment required by him will not occur whilst he is held in a custodial facility due to lack of resources.
21. Exhibit 1.152 is a letter from the Commonwealth Director of Public Prosecutions dated 14 January 2022 in which the prosecutor rejected an offer made on behalf of the offender to plead guilty to one count of attempting to possess a commercial quantity of 7.7 kg of cocaine between the period 1 and 16 January in Belgrade, Serbia. The letter set out a counter offer made by the CDPP to accept a rolled up charge of conspiracy to import a commercial quantity of unlawfully imported border-controlled drug with a date range "between about 18 January 2017 and 16 January 2018", and to withdraw Count 2 on the Indictment. The offer was made on a particular factual basis which included his involvement pre-dating the arrival of the drugs into Australia and included the steps taken by the co-conspirators to attempt to recover the drugs.
22. Exhibit 1.153 was a Sentencing Assessment Report (also Exhibit B) under the hand of Ms T Rosewall dated 18 October 2023. The report set out briefly that the offender had extensive qualifications in the building, construction and development industry and had no previous criminal history in New South Wales. Under the heading "Attitudes" the author noted that the offender "verbalised blame towards the police for "stealing" the drugs imported by the syndicate".
23. Under the heading "Social influences" the offender "apportioned significant blame towards the impact his associates have had on his life at the time of the index offence ultimately determining his involvement". He also "externalises blame then contradicts his opinions by verbalising his acceptance of responsibility for his antisocial behaviour."
24. Under the heading "Insight into the impact of offending" the author stated:- "Mr Waters appeared to lack significant insight into the impact of his offending behaviour, as this insight is limited to his family and what had happened to his wife, child and family. Mr Waters' insight into the impact of drugs was inherently limited, noting a large majority of inmates who are affected by drugs are connected to domestic violence, which he does not agree with. Mr Waters verbalised extensive insight into his offending behaviour. He disclosed that he was at fault for his actions and accepts that his decisions were antisocial at the time. Despite the verbalisation of insight, Mr Waters externalised the blame onto anti-social peers ultimately, apportioning the offence to be the actions of associates."
25. The offender was assessed at a low risk of re-offending and as suitable to undertake community service work.
26. Exhibit 2 was a letter of apology from the offender to the court dated 12 February 2024. In it the offender stated he was deeply regretful and remorseful for the choices that he had made which brought him to court and he accepted full responsibility for his involvement in the drug possession conspiracy. He also stated that he was ashamed and embarrassed for what he had done and the irreversible damage he caused to his loving family and those around him. The offender stated that once he agreed to assist in having the consignment of prohibited drugs returned, he fully committed himself. He stated that he did not know exactly the quantity of drugs involved but he did realise it was a substantial amount. He stated, "I know it wasn't the right thing to do and I feel terrible for my actions at the time."
27. The offender described himself as previously being a successful builder in the ACT and that he had just started a new life for himself and his family in Dubai. Due to his arrest both businesses had failed, causing his wife and family to lose their homes.
28. He described his period in gaol in Serbia as being extremely difficult. Once back in Australia he noticed in custody a significant increase in drug fuelled crimes and drug-related domestic violence. His focus had been to be a jail role model by leading by example. He set out his work in custody and the fact that he completed several courses in the remand centre. He also set out the impact of COVID-19 on the prison population including suspension of contact visits for over two years and the impact it had on him and his family. The offender stated that he had been offered work at a friend's building company, and that he longed to be with his wife and family who stood by him for the last six years on remand. He stated that he could never forgive himself for what he had done but was committed to doing everything possible to make up for his mistakes and to become a valuable member of society.
29. Exhibit 3 was a list of 24-hour lockdown in days at the MRRC throughout 2021 and 2022, a total of 129 days.

The Crown submissions

1. The Crown set out in a detailed and thorough written outline of submissions the principles of sentencing for Commonwealth offences which are not contentious namely:- 1. The essential feature of the conspiracy offence is the criminality inherent in an agreement to participate in organised criminal activity, relying on Tyler v the Queen; R v Chalmers (2007) 173 A Crim R 458; [2007] NSWCCA 247 at [83]. 2. The court is required to consider the overt acts of the co-conspirators in so far as they bear upon the content, duration and reality of the conspiracy, including the extent to which the objectives of the conspiracy were achieved - Tyler at [85]. 3. The conduct of the offender and co-conspirators is relevant as part of identifying their role and position in the conspiracy, but it would be artificial and contrary to the concept of conspiracy to dissect with precision the physical acts of each offender and sentence for those separate acts alone - Tyler at [78-85]. The physical acts of the offender are relevant as one part of the synthesis.
2. The Crown noted that the offence provides the same maximum penalty as for the substantive offence subject of the conspiracy and is no less serious than the equivalent substantive offence.
3. The Crown submitted that the offender worked as a senior member within an international crime group comprised of individuals based in both Australia and elsewhere. The tasks of the various participants should be seen in combination as being "sophisticated, coordinated, premeditated, clandestine, industrious, and diversified". The Crown submitted that the conspiracy demonstrated the "dangerousness" of individuals working in concert to possess a very large quantity of illegally imported drugs.
4. The Crown set out the principles that apply to sentencing for serious Commonwealth drug offences as set out in R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238. The application of these principles is not in issue.
5. The Crown made the following submissions in relation to the relevant sentencing factors pursuant to s16A(2) of the Crimes Act 1914 (Cth).

Section 16A(2)(a) - The nature and circumstances of the offence

1. The Crown submitted that the maximum penalty for the offence pursuant to s11.5(1) and s307.5(1) of the Code of life imprisonment speaks with unmistakable clarity as to the seriousness with which Parliament views the commission of this offence. The critical consideration on sentence is to determine what the offender did in participating in the conspiracy. Here the Crown submitted that the offender's participation was crucial to the success of the conspiracy, having regard to the facts as outlined above. The Crown submitted that the fact that the offender travelled from Dubai to Serbia in furtherance of the conspiracy to possess cocaine aggravated the criminality of the offence because it showed his willingness to participate in a sophisticated criminal enterprise, relying on Mirza v R [2007] NSWCCA 257 at [14] per Howie J.
2. The Crown submitted that the offender had a substantial and trusted role assisting with logistics and negotiations for a four-day period from 13 to 16 January 2018. This informed a conclusion that he was a very senior member in the hierarchy of the syndicate and that his involvement only ceased when he was arrested.
3. The Crown submitted that the weight of the drug was a relevant factor in determining the seriousness of the offence. It was relevant as an indication of the potential harm that may be inflicted on the community and the size of any anticipated profit, relying on R v Stanbouli (2003) 141 A Crim R 531; [2003] NSWCCA 355 at [102] and R v Lee [2007] NSWCCA 234 at [23]-[24]. The quantity of impure cocaine seized from the consignment was 1.28 tonnes. The weight of the pure cocaine was 998.4 kilograms, approximately 500 times greater than the prescribed commercial quantity threshold of 2 kilograms. The Crown submitted that the offender apprehended a very significant quantity was involved in this conspiracy during the period of his involvement. The court would take into account that the wholesale value of the drug, if it had been imported, was estimated between $731,000 and $1.5 million. It was clear on the evidence that the offender and syndicate were participating in the conspiracy for financial reward.

Section 16A(2)(ja) - General deterrence

1. The Crown submitted the principles of general deterrence and denunciation are prime considerations in sentencing for serious drug offences such as this. Stern punishment is warranted because of the difficulty in detecting the offending and the great social consequences that flow from the movement of large importation of drugs and their distribution within Australia. General deterrence is particularly important here where the offending involved an unusually large quantity of drugs.

Section 16A(2)(k) - Need for adequate punishment

1. The Crown submitted that when objectively viewed, the criminality of the offender was high and only a lengthy full-time custodial sentence could reflect this objective criminality.

Section 16A(2)(g) - Guilty plea

1. The Crown set out the plea offer the offender made to the Crown in April 2023 which was rejected by the Crown. The Crown submitted that the factual basis of that offer was not consistent with the facts found for the purpose of these sentence proceedings. The plea entered by the offender on 15 May 2023, on Arraignment before the jury, had a limited date range of 26 December 2017 to 16 January 2018. The Crown characterised it as a very late plea entered on the first day of trial only after legal argument on the admission of evidence had been determined adversely to the offender's interests. The Crown submitted that in addition to its utilitarian value the plea of guilty may be relevant for its subjective value as evidence of genuine contrition, acceptance of responsibility and/or a willingness to facilitate the course of justice. Here the Crown submitted the entry of the offender's plea was simply "recognition of the inevitable". The prosecution's case was strong and the offender's participation in the meeting at the Metropol Hotel and his Ciphr messages meant that a conviction in respect of Count 2 was all but inevitable.
2. The Crown accepted that the April 2023 offer and ultimate plea of guilty to Count 2 do provide evidence of some willingness to facilitate the course of justice however any mitigation for the subjective aspect of the plea should be limited.

Section 16A(2)(f) - Contrition

1. The Crown submitted that the offender's plea by itself, in the face of the strong Crown case, should not be taken as evidence of contrition.

Section 16A(2)(j) - Specific deterrence

1. The Crown submitted that given the nature and circumstances of the offending the offender's conduct displayed a significant attitude of disobedience to the law so as to render specific deterrence a relevant sentencing consideration. It was submitted that the offender played a significant role in the conspiracy and one which was crucial to its success. He personally attended the meeting at the Metropol Hotel and made statements which were directed to persuading UCO Ivan and UCO Denny to approve the final exchange of the cocaine for cash. He also provided connections in Serbia which were useful to the co-conspirators. The Crown also relied on his willingness to employ violence against UCO Ivan, directing a group of men to abduct the UCO and obtaining a firearm for use by his co-conspirator thereby increasing the risk of harm to the UCOs.

Section 16A(2)(m) - Character, antecedents, age, means and physical or mental condition

1. The offender was born in 1983 and was 34 years at the time of the offending. The Crown submitted that prior good character was generally of less weight as a mitigating factor in offences of this nature i.e. serious drug offences.

Section 16A(2)(n) - Prospect of rehabilitation

1. The Crown reserved its position in respect of this aspect of the sentencing.

Section 16A(2)(p) - Probable effect that any sentence or order would have on the person's family or dependants

1. The Crown acknowledged that hardship to an offender's family is a relevant factor to be taken into account and such hardship does not need to be exceptional. The Crown submitted it would not be possible in the circumstances here to give the family's suffering much or any weight.

Hardship in custody

1. The Crown submitted that this might be a factor relevant to the determination of an appropriate sentence. The relevant principles, set out in Milenkovski v Western Australia (2014) 46 WAR 324; [2014] WASCA 48 at [151]-[157] are as follows:- 1. the fact that an offender has served or is likely to service part of a term of imprisonment in conditions that are more onerous than those applicable to mainstream prisoners is a relevant sentencing factor; 2. If it is submitted or apparent at sentencing that this is likely, the prosecutor and defence counsel should provide the judge with all relevant information as to: 1. The facts and circumstances of the custody; 2. how those facts and circumstances differ from those applicable to mainstream prisoners, and 3. the nature and extent of any consequential hardship or benefit to the offender. 1. The weight to be given to an offender's detention under more onerous conditions depends on all the facts and circumstances including the reasons why the offender requires protection, and the likely duration of the more onerous conditions. Any benefits, as well as hardships to the offender from the protection must be taken into account; 2. Greater leniency will be given where the onerous conditions have caused or exacerbated an offender's physical or mental illness or disability; 3. The justification for allowing some leniency or a discount for onerous conditions is that time spent in custody under more onerous circumstances is in general equivalent in evaluating the sentencing objectives of punishment, denunciation and deterrence, to a longer period in custody under less onerous circumstances.
2. The Crown accepted that the COVID-19 restrictions made the offender's incarceration on remand more onerous than it otherwise would have been.
3. The Crown set out its contentions for facts to be derived from the jury verdict in Annexure A to its written submissions.
4. The Crown also set out relevant principles relating to delay in sentencing which are not controversial. The Crown set out a procedural history of the matter in Annexure B to its written submissions demonstrating the time elapsed between the offender's arrest and sentence is five years and nine months. However the Crown relied on the offender's opposition to extradition from Serbia which delayed legal proceedings in Australia by some 12 months. Further the first two trial dates (6 October 2020 and 26 April 2021) were vacated on application by the offender and the third trial date (2 May 2022) was vacated due to a temporary stay application by Campbell. This led to a total delay caused by vacated trial dates of approximately two years and seven months. The Crown submitted that any detriment suffered by the offender due to delay had limited weight in terms of leniency. The Crown submitted that the delay was not caused by slow investigation or unreasonable conduct by the prosecution, rather the delay was substantially caused by the offender's opposition to extradition and vacation of trial dates and no weight could be given to it in mitigation of his sentence.
5. In relation to the application of the principle of parity, the Crown set out the relevant principles which again are not controversial. The Crown noted that the co-offender Arnold was sentenced on 20 February 2020 to imprisonment for 27 years and a non-parole period of 19 years for an offence pursuant to s307.1(1) and s11.5(1) of the Code of conspiring to import a commercial quantity of a border-controlled drug, namely cocaine. The Crown relied on the following distinguishing factors:- 1. Arnold was convicted of conspiracy to import, rather than possess, a border-controlled drug. 2. The sentencing judge found that the first overt act committed by Arnold occurred on 24 July 2017 and his involvement continued until 16 January 2018. 3. Arnold entered his guilty plea at the earliest opportunity and his sentence was discounted by 25%. 4. Arnold's role in the conspiracy was found to be that of a "vital and important" manager, engaged in all key aspects of the conspiracy, albeit just below the three principals.
6. The Crown submitted that the offender's role was at least at the same level in the syndicate as Arnold but that the offender was above Campbell in the hierarchy of the drug syndicate. Notwithstanding that it was a different charge, the sentence imposed on Arnold was an appropriate check to ensure parity or proportionality was achieved.
7. The Crown also set out a table of comparative sentences as a guide to the identification and application of relevant sentencing principles so as to illustrate the possible range of available sentences.
8. The Crown noted that where the court imposes a sentence exceeding three years it must fix a non-parole period which must be determined according to general sentencing principles. The court may backdate any sentence to commence on a day taking into account pre-sentence custody pursuant to s16E of the Crimes Act. This includes custody in another country while awaiting extradition. The Crown accepted the court may back-date the sentence here to 16 January 2018.
9. In his oral submissions the Crown rehearsed his submission that the offender should be sentenced on the basis not that he knew the exact quantity of prohibited drugs but that it was a very large quantity.
10. The Crown referred to the evidence of Mrs Waters concerning the degree of contrition expressed by the offender. It was submitted that the high point of his contrition was contained in the Chaplain's letter whereas other expressions of regret for the offending focused on the impact on his family, not the devastating potential impact on the community of such a large quantity of prohibited drugs.
11. The Crown submitted that the letter from the offender (Exhibit 2) demonstrated some insight which was completely untested. It was further submitted there was no correlation between any contrition expressed by the offender and his rehabilitation, although it was open to the court to find that he had good prospects of rehabilitation.
12. The Crown submitted that the court would reject the opinion of Ms Barhon that the offender's arrest and incarceration had led to an immense toll on Mrs Waters' mental health. It was submitted this was not an expert psychological opinion and should be given little weight. There was no evidence of symptoms, and no evidence of testing or assessment underlying such a diagnosis.
13. The Crown did not dispute that by the time the offender was incarcerated in Australia he was suffering from PTSD and that his custody on remand has been more onerous than for the general prison population because of his underlying health issues involving Crohn's disease, together with his mental health issues. The Crown did not contest that COVID-19 had an impact on the whole of the prison population making custody more onerous.
14. The Crown submitted that the court would exercise caution in accepting any factual assertions made by the offender to either Professor Woods or Dr Henderson. The Crown rehearsed his submission that the offender's expressions of remorse were focused on the hardship caused to his family by his arrest and incarceration and not the potential harm to the community of such a large volume of prohibited drugs.
15. The Crown rehearsed his submission concerning the late plea of guilty entered upon Arraignment before the jury after a disputed facts hearing which was determined adversely to the offender.
16. The Crown rehearsed its submission in relation to the roles of the co-conspirators and where, in the hierarchy of the criminal enterprise, they were placed. Campbell's role was as a "dispensable front man" consistent with him being lower in the hierarchy. In responding to the submissions made on behalf of the offender the Court would make findings based on the actual steps the offender took to further the conspiracy to determine that he was a senior member of the syndicate. Further the Court would reject matters put on behalf of the offender on the basis of instructions given to his legal representatives. Rather the offender was to be sentenced on the facts established by evidence in the trial.
17. In respect of the discount to be provided by way of the offender's late plea of guilty the Crown submitted that the utilitarian discount could be as low as 5%.
18. The Crown rehearsed his submission in relation to delay, submitting that this was not a case where the offender had been held in uncertain suspense as a result of the delay in sentence. Rather the delays outlined above were a normal part of the court process. The one-year delay in Serbia involved the offender exercising his rights to contest extradition.

Submissions on behalf of the offender

1. Learned Senior Counsel for the offender also relied on a detailed written outline of submissions, including submissions regarding the facts asserted by the Crown (Annexure A, Crown submissions) on which the offender is to be sentenced.
2. In relation to the offender's acquittal of Count 1 on the Indictment by the jury it was submitted that the verdict was consistent with the defence case summarised in my direction to the jury concerning the alleged admissions relied on by the Crown being rejected by the jury. It was submitted that the Crown's characterisation of the offender as being a senior member of the drug syndicate whose participation was crucial to the success of the conspiracy was untenable given the jury's findings "that nothing that Waters said at the Belgrade Metropol meeting could be accepted as truthful".
3. Counsel submitted that the offender's role was no more than as a minor player "who was a dispensable further "trouble shooter" brought in right at the very end because the senior members of the syndicate, other than Arnold, believed it was a "sting" being orchestrated by the co-offender Campbell and the UCO Ivan, and/or it was a police operation". The offender submitted that it was also contrary to the evidence to suggest that Waters was more senior than Campbell as the latter was involved throughout the conspiracy, acting as the front man in New Zealand and in the continuing attempts to arrange the return of the drugs. It was submitted that Campbell did far more acts than the offender and he was only kept out of the final meeting "because of the machinations of the undercover operation and because the senior members of the syndicate believed he was part of the sting."
4. The offender further submitted that it was incorrect of the Crown to submit that this offender was crucial to the success of the conspiracy. The conspiracy was not successful, and senior members of the conspiracy did not think it likely to be successful, which was one of the reasons this offender was dropped in for the Belgrade meeting.
5. It was submitted on behalf of the offender that consistent with the jury's verdict in Count 1, the offender was not involved in the importation of drugs and he therefore filled the role of a minor syndicate member having being only bought in for the last four days in Belgrade "in the vain attempt to have the consignment returned, even though the senior members of the syndicate then believed it was an attempted sting operation". It was submitted that any findings made should not be inconsistent with the jury's verdict.
6. The offender's plea of guilty, qualified as it was within the date range of 26 December 2017 and 16 January 2018, was based on instructions from the offender that he was actually contacted by text by the man referred to as "Gov" on or about 26 December 2017, requesting that he assist in attempting to have a consignment of cocaine returned from a syndicate that said they had "intercepted it". It was submitted consistent with the jury verdict this could not be eliminated as a plausible explanation of his involvement between 13 and 16 January 2018. This was also consistent with the police intelligence assessment, and that he was lying when holding himself out to be a principal.
7. Thus, it was submitted that there is no consideration of parity with the sentence imposed by Judge Culver on the co-offender Arnold who was sentenced for the more serious conspiracy to import charge over a much longer period between 18 January 2017 until 16 January 2018. In those sentence proceedings, in which this offender was not a party, it was submitted that Arnold had successfully sought to limit his role whereas the evidence in the trial disclosed Arnold to be a principal with a financial interest in the consignment of drugs.
8. Counsel referred to the reports of Dr Henderson and Professor Woods, where the offender gave a history that Gov claimed the offender owed him a large sum of money from an unrelated financial transaction, and that if he assisted then the debt would be relinquished. That assistance required him to attend the meeting in Belgrade. Counsel also submitted on instructions that the offender was also to receive the assistance of the person named "Johnny", a Serbian who lived in the same apartment block as the offender in Dubai and who had been introduced to him by "Gov". Other than the circumstances in which he met Arnold and Gov, it was submitted that these matters are consistent with the evidence and verdict of the jury at trial.
9. Counsel submitted that the offender was required to assist with logistics in Belgrade for a four-day period from 13 to 16 January 2018 and ultimately pretend to be a senior member of the syndicate when attending a meeting with Arnold and the UCOs to try and have the consignment returned.
10. Counsel went on to state, "the offender does though instruct us, consistent with his account to Professor Woods, that once he agreed to assist because of both the threats and the inducement, he committed himself to try and assist having the consignment returned to Gov, Arnold, the person referred to as "MC" and others and he felt he had to assist both". The history of threats was relied upon for the context of his involvement and not to establish non-exculpatory duress. The offender also accepted that he knew the quantity of drugs were substantial, but not the exact amount, relying on R v Barkl; R v Dumbrell; R v Theobald [2023] NSWCCA 309 at [47]. The offender submitted that the fact of his travel to Belgrade was irrelevant in an assessment of the seriousness of his involvement in the conspiracy. It was noted that he flew from Dubai and not from Australia.
11. Counsel submitted that the offender had offered a plea of guilty to a very similar charge, being the substantive charge of attempt to possess a commercial quantity as opposed to a conspiracy charge in the same terms, on 11 November 2021. It was submitted that the offender should receive a 15% discount for the utilitarian benefit of his plea. Counsel further submitted that the offender's plea not only represented his preparedness to facilitate the course of justice, but also his level of contrition and prospects of rehabilitation, referring to s16A(f)(ii) and (n) of the Crimes Act 1914 (Cth) and referred to Betka & Ors [2020] NSWCCA 191 at [56]-[64].
12. In relation to his plea offer it was submitted the amount of drug involved is not an element of the offence as long as it is over the commercial quantity which 7.7kg was, in fact. It was further submitted that this subject could have been the subject of a contested facts hearing. It was submitted that the correspondence demonstrated that the offer was refused on the basis the offender had to accept his involvement in the importation in respect of which he has since been acquitted. He should therefore be afforded a 15% discount, relying on the case R v Oinonen [1999] NSWCCA 310 and R v Russell [2022] NSWDC 416 at [7].
13. It was submitted that the offender had demonstrated significant contrition to Dr Henderson and Professor Woods, to the authors of the character references and in his sincere letter of apology to the court. Further he had shown considerable insight into his offending conduct and has very good prospects of rehabilitation.
14. The offender set out well-established principles in regard to the significance of an offender's mental health condition and relied on the opinions of Dr Henderson set out above to advocate the application of those principles here. Counsel disavowed reliance on Dr Henderson's opinion that the offender's PTSD and Major Depressive Disorder had a causative effect on his offending however those conditions were relied on to submit that the offender was an inappropriate vehicle for general deterrence, and that a custodial sentence would weigh more heavily on him than the general prison population.
15. Learned Senior Counsel also referred to a number of comparable cases including D'Agostino v R [2023] NSWCCA 212.
16. It was submitted that the offender had demonstrated significant progress towards rehabilitation during his time in custody. Relying on the reports of Dr Henderson, Professor Wood and the Sentencing Assessment Report he was at a low risk of re-offending. Another relevant consideration was the impact of the COVID-19 pandemic on the general prison population, which was not disputed.
17. Counsel submitted that the Court would take into account the impact of the offender's arrest and incarceration on the offender's wife and son who it was submitted, "had been severely traumatised."
18. Finally, counsel submitted that having regard to all relevant considerations a head sentence in the order of that imposed in the comparable case of D'Agostino together with a non-parole period in the order of 50% should be applied here, and any sentence backdated to 16 January 2018.
19. In his oral submissions learned Senior Counsel noted that the Crown accepted the time limiting the offender's criminal conduct in his plea of guilty. He rehearsed his submissions regarding the application of parity with the sentence imposed on Arnold, noting the sentencing Judge's finding that the offender was more senior in the drug syndicate than Arnold, as being untenable given that Arnold was involved in the importation of the prohibited drugs from 31 March 2017 until 16 January 2018.
20. Counsel rehearsed his submissions regarding the role of the offender in what the syndicate believed was either a sting or a police operation, which meant that the offender was highly dispensable to the syndicate. It was submitted therefore the offender's role was well below that of Arnold who had paid $630,000 of his own money in an attempt to achieve the initial transfer of the drugs.
21. Counsel addressed the author of the SAR's opinion that the offender demonstrated lack of insight. He had since taken full responsibility for his criminal behaviour and had demonstrated an exemplary attitude to his custody. This demonstrated not just progress in his rehabilitation but also contrition for his offending conduct.
22. Counsel rehearsed his submissions in relation to the earlier plea offer and submitted that a discount of 5% as advocated by the Crown was not appropriate. It was noted that in the plea negotiations the Crown had offered a plea to a charge of conspiracy to import, to which he had been acquitted by the jury. There was still a substantial utilitarian value for his plea.
23. Counsel submitted that the opinion of Ms Barhon had not been challenged in cross-examination and therefore would be taken into account to assess the hardship caused to the offender's wife.
24. Counsel rehearsed his submissions concerning the delay in sentencing. It was agreed that a year in Serbia awaiting extradition involved the offender exercising his rights but also involved even more onerous conditions of custody than experienced in Australia.
25. Counsel rehearsed the offender's history of poor health related to his Crohn's disease and made detailed submissions in relation to the comparable cases relied on by the Crown. Ultimately, it was submitted that the offender's involvement was late in the chronology of offending conduct at a time when the syndicate did not think it would get the drugs back. The Court would give weight to the considerable health issues suffered by the offender and his incarceration for a period of greater than six years whilst waiting sentence.

Determination

1. The principles for sentencing for offences of conspiracy are well settled. As submitted by the Crown, the essential feature of a conspiracy offence is the criminality inherent in an agreement to participate in organised criminal activity - see Tyler v the Queen. The Court is required to consider 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. Further, the conduct of the offender and co-conspirators is relevant as part of identifying their role and position in the conspiracy, but it would be artificial and contrary to the concept of conspiracy to dissect with precision the physical acts of each of the members and sentence for those separate acts alone. Rather, the physical acts of the offender are relevant as one part of the synthetic process - see Tyler at [83].
2. Conspiracy is an inchoate offence constituted by an agreement of a number of persons to carry into effect the unlawful purpose in combination, which is the essence of the crime. As Judge Culver stated when sentencing Arnold, "the charge of conspiracy is brought because criminal action organised and executed in concert is more dangerous to society than an individual breach of the law". Here, the conspiratorial agreement was made between members of an international crime group comprised of individuals based in Australia and elsewhere throughout the world. The purpose of the agreement was to obtain possession of a very large quantity of illegal drugs which had been seized by the AFP during what could only be regarded as a sophisticated, coordinated, premeditated, clandestine and diversified operation by those individuals working in concert as part of an international drug syndicate.
3. The cocaine which was concealed in pre-fabricated steel post structures being imported in a shipping container from China comprised 2,576 blocks, each weighing approximately half a kilogram and totalling approximately 1.28 tonnes. Analysis of the sample indicated that the purity of the cocaine ranged between 72.6% and 82.5%. The calculated weight of pure cocaine in that sample was 64,878 kilograms. The AFP estimated the street value of the 2,576 blocks seized would have been between $731,428,600 and $1,536,000,000.
4. I am to take into account sentencing principles pertaining to drug importation offences as summarised in R v Nguyen; R v Pham [2010] NSWCCA 23. I am also to consider the overt acts carried out by the offender in furtherance of the conspiracy.
5. The criminal organisation behind the conspiracy and underpinning the failed importation of the prohibited drugs is important in the assessment of the objective seriousness of the offending, as is distinguishing between the roles of the co-conspirators. The highly sophisticated operation bespoke of a highly organised criminal enterprise, the principals of which were based in Columbia, with the capacity to operate in countries around the world including Australia, Thailand and Serbia.
6. Whilst it is often difficult to categorise the role of an offender within the hierarchy of the criminal enterprise the evidence established here that the offender joined the conspiracy at a very late stage, on or about 26 December 2017, and that his role in the conspiracy was to facilitate the return of the prohibited drugs by an exchange of money to take place at a meeting of the Metropol Hotel in Belgrade. The overt acts carried out by the offender are those set out in [6] above. I do not propose to repeat them here. He was clearly a trusted person close to the principal "Gov" or "Governor" and was playing a role at the meeting that took place on 16 January 2018. Whilst the offender may not have known the exact quantity, he knew it was a very large quantity of border-controlled drugs, that the syndicate were trying to regain possession of.
7. I accept the submission made on behalf of the offender that consistent with the verdict of not guilty to Count 1, the offender was not being truthful at that meeting, and the jury did not accept the statements the Crown relied on made by him as admissions against his interest in respect of Count 1. Notwithstanding that, and as properly conceded by his counsel, he had committed to his role in attempting to achieve possession of the prohibited drugs on behalf of the syndicate. Whilst it is consistent with the jury verdict in respect of Count 1 that the jury rejected the Crown case that he made admissions during the meeting at the Metropol Hotel, I reject the offender's submission that his role was that of a "minor player" who was dispensable as a "trouble shooter" for the syndicate.
8. In assessing the objective seriousness of the offender's criminal conduct, I have had regard to the nature and purpose of the conspiratorial agreement, the overt acts of the offender in flying from Dubai to Belgrade and his conduct whilst in Belgrade in furthering the objective of the conspiracy and facilitating that objective as set out in all the communications as well as his attendance at the Metropol Hotel. It was objectively very serious criminal offending notwithstanding that it took place over a relatively short duration and was ultimately unsuccessful. Given the quantity of the prohibited drugs involved and the motivation for a high financial return, it also constituted morally reprehensible culpability on the part of the offender.
9. It is important to note that the evidence did not establish that the offender was one of the three principals in the syndicate. In sentencing the co-offender Arnold, the Crown relied on the admission to that effect by Waters at the meeting, which was rejected by the jury. This was relevant to her Honour's finding relating to the role of Arnold relative to that of this offender and is therefore relevant to the application of the principle of parity discussed below.
10. Section 16A of the Crimes Act 1914 (Cth) provides that a court must impose a sentence that is of a severity appropriate in all the circumstances of the offence. Pursuant to s16A(2) the court must take into account the following relevant matters known to the court:-

s16A(2)(a) - The nature and circumstances of the offence

1. The nature and circumstance of the offence and the objective seriousness of the offending are set out above. The fact that Parliament has prescribed a maximum penalty of life imprisonment for the offence indicates offending of the most serious kind at the top of the criminal calendar. The maximum penalty must be taken into account as a guidepost in the sentencing process.

s16A(2)(d) and (e) - The personal circumstance of any victim of the offence and any injury, loss or damage resulting from the offence

1. Whilst there are no personal circumstances of any victim of the offence to be taken into account nor any injury or loss or damage resulting from the offence the potential for enormous harm to the community in the event that the purpose of the conspiratorial agreement had been successfully executed is a very relevant matter in sentencing for drug offences. The operations of international criminal syndicates are highly sophisticated, difficult to detect, and are motivated by egregious financial gain to those who perpetrate the dissemination of prohibited drugs throughout the community. In doing so, they potentially cause enormous harm to those end users of the prohibited drugs, and facilitate further criminal conduct in the community at an enormous cost, including policing resources.

s16A(2)(f) and (g) - The degree to which the person has shown contrition for the offence and the offender's plea of guilty

1. The offender pleaded guilty upon Arraignment before the jury following pre-trial evidentiary and factual rulings which were decided adversely to his interests. Whilst there had been negotiations in which the offender had offered a plea of guilty to a substantive charge of attempt to possess a commercial quantity of border-controlled drugs namely 7.7kgs of cocaine, that was not accepted, and a counter-offer was made on the basis that the offender accept his involvement in the importation of the border controlled drug, being the offence pursuant to Count 1, for which he was subsequently acquitted by the jury. The fact, timing and degree to which the plea resulted in benefit to the community by the avoidance of an unnecessarily longer trial is a matter for discretion. Here, given the trial of Campbell continued in respect of Count 2, leading to his conviction on that count, there was no substantial saving in terms of witnesses called at trial.
2. I accept that the offender has expressed contrition and remorse for his offending conduct in Exhibit 2, albeit that much of his focus has been on the impact of his offending and incarceration on his family. The testimonials tendered on his behalf also attest to his remorse, particularly that of the prison Chaplain. Having regard to all those matters I intend to provide a utilitarian discount on sentence of 10% in mitigation of sentence, in respect of his late plea of guilty and contrition.

s16A(2)(j) - Specific deterrence

1. Specific deterrence is important in that the offender must understand the very serious nature of his offending conduct, the potential of harm to the community involved in the conduct and the serious consequences that would follow if he were to re-offend.

s16A(2)(ja) - General deterrence

1. It is well-established that general deterrence is a primary consideration in sentencing for drug related offences, particularly those related to the importation, possession of or dissemination of very large quantities of border-controlled drugs. This is because of the difficulty of detection of such criminal activity, the amount of community resources dedicated to investigating and detecting such criminal activity and the grave and widespread harm done to the community by such offending. A clear message must be sent to like-minded members of the community who are tempted to engage in such criminal conduct motivated by the excessive financial rewards involved that Parliament has prescribed the highest maximum penalties available, namely life imprisonment, for such offending and that the Courts will impose condign punishment in appropriate cases for such offending.

s16A(2)(m) - Character, antecedents, age, means and physical or mental condition of the offender

1. The offender was born in 1983 and is 40 years of age. He is a married man with a seven-year-old son and at the time of the offence was a director of a construction company in Dubai where he had moved to live in 2016. Prior to that he had run a successful construction company in Canberra. I accept the histories recorded by both Dr Henderson and Professor Woods, which were not challenged by the Crown. The offender had been diagnosed with Crohn's disease in 2009 which developed into an inflammatory bowel disease requiring surgery on four separate occasions between 27 May and 30 December 2014. As a result of the removal of his bowel and rectum he has a permanent ileostomy bag.
2. The offender had commenced using cocaine as a recreational drug when aged 21 years but reduced his use subsequent to being diagnosed with Crohn's disease. Following his arrival in Dubai he started using cocaine again and drinking alcohol heavily on a daily basis. Shortly after his arrival in Dubai a close friend died by suicide following which the offender's use of cocaine increased to the extent that he was spending $2,000 to $5,000 each week. He gave a history to Dr Henderson of using GHB from around September 2017 and was also using Xanax and Valium on a daily basis to assist him to sleep. He reported that his mental health had significantly deteriorated from around May 2017.
3. I accept the diagnoses of Dr Henderson that the offender suffers from post-traumatic stress disorder (PTSD) with Co-morbid Major Depressive Disorder consequence to the cumulative impact of a series of traumatic events, specifically pain and self-image disturbances related to his Crohn's disease, suicide of his close friend and colleague, physical assault and threats made towards his family (not relied on as exculpatory duress) and his attempts to self- medicate his mental health difficulties with excessive use of alcohol and prohibited drugs.
4. The offender's diagnoses and treatment for Crohn's disease and the ongoing difficulties suffered by him in custody are well documented in the clinical case notes relied on by the offender. No expert medical opinion was however relied on to inform the present state of that disease or its future progression. I accept however that it is a debilitating condition which has adversely impacted upon him whilst in custody and which he has overcome to the extent of his engagement in courses and work in trusted positions. In Can v R [2023] NSWCCA 179 Chen J said at [62]:- "It is not in doubt illness or poor health can mitigate the type and length of a sentence. As recently explained in Geraghty v R [2023] NSWCCA 47 at [108], when illness or poor health relied upon: … there are two relevant principles in play. The first is that the weight to be given to illness or poor health is to be assessed in light of "all the circumstances of the case, and an appropriate balance has to be maintained between the criminality of the offender and any damage to health or shortening of life": R v Achurch. The second was identified by King CJ in R v Smith: The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill-health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his [or her] state of health when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health."
5. I have taken into account the onerous conditions in which the offender was incarcerated in Serbia following his arrest particularly given the unhygienic nature of the prison conditions and his lack of access to medical supplies required for his ileostomy and Crohn's related medical condition, resulting in him developing serious infections and necessitating three admissions to hospital.
6. I further accept that the COVID-19 pandemic had an impact on the whole of the prison population in New South Wales following the offender's extradition from Serbia which has added to the onerous conditions already suffered by the offender in custody given his physical and mental health.

s16A(2)(n) - The prospect of rehabilitation of the offender

1. I accept that the offender has made positive steps in his rehabilitation being free from abuse of illicit drugs and contributing in a positive way to the prison population by working in a trusted position whilst in custody, attending and completing courses and providing advice and support to fellow prisoners. The offender has had no recorded infractions and presents as a model prisoner. This augurs well for his successful rehabilitation back into the community upon his release and confirms the opinion of the author of the SAR that he is at a low risk of re-offending.

s16A(2)(p) - The probable effect that any sentence or order under consideration would have on any of the person's family or dependants

1. I accept the opinions expressed by Ms Barhon, Clinical Psychologist. The offender's wife, Sian Waters and son, Sebastian have been subjected to a significant hardship over the last six years since the offender's arrest and incarceration. I accept that Mrs Waters has experienced symptoms of severe and pervasively depressed mood with suicidal ideation and that she has symptoms of a Major Depressive Disorder.
2. I also accept that the offender's son has demonstrated delays in his development and significant behavioural challenges notwithstanding recent improvements following reinstated contact with the offender. I have taken those matters into account in the sentencing process.
3. I am not satisfied that the delay in sentencing of six-years is a matter that warrants mitigation of this offender's sentence. First, his incarceration in Serbia for a year was a direct result of him exercising his legal right to oppose extradition to Australia. Thereafter, there is no evidence of any investigative delays in bringing this matter to trial. On two occasions the trial dates were vacated on the application of the offender and on one occasion on the application of his co-offender Campbell. This is not a situation where the offender was left in a state of uncertain suspense, for example if the offender had entered an early plea of guilty, and I accept the Crown's submission that no weight should be given to delay in sentencing in mitigation of this offender's sentence.
4. I do however accept that the offender has suffered hardship in custody given his physical condition and mental diagnoses and the restrictions imposed on the whole of the prison population due to the impact of the COVID-19 pandemic as set out above. These are matters to be taken into account in mitigation of the offender's sentence.
5. The principle of parity is relevant to sentencing here. Given the facts which have been determined following the trial of the offender on Count 1 on the Indictment, and the trial of the co-offender Campbell in respect of both Counts 1 and 2 on the Indictment and the verdicts of the jury finding the offender and co-offender not guilty on Count 1 and the co-offender guilty on Count 2 on the Indictment, this Court is placed in a more informed position to determine the roles of the co-offender than was Judge Culver in sentencing Arnold. As set out above, her Honour sentenced Arnold on the basis that the offender here was a principal of the criminal syndicate and that Arnold played a lesser role. That is not the basis upon which this offender is to be sentenced. I note the distinguishing factors relied on by the Crown as set out in [58] above. Arnold was convicted after pleading guilty to a charge of conspiracy to import rather than to possess the border-controlled drug. His first overt act was committed on 24 July 2017 and his involvement continued until the meeting in Belgrade on 16 January 2018. Arnold also entered his guilty plea at the earliest opportunity and his sentence was discounted by 25%. I note that his role was found to be that of a "vital and important" manager engaged in all key aspects of the conspiracy albeit just below the three principals.
6. The principle of parity involves that like cases should be treated alike and the significant differences be taken into account in sentencing - see Green v The Queen (2011) 244 CLR 462. In sentencing Arnold her Honour found that the threshold in s17A of the Crimes Act had been crossed and Arnold was sentenced to a period of imprisonment for a period of 27 years with a non-parole period of 19 years. Given the discount of 25% for his early plea of guilty her Honour's starting point was a sentence of 36 years imprisonment. There are significant differences to be taken into account here. As I have found, the offender was not a principal of the criminal syndicate. He entered the conspiratorial agreement on or about 26 December 2017 and was involved for a short period of time until 16 January 2018. He did however commit himself to the purpose of the conspiracy as a facilitator to obtain the possession of the border-controlled drugs by exchange of a large amount of money. Whilst he may not have known the exact quantity of border-controlled drugs he knew that it was a significantly large quantity. He was responsible for the numerous overt acts outlined in [6] above, particularly once he arrived in Belgrade. It was, as outlined above, objectively very serious offending but having regard to the whole of the facts which have been established beyond reasonable doubt, it was objectively less serious than Arnold's role.
7. The offender is however entitled to a 10% utilitarian discount on sentence and some mitigation based on his medical and mental health and the onerous conditions of custody endured by him. Whilst I have had regard to the comparative sentences raised by both the Crown and counsel for the offender, sentencing is an idiosyncratic exercise in which the individual offender's subjective factors are taken into account with the objective seriousness of the offending and the application of sentencing principles, including parity with co-offenders. I have therefore had regard to the comparative sentences in determining the sentencing principles applicable, and the need to achieve some consistency, in Commonwealth sentencing.
8. I am satisfied that pursuant to s17A of the Crimes Act, after having considered all other available sentences, no sentence other than imprisonment is appropriate. I further note that where a Court imposes a sentence in excess of three years imprisonment the Court must fix a non-parole period pursuant to s 19AB(1) of the Crimes Act. There is no norm expressed as a percentage of the head sentence in Commonwealth sentencing matters, for the fixing of that non-parole period.
9. Having regard to all those matters I intend to take as a starting point a term of imprisonment of 25 years. From that I intend to discount the sentence by 10% and then mitigate the sentence by a further margin to take into account the significant medical difficulties that you have faced and will continue to face in custody, the onerous conditions of your incarceration following your arrest both in Serbia and given the impact of the COVID-19 pandemic in New South Wales since you arrived here. I therefore intend to sentence you to a term of imprisonment of 20 years with a non-parole period of 12 years imprisonment to commence on 16 January 2018.

Orders

1. I make the following orders:- 1. You are convicted of the offence in Count 2 on the Indictment that you between 26 December 2017 and 16 January 2018 at Sydney in the State of New South Wales and elsewhere, did conspire with Rohan Peter Arnold and divers others to possess a substance, the substance being a border controlled drug, namely cocaine and the quantity, being a commercial quantity, and the substance having been unlawfully imported. 2. I sentence you to a non-parole period of 12 years imprisonment commencing on 16 January 2018 and terminating on 15 January 2030. 3. The balance of term will be a period of 8 years commencing on 16 January 2030 and terminating on 15 January 2038.
2. Your parole eligibility date is 15 January 2030. You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence.

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: 19 April 2024