R v Zycki

District Court of NSW|2023-09-15

REMARKS on SENTENCE

The offender is to be sentenced in respect of one count, being Sequence 3, of supply prohibited drug greater than large commercial quantity, namely 4.517kg of cocaine pursuant to s 25(2) of the Drug Misuse and Trafficking Act 1985 ("DMTA"). The maximum penalty for the offence is life imprisonment and/or a fine of 5,000 penalty units ($550,000) and there is a standard non-parole period prescribed of 15 years imprisonment.
The offender pleaded guilty in the Local Court at the earliest opportunity and adhered to her plea of guilty at the sentence hearing on 15 September 2022.
The following charges are to be dealt with on a Form 1 attached to Sequence 3:- 1. Sequence 1 - participate in criminal group contribute to criminal activity, an offence pursuant to s 93T(1) of the Crimes Act 1900. The maximum penalty for this offence is 5 years imprisonment and there is no standard non-parole period prescribed. 2. Sequence 2 - knowingly deal with proceeds of crime i.e. $627,650, an offence pursuant to s 193B(2) of the Crimes Act 1900. The maximum penalty for this offence is 15 years imprisonment and there is no standard non-parole period prescribed. 3. Sequence 4 - supply prohibited drug greater than large commercial quantity, namely 1kg of 3,4-methelenedioxymethylamphetamine ("MDMA") pursuant to s 25(2) of the DMTA. The maximum penalty for this offence is life imprisonment and/or a fine of 5,000 penalty units. There is a standard non-parole period prescribed of 15 years imprisonment. 4. Sequence 5 - possess prohibited drug, namely 80.9g of cannabis leaf pursuant to s 10(1) of the DMTA. The maximum penalty prescribed is 2 years imprisonment and or a fine of 20 penalty units. This matter is also subject of a certificate pursuant to s 166 of the Criminal Procedure Act 1986 as a related offence.

The sentence hearing

The sentence hearing took place on 15 September 2023. Exhibit A included a statement of agreed facts which may be summarised as follows.
In October 2018 police commenced an investigation in relation to an encrypted communication network (ANOM) used in Australia by organised crime groups. In late October 2021 a Strike Force was established to investigate the large-scale drug distribution and money laundering in NSW under the direction of one Shane Ngakuru, a person aligned with an outlaw motorcycle group who was located in Thailand. The manager of the group was one Edward Ryan who not only orchestrated a number of large-scale outdoor cannabis crops but also directed the offender and others in the supply of large commercial quantities of MDMA, methylamphetamine and cocaine. The offender was responsible for delivering prohibited drugs and collecting cash and it was her involvement which formed the basis of Sequence 1, participate in criminal group an offence pursuant to s 93T(1) of the Crimes Act on the Form 1.
The index offending in Sequence 3 arose from the following agreed facts. Between 5 December 2019 and 10 May 2021, the offender possessed, transported and supplied a total of 4.517kg of cocaine and dealt with $627,650 knowing it was the proceeds of crime. The later offence was Sequence 2, knowingly deal with proceeds of crime pursuant to s 193B of the Crimes Act, also on the Form 1. Sequence 3 concerned the following transactions. On 6 December 2019 communications between Ryan and the offender concerned the sale "of a couple of balls" of cocaine in which the offender stated she only had one ball or 3.5g of cocaine left and "coin".
Around 13 December 2019 Ryan organised the offender to collect approximately 757g of cocaine. She sent both Ngakuru and Ryan ANOM picture messages of the cocaine being broken down and weighed before being repackaged in smaller amounts and supplied to other persons.
On 15 December 2019 Ryan instructed the offender to drive from Grafton to Newcastle and then the next day to Sydney to drop cash ($3,000) and collect "the bricks". The offender completed the drive over the next couple of days and moved $200,000 cash and 0.75kg of cocaine.
On 1 January 2020 the offender transported $600,000 on behalf of the group. On 2 March 2020, the group received 496g of cocaine in the mail. Ryan messaged the offender asking if she could deliver cocaine and MDMA to the Gold Coast on the weekend and she agreed. Ryan told her an ounce of cocaine is $7,000. A co-accused Lavermicocca dropped 212g of cocaine to the offender and, on the weekend of 7 to 8 March 2020, the offender drove to the Gold Coast with the cocaine and 1kg of MDMA and the group paid her $2,000 for the delivery. The delivery of MDMA is the basis of Sequence 4 on the Form 1.
On 11 May 2020 the offender collected 3 ounces (84g) of cocaine from Ryan whilst in her RMS work vehicle. He told her he would do "your ounce for 7k, everyone else is 8k", and instructed her not to bring her normal phone. On 12 May 2020 the offender confirmed that she had supplied the 84g to an unknown male using the ANOM device.
On 19 July 2020 Ryan arranged for the offender to collect 1,102g of cocaine in exchange for $235,500 cash given to her by co-accused Bradbury and Giles for delivery to Ryan's farm. The offender agreed and confirmed when the funds were collected and exchanged for cocaine, also sending a photograph of the collected drugs. She then opened the package and repackaged the drugs into smaller batches, sending photographs of that process.
Around 2 October 2020 Ryan organised the purchase of 1,088g of cocaine for $290,000. This was collected by the co-accused Lavermicocca and then 750g was delivered to the offender who sent a message stating, "home, have the package". Later that day Nguakuru and Ryan organised the offender to collect 480g of cocaine from Sydney. She collected the drugs from an unknown person and sent Ryan an ANOM picture message of the cocaine being weighed. On 31 January 2021 the offender delivered the drugs and $25,000 to a person as directed by Ryan.
On 5 February 2021, the offender messaged asking for another ounce of cocaine. She told Ryan she saw the co-accused Lavermicocca and collected coin. Later that day Ryan messaged another group member saying "1 oz to bird at 10k minus 2k for drives. Is hers at 8k". "Bird" was referring to the offender. Ryan further indicated that the offender had collected $120,000 from his house, $2,000 of which was hers. On 8 February 2021 Ryan asked the offender to collect 250g of cocaine and bring it to him. The offender agreed and collected the drugs the following day from a meeting point in Kotara.
On 21 February 2020 the offender messaged Ryan to confirm that she gave $5,500 to a co-accused Bradbury after meeting him at the airport the day before.
On 27 February 2021 the offender collected "a ball" (3.5g) of cocaine in Waratah to deliver to someone on behalf of Ryan.
In early May 2021 the offender was in the Gold Coast and Ryan directed her to meet with the co-accused Bradbury and collect 125g of cocaine. That was done at the Tweed City carpark.
On 20 April 2022 police executed a search warrant at the offender's residence at Medowie, during which they seized:-

A plastic resealable bag containing cannabis inside a glass jar (75.3g)
Cannabis located within a Motorola container (4.8g)
A small amount of cannabis inside a bowl (0.8g)
A list of monies owed by the offender to the group for drugs
Red electronic scales This formed the basis for Sequence 5, posses prohibited drug (80.9g of cannabis), on the Form 1.

Exhibit B was a Sentencing Assessment Report ("SAR") under the hand of Ms J Bentley dated 13 September 2023. The author noted that prior to her arrest, the offender had been employed by Service NSW since 1996 and has lost her employment due to the index offending. Under the heading "Attitudes" the author noted that the offender attributed her offending behaviour to her dependence on drugs. She claimed to have no knowledge of the scope of her offending until after her arrest. She further claimed to have been led to her offending behaviour by her co-accused by way of enticing her with a discount on the substances she was already purchasing from him. She stated that she had felt groomed by her co-accused and recognised she would not have had the capacity to offend in this manner alone. Her principal motivating factor in her offending was her drug dependency which dated back to 2013. She had accumulated a drug debt with her co-accused that necessitated her continued offending. She attributed her drug dependence and poor mental health to unresolved grief following the breakdown of her marriage and the death of her mother. She had a diagnosis of anxiety and depression for same in custody.
Under the heading "Insight into impact of offending", the author noted the offender's initial insight existed mostly within the realm of self-concern, however with considerable exploration she was able to genuinely recognise the widespread impact of her offending on the community. With the benefit of her sobriety she can now fully appreciate the damage that her offending has caused to the public. She was assessed as a medium-low risk of reoffending and as suitable to undertake community service work.

The offender's evidence

The offender tendered a bundle of documents which became Exhibit 1.1 to 1.7. Exhibit 1.1 was a statement confirming the offender's participation in the Remand Addictions Program at Silverwater Women's Correctional Centre.
Exhibit 1.2 was a letter from Ms R Linfield who had known the offender for five years. Ms Linfield stated that the offender accepts full responsibility for the position she is in and realises the impact that drug use reliance and drug intoxicated decision making has, and that she wishes to be able to contribute to society "with the many valuable service strengths and characteristics she possesses".
Exhibit 1.3 was a letter from Mr D Pearson who has known the offender for over 40 years. He described the profound effect that the death of her mother had on the offender and that she is truly remorseful for her actions. He described the offender as a good person and a great mother to her step-children.
Exhibit 1.4 was a letter from Ms B Wither who has known the offender for 7 years. She states that the offender demonstrates numerous qualities as a valuable person to the community and that she has expressed a deep form of remorse for her criminal conduct.
Exhibit 1.5 was a letter from Ms M Smith who has known the offender for 6 years and described her "a kind hearted, considerate and trustworthy friend". She offered her employment and expressed her absolute trust in the offender.
Exhibit 1.6 is a report from Ms A Georges, clinical psychologist, who assessed the offender on 2 August 2023 via AVL for a period of over two hours. The offender gave an account of her offending that in the years prior to her arrest she was using increasing amounts of marijuana and cocaine on a daily basis since her divorce. The person she was acquiring drugs from started asking her to "pick up the drugs and cut it up". The offender stated she was trying to get more money to get out of her drug debt and feed her addiction but stated, "I was killing myself by doing it but didn't know how to stop". She had expressed remorse repeatedly to the author.
Ms Georges took a personal history. She had difficulties in High School and left school at the end of Year 9. She had however worked for Transport NSW for a period of 27 years. During that time she had experienced some traumatic incidents when she was called to accident sites and had witnessed deceased persons involved in motor vehicle accidents, particularly between 1996 and 2002.
The offender had started smoking marijuana at 13 years of age but had given it up when she met her partner when she was 26 years old. Following her divorce in 2011 she had resumed smoking marijuana and snorting cocaine on a daily basis.
Following psychometric testing and assessment, the offender was assessed as having symptoms consistent with a Major Depressive Disorder ("MDD") and Generalised Anxiety Disorder ("GAD"). She also met criteria for a Post-Traumatic Stress Disorder ("PTSD") relating to her experience of attending to road accidents in her employment.
The offender had experienced a range of adverse childhood events relating to her parents' separation and, following her own divorce, had lapsed into substance abuse. Ms Georges assessed her as being at a low-medium risk of recidivism. She then set out a treatment plan.
Exhibit 1.7 comprised of various medical records.

The offender's oral evidence

The offender gave sworn evidence that she accepted the agreed facts and had been truthful to the psychologist. She was willing to undergo the treatment recommended by Ms Georges. She also told the author of the SAR the truth.
The offender gave evidence of her employment with the RMS for a period of 27 years. She had enjoyed her employment very much however in the early years had attended a number of traffic accidents in which she observed deceased persons. She had later worked in traffic control, being responsible for cleaning accident scenes as a team leader.
The offender gave evidence that she had been in a relationship for 14 years which broke down in 2011 and that had affected her greatly. She had then started smoking marijuana and using cocaine to the extent that she was spending $2,500 per week in 2020 and 2021 on cocaine. She would do jobs for her supplier to get a discount and he would direct her to collect cocaine, cut it up and send him photos when she had done so. For doing that she obtained a discount of up to $2,000 off the price of an ounce of cocaine. She described what she was doing as "stupidity". If she had her time over again she would have just said "no" and gotten help for her addiction.
The offender gave evidence that she had been abstinent from cocaine since 16 April 2022 and had last smoked cannabis on 19 April 2022, the night before her arrest. Whilst on bail she had complied with strict bail conditions, including reporting three times per week, a strict residential condition which meant that she only went out to attend solicitors and doctors appointments. Since she has been in custody she has been working in the kitchen everyday and had attended a remand addictions course whilst awaiting sentence. She had undergone a thyroid biopsy but did not yet have the results. The offender stated that she understood her conduct was totally wrong and that she was totally remorseful for her offending.
In cross-examination the offender gave evidence that other than the discount on cocaine, she didn't receive anything else for her participation in the drug supply. Although she sometimes received cash that would come off her drug debt. She conceded that her criminal conduct involved her driving up and down the east coast a number of times and that she would travel from Grafton to Newcastle and then the following day on to Sydney. She also needed to measure quantities of the drugs, however sometimes they were already measured out. On one or two occasions she had used her work vehicle for the purpose of drug supply on occasions when she had taken it home from work. Mostly, she used her own vehicle.

The Crown submissions

The Crown relied on a detailed and thorough written outline of submissions in which it set out sentencing principles for drug supply offences which are not controversial. In Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 the Court held that a consistent message of deterrence and protection of the community are significant factors and that recognition of the serious social implications of drug dealing suggest that in the ordinary case a sentence other than imprisonment will fail to meet sentencing objectives.
In Koh v R [2013] NSWCCA 287 at [108] the Court held that the amount by which the drug exceeds the relevant threshold for large commercial quantity is relevant in assessing the objective seriousness of the offending. In assessing the role of the offender in a drug supply offence the Court is to focus on what the offender actually did rather than trying to assign a label or categorising the role of the offender in a drug enterprise.
The Crown submitted that the offender's history of drug addiction is relevant to the offender's moral culpability, but that it must be considered cautiously in the circumstances of commercial drug supply, relying on Dang v R (2013) 237 A Crim R 522; [2013] NSWCCA 246 at [30]. The Crown submitted that the objective seriousness of the index offence fell below the mid-range of objective seriousness for an offence pursuant to s 25(2) of the DMTA. It related to no less than eleven drug supply transactions of various quantities of cocaine, together with the Form 1 offence of supplying MDMA. The Crown submitted the principle of totality should be applied in exercising the discretion to determine the degree of accumulation to be applied on the sentence, relying on Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27].
The Crown submitted the offending here occurred within the context of a sophisticated and organised criminal group which used encrypted communications and aliases to organise its activities. The transactions were not done at a street level, but rather involved engaging directly upline suppliers in bulk quantities. The Crown conceded that the purity of the drugs supplied should be considered low for the purpose of sentence given there was no evidence before the Court as to the purity of the drugs supplied.
The Crown submitted the offender's role within the syndicate was as an entrusted person to deliver prohibited drugs and/or cash and to facilitate the purchase and sale of bulk quantities of prohibited drugs over long distances. Her role was described as "subordinate and towards the bottom end of the syndicate's hierarchy". There was no evidence that she contributed financially to the operation rather the evidence was that she mostly received payment from the syndicate rather than a share in the profits thereof and had no decision making role. It was still a role that was critical to the functioning of the syndicate given that she was trusted with delivering large quantities of prohibited drugs and large amounts of cash. The Crown submitted that the offender's involvement was not impulsive, but rather a deliberate participation in a serious criminal enterprise. She was also present for and involved in the repacking of prohibited drugs into smaller amounts to be on-supplied.
The Crown submitted that the offending conduct was driven in part by financial gain given that the agreed facts reveal that she was paid $7,000 for her role. However, her involvement was also spurred on by her need to support her existing drug addiction. Her participation was incentivised by receiving discounts on the cost of purchasing cocaine from her supplier and she also had a drug debt to the syndicate at the time of her arrest. It was an aggravating factor that the offending involved a series of criminal acts pursuant to s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999 ("CSPA").
The Crown submitted that mitigating factors were that the offender had no prior criminal record and is of prior good character (s 21A(3)(e)-(f) of the CSPA) and the offender is entitled to a 25% discount for the utilitarian value of her plea of guilty (s 21A(3)(k) of the CSPA).
The offence of participating in a criminal group on the Form 1 schedule means that the Court should take care not to double count as an aggravating factor that the offence was part of a planned or organised criminal activity. Further, the aggravating factor of financial gain is an inherent characteristic of a significant offence of drug supply. The Crown did not submit that this should be an aggravating factor.
The Crown submitted that no sentence other than a fulltime custodial sentence is appropriate and that it should be backdated to commence on 27 December 2022.
The Crown also relied on a supplementary written submission in response to the offender's written submissions filed on 1 September 2023. The Crown submitted that limited weight should be given to good character in drug supply offences and that general deterrence is important in sentencing for serious drug supply offences which are frequently committed by persons of good character.
In his oral submissions the Crown rehearsed his submission that general deterrence is one of the most significant factors in sentencing for drug trafficking offences. The Crown submitted that the role of a courier was an integral role to the drug syndicate whose business was not otherwise possible.
The Crown rehearsed his submissions concerning good character being of limited weight in the sentencing process and that notwithstanding that the objective seriousness of the offending fell below mid-range, it was not at the bottom of the range. The Crown firmly opposed the imposition of a custodial sentence to be served by way of an Intensive Correction Order ("ICO") in the community.
The Crown provided a schedule of "comparative" cases, only one of which it submitted was instructive, namely Chu v R [2023] NSWCCA 13.

The offender's submissions

Counsel for the offender also relied on a detailed written outline of submissions, noting there were six co-offenders who had yet to be sentenced by the Court. It was agreed that any sentence of fulltime imprisonment should commence on 27 December 2022.
Counsel referred to the following subjective circumstances of the offender. She is now 53 years of age and had a dysfunctional childhood after her parents' split when she was 6 years of age and she thereafter clashed with her step-mother. She left school and the family home in Year 9. She worked for the RTA (now Transport for NSW) as a traffic controller for 27 years and lost her employment as a result of her current offending.
The offender has no criminal record and was a person of good character prior to the commission of the index offence. She had commenced using cannabis during High School but quit when her former husband gave her an ultimatum to stop. Following the dissolution of her marriage in 2011 she recommenced her use of illicit substances. Her use of cocaine developed into a daily habit as well as using cannabis, she had been abstinent since her arrest and has successfully completed the Remand Addictions Program whilst awaiting sentence.
Counsel submitted that the offender had a profound addiction to illicit substances prior to her arrest and will therefore require additional support and supervision when she is eventually integrated back into the general community.
Counsel made the following submissions in respect of the offender's attitude to the offending:- "a. After her divorce she reengaged in the use of illicit substances which increased over time. b. The person that she was acquiring illicit substances from asked her to pick up drugs for them and cut them up. c. That her involvement increased over time, and she was directed to transport illicit substances that were to be sold by the drug syndicate as well as collecting and transporting cash that was derived from the sale of illicit substances. d. That at all times she followed the directions given to her by other members in the syndicate. e. That she was motivated by a need to fund her addiction and to clear a debt that was owed to the syndicate, that fluctuated over time. f. That she was at work when she received a phone call from the police informing her that a search warrant was being conducted at her residence g. That she was shocked and numb in the first few days after her arrest. h. That she was pleading guilty to accept responsibility for her actions. i. That "she was killing herself by doing it, but she did not know how to stop". j. That the offending has had a significant impact on her life including the loss of her employment with transport for NSW. k. That being bail refused was a massive wakeup call and that she has been abstinent from illicit substances since her arrest."
Counsel submitted that the offender had three medical concerns being her left knee, which requires a total knee replacement, consistent back pain from her L5-S1 vertebrae and a thyroid biopsy which requires further investigation.
Counsel identified that Ms Georges opined that the offender was exhibiting symptoms consistent with PTSD, MDD and GAD. It was submitted she was suffering from mental illness which therefore reduces her moral culpability as well as reducing a need for general deterrence, retribution and denunciation. Ms Georges had not directly linked her mental illnesses to her offending conduct, but recommended a treatment plan.
It was submitted that the offender was at a low to medium risk of reoffending particularly given her clear expressions of remorse and insight into her offending conduct. If a fulltime custodial order was made, it was submitted there should be a finding of special circumstances given that she will need extended supervision to transition back into the community.
Counsel conceded that the threshold in s 5 of the CSPA has been crossed and no sentence other than fulltime imprisonment is appropriate however the Court could consider the imposition of an ICO if it was considering a sentence of 2 years imprisonment or less. He then set out well established principles relating to the assessment required pursuant to s 66(1) of the CSPA.
Counsel submitted that the offender's role in the drug supply syndicate is to be determined by what she actually did. She was clearly not a principal and did not share in the profits of the criminal enterprise. She received a set amount for her services and primarily the money was used to fund her addiction to cocaine. There was no evidence of her enjoying a lavish lifestyle and at all times she worked as a courier at the direction of other persons in the syndicate. She had no decision making role and it was open to the Court to conclude that she only played a small to moderate part of the larger network.
Counsel submitted there were no aggravating factors to be taken into account pursuant to s 21A(2) of the CSPA. Mitigating factors included her having reasonable prospects of rehabilitation (assuming engagement with drug and mental health treatment and continued abstinence); remorse and contrition as well as her plea of guilty and her prior good character.
It was submitted that the objective seriousness of the offending fell just below the mid-range of objective seriousness for an offence pursuant to s 25(2) of the DMTA. If the Court determines the objective seriousness is below the middle range of objective seriousness the Court will determine not to impose the standard non-parole period prescribed of 15 years imprisonment.
In his oral submissions, Counsel for the offender noted that her undiagnosed PTSD prior to her arrest arose from the conditions of her employment which caused her to attend a number of fatal motor vehicle accidents together with the circumstances of the break down of her marriage which led her to relapse into use of illicit drugs, which led to an addiction.
Counsel rehearsed his submissions that her role was a low one in the hierarchy of the drug supply enterprise in that she had no role in decision making and was under the direction of her upline supplier. She also had a strong subjective case.
If the Court did not accept that she was a candidate for an ICO then a finding of special circumstances should be made having regard to her mental health illnesses and treatment program for her profound addiction which would require additional time under supervision.
Counsel rehearsed his submissions concerning the limitation on general deterrence given her mental health issues, that she was plainly of good character which was a matter of weight, and that the objective seriousness fell below mid-range, therefore the standard non-parole period would not apply.
Counsel further submitted that it was a mitigating factor here that she had facilitated the course of justice in the following ways. The activities of this drug syndicate had been investigated as a result of police use of ANOM to expose illegal activities. The use of evidence obtained in this way was subject to current litigation alleging illegality in the evidence, which all co-defendants are relying on. This offender had however pleaded guilty at an early opportunity and therefore saved the authorities time and resources.
Also relevant was that the offender had complied with stringent bail conditions as a form of quasi-custody in the form of house arrest. She had a reporting condition requiring her to report three times per week and was not to leave her premises unless in the company of her nephew, was not to go near any airport, was to have access to only one mobile phone and be subject to drug testing. There had been no breach of those conditions. It was submitted this would warrant a further diminution of her sentence.

Submissions in reply

In response to the last submission on behalf of the offender, relating to quasi-custody the Crown submitted that the offender is entitled to a 25% utilitarian discount in respect of her plea of guilty which does not facilitate the course of justice and there had been no other assistance to authorities.

Determination

S 3A of the CSPA sets out the purposes of sentencing as follows:- "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community".
In assessing the objective seriousness of the offending I note that the quantity of cocaine supplied was more than four times the prescribed large commercial quantity of one kilogram. Between 5 December 2019 and 10 May 2021 the offending comprised a total of eleven drug supply transactions in which the total cocaine supplied was 4.517kg. The offender was clearly not a decision maker in the hierarchy of the drug supply syndicate however her role was integral to the syndicate achieving its commercial purpose of supplying large quantities of cocaine for significant amounts of money up and down the east coast between Sydney and the Gold Coast. She was clearly entrusted by the syndicate with large amounts of prohibited drugs but also large amounts of money which she transported on behalf of the group. Her role also involved her repackaging drugs into smaller batches for on-supply and sending photographs of that process to those higher up in the hierarchy. When a search warrant was executed at her home following her arrest some indicia of a drug supply operation were found, including a list of monies owed by the offender to the group and electronic scales.
I accept the Crown submission that the transactions were not carried out at a street level but rather involved engaging directly upline suppliers in bulk quantities. I also note the Crown concession that the purity of the drugs supplied should be considered low given there was no evidence as to the purity of the drugs supplied. I find that the objective seriousness of the offending fell below the mid-range for an offence pursuant to s 25(2) given that section covers a wide range of criminal activity involving the supply of large amounts of prohibited drugs. I accept the submission made on behalf of the offender that she did not share in the profits of the criminal enterprise, nor did she enjoy a lavish lifestyle as a result of the activities. Rather the money she received was used to fund her addiction to cocaine, I therefore find that the offending fell in the upper part of the low range for an offence pursuant to s 25(2) of the DMTA. It still constituted serious offending.
It was an aggravating factor pursuant to s 21A(2)(m) that the offending involved a series of criminal acts. However I have been careful not to double count as an aggravating factor that the offending was part of a planned or organised criminal activity pursuant to s 21A(2)(n) given that Sequence 1 on the Form 1 is to be taken into account on sentence. Further, the aggravating factor of financial gain pursuant to s 21A(2)(o) is an inherent characteristic of a significant offence of drug supply and I have not taken that into account as an aggravating factor.
I have taken into account the offender's prior lack of criminal antecedents and the fact that she was a person of good character pursuant to s 21A(3)(e) and (f) as mitigating factors on sentence. I have also taken into account the offender's plea of guilty pursuant to s 21A(3)(k) and note that she is entitled to a 25% utilitarian discount on sentence in respect of that plea.
General deterrence, denunciation and protection of the community are significant factors in sentencing for drug supply offences. Parliament has prescribed a maximum penalty of life imprisonment for the index offence which places the offending at the top of the criminal calendar and indicates the seriousness of the offending. A clear message must be sent to likeminded members of the community who participate in such criminal activity with the prospect of significant monetary returns that the Courts will impose condign punishment in appropriate cases given the irreparable harm and serious social implications that the drug trade does to the community.
Specific deterrence is also important in that offenders must understand that to re-offend will only bring more serious punishment. As the objective seriousness of the offending was below mid-range the standard non-parole period has no application to the sentence to be imposed.
I have therefore taken the maximum penalty of life imprisonment and/or 5,000 penalty units, and the standard non-parole period of 15 years imprisonment into account as guidelines in the sentencing process.
I have also taken into account the four offences on the Form 1. Two of those offences involved separate serious offending, namely, Sequence 2 knowingly deal with proceeds of crime, that is $627,650, and Sequence 4 supply prohibited drug greater than large commercial quantity, namely 1kg of MDMA which carries the same maximum penalty as the index offence. Given the serious nature of these offences there must be some accumulation on sentence for the index offence taking these matters into account.
The offender's early plea of guilty and her expression of total remorse for her offending in her evidence demonstrate that she is remorseful for her offending and has acknowledged that her conduct was "totally wrong". I am not persuaded she is entitled to a further discount pursuant to s 22A of the CSPA for facilitating the course of justice by not, like her co-offenders, challenging the legality of the ANOM-based evidence acquired by investigators.
I have taken into account the subjective factors put on behalf of the offender. She is now 53 years of age and had a very good employment history over some 26 years. Whilst her previous good character is of limited weight in sentencing for such a serious offence, I do take it into account. I also accept that she was abstinent from the use of illicit drugs for a large period of her life until the death of her mother and break down of her marriage in 2011 when she relapsed into using both marijuana and cocaine. That spiralled into an addiction which led to her accumulating a drug debt which incentivised her participation in the index offence. The fact of her addiction at the time of the offending lessens somewhat the moral culpability of the offender, however it is not a mitigating factor. Nor is there any causal connection between the symptoms of depression, anxiety and PTSD and the index offence.
In accordance with DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 the fact that she is suffering those symptoms does mean that the importance of general and specific deterrence in sentencing is somewhat diminished, and that she will find custody more onerous than the general prison population.
I have taken into account that the offender complied with strict bail conditions whilst on bail and has been abstinent from drug abuse since her arrest and whilst she had been in custody. This augurs well for her prospects of rehabilitation which I find are reasonable. It is no small thing to overcome an addiction to such highly addictive drugs. I also accept that she is a low to medium risk of recidivism depending on her undergoing appropriate relapse prevention therapy.
I am satisfied, as the offender accepted, that the threshold in s 5 of the CSPA has been crossed and no sentence other than imprisonment is warranted in all of the circumstances. I make a finding of special circumstances pursuant to s 44(2) of the CSPA based on the fact of the offender's age, that this is her first time in custody and that she will require an extended period under supervision to ensure relapse prevention strategies are put into place to enable her to achieve a productive return to the community.
Having regard to the objective seriousness of the offending, the subjective factors referred to above and the 25% utilitarian discount on sentence, I intend to impose a sentence of 4 years and 6 months imprisonment to commence on 27 December 2022. There will be a non-parole period of 2 years and 3 months that will commence on 27 December 2022 and expire on 26 March 2025.
Given the length of sentence to be imposed, serving that sentence in the community by way of an ICO does not arise.

Orders

I make the following orders:- 1. You are convicted of the offence of supply prohibited drug greater than large commercial quantity, namely 4.517kg of cocaine pursuant to s 25(2) of the DMTA. 2. I sentence you to a non-parole period of 2 years and 3 months imprisonment to commence on 27 December 2022 and to terminate on 26 March 2025. 3. The balance of term will be a period of 2 years and 3 months from 27 March 2025 to 26 June 2027. 4. I have certified that I have taken into account the four matters on the Form 1. 5. Your parole eligibility date will be 26 March 2025. 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: 06 October 2023

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