SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: R v Hagan

Citation: [2016] ACTSC 343

Hearing Date: 10 August 2016

Decision Date: 4 November 2016

Before: Burns J

Decision: See [77]-[80]

Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – serious drug offences – trafficking in large commercial quantity of a controlled drug – 30 kilograms of methylamphetamine – trafficking in a controlled drug – plea of guilty – utilitarian value – reasonable prospects of rehabilitation – terms of imprisonment.

Legislation Cited: Criminal Code 2002 (ACT) s 603Drug Misuse and Trafficking Act 1985 (NSW) s 25Evidence Act 2011 (ACT) s 128

Cases Cited: Andros Steve Klobucar v The Queen [2014] ACTCA 6 Bui v The Queen [2015] ACTCA 5 Dong Pei Wang v The Queen [2016] NSWCCA 161 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520Jeremy Nguyen v The Queen [2013] ACTCA 11Jones v The Queen [2016] NSWCCA 230O’Brien v The Queen [2015] ACTCA 47 Plaisted v The Queen [2015] NSWCCA 287 R v Hatzisavvas; R v Lopez-Rios [2016] NSWCCA 147 R v Man Kit Li [2014] NSWCCA 327R v Peng Gao; R v Benjamin Lim; Benjamin Lim v The Queen [2007] NSWCCA 343R v Zolfonoon [2015] NSWDC 296; 21 DCLR (NSW) 336Wong v The Queen [2001] HCA 64; 207 CLR 584

Parties: The Queen (Crown)

Alexander Hagan (Offender)

Representation: CounselMr S Drumgold (Crown)

Mr J Lawton (Offender)

SolicitorsACT Director of Public Prosecutions (Crown)

Kamy Saeedi Law (Offender)

File Number: SCC 155 of 2015

BURNS J:

1. Alexander Hagan, you have entered pleas of guilty to the following offences:

(a) Count 1, trafficking in a controlled drug other than cannabis, in this case cocaine;

(b) Count 2, trafficking in a large commercial quantity of a controlled drug, in this case methylamphetamine; and

(c) Count 3, trafficking in a controlled drug other than cannabis, in this case 3, 4- methylenedioxymethlyamphetamine (MDMA).

2. It is now my responsibility to sentence you for these offences. In sentencing you I must be satisfied beyond reasonable doubt of any fact in dispute which would make your offence more serious, but I need only to be satisfied on the balance of probabilities of any fact which may make your offence less serious.

3. The maximum penalty for the offence of trafficking in a controlled drug other than cannabis, being cocaine, contrary to s 603(7) of the Criminal Code 2002 (ACT) (the Criminal Code), is 10 years imprisonment and a fine of $150,000.00 or both. The maximum penalty for the offence of trafficking in a large commercial quantity of a controlled drug, contrary to s 603(1) of the Criminal Code, is life imprisonment. The maximum penalty for the offence of trafficking in a controlled drug other than cannabis, namely MDMA, is 10 years imprisonment and a $140,000 fine.

4. An Agreed Statement of Facts was tendered at your sentence hearing. I will not recite the facts as they appear in that Statement, but I will, where necessary, refer to those facts during the course of the sentencing remarks. I will give a short summary of the facts. In March 2014, you recruited a friend, Wayne Meeker, to distribute 8-balls of cocaine for you. An 8-ball consists of 3.5 grams of cocaine. Over the following months you also discussed organising for Mr Meeker to transport a quantity of a controlled drug interstate on behalf of others, and on 23 October 2014 you recruited Mr Meeker to do a drug run that day to Melbourne in your car.

5. Concealed within the car were 24 bags of methylamphetamine, located in 3 different locations, with a total weight of 28 kilograms, 937 grams. On 23 October 2014, police executed a search warrant on your house in Curtain and located a large plastic bag, identical to the 24 bags used to store the methylamphetamine in your car that day, which contained 1,190.3 grams of methylamphetamine. Police also located a bag containing 232.73 grams of MDMA. I was not provided with any information as to the purity of the substances seized by police.

6. Count 1 represents the sale of the cocaine. Count 2 represents the 24 bags of methylamphetamine located in your car, as well as the single bag located at your house. Count 3 represents the bag of MDMA located at your house.

7. Evidence was, without objection, placed before me regarding the estimated value of the drugs seized on 23 October 2014. Police estimated that if the methylamphetamine seized had been sold on the street in point form, being deals of 0.10 grams, the methylamphetamine would have an estimated street value of $15,081,900.00 The estimated value of the methylamphetamine, if sold on the street by the ounce, was $4,308,000.00 and an estimated value, if sold on the street in kilogram lots, was $6 million.

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8. In 2014 the street price for cocaine, which is usually sold in 1 gram deals, was between $300.00 and $350.00 a deal, depending upon quality. The street price for an 8-ball (3.5 grams) of cocaine was around $1,100.00, with a half-ounce (14 grams) selling for $4,000.00 and an ounce (28 grams) selling for $8,000.00. In relation to MDMA, which is generally sold in pill or capsule form, the street price was between $30.00 and $35.00 a tablet. It was estimated that the MDMA which was seized from your home on 23 October 2014 was sufficient to make up 936 doses, with an estimated street value of $28,080.00. The weight of methylamphetamine prescribed by regulation as constituting a large commercial quantity is 6 kilograms.

9. The Crown tendered a statement by Senior Constable Araya-Bishop, concerning inquiries he had made into your bank accounts with the National Australia Bank. The first of these counts, which for convenience I will refer to by the last four digits of the account number, being 2340, had a balance as at 14 October 2014 of $3,846.39. The statements for that account showed few significant transactions on that account between June 2013 and October 2014. The second account, which I will refer to as account 9721, had a balance of $18,841.03 as at 24 October 2014. Bank statements for that account showed changes in the balance from $49,691.46 in December 2013 to $23,804.47 in June 2014 and $8,354.76 in September 2014.

10. You were arrested by police on 23 October 2014. You initially participated in an interview with police, but declined to continue that interview when police commenced asking you questions which indicated that they had knowledge that your car had been driven to Melbourne that day. In fact, your car had not been driven to Melbourne, but you were not to know that as you expected that Mr Meeker had driven it to Melbourne in accordance with your arrangements.

11. On 24 October 2014, you were charged in the Magistrates Court with these and other offences. On 31 October 2014, you pleaded not guilty and the case was listed for a case management hearing in April 2015. Police prepared a brief of evidence, which was served on you.

12. On 19 June 2015, you were committed for trial on these and other charges. On 15 February 2016, you were allocated a trial date of 30 May 2016. On 26 May 2016, following negotiations between your lawyers and the Director of Public Prosecutions, you pleaded guilty to the present charges in full satisfaction of the indictment.

13. You do not have an extensive adult criminal history. Your criminal history mainly consists of traffic offences. You were, however, relevantly convicted of supplying cannabis, and possessing cannabis for supply or sale, on 17 August 1990 in the Magistrates Court, and ordered to complete 208 hours of community service, as well as being sentenced to three months imprisonment, which was fully suspended with a recognizance to be of good behaviour.

Subjective features

14. A Pre-Sentence Report dated 1 August 2016 was prepared for your sentence hearing. You are currently 53 years old. You reported that you are single with three children from a previous relationship, with whom you have stable and supportive relationships. You told the author of the Report that you are in frequent contact with your ex-partner to support her in the care of your children. You also reported having a stable and supportive relationship with your mother. You said that you were your mother’s carer prior to being remanded in custody. Your father, reportedly, passed away

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approximately 8 to 10 years ago. You reported that both of your parents had issues with alcohol abuse and domestic violence while you were growing up.

15. You own your own home, subject to a mortgage, where you have resided for the past 26 years with your children. You intend returning to your home upon release from custody. You completed Year 10 of formal education and commenced employment immediately thereafter. You subsequently completed formal qualifications as a mortgage broker, and for the past nine years you have been the owner and operator of your own mortgage business. Prior to that, you owned your own company in the automotive industry. You intend returning to your mortgage broking business upon your release from custody. Since being remanded in custody you have been employed in the Alexander Maconochie Centre (AMC) and have completed all programs available to you in the remand unit. You reported no history of alcohol issues and stated that you used cocaine occasionally, sporadically, throughout your adult life. You claimed that the current offences occurred as a result of a cocaine debt with an associate, who threatened your family with violence if you did not participate in these offences. For reasons that I will give later in these sentences remarks, I do not accept the assertion that you committed these offences under any form of compulsion. You told the author of the Report that you had not used illicit substances since you were remanded in custody. You reported no general or mental health issues.

16. The author of the Report noted that you agreed with the case statement and stated that you accepted full responsibility for your actions. The author of the Report stated that you displayed empathy for the victims of your offences and acknowledged the potential harm your actions could cause to the community. You acknowledged your illicit substance use was a contributing factor in your offending behaviour. The author of the Report noted that you appear to have supportive relationships with your family, stable accommodation and the benefit of stable employment. You are assessed as being at low risk of general reoffending.

17. Two testimonials were presented on your behalf. The first was from your ex-partner, with whom you have three children. She said that she has spoken to you about your offences in detail and that you have expressed remorse, shame and regret. She said that you have seen the impact that drugs can have on the community, as well as on the individual. She stated that you are especially ashamed of the effect that your offending has had on your immediate family and, in particular, your children. She stated that you have your own, very successful, finance business and that you have studied and worked hard to achieve your goals. She believed that you made some questionable connections through your business, leading you to using cocaine. She said that she was extremely shocked and sad to learn of this, as you had always been a religious man with very high standards and morals. Your ex-partner, apparently, suffers from a mental illness, and she referred to the support that you have provided to her, and to your children, when she has been ill. She said that you continue to have her support and that of your children.

18. The second testimonial was provided by Steven Barclay, who had both a professional and personal relationship with you. He acknowledged that there was, clearly, part of your life he was unaware of and unable to comment on. He knew you as a man dedicated to his children, who is well-mannered, generous, a positive influence on people around him, and a valuable member of society.

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Count 2

19. I will now consider the objective seriousness of each of the offences. I will start with the most serious offence, the charge of trafficking in a large commercial quantity of methylamphetamine. Your counsel submitted, with respect to this charge, that the evidence supported the inference that you were a courier. He further submitted that you became involved in this offence because you owed money to the true owners of the methylamphetamine, and they imposed upon you to transport the drug to Melbourne for them. These submissions raise two issues: your role in the offence and your motive.

20. The submissions made by your counsel are intended to assert that the facts surrounding your involvement in the process of trafficking the methylamphetamine was limited to acting as a courier and that your involvement was, to some extent, coerced. This would be consistent with your statement to the author of the Pre-Sentence Report that you only participated in the offence because of threats of harm to your family. To the extent that the Crown did not accept your assertions about your role and your motive, the onus falls on you to establish these facts on the balance of probabilities. It is not helpful to attempt to define your role in this offence by use of the label “courier”.

21. In order to determine the objective gravity of your offending it is necessary to determine what you actually did. The evidence establishes that the drugs in question were delivered into your hands in Canberra. You then prepared your car in order to transport the drugs to Melbourne. This involved removing some of the panels of the car and concealing the drugs behind the panels. There is no evidence that you were directed to conceal the drugs in this way or instructed how to do so. You used gloves when packing the drugs into the car, obviously to reduce the risk of you being connected to the drugs by fingerprints or DNA if they were later found by police. This evidence suggests familiarity with transporting drugs in this manner.

22. You chose the driver of the vehicle, Mr Meeker. You gave him instructions about how he was to carry out his role including the route he was to take into Melbourne to the place where he was to meet those who were to collect the car. The car was to be taken away, the drugs were to be removed and the car was to be returned to Mr Meeker. He was then to drive the car back to Canberra. You gave him instructions about placing objects in the car to make it appear that his travel was for an innocent purpose. You also gave him instructions not to exceed the speed limit so as to avoid the attention of police. Those meeting Mr Meeker in Melbourne were to give him $5,000.00 for his role.

23. Not only did you choose the driver and give him instructions, there were other circumstances which convinced me beyond any doubt that you were intimately connected with those who owned the methylamphetamine, or those who were close to them. The methylamphetamine was to be delivered to a person, who I will refer to by the name of William, in Melbourne. That is not his real name, but the person who is alleged by the Crown to be this person is still the subject of charges before this Court. So I have used a pseudonym. I am satisfied that this was the person who is alleged to be your co-offender, who is still facing charges in this Court. That person is also named William. I will refer to him by the pseudonym William Peters.

24. That person was, at that time, a resident of Melbourne, but he was in Canberra and at your house on the morning of 23 October 2014. Also present was a person, who I will refer to as RH. William Peters left you first that day, and later you and RH went into RH’s house, where the drugs were packed into the car. William Peters had hired a rental car from Canberra Airport, a silver Commodore, which he left with you to use

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while Mr Meeker drove your car to Melbourne. The Agreed Statement of Facts includes the following paragraph, and I quote:

The offender said that [William] had been in Canberra all day the day before and he told him that Meeker would do the drug-run. The offender stated that he would use [William]’s hire car, the silver Commodore Storm sedan, while Meeker had his car. He told Meeker that when he came back from Melbourne he would return the rental car to the airport.

25. The Agreed Statement of Facts also states that at about 3.50 pm on 23 October 2014 William Peters telephoned you and asked if you would call the rental car company and extend the car rental for another day. At about 4.29 pm you telephoned Budget, Canberra Airport, on behalf of William Peters, and extended the hire of the rental hire for another day. These facts convince me that the William you spoke of to Mr Meeker was William Peters. You gave evidence at the trial of William Peters. As I understand it, he was charged with trafficking in the methylamphetamine found in your car.

26. Some of the evidence that you gave was subject to a certificate under s 128 of the Evidence Act 2011 (ACT) and, as such, cannot be used against you in these proceedings. A transcript of your evidence was tendered by the Crown in the course of your sentence hearing. Your counsel took objection to the tender of the transcript, but only on the basis of relevance. I was satisfied that the contents of the transcript were relevant, as being an account, given by you, of the events of 23 October 2015. A small part of your evidence was subject to the certificate to which I have referred, and I do not take that part of your evidence into account in any way.

27. The effect of the evidence you gave, and which was not subject to the certificate, was that the William you told Mr Meeker to meet in Melbourne was not William Peters, and that you were involved in this offence because bikies, to whom you owed money for the purchase of cocaine, had threatened you and your family. You refused to name the persons you had dealt with regarding the methylamphetamine. I make it clear that I reject the proposition that you were involved in this offence out of fear for your personal safety, or that of your family, if that submission is, in fact, made on your behalf based upon your evidence at the trial of William Peters.

28. There is nothing in the Agreed Statement of Facts to suggest that the arrangements for handing over the drugs in Melbourne were other than as you put them to Mr Meeker. Mr Meeker knew William Peters, and he understood that the William he was to meet in Melbourne was William Peters. That is a belief which you deliberately fostered. You testified at the trial of William Peters that you led Mr Meeker to believe that William Peters would meet him because he was the only person that Mr Meeker knew. You did not describe to Mr Meeker the person, named William, who he was to meet in Melbourne, suggesting that you understood Mr Meeker would recognise William when he met him.

29. It is inherently unlikely, bearing in mind the quantity and value of the methylamphetamine, that you would not have given more detailed instructions to Mr Meeker, about the delivery of the drugs, if you did not believe that the person collecting them was William Peters and known to Mr Meeker. It is also inherently unlikely, as you testified at the trial of William Peters, that you expected Mr Meeker simply to hand over the car, containing the drugs, to people he did not know and who he was not expecting to meet when he arrived at the arranged meeting place in Melbourne.

30. William Peters was a friend of yours, and a person you had known for a long time. The fact that the drugs concealed in your car were, on your understanding, to be delivered

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to him, strongly rebuts any suggestion that you were acting under duress in arranging the transportation of the methylamphetamine from Canberra to Melbourne. There are other circumstances that persuade me that you were not acting under some form of compulsion or duress at the time you committed this offence, and that you are intimately connected with others involved in the trafficking of these drugs.

31. The evidence establishes that the owners of the methylamphetamine trusted you a great deal. You were given possession of the methylamphetamine, which had a street value in excess of $15 million. The quantity of the drugs involved, and its value, strongly suggests that those who owned the drug were at a high level of the hierarchy of distribution. There is no suggestion that you were subject to any supervision or direction in your role. It is also clear that you had a significant degree of autonomy in carrying out your role.

32. In addition, after Mr Meeker became aware that you were selling illegal drugs in December 2013, you suggested to him that he could earn some cash by moving “stuff” for others, and you told him that it involved driving cocaine or pills (MDMA) to Brisbane or Melbourne. You described different ways to transport the drug, such as PVC pipe, painted black to make it look like an attachment to the car’s firewall, or in a container with a magnet to sit on top of the car’s tail shaft. You asked Mr Meeker if he would be interested in doing this, and he said that he would be.

33. The evidence does not permit me to be satisfied, to the requisite standard, that you contributed financially to the cost of setting up this operation, or that you stood to share in the profits of the methylamphetamine which was being transported to Melbourne. As such, you are not to be sentenced on the basis that you were a moving force behind this offence. You were, nevertheless, an important participant, who had a large degree of autonomy and who made decisions about how your role was to be carried out. You were also, I am satisfied, to be paid a significant sum for your involvement. You were much more than a drug mule. I am satisfied that your role in the trafficking of these drugs was a very significant and, indeed, a crucial one.

34. I will now move on to your motive. I do not accept the submission that your motive for your involvement in this offence was either the cancellation of a drug debt which you owed to others, or because you were coerced into participation. I have already given my reasons for rejecting the second proposition. With respect to the first proposition, I note that the methylamphetamine found in your car was contained in three separate locations in your car in 24 plastic bags. It is significant the police located an identical plastic bag in your freezer, also containing methylamphetamine, when they searched your house on 23 October 2014.

35. A scientific analysis was undertaken comparing the plastic bags containing methylamphetamine taken from your car, with the plastic bag containing methylamphetamine found in your freezer. All of the bags had the same rare properties. Infrared spectroscopy showed one side of each bag was polyethylene, and the other a mixed compound of polyethaline and polypropaline. Three different heat sealers were used on each individual bag, and the same three different heat sealers were used on each of the bags. I am satisfied that the methylamphetamine found in your freezer was provided to you at the same time as the methylamphetamine which was later found concealed in your car.

36. The street value of the methylamphetamine found in your freezer, at $50.00 for a 0.10 gram point, was $595,150.00. At that time, in addition to your business mortgage broker, you were carrying on the business of a drug dealer. I am satisfied

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that the methylamphetamine found in your freezer was payment, or part payment, for your role in transporting the methylamphetamine from Canberra to Melbourne. If, as you have suggested, you were participating in this offence because of the demands of other drug dealers, to whom you owed money for cocaine, the presence of this methylamphetamine in your freezer is simply unexplained.

37. In addition, if your assertion is correct it is difficult to understand why the proposed recipient of the methylamphetamine, in Melbourne, was going to pay Mr Meeker $5,000.00 for his role in driving the car, containing the methylamphetamine, to Melbourne. The decision to employ Mr Meeker to drive the car to Melbourne was your decision. There is no reason why the owners of the drug would pay your nominated driver $5,000.00 for the service you were supposedly providing in order to reduce or expunge your debt to them.

38. I am satisfied that you anticipated making a very large profit from your involvement in this offence and that profit was your motive for your involvement. It is clear from your bank statements, and particularly with regard to account 9721, that you had a capacity throughout 2014 to pay a significant sum towards any drug debt, and there is no evidence that any of the payments made from this account during that period were in reduction of any such debt. In your evidence at the trial of William Peters you said that the amount you owed for the cocaine was $30,000.00. The bank statements demonstrate a capacity to pay an amount of that magnitude in 2014.

39. I am satisfied that you played an important role in the trafficking of the methylamphetamine, although I am not satisfied that you were the owner of, or financially contributed to the sourcing of the drug. The quantity of methylamphetamine was very large, even by the standards of large commercial quantities as defined by Regulation. You participated of your own freewill and in the expectation of making a large profit. I would assess the objective seriousness of this offence as in the middle of the range of such offences.

Count 1

40. I will now turn to the charge of trafficking in cocaine. At the end of May 2014, you enlisted Mr Meeker to assist in your business as a drug dealer. You told him that you were selling 8-balls of cocaine to 4 nominated people. In July 2014, Mr Meeker started working for you, distributing cocaine. He attended your house, where you showed him how you wanted the cocaine mixed. He would mix up cocaine into 8-balls in preparation for sale. One of the 4 people to whom you were selling cocaine would then arrange to meet Mr Meeker at a café or at shops, and on most occasions they would give him $1,000.00 for each 8-ball of cocaine. Mr Meeker was paid $200.00 for every 8-ball that he sold on your behalf.

41. Mr Meeker’s role in selling cocaine on your behalf ceased by the end of July 2014, but in the intervening period he had sold about 50 8-balls of cocaine for you. After he finished selling cocaine on your behalf Mr Meeker continued to chase money owed to you by the purchasers of the cocaine.

42. Your business as a cocaine supplier was more sophisticated than that of a street dealer who deals in illicit drugs in order to feed their own habit. The value of the cocaine sold on your behalf by Mr Meeker was at least $50,000.00, in a period of about one month. There can be no doubt that you were already in business supplying cocaine prior to enlisting the services of Mr Meeker. Even allowing for the fact that you were using cocaine at this time, I am satisfied that you made a significant profit from

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the sale of cocaine. Profit was, clearly, a significant motive for your involvement in trafficking in that substance. I also assess this offence as in the mid-range of such offence.

Count 3

43. I will now turn to the final charge, that of trafficking in MDMA. When police searched your house on 23 October 2014 they found pills in a chest of drawers, with a total weight of 232.734 grams, containing a mixture of MDMA plus methylamphetamine plus methorphan, with a wholesale value of $28,080.00. I would assess this offence as being at the lower end of the middle range of such offences.

Consideration

44. In summary, I am satisfied that in 2014 you were conducting a business as a drug dealer. You were mainly involved in the supply of cocaine and MDMA. You could be described as a middle level dealer. I accept that you were using cocaine yourself at this time, but your involvement in trafficking cocaine and MDMA went well beyond trafficking in order to supply your own addiction. I am satisfied that you had a significant profit motive for your involvement in trafficking both cocaine and MDMA.

45. I am similarly satisfied that you were involved in arranging for the transportation of a large commercial quantity of methylamphetamine from Canberra to Melbourne because you anticipated making a large profit from your involvement. I reject the propositions that you were involved either because you were coerced or in order to expunge a drug debt. I am satisfied that the methylamphetamine the police located in your freezer on 23 October 2014 was payment for your involvement in the transportation of the methylamphetamine.

46. I will now consider some previous authorities in relation to sentencing for these offences. There are, as I understand it, no previous cases in the Australian Capital Territory (ACT) of drug offenders being sentenced for offences of trafficking in a large commercial quantity of a controlled drug. Your counsel drew my attention the decision of Whitford DCJ in R v Zolfonoon [2015] NSWDC 296; 21 DCLR (NSW) 336 (R v Zolfonoon), a decision of the District Court of New South Wales (NSW), given on 11 December 2015. The offender in that case pleaded guilty and was committed for sentence to the District Court with respect to two counts of supply drugs in a large commercial quantity.

47. The first count concerned the supply of slightly in excess of 3.5 kilograms of heroin, and the second count concerned the supply of just over 9 kilograms of methylamphetamine. The charge of supplying a large commercial quantity of methylamphetamine carried a maximum penalty of life imprisonment. The offending occurred over an extended period of time, commencing in January 2012 and ceasing upon the arrest of the offender on 29 August 2013.

48. With respect to the methylamphetamine charge, there were seven discrete transactions, five of which involved the provision of relatively small samples. The two principal occasions of supply of methylamphetamine involved supply of nearly one kilogram on 6 August 2013, and supply of slightly less than eight kilograms on 29 August 2013. The purity of the drug supplied in the two principal transactions was not, as the sentencing Judge saw it, remarkably high for a wholesale transaction. The supply of methylamphetamine was to undercover police officers, and the offender used

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his connections to identify sources of the drugs to be supplied to those officers. He was not part of an organised hierarchy.

49. With respect to the two principal methylamphetamine supplies, the sentencing judge considered that the evidence pointed strongly to the primary motive of the offender, being personal financial gain. The evidence established that the financial reward anticipated by the offender, with respect to the final transaction of supply of methylamphetamine, was $240,000.

50. The sentencing judge expressed the opinion that it was, to some extent, a mitigating circumstance that the offending proceeded wholly in the course of operations initiated and directed by the authorities. I must express doubt that this was correct in principle, in particular in a case where the offender was a willing participant and the authorities had not provided him with a capacity to commit the offence. This appears, from his Honour’s sentencing remarks, to have been a case where the authorities simply gave the offender an opportunity to commit the offences. Secondly, his Honour also considered it to be a mitigating factor that none of the products supplied made their way into the community, and accordingly he said at [83]:

...the sort of danger and harm to which the offending might otherwise have given rise was necessarily excluded...

This also does not appear, to me, to be a significant mitigating circumstance.

51. In R v Peng Gao; R v Benjamin Lim; Benjamin Lim v The Queen [2007] NSWCCA 343 the Court of Criminal Appeal emphasised that it is not a matter of principle that supplying drugs to undercover operatives will always involve a diminishing of culpability. The Court expressed the view that there may be cases assessed within the mid-range of objective seriousness despite a guilty plea and supply to undercover operatives.

52. In addition, his Honour also considered it mitigatory, that the offending was promoted and encouraged by the authorities well beyond the point when police could have intervened and arrested the offender. I also express considerable doubt about the correctness of this statement as a matter of principle. The police were not required to arrest the offender as soon as an offence had been committed. Police may legitimately continue to provide opportunities for offenders, such as Mr Zolfonoon, to traffic in drugs in the hope that they will enable police to detect and arrest others in the supply chain. Such opportunities also enable police to determine what stocks of a particular illicit drug may be held by an offender or the principal, which assists in keeping those drugs off the street.

53. The offender in R v Zolfonoon was 47 years old and had come to Australia in 1983 from Iran. He was married with a young child. He was employed at the time of sentencing. There were strong subjective features, identified by the sentencing judge, in the offender’s behaviour. The sentencing judge allowed a discount of 25 per cent for the offender’s pleas of guilty. The sentencing judge expressed idiosyncratic views about the importance of deterrence in sentencing for such offences, which do not appear, to me, to coincide with accepted authority from superior courts.

54. His Honour, apparently doubted the effectiveness of general deterrence, and at [116] considered that to accord general deterrence any particular significance without any evidence to support the proposition that there was any relevant deterrent effect achieved by sentences “heavier than they might otherwise be” seemed to his Honour to run the significant risk of creating a positive injustice. He also appeared to minimise the

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importance of the need for protection of the community and the role of denunciation and punishment in sentencing for serious drug supply offences.

55. A sentence of nine years and nine months imprisonment, with a non-parole period of three years and six months, was imposed for the offence of supplying a large commercial quantity of methylamphetamine, with a 25 per cent discount for a plea of guilty. This equates to a starting point of 13 years imprisonment. With respect, I do not find the statements of principle, in the case of R v Zolfonoon, to be particularly helpful. There is ample authority from superior courts in this country, including NSW, that a very important sentencing consideration for offences of this nature is deterrence.

56. In addition, the sentencing judge’s approach to consideration of protection of the community, and the role of denunciation and punishment in sentencing, was also erroneous. Having said that, the ultimate sentence imposed appears to have been within the range of sentences imposed in NSW for these offences. I have considered a number of NSW authorities concerning sentencing for offences of supplying not less than a large commercial quantity of prohibited drugs, which is an offence under s 25 of the Drug Misuse and Trafficking Act 1985 (NSW) which carries a maximum penalty of life imprisonment.

57. Recently, in Jones v The Queen [2016] NSWCCA 230, a decision of the NSW Court of Criminal Appeal, delivered on 21 October this year, the offender sought leave to appeal against an aggregate sentence of 11 years imprisonment, with a non-parole period of 7 years. This was made up of a sentence of 9 years imprisonment for offence of supplying a large commercial quantity of pseudoephedrine; 4 years imprisonment for knowingly dealing with the proceeds of crime; and 12 months imprisonment for an offence of possessing a prohibited weapon.

58. While the focus of the appeal was whether the aggregate sentence was manifestly excessive, by reason of the sentence imposed for the offence of possession of a prohibited weapon, the Court, in dismissing the appeal, did not suggest that the sentence imposed for the offence of supplying a large commercial quantity of pseudoephedrine was inappropriate.

59. The offender in that case was involved in transporting a little over 27 kilograms of pseudoephedrine, with a value in excess of $3,200,000.00. The offender was 44 years old at the time of the offence and had a minor criminal history. He had a difficult upbringing, marred by sexual abuse and drug abuse from an early age. His plea of guilty received a 25 per cent reduction of sentence in recognition of an early plea.

60. In Dong Pei Wang v The Queen [2016] NSWCCA 161 the offender sought leave to appeal from a sentence of 10 years imprisonment imposed for an offence of supplying not less than the commercial quantity of methylamphetamine and one count of supplying not less than the large commercial quantity of methylamphetamine. The quantity of methylamphetamine involved was approximately 11 kilograms. The aggregate sentence imposed by the sentencing judge was one of 12 years imprisonment with a non-parole period of 8 years and 6 months. The sentencing judge accepted that the offender’s role was one of a facilitator. The offender did not have a significant criminal history. He assisted police by participating in a recorded interview, in which he made admissions.

61. He entered an early plea of guilty and received a 25 per cent reduction of sentence on that basis. The offender was a drug user, but admitted that financial gain was a

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significant motive for his offending. The appeal was allowed on the basis that the offender had a justifiable sense of grievance in relation to the disparity between his and his co-offender’s sentence. The Court also found special circumstances and reduced the aggregate sentence to 11 years and 6 months with a non-parole period of 7 years and 9 months.

62. In R v Hatzisavvas; R v Lopez-Rios [2016] NSWCCA 147 the Crown appealed against the inadequacy of sentences imposed on the two offenders for two offences, by each offender, of supplying a large commercial quantity of methylamphetamine. At first instance, the offender Mr Hatzisavvas was sentenced to terms of imprisonment of six years and seven years and three months respectively, with an aggregate sentence of eight years and three months. He received a discount of 25 per cent for early pleas of guilty, and a further discount of 8 per cent for assistance to authorities. He did not have a significant criminal history and was involved in the offence for financial gain.

63. The offender Lopez-Rios was sentenced to terms of imprisonment of six years and nine months and eight years and three months respectively, with an aggregate sentence of nine years. He received a discount of 25 per cent for his pleas of guilty. He also had a limited criminal history and his culpability was considered to be comparable with that of his co-offender. The combined quantity of methylamphetamine, with respect to both offences, was just over 13 kilograms. On appeal, the offender Hatzisavvas was re-sentenced to an aggregate sentence of imprisonment of 11 years, with a non-parole period of 7 years, and the offender Lopez-Rios was sentenced to an aggregate term of imprisonment of 11 years and 9 months, with a non-parole period of 7 years and 6 months.

64. In Plaisted v The Queen [2015] NSWCCA 287 the offender appealed against a sentence of 14 years imprisonment for an offence of knowingly taking part in the supply of not less than a large commercial quantity of methylamphetamine. The quantity of methylamphetamine that was involved was 21.807 kilograms. The offender’s role was to facilitate the transportation of the drugs from Sydney to Perth. The Court of Appeal determined that the primary Judge had erred in his assessment of the objective seriousness of the offender’s role in the offending and re-sentenced him to an effective term of imprisonment of 11 years, with 7 years non-parole. He received a 25 per cent discount for his plea of guilty.

65. Similarly, in the R v Man Kit Li [2014] NSWCCA 327 the offender pleaded guilty to one offence of knowingly taking part in the supply of not less than a large commercial quantity of methylamphetamine and was sentenced, at first instance, to a term of nine years imprisonment. He received a discount of 15 per cent for his plea of guilty. On appeal by the Crown he was re-sentenced to 10 years imprisonment, with a non-parole period of 7 years and 6 months. The amount of methylamphetamine involved was just less than 25 kilograms, with an estimated street value of $5 million. The role of the offender was confined to delivering the methylamphetamine in accordance with instructions, given by mobile phone, from his controller in Hong Kong.

66. Sentencing statistics from the Judicial Commission of NSW, concerning sentences imposed for offences of supplying large commercial quantities of prohibited drugs, and based upon 103 cases, show that the majority of sentences imposed fall within the range of 6 years to 14 years imprisonment. This provides some guidance with regard to sentencing for the present offence, but I am cognisant of the fact that these statistics do not reveal the circumstances of the individual cases.

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67. With regard to counts 1 and 3, the Crown provided me with a table of sentences which have been imposed in this Territory for offences of drug trafficking. As may be expected, a wide variety of sentences were revealed, depending upon factors such as the amount of drug trafficked, the extent of the involvement of the offender in trafficking and the subjective features of the offender. There have, as I have said, been no previous sentences involved in this Territory for an offence of trafficking in a large commercial quantity of methylamphetamine, and to that extent the authorities to which I was directed are not as helpful as they could have been. Perhaps the most helpful decisions found in the Crown’s table are the decisions of the Court of Appeal in O’Brien v The Queen [2015] ACTCA 47 (O’Brien v The Queen), Bui v The Queen [2015] ACTCA 5 (Bui v The Queen), Andros Steve Klobucar v The Queen [2014] ACTCA 6 (Klobucar v The Queen) and Jeremy Nguyen v The Queen [2013] ACTCA 11 (Nguyen v The Queen).

68. In O’Brien v The Queen a sentence of six years imprisonment, for an offence of trafficking in cocaine, was upheld on appeal. The maximum penalty for that offence was 10 years imprisonment. A 10 per cent discount had been provided to mark the offender’s plea of guilty. The offending in that case continued for a period of approximately two and a half years, and the offender had a lengthy criminal history.

69. In Bui v The Queen the offender was charged with trafficking methylamphetamine, which carried a maximum 10 year sentence of imprisonment. His offending extended over a period of approximately 3 months and consisted of the supply of approximately 15 ounces of methylamphetamine, with a total value of $150,000.00. He was given a 15 per cent discount for a plea of guilty, and a sentence of 4 years and 10 months imprisonment was upheld on appeal.

70. Some relevant principles concerning the sentencing of drug traffickers were identified by the Court of Appeal. In particular, the role of the accused is an important consideration, with those whose level in the operation is at a higher level of the hierarchy being more culpable. Whilst, as decided in Wong v The Queen [2001] HCA 64; 207 CLR 584, the weight of the amount of drug is not of chief importance in determining the appropriate sentence it remains a relevant factor, particularly in the context of the harm from its distribution effects. The motivation for the offence is also highly relevant, with the purpose of profit being a more serious matter.

71. In Nguyen v The Queen a sentence of four and a half years imprisonment for two counts of trafficking in a controlled drug other than cannabis (being methylamphetamine and MDMA), was upheld on appeal. In Klobucar v The Queen a sentence of three years imprisonment was upheld, for an offence of trafficking in methylamphetamine, involving trafficking 144 grams of powder, containing 85.5 grams of methylamphetamine.

72. None of these prior sentences establishes a distinct sentencing pattern with respect to offences of trafficking in controlled drugs, including methylamphetamine. These decisions, and the others to which I have referred, are, nevertheless, useful as establishing a range of sentences that have, in fact, been imposed in the past for this type of offending.

73. As the High Court acknowledge in Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at 537, while reference to past sentences for similar offences is useful, the range of sentences previously imposed does not fix the boundaries within which future judges must sentence. They provide guidance to sentencing judges and stand as a yardstick against which to examine a proposed sentence.

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74. Your counsel, quite properly, accepted that a custodial sentence is inevitable, with respect to these offences. While you were, undoubtedly, a user of cocaine in 2014 you were also the operator of a successful business. This business provided you, on the basis of the bank records, with significant financial returns. You were, however, also operating a business as a drug dealer, primarily supplying cocaine and MDMA through intermediaries. You were a willing participant in all of these offences, and I am satisfied that your primary motive was financial gain. You have good community support and you are clearly capable of earning a substantial living honestly, such that you have reasonable prospects for rehabilitation.

75. You have expressed remorse about your participation in these offences to your family and others, but I note that your remorse does not extend so far as to be entirely honest about your degree of participation. Your pleas of guilty were not early pleas, but I am satisfied that they demonstrate a degree of remorse and that they also have significant utilitarian value. I will reduce, by approximately 15 per cent, the sentences which I would otherwise have imposed in order to acknowledge your pleas of guilty.

76. It was conceded by your counsel, and again properly, that a reasonable amount of cumulation is appropriate with respect to sentences imposed for these offences. I am cognisant of the need to guard against double sentencing with respect to offences with common features and then to ensure that the final aggregate sentence is commensurate with the overall criminality revealed by your offending.

Sentence

77. For the offence of trafficking in a large commercial quantity of methylamphetamine I record a conviction and you are sentenced to 11 years imprisonment, commencing on 23 October 2014 and expiring on 22 October 2025.

78. For the offence of trafficking in a controlled drug other than cannabis, namely cocaine, I record a conviction and you are sentenced to three years and five months imprisonment, commencing on 23 May 2024 and expiring on 22 October 2027.

79. For the offence of trafficking in a controlled drug other than cannabis, namely MDMA, I record a conviction and you are sentenced to two years and six months imprisonment, commencing on 23 October 2025 and expiring on 22 April 2028.

80. The aggregate sentence which I have imposed is, therefore, one of 13 years and six months imprisonment, commencing on 23 October 2014 and expiring on 22 April 2028. I set a non-parole period of eight years, commencing on 23 October 2014 and expiring on 22 October 2022.

I certify that the preceding eighty [80] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.

Associate:

Date: 30 November 2016

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