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R v Poulakis [2020] ACTSC 247 (18 September 2020)

Last Updated: 25 September 2020

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

LOUKAS-KARLSSON J:

Introduction

1. On 16 March 2020, Peter Edward Poulakis (the offender) pleaded guilty to the following offences:

(a) One count of jointly importing a commercial quantity of a border-controlled drug, namely 3,4-methylenedioxymethamphetamine (MDMA), contrary to s 307.7(1) of the Criminal Code 1995 (Cth) (Criminal Code), and by virtual of s 11.2A of the Criminal Code, between about 28 August 2017 and 6 December 2017. The maximum penalty for this offence is life imprisonment, 7,500 penalty units, or both.

(b) One count of trafficking in a controlled drug other than cannabis, namely dibutylone, contrary to s 603(7) of the Criminal Code 2002 (ACT), on 5 December 2017. The maximum penalty for this offence is 10 years’ imprisonment, 1,000 penalty units, or both.

2. The offender requested that the following additional offences be taken into account on sentence pursuant to Part 4.4 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) and s 16BA of the Crimes Act 1914 (Cth) (Crimes Act):

(a) One offence of unauthorised possession of a firearm, namely an airgun, contrary to s 43(1) of the Firearms Act 1996 (ACT), on 5 December 2017. The maximum penalty for this offence is 5 years’ imprisonment.

(b) One offence of structuring transactions contrary to s 142 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), between 19 September 2017 and 15 November 2017. The maximum penalty for this offence is 5 years’ imprisonment, 300 penalty units, or both.

Amended Case Statement

3. The facts are set out in the amended prosecution case statement. The offending involved the importation of two consignments:

(a) Consignment 1 relates to a consignment that arrived in Sydney from Germany on 3 November 2017 via air cargo. The consignment was located by police on 6 December 2017 and found to contain 452.8 grams, and therefore a marketable quantity, of pure MDMA.

(b) Consignment 2 relates to a consignment that arrived in Sydney from the United Kingdom on 30 November 2017 via air cargo. The consignment was intercepted by the Australian Border Force (ABF) on that day and was found to contain 1,771 grams of pure MDMA. This is a commercial quantity of MDMA.

4. Both consignments were jointly imported by the offender, Mr Emin Yavuz, and Mr Bilal Omari. The prosecution classified the roles of each offender as follows:

(a) Mr Yavuz directed the activities of the syndicate while in custody at the Alexander Maconochie Centre (AMC);

(b) The offender converted money provided by Mr Youssef Jabal into Bitcoin and ordered the consignments from an unknown person, known as ‘Sock’, via the internet; and

(c) Mr Omari assisted the offender, monitored the consignments, and attempted to arrange their collection.

5. During the relevant period of time, Mr Omari was employed at the Australian National University (ANU). Between 28 August 2017 and 19 September 2019, Mr Yavuz, Mr Omari and the offender arranged for the offender to receive a sum of money from Mr Jabal for the purpose of the importation of Consignment 1.

6. Between 19 and 20 September 2017, the offender purchased Bitcoin worth $18,000 via multiple cash deposits with money provided by Mr Jabal. These transactions form the basis of the s 16BA scheduled offence.

7. On 24 September 2017, the offender’s vehicle was damaged by a vehicle belonging to Ms H, which caused the offender and Ms H to exchange personal details.

8. Between 29 September 2017 and 18 October 2017, the offender and Mr Omari, directed by Mr Yavuz, arranged to purchase Consignment 1 from ‘Sock’ via the internet. As part of this course of conduct, a Telstra telecommunications service 0484 517 320 (service 320) was subscribed in the name of Ms H. Ms H did not register this service and had no knowledge of the service being registered.

9. On 19 October 2017, Consignment 1 was posted via air cargo from Germany and addressed to ‘Daniel Tompkins’ at the ANU College of Business and Economics. Its contents were described as paint. Daniel Tompkins was not a staff member or student at the ANU at this time. The telephone number listed on the consignment is identical to service 320.

10. A further telephone service, 0432 392 437 (service 437), was connected and subscribed in the name of Ms H on 24 October 2017. Ms H did not register this service and had no knowledge of it.

11. On 3 November 2017, Consignment 1 arrived in Sydney. On 6 November 2017, delivery of Consignment 1 was attempted at the ANU and the consignment was recorded as “delivered”. The consignment was subsequently collected from the ANU by DHL in mid-November and thereafter remained with DHL.

12. Between 13 and 14 November 2017, Mr Yavuz and the offender arranged for the offender to receive a further sum of money from Mr Jabal for the purpose of the importation of Consignment 2. On 13 November 2017, the offender exchanged text messages with an unknown person arranging to purchase Bitcoin the following day.

13. Also on 13 November 2017, the offender and Mr Omari agreed to meet via text messages. That afternoon, numerous phone calls were made to the ANU College of Business and Economics, Australia Post, and DHL. In the following two weeks, multiple attempts were made by Mr Omari and the offender to locate and receive the consignment, but they were unsuccessful. Mr Yavuz was regularly contacted to provide updates on the situation.

14. Mr Jabal provided money to the offender on 14 November 2017, which the offender then used to purchase Bitcoin for the purpose of the importation of Consignment 2. Between 14 and 15 November 2017, the offender purchased $33,500 worth of Bitcoin via multiple cash deposits. These transactions also form the basis of the s 16BA scheduled offence.

15. Between 16 and 23 November 2017, the offender used the Bitcoin he purchased to arrange the importation of Consignment 2 from Sock via the internet. On 24 November 2017, Consignment 2 was posted via air cargo from the United Kingdom to Australia, addressed to Michael Foster at the ANU. Its contents were described as camping pan sets. Michael Foster was not a student or staff member at the ANU at the time. The telephone number listed on the consignment was identical to service 437.

16. On 30 November 2017, Consignment 2 arrived in Australia and was intercepted at Sydney customs by the ABF.

17. On 5 December 2017, police executed a search warrant at the Hancock Building at the ANU, Mr Omari’s place of work. Police located items including three mobile phones, including an Apple iPhone. The telecommunications service associated with the Apple iPhone was service 320. On 5 December 2017, the Apple iPhone received a text message from Australia Post referring to an enquiry relating to Consignment 1. This was discovered by police on 6 December 2017, and it was subsequently determined that Consignment 1 was located at the DHL facility in Fyshwick. The consignment was subsequently seized by police from the DHL facility in Fyshwick.

Structuring Transactions Offence

18. The structuring transaction offence relates to cash deposits made by the offender for the purpose of purchasing Bitcoin. The offender made cash deposits totalling $18,000 between 19 and 20 September 2017, and further cash deposits totalling $33,500 between 14 and 15 November 2017.

19. Text messages exchanged between the offender and a Bitcoin dealer indicate that the offender was aware his transactions would need to be less than $10,000 to avoid being “flagged”. In an intercepted phone call with another person on 15 November 2017, the offender stated: “You should see the people’s faces when I walk into the same bank day after day giving them the same amount of money”. The offender then explained that, by giving the bank under $9,900, he was not required to show identification.

20. Each of the cash deposits were non-reportable transactions, being transactions involving the transfer of physical currency, where the total amount of physical currency transferred is less than $10,000.

Trafficking in Dibutylone & Possession of Firearm Offences

21. The trafficking and firearms offences relate to items located during the execution of a search warrant at the offender and his partner’s residence in Wright on 5 December 2017. The offender was not present at the time; his partner at the time, Ms Jacinta Greenwood, was present.

22. In a number of intercepted communications between 3 October 2017 and 20 November 2017, the offender referred to a substance stored in his garage that he was attempting to sell to associates. During the execution of the search warrant, police located three clip seal bags containing a rocky substance in a cupboard in the garage of the residence. Ms Greenwood stated during the search that all items in the garage were owned by the offender. Police later identified the offender’s fingerprints and DNA on the clip seal bags.

23. The substance contained in the clip seal bags weighed 1.19 kilograms and was later identified as Beta-keto-dimethylbenzodioxolylbutanamine, commonly known as dibutylone. Dibutylone is a controlled drug. A trafficable quantity of dibutylone is 10 grams: Criminal Code 2002 (ACT) s 601(1), (2)(b) and Criminal Code Regulation 2005 (ACT) s 9(2)(a), sch 1 pt. 1.2 item 124.

24. A number of intercepted communications between 31 October 2017 and 5 December 2017 reveal that the offender intended to purchase a “slug gun” to shoot birds, and subsequently arranged to acquire a firearm via his father, who was a licensed firearms holder in New South Wales.

25. During the execution of the search warrant on 5 December 2017, police located a black Crosman-brand CO2-powered airgun on the bench in the garage. The airgun was in two pieces, with a telescopic sight attached. Police also located an owner’s manual for the firearm and a receipt for the firearm in the name “Con Poulakis”. The contact number was listed as the offender’s number.

26. Forensic analysis later identified the offender’s DNA on the firearm. The firearm was determined to be a .177 calibre self-loading air rifle, being a firearm as defined by s 6(1) of the Firearms Act 1996 (ACT).

27. The offender was not authorised by licence, permit or otherwise under the Firearms Act 1996 (ACT) to possess a firearm.

28. The offender was arrested in relation to these offences on 14 December 2017.

Commonwealth Sentencing Principles

29. The principles of sentencing for Commonwealth offences are contained in Part 1B of the Crimes Act. Section 16A(1) states that a sentence must be of a “severity appropriate in all the circumstances of the offence”. A non-exhaustive list of factors to be taken into account are contained in s 16A(2).

Objective Seriousness

30. The sentence imposed must “reflect the degree to which the offender’s conduct transgresses the legislative intent to suppress the illicit traffic in prohibited drugs: R v To  [2007] NSWCCA; 172  A Crim R 121 at [12], Parry v The Queen [2003] WASCA 222 at [39], R v Peel (1971) 1 NSWLR 247 at 262 and Tu v The Queen [2011] NSWCCA 31; 205 A Crim R 566 at [52].

31. In Bui v The Queen [2015] ACTCA 5 at [41], the ACT Court of Appeal noted the following principles relevant to the sentencing of drug traffickers:

(a) The role of the accused is an important consideration, those whose level in the operation is at a higher level of the hierarchy being more culpable: MacDonnell [2002] NSWCCA 34; (2002) 128 A Crim R 44 at 50; [33].

(b) While, as decided in Wong v The Queen at 609; [67]-[70], 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: R v Bezan [2004] NSWCCA 342; (2004) 147 A Crim R 430 at 438; [34].

(c) The motivation for the offence is highly relevant, the purpose of profit being a more serious matter: R v Speechly [2002] NSWCCA 300; (2002) 133 A Crim R 26 at 30; [20]: R v Day (1998) 100 A Crim R 275 at 277.

32. Similar sentencing considerations apply in relation to the Commonwealth offence of attempting to import a commercial quantity of a border-controlled drug: R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106 at [72] (Nguyen & Pham) and Wong v The Queen [2001] HCA 64; 207 CLR 584 (Wong).

33. The prosecution submitted that the objective seriousness of drug importation offences will be “heavily” informed by the quantity of drugs involved. In relation to each offence, the following quantities can be established:

(a) Importation offence – two consignments totalling 2.2238 kilograms of pure MDMA.

(b) Trafficking offence – 1.19 kilograms of dibutylone.

34. The Criminal Code adopts a quantity-based penalty regime and makes no relevant distinction between border-controlled drug types. There is no longer any judicially constructed gradation of penalties based on the perceived harm caused by different types of drugs: Adams v The Queen [2008] HCA 15; 234 CLR 143 at [10].

35. The prosecution submitted that the quantities involved in the offending, “while not particularly large, suggest that the offender intended to bring further, larger consignments into Australia”. In that regard, the prosecution relied on a conversation between the offender and Mr Yavuz on 13 November 2017 in which the offender told Mr Yavuz about a conversation between the offender and Sock. The offender stated that he had “buttered him [Sock] up” and that there were “some positives there for the future”, regardless of “that dilemma”.

36. Counsel for the offender submitted that the claims that the offender intended to import “further, larger consignments” lacked the necessary level of evidence to be sustainable as a submission to impact on sentencing, citing R v Olbrich [1999] HCA 54; 199 CLR 270. I accept this submission.

37. Counsel for the offender submitted the following in relation to the objective seriousness of the offending:

The offending conduct extended ... from 28 August 2017 until 6 December 2017. There was a degree of planning, obviously, however the offending was not particularly sophisticated, given it was readily identified by recorded telephone calls to and from the principal in prison; together with computer records capturing the offender’s Bitcoin purchases. These “consignments” were always destined to be revealed to the authorities due to their amateurish running by the offender and the co-offender. These were criminal intentions and actions that were always going to fail.

38. An assessment of the objective gravity of an offence has always been an essential part of the sentencing process. However, it is not necessary for a judge to indicate where the offence falls in a scale of low, midrange, or high criminality; what is required is for a court to “fully identify the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed”: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [29]; see also R v Kilic [2016] HCA 48; 259 CLR 256 at [19]. I deal with the offender’s role and objective seriousness later in the judgment at [43] and at [85]-[95].

Objective Seriousness: Scheduled Offences

39. The prosecution submitted that the scheduled offences are objectively serious in their own right. It was submitted that structuring offences are, by their nature, difficult to detect and call for a significant degree of general deterrence: R v Au [2001] NSWCCA 468 at [17], R v Narayanan [2002] NSWCCA 200 at [89], R v Rule [2003] NSWCCA 97 at [9]- [10], and R v Edwards; Ex parte Commonwealth DPP [2008] QCA 85; 183 A Crim R 83 at [2]. In relation to objective seriousness, the prosecution identified the following relevant features of the offence:

(a) the structuring offence relates to 10 transfers of cash in amounts less than $10,000 each to Bitcoin dealers;

(b) the total value of the transactions was $51,500; and

(c) the transactions were performed as a means of avoiding detection whilst facilitating the offender’s other criminal activities.

40. In relation to the offender’s structured transactions and use of Bitcoin, counsel for the offender submitted that, contrary to the prosecution’s submission, these two aspects “increased the syndicate’s ability to be detected by authorities” as the transactions were “recorded in detail both by transaction records and telephone intercept”.

41. In relation to the firearm offence, the prosecution submitted that offences of this kind pose a significant threat to the community and call for general deterrence, citing R v Peter [2019] ACTSC 22. The prosecution noted that the offence involved a single firearm, namely a .177 calibre self-loading air rifle. The firearm was stored in two pieces, with a telescopic sight attached.

42. Counsel for the offender submitted that, in relation to the firearm offence, the “slug gun” was inoperable and in two parts; there was no ammunition; the documentation concerning the gun was located at the offender’s house; and the gun was owned and licenced to the offender’s father. The offender’s father was interviewed by police and he indicated that he had full knowledge of the offender having the slug gun at the offender’s home to shoot birds that were invading his garden. Counsel for the offender submitted that these factors, in addition to the fact that ownership of the gun had “nothing to do” with the offender’s drug offences, meant that the objective seriousness of this offence “must be at the very bottom of the scale”. I accept this submission on the relevant evidence.

Objective Seriousness: The Offender’s Role

43. An offender’s role and level of criminality are important components in determining the sentence to be imposed. An offender’s role is not to be determined by short-hand labels but rather by assessing, to the extent the evidence allows, what his or her actual involvement was: Paxton v The Queen [2011] NSWCCA 242; 219 A Crim R 104 at [135] applying The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at [14].

44. The following findings of fact are open to be made in relation to the offender’s role in the joint commission:

(a) The offender was involved, with Mr Yavuz and Mr Omari, in the joint commission to import at least a commercial quantity of a prohibited drug into Australia, from about July 2017.

(b) The offender was, at all relevant times, aware of the identity and location of Sock and was responsible for communicating with him.

(c) The offender was responsible for the purchase and ordering of both consignments.

(d) The offender provided regular updates about Sock’s activities and whether he had dispatched various consignments.

(e) The offender was tasked with liaising with Mr Jabal and collected the money from him in cash.

(f) The offender provided regular progress reports to Mr Yavuz about the money and whether it had been collected from Mr Jabal.

(g) The offender purchased Bitcoin using the money provided by Mr Jabal and used the Bitcoin to purchase the two consignments. These purchases were done in a manner that reflected additional criminality and further demonstrated the offender’s awareness of the criminal enterprise he was involved in.

(h) The offender, along with Mr Omari, was tasked with collecting the first consignment from the ANU.

(i) The offender registered two telecommunications services in the name of Ms H. These were used as contact numbers for the consignments.

(j) The offender provided the phone with service 320 to Mr Omari so that he could call Australia Post and attempt to locate the first consignment.

(k) The offender provided Mr Yavuz with regular updates about the collection of Consignment 1.

(l) The offender had sufficient influence and authority to remonstrate with Mr Omari regarding the failure to collect the first consignment from the ANU.

(m) The offender provided Mr Yavuz with regular updates about the status of Consignment 2.

45. Counsel for the offender submitted the following in relation to the offender’s role, at [7]:

An analysis of the offender’s role in the illegal enterprise establishes that he was a conduit between the principal in the matter who was at the time in custody, and other offenders. The offender’s role was to arrange “Bitcoin” funds through various uninvolved third parties so as to facilitate drug purchases. This process was all carried out under the direction of the principal, Mr Yavuz, and with funds that the offender did not have but was provided by other members of the syndicate. It is well established that an offender who participates actively in the purchase of drugs, even on the direction of a principal, plays a significant role in that illegal drug enterprise.

46. This matter will be further dealt with under parity.

Objective Seriousness: Other Features of the Offending

47. The offences were motivated by financial greed. The prosecution submitted that the “common sense” inference, that the offending was motivated by financial gain, should be drawn unless there is specific evidence to the contrary, citing Nguyen & Pham. In this regard, I note the following in Nguyen & Pham at [72](f):

... as a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit: R v Kaldor [2004] NSWCCA 425; 150 A Crim R 271 at 297 [104]; R v Lee at [32]

48. The prosecution submitted that, in this case, the offending was motivated solely by financial gain having regard to the active and primary role of the offender. Counsel for the offender accepted that the acts pertaining to the importation charge were motivated by financial gain. I accept the submissions of the prosecution and defence as the submissions are broadly similar and accord with my view of the evidence.

49. The prosecution submitted that the offender went to great lengths to conceal the nature of his criminal activity, including through acquisition of mobile phones in the name of Ms H; the purchase of the drugs using Bitcoin; and the acquisition of that Bitcoin using structured deposits. In the prosecution’s submission, “these are significant matters”. I note that the structured transactions are subject of an additional offence, see [2], and double counting must be avoided.

Assessment of Objective Seriousness

50. It is necessary to assess the objective criminality of the offending: DPP (Cth) v Northcote [2014] NSWCCA 26 at [83] and Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at [7]. Having considered the objective features of the offending and the scope of the offender’s role in the enterprise, I deal with the question of role and objective seriousness in greater detail under the heading of parity below.

Subjective Circumstances & Psychological Reports

51. In relation to the Commonwealth offences, the character, antecedents, age, means, and physical or mental condition of an offender are relevant sentencing considerations under s 16A(2)(m) of the Crimes Act. In relation to the Territory offences, the cultural background, character, antecedents, age, and physical or mental condition of the offender are relevant sentencing considerations under s 33(1)(m) of the Sentencing Act.

52. In evidence before me are three psychiatric reports prepared in relation to the offending. These reports set out the subjective circumstances of the offender.

53. The offender was born in Bega and was brought up in a loving family environment. His parents separated when he was a child; following this, he lived with his mother and saw his father every second weekend. When he was in high school, his mother moved to the UK, and the offender remained in Australia and lived with his father. He had an unsettled few years following his mother’s departure, living with his father, grandmother and aunt at various times, and attending three different high schools. The offender left school after completing Year 10 and enrolled in a Certificate IV in Business Development.

54. After leaving school, the offender worked in his father’s restaurant for four years and then had other café and labour jobs. When he was 24, he bought his first business and since then has run his own café businesses. The offender has been in one serious relationship, but this ended due to the current charges.

55. Dr Allnutt, forensic psychiatrist, prepared a report dated 19 June 2020 which included the following opinion:

There is no evidence your client has suffered a psychotic, anxiety or mood disorder now or in the past.

He does provide a history of learning problems, including not achieving year 12, contact with multiple mental health professionals during his childhood, including a neurodevelopmental consultation at about eight, which diagnosed learning difficulties. He described difficulties with attention, forgetfulness, problems with attending to detail and disorganisation since childhood. All these factors raise a diagnosis of attention deficit hyperactivity disorder (ADHD) but it appears that neurodevelopmental testing at that stage ruled out such a diagnosis. To date he continues to describe similar difficulties, and notably, his memory and concentration difficulties were a bone of contention with his former partner. He has people doing administrative tasks for him because he has difficulty with that and continues to complain of concentration difficulties.

This needs to be further investigated by neuropsychological testing and I would recommend you seek to obtain any documentation from his early neurodevelopmental assessments. ...

He presented as an individual who now understands the results of his offending, was contrite and remorseful for his offending, took responsibility for his offending and was accepting of any punishment the court deemed appropriate.

56. Dr Allnut provided a further report dated 19 August 2020 following a neuropsychological assessment of the offender. The report contained the following opinion:

... Your client was never formally diagnosed with ADHD in childhood, but I believe it is significant that he saw a neuropsychologist when he was 8 and had behavioural problems with concentration problems at that time. The kinds of symptoms he described in childhood to me were consistent with ADHD and Dr Susan Pulman concluded that he had ADHD with some depressive symptoms.

By the time of offending your client’s ADHD would have persisted during the offending period. He also would have had a substance use disorder at that time, that is now in remission.

Attention Deficit Hyperactivity Disorder is associated with a tendency to act relatively impulsively and to make decisions without due consideration of the long-term consequences and can also be associated with increased propensity to risk taking behaviour. In your client’s case it appears he never considered his offending to be as serious as it was.

... he accepted the diagnosis of ADHD when I provided to him and was prepared to try medication although he was concerned about starting medication in prison.

57. Following a referral for neuropsychological assessment, the offender was seen by Dr Pulman, forensic psychologist. Dr Pulman’s report, dated 16 August 2020, provides the following opinion:

He described a difference in his mother’s and father’s parenting style with his mother wishing to have Mr Poulakis treated for his behavioural and learning difficulties and his father deeming it inappropriate [and] denying the existence of any problems. He reported difficulties with his temper and having a tendency to play up at school, distracting students most likely due to his own inability to remain focused in the classroom.

Mr Poulakis presented with marked difficulties in maintaining his attention for any brief periods of time and became easily distracted and fidgety during interview and assessment ... Given his reduced attention skills, this cognitive abnormality [significant difference between verbal and nonverbal reasoning abilities] is likely to create some difficulties for Mr Poulakis in his decision making and in exercising sound judgment.

...

Mr Poulakis presents with symptoms of Attention Deficit Hyperactivity Disorder ... It is a neurocognitive disorder which causes difficulties with attention and concentration, impulse control, organisation and planning. ... There is no indication of any current emotional or psychological dysfunction although he is currently experiencing a high level of stress due to current circumstances and may be minimising the presence of a mood disorder such as anxiety.

...

...Mr Poulakis would have continued to experience the condition of ADHD at the time of committing the offences. Based on interview, Mr Poulakis has not received any treatment for the disorder. ... ADHD can severely impact on a person’s judgment due to heightened impulsivity and risk taking behaviours without due consideration to the likely consequences of their choices and actions. In the case of Mr Poulakis, his reduced attention and verbal reasoning abilities combined with intact processing speed, increases his risk of “acting before thinking” which may lead to him finding himself in challenging situations which are not always in his best interests or the interests of others.

58. Counsel for the offender submitted that, if the Court accepts that, from childhood, the offender’s mental health deteriorated and he began to suffer a major depressive disorder as a consequence of his life circumstances, “it is open to conclude that his moral culpability is reduced to some extent”, citing DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]- [178]. In response, the prosecution noted that nowhere in the reports of Dr Pulman or Dr Allnut is there support for the fact that the offender is suffering a major depressive disorder (T 16.1-5).

59. In relation to the reports, and in particular the “impulsivity” that is attributed to ADHD, the prosecution submitted that “far from this being an offence of impulsivity, for example, jumping in a stolen car or doing something spur of the moment, this is a long, ongoing course of conduct that has multiple and differing stages that Mr Poulakis is solely responsible for” (T 5.43-6.1).

60. In oral submissions, counsel for the offender accepted that the diagnosis of ADHD does not lower the offender’s moral culpability for the offending (T 23.10-15). It was agreed between parties that the diagnosis of ADHD was relevant in terms of subjective background, context of the offending, and rehabilitation (T 23.44-24.5).

References & Letter from the Offender

61. In evidence before me were four references provided on behalf of the offender.

62. A reference under the hand of Ms Jacinta Greenwood, the offender’s ex-partner, dated 20 July 2020, includes the following:

These charges came as a huge shock and were incredibly upsetting to me. I was disappointed that this was occurring in our lives, and the whole situation seemed so out of character from the person I knew and loved, and was building a future with.

Throughout this whole ordeal, Mr Poulakis showed nothing but grief, shame, embarrassment, regret, and remorse.

...

Since these charges occurred, Mr Poulakis and I have had, and still do have, many discussions about what went wrong. He has sought advice from numerous friends and family members, including my own, and has also talked about seeking regular psychological treatment to better understand his own thoughts and decisions to be able to prevent something like this occurring again. Mr Poulakis has done a lot of self-reflecting and has repeatedly expressed his remorse and regret not only for his actions, but the effect these actions have had on the lives of the people close to him.

...

Despite our romantic relationship ending, I would still consider Mr Poulakis as one of my closest friends, and I truly believe that if given another chance, Mr Poulakis would lead an upstanding and respectable lifestyle, and continue to give back to the community.

63. A reference under the hand of Ms Jessie Brown, the offender’s current partner, dated 6 August 2020, includes the following:

I have spoken with Peter about his charges and the nature of his offending at length. He has expressed remorse and shame on a number of occasions. His offending caused him to lose multiple close relationships – personal and professional – and triggered significant embarrassment to himself, his businesses and his loved ones which deeply affected him. He told me how the negative impacts the charges had on his life were a catalyst for self-reflection and forced him to re-evaluate his choices. I know from our conversations that his guilt is very much present today and motivates him towards building a legitimate future.

I wholeheartedly believe that Peter has gained maturity since his offending and any motivations that caused him to participate in illegal activities are no longer present. He has made positive changes in his life through self-reflection and has long-term genuine plans for the future.

64. A reference under the hand of Ms Heather McLoughlin, dated 9 August 2020, includes the following:

I have watched Peter build the business from one very ordinary café to leasing three sites around the lake, which are all very popular with patrons. I am impressed with his initiative. Over those 5 years, there has been very little staff turnover, which reflects to me that Peter is a good employer and popular with his staff.

...

I can only comment on the man I see at the café regularly. In that context the defendant is personable, honest and very hard working. His warm and considerate personality to everyone makes him popular with all café patrons.

Watching Peter continue to develop his business over the last two years gives me hope that when he says he will not reoffend he means it.

65. A reference under the hand of Mr Simon Davies, dated 24 August 2020, includes the following:

Peter always has time for people. He goes out of his way to help his friends and family even at the detriment of his own wellbeing. He has a large number of employees across various age categories and from diverse backgrounds. He appears to be a very understanding and supportive employer. I have witnessed him have long conversations with staff members, supporting them through both work related and personal issues. I have not seen Peter be disrespectful or lose his temper with anyone, he is extremely popular with customers. Peter has used his business to promote charities, for example the Cancer Council...

...

I regularly talk to his [the offender’s] family and friends. Peter’s reputation has obviously suffered with the news of these charges. I have had many long conversations with Peter since. In my view, his eagerness to help out mates and retain friendships overshadowed self-preservation. I appreciate that he may sometimes appear cavalier about the seriousness of these decisions, but Peter has accepted his wrongdoing which has led to a more collected disposition.

In this context, Peter has worked really hard to turn his life around. His renewed commitment to his work, staff and family provides me with confidence that he will continue to make good decisions and prioritise a healthy future.

66. Also in evidence before was a letter written by the offender and dated 27 August 2020. The letter includes the following:

I’m writing this letter today to explain how sorry I am for my involvement in the dangerous and illegal offences for which I have pleaded guilty.

At the time of offending I didn’t appreciate the seriousness of what I was doing. I didn’t think of the consequences for my actions. I understand that my actions were driven by greed without consideration for how they would affect others.

During my remand in 2017 I was able to see clearly the effects drugs have not only on users, but also the people around them and the wider community. I now understand just how much the supply chain of drugs goes beyond the people using them and follows on to their family and friends.

...

I appreciate that your honour has continued my bail to give me a chance to demonstrate that I can move on from previous actions and show my remorse. The past three years have given me a chance to learn respect and honesty. I have shown maturity by abiding by all strict bail conditions for the past three years. I never missed a sign in or breached my bail conditions.

In summary I understand that I will need to rebuild my life and work as a direct consequence of my actions.

67. The prosecution accepted that the material outlined above would give the Court “a basis to conclude there’s an element of remorse and contrition and insight into his offending” (T 8.42-44).

68. I accept that there is evidence of remorse and insight, and that the offender has good prospects of rehabilitation.

Criminal History & Time in Custody

69. The offender has a limited criminal record in the ACT and NSW. He has been convicted and fined for a number of driving offences, and, in 2012, was convicted and fined for possession of a prohibited substance. In 2013, he was convicted of theft and was sentenced to 22 months’ imprisonment, suspended upon entering into a good behaviour order for 2 years and completing significant community service.

70. The prosecution accepted that the offender’s antecedents are generally of a different nature, are somewhat dated, and are of limited relevance. The prosecution submitted, nonetheless, that the offender does not come before the court as a first-time offender.

71. Counsel for the offender submitted that the offender has limited antecedents, and that he spent a period of time on remand prior to being granted bail. Counsel also noted that there have been no further offences since the offender was bailed, and the offender has complied with all bail conditions.

72. Counsel for the offender submitted that the offender’s antecedents indicate that, for most of his life, he has been “hard working and a productive member of society”.

73. I accept the broadly concurring submissions of both the prosecution and defence in relation to criminal history.

74. The offender was remanded in custody for 30 days in relation to the trafficking charge, from 14 December 2017 to 12 January 2018. I will take this into account by way of back date.

Plea of Guilty

75. The offender entered a plea of guilty to the trafficking charge in the ACT Magistrates Court on 15 June 2018, following a previous plea of not guilty. Counsel for the offender submitted that the offender is entitled to a 25% discount for the timing of this plea.

76. The offender pleaded guilty to the importation charge on 16 March 2020 in the ACT Supreme Court. The matter had been committed for trial and the trial was listed to commence on 2 March 2020. The trial did not proceed on this date in part due to ongoing negotiations between parties. Counsel for the offender submitted that the guilty plea, “even though proximate to the time when the offender’s and co-offender’s trials were due to commence”, was of significant utilitarian value. It was submitted that 10-15% would be an appropriate discount.

77. Earlier this year, s 16A of the Crimes Act was amended with effect for any sentence imposed on or after 20 July 2020. As a result of this amendment, the Court is now required to take into account, if an offender has pleaded guilty to a charge, the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence: s 16A(2)(g)(iii). Previously, ACT authority in R v Harrington [2016] ACTCA 10; 11 ACTLR 215 prohibited a court from taking into account the utilitarian value of a plea.

78. Taking into account all relevant matters, a discount of 15% is appropriate in this case in relation to the importation offence. A discount of 25% is appropriate in relation to the trafficking offence.

Comparable Cases & Sentencing Statistics

79. In relation to Commonwealth offences, to ensure sentencing consistency for federal offenders, regard must be had to sentencing practices across Australia and decisions of intermediate appellate courts in other jurisdictions: Hili v The Queen [2010] HCA 45; 242 CLR 520 at 535 [48]- [50] (Hili) and R v Pham [2015] HCA 39; 256 CLR 550 (Pham). In relation to Territory offences, s 33(1)(za) of the Sentencing Act requires that the Court have regard to current sentencing practices for offences of this nature.

80. Bare sentencing statistics provide limited assistance: Pham. Statistics do not provide information about why sentences were fixed as they were in each case: Hili. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4]:

[C]onsiderations to which a sentencing judge is obliged ... to have regard cannot be applied mechanically ... given that the factors that must be taken into account are incommensurable, and ... in many respects, inconsistent.

81. Having regard to comparable cases serves two purposes: it provides guidance as to the identification and application of relevant sentencing principles and, upon analysis, may yield discernible sentencing practices and possibly a range of sentences against which to examine a proposed sentence: Pham at [29], citing Hili at [49].

82. I was referred to the following cases by the prosecution:

(a) R v Englisch [2009] VSCA 71: The offender was charged with one count of aiding and abetting the importation of a commercial quantity of a border-controlled drug, namely 555.48 grams of MDMA. The offender pleaded guilty and had previously been convicted for importing a commercial quantity of drugs in similar circumstances. The offending commenced 20 days after the expiry of the recognisance order for the previous offence, which was an aggravating feature on sentence. The offender came to Australia in 1992 and developed his own company where he worked as a painter until he sustained a work injury where he experienced financial loss and became severely depressed. The offender was sentenced to seven and a half years of imprisonment, with a non-parole period of five years. An appeal by the offender against the sentence was dismissed.

(b) El-Jalkh v R [2011] NSWCCA 236: The offender was charged with one count of conspiring to import a commercial quantity of a border-controlled drug, namely 4.321 kilograms of MDMA. The offender was 61 years of age and had prior good character. He suffered from major depression, had numerous medical conditions, and was supporting elderly parents. The offender was a principal in the conspiracy, but not the director of the enterprise. Nevertheless, he was willing to go to great lengths to effect the importation, including travelling to both Lebanon and Europe. The offender was sentenced to 10 years of imprisonment, with a non-parole period of 5 years and 3 months. An appeal against the sentence was allowed due to the sentencing judge miscalculating the date of the sentence; however, the same penalty was imposed. The accused was originally convicted of the offence, but had the conviction quashed on appeal and a new trial ordered. The accused pleaded guilty to the charge prior to the retrial.

(c) Siddiqi v The Queen (Commonwealth) [2015] NSWCCA 169 (Siddiqi): The offender was found guilty following a trial of one count of jointly importing a marketable quantity of a border-controlled drug, namely 1.48 kilograms of cocaine. The offender actively recruited innocent agents to accept parcels containing cocaine through the post at their homes; he was found to play a key role, although was only expecting to receive a modest financial reward. The offender was 23 years of age and came to Australia from Afghanistan as a child. He had a difficult upbringing as a result of having to grow up in a new country and had been diagnosed with a major depressive disorder. The Court was cautious about his rehabilitation prospects and a significant prior matter in the Children’s Court was taken into account. The offender was sentenced to seven years and six months of imprisonment, with a non-parole period of three years and nine months. Leave to appeal against the sentence was granted to the offender, but the appeal was dismissed. The Court of Criminal Appeal found that the sentencing Judge had erred in taking into account juvenile offending; however, it was found that an inappropriately low sentence imposed on a co-offender cannot dictate a reduction in an offender’s sentence where that sentence is not manifestly excessive.

(d) R v Ng [2012] WASCA 180: The offender was found guilty at trial of two counts of attempting to possess a marketable quantity of a border-controlled drug, namely 227.1 grams of methamphetamine in relation to count 1 and 383.8 grams of methamphetamine in relation to count 2. The offender was 35 years of age and born in Malaysia. He obtained a Bachelor of Science but was unable to obtain work commensurate to his qualifications due to his proficiency in English. The offender worked as a factory hand, had a gambling addiction and had used recreational drugs for around two years prior to the offending. He carefully monitored the progress of both parcels, which formed part of a very significant drug enterprise. He was trusted by persons at a high level in the drug distribution chain and had two previous convictions for taking possession of imported methamphetamine. The evidence established that the offender was a low to mid-level dealer, and the offences were committed whilst on bail for previous charges. The offender failed to cooperate with law enforcement agencies and demonstrated no insight into his offending. He was sentenced to three years of imprisonment for count 1, and three years and six months for count 2. The sentence for count 2 was reduced by four months and two weeks to account for time spent in custody between arrest and conviction on previous offending. The sentences were concurrent, but cumulative on a previously imposed sentence. A Crown appeal against sentence was upheld and the offender was re-sentenced to 10 years for count 1 and 10 years and 2 months for count 2. The sentences were concurrent, but partly cumulative on the previously imposed sentence. Following the appeal, the total effective sentence for the offender (including the previous sentence) was 13 years, 7 months and 2 weeks of imprisonment, with a single non-parole period of 8 years and 6 months’ imprisonment.

83. In relation to the comparable cases, the prosecution submitted that El-Jakh is of some assistance, though the quantity involved is not necessarily on par. It was further submitted that Siddiqi is of some assistance. Ultimately, the prosecution submitted that numerical equivalency was not advocated with any of these cases, and that the current matter was complicated by the dibutylone trafficking offence and scheduled offences (T 17.41-18.12). The comparable cases referred to by the prosecution were accepted by defence (T 18.16-17 and T 37.25).

84. Siddiqi was specifically referred to by the prosecution. There are a number of distinctions that can be drawn between Siddiqi and the present case. Mr Siddiqi was charged with importing a marketable quantity of cocaine, for which the maximum penalty is 25 years of imprisonment. Mr Siddiqi was found guilty following a jury trial; he was found to have guarded prospects of rehabilitation due to the lack of remorse and continued denial of guilt. This can be contrasted with the offender, who entered a plea of guilty, has expressed remorse, and has real prospects of rehabilitation.

Parity

85. There are three co-offenders in this matter: Mr Jabal, Mr Yavuz, and Mr Omari.

86. It was accepted by both prosecution and defence that Mr Poulakis’ and Mr Yavuz’ involvement in the importation was more significant than that of Mr Omari or Mr Jabal. Mr Jabal was sentenced for being knowingly concerned in the trafficking of a controlled drug other than cannabis, namely cocaine. He was convicted and sentenced to 12 months’ imprisonment to be served by way of intensive correction order. Mr Omari is to be sentenced later this year.

87. The objective and subjective features of the offending of Mr Yavuz and Mr Poulakis can be compared as follows:

88. The prosecution submitted that there is a “complete symbiosis” between the offender and Mr Yavuz. Noting that Mr Yavuz was incarcerated at the time of the offending, the prosecution submitted that Mr Yavuz and the offender could be seen “as two sides of the same coin, one the mind, one the body” (T 3.8-12).

89. In relation to the role of the offender, the prosecution submitted the following (T 14.23-29):

... we do take issue with the label of a conduit or middleman at the direction of the principal. The evidence, in our respectful submission, does not support Mr Poulakis being someone who takes directions and is a mere functionary. The evidence shows an independence and a level of foresight in relation to his conduct that shows a willing and engaged participant in the enterprise itself.

90. Further, in relation to the actions of Mr Yavuz and the offender, the prosecution submitted (T 15.27-34):

The significant steps that Mr Poulakis took himself to facilitate the successful operation are substantial in the sense of what it was that he actually did. He was an important, and a very important, part of this enterprise being successful, particularly when you look at who the constituent players were. The inability of Mr Yavuz to fulfil and carry out anything more than what he did because of his incarceration, leaving it to Mr Poulakis to organise, and even letting Mr Poulakis have some authority over Mr Omari, all demonstrate that they were on a par with each other ...

91. Counsel for the offender submitted that Mr Yavuz must have been the “principal” in the enterprise, as, if he wasn’t the principal, there was no need for Mr Poulakis and the other co-offenders to visit him and to maintain regular phone contact with him. Counsel for the offender cavilled with the submissions that the offender and Mr Yavuz were “on par” and submitted rather that “Mr Poulakis and others were getting directions and guidance and ... were told fundamentally what to do by Mr Yavuz” (T 19.28-35).

92. Counsel for the offender referred to a telephone conversation on 19 September 2017 between the offender and Mr Yavuz, in which the offender states, in relation to the transfer from cash to Bitcoin, “I wasn’t sure if I was meant to do all of it”. It was submitted that this question is “indicative of Poulakis seeking authority” (T 26.26-31). Counsel for the offender further submitted that the prosecution case statement indicates that Mr Yavuz expressed frustration through the process, and this indicates that he had a more superior role in the enterprise (T 26.42-27.1).

93. In relation to the conversation on 19 September 2017, the prosecution submitted that this is merely representative of the fact that the money belonged to Mr Yavuz and was therefore “no more than a respectful conversation ... between two equal parties” (T 29.40-44).

94. Overall, the prosecution’s submission was that the offender and Mr Yavuz are largely on par with each other in respect of their culpability, while the offender’s submission was that there is clear evidence that Mr Yavuz was controlling the process and instructing the other co-offenders as to what they should be doing.

95. The foundation of the assessment of the different roles of Mr Yavuz and the offender is the amended case statement. The objective features of the offending are noted in the table at [87]. While it is the case that there is a broad equivalence in terms of hierarchy and role as between Mr Yavuz and the offender, it is clear that Mr Yavuz has, comparatively, a somewhat greater role in directing the enterprise, in line with the amended case statement in relation to “directing” (see [4] and [8]) and the comparison of the objective facts set out in the table at [87]. I have come to this conclusion, not on the basis of shorthand labels, but rather a comparison to the extent that the evidence allows of what their respective involvement was.

Scheduled Offences

Additional Territory Offence

96. The offender has requested that, under Part 4.4 of the Sentencing Act, an offence of unauthorised possession of a firearm be taken into account for the purposes of sentencing in relation to the primary offence.

97. A number of relevant principles in relation to consideration of additional offences were enunciated by the Court of Appeal in R v Campbell [2010] ACTCA 20 at [46]- [50] (Campbell), including:

(a) The Court is required to ask the offender whether they wish the Court to take into account the additional offences, the answer to which much be clear and unequivocal: at [43], Sentencing Act s 57(1);

(b) Any penalty imposed for the offence cannot exceed the maximum penalty even if additional offences are taken into account: at [46], Sentencing Act s 57(1);

(c) In taking additional offences into account, greater weight is given to considerations of personal deterrence and community retribution, and in taking them into account they will no doubt be considered in the assessment of the offender’s character and prospects of rehabilitation: at [47], [50];

(d) It is not necessary for a court to indicate precisely what effect the taking into account the additional offences has, and while there may be occasions when it is appropriate for a judge to refer to the effect, it is not obligatory to do so: at [49]-[50];

(e) “Taking offences into account” means to do so in the same manner as other matters that are taken into account on sentence. It will generally have the result of increasing, or changing the nature of, the sentence to be imposed: at [50]; and

(f) The offender is not to be sentenced for the additional sentences: at [50].

98. I will take into account, when determining the appropriate sentence for the trafficking offence, the additional offence referred to above at [2]. I also have regard to the principles outlined in Campbell as to how the offences are to be taken into account.

Additional Commonwealth Offence

99. As stated above at [2], one offence of structuring transactions contrary to s 142 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) is to be taken into account under s 16BA of the Crimes Act. Section 16BA provides as follows:

16BA Taking other offences into account

(1) Where a person is convicted of a federal offence or federal offences, and the court before which the person is convicted is satisfied that:

(a) there has been filed in the court a document in, or to the effect of, the form prescribed for the purposes of this section;

(b) the document contains a list of other federal offences, or offences against the law of an external Territory that is prescribed for the purposes of this section, which the person convicted is believed to have committed;

(c) the document has been signed:

(i) by the Director of Public Prosecutions;

(ii) for and on behalf of the Director of Public Prosecutions, by a person authorized by the Director of Public Prosecutions, by instrument in writing, to sign documents under this subsection; or

(iii) by a person appointed under section 69 of the Judiciary Act 1903 to prosecute indictable federal offences;

and by the person convicted;

(d) a copy of the document has been given to the person; and

(e) in all the circumstances it is proper to do so;

the court may, with the consent of the prosecutor and before passing sentence on the person, ask him or her whether he or she admits his or her guilt in respect of all or any of the offences specified in the list and wishes them to be taken into account by the court in passing sentence on him or her for the offence or offences of which he or she has been convicted.

(2) Subject to subsection (3), if the person admits his or her guilt in respect of all or any of the offences specified in the list and wishes to have them taken into account by the court in passing sentence on him or her for the offence or offences of which he or she has been convicted, the court may, if it thinks fit, in passing sentence on him or her for the offence or offences of which he or she has been convicted, take into account all or any of the offences in respect of which the person has admitted his or her guilt.

...

(4) Where the court takes into account under this section all or any of the offences in respect of which the person has admitted his or her guilt, the sentence passed on him or her for any of the offences of which he or she has been convicted shall not exceed the maximum penalty that the court would have been empowered to impose on him or her for the offence if no offence had been so taken into account.

(5) Where an offence is taken into account under this section, the court may make such orders with respect to reparation, restitution, compensation, costs and forfeiture as it would have been empowered to make if the person had been convicted before the court of the offence, but shall not otherwise impose any separate punishment for the offence.

...

(8) Where an offence is taken into account under this section, the court shall certify, upon the document filed in the court, the offence taken into account and the conviction or convictions in respect of which the offence was taken into account and thereafter no proceedings shall be taken or continued in respect of the offence unless the conviction or each conviction, as the case may be, in respect of which the offence has been taken into account has been quashed or set aside.

...

Impact of COVID-19 on Sentencing

100. Counsel for the offender submitted that full-time custody will be made more difficult for the offender by reason of the COVID-19 pandemic, noting the absence of visits from family and friends, the restrictions in place inside the AMC, the anxiety regarding the risk of infection, and the isolation involved. Counsel cited McKinnon v The Queen [2010] NSWCCA 106 at [32], R v Despotovski [2020] NSWDC 110 at [36], and Valentine v The Queen [2020] NSWCCA 116.

101. The prosecution accepted that the impact of COVID-19 is a relevant sentencing consideration (T 16.40-44 and 36.16-27). The prosecution submitted the following with respect to the impact of COVID-19 (T 16.24-38):

... on the other hand, members of the community can’t travel interstate to visit people either. There is a whole widespread level of denial of social contact that permeates the entirety of society. It doesn’t put prisoners in a special category ... So to the extent that this operates to say that the service of a term of imprisonment is particularly harsh, it must be accepted that that applies to all prisoners and recognised against a backdrop that is a widespread issue. It’s certainly a factor ... but we would say it’s not a factor that looms large as part of the overall matrix of sentencing considerations.

102. I accept the submissions of both the offender and the prosecution in relation to COVID-19. I note that, since the sentence hearing, limited social visits recommenced at the AMC from 9 September 2020. These visits are restricted to immediate family and partners only, and each detainee is allowed one adult visitor and one child visitor. No physical contact is permitted between visitors and detainees. While the availability of restricted social visits may lessen, to a limited extent, the social consequences of COVID-19, social visits remain constrained, and may well be suspended again, depending on the progress of COVID-19. There is, therefore, still additional hardship attached to imprisonment due to the COVID-19 pandemic. I take this into account as a relevant factor on sentence.

Other Relevant Considerations

103. In relation to the Territory offence, the court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. In relation to the Commonwealth offence, the court is required to take into account matters under s 16A(2) of the Crimes Act that are known and relevant. I have referred to the relevant matters above.

104. In relation to the Territory offence, the court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, rehabilitation, and recognition of harm to the victim, being the community, are important sentencing considerations. In relation to the Commonwealth offence, these matters are relevant under s 16A(2) of the Crimes Act.

105. The prosecution submitted the following in relation to sentencing purposes in the context of drug trafficking (Written Submissions at [13]):

General deterrence is an important consideration for offending of this type. Principles of general deterrence and denunciation are prime considerations when sentencing for drug trafficking offences, be they domestic or international as in the present case. These considerations will generally outweigh subjective circumstances, particularly in the determination of a total sentence, and stern punishment will be warranted in almost every case. This is because of the difficulty in detecting offending conduct and the enormous social consequences that flow from the trafficking of drugs within Australia.

(Citations omitted).

106. It is clear that general deterrence is an important consideration for offending of this type: R v Combey (Unreported, Victorian Court of Criminal Appeal, Starke, Anderson and Fullagar JJ, 5 February 1980), Wong, DPP (Cth) v El Karhani (1990) 21 NSWLR 370; 51 A Crim R 123, R v Tang, Dang and Quach [1997] VICSC 50; (1998) 3 VR 508, and Mazzitelli v The Queen [2002] NSWCCA 436; 135 A Crim R 132 at [71].

107. Ultimately, the prosecution submitted that general and specific deterrence, denunciation, and community protection should be afforded considerable weight in the offender’s sentence. In the prosecution’s submission, “nothing short of a lengthy sentence of immediate imprisonment is appropriate in all the circumstances of this case”. It was accepted by counsel for the offender that a term of fulltime imprisonment is appropriate in all the circumstances, in accordance with the authorities.

108. In relation to purposes of sentencing and the appropriate sentencing disposition, counsel for the offender submitted the following (Written Submissions at [23]-[24]):

It has been conceded that full time custody is the appropriate sentencing option in these proceedings and it is evident that this is the usual disposition of such cases as this one. This is because these offences are held to be such a serious cost to the community. Taking that into account and understanding that he must be punished for his offending behaviour, aspects of general and specific deterrence, the offender’s insight into his behaviour, the cost it has meant to the community and his remorse indicate significantly that he is a strong candidate for rehabilitation after necessary medication and counselling while in custody.

It is respectfully submitted that the offender has shown realistic signs of being able to return to mainstream society in a meaningful and constructive fashion after a period of incarceration. It is respectfully submitted that a sentencing regime be imposed that recognises that the offender has positive signs for rehabilitation and can return to a productive life after his sentence is completed.

109. I accept the submissions of both the prosecution and defence, as set out above, as they are broadly compatible and, in my view, ultimately correct.

110. As indicated above at [67], the prospects for rehabilitation are good. Nevertheless, the seriousness of the offending looms large in this case, despite the rehabilitation that has been undertaken in the interim.

111. As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.

112. Counsel for the offender submitted that there are extra-curial aspects to the offender’s punishment, including that he has lost his relationship with his long-term partner and it is likely his business enterprise will suffer as a result of the offender being imprisoned. This was not, however, put as “exceptional hardship” (T 41.30-35), in accordance with the relevant authorities.

Totality & Structure of the Sentence

113. When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v Queen [2016] ACTCA 53 at [64]. In doing so, I must ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 307-308 and Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63.

114. The prosecution submitted that the nature of offending requires an element of cumulation to properly reflect the aggregate criminality of the offender and to send the necessary deterrent message to others contemplating involvement in such activities.

115. In setting a non-parole period, I note that it should be fixed in accordance with the principles set out in Hili at [44] and note the generally applicable principles set out in Taylor v The Queen [2014] ACTCA 9 at [19].

116. Relevantly, s 19AB of the Crimes Act provides as follows:

19AB When court must fix non‑parole period

(1) Subject to subsection (3), a court must fix a single non‑parole period in respect of a federal sentence or federal sentences if:

1. a person is convicted of a federal offence, or of 2 or more federal offences at the same sitting; and
2. the court imposes the sentence or sentences on the person; and

100. either or both of the following subparagraphs apply:
     1. any of the sentences is a federal life sentence;
     2. the sentences, in the aggregate, exceed 3 years; and

4. when the court imposes the sentence or sentences, the person is not already serving or subject to a federal sentence.

(2) Subject to subsection (3), a court must fix a single non‑parole period in respect of all federal sentences a person is to serve or complete if:

1. while the person is in prison and is serving or subject to a federal sentence, the court imposes a further federal sentence on the person; and
2. the result is that the person is to serve or to complete:
   1. a federal life sentence; or
   2. federal sentences the unserved portions of which, in the aggregate, exceed 3 years; and

100. when the court imposes the further federal sentence, the person is not already subject to a non‑parole period or recognizance release order in respect of a federal sentence.

Non‑parole period not appropriate

(3) A court may decline to fix a non‑parole period under this section if:

1. the court is satisfied that a non‑parole period is not appropriate, having regard to:
   1. the nature and circumstances of the offence or offences; and
   2. the antecedents of the person; or
2. the person is expected to be serving a State or Territory sentence on the day after the end of the federal sentence, or the last to be served of the federal sentences, as reduced by any remissions or reductions under section 19AA.

(4) If the court declines to fix a non‑parole period, the court must:

1. state its reasons for so declining; and
2. cause the reasons to be entered in the records of the court.

117. Relevantly, 19AJ of the Crimes Act provides as follows:

19AJ Court may only fix non‑parole periods or make recognizance release orders for federal sentences of imprisonment

This Division does not authorise a court to fix a single non‑parole period, or make a recognizance release order, in respect both of federal sentences of imprisonment and State or Territory sentences of imprisonment.

118. See Edwin v The Queen [2014] ACTCA 47 (Edwin).

119. As has been noted in Edwin at [11], when sentencing in the context of both Commonwealth and Territory offences, “a sentencing judge must accommodate the two distinct regimes”. Necessarily, the structure of the sentences imposed must accord with these two regimes. I find it convenient to start with the Territory offence and accumulate the Commonwealth offence upon this sentence in order to encompass the entire criminality associated with both the Territory and Commonwealth offences.

Sentence

120. In coming to a sentence by way of instinctive synthesis, I have taken into account all of the matters discussed above, including the objective seriousness of the offences, subjective matters, and the scheduled offences.

121. The appropriate sentence for the trafficking dibutylone charge is 12 months’ imprisonment, reduced to 9 months on account of the plea of guilty.

122. The appropriate sentence for the importation charge is 6 years’ and 10 months’ imprisonment, reduced to 5 years and 9 months on account of the plea of guilty.

123. The sentences will be partially concurrent, in accordance with the principle of totality discussed above, and I will set a non-parole period of two years and nine months in respect of the Commonwealth importation offence. The offender will therefore be eligible for parole on 18 August 2023. Overall, the offender will not be eligible for parole until three years have been served, from the date of the back date. That amounts to 50% of the overall sentence. In accordance with s 19AJ, the commencement of the non-parole period will not be until the commencement of the sentence for the Commonwealth importation.

Orders

124. In respect of the offence of trafficking in a controlled drug other than cannabis, I convict you and sentence you to nine months’ imprisonment, commencing on 19 August 2020 and expiring on 18 May 2021.

125. In respect of the offence of importing a commercial quantity of a border-controlled drug, I convict you and sentence you to five years and nine months’ imprisonment, commencing on 19 November 2020 and expiring on 18 August 2026. In respect of this offence, I set a non-parole period of two years and nine months, expiring on 18 August 2023.