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District Court 16 September 2022

R v Russell

[2022] NSWDC 416

DrugsFraud & dishonestyPublic order & justice offences
CRIME DRUG OFFENCES COMMONWEALTH OFFENCES IMPORT/EXPORT BORDER CONTROLLED PROHIBITED PLANT OR DRUG POSSESS PROHIBITED DRUG

Citation: R v Russell [2022] NSWDC 416
Court: District Court of New South Wales
Date: 16 September 2022
Judge(s): Scotting DCJ

Background

The offender, a 46-year-old former professional rugby league player, appeared for sentence after pleading guilty to a series of serious drug and related offences committed on the Central Coast of New South Wales between 2017 and 2019. He was the director of an earthmoving company, Russtrans Pty Ltd, which he used as a platform for drug importation activity.

The offending fell into three broad categories. First, the offender imported large quantities of methamphetamine concealed inside industrial machinery, including a hydraulic cylinder and ball bearings. Second, he was a central figure in a broader conspiracy involving the importation of methamphetamine hidden in compressor heads across 93 consignments. Third, while on bail for the importation offences, he supplied cocaine on multiple occasions and attempted to facilitate the supply of approximately one kilogram of cocaine.

NSW Police commenced their investigation in 2017. The offender was arrested for the importation offences in August 2018 and for the drug supply and related offences in June 2019. Three associates (Witnesses A, B and C) received undertakings from the Commonwealth Director of Public Prosecutions in exchange for giving evidence against the offender.

Legal Issues

  • What sentence was appropriate across multiple serious federal drug offences (commercial quantity methamphetamine importation and conspiracy) and state drug supply offences, having regard to all relevant matters under s 16A of the Crimes Act 1914 (Cth) and s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • What discount applied to the guilty pleas entered at different stages of proceedings?
  • To what extent, if any, did the offender's neuropsychological condition arising from repetitive brain trauma reduce his moral culpability?
  • Did special circumstances exist to warrant varying the standard ratio between head sentence and non-parole period for the state offences?
  • How should the principle of totality apply in constructing an aggregate sentence across state and federal offences?

Decision

Objective seriousness of the offending

The court found that the offending was extremely serious across all counts. The offender imported 56.09 kg of pure methamphetamine in the hydraulic cylinder, more than 74 times the commercial quantity (at [23], [175]). The ball bearings importation involved 12.19 kg of pure methamphetamine, more than 16 times the commercial quantity (at [37]-[38], [177]). The compressor head conspiracy involved approximately 163.66 kg of pure methamphetamine in 93 consignments over several months (at [83], [180]). The methods of concealment were sophisticated, the offender used encrypted communications to avoid detection, and dummy runs were deployed to test the importation stream before drugs were loaded (at [179]-[180]). The court found that the offender occupied a very senior position as the head of the Australian arm of the syndicate, directing others and maintaining regular contact with an international facilitator in Singapore (at [179]).

Guilty plea discounts

Pleas to Counts 1 and 2 (the federal importation offences) were entered after the matter had been listed for trial, attracting a 15% discount. The plea to Count 8 (the conspiracy offence) was entered in the Local Court and attracted a 25% discount (at [7]). State offences (Counts 3 to 7) were also pleaded in the Local Court, attracting a 25% discount (at [11]).

Moral culpability and the neuropsychological evidence

The court accepted the evidence of Dr Pulman, a neuropsychological expert, that the offender was suffering from the neuropsychological sequelae of repetitive brain trauma at the time of the offending. The condition affected his memory, executive functioning, impulse control and decision-making capacity, and was consistent with the kind of damage observed in contact sport athletes with repetitive concussive and subconcussive injuries (at [169]). The court was satisfied that there was a causal connection between the offender's personality changes, poor decision-making, and his involvement in the offending, and that his neuropsychological condition increased his susceptibility to substance abuse, which further impaired his judgement (at [174]). Combined with a deprived background marked by exposure to domestic violence, the court found that the offender's moral culpability was reduced to some extent (at [174]). The court also noted that a prolonged period of incarceration was likely to accelerate any neurological decline, and that specialised treatment would be more accessible in the community (at [194]-[197]).

Special circumstances and prospects of rehabilitation

The court made a finding of special circumstances for the state offences, noting the offender's first period in custody, his cognitive deficits arising from repetitive head trauma, his need for specialised community-based treatment, and a significant risk of developing dementia or CTE which could substantially shorten his life expectancy (at [204]). The court found that the offender had good prospects of rehabilitation, supported by family who were now aware of his neuropsychological condition and willing to assist him, and that concern about his cognitive decline made him more likely to seek appropriate treatment (at [198]).

Totality and aggregate sentences

The court imposed aggregate sentences separately for state and federal offences before partially accumulating them to reflect the totality of the criminality. The aggregate state sentence was 7 years with a non-parole period of 3 years and 6 months commencing 8 May 2019. The aggregate federal sentence was 14 years with a non-parole period of 7 years commencing 8 May 2021. The total effective sentence was 16 years with a non-parole period of 9 years, with the offender eligible for parole on 7 May 2028 (at [210], [212]-[214]).

Orders Made

  • The offender was convicted on all counts.
  • State offences (aggregate): 7 years imprisonment with a non-parole period of 3 years and 6 months, commencing 8 May 2019; head sentence expiring 7 May 2026, non-parole period expiring 7 November 2022.
  • Count 3 (supply cocaine, 31 January 2019): indicative 18 months
  • Count 4 (supply cocaine, 18 February 2019, including Form 1 offence): indicative 2 years
  • Count 5 (supply cocaine, 7 March 2019): indicative 3 years
  • Count 6 (supply cocaine, 14 May 2019): indicative 2 years 6 months
  • Count 7 (supply commercial quantity cocaine, 26 February 2019 to 4 June 2019): indicative 5 years with non-parole period of 2 years 6 months
  • Federal offences (aggregate): 14 years imprisonment with a non-parole period of 7 years, commencing 8 May 2021 and expiring 7 May 2035; non-parole period expiring 7 May 2028.
  • Count 1 (attempt to possess commercial quantity border-controlled drug, hydraulic cylinder, including proceeds of crime offence on s 16BA schedule): indicative 8 years
  • Count 2 (import commercial quantity border-controlled drug, ball bearings, including pervert course of justice offence on s 16BA schedule): indicative 6 years
  • Count 8 (conspiracy to import commercial quantity methamphetamine in compressor heads): indicative 12 years
  • Total effective sentence: 16 years imprisonment with a non-parole period of 9 years; eligible for parole on 7 May 2028.

Key Takeaways

  • A sentencing court may reduce an offender's moral culpability to some extent where expert neuropsychological evidence establishes a causal connection between repetitive brain trauma, impaired executive functioning and poor decision-making, and where that condition is found to have been present at the time of serious drug offending (at [169], [174]).

  • The District Court treated the offender's neuropsychological prognosis as relevant not only to culpability but also to the conditions of imprisonment: the court found that prolonged incarceration was likely to accelerate neurological decline and that specialised treatment was more accessible in the community, both of which bore on the structure of the sentence (at [194]-[197]).

  • Special circumstances may be established where an offender serving a first custodial sentence suffers from progressive cognitive deficits requiring specialised community-based treatment and faces a significant risk of developing a neurodegenerative disease such as dementia or CTE (at [204]).

  • Under the federal sentencing framework, where guilty pleas are entered at different stages of proceedings, different utilitarian discounts apply to each count, with earlier pleas attracting the higher discount (at [7]).

  • Fabricating a false documentary defence, in this case commissioning engineering drawings to be backdated and incorporating specific part numbers so a judge could link them to an importation, was treated as a serious attempt to pervert the course of justice, particularly because it was committed while the offender was on bail for the very offences the false evidence was designed to answer (at [178]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth)
- Crimes (Sentencing Procedure) Act 1999
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases
- Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 546
- Bugmy v The Queen (1990) 169 CLR 525
- Cameron v The Queen (2002) 209 CLR 339
- Danial v R [2008] NSWCCA 15
- Deakin v The Queen (1984) 58 ALJR 367
- Hili v The Queen (2010) 242 CLR 520
- Johnson v The Queen (2004) 78 ALJR 616
- Power v The Queen (1974) 131 CLR 623
- R v El Karhani (1990) 21 NSWLR 370
- R v Lamella [2014] NSWCCA 122
- R v Nguyen (2010) 205 A Crim R 106
- R v Olbrich (1999) 199 CLR 270
- Xiao v R (2018) 96 NSWLR 1