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District Court 15 December 2023

R v BUSU

[2023] NSWDC 573

Drugs
CRIME SENTENCING DRUG SUPPLY PENALTIES INTENSIVE CORRECTION ORDERS

Citation: R v BUSU [2023] NSWDC 573
Court: District Court of New South Wales
Date: 15 December 2023
Judge: Noman SC DCJ

Background

The offender became involved in a dark web drug supply operation from late 2021, approximately four years after the operation was first established. The online platform, which operated using encryption and accepted payment in cryptocurrency, offered a range of prohibited drugs and restricted substances for sale. The offender accessed the site using an established passcode and played a role in taking orders, sourcing supplies, and exchanging cash and cryptocurrency.

The offender recruited his brother as a co-offender. While the co-offender attended a leased unit to prepare and mail packages, the offender's DNA and fingerprints were found on packages sent from that address. Police investigated using an undercover operative who conducted controlled purchases, which were intercepted before dissemination. The offender was arrested in May 2022 after approximately six months of involvement.

The offender pleaded guilty in the Local Court, attracting a 25% reduction on each sentence. He appeared for sentencing on five principal offences spanning drug supply, ongoing supply, and dealing with the proceeds of crime, with a further ten matters taken into account on a Form 1.

  • The appropriate level of objective seriousness for each of the five principal offences
  • Whether the offender's role within the operation was sufficiently significant to elevate the seriousness of the offending
  • The weight to be given to subjective factors, including mental health, substance abuse history, and prospects of rehabilitation
  • Whether a full custodial sentence or an intensive correction order (ICO) was appropriate, having regard to the community safety test and the likelihood that an ICO would better reduce the risk of reoffending

Decision

The District Court found the offender had played an important, though not dominant, role within a larger operation. He was not a mere functionary: he had initiative, access to the platform, and direct involvement in sourcing. The Court accepted his account that he initially became involved to pay off a drug debt, and later to support his own drug use, but disregarded broader admissions to his psychologist about the full extent of his supply activity beyond the charges before the Court.

On objective seriousness, the Crown submitted the ongoing supply offence (five separate cocaine supplies) fell towards the mid-range, while the proceeds of crime offence involving over $115,000 in bitcoin fell towards the lower end. The Court accepted these characterisations, noting that the five-supply minimum threshold for ongoing supply was only just exceeded, each supply was relatively small in quantity, and the bitcoin exchange offence involved an undercover operative who initiated the transaction.

On subjective factors, the Court took into account the offender's major depressive disorder, long-term substance abuse history, recent period of abstinence maintained in the community, family support, and genuine prospects of rehabilitation through ongoing psychological treatment. The Court was satisfied that community safety would be better served by an ICO than by full-time custody, citing the assessed risk of reoffending, the offender's engagement with treatment, and the supervisory and monitoring functions of the ICO regime.

The Court convicted the offender on all five offences and imposed a single aggregate sentence of three years, to be served by way of an intensive correction order.

Orders Made

  • The offender convicted on all five principal offences
  • Sentence of three years imposed, to be served by way of an intensive correction order (ICO)
  • Reporting condition: the offender must report by telephone to the Community Corrections office at Leichhardt within seven days
  • Standard conditions, including:
  • No commission of any offence
  • At least monthly face-to-face supervision by a community corrections officer
  • 500 hours of community service work
  • At least monthly psychological treatment with the nominated psychologist (or another approved by Community Corrections)
  • Participation in an approved drug rehabilitation program
  • Abstention from all illicit or non-prescription drugs
  • Prohibition on using any encrypted device or communicating via encrypted applications, except WhatsApp
  • Non-compliance may result in formal warning, imposition of more stringent conditions, or revocation of the ICO; revocation may result in the offender serving all or part of the sentence in full-time custody

Key Takeaways

  • The District Court confirmed that, under s 25A(1) of the Drug Misuse and Trafficking Act 1985, the element of repetition carries particular significance where prescribed maximum penalties are not graduated by drug quantity, as they are under s 25.
  • An ICO can be imposed in place of full-time custody where the sentencing court is satisfied that community safety would be better served by that form of supervision, even for serious drug supply offences involving cryptocurrency and dark web platforms.
  • Admissions made to a psychologist may be taken into account in assessing an offender's role in an offence, but the Court here carefully limited its use of those admissions to findings about role and excluded any inference about the scale of offending beyond the charges.
  • Where an undercover operative initiates a transaction, that circumstance does not diminish the objective seriousness of the offending, though it may be a relevant factor in assessing the lower end of the range.
  • A 25% discount for early guilty pleas entered in the Local Court applies across all offences, consistent with guideline principles.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 25A(1)
- Crimes Act 1900 (NSW), ss 193C(1) and 193C(2)
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1)

Cases:
No specific cases were cited in the provided text, though the Court referred to guideline judgment principles in relation to Form 1 offences and to observations made in prior decisions concerning s 25A offences.