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District Court 8 November 2024

R v Robertson; R v Westwood

[2024] NSWDC 528

Drugs
CONTROLLED PROHIBITED PLANT OR DRUG STRONG SUBJECTIVE CASES EVIDENCE ADMISSIONS CRIMINAL PROCEEDINGS ADMISSIBILITY OF EVIDENCE

Citation: R v Robertson; R v Westwood [2024] NSWDC 528
Court: District Court of New South Wales
Date: 8 November 2024
Judge: Newlinds SC DCJ

Background

Two offenders, referred to here as Robertson and Westwood, each pleaded guilty to conspiring between March and June 2021 to import a commercial quantity of heroin and methamphetamine into Australia, contrary to the Criminal Code (Cth). The offence carries a maximum penalty of life imprisonment. Robertson also asked the court to take into account a related Schedule offence of conspiring to deal with the proceeds of an indictable offence exceeding $1 million.

The prosecution's case rested almost entirely on messages intercepted from the ANOM encrypted messaging application. ANOM was developed by investigating authorities who built a covert "backdoor" into the platform, allowing them to access communications that users believed were fully encrypted and private. This has generated significant litigation across Australia about whether such evidence is admissible.

Both offenders had been in custody since their arrest on 10 March 2022. Their sentences were backdated to commence from that date.

  • Whether the offenders' roles in the conspiracy were properly characterised as those of "leading members of a criminal syndicate," and where their offending sat on the spectrum of objective seriousness
  • Whether guilty pleas entered in the context of unresolved ANOM admissibility challenges warranted a sentencing discount greater than the standard utilitarian discount for an early plea
  • Whether, and to what extent, strong subjective circumstances warranted further reductions in sentence

Decision

Objective seriousness. Newlinds SC DCJ rejected the Crown's submission that the offenders were "leading members of a criminal syndicate" engaged in sophisticated offending. His Honour accepted the defence characterisation that the objective seriousness was considerably lower than the Crown contended. The offenders were investors in a single consignment (the 14th in a broader importation stream of 15), and while they knew the stream's methodology and regarded it as successful, they were not being sentenced for the other consignments. The degree of sophistication and the financial benefit they stood to gain were both found to be unclear or overstated.

The ANOM guilty plea issue. The court accepted that pleas entered in the shadow of a genuine and unresolved admissibility challenge carry weight beyond the ordinary utilitarian discount for a plea. The admissibility of ANOM evidence remains contested nationally. In South Australia, admissibility challenges failed at first instance and on appeal, but the High Court granted special leave to appeal on 7 November 2024. In New South Wales, different factual and expert foundations underpin the challenge, meaning the High Court's decision may not be determinative here. With approximately 50 significant Commonwealth prosecutions in NSW effectively on hold, the court found that pleas of guilty in these circumstances represent a meaningful contribution to the orderly administration of justice, warranting recognition beyond the standard discount.

Subjective circumstances and sentencing outcome. Both offenders presented what the court described as "extremely powerful" subjective cases, the details of which are not fully set out in the published extract. After applying a 25% reduction for the guilty plea and a further significant reduction reflecting the ANOM context and the subjective cases, Westwood received a head sentence of 8 years. Robertson, with the additional Schedule offence taken into account, received 9 years. His Honour set non-parole periods at 50% of the head sentence for each offender, expressly noting that a longer period on parole would benefit both the offenders and their families.

Orders Made

  • Westwood: Sentenced to 8 years' imprisonment commencing 10 March 2022, expiring 9 March 2030; non-parole period of 4 years commencing 10 March 2022; first eligible for parole 9 March 2026.
  • Robertson: Sentenced to 9 years' imprisonment commencing 10 March 2022, expiring 9 March 2031 (inclusive of the s 16BA Schedule offence); non-parole period of 4 years and 6 months commencing 10 March 2022; first eligible for parole 9 September 2026.

Key Takeaways

  • The District Court declined to characterise the offenders as "leading members of a criminal syndicate," finding that participation as investors in a single consignment within a broader importation stream did not satisfy that description, and that the Crown had overstated both the sophistication and the financial gain of the offending.
  • A guilty plea entered while the admissibility of the entirety of the prosecution's evidence remains genuinely in dispute nationally attracts sentencing weight beyond the standard utilitarian discount for an early plea, reflecting the benefit to the administration of justice in Australia.
  • The unresolved status of ANOM evidence in NSW is distinct from the South Australian litigation: different expert evidence and factual foundations mean the High Court's forthcoming decision in the South Australian matter may not resolve the NSW admissibility questions.
  • Under the Criminal Code (Cth), a conspiracy to import a commercial quantity of border-controlled drugs carries a maximum of life imprisonment; the court may take additional Schedule offences into account under s 16BA when structuring the overall sentence.
  • Fixing the non-parole period at 50% of the head sentence (rather than the conventional two-thirds ratio) was considered appropriate where strong subjective circumstances indicated that an extended parole period would serve the rehabilitation of the offenders and the interests of their families.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 16A, 16BA, 17A(1)
- Criminal Code (Cth), ss 11.5(1), 307.1(1), 400.3(1)

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- CD & Anor v Director of Public Prosecutions (SA) & Anor [2024] HCASL 297
- Director of Public Prosecutions (Cth) v Garside [2016] VSCA 74
- DPP v Fabriczy (2010) 30 VR 632
- Giles-Adams v The King [2023] NSWCCA 122
- Kim v The Queen [2016] VSCA 238
- Lazarus v The King [2023] NSWCCA 214
- Lee v R (Cth) [2024] NSWCCA 202
- Ngo v The Queen [2017] WASCA 3
- Question of Law Reserved (Nos 1 and 2 of 2023) [2024] SASCA 82
- R v Howe [2017] QCA 7
- R v Irwin [2019] NSWCCA 133
- R v Kassir [2020] NSWCCA 88
- R v King (1978) 24 ALR 346
- R v Li (2010) 202 A Crim R 195
- R v MJ [2023] NSWCCA 306
- R v Nguyen; R v Pham (2010) 205 A Crim R 106
- Totaan v The Queen (2022) 108 NSWLR 17
- Tyler v R [2007] NSWCCA 247