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R v Hay; R v Cross [2023] NSWDC 234

See full judgment: Austlii.

The offenders were sentenced following pleas of guilty to 1 count of attempting to import a marketable quantity of border-controlled drugs contrary to ss 11.1(1), 11.2A and 307.2(1) of the Commonwealth Criminal Code. Offending related to approximately 697 grams of pure cocaine.

Nature and Circumstances: The role of Cross was more significant because they were the more dominant organiser. In characterising the roles of offenders, Cross should be seen to be the main organiser with Hay a willing participant acting at the direction of Cross. The total of the pure cocaine involved in these offences is 697 g. That plainly is well in excess of the minimum amount required for marketable quantity but also substantially less than the maximum. 

Antecedents: Each offender has minimal criminal history. They were both convicted of a Commonwealth offence in 2012/2013 of dealing in proceeds of crime for which they were both convicted without sentence being passed and released on a good behaviour bond. They were also both convicted in 2014 of possessing a prohibited drug. In addition to those two offences Cross has one further drug possession matter from 2007. It is of concern that this is now their third occasion of being jointly engaged in criminal activity. Nevertheless, the offending is minor and only minimally detracts from the leniency they would otherwise receive for a clear record.

Mental Condition: At the age of nine, Cross suffered sexual abuse by an after-school carer. During adolescence their home varied between mother and father. When with their mother they were pressured into selling drugs. Cross became addicted to cannabis. Cross reported feeling depressed throughout their life and that they managed stress with substance use. They continue to suffer distress as a result of the sexual assault including flashbacks. It is suggested that drug use was used to avoid the memories. Offending occurred when Cross had a strong addiction to cocaine, and they were offered free cocaine for participating in the import. Psychologist suggests that Cross presents with symptoms consistent with substance use disorder and post-traumatic stress disorder. Hay was sexually assaulted at 14, and later suffered incidents of a further attempted sexual assault and being attacked by a cricket bat. Hay has used cannabis since the age of 14 inconsistently. It was in their late 20s that cocaine use began on an increasing scale. Use was almost daily by the time of the offending. This led to financial stress.

Rehabilitation: Cross’ prospects for rehabilitation are good. The most significant risk factor for reoffending would be relapsing into drug use, which based on the subjective material may well be avoided, risk of reoffending is lower than medium. That said it goes almost without saying that should Cross return to drug use then reoffending would be more than likely. Hay has not used any illicit substances since entering custody now more than 18 months ago. Upon their release on bail, Hay enrolled in and completed an online drug rehabilitation program at the Buttery. Hay has a low risk of reoffending.

Cross sentenced to 3 years and 4 months of imprisonment with a non-parole period of 20 months. Hay sentenced to 3 years of imprisonment to be released after 7 months and 5 days on recognizance of $500.

The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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