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R v Prospero [2022] NSWDC 26

The offender was sentenced following a plea of guilty to 1 count of attempting to possess a commercial quantity of an unlawfully imported substance contrary to s 307.5(1) of the Commonwealth Criminal Code. Offence related to 793g of pure methamphetamine.  

Nature and Circumstances: Offender believed they were picking up an envelope, not a parcel, of methamphetamine and underestimated the volume they were collecting. Offender was aware of the discrepancy between their belief and the situation at the time of offending. Offending was not indifferent or inadvertent to their offending. The circumstances betokened a level of sophistication and a conscious effort to evade detection. The offender’s ability to exercise reasoned judgment or self-control was not impaired by their intoxication to reduce the seriousness of offending. The build-up of messages on the days leading up to the offending, with its indications of planning and premeditation, is antithetical to the idea of impulsivity in a person whose mental faculties were impaired. Offending fell between low to mid-range seriousness, albeit closer to the low end.  

Mental Condition: Offender developed an addiction to methamphetamine in 2017, which escalated from 2018. Offender was diagnosed with substance use disorder and persistent depressive disorder. Irrespective of whatever ‘insomnia, confusion and agitation’ the offender experienced at the time of offending, they were aware of their conduct. Although the offender developed an addiction during a period when they were emotionally vulnerable, there was at least partly a moral choice made when the offender originally decided to take the drug. The offender’s addiction, to a limited degree, provides part of the context for why they offended but did not diminish their culpability. Mental health professionals should understand that sentencing judges do not outsource to them decisions as to what sentencing options are appropriate since sentencing judges are enjoined by statute to take into account a raft of considerations that go beyond the personal circumstances of the offender.  

Rehabilitation: Prospects of rehabilitation are reasonable. Offender has demonstrated insight into the risks of their drug-taking, is conscious of their responsibility, particularly as a primary carer for their son, and has taken conscious efforts to remove themselves from past negative associations. Offender is still at risk of relapsing into drug-taking due to their criminal past (even if it is fairly distant) and residual emotional vulnerability. Offender’s prospects are to be balanced with the protection of the community.  

Hardship: Specific deterrence is moderated to a limited degree because of the offender’s concerns for their son’s severe mental health issues. Offender is very apprehensive about their son’s recent history of suicidal ideation and attempted suicide. Offending nonetheless occurred in a context where the offender must have known, or be taken to have known, that they ran a substantial risk that if apprehended, they would be subjected to incarceration with the result that they would be unable to look after their dependent son. Exceptional hardship only accepted to enhance the offender’s prospects of rehabilitation and to set the length of their non-parole period. Hardship could not be given greater consideration given the nature and gravity of offending.  

Offender sentenced to 3 years and 6 months imprisonment, with a non-parole period of 1 year and 9 months.
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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