STATE OF TASMANIA v KYLIE ANN DURBAN 17 DECEMBER 2021
COMMENTS ON PASSING SENTENCE PORTER AJ
Ms Durban, the defendant, has pleaded guilty to trafficking in a controlled substance, namely methamphetamine, between 22 February 2021 and 3 March 2021. The facts are that in December 2020, a police taskforce was set up to investigate the importation of crystalline methylamphetamine (Ice) into Tasmania, the primary focus being on a woman who I will simply identify as AB. It is asserted AB directed a syndicate, and would engage couriers to carry Ice into Tasmania, distribute it to purchasers, and return the cash to AB interstate. On the night of 22/23 February 2021, the defendant and another woman, MY, travelled to Tasmania on the Spirit of Tasmania, using a black Holden sedan registered to the defendant. Later on 23 February 2021, AB flew from the Gold Coast to Hobart and was collected in the Holden vehicle by the defendant. Shortly afterwards, at about 2.20 pm, the pair went to an apartment in Hobart in which a surveillance device had been installed. At about 4.40 pm AB is heard to refer to her “meth lab over here”. In the hours that followed, recorded conversations involving the defendant, AB and MY, revealed the following:
- MY saying she wanted to be paid early,
- discussion about an unknown male moving 2 kilograms in 5 days – said to be a reference to Ice with a street value of approximately $1,900,060.00,
- the defendant and MY being paid $20,000.00 each, with AB saying “there is $3,000.00, so I owe you $17,000.00” – which the State says is for the defendant’s work as a courier,
- discussions about “double bagging” and using Vaseline – said by the State to be used to separate packaging layers,
- discussions about putting things in suitcases and arranging things so that the Ice did not fall out, and about packaging drugs and cash and the ways in which law enforcement bodies can detect drugs concealed in cars.
In the early evening of 26 February 2021 the defendant was observed by way of the surveillance device wearing gloves, and then a cash counting machine was heard to operate. AB asked what was the total weight of “returning stock” was, with defendant responding, “There it is.” AB said “return stock 750 plus 529….1289…put all those shards in a bowl, it doesn’t matter”. From then until early in the afternoon of 3 March 2021 surveillance revealed AB she would drive herself back and then send another driver over. She said “you will be taking all the cash back, this one is your pay and this one is my pay, it all has to go back to the Gold Coast; that is how we get paid”. Further discussions revealed that the defendant and MY intended to take drugs back to the mainland as well as a quantity of cash which, during the morning of 3 March, was retrieved by the defendant and MY from under the seat of a car parked in another suburb. Intercepted calls revealed that at about 1.00 pm the defendant and MY left for Devonport for the evening’s sailing. At about 5 pm they were intercepted at Deloraine in the Holden sedan. The vehicle was searched. In a suitcase police found 5 cryovac bags each containing a quantity of cash. The total, based on what was written on each bag, was $390,000.00. There was a further $9,000.00 cash found in a shoe of the defendant’s in the boot of the car. During this time, AB was attempting to make contact by an encrypted messaging app, with the communications evidence clearly showing her concern about what was happening. The defendant and MY were arrested. The search of the vehicle was resumed the next day, during which three separate packages of Ice were found, with a total weight of 1,297.4 grams. It is the State’s case that this amount was the amount referred to as “returning stock” in the conversations on 26 February. It was packaged in multiple cryovac bags with multiple layers of plastic cling wrap and a layer of Vaseline between the cling wrap. In a spare tyre, 8 further cryovac bags of cash were found with an apparent total of $358,000.00, The cash total is $762,465.00. A later search of AB’s home in Queensland revealed a diary that showed details of values at which Ice was commonly being sold. They are 0.1 of gram – $100.00; 1 gram – $1,000.00; 14 grams – $4,700.00 and 28 gram lots – $9,000.00. Assuming sales in the lowest quantity, there was a potential to make $1,297,400.00 from this amount. If sold at the other end of the scale, the potential value was $417,021.00. When interviewed on 4 March, the defendant admitted it was her car but she did not wish to explain her involvement with the cash or the drugs. She added that she had come to Tasmania with MY, someone else drove her car for a couple of hours on the morning that the police intercepted them, and she packed the car after the friend had borrowed it. She thought the extra suitcase was MY’s and that she did not really want to talk anymore; she realised “how much shit” she was in. On 16 July 2021, at her request, the defendant was further interviewed and made admissions about AB arranging for her to drive to Tasmania. One trip was initially booked but the defendant pulled out of the arrangements. AB persisted in contacting her, with ultimately another arrangement made for the defendant and MY to take Ice to Tasmania, for which she would get $15,000.00, with MY getting $5,000.00. She said that she did not think she was taking any drugs back, but took the cash back and also the drugs she felt she could not refuse. She provided much detail of what had happened in Hobart before the return trip to Devonport. That included being involved in a number of drug drop off and money collections. She said that she had made a stupid mistake and did the wrong thing in a hard time in her life. The State’s case is essentially that the defendant travelled with MY to Tasmania for the purposes of importing and then distributing drugs, the amount of which is unknown, but with cash to be returned, and then Ice was also taken back on the return trip, apparently because of purity issues or something to that effect. The State says the amount of cash and the quantity of the product being returned provide an indication of the size of the operation. The defendant has been in custody since 3 March 2021.
The defendant is now 49 years old. She has a recorded history of offending in New South Wales which, ignoring Children’s’ Court matters of which there are a few, involve dishonesty offences. There is an assault occasioning actual bodily harm in 2001, but after that, nothing of any significance. There is certainly no recorded history of drug offending of any type in NSW or here. However, I was told her experience with illicit substances started at the age of 11 when introduced to cannabis by the step-father of one of her school friends. Regrettably, she was sexually assaulted by that man. Truancy from home and school followed with an unsuccessful period in foster care. She had no stable home environments and essentially became homeless from about the age of 12 and living on the streets. She had a child when she was 16; that child was raised by her parents. During her youth she served a number of periods of detention. Ultimately, after reconnecting with the father of her child, they married and had three more children. They separated in 2017. During that period the defendant obtained qualifications and worked as a youth crisis worker, an occupation she found enjoyable and fulfilling, as she was able to bring to bear her own experiences as a homeless youth in assisting others. The genesis for this offending can be traced back to the attempted suicide of one of her sons when he was 15. The defendant took three months off work to support him, and withdrew her superannuation to provide for the family. The son’s mental health difficulties proved very difficult to resolve. Stressors from her earlier life and the difficulties being faced caused the defendant to resort to using methylamphetamine in order to cope. Her savings having being expended, she was evicted from her home in November 2020. There was a downward spiral from there with increased alcohol consumption and continued use of methamphetamine. She had met AB as a teenager but had not seen her until more recently. Some contact was maintained and it appears AB realised that the defendant being in financial hardship might be amendable to a job offer. At first, the defendant was told it only involved driving to Tasmania, collecting some money and returning it for which she would receive $5,000.00. That proposal was considered but rejected. I was told that AB continued to contact her asking her to reconsider. Counsel did not put this on the basis that there was any sort of threatening pressure but it was the persistence during the time when the defendant’s personal circumstances were getting more and more dire that caused her to change her mind. In January 2020, AB increased the offer to $20,000.00 and promised the defendant assistance in paying off her debts. It was put that in the defendant’s very vulnerable position, she agreed. She makes no excuses for what followed and about which there is no real dispute. The defendant and MY drove to Tasmania and acted consistently with AB’s instructions, generally as outlined in the facts I have stated. On the morning of the day they were due to return, AB took the car away for several hours. I was told that when it was brought back she told the defendant a tracking device had been installed and that there were drugs in the spare tyre. She was warned that if anything was said she and MY’s families would be hurt, disclosing at that point that members of outlaw motorcycle gangs were involved. The defendant felt that in all of the circumstances she had no way out of the situation. Counsel noted that in her second interview and later engagement with investigatory authorities she has been of significant assistance, and understands she is likely to be called as a witness. Since being in prison she has involved herself in a peer-support program in the prison to assist other inmates. There is no suggestion she had previously been involved in the sale or distribution of illicit substances. I am told she deeply regrets her decision to be involved. I accept that the defendant has insight into her behaviour and appreciates the gravity of the offending in terms of the potential impact on the community at large. She considers that what she did is entirely contrary to the vocation in which she had been engaged – that of helping people who had been affected by housing instability, drug abuse etc – and through her counsel says she wants to apologise through these sentencing proceedings to the community as a whole.
Crystalline methylamphetamine is a highly addictive substance that causes great harm to individuals and to the community generally. It is a source of very considerable ongoing concern. Its use and trade generates a great deal of other criminal activity, especially serious crimes of violence and dishonesty. As has been made clear in the past, people who set out to make money from commercial dealings should expect to go to prison for long periods. General deterrence and condemnation are very weighty factors in the offending of this type. Although I was told the defendant was a user, it was not suggested that she was in the grip of an addiction, desperate to fund supplies. Having said that, I accept the defendant was vulnerable and in very difficult financial circumstances, part of which may have involved a drug debt. But this was a considered decision to become involved in a significant enterprise designed to earn money. As the defendant’s counsel accepted, without people who are willing to carry drugs, drug trafficking operations would be fare harder to conduct. I take into account the defendant’s plea of guilty and her degree of assistance to the authorities. It entitles her to a discount in the order of about 20% on what would otherwise be the appropriate penalty.
Ms Durban, I have set out the facts and what I see to be the relevant factors to be taken into consideration. You were not of course the drug entrepreneur but a courier although, I should say, a fairly active one on the trip you made. The amount of money and drugs involved was very considerable. As I have, I said I take in to account your personal circumstances, and your plea of guilty and cooperation. Part of your personal circumstances is that you will have to serve a term of imprisonment in a different State to the one in which your family is located. You are convicted and sentenced to 2 years’ and 10 months’ imprisonment to commence on 3 March 2021. I order that you not be eligible for parole until you have served one half of that sentence.
By consent of the parties I make an unexplained wealth declaration pursuant to s 142(1) of the Crime (Confiscation of Profits) Act and order the defendant pay the sum of $762,465 to the State of Tasmania being the amount seized by Tasmania Police on 3 and 4 March 2021 from the black Holden sedan registered number EC30J. There will be an order that the defendant pay the costs of analysis of $1,969.00.