EF v R

District Court of NSW|2017-05-22|Before: Smart AJ, Wood CJ

Introduction

In mid - 2013 Graeme McGilvray chose to involve himself in the supply of methyl amphetamine. Agreed Facts now before the court indicate that he acted as body guard to Daniel Turner when Turner supplied drugs to a police Under Cover Operative (UCO) on 22 May 2013, 13 June 2013 and 19 June 2013: Exhibit A tab2. McGilvray was not involved directly in any transaction but he knew what was going on and was prepared to support Turner if necessary. In reward, the Agreed Facts note, Tuner paid for him to visit prostitutes.
Turner continued to supply drugs. He was eventually caught. On 2 August 2016 Judge Conlon SC imposed on him an aggregate sentence of 4 years six months imprisonment. His Honour indicated that the sentence that would have been imposed for offences that correspond to McGilvray's matters had a separate sentence been imposed, was 2 years: s 53A(2) (b) Crimes (Sentencing Procedure) Act 1999. It is important to note that Turner received a reduction in the otherwise appropriate indicated sentence of 50% to reward his early guilty plea and an offer to assist authorities: s 23 Crimes (Sentencing Procedure) Act 1999. In addition the three transactions saw Turner charged with a s 25A Drug (Misuse and Trafficking) Act 1985 offence - maximum penalty 20 years imprisonment. Judge Conlon sentenced him on the basis that he was only a driver who received no cash reward.
McGilvray did not continue to supply drugs. Under the influence of his new partner he walked away from his friend Turner and drug supply activity.
McGilvray was arrested but was discharged at committal. In September 2015 an ex-officio indictment was presented. Initially a plea of not guilty was entered and the matter was listed for trial. On 22 May 2016 leave was given to present a fresh indictment and a guilty plea was entered.
The offence for sentence rolls up the three supplies. It charges that McGilvray knowingly took part in the supply of 167.65 grams of methyl-amphetamine between 22 May 2013 and 19 June 2013. The maximum penalty for that offence is 15 years imprisonment and or a large fine: s 25(1) Drug (Misuse and Trafficking) Act 1985.

Objective seriousness

As the offender's partner noted in her affidavit (Exhibit 1 -3) "ice" has caused considerable harm to the community in Nowra where they live. She knows what drugs do to families. She does not want drugs around her children.
The illicit trade in drugs is one of the principal sources for crime in the community. It is not just the sale of drugs; it is the crimes that are committed by those who seek to obtain funds for drugs and the destruction to family life and personal life that drugs cause. This offence was committed without regard for public safety and for a brief period McGilvray was in involved in an organised criminal activity
It is for those reasons that Parliament has fixed very high maximum penalties. It is for those reasons that the court regularly imposes very high penalties in an attempt to deter anyone tempted to involve themselves in the drug trade and force them to think again.
Harsh sentencing applies to all those who engage, at any level, in drug supply. Absent the involvement of couriers, drivers and body guards, drug distribution networks would simply collapse: R v Shi [2004] NSWCCA 135 Wood CJ at CL.
The offender was not to know that the buyer was an undercover operative and that the drugs would be seized and destroyed. The Court of Criminal Appeal has said this fact is of "limited relevance;" R v Chan [1999] NSWCCA 103 Smart AJ at [21] R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 at [172]
As the Court made clear in Way, what is relevant to an assessment of McGilvray's moral culpability is his motivation and understanding. Here he expected a very modest reward. He acted with the understanding that the drugs would be resold. He did so heedless of the consequences to those who purchased and consumed them, or of the fact that users commonly resort to property offences to feed a habit, leaving other victims in their wake. That the drugs were not distributed was not due to any act of the offender: Way at [172] and [181].
In R v DW [2012] NSWCCA 66, Hulme J accepted that where the authorities prevented drugs from being disseminated into the community, this in no way mitigates the subjective criminality of the offender. However, he went on to say that "if the involvement of the authorities prevents the transaction from resulting in harm, it is illogical not to afford that fact appropriate weight just as in the converse situation one would take account any damage that was a consequence of the offending." at [117]. I agree, the criminal law is concerned with the consequences of offending.
That said, the role of the offender remains relevant to my assessment of the objective seriousness of the offence.
Here for little reward McGilvray agreed to help a friend by acting as his body guard. That actual assistance was not required but McGilvray was there. He was not so far as the facts reveal aware of the amounts of drug involved but he knew what was happening and he went along with it on three occasions over a relatively short period.
So serious was McGilvray's offending he accepts that a custodial sentence of some length could be imposed so as to meet all the various and sometimes contradictory purposes of sentencing.

Other cases

The consistent application of principle requires careful consideration be given to other decisions of this and particularly appellate courts. Proper recognition of the serious social implications of drug dealing has led to absolute or imperative and prescriptive statements by the Court of Criminal Appeal about the need for full time custody. However, as the High Court made clear in Hili v The Queen; Jones v The Queen (2010) 242 CLR 52, each offence and each offender is different. Judges must balance a complexity of sometimes competing or contradictory factors that exist in the individual case: Robertson v R [2017] NSWCCA 205

Maximum penalty

The maximum penalty of 15 years imprisonment requires careful attention. It provides a sentencing measure to be balanced with all other relevant factors. Maximum penalties also invite a comparison between the instant case and the worst case, That said it is not appropriate here to look first to a maximum penalty and then proceed by way of making a proportional deduction from it: Markarian v The Queen (2005) 228 CLR 357 at [30] and [31].

Guilty Plea

A sentence after a plea of guilty generally attracts a lower sentence than would otherwise be imposed. A guilty plea is a manifestation of remorse or contrition. A guilty plea has utilitarian value to the efficiency of the criminal justice system.The timing of the plea is significant to that later assessment: Thompson v R (2000) 49 NSWLR 383. While often only 15% is allowed after the matter gets to the District Court, here, given there was an ex-officio indictment this low level of reduction would undervalue the utilitarian value of what occurs between arraignment and trial and overvalue what occurs earlier: Mooney v R [2016] NSWCCA 231. I propose to allow 20% for the guilty plea's utilitarian value.

Parity

This sentence must also be determined by having regard to the circumstances of the co-offender and the respective degrees of culpability of them both; "like must be compared with like." Different personal and criminal histories may justify a real difference in sentences: Postiglione v The Queen (1997) 189 CLR 295.

Delay

The delay in bringing this matter before the court is of importance. It allowed the offender the opportunity to establish a new life and demonstrate rehabilitation. Sentencing for a stale crime calls for a considerable measure of understanding and flexibility of approach.: R v Todd [1982] 2 NSWLR 517 at 519; R v Blanco (1999) 106 A Crim R 303; Mill v The Queen (1988) 166 CLR 59.

Criminal record

McGilvray has a criminal record in NSW and there is a recent matter from Western Australia, which I accept involved a temporary aberration in a time of stress. While he is not entitled to the leniency often shown first offenders, it is not otherwise significant. He spent 137 days in custody. He must have the benefit of that time: s 24 (a) Crimes (Sentencing Procedure) Act 1999.
McGilvray's Affidavit was before me as Exhibit 1 tab 2. He was not offered for or required for cross-examination. I believe, based on all the material before me, that he was not dissembling and in his affidavit sought to provide a picture of his life in 2013 and now. He accepts his actions and their wrongness and displays appropriate contrition, regret and remorse.
He has established himself in the local community. He has a small business, a family and a home. A baby is due in December. He is the sole breadwinner. He has sensible and pro-social plans for the future. He has a supportive wife who does not tolerate drug use. Other references speak to his good qualities.
He puts down his offending to loyalty to a friends and lack of thought due to his then steroid use and the urges that resulted from it. Drug use cannot excuse or mitigate offending. It does however enable me to understand why he did what he did. That he has dealt with the problem allows for a favourable conclusion regarding his prospects for the future
Dr Ashkar, psychologist, (Exhibit 1 tab 1) sets out McGilvay's history and background. It is uncontroversial. Dr Ashkar notes he is now stable and is not inherently anti-social; rather he presents as a man of strong intellectual resources appropriately focussed on pro-social activities
The pre-sentence report, Exhibit C, sets out the history confirmed by other documents and references. It concludes, McGilvray is at low/medium risk of reoffending and that he was suitable for community service. The author did not believe McGilvray would benefit from supervision given the low level of risk compared with those normally supervised by Community Corrections. Despite that low level of risk I formed the view that an Intensive Corrections Order (ICO) was an option that should be explored. The ICO report is now before me as Exhibit D. It indicates he is suitable. In the assessment of Community Corrections:
"Mr McGilvray is a father who appears to benefit from a supportive and prosocial stable relationship with his partner and that of his parents and siblings. The offender has a number of protective factors that could assist in his rehabilitation in the community."
While an ICO reflects a significant degree of leniency an ICO still involves a substantial punishment. A punishment that here can meet the objects of sentencing. An ICO involves a sentence of imprisonment. It is not a light sentence: Whelan v R [2012] NSWCCA 147. Even in cases of drug supply an ICO ought to be given full, fair and genuine consideration: EF v R [2015] NSWCCA 36.
An intensive correction order: Can substantially contribute to the punishment of an offender, including where condign punishment is warranted. It is intended to be, and ordinarily will be, burdensome. The conditions are onerous. Any breach is likely to have dire consequences. It will intrude into an offenders life requiring services to the community on an unpaid basis. It will be a constant reminder of the evils of criminal conduct. It is an appropriate adjunct to rehabilitation. From the legal point of view that is a very significant aspect of the order. This measure is designed to provide a severe punishment just short of imprisonment but more severe than a community-based order.

Synthesis

Harsh penalties and a return to prison can significantly interfere with a person's demonstrated progress toward rehabilitation. The protection of the community is contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits: Blackman v R and Walters v R [2001] NSWCCA 121
Objectively a sentence of between 3 and 2 years 6 months would have been required here. But I must allow for the guilty plea and the more than 4 months pre-sentence custody served. This means a sentence of less than two years can be imposed. In all the circumstances a sentence of 1 year 10 months seems appropriate.
Mitigating factors must be given appropriate weight, but must they not be allowed to lead to the imposition of a penalty which is disproportionate to the offence. I must take a step back and ask would an ICO meet the purposes of sentencing?
Ultimately sentencing must focus on protection of the community. In most instances of drug trafficking this is done by imposing heavy gaol sentences in an attempt to deter the offender and others from committing like crimes. However, the community is also served by the successful rehabilitation of offenders. The judge must balance general purposes of sentencing but they pull in different directions. Sometime one factor can be decisive. Here that factor is the community interest in McGilvray's successful reintegration into the community. In all the circumstances I believe an ICO will meet the purposes of sentencing.

Orders

Grahame McGilvray you are sentenced to a term of imprisonment of 1 year and 10 months to be served by way of intensive correction in the community in accord with the Crimes (Administration of Sentence) Act 1999. That ICO is to commence today on 23 October 2017 Conditions: (As prescribed by Regulation 175 Crimes (Administration of Sentences) Regulation 2008). To report to the Nowra office of Community Corrections NSW within 7 days. Registrar to give written notice of the order to the offender and the commissioner Community Corrections as soon as practicable: s73 Crimes (Administration of Sentences) Act 1999.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 December 2017

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