HIS HONOUR: Scott David Austen stands for sentence as a consequence of pleading guilty to a charge that between 12 April 2016 and 9 June 2016 in Sydney in this State he supplied a prohibited drug, namely 31.79 grams of cocaine. That is an offence contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for that crime is 15 years imprisonment with or without a fine. The offender also asks me to take into account on a Form 1, the crime of possession of a prohibited drug, namely 1.6 grams of cocaine with which he was found at the time of his arrest.
At the time of his offending, the offender was an international baggage handler at Sydney International Airport, being employed by a company described to me as Dnata. The first supply of cocaine detected was on 12 April 2016. On that day, the offender left Sydney International Airport in a grey 2012 Holden Commodore station wagon. He was accompanied by another employee of Dnata, Mark Andrew Gambin. The agreed facts record a conversation between Gambin and the offender. It appears that the offender agreed to supply 0.8 grams of cocaine to Gambin for $200. The going rate for such supply at that time in Sydney was $300. Gambin, in essence, apologised to the offender for the offender's giving him such a large discount on the supply of cocaine. That did not appear to worry the offender at all. Shortly after that supply, the offender dropped Gambin off at the Sydney Airport Staff Car Park on Qantas Drive.
The next supply detected was on 15 April 2016. The agreed facts contain an erroneous heading. The amount of supply was 0.8 grams. See [7] of the agreed facts. The heading has 0.3 grams, but that is an obvious mistake. The usual amount of supply for cocaine is 0.8 grams. At about 7.50pm on 15 April 2016, another Dnata employee, Andrew John Flood, was arrested by members of the NSW Police Force at the Duke of Edinburgh Hotel in Enmore. He was in possession of a substance thought to be cocaine, which was later confirmed to be cocaine. At the time of his arrest, Flood was in the company of Gambin, the person to whom the offender had supplied cocaine on 12 April. Five minutes later Gambin was also arrested by members of the NSW Police Force in the same licensed premises. He was then in possession of cocaine. He admitted that he had purchased it for $200. Again, this was another 0.8 grams of cocaine.
The third supply detected was on 30 April 2016. On this occasion, the offender supplied cocaine to Liam Prior, the stable foreman of a leading New South Wales horse trainer. The supply was at Kellyville. On that occasion the offender supplied 3 grams of cocaine, but Prior had only requested a supply of two "deals" of cocaine, which would normally mean two supplies each of 0.8 grams.
On 14 May 2016 at 11.08am the Police intercepted a telephone conversation between the offender and Jack Norman-Pottinger. Norman-Pottinger had been born on 15 July 1991. At the time of this conversation, he was 24 years old. For some time in the past the offender had worked as the head security guard at the Beach Haus nightclub in Kings Cross. Norman-Pottinger worked under the offender as a security guard for perhaps three years. At the time of this conversation, they were no longer working together. The conversation detected is this:
"POTTINGER: 'I just want to ask you a question. I don't want to say too much over the line, but if I have something good, can I put, can I put (...indistinct...) point 6 (0.6)?'
OFFENDER: 'Ah, I wouldn't mate. Nah, no.'"
This conversation is important to a subsequent dealing between the offender and Norman-Pottinger.
The fourth supply occurred on 19 May 2016. On this occasion the offender drove to Kellyville, where he had previously supplied Prior. He drove to Kellyville on this occasion to make another supply to Prior. Again, Prior was only seeking two "deals" but the offender insisted that he take three supplies, and in effect supplied Prior with three grams of cocaine. The offender in oral evidence, when these matters were discussed, indicated that he was looking after his mates, ingratiating himself to them.
On 5 June 2016 the offender went to 155 Missenden Road, Newtown. That is where Norman-Pottinger lived. The police intercepted a large amount of conversation on this occasion between Norman-Pottinger and the offender. Much of the conversation is in code or cant. However, shortly after 9.30pm the offender is recorded as saying this:
"I haven't seen anything this good for ages, you know what I mean, I haven't seen it this good for ages, what are you going to put it in that are you?"
The first part of that comment clearly relates to the quality or purity of the drug about which the conversation was. In essence the offender was telling Norman-Pottinger that the cocaine which he had was a lot better than he had seen "for ages". After some further conversation this was recorded:
"OFFENDER: As soon as I get the money through from the house, I'll pay up front, so that they'll be mine. At the moment I haven't, that's why he, that's why..(indistinct)..I gave him money for two up front the other day.
POTTINGER: All right, works pay me at the end of the week...(indistinct)..come fucking upstairs...come help me fucking, show me what to do.
OFFENDER: Show you what to do, yeah.
POTTINGER: Yeah.
OFFENDER: What are you hitting them with?
POTTINGER: Glucose."
The offender told me that the reference to "the house" was a reference to the William Hill betting agency with whom he had an account, and which, it appears, he had been using like a bank. He was awaiting money from his betting agency in order to pay the supplier to him. Equally, it is clear from the offender's oral evidence that he was supplying to Norman-Pottinger cocaine which had been supplied to him and that the offender was supplying to Norman-Pottinger "on consignment".
A little later in the conversation on 5 June 2016 Pottinger indicated that he would be able to sell drugs by the end of that week when he had "training", which the offender told me indicated to him boxing training. Shortly thereafter this conversation occurred:
"OFFENDER: I think you're better off letting me bag the cunts up for you if you are gunna have a crack, huh?
POTTINGER: Maybe.
OFFENDER: What do you reckon?
POTTINGER: Do you want to bag them and, I'm telling then you're going to have to come through once every few weeks, talk about money man?
OFFENDER: Yeah, yeah, yeah, yeah.
POTTINGER: You want to bag them man bag them?
OFFENDER: Yeah, yeah, that might be better, I'll bag them for you, alright."
There is then further discussion of the offender's bagging drugs for Norman-Pottinger and Norman-Pottinger's obtaining them from the offender. There is then further reference by the offender to the quality of the cocaine which he was supplying to Norman-Pottinger: "Yeah, yeah, I reckon it's mad bro, like I haven't fuckin' I haven't had it like this for ages." A little later the offender said to Pottinger:
"So what I'll do, you just let me know what day to come in then, cause I'm not working again until Friday night, Saturday night or Sunday night."
Agreement then appears to have been reached to make a supply on a Friday afternoon. The conversation recorded ends with this exchange:
"POTTINGER: Can you put a little bit in extra for me, hopefully I have that and then I won't.
OFFENDER: You funny cunt, fucking hell. You know what they say. You don't get high, you don't get by, bro."
Clearly, that was a request by Norman-Pottinger for the offender to sweeten the deal by supplying some free cocaine to Norman-Pottinger. There was no supply at this time. It occurred a little later.
The fifth supply detected was on 9 June 2016. It was a supply to a man described by the offender as Craig Ahrens. The agreed facts supply only the surname. In his oral evidence, the offender provided the first name of the man in question. Mr Ahrens appears to have been staying in the Westin Hotel in the CBD of Sydney. The offender drove nearby in his grey Commodore station wagon. Mr Ahrens asked for one supply. The offender offered him two. The offender insisted that Mr Ahrens take 2 supplies and eventually Mr Ahrens agreed to do so. There were then two supplies. According to the agreed facts, there were 2 grams supplied. This supply was gratuitous. The offender told me in his oral evidence that he had a longstanding friendship with Mr Ahrens and that he made this supply to thank him for past friendship and assistance, particularly in lawful activity. The police investigation included obtaining the CCTV footage from the Westin Sydney Hotel, which indicated that Ahrens was staying in room number 123.
The final supply detected was a supply to Norman-Pottinger on 9 June at 155 Missenden Road, Newtown. The offender supplied to Norman-Pottinger 21.99 grams of cocaine. That was "30 deals" of cocaine. It would appear that the supply to Norman-Pottinger at his home was shortly before 9.58pm on 9 June. About 7.55pm the following day, 10 June 2016, members of the NSW Police Force executed a search warrant at the premises of Norman-Pottinger. According to the agreed facts in the current proceedings, upon entry to the premises Norman-Pottinger was observed sitting in close proximity to the cocaine. An electronic recording of the execution of the search warrant was commenced and that recorded that Norman-Pottinger was cautioned. After the caution, Norman-Pottinger admitted that there were 30 bags of cocaine located inside a red bag in a safe which he had in his wardrobe. According to the agreed facts in the current matter, during the execution of the search warrant by the NSW Police the following were found:
1. 27 small, plastic clip seal bags, approximately 0.8 grams each in weight, each containing an amount of white powder, being a controlled drug, namely, cocaine; all 27 bags were concealed within a "Gastro-Stop" medicine box within a red bag located within the safe in the wardrobe;
2. one small, plastic clip seal bag, containing 0.39 grams of cocaine.
Norman-Pottinger subsequently participated in an electronically recorded interview with a suspected person. During that interview, Norman-Pottinger said this:
"See if I was really legit, on top of it, and planning on staying and properly being a full-on ... I know this is it - off the record, man, but being a heavy-duty dealer I would have fired up the 'burner phone' and tried to do it properly ..."
That appears to indicate that Norman-Pottinger was protesting to the police that he was not an established or heavy drug dealer and that he lacked the ability and/or equipment to be "professional" drug dealer.
On 29 June 2016, the Australian Federal Police executed a search warrant pursuant to s 3E of the Crimes Act 1914 (Cth) at the offender's residence. During the search the Federal Police found the following items of interest:
1. two small, clear plastic clip seal bags, each containing 0.8 grams of cocaine, reasonably suspected to have been unlawfully imported;
2. a number of "Gastro-Stop" medicine boxes;
3. $2020 in cash, predominantly in $100 bills;
4. a copy of NSW Police search warrant executed at the premises occupied by Norman-Pottinger on 10 June;
5. five mobile telephones;
6. two Blackberry devices;
7. a receipt for the purchase of an electronic counter-measures radio-communications device.
The items numbered (a), (c), (e), and (f) are the paraphernalia normally found when the premises of a drug dealer are searched, in particular, the large number of mobile phone devices. The Gastro-Stop medicine boxes and the NSW Police search warrant for Norman-Pottinger's home clearly link this offender to Norman-Pottinger and clearly indicate that it was he who supplied a large quantity of cocaine to Norman-Pottinger. Whatever suspicions the police may have had about the electronic counter measures radiocommunications device, the offender told me on oath that that was a device he had used to try to track the movements of his former girlfriend, Spogmay Tokhi, and there being no evidence to the contrary, I accept that.
The police tested the quality of the cocaine that had been supplied by the offender to Norman-Pottinger. The purity of that cocaine was 33%.
Because it is directly relevant to a number of submissions that have been put to me, it is important to realise the basis on which Norman-Pottinger stood for sentence before his Honour, Acting Judge Garling, on 5 June this year. The facts upon which his Honour sentenced Norman-Pottinger did not contain any actual supply of cocaine. Rather, the facts upon which he was sentenced were merely the facts that the police established from the execution of the search warrant at his premises. According to the facts agreed between the Crown and Norman-Pottinger, Norman-Pottinger was found sitting on the edge of his bed consuming cocaine as police entered his home unit. Police then observed "drug paraphernalia" including syringes and digital scales in his unit. In essence, the police found the 27 deals of cocaine in small resealable bags in the Gastro-Stop box in the red bag within his safe. The police also found small quantities of other prohibited substances which Norman-Pottinger asked the Court to take into account on a Form 1. The other drugs included a small amount of cannabis, a small amount of ecstasy and a raft of drugs which appear to me to be prohibited body building drugs, steroids and the like, which is not inconsistent with Norman-Pottinger's occupation as a personal trainer and as a person who participates in various forms of what are called martial arts. The police also found in his possession $1,200 in cash, comprised of twenty four $50 notes.
The offender asks me to take into account a number of statements made by Norman-Pottinger in his electronically recorded interview which was tendered as exhibit 8 in these proceedings. The only thing that comes loudly through that electronically recorded interview is that Norman-Pottinger was incensed that the police should be asserting that the whole of the $1,200 in cash was drug money, rather than Norman-Pottinger's lawful earnings which he needed to carry on his life.
In short form, Norman-Pottinger's crime was to be in possession of the drugs supplied to him by the present offender and because of the amount of the drugs found in Norman-Pottinger's possession, there was a deemed supply of the drug, as there was no direct evidence of any actual supply. However, Norman-Pottinger did not seek to establish that the drugs were purely for his own use. It is clear that he intended to supply to ultimate users of cocaine the cocaine which had been supplied to him by the present offender with the idea that Norman-Pottinger would make a substantial amount of money. The offender was supplying cocaine for $200 a deal, it could be sold by Norman-Pottinger for $300 a deal. Norman-Pottinger stood to make at least $3,000. It is clear that the offender valued the supply to Norman-Pottinger as $4,000 and would only seek to recover that sum from Norman-Pottinger. He may have been seeking to ingratiate himself with Norman-Pottinger but he was still supplying to him.
I am required to consider the objective gravity, the seriousness of the offence committed by the current offender. The indictable quantity applicable to cocaine is 5 grams. The offender has pleaded guilty in relation to 31.79 grams of cocaine, that is, over six times the indictable quantity. The purity level of the drug was at least 33% and, on one view of the analysis, could be as high as 43%. The level of the purity of the drugs supplied is relevant to the seriousness of the offence. R v Blair (2005) 152 A Crim R 462. However, there is no evidence as to the significance of those levels of purity.
How the offender came into possession of cocaine is unknown to this Court. This is usual: offenders do not disclose their providers because that might cause them to suffer extra-curial punishment, some of which the law would never countenance, such as bashings and death. However, an inference can be drawn that somehow the offender was obtaining cocaine through his work at the Sydney International Airport and, hence, the involvement of the Australian Federal Police in his case.
Be that as it may, it appears from what the offender told me that he rapidly developed a drug habit and because his habit became so big, its costs so large, he decided to buy in bulk, which enabled him to sell at a discount to his friends and acquaintances who were drug users, hence his selling a deal for $200 or supplying gratuitously rather than supplying at the going market rate of $300 a deal. Nevertheless, that does not reduce the criminality of his conduct.
As long ago as 1998, the Court of Appeal pointed out in Reuben Botero that, to make substantial amounts of money from trading in drugs for the purpose of payment of personal or family debts is no less criminal than to make the same amounts for pure profit. That principle must extend to supplying drugs for the purpose of reducing the cost to the supplier of supporting his own drug habit. In R v Hayes (1987) 29 A Crim R 452 Street CJ pointed out that the gratuitous supply of prohibited drugs is not of minor significance, although a commercial distribution of prohibited drugs is more serious.
Here it has been agreed that the offender was in fact supplying drugs to friends, workmates, acquaintances. Here he supplied a large amount of cocaine to Norman-Pottinger. According to the agreed facts he supplied 21.99 grams of cocaine. When Norman-Pottinger's premises were the subject of a police "raid" on the following day, the police found 27 small deals, amounting to 21.3 grams of cocaine. In other words, within a day, Norman-Pottinger had disposed of three "deals" or himself consumed them. Despite the protestations to the contrary by learned counsel for the offender, Mr Hughes, this offender was facilitating Norman-Pottinger setting himself up as a supplier to ultimate users of cocaine. If one calls Norman-Pottinger a putative street level dealer, then the current offender was one step higher up in the hierarchy of drug distribution. The offender essentially admitted that in his oral evidence to me on 21 July last.
At p 13 of the transcript of 21 July 2017, I read to the offender part of the recorded conversation between him and Norman-Pottinger. This evidence was then given:
"Q. …As I have read this all the way through yesterday, it appeared to me that you were supplying cocaine in bulk to Pottinger and Pottinger was essentially bagging it up and selling it on, selling it further?
A. Correct.
Q. Is that what was happening?
A. Correct, your Honour.
Q. So you were supplying in 'bulk' but you were supplying a large amount to Pottinger and Pottinger was breaking it up into smaller doses to sell it further?
A. I guess so, yes.
Q. But in relation to that supply referred to on that page, it was you who bagged up the cocaine, wasn't it?
A. Yes, it was."
On the following page, the offender admitted that he was providing the cocaine to Norman-Pottinger "on consignment. If he moves it, he pays you". On p 19, the offender admitted that the cost to him of the drugs that he supplied to Norman-Pottinger probably $4,000. On p 20, this evidence was given:
"Q. And you say, 'Yeah, what I'll do, I'll go and get that for you and maybe', so you're offering to essentially train him in how to be a street level drug dealer?
A. No, I think we were training ourselves.
Q. But he was asking you for help and you were asking him relevant questions, is that right?
A. Yes, that's correct, your Honour".
It is clear to me that this offender was not only dealing in drugs to friends and acquaintances, but also provided a larger amount of drugs to Norman-Pottinger to set Norman-Pottinger up as a street level dealer. As I have already said, he moved himself one rung up the ladder in the drug hierarchy. His criminality is, in my view, objectively greater than that of Norman-Pottinger.
The longstanding view of the Court of Criminal Appeal can be conveniently found at [10] of the decision of Simpson J in EF v R [2015] NSWCCA 36. Her Honour there said:
"10. I was a party to the decision of this Court in R v Gu [2006] NSWCCA 104, in which Howie J reviewed a number of decisions to the effect that:
'27 …unless there are truly exceptional circumstances present, a full-time custodial sentence ought to be imposed wherever the offender has been substantially involved in the supply of prohibited drugs ...'
Decisions to that effect are legion; one of those is R v Clark (NSWCCA, 15 March 1990, unreported). Nothing in any of those decisions obviates the need for sentencing judges to consider the circumstances of each case individually, including the availability (in a practical sense) of alternatives to full-time custody. The starting point of this exercise is s 5(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('the Sentencing Procedure Act'), which forbids a court sentencing an offender to impose a term of imprisonment unless satisfied, after consideration of all possible alternatives, that no penalty other than imprisonment is appropriate. See the discussion in Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [46]-[57] (specifically concerning sentencing of federal offences, but equally applicable to sentencing under the Sentencing Procedure Act).
11. In R v Cacciola [1988] NSWSC 531; (1988) 104 A Crim R 178, accepting that the proposition that drug dealing 'to a substantial degree' calls for the imposition of a sentence of imprisonment, is a 'policy' or even 'a continuing rule', Priestley JA said:
'...the fact remains that what has been said in Clark...is something that this Court continues to consider is the proper approach to sentencing, always bearing in mind the need to consider every convicted person's case on its own merits and in its own circumstances.'
A little later, his Honour said:
'Speaking of policy I reiterate what I mentioned before that the sentencing rule which emerges from Clark...and later cases is a continuing rule, a rule in the sense that it must be taken into account and given serious consideration by sentencing judges on every occasion when there is a case of this kind, although the sentencing judge must, in the end, always exercise his or her own discretion, but the sentencing policy or rule is not to be neglected and put out of sight, nor should there be excessively liberal interpretation of the phrase 'exceptional circumstances'."
In the following paragraph of her judgment Simpson J pointed out that at the time that such statements of "policy" or "rule" were made there was not the option available to a sentencing judge of an intensive corrections order. However, the circumstances in which an intensive corrections order can be made are limited. It must be born in mind that the maximum penalty for this offence is 15 years' imprisonment. The maximum penalty is of course reserved to a most serious or most grave or most heinous crime of the type being considered. It is not suggested that the current offender's crime is within that category.
However, one must also bear in mind that the amount of drugs might cause the charge to be a greater one. The offender is not charged with supplying either a commercial quantity of the drug or a large commercial quantity of the drug, in which case he would be facing a maximum penalty of life imprisonment. This offender actually supplied cocaine and supplied sufficient quantity of the drug to enable another person to become a drug dealer himself. This is not supplying merely at street level. This is supplying in bulk.
It is the Court's role to apply the law enacted by Parliament. The simple fact is that illicit drugs destroy lives. Anyone who has sat in the criminal jurisdiction of this court in any place, but particularly in Western Sydney, is constantly faced with cases in which young people's lives have been ruined because of their addiction to illicit drugs and the need to obtain money to support the drug habit. Sending 18, 19 and 20 year old people to gaol is not a pleasant experience.
That Scott David Austin ought know of the effects upon people of drugs should be obvious from his brief experience of being incarcerated after his arrest before his release on bail. In his oral evidence he said this:
"To put it bluntly, gaol is a massive eye opener. You see all the shows and stuff like that. Until you actually go there and you're incarcerated you don't realise how ugly it is. It is full of people that obviously have done drugs and you know, you think - you don't think of anything when you're doing it actually, when you're doing drugs because you're caught up in the moment, but when you go there and you walk out of your room and you look down, obviously everyone is affected by what they've been doing, with a ripple effect of, you know, like drugs could be major. But it's just - for me, it was just very scary, it was just - it was a massive eye opener. I was - I think the first week or two maybe I was in shock. It was just a - you know, it was a massive wake up call, you know.
Q. Looking at what you've described as these people who have had to do with drugs, give rise to any appreciation of your actions just by observing them? Had it occurred to you that drugs were so destructive before being in gaol?
A. I hadn't given it a thought, but you just, you know, you see - drugs are still obviously easily accessible in there, you know what I mean. Like they still continue to do it in there the guys, you know. Like for one example I bought a big box of chips and people were trying to bargain the chips off so they could get drugs for them, you know, like. It's just - I don't know, the effect in there is something else in there, you know. Until you actually go in there and have a look and spend time in there you don't realise how bad it is."
He knows that the gaols are full of people who are there because they somehow have been involved with drugs either as users or as users and dealers or being put in the position that the current offender has put himself in of being a user, a dealer, and then supplying to someone else who would be a dealer.
It is not only actual drug crimes that put people in gaol but the vast amount of offences such as breaking, entering and stealing, and armed robbery are generally motivated by people seeking to obtain money or goods to sell in order to support a drug habit. I shall very shortly refer to the offender's personal circumstances, all of which are positive. However, the offender must realise that the Court's role is not merely to encourage his rehabilitation but the Court's role is determined by s 3A of the Crimes (Sentencing Procedure) Act 1999. That sets out the purposes of sentencing. They are these:
"(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community."
I have little doubt, from what I will shortly say, that this offender has already been deterred from offending again because of the predicament in which he has been since his arrest and the predicament in which he currently finds himself. The offender thus far has done everything he can to supply his own rehabilitation, but that is not the sole purpose of sentencing. I have no doubt that there is no longer any need to protect the community from Scott Austen because, in my view, he no longer offers a threat to the community. However, a sentence I pass must deter others from doing what this offender did. The sentence that I pass must have the effect of dissuading other people from supplying and, in particular, setting themselves up to supply other dealers.
I must denounce the conduct of the offender and the denunciation of offending conduct is unfortunately promoted in these days, which ought be days of enlightenment but rarely are. However, the Court's sentence must also recognise the harm done to the community and the harm done to potential victims of crime. Any person to whom a drug is supplied is the potential victim of that crime. The supply of drugs to the community is extremely noxious, extremely harmful, and creates much disorder and disquiet in the community. It induces much crime.
The offender was born on 11 October 1977. He is currently 39 years old. He comes before this court as a man of prior good character. He has not committed any earlier criminal offence. It is extremely rare for any person at the age of 38 to be detected committing a crime when in the past he has committed no crime at all. This is, in itself, unusual. However, the offender must be given the full benefit of his prior good character, the full benefit of spending 38 years in our community without in any way breaking the laws which bind us all together.
The offender was born here in Lismore at the local hospital, however, he is essentially a man from Casino, where his family lived prior to his birth and continues to live. Since the offender's release on bail on 28 July 2016, he has been living with his parents back in Casino. He attended schools at Casino and completed his education at Casino High School, which he left when he was in year 11. He then worked at the hide factory adjacent to the abattoir in Casino for about two years. That is notorious hard, unpleasant work.
He then moved to Sydney and started working in the horse racing industry. He went to live with Mr Ron Quinton, a horse trainer at Randwick Race Course. The offender worked for Mr Quinton as a strapper for about five years. The offender lived in Mr Quinton's household with other stable hands and apprentice jockeys. His hours of work were long, but it was not physically arduous, merely grooming horses, but because the horses need to be exercised each day, both in the morning and the evening, the work was long. He then bought shares in a chicken shop at Clovelly, where he worked for approximately two years. He had another job as well, managing jockeys. He then moved into the security business and worked for a large number of security companies over a number of years. He told me that he worked in security companies for about eight to ten years. He then obtained work as a baggage handler at Sydney Airport.
At some stage, he developed a passion for greyhound racing and, when living in Rosebery, took to being a dog breeder. He owed a champion sire, who provided the offender with a fairly healthy secondary income and lead him to purchase other stud dogs. He told me that at one stage he had three stud dogs with a number of bitches and 68 pups. Since moving back to Casino, after his release on bail, he has a number of greyhounds at the family home, much to his father's dislike, and he has another group of greyhounds, up to 20, on the farm of a friend, who lives in the local area. It is clear that the offender was working part time at Sydney International Airport as a baggage handler and working in the greyhound industry immediately prior to his becoming involved in drug dealing. It appears that his work as a security guard in places such as bars in Kings Cross and the like may have stopped some time prior to that.
The offender attributes his introduction to cocaine to a lady with whom he had a relationship. Her name is Spogmay Tokhi. His relationship with her appears to have been a demanding one. The offender said on oath that he was introduced to cocaine by this woman and that he agreed to take cocaine on the understanding that it would in some way improve his sex life with that woman. The relationship was not only demanding, but in the end very rocky. He told me that there was a major problem on Melbourne Cup Day 2015, that is, in early November 2015. He told me that they ceased to live together on 15 November 2015 and that there was a major upset at Christmas 2015 when the offender's family came down from Casino to spend Christmas with him and the lady in question came to collect clothing from his home and there was a massive and unfortunate interaction between the offender, the lady, and the offender's family. She turned on "a scene". Despite the fact that they stopped living together, it appears that they were still seeing each other on and off. The offender went to Hawaii on holiday with some male friends, leaving Sydney on 29 January 2016 and returning to Sydney on 11 February 2016. The next definite thing I know is the offender first supplied cocaine on 12 April 2016.
Trying to ascertain when the offender first used cocaine and when he first became a regular user of it and when he first might have supplied cocaine was an impossible task. The offender's evidence was "all over the shop." The offender initially said that he had a problem for two months prior to his arrest, however, that would postdate 12 April 2016 and the offender would not concede that he was dealing in drugs prior to becoming addicted to them. It became impossible to ascertain when the offender first used drugs in his sexual relationship with his ladyfriend, whether it was at Melbourne Cup time 2015, whether it was immediately before 15 November 2015, whether it was before or after Christmas 2015 or whether it was before or after the visit to Hawaii. The offender said eventually that it was after the visit to Hawaii and that he rapidly adopted the use of cocaine after his experiment with it.
However, the offender saw a clinical psychologist, Mr Tim Watson-Munro on 19 July 2017, on the day before the commencement of the sentencing hearing. Mr Watson-Munro obtained as part of his history this:
"Mr Austen stated that during the period of his offending he was heavily addicted to cocaine, against a backdrop of the breakdown of a four year relationship with his partner, which occurred in distressing circumstances, when he learned of her alleged infidelity. This had a dramatic impact upon his mood state with him then drifting into a pattern of using cocaine, which escalated to severe addiction in a short period of time. As a consequence he became erratic in terms of his work, as well as his judgment."
The inference to be drawn from that history is that because of his erratic judgment he became involved in drug dealing. When taking a social history Mr Tim Watson-Munro recorded this, after telling me about positive familiar relationships:
"He stated however that his 41 year old sister was diagnosed with breast cancer about six months prior to his arrest on these matters. He conceded that this too, against a backdrop of a family history where his mother has had breast cancer twice, raised his sense of apprehension and vulnerability concerning the family."
The only problem with that history is that the offender's sister was diagnosed with breast cancer in 2012 not at the end of 2015 or early 2016. The effect upon the offender of the diagnosis of his sister with breast cancer appears to have been ex post facto rationalisation either by the offender himself or by Mr Watson-Munro. The important thing, of course, from Mr Watson Munro's initial history is that the offender was devastated by finding out that Ms Tokhi had been unfaithful to him, leading to his resort to cocaine.
When asked when he found out that she was cheating him, the offender said this, "Would probably be around December, so just before Christmas." Then to make matters worse, the offender said that he realised more about her cheating on him sometime after his return from Hawaii.
The offender's evidence about his addiction is completely unreliable. The offender obviously had a large cocaine habit at the time of his arrest. He told me that he was using up to 10 grams a week. That means his expenditure on cocaine would have been, when he was buying in bulk, about $2,000 a week or, when he was not purchasing in bulk, about $3,000 a week.
It is clear from the agreed facts that by the time he is first detected dealing in illicit drugs he was selling at a discount, which means he was buying in bulk at that time. By that time he appears to have been addicted, realised that his habit was a costly one, an expensive one, and that he needed to buy in bulk in order to defray the cost. I can, therefore, accept that by 12 April 2016 the offender had an established cocaine habit. It appears to me that he probably started consuming cocaine at the end of 2015. That seems more likely than merely between February and April 2016. That is only a finding on the probabilities, not beyond reasonable doubt. I am not finding facts beyond a reasonable doubt here and nor really trying to find facts to reduce the offender's criminality or sentence but rather to understand what was happening in this offender's life.
The offender conceded that he had a fairly good cash income from his greyhound racing interest. He admitted that he was not a "broke ass," that is, somebody who did not have the money to buy the drugs but he also said that he was "a business person" and it becomes clear from those statements that he realised that his cocaine habit had become expensive. Therefore, he decided to buy in bulk and, to do that, needed to on supply the drugs, leading to his dealing in them. That, again, indicates some cynicism on his part to his role as a drug dealer, that he is dealing in drugs merely to save having to spend his hard-earned legitimate cash.
Nevertheless, I accept that the offender's being arrested and the circumstances in which he has found himself since have been a major wake-up call. As I have said earlier, I am persuaded that this man needs little by way of personal deterrence and that his prospects of rehabilitation are good. He tells me on oath that since he moved back to Casino he has not consumed any illicit drugs and there is no evidence to the contrary. He has found full-time work, which is positive. He has involved himself in the life of his family and in the community by assisting his sister in a weekly series of games for autistic children known as the Inclusion Games which are played each Saturday at Casino. He has therefore been contributing to our society positively, perhaps to make amends in his own way for the harm that he has done to it.
I accept that the offender's life and future have been put on hold, while he is awaiting the outcome of this sentencing hearing. I am urged by Mr Hughes to consider imposing an intensive corrections order, which was what was considered by the Court of Criminal Appeal in EF v R [2015] NSWCCA 36. Mr Hughes relied, to a large extent, on the sentence passed by his Honour Acting Judge Garling on Norman-Pottinger. His Honour determined that a sentence of two years was appropriate and referred that offender for an assessment for an ICO. That offender did not obtain a favourable assessment from Corrective Services, such that his Honour was precluded from passing an intensive corrections order. His Honour was, to put it bluntly, displeased by the attitude of Corrective Services. His Honour passed a sentence of two years imprisonment, but suspended it pursuant to s 12.
Mr Hughes submitted that I would not pass a suspended sentence in this case, but make arrangements for the offender to serve a custodial sentence by way of intensive corrections in the community. It is clear that Acting Judge Garling imposed a two year sentence, after allowing a discount of 25% for Norman-Pottinger's plea of guilty at the earliest available opportunity. That means that his Honour, in his case, was minded to start his sentencing exercise with a sentence of two years and eight months imprisonment, or a head sentence of 32 months.
This offender's criminality is objectively greater, as I have been at pains to point out. Like Norman-Pottinger, the offender is entitled to a discount of 25% for the utilitarian value of his plea at the earliest available opportunity. That is conceded by the Crown. However, the starting point for this offender's sentence must be higher than the starting point of Norman-Pottinger's sentencing exercise, because of this offender's greater criminality. I have reached the view, on the evidence before me, that I should start this sentencing exercise with a theoretical head sentence of three years imprisonment. That, in itself, is well below the maximum penalty of 15 years imprisonment, but in my view is necessary to reflect the objective gravity of the offender's criminal behaviour. I discount that by 25%, which if my mathematics be correct gives me a head sentence of 27 months or 2 years and three months imprisonment.
As the length of the head sentence is greater than two years, the imposition of an intensive corrections order is not open in this case. I must point out that the methodology submitted to me by Mr Hughes is unsound. I must first ascertain the length of the sentence before considering how the sentence is to be served. Only if the head sentence is two years or less, can I consider the imposition of an ICO or consider suspending the sentence. Those options are not open to me in the current case.
Given a head sentence of two years and three months, I am required to fix a non-parole period. The statutory ratio between the head sentence and the non-parole period would indicate that the non-parole period should be one year and eight months. Here, there are special circumstances to break the statutory nexus between this head sentence and the non-parole period. This offender has spent 30 days in prison already. I have quoted what he said, because it is germane to criminality generally. However, he will find his further incarceration onerous. That is unfortunate, but necessary. He will have little in common with many others in the prison system. That in itself is onerous. He has taken steps, without the assistance of anybody, to promote his own rehabilitation for which he is to be commended. However, in the prison system he can obtain drug and alcohol counselling, which might stop him relapsing to the use of illicit drugs if another personal disaster is experienced by him, such as the infidelity of a partner or some other close personal misfortune. In essence, special circumstances must in some way be related to rehabilitation and in my view, an excessively long period of incarceration will decrease this man's attempts to rehabilitate himself. Furthermore, a longer period of supervision by Community Corrections, after release from custody, will be the best insurance that the offender does remain a law abiding citizen, after his release from custody.
I have determined that the non-parole period should be one year and three months. The one remaining issue is when is the sentence to commence? The Crown sentence summary tells me that the offender was arrested on 29 June and released on bail on 29 July. Typed onto the Crown sentence summary was the result that the offender had spent 30 days in custody. However, Ms Narayan, who appeared before me at the sentencing hearing in Sydney, struck out 30 days and inserted in lieu 28 days. I have been through the exercise twice and invited my Associate to double check what I have done and the period from 29 June to 28 July is, in my reckoning, 30 days, not 28 days.
WIGGINS: Just in relation to that, it may be what caused Ms Narayan to make that amendment. The custodial history that was provided with the Crown bundle indicates the accused was released on 27 July. It may be that 27 and 28 July was incorrect. I'm not sure if there was time in custody prior to being admitted into Corrective Services though.
HIS HONOUR: I mean, the 27th is the different to the 28th and it still makes - 27 will make it 29 days, rather than 28.
WIGGINS: It does appear confusing, your Honour. That's all I can provide and assist.
HIS HONOUR: Mr Korn, can you ascertain from your client whether he was released on the 27th?
KORN: Yes, your Honour. My client isn't able to offer any assistance, he's struggling to remember himself.
HIS HONOUR: I have to go on the written record from Corrective Services.
I have now been told that the Crown sentence summary was incorrect in that the offender was released on bail on 27 July 2016, and that accords with the records of the Department of Corrective Services. Between 29 June and 27 July is in fact a period of 29 days. It is therefore necessary for me to backdate the sentence 29 days from today. That means that the sentence could commence on 28 July 2017.
KORN: I previously used the JIRS calculator and I'm just on my laptop, your Honour, and I'd worked out 28 July if 28 days had been backdated but--
HIS HONOUR: No, 29 days was calculated.
KORN: Because it's now 29, I don't previously--
HIS HONOUR: I did it last night on the basis of 30, you see and 30 backdated was going to be the 27th. So 29 should make it the 28th.
KORN: Yes, your Honour.
HIS HONOUR: Is that right?
KORN: I'll trust your Honour. As far as I can work out, I always find this one of the most difficult parts of backdating is the dates.
HIS HONOUR: Yes, 28 is correct, according to my Associate.
KORN: Sorry, your Honour, we're just having a brief amount of discussion at the Bar table, trying to clarify the date issue, while it's only one day--
HIS HONOUR: It's backdated 29 days from today, right? On my calculations it should start on 28 July.
KORN: Yes, your Honour, if you - it's 25 days into August and then--
HIS HONOUR: No twenty--
KORN: We're 25 days into August, so four days from July, would take it to the 27th, then the 28th, 29th, 30th and 31st would be the four days. So that would make 29, your Honour. I've been cheating by using the JIRS app that's on the website.
HIS HONOUR: Hang on, I've got twenty - but we go to 31st, 30th, 29th, 28th, that's four days.
KORN: Yes, your Honour.
HIS HONOUR: 28, 29, 30, 31, and there's 25 days to date, so that's 29 days.
KORN: Yes, your Honour.
HIS HONOUR: So it starts on the 28th.
KORN: 27th, your Honour.
HIS HONOUR: No, that gives him an extra day. That's 30 days backwards.
KORN: Sorry, your Honour, I'm not sure where that day would start then. In that case, I would think if the day started from the start of the day, it would be the 27th and then the 28th, 29th, 30th and 31st would be considered custodial days.
HIS HONOUR: The 28th, 29th, 30th and 31st are custodial days, plus the five days to date. That means it starts on the 28th.
WIGGINS: I think the issue is we're double counting today, because 25 days of August, so today is counted, but also he's in custody today for--
HIS HONOUR: I see, yes, so it's 27 again?
WIGGINS: Yes, please, your Honour.
HIS HONOUR: So everyone is happy it starts on the 27th?
WIGGINS: Yes, your Honour.
KORN: Yes, your Honour.
HIS HONOUR: Scott David Austen, on the charge that between 12 April 2016 and 9 June 2016 at Sydney in this State you supplied a prohibited drug, namely 31.79 grams of cocaine. You are convicted. I sentence you to imprisonment. I have set a non-parole period of one year and three months, commencing on 27 July 2017 and expiring on 26 October 2018. I impose a further period of imprisonment of one year to commence upon the expiration of the non-parole period and expiring on 26 October 2019. The total sentence is therefore two years and three months, comprising the non-parole period and the balance of the sentence. I have found special circumstances. You are to be released to parole at the expiration of the non-parole period. In passing that sentence I have taken into account the matter on the Form 1.
HIS HONOUR: Any other orders sought?
WIGGINS: Just a drug destruction order in relation to the drug, the Form 1 drug possession charge.
HIS HONOUR: Yes, I order that the drugs, the subject of charge H6290555, sequence 4, be destroyed.
Any other orders sought?
WIGGINS: No, your Honour.
KORN: No, your Honour, thank you.
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Decision last updated: 06 March 2018