R v Bagnall

SUBJECTIVE MATTERS

1. The offender gave evidence on sentence, and tendered on his behalf are character references from his sister Debbie Lee Jones, dated 6 September 2021, and his daughter Kara Williams, dated 23 August 2021. In addition, two psychological reports have been tendered, each under the hand of John Nolan, psychologist, but most relevant to these proceedings is one dated 29 September 2021, but together with that has been provided a previous report in relation to previous offending dated 15 March 2011.
2. In addition, the Court has available the offender's criminal history, a New South Wales Department of Corrective Services Conviction, Sentence and Appeals Report, and a Sentence Assessment Report under the hand of Kevin Howell, a Community Corrections officer at Kempsey, dated 7 September 2021.
3. Subjective matters are drawn from that material.
4. The offender was raised by his mother and father in the Nelson and Anna Bay/Port Stephens area. He left home at the age of 14. His elder sister also left home at the age of 14. At about the same time, his parents separated. He is said to have been raised in a frightening household, controlled by an alcohol abusing, physically and sexually violent father. He has three sisters, one older and two younger. His sisters are said to have been successful in life, having gone to university and studied up to at least a master's degree level. He divorced from his first wife, with whom he had three children, two daughters now aged 32 and 24, and a son now aged 27. He describes having close bonds with his children.
5. As I have previously said, he at least appears to have been an unhealthy influence on his son Jason, who he clearly exposed to the use of prohibited drugs, and indeed, it would seem unlikely that his son was not aware of his father's involvement in production and distribution of prohibited drugs.
6. After leaving home, he lived with an uncle in Melbourne for a period of time where he completed school to Year 10. After school he worked at various labouring jobs until finding his first major employment in Newcastle for a firm that worked for BHP. He commenced as a labourer but picked up skills such as welding and fabrication techniques. He was so employed from 1996 to 2000, when he bought into a fishing business in Newcastle, before moving to Nambucca Heads. He has held a commercial fishing licence for open trap line, but has sold that license, although he still holds an estuary license.
7. As I will later refer to, he was in prison for a period of two and a half years, commencing in December 2011. After being released, he is said to have worked for five years in construction during the building of the Bowraville Dam but became unemployed at the end of the project. That would appear to indicate from the material before me that he has, in effect, been unemployed since 2016 up to the commission of the offences.
8. In 2005 he was involved in a motor vehicle accident which caused him back pain for some time, but it is apparently now resolved. He has in recent times, while in custody, been diagnosed with skin cancer, which he described to the psychologist as being an aggressive form, and he has had basal cell carcinomas removed from the left side of his chest and the right side of his neck. There is apparently some prospect of his requiring radiation in the future.
9. Psychologist-administered tests estimated his intellectual capacity as being in the average range. He provided a history of commencing cannabis use at the age of 14 and increasing its use and the use of alcohol when he suffered the back injury in 2005. In 2016 he is said to have commenced using methylamphetamine, and at the time of the offence, to using at a level of 1 to 1.5 grams per day, at a weekly cost of approximately $1,000. He said that he would typically be awake using ice for periods of three to five days, when he would then sleep for approximately 20 hours, before then repeating the cycle. While using methylamphetamine he said he did not care about maintaining any meaningful contact with his family, and apparently at the time his family distanced him.
10. He also claims that at the time of his arrest, he had owed some $12,000 to his drug dealer. He did not nominate the drug dealer, but that would appear to be the person from whom he sourced the methylamphetamine, the 188.92 grams. As to his having been arrested on 6 November 2020, he has been in custody since that time. He indicated to the psychologist that during that time he has completed a number of programs, particularly in relation to drug addiction; "Connect - Emotions and Mindfulness"; forklift driving license; Certificate II in Chemical Handling, and Certificate III in Chainsaw Operation and Commercial Cleaning.
11. I note that in referring to his cultivation of cannabis, he informed the psychologist that he was not a good grower, that he was trying to establish 50 female plants because they were the saleable product, and that he described his cannabis crop as being "10 centimetres tall and already going yellow".
12. As to the amphetamine possession, the smaller separate amount which is not otherwise identified, but presumably is that referred to in Sequence 2 as being for his personal use. The larger amount, which would appear to be the 188.92 grams referred to in Sequence 1 as being for delivery to his dealer. He claimed that in relation to that amount, he was acting as a courier in order to pay off the $12,000 that he owed.
13. I note that in his evidence on sentence, consistent with what is contained in the psychologist's report, the offender, in my view again attempted to diminish the significance of what he was doing by referring to the crop as being less developed than the agreed facts state. As I have already referred to, in my view, he was pretending that he was not aware of the full value of 188.92 grams until prompted by the prosecutor to accept the range of $50,000 to $70,000.
14. The evidence before me indicates that the offender has been using methylamphetamine for a lengthy period. He had a habit which he claims was $1,000 per week using 1 to 1.5 grams per day. His premises contained a number of admitted tick lists, but unfortunately, they have not been provided to the Court, so it is not possible to be able to infer from the weights, prices, and any other references as to whether they relate only to cannabis, or to cannabis and methylamphetamine, or to cannabis, methylamphetamine, buprenorphine, and cannabis oil. Valid inferences can usually be drawn from the nature in which weights, quantities and prices, or amounts paid are listed; however, that has not been supplied for the sentencing procedure. At least in part, his cannabis crop appears to be reasonably well developed.
15. He is said to have sought psychological therapy for mental health issues, which were raised in Mr Nolan's earlier report of 15 March 2011. I note that in the letters from his daughter and his sister, that each holds the offender in high regard. Although his daughter states that in Christmas 2019, he did not arrive for their usual Christmas family lunch, which was unusual or odd. After a subsequent trip up the coast to visit him, they noted that he was starting to hang around with the wrong type of people and did not seem his usual self.
16. His sister indicates, and I accept, that they each grew up in a home which was rife with domestic violence, with threats to their safety as a constant occurrence. It is said as the only male with one older and two younger sisters, he took it upon himself to be his sister's protector. He is said to have been active in the life of his children, nieces, and nephews, laughing, smiling and kind, with a genuine interest in the people around him, and known as a hard worker without complaint.
17. He is also said to have contributed during the recent bushfire crisis, to transport people to safety and protect the property and livestock of others. I accept, without continuing the detail of the letter from his sister and daughter, that they genuinely hold the views expressed in respect of him, and that they will continue to support him in the future.
18. I accept that he had a difficult early life, marred by what was apparently a dysfunctional family, in relation to which there was at least one occasion where his father presented a shotgun at his mother and then at the children, which must have been a terrifying event for all of them. Although his childhood is not fully fleshed out in terms of disadvantages, so as to clearly come within the terms of Bugmy and/or Fernando, I am of the view that with that poor start to life, his leaving home at an early point, 14 years of age, and his commencement of the use of prohibited drugs, that it is appropriate to allow for some reduction in moral culpability as a result of that exposure.
19. As to his criminal history, I note that in 1991 he committed offences of supplying cannabis and self-administer prohibited drug, dealt with in the Newcastle Local Court. The supply of cannabis was dealt with by way of s 558 Good Behaviour Bond of three years with supervision, and the self-administer was dealt with by way of a $300 fine. Those offences had occurred on 18 January 1991, and he was dealt with on 25 February 1991.
20. On 5 April 1991, it appears that he was back before the Newcastle Local Court in respect of possess prohibited drug, cannabis, and received a 200 hours Community Service Order, with no action for breach of the recognisance. In July of 1998 he was charged in respect of a further offence of possess prohibited drug, for which he was fined $200.
21. He has had a number of other offences such as resist officer in the execution of duty, drive, behave in an offensive manner, drive while disqualified, special category driver, drive with special range PCA, speeding offences, and a number of repeats of drive while disqualified.
22. In June 2009, he was charged with offences of cultivate prohibited drug, possess ammunition, receive motor vehicle, receive vessel, or part, and supply a prohibited drug. Those offences were dealt with on 18 March 2011, and it was in respect of the offence of supply prohibited drug being a commercial quantity, he received a term of imprisonment of four years, six months, with a non-parole period of two years and six months.
23. At the time of sentence it was backdated to take account of time already spent in custody, and the non-parole period concluded on 3 December 2011, at which time he was released on parole, with the total sentence to expire two years later. He was dealt with at the Taree Local Court on 24 November 2015 for possess prohibited drug with a fine and a two year bond.
24. He was charged on 25 February 2020 at Coffs Harbour with offences of common assault, stalk/intimidate intend fear physical harm, two counts of assault occasioning actual bodily harm. Those were eventually dealt with on 1 October 2020 at the Macksville Local Court.
25. He was fined in respect of the common assault and one of the stalk/intimidate charges, and he was ordered to serve an Intensive Correction Order of six months commencing on 1 October 2020 and concluding on 31 March 2021 with supervision during that period by Community Corrections.
26. In relation to the assault occasioning actual bodily harm, he was sentenced to a Community Corrections Order of 15 months, commencing on the same date as the Intensive Correction Order, with supervision for the 15 month period, that supervision to expire on 31 December 2021, as well as 80 hours of community service work.
27. There was a further offence of possess prohibited drug in 2001 at the Toronto Local Court, in respect of which he was fined, and a number of driving offences that I will not refer to in various years. He also has a record in Queensland of possessing a dangerous drug on 17 February 1990, in respect of which he is said to have been convicted and fined $500, as well as a public nuisance offence in 2008.
28. I note the offender in his evidence said that he was not aware of either of those offences being recorded in respect of him in Queensland. The only one of relevance is, of course, the possession of a dangerous drug in 1990, but it of course adds little if anything to his record in New South Wales, although Mr Healey indicated from the bar table without the benefit of any opportunity to confer with this client, that, in effect, the record was accepted.
29. I note that I regard it as largely irrelevant in the absence of an admission.
30. In respect of the Department of Corrective Services Conviction, Sentence, and Appeals Report, the offender was in custody from 5 June 2009 for the offences I have referred to until 3 December 2011, being the two and a half year non-parole period, and he has been in custody again since his arrest on 6 November 2020.
31. I note this in his favour: that in all of the time that he has spent in custody, he has only been in breach of prison discipline on one occasion, and that was in June 2010, when he failed a prescribed urine test. I note that in the psychologist's 2011 report, he referred to the offender as having completed the SMART program while in custody and being in remission from alcohol and cannabis in the enforced conditions of imprisonment.
32. As to issues such as remorse and contrition, in the psychologist's report of September 2021, he stated as follows, "Mr Bagnall indicated insight into his offending behaviour. He still sees himself as a worker rather than a career drug user. He was able to state his remorse for his offending by describing empathy for his family who have been damaged by his behaviour. He said he let the drugs assume Number One priority, instead of his children and now grandchildren. He said his greatest feeling of loss in gaol both in 2011 and now is the loss of his family. For this he feels shame and regret. He said this time he particularly feels the stress of his loss of family contact due to the COVID access restrictions."
33. The Court, of course, has the benefit of Mr Nolan's earlier report in 2011, in which he said this as to the offender's attitude to the offences he was then dealt with in respect of, under the heading, "Attitude to the Offence and Remorse" "At interview, Mr Bagnall demonstrated clear insight into his offending behaviour. He sees himself as an honest worker who spiralled out of control by using increasing quantities of alcohol and cannabis. He indicated a profound remorse for his offending behaviour. He was able to extrapolate his remorse by describing empathy for those who have been damaged by his behaviour. He said his partner Cindy is so depressed that she is cared for by his eldest daughter. He said his son is also depressed, with concern that he will lose contact with his father for several years. Mr Bagnall further indicated an understanding that the supply of cannabis continues to make worse the addiction and mental health problems with the community. In particular, he said he has seen broken lives in gaol that arose from cannabis abuse. For his part in this, he emphasised to me that he was deeply sorry. Mr Bagnall said his greatest feeling of loss in gaol is the loss of his family. It is clear he has refocused his goals on family first ideals, he now understands what he has lost and how he must act in the future to regain respect, trust and relationships with family." [Emphasis as provided in report.]
34. Apparently, whatever his attitude and remorse was when being dealt with in 2011, despite the fact that he spent two and a half years in prison before being released on parole, what he had learned from his past actions and what he had learned from being imprisoned had no lasting effect.
35. The Sentencing Assessment Report confirms that his partner and two adult children continue to be supportive of him and intend to assist him in living a pro social lifestyle. As to the two older adult children, presumably those are his daughters rather than his son, Jason.
36. He was unemployed at the time of the offending and in receipt of Centrelink JobSeeker benefits. No period is given for that, but from available material, it appears that he had been unemployed since ceasing work in 2016 after the dam was built.
37. He is otherwise described as having an extensive history of offending with a continuing and a concerning pattern of offences relating to drug possession and supply. In his favour, it states that while currently on remand at Mid North Coast Correctional Centre, Mr Bagnall has received positive feedback regarding his conduct and not incurred any institutional conduct breeches. However, under "Attitudes", it records,
38. "Mr Bagnall minimised his offending and reported being motivated by his own drug use and stated he didn't set out to deal drugs. He attributed responsibility to his associates who requested he obtain drugs on their behalf, and acknowledged he "saw a chance to make a bit of money."
39. The evidence in this matter indicates that the offender was conducting himself as a drug producer, at least in respect of cannabis, and a drug supplier in relation to methylamphetamine, and was operating with significant quantities. He may well have been using part of what monies he received to finance his own use of prohibited drugs, but it cannot be accepted in the circumstances of this matter that he was not also using it to finance his lifestyle.
40. He is referred to as having a polysubstance abuse since the age of 13, with a use of 1.5 grams of methylamphetamine daily at a cost of $500. That would put his weekly use at $3,500, rather than the $1,000 referred to previously. He claimed that he purchased methylamphetamine in bulk for himself and his associates and described his drug use as a coping mechanism related to the trauma of having been a victim of sexual abuse as a child. He otherwise acknowledged the financial element to the offending.
41. As to insight into the impact of the offending ,the following is recorded, "Whilst Mr Bagnall related his actions were the 'wrong thing to do,' he showed little insight into the impact of his actions on others, expressing 'The drugs got a hold of me and took over my life" and "People think I am a drug dealer and drug user.'"
42. [I note that on the evidence before me that people thinking that would be an inevitable and a reasonable conclusion.] "Mr Bagnall did not comment on the impact of his offending on any individual or the wider community."
43. He was assessed as being a medium to high risk of reoffending, an assessment with which I agree. As to any expressions of remorse or contrition during his evidence on sentence, without being precise in relation to the actual words used, he said the following, "I'm sorry. I look back at the person I was and I'm ashamed and embarrassed. I believe I was living in a form of drug psychosis. I was a good father and grandfather, but put myself first, not family."
44. His evidence in chief was hardly demonstrative of any significant degree of remorse or contrition. In cross examination, in respect of the journey to Hawks Nest and the 188.92 grams, he said, "This was a one off thing," and that he had not much contact with the supplier, Mr Megson. At least the telephone intercepts available shows that there was regular contact with Mr Megson by SMS before travelling there.
45. Clearly, he had to be someone known to Mr Megson as well involved in the distribution of prohibited drugs. Either he travelled to Mr Megson's house and paid in advance for the 188.92 grams, or it was supplied to him on credit, because he was trusted to eventually pay for it, or alternatively, he was trusted by the person he claims he was obtaining it for as a courier to pass it on from Mr Megson to that person.
46. However one looks at it, the offender was highly trusted in relation to the 188 grams, and in my view, there were certain elements of his evidence which indicated that it cannot be accepted, and that he was at times endeavouring to diminish the seriousness of what he did by pretending that his crop was failing, that he had little contact with Mr Megson, and was simply a courier.
47. The quality of his evidence in chief as to remorse and contrition was not convincing, and that perhaps explains why Mr Healey, the barrister appearing for him, during what was the course of his submissions on sentence, proceeded without asking for leave to ask further questions of the offender, particularly with regard to issues such as remorse and contrition. On this occasion, he referred to having had the assistance, after being released from the 2011 matters, of seeing a psychologist on half a dozen occasions in the community. In my view, the offender has demonstrated no real insight into the serious impact that methylamphetamine in particular has on the community.
48. I have been a judge of the District Court for now in excess of 13 years. From when I commenced, methylamphetamine related offences in country areas have become were more prevalent over the years. As I have presided at numerous circuits in New South Wales each year, I have observed its spread throughout the country and it has now spread throughout the entire community and can be found at all levels of society and all places throughout New South Wales.
49. Its adverse effects on those who use it are well known. It has become a very significant problem in the community, and it is persons such as this offender who ensure that methylamphetamine can now be found wherever one goes. It has had seriously detrimental effects on those who use it and on the community in general. It is for that reason the legislature has provided significant penalties.
50. I note that even cannabis is known to have detrimental effects, particularly in relation to mental health, on the more susceptible members of our community.
51. In the circumstances of this offender's previous history, I cannot find that there is a good prospect that he will not reoffend, and I cannot find that there is a good prospect that he can be rehabilitated. His past history argues against that.
52. As to remorse and contrition, although he has made some expressions of remorse and contrition, I am unable in the circumstances to accept those as genuine, rather than simply his regret for having once again been detected as involved in significant drug production and distribution, in respect of which he, as an experienced person, would know that a significant sentence must be imposed, and where he has the lengthy experience of knowing what matters will be taken into account and which might mitigate the sentence to be imposed.
53. I note that several aggravating factors apply, that is, pursuant to s 21A(2)(d), he has a record of previous convictions, I have already referred to them, and of course, past offences are more aggravating where the previous conduct is similar to the present conduct, R v Kerr [2016] NSWCCA 218 at (71). In addition, a further aggravating feature is that the offender was on conditional liberty, s 21A(2)(i).
54. He was, at the time of the offending, subject to an Intensive Correction Order, as previously indicated, for the offence of stalk/intimidate, and subject to a Community Corrections Order for the offence of assault occasioning actual bodily harm. Both sentences were imposed on 1 October 2020, that is, just over one month prior to his arrest for the present offences. Considering what was found and the stage of growth of the crop, he was already committing further offences at the time the ICO and CCO were imposed.
55. The Courts have for many years indicated in relation to offences of this nature, their seriousness is not only indicated by the term of imprisonment made available under the legislation, but also the need for the sentence to provide general deterrence is significant, particularly having regard to the need to protect the community. Specific deterrence must also be provided in circumstances where the offender has a history of like offending, and where the offences being dealt with are of significance, as here. As I have previously referred to, there must be reflected in the sentence some degree of amelioration arising from the difficulties of his early childhood, reducing his moral culpability
56. Clearly, in this matter, the s 5 threshold is easily passed, and a term of imprisonment must be imposed, and indeed, the offending is of such a nature and seriousness that it must be a significant sentence. I have taken into account the matters provided in s 3A of the Crimes (Sentencing Procedure) Act. I have taken into account all of the matters that I have so far referred to in these reasons before turning my mind to the actual sentence. As previously indicated, I intend to proceed by way of an aggregate sentence, and I am accordingly required to provide an indicative sentence in relation to each of the offences in respect of which he is to be sentenced.
57. I convict him in relation to Sequence 1, supply 188.2 grams methylamphetamine. I convict him in relation to Sequence 2, supply 14.91 grams methylamphetamine. I convict him in respect of Sequence 7, the enhanced cultivation, commercial, 192 plants. I convict him in relation to the s 166 related offence of drive while with illicit drug in the blood.
58. In respect of Sequence 1, taking into account the five matters contained on the Form 1, possess prohibited weapon, flick knife, supply of prohibited drug, 51 grams cannabis oil, possess prohibited drug, 165.5 grams cannabis leaf, and possess prohibited drug, 111 strips of buprenorphine and deal with property proceeds of crime, $1,387.70, the indicative sentence is a term of imprisonment of six years.
59. In relation to Sequence 6, being supply of 14.91 grams of methylamphetamine, the indicative sentence is two years.
60. In relation to Sequence 18, enhanced cultivation of 192 plants, the indicative sentence is five years.
61. In relation to the drive with illicit drug present in the blood, I intend to proceed by way of a fine and a disqualification period, so these are not indicative, but I will impose a fine of $750 and a disqualification period of six months.
62. In relation to each of the indicative sentences, in respect of Sequences 1, 6, and 18, the 25% utility discount has been applied.
63. Taking all of those matters into account, as well as the concept of totality, the aggregate sentence is a term of imprisonment of seven years with a non-parole period of five years. I intend to commence that sentence partway through the term to be served as a result of the revocation of the ICO. He was arrested on 6 November 2020, and the revoked ICO was to run from that date. I will commence the aggregate sentence in relation to these matters on 7 February 2021, that is, some three months after that had commenced.
64. The non-parole period of five years means that he will become eligible for parole on 6 February 2026. The balance of term is two years commencing on 7 February 2026 that will expire on 6 February 2028. I have varied the statutory relationship between the non-parole period and the balance of term to take account of the three months in custody prior to the commencement of this term of imprisonment, and to provide for a slightly more significant period of parole, that is, rounded off to a maximum period of two years.
65. Mr Bagnall, you need to understand, as I am sure you do, that you will first become eligible for parole on 6 February 2026. It will be a matter for the authorities whether you are released on that date or not. I note the lack of breaches of prison regulations, and I note that you have done a number of courses to assist yourself when released. It appears likely that if you continue to follow that course of not being in breach of regulations and doing whatever you can to assist yourself while in custody that you will be released on 6 February 2026, but it is not a matter for me, it is a matter for the authorities to determine. You need to make sure you do your best to help yourself in the meantime.
66. I have absolutely no doubt that you are aware that if, when released on parole at whatever time, you are then found in breach of parole, you will inevitably end up being returned to custody for any balance of the term. Mr Crown, is there anything I have failed to mention of significance? SCULLY: The Crown would ask the s 166 backup offences be withdrawn and dismissed. HIS HONOUR: I will mark the offences being Sequences 13, 15, and 17 as withdrawn. HIS HONOUR: Mr Bagnall, my reasons will in due course become available, and your counsel Mr Healey and your solicitor, whoever that may have been, will be able to obtain them and give you advice in relation to the sentence that I have imposed in due course. There is no need to remain in that room any longer. That completes the matter, thank you.

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