HIS HONOUR: Jackson Barden stands for sentence as a consequence of having pleaded guilty to a charge that on 1 April 2015 at Woolooware in this State he did knowingly take part in the supply of a prohibited drug, namely 8.28 grams of the drug commonly known as Nexus in tablet form and the offender also asks me to take into account on a Form 1 four further offences also committed on 1 April 2015.
All the offences were committed at Woolooware Railway Station. The first was having in his possession a prohibited drug, namely .66 grams of a drug commonly known as ecstasy. The next offence was having in his possession a prohibited drug, namely .13 grams of cocaine. The next offence on the Form 1 was one of dealing with certain property, namely four $50 bills that there were reasonable grounds to believe were the proceeds of crime. The final offence on the Form 1 is a urinating on platform number 1 at the Woolooware Railway Station.
The principal offence to which the offender pleaded guilty carries a maximum penalty of imprisonment for 15 years and or a fine of $220,000. The maximum penalty for each of the drug offences on the Form 1 is imprisonment for two years and or a fine of $2,200. The maximum penalty for dealing with the proceeds of crime is two years imprisonment and or a fine of $5,500. The maximum penalty for behaving in an offensive manner, which is the formal appellation for urinating on a train platform, is a fine of $1,100. It is important to bear in mind the maximum penalty prescribed by Parliament for the primary offence for which the offender stands for sentence. The maximum penalty imposed by Parliament indicates the seriousness of the offence which Parliament has proscribed.
The facts of the case are fairly straightforward. At around 8.30pm on Wednesday 1 April 2015 police were patrolling Woolooware Railway Station when they observed the offender urinating next to the ticket booth on platform 1. The police approached the offender and identified themselves to him. He was observed to be holding a number of $50 notes in his hand together with a plastic bag. The police asked the offender:
"What have you got in your hand?"
No response is recorded on the agreed facts. Police then arrested the offender for urinating on the platform and as they took hold of his arm he flicked the plastic bag and the cash he was holding onto the ground behind the police. The police saw what he did and picked up the items he had thrown on the ground. They then identified four $50 notes, a plastic bag containing 24 round tablets bearing a Nike Swoosh logo and a smaller plastic bag containing an additional three such tablets and a plastic bag containing six clear capsules. The tablets were found to be the drug commonly known as Nexus. The six capsules contained the drug known as Ecstasy. The offender was then cautioned. He was asked about the tablets that had been found with him. He told the police that he obtained them from a male "in a laneway near Cronulla Surf Club for a mate to take to a party in Bondi". The offender stated that he was not sure what the tablets were but he thought they might be Ecstasy. The police asked the offender why he had thrown the items away and the offender said:
"I just thought I'd get rid of them".
That clearly indicates that he knew that they were prohibited drugs which ought not to be found in his possession.
R v Barden [2015] NSWDC 395 | Case summary | Zoe
The offender was then searched and the police found a clear plastic bag containing a white substance located in the front right hand pocket of his trousers. That on analysis was found to be .13 grams of cocaine. When asked about that the offender stated that he did not know that they were there as the trousers he was wearing were not his own. Clearly the plea which he has entered and the four matters he asks me to take into account on the Form 1 indicate that the offender knew that the drug was on his person at the time. The offender was then taken to Miranda Police Station and introduced to the custody manager and processed. He has actually spent no time in custody.
The offender told the police at the police station that during the evening he had consumed a number of beers and had had two Ecstasy tablets about seven hours prior to his being arrested. There are alternative versions of what the offender had consumed prior to his arrest. The pre-sentence report indicates the offender had consumed "approximately two bottles of wine" which may be a Corrective Services officer's estimate of approximately 14 to 16 standard drinks. Since 18 July 2015, the offender has been seeing a psychologist, a Mr Salvatore Sorbello, at Kirrawee. The offender gave Mr Sorbello a history that he consumed approximately ten beers, some wine, Ecstasy and a small amount of cocaine before he was arrested. Whichever version one looks at, it appears that the offender had taken a fair amount of alcohol and probably illicit drugs prior to committing the offence of urinating on the railway platform which led to him being arrested.
It has been very correctly submitted by learned counsel for the offender that the offender's actions, and what he said to the police after his arrest concerning his alcohol and drug use earlier that day, suggest a degree of intoxication, and such is not conduct one might reasonably expect from any person who regularly dealt drugs to members of the public. In other words, one would not expect a drug trafficker to be carrying illicit drugs and trying to "offload them" in such a highly intoxicated state.
It appears to be common ground that the offender was in company with about eight of his friends, that they were bound for Bondi to attend a concert or dance party and an inference can be drawn that the offender was somehow involved in purchasing drugs to pass them on to members of his group of friends to be consumed at the concert or dance party. Such has been the submission of the offender's counsel. Equally bearing in mind that the level of purity of the drug Nexus in each of the tablets was only 1.5%, one might think the offender had been "ripped off" by being sold such low quality drugs by the person from whom he had purchased the drugs near Cronulla Surf Lifesaving Club.
Before going on to consider matters of principle, it is convenient at this stage to record the offender's personal circumstances. The offender was born on 24 June 1989. He is currently 26 years of age. At the time of these offences he was 25. The offender is the elder child of his parents. He has a sister who is one year his junior. The offender grew up at Grays Point where his family still lives and to where he has returned to live since relatively soon after being arrested. The offender's father has the qualifications of a plumber and, although he spent five years in the New South Wales police, returned to plumbing with his own business which he began in the 1990's. The offender's mother works as a teacher at the Kirrawee High School. The offender comes from an intact, hardworking, middle class family.
The offender attended Grays Point public school and then Kirrawee High School. He found it difficult to concentrate at school and was not motivated to achieve academically. However he appears to have excelled at sport, in particular at soccer, skateboarding, water polo and basketball. He also became a keen surfer. He completed his HSC. However in the final years of school things began to go awry. From the age of about 16 the offender started drinking alcohol. About a year later he took up smoking cannabis. Cannabis consumption led to his taking ecstasy and other pills, probably amphetamines, by the time he was 18, after he had completed the HSC.
The offender told psychologist who has been treating him since 18 July 2015 that he became a 'party animal.' Part of Mr Sorbello's history is as follows;
"From his late teens until he was charged, Jackson's life revolved around party, drug taking, and chasing girls. He said he mainly used alcohol, marijuana, and ecstasy on the weekends at parties, clubs. Cocaine was consumed only occasionally because it was too expensive."
When still at school the offender worked for a surfboard manufacturer when he was between 15 and 17 years old. After leaving school, he commenced an apprenticeship as a carpenter but lost that position because of absenteeism due to drug and alcohol use. The offender then worked as an apprentice plumber for his father. His father obviously had suspicions about his son's substance abuse which made him unreliable. The offender kept denying that he was taking illicit drugs. After completing his apprenticeship of five years, the offender worked for a different plumbing company for six months, but his drug use impaired his ability to work and he lost that job. He then worked as a kitchen hand for about six months.
From Mr Sorbello's history I know that in February 2014 the offender went overseas with his male friends to Central and South America. They were overseas from February 2014 to September 2014. The offender visited Chile, Peru, Bolivia and Columbia and other South American countries. Illicit drugs were cheap in many of those countries and the offender's use of cocaine increased markedly whilst in South America. He used cocaine and drank alcohol most of the days between February and September 2014. When he returned to Sydney he found the habit hard to lose and used cocaine three or four days every week and drank alcohol daily.
It is possible that, because of his increased consumption of cocaine in Australia after September 2014, the offender needed to obtain more money to buy the drug and that caused him to turn to supplying drugs to others. However, that is only one possibility. The evidence before me only establishes the offender's having a relatively large amount of illicit drugs on him on 1 April 2015 and the evidence points to a likely intention to supply his friends at a party rather than supplying members of the public for profit.
The commission of this offence has been a major "wake-up call" for the offender and I have there used his own words to me. The offender has expressed deep regret and remorse but clearly that is because of the shame he has brought upon himself and the heartache and embarrassment he has given to his parents and his extended family. However he admits that the drug addiction which led to the commission of these offences is something that he must defeat. In his letter to me he said this;
"I have limited my chances of travel, work opportunities and life experiences at an age where I should be in my prime. I would take it all back if I could, but I can't, the consequences of my actions scare the hell out of me and I have changed my ways. I have sought help with counselling and that has helped me deal with my issues and I feel better about myself and know where I want to be and what I have to do to achieve to it. No more filling a void with a fake illicit temporary outlet. It is the wake-up call I needed and I hope and pray that you believe me, but my words are cheap. I want the chance to redeem myself and make myself, and my family proud, please give me this chance!"
The path which this offender pursued this Court sees daily and has been seen for decades: young teenagers take up smoking cannabis, move to "party drugs" leading to heavier drugs such as cocaine and heroin, and then start to commit crime to support an illicit drug habit. This offender has not faired as badly as many of those with whom the Court is called upon to sentence. This offender has not committed offences of breaking entering and stealing or robbery or crimes of violence. However, he was in possession of a quantity of drugs which was capable of being a supply. He had not reached the stage that many other young people do whom have followed the path I have just described.
It is clear that the offender now has insight; he is now abstinent from illicit drugs and has severely moderated his alcohol intake. Since his arrest the offender worked for about a month as a builder's labourer and, for the last three months, has worked as a leading hand for a business called "Heavy Duty Plumbing Pty Limited," who consider the offender to have an important role in the daily running of its business and to have a "great work ethic" and to be a person who is good natured. The offender's employer was interviewed by the Corrective Services Officers in the preparation of the pre-sentence report and he was described as a "hard worker" by his employer. The offender works eight hours per day six days per week. He has been provided by his current employer with a car and mobile phone. The offender has returned to TAFE to obtain his higher grade plumber's qualification. He hopes to complete those studies early 2016.
The offender was referred to Mr Sorbello by a general practitioner in July 2015. The psychologist diagnosed a stimulant use disorder now in early remission and an alcohol use disorder also in early remission. The offender has not used drugs for at least the last three months that is, since he came under the care of Mr Sorbello and has consumed very little alcohol. Recent testing does show the offender to have mild amounts of depression and a moderate amount of anxiety but one would expect such findings in a young man standing for sentence facing the prospect of a fulltime custodial sentence. That is acknowledged in fact by Mr Sorbello. As well as giving up drugs and limiting his alcohol the offender has over the last four months started attending the gym, taken up active surfing, and has been eating well. In other words he is now looking after himself. The fact that the offender has turned his life around has been deposed to on oath by the offender's father. Mr Sorbello has proposed treatment of the offender extending into and throughout 2016. The treatment plan is set out on the final page of Mr Sorbello's report. It includes cognitive behaviour therapy which will not end until June 2016. Beyond that the offender has to set future career and personal goals throughout next year by using cognitive behaviour worksheets.
I am confident that the offender, if he stays abstinent from illegal drugs, will not reoffend and that his rehabilitation will be successful. That is in the interests of the offender himself and of our community. It costs a lot of money to lock people up in gaol. It also provides no real rehabilitation at the current time. Ultimately the criminal law and the community is best served by turning persons away from crime and returning them to a meaningful and proper, active role in our society. I accept that the offender is well‑motivated at the moment and is to be encouraged to persist with his treatment by Mr Sorbello and to maintain his current determination to stay away from drugs. The prospects of rehabilitation, in my view, are very good. However all that can be done to ensure that the offender maintains his current determination should be pursued.
The offender has returned to reside with his parents because he has debts which he is seeking to repay and was finding rent too much to pay. From what I have heard from Mr Timothy Barden I believe it likely that the offender will stay living with his family for some little time yet, to get himself back on his feet and perhaps to set up his own business as a plumber.
It has been submitted by Mr Pickin, for the offender, that the quantity of the drugs found with the offender was generally speaking "relatively low" and that the value of the drugs was likely to be perhaps between $500 and $600. I do not know whether that be correct or not but considering the number of drugs and their poor quality that may well be correct. I accept that there is no suggestion that the offender was in any way involved in some commercial operation and the facts concerning the offender's arrest clearly point in exactly the opposite direction. There is no evidence that the likely recipients of the drugs which the offender had on him at the time of his arrest were in any way vulnerable. It appears to be likely that the ecstasy and the cocaine were for personal consumption rather than for supply.
The offender pleaded guilty in the Local Court and was only recently committed for sentence. It has been submitted by counsel for the offender that there was an early plea of guilty and nothing was submitted to the contrary by the Crown. The offender has expressed remorse and regret but, as is pointed out in the presentence report, the offender appears to be ashamed and remorseful because of his being about to be convicted. However the reasons related more to the impact on him and his family rather than what the Court traditionally looks at, which is victim empathy. However, it may be difficult to have victim empathy when those to whom the drugs may have been supplied were expecting to use them and might have no adverse consequence from using them. However, it must always be borne in mind that people who pass drugs on carry with them the ability to introduce others to illicit drugs and to commence others down the path that can lead to personal ruin.
I am also asked to take into account the offender's relatively good character prior to these offences. The offender does have a short criminal history. He committed the offence of midrange PCA when he was 19 years old and in the following year was found to be in possession of a prohibited drug for which he was given a bond under s 10 to be of good behaviour for nine months. The offender told Mr Sorbello, and I am prepared to accept, though he was charged with having an empty satchel there were traces of cocaine in it in his pocket; that led to the s 10 bond. However, it does indicate that in 2009 the offender may have been taking cocaine in small amounts. That is quite consistent with the offender's history which I have sought to recite.
Shortly stated, everything for the future looks bright for this offender as far as the Court is concerned.
The Court of Criminal Appeal has made it clear that a sentencing judge in exercising his or her sentencing discretion must not neglect the continuing rule or policy that a custodial sentence should generally be imposed for drug traffickers except in "exceptional circumstances". The superior courts have also made it clear that there should not be an excessively liberal interpretation of the phrase "exceptional circumstances". The question really for me is whether the current offender was involved in drug trafficking. Trafficking carries with it the connotation of supply on more than one occasion: R v Bardo (unreported, New South Wales Court of Criminal Appeal, 14 July 1992) per Hunt CJ at CL. It has been held that trafficking does not involve "a limited or isolated event": R v Ozer (unreported, New South Wales Court of Criminal Appeal, Hunt CJ at CL, Allen and Mathews JJ, 9 July 1993). More recently the former Chief Judge at Common Law, McClellan J said in R v Gip [2006] NSWCCA 115 at [13]:
"My understanding of these various statements is that where a finding can be made that an offender has engaged in repeated offences so that his or her activities can be described as trafficking, a fulltime custodial sentence should, unless there are exceptional circumstances, be imposed. However, if only one offence can be proved, but the circumstances surrounding that offence indicate that it was the result of a sophisticated commercial arrangement, the objective criminality involved may also require a custodial sentence, unless exceptional circumstances can otherwise be shown."
Applying that dictum it is clear on the facts of the present case that there is no evidence of repeated offending by the current offender nor is there any evidence that the offence in which he was involved was part of a sophisticated commercial arrangement. Accordingly a fulltime custodial sentence is not necessarily required.
However, the offence is a serious one. Again one must refer to the maximum penalty prescribed by Parliament. Illicit drugs ruin lives. The activity in which the offender was engaged had the potential to adversely affect other members of the community. The community demands that persons involved in supplying drugs be punished. I have confidence that personal deterrence is not of concern in the current sentencing exercise. I have no concern that Mr Jackson Barden needs to be deterred from again offending. I am confident that he realises what he has done is the result of a lifestyle which he has turned away from and which was potentially harmful or toxic. However general deterrence, that is the stopping or deterring others from engaging in the same sort of activity, is very important and is an essential part of the sentencing exercise. Persons must realise that if they take sufficient quantity of drugs to supply to others they may well find themselves in custody or at least in very serious trouble.
The offender had in his possession 16 times the indictable quantity of this drug. He had in his possession one-third of the commercial quantity of the drug. A number of possible alternatives to fulltime custody have been explored in submissions on behalf of the parties. One is a Community Service Order. The offender is suitable to perform community service. However he could only do that on Sundays and that would have him working eight hours a day seven days a week, which is not in his interest and might doom him to failure in maintaining his resolve not to escape reality by turning to drugs. Another possibility has been a bond under s 9 to be of good behaviour for a term but such a bond may not carry with it sufficient general deterrence. The question of an Intensive Corrections Order has been raised but Corrective Services do not believe that the offender needs any assistance from them because he has done all that is necessary to put himself on the way to rehabilitation. Another avenue explored was home detention but that appears to me to be countermanded because, here, the offender has returned himself to the community, is working fulltime and advancing himself in his trade and in his work experience and has taken control of his own life. Locking himself, so to speak, inside his own home would lead to boredom and perhaps tempt him to turn to alcohol and/or drugs. In my view the only way of enforcing general deterrence and providing the current offender with the motivation which would keep him on the "straight and narrow" is to impose a sentence of imprisonment but to suspend that sentence pursuant to s 12.
For more serious offences than these, I have started sentencing exercise with a head sentence of two years. For this offence I would commence with a head sentence of 16 months which I reduce to 12 months to acknowledge the utilitarian value of the offender's plea of guilty at the earliest available opportunity: the maximum 25% discount for the utilitarian of that plea. In making that assessment I have also taken clearly into account the four matters on the Form 1.
No-one wants any further reasons as distinct from orders?
SFINAS: No.
Jackson Keith Barden, on the charge that on 1 April 2015 at Woolooware in this State you did knowingly take part in the supply of a prohibited drug, namely 8.28 grams of 4-bromo-2,5-dimethoxyethylamine in tablet form, you are convicted. I sentence you to imprisonment for a term of one year. Under s 12 of the Crimes (Sentencing Procedure) Act 1999 I order that execution of the sentence be suspended. I direct that you be released from custody on condition that you enter into a good behaviour bond for a term of one year commencing today. Conditions of the bond are as follows:
1. you are to appear before the Court if called upon to do so at any time during the term of the bond;
2. you are to be of good behaviour;
3. you are to reside at [...], Grays Point in this State, or
4. you are to advise the Registrar of the Court by prepaid registered post of any change of residential address during the term of the bond.
5. you are to remain under the treatment of Mr Salvatore Sorbello, psychologist, until discharged from his care by him.
In passing that sentence I have taken into account the matters on the Form 1. I note that the matters under the s 166 certificate have been taken into account on the Form 1.
Pursuant to the Confiscation of Proceeds of Crime Act 1989 I order that, pursuant to s 18(1), Australian cash in the sum of $200 found at Woolooware Railway Station on 1 April 2015 be forfeited to the Crown. I grant leave pursuant to s 9(3) par (a) that the property forfeited by the order be disposed of forthwith.
Any other orders sought?
SFINAS: Drug destruction.
HIS HONOUR: I order the drugs be destroyed. Any other orders sought?
SFINAS: No.
HIS HONOUR: Mr Barden, you will need to go to the Registry which is back in the Downing Centre next door to sign the bond.
PICKIN: I'll have one of my instructors take him, your Honour.
HIS HONOUR: Yes, make sure it happens quickly because they like to go home. So do we all.
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Decision last updated: 23 May 2016