R v Barta

District Court of NSW|2022-08-05

Judgment Agreed facts Offender's role Criminal Record Antecedents Consideration of mental illness Age Character in custody Comparative sentences Consideration of sentence Seriousness of the offence Covid-19 and health-problems Order

Judgment

HIS HONOUR: Stefan Barta stands for sentence as a consequence of pleading guilty to a large number of offences. He stands for sentence for five substantive charges and asks me to take into account on three Forms 1 a large number of other charges. All told, 27 charges were initially laid, however not all remain, and there is a certificate under s 66(1) of the Criminal Procedure Act 1986 and a Form 1A which indicates that 13 charges are to be withdrawn at the conclusion of the sentencing.

Offender's role

There is no evidence that the offender hired or employed or used any other person, for example, to move drugs around or to deliver drugs which he had agreed to sell to a "customer". The offender might be seen as "a middle manager" in the drug syndicate, but there was no one in the syndicate lower in the chain than he, so he was both a manager and a "gopher". This is somewhat unusual. Most people who have access to large amounts of drugs, as clearly the offender had, use other people to deliver the drugs or move them about to avoid the risk of their being arrested by the police. However, this offender did not do so.
However, it is clear that he was trusted by those higher in the syndicate to hold large amounts of drugs which he would sell directly to customers. He indeed was prepared to mail drugs to South Australia. He was also prepared to meet his customers at convenient places, and he was prepared to negotiate with them by telephone, by text message, and perhaps in other ways of which the police are unaware. He clearly had a large number of customers.
He was very actively involved in the drug trade, and could easily obtain heroin, cocaine, and methylamphetamine, in various quantities, whatever quantity a customer asked for. Clearly, there was a large amount of cash being taken by the offender for the drugs which he supplied, but equally one can accept that a large amount of the cash would have gone up the supply chain, that is, to those from whom the offender was obtaining the drugs, that is, members higher up in the drug syndicate. As one might accept, it is clear that the offender himself had a drug habit, and no doubt the "profit" which the offender might be making was used to supply his own drug habit.

Criminal Record

The offender has a history of drug trafficking. The Crown has submitted that this makes this offending worse. Consonant with authority, I can only conclude that that prior history of drug trafficking prevents me from exercising any leniency to the offender for the offences for which he currently stands for sentence.
At the age of 27, the offender appeared before this Court here in Sydney on an indictment containing one count of supplying a prohibited drug. The appearance was on 26 March 1993. He appeared before Sinclair DCJ. His Honour sentenced the offender to imprisonment for one year with a non-parole period of three months.
On 2 May 1995, the offender was charged with goods in custody. He was then 30 years old. He was placed on a recognizance to be of good behaviour pursuant to s 558 of the Crimes Act 1900, as a good behaviour bond was then known.
On 1 October 2001, the offender was arrested for a large number of drug offences. For those offences, he appeared before Hosking SC DCJ who, on 25 July 2002, imposed sentences which provided an effective head sentence of eight years and five months with an effective non-parole period of six years and nine months. The offender appealed to the Court of Criminal Appeal but the appeal was dismissed: Barta v R [2006] NSWCCA 6. The custodial records before me clearly show the period of incarceration commencing according to those records on 2 October 2001 and his release on parole on 30 June 2008.
However, the offender committed further offences of supplying prohibited drugs. He appeared before this Court on 11 March 2010 when certain sentences were imposed. However, he also appeared before Ellis DCJ on 25 July 2002 when further sentences for drug trafficking were imposed. All told, he was sentenced to imprisonment from 9 January 2010 to 8 April 2017, a period of seven years and three months, and that included an effective non-parole period of four years and ten months expiring on 18 October 2014.
Finally on 19 December 2018, he was sentenced by the Burwood Local Court to imprisonment for two months commencing on 28 December 2018, concluding on 27 February 2019, for possession of prohibited drugs. But that sentence was subsumed in a sentence of 15 months' imprisonment commencing on 28 December 2018, with a non-parole period of nine months concluding on 7 September 2019, with a finding made by the Burwood Local Court of special circumstances.
One can see, therefore, that for many years, the offender has been involved drug trafficking. However, the sinister aspect of that consideration does not survive a detailed review of the offender's personal circumstances and how things have gone in this offender's life.

Antecedents

On 30 May 2019, the offender consulted Dr Mark Milic, a clinical and forensic psychologist who prepared a report bearing date 31 July 2019. That report is not before me. However Dr Milic again interviewed the offender on 7 April 2022 by audio-visual link with his current place of incarceration, the Clarence Correctional Centre. Dr Milic then prepared a report bearing date 25 May 2022 which is before me as Exhibit 8. More recently, the offender was interviewed by Dr Richard Furst, a forensic psychiatrist, on 27 June 2022 for approximately 70 minutes. I take the offender's personal history from Dr Furst's report.
The offender was born in July 1964. He is currently 58 years old. Dr Furst's report then says this: "Mr Barta was born in Romania. His parents placed him in an orphanage when he was 21 months of age, his mother being 17 years of age and his father being 19 years of age. Both of his parents had problems with alcohol. Mr Barta remained in the Romanian orphanage until he was 5 years of age, suffering harsh treatment, being neglected and being beaten by care givers. Mr Barta claims that staff members were 'playing with him' from the age of 5 onwards, a reference to purported sexual abuse that included anal penetration, such that he ended up being admitted to hospital with internal injuries. He was adopted by his maternal grandparents, who were contacted by staff at the hospital. Mr Barta stated he has no memory of his biological parents from his early childhood and did not meet them thereafter, regarding his grandparents as his parents. He lived in Arad. There were no indications of an intellectual disability; however, Mr Barta had both social problems and anxiety and is picked on and put down at school on a regular basis, especially in Year 5 and Year 6, leading to Mr Barta having very low self-esteem. He remained somewhat socially aloof at high school and was cautious around other people. His anxiety symptoms included being fearful of being left alone, being fearful of his grandparents abandoning him and being generally tearful. Mr Barta completed both primary school and high school in Romania before joining the Romanian Army for compulsory military service after finishing high school. He worked in the construction industry for 4-5 years thereafter. He stated he would experience nightmares in his teenage years and his 20s, which increased in frequency in his 20s to the point that he is having nightmares every 2-3 days. He would also startle more easily and was frequently depressed and/or tearful. He was approached by the Romanian Communist party who apparently wanted Mr Barta to join the party, which was the context of him to [sic] fleeing to Yugoslavia in 1988 and being arrested in the process." Earlier in his report Dr Furst had recorded this: "Mr Barta is a 58-year-old Romanian male who was initially married in Romania in 1989. He migrated to Australia with his first wife in 1990 and they were divorced in 1992. He married Angela...in 1998 and they have [two] children from their marriage, [each] of whom live in the family home: [a son], aged 23 years; and [a daughter], aged 21 years. He was living with Angela and his children in Greenacre at the time of his arrest 18 months ago." A similar history, but not as detailed, is contained in the report of Dr Milic bearing date 25 May 2022.
In Barta v R [2006] NSWCCA 6, a briefer version of the offender's personal history is set out in [12] and [13] of the judgment of Howie J. That is reproduced in Dr Furst's report.
As the histories have been given, they have become more detailed and, for example, the only detail of the sexual molestation is in Dr Furst's report, but clearly there is a long history of being in the orphanage and having had a very poor time as a result of that.
I turn to the offender's problems with drugs and alcohol which, in my view, explain to a large extent why the offender has been involved in drug trafficking. The history recorded by Dr Furst is this: "Mr Barta's problems with drugs of abuse/addiction commenced in 1991, the year after he migrated to Australia. He was working in the Flemington Meat Markets at the time [I believe this refers to the Homebush Abattoir]. His drug use involved the use of amphetamines in amounts of about 1g per day and he was using about 0.5g of heroin per day in the 1990s. The amphetamines he was taking would help him stay awake for his work and the heroin would help him forget about his problems and sleep. Mr Barta also worked as a painter for a real estate agent over a period of about 6 years in his early thirties. His use of heroin increased in the mid-1990's to the point where he was using about 1-1.5g of heroin per day. He was also using 1-1.5g of amphetamines per day and about 3-4g of cocaine per week leading up to his arrest for drug offences in 2001. Details of his offending, which included the supply of a total of 513g of heroin between 2000 and 2001 and related offences are outlined in...Barta v R... He was incarcerated on 1 October 2001 and was released on parole in 2008. Mr Barta participated in drug and alcohol counselling and was working in custody during that period of imprisonment in the early 2000's. He was not treated with Methadone. As appears that pursuant to the unofficial 'code' for the conduct of drug supply in NSW, the heroin that was seized by police in 2001 was deemed to be a 'loss' and became a 'debt' that Mr Barta then owed to the up-supplier who had given him the drugs in the first place, such that he still owed that money to his up-supplier when released on parole in 2008. Mr Barta said that he was given a phone and was apparently selling drugs for...customers of his up-supplier to pay off his 'debt', one of those customers being an undercover operative, which brought him back into custody in 2009, only 9-months into his parole period. Mr Barta then served a further 4 ½ years sentence for those drug supply offences, not being released on parole until 2014. He lived in Lidcombe and Greenacre with his wife and two children from 2014 onwards, remaining under parole supervision until March 2017. He returned to work at the Flemington Markets during that period. Mr Barta said he relapsed into using drugs from around late 2015, which involved regular use of cocaine. He did not seek any professional help at the time and his drug use increased over the following years until he was arrested in December 2018. [H]e stated he had gone to a drug dealer's house and that the person he bought drugs from was under surveillance. Mr Barta was pulled over by police and was found to be in possession of 2g of heroin, 20g of cocaine and 5g of 'ice', drugs that he had intended to use himself. Mr Barta spent a further 9 months in custody before being released from custody on 27 September 2019, his parole supervision continuing until April or May 2020. He was not using drugs during his initial period of parole and was living with his family in Greenacre. He was reporting to Bankstown Community Corrections whilst on parole. He returned to working at Flemington Markets, which involved nightshift work. … Mr Barta stated he would catch up with friends during the day after working nightshifts at the markets. It was in this context that he relapsed into using the drugs again, namely heroin, 'ice' [methylamphetamine] and cocaine. He was supplying drugs in order to support his habit, which included smoking in the order of about 2g of 'ice' per day, smoking 0.5-1 g of heroin per day, and using about 4g of cocaine over a typical weekend, drug use that continued until the time of his arrest in February 2021. Mr Barta went into opiate withdrawal after his arrest, feeling sick over the following week. He stated he still has bad nightmares every 3 to 7 weeks."
Dr Furst has diagnosed Post-Traumatic Stress Disorder ("PTSD") as well as substance use disorder. The latter is prosaic. Anyone who has a drug addiction has such a substance use disorder. The thesis of Dr Furst is that the offender's PTSD results from his childhood experiences. Dr Furst's formulation is this: "Mr Barta has a history of severe childhood abuse neglect and abandonment at a critical stage of brain, social and emotional development, i.e. in his early childhood between the ages of 2 and 5 years. He also claims to have been physically assaulted and sexually assaulted when he is 5 years of age which led to his hospital admission at the time. Those experiences led to frequent nightmares and other signs of re-experiencing phenomena and hyperarousal including being easily startled, symptoms consistent with post-traumatic stress disorder. Symptoms of post-traumatic stress disorder generally start within one month of a traumatic event; however, in some cases the onset of symptoms may not appear for several months or even years after the traumatic event. PTSD symptoms are generally grouped into four types: intrusive memories, avoidance, negative changes in thinking and mood, and changes in physical and emotional reactions. Symptoms can vary in intensity and related functional impairment over time and it can also vary from person to person. Typical traumatic events that trigger PTSD include, but are not limited to, exposure to war as a combatant or civilian, threatened or actual physical assaults, threatened or actual sexual violence, being kidnapped, terrorist attacks, torture, incarceration as a prisoner of war, natural or human made disasters, and severe motor vehicle accidents. The disorder may be especially severe and long-lasting when the stress is interpersonal and intentional, including torture and sexual violence."
The psychiatrist goes on to list symptoms, both of intrusive memories of avoidance, of negative changes of thinking and mood, and changes in physical and emotional reactions. Dr Furst then commented upon the effect of childhood trauma and then continued in this fashion: "Therefore, it is likely that Mr Barta's re-experiencing phenomena, anxiety, PTSD and drug addiction are not just maladaptive emotional responses, but are responses driven by these type of brain pathways and deficits caused by the effects of long-term exposure to trauma, abuse and neglect in his childhood. Furthermore, Childhood trauma, including neglect, physical abuse, childhood sexual abuse are strongly correlated with mental disorder, later drug addiction, mental disorder and premature death. In addition to the damaging effects of abandonment, neglect and trauma experienced in his early childhood when he was placed in a Romanian orphanage, Mr Barta's parents were both drinking excessively, suggesting he has an inherited vulnerability towards addiction, as findings from a number of studies examining...the children of alcoholics indicate those children have increased vulnerability towards alcoholism and drug addiction generally. The effects of childhood trauma, including childhood abuse, neglect, physical abuse and sexual abuse and post-traumatic stress disorder are also associated with significant higher rates of substance use disorder is in adult life, both as a maladaptive means of coping with stress traumatic memories but also because it physiological brain changes that cause emotional dysregulation and maladaptive attempts to dampen down such brain pathways/responses. It was in this context that Mr Barta began to use drugs in the early 1990's and has struggled with drug addiction over the last 30 years or so. Unfortunately, heroin, methylamphetamines and cocaine are very effective drugs in terms of boosting mood, alleviating anxiety, relieving symptoms of PTSD and blocking out traumatic memories and associated negative emotions, creating a powerful reinforcement for the use of those drugs."
Dr Furst then makes a large number of recommendations concerning treatment that the offender requires, and that treatment he suggested might include a compulsory drug treatment program at Parklea. However, I note that the offender is not eligible for that because of his age and the likely length of his prison sentence. There was also an extensive drug and alcohol treatment program at the John Moroney Correctional Centre at Windsor, but that Correctional Centre is generally for prisoners under the age of 25 years, and the current offender is not in that category. Effectively, the most appropriate drug and alcohol rehabilitation centre for this offender is in the community, the Wayback program conducted at Harris Park.

Consideration of mental illness

The significance of mental illness in the criminal law is succinctly summed up by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, at [177]. "Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] - [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] - [51]; R v Harb [2001] NSWCCA 249 at [35] - [45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33] - [36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner: ● Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].

● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 - 51; Israil at [22]; Pearson at [42]; Henry at [28].

● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].

● It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].

● Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24]."

Of the five propositions commencing with bullet points, the first and the second are currently relevant. The third is hardly relevant because the offender has spent many years in gaol heretofore. He is used to the system. Indeed, when one looks at the notes contained on his custodial history, it appears that he does well in the custodial setting.
The fourth point is not currently relevant because this offender must be specifically deterred. Illicit drugs ruin lives, break up families, and disrupt communities. The offender has been involved in drug trafficking for many years and must give it up. Specific deterrence is, accordingly, necessary. The Crown argues that the fifth point is currently relevant because the community needs to be protected from the offender's continuing drug trafficking, and the prospects of rehabilitation are poor.
On that score, the first thing to note is it is clear from Dr Furst's formulation that the true cause of his addiction to drugs lies in his unfortunate childhood history, something over which he has had no control. He has been programmed to develop drug addiction and has done so trying to self-medicate to obviate the effects of the PTSD from which he suffers. Now that it is clear what is the cause, effective treatment can be offered to him, but it would appear that it cannot be effectively offered to him in custody. The effective treatment will be in the community on his discharge on parole. I intend to find special circumstances to give the offender a lengthy period on parole such that he can seek the treatment which he needs and avoid relapsing to drug use to cope with the effects of his chronic PTSD. In that way, he will cease to be a threat to the community because he will have been rehabilitated.

Age

The other thing which points in that positive direction is the offender's age. When released back into the community, he will be in his 60s. He should be looking forward to the marriages of his son and daughter, to having grandchildren, to retiring from the workforce and going onto a pension and/or superannuation to make life easier for himself and to enjoy a positive family life.

Character in custody

Before going further, I should just comment on a point that I have made about the offender's doing well in custody. Currently he holds a position of leading hand in the kitchen at the Clarence Correctional Centre. Exhibit 5 before me is essentially a contract of employment signed on 24 June this year between the operator of the Clarence Correctional Centre and the offender for his working as the leading hand in the kitchen for 42 hours a week over six days a week.
When I go to his past custodial history, I note that it was recorded in July 2011 that he was a kitchen sweeper with very good reports. In August 2012, it notes that the offender was at the Bush Farm Academy with very good reports, in other words, he was working in the rehabilitation area to assist other inmates. In January 2014 he was employed at a Correctional Centre as a gym sweeper and maintenance and buy-ups sweeper. In other words, his response to custody has been positive. Absent exposure to drugs and alcohol and absent other stressors, he appears to do well in the custodial area.
Again that, in my view, points positively towards rehabilitation, if he is given the assistance which he needs which is, clearly, mental health treatment. Of course, the offender's personal circumstances cannot wipe away the need for the imposition of punishment for the offences which the offender has committed.

Comparative sentences

In making my decision about the offender's future, I have been greatly assisted by the written submissions made on his behalf by learned Senior Counsel for the offender and by the reference to comparable sentences that he has made.
For the first four substantive offences, the maximum penalty is imprisonment for 20 years. Each of them carries a standard non-parole period of ten years. Each of them is a breach of s 25(2) of the Drug Misuse and Trafficking Act 1985. For the final substantive offence, an offence against s 7(1) of the Firearms Act 1996, the maximum penalty is imprisonment for 14 years and there is a standard non-parole period of four years. I must acknowledge those maximum penalties and standard non-parole periods. They are signposts which guide my path.
I have also taken into account the major decision relied upon by Mr Dalton SC, the decision of R v lL (No 4) [2014] NSWSC 1801, a decision of Hammill J.

Consideration of sentence

The first substantive offence is sequence 9. The allegation is that between 29 August 2020 and 3 February 2021 at Greenacre, the offender supplied an amount of prohibited drug, namely 630.26 grams of heroin being an amount which was not less than the commercial quantity applicable to that prohibited drug. The trafficable quantity of heroin is 3 grams, the indictable quantity is 5 grams, commercial quantity is 250 grams, and the large commercial quantity is a kilogram. One can see that this is about three times the commercial quantity but substantially less than the large commercial quantity.
The second substantive offence is sequence 10. Sequence 10 is an allegation that between 29 August 2020 and 3 February 2021 (however, differing to the Court Attendance Notice it states 10 February 2022 on the Charge Certificate) at Greenacre, the offender supplied an amount of prohibited drug, namely 285.48 grams of cocaine, being an amount which was not less than the commercial quantity applicable to that drug. The trafficable quantity of cocaine is 3 grams, the indictable quantity is 5 grams, the commercial quantity is 250 grams, and the large commercial quantity is a kilogram. One can see, therefore, that the amount of cocaine was over the commercial quantity but not a large amount over the commercial quantity.
The third substantive offence is sequence 16. The pleading in the Court Attendance Notice as amended by the Charge Certificate is that on 10 February 2021, at Greenacre, the offender did supply an amount of prohibited drug, namely 418.86 grams of methylamphetamine being amount which was not less than the commercial quantity applicable to that drug. The trafficable quantity of methylamphetamine is 3 grams, the indictable quantity is 5 grams, the commercial quantity is 250 grams, but the large commercial quantity is only 500 grams. Here the amount of the methylamphetamine was between the commercial quantity and the large commercial quantity.
The fourth substantive offence is sequence 17. The pleading in the Court Attendance Notice as amended by the Charge Certificate is that on 10 February 2021, at Greenacre in this State, the offender supplied an amount of prohibited drug, namely 853.74 grams of heroin which was not less than the commercial quantity applicable to that prohibited drug. Again, I have already recited the quantities here concerned. The amount was just under three times the commercial quantity of heroin but clearly well short of the commercial quantity of heroin.
I have already pointed out the allegations concerning the final substantive offence to which I will shortly refer as "the firearms offence".
The Form 1 attached to sequence 9 contains, as I pointed out, the three allegations of dealing with the proceeds of crime totalling an amount of just under $30,000 to which I have already referred.
There are two specific counts of supplying a prohibited drug, one of 6 grams of cocaine and the other of 107.94 grams of methylamphetamine. Referable to sequence 17, the fourth substantive charge there is again a Form 1 attached, again allegations of supplying on two occasions the prohibited drug cocaine, one specific amount being 70.5 grams of cocaine and the other being 17.42 grams of cocaine. It is really just an addition to the amount contained in the primary Court Attendance Notice.
I intend to impose an aggregate sentence. It is accepted that the offender is entitled to a discount of 25% on the proper sentence to be passed upon him because of an early guilty plea in respect of all relevant charges
For sequence 9, I commence with a head sentence of four years. Allowing a 25% discount that reduces to three years. For sequence 10, I commence with a term of five years. Reducing that by 25% one comes to a head sentence of three years and nine months. For sequence 16, I start with a sentence of six years. Reducing that by 25% one comes to a head sentence of four years and six months. For sequence 17, I start with a head sentence of three years. Reducing that by 25% one comes to a head sentence of two years and three months. For sequence 13, the firearms offence, I start with a head sentence of one year. Reducing that by 25% one comes to a head sentence of nine months.
Those five head sentences will be the indicative sentences. The total of the indicative sentences is, if my mathematics be correct, a period of 14 years and three months. However, as I said, I intend to impose an aggregate sentence. Doing the best that I can, I believe that the appropriate head sentence is eight years and six months, that is, eight and a half years imprisonment.
The question then becomes what the non-parole period should be. Applying the statutory norm, the non-parole period should be six years and four months. However, as I have pointed out, there are grounds for finding special circumstances. The finding of special circumstances must be related to rehabilitation, which it is. This offender needs the benefit of the "Wayback" program offered to him in the community at Harris Park. He must attend that program. I do not know how long that will take but it would probably take no more than a year. Nevertheless, the offender needs encouragement, when released in the community and having completed that course, to stay on the straight and narrow that he has learnt through that course. A long period of surveillance by Community Corrections could stop an early relapse to drug use, and therefore a lengthy period is required in the community.
I have come to the view that the appropriate non-parole period is a period of five years and three months, such that the offender will be on parole for a period of three years and three months. There is, of course, a consequence for the offender. If during that period of three years and three months he relapses to drug use, he will be taken back into custody to serve the balance of his sentence. That is a sword which will hang over his head and provide extra incentive for him to complete the drug and alcohol rehabilitation program to be treated for his post-traumatic stress disorder and to get his life back on to a heathy trajectory such that he can resume cohabiting with his wife and enjoy developments in his family as his children mature.

Seriousness of the offence

I have been asked by the Crown to discuss the seriousness of the offences. In respect of sequence 9, the Crown submitted that the objective seriousness was in the high range. For sequence 10, the Crown submitted that the objective seriousness was in the mid-range. For sequence 16, the Crown submitted that the objective seriousness was well above mid-range and the Crown made the same submission in respect of sequence 17.
Bearing in mind my analysis of the factual background, that is, what the offender himself did and why he did it, I would not find that the sequence 9 was at mid-range. It is a little below mid-range. As far as sequence 10 is concerned, in my view, it is below mid-range given the amount of cocaine involved.
In respect of sequences 16 and 17, I rate these slightly below the mid-range, again, because of what the offender did and why he did it, particularly when identifying that his activities were hardly sophisticated because he put himself in that position to be observed by the authorities, and therefore ultimately to have his drug trafficking activity shut down, he being under police surveillance from August 2020 until his arrest in February 2021.

Covid-19 and health-problems

I should add this as well that I am acutely aware of the effect of the Covid-19 pandemic upon our correctional system. I have pointed out that in early 2021 the problem had gone away. Of course, it had not. It recurred, and it looks like it will continue to recur repeatedly. I note that this offender was ill with Covid during his current incarceration, but I also note that when he was first admitted on this occasion that he was fully vaccinated. However, his age is of concern. He will soon enter his 70th decade when he turns 60. The older one is the more vulnerable one is to a Covid-19 infection.
I also note that the offender uses a sleep apnoea device, and that his health was impaired for a short while because his machine for regulating his sleep apnoea problem was not immediately available to him.
I note from the report of Dr Furst that the offender has a history, not only of obstructive sleep apnoea, but also of hypertension, and that he had suffered a stroke in 2008 from which he has largely recovered. He has been under the care of a cardiologist up until he was recently incarcerated.
In other words, because of his sleep apnoea and his age, the history of prior stroke, and his cardiac condition, he is more vulnerable than many in the Covid-19 pandemic. Despite the best endeavours of Community Corrections, it is still present in gaols, which are now often subject to lockdowns. Because of this, custody in recent times has become more severe than it used to be, and will probably continue to be more severe for at least the foreseeable future. That is something I have taken into account in fixing the sentence which I have.

Order

On each of the offences to which you have pleaded guilty you are convicted. I sentence you to imprisonment. I set a non-parole period of five years and three months commencing on 10 February 2021 and expiring on 9 May 2026. I impose a further period of imprisonment of three years and three months to commence upon the expiration of the non-parole period and expiring on 9 August 2029. The total sentence is therefore eight years and six months, comprising the non-parole period and the balance of the sentence. I have found special circumstances. You are eligible to be considered for release on parole at the expiration of the non-parole period. The three Forms 1 have been taken into account in the passing of that sentence.
Indicative sentences: 1. Sequence 9 - 3 years; 2. Sequence 10 -3 years 9 months; 3. Sequence 16 - 4 years 6 months; 4. Sequence 17 - 2 years 3 months; and 5. Sequence 13 - 9 months.
I direct my associate to forward to the Department of Corrective Services and to the manager of the Clarence Correctional Centre a copy of Exhibit 6, the report of Dr Richard Furst of 24 July 2022.
HIS HONOUR: No other orders sought? DALTON: No thank you, your Honour. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 November 2022

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