I propose to convict you of the ongoing supply matter and sentence you to 20 months imprisonment served by way of an Intensive Correction Order. In respect of the drive whilst disqualified matter, I am persuaded to record a conviction without further penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999, given the delay in your matter getting on and the resultant inconvenience. This case obviously should have been dealt with back in January but unfortunately the judge was unable to complete the matter. I am prepared to give you a reduced period of disqualification of three months.
To explain to the prisoner, primarily, but to the parties how I arrived at 20 months; it is a bit hard to work out where his Honour, sentencing a co-accused found a starting point in sentencing the other gentleman to settle upon 20 months. If he sentenced the other person to 21 months with a 25% discount for the plea of guilty, therefore, the starting point would have been 28 months. The starting point for this prisoner, in my view, in light of the commission of offences on conditional liberty with a slightly worse record, is 32 months. I had no idea what it would be once totalled, the combined discount. The combined discount for the prisoner was 37 and a half percent, that is 25% discount and 12.5% for cooperation. Just by mathematical chance the result turned out to be 20 months which is exactly the same, so I will explain how I came to that conclusion in detail now.
The prisoner appears for sentence today in relation to an offence of ongoing supply of prohibited drugs contrary to s 25A(1) Drug Misuse and Trafficking Act 1985 which carries a maximum penalty of 20 years imprisonment and or a fine of 3,500 penalty units. There is no standard non-parole period. The offence which involves three separate supplies to undercover operatives occurred on the one day. I accept for the purposes of sentencing, and relying on other material, that whilst it was an offence committed on one day and therefore can be seen discreetly in that regard, it was not an isolated offence and the prisoner's subsequent conviction for supplying prohibited drugs committed on 17 November 2018 reflects a modus operandi involved in the commission of this offence here.
R v BB [2020] NSWDC 812 | Case summary | Zoe
The prisoner also has for sentence a matter on a s 166 certificate. That is an offence of driving whilst disqualified. The prisoner's role in the supply of prohibited drugs in the principal charge was that of a driver, albeit that he and his companion were obviously part of a group of people acting as "runners" for a much more sophisticated organisation than this prisoner or his co-accused could themselves organise. That is not to say the prisoner was entirely naïve and it is quite clear from the details of his cooperation with the authorities which I will come to shortly, that he was able to gain information in a general sense about the mechanisms and methods of supply on an organised basis.
What dominates the sentencing of this prisoner from the outset is the fact that the prisoner had a co-accused who committed exactly the same offence for which he is to appear for sentence. The facts are identical in each instance and he was, as I understand it, identically involved with the co-accused again on 17 November for which they both have been dealt with in the Local Court, in circumstances where clearly principles of 'parity' of sentence arise significantly.
The co-accused was dealt with by his Honour Judge McClintock on 14 November 2019 in respect of exactly the same offence for which this prisoner appears for sentence today, that is, the "ongoing supply" of 2 November 2018. His Honour determined that the s 5 threshold had been passed. He determined imprisonment should be imposed but having regard to the objective criminality and the subjective circumstances of the prisoner, with a discount of a plea of guilty, the sentence to be imposed should be one of 20 months imprisonment. Then, as his Honour no doubt would always do, he correctly, by regard to the judgment of the Court of Criminal Appeal in Parente v R [2017] NSWCCA 284, which follows upon in this respect, decisions such as R v Douar [2005] NSWCCA 455 and R v Zamagias [2002] NSWCCA 17, that the term of imprisonment that he fixed upon was one that could be served by way of an Intensive Correction Order.
Parente of course is a leading judgment on drug supply sentencing and it is referred to in the Crown's written submissions, particularly at [107]-[115] which concluded that the proper approach to supply of drug cases was not to apply general slogans but to approach the matter by reference to the need to give due weight to general deterrence, protection to the community, regard to the maximum penalty and of course s 5 of the Act, applying all relevant sentencing principles before arriving at a correct decision, rather than simply determining a correct decision by some supposed rule of law that properly did not exist.
When one talks about parity of sentencing, to my mind, the best expression of what that represents and has particular salience in this sentencing exercise, can be found in the judgment of Rothman J. He is one of three Judges who gave extensive judgments in the decision of Jimmy v R [2010] NSWCCA 20. To paraphrase his Honour's far more eloquent method of expression, that parity at sentencing is an aspect of 'equal justice'. The Aristotlean principle of equality is this; alike shall be treated alike and the unalike shall be treated unalike to the extent of their unalikeness on rational and reasonable grounds. His Honour expressed it in slightly different terms but that is the effect of what his Honour said. To my mind, it encapsulates what parity in sentencing is about.
With regard to the facts of the events of 2 November which I am primarily concerned with, but also having regard to the subsequent offending which I will come to on 17 November, both this prisoner and the co-accused were involved in the same criminal activity. It is quite clear to me that the objective culpability of both men can be fairly said to be identical. Therefore, one has to turn to what differences there are between the two men that might otherwise separate or distinguish the result in the sentence to be imposed. To put it bluntly, this prisoner had a worse criminal history than the co-accused. The co-accused had a few minor convictions, this prisoner had convictions that are not only more extensive but represent more serious breaches of the law than the co-accused; not markedly so, but substantially so. This prisoner had findings of guilt in relation to larceny, enter a building with intent to commit an indictable offence for which at the Parramatta Local Court in February 2018, he was placed on three good behaviour bonds for a period of nine months. For some reason, it is not fully explained, he came back to the Fairfield Local Court, I would understand, in relation to the same offences. So when I say not explained, he was called up and the period of those good behaviour bonds was extended to 12 months, only three months after he first appeared in Parramatta Local Court. Thus, you have substantial convictions that are absent in the record of the co-accused.
This offender also had a finding of guilt in 2007 in relation to the use of a carriage service which would distinguish him from the co-accused. The other distinguishing feature between this prisoner and the co-accused was that this prisoner was in breach of conditional liberty in two respects. Firstly the offences with which I am concerned, primarily of course the ongoing supply offence, was in breach of conditional liberty and that is a significant aggravation required to be taken into account under s 21A(2) of the Act. In other words, an aggravating factor above and beyond existing aggravating factors that might be found under s 21A(1).
He was also in breach of a Community Corrections Order that had been granted to him on 15 October 2015 for driving with an expired licence. Now to be fair to him, that particular breach is not as significant as the other breaches of conditional liberty because, firstly, the offence is a relatively minor one, although he has during the time that I am concerned with on 2 November driven whilst disqualified, but also it is worthy to bear in mind in mentioning the breach of conditional liberty that when called up in relation to that breach, the learned Magistrate did what should have been done in the first instance and applied a modest fine of $300.
So there is a distinction to be drawn between this prisoner and the co-accused based on their criminal histories and because there is present an aggravating factor that was not present so far as the sentencing of the co-accused was concerned.
This prisoner is barely a year older than the co-accused so their ages are of little difference and otherwise they do not appear to be substantial matters that can be identified particularly from the Crown bundle. I do have the bundle of documents relating to this prisoner before me, Exhibit 1 and they appear to me to be matters very similar to those raised on behalf of the co-accused when sentenced by Judge McClintock. Albeit I note this prisoner is in current employment which is to his credit. This prisoner has at least attended on one occasion at Odyssey House, a modest step I hasten to say, for the purposes of addressing issues following for drug dependency. Thus, he has evidenced by his actions since his release on bail, more positive matters in support of his prospects of rehabilitation.
The other matter, however, were identifying as a distinguishing feature between this prisoner and his co-accused, absent in the sentencing of the co-accused is the extent of any discount that could be given. It seems to me clear, noting all that I have said up to this point, the starting point for any sentence to be imposed upon this prisoner, in respect of the ongoing supply matter, must be greater than the starting point as I would calculate it fixed upon by his Honour. His Honour sentenced the co-accused to 20 months imprisonment to be served by way of an Intensive Correction Order. Twenty is not easily divided by three and then multiplied by four but roughly calculating what the starting point was it would have been without the 25% discount, a starting point of 28 months.
I appreciate, it has been said many times that sentencing should not be more technical than it already is and that sentencing is not strictly an arithmetical exercise as Spiegelman CJ pointed out in R v Way [2004] NSWCCA 131, but it seems to me fair to conclude that in the case of this particular prisoner that the starting point for the sentence for the ongoing supply matter should be a starting point of 32 months. That is, two years and eight months imprisonment, marginally above but not significantly above the co-accused. That is because the primary matter to be considered in every sentencing exercise is the objective facts and the maximum penalty and the objective seriousness of the offending with which one is concerned.
I do not propose to go through the details of the facts. The truth of the matter is that by reference to the hundreds of cases that I have had to deal with, in all my time as a judge, since this offence was created back into 2000, this supply is at a very low level. It is street dealing, involving on one occasion 1.77 grams of cocaine, on another occasion 2.36 grams of cocaine and on another occasion 0.6 grams of cocaine. It is worth noting that these quantities in themselves are on the marginal level of trafficable and or indictable quantities. But having said that, it is clear too, that the prisoner and his co-accused were involved with an organisation, obviously beyond their control, and were hand maidens, if I can use that expression, or servants to that organisation. These organisations that supply prohibited drugs to the community in a widespread and systematic way are successful in doing that because people such as this prisoner make themselves available for that purpose.
Now having that said it seems to me that whilst it is an offence at a low level of seriousness of offences of this type, having regard to the quantity and the sums of money involved, the three supplies on the one day and the organisational way in which the prisoner was involved and the role he played in that, warrant a sentence that would require crossing the "s 5 threshold".
This prisoner, however, co-operated with the authorities in circumstances I do not propose to detail for the purposes of this judgment which is something the co-accused did not do. I have seen a confidential affidavit and I do not propose to go into the detail of that. It is quite unnecessary to do so but it is quite clear based upon the detail of the affidavit that I have been shown, that the co-operation provided by the prisoner was significant and dare I say, albeit that he was not arrested till two months after the commission of the primary offence with which I am concerned, it was timely. It was as a result of his co-operation that police were able to identify a substantial target and as the detail in the affidavit makes clear, a very substantial and valuable quantity of cocaine was seized as a result of the prisoner's co-operation. The prisoner's co-operation revealed detection of prohibited drugs that in quantity were 55 times more than the weight of the drugs with which the prisoner is currently charged with supplying.
Now of course I cannot infer adverse to the prisoner that this substantial quantity of drugs was something of which he would have direct knowledge. But it is quite clear that he had knowledge of matters that could assist the police to find people significantly involved in drug trafficking and worthy of investigation and receiving substantial penalties. So we have the situation, adding up all the issues I have to take into account, that in my view, this prisoner is entitled to a discount above and beyond the discount for the plea of guilty, which is 25%, having being committed for sentence from the Local Court.
I have concluded, notwithstanding the fact the prisoner is not required to give evidence in the future, that the discount for that co-operation, noting all that is required under s 23 of the Act, should be an additional 12½ percent on top of the discount for the plea of guilty. Thus, the prisoner is entitled in my view to a combined discount of 37½ percent. Of course there is some debate that has been going on for 20 years in the Court of Criminal Appeal about whether the discount should be staged or combined. The easiest way to deal with this particular matter that would cause no injustice to the ultimate result is to combine a discount. The ultimate sentence imposed would be slightly less if it was a staged discount.
I know there were differences of opinion about that. For example, Beazley J in the decision of R v El Hani [2004] NSWCCA 162, thought that a discount should be staged, but Hodgson J and other decisions of the Court of Criminal Appeal felt that the discount should be combined. In reference to El Hani which is a case if my memory serves me correctly, cited by learned counsel for the prisoner, there was a discussion concerning what the range of discount should be for co-operation. There was a time when in fact discounts given for co-operation were much greater than they have been over the last 15 or 16 years. Partly I am responsible for that because back in 2004, I sentenced a man called Sukkar; R v Sukkar [2006] NSWCCA 92; a case not cited by the defence although I do not blame the defence for that, where I gave him a substantial discount for co-operation which the Court of Criminal Appeal reduced substantially. Justices Howie and Latham reflected upon the then state of the law about the extent of discount for co-operation. Times have changed since the 1990s and the decisions of R v Cartwright (1989) 17 NSWLR 243 and the like, because since Thomson and Houlton v R [2000] NSWCCA 309, the Courts were required to give a specific discount for pleas of guilty. Most people who co-operated pleaded guilty and thus the idea of a combined discount, involving both a plea of guilty and co-operation, had led ultimately to a paring back or a reduction of what had been previously accepted as an appropriate discount for co-operation.
Counsel for the prisoner cited El Hani to which I made reference ([2004] NSWCCA 162, particularly at [66]) and another decision R v SZ [2007] NSWCCA 19. Interestingly in El Hani, Beazley J's judgment which favoured a staged discount, her Honour ultimately, when she recalculated the sentence gave the prisoner a combined discount. But be that as it may, this is not a case where anything turns upon either one of those approaches. I accept by reference to the submissions made by counsel for the prisoner that the co-operation in context was timely, specific, valuable and had a degree of risk, but most importantly was successful from the perspective of the police who had the difficult task of enforcing the law, endeavouring to infiltrate organisational crime which is very hard to do. Thus, with regard to this prisoner as opposed to his co-accused, the combined discount being 37½ percent, he is entitled to a greater discount than the co-accused is entitled to in circumstances where the starting point for the sentence for him is greater. The mathematics led me, without having foreseen that this would be so, to this prisoner receiving the same sentence as his co-accused. I do not think any injustice is done either to the co-accused or to the prisoner.
With regard to this prisoner, I have a Sentencing Assessment Report. He has previously been under supervision. The Sentencing Assessment Report notes his co-operation, his past anti-social conduct, his expressions of regret, his consideration now of the impact upon this offending which he did not have at the time of the offending, his attendance on a "traffic offender program" and his willingness to engage in community service work. The Community Corrections report noted that he had previously performed work as part of an Intensive Correction Order at a "borderline satisfactory level" and was at a "medium to low" risk of re-offending. The report noted that he would be suitable to serve community service which I believe he should do as a condition of the Intensive Correction Order that I foreshadowed.
This does lead me to acknowledge, as I have already mentioned in passing, the fact that since the offending with which I am now concerned, the prisoner committed the offence on 17 November in conjunction with the same co-accused in exactly the same circumstances of supplying a prohibited drug in two quantities. As I would understand it, a "small" quantity and also an 'indictable quantity', albeit on the margin, but also dealing with proceeds of crime. I have been provided with the facts of those matters. This prisoner received an Intensive Correction Order for a period of nine months, each sentence concurrent with the other, commencing on 1 May 2019. Those offences were obviously committed after the offences with which I am now concerned and they only have relevance in a sense in assessing his prospects of rehabilitation. But, his prospects of rehabilitation, it seemed to me, can best be measured, not by what he did after 17 November when these respective offences were committed, but by regard to what he has done since he was charged in January with the current offences with which I am concerned. To my mind, he has demonstrated that he does have good prospects of rehabilitation and is unlikely to re-offend, two substantial mitigating factors under s 21A(3).
He has demonstrated additionally, remorse for the offending in these ways. Firstly, his early plea of guilty. Secondly his co-operation for which he of course gets a discreet discount and, thirdly, the insight that he has displayed in his letter of apology to me and, fourthly by the steps he has taken, albeit I have to say, rudimentary steps he has taken to avoid further drug use and thus, further offending. Because it is part of the factual matrix of this offending with which I am principally concerned at the moment, that the prisoner is a person who was a user of drugs. But I have no doubt too that his involvement in the offence was for the benefit of financial gain, albeit, a modest financial gain.
The letter of apology expresses not only regret but some insight into the character of his offending and steps that he has taken to avoid further offending. I have a character reference from a friend who has known him for approximately four years. It would appear she knows the prisoner through her daughter and she speaks positively of aspects of his character, although the period of time of which she speaks includes a period of time during which he committed a number of offences.
I am prepared to accept there is a positive side to his character, again evidenced by the co-operation to which I have referred. I mention the one day attendance upon Odyssey House, that is, back in January 2020. More could be done in that regard, but at least that is a start. I have a reference from an employer who speaks positively of his industry and of the prisoner being an honest, trustworthy and reliable employee with a willingness to learn. The conduct that the prisoner disclosed to his employer is a "shock" to that person.
I have a number of payslips. Interestingly enough, they seem to extend before and beyond the period of time that the prisoner was initially employed. I do not know why there is some inconsistency there but I am prepared to accept he is currently in permanent employment.
There are also some urinalysis certificates that have been obtained. One from 5 March, another from 12 March, another from 26 June. That is quite recent bearing in mind today is 30 June. They indicate there have been no detections of prohibited drugs in urine samples taken from the prisoner, assuming of course the taking of those urine samples had integrity.
As I have said, I have had regard to his Honour, Judge McClintock's judgment. His Honour's analysis of the facts is the same as mine. We are both dealing with the same objective seriousness of offending with slightly subjective circumstances.
By reference to s 21A(2), I found the principle aggravating factor is that the offences were committed on conditional liberty. By regard to the mitigating factors, I find on behalf of the prisoner the plea of guilty further is a mitigating factor. Obviously I cannot find by reason of his criminal history that the prisoner was a person of good character or did not have a record or significant record of previous convictions, but then again it is not a record that in my view disentitles him to any particular leniency and certainly is not an aggravating factor in this sentencing exercise.
Both parties as I have earlier mentioned, prepared helpful written submissions, some of which I have referred to. In fairness to the learned Crown Prosecutor who prepared the written submissions handed up today, she did so before the prisoner's co-operation was known to the Director. That is a matter that is acknowledged by the learned Crown Prosecutor who appears today. Her submissions about assessing the objective seriousness, the character of the offending, it seemed to me are quite correct. She was correct to submit that the s 5 threshold had been passed. She was correct to submit to me that the "purposes of sentencing" are all to be taken into account, particularly giving due weight to general deterrence and personal deterrence, making the prisoner accountable for his conduct, realising harm done to the community by his conduct, albeit, it is to be acknowledged that drugs were given to an undercover police officer and not passed to the wider community. Then again, of course, the prisoner was not to know that the person he was dealing with was an undercover police officer. But it is an objective factor that the drugs themselves are not passed to the community.
I do not believe there is a significant need to protect the community from the offender and I am additionally required, as s 3A makes clear, to promote the rehabilitation of the offender. As the High Court said in Veen v R (No 2) [1988] HCA 14; 164 CLR 465, the purposes of sentencing, of which their Honours identified four out of the current seven, are like guideposts. They point in different directions. It very much depends on the character of the sentencing exercise with which one is then concerned.
So turning back now to Parente, having regard to the orders that were made in relation to the co-accused, stating the distinctions between this prisoner and the co-accused and of course the common elements, I have concluded that in respect of the principal offence, the ultimate sentence to be imposed should be one of 20 months which will be the same as for the co-accused but it will be served by way of Intensive Correction Order.
The prisoner was driving whilst disqualified. He was a driver for his co-accused who seemed to have the job of handing over the drugs to prospective buyers. There is nothing suggested in the facts the prisoner was affected by drugs at the time of the driving. There is no suggestion that there was some character of his driving which caused a danger to the community. It seems to me, bearing in mind the penalty I am imposing for the principal offences, that even if I was to impose a Community Correction Order for that offence, it would have to run concurrently with the other order and little purpose can be served in that.
As of the period of disqualification, ordinarily I would be more inclined to impose a disqualification of six months which I am told is the mandatory period of disqualification, the minimum period being three months. But given the fact that this case was before this Court in January and through no fault of the prisoner, through no fault of the Court, through no fault of the Crown, the matter had to be stood over for a period of five months and the prisoner has been left in a state of uncertainty, and has been subject to bail conditions which have restricted his liberty, I am prepared to order the minimum period of disqualification which would be three months that will start from today, as his counsel submitted I should.
You can stand up please BB. In relation to the ongoing supply matter, you are convicted. There being no other appropriate penalty, you are sentenced to a term of imprisonment of one year eight months. Pursuant to s 7 of the Crimes (Sentencing Procedure) Act 1999, the sentence proposed upon you is to be served by way of an Intensive Correction Order. That sentence will commence today 30 June 2020.
The standard conditions of the order apply:
You must not commit any offence.
You must submit to supervision by a Community Corrections officer.
The following additional condition applies:
You will be required to perform community service work for 150 hours.
If you fail to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or the State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions or it may involve a revocation of this order.
The offender is to report to Blacktown Community Corrections as soon as possible but within seven days from today.
Finally, you are now directed to attend the Court registry, where a copy of this order will be explained and given to you.
The back-up offences, sequences 2, 3 and 4 are to be withdrawn and dismissed.
In relation to the drive whilst disqualified matter, you are convicted pursuant to s 10A Crimes Act (Sentencing Procedure) Act 1999. You are disqualified from holding a motor vehicle driver's licence for three months to date from today, 30 June 2020. To drive whilst disqualified would be a serious breach of the Intensive Correction Order. It would inevitably lead to you being in prison.
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Decision last updated: 18 January 2021