R v Benjamin Adam Miles

The sentence hearing

1. The sentence hearing took place at Queanbeyan District Court on 26 May 2016. The Crown bundle on sentence became Ex A. It included an Agreed Statement of Facts which may be summarised as follows.
2. The offender was born on 27 December 1990 and was 25 years of age at the time of his arrest. In June 2015, New South Wales Police formed Strikeforce Hiems to investigate the supply of prohibited drugs in Jindabyne in the New South Wales snowfields during the 2015 snow season. A controlled operation was authorised on 23 June 2015 in relation to the supply of prohibited drugs involving the offender. The first charge of ongoing supply between 2 July 2015 and 29 July 2015, involved three occasions (sequences 1, 2 and 3) whereby the offender supplied MDMA. On the first occasion (sequence 1), he supplied a female known to police MDMA in exchange for $2,990.00. On that occasion he was recorded as saying he had a large customer base and he encouraged the female to purchase larger quantities of the drug. He stated he was capable of supplying multiple ounce weights for $4,800.00 each, and that the female should put the drug into gel caps to sell them to maximise her profit. After the female gave him $2,990.00, the offender walked to premises at Gippsland Street, Jindabyne, and returned a short time later and supplied her with 13.70 grams of MDMA. That was analysed with a purity of 67%. The indictable quantity is 1.25 grams and the commercial quantity is 125 grams. The large commercial quantity is 500 grams.
3. The second occasion of supply in respect of Count 1 occurred on 23 July 2015 at Lake Jindabyne Hotel. The offender supplied 51.72 grams of MDMA to a female known to police in exchange for $9,000.00. The substance supplied was analysed with a purity of 72%.
4. The third occasion of supply in respect of Count 1 occurred on 29 July 2015 at the Jindabyne Bowling Club. The offender supplied 56.80 grams of MDMA to the same female for $9,000.00. During that exchange, the offender encouraged the female to purchase larger quantities of drugs and quoted $4,300.00 per ounce if she purchased more than 4 ounces at a time. The offender reassured the female that he would still be making money on the deal, and asked her to refer to the drug as "cheeseburgers" when she rang to place an order. He explained that one cheeseburger would equal one ounce (28.4 grams) of MDMA.

Count 2

1. The second offence of supply large commercial quantity of MDMA, pursuant to s 25(2) of the DMTA, involved three occasions between 2 July 2015 and 20 August 2015, when the offender supplied the same female with a total of 515.82 grams of MDMA. The purity of the MDMA was of a very high potency. The amount of drugs supplied had the potential to make 40,000.00 street deals of the drug. The first occasion pursuant to this count on which MDMA was supplied by the offender was on 5 August 2015. Four ounces of MDMA were supplied for $17,200.00. The offender gave the female his car keys and directed her to go the car park of the Lake Jindabyne Hotel. The offender was then observed to enter premises in Gippsland Street, Jindabyne, for a short period before walking to the car park of the Lake Jindabyne Hotel, where he supplied 111.38 grams of MDMA to the female.
2. The next occasion (sequence 6) occurred on 12 August 2015. The offender met the female at the Jindabyne Bowling Club and negotiated the sale of MDMA. During their discussion, the offender told the female that he could source cocaine and methylamphetamine ("ice"). He quoted the female $7,500.00 per ounce for cocaine and stated that it was of high quality. He asked her to refer to cocaine as "drinks" when ordering the drug over the phone, and that one drink would equal an ounce of cocaine. He asked the female to refer to methylamphetamine as "fries", and again, one fries would equal an ounce. He joked that if all three were ordered, it would be a "meal deal".
3. The offender asked the female to order the MDMA in half pound (227 grams) amounts where she could, as it would save repacking the drug. He also told the female that if she was purchasing the MDMA in quantities greater than half a pound, then he would charge her $3,800.00, but reassured her that he was still making money on the deal.
4. The female later handed the offender $19,350.00 for an agreed 4½ ounces of MDMA. He gave the female his car keys and directed her to go to on-street parking in The Park Road, Jindabyne. He was then observed to walk and enter the same premises at Gippsland Street, Jindabyne, for a short period, before walking to where the female had parked. He then supplied her with 125.80 grams of MDMA. The substance supplied was analysed with a purity of 78%.
5. During the same meeting, the offender was recorded while he supplied the female with 10 ounces (278.64 grams) of MDMA in exchange for $38,000.00. This substance was analysed with a purity of 65%.
6. The third offence of supply prohibited drug - large commercial quantity of MDMA pursuant to s 25(2) of the DMTA occurred on 27 August 2015 at the Bullocks Flat ski tube station, where the offender supplied 681.6 grams of MDMA to the same female in exchange for $91,200.00.
7. The fourth offence of supply prohibited drug - commercial quantity of cocaine pursuant to s 25(2) of the DMTA occurred on 27 August 2015 at Bullocks Flat ski tube station, where the offender supplied 284.0 grams of cocaine to the same female in exchange for $75,000.00. The indictable quantity of cocaine is 5 grams. The commercial quantity is 250 grams and the large commercial quantity is 1,000 grams.
8. The fifth offence of supply prohibited drug (methylamphetamine) pursuant to s 25(1) of the DMTA, occurred on 27 August 2015 at the Bullocks Flat ski tube station where the offender supplied 56.8 grams of methylamphetamine to the female in exchange for $23,800.00. The indictable quantity is 1.25 grams. The commercial quantity is 125 grams, and the large commercial quantity is 500 grams.
9. The Agreed Facts recount the following history in relation to the charges which the offender has asked the court to take into account on the Form 1. They are as follows. 1. Sequence 7 - On 20 August 2015 the offender supplied 28.19 grams of cocaine to a female known to police at Bullocks Flat ski tube station in exchange for $7,500.00. On that occasion the offender told the female that if she purchased the cocaine in pound quantities (454 grams) he would be able to bring the price down to $7,300.00 and he would still make money. The substance supplied was analysed with a purity of 28.5%. 2. Sequence 8 - During the same meeting, the offender supplied the female with 0.64 grams of methylamphetamine as a sample at no cost, so she could assess how much of the drug she wished to purchase in future. 3. Sequence 15 - Upon his arrest on 27 August 2015, the offender was searched. Investigators located in his top breast pocket a clear plastic vial with a black screw-on lid containing a white powder. The offender told the police that the contents of the vial was cocaine. This was an offence pursuant to s 10(1) of the DMTA. 4. Sequence 16 - The offender was conveyed to premises in Gippsland Street, Jindabyne, and a search undertaken pursuant to a search warrant, during which the offender nominated his bedroom and a wooden chest which contained a small plastic resealable bag containing a white powder. The offender stated the powder was MDMA powder. This was an offence pursuant to s 10(1) of the DMTA. 5. Sequence 17 - Also located within the wooden chest were a total of 77 oxycontin tablets. The offender stated the tablets were oxycontin tablets and that he did not possess a prescription for them. This was an offence pursuant to s 10(1) of the DMTA of possess prohibited drug.
10. The Agreed Facts include a request for a Drug Proceeds Order pursuant to s 29 of the Confiscation of Proceeds of Crime Act 1989, for the sum of $103,040.00, being the amount the offender received benefit of as a result of the supply of prohibited drugs. On conviction, a further order is sought for the destruction of prohibited drugs retained by the New South Wales Police.
11. Exhibit A contained the criminal records section search which revealed that the offender had no previous convictions.
12. A New South Wales Department of Corrective Services record showed that since 26 October 2015, the offender has been in custody on remand at Goulburn Correctional Centre. He has one disciplinary matter involving preparation and manufacture of alcohol, plus one positive urine test for drugs whilst in custody.
13. Exhibit B was a Pre-Sentence Report prepared under the hand of Mr Brett Bannerman on 16 February 2016. The report clarified the positive urine sample whilst in custody as being for Mirtazapine, (an anti-depressant) for which he was not prescribed at the time.
14. The report gave a history of the offender's family and social circumstances. It noted that the offender retains the support of his parents, with whom he is close. At 18 years of age he suffered a traumatic relationship breakdown. The offender took 5 years to complete a 3 year university degree, and was financially supported during that time by his parents. He also worked casual jobs in hospitality, retail and as a snowboard instructor, and travelled overseas on three occasions to compete professionally in snowboarding. He also developed aspirations to open his own business in clothing and snowboard instructing, however, at the time of his arrest, he had been terminated from the position as a snowboard instructor, and was in receipt of New Start benefits. He acknowledged to the author of the report that he spent his time using illicit drugs and "going to parties".
15. The offender commenced using illicit drugs and alcohol whilst at boarding school in year 10. This continued at university where he had seen a psychologist to address his drug use, however, the treatment effects were only temporary. At the time of his arrest, he was consuming marijuana on a daily basis, regularly using cocaine, and using MDMA three times a week. He estimated he was spending $250.00 a day on his illicit drug usage.
16. The offender's explanation for his drug use in custody was that he was depressed and needed help sleeping and hence, he sourced illicit anti‑depressants from other inmates. The alcoholic brew that he was making was alcoholic vegemite based liquid to help him celebrate Christmas. He has now acknowledged the extent of his addiction and has agreed to accept interventions to target this issue. At the time of his report, he had yet to be assessed by Justice Health for his mental health issues, however, he is now being treated appropriately, and has been prescribed Avanza, an anti‑depressant.
17. Under the heading "Attitude to Offending", the offender stated that his original intention in selling illicit drugs was to sell one ounce of MDMA during the snow season in order for him to have enough money to live on and finance his own illicit drug habit. He stated that when the opportunity to sell more arose, he took it, and that "things got out of hand". He tended to accuse the police of entrapping him, however, he acknowledged that he had made the decision to sell and had made poor choices in doing so.
18. The offender was assessed as a medium risk of re-offending. His identified criminogenic needs are:

• Education/employment
• Companions
• Alcohol/drug problems
• Emotional/personal

1. The author of the report assessed the offender as a young man who had a choice of careers in industrial design, professional snowboarding, running his own business, or snowboarding instruction. He had the educational and physical qualifications, together with the family support, to succeed in any of those careers, yet chose to supply illicit drugs. His belief that his drug use is linked to a relationship breakdown was tenuous, as he was using illicit drugs prior to the breakdown.
2. The offender's lifestyle was described as "hedonistic", as he worked casually throughout university, travelled overseas when he was able, and indulged in a lifestyle replete with illicit drug use and self-centred activities such as heavy partying. Although he was on Government benefits, and also receiving financial support from his parents, he engaged in dealing illicit drugs.
3. The author noted that, to his credit, the offender maintained his family relationships and has agreed to undertake interventions to address his illicit drug use. A suitable program for him would be the 40 hour EQUIPS Addiction Program, and, depending on assessment, residential rehabilitation programs ranging in length from 3 to 18 months. Dependent on his classification, the offender may also be eligible for the 12 months custodial based Intensive Drug and Alcohol treatment program. It was considered that he would benefit from a period of supervision with case management strategies directed towards those rehabilitation programs, together with monitoring of his drug usage, by way of urinalysis and referral to a job network provider, or monitoring of employment. He was assessed as unsuitable for a Community Service Order.

The offender's evidence

1. The offender gave evidence. He said he was very nervous and therefore had prepared a two-page document for the Court which was tendered and became Ex 1. The document was an apology to the community for his criminal conduct. It set out his family history. He grew up on a cattle farm in Northern New South Wales, in a loving family. He has one sibling, an older brother. He attended boarding school and gained a quality education. At school he had travelled to Fiji to work at an orphanage and later he went to New Zealand and Canada as an exchange student. It was in Canada that he was first exposed to drugs, which he described as being "a normal thing in Canada", and he found acceptance from his peers by partaking in drugs. He used ecstasy on weekends and smoked cannabis on a regular basis.
2. As he finished year 12 at school, the offender went through a relationship breakup, which led to an attempt to take his own life with a mixture of drugs and alcohol. Following that incident, which he described as a pivotal point in his life, his drug taking changed from social to habitual. He said he would use drugs daily to stop the "emotional pain". During his five years at university, he spent a winter season working as a snowboard instructor. He experimented with other drugs including LSD, cocaine/crack cocaine, benzodiazapam, oxycodone and various amphetamines. The offender stated that there were times when he would quit for a few weeks, but only when he was living with his parents, as they had raised him to be a gentleman, and he was embarrassed by his addiction at that time. His parents also lent him money to pursue his snowboarding overseas, however, they were unaware that he was spending a lot of the money overseas on drugs. The offender said that he was thankful for his arrest, because it had brought everything out on the table with his parents, whereas previously, there were lies and deceit. He now has nothing but their trust and love, and it has made their relationship stronger. The offender described his drug use as costing him upwards of $200 per day.
3. The offender stated that he was introduced to a female who claimed to be a brothel owner, and was interested in buying large amounts of MDMA with cash up front. At the time he had a contact who would essentially give him whatever drugs he required on loan. The offender stated that he knew that he was in "over his head", however, he could only think of supporting his ever growing drug habit. At the time he stated that he "loved cocaine", but had never seen or sold ice.
4. Since his incarceration, the offender said that he had seen the darker side of society that is driven by drugs and drug usage, and in particular, ice. He stated: "I am so disgusted in myself for attempting to feed my selfish drug addiction by taking advantage of the lower levels of society. Experiencing this has made me realise the path that I was on myself, which I am sure would have eventually led me to ice myself."
5. The offender went on to describe seeing drugs being used intravenously in gaol and having witnessed three separate stabbings and countless fights. He described his offences in gaol as minor relapses and poor judgments, namely, brewing some alcohol and self-medicating with anti-depressants. He had been waiting since late November 2015 to see a psychiatrist about being prescribed the same medication, namely anti-depressants.
6. The offender stated that he was deeply sorry for his actions. He was particularly sorry for the stress that he had put on his parents, physically and mentally. His father is almost 90 years old, and the offender stated that he felt "horrible that he could pass away before the offender got the chance to make him proud of me again". He now fully understood the seriousness of his crimes and how it affected the community. He planned to spend his time in incarceration bettering himself with education and learning ways to deal with his addictive personality, so that when he reintegrated into society, he would become a positive influence on the people around him.
7. The offender stated that his plan on release from gaol is to help his parents and to further his clothing brand "Snowbones", and ultimately start a small freestyle/free ride coaching camp in the snowy mountains to help others learn the sport that he grew to love so much. He understood that it will take the rest of his life to accomplish this, and that many of his family and friends are going to be divided over the seriousness of his offending.
8. In his evidence in chief, the offender described his consumption of "extreme amounts" of illicit drugs as involving him smoking cannabis at breakfast time, and up to 2-3 grams in the morning. He would roll joints for his use during the day and took a bong with him in the car.
9. The offender described being in "a very bad place mentally" since his incarceration and his depression went untreated until recently. He was, however, incredibly remorseful for his offending. He had never before been exposed to intravenous drug use, which was rampant in gaol, and he expressed how sorry he was that he had tried to sell drugs to the "lower rung of society". He was thankful, however, he now had a more honest relationship with his parents. The offender gave evidence that upon release from gaol, he would never reoffend. He wanted to stop all drug usage. Goulburn Correctional Centre was a maximum security gaol, which he had found terribly difficult. He had lived in fear and had witnessed countless fights and three stabbings in his time there. It was very confronting for him.
10. In cross‑examination, the offender was asked whether he was in protective custody. He agreed he was, but said that his own cellmate had been stabbed multiple times and had boiling water poured over him. The offender agreed that he had had a privileged upbringing with a loving and supporting family, had been sent to a good school, and taught to be a gentleman. He first experimented in illicit drugs when he was 16 years of age and on exchange in Canada. On return from Canada, he found people to hang out with, and to get drugs from. After he completed year 12, the offender started working at Perisher. He was living his dream, and had been talented enough to obtain sponsorship as a snowboard rider in competitions. He was asked whether that gave him "celebrity status", and conceded that he was known around the area.
11. The offender was asked about his clothing range "Snowbones", and whether it had a cult following. He answered "Yes and no", that it was well known within a close group of friends, but he had given product away to promote the business and borrowed from his parents to finance the business. He had made no profits and any money he had went on buying drugs. That continued for 18 months leading up to the offences.
12. At the time of his arrest, the offender was paying $100 per week rent on the premises in Gippsland Street, Jindabyne, where a few people lived. His parents had helped him pay for his car. The offender gave evidence that it was common within his peer group to use illicit drugs and he found acceptance from his peers. His drug use had been a problem for him at university, causing him to hand in assessments late and he did see a counsellor at one stage, however the treatment did not help him.
13. The offender was cross-examined about his statement to Professor Ogloff, that he felt that he had been "set up" by police to sell drugs. Up until that time, he had only been selling small amounts to offset his own usage. However, the police intervention meant that he was supplying ever increasing amounts and he felt that the controlled operation could have been stopped a bit sooner. Notwithstanding that, the offender said that he took full responsibility for what he had done. He knew that the police were often at the snowfields because of rampant drug use there, however, he was using illicit drugs so much, that he could not think straight at the time.
14. As to the recorded conversations with the undercover police operative, the offender acknowledged that in those conversations he had encouraged the female to buy larger quantities of drugs. When asked why, he said he was trying to impress her by saying he had a large client base and that if she bought larger amounts it would be cheaper.
15. The offender also acknowledged that he had told the female that he would not have the drugs and the money in one place because of the danger involved. He agreed that he was capable of arranging his daily affairs, notwithstanding his illicit drug taking, and that his "up-supplier" was prepared to supply him without him paying. However, there was no profit, he would merely buy drugs straight off that supplier again.
16. The offender described his co-offender as a close friend. He agreed that the drugs they supplied were of high purity, and that he had spoken to the police undercover operative about putting those drugs into gel caps, for the purpose of on-supply.
17. The offender gave evidence that upon his return from a snow season in Canada in May 2015, he went home to his parents in Armidale. At the time he was ashamed of his drug addiction and on arrival home he would be moody and find it hard to sleep for some time.
18. The offender also gave evidence that he had taken oxycontin for an injury he received to his hip, and that he had increased his usage of cocaine whilst in the USA where it was very cheap.
19. The offender had described his time in gaol as "horrible" and that "every day was terrible". He had now been prescribed anti-depressants for the last two weeks, which had levelled out his mood.
20. The offender described the time before he was arrested as a time in which he took "so many drugs". He had been teaching before he injured his arm, but was generally late turning up to lessons. The offender stated that he loved snowboarding and agreed that he had been enjoying a hedonistic lifestyle. It was put to him that that lifestyle was all about him enjoying himself, however, the offender said it was more about his drug taking than enjoyment.
21. Exhibit 2 was a bundle which included a statement from the offender's mother, Mrs Annette Miles, a reference from the headmaster of the Armidale school dated 3 February 2016, and the offender's school and university records, a reference from Mr Kim McConville, and various records relating to the offender's clothing business "Snowbones".
22. Exhibit 3 is a report from Professor J Ogloff AM, dated 11 March 2016.
23. Exhibit 4 comprised six testimonials written on behalf of the offender, all of which bespeak of the offender's previous good character, his qualities as a good and loyal friend, his remorse for his criminal behaviour, and how out of character that behaviour has been by offending in the way he has.
24. Exhibit 5 comprised two certificates the offender had received since his incarceration.

Evidence of Mrs Annette Miles

1. The offender's mother, Mrs Annette Miles, also gave oral evidence on behalf of the offender. She had seen her son frequently whilst he has been in custody, and gave frank and candid evidence that it was her great regret that she had, up until the time of his arrest, no idea as to his drug use. He had returned home on a regular basis approximately three times per year, and she had noted that he always took a couple of days to settle at home. He was now 25 years of age and she had introduced him to skiing at a very young age. She and her husband had supported him in all of his endeavours, however, she conceded that he had concealed his drug use from them. They had tried to give him every opportunity, for example, school excursions to Fiji and an exchange to Canada.
2. Since his incarceration, the offender had been more open in talking to his parents. Mrs Miles believed that he had matured and he was now not as naïve and gullible as he was, and was much chastened by his experience. She gave evidence that great opportunity will come out of his arrest and incarceration. He had realised the error of his ways and in her opinion, would be a much better and productive member of our community upon his release from gaol.

Report of Professor James Ogloff AM

1. In his report dated 11 March 2016 (Ex 2), Professor Ogloff set out various opinions following his mental health assessment of the offender on 24 February 2016 at the Goulburn Correctional Centre. Professor Ogloff also met the offender's parents on that day. Under the heading "Psycho-social History", Professor Ogloff set out the offender's family history and it was clear that he was raised in a loving and protective environment. He attended Walcha Primary School to grade six, and thereafter was sent to Armidale to boarding school. He enjoyed working on the family's cattle property, and did well at the school in the subjects that he was interested in. In year 10 he did an eight week exchange to a prestigious private school in Calvary, Canada. It was there that he started smoking cannabis. He also developed a passion for skiing and snowboarding and gained acceptance by his peers. After school he obtained his professional snowboard instructor's certificate and from 2010 he attended the University of Canberra, enrolled in a Bachelor of Industrial Design degree. He continued to work as a snowboarding instructor and entered snowboarding competitions during the winter months with some considerable success. He was able to obtain sponsorship by snowboard companies. He graduated at the end of 2014, and in early 2015, he travelled to the United States for snowboard training, returning to Australia in May 2015. He returned to Jindabyne in June and had a snowboarding accident in July, where he reinjured his collarbone.
2. The offender also reported to Professor Ogloff that he had had a number of failed relationships which had, as a young man, left him in a depressed mental state. He was very motivated to attend intensive substance abuse rehabilitation and over time would like to continue his studies in industrial design, developing his skills, doing a business course and web design.
3. Professor Ogloff took a history of drug and alcohol use, which he described as "long standing and insidious". He developed an increasing dependence on drugs and used them to elevate his mood, feel euphoric and to make him feel like he could fit better into groups of his peers. He was also a heavy alcohol user. He believed that he could control his drug use, however, over time he realised that that was not true. He was afraid and ashamed to turn to his parents and family for help.
4. The offender underwent psychological testing and a mental state examination. He presented with very low self-esteem and felt inadequate, and was ashamed of his offending. Professor Ogloff formed the opinion that the offender has depressed mood and co-occurring anxiety. He suffered an Adjustment Disorder with clinically significant symptoms of depression and anxiety. The offender also met the co-morbid diagnosis of Poly Substance Use Disorder to alcohol, cannabis, amphetamines, stimulants, and hallucinogens. That disorder was in partial remission.
5. The offender told Professor Ogloff that he sold drugs to fund his own drug habit and to obtain money to pay for his living expenses. When challenged about the amount of money he was going to receive for the final transaction on 27 August 2015, being surely more money than he needed for those things, he agreed and said that things just got "out of control and he was caught up in the moment". He told Professor Ogloff that he felt "set up" to sell drugs by police and in retrospect, he should have known better. He was just not thinking clearly at the time and things "snowballed" out of control for him.
6. Professor Ogloff made his own assessment of the risk of the offender re‑offending in the future. The result of that testing was that his level of risk for re-offending is at the bottom of the medium or top of the low level. His risk factors that were most significantly elevated were alcohol/drug problems, criminal companions and leisure/recreation. Professor Ogloff was of the opinion that the offender requires intensive substance misuse rehabilitation to help him address his long-standing poly substance misuse.
7. In Professor Ogloff's opinion, the offender's judgment and insight were affected by his drug abuse, however, he did not possess the classic criminogenic features such as anti-social attitudes or behaviours. Professor Ogloff concluded: "If Mr Miles can continue to refrain from drug misuse, he has many strengths that will help reduce the likelihood that he will re-offend."

The Crown submissions

1. The Crown submitted that the criminal offending here in respect of each offence was towards the mid-range. The offending had taken place over an eight week period in which the offender had sold in the order of $300,000.00 worth of prohibited drugs. Further, the substances sold represented a full smorgasbord of illicit substances. Whilst none of those drugs were distributed into the community, the offender was not aware of that at the time of the offending and therefore it will have very little mitigating effect.
2. The Crown submitted that the offender was able to obtain large amounts of illicit drugs without paying for them. He was also able to distribute those drugs and therefore there was a high degree of moral culpability involved in his criminal conduct. He had even developed his own language to avoid incrimination, for example, the expressions referred to above, namely "cheeseburger", "fries" and "meal deal".
3. The offending also involved some planning. It was not by any means a hapless operation and the offender was able to function within the community to go snowboarding, to teach snowboarding and to complete a degree.
4. The Crown submitted that the need for general deterrence in respect of drug supply offences was high, referring to R v Dang [2005] NSWCCA 430.
5. The Crown characterised the offender's role in the offences as that of the "middle man". The drugs sold were of a high level of purity and there were a large number of acts of supply which warranted some accumulation in sentence.
6. The Crown acknowledged that the offender had entered a plea of guilty at the first available opportunity and was therefore entitled to a 25% utilitarian discount on sentence. The Crown also conceded that special circumstances could be found pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 ("C(SP)A"), given the demonstrable need for rehabilitation here.
7. Finally, the Crown referred to the Court of Criminal Appeal's decision in Briouzguine v R [2014] NSWCCA 264, where the Court approved an aggregate sentence for four similar, but clearly not identical, offences of supply inter alia, not less than commercial quantities of MDMA and MDA of a non‑parole period of 5 years, with a balance of term of 4 years, a total sentence of 9 years.

The offender's submissions

1. The offender, by his learned Queen's Counsel, provided a detailed written outline of submissions which included general principles of sentencing, as well as submissions relevant to the sentencing of the offender here.
2. In oral submissions, learned Counsel acknowledged that the offences constituted very serious criminal conduct, however, the offender was a young man for whom there was a great deal of positive material to take into account, not only relative to subjective matters. Clearly, general deterrence was important, however, also important was the rehabilitation of the offender so as to allow him to take a constructive place in the community following any sentence. As the offender had already made progress towards his rehabilitation, learned Counsel referred to appellate decisions such as R v Harmouche (2005) 158 ACrimR 357, and R v Thompson (unreported 4 April 1991, NSWCCA), for authority for the proposition that there is "a public interest in not interfering in a process of demonstrated rehabilitation - see R v Ramos (2000) 112 ACrimR 339 per Wood CJ at CL at 342; [14].
3. It was submitted that this meant that the offender should be encouraged in a real and substantive way with his rehabilitation. It was further acknowledged that the Crown had conceded that special circumstances should be found here.
4. Learned Counsel submitted that the subjective circumstances here, including the offender's youth, the fact that he had no prior convictions, his early plea of guilty, his remorse, and his good prospects of rehabilitation, were so exceptional so as to warrant a non-custodial sentence, referring to R v Cacciola (1998) 104 ACrimR 178 at 181. Priestley JA had said at 182: " … A combination of subjective circumstances each strong in itself does not add up to exceptional circumstances unless the aggregate of all those circumstances point to the case being one of real difference from the general run of cases."
5. Learned Queen's Counsel, on behalf of the offender, acknowledged that the Crown had submitted the objective seriousness of the offending here was towards the mid-range in respect of each offence. On behalf of the offender, it was submitted that the offending was lower than the mid-range and the offender could be treated more leniently than would otherwise be the case because of his age, good character, low risk of re-offending and his progress in rehabilitation.
6. It was further submitted that the Court could take into account the hardship that the offender had suffered by being incarcerated on remand at the Goulburn Correctional Centre, a maximum security facility. The time he had spent was more onerous than other prisoners on remand, and constituted a very substantial imposition of punishment and was a significant factor to take into account.
7. It was not the offender's submission that the police had encouraged him to increase the supply, however, had the controlled operation finished earlier, the charges would have been less serious and indicative of a small insignificant dealer or middle man. It was thus a combination of the police controlled operation and his own poor judgment which led to far more serious offending. Notwithstanding that, it was submitted that the offender was no more than a conduit for the on-supply of drugs. He made no real profit from it and received the drugs from his supplier up the line. He did not supply the drugs for the money, but to feed his own habit. This was supported by the fact that on arrest, the police search of his property revealed little money and some drug paraphernalia. The offender was characterised as being a "drug addicted fool", and not a "serious criminal". It was submitted that the offender was entitled to a 25% utilitarian discount on sentence. The exceptional circumstances demonstrated here took the matter well away from imposition of standard non-parole periods where relevant, and warranted, following a finding of special circumstances, for his time on conditional liberty to be maximised for the purpose of his rehabilitation.
8. It was further submitted that family circumstances usually carry little weight, however, given his good prospects of rehabilitation, it would be in the offender's interest if he could spend some time with his father whilst on conditional liberty. Professor Ogloff had provided opinions which formed a basis for the offender having real prospects of returning to society without any risk of re-offending here.
9. Finally, it was submitted that any term of imprisonment should be imposed, as a last resort, as required by the C(SP)A.

Determination

1. Section 3A of the C(SP)A sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community."
2. The Crown's characterisation of the objective seriousness of the offending as being towards the mid-range, was directed to each of the five offences set out in [1] above. I agree that each was towards the mid-range of objective seriousness of offending for the various offences, however, each should, for the purpose of this sentence, be assessed individually, as there were differences. The first offence, for example, is that of ongoing supply of prohibited drug between 2 July 2015 and 29 July 2015, upon which the Crown relies on three occasions of supply for a total supply of 122.22 grams of MDMA, which is below the commercial quantity of that prohibited drug as proscribed by the DMTA. The total drugs were supplied in exchange for $20,990.00. I therefore find that the objective seriousness of the offending in Count 1, for an offence pursuant to s 25A(1) of the DMTA, was below the mid‑range of offending for such an offence, however, it still constituted serious criminal conduct.
3. In respect of the second offence of supply prohibited drug, being a large commercial quantity of MDMA, it involved three occasions of supply between 2 July 2015 and 20 August 2015 in which the offender supplied 515.82 grams of MDMA which is above the large commercial quantity proscribed of 500 grams.
4. This offending was properly characterised as towards the mid-range of objective seriousness for an offence pursuant to s 25(2) of the DMTA, but is below the mid-range for such an offence.
5. The third offence of supply prohibited drug, being a large commercial quantity of MDMA on 27 August 2015, concerned the supply of 681.6 grams of MDMA in exchange for $91,200.00. Again, this offending is below the mid-range of objective seriousness for an offence pursuant to s 25(2) of the DMTA, but still constitutes serious offending.
6. The fourth offence of supply commercial quantity of cocaine pursuant to s 25(2) of the DMTA involved the supply of 284 grams of cocaine in exchange for $75,000.00. The commercial quantity is 250 grams, and the large commercial quantity is 1,000 grams. The objective seriousness of the offending here was again below the mid-range of offending for an offence pursuant to s 25(2) of the DMTA.
7. Count 5 involved the supply of 56.8 grams of methylamphetamine on 27 August 2015 for $23,800.00. The amount supplied was less than half the commercial quantity of 125 grams. The objective seriousness of the offending here was below the mid-range of objective seriousness of an offence pursuant to s 25(1) of the DMTA.
8. I have also taken into account, as guideposts in the sentencing process, the following maximum penalties: 1. In respect of the first offence, the maximum of 20 years imprisonment and/or a fine of $385,000.00. 2. In respect of the second and third offences, the maximum of life imprisonment and/or a fine of $550,000.00, together with the standard non‑parole period of 15 years imprisonment in each case. 3. In respect of the fourth offence, a maximum penalty of 20 years imprisonment and/or a fine of $385,000.00, together with the standard non-parole period of 10 years imprisonment. 4. In respect of the fifth offence, a maximum penalty of 15 years imprisonment and/or a fine of $220,000.00.
9. It is clear that Parliament considers these as most serious offences.
10. I have also taken into account the five offences on the back of the Form 1, which the offender has asked to be taken into account.
11. There are a number of strong subjective factors to be taken into account in the sentencing process here. First, the offender was a person of good character, and that character was not a factor involved in him perpetrating the offences, for example, as a drug courier who might otherwise go undetected. Rather, his offending was borne of his addiction to illicit drugs. Secondly, he is still a young man from a loving and supportive family. He has taken full responsibility for his criminal behaviour, and has demonstrated that he is motivated to rehabilitate himself in respect of his drug and alcohol abuse.
12. The offender has demonstrated remorse for his offending, both in his evidence and in Ex 1. He shows insight into his addictive personality, and it is no small thing to overcome an addiction to highly addictive illicit drugs.
13. The testimonials contained in Ex 4 bespeak of the offender's personal qualities and how out of character his criminal behaviour is. That is explained more fully in the report of Professor Ogloff (Ex 3). It is clear that his offending was borne of his addiction to illicit drugs and I accept that his role was that of a conduit, namely a street level dealer, who was supplying drugs to feed his own habitual use, rather than for profit. The characterisation of that role as a user/dealer, and not a trafficker for greed, has an important part to play in the sentencing process, as does the amount of drugs involved and occasions of supply. Whilst there is an inference available from the evidence that the offender used the proceeds of the offences to support his hedonistic lifestyle, I accept the submission made by his learned Counsel that, following his arrest and upon execution of the search warrant on the premises where he lived, there was no money located. Of course, he did not keep the proceeds of the last three offences, as he was immediately arrested following them.
14. I have also taken into account the offender's early plea of guilty which entitles him to a 25% utilitarian discount on sentence. I note that most of his incarceration has been spent at the Goulburn Correctional Centre, which is a maximum security facility, and I have taken that into account. Any sentence of imprisonment will be backdated to 27 August 2015.
15. I accept the evidence of Professor Ogloff, that with appropriate rehabilitation, including a residential rehabilitation program upon his release from custody, the offender should pose a low risk of re-offending following his return to the community. I accept the submission made by learned Queen's Counsel on behalf of the offender, that the achievement of rehabilitation does not constitute an exceptional circumstance. In R v Harmouche, supra, at [52], Hulme J (with whom Sully and Latham JJ agreed) said; " … I would add that the achievement of rehabilitation does not of itself constitute exceptional circumstances justifying a sentence other than full-time custody, albeit, if there is evidence that full-time custody is likely to have the effect of nullifying rehabilitation previously affected, the situation may be different - R v Thompson (unreported CCA, 4 April 1991)." There is no evidence here that full-time custody will have the effect of nullifying the offender's rehabilitation. Rather, he will have access to rehabilitation programs that will assist in his return to the community. I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate pursuant to s 5 of the C(SP)A.
16. This is an appropriate matter for an aggregate sentence pursuant to s 53A of the C(SP)A. Section 53A provides as follows: S 53A Aggregate sentences of imprisonment (1) A court may in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each. (2) A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a record of, the following: (a) The fact that an aggregate sentence is being imposed, (b) The sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence. (3) Subsection (2) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The term, and any non-parole period, set under this Division in relation to an aggregate sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation to another offence. (5) An aggregate sentence of imprisonment is not invalidated by a failure to comply with this section."
17. In R v Van Ryn [2016] NSWCCA 1, the court had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with proper regard to the totality of the criminality involved: "[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows: The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently, a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation, a sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences."
18. The court went on to emphasise the need to maintain public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 at [27]: "There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. … Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
19. See also R v Caldwell [2016] NSWCCA 55.
20. For those offences which carry a standard non-parole period, s 54B of the C(SP)A is also relevant. It provides as follows: "54B Consideration of standard non-parole period in sentencing (1) This section applies when a court imposes a sentence of imprisonment for an offence, or an aggregate sentence of imprisonment with respect to one or more offences, set out in the Table to this Division. (2) The standard non-parole period for an offence is a matter to be taken into account by a court in determining the appropriate sentence for an offender, without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence for an offender. (3) The court must make a record of its reasons for setting a non‑parole period that is longer or shorter than the standard non‑parole period and must identify in the record of its reasons each factor that it took into account."
21. I find special circumstances made out pursuant to s 44(2B) based on the offender's young age, the fact that this is his first time in prison, his demonstrated need for rehabilitation, and the progress that he has made to date. Therefore, the ratio between any non-parole period and the total term will be varied.
22. The Court is required to indicate the sentence that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence. This provides transparency in the sentencing process - see McIntosh v R [2015] NSWCCA 184 at [135]. It is clear that in indicating the sentences, there is no requirement to specify non-parole periods unless the offence is one for which a standard non-parole period is proscribed - see McIntosh v R, supra at [142], JM v R [2014] NSWCCA 297 at [8].
23. The indicative sentences that I would have imposed in respect of each of the five offences, having regard to the objective seriousness of the offending, and the strong subjective matters to be taken into account, are as follows: 1. Count 1 - Between 2 July and 29 July 2015 ongoing supply of MDMA - 2 years and 6 months imprisonment. 2. Count 2 - Between 2 July 2015 and 20 August 2015 supply large commercial quantity of MDMA pursuant to s 25(2) of the DMTA - 3 years imprisonment with a non-parole period of 18 months imprisonment. 3. Count 3 - On 27 August 2015 supply prohibited drug being a large commercial quantity of MDMA pursuant to s 25(2) of the DMTA - 4 years imprisonment with a non-parole period of 2 years imprisonment. 4. Count 4 - On 27 August 2015 supply commercial quantity of cocaine pursuant to s 25(2) of the DMTA - 3 years imprisonment with a non‑parole period of 18 months imprisonment. 5. Count 5 - On 27 August 2015 supply prohibited drug being methylamphetamine pursuant to s 25(1) of the DMTA - 2 years imprisonment.
24. General deterrence is important in the sentencing for drug supply offences - see R v Wong [1999] NSWCCA 420. Further, in any aggregate sentencing there must be some accumulation of sentence reflecting the seriousness of the offending - see R v Rae [2013] NSWCCA 9. I have also certified that I have taken into account the five matters on the Form 1, which also has to be reflected in some accumulation of the sentences.
25. Having applied a discount of 25% for the offender's early plea of guilty, and having found special circumstances under s 44(2B) of the C(SP)A, I intend to sentence the offender to an aggregate non-parole period of 4 years and 6 months, commencing on 27 August 2015, with a balance of term of 3 years and 6 months, expiring on 26 August 2023. The total term will be 8 years.

Orders

1. The orders I make are as follows: 1. You are convicted of the following offences: Count 1 - ongoing supply prohibited drug between 2 and 29 July 2015 pursuant to s 25A(1) of the DMTA. Count 2 - supply prohibited drug - large commercial quantity of MDMA between 2 July 2015 and 20 August 2015 pursuant to s 25(2) of the DMTA Count 3 - supply prohibited drug - large commercial quantity of MDMA on 27 August 2015 pursuant to s 25(2) of the DMTA. Count 4 - supply prohibited drug - commercial quantity of cocaine on 27 August 2015 pursuant to s 25(2) of the DMTA. Count 5 - supply prohibited drug being methylamphetamine pursuant to s 25(1) of the DMTA. 1. I sentence you to an aggregate non-parole period of 4 years and 6 months commencing on 27 August 2015 and expiring on 26 February 2020. 2. I sentence you to a balance of term of 3 years and 6 months commencing on 27 February 2020 and expiring on 26 August 2023. 3. The total term of imprisonment will be 8 years. 4. Each of the 10 matters referred to in the s 166 Certificate are withdrawn and dismissed.
2. You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence.
3. I further order pursuant to s 29 of the Confiscation of Proceeds of Crime Act 1989 that you pay to the State of New South Wales a drug proceeds order in the sum of $103,040.00.
4. I further order that all prohibited drugs the subject of these offences be destroyed.

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