R v Berry

The facts

1. The facts are agreed and they are as follows.
2. In June 2016 police established a strike force to investigate the ongoing supply of prohibited drugs within the Blue Mountains area. This offender was identified as a supplier of heroin throughout the upper Blue Mountains. He would travel to Yagoona every three or four days and obtain heroin from a supplier. He supplied heroin to purchasers' residences and in public places, and at times from his residence in The Mall in Leura.
3. During the course of the investigation the police obtained a telephone intercept warrant to intercept the mobile phone service used by the offender. He also had two motor vehicles which were used to travel to meet purchasers in the upper Blue Mountains area. In telephone conversations he and the purchasers referred to the amount of drugs by way of a code. 0.1 of a gram was referred to as "big ones" or "a tonne". 0.05 of a gram was referred to as "little ones", "small ones" or a "nifty". Payment, the subject of the transaction was referred to as "paper", a "tonne" being a reference to $100, or the numerical value of the payment. The offender generally sold heroin at the price of $100 for 0.1 of a gram, and $50 for 0.05 of a gram. In the calls the offender and purchasers spoke of the amount of heroin to be supplied, the price and the location of the transaction. On occasions the offender provided credit or a discount to the purchaser when full payment could not be made.
4. In terms of the first supply prohibited drug on an ongoing basis the facts are as follows.
5. Between 23 November 2017 and 22 December 2017 the offender was recorded using the telephone service nominated in the facts to arrange to meet persons to supply heroin to them, or on some occasions arranging for their accomplices to meet with purchasers to complete the supply transaction.
6. There were calls in which the amount of heroin supplied was discussed, and that is what is relied upon in order to make out this particular charge. In total, there were some 46 supplies of heroin, adding up to 5.6 grams of heroin in relation to that particular count.
7. In relation to the supply prohibited drug offence, which is on the Form 1, when the police executed a search warrant at the offender's residence on 14 December 2017 he was present. A purple cloth case was located in his underpants which contained nine resealable plastic bags, the bags contained a total of 0.73 grams of heroin.
8. In terms of the possess prohibited drug offence, which is on the Form 1, he was cautioned at that time. He told police that there was more heroin located in his bedside drawer. He told the police that this drug was his "personal stash", which he had purchased for $850 for his own use. The police subsequently located a plastic "Kinder Surprise" container in a bedside drawer in the offender's bedroom. It contained 3.68 grams of heroin. Police also located at the side of the bed three plastic spoons of white residue. He told the police in his recorded interview that day that he would use heroin two or three times a day.
9. In terms of possess prohibited weapon offence the police located a black and orange slingshot on a shelf in the offender's bedroom. It is a prohibited weapon and there is a photograph of it before me.
10. In terms of the second primary supply prohibited drug on an ongoing basis offence; between 23 December 2017 and 22 January 2018 the offender was recorded using the same mobile telephone service to arrange to meet persons to supply heroin to them or on some occasions arranging for accomplices to meet with purchasers to complete the supply transaction.
11. There were some 34 supplies detailed in the facts involving 4.1 grams of heroin.
12. In terms of the supply prohibited drug on an ongoing basis charge on the Form 1; between 23 January 2018 and 21 February 2018 the offender was recorded using the same mobile telephone to arrange to meet persons to supply heroin to them or on some occasions arranging for accomplices to meet with those purchasers again to complete the transactions. There were some nine supplies totalling 0.8 of a gram and the offender was arrested on 23 March 2018.

Assessment of the objective seriousness of the offending

1. I turn then to my assessment of the objective seriousness of the offending. Both the ongoing supply offences occurred over about a one-month period. The quantity of drugs supplied is also a relevant factor in assessing the objective seriousness of any type of supply offence. It is perhaps less important when it is an ongoing supply offence. Here, there was a total in relation to the first offence of 5.6 grams and in relation to the second offence 4.1 grams, not overly significant quantities but, of course, that is frequently the nature of offending that falls within this particular provision of the Drug Misuse and Trafficking Act. It is repetition and organisation of a drug supply business that is at the heart of the offending.
2. Generally, such offences have been considered by the higher courts to be more serious than straightforward supply offences. Here there was clearly a level of planning involved in that there was a code used in the discussion of the relevant transactions, but that is hardly an unusual feature of a drug supply operation.
3. Clearly, on all the material, the offending was engaged in for a financial gain although when I have regard to all the evidence that is before me I am satisfied that it was, in terms of any financial gain, essentially to fund his own habit.
4. The role of an offender is always important when sentencing for drug supply. Here, on the basis of all the material, I classify the offender as a user/dealer, but above what is sometimes referred to as a "street user/dealer" given the method of operation and the frequency of which supplies were occurring. Both ongoing supply offences in my view are below any notional midrange level of objective seriousness, but having said that, they remain serious examples of supplying heroin for money.
5. The prohibited weapon, in my view, being a slingshot, even having regard to the nature of the photograph that was tendered before me, it seems to me it is an implement that is capable of inflicting an injury, but really in the scheme of things, I think it is towards the bottom of the range of such implements. I note that it was not secreted in any way and it is difficult to see how it could have any connection with his illegal drug supply operation, and as I say, I consider that it is towards the bottom of the range of prohibited weapons.

The offender's subjective case

1. The offender is 45 years of age. He has a very limited criminal history. He does have back in 1994, in August, a little over twenty-four and a half years ago, a conviction for three counts of supply prohibited drug on his record, for which he received community service. The offender did in 1999 receive home detention for steal from a person, but essentially his other offending is very low level offending and consisting, in the main, of traffic offending. His last time before a court was a drive whilst disqualified sentence back in 2005.
2. I consider that his limited criminal history does not disentitle him to some leniency here and there is no suggestion that his relative lack of criminal record in some way facilitated the commission of the offending.
3. The two ongoing supply offences were, however, committed while he was on bail for the prohibited weapon offence and in my view that is an aggravating factor under the Crimes (Sentencing Procedure) Act.
4. There is a sentence assessment report before me. That indicates that prior to his incarceration, he resided with his adoptive mother, aged 90 and his adult son aged 25. He proposes that when he is released from custody, he will reside with his adoptive mother and his son. That report indicates he is a qualified aborist and intends, upon release, to work with his brother and there is evidence before me and I accept that he does have an open offer of employment once he is released from custody.
5. While in custody he has been employed as a maintenance lead hand, a position he has held since August 2018 and the records available to the author of that report indicate he is considered to be an excellent worker with nil management issues. The sentence assessment report indicates that he expressed remorse and regret for his behaviour and stated he was responsible for his actions.
6. He described to the author an on/off use of heroin, starting when he was aged 21, with lengthy periods of being free of that insidious drug but claimed that he lapsed into heroin use following his divorce and the death of his father from bowel cancer. These matters are explored more fully in a psychological report that I will come to. He acknowledged to the author of the sentence assessment report the impact his offence has had on his family and the community. He indicated he was willing to continue to attend Narcotics Anonymous and participate in any level of counselling that was required.
7. He has been assessed as having a low to medium risk of reoffending. As I said a moment ago, there is also a psychological report before me under the hand of Theo Gumbert-Jourjon dated 8 April 2019. When the psychologist conducted the interview with him on 25 March 2019, she observed in terms of his presentation, that his thought processes were lucid and was normally oriented and there was no indication of thought disturbance or active psychosis. He told her that he had not used any drugs since his admission into custody and has incurred no institutional charges for infractions and that is confirmed by the sentence assessment report. He confirmed that again today in his evidence. He told the psychologist that he had engaged in custodial programs which are set out in the psychological report and I note one of the exhibits that has been tendered to me, provides a number of certificates relating to those programs and his completion of courses through TAFE, while he has been in the custodial environment.
8. He told the psychologist that he had been diagnosed with endocarditis in 2000 and suffers ongoing complications and at one point he was hospitalised after going into custody with a suspected heart attack. His condition appears to have been managed through appropriate medication.
9. In terms of his childhood and family background and all of the material which is in the psychologist's report was confirmed by him when he gave evidence in the witness box. He was an acceptable witness and there was no real direct challenge to his background and to some degree, it was supported by his biological mother when she gave evidence. He was adopted soon after he was born. He went into his adopted family. He considered that both his adopted parents used corporal punishment and were physically and emotionally abusive towards him.
10. He ultimately left home at 14 and for the next two years, he reported that he had effectively slept rough and couch-surfed and it was then that he first got into trouble with the police. During his adulthood he rebuilt positive and close relationships with his adoptive parents. In 2016 his adoptive father passed away and his adoptive mother is now in frail health, although as I say, he visited her regularly prior to his arrest and she remains supportive of him.
11. About ten years ago he regained contact with his biological mother, through participation in a particular television program. They both gave evidence about that today and it is clear that they now have re-established a close relationship, as well as with his three half-siblings. He partnered his first wife in 1991 and he has a son who is now an adult and it appears that from the report, that he and his first wife were both using drugs at the outset of their relationship but there were lengthy periods of abstinence during their marriage. The marriage ended in 2015 and the offender said his life began to spiral out of control and he formed another somewhat drug-dependent relationship.
12. In terms of his education, he at one stage was enrolled in Scotts College in Bathurst where he boarded for two years. He was ultimately expelled and pursued a trade as a butcher and for around ten years he had steady employment in that particular trade but by the late 1990s, he was involved in drugs and he had some physical issues. He then became re-trained in bush regeneration, obtaining some relevant qualifications in that regard. He has also worked in the mines in the past, although that work apparently ceased in 2016 due to his escalating drug use.
13. In terms of his drug use, he reported that he has used a range of different substances over the years. From time to time, he can cease illicit drug use. He apparently commenced cannabis use at 12, amphetamines at 14 and heroin at 21. Clearly, he has commenced drug use at a young age and there is at least an inference that that was because of some of the difficulties in the early part of his life.
14. He said he lapsed into heroin use in around 2015 and 2016 due to the breakdown of his marriage and his adoptive father's diagnosis with terminal cancer. The psychologist considered he met the diagnostic criteria for an opiate use disorder. He apparently underwent some hypnotherapy at the age of 12 at the urging of his parents, which has had some impact adversely upon him.
15. In terms of his attitude to the offence, he clearly from what he has told the psychologist, has some insight into the shocking effects that drugs like heroin are having in our community. He intends to reside with family members when ultimately released and he has very considerable family support.
16. He did not meet the criterion for diagnosis of depression or significant anxiety. When his biological mother was spoken to by the psychologist, she confirmed the information that he himself had provided and as I say, she gave evidence today and I accept her evidence completely. It is clear from all the material before me that he has made the most of his time in custody and has engaged in very significant rehabilitation. I mentioned at the outset of these remarks that his plea of guilty was entered at an early time and I will allow him a 25 per cent discount for his sentence.
17. I thought he was an acceptable and indeed at times impressive witness, in terms of realising the risk of falling back into drug use in the community. Of course, judges like me, hear on a daily basis people say that they know that they can put it behind them. The experience of this Court in particular is that that is an easy thing to say, but a very hard thing to do in practice, in particular when people have failed to do it in the past. However, I accept that he has shown real determination in prison to do so.
18. I accept he has a genuine intention to leave his life of drug-taking and drug-selling behind, but only time will tell and no doubt if he has appropriate support in the community and he seems to have very good family support, he may be able to live up to those intentions. I heard from him about how he feels about the fact he has committed this offence. He shows insight into the impact it can have on the community. I am satisfied, having heard from him, his mother, and noting the comments in the sentence assessment report and the psychologist's report, that he is genuinely remorseful.

Sentence

1. I have had some regard to the fact he committed the offending while under the influence of a drug addiction, but while I accept he turned to drugs at an earlier stage in his life, I do not see the drug use here as being a mitigating factor and in that regard I have had particular regard to what Wilson J said in Hayek v The Queen [2016] NSWCCA 126. I accept that it is appropriate to have some limited regard to that fact here.
2. I am satisfied that he has excellent prospects of rehabilitation. He has good family support. He has engaged in rehabilitation in gaol. He has an offer of employment. As I say I am satisfied he has excellent prospects of rehabilitation and he has commenced his rehabilitation, although it is not yet complete. His prospects will be assisted, if he has a longer period on parole then that provided for by the statutory ratio. I also note it will be his first time in full-time custody so I will make a finding of special circumstances when I fix the non-parole period.
3. He has been in custody one year and 27 days and I will backdate the sentence to reflect that fact.
4. There clearly must be some accumulation of the sentences here. I am going to use the aggregate sentence provisions but given the number of offences, the different time periods, there must be some accumulation.
5. I have had regard to the objects of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act. Of course when sentencing for drug supply general deterrence, that is, the need to send the message, that people who traffic in drugs for money will receive very substantial terms of imprisonment, is a significant matter to have regard to.
6. It is always a serious offence where someone is involved in the supply of prohibited drugs for financial reward. Prohibited drugs are destroying lives, families and undermining the very nature of our society. Much of the criminal activity that the courts see is committed by those under the influence of prohibited drugs. The protection of the community is therefore a factor to give weight to, when sentencing for drug supply. Those who supply prohibited drugs for financial gain, must receive significant sentences.
7. The only appropriate sentence is one of imprisonment. The maximum penalty has been taken into account as a legislative guidepost. I propose to, as I say impose an aggregate sentence.

Orders

1. Please stand up Mr Berry. Mr Berry, you are convicted of the three offences to which you have pleaded guilty. The indicative sentences are as follows, on sequence 1 being an ongoing supply offence between 23 November and 14 December 2017 and having regard to the matters on the Form 1, there is an indicative sentence of two years and four months.
2. On sequence 2, being an ongoing supply between 15 December 2017 and 14 January 208, there is an indicative sentence of two years' imprisonment. On the prohibited weapon offence, there is an indicative sentence of six months imprisonment.
3. There is an aggregate sentence therefore of three years and four months, with a non-parole period of one year and eight months. The sentence commences on 22 March 2018. It expires on 21 July 2021. The non-parole period expires on 21 November this year. The earliest date you will be eligible for parole is 21 November 2019. Whether you are released to parole that day, is a matter for the State Parole Authority, that will no doubt take account of your future behaviour in prison. The drug is to be destroyed.
4. It is an aggregate sentence then of three years and four months, with a non-parole period of one year and eight months. Commences on 22 March last year. The sentence, I have it expiring on 21 July 2021 and the non-parole period expires on 21 November 2019.

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