R v Burns [2019] NSWDC 832 | Case summary

R v Burns [2019] NSWDC 832 | Case summary | Zoe

[4]

Agreed Facts

The Statement of Agreed Facts is as follows.
In September 2018, police commenced investigations into the supply of cocaine in Sydney's eastern suburbs, which included the activities of the offender. On Friday 5 October 2018 at approximately 7.00 am, police from Strike Force Odin attended the offender's residential address at Bourke Street Waterloo and executed a search warrant. Four people were present inside the premises including the offender.
Three of the other occupants were located together in one bedroom. The offender was located alone in a room with an unlocked padlock on the exterior of the door.
Police searched the room where they found the offender. The offender stated that the room was his "office or gaming room". Police questioned the offender regarding the combination padlock and asked "Who has the code?" The offender replied, "I do".
The other three occupants denied knowledge of the padlock code.
Inside the room police located: 1. A green Woolworths brand bag (matching that which the offender was seen on CCTV footage bringing into the building) containing: 1. 2x 750ml wine bottles, sealed, containing a clear liquid. This was later analysed to be 1,6274 kilograms of Gamma Butrdactone (GBL) (Sequence 1 - Supply Prohibited Drug (GBL); 2. A white 'Just Sport' plastic bag - which in turn contained 4x vacuum sealed bags containing a white powder, This was later analysed to be 168,4 grams of cocaine (Part of Sequence 2 - Supply Prohibited Drug (Cocaine); 1. A tissue box containing a small resealable bag which had two small crystalline rocks. This was later analysed to be 1.71 grams of cocaine (Part of Sequence 2 - SupplyProhibited Drug (Cocaine)); 2. A small container containing a white powder later analysed to be 30.9 grams of Cocaine (Part of Sequence 2 - Supply Prohibited Drug (Cocaine)); 3. A black 'Ego' case containing and a pipe and a resealable bag containing a white crystal substance. This was later analysed to be 0.56 grams of Crystalline Methylamphetamine (Sequence 4 - Possess Prohibited Drug (Crystalline Methylamphetemine)); 4. Silver metal lockable toolbox containing: 1. Numerous plastic resealable bags; 2. Syringes; 3. Mail addressed to the offender; 4. A pink 'Billini' shoe box which itself contained: * 16x small glass vials of labelled 'Euro Lab Testosterone', This was later analysed to be 142 grams of Testosterone (Part of Sequence 5 -Possess Prohibited Drug (Testosterone)); * 1x small glass vial of "Muititesto 350", This was later analysed to be 8.4 grams of testosterone (Part of Sequence 5 - Possess Prohibited Drug (Testosterone)); * 1x small glass vial of "Decaject 200'. This was later analysed to be 9.3 grams of Boldenone (Sequence 9 - Possess prohibited drug (Boldenone)); * 2x plastic containers labelled 'Oxandrolone". This was later analysed to be 43.25 grams of Oxandrolone, a brand name prohibited drug failing under the classification of an analogue of Methandienone (Part of Sequence 10 - Possess Prohibited Drug (Analogue of Methandienone)); * 1x plastic container labelled 'ANAVAR', This was later analysed to be 24 grams of Anavar, a brand name prohibited drug falling under the classification of an analogue of Methandienone (Part of Sequence 10); * Possess Prohibited Drug (Analogue of Methandienone)); * 4x plastic bottles labelled 'WINSTROL 50', This was later analysed to be 47.73 grams of Stanozoiol (Sequence 11 - Possess Prohibited Drug (Stanozoiol)); * Bail reporting slips both on top, and below of the shoe box in the name of James Alexander BURNS * Shoe box containing 7x mobile phones and a playing card. 1. A small white compartmentalised box containing: 1. 2x small electronic scales; 2. Bronze coloured measuring spoons; 3. Ledger with notes, names, quantities and money amounts; 4. 9 packets of small empty plastic resealable bags; and 5. Playing card. 1. Police also located mall addressed to the offender along with more loose ledgers with names, money, locations and other note; 2. 3x mobile phones. The offender claimed ownership of one mobile phone as his personal phone but stated the others were "just old phones"; 3. Empty resealable bags matching those the cocaine was found in; 4. Within a small plastic set of drawers: a driver's license in the name of the offender an information sheet for a 'Master" brand lock, a Qantas card in the name of the offender, numerous debit cards and access cards; 5. A tissue box which contained 15x $20 denomination notes and 19x $50 denominations ($1250 in Australian currency) and another ledger; 6. 3 x $100 and 38x $50 denominations ($2,200 in total) hidden in a black shoe; 7. 1x electronic 'Duratec' money counting machine displaying a previously counted value of $45,600 in 756 x $50 denominations and 78 x $100; 8. A black 'Adidas' shoe box containing a total of $34,010 in assorted Australian denominations; 9. A portable safe containing: 1. $2000 in Coles Gift cards and $2280 in Australian currency, mostly in $50 denominations; 2. 2x Passports (UK & Australian) in the name of the offender.
In summary police found the following prohibited drugs in the office/gaming room: 1. 1627.4 grams of Gamma Butyrlactone (GBL) (Sequence 1 - Supply Prohibited Drug >= Commercial Quantity); 2. 201.01 grams of Cocaine (Sequence 2 - Supply Prohibited Drug > indictable & < Commercial Quantity); 3. 0.56 grams of Methyl-Amphetamine (Sequence 4 - Possess Prohibited Drug); 4. 150.4 grams of Testosterone (Sequence 5 - Possess Prohibited Drug); 5. 9.3 grams of Boldenone Undecylenate (Sequence 9 - Possess Prohibited Drug); 6. 67.25 grams of an analogue of Methandienone (Sequence 10 - Possess Prohibited Drug); 7. 47,73 grams of Stanozotol (Sequence 11 - Possess Prohibited Drug).
Police commenced the search in the living/entry room of the premises. In this room police located vacuum sealing bags, 2 mobile phones, and 48x $50 notes totalling $1900 in Australian currency.
Including the $1,900 from the living room and the money from the office/gaming room, police seized $41,640 In Australian currency (Sequence 6 - Deal with Suspected Proceeds of Crime) and $2000 In Coles Gift Cards (Sequence 7 - Deal with Suspected Proceeds of Crime) from the premises.
In the kitchen police located a vacuum sealing machine, 2x small electronic scales, a container with loose leaf notes appearing to be a ledger, and a notebook with ledger of names, amounts, and locations.
In the offender's personal bedroom police located; 1. a number of small resealable bags containing a white residue; 2. A set of bronze measuring spoons.
At approximately 10:48am police concluded the search warrant.
CCTV footage obtained from the offender's residential building show him leaving the premises at approximately 9:10pm on 4 October 2018, the night before the search warrant.
At approximately 1.05 am on 5 October 2018 he returned to the premises carrying a green "Woolworths" brand bag which appears to be full. This bag is similar to the bag police found contained in the office/gaming room which contained the wine bottles of GBL and the majority of the cocaine.
A Cellebrite Report taken from two of the offender's phones reveal exchanges consistent with drug supply. They include the following; IMEE 3592 0707 4985 498: Date Time Sender Message 08,07.2018 00:25:02 Emma Can I get a bagy 08.07 2018 00:42:49 James Bums; I msgd 18.07.2018 17:26:13 Zal Hey hope you don't mind but Naz is a very good friend of mine and I was with her last night, very good quality stuff and I was wondering if you could swing by the dolphin tonight? 10.08.2018 21:20:00 OChix Come to aria??? 10.08.2018 21:33:27 James Burns How Many? 10,08.2018 21:33:44... OChix 3 10.08.2018 22:06:18 James Burns 3? Cash? 10.08.2018 22:06:26 OChix . $1000 cash 11.08.2018 22:16:14 James Burns .Black Mercedes Asian guy

[9]

Exhibit 2

The SAR of 17 October 2019 notes that the offender is currently housed at South Coast Correctional Centre and that since his incarceration he has not been charged with any institutional misconduct or received any negative case notes. Prior to entering custody, the offender was living with his partner and a flatmate in Waterloo. The offender and his partner have since separated and he will not be returning to that address. Upon his release he intends to reside with his father and stepmother in the Turramurra area.
After completing a Bachelor of Commerce Accounting, he worked for a consulting company in the North Sydney area as a general manager until July 2018. He then started his own consulting company and contracted to his previous employer until coming into custody. His previous employer is fully aware of the charges and remains supportive of him and has offered the offender to return to employment in the company upon his release.
Ms Walcott observes that the offender has a minor criminal history for other drug related charges and that he has a number of minor driving offenses. She says that the offender displayed significant insight into his offending behaviour and made no attempt to minimise his responsibility. The offender described selling drugs as a means to support his own habit, even though he was earning a very substantial wage. He made no attempt to lay blame on his friends or associates for the choices he has made.
The offender indicated that alcohol was previously an issue for him towards the end of 2017. He spoke of drinking to a point of intoxication and then consuming large amounts of pills in an attempt to end his life. He then replaced alcohol with poly-drug use. He reported spending between $1000 and $2000 per day on his habit. He described using cocaine, GHB, GBL and ice as a coping strategy and to get him through the long days at work. During his periods of employment, the offender indicated he was earning approximately $6000 per week or approximately $250,000 per annum. He described spending a lot and saving very little. The offender told Ms Walcott that he had seen psychologists on three occasions prior to coming into custody, but was always told he was fine and he attributed this to him not being completely honest and forthcoming during sessions.
The offender was able to identify and describe where he believes things went wrong for him and how he could do things differently in the future. He stated that coming into custody was a massive wake up call for him, and also acknowledged that it has forced him to look at his life and the poor choices that he is made. He stated that if he had been bail refused on his previous matters, he did not think he would be in custody today as he would have made significant changes back then. He indicated his willingness and ability to participate in any interventions deemed appropriate.
The offender was assessed at a medium risk of reoffending according to the level of service inventory - revised (LSI-R).

[10]

Exhibit 3

Exhibit 3 is the psychological report of Bradley Jones dated 31 October 2019.
Mr Jones assessed the offender on 18 October 2019. The assessment revealed that the offender was raised in a relatively loving and supportive home environment. As a young child, the death of his mother had a significant emotional impact upon him, and as he progressed through childhood and adolescence, he experienced feelings of emotional isolation from his family members. A lack of bonding with his father contributed to a poor sense of self that became more evident during his adulthood. The offender's relationship history is characterised by a need to be accepted by a partner, with any relationship breakdown resulting in him experiencing significant emotional distress. His employment presented an environment in which substance abuse was accepted and encouraged, and with poor emotional functioning he resorted to increased amounts of substance abuse. Over time, increased drug use resulted in drug dependence and an inability to meet the increasing cost of illicit substances. In Mr Jones's opinion, the offender is suffering from the following co-morbid disorders: amphetamine type substance used disorder, moderate severity, in sustained remission in a controlled environment and sedative, hypnotic or anxiolytic drug use disorder, severe, in sustained remission in a controlled environment.
The offender admitted his offending to Mr Jones. He reported that he owed money to a drug dealer, and was asked to work off some of his debt. He stated that he sold illicit drugs for the dealer to pay off his debt to finance his ice and cocaine habits. As to his possession of the money counter, the offender indicated that it was given to him by the drug dealer. The offender immediately expressed his guilt and remorse, stating "I feel like shit. I'm an idiot. Looking back, I wish I'd never did it. I wish I sought help properly. I was stupid. I reacted to things and they made me not care about life. I am completely different now that I'm in jail, and now that I'm off drugs I can see clearer."
The offender has one sister, one stepbrother and five half siblings. His mother was aged 43 when she died from a brain tumour in 1990, at which time the offender was three years of age. The offender stated he had never come to terms with her death. His father was always working and was rarely home. He struggled to accept his stepmother Jenny and with living in a blended family. In fact his bond with his stepmother strengthened throughout his childhood. I note that many members of the offender's family were present during the sentencing hearing on 1 November 2019 to support him.
The offender had several relationships until he met his fifth partner who was working as an escort. After she ceased working as an escort at his request, the offender financially supported her due to her lack of income. Apparently she was often unfaithful and began a relationship with his roommate. They were both living with him at the time of his arrest for this offence.
The offender's employment history is as stated in the SAR. Since his incarceration he has been employed as a clerk in the correctional facility.
The offender first consumed alcohol when he was 15 years of age. He first smoked cannabis at about age 18 but did not like the feeling it gave him. He consumed ecstasy when he was 18 years of age but the use of that drug was never excessive. He first consumed cocaine when he was approximately 26 years of age. He would consume cocaine while attending work functions, as his co-workers consumed the drug heavily. On average he was consuming between two and three grams per month and at times he would consume an 8 ball (3.5 g) per day. He first consumed GHB when he was 29 years of age. He stated that he would initially consume 10 mL per week but this progressed to 30 mL per day. The offender indicated that consuming GHB made him feel happy, and that his consumption would increase when he was experiencing life stressors. The offender first consumed the drug ice when he was approximately 30 years of age and would initially consume 1 g per week. Within three months this increased to an 8 ball (3.5 g) per week.
The offender has been abstinent since coming into custody on 5 October 2018 more than one year ago.
The offender has had limited professional assistance with his mental health, although he engaged in a drug rehabilitation program at The Cabin in March 2018 following his arrest. He attended the program two days per week for approximately three months.
Mr Jones noted that the offender consistently was self-critical and expressed shame and regret with regard to his behaviour. He is of the view that the offending resulted from his extensive history of substance abuse which may in part have been triggered or associated with difficult emotional relationships and distress he experienced as a result of relationship breakdown. He incurred a drug debt and began engaging in the offending behaviour to reduce that debt, which in itself induced a cycle of dependence. In Mr Jones' opinion, upon his eventual release the offender will be at risk of lapsing into his past behaviours, and he would be well served in having an extended period of supervision in order to support him in the engagement of suitable treatment and transition back into society. In his view the offender currently poses a low to moderate risk for commission of further offenses. Areas of specific attention with regard to risk include substance abuse, relationship difficulties and his general day-to-day emotional functioning. To manage and decrease the risk of recidivism. Mr Jones recommends cognitive behavioural therapy to address anxiety, residential drug relapse prevention counselling, illicit drug abstinence, drug urinalysis monitoring, and relationship counselling and assertiveness training. In Mr Jones' opinion if the offender were to engage in the treatment plan just outlined, his rehabilitation prognosis is encouraging. He says that the offender is in need of significant drug rehabilitation and support in addition to interpersonal and relationship skill training. Upon his release Mr Jones recommends that the offender undergo therapy until such time as the treating psychologist or psychiatrist believes appropriate, although he posits that such therapy may extend at a minimum for a period of 9 to 12 months.

[11]

Exhibit 4

Exhibit 4 is a bundle of references. All referees were made aware of the details of the matter before the court.
The offender's stepmother notes her own struggle with alcoholism and that she herself underwent full-time residential rehabilitation in 2013. She deeply regrets her part, if any, in setting an example for the offender that may have contributed even only in part to his drug problems. She attests to the loving and caring nature of her stepson. She believes his sensitivity worked against him and as the stresses of their blended family and her alcoholism continued, she believes that the offender internalised them and withdrew. She observes that the offender has been accepted into rehabilitation programs at the William Booth House and South Pacific Private Hospital at Curl Curl. Ms Burns believes that her son has now turned his life around, that he is dealing with his problems and trying to make lasting changes in his life. He has re-joined the family completely, opened up to all of his siblings and has become completely honest. She says that the family loves him very much and will stand by him through whatever outcome the court deems fit.
The offender's father says that whilst he was saddened to learn about his son's history of drugs, in a way he was grateful that he hit rock bottom, as he can see the positive impact it has had on him and on the family generally. He reports that the offender did not have an easy upbringing, having lost his mother shortly after his third birthday. He observes that the offender withdrew from the family early on and that he believes that his son never dealt with the death of his biological mother. Since the offender went into custody, Mr Burns has seen a marked difference in his son. He has admitted everything and now asks a lot of questions about his biological mother during his childhood, whereas before he would have avoided these topics at all costs. Although Mr Burns says the offender has a long road to go, he is confident that he is now facing his demons instead of running away. Mr Burns asks the court to have leniency on his son and assures the court that he will offer his assistance in his son's rehabilitation.
Mr Ballo, the offender's best friend, says that he met him on the first day of university. He observes that the offender's life changed when one of his closest friends committed suicide several years ago. Not long after that his girlfriend Victoria broke up with him. He observed a decline in the offender's emotional and mental health from that time. Mr Ballo says that the past 12 months have been the best 12 months in their friendship, as they are in constant contact. He observes that the offender has undergone significant changes since he has been in custody and now that he is no longer taking drugs. He says that the real Jamie is the one before the court now, who is abstinent and will not make any of these mistakes again.
Ms Glennie has been a friend of the offender since she was 16 years of age. She observes that the offender was always kind, generous and compassionate in nature. When she saw the offender in September 2018, not long before he was incarcerated, she was very distressed as the offender was a completely different person to the friend she had known for nearly half of her life. He was withdrawn, quiet, found it difficult to engage in conversation and barely came out of his room. She regrets that she did not intervene at that time. She observes that the offender had a very difficult upbringing but he never spoke about it much, which she attributes to a stigma surrounding men and their mental health. Ms Glennie also observes that the offender has made "leaps and bounds" in trying to get his life back together over the past year and that she is very proud of his achievements. He is now healthier and happier and has finally stopped using drugs. Ms Glennie, who is a primary school teacher, is confident that the offender has learned from his mistakes, regrets them and will take any opportunity to turn his life around.
Mr Geersen, a long time close friend of the offender, first met him in year 12. He believes the offender to be an incredibly kind-hearted and trusted friend who has exhibited genuine care for his friends and those around him. He observes that over the two years prior to the offender's incarceration he did not have a close relationship with him as he was withdrawn and had troubles with drugs and the law. He believes the drugs "took everything" that the offender had been and replaced it with a troubled individual in desperate need of help. He says that he has noticed a dramatic change in the offender's attitude and a desire to rebuild lost friendships. He says that it feels like one of his closest friends has slowly returned from the dark place he was in. He believes that the offender is genuine in his remorse and it in his desire to make amends. He says that he knows firsthand that the offender has the capacity to be a force for good and to contribute and become a positive member of society.

[13]

Affidavit and other evidence of the offender

In his affidavit, the offender repeats many of the matters that are set out in the report of Mr Jones. He notes the significant traumatic events associated with his childhood and in particular that there was turmoil in the house in which he was raised which continued into his early teens. The offender states that he has never recovered from his biological mother's death and in retrospect he retreated with everything that was going on around him at home and eventually fell into the wrong crowd and started experimenting with drugs. He began partying every weekend and whilst working and studying was really living for the weekend. He did not have much luck with girls or in relationships.
In late 2013 the offender met Victoria with whom he had a unique connection. They eventually parted ways but the offender believes that he is still in love with her and never recovered from their breakup. After that breakup the offender's drug use escalated significantly. He then met Jenna who was a prostitute when he met her. She lived a fast-paced lifestyle and consumed a lot of drugs. The offender's drug habit deepened at this time. Eventually Jenna agreed to cease working as an escort. They had a tempestuous relationship and during the years 2016 to 2018 the offender purchased more and more drugs and began to deal some cocaine in order to fund his drug habit. He also amassed a debt to his drug dealer.
In December 2017 the offender's best friend Clara committed suicide. She did not give him any prior warning or reach out for help. The offender blames himself as he was her closest friend and he had missed a telephone call from her on the day of her suicide. Her death was devastating to the offender and his feelings of abandonment soon returned. Although he had made some progress with his substance abuse issues, it was a major struggle and he was very stressed.
In February 2018 Jenna and the offender had an argument when she confessed that she had been unfaithful to him. At that time the offender went and bought cocaine and methamphetamine and GBL. He had some before he decided to drive home and when he was apprehended by the police. He was charged with possession of all three substances and also drive with illicit drug present in his blood. The offender then abstained from drugs for several months and continued with rehabilitation efforts. However, before long he was chasing Jenna and he was using so much cocaine and drugs that he was not eating and he developed stomach problems. He used GBL to calm his stomach, but it got to the point where he was having to take enormous amounts just to feel normal. He could not afford the amount of drugs he was using and his employment income continued to decline. Out of necessity, he started buying drugs in bigger and bigger amounts at a time to save money, buying in bulk at cheaper rates, and also selling some on the side. At the time of his arrest he was unable to pay his rent and his utilities, had $23,000 in credit card debts and owed $4500 in fines.
The offender notes his previous attempts at rehabilitation and in particular at The Cabin in March 2018. He also notes the several release applications he has made since he has been in custody for this offence. As to his time in prison, which I note is his first time, the offender says that he has witnessed countless acts of violence, that he has been threatened with his physical safety and his life and that he has seen people committing further crimes. He says that he has completely abstained from drugs whilst in custody and from alcohol and any other substances which could impact upon his rehabilitative progress. He says that it is not because contraband is not available but rather because he has faced himself and his issues, and instead of running away from them accepted his situation and genuinely wishes to move on and improve his life.
The offender says "In a roundabout way I am grateful for my time in prison. In retrospect, I needed it to break the cycle I was in, face my demons, rekindle my positive relationships and move away from the negative ones, and make lasting, positive changes in my life".
Upon his release the offender says that he will continue with his studies and become a chartered accountant. Initially he will work with NPC Consulting. He will attend a private inpatient rehabilitation facility such as South Pacific Private at Curl Curl. He wishes to focus on spending more time with his family and getting to know his nieces and nephews, whose formative years he will have missed because of his "stupidity" and because he has been in prison. Eventually he wishes to start his own firm of chartered accountants, and when he has continued with private therapy, find a romantic relationship and start a family.
In his examination in chief, the offender said that prior to the sentence proceedings before Judge Berman on 6 July 2018 (the proceedings in which he was ultimately sentenced to an ICO on 31 August 2018), he was abstinent from drugs. However after the sentence proceedings on 6 July 2018 he relapsed immediately, as he was not dealing with the death of his friend Clara. He messaged a drug dealer to whom he still owed money and got them on "tick", in exchange for which the offender agreed to run a couple of bags of cocaine for him on that day. He got 3.5 g of cocaine on that day. From that date until his arrest in October the offender did things on his dealer's behalf. He sometimes sold drugs for him and he held drugs at his apartment as well as cash. During July to October 2018 the offender's drug use escalated and he consumed a lot of GBL, cocaine and methamphetamine. The offender was paying for the drugs by supplying cocaine a bit here and there. As to his use of GBL and ice, it significantly increased so that he would wake up in the morning and consume drugs immediately. At that time he was supplying Jenna and his flatmate Andrew with the drugs on a daily basis.
As to the two bottles of GBL, found in his possession at his arrest, the offender said he bought them from his drug dealer at a significant discount of about $2500 dollars, with the intention of using it himself and supplying it to Jenna, Andrew and others who were attending his house. He adamantly denied supplying it to others. He conceded that he did supply cocaine from time to time in order to support his drug habit. As to the various steroids which were in his possession at his arrest, the offender explained that he might or might not have used them, but that they were not in his possession for supply. He explained that the various mobile phones that were in his possession were in large part not working. The money counter and funds belonged to his drug dealer which he was storing for him. The vacuum sealing bags were present in his apartment to seal meat of all sorts to put into his freezer.
As to the text messages that appear in the agreed facts, the offender agreed that he supplied cocaine but never supplied GBL or any other drug.
In cross-examination the offender agreed that he supplied GBL to Jenna, Andrew and friends who came around to their apartment. He said that he did not supply GBL for money in the way that he supplied the cocaine.
The offender did not agree that he had a lock on his gaming office door because that is where he conducted the business of supplying prohibited drugs. He said that there was a hole in the door with some gaffer tape over it and that he had locked the door to keep his dogs out.

[14]

Crown Submissions

Mr Solecki made helpful written and oral submissions on behalf of the Crown.
In his written submissions, Mr Solecki notes that the maximum penalty serves as a yardstick or a basis for comparison between the worst possible case and the matter before the court, a proposition which is uncontroversial.
As to objective seriousness in the instant case, Mr Solecki submitted that in a drug supply case, the correct approach calls for considerable weight being afforded to general deterrence and the protection of the community, that the court must be mindful of the relevant maximum penalty which is set at a high level and that a sentence of imprisonment will ordinarily be imposed where the facts demonstrate drug dealing to a substantial degree and that in an ordinary case the serious social implications will mandate a sentence of imprisonment: Parente v R [2017] NSWCCA 284.
The Crown submitted that the offender's role and the level of criminality involved is more important in determining a sentence that the quantity of drugs involved, which is an assessment to be based on the involvement of the offender in the steps taken to effect the supply. He said that when the offender's role in not known, the court is not obliged to find facts favourable to the offender or to accept his version of events. Further, he said that those who engage in supply at any level is significant and that a deterrent sentence is necessary.
Here, the Crown submits, the following factors are relevant to the assessment of objective seriousness. First, the offender was in possession of 1627.4 g of GBL, which is more than 32 times the indictable quantity and more than 1.5 times the commercial quantity proscribed for that prohibited drug. That is so. Second, the offender was found in possession of a variety of prohibited drugs, one of which (cocaine) - at least - was intended for supply into the community. This is also so. Third, the evidence demonstrates that the offender was supplying drugs to finance his own drug addiction and his general lifestyle. Whilst the evidence demonstrates that the offender supplied cocaine to finance his own drug addiction (and the supply cocaine is on the Form 1), the offender had a significant drug addiction, but the evidence does not demonstrate that he had a lavish lifestyle. On the contrary, the evidence shows that the offender's drug addiction caused him to be in significant debt. Fourth, it was submitted that the evidence suggests a level of sophistication in the offender's "operation" and that the operation involved the use of other people in facilitating the supply of prohibited drugs. I find that whilst the offender's cocaine supply operation involved others, I do not find that it was sophisticated. Fifth, the Crown submits that the offender's role was somewhere in the middle of a broader organisational structure and that he was in a position to supply through couriers. This can only be said, on the evidence, with respect to the offender's cocaine supply. All this, the Crown submits, means that the offender's offending falls around the mid-range of objective seriousness.
As to aggravating factors - s 21A(2) of the Crime (Sentencing Procedure) Act 1999 ("the Sentencing Act") - the Crown notes that the offender has a record of previous convictions for drug related offences: s21A(2)(d). I find that his record disentitles him to leniency. The Crown also says that the offender was on conditional liberty in relation to an offence of supplying cocaine in an amount that was more than the indictable quantity proscribed for that drug: s21A(2)(j). It is not in dispute that this is an aggravating factor. Mr Solecki also says that the offence was part of a planned and organised criminal activity: s21A(2)(n). I find that this is so only to a limited extent, as the evidence demonstrates that the offender used the GBL largely for his personal use and otherwise for supply to his flatmates, and perhaps others who came around to socialise with drugs.
As to mitigating factors - s21A(3) of the Sentencing Act - the Crown says that the offender's record does not entitle him to a finding of good character (s21A(3)(f), a proposition with which I agree. The Crown concedes that the offender is entitled to a 25% discount by virtue of his plea in the Local Court on 1 July 2019: s21A(3)(k).
As to totality and accumulation, the Crown says that in determining the appropriate amount of accumulation to be had with the offender's existing sentence, the court should have regard to the maximum penalties, standard non-parole period and all objective and subjective factors and principles concerning accumulation, concurrency and totality. The Crown says partial accumulation would be appropriate in this matter both to reflect the overall length of the offender's time in custody and the separate criminality of this offence.
Finally, in his written submissions, the Crown says that the need for general deterrence is high in cases involving the supply of prohibited drugs, that general and specific deterrence, rehabilitation, denouncement and the protection of the community would be at the forefront of the sentencing exercise in this case and that the section 5 threshold has been crossed and that the only appropriate sentence is one of imprisonment.
In oral submissions, the Crown addressed me on the principle of totality as it applies to issues of accumulation with existing sentences. He submitted that that I would have regard to the overall length of the sentence to be imposed, taking into account that the ICO was imposed only shortly before it was breached, and that the criminality of the offence took place some two years prior to that date. He conceded that it was entirely within my discretion to backdate and that there should be some partial accumulation.
Mr Solecki submitted that there were a number of factors in favour of the offender, in particular rehabilitation and that he had been abstinent for year. He said that this was a case of drug supply, where general deterrence looms large and that was another reason why partial accumulation is appropriate. Personal deterrence, particularly in light of the offender's previous conviction for supply, also has a role to play.
The Crown noted that there had been previous failed attempts at rehabilitation and that when assessing the offender's prospects I should also take into account his failed efforts thus far. He did not dispute that the offender had a significant ongoing problem with the use of prohibited drugs. The Crown said that in lesser circumstances the offender's substance abuse disorder might weigh more in his favour.
The Crown agreed that the offender's role was either a packager or a low level supplier.

[15]

Offender's Submissions

Mr Barrack, who appeared for the offender, provided a helpful written outline of submissions.
In that document, Mr Barrack concedes that a term of imprisonment is the only appropriate sentence and that the section 5 threshold has been crossed.
As to objective seriousness, he submits that it falls towards well below the mid-range of objective seriousness for this offence. He says that the commercial quantity for GBL is 1 kg, the large commercial quantity is 4 kg and thus the instant quantity is approximately 1.5 the commercial quantity and less than half the large commercial quantity. He says that the offending does not involve physical supply of drugs, but is captured by the extended definition of supply under the DMTA. This submission was made before the offender gave oral evidence, during which he admitted supplying the GBL to his flatmates and two others who attended his premises (although not for money).
Mr. Barrack submitted that the evidence relied upon by the Crown that there was planning on behalf of the offender would not amount to an aggravating feature in relation to his offending, as this consideration pursuant to s21A(n) of the Sentencing Act is only relevant where the amount of planning involved exceeds the usual expected planning for drug-related offenses.
It was conceded that as the offender was on an ICO at the time of his offending, this breach of conditional liberty is an aggravating feature.
Mr. Barrack submitted that the offender's conduct was consistent with the role of a small time dealer who had a drug habit. He said that the role of the offender and the level of criminality is more important in determining the sentence than the quantity of the drug and that an offender's role is not to be determined by shorthand labels, but to assess what an offender actually did to effect the supply of drugs. He submitted that those at the top of a drug hierarchy have greater power and get most of the profit and that those who have possession or store them and expose themselves to apprehension are considered to be lower in the hierarchy. In this case, Mr Barrack submitted that when regard is had to the totality of the evidence, the offending conduct would be classed as that of a small time dealer falling toward the lower end of criminality within the spectrum of offending for like offences.
As to mitigating factors, it was submitted that the offender had a low to moderate likelihood of reoffending, that he had good prospects of rehabilitation, that there was an early plea of guilty, that he had significant remorse and insight, and that he had a limited record of convictions. It was submitted that the offender's moral culpability falls towards the lower end and that the court could take into account the offender's mental condition and addiction when assessing the role of general deterrence and the overall sentence. Nonetheless he appropriately conceded that general deterrence must still play a role in the overall sentence.
Mr Barrack said that the offender has a criminal history but not a lengthy one and he noted that he had never been sentenced to a full time custodial sentence, which is the case. He has one previous drug supply offence on his record and it was submitted that whilst this disentitles him to the leniency of an offender with no record, his record is not sufficient to amount to an aggravating feature on sentence. I accept this submission.
It was noted that the offender has expressed remorse consistent with his plea of guilty to others and to the court. It was also submitted that the offender has excellent prospects of rehabilitation and that I would take into account his early plea of guilty (relevant to discount, assessing the offender's prospects of rehabilitation, the need for specific deterrence and the protection of the community), his demonstrated remorse, the fact that he had no punishment details whilst in custody, his ongoing commitment to drug rehabilitation, his abstinence whilst in custody, that he has full time employment to return to upon his release, his disassociation with his negative peer group and his commitment to ongoing psychological and psychiatric treatment.
In oral submissions, Mr Barrack said that it would be appropriate in the circumstances to backdate the offence to somewhere between 1 January 2019 and 1 March 2019 when considering totality. He said that but for the aggravating feature of the breach of the ICO he would have advanced a submission that the objective seriousness of the offence is towards the lower end. However, in submissions, Mr Barrack cavilled for a finding of below the mid-range. He noted that there is an absence of the sale or active supply beyond sharing with friends as regards the GBL. There was nothing suggestive of packaging of small quantities or medium quantities of GBL as they were found in two large lots. Further there were no text messages of any kind that related to the sale of GBL.
As to the offender's moral culpability, Mr Barrack submitted that the impact on Mr Burns is loss of his mother, the ongoing difficulties, the bullying at school, the blended family, and his stepmother's alcoholism all led him to a point where he was significantly emotionally vulnerable. He said that it was not a coincidence that he - an intelligent young man - wound up in a situation in his 20's where he had an appalling addiction to drugs. He has tried to stop but has been unsuccessful. Mr Barrack submitted that the offender's moral culpability falls towards the lower end. He said that the evidence is clear that this was supply for need rather than greed. If the offender had been supplying for greed, so it was submitted, he did a very bad job, as he could not even pay his rent. What he was doing was essentially keeping afloat a very bad habit and the addictions of him and his flatmates. He submitted that the offender's judgment was impaired over an extended period of time and he made appalling decisions. He was not motivated to make money and did not have a lavish lifestyle.
As to specific deterrence and protection of the community, I take into account the evidence that the offender has given about his time in custody, in that feeds into the need for protection of the community. As to special circumstances, it was submitted that the statutory ratio be varied taking into account the offender's mental health issues, substance abuse the need for guidance of his family, his need for employment, and his need to be closely monitored and supervised upon his release.

[25]

Form 1 and s166 Matters

As I indicated earlier, I have been asked to take eight offences into account on a Form 1 basis when sentencing the offender for the principal offence, the details of which I have already set out above. One is for a supply of a significant amount of cocaine. This has the effect of increasing the sentence that would otherwise be imposed for the principal offence. [1] The increase operates to recognise the need for personal deterrence and the community's entitlement to retribution for the Form 1 offences, although the focus remains on the primary offence. [2] I have taken these offences into account and I have carefully considered s33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the judgment of Spigelman CJ in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002.
In R v Mueller [2015] NSWCCA 292 at [25] to [26], the court said:- The leading authorities as to the significance to be given to offences taken into account are Attorney-General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; 137 A Crim R 180; [2002] NSWCCA 518 and Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115. In the first of these the Court observed (at [42]):-
The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences which there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another. Although the taking into account further offences may be with a view to increasing the penalty that would otherwise be appropriate, the authorities make it clear that there will be occasions when the taking of offences into account may add little or nothing to the sentence that would otherwise be imposed. Thus in Abbas, Bodiotis, Taleb and Amoun v R, at [22] and [23] the Chief Justice observed that "The existence of these additional offences may demonstrate the greater need for personal deterrence and retribution in respect of the offence charged" and taking offences into account "would generally, but not universally, lead to the imposition of a sentence longer, and in some cases significantly longer, than would otherwise be required if the Form 1 offences were not taken into account".
As I have indicated earlier, two backup offences were listed on a s166 certificate, which are sequences 12 and 13, which will be withdrawn at the conclusion of the proceedings.

[26]

Sentence

I have taken into account the various purposes of sentencing under s3A of the Sentencing Act. They include: ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender's rehabilitation, making an offender accountable for his or her actions, denouncing an offender's conduct and recognising the harm done to victims of an offence in the community. As I have said, with respect to James Burns, the facts and circumstances of the present offence and this offender highlight how the various purposes of sentencing pull in competing directions - especially given in my opinion the offender's own addiction to multiple drugs and his history of mental health issues played a contributing role in his offending behaviour.
As the High Court said of s3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]:
The purposes there stated (in s3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) at [476-477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) [at 476] in applying them.
The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the court, including the facts surrounding the commission of each offence, matters affecting relative seriousness, the offender's subjective circumstances and other aspects which bear upon the question of sentence, including the guideposts of the maximum penalty and the standard non parole period and the factors referred to in s21A of the Sentencing Act. The sentencing court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances (Markarian v The Queen [2005] HCA 25).
In determining an appropriate sentence I have kept in mind the two legislative guideposts: the maximum penalty of 20 years and or a fine of 3500 penalty units, and the fact that there is a standard non-parole period of 10 years.
As I am satisfied that no alternative other than a sentence of imprisonment is appropriate, the next step is to determine the sentence. Having considered all of the matters I have referred to in this sentence judgment, I impose a sentence of imprisonment for 3 years, 3 months. This is the sentence after applying a 25% discount for the offender's early guilty plea. Had this discount not been applicable, the sentence would have been imprisonment for 4 years and 4 months.
I backdate the sentence to 1 March 2019.
I set a non-parole period of 2 years, which represents a variation in the statutory ratio to 61.5% in light of special circumstances.

R v Burns

At a glance

Court

Decision date

Source

Judgment (28 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (13)