R v David Sydney Lowe

District Court of NSW|2009-10-23

CITATION: R v David Sydney Lowe [2009] NSWDC 303

HEARING DATE(S): 23 October 2009 JUDGMENT OF: Conlon SC DCJ

Drug Misuse and Trafficking Act 1985 LEGISLATION CITED: Firearms Act 1996 Weapons Prohibition Act 1998 Crimes (Sentencing Procedure) Act 1999

PARTIES: Regina David Sydney Lowe

1 HIS HONOUR: The offender David Lowe appears for sentence in respect of a number of charges. He pleaded guilty in the local court on 25 February 2009 to a charge of ongoing supply of prohibited drug (namely, methylamphetamine) contrary to s 25A of the Drug Misuse and Trafficking Act and also a charge of supplying a prohibited drug (namely, methylamphetamine) not less than the commercial quantity, contrary to s 25(2) of the Drug Misuse and Trafficking Act. Each charge carries a maximum penalty of twenty years imprisonment.

2 On 22 May 2009 at Campbelltown District Court he pleaded guilty to the following five counts on an indictment. "1. Supply a prohibited drug (479.6 grams of methylamphetamine) being not less than the commercial quantity - s 25(2) maximum penalty twenty years imprisonment.

Cultivate a prohibited plant by enhanced indoor means for a commercial purpose - s 23(1A) maximum penalty fifteen years imprisonment.

Possess unauthorised firearm- contrary to s 7(1) of the Firearms Act carrying a maximum penalty of fourteen years imprisonment.

Possess unregistered firearm - s 36 Firearms Act maximum penalty five years imprisonment.

Possess prohibited weapon without permit - s 7(1) Weapons Prohibition Act . Maximum penalty fourteen years imprisonment."

3 When sentencing in respect of count five on the indictment the offender has requested that a further eight(8) firearms/ammunition offences be taken into account on a Form 1, (see exhibit B). When sentencing in respect of the charge of ongoing supply the offender has requested that two (2) further offences be taken into account on a Form 1 (see exhibit C).

4 The Crown bundle of documents is exhibit A and it contains an agreed statement of facts that was signed by the offender on 22 May 2009. Those facts are poorly drafted and with the assistance of the Crown I have made written notations on one copy of the agreed facts so as to assist me in understanding what evidence relates to each charge.

5 The following is my summary of those agreed facts.

7 In May 2008 Operation Fiesta was formed to investigate the supply of methylamphetamine in the Minto and Claymore area. As part of this a controlled operation was authorised on 5 June 2008.

8 On 12 June 2008 a police undercover operative ("UCO") known as "Peter" attended Swettenham Road, Minto carrying $2,700 in cash. He wore a listening device. The offender was driven to this location by co-offender Frank Sinkovich. Whilst Sinkovich waited by the car the offender went to the undercover operative's vehicle and supplied him with one ounce (31.8 grams gross weight) of methylamphetamine in exchange for the $2,700. That was later analysed and weighed showing a net total of 27.2 grams. There was then conversation about a further supply. In this conversation the offender Lowe referred to "Jack" (co-offender Tutton) as a person who would chase money for him and that the UCO would meet him in the next week. Lowe told the UCO that Jack was "like my uncle...'cause my father's who we work for in this". Lowe told the UCO to bring an Esky or cooler next time to keep the methylamphetamine from drying out. Lowe also gave the UCO a mobile number for future contact.

9 On 18 June 2008 the UCO called Lowe to arrange the purchase of two ounces. He was told the price would be "five four".

10 On 20 June 2008 the UCO again drove to the Swettenham Road location and met with both Lowe and Tutton. They supplied the UCO with 65.7 grams of methylamphetamine for $5,400. Later weighing indicated a net total of 53.3 grams.

11 Discussion then took place about the possible future purchase of "an elbow". The UCO asked for a rough price. Lowe said it would be about "thirty". Tutton stated that several weeks ago the prices were running between "thirty and thirty-five".

12 Arrangements were later made for another meeting on 26 June 2008. On that day the UCO attended the same location. He called Lowe's mobile phone and was told that he had organised for Tutton to attend. A short time later Tutton arrived and supplied the UCO with three ounces (98.5 grams) of methylamphetamine for $8,100. Later weighed it showed a net total of 81.8 grams. Discussion then turned to the price of an elbow. Tutton said he thought it would be "thirty-two". They agreed no one other than Lowe and Tutton would attend for the big deal and that the money would be counted in the car.

13 On 30 June 2008 Lowe spoke to the UCO over the phone. The UCO told him that the deal could probably be organised early next week. Shortly after that conversation Lowe called Sinkovich and asked if he could postpone the delivery for another week. Sinkovich said he would "get it anyway as it didn't matter". Lowe said "Okay but he said "definitely next week".

14 On 2 July 2008 the UCO again attended Swettenham Road and met with Lowe and Tutton. They supplied 66 grams of methylamphetamine for $5,400. The net weight indicated 53.9 grams. Lowe then told the UCO that "that thing" (the elbow) was getting delivered to his house that day. He said, "The boss has dropped it off at my house". On 3 July 2008 the meeting in respect of the elbow was confirmed for 12 noon on 4 July 2008.

15 Turning to the next offence. Supply prohibited drug (methylamphetamine), being not less than the commercial quantity 4 July 2008.

16 On 4 July 2008 the UCO met with Lowe and Tutton just before midday at Swettenham Road for the supply of one pound (16 ounces) of methylamphetamine for $32,000. They entered the UCO 's car with Lowe in the front passenger seat and Tutton in the rear. Lowe removed three packages from a backpack. Tutton passed him an Esky from which Lowe removed an ice-pack to keep the drugs cool. The total gross weight supplied to the UCO during this transaction was 512.8 grams. It was later analysed and weighed showing a net total of 443.8 grams. The UCO then handed over the money to Lowe and as he began to count it other police officers moved in and all were arrested. The drugs were seized, as was the $32,000 in cash. Lowe and Tutton were then taken back to the Macquarie Fields Police Station where they declined to be interviewed.

17 I now turn to my summary in respect of the counts on the indictment.

18 Count one. Supply prohibited drug (methylamphetamine) being not less than the commercial quantity - 4 July 2008. At 12.20pm on that same day being 4 July 2008 search warrants were executed at premises at 11 Bernardo Street, Rosemeadow and 12 Longstaff Way, Claymore. Lowe had been leasing the Bernardo Street address from his sister Samantha Edmonds. When the search warrant was executed Frank Sinkovich was sitting on the lounge watching "Underbelly" on television. Sinkovich told the police that the house was not his but he had stayed there overnight. Police noticed that the bonnet of his car was still hot. In a freezer in the kitchen police located a large resealable bag 18.4 grams (net) and two resealable bags containing 6.5 grams (net) of the same drug (methylamphetamine). In the laundry freezer they found a pink plastic case containing 395.7 grams (net); a specimen jar - 31.7 grams (net) of methylamphetamine; one resealable plastic bag containing 26.6 grams (net); eighteen small resealable plastic bags containing white residue (0.7grams of methylamphetamine). All items were later analysed and found to be methylamphetamine and the net total weight being 479.6 grams.

19 Count two. Cultivate prohibited plant. During a search of the premises at 11 Bernardo Street police found in a room within the house eighteen cannabis plants grown by enhanced indoor means.

20 Counts three, four and five being possess unauthorised prohibited firearm, Possess unregistered firearm, and possess a prohibited weapon without a permit. During a search of the main bedroom police located in the wardrobe one .22 calibre Phoenix self-loading pistol (ID erased) with two magazines in bubble wrap (count three). They also found a .22 calibre BSA Sportsman single shot rifle JB31077, (count four) and two Taser like devices (count five).

21 The eight further matters on the Form 1 (exhibit B) relate to other firearms and ammunition located within the premises at 11 Bernardo Street on that same day. The two further matters on a seperate Form 1 being exhibit C relate to $30,335 in cash found within those premises and 1,650.4 grams of packaged and loose cannabis leaf found in the same room where the cannabis plants were growing.

23 The gravamen of the s 25A offence lies in the repeated acts of supplying prohibited drug within a closed period. In R v Hoon and R v Pouoa [2000] NSWCCA 137 Dunford J said of s 25A at para 29: "The section is directed to the concept of repetition, system and organisation, and the objective criminality of any offence under the section should be determined by those features and not merely to the number and quantities of the individual instances of supply."

24 However, the courts have held that the quantity of the prohibited drug sold is a matter to which regard should be had in sentencing for an offence under s 25A. thus it is relevant to consider whether an offender convicted of an offence under the section had sold three lots of a kilogram each or three lots of one gram; (see R v Smiroldo (2000) 112 ACrimR 47 and also R v Cheikh and Hoete (2004) NSWCCA 448 at 56).

25 In respect of the individual supplies in the present case, each was well above the indictable quantity (5 grams); each supply involved the receipt of substantial quantities of cash being $2,700, $5,400, $8,100 and $5,400 respectively. In my view the facts reveal that the offender was well organised and well prepared to negotiate for the future supply of a commercial quantity. That is simply indicative of the system that the offender had in place. This was quite clearly a profit making exercise. My assessment of the objective seriousness of this offence is that it falls above the mid range for offences of its type.

26 Regarding the charge of supply prohibited drug of not less than the commercial quantity on 4 July 2008, this involved a considerable degree of planning. First there were the negotiations in respect of price and the time frame when the delivery could be made. It involved this offender, Lowe, contacting the co-offender Sinkovich who would organise for the collection of the commercial quantity and bring it to a location where the offender could collect it and then on supply to the UCO. $32,000 exchanged hands. My assessment of the objective seriousness of this offence is that it falls above the mid range but not at the upper of the range. As well as a maximum penalty of twenty years this offence also carries a standard non-parole period of ten years. While the standard non-parole periods strictly apply only to offences upon conviction after trial, the standard non-parole period remains a reference point for the assessment of the appropriate penalty and in respect of the present offences I have had regard to it in exactly that way.

27 Count one on the indictment, being the supply of a prohibited drug not less than the commercial quantity, involved the offender's possession of the various packages located at 11 Bernardo Street amounting to a total of 479.6 grams (the prescribed commercial quantity being 250 grams). Those premises were being used by the offender to store the drugs ready for supply. In my view the objective seriousness falls within about the mid range. In my view it matters not that those drugs were not actually supplied, they were clearly going to be supplied.

28 Count two. Cultivate prohibited plant by enhanced indoor means. The number of plants was not great. In my view this fell below the mid range.

29 Counts three four and five. In my assessment of each of those offences the objective criminality fell within about the mid range.

30 The courts have said time and time again that those who involve themselves in trafficking of illicit drugs for profit can expect to receive substantial full-time custodial sentences. These drugs devastate lives. In respect of offences of this kind the element of deterrence, both specific and general, is a significant factor to be taken into account in considering the appropriate sentence.

32 I now turn to the subjective circumstances. The offender is now thirty-seven years of age. While his criminal record is not an extensive one, and he has no prior drug related matters, it is nevertheless not one that would entitle him to leniency.

33 Exhibit D is the pre-sentence report (dated 3 June 2009) of Mr Kenneth Stevenson, Probation and Parole Officer. It contains the following background information. The offender was the eldest of four children. He was apparently raised in a caring and supportive family environment and there were no significant issues during his childhood. He has apparently always been protective of his three sisters and when his parents were called upon to work long hours the offender felt he had a responsibility to care for them.

34 He completed year ten at high school, achieving average results. After leaving the school he completed twelve months of a carpentry apprenticeship. He then worked building air conditioners for three months before commencing and completing a four year motor mechanics apprenticeship. He remained employed in that field for a further four years. Since that time he has been variously employed as a storeman, a truck driver, and most recently between 2005 and 2007 has conducted his own landscaping/home maintenance business.

35 He informed the probation officer that he used cannabis between the ages of fourteen and twenty-four, and would use amphetamines and ecstasy on weekends approximately once a month throughout his life. However he maintained that his use of illicit drugs was not a factor in respect of the commission of the present offences.

36 He commenced a fourteen year relationship when he was about twenty years of age and he has three children now aged seventeen, eleven and ten from that relationship. He said he went through a difficult separation with his ex-partner around Christmas 2006. However, he remained on friendly terms with his ex-partner and had been assisting with the care of his children while she in fact studied full time at TAFE from about mid 2007 until arrested in respect of the present offences. Since his incarceration that relationship has become strained and his ex-partner has refused to allow him any contact with his children. In the course of submissions Mr Clarke indicated to the court that it is also the case that due to his present custodial environment the offender himself does not necessarily want his children seeing him in that environment. The offender also informed the probation officer that he entered a new relationship about six months prior to his arrest but that also has now ended. He apparently remained unemployed since about 2007 and was not in receipt of Centrelink benefits.

37 He advised the probation officer that he is a member of the Rebels Outlaws motorcycle gang, joining in 1999. He was the sergeant at arms of the Wollongong chapter between 2004 and 2006 and was the secretary of the chapter from 2006 up until his arrest in July 2008. He adamantly denied that this association was a factor in the commission of the present offences.

38 The offender's parents and sisters now all reside in Queensland. His mother indicated that whilst the family was disappointed in respect of his involvement in the offences, she confirmed the family's continued support for him.

39 Ms Crystal Slack is a sister of the offender. She had travelled down from Queensland to Sydney on two occasions and gave evidence in the sentence proceedings on the last occasion. She confirmed that the offender had indeed provided much comfort and support to all of his sisters both growing up and in their adult lives. She said he was a person that was always there for them.

40 In both the pre-sentence report, exhibit D, and the report of the psychologist Mr Diment (tab 5 exhibit A) the offender sought to provide a reason for his involvement in these offences. To the probation officer he indicated in part, that a friend owed a large drug debt and that he (Lowe) had agreed to be that person's bodyguard/security and that he was attempting to assist his friend work off that drug debt by supplying drugs.

41 A similar explanation appears in the psychologist's report on p 4 under the heading of "The Offence". In accordance with the principle in R v Qatami little weight can be afforded to such assertions.

42 In his report the psychologist, Mr Diment, stated that the offender was suffering from anxiety and depression. He said: "While some of this is reasonably due to his current circumstances and pre-sentence, he is genuinely concerned about his children and family's welfare. He appears to have had a tough upbringing and he has always considered himself responsible for protecting his family. A role which he takes seriously."

43 He informed the psychologist that he regretted his actions: "big time, like you wouldn't believe...now will not be involved in anything like this that is in my power to do so...upset over the implications for others, not just me...family, kids...issues of drugs and all that for those into that rubbish."

"In regards to his favourable prognosis and rehabilitation prospects, in his favour is a basically well-adjusted "core" personality and he has a good work ethic. His main passion in life involves cars and motorbikes and he told me that people in his motorcycle club 'Are on my back big time about my stupidity in all this...I reckon I have learned the hard way...I won't get another chance from them.'"

45 The suggestion referred to above may qualify for an expression of regret. However it cannot be put any higher than that. Mr Clarke indicated that another matter of some concern to the offender in his present custodial situation is the fact that his father now has a secondary onset of prostate cancer and is presently undergoing chemotherapy.

46 The fact that at thirty-seven years of age the offender does not have any extensive criminal record and he has had a continuous working history gives the court some hope that he has reasonable prospects of rehabilitation.

48 The offender is entitled to have his guilty pleas taken into account by way of mitigation. That is done on two bases, to reflect the utilitarian benefit to the criminal justice system and to reflect contrition. The Crown has agreed that from the date of the first committal in February 2009 the defence indicated that there would be pleas to all matters provided some resolution could be reached concerning the placement of matters on a Form 1. Ultimately agreement was reached and pleas of guilty were entered to all counts on the indictment upon arraignment on 22 May 2009. Accordingly the Crown accepted that these were pleas at the earliest opportunity. Accordingly I intend to reflect the utilitarian benefit of those pleas by a discount of about twenty-five per cent.

49 The sentencing process requires a careful balancing exercise in cases where regard must be had to a standard non-parole period as a guidepost or indicator of the appropriate sentence, Howie J in R v Knight and R v Biuvanua (2007) NSWCCA 283 at 47 said: "Even after a plea of guilty there must be an appropriate relationship between the standard non-parole period and the objective criminality of the offence regardless of the other matters that may be taken into account by way of mitigation..."

50 In respect of the Form 1 matters, I have also had regard to the guideline judgment of Spigelman CJ in the Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act. At para 18 Spigelman CJ observed:

"That there were a number of propositions that were well established and uncontroversial. First, the essence of the process is to impose a longer sentence, or to alter the nature of the sentence, that would have been imposed if the primary sentence had stood alone. Secondly, the additional penalty may sometimes be substantial; it is incorrect to suggest that it should be small."

51 In R v Bavadra (2000) 115 A Crim R 152 Wood CJ at CL said at para 31: "There is a considerable advantage to the administration of justice, and to accused persons, for a party facing sentence to clean up the record. For that purpose the Form 1 procedure is beneficial. The objective of individual rehabilitation can be advanced by its use, since the offender does not have to face a prospect of further trials. There is a utilitarian value in the admission of guilt that is involved so far as there can be a saving in the resources of the law enforcement agencies and the courts concerned. Additionally, the sentencing judge is placed in a position where it is possible to sentence the offender for the totality of his or her outstanding criminality to that point. However, unless proper weight is given to the additional offences that have been disclosed, this procedure fails its true purpose."

52 I have taken into account the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. I have also had regard to s 5 of that Act and having considerable possible alternatives I am satisfied that given the objective seriousness of the offences, no penalty other than imprisonment is appropriate.

53 In Pearce v R (1998) 194 CLR 160 at para 45, the High Court made it clear that a sentence should be appropriate for the offence for which it is imposed. It is a collorary that no sentence should reflect criminality extending beyond the particular offence to which it relates. Consequently if additional or greater criminality inherent in the commission of subsequent offences is to be punished at all, that would necessarily involve some accumulation of sentences.

54 In consideration of the overall structure, I have also turned my mind to the question of totality. The fact that there will be accumulation involved in the sentences is sufficient reason to warrant a finding of special circumstances along with the fact that this will be the first time that the offender has been required to serve a custodial sentence.

55 Dealing first with the matters on the indictment: count 3, possess unauthorised firearm, you are convicted of this offence. I sentence you to a fixed term of imprisonment of two years four months to date from 4 July 2008 and to expire on 3 November 2010.

56 Count 4, possess unregistered firearm, you are convicted of this offence. I sentence you to a fixed term of twelve months to date from 4 July 2008 and to expire on 3 July 2009.

57 Count 5, possess prohibited weapon without permit, you are sentenced to a fixed term of three years' imprisonment to date from 4 July 2008 and to expire on 3 July 2011. In respect of this sentence I have taken into account the eight further matters on the Form 1 (exhibit B).

58 Count 2, cultivate prohibited plant, you are convicted of this offence. I sentence you to a fixed term of imprisonment of three years also to date from 4 July 2008 and to expire on 3 July 2011.

59 In respect of counts 2 to 5 I have not specified non-parole periods as they will be subsumed in the sentences I am about to pronounce.

60 Count 1, supply not less than the commercial quantity (deemed). You are convicted of this offence. I sentence you to a non-parole period of seven years to date from 4 July 2008 and to expire on 3 July 2015. I sentence you to an additional term of three years to expire on 3 July 2018.

61 s 25A offence of ongoing supply, you are convicted of this offence. I sentence you to a non-parole period of seven years to date from 4 July 2009 and to expire on 3 July 2016. I sentence you to an additional term of three years to expire on 3 July 2019. in respect of that matter I have taken into account the further two matters on the Form 1 being exhibit C.

62 On the charge of supplying not less than the commercial quantity, being 4 July 2008, you are convicted of this offence. I sentence you to a non-parole period of eight years to date from 4 July 2010 and to expire on 3 July 2018. I sentence you to an addition term of four years to expire on 3 July 2022. This will be an effective head sentence of fourteen years to commence on 4 July 2008 and to expire on 3 July 2022. The effective non-parole period is one of ten years, that means he will be eligible for release to parole on 3 July 2018.

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