The offender is before the Court following a plea of guilty on 16 November 2022 at the Wollongong Local Court, which plea he adhered to in the sentencing hearing, to one offence (sequence 35) of supplying prohibited drug greater than the commercial quantity, being 557.62g of methylamphetamine, contrary to s 25(2) of the Drug Misuse & Trafficking Act 1985 (NSW), over the period 11 August 2021 to 16 September 2021. The maximum penalty for this offence is life imprisonment. The standard non-parole period is 15 years imprisonment.
The offender also acknowledged his guilt and asked the Court to take into account, when sentencing for this primary offence, an additional offence (sequence 6) on a Form 1, being the offence of supplying prohibited drug less than the indictable quantity, being 21.24g of methylamphetamine, over the period 2 August 2021 to 10 August 2021, contrary to s 25(1) of the Drug Misuse & Trafficking Act 1985 (NSW) (sequence 6). The maximum penalty for this additional offence is 15 years imprisonment and/or 2000 penalty units.
[2]
Agreed Facts
The sentencing hearing was conducted on the basis of a statement of agreed facts signed by the offender and his solicitor. That statement amounted to 26 pages and 224 paragraphs.
The offender was identified by the Strike force 'Tower' as a person responsible for obtaining large quantities of methylamphetamine for the purpose of on supplying the drugs to a large customer base. This strike force was commenced by police in the Wollongong Criminal Investigations Drug Unit in June 2021.
The offender was identified to be using 3 separate mobile telephone numbers during the investigation period and warrants were obtained to intercept these telephone services. These services were registered under false names. The offender himself and others identified the offender by name on all of these services.
Through telephone intercepts, it was established that the offender sourced large amounts of methylamphetamine for on-supply, from the co-offender Burns, who was his upline supplier, and the co-offender Consigli (who was also the partner of the co-offender Burns).
During the investigation, the co-offender Burns was identified as using two mobile phone services which were registered under false names. The offender would regularly refer to the co-offender Burns as "Bez" on these services. On 16 September 2021, one of the mobile services used by Burns was lawfully intercepted under a warrant.
The offender and co-offender Burns used simple coded and common terminology when making arrangements for the drug supplies. Terms used regularly included: "shots of coffee" or "cups of coffee" which initially referred to 1 ball or 3.5 grams of methylamphetamine but later referred to 1 ounce or 28 grams of methylamphetamine. At times, the offender and co-offender Burns would simply refer to the number of ounces required or the amount of money the offender had with him. For example, "2" was a reference to 2 ounces and if the offender had "10, 8" or over "10", these were references to $10,800 and $10,000 and an indication that the offender wanted to obtain 1.5 ounces or 1 ounce with a payment of a debt. The co-offender Burns typically sold an ounce to the offender for $7,200 and 1.5 ounces for $10,800.
Through telephone intercepts, it was established that the offender received drugs from the co-offenders Burns and Consigli, for the purpose of on-supply to his customer base. The offender had customers attending his home unit in Woonona on a daily basis to purchase drugs. At times, the offender would deliver drugs to customers with the assistance of a driver in his own vehicle or another person's vehicle. The offender would also direct other persons to supply customers on his behalf.
Matthew Blair was one regular customer of the offender. Blair was also subject to police investigation. Blair's phone number was also intercepted by police under warrant. It was established that the offender would meet with Blair almost daily to supply methylamphetamine. Blair would attend the offender's address in Woonona or a pre-determined location. The movement of Blair's vehicle was lawfully monitored. Blair's vehicle was monitored attending the offender's address or pre-determined locations to obtain methylamphetamine from the offender. The offender and Blair used simple code and common terminology on the phone when making arrangements for supply. They would regularly refer to "b" or "round one" to refer to a ball or 3.54 grams of methylamphetamine.
At the time of the offending, the offender held a bank account with the Illawarra Credit Union. During the period of the investigation, the offender received deposits of cash from many customers including Blair. Other customers would pay the offender in cash.
The primary offence is a rolled-up charge. It comprises 23 separate supplies to a number of different customers. The summary of these supplies are as follows.
[3]
Supply 1
On 2 August 2021 the offender supplied 1.77 grams of methylamphetamine to Blair in the Windang Foreshore Park carpark.
[4]
Supply 2
On 3 August 2021 the offender supplied 1.77 grams of methylamphetamine to Blair at 27 Messenger Street Barrack Heights.
[5]
Supply 3
Between 4 August 2021 and 6 August 2021 the offender supplied 7.08 grams of methylamphetamine to Blair.
On 4 August the offender supplied Blair with 1.77 grams of methylamphetamine.
On 6 August 2021 at or around 7:52pm, the offender supplied Blair with at least 1 ball or 3.54 grams of methylamphetamine. At 9:00pm on that same day, the offender arranged to meet with Blair again where he supplied him with at least half a ball or 1.77grams of methylamphetamine.
[6]
Supply 4
On 10 August 2021, the offender supplied Blair with 10.62 grams of methylamphetamine.
[7]
Supply 5
On 11 August 2021, the offender contacted his upline supplier, the co-offender Burns, for the purpose of obtaining the supply of 5.31 grams of methylamphetamine. Following the receipt of methylamphetamine from Burns, the offender on-supplied the methylamphetamine to at least four separate customers.
[8]
Supply 6
On 13 August 2021, the offender contacted Burns for the purpose of obtaining the supply of 5.31 grams of methylamphetamine. Following the receipt of the methylamphetamine from Burns, the offender on-supplied the methylamphetamine to at least seven separate customers.
[9]
Supply 7
On 14 August 2021, the offender contacted his upline supplier Burns for the purpose of obtaining the supply of 5.31 grams of methylamphetamine. Following the receipt of the methylamphetamine from Burns, the offender on-supplied the methylamphetamine to at least five separate customers.
[10]
Supply 8
On 17 August 2021, the offender contacted his upline supplier Burns for the purpose of obtaining the supply of 3.54 grams of methylamphetamine. The offender obtained this supply from the co-offender Consigli (apparently instigated by Burns) for the purpose of on-supply to his customer base. The co-offender Burns agreed and directed the supply. Following the receipt of the methylamphetamine, the offender on-supplied the methylamphetamine to at least one customer.
[11]
Supply 9
On 18 August 2021, the offender contacted his upline supplier Burns for the purpose of obtaining the supply of 5.31 grams of methylamphetamine for the purpose of on-supply to his customer base. Following receipt of the methylamphetamine from Burns, the offender on-supplied the methylamphetamine to at least five separate customers.
[12]
Supply 10
On 20th August 2021, the offender contacted Burns for the purpose of arranging the supply of 56 grams of methylamphetamine. The offender met with the co-offender Consigli where she supplied him with 56 grams of methylamphetamine for the purpose of on-supply to the offender's customer base. Burns agreed to and directed the supply.
Following receipt of the supply from Consigli, the offender on-supplied the methylamphetamine to at least 5 customers. He supplied the methylamphetamine in amounts ranging from 1 gram to multiple "balls" (3.54 grams) for his larger customers.
[13]
Supply 11
On 21 August 2021, the offender contacted Burns to obtain the supply of 56 grams of methylamphetamine for the purpose of on-supply to his customer base.
Following receipt of the supply of 56 grams of methylamphetamine from Burns, the offender on-supplied the methylamphetamine to at least five customers.
On 25 August 2021, the offender supplied half an ounce or 14 grams of methylamphetamine to Blair. On 26 August 2021, the offender supplied 1 ball or 3.54 grams of methylamphetamine to Blair. On 27 August 2021, the offender supplied a further 21 grams of methylamphetamine to Blair.
[14]
Supply 12
On 31 August 2021, the offender was supplied 28 grams of methylamphetamine for the purpose of on-supply to his customer base. Upon receipt of the methylamphetamine, the offender on supplied the methylamphetamine to at least three separate customers.
On this occasion, the co-offender Burns flagged the offender's debt of "250" owing to him.
[15]
Supply 13
On 2 September 2021, the offender received a supply of 56 grams of methylamphetamine from Burns for the purpose of on-supply to his customer base. Upon receipt of the methylamphetamine, the offender on-supplied the methylamphetamine to at least five separate customers.
Again on this occasion, Burns raised the offender's debt of "$2850" to which he responded "ok, achievable."
[16]
Supply 14
On 3 September 2021 the offender arranged for the supply of 28 grams of methylamphetamine from Burns for $10,800. The offender on-supplied the 28 grams of methylamphetamine to at least two separate customers.
[17]
Supply 15
Also on 3 September 2021, the offender was again supplied 28 grams of methylamphetamine from Burns for the negotiated price of $10,000.
Following being in receipt of the supply, the offender on-supplied the methylamphetamine to at least four separate customers.
Again, discussions were had between Burns and the offender about his debt owing.
[18]
Supply 16
On 5 September 2021, the offender initially arranged for this supply to be for the supply of 1.5 ounces or 42.75 grams of methylamphetamine for $15,000.
Shortly after 12:33pm, the offender met with Burns who supplied him with 28 grams of methylamphetamine. The offender then on-supplied the methylamphetamine to at least four separate customers.
At 1:50pm on this date, the co-offender Burns informed the offender that his debt was "1490 down to 1K brother okay."
Shortly after 5:39pm on this same date, the offender was supplied with a further 28 grams of methylamphetamine. The offender then on-supplied the methylamphetamine to at least three separate customers.
[19]
Supply 18
On 6 September 2021, the offender arranged for the supply of 56 grams of methylamphetamine from Consigli for payment of $12,000. Following receipt of the supply from Consigli, the offender on-supplied the methylamphetamine to at least five separate customers.
[20]
Supply 19
On 7 September 2021, the offender arranged for the supply of 42.75 grams of methylamphetamine from Burns. The offender met up with Burns for the purpose of the supply, however, Burns mistakenly supplied the offender with 28 grams, or two lots of half ounces, of methylamphetamine instead of 1 and a half ounces or 42.75 grams of methylamphetamine.
Upon receipt of the methylamphetamine, the offender on-supplied the methylamphetamine to at least four separate customers.
[21]
Supply 20
On 8 September 2021, the offender obtained the supply of 56 grams of methylamphetamine from Burns. Upon receipt of the methylamphetamine, the offender on-supplied the methylamphetamine to at least seven separate customers.
[22]
Supply 21
On 9 September 2021, the offender obtained the supply of 14.09 grams of methylamphetamine from Consigli. The supply was directed by Burns. On this occasion Consigli mistakenly supplied the offender with half an ounce of methylamphetamine instead of 1 and a half ounces of methylamphetamine.
Following this occasion, the offender was stopped by police. Police located a black bag in the offender's possession in the tray of the utility of the car that he was a passenger in. The bag contained $130, several mobile phones, 0.3 grams of a white powder believed to be cocaine and a lockbox containing 14.09 grams of methylamphetamine. The offender and the driver of the vehicle denied ownership or knowledge of the items in the bag.
[23]
Supply 22
On 11 September 2021 the offender was supplied 42.75 grams of methylamphetamine from Burns. Following receipt of the supply from Burns, the offender on-supplied the methylamphetamine to at least four separate customers.
On 12 September 2021, Burns raised debt owed to him from the offender saying, "3200 achievable tomorrow?."
On 14 September 2021, the offender negotiated the purchase of 3.54 grams of methylamphetamine from an unknown supplier and later sent an associate to collect it on his behalf.
[24]
Supply 23
On 16 September 2021, the offender arranged a supply of 28 grams of methylamphetamine from Burns. At 6:01pm on that date, Burns supplied Shane Coulton with 28 grams of methylamphetamine to provide to the offender. The offender directed the supply. Shortly after, Coulton delivered the drugs to the offender. The offender received these drugs for the purpose of on-supply to his customer base.
On 16 December 2021, the co-offenders Burns and Consigli were arrested in Port Kembla. On 17 December 2021, the offender was arrested and charged.
[25]
The objective seriousness of the offending
There is little utility, in a rolled up offence of this kind, to slice and dice up consideration of the objectivity gravity of the offence by reference to individual instances of supply; if that was even possible. Befitting a rolled up charge, it is appropriate to address this matter 'globally'. This is how the parties approached their submissions.
The Crown essentially directed its submissions to three issues: the quantity of drugs; the role of the offender within any (applicable) criminal enterprise; and the value of the drugs and what that might facilitate in terms of an inference of financial gain. The offender essentially did the same thing.
The offender argued that the quantity of drugs was not overly significant; that although his role was not minor it was not at the top of the drug hierarchy and his personal circumstances - his need to feed a drug addiction - impacted on his motivation; rather than pure greed.
As to the quantity, there was no ceiling on large commercial quantity, although the minimum for this prohibited drug was 500g, so although the quantity did exceed that, it did not do so substantially.
As to the offender's role, he accepted that there was evidence that on occasions he held a 'managerial' role in directing a co-offender, Coulton, to perform acts to further the drug operation. On the other hand, he was predominantly involved in the transfer of drugs to his customers. The quantities of individual supplies were small, although they did increase (although admittedly, that circumstance did not signify that they were 'street deals'). He was not a typical 'principal' able to distance himself from contact, but rather, was right in the thick of things. He could not be regarded as a 'principal'.
As to the question of motive, the offender said he had long battled with drug addiction. After having left gaol, he found himself with little support and nowhere to stay and has had little substantial periods of (legitimate) employment throughout his life. (These are matters which, as will be indicated, are also relevant to the assessment of his rehabilitation prospects and risk of re-offending). He accepted that he was motivated by financial gain, in this context; but it was said that he was not motivated by greed.
The Crown submitted that, in addition to his direct trading, the offender was a major player in the supply of drugs at least from the period 2 August 2021 to 16 September 2021, although this submission conflated the facts relevant to the primary offence and the facts relevant to the additional offence. In this period the offender had used telephone numbers, and codes, even the assistance of drivers, to ensure the delivery of drugs. This all evinced a level of planning and some level of sophistication.
The Crown invited the Court to infer that the value of the financial gain to the offender was substantial. The pieces of evidence included express references in the conversations to quantity of drugs and prices; and also discussions between the offender and his 'upline' supplier as the amounts owed to the upline supplier (the Crown referred to Agreed Facts 8, 36, 69, 70, 95 & 99). If there was a lack of precision in pinpointing the prices, that was the result of the active steps taken by the offender and the co-offenders to conceal their offending and is therefore not a matter which makes his position any more favourable.
In the hearing the Crown also confirmed that whereas in its written submissions it had referred to financial gain, this went to the objective seriousness of the offending, and was not intended to treat that particular matter as a statutory aggravating factor.
The Crown submitted that, overall, the offending fell slightly above the mid-range and the offender submitted that his offending fell below the mid-range.
It did not strike me that the parties were very far apart in characterising the objective gravity of the offending: the difference being where they respectively placed the offender on the metaphorical scale using the mid-range as the main point of reference. Although quantity is not determinative, and although it may be accepted that the ultimate quantity was not that far above the minimum required for this offence, it is not without significance that it took many successive acts to yield the ultimate result on quantity which tipped the offending into the s 25(2) offence bracket under the DMT Act, even if it did occur over a relatively short period. That took a level of organisation in his enterprise; illustrated by his regular communications with his upline supplier, the co-offender Burns. There were also a not insubstantial number of customers who depended upon the offender. I also agree with the Crown that although, in hindsight, the attempts to conceal appear rather hapless, it is the intention to conceal, and for what it says about the extent of planning and premeditation, which is significant in this regard. On the other hand, I accept the offender's position that, in terms of his (primary) motive, it was to subsidise an apparently fairly modest standard of living. There were repeated references in the agreed facts to debts owed to Burns. This is not to discount the real possibility that he may have been able to negotiate with his customers prices that comfortably covered his debts to the supplier and his living expenses; but there was no suggestion of manifest extravagance in his lifestyle which is a tell-tale sign of a lucrative business. If (contrary to my preference) it was necessary to ascribe a description on where of the scale this offending lies, I would say it was about the mid-point, if at the lower end of that.
[26]
Aggravating factors
During the period of offending, the offender was on parole for a range of offences, including contravention of an Apprehended Violence Order, for which he was sentenced in the Local Court for one year with a non-parole period of 6 months.
The offending also occurred when, separately, he was subject to an extant community corrections order, for the offence of resisting or hindering a police officer in the execution of duty.
[27]
The additional offence
The Crown emphasised the significant quantity of drugs, falling between the indictable quantity, but below the commercial quantity.
The offender accepted that, consistently with the guideline judgment, the additional offence should result in a higher penalty for the principal offence. He acknowledged that the circumstances of the additional offence indicated that this offence was itself serious. However, the extent of the augmentation of the penalty for the primary offence was not substantial: the offending was part of a continuing course of conduct.
This may be true, but nevertheless, the offending fell within a separate period to that encompassed by the principal offence, with added financial benefit for the offender and that does point to an increase in penalty for the primary offence.
[28]
Age
The offender was 39 years of age at the time of the offending.
[29]
Background
The offender relied upon a psychologist report of Diana Grujoska, a psychologist, dated 19 May 2023.
The offender explained to his psychologist that he has an older brother, a younger sister and two younger brothers. Throughout most of his childhood, his mother was very sick from cancer. Due to his mother being unwell and his father being at work, the offender and his siblings were often left responsible for all of the domestic duties.
The offender's parents separated when he was 13 years old due to his mother's illness and his father's alcoholism. The offender's closeness to his family began to deteriorate after this point. He informed his psychologist that he would hardly recognise his mother if he saw her. He noted a time when his mother attended one of his court hearings and he did not recognise her until she called out to him. He expressed that he felt abandoned by his brother, mother and father.
At 17 years old the offender was left to "fend for himself". The offender denied being exposed to any physical or sexual abuse in his childhood. He did, however, report that his father would grow cannabis and that he would often steal some and sell it. He noted that his father's friends would influence him to sell the cannabis, boasting about the amount of money he could make. The offender told the psychologist that "there was never anyone to tell me not to do it."
I do not consider that this is an occasion to venture views as to how 'profound' childhood disadvantage must be in order to engage Bugmy principles. Sad though that the circumstances of his parents' limited involvement in his childhood appeared in writing, they were not exceptional, and nor was the 'disadvantages' he suffered during his childhood; save perhaps for his premature exposure to drugs. Nevertheless, it can fairly be said that issues associated with his childhood led him to the path of addiction which were not entirely a product of free choice. I agree with his Counsel that his descent into drug use from an early age was "unsurprising". In this sense, it has marginally diminished his culpability. But as noted by the High Court in Bugmy, what might be regarded as the flip side of a condition (whatever be the precise cause, or causes) in which an offender's executive functioning is so impaired as to inhibit the capacity to control impulsive behaviour, when offending occurs repeatedly, it elevates the consideration given to the community protection in the sentencing exercise. There was nothing, at any rate, overtly impulsive about the offending here, even if the offending occurred over a relatively short period.
A more relevant factor than Bugmy is consideration of the significance of the offender's drug addiction, and what the Court of Criminal Appeal said about this factor in R v Henry (1999) 46 NSWLR 346 even though analogous points to Bugmy arise. There is, as I have said, an obvious link between his addiction and his offending.
However, as I said in relation to Bugmy, given the extent of planning and organisation, the offending was not impulsive and nor was the offender in the throes of any extreme state of withdrawal that might lead to a disorder in thought. The offender's addiction does not make the offender an 'inappropriate medium' for general deterrence. Further, given what I say later about his prospects of rehabilitation, his entrenched addiction elevates the force for specific deterrence and the need for the sentence to reflect the need to protect the community.
The offender has two children to two separate mothers. He has not seen his children since they were a very young age. The offender's relationships with his son's mothers were described as 'toxic' and 'unstable' due to shared drug use.
The offender reported never receiving any prior diagnosis or treatment regarding his mental health. He advised that he felt there was a stigma attached to seeking mental health support and therefore, he has never accessed these services. Whilst that attitude, outmoded as it is, may be understandable, it does not aid him in any argument that his addictions mitigate his culpability.
He reported that his current mood is "good" as in goal he has structure. He informed his psychologist that life outside in the community was "stressful." He stated that prior to his arrest, he experienced disturbed sleep, rumination, high levels of anxiety, and at times, social anxiety over how others perceived him.
The offender reported to the psychologist about his using cannabis from the age of 13. He reported regular MDMA and LSD use in his twenties. He eventually progressed to speed and then soon after, Ice. From the age of 24, the offender began smoking a ball of Ice each day. In his 30s he used heroin to calm down after his Ice use.
Ms Grujoska opined that the offender was experiencing mild levels of anxiety, however, his symptoms were not clinically significant, and they were not a cause of concern. Ms Grujoska further opined that, according to a 21 item Depression Anxiety and Stress Scale, the offender was experiencing severe symptoms of depression, mild anxiety and was in the normal range for stress related symptoms.
Ms Grujoska opined that according to the Severity Dependence Scale, the offender has a high dependence on Ice and heroin, therefore leading to a diagnosis that he has a severe substance use disorder, particularly in regard to Ice, stemming from his childhood. He appears to have turned his substance use into a means of coping with his feelings of abandonment throughout his childhood.
[30]
Antecedents
This factor was referred to in the Crown's written submissions as an aggravating factor. I do not treat it in that way.
The offender has a significant criminal history (chronicled in 17 pages), including many prior possession and supply offences, driving offences, assault offences, stealing offences, domestic violence related offences, and offences in relation to deal with property the proceeds of crime.
Of greater concern, perhaps, is that in the last 10 years, there have been serious personal violence offences (including those relating to domestic violence) which, fortunately for the offender, were dealt with summarily.
The offender has spent approximately 10 years total in custody, with his longest period out in the community being 12 months.
This record disentitles him to the leniency that would ordinarily be extended to a first-time offender.
[31]
Guilty Plea
There was no dispute that the offender is entitled to a 25% discount for his guilty plea.
[32]
Contrition or remorse
With reference to this mitigating factor, in the context of another drug supply case, Blakeney v R [2022] NSWCCA 277 Wilson J (Bell CJ and Ward P agreeing) said at [78]:
"True remorse involves more than regret for the impact of a crime (or, more properly, the impact of arrest and discovery) upon oneself and one's family. It involves an understanding of the impact of the crime upon others, in this instance, those in the community adversely affected by drug use or drug related crime: the addicts whose lives have been made miserable by drug use; and the victims of crime committed by those addicts to fund it."
The offender did not give evidence in the sentencing hearing. He did, however, rely upon a hand-written letter he composed to the Court. In this letter, the offender apologised to the Court as well as the community for his actions. He explained his regret and shame for his actions and that he has had 'time to reflect' on the seriousness of his offending behaviour. He described his offending as "nothing short of disgraceful." The offender acknowledged that he is an addict and that there was no excuse for his actions. He pleaded with the Court to deliver a sentence that would help him address his addiction in his "time of need."
The offender reported to his psychologist of his daily Ice and heroin use regularly around the time of the offences. He stated that he was "not thinking" and "I'm an idiot." He questioned, had it not been for his arrest, "when would it have ended?"
According to the psychologist, the offender expressed a sense of grief and loss over missed opportunities he could have had in his life, especially when considering the thought of not being able to see his sons until they are 18 years old.
Ms Grujoska reported of the offender expressing remorse and regret for his actions and a motivation to 'change.'
The Crown submitted that the remorse displayed by the offender, and the way in which it has been given, should not be treated as a mitigating factor in which the Court should take into consideration on sentence. Mr Crown took me to some authorities in which it was suggested, that in the absence of evidence given in Court, the Court would be naturally sceptical about hearsay statements by mental health professionals or even written statements of apology which have not been capable of being tested in Court. The Crown reminded me that this offender has had long acquaintance with the criminal justice system and may be taken to know of the sorts of matters that sentencing Judges or Magistrates may treat as mitigating the offending. The offender elected not to give evidence in Court.
I agree that the offender has made the right noises, but given the offender's past record, and the serious criminality displayed (including the aggravating feature referred to), I am frankly sceptical of the genuineness of his remorse, as distinct from the regret he feels for his current serious predicament. Though he 'apologised' to the community, no real insight was revealed as to the contribution his conduct had made to the multiple evils attending serious drug trafficking including the lives decimated and the ripple effects on families. In my view, consistent with other evidence, and especially as a consequence of his difficulties in life outside prison, the offender did what he felt he had to do, without regard to the effect of his offending on others. Thus, I am not persuaded that he satisfied the requirement in s 21A(3)(i)(ii) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('CSP Act'). I agree with the Crown that what he reported to the psychologist was inherently self-serving for someone who has appeared as frequently before the Court as this offender.
I am unable to find contrition or remorse.
[33]
Prospects of Rehabilitation
When previously on parole, the offender was directed to attend an AOD service to address his 'Ice' use and the offender apparently agreed to attend this service. However, in his breach of parole report, it was made apparent that the offender only attended this service once. Following this one-off engagement, the offender failed to make any contact or re-engage with the service as directed.
The offender reported to his psychologist that he had previously relied on drug dealing to survive. He noted that he often falls back into drug dealing following release form custody as he is virtually homeless, is discriminated against in employment due to his record, and does not have any support. He reported that he feels "stuck in a vicious cycle."
The offender has not previously participated in a residential drug rehabilitation program. He did however report that he attended the Watershed Day Program which includes a 9-week program.
The offender is currently on the Buvidal injection which has helped curb his cravings and he has apparently maintained his abstinence since his arrest. The offender reported a hope to continue on this program as he has seen great results so far.
According to a Change Scale administered to the offender by his psychologist, the offender apparently has a high readiness and confidence to change his drug behaviour.
Ms Grujoska opined that the offender would benefit from access to treatment for his mental health and substance use addictions. She opined that given that he has had minimal exposure to prior intervention, the offender presents a good candidate for psychotherapy, CBT and AOD counselling. I do however note that the offender's failure to attend the AOD program, on more than one occasion, previously.
Finally, Ms Grujoska expressed her opinion that it is important that custodial treatment is made available to the offender, as well as his involvement in custodial programs such as the 'Intensive Drug and Alcohol Treatment Program' and the Self-Help (RUSH) program for emotional regulation and interpersonal relationships.
She considered that although in the past he had managed to successfully cease his drug use, because of his poor coping skills, early exposure to antisocial behaviour experiences and history of relapses, she expected that he would have a difficult time recovering from drug dependence without appropriate supports in place.
The offender relied on two certificates of courses completed whilst in custody relating to dialectical behaviour and resilience as well as reintegration upon release from custody. I further note that the offender relied upon a certificate of attainment relating to his ability to operate a forklift truck. Certificates of completion of these courses were in evidence. Nevertheless, he has no track record of employment to indicate that he will be occupied in legitimate forms of work upon release.
As his Counsel conceded, the offender has little by the way of pro-social influences: the two close friends he had he considered to be negative influences. He is disconnected from family and perceives that he is regarded negatively by most people.
Further, as he had noted in the past, he has been homeless. There was no evidence to suggest that this status is likely to change upon his release.
The Crown submitted that the Court would have little confidence in the offender undertaking rehabilitation programs and successfully completing such programs. Whilst acknowledging the offender's efforts in custody, the Crown submitted that this is not a guide to what may or may not occur upon the offender's release into the community.
The offender's Counsel conceded that the offender's rehabilitation prospects are, at best guarded. In my view, this concession was properly made. Whilst it may be accepted that under the controlled environment of incarceration, where attempts are made (at least) to facilitate an inmate's desire to abstain from drugs and administer treatment, the offender may make aspirational statements of intent to a psychologist for the purpose of the latter providing a report to Court, the harder part occurs when the Court must predict how he will fare once released. Unfortunately, this offender's record does not inspire confidence.
[34]
Likelihood of reoffending
The offender reported to his psychologist that he hopes he can get the support he requires to avoid reoffending once released into the community, stating "if I had stability, a house and a job, it would be good." These are significant contingencies.
The offender reported that he plans on preventing his reoffending by keeping himself busy, securing stable accommodation and employment and accessing treatment for his drug use and mental health. He also expressed his desire to relocate away from Wollongong to rid himself of his prior negative acquaintances.
I do not mean to be critical when I observe that Ms Grujoska refrained from venturing an opinion as to the likelihood of the offender's reoffending.
In his written submissions, the offender's Counsel fairly, but accurately, argued that the offender had become 'institutionalised', although pointed out that some gaps between earlier offending was a signpost of some hope that with guidance and support he could lead an 'offence free' life. Counsel repeated the reference to 'institutionalisation' at the hearing. For other forensic reasons, his Counsel also noted that a reason for the revocation of parole in October 2021 was that the offender had not adapted to community life and accordingly could not comply with conditions.
In its written submissions, the Crown submitted that the Court would find little comfort that the offender would not reoffend. Given that the offender has previously shown naivety, a reliance on drugs to survive and life in the community "stressful", the Crown submitted that it may be said that the offender's account of what he seeks to achieve upon his release to avoid re-offending is what the offender believes the court 'wants to hear.'
With his serious criminal history relating to similar offending, the entrenched nature of his drug dependence and lack of, or disregard to genuine remorse and contrition, and the reasons for the revocation of his parole in October 2021, there is a not insignificant risk of reoffending of the nature of this offending.
[35]
Hardship
The offender laid emphasis upon his period of remand coinciding with the Pandemic and cited periods of lockdown. I accept that his experience, although not dissimilar to other inmates, made worse his time in custody than what would have occurred without the Pandemic and this factor weighs in his favour; albeit not very significantly.
[36]
INSTINCTIVE SYNTHESIS
I take into account the maximum penalty for the offence, which indicates the extremely serious nature of the offending. I also take into account the standard non-parole period for the offence as another legislative guidepost.
I take into account the purposes of sentencing as prescribed in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Of primary significance is general and personal deterrence, retribution and denunciation and protection of the community; the last consideration being elevated because of my view as to the scope of the risk of his reoffending. The sentence also needs to hold him to account. His rehabilitation is not unimportant in the sentencing exercise, but it is subsidiary to these other considerations.
As the Court of Criminal Appeal in Parente v R [2017] NSWCCA 284 indicated, whereas once involvement in significant drug trafficking almost automatically resulted in a custodial sentence, that is no longer so, and the Court needs to consider possible sentencing alternatives.
Nevertheless, the parties agreed that the s 5 threshold is crossed such that no sentence other than full time imprisonment is appropriate. I agree.
[37]
Parity
The offender's written submissions did not refer to this sentencing factor. The Crown merely referred to the sentence imposed on a co-offender without submission on the point. When I pressed the offender's Counsel on the matter at the hearing, it was submitted that parity did not apply, at least technically, although I was urged to take into account the sentence imposed on one co-offender, Consigli, when formulating a proportionate sentence.
The co-offender, Consigli, was sentenced by Haesler SC DCJ on 12 April 2023 at the Wollongong District Court to an aggregate term of 2 years and 6 months imprisonment with a non-parole period of 1 year and 3 months for 2 offences (sequences 2 & 3) of supply prohibited drug less than the commercial quantity (both being 56g of methylamphetamine), on two occasions, with two additional offences (sequences 4 & 5) taken into account on a Form 1 attached to another offence (seq 1) of knowingly deal with the proceeds of crime.
By reason of the different (inherently less serious) offence under s 25(1) of the DMT Act and the proceeds offence, the offending is different in nature. I note that, unlike the offender in this matter, the co-offender Consigli did not have any prior criminal history. I agree with the Counsel's offender in his primary submission.
The offender will not, in my view, have any justifiable sense of grievance if he receives a substantially greater penalty than this particular co-offender.
The co-offender Burns has not yet been sentenced.
[38]
Totality
The offender's Counsel submitted that the offender's deprived background and need for extended supervision on parole are relevant to the question of totality and the exercise of this discretion.
The offender submitted that it is within the Court's discretion also to partially back date the sentence beyond 20 December 2021, the date on which the offender's revoked parole period expired.
With some reservation, given his record, I find special circumstances to aid his rehabilitation for the overall benefit of the community.
In this regard, the offender referred to observations of Fullerton J in R v Jackson [2010] NSWCCA 162, in which her Honour (at [25]) endorsed what Simpson J had said in an earlier decision, to the effect that the risk of institutionalisation, even in the face of entrenched recidivism and serious reoffending, was a factor which could warrant a finding of special circumstances.
Counsel for the offender persuasively argued that such a finding could bring about a 'carrot and stick' scenario of yielding incentive to the offender to rehabilitate himself with Correctives personnel whilst deterring conduct that might set back his rehabilitation.
The Crown did not contest the finding. I find special circumstances for the reasons advanced on the offender's behalf.
[39]
Commencement date for sentence
The offender has been in custody since 17 December 2021. This was after his parole was revoked. The revoked parole period expired on 20 December 2021. On 17 December 2021, he was charged with the present offence.
By his Counsel's written submissions, the offender referred to the Court's discretion to backdate a sentence to the date of the expiration of the revoked parole, the date he entered custody, or somewhere in between. His Counsel noted that a reason for the revocation of parole was that the offender had not adapted to community life and accordingly could not comply with conditions. His Counsel called for a partial backdating of the sentence beyond 20 December 2021.
The Crown did not have anything to say against that submission in its written submissions in response. I adopt it.
I propose to modestly backdate the commencement of the sentence beyond 20 December 2021.
[40]
SENTENCE
Mr Figg, would you please stand.
You are convicted of the offence of supply of a prohibited drug greater than a large commercial quantity.
Taking into account your guilty plea, but also your offence on the Form 1, I sentence you to a term of imprisonment of 6 years commencing 1 December 2021 and expiring on 30 November 2027. The non-parole period is 4 years which expires on 30 November 2025, after which you will be eligible for release on parole.
[41]
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Decision last updated: 09 June 2023