Mr Flowers I am sorry to keep you waiting. I will tell you, my practice is to tell people in advance what sentence is to be imposed. I do not leave anyone in suspense. There are a lot of matters that I have got to cover in my remarks and I am sure you are more interested in the ultimate outcome. Whether you are pleased with it or not, really is of no matter. It is a fact of just what I would regard as common decency to let someone know in advance what the sentence is to be imposed.
In your case I propose to fix an aggregate sentence of seven years, six months imprisonment to commence on 14 September 2017. I am going to fix a non-parole period of four years, expiring on 13 September 2021. I have to impose indicative sentences for sequence 5. I will have to fix a non‑parole period and I will indicate what those are. The total sentence in the circumstances is seven years, six months imprisonment with a non‑parole period of four years backdated until the time you came into custody which I understand to be 14 September 2017. Now I will give my reasons which will take some little time.
Matthew Flowers appears today for sentence in relation to three offences which were matters for which the prisoner was committed for sentence from the Local Court. In respect of each sentence to be imposed, the prisoner will receive a discount of 25% upon the otherwise appropriate sentence to reflect the utilitarian benefit of the plea of guilty, as is required under the guideline judgment of Thomson and Houlton v R from 1999.
The maximum penalty in relation to the sequence 3 offences, as it is described, that is the supplying of an indictable quantity of a prohibited drug, to wit 139.7 grams of cocaine, is 15 years imprisonment. There is no standard non‑parole period for that offence.
In relation to sequence 4, again supplying of an indictable quantity of a prohibited drug cocaine and in that instance 139.6 grams, the maximum penalty is 15 years imprisonment with no standard non‑parole period. The maximum penalty in respect of an offence of supplying a commercial quantity of cocaine, as is the instance set out in sequence 5, where there was 279.5 grams of cocaine, involved is 20 years imprisonment with a standard non‑parole period of ten years. I will come back to the issue of a standard non‑parole period as I am required to do in due course.
R v Flowers [2019] NSWDC 830 | Case summary | Zoe
There are three offences on a Form 1 to be taken into account in respect of what obviously is the most serious offence, the supply commercial quantity of cocaine. These offences are respectively sequences 1, 2 and 6 in the sequence of charges that the prisoner is required to be sentenced.
In relation to the offence which is sequence 1, the prisoner on 11 July 2017 supplied 83.9 grams of cocaine which is obviously well in excess of the indictable quantity. Sequence 2 is concerned with the supply of 55.9 grams of cocaine on 12 July 2017. Sequence 6 is concerned with the prisoner dealing knowingly with the proceeds of crime that is, being in possession of $112,220 in cash in Australian currency believed to be the proceeds of supplying prohibited drugs. That offence was committed on the day of the prisoner's arrest as a consequence of a search of his premises at East Lakes. The original figure was actually $119,000 odd, but it transpires that $6,000 was money that could be identified as not being the proceeds of crime.
With regard to the requirement to take into account the matters on the Form 1, I do so in accordance with the guideline judgment of the CCA from Attorney General's Application No. 1 [2002] 56 NSWLR 147, particularly at [18]-[44], where the CCA in laying down a guideline for consideration of Form 1 matters pointed out that where matters are to be taken into account on a Form 1, greater weight should be given to the need for personal deterrence and the community's entitlement to extract retribution.
The entire point of the process, the Court pointed out, was to impose usually a longer sentence or to alter the nature of the sentence that would have been imposed if the principle sentence had stood alone. Sometimes that additional penalty will be small sometimes it will be substantial, depending upon the circumstances of the matter. The Court stated amongst other things that deterrence and retribution are entitled to greater weight than they may otherwise be given when sentencing for the primary offence.
I am not required of course to identify the extent to which greater weight is given to those matters. I am concerned with sentencing for the primary offence and I am constrained by a number of things, including the legislation which allows the taking of other matters into account on a Form 1 and also of course the maximum penalty for the primary offence. The Court said amongst other things it would be "rarely appropriate for a sentencing judge to attempt to quantify the effect on the sentence from taking into account Form 1 offences". That I have done in accordance with that guideline judgment.
There is an agreed statement of facts. Amongst other things it notes the arrest of the prisoner on 14 September 2017 in circumstances that I will outline in a moment. He has been in continuous custody since that date and all the time spent in custody will be taken into account as I have foreshadowed in the remarks I made to the prisoner and I would ask the transcription service to incorporate those preliminary remarks to the prisoner in my remarks on sentence.
With regard to the agreed statement of facts I do not propose to reiterate all the detail contained therein, but they set out the details of both the offences for sentence and the matters on the Form 1. The prisoner was born in October 1985. He was, as I would understand the matter, relevantly 31 years of age at the time of the offending. I would expect that he turned 31 in October 2016.
The offending occurred over a period of some months between 10 July 2017 and 14 September 2017. There were five drug transactions. The first on 10 July 2017, when an undercover operative using an assumed name lured the prisoner into supplying him drugs in circumstances where it is clear that he was aware of the fact, that is the operative, that the prisoner was a person who could supply the drugs. The undercover operative having contacted the prisoner through a messaging app called "Wickr" arranged to meet the prisoner the following day.
The prisoner and the undercover operative met about 11.50am on 11 July and the prisoner handed over a sandwich bag containing a white powdered substance and the prisoner received $18,900 for that powder. It was found to contain 83.9 grams of cocaine with a purity of 91%, which is clearly a very high level of purity and that offence, being sequence 1, is one of the matters on the Form 1.
Sequence 2 is another offence on the Form 1. This involved the prisoner being contacted the next day, that is, 12 July and after being contacted by the undercover operative in the same modus operandi as they met. The prisoner was given $12,600. The prisoner retrieved a plastic bag which had a sandwich bag containing white powder. Amongst other things the undercover operative mentioned to the prisoner the "quality of the product" and the prisoner said in an unguarded moment obviously that he had "landed a good connect who was looking after them". The powder eventually was weighed. It was 55.9 grams and had a purity of 87%.
Sequence 3 offence, which is a "principal offence" although not taking into account matters on a Form 1, was committed by the prisoner on 23 August 2017. Again the undercover operative had telephone conversations with the prisoner and the two men apparently met up as I would understand it in the Mascot area and the prisoner was given $31,500 and the prisoner gave the undercover operative a plastic shopping bag which held five school clear sandwich bags with white powder. After they left one another the powder was weighed and was found to be 139.7 grams of cocaine with a purity of 85%.
Sequence 4 offence, another offence for sentence, is a supply that occurred on 31 August 2017. Again, the same modus operandi of connection. The undercover operative rang the prisoner. They met up in the Moore Park area. The prisoner was given $31,500 and he provided a plastic sandwich bag with white powder in it which was found ultimately to contain 139.6 grams of cocaine with a purity of 86% when it was properly examined.
On 14 September the prisoner committed the sequence 5 offence, which is the offence that requires the taking into account matters on the Form 1. Again the prisoner was contacted over, in this instance, a period of some days, between 4 September and 14 September. They arranged to meet at a later time, although it is self-evident from the facts the prisoner did not at first have the relevant quantity of cocaine that was wanted by the undercover operative. But they finally met on 14 September 2017 again in the Moore Park area.
The prisoner drove to a particular place, walked over to approach the undercover operative. He handed the undercover operative a black shopping bag and inside there was another plastic bag with the contained number of clear sandwich bags. The undercover operative went to retrieve some currency from a shopping bag in his boot, but the prisoner never received the money because he was arrested and that led to a number of things, including the search of his premises and the finding of the cash the subject of the deal with proceeds of crime charge.
As I understand it from my calculation the prisoner received from the undercover operative something in the order of $94,000, perhaps slightly more and the prisoner supplied to the undercover operative approximately 700 grams of cocaine, all with very high purity, which as the Crown points out a significant matter.
It is quite clear it must said, in respect of the role of the prisoner of course that he was acting as a type of middle man. It reflected upon the matters such as his inability to gain access to the cocaine that was being sought by the undercover operative, but it is also clear as his counsel conceded in his helpful submissions, that these offences were not "isolated" offences. I will come back to his counsel's submissions in due course.
Arising out of the search of the prisoner's premises, there were a number of documents found that had found their way into the brief quite properly so for my attention. There has been a deal of evidence, mostly oral evidence with which I am concerned with, about the significance of this material. One document was a new vehicle contract in the prisoner's name dated 23 November 2016, relating to the purchase of, as I understand it, a Land Rover which is the vehicle that the prisoner was seen to be driving to and from his meetings with the undercover operative.
The other documents related to the purchase by the prisoner by exchange of contracts of an apartment being built in Page Street, Pagewood, but purchased 'off the plan'. The purchase price for that apartment was $700,000 and there was a deposit of $70,000 paid.
In relation to that material, as I said, there was a deal of oral evidence and affidavit evidence from two witnesses, the mother of the prisoner and a friend of the prisoner which evidence included I hasten to say the production of receipts and bank records and the like, evidencing the fact that the deposit for the purchase off the plan was provided from a $65,000 loan from the prisoner's friend, a mature man whose name I need not repeat, and $5,000 provided by the prisoner's mother.
The Crown had the opportunity of course of cross-examining both witnesses and I have had the opportunity to observe the witnesses and pay heed to the documentary affidavit evidence and oral evidence of those witnesses. I formed the view that both the mother of prisoner and the friend of the prisoner were telling me the truth and what evidence they gave was supported by contemporaneous documentation.
I form the conclusion that the mother, whilst it would appear she was providing money to the prisoner from a very substantial overdraft loan, was prepared to materially assist her son in a range of ways including to assist him to purchase the property. Mr Bagdadi as it transpired, particularly from some evidence that was led in re-examination, was a man of financial substance. That enabled him to be generous to the prisoner, a person he had known when they worked with a common employer.
The matter of the possession of these documents by the prisoner of course arose as prima facie, in the view of the investigators and properly so, as evidence of the acquisition of assets from the related illegal activity with which I am concerned. I am not satisfied that that is so. Of course I understand the possibility that if the prisoner had continued along the line of supplying drugs in the manner in which he supplied them to the undercover operative, he may have had the funds to finance the purchase of the property, either by paying mortgage payments which would no doubt have been substantial or possibly even repaying those loans that had been provided to him by his friend or by his mother.
That having been said, having spent last Friday afternoon listening to the evidence almost nothing was said about that evidence in the submissions, either from the defence or the Crown. I do not make any criticism of them for that. The prisoner may not be aware of this, but when he left my court I actually raised the topic because I had forgotten to raise the topic with counsel about that evidence that I have available to me. I said ultimately I am satisfied I was told the truth about the financing of the apartment and so far as the motor vehicle was concerned, there was a substantial trade-in that enabled the prisoner to purchase the Land Rover. But at the same time, the prisoner at the time of the purchase of that vehicle was still in employment.
He lost his employment late in 2016 and I noticed that the document from the motor vehicle retailer states that what the prisoner had to provide, in order to purchase the vehicle, the sum of $9,980 at a time when I cannot conclude that he was actively involved in drug supply. Thus, whilst the vehicle itself was worth over $105,000 at least when driven off the lot, it is not a case where the prisoner was in possession of a car for which he had to provide $105,000 in cash. Far removed in fact was the reality of the transaction.
The evidence of the mother and the friend of the prisoner, was supported by the bank records that they produced and I hasten to say the mother's evidence went beyond the issue of the financing of the purchase of the apartment. It included evidence largely produced in re-examination of her from bank records of her continual support of the prisoner during the months after he lost his job in 2016. The evidence the mother gave in her affidavits relating to her assistance for the prisoner and her support for the prisoner was not substantially the subject of challenge, but for of course the question of the provision of financial support for the purchase of the apartment.
Her evidence in the substantial affidavit she prepared, unrelated to the purchase of the apartment, concerned matters relating to the prisoner's background, the prisoner's health, his relationship with his older brothers and his progress in custody, as well as her support for him in the future. The evidence she gave confirms much of the history provided to the prisoner to the psychologist.
I am mindful of the fact of course as I am regularly reminded that where a person has been interviewed by a psychologist or a psychiatrist and a report is prepared and the prisoner does not give any evidence, one should approach any opinions that are formed based upon the history provided with some sort of circumspection. In fact one is entitled in some circumstances to reject any opinions that are expressed on the basis that there is no reliable foundations of fact upon which opinions can be given.
However, in this particular matter from the mother's evidence and the evidence of other people, there are various matters of history relating to the circumstances of the prisoner, his upbringing, his health issues and the like, that the psychologist relies upon which I accept to be truthful.
I do not propose to go into the detail of his health matters. There are a number of people in court, many of them are of course as I would understand it connected with the prisoner, but I am not here to fully expose all the detail that I have been provided beyond saying that I am quite satisfied both from the evidence of the mother, the statement made by the prisoner, which I will come to in a moment, and some reports that have been provided to the Court, that the prisoner suffers and has suffered for many, many years a debilitating condition which greatly affects his personal comfort and his lifestyle in a range of ways and is a matter particularly pertinent in this sentencing exercise to a consideration of his circumstances of custody.
I note in relation to the statement prepared by the prisoner and also from the evidence of the prisoner's mother that the prisoner was, before he was arrested in relation to this matter, undertaking some treatment at a hospital to try and alleviate the symptoms of this debilitating condition. But that treatment has been interrupted and I accept what the prisoner has said about the difficulties of continuing that treatment whilst in custody, given what he understands to be the conditions at the Long Bay Hospital run by the Justice Health organisation.
In that regard the Crown obviously endeavouring to help the Court and in anticipation of evidence that had been served on it when the matter first came before me I would assume, produced an email or a series of emails purporting to come from the Operation Nurse Manager at Long Bay Hospital. I do not want to dwell on this matter. But to my mind this information has been produced to the Court in a most unsatisfactory character. I raise that with the Crown Prosecutor not as a personal or professional criticism, but courts should expect better, particularly from the prosecution in terms of assisting the Court.
I have seen many cases involving consideration of the circumstances of the treatment of custody where I have had official literature from Justice Health setting out the facilities that are available in various gaols to assist the Court to understand what treatment is available for a person whilst serving a term of imprisonment.
One of the matters the prisoner particularly raised was his concern in moving from where he is for example at the moment, where he has privacy to deal with his health issues, to Long Bay Gaol where he understands he does not have the same privacy. I will not go into the reason that this is so again out of respect for the prisoner's entitlement to some privacy in this regard.
The matters I refer to of course are extensively set out in both the affidavit evidence of the mother and the lengthy statement prepared by the prisoner. The information that is provided to the Court in what I regard as a rather informal email forwarded to an officer of the DPP, bearing in mind the way in which the letter commences with the expression "Hi Renee," is that the circumstances of the prisoner's access to facilities in the gaol situation at least at Long Bay Gaol are no different than what he asserts.
So far as the Long Bay Hospital is concerned, whilst there is some information about the facility and the criteria for admission, there is no information that addresses particular matters raised in the prisoner's statement about issues that would reflect upon his ability to have privacy.
The condition from which the prisoner suffers, as I have said, afflicted him since his late teen years and it is clearly on a number of occasions had a catastrophic upon his welfare and his personal life. He has what he describes in his statement to me as "flare ups" that can debilitate him for long periods of time. The extent to which those flare ups may affect him whilst in custody, whilst is not a matter that can be predicted with certainty, will, when they occur, greatly impact upon his comfort in the custodial setting.
In any event, whilst I appreciate the information provided by the Crown, it did not persuade me that anything said by the prisoner about how he understands his present situation and what his future circumstances may be is incorrect.
The evidence available from the mother confirming the statement of the prisoner reflects upon also the condition of one of the prisoner's older brothers. No doubt this is a considerable matter for distress for the entire family and for the prisoner of course being in custody separated from his brother as a result of his own conduct.
I bear in mind of course the prisoner is not the primary carer for his brother. But I accept in light of what I understand to be the complicated family upbringing of the person and the fact that the prisoner has not had a primary father figure available to assist him through his life, relying upon his older brothers for that task. Whilst this is matter that concerns him greatly, ultimately as was considered by his counsel, there are not what could be called "exceptional circumstances". But it is a relevant matter to this sentencing exercise.
In terms of the defence case, I have referred in summary to the evidence of the prisoner's mother in material respects to the issues which I am considering as well as the prisoner's statement. I also have a number of character references, including I hasten to say, a character reference from the man who I earlier referred to who had provided the prisoner with financial assistance in the purchase of the apartment. He was available for cross‑examination. Opinion and views of the accused from his reference were not the subject of significant challenge.
Amongst the references I received from people other than family members, such as is contained in the affidavit of the mother for example, I have other references from family friends and previous employers or managers. I also have a letter from a representative of the Community Restorative Centre, which is an organisation that provides assistance to people who are released from custody and restored to the community and also provides assistance to people in custody.
One of the matters that comes from the reference from the Community Restorative Centre of Ms Wong, is the confirmation of the prisoner endeavouring to engage in counselling and developing some insight into his history of drug use.
His friends and working colleagues confirm the fact that, as is stated by the prisoner in his lengthy statement to me and in his mother's evidence the prisoner since the time that they have known him has regularly been in employment subject to the effect upon him of his health difficulties. He is considered a trusted employee when he is working, he is industrious. He is a person who is engaging and trusted within that context. One particular employer was frank enough to say in the reference that he had not seen the prisoner for 18 months, that is, for a period prior to his arrest in relation to this matter, but spoke glowingly of his work ethic and his personal characteristics so far as they were shown in the work environment.
With regard to the prisoner's statement to me, to which I have made reference on a number of occasions, that statement is probably one of the most extensive statements I have ever read from a prisoner. I appreciate of course he has not given evidence. But as I said, many of the things he asserts in that statement are confirmed from other sources or sources that were available to give evidence and were not challenged in relation to the prisoner's situation.
In his statement to me he sets out his upbringing, or details of his upbringing and schooling, his employment history, his family dynamic, his qualifications and the effect upon him of his medical condition and the disability, if I might call it that, that from time to time strikes him because of that condition. It can involve what he calls "flare ups" that may last for a month, sometimes up to three to six months, make it impossible for him when he is in the community to leave his home. It involves severe ramifications for his fundamental bodily functions. He loses weight, he suffers a loss of sleep and pain as well. He is very concerned, as I said earlier, that many of the matters that affect him arising out of that condition are matters that he would not wish other prisoners to know about I would assume for a range of reasons.
He also reflects upon matters that have affected him over his lifetime that have caused him to feel depressed or anxious. He has been through two relationships, again the details of which I do not need to expand upon, but both of them have been disastrous, both in terms of affecting his mental health and also in terms of his history of use of prohibited drugs and his dependency on them from time to time. It would seem based on the information he has provided to me that both relationships involved co-dependency upon prohibited drugs, and this is to be fair to other things that I have observed about his background had an effect upon his employment from time to time. It has also affected his mental wellbeing as I said.
He has provided me with some details in relation to his brother's condition which is a very serious condition. I do not need to go into that in detail, but there is material within the defence bundle which confirms the existence of that condition which is a very sad situation indeed for the older brother. The prisoner indicates that drug use has been a significant part of his life and he feels however that since his arrest and since he has been in custody and drug free he has the capacity to remain drug free in the future.
So far as his time in custody is concerned he has been very productive and industrious, as he has been in his working life, and to that end amongst the material that I have been provided are a series of reports, or case notes as they are described, from various officers of Corrective Services setting out the details of some of the work that he has done over the time that he has been in custody. From April 2018 he is described by one of the Corrective Services officers as "diligent, quiet, polite and respectful, never asks for favours". One particular separate report from about the same time referred to the fact that he had had a "very bad day" through no fault of his own. A visitor had not turned up, yet bearing in mind the stresses and strains of being in custody, he had "handled the whole situation very well and even managed to laugh at the situation after the initial upset".
A report from May 2018 reflected upon his work in ground maintenance in the previous seven months. He is described as working hard, having the willingness to learn new skills, showing initiative without being asked and always being "polite and well-mannered", having "a very positive influence on the ground maintenance team". And so the reports go on and similarly glowing reports are available right through until the beginning of 2019. The last report reflected upon him having "great skills", and one of the "leading workers".
As I said, there is a great deal of detail in that statement, as there is a great deal of detail particularly in his mother's affidavit setting out details of his background and that has all been taken into account.
The psychology report to which I referred earlier sets out the history of the prisoner in terms consistent with the evidence and other material available, and reflects upon some of the factors that have contributed to the prisoner's drug dependency and drug usage, including the relationships that I have earlier referred to. His use of cocaine began, according to the history provided to the psychologist when the prisoner was 23, but before that apart from alcohol usage most of his drug usage was described as "recreational". He had also experimented with methylamphetamine or "ice" over the previous five years before his arrest in 2017, but cocaine was his preferred drug of choice.
The psychologist noted previous treatment for depression, as it is described, in 2010 and the prisoner being prescribed an antidepressant medication. The report asserts that the prisoner has been on that medication since that time, although the extent to which the prisoner has been consistently taking that medication is unclear both from his statement and the report. The report also reflects upon his medical condition to which I have earlier made some reference as well as the condition of the prisoner's older brother.
The conclusions the psychologist reached from the various tests that he administered, the psychologist like a lot of psychologists has provided a very extensive annexure setting out the various psychometric and other testing that was undertaken, concluded that the prisoner had no significant cognitive impairment, his cognitive functioning was thought to be within an average range. He was frank, "self-critical" and the like. He noted at the time of testing the prisoner was experiencing "severe levels of anxiety and depression" and has a number of fears and other feelings which are presumably in large part reactive to his current circumstances. He is emotionally unstable, if I could use my word, and he has suffered somewhat from the character of the personal relationships in which he has been involved. He has a considerable degree of concern about his physical functioning for good reason given the symptoms that he has to endure from his medical condition.
He also experiences what are described as "a number of symptoms consistent with a bipolar affective disorder", including a sense of grandiosity, over-confidence, racing thoughts, feelings of elation, a lack of need for sleep, but also experiences drastic shifts in mood and energy from very high to low and vice versa.
So far as the ultimate opinion of the psychologist was concerned, the psychologist was of the view that apart from an unremarkable adolescence, although an unusual upbringing, that his use of cocaine particularly is likely to have been a result of lifestyle behaviour reinforced through the relationships to which I have referred, and the way in which the relationships elevated the use of the drugs by the prisoner.
He noted that in relation to the prisoner's mental state the effect upon him of the understanding of his older brother's condition which was something he knew before he came into custody. He noted at para 37 of the report:
"Additionally I am mindful of Mr Flower's symptoms of bipolar affective disorder, and whilst he did not refer to a period of mania and depression (sic) in which he engaged in illicit substance use, drug use is often evident during manic/depressive phases of the disorder, eliciting a direct causal connection to his substance use is difficult with regard to the sequela of events he experienced including depressed mood, poor emotional functioning, significant emotional distress associated with relationship trust and resulting background, the emotional trauma associated with his brother's diagnoses and the symptoms of the bipolar affective disorder."
That analysis by the psychologist I would hasten to say is somewhat obtuse. I am mindful of the fact that by reference to recent decision of the CCA of Kearsley that if there be an existing mental disability or illness it does not necessarily have to be causally connected to be relevant to the sentencing exercise in the manner discussed by McClellan J, then the Chief Judge of the Common Law Division, in 2010 in the decision of The Queen v De La Rosa [2010] NSWCCA 194, particularly at [177]-[178]. However, in this particular matter it is a little difficult to understand even if there be not a direct causal connection the extent to which the assessment by the psychologist is capable of consideration in this sentencing exercise. It is not the matter of any particular submission by learned Senior Counsel for the prisoner, nor was it the subject of any specific submission as I noted it from the learned Crown Prosecutor. It is true as McClellan CJ at CL pointed out in the De La Rosa at [177] that the state of a person's mental health if it contributes to the commission of the offence in a material way may diminish the moral culpability of the offender and consequently the need to denounce the crime may be reduced with a reduction in the sentence. The offender may be an inappropriate vehicle for the full weight of general deterrence, the circumstances of custody may way more heavily on the person because it may be more onerous because of the condition, it may reduce or eliminated the significance of specific deterrence or else it may require greater weight to be given to personal deterrence because the person may present as a danger to the community.
In the consideration of the report, noting what the psychologist has reported upon, I appreciate of course that the psychologist is not in a position to diagnose the prisoner as such. All he can do really is indicate that the symptoms complained upon by the prisoner are consistent with a particular condition. I accept independently of the psychological report the fact that the prisoner's circumstances of custody will be more onerous because of his long‑standing health from the illness that I have earlier referred to. The extent to which his condition in terms of his mental condition will weigh upon his circumstances of custody are not entirely clear. Bearing in mind of course that being in custody will usually cause anxiety, fear and the symptoms of depression.
So far as the prisoner's involvement in the commission of the offence, certainly one can see with respect to the psychologist's report the reality of the fact that the prisoner's use of drugs itself could compel behaviours or changes in mood consistent with the "bipolar" condition of which the prisoner may have symptoms. Ultimately by reference to the De La Rosa criteria, if I might call them that, there is little that I can find that would reduce the moral culpability of the prisoner beyond the consequences for the prisoner of the effect of the drugs which he was dependent upon. But of course I understand that underlying the use of drugs are factors of life experience and other matters which might make him more susceptible to that drug use.
Certainly if there be a requirement for some lessening of the weight to be given to general deterrence in all the circumstances of the matter it is a matter that is of minor proportions. Not significant but still present. So far as personal deterrence is concerned I cannot conclude that his condition as assessed by the psychologist reduces or eliminates the significance of specific deterrence. But it certainly does not conversely reflect upon the prisoner as being a danger to the community. As I said, ultimately without any criticism of the way the case was professionally conducted by both counsel, I received little assistance in assessing this matter from the bar table. But then again it was open to me to ask questions.
The psychologist reflected upon the risk for the prisoner in the future. The psychologist was of the view that if the prisoner was to return to the community, relapse into substance abuse and be without employment and without family support he will be more susceptible to further offending. That appears to me to be self-evident. I accept from the evidence of his mother and the material provided by the referees that he has support outside the community, his mother has been of great support to him both whilst he has been in custody and before he came into custody. Of course he was still able to commit the offending with which I am concerned with her support there to try to guide him to safer waters. But I accept that on his release he will have that support, and I accept that he has got the capacity to find employment and undertake the steps that need to be taken to avoid offending. But he will certainly need some counselling to assist him when he is released.
In that regard I have concluded pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999 that there are "special circumstances". This was not a matter principally disputed by the defence in the context of the submission made about the matter by Mr Boulten SC and I believe that there is a need for a finding of special circumstances primarily to provide an extended period of supervision to address the matters that the psychologist has referred to, and also to provide the prisoner with an extended period of supervision to assist him to adjust to community living.
It should be pointed out in that context that the prisoner's criminal history includes a finding of guilt in relation to a previous supply of prohibited drug, which matter is reflected in the statement of agreed facts that were obviously tendered when the prisoner was sentenced in respect of that matter at the Downing Centre Local Court in August 2013.
I must say that the facts of that matter and the fact of the conviction is entirely consistent with the history of the prisoner of use of cocaine for his own purposes over a period of time up until 2017. In respect of the supply prohibited drug offence which related to his possession or supply of four satchels of cocaine weighing 2.75 grams, the prisoner was ordered to serve 200 hours of community service. There is no evidence of any breach of that community service order. He was also convicted of possessing a prohibited drug and possessing or attempting to possess an anabolic or androgenic steroid or agent of which there were six counts for which he was also placed on a s 9 bond. The steroids, if I might call them that, were found in the prisoner's residence at Eastlakes and were consistent with his own personal use of those substances. The possession of the prohibited drug related to his possession of 4.17 grams of cocaine at his residence. Very small scale possession and supply I hasten to say compared to the matters with which I am now concerned.
Those findings of guilt I appreciate affect the weight that can be given to particular leniency. Certainly the prisoner is not entitled to special leniency. But they also reflect the fact that, as the Crown pointed out, this term of imprisonment I will be required to impose will be the first term of imprisonment imposed on the prisoner, and as I said earlier they are convictions not inconsistent with the history that the prisoner has provided to the psychologist, and provided in his statement to the Court.
With regard to the submissions of the parties, obviously they have been taken into account. If I may deal with the matter from the perspective of the Crown, the Crown summarises the facts which I have dealt with probably in greater detail, and I have already made observations about some aspects of the character of the offending, particularly in relation to the purity of the drugs. It is clear, as the Crown points out, that the prisoner was able to supply, sometimes after some delay, fairly large quantities of high purity at short notice. The Crown submits, and it must be said to be true, that the primary motivation of the prisoner was financial, although the extent to which the prisoner himself would receive a financial benefit is not clear. The prisoner does not assist me in that regard, nor do the objective facts. He was in possession of $112,220 which was the proceeds of crime, a matter I am required to take into account on the Form 1. He has received in relation to the supplies to the undercover officer or operative $94,500, therefore clearly there is an amount of $18,000 odd referable to other drug supply. It is in this context that his learned counsel said specifically, without the aid of a transcript but only relying on my notes, it was not a matter where the accused pretended that this was the only offending, to quote Mr Boulten's words.
As I have earlier said, I draw no conclusions adverse to the prisoner by his acquisition of the unit and the car, and I need not dwell upon that aspect of the Crown's submissions. The Crown also pointed out that the using of money from selling drugs to fund an addiction does not diminish a prisoner's culpability. Although there is not in this case having regard to their findings in respect of the property acquired by the prisoner evidence of "an extravagant lifestyle". The Crown also submitted this was not a case where the accused had been "lured" into offending that would not have otherwise occurred. But it is to be fairly said in the context of the authorities to which the learned Crown Prosecutor refers, the offending did occur on the invitation of an agent of the police to supply the drugs. Clearly the prisoner was willing to do so.
The Crown submitted in its written submissions that I should find as an aggravating factor that the prisoner had a prior conviction for possession and supply of cocaine. I cannot accept pursuant to s 21(2) of the Act that the prior convictions represent "an aggravating factor", as that expression is understood, and is the relevant subparagraph in s 21A(2) is understood. I have earlier noted it does not entitle the accused to special leniency, but it also provides some context to the offending with which I am concerned and also to matters raised by the prisoner in his case.
But I accept as a general proposition of course that drug addiction is not of itself a mitigating circumstance and I need not dwell upon that, although some of the observations by Wood J in Henry v The Queen [1999] 46 NSWLR 346, particularly at [278], which was a guideline judgment I hasten to say in relation to armed robbery, are pertinent here. There was debate in Henry as to the moral responsibility in relation to drug addiction. I think the competing views expressed in that judgment are still out there in the world of the Court of Criminal Appeal competing for one another.
There is a need for weight to be given to general and personal deterrence for offending of this substance, and in that regard I note the terms of s 3A of the Act, and of particularly the various purposes set out in that section which of themselves are matters which sometimes point in opposing directions. The prisoner's position in the context of not a substantial criminal history further calls for a promotion of his rehabilitation, which is recognised as one of the purposes of sentencing in addition to the weight to be given to deterrence, the requirement of adequate punishment, the making of the prisoner accountable for his conduct and denouncing the conduct of the prisoner.
It must be said in the circumstances of the supplies to police officers there was, through no work of the prisoner I hasten to say, any damage done to the community. The offences are clearly such that I am required to impose a term of imprisonment. There is no other alternative other than a term of imprisonment noting s 5 of the Act.
So far as consideration of any other aggravating factors, the only other matter that ought to be identified I hasten to say is that the offence was one committed by the prisoner for financial reward. That having been said, the extent of the reward is not known and in any event one would have thought that the supply prohibited drugs on payment of substantial sums of cash inherently involve financial reward for those involved or financial gain as the expression appears in the subsection.
So far as the offence forming part of planned or organised criminal activity, I could not conclude that there was relevant planning as an aggravating factor. Clearly, access to substantial quantities of cocaine of the purity of this drug reflects upon the existence of some organised criminal activity. But I could not conclude that this prisoner himself was a particular member of a particular organisation capable of getting access to these drugs. Again the prisoner himself is silent on that matter, but I could not be satisfied of that beyond reasonable doubt.
So far as mitigating factors are concerned, I am prepared to conclude that whilst he did have a prior conviction of the character that I am concerned with, he was a person of good character and I am prepared to find in light of his progress in custody that he has good prospects of rehabilitation. It might seem contradictory, but I cannot conclude on balance that he is "unlikely to reoffend" because the mechanisms for ensuring that will need to be in place in the future and I am unable to predict the future.
Notwithstanding the fact that he has not given evidence, in light of his early plea and the statements made in his statement to me and his statements made to other people including his referees and his mother, I am prepared to accept that he has shown remorse for the offending relevantly under s 21A(3)(i) of the Act. His plea of guilty is a mitigating factor, but he receives also a discrete discount for that.
I note by reference to his period of time in custody the other matters that were raised by his mother in terms of the improvement in his mental state, if that is the correct expression. Certainly the improvement in his attitude during the time that he has been in custody has been reflected in the reports from the officers that I have earlier referred to.
With regard to the fixing of the non-parole period I note I am required to fix a non-parole period that ensures that the justice of the case will be met, having regard to all the circumstances of the offence. Particularly noting what has been said about this in decisions such Hilli and Jones v R [2010] HCA 45 and Bugmy v R [1990] 169 CLR 525.
With regard to the submissions that were made by the Crown Prosecutor to which I was earlier referring, I have had regard to the comparable cases to which the Crown referred. The Crown cited Sponberg v R [2017] NSWCCA 120 and Williams v R [2014] NSWCCA 57. The issue of comparative cases is a matter that was the subject of some discussion in the judgment I gave earlier today and for the purposes of considering this matter, although the parties may not have been present for all of my sentencing remarks in the matter earlier which was a Commonwealth sentencing matter I hasten to say, I can only say that I reiterate, without having to expand upon it, the observations that I previously made.
There are difficulties in relying upon comparable cases as the High Court pointed out in Hilli. Many features of the cases will differ, both in terms of objective facts and the subjective circumstances of the relevant prisoner. The comparative cases provide some guidance, as do statistics, although I was not provided with any statistics in this matter. The Crown made some observations about differing features between this prisoner and the offenders in the two cases that the Crown kindly provided. That having been said there are other aspects of this matter that do not arise in those cases. Some of them favourable, including of course, the health of the prisoner, and the circumstances of his custody.
With regard to Mr Boulten's helpful submissions, he noted that this was serious offending. He submitted in reply to the Crown's submission that the offending in relation to the matter with the standard non‑parole period, that is the supply of commercial quantity of cocaine, was below the middle range of objective seriousness. He referred to the quantity involved, the role of the prisoner, the fact that the prisoner was not the sole profiteer from the enterprise which might be inferred.
Section 54A(2) of the Act states that the standard non-parole period represents the parole period for an offence in the Table of the Division taking into account "only the objective factors affecting the relative seriousness of the offence" is in the middle range of seriousness.
The circumstances of the offending and the context in which the offending occurred ultimately has led me to the conclusion that the offending is just below that range that could be described as the middle range of objective seriousness. It has been said in other decisions that the middle range of objective seriousness is not necessarily "a narrow band". Ultimately in the context, particularly the matters identified by Mr Boulten I accept the submission that the offence is not within the middle range of objective seriousness, but it is close to it.
Of course in considering the relevant non-parole period that is not the end of the matter as we know. The standard non-parole period is a matter to be taken into account by a court in determining the appropriate sentence for an offender, but without limiting the matters that are otherwise required or permitted to be taken into account in determining that appropriate sentence. So says s 54B(2) of the Act.
In other words the Act now reflects what was held by the HCA in the decision of Muldrock v R [2011] 224 CLR 120. It is one of a number of matters to be considered, that is the standard non-parole period in conjunction with a range of other matters including of course the important issue of whether there are special circumstances.
Mr Boulten in his submissions referred to a range of subjective issues which I have obviously taken into account without having to reiterate what is set out in his submission. He made the submission to me that the prisoner needs extensive supervision on his release and he also made the point to me that in sentencing the prisoner I am required to have proper regard to the concept of totality of criminality.
The matter involves three separate offences taking into account the matters on the Form 1 in relation to one of those offences. That is a situation where I am required as the High Court said in Pearce v R [1998] 194 CLR 610, particularly at [45], to impose an appropriate sentence for each offence and then turn my attention to the issue of concurrency and/or partial accumulation by regard to the concept of totality of criminality when sentencing for multiple offences. In that regard I note the decision of the High Court in Mill v R [1988] 166 CLR 59, particularly at pp 62-64.
To service the concept of totality I have ultimately determined that I should fix an aggregate sentence in accordance with s 53A of the Act and impose indicative sentences for the individual offences in accordance with the provisions of that section. Because the sequence 5 offence has a standard non‑parole period, I am required in the fixing of the indicative sentence to fix the non-parole period for that indicative sentence, because when there are standard non-parole periods relating to an offence there is an obligation on the Court to fix a non-parole period.
Thus, having determined that it is an appropriate matter for an aggregate sentence I will make that order now, as I foreshadowed to the prisoner some time ago. If you do not mind standing up thanks very much Mr Flowers. I am sorry to take so long.
OFFENDER: That's all right.
HIS HONOUR: Pursuant to s 53A Crimes (Sentencing Procedure) Act 1999, I fix an aggregate sentence of seven years six months imprisonment to commence on 14 September 2017 and to expire on 13 March 2025. That sentence will have a non-parole period of four years expiring on 13 September 2021. You will be eligible for release to parole subject to your rights of appeal and the Crown's rights of appeal on that date.
In relation to the particular matters for sentence I fix the following indicative sentences. In relation to sequence 5 taking into account the matters on the Form 1 that I have identified, an indicative sentence of six years imprisonment with a non-parole period of three years.
In respect of sequences 3 and 4 having regard to the highly similar factual circumstances of each offence, I fix indicative sentences of four and a half years imprisonment in each case.
In making the order for an aggregate sentence I have taken into account on the Form 1 the offences reflected in sequences 1, 2 and 6. Yes Mr Crown, any technical errors?
LEACH: On the last occasion there were some consent orders handed up for the forfeiture of $112,220.
HIS HONOUR: I make the orders in accordance with the consent order. I have signed it and dated it today. I do not need to put those on the record. That document is in the file.
LEACH: And if your Honour were minded to make a drug destruction order for the drugs in the possession of New South Wales Police.
HIS HONOUR: Well unless they have already been consumed I make that destruction order Mr Crown. Anything from you?
TLAIS: Nothing your Honour.
HIS HONOUR: Well do you understand the sentence I have imposed?
OFFENDER: Yes your Honour.
HIS HONOUR: You have a sentence of seven years six months with a non‑parole period of four years. You must understand Mr Flowers there are matters to be taken into account in your favour, but there is also substantial offending involved. You appreciate that. Of course as I said both you and the Crown have your rights of appeal. Determining the appropriate sentence for an individual is a difficult exercise I can assure you. There is no scientifically or mathematically correct answer. One has to take into account arrange of considerations before determining what a particular sentence should be or sentences should be. It is more difficult I hasten to say, when you are sentencing someone for a number of offences.
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Decision last updated: 27 February 2020