NSWNSWDC

R v Garland; R v Mallinson; R v Morris; R v Williams

[2017] NSWDC 258

District Court of NSW|2017-05-12|Before: Mr P

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Court

District Court of NSW

Decision date

2017-05-12

Before

Mr P

Source

Original judgment source is linked above.

Judgment (47 paragraphs)

[1]

REMARKS ON SENTENCE

Ronald GARLAND (born April 1971, 46 years) Guy MALLINSON (born July 1971, 46 years), Nathan WILLIAMS (born December 1985, 31 years) and Karen Joyce MORRIS (born July 1966, 51 years) appear for sentence in relation to offences arising as a result of a police operation named "Strike Force Yellowbox" established by the Central Hunter Drug Unit in May 2015 to target the supply of methylamphetamine (commonly known as 'ice') in the Maitland region.

[2]

Organisational Structure

The police investigation involved surveillance of a number of people and the recording of intercepted telephone conversations and messages. The investigation established that Methylamphetamine was being supplied by an organised criminal syndicate throughout the Hunter and Port Stephens area and that this joint criminal enterprise was organised and controlled by Jeremy Hunt and Ronald Garland. The men resided together at 143 Butterwick Road, Woodville.
The investigation indicated that Hunt and Garland were involved in regular supplies of varying quantities of Methylamphetamine to numerous other drug suppliers, throughout the lower Hunter area. The telephone interceptions indicated that those other suppliers were answerable to Hunt and Garland and that as the police traced the movement of drugs from Hunt and Garland through other smaller scale dealers to street level operations it became clear that the joint enterprise had a hierarchical structure with Hunt at its peak. The offender, Mr Garland was below Mr Hunt and he would obtain prohibited drugs from Hunt which was then on-sold to others on a regular basis until it reached street level.

[4]

Facts

The telephone interceptions indicated that the offender Garland would arrange drug transactions by using two mobile phones, listed with false details as to his identity. Once the quantity, price and location were agreed, the offender would arrange to meet his client at various locations, where he would supply them with the drugs. There were no pre-arranged meeting places in order to preserve and conceal the illegal nature of the transactions.
On 17 May 2016, the offender was arrested in a hired vehicle at Main Beach, on the Gold Coast in Queensland by local police. He was subsequently extradited to New South Wales where on 19 May 2016, he agreed to be interviewed at Maitland Police Station.
During the interview, Mr Garland admitted that he was involved with the supply of prohibited drugs over the previous 12 to 18 months on a daily basis. (Q. 14-21) He said that he had about half a dozen customers and sometimes sold "…an ounce a day" but that the amounts were broken down to "8 balls" (amounts of 3.5 grams). He said he charged between 700 to 750 dollars for that amount depending on the availability of the drug. He said that he supplied "half balls" or 1.75 grams for $350.
Mr Garland was asked to estimate how much drug he had supplied, he said that could not, but agreed that it was "…a lot." (Q. 40-41) He went on to say that he did not make any money from supplying drugs but that the money went "…to my supplier." (Q. 43) he said he did not have "…money put away" and did not "…live in an exactly luxuriant fuckin' life or anything like that."
Mr Garland said that he lived off the drug supply business, in that, he was able to buy food and support his own and his girlfriend Codie Porter's drug addiction. (Q. 282-284)
The offender said that he and his partner lived in a flat attached to a house rented by Jeremy Hunt at Butterwick Road, Woodville. He said that he had previously been employed by Mr Jeremy Hunt as a labourer in Hunt's metal fabrication business at Heatherbrae and that he had known him for a long period. (Q. 294-312)
Mr Garland admitted that the majority of his telephone calls related to arrangements for the purchase and supply of prohibited drugs. He admitted that before his arrest, he had three or four telephone numbers. (Q.315) Police estimate there were hundreds of calls made specifically for drug related transactions.
During his recorded interview with the police the offender denied that Mr Jeremy Hunt ran and controlled the drug supply syndicate by using Mr Garland to "on sell" Methylamphetamine. (Q.430) However, he agreed that both the vehicles that he used, (being a BMW sedan and a Toyota Land Cruiser), were fitted with GPS tracking systems and that he did not know how they worked. He said that the GPS devices were fitted, "…So Jeremy knew where I was…So he can find me." (Q.440-441)
Based on over 700 relevant telephone interceptions, collected by the police between 9 December 2015 and 15 May 2016, the total amount of prohibited drug supplied by the offender was 723.04 grams. Form 1 Matter
During the police investigation, the offender was identified as pivotally involved in a criminal organisation created for the supply of prohibited drug, Methylamphetaine. The telephone interception evidence gathered during the investigation revealed Jeremy Hunt as the leader of the group with Mr Garland as the second in charge of its organisation.
The two men remained in constant communication throughout the period of the investigation. Prior to his arrest in Queensland, the offender was recorded on 14 January 2016, checking on the state of the drug supply business with a co-offender named Guy Mallinson. The following day, Jeremy Hunt is recorded checking with Mallinson that Mr Garland had "…fixed him up…" for the work he had done whilst he and Mr Garland were away on holiday in Queensland.
The offender agreed that at the time of his arrest he and his partner Codie Porter were on holiday with Jeremy Hunt and his family on the Gold Coast in Queensland and that Hunt had paid for the entirety of the trip. (Q338)

[5]

Objective Seriousness

I have had regard to the following factors when assessing the objective seriousness of the offence of supply large commercial quantity methylamphetamine:
The quantity supplied was 723.04 grams. The threshold quantity of prohibited drug to establish a large commercial quantity is 500grams. In such circumstances, I regard the quantity supplied as being towards the lower end of the range.
The role of the offender. I am satisfied that the offender, together with Hunt, was involved in the regular supply of methylamphetamine to numerous other drug suppliers throughout the lower Hunter region. Between 9 December 2015 and 15 May 2016 there were over 700 drug related telephone interceptions. During the offender Garland's police interview, he admitted he was involved with the supply of prohibited drugs on a daily basis. He had an active, co-ordinating role in the planning, obtaining and disseminating of the prohibited drugs. He was second in charge of the drug syndicate. Mr. Garland could properly be described as being very substantially involved in the business of drug supply.
Mr. Garland lived off the drug supply business in that he was able to buy food and support his own and his girlfriend, Codie Porter's, drug addiction. He told police during his record of interview that he did not have "money put away" and did not "live in an exactly luxuriant fuckin' life or anything like that". He told police that at the time of the offending he and his partner were living in a flat attached to a house rented by Jeremy Hunt at Butterwick Road, Woodville.
The Crown submitted that Mr. Garland was a trusted director of the business for the drug supply organisation and whilst he was a drug user, he was still benefiting financially and materially from drug supply. The Crown submitted the offending was above the middle of the range of objective seriousness.
Mr. Krisenthal submitted on behalf of Mr. Garland that Mr. Garland was second in charge to Mr. Hunt. His vehicle was fitted with a GPS so Mr. Hunt would know his whereabouts, when arrested he was in Queensland on a holiday paid for by Mr. Hunt, he was involved in drug supply not solely for financial gain but also to support his own drug addiction. Mr. Krisenthal submitted that the combination of the lower quantity of drugs (given that large commercial quantity began at 500g) and his accepted significant role meant that the overall objective seriousness is below the middle of the range of objective seriousness.
I am satisfied that the offending falls below the middle of the range of objective seriousness. Whilst his role is significant, the quantity of drugs involved is at the lowest end of the available range for large commercial quantity. I have also taken into account that the proceeds were not solely for financial gain but used, in part, to support a drug addiction. This is a very different category of supplier when compared to an individual who runs a successful large scale drug supply business solely motivated by financial greed. General principles - drug supply
The crime of supplying prohibited drugs is regarded by the courts as extremely serious in circumstances where there are very significant detrimental effects to the community.
The supply of prohibited drugs destroys the lives of individuals, disrupts families, and generates a significant cost to the community both socially and financially. The community expects, and is entitled to expect that persons who commit this offence will face condign punishment.
The sentences imposed for such offending must ensure the offender is adequately punished and made accountable for the conduct, reflect the need for denunciation of the conduct and ensure that the offender and others are deterred from committing similar offences (see s3A, Crimes (Sentencing Procedure) Act, 1999.
The offender's role and the level of criminality involved is more important in determining a sentence than the quantity of drugs involved. In Melikian v R [2008] NSWCCA 156 at [42] Price J (with whom Spiegelman CJ and Hidden J agreed) stated as follows: "It is well established that the quantity of the drugs is not the sole or even the principal determinant for sentencing in relation to drug offences. As was pointed out by Wood CJ at CL in Regina v MacDonnell (2002) 128 A Crim R 44 at [33]: "What is more important is the role of the offender, and the level of his or her participation in the offence; subject of course to the fact that, in relation to supply offences under State law, there is a gradation of seriousness reflected by an increase in penalty as the quantity of drug involved moves into those levels which answer the descriptions of a commercial quantity, or of a large commercial quantity."
In relation to the significance of the quantity of prohibited drugs when assessing the objective seriousness of the offending: see generally R v West [2014] NSWCCA 250 where Adamson J noted as follows: "Although the quantity of drugs is not determinative of the objective seriousness of an offence of supply, it is an important material factor, although not necessarily the "chief factor". Wong v The Queen [2001] HCA 64. Indeed the fact that different maximum penalties are provided for by Parliament by reference to quantities (indictable quantity, commercial quantity, large commercial quantity etc) for particular drugs is an indication of its importance: Wong v The Queen at [67]".

[7]

Subjective Circumstances

The offender Garland is now 46 years old.
He has a criminal history commencing in 1991 when he was 20 years old. He has a number of convictions for driving matters.
In 2002 he was sentenced to six months imprisonment for each offence of possessing a shortened firearm and possessing a loaded firearm.
In 2003 he was sentenced to a non-parole period of nine months, total term twelve months for a further offence of possess shortened firearm, six months imprisonment for offences of possess unauthorised firearm and possess unregistered firearm.
In 2005 he was sentenced to three months imprisonment for possess prohibited drug.
In 2007 he was sentenced to five months imprisonment for accessory after the fact to murder.
In 2007 he was again dealt with for two offences of possess prohibited drug receiving a fine of $400 and Section 9 bond for twelve months respectively.
In 2008, at the Newcastle District Court, he was dealt with for supplying a prohibited drug on an ongoing basis. He was sentenced to imprisonment for four years commencing on 18th September 2007 and concluding on 17th September 2011 with a non-parole period of two years concluding on 17th September 2009.
In 2011 he was dealt with for a further offence of possess prohibited drug and ordered to serve 100 hours community service.
I am satisfied that the nature and extent of his previous criminal history disentitles him to any leniency on sentence and demonstrates that this offender has manifested, in the commission of these further offences, a continuing attitude of disobedience of the law in which case retribution, deterrence and protection of the community indicate that a more severe penalty is warranted: see Veen (No.2) (1988) 164 CLR 465.
The following material was tendered on behalf of the offender on sentence: 1. Exhibit 1 Report of Dr. Slezak dated 6th July 2017 2. Exhibit 2 Two handwritten letters by the offender 3. Exhibit 3 Sentencing statistics in relation to supply large commercial quantity methylamphetamine
The offender's background is set out in an undated letter of the offender (see Exhibit 2) and the Pre-Sentence Report dated 11th May 2017 (Exhibit A). He was raised in Dungog where his parents operated the local grocery store.
He had a stable upbringing and there was no childhood deprivation.
He completed Year 10 and then attended TAFE where he did a pre-apprenticeship as a panel beater/spray painting certificate and also as a chef.
He then worked with a company in Tomago where he completed his 2nd Class Welder's Certificate.
In 1994, when aged 23 years, he began working in the air conditioning industry where he remained until 1998.
Mr. Garland reported to the Community Corrections officer that he began using amphetamines at the age of 18 years. He reported ceasing in 2008 and then recommenced on the day of his father's funeral in 2012. Since that time he used amphetamines up to 1gram a day until his arrest in May 2016.
The offender described himself as using drugs and alcohol as a "crutch" to deal with personal issues. He now understands he will need to undertake rehabilitation should he wish to lead a life that is drug free.
He intends to gain employment upon release as an air conditioner technician.
He indicated that in 2013 he was diagnosed with Type 2 Diabetes and from January 2017 he began treatment for cirrhosis of the liver.
Dr. Slezak noted that Mr. Garland suffers with chronic hepatitis C infection. In January 2017, he commenced a twelve week course of treatment after which the virus was not detected. Whilst the offender requires ongoing monitoring, Dr. Slezak did not anticipate that there would be any difficulties for the offender whilst in custody.
Mr. Krisenthal submitted on behalf of the offender that he now has a level of insight into his offending and, at 46 years of age, now recognises he needs to deal with his substance use issues.
In relation to Mr. Garland's prospects of rehabilitation, I am satisfied that since being in custody from May 2016 he has gained some insight into the causes of his offending behaviour and does have some resolve to seek treatment and counselling upon his release.
In an undated letter the offender wrote to the Court (Exh 2) he acknowledges that substance issues have had a very detrimental impact on his life and expressed an intention upon release to enter a rehabilitation facility. He also indicated he wants to rebuild his self-esteem by re-entering the workforce. To his credit, at least he is now starting to think positively about his future and does have the desire to remain drug free.
Notwithstanding his expressed current commitment to his rehabilitation, I remain somewhat cautious about his prospects of rehabilitation given his longstanding history of substance abuse.
Similarly, I cannot find he is unlikely to reoffend given that, to a very large extent, that will depend upon whether he remains drug free after leaving custody. I am hopeful that, at 46 years of age, he realises life has a lot more to offer him in the years ahead IF he remains drug free.
Mr. Krisenthal submitted on behalf of the offender that I would find special circumstances because the offender intends to go into rehabilitation (which is a quasi-custody environment) upon his release. I do propose to vary the ratio between the non-parole period and parole period for this purpose and also to ensure he does have an extended period of supervision upon release which will assist him in remaining drug free.

[13]

Facts in relation to the offender Mallinson

Electronic evidence gathered against the offender identified he was regularly supplying Methylamphetamine in various quantities, to a large number of people. He would arrange transactions by mobile phone and then complete those transactions by meeting people in various places and occasionally at his home, where he would supply them with Methylamphetamine. The offender stated in recorded conversations that he was working for "Jeremy" (being Mr Hunt).
On 11 January 2016, Hunt and Garland and their respective partners flew to Queensland for a short holiday, returning home to Maitland on Friday 15 January 2016. During this time the offender, Mr Mallinson was responsible for supplying methylamphetamine on behalf of Hunt and Garland. In addition to supplying methylamphetamine to his own customers.
Mr Garland had left his usual mobile phone with the offender while he was away. The majority of the business conducted by the offender, Mr Mallinson was on behalf of Garland and was arranged using the mobile telephone service belonging to Garland.
For example, on 19 January 2016 the offender conducted his drug supply business with three different people. Each of the transactions were recorded by the police.
Firstly, the offender spoke to Scott Perry. During this conversation Perry states he wants to catch up with Mr Mallinson and he is after "a half". A short time later the offender had a further conversation with Perry where Perry states he needs two of them. The offender says "a full one?", and Perry replies, "yeah but I need it in two halves". The offender makes arrangements to meet Perry at the United Service Station, East Maitland.
Later that day, the offender had a conversation with Michelle Leonard. During this conversation Leonard asks the offender for "a half". The offender states he will have to make it up. Leonard then asks if he's got a full one, to which the offender replies "yeah". Leonard states she will take a full one if she can drop the extra money to Mallinson later and he agrees. Arrangements are made to meet Leonard in the Thornton area.
On the same day the offender had a conversation with Matthew Kisielewicz. During this conversation, the offender states he hasn't got much left until he can get back out to get more, but he can give Kisielewicz "a half". Kisielewicz states he was after "a full" but will take a half. The offender made arrangements to deliver the drugs to Mr Kisielewicz's residence.
Between 11 January 2016 and 15 May 2016, the offender supplied a commercial quantity of methylamphetamine, that being a combined total of 331.16 grams.

[14]

Participate in a Criminal Group - (s93T(1), Crimes Act)

During the investigation the offender was identified as a regular participant in a criminal organisation, headed by Jeremy Hunt and consisting of a number of people. The investigators identified a ranked structure within the organisation with the offender, Mr Mallinson identified as being in the top four persons in the organisation.
Whilst lawfully monitoring the offender's mobile phone service, conversations were captured between the offender and his partner Karen Morris. During these conversations Morris expressed her concerns that the offender was a "drug dealer' and the consequences if he should be arrested. The offender replied, "Karen, I'm doing a job for Jeremy".
Whilst lawfully monitoring the mobile phone service of the offender, on Thursday 14th January 2016 the offender had a conversation with Ronald Garland who was in Queensland. During this conversation Garland enquired how things had been going while Garland and Hunt were away. The offender said "…he had not stopped, and had gone through 5, and had counted 29".
This is a reference to 5 ounces (140 grams) of methylamphetamine and $29,000 over a period of four days.
Whilst lawfully monitoring the mobile phone service of the offender, on 15 January 2016 the offender had a conversation with Jeremy Hunt. During this conversation Hunt asks Mr Mallinson if Garland had "fixed him up" for the work he had done for them while they were in Queensland. The offender stated he had been given a ball (3.5 grams methylamphetamine) as payment.
During January 2016, Mr Mallinson drove his vehicle, a Toyota Hi-Ace van registration CA34TB (NSW) to 143 Butterwick Road Woodville, the residence of Jeremy Hunt. Whilst at this location Mr Hunt installed a GPS device to the offender's vehicle, this GPS device had remote tracking and audio communication capabilities, and has also been installed in other vehicles owned by members of this drug supply syndicate. Whilst monitoring the mobile phone service of Jeremy Hunt the police investigators recorded numerous data entries where Mr Hunt is actively checking the whereabouts of the offender using this tracking device.

[17]

Objective Seriousness

I have had regard to the following factors when assessing the objective seriousness of the offence of supplying a commercial quantity of methylamphetamine: 1. The quantity of prohibited drug supplied was 331.16grams. The threshold quantity to establish a commercial quantity is 250grams. The large commercial quantity is 500 grams. In such circumstances, I regard the quantity as being just below the middle of the range. 2. The role of the offender - I am satisfied that the offender was significantly involved in selling drugs to his own customers or acting on behalf of Hunt and Garland in selling drugs. The facts disclose that Mallinson was below Garland in the syndicate and regularly obtained methylamphetamine directly from Garland for on sale. I am satisfied that Mr Mallinson was in the business of drug trafficking throughout the relevant period and played a substantial role in the drug syndicate. He was supplying various quantities of methylamphetamine to a large number of people on a regular basis. The offending was for approximately four months duration. 3. Mr. Mallinson derived no monetary payment for his involvement but received drugs for personal use.
The Crown submitted that Mr. Mallinson was trusted to run the syndicate and had a co-ordinating and organisational role in the absence of Mr. Hunt and Mr. Garland. Upon their return he remained in the business.
Ms. Lewer, on behalf of Mr. Mallinson, submitted that having regard to the amount of the drug supplied, the duration of the offending, the context in which it occurred (namely, in context of offender's own drug addiction) and lack of financial enrichment, that the conduct falls below the middle of the range of objective seriousness for this type of offending.
I am satisfied that the offending falls in the middle of the range of objective seriousness. The quantity is towards the middle of the available range for a commercial quantity and this offender can properly be characterised as being in the business of drug supply for a period of approximately four months. He was involved in the systematic and co-ordinated regular distribution of drugs and notwithstanding that the proceeds were used to fund his own drug habit that does not significantly detract from the serious objective criminality.

[19]

Subjective Circumstances

The offender Mallinson is now 46 years old.
He has a criminal history commencing in 1992 when he was 21 years old when he was dealt with for possession of a prohibited drug and related offences. He received 160 hours of Community Service and a fine of $200.
In 1994 he was dealt with for offences of malicious damage and offensive conduct. He received a fine in respect of each offence.
In 1995 he was dealt with for a number of driving matters. He received fines for a number of the matters and licence disqualification.
In 1996 when he was 25 years old he appeared before East Maitland District Court for an offence of supplying a prohibited drug (cannabis plants). He was sentenced to three years imprisonment to be served by way of periodic detention.
Also in 1996 he served 28 days in custody in relation to an offence of disqualified driver.
In 1999 he was dealt with for further driving offences for which he received six months periodic detention.
In 2005 he was dealt with for an offence of use offensive weapon to prevent police investigation. He was sentenced to twelve months imprisonment that was suspended.
In 2007 he was dealt with for offences of common assault and destroy property for which he received fines and an offence of stalk/intimidate for which he received a twelve month Section 9 bond.
In 2010 he was dealt with for further offences of common assault (domestic violence) and contravening an apprehended violence order. In respect of each offence, he received a six month suspended sentence. He was dealt with for a further offence of contravene apprehended violence order for which he received a nine month suspended sentence.
I am satisfied that the offender's criminal history disentitles him to any leniency on sentence that would otherwise be available were it the case he had no prior criminal convictions.
The following material was tendered on behalf of the offender on sentence: Exhibit1 Report of Ms Laura Howarth, Psychologst, dated 12th May 2012. 2 Sentencing Statistics 3 Defence written submissions 4 NSW Corrective Services Alcohol and Other Drug Residential Rehabilitation Assessment Report dated 24th August 2017 5 Work Program report dated 24th August 2017 6 Certificate of Completion dated 17th July 2017
The offender's background is set out in the report of Ms. Howarth (Exhibit 1).
He was born on a cruise ship in New Zealand waters and is a New Zealand citizen. He has a younger sister aged 41 years.
His father was absent from his early life and they had no contact. His mother was an alcoholic and a drug user. She was also physically violent towards the offender.
His mother forced him to leave home at 15 years of age and he lived on the streets, in hostels and with friends until he was 18 years old. His mother passed away in 2016. He reconnected with his father ten years ago and they remain in contact.
His education was characterised by poor attendance, behavioural and academic difficulties. He left school in Year 9 (aged 15 years). He completed Year 10 at TAFE aged 24 years. He also completed a number of certificates at TAFE (forklift licence, first aid certificate and a rigger licence).
He remained mainly unemployed until he was 36 years old when he commenced work in the steel industry. He remained in that job for nine years until one month before his arrest. He hopes to return to this industry upon release. Since being in custody he has worked in the upholstery shop at Cessnock Correctional Centre.
He has been in a relationship with his current partner for 25 years. They have three children aged 10, 21 and 23. He also has a 30 year old step-daughter.
Mr. Mallinson told the psychologist that he began to use drugs at 14 years of age. By 18 he began smoking methylamphetamine socially. His use increased and at the time of the commission of the current offences he was using up to 1 gram a day.
He has been drug free since his arrest in May 2016.
He told the psychologist he is motivated to attend treatment upon release to remain drug free.
The offender has no medical issues and is in good health. He reported some depressive symptoms when aged 15-18 years and current depressive symptoms again whilst in custody.
The offender expressed remorse for his conduct to the psychologist.
The psychologist administered a number of psychometric tests. The offender was assessed as being of overall average intelligence. His verbal skills were in the 5th percentile whilst his non-verbal intellectual skills were in the 93rd percentile.
The psychologist was of the opinion that management of the offender's methylamphetamine use would minimise his risk of re-offending.
She concluded: "Treatment will need to target his depressive symptoms and difficulties with emotional regulation (note his substance use is to some extent a form of self-medication to manage negative feelings and emotions). He will also benefit with guidance and support with regard to employment, development of pro-social relationships and assertiveness skills, and maintaining distance from antisocial peers. It will be important to monitor his mental state for an exacerbation of his depression and an increase in his suicide risk post-sentencing (particularly in the event of a custodial sentence) and appropriate treatments provided as needed (i.e. psychiatric assessment and an appropriate review of his medication needs). Treatment is most likely to be effective within the community with the support of his family and the structure and stability of employment (this is demonstrated in the treatment literature). A period of supervision is recommended upon his release (such as that provided by Probation and Parole) to support his stable and responsible functioning within the community."
The offender gave evidence before me during the sentence proceedings. He told the court that his mother's drug use had had a "big impact" on his early years and was connected to his decision to use drugs. He said he left home at 15 years of age and used amphetamines from 17 years onwards.
In relation to the current offending, he told the court he received no payment in cash but rather in drugs. His drug use at that stage was $800 - $1000 a week. His last use of drugs was the day of his arrest. Upon release he hoped to gain employment in the mines. He was committed to undertaking rehabilitation so that he could remain drug free. He said he was "very sorry" for what he had done, especially because of the impact on other families.
In relation to the $11,900 in cash found at his house upon his arrest, he indicated he had custody of this money on behalf of a colleague, Cody Porter.

[26]

NATHAN WILLIAMS

The offender Nathan Williams appears for sentence having pleaded guilty on 21st December 2016 at Newcastle Local Court to one count of supply prohibited drug on an ongoing basis (s.25A, Drug Misuse and Trafficking Act, 1985).
The offending had occurred for a period between 13th January 2016 and 4th March 2016.
The maximum prescribed penalty for that offence is 20 years imprisonment and/or a fine of $385,000. There is no applicable standard non-parole period.
The offender Williams has also asked the Court to take into account a further one offence on a Form 1 of participate in a criminal group (s.93T(1), Crimes Act). The maximum prescribed penalty for this offence is 5 years imprisonment.
In circumstances where the offender Williams pleaded guilty at the Local Court, I propose to allow a discount on sentence of 25%.
The offender is also to be sentenced for the following matters on a s166 certificate: Sequence 4 - Possess unregistered firearm (s36(1), Firearms Act, 1996)(.22 Magnum rifle). The maximum prescribed penalty when dealt with summarily is 2 years imprisonment and/or a fine of 50 penalty units. Sequence 5 - Possess unregistered firearm (s36(1), Firearms Act, 1996)(BSA .22 calibre air rifle). Sequence 6 - Possess firearm part (barrel of rifle)(s58(1), Firearms Act) the maximum prescribed penalty is 50 penalty units. Sequence 7 - Possess prohibited drug, cannabis (0.5g) (s10(1), Drug Misuse and Trafficking Act, 1985). The maximum prescribed penalty is 2 years imprisonment and or a fine of 20 penalty units. Sequence 8 - Possess prohibited weapon (Taser)(s7(1), Weapons Prohibition Act, 1998). The maximum prescribed penalty when dealt with summarily is 2 years imprisonment and/or a fine of 100 penalty units. Sequence 11 - Receive stolen property (Makita Cordless drill, Makita power planer, apple MacPro, nails, compressor tools and builder's fixing items)(s188(1), Crimes Act) . The maximum prescribed penalty is 2 years imprisonment and or 50 penalty units.
The offender Williams has been in custody bail refused on the ongoing supply offence since 19 May 2017.

[31]

Subjective Circumstances

The offender, Williams, is now 31 years old (born December 1985)
He has a criminal history commencing in 2015 when he was 29 years old when he was dealt with for an offence of destroy property (s.9 bond 18 months imposed), three offences of possess prohibited drug (fined $200 for each offence) and two offences of possess prohibited weapon (Community Service Order 100 hours for each offence).
In 2016 he was called up for breaching the Community Service Orders and a bond imposed for an offence of have custody of an implement and was sentenced to four months imprisonment (20th February 2016 to 19th June 2016).
In 2015, he was also dealt with for offences of stalk/intimidate (s.9 bond twelve months imposed) and destroy property ($500 fine).
In 2015 and 2016 he was called up in relation to breaching the s9 bond and was sentenced to six months imprisonment (20th February 2016 to 19th August 2016).
In 2015 he was also dealt with for offences of possess prohibited drug and possess equipment for administering prohibited drugs (fined $350 and $700 respectively).
In 2016 he was dealt with for two offences of driving whilst suspended (one month imprisonment (20th February 2016 to 19th March 2016) and four months imprisonment (20th February 2016 to 19th June 2016).
I have detailed the dates of the terms of imprisonment imposed for the offender in circumstances where those sentences that the offender has served, whilst also bail refused for the current offences will become relevant on the question of the appropriate starting date for the present sentences.
The offender's criminal history disentitles him to any leniency on sentence that would otherwise be available were it the case that he had no prior criminal convictions.
The following material was tendered on behalf of the offender on sentence:

Exhibit 1 - Defence written submissions

The offender's background is outlined in the Pre-Sentence Report (Exhibit B)
The offender gave evidence on sentence.
He told the Court he was raised by his grandparents. He left school in Year 10. He then undertook a traineeship in a bike shop for twelve months and worked there for a short time before commencing a labourer's position. He then did training as a plasterer.
He has worked continuously from the age of 16 years until about twelve months before he went into custody.
In 2013, he lost both his grandparents. He was close to them and as a result his life commenced a downward spiral. In that same year he and his then partner had a miscarriage. He commenced using illegal drugs in that year.
Within a couple of months he was addicted and was spending $1000 a day. Ninety to ninety-five percent of the money he made from selling drugs was used to support his drug habit. He also told the Court he had gambling issues so some of the money was also used for that purpose.
He had been taken into custody in March 2016. He was there for just under two months before being released on bail. He was out of custody for two weeks before being re-arrested. He has remained in custody since 19 May 2017.
Whilst in custody at Cessnock he worked in the upholstery shop for the last eight months.
He has also completed a Test and Tag electrical course and a First Aid course.
He has a young son, Tyler, aged two and a half years old who he has seen monthly whilst in custody.
In relation to his drug addiction, he described himself as "a lot better, a lot clearheaded" since being in custody. Upon release from custody, he wants to get his life back on track and get his family back together. He is willing to undertake drug counselling and rehabilitation upon release. He has not previously undertaken any counselling or rehabilitation.
Upon release he plans to live with his friend, Shane Hinds, who has been supporting him whilst he has been in custody.
Shane Hinds also gave evidence during the sentence proceedings. He described himself as a 'good mate' of Mr. Williams. They have been friends for three years. He was aware of his drug issues but did not realise the size of the issue. He confirmed he has continued to support him whilst he has been in custody and that he has offered him a placed to stay upon release. He may also be able to assist Mr. Williams gain employment.

[42]

FACTS

Guy Mallinson was one of those persons to whom drugs were either sold or who acted on behalf of Hunt and Garland in selling drugs.
Ms Karen Morris, the offender was in a long term relationship with Mr Mallinson. They resided at 17 Kenneth Street East Maitland. During the police investigation that address became known as premises from which prohibited drugs were supplied.
On 13 January 2016 the offender was at home while Mallinson was at work. Whilst lawfully monitoring the mobile phone service of Mallinson investigators recorded a conversation between him and the offender. During this Mallinson arranged for Michelle Leonard to attend their residence to purchase an amount of methylamphetamine. Michelle Leonard was a person known to police to supply prohibited drugs and was also a subject of this investigation.
During the conversation Mallinson tells Ms Morris she will have to weigh the drug into a smaller portion as he had not left any weighed amounts for her. The offender Morris stated she wasn't sure about doing that and Mallinson arranges for Ms Leonard to assist the offender when she arrives there.
A short time later whilst lawfully monitoring Mallinson's telephone, another conversation was recorded between him and the offender Morris. During this conversation the offender states, "Guy, there is 26.13 left, is that right?" Mallinson replied, "What did she get, how much money did she give you?" The offender stated, "I don't know, 15, if she owes you money you can get it off her." Mallinson replies, "No that's two balls she should've got, she should've got 7, so that's right" During further conversation Mallinson said, "If you need 50 grab 50, you've got to get paid for what you are doing".
The reference to '15' relates to $1500.00. The reference to 'two balls' and '7' relates to 7 grams of methylamphetamine. The offender has knowingly taken part in the supply of 7 grams of methylamphetamine to Michelle LEONARD.
On 21 January, 2016 whilst monitoring the mobile phone service of Ronald Garland, investigators monitored a conversation between Ms Morris and Amanda Greenwood. At this time Garland was in Queensland and Mallinson had carriage of Garland's mobile telephone service to conduct business while he was away. During this conversation Greenwood contacts Garland's phone to purchase methylamphetamine and the offender answered. She said, "How much you want, four full ones?" and Greenwood replies, "No, just a half ball". The offender replies, "Yeah no worries, I'll see you at my place in an hour."
The reference to a 'half ball' relates to 1.75 grams of methylamphetamine. This amount of methylamphetamine is commonly sold.
On 25 January, 2016 whilst lawfully monitoring the mobile phone service of Guy Mallinson, investigators monitored a conversation between Mallinson and Ms Cassie Seargent. During this conversation Seargent arranged to purchase an amount of methylamphetamine from Mallinson. He stated, "What are you after?" to which she replied, "same again, half a ball." Mallinson then says, "Come to my place", she replied, "no worries, see you soon".
A short time later whilst lawfully monitoring Mallinson's telephone, a text message conversation took place between the two. Mallinson explained he had to leave his house for a while.
As a result of this text message conversation, Sargent said, "Do you want me to meet you somewhere else?" but Mallinson replies, "No, just go to my joint, Karen's got it for you."
The reference to 'half a ball' relates to 1.75 grams of methylamphetamine. On this occasion the offender knowingly took part in the supply of methylamphetamine on behalf of her partner Guy Mallinson.
On 17 May 2016 Police attended 17 Kenneth Street, East Maitland. The offender Morris was arrested and taken to Maitland Police Station. She participated in an electronically recorded interview but denied any involvement in the supply of prohibited drugs.

[45]

Subjective Circumstances

The offender Morris is now 51 years old. She has a criminal history for minor offences as follows - stealing, offensive language, failure to leave licensed premises, resist arrest, mid-range PCA, cultivate and possess prohibited drug and behave in an offensive manner.
In 1999 she was ordered to perform 120 hours Community Service for an offence of dangerous driving occasioning grievous bodily harm.
In 2002 she was placed on a nine month s9 bond for an offence of common assault.
I take into account that there has been no offending for the past 13 years and that she has no significant record.
The following material was tendered on behalf of the offender on sentence: 1. Statutory Declaration of Barry Edwards dated 29th June, 2016. 2. Statutory Declaration of Priscilla Griffiths dated 29th June 2016. 3. Statutory Declaration of Frances Lantay dated 30th June 2016.
The offender's background is outlined in a Pre-Sentence Report dated 8 May 2017 (see Exhibit A).
The offender currently resides in long term stable accommodation with her 10 year old daughter and 20 year old son. She enjoys positive social interaction within her neighbourhood and has ongoing support of her parents and siblings. She is currently employed and works 30 hours per week.
She reported a tumultuous domestic relationship with her co-offender Mallinson. She, to some extent, minimised her role in the supply of the drugs stating she "unknowingly involved herself in the supply". She reported that she did not use prohibited drugs.
I am satisfied that he involvement was as a consequence of her domestic association with her co-offender Mallinson.
The offender was assessed as a low to medium risk of re-offending.
The offender was assessed as suitable for a Community Service Order.
I am satisfied that the offender is very unlikely to re-offend and has excellent prospects of rehabilitation. She has a stable home environment, she is employed and she is an engaged and positive member of her neighbourhood having regard to the references provided by Mr. Edwards and Ms. Griffiths and Lantay.
It was submitted by Ms Reed on behalf of the offender that having regard to the offender's very limited involvement in the commission of the offence, that the Court may not determine that a custodial sentence is appropriate and further, if a custodial sentence was considered appropriate, it could properly be suspended.
Having considered the objective seriousness of the offence and the subjective circumstances of the offender, I am not satisfied that imprisonment is the only appropriate penalty (see s5(1), Crimes (Sentencing Procedure) Act, 1999).

R v Garland; R v Mallinson; R v Morris; R v Williams - [2017] NSWDC 258 - NSWDC 2017 case summary — Zoe

R v Garland; R v Mallinson; R v Morris; R v Williams

At a glance

Court

Decision date

Before

Source

Judgment (47 paragraphs)

Cases Cited (4)