R v Golding

Guilty plea

1. When he was before the Local Court, Golding accepted his guilt to a charge of Supplying the Large Commercial Quantity of methylamphetamine: s 25(2) Drug Misuse and Trafficking Act 1985 (NSW). He also accepted his guilt for the offence of Participating in a Criminal Group: s 93T Crimes Act 1900 (NSW). He asked that when I sentence him for the supply offence, I take into account the five matters on a Crimes (Sentencing Procedure) Act 1999 (NSW) Form 1. Those matters relate to his possession of the drugs found at his home after his arrest.
2. It is accepted that he must have a reduction of 25% of any indicated sentence for the utilitarian value of his guilty plea. His plea, and the acceptance of responsibility, also goes to my assessment of him and his prospects for rehabilitation.

Drug supply

1. A single count may charge a course of selling drugs that involve multiple acts, each of which may amount to an offence: R v Locchi (1991) 22 NSWLR 309; Hamzy v R (1994) 74 A Crim R 341. That single charge can recognise the course of conduct had a unifying common purpose. That then enables a Judge to take into account all the details of the offender's conduct so as to formulate a just and appropriate sentence. It is axiomatic that such rolled-up quantities involve a series of criminal acts. Care therefore needs to be taken in all such cases not to double count this factor by application of s 21A(2)(m) Crimes (Sentencing Procedure) Act. That said, the number of occasions where supply has occurred remains a relevant consideration.
2. The quantity of drugs is an ingredient of a charge and is significant. Sometimes where an unusually large amount of drugs are involved, this would be a very important factor in determining the seriousness of the crime, but it does not follow that the amount of drug supplied is the most important, nor is it in this matter, when determining the seriousness of a particular offence.
3. Here the quantity of drugs fell over the large commercial quantity, 500 grams, but I note there is no upper limit to the large commercial quantity. I have to consider the number of instances supplied and the quantities supplied. I have to consider any system or organisation; that is any business operation, noting that it is rare for there to be any corporate plan for the business engaged in by drug suppliers.
4. In submissions, Mr Fraser, who appears for the offender, submits that this offence, while serious, falls below the middle of the range for large commercial supplies, given their role, the amount, and the short period in which the offence occurred.
5. Ms Walshe, who appears for the Director of Public Prosecutions, points to; the large quantity of drugs involved, how he obtained it by going to Western Sydney himself, his capacity to obtain large quantities at short notice, and his capacity to gather large amounts of cash to purchase the drugs. She notes that he intended to profit from the supplies, although she accepts, the 'profit' was primarily to fund his own substance abuse and to supplement his Centrelink payments. She notes that his actions are indicative of a significant degree of control over this aspect of the drug supply enterprise and his persistence in going to Sydney every three days. She notes that approximately $110,000 in cash would have been transacted.
6. Judges are obliged to resolve disputed issues as to where a particular offence falls on the spectrum of objective seriousness: Owen v R [2022] NSWCCA 214. However, labels that nominate a point at which an offence lies on a hypothetical range do not, so far as I am concerned, have much inherent meaning. One has to focus on the particulars of the case: R v R E [2023] NSWCCA 184 at [35].
7. Here, it is obvious from the agreed facts this offence was, taking into account its objective features, very serious. But in many aspects his role, while persistent, was at the bottom of the food chain. He did not share in the profits made by further up that food chain. He took all the risks, and any profits appear to have been to meet his drug use and daily habit. But significant quantities of methylamphetamine were distributed, both at the street level and at a level beyond what one would regard as street level. There was no great organisation. He drove to Sydney. He collected the drugs. He organised for cash from the sales to be taken to Sydney. He took the risk of going and collecting them. He was not directing anyone. He was effectively a sole trader.

Profit

1. Greed was not Golding's prime motivation. But it appears no profit other than the drug he used and some modest living expenses, which are just above the homeless level, were achieved. Nor was that his aim. It was low in the range of serious crimes, which can involve, at the worst end, supply by syndicates who deal in kilos and tonnes. It is so serious, nevertheless, that a custodial sentence of some length is called for.

Criminal group

1. Here the criminal group offence relates to the same activity and the same transactions that make up the supply offence and have the same unifying common purpose. Sometimes in such matters the criminal group offence extends beyond the supply, but that is not the case here.
2. His involvement in that criminal group, his persistence in the involvement, and the regularity with which he was able to act to obtain drugs, distribute drugs, then repeat the cycle, means that the s 5 threshold has been crossed. I have to be particularly careful, both when I fix the length of this sentence and consider matters such as accumulation, not to double count matters already taken into account when it comes to the supply.

Form 1

1. I do not sentence for the matters on the Form 1. In many cases, matters on a Form 1 can lead to an increase in the sentence for the matter to which they relate. Such an increase would recognise the need for personal deterrence and retribution for the crime for sentence: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [39] to [42].
2. Here, these matters standing alone would not, in my view, even with his record, have led to a custodial sentence. Rather, the items found reflect the extent of his drug use and the confused and haphazard lifestyle that he was leading at the relevant time. Sometimes matters on a Form are put there to 'clear the slate'. This Form 1 falls into that category.

Maximum penalties

1. The maximum penalty for supplying a large commercial quantity of an illicit drug is life imprisonment. Parliament have indicated for an offence that falls in the middle of the range, taking into account only objective factors, there is a standard non-parole period of 15 years. Participate in a criminal group carries a maximum penalty of 5 years.
2. Judges must always pay careful attention to maximum penalties and, where they apply, standard non-parole periods. Both provide sentencing measures, but those measures must be balanced and synthesised along with all other relevant factors. In doing so, content must be given to the standard non-parole period. But maximums and standard non-parole periods are not prescriptive. I do not start with a maximum or a standard non-parole period and then make proportional deductions. There is in the Drug Misuse and Trafficking Act a gradation of seriousness. This is reflected by increases in available maximums and standard non-parole periods based on quantity. But courts should primarily focus not on the penalty range available, but on the objective seriousness of what was done.

Subjective case

1. Mathew Golding was born in 1976. His criminal record commenced in 2017, when he was 41. He admitted in evidence and to his psychologist that he had been a regular drug user and therefore breaking the laws since he was a teenager, but he had not come to the notice of a court, and it would appear that that drug use was relatively under control. But since 2017 his recent history is primarily, as the Sentence Assessment Report (SAR) notes, of an antisocial nature.
2. The offending occurred when he was subject to two Community Correction Orders. He frankly admitted that having been placed on those orders and having made in court a promise to be of good behaviour, he immediately breached those orders as he had no intention of keeping to them. The breach of any conditional order requiring conditional liberty is an aggravating feature.
3. It is important to note that the promise he made to the court had no impact on him. The risk that if he was caught breaching those orders, he would be returned to gaol, had no impact on him. While in his evidence he said he did consider that if he got caught, he might end up in gaol, it too had no deterrent effect on his behaviour or the commission of these offences. At the relevant time, the only important thing in his life was drug use, the obtaining of drugs and the funds to acquire such drugs.
4. He is not entitled to the leniency often given first offenders. The sentences must be aggravated because of the breaches. Were I sentencing him in 2022, I could have formed a view that he had no respect for the orders of the court. As he said in evidence at that relevant time, his "brain just wasn't there".
5. It is no excuse to say, "I committed an offence because I was addicted to illicit drugs." The fact, however, that an offence is motivated to meet a need, is a relevant factor on sentencing. It allows me to understand why someone, who until 2017 had been relatively law abiding, did what they did and continued to do it. It enables me to understand his state of mind and his lack of capacity at the relevant time to exercise sound judgment: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149.
6. Here, his history of drug use is also relevant as it provides some assistance to his subjective case. I have to consider the origin, extent of his drug use, and his attempts to overcome it. Each impact on his prospects for either recidivism or rehabilitation. There is also evidence of what appears to have been in recent years prior to his incarceration, a gambling problem. Similar principles apply, as was explained in Henry.
7. He was arrested on 20 April 2022. He entered that bail on 8 September 2022. He served 4 months and 20 days in custody, which I will round to his advantage and say 5 months. He was then granted bail so he could go to a rehabilitation centre.
8. During his relatively short period on remand, he was subject to restrictions imposed to prevent or delay COVID-19 transmission in gaols. He spent a period in quarantine. He then was subject to restrictions, including being locked in his cell on regular occasions.
9. He tells me, and I accept, that during his time in custody he was seriously assaulted and injured. It is not suggested that that assault involved any extra-curial punishment, and I do not reduce his sentence because of extra-curial considerations. But the fact that someone was assaulted while in gaol is a relevant factor on sentencing. It meant that while in custody where he could not effectively protect himself, he would have suffered anxiety, and if returned to gaol, that anxiety would increase, because, as he had not been protected in the past and he may expect, understandably, that he would be at risk again.
10. Gaols are nasty, violent places. The community has to understand that it is not at all uncommon for assaults to occur, for prisoners to be anxious about future assaults. We send people to gaol for punishment, not to be punished by other prisoners.
11. Golding gave evidence today. He adhered to his letter that was provided to me earlier. It sets out appropriate remorse.
12. He adhered to the history given to his psychologist, Ms Grujoska. He says, and I accept that, a significant turning point in his life was an injury that occurred at work in 2011. As a consequence, his recreational drug use took over his life. He was unable to manage work or relationships. He separated. He lost contact with prosocial family members and his children. He became effectively homeless, and drugs became a primary motivation of his life. He was living out of his car and coming to the attention of the courts. He did take some positive steps with the help of the Wollongong Homeless Hub and was able to find accommodation.
13. He was, however, gambling, and he tells me, and I accept that a large gambling windfall, rather than being spent on stabilising himself in the community, was soon frittered away. By the time the money had gone his methamphetamine habit had reached 1.7 grams daily. Such a drug habit cannot be funded legitimately by a person who is effectively homeless.
14. Instead of taking the help that I am sure would have been available had he asked for it from his parole officers (one of the reasons for Community Correction Orders) or people at the Homeless Hub, who could have referred him to rehabilitation, he, as he said, let himself succumb to the craving to use methamphetamine, which had taken over his life, and engaged in the offending.
15. On his arrest he tells me that the craving went away. He said he "needed to be stopped". Today in submissions, Ms Walshe, for the Director of Public Prosecutions, picked up that concession, noting that gaol was justified in the community interest because he did need to be stopped.
16. He says, and I accept, that with the assistance of The Restoration Centre he has been able to stabilise himself. This is supported by the references from his family, and others, and the letter from The Rehabilitation Centre. He has progressed through the program and is in the fourth stage. The initial two stages, live-in rehabilitation is particularly strict. He is still living at that centre and still subject to its discipline. He has, with their help however, been able to find work and has been promoted as part of that work.
17. He is helping others who come to the centre in a similar position to himself. He has relapsed and he has owned that problem. He does not see his future as involving drugs. He appears committed to leading a prosocial life in the community.
18. His family, many of whom are here today, have written letters to the Court which indicate that when they became aware of his being in gaol, they rallied around and have provided significant support to him, both in his time in custody and while he has been at the rehabilitation centre. They promise to be available to him from now on. It is clear he has been restored to his family. He now has regular contact with his children from whom he was estranged during the period he was homeless and focusing solely on drugs.
19. The history provided by his family is summarised in the Sentence Assessment Report (SAR) and Ms Grujoska's report. There are some differences in the histories provided by his two sisters, but that perhaps reflect their different ages and how they responded to the family environment.
20. The SAR indicates that he is currently medicated for underlying conditions of Depression, Anxiety and Post-Traumatic Stress Disorder. It notes a willingness to engage in mental health counselling. It says Golding demonstrated a significant level of insight into the impact of his offending behaviour. He was able to recognise the impact that his offending had on himself, his family and the wider community. He expressed upset that his actions contributed to, and enabled others' addictions and substance use issues, as it enabled his own. He is willing and able to engage in interventions and suitable to undertake community service work.
21. Ms Grujoska's report is comprehensive. Her testing results reveal he has, and is still experiencing, severe symptoms of social anxiety, symptoms she says were exacerbated by his period in custody. She notes a long-term dependence on methylamphetamine. She notes he has demonstrated a good ability to engage in treatment to reduce his substance use and his willingness to engage in such treatment. She believes he would benefit from treatment with a psychologist well versed in cognitive behaviour therapy and should engage in a Mental Health Care Plan. She notes that there are programs in custody such as the Intensive Drug and Alcohol Treatment Program and the Real Understanding to Self-Help Program, but says at par 37 of her report, "It is important to note that although there are prison-based programs available, these will not offer Mr Golding the level of targeted therapy he requires."
22. She sets out his family history, which I will only briefly summarise. He grew up with siblings. His father left the family home very early leaving him with abandonment issues. His mother cared for the children as a single mum but at various times her partners exposed him to alcohol and other difficulties, which are set out in the reports. His sisters have different memories and perspectives of those particular difficulties, but so far as the offender is concerned, they clearly did have an impact on him.
23. He left school early and was able to work up until his work injury, to which I have referred. There is a history of depression and anxiety. He occasionally engaged in treatment but never actively so. It is clear that the last few years before his arrest were best described as, "chaotic, with heavy drug use".
24. There is a history of family problems, violence, abandonment, and alcohol abuse. Such matters can have an impact on an offender's moral culpability. It is well known that childhood trauma can have this effect and that impact does not diminish over time.
25. It is also clear that gaol had a traumatic impact on a man who was already vulnerable given his underlying conditions of anxiety and depression, and that needs to be understood. It also needs to be understood that gaol can sometimes have a crime-producing effect. Gaols are criminal learning environments. There are prison subcultures, and they are "marked by the presence of cultural values supportive of crime that can be transmitted through daily interactions", and rather than be a deterrent to crime, potentially reinforce criminal activity: D Ritchie, "Does Imprisonment Deter? A Review of the Evidence" (April 2011) Sentencing Advisory Council Victoria 1, 21.
26. There is abundant evidence, on oath, in the reports and references, of the offender's remorse. He has accepted responsibility for his action and appropriately recognises the harm he has done. He has shown insight. He told me that at the time what he was doing was "crazy" and "wrong", that he was risking his health and risking the health of others. He has made, and is making, progress to put long-term illicit drug use behind him.
27. Ms Grujoska notes the underlying mental health problems which have blighted his life since he was young. They can be taken into account in amelioration of his moral culpability. There is less need to denounce the crime. He is still, however, an appropriate vehicle for both specific and general deterrence. I accept that, with his underlying conditions and having been previously assaulted in gaol, a custodial sentence will weigh more heavily upon him than others who do not have those underlying conditions.
28. His up-line suppliers are presently before the court and there is evidence of another offender arrested who has been sentenced for matters that occurred in conjunction with his crimes, but it is not suggested that there is any issues of parity that would need to be taken into account.

Submissions

1. I am indebted, as always, to the comprehensive submissions provided by both Ms Walshe, solicitor for the Director, and Mr Fraser, public defender for Golding. Those submissions carefully address, from the respective perspectives of prosecution and defence, matters of principle.
2. The Director's submissions, while accepting that significant progress towards rehabilitation has been made, draw the Court's attention to the maximum penalty, the standard non-parole period, and purposes of sentencing, that stress general deterrence. That is, by the severity of the sentence imposed, that others learn that they cannot engage in drug supply as this offender did, the need to protect the community, and importantly, to ensure that the offender is adequately punished, thus recognising the harm his actions caused the community. The Director submits a significant sentence be imposed; a sentence that would not allow for any other option. It is however accepted that that sentence would take into account time served, time in quasi-custody, and that his prospects of rehabilitation justify a finding of special circumstances.
3. As I understand the Director's position, the level of seriousness of the offences coupled with the aggravating feature, their commission while on a bond, would merit a stern sentence and that weight must be given to general and specific deterrence.
4. On the question of specific deterrence, I think that would be met by any sentence, but the importance of general deterrence is of course a matter that courts should carefully consider.
5. For the offender, Mr Fraser submits that this is an exceptional case and requires an exceptional disposition. He notes that the period of offending was relatively short, though, as is accepted, very serious. The release to bail and the year spent in rehabilitation has enabled a person who had previously been able to live a relatively law-abiding life in the community to be restored to the community. There is still work to be done.
6. He said that there are some cases, and this is one, where one does not simply go to the seriousness of the offences and principles of general deterrence, take into account such mitigating factors as could be taken into account and then, with primacy given to general deterrence, impose a significant sentence that would require Golding to be returned to custody. He says, when I make all such allowances, it would be a relatively short period in custody because there would be a finding of special circumstances. He submits that it is in the community interest that the offender be given an opportunity to further prove himself in the community.
7. Mr Fraser submits, that when I consider all relevant matters, the sentence with time left to be served, would be less than 3 years. He submits that if I reach that conclusion, considerations of community safety and the forward-thinking approach spoken of by the High Court in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3, would compel an order that this matter be served in the community, subject to intensive correction.
8. Ms Walshe, while not saying that community safety concerns could not be met by intensive correction, submits that I just would not get to a sentence of 3 years or less. It not being in dispute that because there are two matters for sentence, while I could not impose Intensive Correction Orders (ICOs) for cumulative sentences, an aggregate sentence attracts that option: R v Pullen [2018] NSWCCA 264; Abel v R [2020] NSWCCA 82. Even if there is an anomaly that one of the indicted sentences is more than 2 years: Abel; R v Qi [2019] NSWCCA 73.
9. Mr Fraser referred me to other cases and statistics. I have had regard to them, but every offender and every offence is different. When I consider the quantity of drugs possessed, the nature of the offender's involvement and the harm that drugs cause the community, the community interest in appropriate and just punishment requires a significant and telling sentence.

Quasi-custody

1. The offender has spent 5 months in actual custody and 1 year in rehabilitation. Time spent in residential programs can be taken into account if, as here, they have quasi-custodial conditions: R v Campbell [1999] NSWCCA 76; R v Thompson [2000] NSWCCA 362; R v Delaney [2003] NSWCCA 342.
2. The reduction does not depend on whether the program has been productive; but here it has. The rationale for the reduction is the need to factor into the sentencing exercise the restriction on the offender's liberty during the period of the program: Truss v R [2008] NSWCCA 325 at [22]. It is a question of fact and degree, but I am prepared to allow, and the Crown accept, that it has been productive, it has been strenuous, and it has been disciplined, thus reducing the time, allowing for approximately 6 months. Giving him the full benefit of those periods, we come to a period of approximately 11 months.

Synthesis

1. In drug supply matters, as this matter illustrates, the community has to understand there are limits to the principle of general deterrence. General deterrence may stop law-abiding citizens from engaging in crime. There is evidence that it works for driving offences, such as speeding and seatbelts, although primarily the risk of getting caught is the main deterrent, not the severity of the penalty. But for supply of drugs by people who are using over a gram a day of methylamphetamine, as is evidenced by the testimony today and all the material before me, the risk of imprisonment is irrelevant.
2. Rational calculations are not made by people, such as Golding. There are many drug suppliers who do the calculus. They are the ones who distance themselves from the actual supplies. They get others to take the risk and they take the profits.
3. Where someone has demonstrated progress to rehabilitation, where there is evidence that gaol might make the situation worse or cause further harm, a court has to give the matter careful consideration in any synthesis.
4. All s 3A factors and the common law purposes of sentencing must be considered when the length of a sentence is determined. The community is gradually coming to an understanding that the problems caused by illicit drugs cannot simply be solved by arresting or gaoling our way to a solution and there are various studies: W Wan, D Weatherburn, G Wardlaw, V Sarafidis and G Sara, "Supply-Side Reduction Policy and Drug-Related Harm" (2014) 486 Trends and Issues in Crime and Criminal Justice: Australian Government Institute of Criminology 1.
5. There is objective evidence that harsher prison sentences for users and conventional law enforcement messages do not cure a social problem, a health problem, a personal problem, a community problem; what is ultimately a policy problem: NSW Bar Association, "Drug Law Reform" (November 2014) 24 Criminal Law Committee Discussion Paper 1; United Nations Office on Drugs and Crime, "World Drug Report" (2009) 1, 163.
6. There are some communities in the State which have the benefit of Drug Court programs. The Illawarra is not one of them. To an extent, our community is disadvantaged because of that failure. Here, as Mr Fraser opened his oral submissions and closed his written submissions, there are two highly relevant considerations. The first, advanced by the prosecution, is a substantial gaol sentence, which recognises that while mitigating circumstances must be considered, they cannot preclude an adequate punishment with a strong general deterrent emphasis. The second, that the protection of the community would be contributed to by the successful rehabilitation of an offender, whose demonstrated progress to rehabilitation would be set back by him being returned to prison.
7. Judges need to balance a complexity of sometimes contradictory and competing factors. In every individual case, Judges have a discretion and a duty to fit the sentence to the offence and the offender; and every offender is different: Hili v The Queen; Jones v The Queen (2010) 242 CLR 52; [2010] HCA 45.
8. In this case, I believe an exceptional remedy is required and a sentence with a relatively low starting point for the drug supply matter of 5 years' imprisonment can be considered. That is still a significant period of custody, which I use it as a starting point here. I am required to reduce that sentence by 25%. This leaves the sentence for the drug supply of 3 years and 9 months' imprisonment. But I am also required to give him the benefit of the 11 months calculated as time served. That allows for a sentence for the drug supply matter of 2 years and 10 months, approximately.
9. There must be some additional punishment for the other matter, the Participate in Criminal Group, but that would only be a modest addition. Effectively, taking into account time served in quasi-custody, I can come to a sentence of 2 years and 11 months. Having come to that conclusion, I then have to consider how the sentence should be served. That requires a consideration of community safety: s 66 Crimes (Sentencing Procedure) Act.
10. As the High Court said in Stanley, that requires a forward-thinking approach. There are cases where a person who notionally might receive and ICO goes to gaol, as even if an ICO was available, full-time custody was required: see most recently my decision of R v Consigli [2023] NSWDC 355.
11. I note that the s 66 implicitly rejects any assumption that full-time detention will most effectively promote community safety. I have to look to the possible impacts of the sentence of imprisonment. Here, if Golding went into custody, his progress toward rehabilitation would not be ruined, but he would be, as I indicated earlier, subject to a harshness that others without his underlying conditions or prior assault would not be subject to.
12. I can formulate appropriate conditions which mean that an ICO is not an unduly lenient option. Golding has demonstrated that he has learnt and been able to build on the support from the restoration centre and the prosocial support still evident from his family. Despite the seriousness of his offending, the option of an ICO is available to me and I intend to direct that the sentence be served subject to intensive correction in the community.
13. What that means, Mr Golding, is that you will have hanging over you a sentence from today of 2 years and 11 months. There are standard conditions, and you have heard these words before. The first condition is to be of good behaviour. You would not have had such a condition imposed on you by this Court had you been the man who was before the Court when the Community Correction Orders were imposed. Your evidence and the material before me indicate that I am not sentencing that man.
14. You will have to adhere to the standard condition, that is; be of good behaviour and accept the supervision of Community Corrections. You are to report to the Windsor office within 7 days. There are additional conditions: 1. That you perform 200 hours community service; 2. That you abstain from using illicit drugs; 3. That you submit as directed to drug testing; 4. That you engage as directed in any drug relapse prevention programs; 5. That you engage as directed in any mental health program, including the obtaining of a Mental Health Care Plan, I think it is a standard condition but I will add it just in case. 6. You will provide to Community Corrections authorities for them to seek opinions from service providers and family. In other words, you must give community Corrections authority to consult them directly to help in your programs.

Orders

1. The formal orders of the Court are that; taking into account the plea of guilty and taking into account time served, taking into account the quasi-custody, there will be an aggregate sentence of 2 years and 11 months' imprisonment, which will commence today, 8 September 2023, and expire on 7 August 2026.
2. In relation to the Supply Commercial Quantity of Prohibited Drug, I indicate a sentence of 2 years and 10 months. I indicate the non-parole period of 1 year and 5 months.
3. In relation to the Participate in Criminal Group offence, I indicate a sentence of 9 months' imprisonment. So, the total sentence is 2 years and 11 months. The sentence is to be served subject to intensive correction in the community, subject to the conditions I just explained to the offender.
4. If you breach those conditions, you will not come before the Court. You will be dealt with by the State Parole Authority, and you could be returned to custody to serve the balance of your sentence.

Amendments 15 November 2023 - Typographical error amended. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 November 2023