The offender has entered a plea to the offence that, on 20 June 2019, at Gorokan, he supplied the prohibited drug, being 65.42 grams of methylamphetamine, colloquially known as 'ice', contrary to s 25(1) of the Drug Misuse and Trafficking 1985 (NSW) (the 'DMT Act').
There is a back-up charge on a s 166 certificate, being that in the same circumstances, he was in possession of the same prohibited drug, in the same quantity, contrary to s 10(1) of the DMT Act.
Neither offence carries a standard non-parole period.
[2]
Agreed facts
The offending conduct occurred at the Bridge View Motel at 2 The Corso, Gorokan to the observation of Senior Constable Keane, in the company of other police officers. The agreed facts are centred upon Officer Keane's observations.
They are, relevantly, that this group of police officers were at this motel for unrelated purposes. When the officers were in the kitchen, they observed (through a screen door) a white Toyota Yaris motor vehicle pull into the driveway.
A female was observed in the driver's seat; and a male was in the front passenger seat. A third person was also in the rear passenger side of the car. The manager of the venue alerted the officers that the occupants of the car were not guests.
Office Keane, in the company of Senior Constable Sams, approached the car: SC Sams went to the left side; SC Keane went to the driver's side.
After providing his own identification as a police officer, SC Keane opened the driver's door and asked the driver if she was staying at the venue. She answered no. He then observed the male front seat passenger reach into a small bag to the right of his shoe, and his moving his hands around inside the bag. That male passenger was the offender.
SC Keane told the offender to keep his hands where he could see them. The offender said that he was just getting his identification. At this point, I note that there is no evidence that his identification was requested. As he moved his right hand, a syringe fell into the footwell next to the bag.
Following this, SC Keane asked the offender to get out of the car. The offender placed the syringe on the dash above where he was sitting and got out of the motor vehicle. SC Sams called him his name and SC Keane immediately recognised the passenger as the offender (as well as the other male passenger in the vehicle in the back of the car).
SC Keane asked him whether the bag belonged to the offender. The offender said that it did. Having formed a suspicion that the occupants of the car may in possession of drugs or stolen goods, SC Keane informed them that he was going to conduct a search of the car.
SC Keane picked up the small bag, opened it and saw a large clear resealable bag containing a crystallised substance which he believed was a prohibited drug. He placed the bag on the front (passenger) seat, cautioned the offender and then placed him under arrest.
Using a hand held device, SC Keane, or SC Sams, confirmed that a caution was given and after that the offender:
contrary to what he had earlier told SC Keane, did not agree that the bag belonged to him; and, indeed denied that the bag was his;
said that when trying to retrieve his identification he was retrieving it from under his seat, and not inside the bag;
denied he knew what was in the bag; and
disputed that, upon his arrest, he was told what he was arrested for.
At the time when the arrest was being recorded, SC Keane showed the offender four bags of a crystallised substance. The offender denied any knowledge of them. Later testing indicated that the four bags contained an aggregate of 65.42g of ice. Mail from within the bag had the offender's name and address on it. A mobile phone was seized and its content downloaded.
The offender was conveyed to Wyong police station; where he participated in an ERISP interview and provided a DNA sample. During the ERISP interview, the offender indicated that he wished to hear the allegations but did not wish to answer any questions. Notwithstanding this indication, in response to the allegation that he had a quantity of ice of a total of 65.42 grams for the purposes of supply, he denied that allegation. He also denied that he had indicated to police that the bag in which the drugs were located belonged to him.
[3]
Objective gravity
The quantity of the prohibited drug was 14 times the indictable quantity. The Crown relied upon the deeming provision under s 29 of the DTM Act to prove the supply offence. Because of the circumstances of detection, the Crown submitted that the Court would be guarded in ascribing any precise role to the offender in the supply.
The Crown does not rely upon any aggravating circumstances. There is no evidence of subjective purpose as to what the offender intended to do with the drugs, in terms of the actual purpose of supply.
As Counsel for the offender submitted, there was little content to the offending; noting that the offence referred to the aggregate quantity of the prohibited drug, the amount was constituted by distinct portions, in 4 square bags. Further, typical accoutrements of drug supply were not otherwise evident. There was no suggestion, for example, that any proceeds of supply were apparent.
The Crown submitted that the conduct fell at the low-end of the range of objective seriousness for offending conduct of this kind. The offender's legal representative endorsed that submission. I accept the submission.
[4]
Age and background
At the time of offending, the offender was 30 years of age. He is now 31.
Most of the evidence of the offender's background and circumstances leading up to the subject offending are set out in the report of a counselling psychologist, Ms Brigida, who assessed the offender on 4 May 2020. What follows is essentially derived from her report, dated 26 May 2020, which followed her assessment of him on 4 May 2020. The offender relied upon no other evidence. The Crown did not dispute the evidence of the psychologist.
Ms Brigida developed academic qualifications in psychology from 1985. Those academic qualifications are extensive. She has also practised for many years, with fifteen of those years being spent specifically in the fields of substance abuse and mental health. She has a particular expertise in Autism: she developed a The Autism Specialist clinic, where she works with children, adolescents and adults with Autism.
The offender had a happy family upbringing: his parents are still together and both are employed.
But from an early stage, the offender had trouble at school. Eventually, he left school at the end of Year 10. He became employed with a tiling company for two years, and was then employed by a concreting company for another 4 years. Aside from these periods, he has been largely unemployed. He has not been employed now since 2018.
Prior to the offending conduct he had been with a partner, for 3 years. The partner had a history of drug problems.
[5]
Drug and alcohol problems
The offender reported starting to use cannabis when he was 12 or 13 years old, and continued to smoke it for years, heavily. At the age of 16, he started to experiment with ecstasy, continuing to use it for 3 years. Then at the age of 18, he started using ice. By the age of 27, he started to inject himself with ice and occasionally started using Xanax. But before then, when aged 24, and after having been placed in custody, he started to use diverted Buprenorphine strips for the first time. After being released from custody, he tried using heroin for the first time. Prior to his arrest for the offending conduct, he was injecting 1 gram up to 1.75 grams of heroin per day.
Between the ages of 14 to 27, the offender also consumed significant volumes of alcohol, including binge drinking on weekends. But from the age of 27, he was able to cease drinking alcohol, in recognition that it caused him to become violent.
[6]
Diagnoses of mental disorders
Deploying the criteria of the DSM 5, Ms Brigida considered that the offender would have met the criteria of Oppositional Defiant Disorder in his developmental years. He was diagnosed with Attention Deficit/Hyperactivity Disorder when he was in years 8 or 9. That diagnosis had been made by Dr Clark, a forensic psychiatrist, in September 2015. On the diagnosis of ADHD, Ms Brigida noted that ADHD is frequently linked to other disorders which may indicate a predisposition to difficulties in anger management. Additionally, when located in adults, ADHD affects a person's executive functioning, emotional regulation and risk-taking. Further, the presence of ADHD in childhood may predispose individuals to various adult disorders, such as substance abuse. It helps explain why the academic difficulties that a person has in childhood may translate into later employment difficulties.
A further significant event in the offender's life was when, at the age of 18, his then best friend was drunk, fell off a train platform, and was run over and killed by a train. This was reported to another psychologist, Dr Scannell, in April 2009.
Ms Brigida diagnosed in the offender post-traumatic stress disorder ('PTSD'). She noted that there is a well-documented link between PTSD and substance abuse, since a characteristic of PTSD is avoidance.
After administering some standardised testing, Ms Brigida formed some views as to the offender's risks of re-offending. She concluded that he fell within the high range for risk of recidivism. In terms of his on-going treatment, the first point of intervention needed to address his abuse problem.
[7]
Relevance of diagnoses relating to mental disorders
I find that the offender has diagnoses of both ADHD and PTSD and that, for reasons explained by Ms Brigida, these disorders can contribute to substance abuse.
In the case of this offender, the diagnosis of ADHD has had a causative role in his substance abuse since his early teenage years. Then the traumatic event of the death of a close friend led to the onset of PTSD, and this disorder has aggravated a predisposition to engage in substance abuse (MDZ v R [2011] NSWCCA 243 at [74]-[76]).
[8]
Relevance of drug addiction
In R v Henry (1999) 46 NSWLR 346, Wood CJ at CL held at [273] that the relevant drug addiction was to be considered in the following ways:
1. the need to acquire funds to support a drug habit, even a severe habit, is not an excuse to commit an armed robbery or any similar offence, and of itself is not a matter of mitigation; but
2. the fact that an offence is motivated by such a need may be taken into account as a factor relevant to the objective criminality of the offence in so far as it may throw light on matters such as:
1. the impulsivity of the offence and the extent of any planning for it;
2. the existence or non-existence of any alternative reason that may have operated in aggravation of the offence, for example, that it was motivated to fund some other serious criminal venture or to support a campaign of terrorism; and
3. the state of mind or capacity of the offender to exercise judgment, for example, if he or she was in the grips of an extreme state of withdrawal of the kind that may have led to a frank disorder of thought processes or to the act being other than a willed act.
I do not find, and it was not suggested, that at time the offending was detected, that the offender was actually intoxicated, on account of substance abuse. I do, however, find that the offender's mental health problems have caused his drug addiction and that it is too simplistic to say that the circumstance that he is a drug addict is attributable to the exercise of free-will. In my view, whilst he knew what he was doing was wrong (hence his inept efforts in trying to deflect responsibility when dealing with SC Keane), his mental condition and drug addiction reduced his capacity to exercise self-control and judgement.
I accept that his drug addiction has contributed to the offending and that his culpability is reduced to a degree. That drug addiction has, in turn, been contributed to by the ADHD and development orders that have been evident in the offender since childhood.
The Crown accepts that the offender's culpability is reduced on account of these conditions. The Crown also accepted that the considerations of general and specific deterrence are moderated to reflect this.
[9]
PLEA
It is common ground that the offender entered his plea at the earliest practicable opportunity so as to attract the 25% discount. This reflects only its utilitarian value.
[10]
ANTECEDENTS
The offender has an extensive criminal history with a large variety of offences, going back to 2006, when he was only 17 years of age. This includes violence-related offences, and breaking and entering offences. There are various offences relating to the intimidation of, or being a hindrance to, the police. There was one earlier offence for possession of a prohibited drug.
[11]
INSIGHT, REMORSE AND CONTRITION
The sentencing assessment report indicates the corrections officer's opinion that the offender has shown limited insight into his offending. That is consistent with his lack of acknowledgement of offending indicated to the police at the time his offending was detected. There is no evidence of remorse or contrition.
Against that, he has acknowledged his need to address his fundamental underlying problems.
[12]
Likelihood of re-offending
On the basis of Ms Brigida's report, which remarked upon the high risks of recidivism, the prospects of re-offending must be regarded as guarded.
The sentencing assessment report dated 25 May 2020 has assessed his prospects of re-offending as medium. I accept that analysis.
[13]
Rehabilitation prospects
For the same reason, these cannot be regarded as low. He was not employed at the time of the offending and the prospects of employment in the short term appear bleak.
Even with treatment that he needs, the offender's rehabilitation prospects are no more than reasonable.
[14]
OVERALL SYNTHESIS
I first have regard to the maximum punishment as a legislative guidepost. That signifies the seriousness of the offending conduct.
I have regard to the factors in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
For an offence of the kind in question, I acknowledge the Crown's reference to observations made by the Court of Criminal Appeal in R v Shi [2004] NSWCCA 135 at [34] that:
"…the culpability of those who engage, at any level, in drug supply networks is significant and that deterrence sentences are necessary, since absent the involvement of couriers, warehousemen and so on, these networks, whether established for the purpose of importation or subsequent distribution, would simply collapse".
I am also cognisant that, whereas in the past it was thought that a full-time custodial sentence was automatic for an offence of this kind, at least where the drug dealing occurs to a 'substantial degree', more recent authority indicates that this is not so. In Parente v R (2017) 96 NSWLR 633 the Court of Criminal Appeal observed at [113]-[119] that general sentencing principles are to be considered in the first instance, emphasising the considerations of general deterrence and community protection and recognition of the maximum penalty as legislative guidepost. However, in an important shift away from past sentencing trends, the Court of Criminal Appeal noted that prior to imposing a sentence of full-time imprisonment, the sentencing court is required to consider all sentencing options, including, but not limited to, intensive corrections orders ('ICO'), which is a form of imprisonment. Full-time custody is a sentence of last resort, not a starting point: see also West, Trent v R [2017] NSWCCA 271 at [60]-[61]. In summary, in Parente, the Court of Criminal Appeal indicated that when a sentencing court for an offence of this kind has a sentence of full-time custody in contemplation, the sequence of steps requires it to consider: (1) whether no sentence other than imprisonment is appropriate (regardless of how it might be served); second, if so, the length of such a sentence (regardless of how it might be served); and, third, whether any alternatives to full-time incarceration are available and appropriate: at [117]-[119]; see also R v Fangaloka [2019] NSWCCA 173 at [60]-[61].
In relation to general sentencing principles, general deterrence is paramount, but I note that even general deterrence may be moderated where the offender, because of mental abnormality, in conjunction with a drug addiction, knew that what he was doing was wrong: Muldrock v The Queen (2011) 244 CLR 120. In this case, as noted, the Crown noted that this offender was not what might be called a suitable vehicle for the fullest expression of this very important consideration. Generally, both mental disorders and addictions may support greater leniency, in reducing the seriousness of the offence, the weight to general deterrence and need for specific deterrence and elevating the adverse impact of punishment. The offender's mental disabilities reduce the significance of the factors of denunciation and retribution (Muldrock v The Queen). The offender's conditions were not so extreme as to render him ignorant of the wrongful nature of his conduct. But his conditions affected his executive functioning, increased the prospect of his acting impulsively and reduced his capacity for self-control
However, these conditions of mental abnormality and drug addiction cut both ways, in the sense of augmenting the importance of protecting the community. It may also augment the consideration of specific deterrence, particularly where, as here, the evidence is meagre, if not bleak, in indications as to the offender's prospects of rehabilitation and unlikelihood of re-offending. The most obvious indication of this is the offender's extensive criminal history and recidivism. In such way, these considerations support greater severity, or, at least, counter-balance the considerations pointing to leniency (Nairn v R [2015] NSWCCA 290 at [38]).
This is, in my view, the situation in relation to this offender. In my opinion, the subjective considerations I have alluded to tend, on balance, not to point towards in the direction of either greater leniency, or greater severity. They tend to balance themselves out.
That being so, what is most important are the considerations of general deterrence and the protection of the community. That, I note, is consistent with authority: Parente v R at [109]-[110]. I say that, notwithstanding that general deterrence is somewhat moderated.
There was no serious issue that having regard to the nature of the offence and the offender's history, no sentence other than full-time incarceration is appropriate. The s 5 threshold is crossed.
The next step, then, is to consider the length of the term. I have found that the objective gravity of the conduct was low. No aggravating factors were relied upon by the Crown. The offender is entitled to the 25% discount for the guilty plea. Although the offender has an extensive criminal history, he has only been convicted of this particular offence once before, and that was 8 years ago. I am inclined to consider that, taking into account the plea, a period of two years' imprisonment would be appropriate length.
The final step is to consider whether an alternative to full-time incarceration is available and appropriate. In my view, but for a qualification, the imposition of an ICO merits serious consideration. In this regard, the Court notes the content of the sentencing assessment report, as required (s 69(1) of the Crimes (Sentencing Procedure) Act). Community safety is the paramount consideration (s 66 of the Crimes (Sentencing Procedure) Act), although the sentencing court should remain mindful of the general sentencing principles in s 3A (Karout v R [2019] NSWCCA 253). As I have already noted, some of those factors tend to balance each other, having regard to the offender's mental issues and his drug addiction; leaving general deterrence and community protection as the foremost considerations.
Community safety is linked with considerations of rehabilitation, which may be more likely to occur with supervision and access to programs in the community than full-time incarceration (R v Pullen (2018) 87 MVR 47; [2018] NSWCCA 264 at [84]). The critical question is whether the risk of reoffending, which I find is high in this instance, is more appropriately addressed by ICO or full-time detention (R v Fangaloka [2019] NSWCCA 173 at [63]). A court may form the view that an ICO is not appropriate where a report indicates the offender will be unable to comply with the conditions of an ICO or if he or she is likely to breach the conditions (Zreika v R (2012) 223 A Crim R 460 at [67]).
However, the offender has been in custody since 11 March 2020 in relation to an unrelated offence; having been refused bail. His Counsel has submitted that there would be no point in imposing an ICO in the circumstances. Pragmatically, he acknowledged that there was no choice but that the punishment I impose is one of full-time incarceration. He noted that whatever punishment I now impose may affect any penalty that might be imposed upon him in relation to the offence for which he was arrested in March.
The Crown says that it is open to me to backdate the sentence by as much as 90 days, although a large component of that may be referable to other offences. Counsel for the offender submitted that that full amount of days should be taken into account; again, emphasising that whatever punishment I now impose may be taken into account by any future sentencing court in relation to the unrelated offence. I accept that submission.
[15]
SPECIAL CIRCUMSTANCES
The Crown does not dispute the offender's submission that special circumstances exist, having regard to the importance in aiding the offender's rehabilitation, initially, for his substance abuse problems and, more fundamentally, his mental health; which will be assisted by options available outside of custody. I agree.
[16]
ORDER
Mr Gray, please stand.
You are convicted of the offence of supply of a prohibited drug in sequence H71153644(2).
Taking account of your plea, I sentence you to a term of imprisonment of 2 years commencing on 7 March 2020 and expiring on 6 March 2022 with a non-parole period of 1 year and 2 months. You will be first eligible for parole on 6 May 2021.
I note that the Crown has withdrawn the s 166 back-up offence.
[17]
Amendments
10 June 2020 - Correction of minor typo.
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Decision last updated: 10 June 2020