R v Grills

District Court of NSW|2024-11-07

remarks on sentence

Mr Grills is for sentence in relation to four offences of supplying prohibited drugs under the Drug Misuse and Trafficking Act 1985. Firstly, the sequence 6 offence of supplying a prohibited drug on an ongoing basis for financial reward, that being an offence under s 25A(1), which carries a maximum penalty of 20 years imprisonment.
Next, the sequence 2 offence of supply commercial quantity of cocaine, that being an offence under s 25(2), which carries a maximum penalty of 20 years imprisonment and has specified a standard non-parole period of 10 years.
Next, the sequence 6 offence of supplying a large commercial quantity of methamphetamine, which is an offence under s 25(2) and carries a maximum penalty of life imprisonment and has specified a standard non-parole period of 15 years.
I note also that there is a Form 1 to be taken into account in sentencing for the sequence 2 supply cocaine matter.
Fourthly, there is sequence 10 offence of supply prohibited drug on an ongoing basis for financial reward, that being an offence under s 25A(1) which has a maximum penalty of 20 years imprisonment.
The maximum penalties and, where applicable, standard non-parole periods are, of course, important guide posts in the sentencing exercise to which I have had regard.
The offender pleaded guilty at an earliest opportunity and will, therefore, be given a discount of 25 per cent, by reason of the utilitarian value of those pleas of guilty.

OBJECTIVE SERIOUSNESS

Turning then to considerations of objective seriousness. Objectively each of the four offences clearly are serious, having regard, firstly, to the maximum penalties and also the standard non-parole periods that have been specified and which are, of course, important guide posts.
However, it is important that I make an assessment of the objective seriousness of the particular offences that are before the court.
The courts have said for many years that offences of drug supply must be treated very seriously, given the damage that drugs cause to individuals and to the community generally. It is for this reason that general deterrence must ordinarily be given significant weight.
However, in assessing objective seriousness, I must make a determination as to what role the offender played in the offences, in other words what he did. Of course, the quantities of drug are also highly relevant, although they are not determinative.
There are a number of factors that are common to each or most of the offences and to which I have had regard in determining their objective seriousness.
Firstly, it is evident from the intercepted material that the offender's role involved a high degree of autonomy, in that he was actively involved in sourcing drugs from different suppliers and in assessing the quality of those drugs. He also was directly involved in negotiations over prices and quantities and engaged directly in the presentation and packaging of the drugs, as is demonstrated in the comment noted in the statement of facts and attributed to the offender, "It's powder so I just vac seal it, makes it look better anyway".
The nature of his role is also informed, it seems to me, by his words noted in the facts where he was effectively marketing certain products by making reference to the quality of the drugs that he had available.
Also, the quantities of drugs involved in the actual supplies were fairly substantial and this, combined with the quantity of methamphetamine found in the boot of the BMW, supports the conclusion that the offender was, as the Crown submitted, an "upline supplier" to other suppliers. As the Crown accepted, he might also be described as a middle man.
Another common factor to each of the offences is that while there was clearly a degree of planning involved in each of the offences and the use of some coded words, I do not regard either of these aspects as being more than what might ordinarily be expected with such offences.
It is clear, however, that the offender was effectively engaged in a "business" of accessing and supplying drugs, which he clearly did for reward. The fact that the drug supply was for reward, however, is an inherent aspect of virtually all drug supply offences and not a matter that aggravates these particular offences.
While there is no evidence of the offender having great wealth, there is evidence in the statement of facts that he had both a BMW and an Audi registered in his name. Beyond that, I am unable to determine exactly what material benefit he received.
It was agreed in the sentence hearing yesterday that part of the reason the offender engaged in the offending was due to a drug debt that he owed to unknown persons. When I say "unknown", I mean unknown to the Crown. Obviously those persons are known to the offender.
The exact nature and extent of that debt is not the subject of any clear evidence. However, it follows from the statement of facts that the debt was in excess of $150,000. In accordance with the submissions made in court yesterday afternoon, I do accept that the offender had a drug debt of some amount in excess of $150,000 and that part of the benefit he obtained for his actions was a reduction in that debt.
However, I am not satisfied that this was the only benefit that he received. It is likely in my view that he also obtained the benefit of access to drugs for his own use and some sort of financial benefit, although I am not able to put a figure on this.
As I have noted, the various matters I have just recited can be regarded as common to each of the substantive offences.
Turning then to individual aspects relating to the seriousness of those individual substantive offences, I make the following further observations and findings.
The sequence 6 ongoing supply offence involved four transactions over a period of four days between late April and late May 2023. The total amount supplied involved 336 grams of methylamphetamine with an agreement to supply another 56 grams as well as an actual supply of 28 grams of cocaine, in exchange for a total of just over $73,000. The drugs were actually dissipated into the community with the likely harm that this involved. I regard this as a serious form of the offence that sits slightly below the mid-range of objective seriousness.
The sequence 10 ongoing supply offence also involved four transactions, those being over a six day period in August 2023. In total, it involved just in excess of 24 grams of methylamphetamine and 3.5 grams of cocaine. The exact amount of money that changed hands is unknown but it was at least $4,500, as well as a $6,000 reduction in the extent of the offender's drug debt.
Again, the drugs were dissipated into the community with the inherent presumption of harm that this involved. I regard this as an offence below the mid-range of objective seriousness but not in the low range.
As to the sequence 2 supply commercial quantity of cocaine offence, I note that this related to just over half a kilogram of that drug. It was thus well over the commercial quantity but well short of the large commercial quantity. The exact benefit that the offender obtained is unclear but it involved at least a reduction in his drug debt in the amount of $129,000. In my view, it is an offence sitting slightly below the mid-range of objective seriousness.
The sequence 6 deemed supply of a large commercial quantity of methamphetamine involved the offender's possession for the purposes of supply of almost 2.5 kilograms. It was thus many times over the threshold for a large commercial quantity. The drugs were also of a very high purity and were worth a great deal of money, up to about $480,000 at the bulk supply level and much more than that if sold at street level.
These particular drugs were intercepted by police and so they did not cause direct harm to the community, although there is no doubt that the offender's intention had been to supply them to others so that they could be passed on to purchasers in the community. I regard this as an offence approaching but slightly below the mid-range of objective seriousness.
I note also that each of the offences were committed while the offender was subject to an Intensive Correction Order for drug offences committed in December 2021. While this fact does not increase the seriousness of any of the offences before the court, it has an aggravating effect on sentence, specifically in terms of considerations of punishment, deterrence and protection of the community (see Field v R [2020] NSWCCA 105).

SUBJECTIVE MATTERS

I turn then to consider subjective matters relating to the offender himself. He is now aged 41. His criminal history does not assist him, especially given that he has a history of drug offending. His first supply offence was in 2008, for which he was given leniency in the form of a home detention order. In 2014 he was again sentenced in this Court for drug supply and other offences and received a gaol term from which he was paroled on 3 November 2019.
However, less than a year after being released to parole and while still on parole, the offender committed another supply offence and was given leniency in the form of an Intensive Correction Order for 12 months from 2 September 2021 until 1 September 2022. Notwithstanding that, only three months after that ICO commenced, the offender committed another supply offence for which he was again extended leniency in the form of an ICO for two years, 10 months, which was imposed on 21 October 2022. The offences now before the court commenced within six months of that ICO being imposed.
The offender's background has been placed before the court by means largely of his self-report to the psychologist, Ms Dilati. According to that history, he was born in Maitland and is the eldest of four children of his parents' marriage. However, his parents separated when he was about six and he has two half-siblings as a result of his parents having re-partnered.
His childhood was described as generally satisfactory and it did not involve exposure to domestic violence, abuse, neglect, or financial hardship, although he did report some bullying at school which he left in Year 10.
Since leaving school, the offender has had a history of various forms of employment, but reported that between the ages of 21 to 23 he was unemployed and began to supply illegal drugs, which continued until his first term in prison, which appears to have been between about November 2013 and November 2019.
After his release, he worked on and off but returned to drug supply, which saw him come before the courts for sentence on more than one occasion. In the period before his arrest for the offences now before the court, he had worked for about 10 months as a truck driver and he claims that he would like to return to this sort of work upon his release.
He has had a number of long term relationships with women but these have ended, apparently due to his being incarcerated. He is currently single and has no children.
He has himself a history of chronic drug use since about age 17 and has previously engaged in some drug related counselling, which he claims helped him stay out of gaol for some periods of time. He is currently on the buprenorphine program which helps him in custody, although he still has cravings and expressed some interest in residential rehabilitation.
I note that the offender has experienced two severe motor vehicle accidents which left him with significant injuries and the likelihood of memory loss, although it is unclear on the evidence whether he experiences any serious ongoing effects from these injuries.

MENTAL HEALTH

The psychologist formed the view that the offender meets the criteria for major depressive disorder and stimulant use disorder. I accept that the diagnosis of major depression means that the offender's time in custody has been and will continue to be rendered more difficult. I have also taken into account the psychologist's comment that incarceration renders the offender more vulnerable with the risk of psychological distress, social isolation and general deterioration of his mental health. These risks are increased, in my view, in the offender's case by reason of the recent death of his father.
I also accept that the existence of the offender's mental health conditions reduces, to some degree, the importance of general deterrence being reflected in his sentencing. This was a concession that was made by the Crown.

REMORSE AND REHABILITATION

Turning then to questions of whether there is any remorse, according to the psychologist the offender "vaguely" expressed remorse for the broader impact of his actions on the community. He also expressed a desire to avoid further disappointment to his family, particularly in light of his father's recent death, a matter that has affected the offender considerably.
While I take the offender's references to remorse into account, they can hardly be said to involve a strong claim to a finding of genuine remorse. While I accept there is some remorse, the offender's "vague" claims to remorse, plus his history of recurrent drug offences, leads me to conclude that his remorse is largely regret at having been caught once again supplying drugs.
Turning then to prospects of rehabilitation, the psychologist, Kim Dilati, suggests that the offender is a moderate risk of reoffending, given especially his history of similar offences.
I note that the Sentencing Assessment Report from September 2022, when the offender was last sentenced for drug related offending, suggested a medium risk of reoffending and noted a number of subjective circumstances which seem still to apply in 2024.
It was submitted that the offender's prospects of rehabilitation are increased by reason of the continued support of his mother and by reason of the suggested "circuit breaker" that he is now in custody. I have had regard to these submissions and the fact that the offender is fortunate to have the support of his mother, who is in court again today.
However, in my view, having regard to the offender's background of continually reoffending, he must be regarded as a significant risk of reoffending. I am unable to form a positive view of his prospects of rehabilitation.

DETERMINATION

In determining the ultimate sentence and the indicative sentences, given that I will be imposing an aggregate sentence, I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. Those include, of course, the need for adequate punishment, the importance or preventing crime by deterring the offender and others, the importance of protecting the community, making the offender accountable, denouncing his conduct, recognising the harm done to the community but also, to the extent that it is possible, promoting his rehabilitation.
It seems to me that all of those factors are of importance in this sentencing exercise. However, as I have earlier discussed and as was conceded by the Crown, the importance of general deterrence is reduced somewhat for the reasons that I have set out earlier.
I am satisfied that, in relation to each of the four offences, the only appropriate sentence is one of full time imprisonment. I intend to impose an aggregate sentence, given that there are four individual offences. It is, therefore, necessary that I set out the indicative sentences that I would otherwise have imposed and I will do that in a few moments.

TOTALITY AND ACCUMULATION

In determining the ultimate aggregate sentence, I have had regard to the principle of totality. This requires the court to ensure that the total effective or aggregate sentence is derived through a process of accumulation or concurrency of individual sentences so that it appropriately reflects but does not exceed the overall criminality in the multiple offences (see Mill v R (1988) 166 CLR 59).
There are four offences to be considered. Each of them involved somewhat similar but separate crimes. There is, in my view, a need for some notional accumulation so as to reflect this reality. It seems to me that if I was to fail to build in some level of notional accumulation, this might be seen to provide an incentive for a person to commit multiple offences. There does, therefore, need, in my view, to be some notional accumulation in coming to the aggregate sentence.
However, in determining how much notional accumulation, I have had regard to the fact that the offences were, in my view, part and parcel of a "business" of supply that the offender was then engaged in, and that they were all reasonably proximate in time to one another.
It is appropriate, therefore, to regard the offences as being, to some extent, part of an ongoing course of criminal conduct of a similar nature, rather than, for example, distinct offences of different kinds committed at different times.
As I have said, I do consider there needs to be some level of notional accumulation among the four sentences.
I have made a slight reduction by reason of a finding of special circumstances between the ratio of head sentence and non-parole period. I have reached that conclusion because of the importance of increasing the time that the offender is subject to supervision once he is released to parole and also by reason of my conclusions about his mental health and its impact on his experience in custody.
Turning to the question of what date the sentence should commence, as noted already, the offender was on an ICO at the time of these offences. On 29 August 2023 that ICO was revoked, effective from 14 August 2023, being the date of his arrest, based solely on the offending that is now the subject of the matters before the court.
The offender, therefore, has, since his arrest, been kept in custody, both by reason of his refusal of bail on these matters and by reason of his serving the remainder of his ICO. In those circumstances, in the exercise of my discretion, I do not intend to backdate the current sentence to the date of arrest.
It was submitted on behalf of the offender that the sentence ought to be backdated to 29 August 2023, which was the day that the decision to revoke his ICO was made. In my view, however, that is not an appropriate course because the practical effect would be that the time served on the ICO would be rendered largely concurrent with the sentence that I will impose.
I have also had regard to the fact that the offender was serving that ICO in the community from 21 October 2022 until his arrest on 14 August 2023. However, and as is now known, he was effectively breaching that ICO from late April 2023 because of the current offending.
In those circumstances, it would not be appropriate to backdate the sentence fully to the date of arrest. I intend, however, to backdate the sentence by approximately half of the period between today and the date of arrest. In other words, to 26 March 2024.
As I have noted earlier, there is a Form 1 to be taken into account in sentencing for the sequence 2 supply commercial quantity of cocaine offence. As is well established, offences on a Form 1 may be taken into account so as to increase the penalty imposed for a substantive offence, so as to reflect personal deterrence and to extract retribution for serious offences. However, Form 1 matters will not automatically have that effect, and the judge must have regard to the circumstances of the particular case (see Lloyd v R [2022] NSWCCA 18).
In this particular case, the three offences on the Form 1 all involve quantities of drugs, the largest being 86 grams of cocaine. In my view, the importance of personal deterrence is such that there should be a moderate increase in the indicative term for the substantive sequence 2 supply offence, so as to take into account the matters on the Form 1.
The offender is convicted of the four offences.
The indicative terms that I nominate are as follows. I stress, for the offender's benefit, these are not the ultimate sentence. The ultimate sentence will be made clear after I have recited the indicative terms. The indicative terms are as follows:
For the sequence 6 offence of ongoing supply, after the 25 per cent discount, a head sentence of four years, six months.
For the sequence 10 offence of ongoing supply, after the 25 per cent discount, a head sentence of four years, three months.
For the sequence 2 supply commercial quantity of cocaine, after the 25 per cent discount and taking into account the matters on the Form 1 document, the indicative term is a head sentence of four years, five months with a non-parole period of three years, one month.
And for the sequence 6 deemed supply of a large commercial quantity of methylamphetamine, after the 25 per cent discount, a head sentence of four years, nine months with a non-parole period of three years, four months.
As I have said, there is a need, in my view, for some notional accumulation among those sentences which, of course, does not involve simply adding them up but, rather, having regard to totality principles which I have earlier set out.
I impose a head sentence of seven years, eight months.
I impose a non-parole period of five years, four months.
Each of those will date from 26 March 2024. The head sentence, therefore, will expire on 25 November 2031. The non-parole period will expire on 25 July 2029.
Are there any factual matters of matters to do with dates or calculations that the parties need to raise?
HOITINK: No, your Honour.
ILICIC: No, your Honour.

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