R v Hamilton

Approach to sentencing

1. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999.
2. The offender entered pleas of guilty in the Local Court and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.
3. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
4. The standard non-parole periods specified do not apply when an offender pleads guilty, but they can still be used as a guidepost for an appropriate sentence.

Agreed facts

1. The parties tendered an Agreed Statement of Facts that can be summarised as follows.
2. On 4 June 2021 the offender was residing in rented accommodation in Surry Hills, with his fiancée. At about 4.00pm that day, Police attended the premises to execute a search warrant. Police announced themselves at the door but had to force entry, entering the premises at about 4.14pm.
3. Police located the offender in an upstairs bathroom trying to flush capsules down the toilet. Cash was strewn across the bathroom floor together with a clear resealable bag of white powder and a number of empty bags.
4. The offender was cautioned and placed under arrest and conveyed to Surry Hills Police Station where he declined to be interviewed. Police continued to search the premises for in excess of three hours, locating: 1. on a shelf in the living room, 3 vacuum sealed bags of 100 capsules each, containing a grey powder that was later analysed to be 271.5g of psilocin or "psilocin"; 2. in the freezer, 1 freezer bag containing 6 cardboard sheets divided by perforations into 387 squares that was later analysed to be 3.42g of lysergic acid or "LSD". The Crown conceded that it could not prove that the offender knew that he was in possession of more than the large commercial quantity of 2g; 3. in the living room, 1 sandwich bag containing 7 small clear resealable plastic bags each containing 10 capsules, a plastic bowl containing 8 capsules, a brown bag containing a grey crystalline substance and 1 large sandwich bag containing 340 empty capsules and one opened capsule. This substance was later analysed to be 34.16g of MDMA; 4. in an upstairs bathroom, a clear resealable plastic bag and, in the kitchen, a resealable plastic bag containing white powder that was later analysed to be 5.74g of ketamine; 5. in the living room, a clear resealable plastic bag of white powder that was later analysed to be 13.27g of cocaine; 6. the sum of $12,450 in cash; 7. one set of electronic scales; 8. numerous empty resealable plastic bags; and 9. two Apple iPhones.
5. Police later conducted a Cellbrite analysis of the Apple Iphones which revealed the following. The offender was messaging a number of people regarding drug supply on applications such as Wikr, WhatsApp and Facebook Messenger from as far back as 3 January 2018. The offender supplied drugs from his premises in Surry Hills and did not deliver. He often messaged people informing them of his address. His supply of drugs was for financial reward and he kept some record of what people owed him for drugs. There was some planning and co-ordination with other people involved in the supply of drugs. The offender was a drug user himself. The offender was struggling financially as a result of his drug addiction and the costs associated with running a pizza shop business that he co-owned in Potts Point. I have taken into account the messages quoted in the facts, but it is not necessary to set them out.
6. The offender was in custody bail refused between 4 June 2021 and 7 October 2021. His initial bail conditions were described as being on "house arrest" in that he was not permitted to leave his parents' house unless he was in the company of one of them and he was required to report to Police daily. He was also required to abstain from drugs and alcohol and to submit to non-invasive testing for those substances if requested to do so by a police officer. On 20 January 2021, his bail conditions were relaxed, but he was subject to a nightly curfew and was required to report daily to Police. Those conditions persisted until he appeared for sentence on 22 June 2022.

Sentencing Assessment Report

1. The Court received a Sentencing Assessment Report dated 20 June 2022 (SAR), the content of which corroborates the offender's subjective circumstances and his excellent prospects of rehabilitation, which I will return to. The author of the SAR assessed the offender as at a medium to low risk of re-offending and as suitable for supervision and to perform community service work.

The offender's case on sentence

1. The offender tendered: 1. a report of Dr Richard Furst, psychiatrist, dated 20 June 2022; 2. a letter from Christian Gienau of Odyssey House dated 17 June 2022; 3. a bundle of urine drug screen results covering the period of 17 November 2021 to 9 June 2022; 4. a letter from Ben Turner dated 19 June 2022, the General Manager of FST Media (the offender's employer); 5. a letter from Carolyn Swindell dated 16 June 2022 relating to the offender's involvement in stand-up comedy; and 6. a letter from his father, Alan Hamilton, dated 17 June 2022.
2. The offender also gave evidence in the sentence proceedings and was cross-examined. The offender was an exceptionally good witness. He came across as being totally honest and forthright. He displayed a high level of insight into the circumstances that led to his offending conduct and what he needed to do to avoid a repeat of those circumstances. His evidence satisfied me that he is highly engaged with his rehabilitation.
3. The following is a summary of the evidence relied on by the offender.

The offender's subjective circumstances, remorse and prospects of rehabilitation

1. The offender was born in 1986 and is presently 36 years of age.
2. He grew up in Hornsby in a close and loving family. As a child he was hyperactive and at school he distracted other students from their work. He was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). At age 16 he went to see a child psychiatrist and was prescribed dexamphetamine. He took that medication between the ages of 16 and 18 during his Higher School Certificate. He found it helped him to concentrate but he struggled with the side effects that included teeth grinding and problems with sleeping. He stopped taking the medication because he found the side effects too onerous.
3. He performed well at school and was an active student, being a member of the Student Representative Council (SRC), a house vice-captain, a performer in the school musical and representing the school in sport and the state Shakespeare Festival reaching the state final. He was popular at school and had a lot of friends. Dr Furst was provided with a number of contemporaneous documents for this period.
4. He studied for an Arts/Science degree at the University of Sydney and then enrolled in a Communications degree at Charles Sturt University in Bathurst.
5. On completion of his studies, he worked for a public relations firm for about two years before starting his own firm. He was then employed by a global communications firm, Edelman, and was appointed as an account director at age 26, which was unusual in the industry for someone that young. After about three years, he then worked with another Edelman employee in their own public relations business, Mana Communications. After about five years, when the offender was 34 years of age, he left Mana Communications and bought into a pizza shop business, "Brooklyn Crispy" at Potts Point, that opened in late 2019.
6. The offender first commenced drinking alcohol at about age 16. He first used cocaine at about age 20, and then later as a social habit. In his 20s and 30s he also used ketamine, MDMA, LSD and psilocin. He would often use psilocin in micro-doses which improved his mood and helped him to concentrate.
7. At age 20 the offender was convicted of malicious wounding and ordered to perform 200 hours community service, which he successfully completed. The context to the offence was that the offender had just found out that his friend had slept with his recent ex-partner and confronted him and hit him over the head with a wrench which resulted in a wound. His evidence was that the experience had a significant impact on him and he has eschewed violence ever since.
8. Throughout the 18 months preceding his arrest, the offender gave evidence that he would go on "benders" that would last for four to five days in which he did not sleep and would take two to three days to recover from. During these times, he was drinking approximately three bottles of wine per day and was consuming all of the drugs I have referred to. He took LSD and psilocin to "get high" and "trip out" for extended periods. He hosted parties at his premises where his friends would come and participate in the benders for days at a time. He usually provided the drugs for use by these people. The offender estimated that in any given week during this 18 month period, he was drinking about 20 bottles of wine, taking 25 capsules of psilocin, about 4g of MDMA, varying amounts of cocaine and ketamine and LSD.
9. At the same time, the offender developed a pattern of problematic gambling, using poker machines at hotels and clubs in the Surry Hills area. His drug use escalated after a falling out with friends and increasing stress at work.
10. He sought help for his drug and alcohol use from Dr Deepi Miller, psychiatrist, at St Vincent's Clinic at Darlinghurst in 2019 and 2020. At that time, he was not prepared to take Dr Miller's advice to cut ties with his social circle and to be abstinent from drugs and alcohol.
11. The offender shared the Surry Hills premises with his fiancée, who was also a heavy drug user. The extent of their combined drug use, his gambling addiction and the impact of the pandemic on the restaurant business put significant financial pressure on him.
12. The offender described his life during this period as "terrible". He was overweight, depressed and stressed out over money. He constantly felt bad and his physical and mental health had deteriorated. His drug use helped him to escape feeling depressed, but also trapped him in a cycle that made things worse and worse. In 2020, he considered committing suicide by hanging himself because his self-esteem was so low.
13. The offender came to the notice of Police after his fiancée had an episode of paranoia and spoke to the Police about the drugs at the house, after which the Police obtained the search warrant.
14. The offender's evidence was that he purchased drugs in bulk, pooling his money with a friend because it was cheaper to do so. The psilocin was seasonal and hard to come by on occasions. He often purchased it and kept it in the freezer for times when it was not in season and he expected to consume a lot of it.
15. He first started to sell some of the drugs to contacts of his friends as a way of paying for his own habit and the drugs that would be used at his parties, against the financial limitations resulting from his gambling habit. He felt compelled to continue with his drug and gambling addictions, because he did not understand how he could stop. He described the situation as "just getting worse" and as him being in a "pretty dark place".
16. The offender was asked questions about the content of some of the messages located on his mobile phones. He stated that he did not deliver drugs to others because he was generally too adversely affected by drugs to do so. He remembered what people owed him for drugs because he was very rarely owed money and he knew all of the people that he supplied to. He generally supplied drugs at cost but made enough money to buy more drugs. In one of the messages, he stated that he could not afford to take a lot of drugs or "do bags" because he was struggling financially.
17. The offender's evidence was that he intended to use or share half of the psilocin located in his house and sell the rest to support his habit. He bought 400 tabs of LSD in one purchase, of which 387 were seized. He intended to use and/or share about 40% of the LSD, with the remainder to be sold. He was putting the MDMA into capsules to sell, but he did not cut it with anything else. He also intended to use some of the MDMA. The cocaine and ketamine were for his personal use. He accepted that the $12,450 in cash was the proceeds of drug sales.
18. He described his time in custody as "shit". He was initially in quarantine for 14 days and kept in isolation without access to books or writing materials. He said that he felt very isolated and struggled mentally. His time in gaol gave him the opportunity to sober up. He saw the impact of drugs on other inmates. He was offered drugs in gaol but abstained. He later expressed to Dr Furst an understanding that his drug supply played a part in the lives of the "lost souls destroyed by drugs" that he met in gaol. He endured many lockdowns during COVID outbreaks and he was locked in his cell for extended periods, which included only being allowed to shower every second day.
19. When he was released on bail in October 2021, he lived with his parents. His bail conditions were initially akin to "house arrest", only permitting him to leave the house if he was in the company of one of his parents. He described himself as a social person and stated that he found that time very difficult. Since being released on bail, he has not associated with any drug using friends from his past and has not experienced drug cravings.
20. In November 2021 he began attending a non-residential rehabilitation program run by Odyssey House. In the period up to June 2022, he had successfully completed Stages 2 and 3 of the program. He is committed to continuing to attend group sessions as part of a mutually agreed treatment program with Odyssey House. Mr Gineau states in his letter to the Court that the offender has displayed "excellent levels of engagement", sharing his experiences "proactively and transparently" and adding to the therapeutic environment. The offender's evidence was that he has found the program of huge value and he has established significant friendships from it. He has learnt to recognise positive and negative triggers for drug use and put in place plans to counter them. He accepted that he would have to continue treatment into the future to deal with his addiction and mental health issues.
21. The offender has taken up an interest in stand-up comedy, performing six or seven nights a week on an unpaid basis. His evidence was that it gives him a sense of purpose and serves as a positive addiction. He always wanted to try it, but his life circumstances did not permit him to do so. He is presently happy to continue working and to have comedy as a hobby, but he shows some promise to turn professional. He has competed in a national competition and reached the state final and is regarded by his peers as talented, hard-working, reliable and keen to learn.
22. He is presently working on contract and has been offered full-time work with FST Media. Mr Turner is very supportive of the offender and has offered to tailor his work hours to suit his rehabilitation commitments.
23. In cross-examination, the offender stated that the 2006 offence did reduce his drinking for a period, but he did not seek professional assistance at that time. He accepted that the 200 hours community service did not deter him from drug and alcohol use at that time but stated that it was not as much of a problem then as it was in the period leading up to the present offences. It did assist him with anger management, however, and he vowed never to physically harm anyone again.
24. The offender accepted that in 2019 to 2020 when he saw Dr Miller, he was not ready to change. He took medication to help him stop drinking for a while but that was short lived. He agreed that he had time after seeing Dr Miller but before his arrest to seek more help.
25. The offender's evidence was that his parents and good friends were not aware of the extent of his addiction or mental health issues. He agreed that he could have reached out to them for help but did not do so because he was stuck in a drug and alcohol-fuelled cycle and was not stopping to reflect on the impact of his choices.
26. He invested $60,000 in the pizza shop business, made up of $35,000 from a payout from Mana Communications and $25,000 from his own funds. He accepted that part of the latter sum came from the sale of drugs. He estimated that he was gambling a couple of thousand dollars per week at the height of his problematic gambling. He presently has debts in the order of $60,000 which are being managed with the assistance of a financial counsellor.
27. The offender described his drug taking to Dr Furst as a "massive waste of his life". The offender tendered negative drug screen test results for the entire period that he has been on bail.
28. He is presently living with his parents until he gets back on his feet. His father attested to the improvements in his physical and mental health and to his commitment to his rehabilitation and his success in comedy. He has also expressed remorse to his parents.
29. Dr Furst opined that the offender was suffering from Alcohol/Substance Use Disorder, Gambling Disorder and ADHD. Dr Furst stated that the offender's escalating drug use in the 18 months before his arrest was probably a maladaptive means of coping with anxiety and stress and exacerbated by the heavy drug use of his fiancée and their friends. Dr Furst stated that there was a strong correlation between childhood ADHD and subsequent drug addiction and an even stronger correlation with Gambling Disorder. The reason for those correlations is probably related to neurodevelopmental and cognitive deficits in children with ADHD, reflected in their high rates of impulsivity, difficulty staying on task and social difficulties that can all be improved by medication. Dr Furst opined that the offender's arrest "probably saved his life" because he had lost control of his drug and alcohol use. Dr Furst recommended that he continue with drug and alcohol counselling and consider the Stimulant Treatment Program offered at St Vincent's which would provide medication to deal with his ADHD.

Objective seriousness, deterrence, aggravating and mitigating factors

Objective seriousness

1. The amount of psilocin possessed for the purpose of supply was about 2.7 times the large commercial quantity. I accept the offender's evidence that he intended to consume a significant proportion of the drug himself. The drug was packaged in the way that he bought it, in bulk. The street value of the drugs calculated by reference to the messages was about $7,500 ($25 per capsule). The drug could not be cut or multiplied for on-sale.
2. The amount of lysergic acid (3.42g) was over the large commercial quantity (2.0g), but the Crown conceded that it could not prove that the offender knew that. I accept the offender's evidence that he intended to consume a significant proportion of the drug himself. The street value of the drugs calculated by reference to the messages was about $7,740 ($20 per tab). The drug could not be cut or multiplied for on-sale.
3. The amount of MDMA was not significant considering that he used about 4g per week himself. The offender put it into capsules for re-sale but did not cut it or multiply it for on-sale.
4. The offender did not supply the drugs for profit, but to support his own habit. He supplied to a limited network of people, some for money and some for no reward. The messages provide contemporaneous evidence that he was struggling financially as a result of the extent of his drug and alcohol use as well as his gambling.
5. The quantities of cocaine and ketamine possessed were for his personal use and were not significant.
6. The offences involved some degree of planning through the use of mobile telephones and messaging applications. The offender took no steps to avoid detection. He traded from premises leased in his own name, used mobile phones registered in his own name and kept all of the incriminating messages. The drugs were stored in accessible places in the house. He did not use code in the messages and frequently told people where he lived, so that they could come and collect drugs from him. The likelihood of his detection was almost inevitable.
7. The amount of the cash seized was not large in the context of drug supply and corroborates the offender's evidence that he did not make a significant profit.
8. The offender was a poly substance user with a huge weekly habit. In all of the circumstances, he is aptly described as a user/dealer.
9. The offender's ADHD and the part it played in his addictive behaviours warrant a reduction in the offender's moral culpability for the offences.
10. I have taken into account the maximum penalty for the offences and the standard non parole periods as legislative guideposts for the appropriate penalty. For sequences 2 and 12 they are set at a high level.

Deterrence

1. General deterrence is of significant importance when dealing with serious drug supply offences. An inherent feature of drug supply is that it is carried out covertly, requiring significant law enforcement resources to be devoted to detection and successful prosecution, and judges must convey a consistent message on deterrence: Parente v R [2017] NSWCCA 284 at [109].
2. General deterrence may be afforded less weight where the offender suffers from a mental condition because they are not an appropriate person to be made an example of: Muldrock v R (2011) 244 CLR 120 at [53]-[54]. The offender's ADHD and his attempt to self-medicate with illicit drugs provides a medical explanation for the offender's addictions such that they cannot be viewed as a choice freely made by him. As a result, his moral culpability for the offences is reduced to some extent, bearing in mind that there was an extended period in which he could have sought treatment for his addictions and his mental health but failed to do so.
3. The need for specific deterrence is reduced because of the extensive steps the offender has taken to deal with his addictions and the insight that he has as to their contribution to his offending conduct.

Aggravating factors

1. There are no relevant aggravating factors.

Mitigating factors

1. The offender did not have a significant record of prior convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender had some unrelated matters on his record, but they are not significant.
2. The offender is unlikely to re-offend: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. This is not a finding that I have come to lightly. I am satisfied by reference to the offender's demonstrated capacity to rehabilitate himself, his current attitude and his family and social support that he is unlikely to re-offend. Whilst there is always a risk that a person with the offender's addiction history may relapse into drug and alcohol use, I am satisfied in this case that the risk is minimal and in any event unlikely to result in further offences.
3. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. I am satisfied on the evidence that the offender has excellent prospects of rehabilitation, which he has demonstrated through his actions in the past eight months. He has good family and social support and I am confident that there are a number of protective factors in place that will prevent him from relapsing into drug use.
4. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender has exceptional insight into his offending conduct and has accepted responsibility for his actions. He has recognised the harm that the offences have caused. He has expressed remorse to Dr Furst, Community Corrections, his employer, his parents, his friends and the Court. I am satisfied that he is truly contrite.

Other matters

1. I have had regard to the sentencing statistics for the supply of hallucinogens like psilocin and LSD, and I have considered the limitations in doing so.
2. I have taken into account that harsh conditions of the offender's incarceration arising from the pandemic.

Penalty

1. Andrew William Hamilton is convicted.
2. I have considered section 5 of the Crimes (Sentencing Procedure) Act 1999 and I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.
3. This is an appropriate matter to impose an aggregate sentence pursuant to s 53A Crimes (Sentencing Procedure) Act 1999. The terms of imprisonment I would have imposed if separate sentences were to be imposed after taking into account the discount for the plea of guilty are: Sequence Offence Indicative sentence H81004338 2 Supply a commercial quantity of a prohibited drug, being 3.42g of lysergic acid (LSD). 1 year and 9 months with a non-parole period of 12 months 3 Supply an indictable quantity of a prohibited drug, being 34.16g of 3,4 methylenedioxy-methamphetamine (MDMA). 12 months 12 Supply a large commercial quantity of a prohibited drug, being 271.5g psilocin (psilocin), taking into account the matters on the Form 1. 2 years and 3 months with a non-parole period of 18 months

1. The appropriate aggregate sentence is 3 years which will be reduced by 6 months to take into account pre-sentence custody and the offender's quasi-custodial bail conditions. For the reasons that follow, this is an appropriate matter to be dealt with by an Intensive Corrections Order. Accordingly, the sentence cannot be backdated.
2. I impose an aggregate sentence of 2 years and 6 months.
3. I have had regard to s 66 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that it is appropriate to order that the sentence be served by way of an Intensive Corrections Order (ICO), for the reasons I have already given and the following additional reasons, including by returning the purposes of sentencing in s 3A.
4. I have had regard to community safety as the paramount consideration. In this case, the protection of the community can be achieved by allowing the offender to continue his rehabilitation in the community. I am satisfied that by continuing with his current arrangements that he is unlikely to relapse and even less likely to re-offend. I am also satisfied that the offender has reached a point where if he was to be sent back to prison, he would lose the progress he has made with his rehabilitation. He is well settled attending group sessions with Odyssey House, working and performing. All of those things and the combination of them, are integral to his recovery. In other words, out of the two options of sending him back to prison or imposing an ICO, I am satisfied that the protection of the community will be best achieved by the offender serving the sentence in the community by way of an ICO: Mandranis v R [2021] NSWCCA 97 at [51].
5. I am mindful of the statement of the Court of Criminal Appeal in R v Qi [2019] NSWCCA 73 at [74] (Button J) that an ICO should not be imposed for an offence that carries a maximum penalty of life imprisonment and a high standard non parole period, except in very exceptional circumstances. I am satisfied, for the reasons given, that this is such a case. Notwithstanding that these offences involve some objective gravity, that does not preclude an imposition of an ICO, if that would better serve the objects of sentencing: Wany v DPP [2020] NSWCA 318 at [5].
6. The offender's addictions and his life were spiralling downwards. He was out of control. His arrest and time in spent custody probably saved his life. He has turned his life around in a short timeframe. He is a great example to others of how addiction can be dealt with and controlled.
7. By reference to his ADHD and the genesis of his addictions, his moral culpability is reduced and accordingly general deterrence, denunciation and retribution can be afforded less weight.
8. It should also be noted that the offender has served a period of 4 months in full time custody for these offences and spent a further 8 months on bail amounting to quasi-custodial conditions. The imposition of an ICO for a further lengthy period will mean that the restrictions on his liberty will continue. I am satisfied that by reference to his previous incarceration, onerous bail conditions and the imposition of the ICO that he has been adequately punished for the offences.
9. Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an ICO. The sentence will commence today (24 June 2022) and expire on 23 November 2024.
10. The offender must report to the Burwood Community Corrections Office on or before 4pm on 1 July 2022.
11. The standard conditions of the order apply: 1. the offender must not commit any offence; and 2. the offender must submit to supervision by a Community Corrections Officer.
12. The following additional conditions apply: 1. the offender must abstain from taking all restricted or prohibited drugs, except those prescribed by a medical practitioner; 2. the offender must receive treatment for drug rehabilitation and his mental health as reasonably directed by Community Corrections; and 3. the offender must complete 200 hours of community service work.
13. If the offender fails to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or the State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions, or a revocation of this order. If the order is revoked, the offender may be required to serve all or some of the period of the sentence in full-time custody.
14. The offender must attend the Registry where a copy of the order will be explained and given to him.

Amendments 27 June 2022 - Personal identifier removed. 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: 27 June 2022