R v Hanrahan & Ors

INTRODUCTION

1. These remarks concern the involvement of co-offenders, Glenn Hanrahan, Joseph Neale, Dennis Cummins and Darren Scott in extensive drug trafficking in the prohibited drug methylamphetamine - 'ice' - in the Central Coast and in Tamworth which occurred in the second half of 2020. The Crown had indicated that although there were some factual differences between these co-offenders, the sentencing of these co-offenders was amenable to a single set of sentencing remarks. Counsel for these co-offenders ultimately acceded to that course. This was subject to a qualification: another co-offender, Beau Marshall, is the subject of separate sentencing remarks (which immediately preceded these remarks), at the request of his Counsel. Marshall had a two-day sentencing hearing in this Court before Woods KC ADCJ in April this year.
2. These remarks are structured in the following way: 1. I will begin by identifying each of the offender's offences for which they are to be sentenced (including any offences on a Form 1), the maximum penalties and applicable standard non- parole periods; 2. I will identify the common substratum of facts affecting the co-offenders (which mainly concerned their respective 'roles'); 3. I will then identify any peculiar facts concerning the co-offenders, where they appear; 4. I will then address objective gravity of the offending, in respect to each co-offender and, where appropriate, applicable aggravating factors; 5. The subjective cases of each of the co-offenders will be considered; 6. Consideration will then be given to the application of the parity principle, which principally involves comparison of the roles of the co-offenders amongst themselves, their roles comparative to the offender Marshall (who has been sentenced separately) and their roles in relation to the co-offender Brooks, who has already been sentenced. 7. I will then synthesise all relevant factors before passing sentences on each co-offender. Subsumed within this is consideration of whether the s 5 threshold has been crossed and if so, consideration of whether imprisonment might be served by intensive correction, the totality principle and where relevant, whether findings of special circumstances may be made.
3. I note that although he wished for his sentencing proceeding to be dealt separately, Marshall's proceeding was adjourned to coincide with the hearing of the proceedings of the other offenders. Marshall's Counsel was given the opportunity to cross-examine the two co-offenders (Hanrahan and Neale) who chose to give evidence, including their perceptions of Marshall's role comparative to their own role in the offending.
4. Before moving to the substance of these remarks, I wish to record my appreciation for the quality and depth of the written and oral submissions by the Crown and Counsel for the co-offenders. I am conscious of the length of these remarks, but that is mainly a function of the number of the co-offenders and the volume of the submissions the Court received. A benefit of the volume of the written submissions was that it narrowed the scope of the hearing itself.
5. Without disrespect, I will refer to the co-offenders by their surnames.

Hanrahan

1. Hanrahan pleaded guilty to the offence that between 23 September 2020 and 3 December 2020 in Barraba and other places in New South Wales, he supplied Methylamphetamine being an amount (1,120 grams) not less than a large commercial quantity for Methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (the DMT Act). The maximum penalty for this offence is life imprisonment and/or 5,000 penalty units. The standard non-parole period is 15 years' imprisonment
2. Hanrahan also acknowledged his guilt, and asked the Court to take into account on sentencing for the above principal offence, two additional offences on a Form 1, attached to the principal offence, being that: 1. between 15 November 2020 and 3 December 2020, at Manilla in the State of New South Wales, he supplied a prohibited drug, being 133 grams (being greater than an indictable quantity but less than a commercial quantity) of Methylamphetamine, contrary to s 25(1) of the DMT Act (the maximum penalty of which is 15 years' imprisonment and/or 2,000 penalty units, with no standard non-parole period); and 2. between 23 September 2020 and 3 December 2020 in Barraba and other places in New South Wales, he possessed proceeds of crime, being $80,965 in cash, in circumstances where he knew that the said sum was the proceeds of crime, contrary to s 193B(2) of the Crimes Act 1900 (NSW) (the maximum penalty of which is 15 years' imprisonment, with no standard non-parole period).

Neale

1. Neale pleaded guilty to the offence that between 24 September 2020 and 3 December 2020, in Chittaway Point, he supplied an amount of a prohibited drug, 294.95 g of methylamphetamine, being an amount which was not less than the commercial quantity applicable to that prohibited drug, contrary to s 25(2)(a) of the DMT Act. That offence carries a maximum penalty of 20 years imprisonment and/or 3,500 penalty units with a standard non-parole period of 10 years imprisonment.

Cummins

1. Cummins pleaded guilty to 2 offences. Due to an earlier clerical mistake, the guilty pleas related to an Indictment presented to the Court on the date of sentencing (Exhibit B).
2. The first offence (count 1 on the indictment) was that between 5 November 2020 and 3 December 2020, in Watanobbi in the State of New South Wales, he supplied 826.61 g of methylamphetamine, being an amount which was not less than the large commercial quantity for that drug, contrary to s 25(2) of the DMT Act. The maximum penalty for that offence is life imprisonment (and/or 5,000 penalty units) with a standard non-parole period of 15 years' imprisonment.
3. Cummins also acknowledged his guilt and asked the Court to take into account, when sentencing him for this drug supply offence six additional offences, all occurring on 2 December 2020, at Tuggerah, on a Form 1, being: 1. possessing property ($535) cash being the suspected proceeds of crime contrary to s 193C(2) of the Crimes Act 1900 (NSW) (maximum penalty 3 years imprisonment); 2. possessing a prohibited weapon (a nunchaku) without a permit, whilst unauthorised, contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW) (maximum penalty 14 years imprisonment); 3. possessing a prohibited weapon (a nunchaku) without a permit, whilst unauthorised, contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW) (maximum penalty 14 years imprisonment); 4. possessing a prohibited weapon (ninja stars) without a permit, whilst unauthorised, contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW) (maximum penalty 14 years imprisonment); 5. possession of a prohibited drug (3 g of cannabis), contrary to s 10(1) of the DMT Act (maximum penalty 2 years imprisonment and/or 20 penalty units); and 6. possessing property ($1,200) cash being the suspected proceeds of crime contrary to s 193C(2) of the Crimes Act 1900 (NSW) (maximum penalty 3 years imprisonment).
4. The second offence (count 2 on the Indictment) was that on 2 December 2020, at Watanobbi in the State of New South Wales, he possessed a pistol, being a black 6 mm Airsoft Tokyo Marui Model M1911 Army repeating airsoft pistol not being authorised to do so (by license or permit), contrary to s 7(1) of the Firearms Act 1996 (NSW). The maximum penalty for this particular offence is 14 years imprisonment and it carries a standard non-parole period of four years imprisonment.
5. Cummins also acknowledged his guilt and asked the Court to take into account for sentencing on the above firearm offence, as an additional offence (committed on 2 December 2020 at Tuggerah) on a Form 1, possession of an unregistered firearm, a black 6mm Airsoft Tokyo Mauri Model M1911 Army repeating airsoft pistol, contrary to s 36(1) of the Firearms Act 1996 (NSW) (maximum penalty five years imprisonment).

Scott

1. Scott pleaded guilty to the offence that between 15 August 2020 and 1 October 2020, in Killarney Vale in the State of New South Wales, he supplied an amount of methylamphetamine (453.05 grams) exceeding a commercial quantity applicable to that prohibited drug, contrary to s 25(2) of the DMT Act. This offence carries a maximum penalty of 20 years imprisonment and/or 3,500 penalty units with a standard non-parole period of 10 years imprisonment.

The police investigation

1. In what follows in this section of these Remarks, I have adopted paragraphs 1-16 of the Agreed Facts commonly agreed by - and applicable to - the co-offenders.
2. In March 2020, police investigators in the Tuggerah Lakes initiated Strike Force Harle and, at the same time, officers in Tamworth commenced Strike Force Kunderberg. Both initiatives were targeting the supply of the prohibited drug methylamphetamine, or 'ice'. Strike Force Harle was directed to Central Coast; Strike Force Kunderberg was directed to the Tamworth area.
3. The co-offenders Hanrahan (and another co-offender not now before the Court for sentencing, Brooks) operated from the Tamworth area.
4. The co-offenders Scott, Cummins and Neale (and co-offender Marshall, sentenced in separate remarks; and two other co-accused not now before the Court, being Weis and Carruthers) were identified as operating from the Central Coast area.
5. As part of the police operations, police lawfully intercepted mobile telephone services used by the offenders, Hanrahan, Scott, Cummins and Marshall.
6. I will now address the roles of the co-offenders now before the Court for sentencing.

Marshall

1. Marshall lived on the Central Coast. He sourced quantities of Methylamphetamine from an upline supplier in Sydney. He supplied quantities (between 2-6 ounces) of Methylamphetamine to Hanrahan in Tamworth, by utilising Cummins, Scott and Carruthers, to deliver the drug to Hanrahan and to collect the payment for the drugs.
2. Marshall repeatedly urged and tried to arrange for Scott, Cummins and Carruthers not to travel at night, so as to avoid travelling during 'RBT' times and avoid sending the same car to Tamworth, two days in a row, to avoid suspicion and police detection.
3. Marshall and Cummins arranged for Cummins and Carruthers to have work-related reasons, or cover stories to be in the Tamworth area, to deflect suspicions as to their reason for travelling.
4. Marshall also supplied Methylamphetamine on the Central Coast, again, using Carruthers and others to deliver drugs and collect the payment.

Hanrahan

1. Hanrahan bought and received Methylamphetamine from Marshall (delivered by various couriers), for the purposes of supply, including to another co-offender not now before the Court (Brooks).

Neale

1. On two occasions, Marshall used Neale to collect Methylamphetamine from the upline supplier in Sydney and bring it back to him on the Central Coast. Neale also supplied Methylamphetamine on the Central Coast at Marshall's direction.

Cummins

1. In November 2020, Cummins helped Marshall to prepare and co-ordinate supplies of Methylamphetamine between Marshall and Hanrahan. He also acted as a liaison between Marshall and the couriers, and co-ordinated Carruthers to transport Methylamphetamine to Hanrahan.
2. Marshall and Cummins arranged for the latter and Carruthers to have work-related reasons, to be in the Tamworth area, to deflect suspicions as to their reasons for travelling.
3. Cummins also directly supplied his own customers on the Central Coast.

Scott

1. In September 2020, Scott helped to arrange and prepare supplies of Methylamphetamine between Marshall and Hanrahan. He also delivered the drugs to Hanrahan and collected the cash for Marshall.
2. Scott also supplied his own customers on the Central Coast region between August and September 2020.

Brooks

1. Brooks purchased and received Methylamphetamine from Hanrahan for the purposes of on-supply.

Facts concerning the co-offenders' respective offending

1. As will be seen, the facts surrounding each offenders' offending are to a substantial degree inter-linked. Unfortunately, for ease of understanding, and better transparency, this will require some repetition.

The principal offence

1. The drug supplies in relation to Hanrahan fell into two broad categories. The first category relates to the principal offence whilst the second category relates to one of the offences on the Form 1. The first category involved receiving and attempting to receive methylamphetamine from Marshall for the purpose of supply. There were eight occasions of receiving for the purpose of supply. There was one occasion of attempting to receive for the purpose of supply. The nine occasions yielded 1,120 g.
2. During the intercepted calls, which organised the drug supplies, common codes were used and understood by the offenders. Thus "ounce" meant 28 g; "Ball" referred to 3.5 g (1/8 of an ounce) and "1/2 Ball" meant 1.75 g. Although during the calls organising the supplies from the Central Coast, some more obscure codes were also used.
3. Dealing, firstly, with the principal offence that concerned the receipt and attempted receipt of methylamphetamine from Marshall for the purpose of supply, there were eight detailed particulars: 1. receipt for supply of 56 g on 24 September 2020: the co-offender Scott drove to Tamworth to supply this quantity (this having been arranged by Marshall) and Hanrahan drove 45 minutes, out of Tamworth, to meet Scott and to receive this quantity of the drugs; 2. receipt for supply of 140 g on 25 September 2020: Hanrahan had several communications with Scott indicating that he needed more. Following these communications Marshall arranged to supply Hanrahan with this quantity. On this day Scott drove from the Central Coast to Manilla, during which travel, Hanrahan closely monitored Scott's progress to coordinate a meeting for the supply. Hanrahan met Scott, at a rest stop outside Manilla, and received the said quantity. Following the supply, in a telephone conversation, Hanrahan asked Scott if he could influence Marshall to reduce the price of the next supply; 3. receipt for supply of 140 g on 28 September 2020: on 27 and 28 September 2020, there were multiple communications between Hanrahan and Scott and also between Scott and Marshall, regarding Marshall's supply of drugs to Hanrahan. Marshall agreed to supply the said quantity to Hanrahan for the sum of $40,000. On this day Scott left the Central Coast with that quantity to deliver the drugs to Hanrahan; during which period of travel Hanrahan checked on Scott's progress. Hanrahan eventually supplied payment to Scott for the drugs for delivery to Marshall. But on the return trip at 1:35 AM, Scott was pulled over by police. His car was searched and police located 13 g of methylamphetamine and $63,250 cash; 4. receipt for supply of 140 g on 7 November 2020: after phone calls on 6 and 7 November 2020, between Marshall and Hanrahan, Marshall agreed to supply Hanrahan with this quantity for $42,000. Marshall directed another co-accused, Weis (not now before the Court), to collect the drugs from the upline supplier in Sydney; and then directed the co-offender Cummins to courier the drugs to Hanrahan at Tamworth. Cummins drove from the Central Coast and delivered this quantity to Hanrahan in exchange for a $42,000 cash payment. Cummins then returned with the money and gave it to Marshall. 5. receipt for supply of 168 g on 11 November 2020: on 10 and 11 November 2020, Hanrahan, Cummins, and Marshall exchanged a series of coded phone calls culminating in an arrangement for Marshall to supply this quantity to Hanrahan. Cummins and Marshall determined that Carruthers would courier the drugs to Hanrahan and collect the payment. Cummins collected the drugs from Marshall and gave them to Carruthers who couriered them to Hanrahan and collected the payment. Cummins collected the drugs from Marshall and gave them to Carruthers, who couriered them to Hanrahan's address in Barraba, on that day. Hanrahan received this quantity, for the purposes of supply and paid the sum of $51,000 to Carruthers. Carruthers then returned to the Central Coast and gave that sum of money to Cummins, who ultimately passed it on to Marshall; 6. receipt for supply of 168 g on 17 November 2020: on 16 and 17 November 2020, Cummins and Hanrahan, as well as Marshall and Cummins, exchanged phone calls and arranged for Marshall to supply this quantity to Hanrahan for the price of $51,000. The co-accused Weis was directed to collect the drugs from the upline supplier in Sydney. Cummins couriered the 168 g to Hanrahan's address and received the payment of $51,000. He then returned to the Central Coast and gave that sum of money to Marshall; 7. receipt for supply of 56 g on 24 November 2020: on this day Hanrahan, Cummins and Marshall exchanged phone calls and Marshall ultimately arranged to supply Hanrahan with this quantity. Arrangements were also made for Hanrahan to pay $51,000 to discharge an old debt, plus $500 for delivery by Carruthers as well as a promise to pay for those two "ounces" in the future. Cummins arranged for and directed Carruthers to courier the drugs from the Central Coast to Hanrahan's home ($500) and to use some of the ice being transported if he felt tired. Carruthers attended Hanrahan's house (at Barraba). Police surveillance observed Carruthers suppling Hanrahan with this quantity and collected the sums of $51,000 and $500 as his fee for delivering the drugs to Hanrahan; 8. receipt for supply of 140 g on 26 November 2020: on 25 and 26 November 2020 Marshall arranged to supply Hanrahan this quantity for the sum of $42,500. On 25 November Neale was directed by Marshall to go to Sydney and collect 168 g from the upline supplier and to return it to Marshall, which Neale did on 25 November. On 26 November Cummins collected the drugs from Marshall's house, and after checking and measuring their quantities, arranged for Carruthers to transport the drugs. Carruthers couriered the drugs from the Central Coast to Hanrahan's home. Police observed Carruthers attending Hanrahan's house. Hanrahan paid the sum of $42,500 for this quantity. Carruthers returned to the Central Coast and delivered the cash to Cummins. Cummins took the cash to Marshall; 9. attempted receipt for supply of 112 g on 2 December 2020: on 1 December 2020, telephone calls between Cummins, Hanrahan and Marshall culminated in an arrangement that Marshall would supply Hanrahan with this quantity for a sum of money. The co-offender Neale was directed to convey the quantity to Cummins' house. Upon receipt, Cummins ascertained that the amount of ice received was slightly underweight. He adjusted for the situation and directed Carruthers to courier the above quantity to Hanrahan. At about 4:00am on 2 December 2020, Carruthers left the Central Coast and started driving towards Hanrahan's house at Barraba. He consumed a quantity of ice in order to keep himself awake. But at or about 7:30am police stopped Carruthers. They searched his vehicle and located two re-sealable bags of ice. Police surveillance observed that Hanrahan was awaiting delivery of the drugs at his residence.

The supply to Brooks

1. For the first of two additional offences on the Form 1 (seq 12), it is agreed that between 15 November 2020 and 2 December 2020, Hanrahan agreed to supply and did supply a co-offender, Brooks, on five occasions, a total of 133 g of methylamphetamine. The particulars of these transactions appear at Agreed Facts 55-62 (incl).
2. On 1 and 2 December 2020, police obtained search warrants for various locations believed to be connected with the supply of drugs. At 10:25am on 2 December 2020 police executed a search warrant at Hanrahan's house. The warrant was electronically recorded on video. After police attended the front door, which was answered by Hanrahan, Hanrahan attempted to slam the door and run away inside the dwelling; but police forced the door open which hit Hanrahan in the head.

The proceeds offence

1. In respect to the second of the additional offences on the Form 1 (seq 20), during the search, the sum of $77,500 was found on Hanrahan's bed. Another amount of cash, being $2,715, in various denominations, was located under clothing on the bed in the main bedroom. A further sum of $750 was found inside his wallet. Hanrahan told police, at the scene, and in his later ERISP, that he had found the cash the day before in a park in Tamworth.
2. At the sentencing hearing, he was asked by his Counsel what he expected would happen with the money and Hanrahan replied that he owed it to an associate on the Central Coast.
3. The total amount of cash found during the search warrant was $80,965.
4. After Hanrahan was arrested, he agreed to take part in an ERISP interview. He denied involvement in organised drug supply with the co-offenders, or the drugs being delivered to his home. After he was told by police that they had been intercepting him and other co-offenders he was asked if that changed anything (in terms of his willingness to talk to police) and he indicated that it might, but still he denied involvement.
5. Hanrahan told his psychologist, Ms Sidhu, that he engaged in the offending to support his drug addiction.

Neale

1. Neale's offending fell into two broad categories. The first concerned his supply to Hanrahan; on two occasions; which amounted to the supply of 252 g of methylamphetamine. The second category of offending concerned his supply to Marshall's customers on the Central Coast. These amounted to 13 separate occasions of couriering and supplying methylamphetamine to Marshall's customers on the latter's behalf. I will address that further when dealing with the additional offences below.
2. When interpreting the various calls and text messages regarding Neale's supplies, common coded terms were as follows: 'Half Gram', 'Half G' or 'HG' meant 0.5 g; 'Gram' or 'G' mean 1 gram; 'Half Ball', 'Half B' or 'HB' meant 1.75 g; 'Ball', 'game of soccer' or 'B' meant 3.5 g; 'Half Ounce', 'Half', 'Half Occer' 'Half a Big One' meant 14 g and 'Ounce', 'Oz', 'O', 'Full One' or 'Big One' meant 28 g.
3. Dealing with the first category of offending, details of this were as follows: 1. supply of 140 g to Hanrahan on 26 November 2020: on 25 and 26 November 2020, Marshall arranged to supply Hanrahan with this quantity for $42,500. Marshall arranged with an upline supplier in Sydney to receive 168 g in order for him to supply Hanrahan. He arranged for Neale to go to Sydney and collect this quantity from the upline supplier and to return to Marshall. Neale did this before returning and delivering the drugs to Marshall. However, when Marshall weighed the drugs, he learnt that they only weighed 157.5 g. Further transactions or activity occurred but this did not involve Neale. 2. supply of 112 g to Marshall on 1 December 2020: between them, Cummins, Hanrahan and Marshall agreed that the latter would supply Hanrahan with 112 g for a sum of money. On 1 December, Marshall arranged for Neale to go to Sydney and collect this quantity from an upline Sydney supplier. Neale duly did this, before returning and delivering the drugs to Marshall. However, again, when Marshall inspected the drugs he realised that they were "short" and Marshall made other arrangements to increase their weight. In the meantime he directed the offender Neale to convey the quantity of drugs just obtained to Cummins' house. There was, again, further transactions and activity in relation to the conveyance of these drugs but this did not involve Neale.
4. Dealing with the second category of offending, being supplies on the Central Coast between 10 November 2020 and 3 December 2020, Marshall agreed to supply methylamphetamine on 13 separate occasions on the Central Coast, where he used Neale as a courier of the drugs and to collect payments for them. This included supplies, between 1 g and 7 g in quantity of the drug to a number of different people, totalling 42.95 g. A schedule of the dates, quantity supplied and the amount of money charged for each supply was contained in Annexure A to the agreed facts.
5. In the course of Marshall's arrangements for these supplies, in one of his calls to him, Marshall had complimented Neale as being a valuable employee "doing the things that make it all happen" and being a "key player"; although this was obviously flattery. In respect to his involvement, Neale accepted cash for the quantities of drugs he had supplied. Other than the supplies which were the subject of Annexure A, the amounts that customers were charged varied on a scale of price depending upon the quantity of the drug. The precise details appear in Agreed Fact 40.
6. On 2 December 2020, police executed a search warrant of Marshall's premises at Chittaway Point. When they did so, the offender Neale was present. Outside those premises, was located a blue Toyota Kluger motor vehicle in which 1.7 g of ice was located. The offender Neale had been seen by police driving this motor vehicle on multiple occasions.
7. After his arrest, Neale was interviewed by police. He denied certain transactions as involving him whilst expressing no comment about others. He did however state that he knew Marshall and had been a friend of Marshall's for six months (whilst denying that he had assisted the latter in supplying ice); he also agreed that he knew Cummins and generally had demonstrated knowledge of drug code that had been used in communications in which he was implicated.
8. In his evidence at his sentencing hearing, Neale said that his only role was to act on Marshall's direction. He had nothing to do with, and had no knowledge of, the quantities or prices of the drugs that were supplied. In cross-examination, Neale acknowledged that there were occasions when he understood that the quantities of drugs he collected were 'too little'. Asked if he ever refused a request from Marshall, he said that he had a couple of times.
9. Neale was referred to the part of the conversation with Marshall in which the latter had referred to him as being a "key player". Neale said he interpreted this as being a joke. Other than collecting and delivering the drugs, he said he had no role.

The Cummins drug supply offence (Count 1)

1. Cummins' offending fell into essentially three categories concerning the supply of ice. The first category concerned supplies and an attempt to supply to Hanrahan on five occasions (actual supply) or one occasion (attempted supply) for a combined total of 784 g and for payments totalling $238,000.
2. The second category concerned 20 supplies to customers and other suppliers on the Central Coast. On one occasion he facilitated a supply between Marshall and Carruthers (which was destined for Scott). On another occasion he couriered and supplied drugs on Marshall's behalf. On the remaining 18 occasions he supplied to customers or other dealers. The aggregate quantity of ice that was supplied across these 20 supplies was 37.25 grams. The amount of money received for these 20 supplies was approximately $12,600.
3. The third category was a small amount (5.36 g) of ice located in his car when searched by police, for the purpose of supply.
4. Combining these three categories of offending, between 6 November 2020 and 2 December 2020, the total amount of ice supplied was 826.61 grams.
5. As to the first category of offending, details of his supply (and attempted supply) of ice to Hanrahan were as follows: 1. supply of 140 g on 7 November 2020: 2. supply of 168 g on 11 November 2020: 3. supply of 168 g on 17 November 2020: 4. supply of 56 g on 24 November 2020: 5. supply 140 g on 26 November 2020: 6. attempted supply of 112 g on 2 December 2020
6. As to the second category of offending, concerning Cummins' supplies on the Central Coast, detailed particulars of the 20 occasions (at least) on which this occurred throughout November 2020 were set out in Annexure A to the statement of agreed facts.
7. To the extent that some of these were direct supplies to his own customers, some of them included the co-accused Carruthers and others. There were text messages and/or phone calls in which Cummins and the relevant purchaser discussed price and quantity. Cummins would then deliver the agreed quantity to the purchasers' locations or, alternatively, he would ask them to come to his home or further alternatively, they would meet at an agreed meeting spot. In each of those transactions, Cummins would receive payment by alternative forms, including cash, EFT, payment of all debts or a combination of these alternatives. Other than the detailed list of prices set out in Annexure A, Cummins would charge his customers in a price range referable to quantity, being between $200 and $300 for a 0.5 g deal; and between $4000 and $5000 for a 14 g deal.
8. Two examples of these supplies in the Central Coast were as follows. On one occasion it was on behalf of Marshall. This occurred when Marshall arranged for the supply of 7 g to a customer ('S') for $2000. Marshall directed Cummins to meet with the customer and supply that quantity which he did. Cummins called Marshall to confirm that the supply had occurred. On another occasion, on 13 November 2020, Cummins contacted Marshall and acted as a liaison for the supply 1.75 g, from Marshall to Carruthers, for $650.
9. Cummins was arrested on 2 December 2020 in Tuggerah. Cummins had been walking with another man towards a motor vehicle that was parked outside the Officeworks shop. On this occasion, his person was searched and police located a wallet with the sum of AUD $535 (this being one of the additional offences - Seq 14 on the Form 1 attached to the Cummins drug supply offence). Police informed Cummins that the motor vehicle would be searched and asked him if there was anything in the motor vehicle that should not be there. Cummins admitted that within his backpack, which was in the car, there were some drugs. Police located the bag and Cummins indicated that the gear was in the front pocket. Police opened the bag and saw in the front pocket a clear bag containing a quantity of ice. They also located an M&M container with two plastic bags containing ice and a further plastic bag containing ice. The three bags were later found to have 5.36 g of ice across them.
10. Police also located a Nunchaku in the motor vehicle. This amounted to a contravention giving rise to another additional offence - seq 15 - attached to the Cummins drug supply offence.
11. On 2 December 2020 police executed a search warrant, granted earlier that day by the Wyong Local Court, on Cummins' home at Watanobbi. What they located there were items of property which gave rise to six additional offences (seq 16, 17, 18 & 19) on the Form 1 attached to count 1 and the additional offence on a Form 1 attached to count 2.

The Cummins firearm offence (Count 2)

1. The 6mm Airsoft Tokyo Marui model M1911 Army repeating airsoft pistol which is the subject of the Cummins Firearm offence was located in Cummins' bedroom. Police did not test it for functionality but, when functional, it is capable of firing BB pellets. Cummins was not authorised to possess this firearm. A photograph of this pistol was annexed to the agreed facts.

Additional offences on Form 1s (attached to Count 1)

1. I referred a moment ago to the sum of $535 cash found in Cummins' wallet (seq 14). Located within the motor vehicle was a Nunchaku, which the offender was not authorised to possess (seq 15). Located within the inside of the wardrobe in the bedroom was one Nunchaku. Cummins was not authorised to possess this (seq 16).
2. Located within the cabin was five Ninja stars (seq 17). Cummins was not authorised to possess them. A photograph of these was also annexed to the agreed facts. Also located during the search was 3 g of Cannabis (seq 18), cash in the sum of $1,200 (seq 19) and 4 separate Tick Lists.

Motive for offending

1. Cummins later explained to his psychologist, Ms Godbee, how he came to become involved in the offending. He stated to her that he had lost his job, due to Covid-19 restrictions and was training a friend in martial arts, in exchange for money. The friend asked him to do a drug-run for him as Cummins knew the person who was receiving the delivery. But after two occasions he was dissatisfied with the money he was receiving, proportionately to the risk.

Scott

1. Scott's offending, which involved the supply of ice, fell into two general categories. The first was supplies of ice to Hanrahan on three occasions. This was for the purposes of on-supply by couriering a combined total of 336 g of ice for the aggregate sum of between $85,500 and $120,000. The second category concerned his direct supply of ice to other customers or dealers, on 28 occasions; and, on one occasion, the supply of 1.75 g of ice to a customer Chan. In respect to these 29 supplies, the aggregate quantity of ice that was supplied was 117.05 g and the amount of money received for those 29 supplies was between $42,950 and $48,080.
2. As to the first category of offending, comprising supplies to the co-offender Hanrahan, the details of these three instances were as follows: 1. supply of 56 g on 24 September 2020: Marshall arranged for Scott to deliver this quantity to Hanrahan in Tamworth. Hanrahan drove his vehicle 45 minutes out of Tamworth to receive this quantity. 2. supply of 140 g on 25 September 2020: on 24 September, Hanrahan contacted Scott and indicated that he had already run out of ice and needed more. There were a series of calls between Hanrahan and Scott; and also between Scott and Marshall on 24 and 25 September. Marshall arranged to supply Hanrahan with another 140 g. On 25 September Scott drove from the Central Coast to Manilla with the said quantity. Hanrahan met Scott at a rest stop outside Manilla to receive the quantity. In a telephone call after this particular supply, Hanrahan asked Scott if he could influence Marshall to reduce the price of the next supply; 3. supply of 140 g on 28 September 2020: after telephone calls exchanged between Hanrahan and Scott, and between Scott and Marshall, on 27 and 28 September, Marshall agreed for the supply of a further 140 g to Hanrahan for at least $40,000. On 28 September Scott left the Central Coast with the said quantity to deliver the drugs to Hanrahan. Hanrahan supplied payment to Scott to deliver to Marshall. But on his return trip at 1:35am on 29 September Scott was stopped by police. His car was searched and police located 13 g of ice and the sum of $63,250 cash.
3. As to the second category of offending, in the period from 15 August to 30 September 2020, Scott agreed to supply and did supply ice on at least 29 separate occasions, in the Central Coast region to a range of individual customers (one of whom included the co-offender Neale and co-accused Weis). The details of these transactions were set out in a schedule being Annexure A to the agreed facts for this offender. This period coincided with the supplies to Hanrahan. In each case there were a series of text messages and/or calls exchanged between Scott and the purchaser where price and quantity was discussed. Scott would then deliver the agreed quantity at the purchasers location, or his own home or some other agreed meeting spot. Scott accepted payments in the alternative forms of cash, EFT, payment of all debts or a combination of these forms, for the supplies. He charged his customers on a scale depending upon the quantity of the supply ranging from between $200 and $300 for a 0.5 g deal and between $6,500 and $10,000 for a 28 g deal.
4. At 1:35am on 29 September 2020, Scott was stopped in his hire car, in the Muswellbrook area, just after he had supplied Hanrahan that day. This is referred to earlier in these remarks. His mobile phone was examined and an extensive history of drug related communications was observed. He was arrested and subsequently released on bail.
5. Whilst on bail, Scott called Cummins and asked Cummins to get him 1.75 g of ice. Cummins thereafter contacted Marshall and acted as a liaison for the supply of that quantity from Marshall to Carruthers.
6. At 11:30am on 3 December 2020, police were executing a search warrant at Scott's premises at Killarney Vale. Scott was located in the garage. Scott was arrested and his new mobile phone was seized. He was conveyed to Wyong Police Station. As will be detailed later in his subjective case, he later pleaded guilty to two offences and on 7 December 2020 was sentenced in the Muswellbrook Local Court. As will later be indicated, he successfully appealed the severity of the sentence imposed and his head sentence and non-parole period for the aggregate term of imprisonment was reduced.

Motive for offending

1. Scott subsequently explained the circumstances of his offending to his psychologist, Dr Gilligan. This was to the effect that his life had spiralled after a breakdown in his marriage resulting in homelessness, unemployment and substance dependence. His drug addiction developed to relieve symptoms of hopelessness.
2. Scott very recently told the Nowra Community Corrections Officer (Exhibit B) that at the time of his offending, his concern was to fund his drug (ice) use, which he had developed following a deterioration in his mental health after the failure of his small business (in logistics) and, closer to the offending, after his employment with disability support came to an end in August 2020, due to the Pandemic.

ASSESSMENT OF THE OBJECTIVE GRAVITY OF THE OFFENDING

General factors relevant to the objective gravity of the (commercial) drug supply offence

1. There was no real dispute about the types of considerations relevant to the objective seriousness of the offending. The weight of the drug is significant, but not of chief importance. I adopt, as correct, the Crown's submissions, which were in the following terms: "The Offender's role and the level of criminality involved are more important in determining a sentence than the quantity of drugs involved, but drug quantity and purity remain important factors .. Role is not to be determined by the use of short hand labels but rather by assessing what his or her involvement was in the steps taken to effect supply. Agreements to supply or offers to supply prohibited drugs are each important and essential in the chain of drug trafficking and no generalised statement can be made about the relative seriousness of differing forms of supply".

Identifying the objective gravity of each offender's (drug supply) offending

The Crown's global overview

1. In his closing oral address, Mr Crown drew some threads together which was common to all of the co-offenders in relation to the seriousness of their respective offending.
2. He emphasised that somewhat uniquely, the drug supply offence common to each offender was rolled up and generally featured two discrete categories of drug supply offending. There was, firstly, distribution of drugs. This was from an upline supplier to Marshall; distributed from Sydney to the Central Coast and then distributed from the Central Coast to Tamworth. All of the co-offenders had a role in this distribution network: Neale collected the ice from Sydney; and Marshall planned the distribution to the Central Coast with Neale executing his directions. Marshall (and Hanrahan) planned and executed distribution to Tamworth. Scott (and Cummins) were drivers. Hanrahan received the drugs for supply to a co-offender Brooks for the purpose of on-supply (who was sentenced on 28 January 2022).
3. The second aspect was the street level dealing engaged in by co-offenders Cummins and Scott (on their own behalf on the Central Coast). This was largely indicated by the quantity of the drugs identified in the charges. Marshall had the largest role, then Cummins, then Scott. Neale supplied on Marshall's behalf on the Central Coast.

Submissions

1. The Crown submitted that Hanrahan's conduct placed him within the mid-range. The total quantity of drugs supplied (1,120 g) was well above the minimum quantity for the particular offence, and was engaged in in respect to multiple transactions over the period from late September to very early December 2020. The nature of the transactions went well beyond 'street level' and could be described as 'bulk supplies' which, because of the planning and execution, could be supplied at short notice. The Crown offered two alternative characterisations of the offender's role: first, he was at the pinnacle of his own enterprise in which he sourced drugs from Marshall as his 'upline'. The other was that he was a middle level supplier of a syndicate who sourced drugs from Marshall and who passed them on to Brooks; knowing that the latter would on supply them to others. Regardless, he had some operational independence and was capable of using his relationships with the co-offenders Marshall, Scott and Cummins to ensure the prompt and cost-effective resupply. His offending bore the inherent features of an offence of this kind, comprising planned and organised criminal activity for reward with a multiplicity of transactions.
2. Counsel for Hanrahan submitted that his offending fell below the mid-range of offending. Whilst acknowledging the Crown's points about the quantity of the drugs and the multiplicity of transactions, Counsel said that Hanrahan was a heavy user who engaged in the offending to feed his addiction. There was little or no financial reward: his meagre living circumstances indicated this and there was no evidence of significant profiteering: any such suggestion that there was had not been put to Hanrahan in cross-examination. There was a lack of sophistication in the offending: phones were used which were not encrypted and the codes were not every effective.
3. More generally, and going beyond the aspect of the objective gravity of his client's offending, Counsel for Hanrahan compared his situation generally with the offender in a decision of Tamer v R [2020] NSWCCA 333, another case involving supply of a large commercial quantity of ice, which contained the following features, as summarised by Counsel: quantity (1,060g) supplied on 22 separate occasions; plus additional (in that case 5) offences on a Form 1 (including supply of 167 g and dealing with proceeds); 25% discount for guilty plea; prior criminal history (including drug supply); no mental illness, on a s 9 good behaviour bond at date of offending; 24 years of age at date of offending.
4. In reply, the Crown acknowledged that it could not quantify the extent of any profit-share. It accepted that Hanrahan's was not a case of an offender using proceeds to fund a lavish lifestyle. He was obtaining drugs or amounts of money to feed his addiction. Tamer was not a true comparator as, in that case, the offender's offending had not been aggravated by his being in breach of an ICO and Hanrahan could not rely upon his youth as a mitigating matter.

Assessment

1. Having regard to the admitted quantity of the drugs, the series of acts (including the two distinct categories of offending) and his instrumental role in a network, or syndicate, at Tamworth, I find that the offending fell within the mid-range.

The additional offences on a Form 1

1. The Crown submitted that the additional offence (seq 12) of supply to Brooks represented separate and further criminality to the principal offence which could be characterised as the receipt of drugs from Marshall (through Scott, Cummins and Neale). Hanrahan directly co-ordinated and negotiated in 5 supplies, amounting to 133 grams. The quantities were large (ranging between 21 and 28 grams) and amounted to distributions, where Brooks was a mid-level supplier. He was astute to take steps to avoid surveillance (on occasion, altering a meeting-point due to concerns about the proximity of nearby vehicles) and used codes. Although the offence was on a Form 1, by itself the offending was very serious. The Crown submitted that this offence should substantially increase the penalty for the principal offence as it amounted to what was effectively the on-supply to the street level dealer and user; a separate category of transaction to the receipt of the drugs from Marshall.
2. However, the Crown submitted that the sentence for the principal offence should not be increased by the proceeds offence (seq 20), which essentially comprised the rewards, or results of the offending.
3. Counsel for Hanrahan submitted that the seq 12 offence did not significantly elevate the seriousness of the offending on the drug supply offence. It stood to reason, or as I had raised as a possible characterisation of the offending based upon my understanding of Counsel's argument, that this additional offence was the other side of the same coin, relative to the principal offence; that having received a substantial quantity (1,120g) he would on-supply a part of it (133 g). The gravamen of the offending was receiving and on-selling the drugs and the criminality largely fell in the receipt.
4. Counsel for Hanrahan accepted what the Crown submitted on the proceeds offence (seq 20).
5. I accept the Crown's submissions on the additional offence of supply to Brooks. The on-supply was a discrete and significant form of offending, encompassing multiple criminal acts for the expectation of deriving a not insubstantial sum of money and the additional offence might have been treated as part of the principal offence. The offending substantially elevates specific deterrence and retribution. Consistently with the positions of the Crown and Hanrahan's Counsel, however, the proceeds offence does not increase the penalty for the supply offence.

Aggravating circumstances

1. At the time of his offending, Hanrahan was in breach of a Community Corrections Order, of 15 months duration, imposed by the Wyong Local Court on 3 June 2020 for the offence of drug possession (cannabis) on 13 November 2019. In addition to the standard conditions, this was subject to supervision condition, an abstention from drugs and alcohol condition and maintaining follow up with a psychologist.
2. He was also in breach of an Intensive Corrections Order imposed by this Court on 5 April 2019, of 18 months duration, for the principal offence of possessing a prohibited drug (14.39g of methylamphetamine), with two other related offences (possession of 4g of cannabis and possession, or attempted possession of a prescribed substance, Xanax) in January 2018.
3. The Crown submitted that the level of aggravation for an aggravating factor is increased when the offending conduct is similar to that for which the offender is being sentenced (Frigiani v R [2007] NSWCCA 81) and emphasised how it evinced continued disobedience to the law and disregard to Court orders.
4. Hanrahan was asked about his record when he gave evidence at the hearing. He acknowledged that the breach of the condition in the ICO occurred two weeks into the period of his offending.
5. Counsel for Hanrahan did not disagree that the aggravating circumstances occurred; but submitted that although the offending commenced when he was subject to an ICO, not all of the offending had. Indeed most of it fell outside the period of the ICO.
6. I do not regard that submission as being persuasive other than to suggest that the weight to be given to the aggravating factor could have been worse than it was. What makes this factor an aggravating circumstance is what it shows about the offender's attitude to compliance with court orders and, in particular, his disobedience to earlier court orders which, effectively, had given the offender the benefit of the doubt as to how he might serve a term of imprisonment for earlier offending. That, in itself, bears upon considerations of specific deterrence, his rehabilitation prospects and the significance to be given to imposing a sentence which protects the community.

Submissions

1. The Crown emphasised that there were 15 separate transactions over approximately 2 months and 10 days: 2 of those transactions involved his on-supplying from Marshall (from the latter's upline supplier) to Hanrahan; and 13 transactions involving Neale's supply (at Marshall's behest) on the Central Coast. The total quantity was 294.95 g. That quantity was more than 50 grams beyond the minimum for this offence.
2. As to the 2 transactions with Hanrahan, the two quantities were significant and best characterised as 'bulk supplies' (and not 'street level' supplies). Hanrahan had requested them and Marshall arranged to provide them; using Neale to courier them but also occasionally using him as a cashier.
3. As to the 13 transactions, he delivered the quantities, at Marshall's request, to users, and took payment (either for debt forgiveness, cash, EFT or future promise of payment) on his behalf.
4. The Crown highlighted a statement Neale had made to his psychologist, being that his motive was to "make money" and his offending was a "means of generating income". He was sufficiently involved so as to be able to co-ordinate the type of payment and other details, and was familiar with the price list.
5. As with the other co-offenders, the Crown argued that his derivation of financial reward from a multiplicity of transactions was to be treated as relevant to the objective gravity of the offending; rather than as aggravating factors (in the statutory sense in s 21A).
6. Counsel for Mr Neale submitted that his client was merely a courier. He had no client base of his own and always acted at Marshall's direction. It was argued that there was no evidence of any sophisticated commercial arrangement. The rewards he obtained must have been modest: he had no assets. That, essentially, indicated that his offending fell at the low end of objective gravity.

Assessment

1. Having regard to the quantity supplied (a particularly significant factor in my assessment) and his role, principally, as a courier (to use a convenient shorthand label), I find that Neale's offending fell below the mid-range. I am mindful of the rolled-up nature of the two categories of offending in this regard. Because of his knowledge of certain matters, through his dealings with Marshall, and separate dealings with Hanrahan, his offending fell above the lowest end of the range.

Submissions

1. The Crown emphasised that the quantity of the drugs supplied, being 826.21 g, was more than 300 g above the minimum quantity for the offence. The supplies occurred pursuant to many transactions occurring over a period of approximately 29 days.
2. The Crown addressed each of the categories of Cummins' offending: the 5 quantities supplied to Hanrahan were bulk supplies and not street level supplies. Marshall had used Cummins (who sometimes acted as an intermediary between Marshall and the co-accused, Carruthers) for the latter's transportation of the drugs and collection of the payments back to him before Cummins passed the monies back to Marshall to courier these supplies to Hanrahan, often at short notice. He was more than a courier though: he arranged for Carruthers to have work-related reasons for being in Tamworth; and on one occasion, allowed his house to be used for the co-offender Neale to bring the drugs. Marshall trusted or relied upon him to co-ordinate with Carruthers. But Cummins also dealt with Hanrahan himself, meeting him at certain arranged locations; helping to package the drugs and receiving payments from Hanrahan.
3. Aside from the supplies to Hanrahan, however, Cummins was a direct supplier to customers and dealers on the Central Coast. There were 20 such supplies amounting to 37.25 g. He delivered the agreed quantity to the purchaser's location. The Crown characterised this part of his offending as being a side business to the core (or 'bulk') supplies to Hanrahan, but was redolent of similar aspects of planning for multiple transactions. The Crown alluded to Cummins' admission to his psychologist about engaging in the offending for financial gain.
4. Counsel for Cummins submitted that, on count 1, his client's conduct fell at the lower end of the scale of objective seriousness. Counsel emphasised that, within the bracket for this particular offence (large commercial quantity), the quantity, overall, fell at the lower end of the scale. Quantity was a very significant consideration on the objective gravity of the offending. Cummins was not placed high in the hierarchy. His role was principally to act as a courier in transporting the drugs to Tamworth. Relative to Marshall, his discussions with Hanrahan were limited. This was illustrated by the circumstance that in all instances, it was Marshall who sourced the drugs from an upline supplier. It was also illustrated by the modest fee he received for transportation. If, as the Crown suggested, he acted in a way to deflect attention away from himself, it was not especially sophisticated.
5. As to the second aspect of his offending, concerning his own actions as a street dealer, in most instances, the quantities were small (weighing less than 1 g) in return for which he received modest payments (being $650 or less). There was nothing to suggest that his offending produced an extravagant lifestyle indicative of handsome financial reward.
6. The timeframe for the offending was only a month.
7. Counsel for Cummins argued that his client was not motivated by greed. Cummins had a long-term drug addiction and, having lost his job during the early stages of the Pandemic, became involved in 'pre-existing' arrangements (presumably offending already planned without him) to pay existing drug debts and to support his habit.

Assessment

1. But for his own direct supplies, I would have found more persuasive the submissions of Cummins' Counsel about the objective gravity of the offending. But there were two discrete categories of offending, both of which were very serious, engaged in over a not insubstantial period. Further, although the quantity in relation to his direct supplies was relatively modest, when combined with his supplies to Hanrahan, the value of the transactions was in excess of $250,000. The quantity supplied, overall, also very comfortably surpassed the minimum for this bracket. I find that the offending fell within the mid-range, but at the lower part of that.

Additional offences on a Form 1 attached to Count 1

1. The Crown referred to the Nunchaku (the subject of seq 15) and cash (the subject of seq 14), and other items (especially weapons) recovered, and suggested that no purpose was advanced by Cummins for his possession of them. It submitted that the inescapable inference was that they were tools of the drug trade.
2. In circumstances where Cummins admitted that his loss of employment contributed to his decision to offend, I accept that the cash that was located was linked to his offending. Further, for this particular weapon (seq 15) it was located in the vehicle used for his offending when it was searched by police. So was the 5.36 g of ice. I accept the inference that it was also connected with the offending and a tool of trade. I further accept that these additional offences on the Form 1, at least, should add to the penalty for the drug supply offence (count 1).
3. The Crown submitted, in contrast, that sequences 14 and 19 were part of the proceeds for count 1, being two halves of the whole lifecycle for that offending, and should not serve to increase the penalty for that principal offence. I accept that submission.

Factors affecting the objective gravity of the Firearms offence

1. Cummins did not cavil with the correctness of the Crown's submissions identifying the salient considerations affecting the gravity of this offence, which I adopt. "Unauthorised possession of firearms is calculated to lead to substantial damage .. The length of time the person was in possession of the firearm is relevant .. Possession even for non-criminal purposes is generally not regarded as a matter in mitigation. An offender's criminality is more serious where he or she possesses a firearm as part of their involvement in crimes such as trading in illegal drugs and the Courts should discourage any tendency for such objects to become just tools of trade for those whose activities are outside the law."
2. Cummins' Counsel submitted that count 2 was not very serious, in terms of its effect on any aggregate sentence, and therefore did not add much. It was a distinctive firearm which did not fire conventional ammunition but was an airsoft pistol which, it was said (without dispute), was capable of being utilised in other jurisdictions without license, for recreational purposes. Counsel produced a table of some cases to prove the proposition that the character of this weapon was indicative of a less serious instance of offending relative to conventional weapons.
3. There was no evidence to indicate that any ammunition had been located. There was no evidence that the firearm itself was functional. Although it was found at his home, indeed in his bedroom, there was nothing to indicate any connection with his drug trafficking. This offending fell at the low end of the range.
4. The Crown substantially agreed with this. The Crown acknowledged that the firearm was not at the apex of any hierarchy of weapons.
5. I accept Cummins' submissions and find that the offending for count 2 fell at the lower end of the range for this type of offence. Nevertheless, considerations of general and specific deterrence, denunciation and retribution explain the indicative sentence of imprisonment for this offence, albeit for a short term.

The additional offence on a Form 1 for Count 2

1. Counsel for Cummins submitted that the additional offence on the Form 1 attached to count 2 was immaterial. The only difference was that for the principal offence, the firearm was unauthorised; whereas on the additional offence it was unregistered.
2. The Crown submitted that there was a material difference between the additional offence and the principal offence to which it was attached. The principal offence (count 2) indicated that Cummins had no license or permit to use the weapon. The additional offence on the Form 1 attached to count 2 indicated that it was unlawful for him to possess the weapon. Nevertheless, the Crown accepted that the additional offence did not substantially elevate the consideration of retribution on the principal offence.
3. I consider that the Crown's concession was correct. I do not treat this offence as materially elevating the penalty for the firearms offence (count 2).

Submissions

1. The Crown submitted that Scott's supplies, to Hanrahan and his customers on the Central Coast, which occurred over a period of 1 month and 20 days was in a total quantity of 453.05 g. That was more than 200 g beyond the minimum quantity for this offence. Addressing only the component of the 117.05 g direct supplies in the Central Coast, the number (28-29) of the transactions and the sophistication in which the supplies were made itself placed the offending in the middle to high range of offending. A stable price list had been arranged. For these particular customers, Scott handled all levels of negotiations and entry into agreements. The Crown submitted that there was likely a degree of profit-making in these activities even if that could not be quantified.
2. The Crown characterised Scott's dealings with Central Coast customers as a side business to the main event, or core offending, being the supplies to Hanrahan. Viewing that other component, of supplies to Hanrahan, the 3 supplies (336 g) were part of carefully planned transactions requested by Hanrahan (but planned and executed by Marshall). Scott was not a passive observer to this. He had, to a degree, negotiated between Marshall and Hanrahan, to such degree that the latter thought Scott could influence Marshall on the price of future supplies. He had a prominent role also in the transportation of supplies to Hanrahan and in the receipt of payments. He met Hanrahan at various arranged and isolated locations and liaised closely with him.
3. The Crown clearly indicated that matters that might be said to be aggravating - the derivation of financial reward, the extent of planning and organised activity, the series of transactions - were part of the inherent nature of the offending so accordingly were not aggravating factors in the strict sense. Nevertheless, they bore on the assessment of objective seriousness.
4. Scott's Counsel submitted that his client's role bore decisively on the objective gravity of his offending. He submitted that his client's role was that of a courier who additionally performed street level supplies; and not a 'trusted lieutenant'. If that submission was accepted, his offending should be assessed as falling below the mid-range. His Counsel emphasised that there was no evidence of what amount of money he received, in terms of profit share. Nevertheless, the Court could infer that he was receiving benefits, probably drugs in addition to the modest pecuniary benefit he obtained. On the other hand, his Counsel acknowledged that if the Crown's characterisation of his role was accepted, his offending could be assessed as falling within the mid-range.
5. The Crown submitted, in reply, that his role was broader than that of a courier. Agreed Facts 23-31(incl) indicated that he was involved in negotiation and the organisation. In particular, he had been contacted by the co-offender Hanrahan to liaise with Marshall to obtain more drugs. He acted as intermediary with Marshall in fixing prices. Although it was true that he did not live an extravagant lifestyle, his offending gave him access to the drugs, to feed his addiction, and he received a modest commission for transporting them.

Assessment

1. Although there was a lesser quantity of drugs supplied in Scott's case relative to Cummins overall, Scott was involved in more supply transactions on the Central Coast. I accept the Crown's contention that Scott's offending was more or less comparable to that of the co-offender Cummins: both were separately and discretely involved in different categories of supply: both supplied to Hanrahan; both had their own street level supplies on the Central Coast. As with Cummins, I find that the offending fell within the mid-range, but at the lower part of that. I note that in Scott's case, unlike Cummins, there were no additional offences relied upon.

Age and background

1. Hanrahan was 45 years of age at the date of his offending.
2. Hanrahan gave evidence at his sentencing hearing.
3. Hanrahan relied upon two reports of mental health professionals, being Dr Brann, a psychiatrist (who wrote in the context of a civil claim for compensation for personal injuries) and Ms Sidhu, a psychologist, (who wrote specifically for this proceeding). Neither practitioner was required to attend for cross-examination.
4. Before I address their opinions and diagnoses, I will refer to his background, in a summary way, that emerges, in particular, from Ms Sidhu's report. I note that when Hanrahan gave evidence, he said he told the truth to both practitioners (Brann and Sidhu) when interviewed by them and the Crown did not challenge that aspect of his evidence.
5. Hanrahan came from parents who had struggled financially. He had one younger brother and two maternal half-brothers (both older than him) from his mother's prior marriage. He was close to his mother and his brothers, but more distant from his father, who he described as being cranky. Indeed, when he was 13 years of age, he punched his father and left the family home. He never resolved his issues with his father, who passed away in 2001. His parents separated when he was aged 15.
6. The darkest episode in Hanrahan's life occurred when, he was sexually abused by his school principal, which he recalled occurred when he was only seven or nine. This sexual abuse, he recalled, occurred over a 4 month period and only ended when the perpetrator left the school. Hanrahan scarcely disclosed this episode to anyone until much later. He told the Court in the sentencing hearing that he was ashamed and embarrassed to do so. It was this episode which induced the level of dysregulation which, amongst other things, contributed to his later punching his father and his leaving of the family home.
7. Unfortunately, after leaving the family home, Hanrahan fell in with an antisocial crowd, who took drugs and drank. This affected him in his teenage years, but not so adversely as to bring him to the attention of authorities as a juvenile.
8. The child sexual abuse affected his schooling. He was well disposed to school prior to the abuse and liked the teachers and peers and needed no special assistance. Afterwards, he did not enjoy attending and engaged in acts of truancy. He did not adapt to high school, continued acts of truancy and sustained several suspensions before being transferred to a school for children with difficulties.
9. After he left school, Hanrahan had several short-term jobs before commencing a trade as a plasterer, which is what he had been doing for most of his working life. His performance had been uneven: he told Ms Sidhu that he had often been sacked on jobs because of his lack of reliability. His main motivation for work was to sustain his drug addiction.
10. When he left the family home when he was 15, he started drinking until two and a half years later when his drug use increased. But his record indicated periods of stopping and starting drinking.
11. His drug use started when he was around 13 years of age. Initially, cannabis was his 'go to' drug. From 17 he started using 'speed' and from 18 years of age, he took to heroin, to which he became addicted throughout his 20s. But he was capable of abstaining from heroin.
12. Hanrahan explained that during the period of his offending, he had been using ice himself, averaging 1 g daily. A few months before his offending, he had moved to Barraba, after having lost his job on the Central Coast (which he attributed to the Pandemic), and after having met a girl (his daughter also lived up in that direction). He explained that his offending was engaged in to feed his ice addiction.
13. Hanrahan told Ms Sidhu that he was in a long-term relationship with a partner who had stuck by him and he also receives the support of his mother and siblings. He is a father of two children from an earlier relationship.
14. At the times of the offending, he had no money, despite paying weekly rent of $250 and a Ford Falcon vehicle.
15. Ms Sidhu believed that notwithstanding early exposure to issues with his father and tensions in his parents' marriage, his early childhood was relatively happy. That was until he was sexually abused at an important time in his life. He took to substances as a coping mechanism and this came to dominate all aspects of his life. His substance abuse was his main problem but underlying it all was the traumatic experience of his child sexual abuse.
16. Dr Brann's focus was upon the effects of the child sexual abuse on his mental health condition. Her report was, with respect, voluminous. I regard as most valuable her opinions on the diagnoses themselves. These were that he suffered from PTSD and Substance Use Disorder.
17. Both Ms Sidhu and Dr Brann agreed that Hanrahan's need to fund his drug addiction was the driver of his offending; which coincided with Hanrahan's own assessment.

Submissions

1. Hanrahan's Counsel submitted that the child sexual abuse contributed to his PTSD, which in turn had caused Hanrahan's descent into ice addiction. That ice addiction, combined with the loss of his job (because of COVID-19) explained the offending. He referred me to a decision of Nasrallah v R [2021] NSWCCA 207 which, he argued, bore some similarity to this case (in the sense of the enduring consequences of child sexual abuse). I note that there was some debate in that decision whether isolated, or repeated instances of sexual abuse on an offender, when a young child, would fall within Bugmy principles, but it appeared from that decision that even if that matter did not place it within the rubric of Bugmy, it would not derogate from the proposition that the past sexual abuse can reduce an offender's culpability; though of course it is a matter of weight and does not automatically lead to a reduction in sentence (per Bell P (as the Chief Justice then was) at [12]-[13] and [24]).
2. Here, the child sexual abuse led to diagnoses of PTSD with panic attacks and dissociative symptoms and the use of drugs for symptomatic relief. The drug addiction served to reduce his moral culpability. Hanrahan submitted that he was mentally ill at the time of his offending and remains mentally ill and this called for the 'sensitive discretionary decision' (R v Engert (1995) 84 A Crim R 67).
3. Hanrahan submitted that by reason of any, or all of, his past child sexual abuse, his mental illness and/or ice addiction, the seriousness of his offending and his moral culpability for it was reduced. This meant that the considerations of general and personal deterrence, denunciation and adequacy of punishment did not require significant emphasis.
4. Although Mr Crown did not ultimately dispute Dr Brann's finding of PTSD, because of the repetitive and planned nature of his offending, the symptoms of impulsivity and reduction in the capacity to reason that often are associated with PTSD (not to mention other mental disorders) could not have had causative impact on the offending (citing DS v R; DM v R [2022] NSWCCA 156 at [95]-[96]). Alternatively, even if De La Rosa principles were engaged, so as to reduce either the seriousness of the offending or reduce Hanrahan's culpability, the Crown alluded to the point raised in De La Rosa itself which considered the factor of mental abnormality and observed (at [177]) that the offender's mental illness may present more of a danger to the community and, in that way, elevate the consideration of specific deterrence. I would add that, in some circumstances, an offender's mental abnormality may elevate the consideration of protection of the community: Muldrock v R (2011) 244 CLR 120 at [59]).
5. The Crown submitted that Hanrahan's offending was most accurately to be viewed through the prism of R v Henry (1999) 46 NSWLR 346, which was consistent with the views of Dr Sidhu and Dr Brann. This concerned the causative impact of Hanrahan's ice addiction. Whilst it may be accepted that he commenced drug taking as a misguided attempt to address trauma suffered in childhood, the Crown noted that there were periods of drug abstinence in Hanrahan's life that tended to reduce, as a mitigating factor, the salience of a drug addiction developed through childhood since it demonstrated his capacity to exercise free-will (Henry at [201], [257]). Further, the Crown noted, given his age at the time of the offending, Hanrahan had earlier opportunities to aid in his own rehabilitation.

Assessment

1. I prefer the Crown's submissions. I accept that Bugmy principles serve to reduce Hanrahan's culpability, but not to any marked degree. The serious and protracted nature of Hanrahan's offending, which included a leading role in planning and execution, militates against a finding that any impulsivity or a diminished capacity to regulate his self-control, being symptoms of a traumatic episode(s) (child sexual abuse) whilst a child, or a mental disorder (PTSD, anxiety or depression), itself resultant from the child sexual abuse, caused Hanrahan to offend. That said, childhood disadvantage and mental abnormity serves to reduce, somewhat, general deterrence and means that his time in incarceration is likely to lead to additional hardship. Offsetting that, however, is that these matters when combined with his past criminal record, elevate the force of the consideration of community protection in the sentence.
2. What was, on the other hand, causally linked was a drug addiction. I accept the offender's position that the drug addiction was not the result of a lifestyle discretionary choice but a misguided effort to cope with a traumatic incident. He was bereft of parental support. But his descent into ice as his drug of choice came later, after earlier drugs were sampled. Hanrahan had shown a capacity to abstain (another reason for diminishing the role of the traumatic event and the PTSD or anxiety as contributing factors). He was not a young man during the period of the offending. Without adequate explanation, he did not seek counselling even when, as he said, others were recommending that course to him; so his conduct in that regard was a matter of choice. Recent loss of employment proximate to the offending is not itself a circumstance in mitigation.

Discount on guilty plea

1. Hanrahan is entitled to a 25% discount on account of his guilty plea, which he adhered to in the sentencing proceeding.

Antecedents

1. Hanrahan's criminal history dates back to when he was before the Children's Court in 1993. He appeared in the Tweed Heads Local Court in January 1994. As an adult of more mature years, he has been convicted of offences for possession of prohibited drugs (May 2007, July 2015, April 2016, December 2017, January 2018, May 2018, May and November 2019) and, more materially, supply of drugs of greater than an indictable quantity (in January 2018). Although Hanrahan did not recall it, the Crown demonstrated that the prior drug supply was 14.39g of Ice.
2. Hanrahan has received the benefit of multiple community-based sentencing orders which were intended to treat his alcohol and drug issues.
3. Whilst in custody, there have been two instances of his receiving punishment for drug possession.
4. Hanrahan's record disentitles him from the leniency that would otherwise arise.

Contrition or remorse?

1. Hanrahan wrote a letter which was in evidence (Exhibit 4). In it, he expressed remorse. He asserted that he had developed insight into the misery radiating through the community caused by drug trafficking and expressed concern, in particular, that his family not become touched by the 'scourge'. He expressed regret for decisions he made which led to his addiction and not seeking out psychological treatment.
2. He was tested on this evidence. He acknowledged that he had previously been aware of the effect of drugs in the community, but said that it was only recently that he had an understanding of matters which led to his long-standing drug addiction. The Crown put to Hanrahan that he knew about the misery that drugs contributed to society many years before, he was only expressing remorse again after he had been arrested and, effectively, since he thought it might assist him. Hanrahan responded that although he was aware of his drug problem, he did not know of the underlying cause of it; nor fully appreciated the effect of drugs as much as he did now.
3. Hanrahan had earlier expressed remorse to his psychologist, Ms Sidhu and regretted that he had not listened to people close to him.
4. The Crown challenged the extent of his insight. It referred to the similar indication of insight in relation to his sentencing in 2019 in contrast to Dr Brann's observation that it was only during his recent incarceration that he had 'formed' a view about reasons for changing his behaviour in the future and taking a different approach. By implication, his earlier expression of insight could now be viewed, with hindsight, as lacking credibility. Further, the Crown, submitted, at a certain point, assertions of remorse, followed by continued (similar) offending lacked credibility and should not be accepted. This is now the position where Hanrahan stands.
5. Given his record and the nature of his offending, I find it difficult to accept that the insight he purported to express about the damaging effects of drugs had only recently been revealed to him. I regard it as very likely that he is very regretful about the consequences to him from his offending; particularly including the prospect of a long term of imprisonment that will substantially deprive him of family contact. Nevertheless, I find that there is some, rather limited, contrition, a conclusion partly facilitated by his guilty plea.

Rehabilitation prospects and likelihood of re-offending

1. In his handwritten letter, Hanrahan stated his aspiration, upon his release from jail, to avail himself of mental health assistance and to remain drug free.
2. Relying on what he had told her, Ms Sidhu opined that as Hanrahan had recently begun to address his unresolved trauma of child sexual abuse, this had (favourably) impacted upon his substance use. She noted his positive and protective factors to further aid his rehabilitation, including a supportive family and his skills as a tradesperson.
3. Ms Sidhu noted that there were periods in his life where he had briefly managed his drug addiction but when placed under stress, he had relapsed. She set out a course of treatment for him, to deal with both the substance abuse and also the traumatic experience as a child.
4. Dr Brann opined that his prognosis was somewhat negatively weighted and guarded. Whilst acknowledging a shift in motivation (which she thought might be influenced by the prospect of a long jail sentence), the scale of his symptoms were chronic and severe and presented a significant challenge for someone, especially of his current age, who was highly motivated.
5. Hanrahan said that although he brought drugs into custody when he went in, which had been detected in late December 2020, he had otherwise been abstinent. He had been on a Buvidal injection program since December 2021.
6. Whilst in custody, Hanrahan said that he had learnt a trade: he had been sewing for furniture. Upon his release, he said he had aspirations to be engaged in the upholstery trade.
7. I have had regard to a written reference of the Chaplain (Exhibit 3), which confirmed that whilst in custody, Hanrahan has been a productive worker and has completed a "Positive Lifestyle Program".
8. In response to the Crown's point about his having previously had multiple opportunities to rehabilitate himself after earlier offending, Hanrahan said that an earlier attempt, comprising rehabilitation at 'The Glenn', had been unsuccessful: although he had received drug and alcohol counselling, he had not disclosed sexual abuse being perpetrated on him. Indeed, he had omitted reference to that event when he spoke with the Community Corrections Officer, who prepared the sentencing assessment report (SAR).
9. Upon his release, he also said that he intended to go to his daughter (who had recently given birth). So far as he was aware, she had had no trouble with the law. With the benefit of receiving diagnoses of PTSD, Hanrahan said that he intended to seek counselling in Tamworth.
10. Under cross-examination, the Crown tested his statements of intention, with reference to his past experience of going on and off methadone treatment, before relapsing. Hanrahan maintained that he had only recently developed a truer appreciation of what was behind his drug addiction and expressed determination to address his problem.
11. In response to this, the Crown noted that when sentenced previously, he had been given the benefit of supervision by probation and parole or community corrections officers, but had still relapsed. Further, when he breached his ICO, that was another example of his stopping drugs after a period of rehabilitation before starting again. It was put to Hanrahan and he did not dispute that if, on release, he went to Tamworth, there was nothing to stop him accessing drugs from associates still on the Central Coast. Hanrahan appeared to accept this reality.
12. The Crown said that the Court could not find that Hanrahan was unlikely to re-offend. The Crown did, however, acknowledge that there have been some positive signs, indicated by his participation in programs and counselling whilst in custody, but his intended relocation to Tamworth - where his offending occurred - was problematic whatever Hanrahan's intentions to mix in a pro-social environment. The Court would generally be sceptical of assertions and expressions of intent: the Crown pointed to some resemblance between what he had said in the sentencing hearing and what the community corrections officer who had prepared the sentencing assessment report of 5 April 2019 had recorded.
13. Hanrahan's Counsel made no submissions (in chief) about his client's prospects for rehabilitation. He did however, dispute the Crown's characterisation of a 'cycle' of periods of rehabilitation followed by relapse. What was different now - what was to Counsel the 'elephant in the room' - was that Hanrahan had only now confronted, or at least appreciated, the significance of his childhood sexual abuse.
14. Whether or not Hanrahan had only learnt recently of the enduring effects of traumatic episodes in childhood, the length of his drug addiction for someone of his age, manifested by significant criminal history and a relative absence of support (beyond his family) in the community suggest to me that his prospects of rehabilitation are guarded.

Hardship to offender

1. Hanrahan referred to receiving only 3 visits from family members during his period in custody, due to the Covid-19 restrictions; although he was able to receive phone calls and freely speak to them. He also said that other than visits from the Chaplain, he had been unable to receive psychological support.
2. Whilst rejecting that it could mitigate his culpability, the Crown accepted that his drug addiction and mental health issues were likely to mean that Hanrahan would find his time in custody more onerous and that this would also support a finding of special circumstances. The Crown also accepted that restrictions imposed in custody as a result of the Pandemic was another matter that justified a variation to the ratio for the period on parole.
3. I find that hardship is established in these respects which leads to a degree of leniency. But I am inclined to think that the matters sustaining the finding of hardship are more material to the question of the extent to which the statutory non-parole period should be altered. Some care needs to be taken to ensure that the overall sentence remains proportionate to the gravity of the offending. Nevertheless, implicit in these findings is my acceptance that special circumstances arise.

Prior period of custody

1. Up to the date of the sentencing hearing (11 October 2022), the offender had served a total of 1 year, 10 months and 10 days (679 days) in custody referable to this matter.

Age and background

1. Neale was nearly or about 46 years of age in the period of his offending. He is a New Zealand citizen, which, according to his Counsel, precluded him from obtaining social security benefits. His partner, also a New Zealand citizen, was similarly positioned.
2. His background was summarised in the report of his psychologist, Ms Grujoska (Ex 1). Ms Grujoska conducted a telehealth appointment with Neale on 8 March 2022.
3. Neale reported having a "turbulent" childhood with his parents divorcing when he was aged only 11, and his mother evicted him out of the family home when he was just 15 after apparently blaming him for the divorce. His father was reputed to be a chronic alcoholic and worse, sexually assaulted the offender's mother. Neale had two step-sisters, which his father had with a woman with whom he had an affair with and two biological sisters whom his father had with his mother. Neale's departure from the family home resulted in his staying in a house with random boys.
4. Despite this he managed to get through school. It provided something of a sanctuary; although the boys he was staying with did not attend school and were on drugs. But he was studious enough; although not excelling academically.
5. After school he had regular employment, across several areas, including chopping commercial firewood, beekeeping and farming before commencing work with a European car dealership. This was more of an office role and he had some managerial responsibility for about 14 years.
6. About 12 years ago, Neale moved to Australia to work in the mines for one and a half years before he had a workplace accident, falling off an excavator and suffering a back injury which required surgery. At the time of reporting to Ms Grujoska, he was working as an excavator operator.
7. Neale has been in a relationship for 22 years. His partner is supportive, so much so that she gave evidence in support at the sentencing hearing and attended the sentencing remarks today. Neale told his psychologist that he struggled to deal with his physical condition after the accident and developed a reliance on prescribed painkillers and alcohol, which ultimately led to addiction. But more recently, he told Ms Grujoska, that he had not been receiving any treatment and had not been using any form of alcohol, drugs or prescribed medication for 2 years.
8. Neale reported to Ms Grujoska that he had no prior diagnoses or treatment of any mental health condition. Following his workplace accident, he had however, endured some depressed mood.
9. At the sentencing hearing Neale said that he was on ice in the period of his offending. Asked why this was so, he said that he had recently experienced a breakdown of the relationship with his partner and had lost his family, or contact with them. He said he was otherwise working at the time. He used ice as a means of coping with that. He said he was taking 1 g each day.
10. He reiterated that the development of an ice addiction had come partly from the effects of a workplace accident he experienced in 2015, which left him with a back injury. Initially, he became addicted to painkillers, but he used ice to help him stay awake: he did not want to sleep as he felt it was more days spent without his family.
11. Neale informed Ms Grujoska that his reasons for getting involved in the offending were to support his ice addiction, and also to financially assist his family at the time.
12. After administering different scales of testing Ms Grujoska opined that at the time of the offending, Neale had a Stimulant Use Disorder and also an Adjustment Disorder with depressed mood. There was a connection between family dislocation and exposure to violence in his childhood, which diminished his coping skills and led to substance abuse. On top of the workplace accident as an adult, the dependence on painkillers transformed to a dependence on ice. The ice addiction would adversely impact his judgment and decision-making ability. The accident and its consequences led to tensions in his family which led to depression.

Consideration of culpability

1. Counsel for Neale submitted that an earlier criticism of Ms Grujoska's opinion - that it was based substantially upon untested assertions to her by Neale - had fallen away since he had given evidence, and allowed himself to be tested.
2. Counsel submitted that Bugmy principles were engaged.
3. He said he only received, in monetary terms, $1,000 for his services, but in addition to that, he was also given ice to gratify his addiction and to support his family; Neale being unemployed at the time.
4. The Crown noted that the offender's Counsel did not advocate for mitigation on the basis of any mental abnormality. The Crown submitted that whilst Bugmy principles could be taken into account, given an unstable background of physical abuse and sexual abuse (against his mother) and domestic violence in the home, the weight to be given to them was not significant; and the Court could not lose sight of the circumstance that if that background resulted in an inability to control the impulsivity or capacity to regulate reasoned thinking, this may elevate the consideration of protecting the community.
5. The Crown acknowledged that there had been some engagement with drugs at a young age; but what was material was the nature of the illicit substance at the time of the offending. There was no evidence that he was abusing ice at the time of his offending as a form of managing his pain. The ice addiction was more accurately to be viewed as addressing Neale's isolation from his family - to allow himself to stay awake - not any enduring pain from the workplace accident; nor a reaction to the abuse perpetrated upon him when he was a child. In short, to the extent that any ice addiction contributed to his offending (in the sense that he needed to fund the habit), the original decision to take the ice was an exercise of free will. Taking an addictive drug, like ice, in preference to other prescribed painkillers as a form of self-medication did not constitute a mitigating factor and, further, the decision to continue to use an addictive drug to feed an addiction did not alter the conclusion that such decision remained an exercise of free will (R v SY [2003] NSWCCA 291 at [61]-[62]; R v Gagalowicz [2005] NSWCCA 452). The Crown characterised the taking of drugs as a bad choice, (relevantly) occurring after the workplace injury and continuing; and the decision to continue, rather than seeking treatment, was another bad choice for which Neale had to be accountable.
6. I substantially agree with the Crown's contentions in this respect. Although I accept that there was some trauma and disadvantage in his childhood, this did not substantially impair his capacity to complete his schooling and thereafter participate in the workforce, as Neale had done over a significant period even if he did become exposed to others using drugs. It was a work injury accident, his response to it in terms of self-medicating, and issues associated with his personal relationship which caused his problems at a period in his life when he was a middle aged man. Ice became his drug of choice for a bizarre reason: to stay awake to address his isolation from his family. It was not inevitable that after weaning himself off painkillers that he did not like, he would become an ice addict and he did not seek counselling or alternative forms of medication.

Discount on guilty plea

1. Neale is entitled to a 25% discount on account of his guilty plea, which he adhered to in this sentencing proceeding.

Antecedents

1. Prior to the index offending, Neale had a minimal criminal history comprising a single driving offence. However, after the index offending, he had a more serious driving offence which was more related to the index offending: driving whilst under the influence of drugs (for which he was fined and received a disqualification order).
2. The Crown submitted that the subsequent offence, in particular, reduced the degree of leniency which might otherwise be afforded.
3. In my view, the subsequent driving offence demonstrates that the index offending was not an uncharacteristic aberration and, accordingly, diminishes the scope for leniency that would be afforded to a first time offender (Taylor v R [2015] NSWCCA 12 at [23]).

Contrition or remorse?

1. Ms Grujoska reported Neale telling her that he had acknowledged the actions that he took out of desperation were wrong. She stated that he had expressed remorse and regret for his actions.
2. Neale was asked by his Counsel at his sentencing hearing how he felt about his offending. His initial answer was "really bad" and that was because of the impact on his family. His Counsel then prompted him further, asking him whether he understood the effects of drugs. His answer was that, yes, he knew that drugs destroys lives and causes pain and suffering.
3. It was put to him in cross-examination that the only reason that he felt really bad was because of the trouble he put his family, and himself, in. Neale accepted that he dreaded the prospect of not being able to do things with his family and disputed that he was aware that a consequence of his offending might be his incarceration at the time of his offending.
4. In re-examination, Neale was asked how he felt about committing the offence: a question which, it might have been expected would have been asked in his evidence in chief. He said he felt bad and he should have known better.
5. I was not impressed with Neale's evidence on this issue. Despite the leading nature of the questions he was asked by his Counsel, he showed little real insight into the consequences of his offending for the community. I find he was mainly regretful for the anticipated practical consequences to him and his family from his offending, rather than indicating any genuine acceptance of responsibility for the harm his offending had caused. As he said at the very beginning of his evidence, he was doing "just a job".
6. I find his remorse is limited. This finding feeds into the issues of specific deterrence and his rehabilitation prospects.

Rehabilitation prospects and likelihood of re-offending

1. Neale told Ms Grujoska that he had been abstinent from ice for 2 years. That led his Counsel to argue, in his written submissions, that he had been drug free for some two years. However, it emerged in the sentencing hearing that what Neale told Ms Grjuoska was inaccurate; and his Counsel needed to qualify his submission. It emerged that Neale had omitted to tell her that on 26 January 2022, he committed the offence of driving whilst under the influence of ice. In his sentencing hearing, he said that he pleaded guilty to the offence whilst being ignorant that he was influenced by ice. Neale said that on the occasion, he had drunk about 8 drinks at a barbecue. Given the date of this offending, his evidence of his having a barbecue that day is plausible.
2. In cross-examination, Neale was tested on his evidence of his drug use after his release from detention. He said that at the barbecue on 26 January 2022 he was drunk after having consumed 8 or 9 drinks. Even though he professed ignorance that he had taken drugs, after he had seen test results, he knew that he "couldn't deny" having taken the ice.
3. Neale was asked by his Counsel why, prior to seeing Ms Grujoska, he had not previously had recourse to counselling. Neale said that he did not know who to turn to. But he said he had no intention to use (prohibited) drugs again.
4. Mr Crown asked Neale what efforts at rehabilitation he had tried after his release on bail. Neale said it was not suggested that he undertake such rehabilitation. It was only about a month after his release from custody that it occurred to him that he should seek this out. Neale explained that he had been too busy to engage in rehabilitation and accepted that he had still not undertaken it. This was despite his recognising a need for it. He explained that whilst he was with his family, he felt that he had been 'moving forward'.
5. It was put to Neale, but he rejected the proposition, that he was in denial about the prospect that he may relapse. He said that what was different about his position now was the love of his kids.
6. Neale's partner, Lisa McCready, gave evidence about the current state of her relationship with him. She said it was "going alright". She was also asked whether, since his release on bail, she had seen him use prohibited drugs. She said she had not.
7. Ms McCready said in cross-examination that she had developed an inkling that Neale had previously been on drugs. She was asked what she did when this revelation became apparent. She responded by saying that she had asked Neale and he had told her that he had "felt fine" and wanted his family back.
8. Neale relied upon a letter from Neil Moore (Exhibit 2) detailing Neale's usefulness as a full-time machine operator to his business as well as serving, incidentally, as a character referee.
9. Ms Grujoska set out recommendations for his treatment, to address his drug and alcohol issues, cognitive behavioural therapy to address his negative thoughts and general counselling administered by a psychologist.
10. Counsel for Neale submitted that provided he remained drug free, he had good prospects of rehabilitation. Counsel emphasised his age and limited criminal record. He was of prior good character and expressed his remorse.
11. The Crown accepted that based on his limited criminal history (for his age), there were prospects for a finding of a low likelihood of reoffending, but this was inter-dependent upon his rehabilitation prospects. It acknowledged the significance of his securing employment and that he had pro-social attitudes. Similarly, he had prospects for rehabilitation. The Crown expressed a reservation about this, indicating that he had not fully overcome his workplace injury and had not undertaken counselling.
12. Although there are some positive signs, including a supporting partner and (probably) heightened concern for his family, having heard from him in evidence, I find that his prospects are only guarded. He had been less than forthcoming in his disclosures to his partner. He provided no satisfactory explanation for why he made little attempt at rehabilitation when given the opportunity to do so after his release from detention, when he must have known that he had an ingrained problem with illicit substances. His evidence of ignorance that he had taken ice at the social function was implausible even if he had heavily been drinking: his partner had given evidence that he had not drunk much since his release on detention and had not drunk much at the Australia Day celebration.

Prior period of custody

1. Neale has spent a period of 22 days in custody referable to his offending.
2. When he was released on bail, it was said that a restriction upon him was effectively to restrain his going out unless with his partner. This condition had restrained his freedom of movement for the better part of two years. After social distancing restrictions were eased because of the Pandemic, he remained 'tied' to his partner. His Counsel submitted that he has been on strict bail conditions; effectively including house arrest but for any requirement to carry out employment.
3. The Crown also submitted that compliance with bail conditions by this offender should not be treated as amounting to any special hardship: they were not quasi-custodial (R v Kelly [2018] NSWCCA 44 at [12]).
4. I do not accept, that by reason of his compliance with bail conditions, Neale experienced a quasi-custodial experience, on the evidence before the Court. The bail conditions were not put in evidence. To the extent that there were lockdowns imposed on the community because of the Pandemic after 11 January 2021 that, of course, imposed burdens on most people. A further difficulty for Neale, who is effectively seeking an extended backdating of his sentence beyond the period endured in actual custody, is that whilst subject to bail, he committed the driving offence of driving under the influence of ice, which might be said to have set back his prospects of rehabilitation (R v Marshall [2002] NSWCCA 197; Brown v R [2013] NSWCCA 44 at [26]).

Hardship to offender

1. It is accepted that the period Neale spent in custody was spent mainly in lockdown.
2. Ms Grujoska opined that full-time incarceration would likely impair Neale's capacity to access the treatment he needed for his mental and physical health. She also alluded to restrictions in correctional centres because of the Pandemic limiting his rehabilitation. She set out certain treatment options that would be available to him in the community.
3. Neale explained that throughout the period in custody, he had experienced periods of isolation, coinciding with general restrictions caused by the Pandemic.
4. Another matter which his Counsel appeared to rely upon was Neale's evidence that through the winter of 2021, he and his partner were living in a tent with their children, following being forced to vacate their home because of Neale's inability to pay the rent.

Hardship to family

1. This last matter segued into consideration of the impact upon his partner and children should he be sentenced to imprisonment. Neale fears that they will become homeless. I have referred to his citizenship and that of his partner. He believed that if sent to prison, neither his partner nor his children are eligible to receive government assistance.
2. His belief in these respects was supported by evidence given by his partner, Lisa McCready. Ms McCready had been Neale's partner for about 22 years; although there had been a period of separation and their relationship had been 'on and off' for a couple of years. She said she was not working, nor entitled to receive assistance from the Government. Neale was the sole breadwinner. She was asked if she could turn to anyone for financial assistance if Neale could not provide and she said she could not. If Neale goes to jail, she could only remain in her current accommodation until 25 November 2022.
3. Neale was asked what he had done after his release from bail to provide for his partner and family on the contingency that he received a sentence of imprisonment. The answer, effectively, was not much. He had tried to save but on his wage, he could not save much. He understood that his partner had tried to get jobs but had been unsuccessful.
4. Ms McCready was not asked whether she had any physical or mental incapacity that would prevent her from working. Nor was she asked what efforts she had made to obtain employment, or her level of qualifications or skills. I note, also, that after his workplace accident in 2016, Neale's family (although not Neale himself) had moved back to New Zealand for a period of time whilst he was unable to work. She was not asked why, if it was necessary, she could not do so again if Neale was the subject of a sentence of full time imprisonment.
5. The Crown submitted that a finding of hardship to family was open, but it did not reach the level of 'exceptional circumstances' as required (R v Edwards (1996) 90 A Crim R 510 at 515). The Crown emphasised that Neale had known for a long time what was 'coming' yet did not make provision for what might occur if he was subjected to full-time incarceration.
6. I agree with that submission. I also find that the evidence was inadequate. The omissions to ask these questions of Ms McCready in my view substantially undercuts the force to the bare evidence that she faces the prospect of being not able to properly care for herself or her children if Neale does receive a full-time custodial sentence. I am unable to accept in the circumstances that 'exceptional circumstances' of the kind identified in R v Edwards exist. There is a basis, however, for finding that it is relevant when assessing the proportion of any term of imprisonment should be served on parole; which is how I propose to address the matter.

Special circumstances

1. Counsel for Neale submitted that it would be open for the Court to impose an ICO. I address that submission later in these remarks.
2. His Counsel's alternative submission was that a finding should be made of special circumstances based on his being a first time offender in custody, combined with a need for a lengthy parole period to monitor and prevent relapse.
3. In response to this, the Crown's response was equivocal. It did not oppose the finding of special circumstances being made. It argued, instead, that the evidence did not strongly suggest rehabilitation and that if variation of the non-parole period from the statutory norm was to be made, it should be limited to avoid the concern of double counting matters which led to the imposition of the head sentence.

Age and background

1. Cummins was at or about the age of 46 in the date range of his offending.
2. His background was summarised by his psychologist, Megan Godbee in her report (Exhibit 1). It may be summarised as follows.
3. Cummins grew up as the second youngest of 7 children. He informed Ms Godbee that his parents had been happily married and, although they lived in modest accommodation, the family's financial needs were met. He was also close to both parents and to his siblings. Further, he described no experiences of abuse or trauma during his childhood. A black spot concerned his extended family: his maternal uncle used heroin and one of his paternal uncles was a regular cannabis user. His Counsel suggested that on these facts, he was likely exposed to normalised substance abuse. Further, his paternal grandfather was a heavy drinker.
4. His substance abuse history really began when he started smoking cannabis with friends from about the age of 15. He told Ms Godbee that he became a daily user. He began taking speed when he was aged 17 and typically took this every few days throughout adulthood; although there were periods of abstinence. He concealed his drug taking from family.
5. He attended three primary schools but eventually settled and went on to complete his Higher School Certificate. He subsequently undertook TAFE study.
6. After school, he had been employed for about 70% of his adult life, but he held down a variety of jobs. Although, his periods of unemployment often resulted from failing drug tests. In these periods, he received Centrelink payments.
7. He told his psychologist that at the time of his offending, he was a cleaner. Of course, the incidence of the Pandemic and the ensuring public health restrictions resulted in unemployment, about three months before he commenced his offending.
8. A dramatic event in his life occurred when he was about 30 years old, when his girlfriend overdosed on drugs. It was from this point, his Counsel argued, that he began to experience a long-term decline in his mental health and reverted to drug use to cope with adverse life experiences. For a period of some years, he abstained from taking 'speed', but at 35 years of age, he relapsed. Unfortunately, he began living with a fellow drug-user and from then he began to take ice. Although he was able to move out of that home, he took his ice habit with him. That habit contributed to problem gambling as well as the index offending.
9. Cummins indicated that he had had a few intimate relationships. One of these occurred when he was in his mid-30s with a woman who did not appear to be a good influence on him: it was during this relationship that he committed a Break and Entering offence and that he had heavy drug use. He met his current partner when he was 38. She had been previously married. He mentioned to Ms Godbee that this partner had encouraged him to seek treatment for his mental health problems.
10. Cummins differentiated himself from other co-offenders in one important sense: he did not try to reduce his culpability on account of his drug addiction. As he stated himself in his letter of apology, he never had to resort to crime to pay for his (drug) habit. There was another apparent distinction. I referred earlier, when describing the circumstances of his offending, to his explanation to Ms Godbee. This was set out in paragraphs 28 and 29 of her report. It was remarkable in two respects. The first was the sense of calculation: Cummins had decided after his initial two runs, that the 'risk-reward' equation did not dispose him to the drug trafficking. But secondly, and even more remarkably, he appeared to explain to Ms Godbee that he had agreed to re-engage in drug runs since he felt sorry for a friend who he had asked to move out of his home after the latter had stayed with Cummins and his partner.
11. It may be accepted that Cummins has had some troubles along the way in his life. But in comparison to other offenders, there was no obvious reason why he would develop his drug problems as he did. As his psychologist noted, and as his Counsel submitted, his real decline commenced when he was no longer a young man, being in his mid-30s. He found himself in a difficult financial position when the Pandemic hit these shores. He was hardly unique in that circumstance. I find very little in his life circumstances that reduces his culpability for his offending.

Discount on guilty plea

1. Cummins is entitled to a 25% discount on account of his early pleas of guilty to the two offences.

Antecedents

1. Cummins had a varied prior history, going back to when he was aged 26. From there he committed several offences, including actual or attempted drug possession (June 2005, May 2009, May 2012); also, breaking and entering (December 2010); and some driving offences. He has not previously been sentenced to imprisonment. The most serious penalty imposed upon him was a community corrections order imposed in September 2019 for a driving offence.
2. The Crown submitted, however, although not a lengthy record, the variety of offending, including an offence of dishonesty, and drug-related offences, disentitled him to leniency that might otherwise have been afforded to him.
3. Cummins emphasised that this has been the first time he has been in custody and he had not previously committed a supply offence. It is his first offence since 2012. Counsel for Cummins generally conceded that specific deterrence was warranted (to supplement general deterrence) but in view of his limited record and what was submitted about his rehabilitation prospects, it did not loom as large as it had in other instances of the index offending.
4. I find that Cummins' past record disentitles him from leniency which would otherwise arise.

Contrition or remorse?

1. Cummins wrote a letter to the Court (Exhibit 3) in which he apologised.
2. I have already noted some of the strange and troubling statements that Cummins made to his psychologist. His own psychologist referred to his apparent minimisation and sense of justification for his offending. In fairness, Ms Godbee also referred to a more recent realisation, since he had been in custody, that ice use had some significant societal consequences.
3. There was another difficulty with Cummins' letter. The explanation he gave as to why he engaged in the offending omitted reference to some of the matters he had conveyed to his psychologist, especially his wanting to assist with a friend. Instead, he focussed in his letter on things which he had not told his psychologist about, such as his need to discharge debt.
4. Although stated under the heading of remorse, in what appeared to me to be equally related to the consideration of his rehabilitation prospects, the Crown emphasised one instance of Cummins adjusting to a development, during the period of his offending, that on 1 December 2020 drugs which were on their way to Tamworth had been intercepted. Cummins adjusted his position of originally transporting them to Tamworth himself, to collecting them (from Neale) and arranging for the co-accused Carruthers to take them. In other words, he had the opportunity to cease involvement, but went on with the offending, and implicating another (Carruthers).
5. The Crown argued that there is no real insight, but a combination of minimisation and self-justification and a denial in his own perception of himself as not being a criminal.
6. This is an instance where some caution should be ascribed to out of court statements. I accept that he is remorseful, but that is limited.

Rehabilitation prospects and likelihood of re-offending

1. Cummins reported to Ms Godbee that he had abstained from drugs during the period he had been in custody and had taken steps to aid his rehabilitation, such as completing a drug and alcohol detoxification program and attending weekly Narcotics Anonymous meetings. He had been assisted by taking buprenorphine. He told Ms Godbee he was motivated by the thought of not wanting to lose his partner and even said that he did not believe he required further intervention. He also told her that, upon his release, he intended to reside in the same area where the index offending had occurred.
2. In a statement picked up by the Crown, Ms Godbee opined that Cummins did not think that he would benefit from further intervention to improve his insight.
3. The Crown submitted that Cummins' position was paradoxical: although he lacked insight, he had appeared to engage in courses and treatment, as well as seeking employment and giving himself pro-social supports. But the Crown's position on the aspect of Cummins' insight was not wholly negative: the Crown accepted that he had regretted the social impacts of his offending.
4. The Crown submitted that Cummins' prospects of rehabilitation depended upon his accepting that he had an addiction and understanding the triggers that could cause him to relapse. Although he had made efforts with Narcotics Anonymous, his distorted belief that he was a "functioning" drug user indicated that his rehabilitation prospects were guarded and precluded a finding that he had good prospects of not re-offending.
5. Counsel for Cummins submitted that his client had very good prospects of rehabilitation. This was the first time he committed an offence of this nature and arose in an unusual circumstance (loss of a job through the Pandemic). He has already endured a period of custody; he was successfully engaging in the Buvidal program, was a regular attendee at NA meetings and had volunteered to work where he could. The CSNSW case notes were positive about him. There had been no disciplinary infractions whilst he was in custody. He had a history of employment and supportive family.
6. Counsel for Cummins submitted that the Crown exaggerated a statement in the psychologist's report (at paragraph 23). That reflected his mindset at the time of his offending. Contrary to the Crown's gloomy prediction for his prospects of rehabilitation, it should be found that they were high. He had not previously been in custody. His (recent) record was good. CSNSW case notes (from 30 July 2021 to date) were positive: he had behaved himself in custody and had undertaken a range of courses. He had good interaction with other members in the NA group.
7. Cummins relied upon written references from his father and Ms Jennifer Ng, who I infer is his current partner (Exhibit 2). They both refer to his love and support of them and their sense about his motivation to help himself. But even their references were not totally positive. His father believed, doubtless on the basis of what Cummins told him, that had he only involved himself with the drugs because of his addiction and "not otherwise to benefit". Cummins apparently did not tell him of his financial concerns from losing a job nor, as I infer, asked his father (or, so far as is apparent, anyone else) about any temporary financial assistance he or they might render to him. As to his partner, she confirmed what appeared from the psychologist's report that Cummins had hid from her his earlier addiction; despite her suspicion that he had a mental health problem keeping him awake at night. Cummins never explained why he concealed his problems from his family, prior to the index offending. It may be speculated that he did not want to hurt them (and, in his partner's case, lose her), but a character trait of concealment of problems from loved ones is not something that is easy to shake.
8. In his letter of apology, he also mentioned things he had done in custody, including treatment he had received and the completion of certain courses. His Counsel tendered case notes from corrective services (Exhibit 4) indicating that he had been well behaved in custody and other documents (Exhibits 5 & 6) indicating his completion of certain courses.
9. Although I acknowledge that there were positive signs, especially the support of his current partner, Cummins' life history shows an inability to sustain steps in his reformation. As the Crown fairly submitted, some of the statements made to his psychologist were troubling, in the way that they evinced an over-confidence in his capacity to deal with a long-entrenched condition. This was of a piece with his dismissal of suggestions from his partner to obtain help and omissions, at important stages of his life, when adverse events occurred, of seeking help. I regarded his declaration that "I am not a criminal, I'm just a normal person that takes drugs" as bordering on delusional, given his criminal record (extending beyond the index offending). I reject his Counsel's submission that his rehabilitation prospects are "high". To the contrary, I am unable to find that his prospects of rehabilitation are anything other than guarded.

Hardship to offender

1. Cummins emphasised that his period in custody has coincided entirely with the Pandemic. It is common knowledge what severe restrictions were imposed on inmates as a result; not just in relation to increased isolation and reduced visits from family or friends, but the inability to access rehabilitative programs inside.
2. The Crown accepted that the restrictions in custody were onerous but argued that this factor was more relevant to the length of any period on parole.
3. I accept both parties' submissions.

Prior period of custody

1. Cummins was arrested on 2 December 2020. Since then he has been in custody a period which, up to the date of the sentencing hearing, was 1 year, 10 months and 10 days (679 days). The Crown accepted that any sentence of imprisonment should be backdated to the date of his arrest.

Special circumstances

1. Counsel for Cummins submitted that the Court should make a finding of special circumstances. He relied upon his submissions about his rehabilitation prospects and the evidence of Ms Godbee identifying the assistance his client would receive from a forensically trained psychologist. I will refer to this matter again later in these remarks.

Age and background

1. Scott was 55 years of age in the period of the index offending.
2. Scott relied upon a report from a clinical and forensic psychologist, Dr Gilligan. His background was closely considered in that practitioner's report (Exhibit 1). It is also touched upon briefly in a sentencing assessment report (Exhibit B).
3. Scott was born the second eldest of 5 siblings. He feels close to them, even though they remain in Melbourne. From his birth, his parents' marriage only lasted until he was 10 years old. In Scott's view, his parents' relationship was 'rough'. His father was described as an alcoholic and they had verbal arguments. His mother had various affairs and it was said that a man, or men with whom she had had affairs, had physically threatened his father as his mother was preparing to leave him. Before he turned 10, his father left himself. His mother became involved with another man, but that relationship was abusive: he would regularly assault her. On an occasion, when he was 17, Scott bravely stood up to his mother's partner and after that, he had left. After a period of absence, his father returned and Scott grew close to him.
4. He generally considered that he felt loved by both of his parents, despite the troubles in their own relationship, though he ended up becoming closer to the father. Rather poignantly, his parents appeared to reconcile towards the end of their lives with his father moving into a nursing home with his mother in her final years. When his father died 4 years ago, Scott was devastated.
5. Scott was not himself subject to any abuse by his parents. But Scott attended a social group from the age of 5 and the leader of that group sexually abused a number of the members, including Scott (repeatedly); in Scott's case, when he was aged between 8 and 10. Scott did not report this abuse: his mindset was to get on with things. Over time and with reflection, he felt that he had suppressed the impact of that abuse.
6. In terms of his schooling years, notwithstanding the abuse perpetrated against him out of school, his primary school and high school years were unremarkable: he got on well enough with his teachers and peers; although there were certain isolated scrapes when he involved himself with fights when he saw some peers getting bullied. That was of a piece with his earlier standing up for his mother. Clearly, to his credit, Scott has a brave streak about him. But his progress at school was likely to have been impaired by financial troubles afflicting his mother, who had to juggle care of 3 children and her own mother. This meant that Scott had to leave school only midway through year 9; as he was forced to acquire the means of financially assisting his family.
7. After school he did a few short-term jobs, before working in a transport company for 11 years where he ended up as a warehouse manager. Eventually he moved to the Central Coast working in logistics for SCR. He remained in that job for 12 years before an argument with a boss saw him leave. Scott described himself to Dr Gilligan as a workaholic.
8. He left his job when he was 50. By then, he had bills to pay. With his father's passing, he used the inheritance to acquire a garden and lawnmowing business. The business went well for a period. But approximately 5 years ago, when he was aged between 51 and 52, his marriage broke down. This plunged him into depression and he could not cope. He went to stay with his siblings in Melbourne for some months but upon his return to this state, he could not deal with his mental health issues, he could not work and he had to sell his business. Scott told Dr Gilligan he was even homeless for a period, living in his car. Since then, he has mainly remained unemployed.
9. He has had two serious intimate relationships in his life. One was from the age of 15 until the age of 23. The second one was with his former wife. They had been together for 27 years and had three boys, now adults, together. He sensed that his former wife had become depressed, but could not account for that other than to note that her depression coincided with times of troubles with his employment. Scott told Dr Gilligan that his wife leaving him was, to him, out of the blue. What hurt him more was that just prior to leaving, his former wife was diagnosed with breast cancer. He said he was a witness to her chemotherapy treatment. Scott still has contact with her, but it is minimal and engaged in for the sake of the needs of his children.
10. In terms of his drug history, Scott was focussed on fitness, health and sport and did not start taking drugs until he was an adult. Though he started to engage in binge drinking when 23, and then only on the weekend, he was 24 years of age when he started amphetamines, recreationally. From that age until he was about 40, he would intermittently have drugs of this kind: he found that they helped him increase his work hours. At 40, he was supervising truck drivers and was taking half a gram of amphetamines most days. He reported that this improved his productivity but also helped him deal with symptoms of a low mood. This drug use was concealed from his wife and children. Scott did not consider himself an addict.
11. After his separation from his wife, when Scott was 52, he increased his daily usage. His life was spiralling out of control following the loss of his marriage, his living out of his car, his employment issues (unsuccessfully applying for many positions) and his drug taking: he was by now using up to 1.5 grams a day.
12. Eventually he obtained employment with a disability service and a work colleague put him up in a granny flat. For a period of 10 months, it appeared he was achieving a sense of stability even though his addiction persisted. But his addiction caught up with him at work: he lost his job in the middle of 2020 after drugs were discovered at his workplace.
13. Scott told Dr Gilligan that since being in custody he had been abstinent for the past 18 months. Dr Gilligan perceived him as being highly motivated to maintain abstinence 'for his siblings, for his sons, and for himself.'
14. Scott informed Dr Gilligan that once before, a former employer had referred him to a psychologist. After a handful of sessions, no clinical diagnosis of depression was made, although it was noted that he was vulnerable to episodic depression.
15. Ultimately, Dr Gilligan opined that a lack of insight into symptoms of low mood in response to childhood trauma was ameliorated through taking amphetamines for a protracted period. That lack of insight and generally poor psychological 'mindedness' perpetuated substance use, mental health issues and impulsivity at the time of his offending. His drug addiction impaired his decision-making in various spheres of his life and was the catalyst for his deteriorating mental health.
16. According to Dr Gilligan, it was in this context that Scott's symptoms were exacerbated and transformed into more severe depression following his wife's leaving him and the blow to his self-worth associated with his inability to maintain employment and accommodation.
17. His sister believed that Scott had lost his way about 4 years prior to his arrest. She alluded to the effects of losing his long-term job and his wife (diagnosed with breast cancer) and eventual breakdown of his marriage of 22 years. These things and his inability to find work led to his becoming distressed.

Consideration of culpability

1. Counsel for Scott did not suggest that his client had any underlying mental health condition or mental abnormality that contributed to the offending. But his ice addiction needed to be considered in the sense of his need for rehabilitation.
2. His Counsel did, however, argue that Bugmy principles were engaged: his client had been exposed to domestic violence perpetrated on his mother and he was himself the subject of systemic sexual abuse as a young child. This was relevant not only to his culpability but also the length of the non-parole period.
3. The Crown accepted that Bugmy principles applied, but with a caveat: the Crown cited paragraph [44] in the plurality's judgment in Bugmy to the effect that a demonstrably enduring inability to regulate emotion, or "control the violent response to frustration" may increase the importance of protecting the community from the offender.

Assessment

1. I accept that Bugmy principles apply to reduce Scott's culpability. But they do not carry him very far. They are relevant in the sense that Scott's exposure to violence and domestic disharmony whilst a child led him to drugs from a young age as a coping mechanism. But although that exposure had enduring effects, the nature and protracted period of the offending did not evince any incapacity to reason or impairment affecting his capacity to exercise judgment. Scott's background was not, essentially, dissimilar to Hanrahan's. Scott had shown throughout his working career a capacity to get on with his life, even with past substance use issues. His offending in this case may be traceable to other adverse events when he was of mature age, principally the breakdown of his marriage (to a wife in ill-health), the loss of his business and thereafter his job in the disability support sector. It was these events, and the depression it caused in Scott, along with an elevation in his drug taking, which led to his descent.

Discount on guilty plea

1. Scott is entitled to a 25% discount on account of his guilty plea.

Antecedents

1. Scott has had a criminal history which, to some extent, I later touch upon when referring to an earlier period he experienced in custody, being in respect to offending on 29 September 2020. That fell within the period of the index offending (15 August 2020 - 1 October 2020), but the Crown emphasised that this was only relevant to the issue of totality as it was substantially conduct at the tail-end of the course of criminality giving rise to the index offence for which he is now to be sentenced. This was indicated in Agreed Fact 31.
2. But before that, and before the index offending, there were a range of offences committed when he was much younger, in the 1970s and early 1980s. These were recorded in a document supplied by Victorian police. That offending was generally in the nature of burglary, theft and damage to property but of course those offences were well before the index offending. Nevertheless, the Crown argued that his criminal history overall disentitled him from leniency.
3. On 15 September 2020, he also received a conditional release order from the Wyong Local Court. This was in relation to a drug possession offence occurring on 3 September 2020, a date falling within the range of the index offending. I agree that this record disentitles Scott to the leniency that would be extended to someone without his criminal history.

Contrition or remorse?

1. Dr Gilligan stated that Scott had told him that he was "not proud of my behaviour. I'm disgusted in myself" and made some other statements indicative of a level of insight, such as "I hate to think about the impact to others" as a result of the circulation of ice within the community. He made other statements indicating what, to Dr Gilligan, was a good understanding of the seriousness of his behaviour. Dr Gilligan perceived, in summary, that Scott was 'troubled by remorse and shame.'
2. A typed letter from Scott's older sister was in evidence (Exhibit 2). She also perceived that he felt extremely ashamed and remorseful for the situation that he had found himself in.
3. The Nowra Community Corrections Officer also alluded to Scott's insight into his offending.
4. The Crown's position was that the statements attributed to Scott were mere empty words which could not be trusted. He had shown no real insight; a matter identified by his psychologist.
5. It is troubling that Scott did not choose to give direct evidence. That meant that the out of court statements made by him to others, and which shaped their views of him, could not be tested. Nevertheless, the views of a reputable and highly qualified psychologist and a sister who is a teacher of children with learning disabilities carries their own weight. Given Scott's relatively recent employment with the disability services sector, his reported statement to his psychologist expressing disgust with himself was plausible. I accept, on the probabilities that he is remorseful.

Rehabilitation prospects and likelihood of re-offending

1. Scott told Dr Gilligan that he wants to participate in live-in rehabilitation, to develop his insights and reduce the risk of relapse. He told Dr Gilligan that he had been accepted into live-in rehabilitation. He referred to two close friends, who live in Melbourne, whom Scott considered prosocial and supportive of him.
2. But in a balanced way, which was apt to instil general confidence in his opinions generally, Dr Gilligan considered that even though Scott was beginning to develop insight and awareness and was now open to the idea of dealing with underlying mental health issues, his insight remained low and he had not yet developed the skills for coping. Dr Gilligan noted the importance of community-based rehabilitation and believed that without engaging in treatment to develop his insights, he remained vulnerable to relapse.
3. The Community Corrections Officer noted in the Sentence Assessment Report that, whilst in custody, he had engaged in two institutional instances of misconduct involving possession of prohibited drugs. This influenced the Community Corrections Officer to opine that drug use remained an issue for him and he estimated that Scott was at a 'medium-low' risk of reoffending on the LSI-R level. More positively, the Community Corrections Officer reported that Scott had accessed education and employment planning whilst in custody and had expressed a willingness to engage in intervention.
4. His sister referred to Scott being a loving father and 'wonderful' provider for his family. She considered that he has a circle of friends and even referred to his eldest son, Liam and good friend, Zorona, being prepared to accommodate him upon his release until he found his feet. It is pertinent to record, however, that neither Liam, nor Zorona, gave direct evidence of this willingness. His sister, on the other hand, did express her willingness to offer financial assistance and accommodation herself.
5. The Crown resisted a finding of good prospects of rehabilitation (and remorse). It noted that in the period of offending, Scott had tried to re-engage with criminal associates, whilst on bail, for indictable drug supply and dealing with the proceeds of crime (per Agreed Fact 38). Similarly, the Crown submitted that it could not be found that he was unlikely to reoffend. He had a history also of denying his drug dependence. That was against the reality that he had a lengthy and well-entrenched addiction to amphetamines and ice. He could not demonstrate real progress towards rehabilitation in the last periods he was on conditional liberty.
6. For someone of his age, and the entrenchment of issues affecting his underlying mental health for so long, and his past history, I find Scott's rehabilitation prospects to be guarded.

Hardship to offender

1. Dr Gilligan recorded Scott's reference to his time in custody being hard, due to COVID-19 restrictions.
2. The Crown accepted, as do I, that the Pandemic and the restrictions consequently imposed can be taken into account.

Prior period of custody

1. Scott has spent a period of 1 year, 10 months and 9 days in custody; from the date of his arrest (3 December 2020) to the date of the sentencing hearing (11 October 2022).
2. However a substantial part (8 months) of that period (3 December 2020 to 2 August 2021) was served as the non-parole period in a sentence that was imposed by the Court (Ellis DCJ) on 9 March 2021. That sentence was a variation in a term of imprisonment following Scott's successful appeal against the severity of a sentence imposed in the Muswellbrook Local Court on 7 December 2020, for two offences committed (at Muswellbrook) on 28 September 2020, both involving his supply of a prohibited drug (13.6 g of methylamphetamine) and dealing with the proceeds of crime ($63,250).
3. The Crown accepted that the conduct comprising the H75997846 offence was connected to the index offences and occurred as part of the same episode of criminality and should be factored in when sentencing for the index offence.
4. Taking into account totality and the time already served, the Crown submitted that the sentence should be backdated to 2 August 2021 when the current non-parole period has been served. Counsel for Scott did not contest this submission and I accept it.

COMPARABLE CASES & STATISTICS

1. Counsel for the offenders placed JIRS statistics for the drug supply offence (and, in Cummins' case, the firearm offence) and certain supposedly comparable cases.
2. The Crown engaged in analysis of a sample of cases, but expressed two main reservations.
3. First, because of the significant difference in quantities, situations and prohibited substances identified in past decisions, there was no real range for offending indicated other than the quantity itself.
4. Secondly, the Crown submitted that the circumstances in the case of these offenders did not readily fall within typical categories of offending for this offence, which the Crown identified as: (a) isolated supply or supplies to a purchaser; (b) supplies which are effectively intercepted (such as when made to undercover police); and (c) a large distribution to someone. Instead, Mr Crown submitted that the offending fell within the two broad categories of offending identified in the Agreed Facts for all offenders: direct 'street-level' supplies to customers; and also involvement in distributions.
5. I wish to reaffirm statements made often in the past regarding the limitations on statistics and so-called 'comparables'. In our system of individualised justice, they could hardly not have only limited application. I also accept that the nature and scale of the offending evident in these cases does not fit within a simple paradigm or box. Nevertheless I have had regard to the statistics and the tables of cases drawn to my attention.

Comparison between the co-offenders - generally

1. Save for what they argued about their position relative to Marshall, there was little in the way of direct engagement by the offenders' Counsel as to how the parity principle should apply in their (objective or personal) circumstances which substantially distinguished their positions from each other. This was in no small measure to the agreed facts as to their roles identified earlier in these remarks. The following substantially adopts, as correct, the Crown's position, which effectively elaborated on their comparative roles.

Marshall

1. Marshall was involved in every distribution. He was effectively the head of the Central Coast syndicate. The price list was arranged by Marshall. He negotiated the quantities and arranged for transport and, indeed, had delegated it. It was he who had dealt with the upline Sydney supplier and arranged for collection from Neale (or the co-accused Weis). Marshall used the co-offenders, who had their own supply businesses.

Hanrahan

1. Hanrahan was correspondingly involved in the Tamworth supplies, relative to Marshall with the Central Coast. Hanrahan also on-supplied to Brooks (the latter who also re-supplied) but not to quite so many other dealers as Marshall had on the Central Coast.

Scott and Cummins

1. Until he was arrested, the Crown argued that Scott was Marshall's 'lieutenant', the co-offender to whom Marshall spoke directly.
2. After Scott's arrest, Cummins assumed a similar level of involvement; acting as courier but also being involved, with Marshall, in the planning and coordination of supplies in Tamworth. Scott and Cummins also had their own level of significant street supplies. The Crown submitted that although that might be an indication of parity between Scott and Cummins, on the basis of role, however, Scott engaged in more street level supplies overall, but for a lesser quantity, consideration would need to be given in terms of their respective subjective cases.
3. As to this last matter, Scott had an earlier conviction for drug supply, but Cummins had the longer criminal history generally (with only one drug offence - a possession offence - and no supply offences). Cummins, however, argued that his record was limited and involved less serious offending: this was the first time he had committed a drug supply offence and it was his first offence since 2012.

Neale

1. Neale's role was connected to the receipt of drugs from the upline supplier in Sydney. He was a courier and street level dealer, with heavy oversight from Marshall. The Crown argued, and Neale's Counsel did not dispute, that Neale had greater independence from Marshall than Brooks had from Hanrahan. Relative to the co-offender Brooks, his role was more serious than the latter; since he was involved both in the direct supplies of drugs as well as the couriering of drugs.
2. Cummins and Scott's roles and involvement were broadly similar, below Marshall and Hanrahan, as direct couriers, involved in planning the supplies to Tamworth whilst engaging with their own street supplies.
3. Hanrahan was an important player in Tamworth, and he supplied to the co-offender Brooks (a street-level supplier). His on-supplies were much less than Marshall's. The Crown did not really press any suggestion that Marshall's role was more significant than Hanrahan's other than to say that the evidence suggested the former's deeper involvement. When sentencing Hanrahan, the Court would have to take cognisance of the penalty imposed on Marshall because of the circumstance that Marshall was the opposite, or counterparty to each transaction with Hanrahan. The Court would also have to take cognisance, when sentencing Hanrahan, of the penalty imposed on Brooks.
4. On the aspect of street-level supplies, the only co-offender who acted under Marshall's direction was Neale.
5. The Crown noted that Marshall, Hanrahan and Scott all had prior offences for drug supply.

The co-offender Brooks

1. This co-offender received a sentence of 3 years and 11 months' imprisonment (with a non-parole period of 2 years) and was also subject to a confiscation order of cash. Brooks was sentenced to a less serious offence, of possession for the purpose of on-supply (s 25(1) of the DMT Act), but had asked the Court to take into account multiple offences on a Form 1 attached to that offence. In Brooks' sentencing proceeding, he agreed with the description of his role that appeared in this joint sentencing proceeding: that he purchased and received ice from Hanrahan for the purpose of on-supply. There were certain aggravating circumstances operating in his case. His personal circumstances (as indicated in the sentencing remarks of Payne DCJ) were, however, substantially similar to the co-offenders.

SYNTHESISING SENTENCE CONSIDERATIONS FOR ALL OFFENDERS

General

1. In all cases, I take into account the maximum penalties and the standard non-parole period, for the respective offences. That is important, here, where they differ amongst the co-offenders: the maximum penalty and standard non-parole period is higher for the offence in the cases of Hanrahan and Cummins (large commercial quantity) than it is for the offence in the cases of Neale and Scott (commercial quantity).
2. In all cases, I also take into account, the considerations in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act). The Crown stressed that there is a consistent line of authority that in cases of drug trafficking of this kind, general deterrence and protection of the community are very important; along with denunciation, recognising the harm that drug dealing can have on the community generally and, at a smaller level, individuals and families.
3. I accept the Crown's submission that involvement in a significant distribution network augments the requirement of general deterrence and protection of society to discourage and disrupt ongoing trade in drugs.
4. In all cases, I have, as indicated in the detailed treatment of the subjective cases of each co-offender, identified at least some mitigating factors; specifically identifying where, by reason of childhood disadvantage, mental illness or drug addiction (where that was not reasonably to be regarded as being a free lifestyle choice), there is some reduction in the moral culpability of each individual co-offender. I have recognised that the considerations of general deterrence, specific deterrence, retribution and denunciation are moderated to that extent. But I have also recognised that especially in those cases where co-offenders have had entrenched drug addictions, poor criminal histories and only guarded prospects of rehabilitation, significant weight is to be ascribed to the need for the respective sentences to protect the community.
5. I also take into account the parity principle.
6. All of the co-offenders conceded that the s 5(1) threshold under the CSP Act was crossed in their respective cases. I so find.

Intensive correction order

1. Counsel for Cummins expressly conceded that it was unlikely that the Court would impose an intensive correction order for his client. Counsel for Scott expressly conceded that this would be inappropriate for his client. Counsel for Hanrahan did not argue that a term of imprisonment served by an order for intensive correction was appropriate for his client. Given the gravity of the offending, none of these co-offenders would, with reference to s 66(3) of the CSP Act (and s 3A), 'qualify' for this sentencing option.
2. The co-offender Neale's position was an outlier. His Counsel submitted that it would be open to the Court to determine a head sentence, which put that offender within the range whereby he could be subject to serving the term of imprisonment by intensive correction, with a home detention condition adequately addressing all sentencing factors (in s 3A) and the matters referred to in s 66 of the CSP Act. One of the sentencing considerations was to aid an offender's rehabilitation. An ICO would best achieve that objective. He is unlikely to re-offend and is not a risk to community safety. His Counsel invited the Court to order the provision of a sentencing assessment report to ascertain Neale's suitability for a home detention condition.
3. The Crown submitted that the length of the term of imprisonment would render Neale ineligible for this particular option (citing Quinn v Commonwealth Director of Public Prosecutions (2021) 106 NSWLR 154). It argued that despite the period on bail, Neale had not actively sought treatment. The Crown submitted that the appropriate way for his rehabilitation would best be achieved by parole, rather than by an ICO.
4. Having regard to my assessment of the nature and seriousness of Neale's offending, as indicated earlier in these remarks, consistently with s 66(3) of the CSP Act, and s 3A, I am not satisfied that an intensive correction order is appropriate for that offender either.

Special circumstances

1. In the case of Hanrahan, the hardship he has endured, and will continue to endure, in custody due to his mental health issues and Covid-19 restrictions and the prospect that his rehabilitation may be better served by a longer than usual period on parole favours a finding of special circumstances. Scott is in a similar position.
2. Those comments more or less apply to the other co-offenders as well.
3. In the case of Cummins, his time in incarceration appears to have been the most productively used, relative to other co-offenders, and his rehabilitation prospects would be especially enhanced by a longer period on parole.
4. In the case of Neale, hardship to his family represents an additional consideration supporting the finding.
5. I am mindful of the Crown's admonition, that the subjective features of the offenders' cases, already taken into account in the framing of the head sentence, should not lead to the imposition of a minimum term which is disproportionate to the gravity of the offending.
6. I have also selected a proportionate variation for each co-offender to reflect my consideration of each of the offender's individual cases.

Mr Hanrahan

1. Mr Hanrahan, please stand.
2. You are convicted of the sequence 3 offence, of supply of a prohibited drug, Methylamphetamine, being in an amount not less than a large commercial quantity.
3. Taking into account your guilty plea, and the two offences on the Form 1 attached to that principal offence, I sentence you to a term of imprisonment of 9 years commencing on 2 December 2020 and expiring on 1 December 2029. The non-parole period is 6 years expiring on 1 December 2026 after which you will be eligible for release.

Mr Cummins

1. You are convicted of Counts 1 and 2 on the Indictment.
2. The indicative sentences in your case (taking into account your guilty pleas, the 6 additional offences on a Form 1 attached to Count 1 and the additional single offence on a Form 1 attached to Count 2) are: Count 1: 6 years and 3 months' imprisonment (NPP 3 years and 10 months) Count 2: 3 months' imprisonment
3. In your case, the Crown could not establish a connection between your possession of the firearm and your drug trafficking. They were, in short, discrete offences. A consequence is, however, when applying the totality principle, that there is not much scope for concurrency and some accumulation should apply to your sentences but not so much as to exceed my assessment of your criminality overall.
4. Taking into account your pleas of guilty and the Form 1 offences I referred to a moment ago when supplying the indicative sentences, I sentence you to a term of imprisonment of 6 years and 4 months commencing on 2 December 2020 and expiring on 1 April 2027. The non-parole period is 3 years and 11 months, expiring on 1 November 2024 after which you will be eligible for release.

Mr Scott

1. Mr Scott, please stand.
2. You are convicted of the sequence 34 offence, of supply of a prohibited drug, Methylamphetamine, being in an amount not less than a commercial quantity.
3. Taking into account your guilty plea, I sentence you to a term of imprisonment of 5 years and 3 months, commencing on 2 August 2021 and expiring on 1 November 2026. The non-parole period is 3 years and 3 months, expiring on 1 November 2024 after which you will be eligible for release.

Mr Neale

1. Mr Neale, please stand.
2. You are convicted of the sequence 19 offence of supply of a prohibited drug, Methylamphetamine, being in an amount not less than a commercial quantity.
3. Taking into account your plea of guilty, I sentence you to a term of imprisonment of 4 years and 3 months commencing on 12 October 2022 and expiring 11 January 2027. The non-parole period is 2 years and 4 months, expiring on 11 February 2025 after which you will be eligible for release on parole.

Publication of these remarks

1. Finally, I wish to indicate to the parties that, subject to reasoned objection by the parties, I propose to publish these reasons on Caselaw.
2. In this regard, it is pertinent to note that shortly before the sentencing hearings of these offenders commenced, the Crown had applied for an adjournment to enable an ex officio indictment against the co-accused Carruthers and Weis to proceed.
3. I note that recently, the practice of the Court of Criminal Appeal has changed so that where a re-trial is necessary, a protocol is in place to ensure that a prospective jury is not prejudiced by what they see on Caselaw. As I understand the position, a not insignificant responsibility is placed on the Director in this regard. I do not see why the same principle should not be at play in the situation where co-offenders are sentenced before a trial for a co-accused, where the co-offenders have agreed to facts about the co-accused's conduct.
4. It will be up to the Crown and those representing Carruthers and Weis to take steps so as to remove publication of these remarks, or more accurately, a redaction of any references to Carruthers, closer to any trial in which he may be involved.

Postscript

1. The Court heard from the Crown and decided to refrain from publishing these remarks until further notice is received from the Crown.

Amendments 07 June 2024 - Publication restriction lifted following notice received from the Crown 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: 07 June 2024