R v Henderson; R v Fitzsimmons

OBJECTIVE SERIOUSNESS

1. In sentencing the two offenders, as with any sentencing exercise, it is necessary for me to make an assessment of the objective seriousness of their various crimes.
2. In sentencing Mr Henderson, I must make an assessment of the relative seriousness of his offending.
3. Sequence 1 and sequence 13 are drug supply offences which have been regarded as serious by the courts and by the community for many years. The objective seriousness of the offences in his case is underlined by the maximum penalty of 15 years imprisonment for the sequence 1 offence and 20 years with a standard non-parole period specified of 10 years for the sequence 13 offence. These are, of course, important guideposts in the sentencing exercise.
4. However, in assessing the objective seriousness of those offences it is important that I focus on the offender's role in committing those offences. In other words, that I determine, to the extent that I can, what he did. While regard must be had to the quantities of drugs involved, that is by no means the most important consideration, although it remains highly relevant. What is more important, as I have already said, is the role of the offender and the level of his participation.
5. I turn first to the sequence 13 supply commercial quantity offence. This offence involved a combined total of 254 grams of methylamphetamine which is a significant amount, although only just over the minimum quantity of 250 grams which is an element of the offence of supply "commercial" quantity. It is, therefore, towards the bottom of the range of amounts capable of making out an offence of supply commercial quantity.
6. Annexure A records, however, that the supplies undertaken by or agreed or arranged by the offender took place on almost a daily basis over a period of about 21 days, involving more than 50 transactions with more than a dozen different customers, although several of them being repeat customers. The transactions demonstrate a very hands-on role being performed by the offender in which he carried out a "dial-a-dealer" sort of business which also involved him negotiating prices and carrying out most of the deliveries himself and presumably receiving payment after arranging a meeting place.
7. While annexure A to the agreed facts in his case also demonstrates that there was some use of coded words, this was rather rudimentary and it cannot be described as sophisticated. Nonetheless, the offence involved some planning by reason of the offender having to source the drugs so as to have them available at short notice when contacted by his customers. There is no evidence that the offender had access to very large quantities of drugs but it is clear that he had a reliable source that was able to feed the pipeline to meet the regular demand for the supply of transactions that the offender engaged in. I think he might be described as a mid-level dealer.
8. Also relevant to the seriousness of the offence is the fact that most or all of the drugs were actually disseminated into the community with the inherent harm associated with that fact. There is no doubt that these transactions were carried on for the purposes of monetary gain, although that is a feature of virtually all drug supply offences and not a matter that I treat as aggravating the offence.
9. Having regard to all the evidence and the matters to which I have referred, I assess the objective seriousness of the sequence 13 offence as being slightly below the mid range for a supply commercial quantity offence.
10. I intend also to take into account in sentencing for this sequence 13 offence the six matters on the Form 1 document. These offences do not increase the objective seriousness of the sequence 13 offence but, in my view, they do justify me giving greater weight to the need for personal deterrence and to the community's entitlement to exact retribution for serious offences. In this regard, I consider the sequence 2 supply offence, which relates to the 101 grams of methamphetamine left in the caged vehicle, and the dealing in suspected proceeds of crime offence relating to the $6,450 cash, as being the most relevant of the offences on the Form 1.
11. While the offence of possessing an unregistered firearm, which is also on the Form 1, carries a maximum penalty of 14 years imprisonment, marking it as ordinarily an objectively serious offence, there is a great deal of overlap between this offence and the sequence 3 offence of possessing a shortened firearm which relates to the same weapon and for which the offender is to be sentenced separately.
12. Turning then to the objective seriousness of the sequence 1 offence of supply prohibited drug. That offence relates to the 132 grams of methylamphetamine which was found in the Nike bag inside the offender's vehicle, together with the indicia of drug supply and also drug use. The quantity, at 132 grams is about 26 times the indictable quantity of 5 grams, although well short of the commercial quantity of 250 grams. This offence was not an actual supply but, rather, a "deemed" supply by reason of the quantity being in excess of the trafficable quantity of 3 grams.
13. Having said that, it is obvious, based on the presence of the scales and plastic resealable bags, as well as the transactions which the offender had engaged in during the period leading up to his arrest, that a significant portion of this 132 grams was intended to be sold by him to his various customers. As already noted, 132 grams is obviously a substantial quantity which, based on the sale prices disclosed in Annexure A to the agreed facts, was clearly worth many thousands of dollars.
14. I assess this offence also as being slightly below the mid range of objective seriousness for a supply type offence.
15. Turning then to the sequence 3 possess shortened firearm offence. In terms of the objective seriousness of this offence, I accept, as counsel for the offender submitted, that, although shortened, the weapon in question was a single shot rifle which, while capable of killing or causing serious injury, was not as dangerous and therefore not as serious as a multi-shot or rapid fire weapon. Being a 0.22 calibre also renders it somewhat less serious than if it had been a more powerful weapon. The rifle was not secured properly but was hidden in a garage away from living areas where it might have been more easily stumbled upon by children. Although there was suitable ammunition nearby, the weapon was not loaded. It is also relevant that the serial number of the weapon had been obliterated. On the other hand, while the weapon is accepted to have been in the offender's possession in the sense of his custody and control, it was not physically on his person or in his premises and, therefore, not readily able to be used by him in any immediate sense.
16. It was argued by the offender that there was no evidence of any relationship between the possession of this weapon and the supply of drugs, and the Crown did not seek to challenge this proposition in any meaningful way. I therefore put aside this obvious suspicion which I cannot be satisfied about beyond reasonable doubt.
17. Having regard to these matters and the relevant agreed facts, I assess this offence as being comfortably above the low range but below the mid range of objective seriousness.
18. I turn then to the objective seriousness of the offence relating to Ms Fitzsimmons. As already noted, drug supply offences must be treated seriously and the objective seriousness of the offences committed by Ms Fitzsimmons are confirmed by the fact that they each attract a potential maximum penalty of 15 years. Deterrence, both personal and general, are very important factors to be taken into account in sentencing for drug matters.
19. As to the sequence 2 knowingly take part in supply offence, I make the following observations and findings. This offence involved the offender knowingly taking part on eight occasions in supplies of methamphetamine to a total quantity of just over 19 grams over a period spanning about 19 days. These were supplies in which she acted at the direction or request of her co-offender Mr Henderson. Most of the quantities supplied were small and within the range of 0.1 gram to 1.75 grams, although on one occasion she took part in the supply of just over 15 grams.
20. It appears, either from the direct evidence or by inference from the nature of the business operated by Mr Henderson, that Ms Fitzsimmons' role in these transactions also involved collecting payment in exchange for the drugs on behalf of Henderson. The total quantity at 19 grams is nearly four times the indictable quantity and about six times the trafficable quantity. As was submitted on her behalf, it appears that Henderson made the decisions about the quantity, price and mostly the location of the various supplies. While there is no evidence that Ms Fitzsimmons retained any direct financial profit. I infer that she did receive some benefit, either by way of a sharing of profits or in having ready access to a supply of drugs for her own use.
21. I assess this offence as being below the mid range and towards the lower range of objective seriousness.
22. In relation to the sequence 14 supply offence, I make the following findings. This relates, of course, to the supply of 26 grams of methamphetamine which took place over a period between 27 March and 21 April 2021 and involved 32 transactions. Most of the transactions, however, were repeat customers and involved a total of eight different persons who, it is agreed, were social contacts of the offender. Although the total quantity of 26 grams is more than five times the indictable quantity, each of the transactions were relatively small, ranging from 0.88 of a gram to 1.75 grams, indicative of personal consumption rather than on-supply to others.
23. The offence did not involve any significant planning or sophistication, although it is clear that the offender was exercising her own judgment and discretion in agreeing to supply, in determining the manner of delivery, and in receiving payment.
24. In my assessment, this offence, while below the mid range, is comfortably above the lower range.
25. I turn then to consider the subjective cases of each of the offenders.

SUBJECTIVE MATTERS (HENDERSON)

1. I start with Mr Henderson. He is now 27 years of age and was 26 at the time of the offences. His criminal history does not assist him. In October 2018 he was sentenced in this Court to a total effective sentence of six years three months with a non-parole period of three years nine months for offences of drug supply and possessing a shortened firearm and unauthorised pistol. He was released to parole on that sentence on 19 September 2020. However, on 2 April 2021, while on parole, he committed further offences including possessing drugs, a knife and a prohibited weapon. He was arrested for those offences on 3 April 2021 but given bail that same day, and on 4 August 2021 was sentenced in the Local Court to fixed terms of imprisonment, and also placed on Community Correction Orders. As is now known from the facts before this Court, the offender at the time of being arrested and released to bail on 3 April 2021 was still actively engaged in his drug supply business which he continued to operate while on bail and on parole until he was re-arrested on 22 April 2021 and charged with the various offences now before the Court. I will return to this issue later in these reasons when considering prospects of rehabilitation, future risk and remorse.
2. The subjective case for Mr Henderson has been placed before the Court by means of the psychological reports of Dr Rebecca Smith of September 2018 and February 2022. The offender described his homelife as a child as good, with supportive parents but with some level of instability and insecurity, especially given that his father spent some time in prison. The psychologist concluded in her 2018 report that Mr Henderson's offending behaviour at that time stemmed from a childhood history of parental permissiveness of drugs and firearms, and also the offender's dyslexia which caused problems and truancy from school.
3. Prior to being sent to prison in December 2016, he had a fairly good work history based on his trade qualifications in industrial sandblasting and spray-painting. He told the psychologist that he had always worked, even when he was using drugs.
4. The offender is now the father of two children. In 2018 he spoke positively of his desire to be a productive father and role model for his older child.
5. The psychologist noted in 2018 that the offender had never undertaken any drug rehabilitation but appeared genuinely motivated to engage in such treatment, once paroled.
6. She concluded that at that time he did not appear to have any obvious mental health concerns other than anxiety and a habit of turning to drugs to cope.
7. In her supplementary report in February 2022, the psychologist reaffirmed these conclusions but also noted that on this most recent assessment the offender disclosed abuse by a teacher in years 2 and 3 at school, a matter which he had previously kept to himself. The psychologist concluded that this history is also a likely contributor to the offender's cycle of reoffending, whereby he begins drug use to cope with stress, then falls into selling drugs to maintain his habit and pay debts. She again noted that the offender had never undertaken drug rehabilitation and that he told her that he believes he needs treatment. She thought he was genuinely motivated to engage with drug and alcohol rehabilitation if an opportunity is provided. However, I note that she said pretty much the same thing in her 2018 report, namely: "He demonstrated what appeared to be genuine motivation to engage with drug and alcohol rehabilitation, once paroled."

REMORSE (HENDERSON)

1. In relation to remorse, I note that the psychologist said in her recent report that the offender "demonstrated a reasonable level of contrition" but I also note that the psychologist used those exact same words or words to that effect in her 2018 report, after which the offender returned to drug offending.
2. In these circumstances, and in the absence of evidence on oath from the offender, I am sceptical of his claims to remorse or contrition which I think are more likely just regret for having been caught and imprisoned. It seems to me that there is little by way of genuine remorse in his case.

PROSPECTS AND RISK (HENDERSON)

1. It is difficult to form a positive view about Mr Henderson's prospects of rehabilitation, especially given that the offences before the Court were committed while he was on parole for similar offences committed in 2016 and were in part committed while he was on bail for the offences of 2 April 2021. It is positive that he has a trade and good work history. It is also positive that he has begun to address underlying psychological problems by disclosing the abuse he suffered as a school student. There is also the fact that since being in custody he has secured a position on the buprenorphine programme. These are, I hope, positive early steps towards seeking help to address his problems and avoid drug use and reoffending. The offender told the psychologist that: "I need drug treatment or rehab, instead of being stuck in gaol. I've never once been offered rehab or Drug Court or nothing,"
2. and: "If I was in a supportive environment, I'd do well. I need a pathway and support. I'd try anything to better myself."
3. At face value, those comments sound positive, but they do not give me confidence that the offender has yet acquired the insight and maturity to realise that it is he who needs to take control of his life and address his own problems, rather than relying on others to do it for him.
4. It is also positive, however, that he has the ongoing support of his parents, partner and extended family who attended court last week to support him. Hopefully he realises that he is lucky to have this support and that this will provide him with some motivation, one would hope, to take charge of his life and take responsibility for his own rehabilitation.
5. While there are some glimmers of hope, I think he remains a significant risk and his future prospects are uncertain.

SUBJECTIVE MATTERS (FITZSIMMONS)

1. The subjective case for Ms Fitzsimmons has been placed before the Court by means of a body of written material. She is now 42 years of age and has a limited criminal history, mostly involving drug and alcohol related offences and two offences of violence. She has never been sentenced to imprisonment. The last occasion on which she came before a court was almost 12 years ago.
2. Her parents separated when she was about three years old, after which her mother entered another relationship with a man who became her stepfather. The offender was well cared for by her mother and stepfather but was badly affected when her stepfather died in 1993 when the offender was only 13. After this, due to the effect upon her mother of her partner's death, the offender took on a carer's role, dealing with household duties and looking after her brother. The offender's mother died in 2012 which again affected the offender very badly.
3. After leaving school, the offender worked in a number of retail jobs and currently works in a restaurant and lives in Cessnock with two of her three children.
4. She has a history of drug and alcohol problems which she told the psychologist she resorted to as a means of numbing her distress from a long history of domestically violent relationships. She has not, to date, engaged in any substantial drug and alcohol counselling but has more recently undertaken a number of sessions with a social worker aimed at addressing her mental health and substance use issues.
5. The psychologist concluded that Ms Fitzsimmons presents with multiple symptoms sufficient to warrant a diagnosis of Post-Traumatic Stress Disorder arising from domestic violence and that she had this condition at the time of her offences. The psychologist says that Post-Traumatic Stress Disorder likely impacted upon her ability to make appropriate choices and led to increased impulsivity and impairment of her resistance to temptation and assessment of risk.
6. I accept that her background and mental condition did contribute to her offending in this broad sense, although the offences themselves are more closely linked to the offender's substance dependence disorder.
7. The Court has a letter from an assistant manager of the hotel where the offender has been working since December 2020, who describes her as punctual, diligent, enthusiastic and with great customer service skills. She is described as a valuable employee whose employment will be supported notwithstanding disclosure of these offences.
8. There is also a letter from the offender's sister-in-law who is aware of the offences and remains supportive of her.
9. Given the offender's limited criminal history, her stable employment and housing and her responsibility for her young son, I assess her prospects of rehabilitation as being reasonably positive. However, they will depend in large part on whether she can stay away from drugs, limit her alcohol use and commit herself to obtaining treatment to avoid substance abuse and poor relationships in the future.
10. The psychologist says that the offender expressed remorse and regret for her offending. Whilst there is no evidence on oath, this is given some support in the letters from her employer and sister-in-law who say that she accepts that she has made poor choices and has learnt valuable lessons. I am satisfied that there is some evidence of remorse in her case.

DETERMINATION (FITZSIMMONS)

1. I am satisfied in relation to Ms Fitzsimmons that the s 5 threshold in the Crimes (Sentencing Procedure) Act 1999 has been crossed; in other words, that a term of imprisonment is required.
2. The offender is convicted. I intend to impose an aggregate sentence. Given that intention, it is necessary that I set out the indicative sentences that I would have imposed had I not imposed an aggregate sentence.
3. Ms Fitzsimmons what I am about to announce are what are called indicative sentences. They are not the sentence that I will impose. That will be made clear at the end of these remarks. Do you understand?
4. The indicative sentences are as follows. For the sequence 2 knowingly take part in supply offence involving the 19 grams, after the 25% discount, 18 months imprisonment. I note that before the discount I started with a period of 24 months. For the sequence 14 offence of supply 26 grams, after a 25% discount, the indicative sentence is 21 months, involving a 25% discount from a starting point of 28 months.
5. Instead of those sentences, I impose an aggregate sentence of 33 months; in other words, two years nine months.
6. In relation to the offence on the s 166 certificate, which is the possession of 0.15 grams of methylamphetamine, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999, I convict the offender but I impose no other penalty.
7. I have given consideration to whether the sentence in Ms Fitzsimmons' case ought to be served by full-time custody or whether it is more appropriate that it be served in the community by means of an Intensive Correction Order. Section 66 of the Crimes (Sentencing Procedure) Act 1999 provides, in part, that community safety is to be the paramount consideration when deciding whether to make an Intensive Correction Order. It also provides that when considering community safety, I must assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender's risk of offending. In making these assessments, I must also consider the purposes of sentencing set out in s 3A of that same Act and any relevant common law sentencing principles, as well as any other matters I consider relevant. In making that assessment, I have had regard to the observations of the Court of Criminal Appeal in various cases that have considered s 66 and Intensive Correction Orders, including R v Fangaloka [2019] NSWCCA 173 and the numerous cases that have, since that time, considered the issue.
8. The fact that Ms Fitzsimmons has complied with her bail conditions, which include regular reporting, has not reoffended, and continues in full-time employment, are in my view matters which support the conclusion that her arrest and charging have already had a deterrent and rehabilitative effect on her. I have also had regard to the conclusion of the psychologist which accords with my own assessment that the offender needs treatment to deal with her drug, alcohol and mental problems and is unlikely to receive effective treatment in a custodial environment.
9. I have also considered the important purposes of sentencing set out in s 3A including the need for adequate punishment, personal and general deterrence, the need to denounce the conduct and make the offender accountable for her actions, and recognise the harm caused by the offences. I have also taken into account the importance of promoting the rehabilitation of the offender which, in my view, is a significant consideration in this case.
10. In my view, the offender's risk of re-offending will be reduced if she is permitted to remain in the community caring for her children, continuing in her employment, and participating in counselling and other treatment, than it would be if she was subjected to imprisonment and the negative peer influences that she is likely to encounter there. Having balanced these various matters, I am of the opinion that the offender's risk of re-offending would be better addressed by the imposition of an Intensive Correction Order.
11. As I have said, you are convicted. I impose an aggregate sentence of two years nine months. However, pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999, I order that that term of imprisonment be served by way of Intensive Correction Order in the community.
12. That will be subject to a number of conditions. The first two are what are called standard conditions. Firstly, that you not commit any offence. Secondly, that you submit to supervision by a Community Corrections officer. I impose a number of additional conditions; in fact, five additional conditions. Firstly, that you not consume illicit or prescription drugs other than as prescribed by a medical practitioner. Secondly, that you submit to urinalysis for the detection of any such drugs as directed by Community Corrections. Thirdly, that you undertake counselling for treatment for drug and/or alcohol abuse as directed by Community Corrections. Fourthly, that you undertake such other counselling or treatment as directed by Community Corrections. Fifthly, that you not associate with Eddie Henderson. Do you understand those conditions?
13. OFFENDER FITZSIMMONS: Yes.
14. HIS HONOUR: I direct that you report to the Community Corrections office at Maitland within 48 hours from today.
15. In relation to the offence of possessing 0.15 grams of methamphetamine, pursuant to s 10A, I think as I have already said, I convict you but I impose no further penalty.
16. Ms Fitzsimmons, you will have to go to the registry in this building to enter into that Intensive Correction Order. You can do that now if you wish or, if you wish, you can remain to hear the remainder of the proceedings. What do you want to do?
17. OFFENDER FITZSIMMONS: No, I'll stay.
18. HIS HONOUR: All right, you wish to stay, all right.

DETERMINATION (HENDERSON)

1. Turning then to Mr Henderson, I am satisfied in his case that the s 5 threshold has been crossed in relation to all three offences and no submission to the contrary was put to me.
2. I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 to which I have already made reference. Clearly personal deterrence must be given significant weight in his case, especially given the prior drug and firearm matters on his record and the fact that the offences before the Court were committed while he was on parole in relation to those matters.
3. I intend to impose an aggregate sentence in his case.
4. In determining the indicative sentences which I will announce in a moment, I have had regard to statistics held by the Judicial Commission for each of the three offences, although I am conscious of the limitations of such statistics. I have also had regard to a number of decisions of the Court of Criminal Appeal including the following: Kennedy [2016] NSWCCA 187; Owen [2017] NSWCCA 54; Kurniawan [2017] NSWCCA 171; and Yeung [2018] NSWCCA 52. As I say, I have had regard to those decisions. I do not suggest that they are completely comparable with Mr Henderson's case but, nonetheless, I have found them of some broad assistance.
5. Given that I am sentencing for three separate offences, I have had regard to totality principles. Given also that I am imposing an aggregate sentence, it is necessary for me to record the indicative sentence that I would otherwise have imposed and I will do that now.
6. Mr Henderson, these are what are called indicative sentences. They are not the final sentence. I will make that clear in a few moments.
7. The indicative sentences are as follows. Firstly for the sequence 13 offence which is the supply commercial quantity and taking into account the matters on the Form 1 document, I note that I have commenced at a term of seven years imprisonment from which I have removed or discounted by 25% for the plea of guilty, which arrives at a period of five years three months. However, having regard to the matters on the Form 1, the indicative sentence is five years six months with a non-parole period of three years three months.
8. The sequence 1 offence, from a starting point of four years, I have removed 25% by way of discount, and the indicative sentence is three years.
9. For the sequence 3 firearm offence, from a starting point of four years six months, I have discounted by 25% to reach an indicative sentence of three years four months.
10. I have made a finding of special circumstances in his case, based on there being some signs that the offender may be beginning to address issues. I intend to set the non-parole period at 60% of the head sentence, which I will note in just a moment, so as to provide a significant period of supervision on parole and an opportunity for the offender to address his drug and other issues while subject to that supervision.
11. I impose an aggregate head sentence of six years four months. I impose a non-parole period of three years ten months.
12. The date of commencement is an important issue to which I have given close attention. It is complicated in Mr Henderson's case by the fact that on 22 April 2021 his parole was revoked on his 2018 sentence and he has been ordered to serve the balance of his sentence, which will not expire until 19 March 2023. That sentence relates to entirely separate offending to the offences that I am dealing with and, therefore, as counsel for the offender accepted, some level of accumulation is required or at least appropriate. In addition, the offender was from 4 August until 14 December 2021 serving fixed terms of imprisonment that were imposed by the Local Court in relation to offences committed on 2 April 2021.
13. I have also taken into account that, apart from a period of about seven months at liberty, between September 2020 and April 2021 he has been in custody since 20 December 2016 when he was only 21. While it is important that I impose a sentence that acknowledges the seriousness of the offending and reflects the various other purposes of sentencing, the sentence must also have regard to totality principles, the need to avoid a crushing sentence and to minimise the risk of institutionalisation of a still relatively young man.
14. Balancing these various considerations as best I can, I order that the sentence commence on 14 December 2021.
15. I note that I have also, of course, taken into account those various matters when considering the overall aggregate term and non-parole period; and when I refer to "those various matters" I mean the matters I referred to just before noting the commencement date.
16. The head sentence of six years four months will commence on 14 December 2021 and will end on 13 April 2028. The non-parole period of three years ten months will commence on 14 December 2021 and end on 13 October 2025 when he will be eligible for release on parole.
17. In relation to the offence of custody of a knife in public on the s 166 certificate, pursuant to s 10A of the Crimes (Sentencing Procedure) Act, I impose a conviction but no other penalty.
18. Mr Henderson, you heard all of that?
19. OFFENDER HENDERSON: Yeah, I heard all that. What was my - what was the - what did I end up - when is my earliest release day?
20. HIS HONOUR: The 13th of October, 2025.

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