HIS HONOUR: In this particular matter the prisoner appears for sentence in relation to an offence of supplying a prohibited drug, to wit MDMA, on 25 August 2016, and also possessing a prohibited weapon without a permit, to wit, a Taser, on the same date.
The offence of supplying a prohibited drug carries a maximum penalty of 15 years imprisonment and/or a pecuniary penalty of 2,000 penalty units. There is no standard non-parole period.
The possess prohibited weapon without permit, that is the possession of the Taser, involves consideration of s 7(1) Weapon Prohibition Act 1998, which carries a maximum penalty of 14 years imprisonment, with a standard non-parole period of five years.
The prisoner was in custody from the time of his arrest on 25 August 2016 till released on bail, as I understand it on 3 November 2016. That is a total of 71 days, which is two months and ten days.
Furthermore, the prisoner has been since late 2016 undertaking a course of rehabilitation at the Odyssey House premises near Campbelltown, about which there have been a number of reports prepared, and I will come back to that material.
It is agreed, as I understand it from the submissions that were made last time the matter was before me, which was only a few days ago, that up until 21 February 2018, the offender had 436 days of rehabilitation custody so to speak. I adjourned the matter to today to try and deal with the matter promptly. Which means that the prisoner has had a further two days as a patient, if that is the correct expression, at Odyssey House.
If I was to give the offender credit for 50% of the time spent at a rehabilitation centre as a resident the calculation was that any sentence I impose should commence on 7 May 2017. I propose to give the benefit to the prisoner of 50% of that time spent at Odyssey House, in accordance with what has been said about credit being given for residential rehabilitation in cases such as The Queen v Sullivan [2004] NSWCCA 99; and Truss v The Queen [2008] NSWCCA 325.
I have adjusted the commencement date of the sentence that I have foreshadowed to the prisoner from 7 May to 6 May in the context of the additional two days since the calculation was addressed.
In relation to this matter, before I get to the facts, there was an overarching aspect of the matter very relevant to the material before me that troubled me.
To put it bluntly, there is no doubt, as counsel for the prisoner conceded that, in respect of the offending that the prisoner was to be sentenced for, the "threshold" set down in s 5 Crimes (Sentencing Procedure) Act 1999 had passed. In other words, for the criminality for which the prisoner was to be sentenced, no other sentence other than a term of imprisonment could be imposed.
I point out, I hasten to say, that in respect of the principal offence, the supply matter, I am required to take into account some matters on a Form 1.
The facts are too that any term of imprisonment that was to be imposed would have to be greater than two years, recognising in part of course past time in custody and the like, and thus in the circumstances no other sentence other than a term of imprisonment with a non-parole period could be imposed.
It was submitted very skilfully on behalf of the prisoner on the last occasion that I should fix a non-parole period that would expire on the date of sentence to allow the prisoner to return to the community immediately.
This submission is to be addressed in my view in the context of, as I said earlier, an overarching principle that to my mind is of some importance in this particular exercise. Although ultimately it does not permit me to allow the prisoner to return to the community, subject to parole, immediately.
In the judgment of Blackman and Walters [2001] NSWCCA 121, the Court of Criminal Appeal came to consider the appropriateness of an order suspending a term of imprisonment in respect of quite serious criminality, perhaps on one view of it, although it was very different criminality, more serious criminality than that with which I am concerned at the present time.
In the course of giving judgment in relation to the matter, the learned Wood J for the Court of Criminal Appeal, specifically adopted principles that were laid down in two South Australian cases. One case was the decision of Kovacevic [2000] 111 ACrimR 131, particularly at 139, where the South Australian Full Court stated:
"There is still a need to consider all aspects of the matter and to consider the interests of society and of the offender and the rehabilitation of the offender. Also in an appropriate case there may be room for the exercise of mercy and leniency".
A pertinent, or perhaps more pertinent principle, or principles, adopted by the Court of Criminal Appeal, and continue to be adopted I hasten to say in other decisions of the Court of Criminal Appeal, were the observations of King CJ, in the 1979 decision of Yardley v Betts (1979) 22 SASR 108 at 112-3.
The learned Chief Justice in that matter made the observation:
"The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and those who have not developed settled criminal habits. If a sentence had the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists an order (sic) to avoid offending in the future, the protection of the community is to that extent enhanced. To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm."
I appreciate those observations adopted by his Honour back in 2001 have to be seen in modern sentencing in the context of the operation of s 21A of the Crimes (Sentencing Procedure) Act 1999, hereinafter to be referred to as 'the Act', which did not exist in its current form in 2001, and of course in the terms of s 3A of the Act.
Of vital importance in sentencing are the requirements of the Court to impose a sentence on an offender that takes into account the purposes of sentencing, including adequate punishment; preventing crime by deterring the prisoner and others, in other words personal and general deterrence; protection of the community from the prisoner or offender; making the prisoner accountable for his or her actions; denouncing the conduct of the offender; and recognising the harm done to any victim of the crime for which the offender is to be sentenced.
Here, in the context of a drug supply matter, there is no specific victim that can be identified. But one of the reasons that heavy and deterrent sentences are imposed usually in relation to drug supply matters is because of the recognised harm that drugs do to the community.
In case the prisoner, or those that support him, think that this is some trite observation, or is a matter that is not of great significance, the truth of the matter is Judges such as myself who sit in this Court see every day people convicted and sentenced to terms of imprisonment in relation to serious offending brought about by their drug use and/or dependency. So the harm that is done to the community by the dissemination of drugs, whether it be MDMA, cocaine, heroin, methylamphetamine, or the like, is well known to the Court.
A further purpose of sentencing however is also to promote the rehabilitation of the offender. I appreciate it is just one of a number of purposes that are identified in the Act, but it is a purpose of considerable significance. Of course, in the context of the principles that I have earlier referred to, it is the case that one must be mindful in the sentencing of an offender of the danger of undoing advances a particular prisoner has made from the time of the commission of the offence up until the time that the offender comes to Court for sentence.
In this particular matter, I have tried to reflect upon the promotion of the rehabilitation of the offender in considering the appropriate non-parole period to be fixed. But it seemed to me in the context of the seriousness of the objective offending that no period of actual imprisonment less than 12 months would be appropriate in order to give appropriate weight to the still relevant purposes of sentencing, including adequate punishment, personal and general deterrence, to which I earlier referred. I will come back to other matters of principle that arise in this particular matter, having regard to the facts of the case.
The two matters on the Form 1 are related to the circumstances of the arrest of the prisoner, that is his possession of testosterone, which is described as a "prohibited drug" and his possession of the prohibited drug (Trenbolone).
As the agreed facts state, it was known to the police, or at least heavily suspected by police, that the prisoner was actively involved in drug supply in the Broken Hill area a long time before he was arrested. In fact his mobile phone was the subject of a telephone intercept warrant. This revealed conversations and/or transactions consistent with the supply of prohibited drugs to be "not insignificant".
However, in relation to the matter when informed by an associate on 15 June 2016 that his mobile phone service was tapped, I point out in the context of the telephone intercept warrant being issued on 29 March 2016, the prisoner promptly attended the Telstra store in Broken Hill and bought a new prepaid SIM card to avoid further investigation by the police.
He was arrested on 25 August 2016 and execution of a search warrant at his home revealed in the search of his bedroom a safe concealed beneath a drawer in an item of furniture in which were found 270 orange tablets, subsequently analysed to be 59.2 grams of 3, 4 methylenedioxyamphetamine of 6% purity. The police estimated the street value of this drug as approximately $15,000.
Although the prisoner claimed to a psychologist that the drugs in his possession were drugs that he either would use himself or were there in order to fund his own drug usage, I do not accept that explanation for such a substantial quantity of the drug. Having regard particularly to its value. Although I accept the submission that the purity of the drug was consistent with street dealing activity.
Police further discovered the drugs that are subject of charges on the Form 1. They also located the weapon to which I have referred. This was a handheld device, or an antipersonnel device, in working order. It certainly is not the most lethal or dangerous weapon contemplated by the legislation. There is no evidence that the prisoner had ever used the device. Although there is a telephone conversation intercepted under the warrant, to which I have referred, in which the prisoner made admission of possession of the Taser.
It seems to me in the context of considering the fact that there is a standard non-parole period for this particular offence, that the objective seriousness of the offence is well below the middle range of objective seriousness of offences of that type. Although, of course, the standard non-parole period is a guidepost to the fact that ordinarily a term of imprisonment should be imposed for this particular crime.
Other items were found at the premises, including two Telstra mobile phone starter kits, resealable plastic bags, and other items were consistent with the prisoner's involvement in both drug use and drug supply. He had a number of prescription drugs in his possession for which he did not have a lawful prescription.
The prisoner was born on 10 December 1987, so he was no child when he committed this offence. As I would now calculate it, he is now 30 years of age. He does however have no real criminal history. The only finding of guilt is a minor traffic matter of which he was fined at the Blamey Local Court in April 2015. Notwithstanding some evidence of "drug supply" before his arrest on 25 August, I am prepared to find that he did not have a significant criminal history as a mitigating factor and that he was otherwise, prior to his involvement in drug supply, a person of good character.
The prisoner has been the subject of assessment in various reports by the Department of Community Corrections, largely in the context of the time that he has spent at Odyssey House. I pointed out earlier that he spent a period of just over two months in custody. He was released on bail and shortly afterwards he entered the Odyssey House programme. He entered the programme on 12 December 2016 and has moved through the various levels of the Odyssey House programme up to level 12 and it was because he was undertaking the programme at Odyssey House that I initially permitted the matter to be adjourned from Broken Hill, where I was sitting in late August of 2017, and then again when the prisoner appeared before me on 24 November 2017. In my view it was the case that sentencing of this offender should occur in the context of having all relevant information available to me.
In respect of the latest report, which mirrors the contents of earlier reports, the Odyssey House representative, who is the author, has advised that the prisoner has successfully negotiated the various levels; he has constructively examined his personal conflicts and relationships with other people; as well as issues relating to his drug usage, in the context of accepting that while substantially involved in drug trafficking, as I must find, he himself was a dependent drug user.
Up until the present time he has been undertaking whatever programmes have been provided by the Odyssey House programme. The report most recently tendered has shown that he has demonstrated diligent approach to meeting the requirements of the programme. He has been engaging in approved social and recreational activities in line with the treatment objectives of the programme and he has responsibilities within the programme of supervising residents in lower treatment levels.
He is said to be entirely drug and alcohol free over the period of time that he has been in Odyssey House. This has been evidenced by independent toxicological reports. These matters have all been taken into account in giving him credit in the manner that I have earlier outlined for the time that he has spent at Odyssey House.
The reports from Odyssey House also demonstrate the progress of his rehabilitation and the diligence with which he has applied himself to that task, which gives confidence to the Court, in the context of s 21A(2) of the Act, that he has excellent prospects of rehabilitation and he is unlikely to reoffend.
The most recent report that I have from Community Corrections mirrors, as does the Odyssey House report, that has been previously advised. It notes from the perspective of Community Corrections he is a success within the Odyssey House programme. He is noted as being "forthcoming and cooperative with Community Corrections", and has demonstrated "his ability to fully accept responsibility for his actions and has developed insight into his offending behaviour".
The report notes that he has taken "significant steps to address his drug addiction". And it has been a "positive influence within the programme that he has completed".
He is said to be unlikely to benefit from a period of supervision by Community Corrections due to the fact that his assess risk rating is medium or low.
That having been noted in the report, in my view, in the context of the order that I earlier foreshadowed, the prisoner will need an extended period of supervision at the discretion of the Parole Authority, I hasten to say, in order to ensure that he can return to a law-abiding life in the community.
I note, in the context of other information available to me, the prisoner's wish is that on release from his obligations through these proceedings, on parole or by other forms of supervision, he would wish to travel to live in Toowoomba, rather than return to Broken Hill.
The prisoner produced a report from Mr Neil Ballardie, which sets out some details of history which seem to be uncontroversial. The prisoner gave evidence before me. I thought he was an impressive witness and adopted the truth of the detail of the report and confirmed in his evidence the matters which had been the subject of comment by both Odyssey House representatives and the Community Corrections Service.
The prisoner grew up in Broken Hill. Sadly, his father apparently took his own life some few weeks, or a month, after the prisoner was charged. There is nothing in the material before me to suggest or confirm that that event was directly related to the arrest of the prisoner and I have no details of the reasons for that man taking his life. But obviously it must have been a significant burden to the prisoner, having gone into custody for the first time in his life, to lose his father in such circumstances and no doubt a terrible blow to the rest of the prisoner's family.
The prisoner is a person with trade qualifications. He has completed an apprenticeship as a carpenter and he has been in regular employment for quite a number of years in a range of ways. He in fact was in employment at the time of the commission of the offences with which I am concerned.
So far as his use of drugs are concerned, after drinking some alcohol from the age of about 16; he started using cannabis also when age 16. He moved to the use of amphetamine type drugs at about the age of 22.
He first tried MDMA at 18 years of age and consumed this until 22 years of age and was a regular consumer of ice by the time he was 25 years of age. Although it would appear he was able to reasonably function within the community, having regard to his employment history.
The prisoner did not complain of a lack of support from his parents but he did reflect upon the fact that as a child, and as a young adult he was rather anxious and shy. He had some difficulties in his personal relationships which did not assist him and it was said by the psychologist that the prisoner may have been using drugs to medicate aspects of his "mental conditions".
One of the difficulties, as often arises in relation to psychological reports, is the attempt by a psychologist with no other material other than the history given by the prisoner and psychometric testing to hypothesise upon mental conditions existing at the time of the offending.
I bear in mind in relation to this aspect of the matter that in this particular case, as is often the case but not always the case, there is no history of treatment by the prisoner for any particular mental illness, or mental disability.
One must approach with circumspection assessments based upon some analysis of the subjective matters provided by the prisoner him or herself given the difficulties of being satisfied that they reflect conditions which existed at the time of the offending.
The psychometric testing undertaken by Mr Ballardie revealed that the prisoner evidenced a moderate range of symptoms for depression, stress and anxiety. There is no evidence of any hallucinations, no evidence of any thought disorder, no evidence of any psychotic conditions relevant to the offending with which I am concerned.
Ultimately in the matter the psychologist concluded that the symptoms evidenced by the prisoner either from the history that he gave, or by the completion of the limited psychometric testing that was undertaken, met what are described as DSM (Diagnostic Statistical Manual) 5 requirements for "major depression, generalised anxiety and a drug use disorder, in remission." He was described as having "poor self-concept, negative ideations and catastrophising cognitive style".
With respect to the conclusions reached in the report this, to my mind on the evidence available within the report, reflects upon the presentation of the prisoner at the time of the assessment. Although I accept the prisoner gives history of various symptoms consistent with depressive conditions, or anxiety type conditions over the period of time of the offending.
Mr Ballardie concluded the prisoner was amenable to treatment and professional intervention, which has been shown by his time at Odyssey House. He came to the view that the prisoner was at low risk of reoffending, particularly having regard to his positive engagement with rehabilitative services; some improvements in mood over a period of time; the fact that he was of regular employment before his offending; had a trade qualification; had the capacity for positive changes to his social life; and his expressions of remorse, amongst other matters. He identified, not without some justification, risk factors for recidivism, including returning to drug consumption; not concluding the drug counselling treatment he was receiving; and not following advice given to him be medical practitioners.
In the context of principles laid down in decisions such as De La Rosa, [2010] NSWCCA 194, the evidence is not available to conclude that the prisoner was suffering a mental disability or disorder of a substantial character, other than of course his dependence upon drugs, or a substance abuse disorder at the time of the offending. However, I accept the conclusion of the psychologist that in the context of his history the serving of a custodial sentence will potentially have risks for the prisoner and could cause what is described as his "mental condition" to deteriorate. He would find the circumstances of custody more onerous in this particular regard and of course a return to custody runs for him the risk of return to drug usage.
The matters that otherwise arise for consideration in the context of 'De La Rosa' principles, as they are described from time to time, that is giving less weight to general deterrence and specific deterrence, in my view, do not reasonably arise in this particular case.
In De La Rosa, particularly at [177] - [178], the then Chief Judge at Common Law, McClellan J, summarised the existing case law in relation to the relevance of an existing mental condition or disability at the time of offending or subsequently to the sentencing process. It is well accepted of course that a substantial mental condition may require lesser weight to be given to general deterrence or personal deterrence, although sometimes mental conditions that require less weight to be given to general deterrence may require greater weight to be given to personal deterrence in light of the risk of the offender committing further offences by reason of the mental condition. That is of course not the case here.
I am mindful of the fact too that his Honour did point out, in the context of my use of the word 'substantial', that the mental disability or disorder may not necessarily be a significant one for it to be relevant to the sentencing exercise.
He also pointed out of course that a mental condition or disability may be relevant to assessing the impact of custody upon the offender and in this particular matter, by regard to the presentence report, it seems to me to be the most significant matter required to be taken into account.
As I said, the prisoner gave evidence before me and I do not propose to dwell upon that beyond the fact that I accept the evidence that he has given. I accept that he has made enormous progress whilst at Odyssey House. I accept that he is relevantly contrite and that he is determined, when his Court commitments are completed, to avoid offending in the future.
I have come to the conclusion in relation to this matter that thus, arising out of s 21A(3) of the Act, the prisoner does not have, as I said earlier, any significant record of previous convictions; that he was a person of good character; that he is unlikely to reoffend; that he has excellent prospects of rehabilitation; and that he has relevantly shown remorse by giving evidence of the fact that he has accepted responsibility for his actions and acknowledged any injury, loss, or damage caused by him. His plea of guilty is a mitigating factor. For that he receives in this matter a discount of 25% for the utilitarian benefit of the pleas of guilty.
One of the consequences of course of a person spending a substantial period of time in a rehabilitation programme before they are sentenced is that as has happened in this case there is greater delay in finally dealing with the matter than is ordinarily the case. Without him having been in Odyssey House, this is a matter that would have been dealt with I expect at Broken Hill, even before I arrived in Broken Hill in August of last year.
As I pointed out to the prisoner and his counsel on a couple of occasions at least, the fact that a person undertakes a process of rehabilitation through a residential course may still ultimately not prevent the Court imposing a term of imprisonment. A Court is in a difficult situation when it is dealing with an offender who is in a rehabilitation programme. One can see by reference to the objective facts and what one anticipates to be the subjective circumstances the ultimate result being one of the requirement to fix a term of imprisonment, notwithstanding the favourable matters that might arise from successful completion of a rehabilitation programme.
On the other hand, when one has a prisoner undertaking such a programme, one has to be concerned to ensure that the prisoner be given the opportunity to complete the programme to assist in the process of rehabilitation and not to cause further harm by plucking the prisoner from the programme without having completed it.
As Howie J many years ago, as they now, are in the decision of Palu, [2002] NSWCCA 381, pointed out, remanding a matter to enable someone to complete a rehabilitation programme should only be done in circumstances where the offender understands that it may not prevent ultimately a term of imprisonment being imposed. It should not be done in order to hold out to an offender a false sense of hope as to what the outcome of the matter will be.
I gave all those matters very serious consideration when I adjourned the matter on two occasions. I thought, quite properly I believe, that the prisoner needed to be given the opportunity of completing the programme to demonstrate to the Court matters that I finally find in the prisoner's favour, at this particular point of time, and to assist me to determine what the structure of the final sentence would be.
In the High Court judgment of Mill v The Queen (1988) 166 CLR, particularly at 59, the Court reflected upon the significance of delay in the sentencing process. Their Honours adopted with approval the observations of Street CJ, in the 1979 decision of Todd, which was subsequently reported in (1982) 2 NSW LR 517.
Todd is of course a very different case than this. It was, as with Mill, concerned with the issue of delay when dealing with an offender who was required to be sentenced in one jurisdiction, having served a sentence in relation to connected criminality in another jurisdiction. But the observations of Street CJ in that particular factual situation that lengthy delay, whether due to an interstate sentence or otherwise, sometimes requires in fairness to the prisoner weight being given to the progress of his rehabilitation over the period of time before sentencing and requires the Court to exercise a degree of what is described as "understanding and flexibility of approach" in order to arrive at a sentence that is appropriate. Sometimes this will be seen as providing "undue degree of leniency" to the prisoner.
Of course, as I say, this case is not as "extreme" as the situation that arose in Todd. But giving the prisoner the opportunity to complete the programme at Odyssey House, albeit that he receives credit for that, also has led to some delay which requires, as I have pointed out, some degree of "flexibility" and "understanding" in the disposition of the matter.
Of course in the context of what I earlier referred to as overarching principles, I am very mindful of the fact that the Court of Criminal Appeal in recent times has handed down two particular decisions concerned with the issue of sentencing people involved in drug supply, particularly to a substantial degree. One of those judgments is the decision of Robertson, a decision of the Court of Criminal Appeal from 2017, particularly the judgment of her Honour Simpson J, and subsequently a decision of the Full Bench of the Court of Criminal Appeal of Parente v The Queen [2017] NSW CCA 284.
The Full Bench reflected upon a number of matters in the context of what had fallen from the Court of Criminal Appeal before, in the context of sentencing offenders for substantial involvement in drug trafficking. Particularly their Honours were concerned about whether the so-called "Clark principle", which had held sway for over 30 years, was a valid sentencing principle in such matters.
Their Honours reflected upon general principles of sentencing at [93] - [106] and then turned their attention to the appropriate approach to sentencing in drug supply cases. I do not propose to read extensively from the judgment, but I note the terms of that judgment at [107] - [115], which includes reference to Robertson and the consideration of an appropriate approach to sentencing, having regard to the terms of s 3A, 5 and 21A of the Crimes (Sentencing Procedure) Act.
Ultimately, in the context of what their Honours have said, I have concluded that no other sentence other than a term of imprisonment can be imposed. This was accepted by counsel for the prisoner. That the term of imprisonment, with a discount of 25% for the utilitarian benefit of the plea of guilty, should be one of three years, but it should be backdated to the date that I have identified, 6 May, giving full credit in the manner I have outlined for both prior custody and quasi custodial circumstances. But that the non-parole period should be adjusted to reflect 'special circumstances' pursuant to s 44 of the Act.
With regard to aggravating factors in this matter, I have concluded that an aggravating factor in the matter would be that the offence of supply was committed for the purposes of financial reward. The extent of that however I cannot conclude. Whilst I do not accept what the prisoner told me about the extent to which he did receive financial advantage from the sale, or potential sale of the drugs in his possession, I am unable to conclude the extent to which any particular financial reward was obtained by the prisoner. There are no particular aggravating factors under s 21A(2) that apply in respect of the possession of the weapon. All the mitigating factors that I have previously identified apply in relation to both offences.
In the context of the terms of the operation of the Act so far as matters on a Form 1 are concerned, it is correct, as the Court of Criminal Appeal in the guideline judgment in 2002 pointed out, that matters on a Form 1 may require an adjustment of the appropriate sentence for the principal offence. They may reflect a need for greater resort to retribution and greater emphasis being given to personal and general deterrence. But having regard to the character of the drugs in the prisoner's possession and his use of drugs, in my view they are not matters of significance in this particular sentencing exercise. If matters on the Form 1 included other offences of supply, or the prisoner's possession of quantities of the same prohibited drug that he admits supplying, the approach may have been different, but in this particular matter, as I have said, they are not matters of great salience in the sentencing exercise.
With regard to the possession of the Taser, with the standard non-parole period I am required to have regard particularly to ss 54A(2) and 54B(2) of the Act. I have already averted to my assessment of the objective seriousness of the particular offence as well below the middle range of objective seriousness. But not at the lowest end.
So far as the operation of the standard non-parole period in these circumstances it provides some assistance as a guidepost. But the Court is required to take into account other relevant matters under the Act and otherwise appropriate, such as general sentencing principles, to which I have referred and the operation of s 44 Crimes (Sentencing Procedure) Act. I have concluded in these matters, notwithstanding the fact that the prisoner is to be sentenced for two offences, that the relationship of them in time requires me to consider the sentences operating concurrently.
The Court has a discretion of course in terms of the issue of concurrency, or of a partial accumulation and the like. The Court is required pursuant to Pearce v The Queen (1998) 194 CLR 610, particularly at [45] in the judgment of the majority, to fix an appropriate sentence for each offence and then turn one's attention to issues of accumulation, partial accumulation and the like. The issue of the appropriate approach to the issue of totality has been discussed by a number of decisions of the Court of Criminal Appeal. I particularly refer to for example the decision of Hammoud from earlier in the century, and the confirmation of the fact that it is a discretionary matter for the Court required to be applied in a principle fashion and in my view ultimately in the context of the relationship of the offending one to the other the sentences I impose should be concurrent one with the other.
This brings me back to where I started, having recited the charges and the maximum penalties and the like. The anxious issue that arose in this matter was whether I should accede to what was submitted by the prisoner's counsel, that is fixing a non-parole period that would effectively expire today.
In my view such a non-parole period, which would be slightly less than ten months, would result in the fixing of a minimum sentence that did not give sufficient recognition to the character of the offending, all other matters taken into account.
But that having been said, I have concluded that I should substantially adjust the relationship of the non-parole period to the balance of the sentence to permit the prisoner the opportunity of release to parole in a relatively short period of time, something just over two months. Amongst other reasons, to try and ensure if it is possible that the time in custody will not destroy or damage the progress the prisoner has made at Odyssey House. But also to give the prisoner in, consistently with matters relevant to the finding of special circumstances, sufficient period of supervision to adjust to community living and to take the opportunity over that extended period of time to heed the guidance of the Community Corrections Service in relation to matters that will assist him in avoiding drug usage in the future.
On the other hand, if the prisoner fails to heed the opportunity that is provided to him at this time the Parole Authority will act swiftly. Whether he is in Queensland, New South Wales, or anywhere else in the Commonwealth of Australia, and will revoke his parole and he will return to custody and remain in custody at the discretion of the Parole Authority until such time as either his sentence finishes or the Parole Authority determines that he should be again released to parole.
Thus, the situation is that the order that I propose provides an opportunity to the prisoner in the near future to return to the community and take control of his life, and put to good use such lessons that have been learnt, both from his experience of appearing in the Courts and from his time at Odyssey House.
Sir, you are convicted. In relation to the offence of supply prohibited drug, to which you pleaded guilty, taking into account the matters on the Form 1, you are sentenced to 12 months imprisonment by way of non-parole period, to commence on 6 May 2017, expiring on 5 May 2018.
I direct that you be released to parole on 5 May 2018. In respect of that sentence I fix a balance of sentence of two years imprisonment, expiring on 5 May 2020.
In respect of the offence of possessing the weapon you are convicted. I am required to fix a non-parole period in relation to that offence. I sentence you to six months imprisonment by way of non-parole period, to commence on 6 May 2017, expiring on 5 November 2017. I fix a balance of sentence in relation to that matter of six months. That sentence will expire on 5 May 2018. You will not be released to parole however on 5 November 2017 because you will be required to complete the non-parole period I fixed in relation to the supply matter.
Any technical matters Madam Crown?
BITCON: No your Honour.
HIS HONOUR: Any matters from you ma'am?
SHAHNAWAZ: No your Honour.
HIS HONOUR: Mr Hermansson do you understand the sentence? I appreciate the disappointment you may feel that you have got to go back into custody but the bottom line is, notwithstanding the favourable things that can be said about what has happened since you were released from custody back in November, or early December, 2016, that the criminality that you have admitted to requires the imposition of a term of imprisonment that requires you to be returned to custody.
Having said that, however, the light at the end of the tunnel is not far away. As the orders currently stand, noting the Crown has rights of appeal and you have rights of appeal, you will be required to serve that balance of sentence. I would imagine you will be classified fairly quickly through the system but that will be a matter for the custodial authorities.
HIS HONOUR: Now gentlemen - I have sentenced the offender to three years imprisonment with a non-parole period of 12 months. That commences on 6 May 2017 because he has previously been in custody and I have got to give him credit for that. Non-parole period expires on 5 May. He will be eligible, in fact subject to any appeal he will be able to be released to parole on 5 May 2018. Thank you.
SHAHNAWAZ: Your Honour I'm sorry to interrupt. Can I just confirm the terms of the second sentence, which was the non-parole period of six months followed by--
HIS HONOUR: Balance of sentence of six months.
SHAHNAWAZ: And your Honour's declined to set a non-parole period for that?
HIS HONOUR: No, I fixed a non-parole period for that, but I have declined to order that he be released to parole as it runs concurrently with the other sentence. But look I must confess, they may have amended the Act on this point, but up until recently at least the law required where there is a standard non-parole period to fix a non-parole period whether it was a practical matter or not.
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Decision last updated: 09 May 2018