Mr Highley, my practice is to tell people in advance what sentence is to be imposed. In your particular case I am going to fix an aggregate sentence of three years, nine months imprisonment commencing on 25 July 2019 and expiring on 24 April 2023. I am going to fix a non‑parole period of two years, three months imprisonment commencing on 25 July 2019 expiring on 24 October 2021.
I will explain the reason that the start date is July, not June. It is complicated by the fact that it was not addressed when you came before me last time that you had been sentenced while you were in custody for these matters in the Local Court. I do not know why you were given eight months imprisonment with one month non‑parole when you are going to be in custody for many months ahead, but that is the reality of what I have to deal with now.
The offender Paul Anthony Highley appears today for sentence in relation to three principal offences, one offence of ongoing supply of prohibited drugs contrary to s 25A of the Drug Misuse and Trafficking Act 1985, an offence, on the facts available to the Court, that occurred between 12 February 2019 and 6 March 2019. That is described as the sequence 1 offence. A second offence of ongoing supply of prohibited drugs, the sequence 4 offence, an offence committed between 29 April 2019 and 28 May 2019. Both of these offences carry a maximum penalty of 20 years imprisonment and or a fine of 3,500 penalty units. There is no purpose in this case of imposing on this prisoner a pecuniary penalty.
In relation to the sequence 4 offence, the second offence in time, there are four matters to be taken into account on a Form 1. I will come to the detail of the facts of those, but they include a supply of 6.57 grams of prohibited drug methylamphetamine on 27 March 2019, a supply of 6.86 grams of the prohibited drug methylamphetamine on 2 April 2019 at Lake Conjola, a possess prohibited drug of 8.99 grams of methylamphetamine on 25 June 2019, the date of the prisoner's arrest and the least serious of the three offences on the Form 1, possessing a small quantity of cannabis, 5.4 grams on the same date. Those matters are being taken into account in relation to the sequence 4 offence.
There is a third principal offence if I can call it that for sentence. That is a supply of 26.3 grams of the prohibited drug methylamphetamine that occurred on 4 June 2019. That is an offence contrary to s 25 of the Drug Misuse and Trafficking Act 1985 and that standing alone carries a maximum penalty of 15 years imprisonment and or 2,000 penalty units by way of pecuniary penalty. There is no standard non‑parole period.
Before I embark upon the many things that I am required to address, given the way the case has been conducted and my obligations to apply the law as properly as I can, there are a couple of preliminary observations to be made of a somewhat technical nature to some extent, but reflected in the circumstances of the prisoner.
Firstly I have chosen to commence the sentences I impose from 25 July 2019. I am appreciative of the fact that the prisoner was arrested on 25 June 2019 and has been in custody since that date. I will come back to the detail of the criminal history in due course. But it is worth noting that the appellant came to the District Court having been sentenced in the Local Court in 2019. The date of his appearance in the Nowra District Court according to the criminal history I have, is 16 October 2019. He obviously was in custody in relation to the current matters which had not been committed for sentence. He appealed against the severity of the penalties imposed in the Local Court in a range of ways. The matters that he was sentenced for in the Local Court are clearly offences committed up until and including 25 June 2019 the date he came into custody. They were, possess prohibited drug, use uninsured motor vehicle, driving recklessly or in a speed or manner dangerous to the public, driving with an illicit drug in his blood, driving unlicensed and using and unregistered vehicle. These matters, of course, are not irrelevant to this sentencing exercise. They reflect criminality that surrounds the criminality with which I am concerned. I will not go through the orders that were made at the District Court and will not comment upon the extent of which they confirmed or not what occurred the Local Court, but importantly for my purposes I note that for what is described, as I said earlier in a very general sense, drive recklessly, furiously or in a speed or manner dangerous to the public, that is an offence committed on 14 February 2019, that is more than four months before he was arrested in relation to current matters. For that offence he was sentenced to eight months imprisonment commencing on 29 July 2109 and a non‑parole period of one month was fixed. That order of the District Court confirmed the order made at the Local Court.
Of course I am not here to question what happened at the Local Court, I am not dealing with an appeal from that Court. I am having a great deal of difficulty understanding how someone can impose a sentence of eight months with a non‑parole period of one month for a man who is in custody for serious drug supply charges who has no prospect of appearing at the District Court before the eight month sentence has expired. But I have to pay deference to that order made by the Court.
There are a number of ways I could do that. I could commence the sentence that I impose at the expiry of the non‑parole period of one month fixed by the Magistrate and confirmed by the District Court. The problem with that is it would deny credit to the prisoner of the one month that precedes 29 July. In fact the one month and four days.
So what I have chosen to do, bearing in mind the Magistrate did not take into account all the time that the prisoner had already been in custody, I have decided to fix the sentences I impose to commence on 25 July. That is one month after the prisoner came into custody and that has the practical effect, of making the aggregate sentence I impose accumulative upon the effective non‑parole period fixed by the Magistrate. As I said the sentence imposed at the Local Court just makes no sense whatsoever with the greatest of respect to the Magistrate and given what I know about the prisoner.
I have referred to the maximum penalties of the offences that I am concerned with and of course they provide a yardstick to measuring the appropriate sentence, all things considered including the objective gravity of the offence of the type charged.
However, there are a couple of matters to deal with in regard to particularly the ongoing supply offences. The offences the prisoner has committed involve in terms of ongoing supply, individual supplies each of which involves the supply of a quantity of methylamphetamine greater than the trafficable quantity applicable to that drug. Some of the supplies are individually greater than the indictable quantity applicable to that drug, so I have borne in mind that the trafficable quantity under the Drug Misuse and Trafficking Act of methylamphetamine is 3 grams, an indictable quantity under that Act is 5 grams. I also bear in mind of course that a commercial quantity is greater than 250 grams. The sentencing of the prisoner in relation to the ongoing supply charges occurs in the context of a consideration of particularly the decision of the Court of Criminal Appeal in the R v Smiroldo [2000] NSWCCA 120. I do not rely upon that sentence for comparative sentencing purposes, but in that judgment, RS Hulme J, bearing in mind the provision had only being recently introduced by the legislature, surveyed the history of the circumstances in which the provision came into existence and set out some general principals in the consideration of the sentencing of offenders in relation to that offence which principals I have had regard to.
With regard to the plea of the prisoner in relation to each of the offences that was entered, I am told, at the first reasonable opportunity. There is no dispute, as I understand it, between the parties that the prisoner is entitled to a discount of 25% upon the otherwise appropriate sentence for each offence for sentence in accordance with the relevant provisions of s 25D of the Crimes(Sentencing Procedure)Act 1999 which herein after I will refer to as the "Act". With regard to the matters on the Form 1 of course they are required to be taken in to account in the manner described by the Court of Criminal Appeal and the guideline judgment for 2002 in respect of guideline sentencing matters. I do not propose to reiterate what their Honours said led by the learned Spigelman CJ at that particular time, but it is correct to say that it may be the case that when taking into account matters on a Form 1 greater weight could be required to matters such as retribution and deterrence. There may be a requirement of a substantial increase upon what would otherwise be the appropriate sentence for the principal offence if the principal offence had stood alone although the Court is not required to identify the extent to which the appropriate sentence for the principal offence has been increased by the consideration of Form 1 matters.
Here, whilst there is some effect upon the appropriate sentence for the principal offence if it had stood alone, it is not significant when one has regard to the fact there is an interrelationship between the matters on the Form 1 and the other offending with which I am concerned. Both the ongoing supply matters and the principal offence of supply. I bear in mind of course, in relation to the supply matters on the Form 1, they each involved quantities of methylamphetamine greater than the indictable quantity, which I have identified. One offence involved 6.57 grams of crystal methylamphetamine committed on 27 March 2019 in the course of the various transactions that give rise to the two ongoing supply offences.
The second indictable supply on the Form 1 involves 6.86 grams. The 8.99 grams of methylamphetamine in the possession of the prisoner on 25 June 2019 is of course greater than a trafficable and/or indictable quantity but the Crown has chosen not to charge the prisoner with deemed supply. I take it on the basis, although this was not really discussed in any great depth, that the drugs in the context of the contextual facts were drugs in the possession of the prisoner for his personal use.
As I said the quantity alone may have permitted a further charge of supply prohibited drugs on a deemed supply basis but it is charged as possess prohibited drugs. The small amount of cannabis is a matter really of no moment and if dealt with in the Local Court it would almost certainly be dealt with by a fine.
So in considering the Form 1 matters, they really provide a context to the more serious offending and they do not greatly amplify or exaggerate the objective seriousness of the principal offence being so closely related in time and character to it.
With regard to the facts of each offence, to deal with the first ongoing supply, the facts, sadly I have to say this, are fairly absent in detail as to how the prisoner came to be in contact with the person who was an undercover police officer. That might have been very illuminating to know exactly how the prisoner came to be chosen as a target by a police operation. Obviously I cannot draw an inference adverse to the prisoner beyond reasonable doubt but common sense would usually dictate that undercover police officers are not walking up to District Court Judges having a counter lunch at the local hotel or having an evening meal at the local hotel and start asking them if they are prepared to sell them methylamphetamine. But be that as it may, the facts simply introduced the criminal activity by the fact that on 12 February the prisoner was monitored and recorded in the car park of a hotel in Nowra supplying a clear resealable plastic bag containing crystal methylamphetamine in exchange for $850. As I said, there was more than a traffickable quantity, just over 3 grams of crystal methylamphetamine and a very high level of purity, 79%. Although twenty years ago whilst it was more common to find methylamphetamine being sold in a purity of 5 to 10% practically every street deal one sees nowadays is of a purity beyond 70% and it may reflect something that is at the background of this sentencing exercise as it is in every sentencing exercise involving the supply of methylamphetamine. That is the profound damage that methylamphetamine is doing to people in our community and I do not just mean the Nowra community, but across Australia.
It is not without some significance I might interpose at this point, that the learned Professor Dan Howard of Senior Counsel, a former Crown Prosecutor and an opponent of mine on a number of occasions, conducted a wide ranging inquiry into the use of amphetamines in our community and he actually came to Nowra, I remember, to conduct that inquiry, given the damage being done to the local community in a range of ways by the use of the drug, as it has done to many communities across New South Wales. I just pause for a moment to point out of the irony of the prisoner himself being a user of methylamphetamine complaining about the damage the drug does to him in circumstances where by supplying the drug to somebody who he really does not know he is providing the opportunity, although it did not eventuate, of causing the same damage to other members of the community of which he now complains.
On 13 February, the following day, he backed up and provided another quantity in excess of a traffickable quantity, 3.44 grams of the drug with a purity of 78% to the undercover officer in the McDonald's South Nowra. About two weeks later on 28 February 2019, as is the way with these types of offences, he was able to supply more again, presumably at the request of the purchaser, and he supplied 7.48 grams of crystal methylamphetamine of a purity of 78% in exchange for $1,600. The fourth supply bearing in mind s 25A only requires the proof of three supplies over a thirty day period he provided 6.94 grams of crystal methylamphetamine of a purity of 80% for the same amount, $1,600 to the same undercover police officer.
In that regard, if I might interpose an aspect of the factual matrix here, the prisoner gave some evidence about his reason for supplying drugs and what he profited from in terms of the drugs he supplied. He said that he essentially was supplying drugs so that he could obtain drugs for himself. However he conceded in a very vague way that he received some cash advantage from these transactions. He also told me that he, 'ripped off' the purchaser to some extent, and that is reflected perhaps in the fourth supply where for the same amount of money as the previous supply he provided almost half a gram less to the purchaser. As I understood his evidence, he was taking from his supplier some drugs for himself and then taking part of what he was supposed to supply to the purchaser for that purpose. I point out that one of the orders that I have to make is a Confiscation of Proceeds of Crime Order pursuant to s 29 of that Act for the prisoner to pay the sum of $3,400. The $3,400 is calculated on the agreement of the parties as a sum of money for which the prisoner can be seen to be personally liable as having been obtained from the undercover officer.
How this calculation was arrived at I do not know. Whether it is a calculation that solely includes the consideration of the value of the drugs that he kept for himself or not I do not know. I bear in mind, if that is what it is said to be the fact that notwithstanding many supplies over a long period of time, when arrested he was in possession of 8.99 grams of methylamphetamine which is itself a substantial quantity. But as I said he is charged with having that in his possession not with supplying it.
In total, between 12 February 2019 and 6 March 2019 he supplied 21.32 grams of methylamphetamine in exchange for $4,900. The sequence 4 offence taking into account as I must, the matters on the Form 1, is an ongoing supply that occurred between 29 April 2019 and 28 May 2019. It involved firstly a supply of 2.8 grams of amphetamines with a purity of 76.5% on the first occasion in exchange for $800. Clearly that quantity is below a traffickable offence quantity.
However, on the next occasion on 30 April the prisoner provided 10.43 grams of the drug of approximately 75% purity for $250. Then on 7 May 2019 he supplied two clear resealable plastic bags containing crystal methylamphetamine in exchange for $2,300 and a carton of cigarettes and then later the same day having made that first supply at 10.50am, at 12.25pm he supplied a further clear resealable bag containing crystal methylamphetamine in exchange for $800. Those bags in total, as I understand the facts, have weighed 12.73 grams and had a purity of 77.5%.
On 14 May, seven days later at Hungry Jacks at South Nowra, he supplied three clear resealable plastic bags in exchange for $2,250. There was 10.2 grams of crystal methylamphetamine of a purity of 80%. Then, finally, the biggest individual supply as I understand it of the series of episodes, was a supply on 28 May 2019 when he was recorded in the car park of the Shoalhaven Ex‑Services Club supplying a clear resealable bag containing crystal methylamphetamine in exchange for $5,500 containing 26.7 grams of crystal methylamphetamine at a purity of 71%. Of course there is an issue there which we did not get to discuss, whether these were supplies over a thirty day period or a thirty-one day period. I am assuming the calculation of 30 days is right. But in any event even if the first supply is out of time there are more than three supplies within the thirty day period on the facts available to the Court.
So in this period of time he has supplied 62.86 grams of methylamphetamine in exchange for $14,000 and this is to be seen in the context of the minimum quantity of the commercial quantity of methylamphetamine being 250 grams.
The final principal charge, the indictable supply that occurred on 4 June, occurred at a caravan park at South Nowra where the prisoner exchanged for $5,500 which he received presumably in part paid back to this principal supplier, 26.3 grams of crystal methylamphetamine of a purity of 75%. He was then arrested on 25 June. I have already pointed out the two indictable supplies on the Form 1 were monitored supplies presumably outside the relevant thirty day period.
The prisoner told me again, in somewhat vague terms the way the evidence was introduced but I do not blame him for that, that the person he supplied to, who we now know to be an undercover police officer, was someone he thought was in the building trade and he did not really apply his mind to it very much. But he thought that he wanted this amphetamine not just for himself but for others. Well with respect to that account, it may be true and it may not be true, but it is of little comfort for the prisoner. He had no idea who this person was, or whether he was telling him the truth. He clearly was not telling him the truth, although he was not going to supply the drugs to other people. Really the objective facts are that the prisoner was prepared to supply to a person who he did not know, drugs that can do great damage without regard to the effect they may have and in any event to be fair to the position raised with the prisoner by the Crown, even if it was true that the prisoner understood it was going to someone who was going to use them in the course of his employment, we have the prospect of people operating machinery and working in a dangerous industry, affected by amphetamines. Even with the prisoner's limited employment history he should have understood that that was a danger.
I bear in mind what has been put to me about the fact that the drugs were supplied to an undercover officer. The Crown rightly points out it is not a matter in litigation. But it is relevant to accept as an objective fact, by reason of the character of the transactions, the drugs themselves did not pass into the wider community. But of course that is no thanks to the prisoner. It is because they were transactions involving a police officer who in the usual way would take them to be sealed and appropriately examined that we know precisely the quantity of drugs that were supplied by the prisoner over that period of time.
The prisoner's criminal history is not something that does him a great deal of credit. I appreciate it has got to be seen in the context of his upbringing which has been disadvantaged and other misfortunes that have befallen him. Although many of the misfortunes that have befallen, as I would understand it from the account he gives to the psychologist and he gives to me, relate to circumstances of what I could generally describe as violence reflecting familiar ways in which he has moved throughout his life.
The prisoner was born in, according to the criminal history I have, in March 1976. Thus he appears before me today at 44 years of age and he committed this offending on my calculation at the ages of 42, 43. He is a mature man with a lot of life experience which includes many appearances in Court for a range of offences including offences of violence and contravening apprehended domestic violence orders. Violence, I hasten to say, extending to police officers whom he has from time to time resented for a range of reasons. Some of his offences required terms of imprisonment. For example in 2001 in the Nowra Local Court he was sentenced to twelve months imprisonment with a non‑parole period of four months for assaulting a police officer in the execution of his duty and 12 months imprisonment with a four month non‑parole period for assault occasioning actual bodily harm and the same sentence for contravening an Apprehended Domestic Violence Order. He was convicted of a further offence of contravening an Apprehended Domestic Violence Order in 2001 for which he was sentenced to two months imprisonment.
He has had previous findings of guilt including breaking, entering and stealing, damage to property and a number of driving offences. I noted, as I said earlier, when he was dealt with in the Local Court last year he was an unlicensed driver. He has been convicted since 2001 of larceny for which he was sentenced to a term of imprisonment in 2005. He was convicted of assault occasioning actual bodily harm in 2006 for which he was sentenced to nine months imprisonment with a non‑parole period of six months. He was convicted at the Goulburn Local Court of a domestic violence common assault for which he was sentenced to nine months imprisonment with a non‑parole period of five months and five months imprisonment in respect of a damage property offence. Those offences being committed in May 2012. I note in that regard he appealed to the District Court and the District Court granted him the leniency of two s 9 good behaviour bonds for a period of 12 months. He returned to the Goulburn Local Court in relation to other offences committed in June 2015 of destroying and damaging property and intimidation for which he was again granted s 9 bonds, as they were then known, for a period of three years. The criminal history, inadequate as it is, tells me that it was recommended as part of the bond that he receive treatment and engage with services to treat "brain injury" behavioural and anger management problems.
He has other sentences involving suspended terms of imprisonment, for example, in 2008 in Goulburn for larceny. A number of driving offences continuing right up until the present time. Then we come to the sentences imposed in the Local Court that I have earlier referred to in July 2019 and reviewed in the District Court a few months later.
The Crown advises me that at the time of the commission of the current offences the prisoner was subject to a s 9 bond granted to him in the Kiama Local Court on 3 September 2018. Thus, he was in breach of conditional liberty. It is interesting to note that the offence for which he was placed on that s 9 bond as it was then known, was an offence of possess prohibited drug. The use of drugs and abuse of drugs by the prisoner over many years is very much at the forefront and in the background of his offending.
In considering the prisoner's evidence about his wish to reform and the steps he would wish to take on his release from custody to reform, bearing in mind I do not doubt the sincerity of his statement, I also bear in mind what the objective facts reveal. That is quite a long history of offending and being given opportunities and on occasions, being in breach of the opportunities provided to him. I bear in mind, whilst he is not entitled to any particular leniency in sentencing, he does not have prior convictions for supplying prohibited drugs.
Coming back to the issue of his prospects of rehabilitation, how much weight I can put upon his evidence and the like, it is also to be borne in mind that he was undertaking the MERIT Program at the very same time as he was supplying drugs to an undercover officer. Now true it is, the MERIT Program's final report dated 17 June 2019, that is a week before he was arrested by the police, gives a detailed account of his attempts to reduce his drug use and ultimately his lack of success. It shows the prisoner was discussing undertaking detoxification and drug rehabilitation. He was sensitive to discussing his background. He asserted he wanted to be drug free, spoke of his previous periods of abstinence but of course completely failed to disclose to those who were trying to help him, although he had good reasons not to disclose it, that he was in fact doing precisely what the program was seeking to address contrary to the interests of the program. He was supplying prohibited drugs and particularly amphetamine drugs, as far as he was concerned, to the community. Whereas at the same time he was endeavouring to obtain the assistance of professionals to avoid using drugs himself, obviously without success. Whilst he was said to have participated well in the program his reluctance to enter residential rehabilitation was noted. His lack of success and remaining abstinent was noted and he was deemed to have been unable to achieve sustained progress. As I said, little wonder that that was true given the background criminal conduct in which he was involved. It is in this context too, I bear in mind a letter addressed to this Court dated 18 June 2020 noting the prisoner's involvement with Narcotics Anonymous. This reporter speaks of knowing the prisoner since 2016 and I accept that from time to time the prisoner has attended Narcotics Anonymous meetings. But it could not be said that his approach to that program, or any other program he has been involved in, came with full commitment and his conduct in relation to the current crimes shows that to be true. I note what the woman says concerning the prisoner's involvement with Narcotics Anonymous. But those observations have to be seen in the context of the reality of the situation that I have here.
Likewise I approach the evidence of his attempts to get into Odyssey House with some circumspection. I think it will be a matter for the Parole Authority for the prisoner to consider undertaking residential rehabilitation in the prisoner's presence now. But having raised the matter in his absence I should mention it in open Court. I gave some consideration, given the total sentence I propose to impose, to referring the prisoner to the Drug Court to undertake the Compulsory Drug Treatment Program that is available within Corrective Services. Unfortunately I am unable to make an order under the Drug Court Act that is required because I am told by counsel for the accused and I accept it to be true that people in the Nowra District are unable to get access to the Drug Court which is regrettable. It is a matter of considerable shame in our State that some parts of the State are not able to get access to programs that are available in other areas of the State. I bear in mind of course he can only be referred to the Compulsory Drug Treatment Program if I make an order under Part 2A of the 1988 Act.
So that brings us back again to the evidence given by the prisoner, some of which I have referred to. The primary evidence relied upon, apart from the oral evidence of the prisoner is the report from a psychologist dated 9 June 2020 and a number of associated reports of examination of the prisoner by a range of people for a range of reasons. One report relating to the prisoner's capacity to care for his child, other reports involving examinations of the prisoner for either medico legal or general health purposes. What was sought to be argued on behalf of the accused, to put this in context, by reference to the very helpful submissions of counsel for the prisoner, is that the effect of the psychologist's report in conjunction with the reports that date back to 2001 should leave the Court with evidence that would permit it to give lesser weight to general deterrence, not require greater weight to be given to the specific deterrence and to reduce the prisoner's moral culpability for the offending with which I am concerned. Particular reference was made in the written submissions to the very well-known summary of the principals as they then stood by McClellan CJ at CL in DPP(Cth) v De La Rosa [2010] NSWCCA 194, particularly at [177]-[178].
Amongst the matters raised with me is that as his Honour pointed out, it need not necessarily be a serious psychiatric illness, a mental illness or disability should be relevant in the matter or in the various matters or alternative matters, identified by his Honour in that judgment. His Honour was really summarising principals that had stood for some time, the judgment of Grove J, in R v Scognamiglio (1991) 56 A Crim R 81, Badgery-Parker J in R v Letteri (unreported NSWCCA 18 March 1992). Of course, Gleeson CJ's judgment in R v Engert (1995) 84 A Crim R 67, Spigelman CJ's judgment in R v Israil [2002] NSWCCA 255. The problem is the evidence does not amount to a basis for concluding that lesser weight should be given to general deterrence or lesser weight should be given to the moral culpability of the prisoner. There is no doubt from the material available to the Court that there is no direct causal connection between any condition from which the prisoner suffers and the offending. The prisoner was well capable of committing these offences. He had no inhibitions or restrictions on committing these offences by reason of any mental disability or illness.
When pressed on the matter, and I am not in any way criticising the very learned way in which the prisoner was represented, it was conceded that ultimately when one has regard to the psychologist's report, much of it is based upon the representations of the prisoner but in some respects it is confirmed by earlier reports, there was no material of congenital defect in the prisoner or an inherent mental condition that could be identified from previous testing. However it was submitted that the highest that it could be put was that there was clear evidence of the prisoner having difficulty with problem solving and having inhibitions in that regard. It was suggested to me that the prisoner was suffering at the relevant time from a major depressive illness. There is no basis upon which I could reach that conclusion and the psychologist, although she may have been qualified to reach such a diagnosis, does not make that diagnosis. She concludes that they are symptoms reported by the prisoner, consistent with previous symptoms, consistent with post-traumatic stress disorder symptomology and perhaps depressive illness symptomology. It may well be that there is such symptomology, but one would need much firmer evidence and a much more conclusive "diagnosis", if the psychologist is capable of it, to come to a positive conclusion of the existence of a relevant mental illness or mental disability.
I am prepared to accept in general terms the account given by the prisoner of a disadvantaged upbringing. I will not go into the detail of it because I am not here to "embarrass" the prisoner. But he would be well aware of the many difficulties he has had to face over his early life. His relationship with his father or a person he believed to be his father. He suffered physical and sexual abuse from particular people. He has been the subject of serious assaults over the years, of stabbing, struck on the head with a brick amongst other physical injuries. Amongst the material attached or connected to the psychologist's report, the most recent report are investigations undertaken of the prisoner in 2012 and 2013 reflecting a similar history of that provided to the psychologist who prepared a report for this Court. They, in their detail, reflect upon events that could cause physical injury to the prisoner, concussion, loss of memory affecting his cognitive skills and there is some reference to limitation upon cognitive skills. But there has been nothing conclusive found in the course of examinations such as an MRI and related scans. There are records, of course, of injuries that he has suffered that are referred to by the psychologist. For example, an admission when he was 30 to Gosford Hospital involving stab wounds to the neck, abdomen and pelvis. He was placed in an induced coma and he was in hospital for two weeks. That obviously is a "serious assault" and it could contribute to post-traumatic stress symptomology.
Noting all that is contained within the psychologist's report and in the related reports such as the neuropsychological assessment by Dr Huntley, what I can conclude relevant to this sentencing exercise is that the prisoner's experiences in a range of ways including physical injuries, particularly head injuries, have contributed to the susceptibility of the prisoner to drug use. But the case that comes before me and it seems to be essentially conceded by the Crown given the objective facts, that the prisoner, whilst being substantially involved in drug trafficking and having the entire responsibility of ensuring the sale of the drugs and the collection of the monies, was himself a drug user. As his counsel conceded in the written submissions he is above what could be called a "street dealer." The quantities supplied and the sums of money involved are way beyond what might be called simple 'street dealing'. But his use of drugs has contributed to his offending. Then there arises, of course, the consideration of the hypocrisy involved in being a user of drugs and knowing their effect and being prepared to provide drugs to others with similar effects. Having said that of course, the prisoner is not in the same position as people that are involved in the drug trade for cynical purposes of profit completely without regards to the impact of what is being done. And I accept from what has been put by his learned counsel that in assessing the objective facts of the offences there is no indicia of wealth. There is no indicia of the prisoner personally running the business in the sense of packaging for drugs, having measuring instruments and the like. I note when he was arrested three mobile phones were seized, which is an indicia of drug dealing, but then again the facts are he has been sentenced for drug dealing and substantial drug dealing over an extended period of time.
In that regard in the assessment of the objective facts I am reminded of what was said by the very learned Wood J in the decision of MacDonnell [2002] 128 A Crim R 34 where his Honour said:
"It is also to be accepted that the mere quantity of the drugs is not the sole or even the principal determinant for sentencing in relation to drug offences. What is more important is the role of the offender and the level of his or her participation in the offence subject of course to the fact that in relation to the supply offences under state law there is a gradation of seriousness reflected by an increase in penalty as the quantity of drug involved moves into those levels which answer the descriptions of commercial quantities or a large commercial quantity."
Well of course, if the prisoner had been involved in supplying commercial or large commercial quantities the penalty to be imposed would be substantially greater. I bear in mind of course that the ongoing supply of prohibited drugs is a more serious offence than supplying an indictable quantity of prohibited drugs. The repetition involved permits identification of greater criminality. Such an offence usually, although there may be times when that is not so, for example, if someone supplies an indictable quantity of 200 grams of methylamphetamine even though the maximum penalty is 15 years the ongoing supply of perhaps 20 or 30 grams of methylamphetamine albeit the greater maximum penalty, may not be seen objectively as the more serious offence.
There is said in the submissions to me that the extent of the quantity bears on the assessment of the objective gravity and as I said it is conceded that he is above street level dealing but "not significantly so." Well one needs to have regard in each individual supply to the actual quantity as it relates to indictable quantities and to a particular quantity as it might relate to a commercial quantity. These things are not matters of mathematical precision as is well known, but one thing that is not identified in the helpful written submissions of counsel for the prisoner, and is always relevant in considering the concept of totality of criminality and in the consideration of each individual offence as well as the extent of repetition of the offending and the number of times upon which the person was involved in drug supply. Of course, there was no lack of willingness on the part of the prisoner to be so involved.
I would see the prisoner in the context of the facts available to me as a type of middle man between the purchaser and the "principal drug supplier." Of course I bear in mind in the measurement, for example, of the prisoner's contrition there is no information provided as to who provided him with the drugs, to whom he was paying the money and so someone further up the line, at this stage I would expect, has escaped detection. Not that the prisoner is obliged to provide information in this regard. Not that he gets an extra penalty for not being "cooperative" with the investigators. But when I am asked to consider whether he is truly contrite I have to bear in mind that whilst his plea of guilty is some evidence of contrition and whilst he expresses contrition in his evidence, it might be seen as not complete and certainly in the scheme of things, not particularly timely.
The seriousness of sequence 4 is greater than sequence 1. As I have indicated that is reflected by the number of transactions, the quantity of the drug being quite substantial, but this does not lead to some mathematical calculation that because it is for example 25% or 30% of what a commercial quantity in a minimum amount, it may be that the calculation of the sentence should proceed accordingly. Spigelman CJ said in the decision of R v Way [2004] NSWCCA 131, largely set aside by the decision of the High Court in Muldrock v R [2011] HCA 39; 244 CLR 120 in terms of a specific principle regarding standard non-parole periods, about the lack of mathematical precision required in fixing sentences. Entirely consistent, for example, with the approach taken by the High Court subsequently in the decision of Markarian v R [2005] HCA 25; 228 CLR 357. In other words a particular quantity of a particular drug supplied over a period of time does not permit arriving at a particular sentence based upon some mathematical calculation that might be made solely on that basis. There are many things to take into account. It is obvious that I cannot conclude beyond reasonable doubt that the accused has been in the business of supplying drugs over an extended period of time. I can only conclude beyond reasonable doubt that he has been involved in the supply of the relevant prohibited drugs in the period of time identified by the particulars of the specific charges.
I have noted what the prisoner said about his wishes for the future. In the scheme of things, noting the absence of prior convictions for supply, noting what I have said, perhaps in criticism of the prisoner, of the hypocritical position he is in taking advantage of the MERIT Program whilst he is supplying drugs and related matters, I have decided that I should make a finding of "special circumstances" pursuant to s 44 of the Act and adjust to some extent the relationship of the non‑parole period of the balance of sentence. It is clear that even though there is a difficulty in identifying with precision what are his mental health issues, there are mental health issues that affect him. Whether they are a product of his upbringing, whether they are a product of his personality, whether they are matters over which he has no control by reason of the circumstances of his upbringing or simply because that is the way he is and wishes to be, I am not in a position to safely conclude. But certainly, as he has in the past sought professional assistance and as other Courts have made orders that he should seek professional assistance subject to supervision, I feel that he should also continue to receive the benefit of a finding that professional assistance in mental health and drug counselling and rehabilitation should be available to him, thus warranting an adjustment of the non‑parole period in relation to the balance of sentencing. He needs professional assistance to adjust to community living. As I calculate it, the sentence I impose will be at this relatively late stage of his life, a longer sentence imposed on him.
I accept as a general proposition in the context of giving weight to his background of "dysfunction" that there is no sunset clause on these matters for people who have been afflicted with disadvantages. As was made clear in Bugmy v R [2013] NSWSC 1885; HCA 37, and was made clear subsequently, people who can demonstrate, or who have shown, a background of dysfunction and disadvantage are entitled the proper consideration of that in the scheme of things, notwithstanding the fact they have been given the benefit of consideration of that in the past.
Now of course to come back to what was said in Bugmy v R and was also in different words discussed by the High Court in Munda v Western Australia [2013] HCA 38, a case decided in fact on the same day as Bugmy, the situation of disadvantage for example identified in this particular case will vary from case to case. To come back to the point I was making just a moment ago the High Court majority in Bugmy noted that the effects of deprivation did not diminish with the passage of time and repeated offending. Full weight to these matters must be given but also it is to be fairly said in the particular case that one is considering, one needs to determine the extent to which the person's background has influenced their behaviour presents a person who may pose difficulties for the community in the future. In other words it may turn out just as it does in relation to the consideration of mental illness and mental disability issues, that the character of the disadvantage, the character of the disability requires greater weight to be given to personal deterrence even if lesser weight may be given to general deterrence. This was exactly the point that Gleeson CJ made in Engert and it has been picked up by McClellan J in DPP (Cth) v De La Rosa [2010] NSWCCA 194. In this particular case I do not think there is a need to give a greater weight to personal deterrence, but the point I make is that some people are so badly damaged by their past that they end up being a continuing danger to the community and that aspect of the matter is not to be lost sight of.
Thus, by reference to the 'purposes of sentencing' here there is a need for adequate punishment. There needs to be some element of general and personal deterrence. There needs to be some element of protecting the community from the offender although that is not a major issue here, however, I recognise of course that the potential for damage to the community and the supply of drugs in an objective sense. I have to make the prisoner accountable for his actions and denounce his conduct but also promote his rehabilitation which I am endeavouring to do. Of course there is no issue of a particular victim to identify in this matter. With regard to the issue of aggravating factors and mitigating factors under s 21A of the Act, the facts might speak for themselves in the way that s 21A(1) requires the consideration of the matters both objective and subjective that effect the relative seriousness of the offence. The prior criminal history as I said is not a matter that entitles the prisoner to leniency but it is not an aggravating factor. Committing the offences whilst subject to conditional liberty is of course an aggravating factor and the irony of course is that he was on conditional liberty, in respect of the possession of drugs. It is not the worst example of a breach of conditional liberty but it still is an aggravating factor to be taken into account.
The Crown's submissions to the Court in this respect identify so far as aggravating factors are concerned under s 21A the breach of conditional liberty and another. The Crown points to the fact that the use of drugs by the prisoner himself does not of itself reduce the objective seriousness of the offending. It is relevant to some extent of the assessment of his moral culpability which I accept. For example, Dang v R [2013] NSWCCA 246 particularly at [30]. I am prepared to accept that, but in terms of the matters arising out of the psychological report, in the absence of a direct causal connection between any particular condition the prisoner has on the offending, that aspect of the matter does not diminish the prisoner's moral culpability.
The Crown correctly, coming back if I may just briefly to the 'purposes of sentencing', identified the fact that general deterrence and protection of the community are at the forefront in sentencing people involved in drug supply. The Court of Criminal Appeal in Parente [2017] NSWCCA 284 particularly at [107]-[115] of course turned away from an absolute rule in sentencing drug suppliers. The principles of sentencing have to be applied as understood both in the common law sense and by reference to authority and just because someone is "substantially involved in drug trafficking" it will not necessarily require the fixing of a full time custodial sentence. Having acknowledged that, of course, there can be no doubt that the s 5 threshold has been passed in relation to the totality of the offending with which I am now concerned. Obviously no other penalty can be imposed other than a term of full time custody. The totality of the criminality denies the prisoner access to the consideration, for example, of a sentence that might involve the imposition of an Intensive Correction Order.
With regard to the issue of totality of criminality; I note what has been said about the requirement to fix an appropriate sentence for each offence then turn to the totality of the criminality discussed by the majority of the High Court in the conviction appeal of Pearce v R [1998] 194 CLR 610, particularly in [45]. In the context of Pearce principals I am mindful of what the High Court said about totality of criminality in Johnson v R [2004] HCA 15, following upon the 1988 decision of Mill v R [1998]166 CLR, particularly at pp 62-63. There is also the summation of principles by Hall J in the New South Wales Court of Criminal Appeal decision of R v XX (2009) 195 A Crim R 38, particularly at [52].
As I have earlier cited without having to quote it again in this case but cited in another judgment, there are the observations of Street CJ, in Holder v R (1983) 3 NSWLR 346, a decision of the Court of Criminal Appeal where he in the most eloquent way that I have seen, discusses the practical method of giving full effect and proper effect to totality of criminality and I have endeavoured to do that by the aggregate sentence I propose by regard to the individual indicative sentences that will be disclosed shortly.
So far as the further submissions of the Crown and the defence it would be to my mind clear that I have addressed all the issues the parties have raised for specific matters identified in the written and the oral submissions that I have picked up for the purposes of addressing the matters that I am required to address. I suppose the only outstanding matter is to identify what could be called "mitigating" factors additional to those identified under s 21A(1) in s 21A(3). I could not conclude of course that this was not part of planned or organised criminal activity. I cannot find that as an aggravating factor beyond reasonable doubt. It is an inherent character of the offending of organised supply of drugs that there is planning and the like but it is certainly not a relevant mitigating factor. I cannot conclude that the prisoner is unlikely to re‑offend. His past record and this offending in its context demonstrates that is so. I cannot conclude that he has good prospects of rehabilitation. Of course his plea of guilty is a mitigating factor which I have taken into account. For that he receives a discrete discount. In this particular case, to be fair, it may be identified as a mitigating factor, or it is part of the factual context as I have noted, that there has been no damage to the community because of the fact that the supply was to a police officer but that is something the prisoner did not know.
I am prepared to find on balance there is relevant remorse under s 21A(3)(i). But as I said it is not a significant matter in a range of ways. He has expressed remorse and regret for his conduct and I saw his evidence is largely genuine to the extent that he was able to articulate these matters but matters such as remorse of course like all other factors to be taken into account in sentencing are matters of degree as with aggravating factors the presence of an aggravating factor may be noted but it may not be a significant matter in the sentencing exercise. I bear in mind by reference to what I have concluded in relation to prospects of rehabilitation what his counsel has said and some of the history that the prisoner has given to the psychologist, concerning previous periods of abstinence from drugs and his capacity on occasions to lead a productive life. He has had, to be fair, what I would regard as very limited employment experience. I bear in mind, of course, his desire to give up drugs and hopefully he can live up to his desire. But, as I have said on at least two or three occasions, these statements of good intention have to be seen in the context of the facts of the matters with which I am concerned and the context of the prisoner attending NA (Narcotics Anonymous) meetings and then relapsing in the context of the prisoner undertaking the MERIT Program in circumstances I have already emphasised at least twice.
Thus, although as I said I would have liked to have sent the prisoner off to the Compulsory Drug Treatment Program to give him at least some assistance before his release to the community, I cannot do that. It is a matter of regret and just delivering the prisoner back onto the street in due course at the end of the non‑parole period is not the ideal situation. I do not think it is practicable for me to recommend that he go to a particular rehabilitation program. The truth of the matter is if he is sincere about undertaking a residential rehabilitation program that is a matter he can take up with the Parole Authority. His parole will not be granted to him automatically. It may be not a practical thing for him to pursue in a year's time or a year and four months' time when he is eligible for release to parole but these are decisions for him to make in consultation with the the Parole Authority.
The orders I make are as follows.
In relation to sequences 1, 4 and 5, sequence 4 taking into account sequences 2, 3, 7 and 8, I fix an aggregate sentence pursuant to s 53A of the Act, the Crimes (Sentencing Procedure) Act of three years, nine months imprisonment commencing on 25 July 2019 and expiring on 24 April 2023. I have explained the commencement date. I fix a non‑parole period of two years, three months imprisonment commencing on 25 July 2019 and expiring on 24 October 2021. So you will be eligible for release to parole on 24 October 2021 and the balance of the sentence runs for one year and six months after that. If you are released to parole and you are in breach of your parole you will have your parole revoked and you will be required to go back into custody to serve whatever balance of parole is calculated by the Parole Authority.
The indicative sentences I impose as follows reflecting the discount of 25% upon the otherwise appropriate sentence:
For sequence 1 - 18 months' imprisonment.
In relation to the sequence 4 offence, taking into account the matters on the Form 1 - three years' imprisonment.
In relation to sequence 5 - 12 months' imprisonment. I bear in mind the considerable concurrency of the sequence 5 offence with the activities reflected in sequences 1 and 4.
I make the following confiscation orders pursuant to s 18(1) Confiscation of Proceeds of Crime Act 1989:
As per paras 1, 2 and 3 the minutes of order dated 22 June 2020 I order the forfeiture of three mobile phones forthwith.
Pursuant to s 29(1) of the Act I order the prisoner to pay the State of New South Wales $3,400.
The effect of that last order is that you have a debt to the State of $3,400 so that is something they can pursue in the civil courts. Whether they will or not is a matter for the authorities.
[2]
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Decision last updated: 30 October 2020