R v Jenkinson

District Court of NSW|2022-10-13

Director of Public Prosecutions (Crown) Hamilton Janke Lawyers (Offender) File Number(s): 2020/00131225

Introduction

Thomas Jenkinson appears for sentence upon three charges.
The first of these is for sentence after I found the offender guilty at the conclusion of a trial before me as judge alone.
The second, H 75126608/5 is a matter upon which he was committed for sentence from the Local Court.
The third, H 75126608/1 is a related offence before the Court by way of s 166 of the Criminal Procedure Act 1986.
He confirmed that he pleaded guilty to the indictable charge in the magistrates' court, sequence five and he adheres to his plea of guilty in this Court. The related offence before me by way of the Criminal Procedure Act, sequence one, is a charge of possessing cannabis, a small quantity. He has pleaded guilty to that charge before me.
All three offences were prosecuted as a result of the investigation to which I will refer in the statement of facts that I will offer in the course of this judgement.

The Pleas

The offender's pleas of guilty to the second two offences, the offence of dealing with proceeds of crime and possession of cannabis, attract the application of Part 3 Div. 1A, s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999 and thus the discount for the utility of the pleas of guilty is 25% of the sentence that would otherwise have been identified for each of the offences if they were not admitted.
There is no discount to be applied to the sentence for the offence of which I found the offender guilty but considering the way the trial was conducted on behalf of the offender, s 22A Crimes (Crimes Sentencing) Procedure Act 1999 applies. It provides: "1) A court may impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment having regard to the degree to which the administration of justice has been facilitated by the defence (whether by disclosures made pre-trial or during the trial or otherwise). 2) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence."
The offender sought a trial by judge alone to resolve the sole issue in the trial, with limited evidence called and facts established by resort to s 191 Evidence Act 1995. I do not intend to specify a discount percentage to the sentence to be identified but I bring to account the substantial extent to which the offender facilitated the administration of justice in this case.

Pre-Sentence Custody

The offender has spent no time in custody for these offences, however, was for a period subject to stringent bail conditions which I have brought to account in the assessment of the punishment that he must suffer in response to my finding that he is guilty of the sole count in the indictment and his pleas of guilty to the further offences.
The bail conditions I have extracted from JusticeLink. According to this, on 2 May 2020, a magistrate granted bail with the conditions that he enter an agreement to be of good behaviour, to report to police once each day between 8am and 8pm and that he resides at the specified address and not be absent from those premises between the hours of 8pm and 8am. He was not to partake of alcohol or drugs unless prescribed by a doctor and there was an acceptable person required to acknowledged that he or she were acquainted with the offender and acknowledge him to be a responsible worker, likely to comply with bail acknowledgements.
The sequence of conditions continued until 16 December 2020 when Magistrate Price varied them to reduce the curfew to the hours of 10pm and 5am. Those conditions then continued until 8 April 2022 when the matter was before me in the District Court of Newcastle. The reported conditions were varied and the curfew was then deleted. Thus for a substantial period of time, his liberty was constrained; that is a matter to be considered in the assessment of penalty in this case.
In R v Quinlin [2021] NSWCA 284, the Court dealt with circumstances where bail conditions might be so harsh or restrictive that they might require a conclusion that at least part of the period on bail should be treated as the notional equivalent of custody, conveniently referred to as quasi-custody in the authorities. The onus of establishing whether such restriction amounted to quasi-custody fell upon the offender upon the balance of probabilities. The decision as to whether or not a person's bail conditions amounted to quasi‑custody and whether and if so to what extent an allowance was to be made is a discretionary decision in light of particular facts and circumstances of the case at hand. The decision made and is regarded as reviewable only in accordance with the principles as stated in House v King [1936] HCA 40.
I am not of the view that the restrictions were sufficient to amount to quasi-custody, but they were significant in the constraint they provided for a significant, if not substantial period of time and they brought to account.

The Facts

Facts leading to the prosecution are not controversial, save for the issue that was agitated in the voir dire at the conclusion of which I delivered an ex tempore judgement and announced my finding that the quantity of the drugs, psilocybin, for the purposes of this prosecution, should be presented as 98 grams, representing the bulk vegetable matter of which the specified prohibited plant was a part. R v Jenkinson (No. 1) [2022] NSWDC 286:
The facts leading to the accused's arrest are uncontroversial. He was in a parked car, about 10.30pm on May 1, 2022, in Nobles Road, Nelsons Plains. He was approached by police. The car was registered to him. After an initial conversation, the police executed a lawful search of the car, during which they found the following items: 1. Plastic resealable bag with cannabis leaf in the front passenger seat; 2. Silver weighing scales in the front passenger seat; 3. $940 in Australian currency in an elastic band in the centre console; 4. $1,300 in Australian currency inside the wallet located in the centre console; 5. $150 in Australian currency inside a wallet located in a jacket on the front seat; 6. A large plastic container in the rear passenger foot well, containing, 1. 12 plastic bags containing mushrooms; 2. a bag containing four empty plastic capsules.
It is not disputed that in the circumstances in which they were found, these items were in the possession of the offender. He was arrested and transported to Raymond Terrace Police Station, where he declined to participate in an interview. New South Wales Pathological Forensic & Analytical Science Service analysed the seized items and found them respectively to consist of: 1. Item 1.1, 63.7 grams of vegetable matter; 2. Item 1.2, 34.3 grams of vegetable matter; 3. Item 1, 1.3 grams of cannabis leaf.
The vegetable matter in items 1.1 and 1.2 weighed a total of 98 grams. This information is in the agreed statement of facts prepared in accordance with s 191 Evidence Act 1995 filed in the proceedings and acknowledged by the offender and on behalf of the Crown.
It was unsuccessfully argued on behalf of the offender that the bulk of the vegetable matter was not the relevant quantity for the purposes of the prosecution brought in respect of psilocybin, which was the active constituent within. The Crown's submission, with which I agreed, was that it is the weight of the vegetable matter in the form of the mushrooms in which the drug was found founds the accused's liability relying on the definition of the term "Admixture" defined in s 4 of the Act.
The plea of guilty by the accused to the alternative charge is supply prohibited drug, contrary to s 25(1) Drug Misuse and Trafficking Act 1985, not accepted by the Crown, reflected the Crown case to be advanced at trial that the offender had the vegetable matter in his possession for the purposes of supply. There is no other inference available from the quantity of the mushrooms that he had from the circumstances in which it was found and from the indicia of drug supply found in his motor vehicle.

The Offender

The offender did not give evidence in the trial, a decision which he was entitled to make, but which enlivened the consideration of the guidance offered by Smart AJ in R v Qutami [2001] NSWCCA 353 and more recently that offered by Wilson J in Imbornone v R [2017] NSWCCA 144, regarding out of court representation not under oath or affirmation and not tested by cross‑examination. The caution urged with such representations in the assessment of sentence and with regard to the nature and extent of the offender's role and activities from which the prosecution arose are well known. By his plea of guilty, he admits the supply of the drugs.
I accept the histories gleaned from the offender by the author of the sentence assessment report and by Mr Borkowski as reliable, consistent with the additional documents tendered in the offender's case on sentence. Notwithstanding that I have not heard from him, I am satisfied upon the material provided that he has discharged his burden of proof with regard to the matters upon which he would rely in mitigation as a punishment that might otherwise attach in this matter.
The offender was born in 2000. He is now 21 years old and was 19 at the time of the offences. He has no antecedent criminal record. There is a sentence assessment report prepared on 16 June 2022. According to this, the offender lives with his parents in Raymond Terrace in a supportive and positive environment and is engaged in prosocial activities within the community. He was employed in the armed services with the benefit of a scholarship for his studies, but because of these offences, that employment was terminated and the scholarship lost. He is now casually employed with full-time hours in the retail industry.
He is studying his fourth year toward a Bachelor of Chemical Engineering degree. He advised that he initially had no intention of supplying illicit substances, but his situation just escalated quickly when his associates realised that he had these in his possession. He accepted full responsibility and offered no excuse for his decisions. He has since implemented positive behaviour changes.
He used mushrooms and cannabis up to the point of his offending on a regular basis but was not under the influence of any substance when charged. He has remained abstinent since. He was diagnosed with anxiety and reported that at the time of his offending, he had ceased his medication. This caused some instability in his mental health and increased his anxiety. He was attributed with recognition of the consequences of his actions and that he placed the safety of others at risk. He accepts that his behaviour was dangerous and provided insightful perspectives regarding the impact of his offending upon the community. He is willing to engage in intervention and undertake Community Service. He is assessed with a low risk of reoffending. Clearly the sentence assessment report is supportive and sympathetic to the offender.
Jason Borkowski, psychologist, provided a helpful report which I found of great assistance in the assessment of this matter. He assessed the offender in clinical interview and also administered a psychometric questionnaire. The one criticism I would make of Mr Borkowski is his diagnosis of the offender's conditions which upon my understanding is not a matter that he was qualified to offer, though he clearly was qualified to offer his observations of the reasons why one might conclude that the offender was afflicted in the way he has suggested. Such diagnoses are properly made by psychiatrists and not psychologists. This said, I accept that the offender has exhibited the characteristics which would justify a diagnosis or diagnoses in the terms suggested.
He comes from, as I said, a supportive and loving family. He has two older biological siblings, a paternal half-brother, and his parents. He has always been close to his father. He denied any dramas so-called between them. His father has always been employed and has run his own business. He continues to live with his family. His relationship with his mother was always close. She is employed as a home care nurse. The relationship with his mother is very good. His parents remain together in a longstanding relationship, it appears. His older half-brother does not live with the family and did not live with them for the majority for the offender's formative years. His older biological siblings are quite close and have been throughout their lives.
He was in a long-term relationship of about seven years' duration, but they separated as a consequence, it would appear, of the prosecutions he has had to face. It was amicable and they continue to communicate and remain friends. He could socialise comfortably and had no notable social difficulties. His primary prosocial supports currently are his mother and his sister, with additional support from his father, brother and close friends when needed.
His education is discussed. He reflected positively on his primary school years without any academic social behavioural concerns. He attended a high school in year 7 and 8 but was unsettled. He associated with a peer with whom he developed a friendship. This preceded or was coincidental with poor academic performance. He transferred to another high school where he attended years 8 and 10 and thereafter attended another school for his senior years.
He was socially, behaviourally, and academically well-adjusted through his later high school years. He denied ever been bullied or picked on during school. He completed the HSC at the end of 2018 and began a chemical engineering career at the University of Newcastle. As I said, the scholarship that he was awarded through Armed Services was discounted as a consequence of this prosecution, but he continues on with study and is in his final year toward his degree. He has set the goal of pursuing a professional career in the renewable energy sector or nuclear power industry after he concludes his studies.
Physical and medical history is uncontroversial, apart from a back injury several years ago when training at a gym which required some physical rehabilitation. He has a history of depression and anxiety, which started when he was about 12 or 13 years of age. He progressed to regular panic attacks. He tried various pharmacotherapies, but none of these were effective. He ceased that treatment. He suffered notable depression after he was charged. He developed symptoms consistent with the condition. They subsided to some extent when bail restrictions were eased along the path toward the ultimate conclusion of the prosecution. There was a tragedy in the family when his sister lost twin boys who passed within days of their birth. This has had an impact upon their family, which I accept.
He consumed alcohol, but rarely did so in his adolescence and then later it was in moderate quantities. Unfortunately, as is often the case with people of his age, he began using cannabis from age 14. His use increased when he was 16 years of age. He found, according to his perception, that it was effective in reducing his long-standing anxiety and it also alleviated some physical pain that he was experiencing. It was costing him quite some money in relative terms. He tried other recreational substances, including MDMA on a one-off occasion.
In 2020, his partner on an overseas holiday read a book that had information relating to magic mushrooms. He then used the mushrooms on several occasions. He found that to be, "A cool experience." It helped him to escape from his perception of reality. He has not and had not attended any drug treatment or rehabilitation programs. The cannabis found in his possession was for his ongoing personal use.
The "magic mushrooms" he had in his possession, he explained as being held after his initial positive experience using the substances. He described the experience to his friends, after which people began to contact him to see if he could source some mushrooms for them. He had a large quantity for the first time before he was apprehended. It was from having such quantities when he first collected them and did not continue to use them that he agreed to supply the people who contacted him when those people offered him money.
He submitted to the Level of Service Inventory - Revised, LSI-R for the risks of recidivism. He is assessed within the low-risk range. He was diagnosed, as I said, against the DSM-5 with general anxiety disorder and substance abuse disorder and at p 8 of 13, it is noted that prominent in his subjective history is the longstanding pervasive pattern of low moods and anxiety since his early adolescence. He described ongoing anxiety related symptoms with no apparent instigated cause that gradually increased to the extent of panic attacks during his mid to late adolescence. Anxiety continued to have implications for his functioning and tertiary studies and hence the suggested generalised anxiety disorder.
He decided to try the substance, the subject of the charge on the indictment, which on its initial occasion, provided him with a positive experience, but subsequent use of the substance did not prove as beneficial and he discontinued. He no longer used them and thus when requested to supply to others, he submitted to that opportunity.
Treatment recommendations are offered to facilitate his continued rehabilitation.
His mother provided a document supporting him. Clearly, she has great affection for her son. She refers to his strict bail conditions, speaks of him in the most glowing and positive terms. In the document she provided there is a reference from a Ms Laurence who is the mother of a boy who became good friends with the offender. Once again, she speaks well of the offender. There can be no doubt that he is a person of good character but for the behaviour upon which he engaged in this instance.

Consideration

The submissions provided by the Crown and on behalf of the offender are largely complimentary, save that it is said on behalf of the offender that the proscription in s 5 Crimes (Sentencing Procedure) Act 1999 against imposition of a custodial sentence is engaged, whereas the Crown submits that that line has been crossed, but concedes that in the circumstances, the case does not require the offender to serve a sentence of custody but may be ordered to serve a sentence by way of an intensive corrections order. This alternative proposition was advanced on behalf of the offender. I have indicated already that is the course I propose in this case.
Part of the task I must undertake is to assess the objective gravity of the offences, drawing upon the guidance, for example, by Johnson J in Tepania v R [2018] NSWCCA 247 where his Honour discussed what was required in respect of standard non-parole period offences and those that do not have a standard non-parole period specified for them. As his Honour noted, current provisions in Part 4 Div. 1A Crimes (Sentencing Procedure) Act 1999 were amended to their present form after the decision of the High Court of Australia in Muldrock v The Queen [2011] HCA 39. His Honour identified the factors that now must be brought to account upon the application of these provisions.
S 54B of the Act applies whenever a court imposes a sentence of imprisonment for a standard non-parole period offence. It must be read as a whole. It is a matter to be considered by the Court as part of a single staged and not a two-stage process when determining the sentence without limiting the matters otherwise required or permitted for consideration in the process of intuitive synthesis or instinctive synthesis required of the Court. The concept of a standard non-parole period is an abstract one, including only the objective factors affecting the relative seriousness of the offence in the middle of the range of objective seriousness.
When construing s 54B as a whole, the Court is not required to identify the extent to which the seriousness of the offence in question differs from the abstract of notional or theoretical offence referred to in s 54A(2), that is one within the middle range of objective seriousness assessed upon the objective factors affecting the relative seriousness of the offence.
Assessment of the objective gravity of the offence is necessary, as required by common law, but the Court is not required to identify features which were considered or not when assessing the role of the standard non‑parole period in a particular case. The Court must consider all factors which bear upon the process of intuitive or instinctive synthesis in the particular case, including the legislative guideposts constituted by the maximum penalty on the standard non-parole period.
His Honour continued on with reference to the obligation to assess objective seriousness in respect of standard non-parole period offences and those that do not have a standard non-parole period. Factors such as, motive, provocation or non-exculpatory duress may be considered when assessing objective gravity and regard may be had to factors personable to the offender that are causally connected with the material contributed to the commission of the offence, including, if it be the case, a mental disorder or mental impairment.
His Honour discussed the concept of moral culpability, which is another matter that must be brought to account when determining the sentence that is to be imposed. Moral culpability may be low, which I find it to be in this case, and in such circumstances, retribution and denunciation do not require significant emphasis.
The assessment of objective seriousness is often a matter of judgement upon which minds will differ and it is often difficult to be precise in the specification in the level of objective seriousness. However, upon my assessment of the material and the Crown concedes, the objective seriousness of these offences is toward the lower end of the range. This is also consistent with what is said on behalf of the offender.
As the Crown has noted, the 98 grams of mushroom material is at the upper end of the commercial quantity, almost at the level of a large commercial quantity, but the prohibited drug was but a small percentage of the bulk, such that the purity was very low. Notwithstanding the evidence of indicia of active supply including digital scales, resealable bags and cash, the Crown accepts that the though the offender was intending some financial gain, he was not on the evidence working within a hierarchy or involved in a sophisticated drug supply operation but was sourcing the drugs for himself and was selling effective access to associates at their behest. Indeed, as I understand what has been attributed to him, he simply had the drugs, which he was not at that point using because they did not have the impact that he initially experienced. This was not a commercial supply with a return to him, but was, of very modest proportion.
The sum of $2,390, the subject of the charge of the proceeds of crime offence was the product of the sale of prohibited drugs but bearing in mind that s 193C(2) Crimes Act 1900 extends to another threshold of $100,000. This offence is at the low end of the range.
The possession of 1.3 grams of cannabis founding the third charge for personal use is within the low range.
There are no relevant aggravating factors to be found in this prosecution. The offender's moral culpability is diminished to some extent upon the opinions reached by Mr Borkowski. It is noteworthy that he was always nurtured and supported throughout his formative years and that there is nothing in the relationships with his family that contributed to the decisions he made. His future was, to say at the least, promising, with the opportunities he was given.
As I said, I question the qualifications available to Mr Borkowski upon which he diagnoses the offender, as he purported to do on the report, but I accept that the factors he identified would support a finding that the offender was afflicted with generalised anxiety disorder that explains the evolution of a substance use disorder in the throes of which he became a regular, if not, constant user of cannabis, extending into magic mushrooms for a period of time for the benefits her perceived from their use. I accept that it is within this context that he supplied drugs for his modest return, not appreciating at the time the extent of the criminality involved. I accept that he is a person of otherwise good character and that there are strong prospects for rehabilitation if it has not already been achieved. I accept that he has demonstrated appropriately contrition and remorse.

The Assessment of Sentence

The purposes for which Court may impose sentence upon an offender are expressed in s 3A Crimes (Sentencing Procedure) Act 1999, reflecting the common law principles that have evolved in this area of jurisprudence over the years. These are to ensure the offender is adequately punished, to prevent crime by deterring the offender and other persons from committing similar offences, to protect the community from the offender, to promote the rehabilitation of the offender, to make the offender accountable for his actions, to denounce the conduct of the offender, to recognise the harm done to the victim of the crime of the community.
There is limited weight to be attributed to specific deterrence, the need to protect the community from the offender and his rehabilitation, which I find to be well advanced, if not complete. However, appropriate weight must be attributed to the aspects of general deterrence and denunciation and the recognition of harm to the community. Though the offences are at the lower end of the objective seriousness and the offender's moral culpability is diminished in the way I have described, I do not accept the submission that the proscription in s 5 Crimes (Sentencing Procedure) Act 1999 is engaged so as to dictate that a sentence of imprisonment should not be specified.
I am satisfied that no outcome other than imprisonment is appropriate in this case for the offence of supply commercial quantity of a prohibited drug and dealing with property suspected to be the proceeds of crime. However, I am satisfied that the sentence of imprisonment in the aggregate for those two charges may be served in the community under the terms of an intensive corrections order. I have had regard to s 66 of the Act, providing that community safety must be the paramount consideration when deciding whether to make an intensive corrections order.
In coming to my decision, I find that serving the sentence by way of an intensive corrections order is more likely to address the slight risk that the offender might misconduct himself in the future.
I have decided to impose an aggregate sentence that will commence today. It will be for a period of 2 years and 6 months. The sentence that I would have imposed for each of the offences if separately dealt with are: 1. For the offence of supply commercial quantity of prohibited drug, a non-parole period of 1 year and a head sentence of 2 years and 3 months. I am obliged to specify the non-parole period for the purposes of the orders I am making because that is a standard non-parole period offence. 2. For the offence of dealing with the proceeds of crime, the sentence I identify is indicated as one of 11 months. The sentence for that offence has been reduced by 25% for the plea of guilty. 3. For the offence of possess cannabis, I propose no penalty, applying 10A Crimes (Sentencing Procedure) Act 1999.
Thus in respect of each of the offences, I convict the offender.
For the supply of commercial quantity of prohibited drug, I indicate a sentence of 2 years and 3 months with a non-parole period of 1 year.
For dealing with the proceeds of crime, a period of 11 months discounted by 25% for the guilty plea to reach that term. It has been rounded down, abandoning the odd days that were left upon the application of the discount to the starting point.
The aggregate sentence, as I said, will be one of 2 years and 6 months beginning today.
The intensive correction order is imposed upon the application of s 66 of the Act. I note that I do not have an assessment report dealing specifically with suitability of service by way of an intensive corrections order, but I do have the material before me upon which to come to the decision that it is appropriate to take this course. As I said, I have had regard to the aspects of community safety and other considerations specified in s 66 of the Act.
The standard conditions will apply. They are that he must not commit any offence and he must submit to supervision by community corrections officer, and to that end he shall attend the Community Corrections at Maitland. Contact should be made with them by tomorrow. That can be done by telephone for whatever arrangements are going to be imposed.
I am required to impose additional conditions. I note that he is at an important stage of his studies toward admission to his degree. He has already experienced curfew for a significant period of time. I do not believe it is appropriate to require him to submit to further limitations at this stage. However, I am going to require that he abstain from the possession or use of illicit drugs, or prescription drugs unless they are drugs that were prescribed for him. I am also going to require that he continue with or submit to any requirements that are identified as appropriate for rehabilitation or treatment to ensure that he is not burdened by anxiety and depression, such as led him into his present predicament.
I accept the submission that on the material before me, he has taken charge of his life in that regard, but it should not be overlooked that one can unfortunately drift back into such patterns and all should be done to make sure that he is protected from that occurring. Thus, Community Corrections have the task of supervising to make sure that if he needs treatment, he is given the opportunity to take advantage of what may be available to him.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 April 2023

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Judgment (10 paragraphs)

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Cases Cited (7)