R v Johnston

District Court of NSW|2019-10-01

Director of Public Prosecutions (NSW) (Crown) File Number(s): 2017/00215768 & 2018/00203828

INTRODUCTION

Jake Johnston is here today for sentence in respect of four offences to which he pleaded guilty in the Local Court where the prosecution commenced. He has confirmed his pleas of guilty in respect of these charges, and adheres to those pleas of guilty in this court.

THE OFFENCES AND PENALTIES

These offences are first of all charge of supplying 8.23 grams of cocaine contrary to s 25(1) Drug Misuse and Trafficking Act 1985 with a maximum penalty of imprisonment of 15 years and a fine represented by 2000 penalty units.

PRE-SENTENCE CUSTODY

The offender has effectively spent no time in custody. He was arrested on two separate occasions as it will be revealed when I summarise the facts. Bringing those occasions to account he was without his liberty for no more than two days. He was granted bail in respect of the first two charges to which I earlier referred of supplying cocaine, and in breach of that bail he committed the two further offences of supplying on an ongoing basis. That is a matter to be brought to account in aggravation of his misconduct in the commission of the second two offences, not to increase the objective gravity of the offending or the proportionate sentence that might otherwise be applied, but it does speak to the aspect of specific deterrence and the extent to which the offender might have otherwise had leniency extended to him.

SUMMARY OF THE OFFENDER'S BACKGROUND

He has no antecedent offences against his name and at 21 years of age now, and as I understand it 18 at the time of the commission of the offences, he was and is a young man who made the foolish decision to involve himself in serious criminal conduct, the ultimate goal of which was the enrichment of organised criminals involved in the distribution of the prohibited drug cocaine within our community. He has a compelling subjective case, to which I will come, and there is I believe a sound basis to explain why he chose the course that he has that brings him before me facing incarceration.

CO-OFFENDERS

There were two co-offenders who have already been dealt with by her Honour Acting Judge Latham; they both appeared before her Honour on 1 August 2019.
The first of those, Mohamad Sawan, was ordered to submit to an intensive corrections order for a period of two years upon two counts of supplying a prohibited drug on an ongoing basis contrary to s 25A(1) Drug Misuse and Trafficking Act 1985, This was an aggregate sentence upon two indicative sentences of 18 months.
The other offender, Haris Siddiqui, was sentenced to an aggregate of two years and six months to be served by way of an intensive corrections order in the community. He faced three counts of supplying a prohibited drug on an ongoing basis contrary to the same provision with indicative sentences for each offence of 18 months.
The behaviour of each of these three offenders was comparable except that in the case of Sawan and Siddiqui they were far more extensively involved. As revealed in the statement of facts provided in the bundle in this case to inform me of their misconduct they had some antecedents, as I recall although serious within the context of those particular matters not such as to impact upon the question of parity in this instance other than to a marginal degree. Moreover, they each spent a significant period of time in custody pre-sentence, not amounting to 12 months in either case, which must have been a matter brought to account by her Honour in the assessment of the appropriate sentence in aggregate after the adoption of the indicative sentences she announced.
I should note that I do not have her Honour's reasons for the decisions she made but I am quite satisfied that on the material I have I can deal with this matter today without putting at risk the question of parity. I have indicated to both representatives in the matter that in my view this young man should also serve a sentence of imprisonment by way of an intensive corrections order. It remains however that I must determine by what structure I should resolve that outcome and what should be the indicative sentences in each case, bearing in mind that he faces four charges, two of ongoing supply and two of actual supply, and he has the other burden of the circumstances of aggravation in committing the second sequence of misconduct while subject to bail for the first.

UTILITY OF THE PLEAS OF GUILTY

He pleaded guilty in the Local Court at an early stage and therefore is entitled to a discount of 25% to the sentence in each case that would have been imposed otherwise. This reflects the utility of his plea of guilty in each case in accordance with the decision in R v Borkowski [2009] NSWCCA 102. I also take that into account as demonstration of contrition and remorse of which I am satisfied in light of what appears to be a credible explanation for his decision to embark upon these crimes against a background of enormous responsibility that was placed upon his shoulders for the care of his ailing father. I shall describe that in greater detail when I deal with his subjective case.

THE AGREED FACTS

The agreed facts before me explain how these three young men were what are described as runners serving the interests of others as the principals. It is not clear to me what has happened to the principals, whether they have been arrested and prosecuted. All I have before me at this stage is information regarding these three runners. This offender is the least involved in this activity compared with the other two.
The principals were involved in the distribution of drugs from premises in Belmore Street Ryde. They gave instructions to runners to conduct the individual transactions, the individual supplies of the drugs. These three are included in a larger number of the runners that were servicing the principals.
Surveillance was set up outside of the premises showing the runners attending the premises at various times. There was a telephone service that was intercepted, in the use of which one of the principals directed the runners to locations around Sydney for the supply of the cocaine to customers. A typical example was that a principal would receive an incoming text from a customer before he would then send a message to one of the runners to attend to meet the customer. On some occasions the supplies were conducted by the principals without the assistance of the runners. Supplies were typically conducted in multiples of half-gram deals. 14 half-gram deals supplied to an undercover operative by one of the principals on 6 July 2017 weighed an average 0.4 grams. Totals hereafter described are calculated on the basis of 0.4 grams unless the quantity of drugs supplied was seized and analysed to show a greater or lesser quantity.
The supply in each case was for financial reward; a half-gram deal even with the reduced weight of 0.4 grams was typically for $150 and two half-gram deals of up to 0.8 grams was for $300. On occasions there were discounts given to customers particularly where larger amounts were purchased.
Between August and September 2017 Mohamad Sawan engaged in 212 individual supplies in which he supplied 221.42 grams of cocaine. Between August and September Haris Siddiqui engaged in 388 individual supplies in which he supplied 210 grams of cocaine. Between August and October Johnston engaged in 163 individual supplies in which he supplied 79.7 grams of cocaine.
The facts then deal with the ongoing supply between 30 August 2017 and 8 September 2017; that occurred between 27 September 2017 and 15 October 2017. It is said in the facts that over 500 grams of cocaine was supplied on behalf of the principals between August and December 2017. This figure is reached as I have said upon the sum of the quantities provided by each of the three runners including this offender.
There was an earlier association between this offender and one of the principals. On 15 July 2017 he was arrested and charged with the supply of cocaine and when he was arrested the police seized an iPhone from him which had on it evidence of calls and text messages between the offender and one of the principals between February 2017 and 2 July 2017.
The facts then provide details of the days that the offender supplied cocaine on behalf of the principals to customers for financial reward. He was captured attending the premises by way of the surveillance device installed proximate to them on the dates specified. He received money from the customers in exchange for cocaine and in telephone intercepts he is captured making reference or speaking with reference to the money being received.
The first of the ongoing supplies begins on 31 August 2017 when text messages were sent between one of the principals and the offender arranging to meet at the premises. On 1 September 2017 there were text messages between one of the principals and the offender confirming that he was to attend the premises at Ryde and there was surveillance footage showing him speaking to one of principals at the front door there between 3.03pm and 3.11pm.
On 1 September 2017 one of the principals directed him to supply cocaine to customers on 14 separate occasions; these were at Beecroft between 3.44pm and 4.12pm, Manly between 4.54pm and 5.05pm, Gordon between 5.45pm and 6.48pm, St Leonards between 6.36pm and 7.11pm, Manly between 7.38pm and 7.57pm, again at Manly between 7.52pm and 8.02pm, again at Manly between 8.01pm and 8.06pm, again at Manly between 8.06pm and 8.21pm, at Freshwater between 8.21pm and 8.40pm, at Beacon Hill between 8.40 and 8.50pm, at Narrabeen between 8.50pm and 9.18pm, at Dee Why between 9.19pm and 9.36pm, at Manly between 9.30pm and 10pm, at Fairlight between 10.28 pm and 10.42pm.
He was captured on the surveillance equipment attending the premises on 2 September 2017 between 11.23pm and 12.08am; that is to say between 11.23pm on 1 September and 12.08am on 2 September 2017.
On 2 September 2017 one of the principals directed the offender to supply cocaine on 19 occasions. This was first of all at an unknown location between 5.20pm and 5.38pm, at Manly between 5.30pm and 5.48pm, at Manly between 5.48pm and 5.55pm, at Balgowlah between 5.56pm and 6.15pm, at Neutral Bay between 6.11pm and 6.35pm, at Manly between 7.00pm with the second time not specified here, at Queenscliff between 7.09pm and 7.19pm, at Terrey Hills between 7.55pm and 9.21pm, upon two separate customers at Manly between 7.59pm and 8.19pm, at Manly between 8.15pm and 8.24pm, then 8.25pm and 8.41pm and then between 8.41pm and 8.49pm, at Cammeray between 9.15pm and 9.58pm, at North Sydney between 9.48pm and 10.10pm.
He returned to the premises at Ryde between 10.35pm and 10.36pm on 2 September 2017 and then attended customers near Artarmon Road between 10.53pm and 11.06pm, at Neutral Bay between 11.16pm and 11.38pm, at Manly between 11.34pm and 11.47pm, at Neutral Bay between 11.16pm and 11.38pm, at Manly between 11.34pm and 11.47pm, at Balgowlah between 11.34pm and 11.47pm and Manly between 11.57pm and 12.03am.
He entered the premises, again captured on surveillance, at 1.23am and left at 1.53am on 3 September 2017. On 8 September 2017 at the direction of one of the principals he supplied six customers around Sydney. On 9 September and into the early hours of 10 September at the direction of one of the principals he supplied another 15 customers around Sydney. On 14 September 2017 at the direction of one of the principals he supplied one customer at Dundas, on 16 September and into the early hours of 17 September 2017 at the direction of one of the principals he supplied 24 customers around Sydney.
On 22 September 2017 one of the principals directed him to supply cocaine to customers at four locations; the first North Sydney between 6.39pm and 6.46pm, then at St Leonards between 6.40pm and 7.02pm, at Chatswood between 7.02pm and 7.15pm and North Sydney between 8.03pm and 8.45pm. On 23 September 2017 at the direction of one of the principals he supplied five customers around Sydney.
The facts then move to the second supply on an ongoing basis between 27 September 2017 and 15 October 2017. On 29 September and into the early hours of 30 September 2017 at direction of one of the principals he supplied 18 customers around Sydney.
On 30 September 2017 at the direction of one of the principals he supplied 17 customers around Sydney. On 6 October 2017 and into the early hours of 7 October 2017 at the direction of one of the principals he supplied seven customers around Sydney.
On 7 October one of the principals directed him to supply cocaine at 15 locations; these were Harriet Lane between 3.52pm and 3.55pm, Fairlight between 3.56pm and 4.26pm, Mosman between 5.12pm and 5.43pm, Manly between 6.37pm and 6.50pm, again at Manly between 6.49pm and 6.58pm, Frenchs Forest up to 7.44pm, Cremorne between 7.42pm and 8.08pm, Mosman between 8.10pm and 8.22pm, Frenchs Forest between 8.23pm and 8.52pm, Queenscliff between 9.17pm and 9.23pm, Manly between 9.26pm and 9.29pm, Balgowlah between 9.34pm and 9.48pm, Beacon Hill between 10.21pm and 10.47pm, Mosman between 11.15pm and 11.38pm and Manly between 12.27am and 12.33am.
On 13 October 2017 one of the principals directed the offender to supply customers at 18 locations. These were Fairlight between 5.07pm and 5.41pm, Manly between 7.12pm and 8.23pm, Freshwater between 7.20pm and 7.37pm, Balgowlah between 8.19pm and 8.43pm, Double Bay between 8.41pm and 8.49pm, Freshwater between 8.49pm and 9.04pm, Greenwich between 9.01pm and 9.36pm, Pymble between 9.31pm and 9.57pm, Dee Why between 9.57pm and 10.31pm, Double Bay between 10.31pm and 10.47pm, Manly between 10.45pm and 10.57pm, Collaroy between 10.54pm and 11.21pm, Balgowlah between 11.21pm and 11.41pm, Double Bay between 11.33pm and 11.49pm, Collaroy between 11.04pm and 12.20am, Beacon Hill between 12.05am and 12.29am, St Leonards between 12.31am and 1.00am and then 1.01am to 1.22am. There might be a typographical error in relation to the Collaroy delivery when it specifies 11.04pm, it might either be 11.40pm or 11.04pm, but it is not clear.
On 8 December 2017 the police searched the premises at Ryde. A number of co-offenders were arrested that day. This offender was charged on 17 June 2018. He declined the opportunity to participate in an interview upon legal advice; that was his right and he suffers no prejudice as a consequence.

THE CO-OFFENDER SAWAN

The Crown bundle then includes the summary of facts relevant to Sawan, I do not propose to proceed through that document in all its detail; it is there provided if needed. It includes the description of comparable behaviour upon the transactions that he attended at the various places and the various times and is accompanied by a schedule of the supplies conducted by him between the dates specified with the particulars of each transaction.
The antecedent report provided for Sawan includes his record in June of 2018 of supplying a small quantity of prohibited drug in two separate counts with an offence of dealing with the proceeds of crime for which he was required to enter bonds pursuant to s 9 Crimes (Sentencing Procedure) Act 1999 in the Local Court at Burwood.

THE OFFENDER SIDDIQUI

The next document in the bundle is the Agreed Statement of Facts for Haris Siddiqui. Once again this describes comparable behaviour but in respect of the transactions in which he participated giving rise to his prosecution; that is also accompanied by an extensive table in the form of a schedule listing supplies conducted by him with the particulars of each transaction there recorded.
It is apparent that both co-offenders were more extensively involved than this offender with reference to the transactions in which they took part.
His bail report sets forth his antecedents beginning in August 2015 with a charge of intimidation and damage to property for which he was fined and required to enter a bond pursuant to s 9 Crimes (Sentencing Procedure) Act 1999 and then he has the sentences which was imposed by her Honour. He also has offences of driving without a licence, negligent driving, driving whilst disqualified, disobeying a traffic sign. I note on his bail report that he was given an intensive corrections order in respect of three counts, in August 2019. He was also charged in January 2019 with supplying a prohibited drug for which he was given imprisonment for six months and for dealing with the proceeds of crime, a conviction without penalty, and for supplying prohibited drug a community corrections order for two years.
What I said earlier about the nature of his antecedents needs some qualification to reflect that he had a less compelling subjective case, clearly less compelling than this offender who, born in 1998, comes before the Court without any prior blemish.

THE OFFENDER

The author of the pre-sentence report provided initially found him unsuitable for community service because of his work commitments; a further report provided more recently in April 2019 revealed how he plans to resign from employment because of these offences to allow him to perform community service work if the Court was minded to extend him that opportunity. Community Corrections can provide him with community service up to 22.5 hours of work per month.
The pre-sentence report is very favourable I might say. He lives with his father and younger brother in the northern suburbs, he had a positive and happy upbringing in the Western Sydney area, and he lived with his mother and siblings throughout his childhood. He has been living with his father for approximately the last six years. There is no detail before me as to how his parents came to be not together. What is important though is that he had from a young age taken the challenging role of carer for his father for which he is given assistance by the Commonwealth. His father suffers from significant mental health issues and is heavily reliant upon the offender. His father is disappointed in his son's offending and suggests that he has been manipulated by others because of his immaturity.
He was at the time of the assessment employed at Sydney International Airport; he had that job for some 12 months. He completed his Higher School Certificate in 2016, since then he has worked as a labourer before the employment that he had at the time of the assessment. He was concerned about the outcome of these proceedings upon that employment opportunity; his decision to leave that work however has obviated whatever difficulties he might have anticipated. He was unemployed at the commission of these crimes, he was having trouble getting work and when the opportunity presented he did not give adequate consideration to the consequences for him and the community engaging upon such serious criminal misconduct.
Since his arrest he has taken steps to distance himself from those with whom he was involved, his father has confirmed this, he has engaged in other pro‑social activities including work. He has not attempted to minimise his offending, he takes full responsibilities for his actions. He spoke to the officer of his changes to his lifestyle putting distance between his past offending and those with whom he was engaged. He has a low risk of reoffending. The assessment is that he will not require supervision and if a supervision condition is imposed that will be suspended subject to his obligations which will be explained to him at the appropriate time.
Documents tendered in his case support the opinion that is offered in the sentence assessment report. The first document I have is one written by Pete Potgieter, an accredited mental health social worker. There is some question about the nature of his qualifications, at the very least he would not be qualified to offer an opinion or a diagnosis other than to indicate that there were observations made consistent with what might be diagnosed by a health care professional who was adequately qualified to diagnose the offender. It is with that caveat that I have read this report which otherwise I have found, I must say, helpful.
I have not overlooked that the offender has not given evidence and the oft-quoted decision of Qutami [2001] NSWCCA 553 comes to mind, with the guidance offered by Acting Justice Smart who urged circumspection when reviewing untested representations given out of court by an offender. It does not mean that those representations should be discarded or disregarded; I am satisfied that overall the material is internally consistent and there is support for what is represented from other material provided in other documents tendered in the offender's case. Applying the guidance offered by Smart AJ I am satisfied that I can rely upon what is attributed to the offender by the author of this report.
As a young man barely into his adult years he took on the responsibility of caring for his father which is said to have been overwhelming. He is attributed with a measure of immaturity at the time of his commission of these offences at 18 years of age whereby he did not give adequate consideration to the consequences both legal and social of his actions. Since these events including his arrest he has entertained suicidal ideation including an attempt to take his life by taking an excessive quantity of Valium and drinking bleach. He was admitted to a hospital as a consequence and I have the discharge summary evidencing his presentation and the management as a result of that event. As a consequence he has attended upon a general practitioner Dr Paul Russell who has a health care plan in place for him to assist him through the challenges that he is suffering as a consequence of his misconduct on its sequelae and the burden created by the responsibility that he has undertaken with his father.
The author of this report administered some psychometric testing which resulted in scores suggesting a major depressive disorder with evidence of depression and anxiety and stress. There is also some indication of post‑traumatic stress as a consequence of him coming home from school on an occasion to find his father having attempted suicide by stabbing himself multiple times over his own body and the offender as a young boy being required to deal with that event and the sequelae. He lives with the fear of his father surrendering to the wish for self-harm on other occasions. It is clear that the offender must continue with the general practitioner's mental health plan to guide him in the next few years of his life.
There is a letter from Safi De Vries who was an emergency relief officer with Catholic Care at the Naremburn Family Centre where the offender's father has been attending for the past few years. She writes of his mental health issues and the assistance provided through the local mental health team. She speaks of his level of anxiety, his state of agitation on occasions. This provides, I might say, compelling evidence of the bases upon which the offender had taken responsibility for the care of his father who might be experiencing stress and anxiety.
There is the report from Dr Paul Russell the general practitioner speaking of the assistance he can provide to the offender and there is a letter from the offender's sister speaking of the challenges faced by their father and the responsibility taken by the offender for his care. She speaks of his qualifies and characteristics and though they are clearly close one must still attribute I believe weight to her representations which are consistent with all other material before me that the offender is otherwise a person of good character. There is a reference from a friend who has known the offender since childhood, again speaking of his qualities.
There is a letter from the offender which I accept as evidence of contrition and remorse, and recognition of the harm that he caused in the community. He takes responsibility for his actions; he recognises the danger that drugs can have to the community. He has been gainfully employed finding work in the construction industry after losing his previous job, which I take to be the position that he had at the airport. He writes of having separated himself from other individuals with whom he was charged and with whom he had been associating leading to his criminality and he is looking to put this episode in his life behind him and move forward.

CONSIDERATION

An aspect that he has not addressed in his letter, perhaps consistent with his expressed recognition of harm to the community something, but which is often overlooked by people who engage in this misconduct. It is that there are those individuals internationally involved and engaged upon the distribution of prohibited drugs throughout the free world including Australia. These drugs are dangerous per se and hence they are prohibited, and those who foolishly believe it is socially acceptable to use them within a social context, thinking there is no real harm being done, completely overlook the fact that they are enriching organised criminal enterprises. Hence there is a need for the courts deal with this misconduct in such a fashion as to make it clear to those who might want to get involved that they do so at their peril and that the starting point in the assessment of any of these matters is gaol. General deterrence has its role to play, but specific deterrence has a lesser of role to play in this case. I am satisfied that the prospects of rehabilitation in this case are well made. But there must be some measure of punishment and recognition of harm and denunciation and the offender must be made accountable for his decision to embark upon these crimes. It is not included in the material before me but there must have been some financial reward for the offender. I do not take that into account as an aggravating factor for it is part of the factual matrix of such an enterprise, but there was no element of altruism in any of this misconduct.
This said, one can understand how at his level of maturity, with the stressors in his life, he might have surrendered to the temptation of easy money that this activity offered for him.
There must be a sentence of imprisonment identified for each of these offences. The line in s 5 Crimes (Sentencing Procedure) Act 1999 was crossed but upon the material before me and in particular the report provided by the Community Corrections officer and supported as it is by the mental health social worker I am satisfied that the sentence can be served by way of an intensive corrections order in the community. I have been ably assisted, I might say, by the Crown and by Mr Skinner who appears on behalf of the offender. I did not have the benefit of many oral submissions from him but his written submissions I have read and he has said all that he can on behalf of his client in elegant and eloquent terms. He recognises the aggravating conditional liberty to which he was subject in the commission of the second sequence of misconduct. He correctly observes that the amount of planning and financial record features are inherent or implicit in this type of misconduct, his prior good character, low risk of offending and his expressions of remorse are addressed. Parity is raised, it is acknowledged that general deterrence is significant, specific deterrence will be adequately addressed by a non‑custodial option and I agree with that assessment.
When one turns to the intensive corrections order option community safety must be the paramount consideration for the Court and the Court must assess whether making the order or serving the sentence by way of full‑time detention is more likely to address the offender's risk of reoffending. I am satisfied that an intensive corrections order in this case will be more likely to assess his risk of reoffending which is assessed low. I have taken into account the additional offence and I will certify the Form 1 to confirm that I have done so.

THE SENTENCES

The indicative sentences I adopt for the individual offences allowing the discount of 25% for the utility the pleas have provided and taking into account the Form 1 offence in respect of the first of the supply charges result in the following:
The first sequence 1 in the series H67067051 supply of 8.23 grams of cocaine the indicative sentence is one of 1 year 3 months.
The charge sequence 3 in that same series of supplying 1.57 grams of cocaine, indicative sentences of 1 year.
In respect of each of the ongoing supplies sequences 2 and 4 respectively in the series H580799991 is 1 year and 6 months.
I specify an aggregate sentence of 2 years and 3 months; the sentence is to be served by way of an intensive corrections order in the community.
I should observe before I make the final orders that I have brought to mind the statements of principle and guidance provided by Spigelman CJ in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 number 1 of 2002 [2002] NSWCCA 518, in consequence of which the principal offence has resulted in a sentence that has been increased bringing into account the additional offence with appropriate weight having been given to the aspect of personal deterrence on the extent of the misconduct involved in those two offences, that is the supply and the Form 1 offence, and the community's entitlement to retribution for the entirety of the offender's misconduct.
The sentence of imprisonment by way of an intensive corrections order shall commence today. The standard conditions apply, they are:
1. That he must not commit any offence; and
1. He must submit to supervision by Community Corrections officer;
1. I require that he perform community service of 200 hours and I shall allow the Community Corrections officer to allocate the work according to an appropriate timetable bearing in mind the extent to which the offender has obligations both to his employment and to the care of his father;
1. The mental health care plan constructed by the mental social worker for such time that requires it to be pursued.
There is a backup charge of possess that is to be withdrawn, I will note that Mr Crown.
Pursuant to the Confiscation of Proceeds Crimes Act 1989 and s 18(1) cash in the sum of $400 seized from the offender on 15 July 2017 is forfeited to the State and, pursuant to the same provision, cash in the sum of $2710 seized within the Volkswagen Golf motor vehicle DKX04X on 15 July 2017 is forfeited to the State. Leave is given pursuant to s 19(3) (a) of the Act that the property be disposed of forthwith. I shall sign each copy of the order and my associate will date stamp and seal them and return the copy to the Crown and place one on the file.
I will require him to report to the St Leonard's Community Corrections office within seven days of today and he will have to go downstairs to sign the orders in the office so they can be implemented.

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: 05 June 2020

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