R v Keith Francis Silvia

District Court of NSW|2020-07-23

Contents Judgment Introduction Charge, maximum sentence, SNPP Standard non-parole period The facts Objective seriousness Section 21A. Subjective case Psychologists reports Covid 19 Guilty plea Criminal history Prospects Parity Totality Sentencing considerations Orders

Introduction

The offender was born on 15 March 1959 and so is now 61 years old. The offending occurred in the period January to May 2019 so at the time when he was initially 59 and then 60 years old.
The offender was arrested on 30 April 2019 and was held in custody until 22 November 2019, a period of 6 months and 24 days.

Standard non-parole period

The standard non-parole period, just as with the maximum sentence, is to be considered as a guidepost in carrying out the sentencing consideration.
The requirement imposed on the sentencing judge by Division 1A of Part 4 of the CSPA is to state fully the reasons for arriving at the sentence imposed. The matter of the SNPP is to be taken into account together with the maximum penalty as part of the instinctive synthesis process; see Muldrock v The Queen [2011] HCA 39 at [27]. It is a matter to be taken into account with all others with the requirement upon me to set out the reasons why I determine the non-parole period to be something other than 10 years. The fact that I consider count 1 to be less than in the middle of the range of seriousness for the reasons set out below is just one matter I have taken into account to arrive at that result.

The facts

The Crown bundle was tendered without objection and became exhibit A. It included a statement of agreed facts. The whole of that statement is therefore in evidence and what follows is a more specific outline of what occurred in this case.
Counts 1 and 3 are charges of knowingly take part in supplying prohibited drugs, respectively methylamphetamine and cocaine. Count 2 is a charge of dealing with proceeds of crime. Each of these offences occurred at a property owned by the offender of which is referred to in the facts as his home. The offender knowingly and willingly and on the facts enthusiastically engaged in the conduct of supplying drugs and permitted his house to be used as a meeting place for a Mr Rovere and a Mr Carriage. Mr Carriage supplied Mr Rovere with drugs. Consistent with this it was Mr Rovere who was the source of the proceeds of crime money. Although the agreed facts do not expressly state what crime the money was the proceeds of nor the specific purpose for which it was to be applied it is clear that it is related to drug supply activity; see in particular paragraphs 21, 22 and 23 of the agreed facts.
Count 3 occurred between January and April 2019 and is what might be termed a "rolled up" charge in that the supply of the cocaine in the amount agreed is the total of a number of supplies over the period January to April 2019. The conduct for which the offender is charged is providing his house as a place for the supply to occur and who then also facilitated these meetings and liaised between Mr Rovere and Mr Carriage.
The co-offender Mr Carriage was dealt with on the basis that the amount involved with this charge is 175 g but not all of the supplies were said to have occurred at the house of the offender. Logically therefore to be consistent and fair to the offender the amount supplied at his house, the basis of his offending, must be less than that.
The recorded conversation set out in the agreed facts (and excluding the last sentence of paragraph 11) is the basis on which I above described him as enthusiastic.
Count 2 is dealing with property the proceeds of crime of more than $100,000. The facts show that all the discussion concerning this money was between Mr Carriage and Mr Rovere. Mr Rovere asked the offender where he can put it and the offender suggested it be placed under his mattress.
The Crown sentence summary refers to a sum of $155,000 in cash. The agreed facts however refer only to an amount of $145,000 being stored at the house of the offender. The facts show that either Mr Rovere or Mr Carriage states that they are $10,500 short. There is nothing to suggest that money was ever dealt with by the offender. It is a minor matter and overall nothing turns on it.
Count 1 is the most serious of the offences and occurs almost incidentally at least in its discovery and possibly so far as the offender is concerned in its execution. The agreed fact is that this was a one-off supply of 487 g of methyl amphetamine by Mr Carriage to Mr Rovere. The offender knowingly took part in this by allowing his house to be used for the supply to take place in that the drugs were delivered to his house to Mr Carriage and subsequently Mr Rovere arrives and when he is stopped by police on leaving the house he has 473 g of methyl amphetamine in his possession. In addition to allowing his house to be the place for supply the offender also texted Rovere in what is apparently a code to come to the house.

Objective seriousness

It is necessary to consider each offence separately. There is however clearly a great degree of commonality about this offending as already noted above and specifically being the fact that the offending occurs at the house of the offender.
It is relevant to consider the role of the offender. My view is that all 3 offences are all in pursuit of the same endeavour namely the knowing involvement by the offender in drug supply activities. My view is that it is clear that he is the least important participant as between himself Mr Rovere and Mr Carriage. The offender appears to be somebody with a drug dependency who gains some minimal advantage through this conduct. Apart from the liaising aspect that he fulfilled in communications between Mr Rovere and Mr Carriage it could not be said that he occupied anything remotely like a management or organisational role. His major contribution to the offending, which is not insignificant, was to provide what was thought to be a safe meeting point to enable the illegal conduct. He could be described as a minor facilitator.
My reading of the agreed facts is that they do not support the offender benefitting in any significant way from his involvement in this illegal activity. Paragraph 15 of the agreed facts shows that he helped himself to one line of the methyl amphetamine the subject of count 1. The offender also made the concession that he would get drugs at a discount price, a small reward when balanced against the enormous risks involved.
I would therefore describe the role of the offender in each of the offences as being a minor one with no responsibility for the decision-making of the enterprise and being essentially facilitative.
Turning then to count 1 it is relevant to further consider the quantity involved. As is well established this is not the sole or even the determinative consideration; see Wong v The Queen [2001] 207 CLR 584. It is nevertheless one of the range of factors to take into consideration.
I would assess the objective seriousness of count 3 as being in the low range for the reasons discussed above.
I would assess count 2 as being of even less objective seriousness because of the minimal involvement of the offender in that offence. As I read the facts the first the offender knows of this money is literally when Mr Rovere turns up with it having earlier discussed it with Mr Carriage and not with the offender. As with the other counts the offender facilitates the affairs of Mr Carriage and Mr Rovere, in this instance by simply making the suggestion as to where to hide the money, and of course by the fact that this occurs at his house.
In relation to Count 1 I note that the Crown bundle includes my decision sentencing Mr Carriage. I note that I assessed Mr Carriage's involvement in this offence as being just above the low range. My view is that the offender's involvement is less than that of Mr Carriage. I would assess this offence also as being low in terms of objective seriousness. In reaching this assessment I have taken into account that the quantity involved is only just below an amount that would be a large commercial supply.

Section 21A.

The Crown did not seek to rely upon any aggravating factors. I will deal with the mitigating factors below.

Psychologists reports

The offender relied upon two psychologist reports. The first was of Mr John Nolan dated 9 July 2020. It sets out the offender's history. The offender had an unremarkable childhood and came from a loving family. He completed year 10 and had a successful career as a bricklayer and he was also successful in sport particularly rugby league.
He was married to Dione for 25 years from 1981 and had 3 sons Shane, Clinton and Matthew. In 2001 the eldest child Shane died in a skateboard accident. This tragedy had a marked impact on the family and a telling impact on the offender. It led to him increasing his alcohol consumption and lead to a period of self-pity resulting in him neglecting his marriage and his other 2 sons. Ultimately this contributed to the breakdown of his marriage. It seems to have been in a period not long after 2001 that he used cocaine for the first time.
The offender's mental health declined from the death of his son. Mr Nolan records a history of a suicide attempt in 2008 involving bourbon and sleeping pills. The offender recalls an incident after 2008 where his self-indulgent approach was challenged by his son Clinton. Despite that he said it was only when he was arrested that he understood that he should focus on his children and grandchildren.
On assessment by Mr Nolan there were no indications for concern for depression or anxiety. The report records for a second time that the arrest shocked the offender into realising he can actively pursue more important life priorities than drinking and drugging by focusing on his family. He has an optimistic view of the future despite the circumstances, having been 7 months sober in custody, which I understand has continued.
Mr Nolan says that on his assessment the offender does not endorse antisocial feelings or behaviours and had a personality described as pleasant friendly and open. He admitted to common faults and showed an intent to want to make permanent changes for himself and his family.
As to his substance use history there was drinking prior to the death of Shane. His drinking habits were to drink on Friday and Saturday nights to the point of being drunk with colleagues and friends. This is also in the time of his football career. From age 25 the offender had a gambling issue which prevented him from saving. The problem appears to have been poker machines. He first used cocaine in his early 40s which is shortly after Shane's death. As I understand paragraph 22 of the report this was something like avoidance behaviour and allowed him to overlook his obligations to his family. The offender actually said he used cocaine with friends immediately after Shane died and it gave him a welcome sense of being able to control his grief.
The association with Mr Rovere is long-standing and Mr Rovere provided some financial assistance to the offender shortly after Shane's death. Then in about 2018 whilst the offender was in Innisfail where his youngest son lives there was a chance meeting between Mr Rovere and Mr Carriage at the house at Oriana St which led to the use of the house for drug purposes. The offender says he made it known he did not want this to happen but that Mr Rovere was pushy and the offender felt powerless to stop it.
The offender made clear statements of remorse to Mr Nolan. He has also apologised to his family. He is willing to follow psychological treatment. Mr Nolan considers he has insight.
The second psychologist report is from Yvette Greenhalgh. This also records expressions of remorse being made by the offender who first saw this psychologist in December 2019 for the first of 5 sessions. It describes his incarceration as traumatic. It records that he is now close to his family members. The view was expressed that the offender will need to have continued support for his mental health. It notes a previous suicide attempt as an indicator of the need for significant concern as to his mental well-being. This psychologist suggests that consultations continue with her to manage anxiety strategies
There was also medical evidence before the court which showed that the offender recently had need for an urgent cardiac review. He has a very elevated ventricular atrial fibrillation rate. He is presently being sought to be treated as an outpatient and three-month check-ups are recommended as is a repeat echocardiogram. A letter from his GP supports the fact that he needs to see a GP every 2 to 3 weeks and the cardiologist every 3 to 6 months. He is prone to episodes of fainting and feeling very weak and is susceptible to coronavirus.
In addition to this he suffers from knee problems.
The offender relied on 5 testimonials by way of letter and a sixth by way of a sworn affidavit of the offender's former wife Dione. The affidavit of the wife confirms the history set out in the psychologist report. It brings a very human face to the reality of what is occurring in the life of the offender. The tragedy that he and his family suffered by losing their son and brother is with respect obvious. It might be said by some that in the course of 18 years it may be expected that a person would regain their composure and act in a responsible way with some thought for the other people affected by the tragedy rather than the inward -looking approach taken by the offender. That may be all very well in theory but I am persuaded by the affidavit of the ex-wife that the fact of the matter in this case is that the offender was not able to move on after the devastating loss of his son and it truly did take arrest and imprisonment in respect of charges including one with a maximum sentence of 20 years in prison to bring him out of his torpor.
The offender's case is also supported by the other testimonials relied upon which are from people from various walks of life who have known the offender for long periods of time. They speak highly of him. He had a good work ethic and plainly to most appearances led his life in a pro social way. He willingly helped people who needed a hand. They also confirm he was diagnosed with heart disease issues which limited his working abilities which compacted on the difficulties he had dealing with the family tragedy.
I accept the views expressed by the psychologist Mr Nolan. They were not the subject to any challenge. The reports factual basis is supported by other material. The report bears out that the offender has gained insight into the long term predicament he has placed himself in. Consistent with that it shows he has insight into his offending, and is truly remorseful. Although there is no express assessment of it, I find that the likelihood of the offender re offending to be low, subject as is often the position to him remaining abstinent from drugs and alcohol.

Covid 19

The offender is now 61 years old and not in the best of health, and has never been in full time custody before this offending. Time in prison would be more onerous for him in normal circumstances for these reasons. The Covid 19 situation adds to this onerous position. This is because presently visits are not occurring. Further, should there be an outbreak of the virus in the prison system the offender may well be at a greater health risk, and I note the medical evidence of the offender being at greater risk to coronavirus. I take these matters into account. Should it be necessary, they would found a basis for special circumstances, as would the benefit to the offender's rehabilitation of a longer period of supervision.

Guilty plea

I find the offender is entitled to the 25% discount for entering his plea at the Local Court. There was no submission to the contrary.

Criminal history

The offender's criminal history permits him leniency. It shows that at 61 that he has spent no time in custody prior to this offending, has three PCA matters, and offences of affray, hinder police, offensive language and resist police. These matters are consistent with his drinking habits. Notably however there is no offending after 2007, which to some degree is inconsistent with his deteriorating social attitude in that time. There is also notably no offending of a type that may be associated with drug use after 2007, which supports the view that he is very much a person on the periphery of what was occurring in his house, which is the view I take. This view is supported by the history given to Mr Nolan that the use of the offender's house by Mr Rovere commenced in 2018. I infer that although there has been a long period of drug use, it was only a relatively short time prior to the offending that the offender became involved with drug supply.
Whilst the offender is not entitled to the same leniency that he would enjoy without any record, my view is that his record does not deprive him of any leniency at all.

Prospects

I consider the offender to have mixed prospects. If he maintains the course he is presently on, his prospects of not offending again are good. This is enhanced by the obvious family and community support that he enjoys. The offender's work prospects are limited due to his health, which is incompatible with his former work as a bricklayer. It may be that with medication and treatment some work can be found, and that is to be hoped for. I consider that with the attitude that he has, and with available treatment, it should be possible for some work to be found.

Parity

Mr Carriage was sentenced for the same offences as counts 1 and 2, with count 3 being dealt with on a form 1. He was sentenced to a 2 year non parole period and a balance of term of 3 years. Mr Carriage was a much younger man, and his subjective case was of a totally different character to that of the present offender. That subjective case focused on a socially disadvantageous background, and the emotional distress of a failed relationship. The points of distinction that are most marked in the two cases are the much greater involvement of Mr Carriage in the drug supply activity and Mr Carriage also had a far worse criminal history. In my view there would be no basis for Mr Carriage to have a justifiable sense of grievance if the offender was to receive a sentence of a term of imprisonment, but to be served in the community rather than a full time custodial sentence. Conversely I consider that the offender would have a justifiable sense of grievance if he was to receive a sentence involving full time custody for any meaningful period.

Totality

Little was said in submissions as to totality. The principle calls for an evaluation in a broad sense of the overall criminality involved in all of the offending and to then determine what downward adjustment is necessary if any so as to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences; R v Holder [1983] 3 NSWLR 245.
The Crown is correct to note the period of this offending. I note in particular the repeated nature of the offending making up count 3. Yet the common feature of the offending has been noted above; the repeated use of the offender's house as a transaction point. It would offend the principle of totality to not consider the matter as broadly being one on going course of conduct.

Sentencing considerations

The approach to sentencing in drug matters was considered in Parente v R [2017] NSWCCA 284. One aspect of significance of that case was its express rejection of what had become known as the principal from the case of R v Clark (unrep 15.3.90 NSWCCA) that where there was drug-trafficking to a substantial degree there was ordinarily required a sentence of full-time imprisonment unless there was exceptional circumstances. In Parente the court adopted the view of Simpson JA in Robertson v R [2017] NSWCCA 205 which was to the effect that where there has been drug dealing to a substantial degree analysis of sentencing practices shows a term of imprisonment will ordinarily be imposed. The point being made however was that is not to be taken as a starting point and that each case relating to drug dealing needs to be dealt with consistently with ordinary sentencing principles. Prime amongst those principles is that each case is to be determined by its own facts and circumstances. In Parente at [113] it was said a judge must not sentence an offender to imprisonment unless satisfied that, having considered all possible alternatives (including, in my view, ICOs) no other penalty is appropriate.
Section 3A sets out the purposes of sentencing. They are in short: 1. to ensure the offender is adequately punished; 2. both general and specific deterrence; 3. to protect the community; 4. to promote rehabilitation of the offender; 5. to make the offender accountable for his actions; 6. to denounce the conduct; 7. to recognise the harm done to the victim and community.
The purposes that attract the most attention in the present case in my view are the protection of the community, denunciation of the behaviour, and rehabilitation. Further, accompanying denunciation is the need to affect general deterrence. I do not consider there is much of a role to be played here by specific deterrence.
In submissions, the offender frankly sought an outcome of an ICO. The Crown position was that the appropriate sentence was one of a full time custodial sentence. That said, the Crown conceded that an ICO would not be an outcome that was manifestly inadequate. Inherent in these submissions is that the s5 threshold has been crossed. In my view that is certainly the case in respect of counts 1 and 3. Whilst the offender's case is one that engenders much sympathy, it must be made clear that the offender was involved in serious drug supply activity, the seriousness of which is reflected by the maximum sentences.
Before an ICO can even be considered, it is necessary to determine the periods of the terms of imprisonment, for if they exceed 3 years an ICO is not available. Further, I note the offender's submission for an ICO on a proposal that saw the offender reside in Queensland, which the Act and Regulations do not allow. Should an ICO be the outcome, the offender will need to be resident in NSW, subject to any permissible arrangements with his supervision.
It was in discussion of this residency issue in submissions that I raised the prospect of a sentence structure that saw a combination of an ICO and CCO being imposed, as the residential point is not an issue for a CCO. I have come to the conclusion that it would not be appropriate to impose such a structured sentence. If an ICO is otherwise appropriate, then that brings with it the restrictive feature of residing in NSW. The structure mooted by me is on reflection arguably a device to circumvent the consequences of the ICO outcome. I do not consider that an appropriate course.
I propose proceeding by way of an aggregate sentence. This means that I have accepted that, in all the circumstances, the s5 threshold is crossed in respect of count 2 also. The indicative sentences prior to the 25% discount are 2 ½ years in respect of count 1, 8 months in respect of count 2 and 2 years in respect of count 3. Allowing for the 25% discount those periods become 22 ½ months, 6 months and 18 months.
Applying the principle of totality as discussed above, and allowing for the approximate 7 months the offender has spent in custody, I arrive at an aggregate sentence of 2 ½ years.
As required by s54B, I indicate that had I not proceeded by way of an aggregate sentence I would have imposed a non parole period in respect of the s25(2) charge of 15 months. This is at variance to the standard non parole period due to my assessment of the objective seriousness of the offending as being below the middle of the range of seriousness, the fact of the 25% discount for the guilty plea, and due to the range of subjective matters discussed above.
By s66(2) when considering an ICO it is necessary to consider whether this will lessen the likelihood of the offender reoffending. In my view this is undoubtedly the case. To place the offender in prison will likely counteract the advances he has made in overcoming his emotional distress. If the offender is to remain on his path to rehabilitation, he will need to have the support of family and counselling. To date, this has been effective. That is an evidence based conclusion. Whether it would be as effective in prison is necessarily speculative.
The range of factors discussed above, and notably the pro social features of his life (albeit they have been in decline over a significant period), his age and his family and community supports, and his minimal criminal history, and the tragic circumstances which I accept as being the major contributor to the circumstances which led to the offending, and not forgetting the low objective seriousness of the offending, support the conclusion that the imposition of an ICO is the most appropriate sentence to impose, and is in accordance with s66(2). I reach this conclusion having taken into account the various purposes of sentencing set out in s3A, and touched upon above. I also note the passage from the Attorney General's second reading speech when introducing the new s66 legislation, as quoted at [88] of R v Pullen [2018] NSWCCA 264, to the effect that community safety is not just about incarceration and that community programmes can be more effective in reducing offending than prison terms of two years or less.
In submissions it was accepted that additional conditions of treatment, abstinence and non association would be appropriate.

Orders

I make the following orders: 1. Keith Frances Silvia for the offences charged under section 25(2) and 25(1) of the DMTA and s193C(1) of the Crimes Act you are convicted. 2. I sentence you to a term of imprisonment of 2 ½ years, to date from 24 July 2020 and expiring on 23 January 2023. 3. I direct that sentence be served by way of a ICO, commencing today 24 July 2020 and with the following conditions: 1. That the offender must not commit any offence; 2. That the offender must submit to supervision by a Community Corrections officer. In that regard I direct you to report to the Coffs Harbour office of Community Corrections as soon as possible and no later than 4pm 31 July 2020. 3. The offender must not associate with Daniel Carriage or Paul Rovere. 4. The offender must abstain from consuming alcohol or any illegal drugs or any prescription drugs not prescribed to the offender. 5. The offender must do all things by 29 August 2020 to commence the treatment plan set out at paragraphs 30 and 31 of the report of Mr Nolan, psychologist dated 9 July 2020, and to thereafter complete that treatment plan.

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: 29 July 2020

Drugs Misuse and Trafficking Act 1985(NSW)

Crimes (Sentencing and Procedure) Act 1999(NSW)

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