R v Kelly; R v Diaz

Evan Diaz

• Sequence 5: Supply prohibited drug greater than commercial quantity - 280g methylamphetamine; s25(2) Drug Misuse and Trafficking Act 1985
• Sequence 10: Supply prohibited drug greater than commercial quantity - 331g methylamphetamine; s25(2) Drug Misuse and Trafficking Act
• Sequence 11: Supply prohibited drug >indictable & 80.73g methylamphetamine (Taken into account on Form 1): s25(1) Drug Misuse and Trafficking Act.

Agreed Facts

1. When in the Local Court, both offender's pleaded guilty to an offence involving the agreement to supply 280 grams of methylamphetamine and agreed that other supply transactions be "rolled up" into one offence. This was appropriate: Hamzy v R (1994) 74 A Crim R 341; Jadron v R [2015] NSWCCA 217.
2. Kelly's rolled up dealings total 342 grams of methylamphetamine, charged pursuant to s 25(2). Kelly was found with 8 grams of methylamphetamine in possession after arrest- a matter on his Form 1. Diaz's rolled up quantity of methylamphetamine is 331 grams. He has a matter on his Form 1 which relates to sequence 5 the 80 grams of methylamphetamine which was found when he was arrested.
3. The agreed facts detail the Kelly's supply of 342 grams of methylamphetamine across 21 occasions: Kelly sequence 40. Those supplies varied from a 'user deal' of less than 0.5 of a gram up to 56 grams. An example of the prices includes - 14 grams being supplied at a price of $5,200 and 28 grams for $10,000. Obviously, the smaller amounts were supplied for significantly less money. The supplies were opportunistic. Some of the supplies involved to the transfer of drugs between Kelly and Diaz, to facilitate both their supply businesses.
4. I also have regard to the number and nature of the transactions so far as Diaz is concerned. The facts indicate that he was running a business but a relatively haphazard one. Very little security was undertaken. Although clearly of a commercial nature, it could not be characterised as a well‑run organised for-profit business. Rather, it was more characteristic of him being user, who was also supplying down the line and who had access to an upline supply.
5. Diaz's agreed facts also note that he operated collaboratively. He would regularly contact Kelly using mobile phone services. They spoke freely about their business. His supplies totalled 331 grams on four separate occasions. The incidents of supply are detailed in the agreed facts. Again, it is clear, and accepted, that some of the drugs that he received were being distributed by him to his own customer base. When he was arrested, he was found to be in possession of 8 grams of methylamphetamine.
6. One particular transaction, Diaz sequence 5 and Kelly sequence 19, involved the supply of 280 grams of methylamphetamine as a separate supply or arrangement to supply. Both agreed facts in relation to that matter are similar. The charge is knowingly take part in the supply. It involved multiple telephone calls between various people including a man, Barbaric, who I have previously sentenced, and Kelly offering to provide $5,000 for the methylamphetamine. The telephone intercepts establish that they were in possession of 280 grams and they discussed the quality of the amphetamine, how it is packaged and how much it weights.
7. The other matters that were rolled up are separate.

Objective seriousness

1. The Court must look at the quantity of drug involved. While it is not determinative the commercial supply range is 250 grams to 500 grams. I must consider the nature of the enterprise and the offender's role; which for both men were 'lowish'. They both provided a conduit between others, there up line suppliers and street level dealers. There was, as I said, back and forth between them. There was some organisation, but it was relatively haphazard. They had not set up a commercial enterprise as such. They did what they did to obtain the drugs they needed for their own use and to support, what appear to be on all the material before me, relatively modest lifestyles. And, so far as Kelly is concerned a gambling problem.
2. It must, however, be made perfectly clear that anyone who engages in the sale of illicit drugs, particularly those who do so at this level, will almost inevitably end up in custody. Custodial sentences are called for to meet the objectives set out in the Crimes (Sentencing Procedure) Act. Anyone who is tempted to supply drugs, as these two men, must ask themselves a simple question, is it worth it?
3. And the law, by the harshness of penalties imposed, should reinforce and answer for that question - "definitely no". It would appear, so far as both men are concerned, that that lesson may have sunk through because of their time in custody. But others in the community must know that just and appropriate punishment will be imposed upon them if they offended as what Kelly and Diaz did.
4. There is little reason to distinguish between the objective seriousness of the crimes committed by both men. It was to a degree organised criminal activity and community safety has to be taken into account.

Other matters

1. So far as other factors that might aggravate a sentence are concerned, both were on conditional liberty. Although Cameron's was a custodial order an Intensive Correction Order, a custodial penalty; which he obviously breached. His Form 1 would not ordinarily have attracted custody and I take it into account to clear the books.
2. So far as Diaz is concerned the mater on the Form 1 must be taken into account. It requires greater weight be given to retribution and punishment for the matter for sentence. I do not, however, sentence for that matter.
3. I have already alluded to the maximum penalty and the standard non‑parole part period. I am required to give content to the standard non‑parole period. That requires I assess objective seriousness without reference to matters personal to the offenders but by reference to the nature of the offending, Muldrock v The Queen (2011) 244 CLR 120; Tepania v R [2018] NSWCCA 247. I am not to engage in a staged approach to sentencing, as the High Court made clear in Markarian v The Queen (2005) 228 CLR 357.
4. While in submissions the parties did ask that I compare and contrast the actual offence with an abstract one, it is not necessary I do so. Rather ,the agreed facts and the matters I have identified enable me, and I hope transparently, to identify features of the offending which were taken into account when considering the role of the offenders and the enterprise they were engaged in so that the guidance offered by the maximum penalty and the standard non‑parole period can be taken into account.

Subjective case - Cameron Jade Kelly

1. Kelly was arrested on 4 March 2021. I have already alluded to the fact the sentence was committed while subject to an Intensive Correction Order (ICO), because the sentence has been increased because of that breach I will not double count that factor. I will date his sentence from the date of arrest. Offenders must understand that when an ICO is granted it is a custodial sentence involving a promise made to be of good behaviour. Kelly breached that promise.
2. Kelly was born in 1982. He has a record going back in the Local Court since 2002 and there are matters in the Children's Court. There are offences involving; violence, drugs and firearms. That record does not entitle him to the leniency often given to first offenders. This is, however, his first gaol term, although he has previously received suspended sentences and the ICO I have noted.
3. There is a Sentence Assessment Report which notes apparently positive responses and indicates that with support Kelly can, if that support is taken up, lead a lawful life in the community.
4. I have the benefit of a comprehensive report from Ms North, Psychologist. She notes; Kelly's difficult childhood, early exposure to abuse and family disfunction, a history of anxiety following exposure to trauma and an entrenched antisocial lifestyle with a cycle of substance use and offending behaviour.
5. It appears that Kelly took up the use and abuse of illicit drugs when he was too young to be able to make rational choices. And it would appear that his use of drugs was a maladaptive coping mechanism to help him deal with physical and emotional abuse, particularly by his mother's partners.
6. His family was at times were supervised by the Department of Community Services. He had placements in foster care and spent time in behavioural schools or classes. He has a limited employment history, and drug use and gambling have blighted his life. He has yet to learn the skills that might enable him to lead a productive life in the community.
7. He requires further intervention for trauma related symptoms arising from that history. Ms North notes, by reference to the DSM 5 manual, that Kelly has results that indicate the possibility of; an adjustment disorder, a stimulant use disorder and a cannabis use disorder. She recommends referral to a psychologist and the establishment of a mental health plan both in the community and via a corrections psychologist. He will need counselling to maintain his apparent sobriety from drugs. He will need referral to EQUIPS Addiction. He may also be assisted by a residential program to help him transition into the community.
8. At the moment, although he is trying, he has never really lived another lifestyle. He did seek treatment from Dr Huyhn and his drug and gambling problems pe‑existed the commission of these offences.
9. His aunt, cares for two of his children, has written to the Court. She tells me that custody has given Kelly a chance to break the cycle of crime and drug use and time to reflect. She says he appears that while he has been in gaol he has taken pride in both study and work. Work is available to him on release. He has made efforts to deal with his problems and there are TAFE and other records before the Court indicating the courses that he has managed to achieve, despite the COVID pandemic.
10. Material before me indicates his mother is very ill and in palliative care. There is little he can do for her while he is imprisoned and that, I accept, must have an impact on him. It is a matter that attracts the sympathy of the Court. It is a matter that tragically I can do little to moderate other than to recognise that it is and will be a significant stressor on his life.
11. His plea indicates some acceptance of responsibility and his aunt notes that he is, so far as she is concerned, using his time well to think about his future and what he has done.
12. There is history of a gambling addiction and while that can help explain what he was doing and if addressed, particularly by EQUIPS Addiction, give some hope for his future. It really can be used as a matter in mitigation. And similar principles, also apply to his drug addiction: R v Henry (1999) 46 NSWLR 346. Both problems help me explain why he committed the offence but neither drug addiction nor gambling can ever excuse supplying drugs to others.
13. His former history is relevant. The fact that he was subject to abuse, is supported by the material provided to me. As is the fact he witnessed domestic violence. It is recognised that such trauma can have a detrimental impact on children. Continued exposure to trauma often accompanies antisocial lifestyle being adopted. This is reflected in his behaviour, his criminal record and all the material before me. It is a relevant matter in mitigation. I do not devalue the impact of the traumatic events detailed in the reports and the destructive impact on Kelly that that occasioned. A background such as that detailed is always relevant and should be given proper effect when synthesising an appropriate and just sentence. It is one measure that can help explain why, as a young person, he took up illicit drug use. His moral culpability, his blameworthiness, is not the same, as someone who did not have such a background.
14. Kelly served his sentence subject to COVID. He has suffered, as is now notorious, quarantine, lockdowns, lack of access to programs, although he has done better than many in seeking access to them. He has lost contact with pro‑social members of the community because direct visits are no longer possible.

Kelly Submissions

1. Mr Anderson, for the defence, notes; Kelly's progress towards rehabilitation, and the fact that gaol appears to have worked as a circuit breaker. In his submission while obviously serious, as is reflected in the maximum penalty, the nature of this operation puts it towards the lower end of the range. And when one considers the rationale for the offending, his history (leading to drug use and gambling) requires a considerable degree of leniency and understanding be offered.
2. I am indebted to Mr Loosley for his careful written submissions. Mr Loosley accepts that there is a case in mitigation but appropriately draws attention to the objective seriousness of what was done which he says was higher than that postulated by Mr Anderson.

Subjective case - Dwayne Evan Diaz

1. Diaz was on a Community Release Order at the time of his offending. His criminal record is not as bad as Kelly's. He has been before the Court before for drug matters, assaults and dishonesty but this is his first custodial sentence.
2. He too has spent his time in custody subject to COVID restrictions; which have impeded his progress towards rehabilitation and will continue.
3. Diaz was born in 1985. He has pro‑social family support. His wife will support him, but her support is conditional. It is conditional on him doing something about his drug problem and being available to help with the children.
4. He has worked in the past, although he did not finish his apprenticeship. The death of a friend may have been the catalyst for his methylamphetamine use and it would appear from all the material before me that gaol has helped him get clean.
5. He wrote a letter to the Court which I have read and considered. I must be guarded, as it was not on oath, but it is not particularly controversial. He says he expresses his remorse not just for how it has affected himself but his whole family. I take this as an expression of regret because of what he has done to them and himself. He made some appropriate comments to his psychologist, Mr Jones, about the impact of drug use on others. Well, he must understand that because drug use had an impact on him. But at the same time he chose to spread the harm in order to support his own habit and to obtain money to use.
6. He says custody during the COVID pandemic has been particularly hard. He has spent a large amount of time locked in his cells and has not had family visits. The isolation he says is having an impact on him mentally.
7. Diaz has three children, two have autism and are subject to NDIS plans as they have developmental delay and need speech therapy. He should be there to help his wife with them. He is not, as he is locked in gaol. She must bear all the responsibility for providing a home and care for those children with an absent father.
8. The Common Law position as set out in R v Edwards (1996) 90 A Crim R 510, still applies to bind me. Diaz's Counsel, Mr Fraser, did not submit that there is an exceptional circumstance here that could call for a significant change in the nature of the penalty. But here I accept the needs of children, particularly those with disabilities, mean his family's needs must be taken into account when I come to synthesis an appropriate sentence.
9. The High Court and Court of Criminal Appeal in recent years, have made it clear that blanket proscriptions said to derive from Common Law principles must be considered, but their prescriptive nature must always be subject to a sentencing judge's discretion, as each offence and each offender is individual.
10. Diaz was aware of the impact his crime and possible gaoling will do to his family. He now in the material before me, makes them a promise that he will not return to goal. Mr Jones sets out those expressions of remorse. He says there is evidence to support a conclusion Diaz has; a substance use disorder and possibly an adjustment disorder. He recommends drug relapse prevention assistance, cognitive behaviour therapy and engagement with psychologists and.
11. Diaz, I accept, has shown; some insight and some acceptance of responsibility. Again, I note while I accept, he was a drug user and needed to acquire funds to support his habit, that the drug use and any maladaptive coping mechanism reflected in his drug use while it is relevant to questions of rehabilitation; it does not mitigate the offending behaviour.

General Matters

1. There are two matters for each offender for sentence, there should be some accumulation to reflect the fact that one of the offences was not rolled up with the others. I am required to indicate an appropriate sentence for each and then structure the sentence so that the overall sentence is just and appropriate to the totality of the offending.
2. In both offenders' cases there is evidence that they need continuing psychological treatment, assistance in dealing with drug addiction both in custody and the community. Both will need help adjusting to normal community life. Both are subject to the increased restrictions on all prisoners that apply because of COVID quarantine measures. In each case the evidence before me provides a basis for a finding of special circumstances. But that finding is contingent on the requirement that the minimum period in custody properly reflects the gravity of their offending. I allow approximately 60% overall. It is important to note that those who get parole supervision and take up that supervision and the guidance of Community Corrections are generally less likely to commit serious offences.

Parity

1. I must consider issues relating to parity. I must determine each sentence and each individual sentence by reference to not just what was done but the individual offenders and their subjective respective cases. Like should be compared with like. Principles of parity are designed to ensure as possible equal justice. In like cases the principle also encompasses the structure of the sentence and its non‑parole period: Lau v R [2010] NSWCCA 43; Bell v R [2019] NSWCCA 271.
2. The facts in the matters for sentence have slight variations between them. And a Form 1 has to be given more weight so far as Mr Diaz is concerned. There is a reason for a slight distinction between the two, primarily because of Mr Kelly's criminal antecedents and the fact he was on an ICO and my backdating of the sentence

Conclusion

1. It is not for me to give either of the men a lecture, they are in gaol because they committed serious crimes against the community. They have sought despite the pandemic restrictions placed on all prisoners to do what they can to prove to themselves, their family and the community that they can show the promise of rehabilitation and use what they have learned in gaol to lead productive lives in the community.
2. While I will take into account mitigating factors, I also have to take into account what was done. I note that they both for various reasons, but primarily drug use and the need to secure an income committed serious crimes against the community. There crimes were antisocial. Both must be punished for what they did. And, others have to understand that if they choose that path they too will be punished.

Dwayne Evan Diaz

1. For Mr Diaz, I indicate two sentences. The first matter takes into account the Form 1 I take into account the utilitarian value of the plea of guilty, and I reduce the otherwise indicated sentence by 25%.

Indicated sentences Sequence 5: Taking into account the matter on the Form 1, as it carries a standard non-parole period, I indicate a sentence of 2 years 10 months with a non-parole period of 1 year 8 months. Sequence 10: As it carries a standard non parole period, I indicate a sentence of 3 years with a non-parole period of 2 years

Aggregate sentence

1. The aggregate sentence will be three years and six months. It will date from 5 March 2021. The non‑parole period will be two years and one month which will commence on 5 March 2021 making you eligible for consideration for release to parole on 4 April 2023.
2. The balance of term is one year five months. It will commence on 5 April 2023. The total sentence will expire on 4 September 2024. Release will be subject to a determination of the State Parole Authority.
3. A copy of the psychological report of Bradley Jones (Exhibit 3) is to be forwarded with the warrant.

Cameron Jade Kelly

1. For Mr Kelly is concerned, I take into account the utilitarian value of the plea of guilty, and I reduce the otherwise indicated sentence by 25%.

Indicated sentences Sequence 19: As it carries a standard non-parole period, I indicate a sentence of 2 years 7 months with a non-parole period of 1 year 6 months. Sequence 40: Taking into account the matter on the Form 1, as it carries a standard non parole period, I indicate a sentence of 3 years 3 months with a non-parole period of 1 year 11 months.

Aggregate sentence

1. There will be an aggregate sentence of three years and eight months. The non‑parole period will be two years and two months. It will commence on 4 March 2021 and expire on 3 May 2023. Release will be subject to a determination of the State Parole Authority.
2. There will be a balance of parole of one year and six months commencing 4 May 2023. Total sentence will expire on 3 November 2024.
3. A copy of the psychological report of Dr Kris North (Exhibit 1 Tab 1) is to be forwarded with the warrant.
4. The matters on the s 166 certificate are withdrawn and dismissed.

Other

1. Gentlemen, whether you are released to parole will depend on your behaviour in custody. I would expect that if you do as you have been doing that you will get parole on those dates subject to any conditions the Parole Authority chooses to note.
2. I make a drug destruction order. 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: 21 October 2022