CRIME - Supply prohibited drug commercial quantity
Source
Original judgment source is linked above.
Catchwords
CRIME - Supply prohibited drug commercial quantity
Judgment (9 paragraphs)
[1]
Solicitors:
Morrisons Law (for the offender)
Ms A Bird (for Director of Public Prosecutions)
File Number(s): 2019/00255934
[2]
Introduction
Shaun Lane is still a young man. He was born in June 1999. All the material before me indicates that when very young he and his family suffered what his psychologist, Ms North, refers to as "childhood trauma," because of the domestic violence and other problems generated by his father's behaviour. That trauma has had a continuing influence on him.
It is not at all surprising that a dysfunctional family environment, poverty and early exposure to drug use and violence can normalise both violence and drug use in a young person. Lane took up the use and abuse of illicit drugs from a relatively early age. It would appear that by 2019 that drug use was the most important thing in his life. He no longer cared about his own health, or his family or his work. He was an apprentice carpenter and studying at TAFE. That sort of work and that sort of study is inconsistent with heavy drug use and it would appear gambling.
That accepted, the law is very, very clear: A drug addiction or an associated gambling addiction, cannot mitigate the penalty that must be imposed following the commission of a serious crime. Neither can they excuse in any way the supply of drugs to others. If they did it would only perpetuate the very problem that the community faces from the illicit distribution of drugs.
Many, including retired Police Commissioners, have said we cannot gaol our way out of the problem of illicit drug use. But courts must apply the law. Parliament has set heavy maximum penalties and standard non‑parole periods for drug supply offences. The punishment demanded by reference to those maximums is, for the moment, our community's major response to the harm illicit drug use causes individual users, their families and others in the community; as Lane now knows, as his family now knows. The additional crimes generated by the huge profits that some can make from the sale of illicit drugs in our community causes even more problems. The number of crimes are committed as a result of that illicit cash circulating in our community can sometimes beggar belief.
Whatever his initial motivation, Lane chose to involve himself in a criminal group that was distributing 3,4-Methylenedioxymethamphetamine (MDMA) and cocaine in the local community. His familiarity with both dealers and other users made Lane an important part of that criminal group. It would appear from all the material before me that he was being paid in drugs by the principals in the group, which he would then sell to others. It is clear from all the facts before me that he used his access to customers to arrange sales in quantities of 28 grams or 1 ounce units, sometimes in multiples of them. He expected a reward. By the time he chose to engage in the matters that bring him before the Court he had left TAFE and left work. His only means of support were the consequent profits that he could make from the sale of drugs for this criminal group.
There are agreed facts before the Court. They are detailed. The defence and prosecution have appropriately and properly accepted that the drug quantities be "rolled up" into two separate offences. Those offences are: supply prohibited drug commercial quantity MDMA and supply prohibited drug commercial quantity cocaine: s 25(2) of the Drug (Misuse and Trafficking) Act 1985. They carry maximum penalties of 20 years imprisonment and/or a significant fine. For an offence which taking into account only objective factors falls in the middle of the range, Parliament have said that a standard non‑parole period of ten years applies.
That maximum penalty and the standard non‑parole period are guides to the exercise of my sentencing discretion. Content must be given to the standard non‑parole period. However, I do not simply start at a maximum penalty or a standard non‑parole period and make proportional deductions from it, nor do I oscillate around any particular nominated point. Rather, a Court has to formulate a sentence taking into account all relevant factors; including what occurred, the objective seriousness of the offence and any subjective matters put before the Court on behalf of the offender.
I am also asked to take into account when I sentence for both matters a number of matters which have been placed on a Criminal Procedure Act 1986 Form 1. I will not and cannot sentence for those offences, but they do have a role to play when I come to formulate the appropriate sentence for the two matters for sentence. I take guidance from the Court of Criminal Appeal's guideline judgment and the decision of the present Chief Justice in Abbas: Attorney General's Application No. 1: (2002) 56 NSWLR 146 at [39] - [42] and Abas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 at [22]. They do mean here that a heavier sentence be imposed for both matters. I take into account, as the Court of Criminal Appeal direct, the need for a greater emphasis on community protection and specific deterrence.
In this case, for the reasons that I outline below, specific deterrence has been met by the time already served in gaol on remand. But community protection remains as one of the fundamental reasons for any sentence, particularly a sentence of imprisonment, and a sentence of imprisonment involving further custody must be imposed.
[3]
Submissions
I am assisted, as always by, written submissions from Ms Bird, who appears for the Director of Public Prosecutions. I have heard oral submissions from her and Mr McCallum, Counsel for the offender. I have sought to address those submissions in the course of these remarks.
The offences relate to both actual supply of drugs and agreement to supply. As Ms Bird points out, it is only police intervention that stopped the last transaction taking place; as they arrested the offender while that supply was still in train. She also points out that while an undercover operative was the recipient of all of the drugs supplied, the offender himself was not to know that. He was acting on the expectation that these drugs would be distributed to individual users.
Mr McCallum drew my attention to what fell from Justice Hulme in DW v R [2012] NSWCCA 66. In that case His Honour noted that while in many drug supply cases a significant aggravating feature is the harm done by the distribution of the drugs to individual user that feature is not present in a case where an undercover operative was utilised to secure the drugs and prevent their distribution.
I will take into account both submissions when I ultimately synthesise the appropriate sentence.
[4]
Agreed facts
Turning to the agreed facts. In June 2019 Wollongong Criminal Investigations commenced an investigation into two people; who are before this Court for a jury trial sometime next year. I will refer to them as "the brothers."
Lane was identified as a close associate of 'the brothers.' His role is described in the facts as a both "runner" and "street level dealer." He was responsible for the direct supply of cocaine and MDMA to customers. He would do so on a regular basis.
The results of the controlled operation indicate the nature of the criminal group that he was involved in, and that this offender had his own customer base.
Four transactions are specified. The facts in relation to it are set out in detail and I will not repeat them given the hour and the state of the list. In total the MDMA supplied or agreed to be supplied was 293.7 grams; the cocaine was 391 grams. The actual cocaine supplied was below the commercial quantity, but I have indicated this is a rolled up offence and agreements to supply can properly be taken into account. The offender is to be sentenced for what he did - both rolled up commercial supplies over those four transactions.
The first transaction was on 17 July 2019. It involved 27.8 grams of cocaine and 98 grams of MDMA; $12,150 was exchanged. The second transaction, on 25 July 2019, involved handing over 59.98 grams of MDMA and 56 grams of cocaine for 18,000. The third transaction was on 1 August and involved 3.8 grams of MDMA and 83.8 grams of cocaine; $27,000 was exchanged. The fourth transaction which was schedule for later in August involved 224 grams of cocaine and 56 grams of MDMA. The offender was arrested on 16 August before that supply could take place.
There is also evidence before me that on 17 July the offender took part in knowingly being involved in the supply of 14 grams of MDMA. On arrest he was in possession of cocaine, MDMA, methylamphetamine and $1,170 in cash. Those matters will all be dealt with on the Form 1.
Lane has been in custody since his arrest on 16 August 2019. This sentence will date from that day. He pleaded guilty in the Local Court and is to have the full benefit for the utilitarian value of that plea by my reducing the otherwise appropriate sentences by 25%. His cooperation by pleading at an early stage is also a matter that goes to my general assessment of his prospects for rehabilitation.
Lane chose to involve himself in a serious crime. He chose to involve himself in organised crime. He appears to have embraced the opportunities given to him by "the brothers" as a means of support and also as a means of obtaining drugs he used himself. It appears that he was paid not in cash, because in all of the transactions the money he received went directly to the brothers, but in drugs, which he would then either use or supply to others for cash. He was able to bring the customers to the business, as the matters on the Form 1 indicate. He also, fortunately or unfortunately depending on your perspective, brought the undercover operative into the business and supplied to that person as is detailed in the agreed facts.
It is clear that 'the brothers' were not particularly trusting of this new customer; another important reason why police acted promptly to bring this operation to a close. It was entirely appropriate that the operation be allowed to continue for a period in order to obtain the necessary intelligence and hopefully to lead to not just the brothers' arrest but also the arrest of others further up the supply chain.
It is also clear, however, that this offender; while he embraced the opportunities offered to him was being used by those further up the chain to take the risks and to, unsuccessfully, insulate them from apprehension. It is notorious that those who make the enormous profits available from the sale of illicit drugs use people such as Lane, and that people such as Lane are more often than not the ones apprehended, convicted and gaoled.
[5]
The case for the offender
The offender's background is set out in the comprehensive report of Ms North. I have already referred to it. She indicates that he was at the time suffering from a stimulant use disorder. He also had a number of other problems that he needed to address. As the offender told her, it appeared that everyone else in his life was aware that he was suffering a problem other than himself. He was buoyed in his own false self-assessment I presume by his regular use of illicit drugs, which had, it would appear, escalated until his arrest.
He wrote a letter to me saying he was sorry for what he has done and how disappointed he was in himself and how he had let down his family. His family however are here for him. They have written to me and have attended court to say that they still love him, that they will support him and that they will back him in his endeavours to put aside his drug use and resume a productive life in the community.
Lane's remorse at this stage is more regret for the predicament he has placed himself and his family in. But I am heartened by him saying he has no excuses for what he did. His acceptance of responsibility is at least an initial step on the road to rehabilitation. His record indicates he has had no disciplinary problems in gaol. He was for all intents and purposes a first offender. He is still young; he is still learning how to live a normal life. His period in custody I am sure has already taught him what the alternatives are if he does not take that course.
It is clear that he will need assistance in custody and on release in dealing with his drug problem. Ms North has, helpfully and succinctly, made a number of recommendations; which should be put into place when he is released to parole. That is: engagement with the Illawarra Drug and Alcohol Service and participating in SMART recovery programs. It also appears that he would need, through his general practitioner, to engage in a Mental Health Care Plan.
[6]
COVID -19
Lane is been sentenced during the COVID-19 emergency. If the virus gets into the gaols he will be a candidate for early release to parole. It is notorious that the steps so far taken successfully to quarantine gaols have meant that family visits are no longer possible. Although video and phone visits have been extended, it is also the subject of repeated evidence before me that there are considerable problems with such visits, given the volume of calls that have to be accommodated. Gaols are also being locked down more frequently than in the past and access to programs is significantly restricted. The heightened anxiety of anyone in the community because of the epidemic has to be taken into account. A prisoner has no control over his life. Lane is totally dependent on Corrective Services to provide protection to him; matters I can and do take into account.
Strong family support is an important protective factor as Ms North indicates. A long gaol sentence can break those connections, a matter I take into account. Lane is still young, his brain is still developing; there is scope for his rehabilitation. He presents a reasonably strong case for a finding of special circumstances.
There are two offences, they resulted from the same transactions, but they involved different drugs and required separate charges. Quantity is not the sole determinant of objective seriousness, but the fact that two offences both involved a significant quantity of different types of drug means that one sentence cannot properly comprehend the other. They cannot be dealt with totally concurrently. I take into account the principle of totality and the need for adequate punishment. There must be some accumulation. Lane is not to be pushed twice where the offences have common factors or elements.
[7]
Synthesis
I want to return to some matters going to objective seriousness. A significant quantity of drugs was supplied. The crimes were part of organised criminal activity. The drugs were not supplied in street deals but in 28 gram lots. The offender's reward was relatively modest, but nevertheless intended to receive a reward. And, he was engaged with his principals in a pernicious trade which requires the Court take into account principles of both specific deterrence, that is by the severity of the sentence he learn an important lesson, and also general deterrence. That principle is applied in an attempt to ensure that everyone in the community understand that if they are tempted to supply drugs at all they risk gaol, and if they supply in quantities such as those here they will if caught go to gaol for a substantial period of time.
I am dealing with a young offender who has a hard history. He still has a contribution to make to our community. He chose to involve himself in crimes for which he had, on his own admission, no excuse for doing so. Harsh penalties are demanded, but they can be moderated because of his youth, because this is his first significant involvement with crime and the case put for rehabilitation, which justifies a finding of special circumstances.
Taking all those matters into account I have to formulate an appropriate sentence for each matter and an aggregate sentence. I have sought not to erode the benefit of the plea by the process of accumulation.
In relation to the first matter taking into account the matters on the Form 1, if it had not been for your pleas of guilty there would have been a sentence of four and a half years. I will indicate a sentence of three years and four months. In relation to the second matter, had it not been for your plea of guilty there would have been a sentence of three years and six months. I will indicate a sentence of two years seven months.
[8]
Orders
The formal orders of the Court are - you are convicted.
1. In relation to Count 1, taking into account the matters on the Form 1, as it carries a standard non parole period I indicate a sentence of three years four months with a non parole period of one year ten months.
2. In relation to Count 2, taking into account the matters on the Form 1, as it carries a standard non parole period I indicate a sentence of two years seven months with a non parole period of one year five months.
3. There will be an aggregate sentence of three years and nine months. There will be a non‑parole period of two years. That sentence will date from 16 August 2019. You will be eligible for consideration for release to parole on 15 August 2021. There will be a non-parole period of one year and nine months. I would expect you to be subject to supervision for the entirety of that period.
4. The backup charges are withdrawn and dismissed. Other related matters are on the Form 1.
5. I make a drug destruction order.
6. Pursuant to s 18 (1) of the Confiscation of Proceeds of Crime Act 1989, I make an order, by consent, that the sum of $1,170.00 be forfeited to the State.
[9]
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Decision last updated: 27 October 2020