R v Loudon

District Court of NSW|2020-03-02|Before: Spigelman CJ

Judgment

Luke Loudon ("the offender") appears in respect of two charges of ongoing supply of cocaine in breach of section 25A(1) of the Drugs Misuse and Trafficking Act (NSW) ("DMTA"). The maximum sentence in respect of each offence is 20 years imprisonment or 3500 penalty units or both. There is no standard non-parole period. Additionally there are seven backup charges to be withdrawn on conviction being the supply charges under section 25 DMTA which make up the section 25A offences. It should be noted here that the four charges constituting the sequence 12 offence in each case were of an amount greater than the indictable quantity but less than the commercial quantity and included three occasions of supplying cocaine and one of supplying methyl amphetamine. Further there are four offences on a form one to be taken into account in respect of the second of the section 25A charge being sequence 13. Those four charges were three charges of supplying a indictable quantity of cocaine and one charge of supplying a small quantity of cocaine. The maximum penalty in respect of these four charges is in each case 15 years imprisonment or a fine of 2000 penalty units or both. In respect of the sequence 13 matters there were three occasions of supplying cocaine, on two occasions it was the small amount and on the third occasion it was of an indictable amount.
Before setting out the facts I note that in regard to the Form 1 procedure it is important that the focus remains on the principle offences for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community's entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ.

The facts

The facts are notable for their brevity. They commence with a narrative paragraph stating that one Mr Russ was identified as a major supplier of cocaine and was a target of an investigation. That investigation led to the identification of the offender as a regular supplier of prohibited drugs. The offender and a Terry Seccombe who I was told was a co-offender who has not yet been sentenced were said to have actively assisted Mr Russ with his drug supply activities throughout the investigation. No detail of that assistance is provided by the facts beyond the repeated recitation of the fact that the offender obtained cocaine from Mr Russ for financial or material reward. What varies is the dates on which this occurred and the quantity of cocaine.
Thus the facts of the first charge being sequence 12 is of ongoing supply between 14 September 2018 to 2 October 2018 when on 3 occasions the offender obtained a certain amount of cocaine from Mr Russ and on a fourth occasion a certain amount of methyl amphetamine. On one occasion but not the other three the drug was obtained from Russ through Seccombe. The quantities involved in these four offences were 24.5 g, 14 g, 7 g and 7 g (methyl amphetamine). No submission was made by either party touching on the fact of the supply being of methyl amphetamine as well as cocaine.
In respect of sequence 13 the period of supply was from 23 March to 8 April 2019 in which period there were three occasions of supply cocaine in the amounts of 3.5 g, 3.5 g and 10.5 g the circumstances being in each case that the offender obtained the drug from Mr Russ for the purposes of supply for financial reward.
In connection with this charge are the four Form 1 matters. In respect of sequence 5 and sequence 6 the fact is that the offender took part in the supply of two amounts of cocaine of 4.5 and 7 g. In respect of sequences 7 and 8 the agreed fact is expressed as being the offender obtained 21 g and 28 g respectively from Russ for the purposes of supply. There were no submissions as to any significance in the different way these two sets of offences are expressed by the agreed facts and I treat them as having the same meaning.

Objective seriousness

The first factor to note is the variable quantities involved. Dealing firstly with sequence 12 the amounts involved in each case are more than the indictable quantity but less than a commercial quantity. In two cases it is 7 g so just above the 5 g commencement point of the indictable amount or put another way just beyond a small quantity. The amount of 24.5 g is significant and 14 g far from negligible though clearly less significant.
Sequence 13 is distinguishable because two of the amounts being 3.5 g is only a small quantity and there is the third amount of 10.5 g which is comfortably in the indictable range.
For this sequence 13 charge I also take into account the form one matters which have a similar range of quantities from the 4.5 small quantity, through to 28 g.
Apart from the variable quantities and the factor of the methyl amphetamine supply charge forming part of sequence 12 about which no submission was made, there is really no distinguishing feature amongst the offending. All that is told is that these drugs were obtained from the man Mr Russ. It is not a case of the drugs actually being sold by the offender to some operative of the police force or for that matter making a sale under surveillance to some other member of the public. We do not know if the offender is said to have obtained the cocaine (or methyl amphetamine) for the purpose of supplying to some other person who would then supply to the public or if it is in fact the offender who is the retailer of the drug to the public.
The offender gave evidence on this sentencing hearing. He gave evidence of being asked to do something which was to deliver a package. The benefit which he conceded was a financial reward was that he was then supplied drugs at a cheaper rate. He also gave evidence that he was not aware of the ultimate recipients of the drug.
The cross examination of the offender on the facts was somewhat confusing. Questions were put which seemed to go to challenge the idea that he was not obtaining these drugs for the purpose of personal use. I say confusing because on the agreed facts the offender was admitting to obtaining these drugs for the purpose of supply. This was not an admission of having sufficient drugs so that the legislation deemed it to be for the purpose of supply but was an agreed fact that was the purpose of having the drugs. When the purpose of the cross examination was queried the prosecutor fairly conceded that he simply sought to establish that it was not only for personal use and that there was financial reward obtained. I indicated effectively what I had just set out above namely that the supply aspect was admitted both by the evidence in chief and by the facts and that the financial reward was the obtaining of cheaper drugs. The prosecutor accepted this.
Based on the above facts it is my view that the offender was plainly not a significant figure in the operation of the supply of drugs. On the facts it is difficult to discern any meaningful level of sophistication or organisation in the operation. Further the role played by the offender seems to have been one of a very low level where he simply delivered a package or packages which resulted in the financial benefit to him. In other words he was a deliveryman doing what he was told when he was told for a minimal financial reward.
The difficulty for the offender is that the quantities of the drug are not insignificant. That said there is no individual occasion of supply that comes within being more than 10% of a commercial amount save for the occasion of a supply of 28 g of cocaine being a matter on the Form 1. The total number of occasions which the charged matters reflect a supply is 7, occurring in the period September to October 2018 and then again in 23 March to 8 April 2019. The occurrence of the Form 1 matters are book ended by these periods. All the offending therefore occurred in the approximate six month period between September and April 2018 to 2019.
The submission of the Crown on objective seriousness was that it was below the mid-range. I accept that submission and note there was no contrary submission by the offender.

Section 21A

Somewhat unusually the Crown submitted that there were no aggravating features to this offending and the offender pointed to 3, namely that it was planned, there was financial gain and that was a series of acts. I prefer the submission of the Crown; the matters pointed to by the offender as to financial gain and being a series of acts are elements of the offending. As to the matter of planning my view is that was minimal for the reasons set out above.
As to mitigating factors there is the plea of guilty at the earliest opportunity availing the offender of a 25% discount. That was common ground. The parties differed in what I should make of the criminal history of the accused. That criminal history showed that he last committed an offence in New South Wales in 2006 now more than 13 years ago, and that was for driving with a special range of alcohol being a special category driver. Before that he had offences in 2003, 2001 and 1999 all being PCA offences. In addition to that there was one offense of dangerous driving occasioning bodily harm in Western Australia in 2011.
The record does not reveal whether or not the dangerous driving involved alcohol. All the other offences included an alcohol element. In his evidence the offender agreed that there was a time in his life when alcohol was a problem for him but that in the past 10 years the problem had been drugs. The offender said that he now does not drink but then qualified that to say he would have a beer every now and again, not necessarily every week.
My view is that the offender's record does entitle him to some leniency. He has not offended at all for eight years and without knowing the detail of the Western Australian offence it could be that he has never committed an offence other than when affected by alcohol and even then only once in the last 13 years. He has never had a conviction for anything other than a driving matter which whilst they are significant matters in terms of public safety, is a very far removed from the supply of drugs.

Subjective case

I have referred to the criminal history of the offender above and to his early plea of guilty.
The offender relied on two psychological reports. The first is dated 5 December 2019. The offender was born in Sydney and moved to Coffs Harbour at age 3 and has two siblings. He and his brother bought a property adjacent to his parents. Due to bail conditions he currently at the time of this report lived with his parents. In 2017 an 11 year domestic relationship broke down. The parties have a daughter. Initially the offender shared the parental duties on an equal time basis with his ex-partner but these charges lead to there being only supervised visits for a time which has recently changed to being five days out of 14 including overnight time. Federal Circuit Court proceedings, according to evidence before me, are ongoing. I was impressed by the evidence given by the offender as to his involvement with his daughter and he gave evidence of the activities he now undertakes with her together with his fairly recent new partner who has children also. The offender's daughter is aged 6 and it is clear that he cares for her a great deal.
Returning to the psychologist report it recounts the offender obtaining his Higher School Certificate in 1999 and then completing a diploma at TAFE in Environmental Science. He seems to have had a significant work history including building commercial pools and water slides around Australia and as a workplace supervisor in mines and construction whilst in Western Australia. He has a certificate 3 in carpentry and is currently studying online for a certificate 4 in building and construction. He returned to the Coffs Harbour area about six years ago and worked firstly on the highway and then in a concrete plant. It appears that with the relationship breakdown his work ceased due to the demands of court. I must say I find this a little unconvincing and consider the work diminishing due to the stresses brought upon him by his drug taking. It appears his drug use increased leading to the relationship breakdown and these charges then impacted on his time with his daughter. The assessment by the psychologist was of symptoms consistent with substance use disorder, mild and also of adjustment disorder with depressed mood. The chronology of events supports the fact that the escalating drug use were a cause of these difficulties, and did not arise as an attempted solution.
The offender's parents appeared in court and are plainly supportive of their son given that part of the bail conditions required them to accompany him when he left the family farm, and that they have provided him with accommodation. The offender was arrested on 30 April 2019 and held in custody until 5 June 2019 so that he had spent 37 days in custody. Since being on bail he has complied entirely with his bail conditions which included a need to report three times per week from his home in Upper Orara which required a significant travel commitment. The supervision requirement concerning his parents was lifted to enable him to carry on carpentry work on his own account and he is also working to assist his parents on their farm.
The offender has a history of being involved in community activities including at the local soccer club which regrettably was the location where he became involved with the drug supply. On the facts before me it would appear that although there has been a long-term association with drugs by the offender his involvement in the supply of them took his involvement with the drug lifestyle to a new level but only for a discrete period of some six or seven months.
Notably since the events concerning his daughter which came about due to his arrest he has not only not offended but has not used drugs and has resumed his work life. The evidence he gave which was not challenged was that following the relationship breakdown in 2017, by December 2018 he had achieved an equal care situation and it was in May 2019 with his arrest that this was reduced to one day per week. On one view this is also adverse to the offender because it shows that he was prepared to commit these offences when responsible for his daughter for 50% of the time. The offender has shown an ability to commence a period of rehabilitation which to be successful must, in my view, be a period longer than the time that has passed since his arrest given the insidious nature of drug addiction and the common experience of drug dependent people relapsing into further drug use. I base this view on the second psychological report referred to below.
To the offender's credit he has taken steps in seeking psychological assistance in dealing with his addiction. A further report of the same psychologist dated 25 February 2020 records that he has continued to attend treatment sessions with a psychologist since his earlier assessment. He has engaged well with therapy and gave evidence of being able to use mindfulness and other techniques to assist in maintaining his lifestyle changes. These include a greater amount of healthy leisure activities engaged in with his new partner and her children and his daughter.
Also forming part of the evidence was a Sentencing Assessment Report which formed part of exhibit A. That report was largely consistent with the material set out above and assessed Mr Loudon as being a medium to low risk of reoffending and as being suitable to undertake community service work. It also noted that he had expressed regret for his actions and appeared to have insight into the inevitable impact on his life of his offending. It also notes his willingness to undertake intervention. Of concern in that report was the recording of "attitude" in that whilst he appeared to take some responsibility for his actions he minimised his offences by being critical of police and challenging the weights asserted of the drugs involved (now admitted). In his evidence before me he said that those attitudes were recorded just after Christmas and at a time when he was suffering with kidney stones and was in a state of discomfort. The evidence he gave on this issue satisfies me that he is not dismissive now of his offending in the way he may have appeared as recorded in the sentencing assessment report and it may well be that the adverse matters recorded were partly a result of his physical discomfort.
Lastly some statistics were provided of sentences imposed since the amendments to the Crimes (Sentencing Procedure) Act in 2018 through to June 2019. Those statistics have the usual handicap in that the facts of what is being reported is not known and also in this case by the very small sample of cases namely 14. That sample was in respect of the statistics for section 25A (1) offences for the ongoing supply of cocaine. Nevertheless every one of those 14 cases was dealt with by way of an ICO. Consistent with the reservation just expressed it is not made clear by the statistics whether there was only one charge at the time being dealt with and whether there was any matters on a form one. Nevertheless it does show the use of the ICO sentencing option in respect of this style of offending which is well recognised as serious as is well demonstrated by the maximum penalty. I also note the statistics pre date the Court of Criminal Appeal's decision in R v Fangaloka [2019] NSWCCA 173 referred to below.

Findings and sentencing options

I have set out my assessment of objective seriousness above. I find that the offender has demonstrated remorse due to his conduct since the offending, his early plea of guilty and the feeling of shame that he expressed in the witness box. I also consider that the offender is at a low risk of reoffending but I do not find that his rehabilitation is complete. This is because of the dangers of relapse for a person with a history of drug abuse. I take into account the fact that the offender has spent 37 days in custody an experience he described as horrifying including witnessing an inmate being stabbed 37 times. I also take into account in his favour his criminal history which actually reflects his ability to overcome abuse of alcohol though sadly only to then turn in an increasing way over a long period of time to abusing drugs.
Ultimately the point of difference between the Crown submissions and the submissions of the offender is whether or not it is appropriate to proceed by way of an ICO. In other words the section 5 "threshold" has been passed and the question is what is the appropriate way in this case for that sentence to be served.
To answer this question necessarily involves consideration of section 3A, section 5 and section 66 of the CSPA. The correct interpretation of section 66 was the subject of consideration in R v Fangaloka [2019] NSWCCA 173. That case expressed a different view as to the correct interpretation of section 66 than had been expressed in R v Pullen [2018] NSWCCA 264, and the consideration of what needs to be considered before determining whether it was appropriate to proceed by way of an ICO. The facts of the case were vastly different to the present being a case of robbery in company and the causing of actual bodily harm. The principles it sets out however are very instructive. I would note the following about the availability of ICO's and where appropriate identify the paragraph from Fangaloka supporting the relevant matters: 1. section 67 identifies matters where an ICO is not available. That restriction does not apply to the current offending. 2. An ICO is not available by reason of section 68 if where there is more than one offence the aggregate sentence exceeds three years. 3. Without meaning any disrespect to the well considered reasons of the Court of Criminal Appeal the short point of the reasoning commencing at [63] of the judgment is that whilst s66 covers protection of the community and the rehabilitation of the offender and therefore does not reflect the other purposes set out in section 3A this does not render those other section 3A purposes subordinate. The preferred construction of section 66 is that "unless a favourable opinion is reached in making that assessment an ICO should not be imposed. At the same time the other purposes of sentencing must all be considered and given due weight". The assessment being referred to was whether making an order of an ICO or full-time detention would be more likely to address the offender's risk of reoffending. At the same time as this is being considered the issue of punishment and proportionality must also be considered. Basten JA went on to say "equally there is no doubt that the sentencing court must have regard to the personal circumstances of the offender but they should not divert the court from imposing adequate punishment having regard to the objective gravity of the offence"; see at [64]. 4. At [62] Basten JA noted the Attorney General's second reading speech introducing the 2018 amendments to the CSPA, where it was said that short-term imprisonment may not be effective at reducing offending whereas community supervised programs may be more effective. I would note that in that same speech the Attorney General stated "community safety is not just about incarceration. Imprisonment under two years is commonly not effective at bringing about medium to long-term behaviour change that reduces reoffending. Evidence shows that community supervision and programs are far more effective at this". The very next sentence of that passage supports the view of Basten JA for it states that the new section 66 requires a court to consider what is the more likely way to address the offender's risk of reoffending whether it be by full-time imprisonment or an ICO.
In our present case the most recent psychological report of 25 February 2020 notes that there are a further eight sessions of treatment available to the offender in 2020. The report plainly suggests that improvements have already been made and I infer that the need for further treatment into the future shows that this rehabilitation is a continuing process. The report also notes that the offender is working towards completing his certificate 4 in building and construction and that he had reported a positive level of motivation toward completing the 16 subjects over the next six months "which will both help direct his mental time and energies toward a different activity as well as help provide a better future for himself and his family".
The report continues that "therapy will continue to assist Mr Loudon in future sessions to more readily identify when he experiences frustration, low mood, stress, or anxiety and how to more effectively manage these feelings in the recently acquired living practices in which he has begun to engage since the consequences of the charges became more evident in the loss of access to his daughter".
Other benefits of therapy were identified as addressing the offender's communication style, his feelings and needs within his relationship and to more effectively communicate these rather than avoiding such conflict and escaping by way of using substances.
The offender has also benefited from reconnecting with his family in a more meaningful way. A period of incarceration in my view would place a real risk of impeding further progress and very likely detracting from the progress made to date. The comments in the Attorney General's second reading speech of short terms of imprisonment being less effective at aiding rehabilitation than ongoing treatment in the community are well supported by the evidence in this case of both the psychologist and the offender.
This conclusion is supported by the Crown submission that there should be a finding of special circumstances, after having referred to authority that special circumstances should not be found to assist in rehabilitation unless there are significant positive signs which show that if allowed a longer than usual period of parole rehabilitation is likely to be successful. The submission made in those terms clearly supports the view that rehabilitation is presently occurring but has not yet reached a successful conclusion.
The Crown made reference to the co-offenders in this matter. It turns out that (if they are in fact co offenders) that two have not yet been sentenced but two have. One was Mrs Russ who I was told faced one charge under section 25 for supply of what was said to be 7 to 14 g of cocaine. She received a 9 month Conditional Release Order. More comparable with the offending of the accused was Mr Wallace. The Crown bundle in that matter became exhibit B in these proceedings. Mr Wallace was charged with three counts of supplying drugs on an ongoing basis. The Crown papers record that there are no other accused persons so I query to what extent he is a co-accused. There were in fact a total of 33 charges of supplying prohibited drug that appeared on the section 166 certificate which were all described as backup charges which suggest that they relate to the three ongoing charges. The agreed facts show that the commonality between the present case and Mr Wallace is that they were both uncovered by the same strike force and they had a common supplier being Mr Russ. Mr Wallace was supplying the cocaine at street level in quantities of 1 and 2 g. Mr Wallace had no criminal history. He was of a similar age to the current offender having been born in 1982 whereas Mr Loudon was born in 1980 (or possibly 1981 as the date varies). The exhibit does not disclose anything of the subjective case of Mr Wallace. Exhibit B has handwriting marked on it suggesting there was an indicative 15 months on both charges which is odd because there are three charges. An aggregate sentence was imposed of 19 months imprisonment with a nine month non-parole period.
The two notable distinctions between Mr Wallace's offending and the offending of Mr Loudon is that he was the one selling at street level on 33 occasions as opposed to the delivery function served by Mr Loudon on 11 occasions. The state of information concerning Mr Wallace's case makes the parity consideration, assuming they are co offender's, problematic.
My view is that the seriousness of the offender's offending dictates that a finding must be made of the section 5 threshold having been crossed. I am conscious of the purposes of sentencing set out in section 3A. In addition to the matters already referred to there is a need for general deterrence, to denounce the conduct of the offender, to make the offender accountable for his or her actions and to recognise the harm done to the victim of the crime in the community.
In respect of sequence 12 my view is that the appropriate term of imprisonment is 12 months. In relation to sequence 13 I come to the same view including having taken into account Form 1 matters because of the notably lower quantities involved in that charge. In each case I have allowed for the 25% discount for the early guilty plea. I propose proceeding by way of an aggregate sentence and taking all the above matters into account consider that sentence should be 18 months.
I have decided to proceed by way of an ICO for the reasons set out above. For that reason and in accordance with section 45 (1) I will not set a non-parole period. I am conscious of the fact that Mr Wallace did not receive an ICO. I have identified the differences in the two cases above but more particularly in the absence of knowing anything about the subjective case of Mr Wallace a crucial aspect of the justification for an ICO, namely its ability to better facilitate the rehabilitation of Mr Loudon, is not known.
The ICO will include terms that community service work be performed and that the offender be subjected to supervision and that he continue with his treatment with the psychologist who authored the reports that were in evidence namely Kim Malone as well is attending to any other counselling or other rehabilitative interventions as may be directed by Community Corrections.
I consider this sentence does act as a deterrent and as a punishment and denounces the offenders conduct. The order places restriction on the offender's liberty for 18 months. Any non-compliance will likely see the him incarcerated for the balance of the term. At the same time the order aids the rehabilitation of the offender and heightens the likelihood of greater community safety upon that rehabilitation being achieved.

Orders

The offender is convicted and taking into account the four form one offences you are sentenced to imprisonment for 18 months.
I direct that the term of imprisonment be served by way of an ICO.
The date of commencement of the ICO is the date of this order today 3 March 2020, expiring on 2 September 2021.
The ICO has the following conditions: 1. the offender must not commit any offence. 2. the offender must submit to supervision by a Community Corrections officer including attending to all forms of rehabilitation programs as may be directed by community corrections. 3. the offender must attend at least a further eight sessions with Kim Malone psychologist and such further sessions thereafter as Ms Malone may recommend. 4. The offender must abstain from consuming illicit drugs including for the avoidance of doubt all illegal drugs, any drugs of the type that were in the possession of the offender at the time of his arrest and any prescription drugs not prescribed to the offender. 5. The offender must not possess any of the drugs just described. 6. The offender must perform community service work for 200 hours.
The offender is to attend the office of Community Corrections in Coffs Harbour by 5pm on 6 March 2020.
The back up charges are withdrawn.
I make an order for the destruction of drugs.

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