R v Louis Foster

District Court of NSW|2017-05-18

REMARKS ON SENTENCE

The offender is to be sentenced in respect of three counts as follows: 1. Sequence 1 - Take part in supply of an amount of a prohibited drug, namely, 31.5 kilograms of cannabis, being an amount which is not less than the commercial quantity applicable to that drug, pursuant to s 25(2) of the Drug Misuse and Trafficking Act 1985 ("DMTA"). The maximum penalty for the offence is 15 years imprisonment and/or 3,500 penalty units. 1. Sequence 3 - Take part in supply of a prohibited drug, namely, 28 grams of cocaine, pursuant to s 25(1) of the DMTA. The maximum penalty for the offence is 15 years imprisonment and/or 2,000 penalty units. 1. Sequence 8 - Supply prohibited drug, namely, 6.605 kilograms of cannabis, pursuant to 25(1) of the DMTA. The maximum penalty for the offence is 10 years imprisonment and/or 2,000 penalty units.
The offender has asked to be taken into account three matters on a Form 1, each of which occurred between 15 September 2015 and 4 March 2016. They are: 1. Sequence 5 - Agree to supply 8.538 kilograms of cannabis. 2. Sequence 6 - Offer to supply 928 grams of cannabis. 3. Sequence 10 - Agree to supply 4.5 grams of cocaine on four occasions.
The offender was arrested on 4 March 2016 and spent one month, two weeks and three days in custody until he was released on bail on 21 April 2016.

Sequence 8

The facts established that on 14 October 2015, the offender supplied 56 grams of cannabis to a male for $500. On 29 October 2015, two further persons were supplied with 42 grams and 7 grams of cannabis respectively.
Text messages between the offender, ST and two persons in Forbes, revealed negotiations for the supply of 1.3 kilograms of cannabis to those persons on 1 December 2015. They paid $11,800 for the drug, and ST was paid for delivering it.
Further transactions took place on 10 December 2015 (1.3 kilograms of cannabis supplied to Forbes for $10,300), and 18 December 2015 (another 1.3 kilograms of cannabis delivered by ST to Forbes for $10,500).
On 27 December 2015, ST again travelled to Forbes, at the behest of the offender, to supply 1.3 kilograms of cannabis to the two persons for $10,500. ST was paid for the delivery.
On 4 March 2016, the offender supplied 1.3 kilograms of cannabis for $10,750 to Jamie Hughes and Timothy Knox-Niven. Upon leaving the offender's home, the two males were arrested and the cannabis seized.
The total amount of cannabis supplied by the offender was 6.605 kilograms.

Sequence 5 - agree to supply cannabis (Form 1)

On 20 occasions between 16 September 2015 and 13 January 2016, the offender agreed to supply cannabis to various persons, using various mobile phone services. The total amount of cannabis that he agreed to supply during that period was 8.538 kilograms.

Sequence 6 - offer to supply cannabis (Form 1)

On three occasions, namely, 15 September 2015, 2 October 2015, and 20 October 2015, the offender offered to supply a total of 928 grams of cannabis using mobile phone services.

Sequence 1 - take part in supply of cannabis greater than commercial quantity

Sequence 3 - take part in supply of cocaine

On 6 October 2015, the offender negotiated the purchase of 4.5 kilograms of cannabis for $30,600. On 21 November 2015 at Yass, he purchased 9 kilograms of cannabis from his up-line supplier.
On 10 December 2015, ST travelled to Yass and then onto Forbes to deliver 1.3 kilograms of cannabis to the two persons there. Text messages revealed that when ST received the cannabis, she also received what she believed to be cocaine. She was instructed by the offender to "keep the bag of white very safe in the glovebox". She was paid for travelling to Yass and then to Forbes.
Text messages between the offender and ST revealed that ST was given methylamphetamine rather than cocaine, as was ordered by the offender. Text messages further established that the offender had contacted his up‑line supplier and sought to swap the methylamphetamine for cocaine, if he was unable to move it. On 16 December 2015, the up-line supplier attended the offender's house in Wagga Wagga, and cocaine was swapped for the methylamphetamine previously supplied.
On 22 December 2015, ST travelled to Yass where she took possession of 9 kilograms of cannabis, and then returned to Wagga Wagga. The total amount of cannabis purchased by the offender was 31.5 kilograms. The proscribed commercial quantity for cannabis is 25 kilograms.

Sequence 10 - agree to supply cocaine (Form 1)

On 19 December 2015, 22 December 2015 (two occasions), and 30 December 2015, the offender agreed to supply a total of 4.5 grams of cocaine using mobile phone telecommunications services.
Following the arrest of Timothy Knox-Niven on 4 March 2016, the offender was arrested and declined to participate in a police interview.
Exhibit A contained the offender's criminal antecedents, which contained a conviction in April 2015 for assault occasioning actual bodily harm, for which he was sentenced to a Community Service Order of 70 hours, and convictions in October 2012 for driving whilst suspended, and January 2016, for driving with illicit drug present in his blood, for which he was sentenced by way of a s 10 Bond to be of good behaviour for 18 months.

The offender's evidence

The offender's evidence included his bail conditions (Ex 2), which confirmed that he was required to report daily to Wagga Wagga Police Station, as well as a residential requirement. Exhibit 1 included the psychological treatment and assessment report of Ms Ellen Farrow (Ex 1.1), a GP mental health treatment plan (Ex 1.2), and three references (Ex 1.4 to 1.6).
Ms Farrow set out the family background of the offender. He is a single Aboriginal man who described his upbringing with his mother as "transient, filled with violence, exposure to drugs, neglect and rejection". His father, who he now lived with in Wagga Wagga, had left his mother when the offender was a baby, and a step-father had been physically and psychologically abusive towards him. He was introduced to marijuana at a young age, as both his mother and grandmother smoked cannabis regularly. He was regularly exposed to domestic violence also from a young age, between his mother and her partners.
At 15 years of age, he was sent by the Department of Family and Community Services to live with his father in Wagga Wagga. However, he was sent to boarding school, and subjected to violence when he was not at school. From age 16, he smoked cannabis on a daily basis. Despite that, he had a good employment record and was currently employed as a fencer.
The offender had attended counselling since mid-2016. This was principally to address issues arising out of his childhood and its impact upon him.
Ms Farrow opined that he was "a very vulnerable young man who has had a very difficult life". Whilst his pathway to drug addiction was understandable, he had now taken responsibility for his actions and its consequences. He had been diagnosed with a Cannabis Use Disorder and a Persistent Depressive Disorder (Dysthymia). His depressive disorder had an insidious onset from a young age as a result of his traumatic and neglectful childhood.
The author noted that the offender was not currently using cannabis and therefore his Substance Use Disorder was under control. The recommended treatment for his Depressive Disorder was medication and psychotherapy, including cognitive behaviour therapy. It was recommended that the offender engage in regular therapeutic counselling that addresses the following areas: 1. The strategies/skills in CBT to understand the relationship between mood and thoughts; 2. Develop strategies to manage negative mood and thoughts.
It was also recommended that the offender does not associate with known criminals or drug users, and seeks drug and alcohol rehabilitation within the community.
Exhibit 1.4 was a testimonial from the offender's grandfather, who acknowledged the dysfunctional childhood suffered by the offender, who, from a very young age, had to confront neglect, abuse, violence and drug use. When he was 15, and sent to live with his father, he could not do so because his father was in a relationship with a woman who did not want the offender to stay with them. Thus, he was sent to boarding school. He struggled at school, having trouble adjusting to the discipline and routine, having never had a structured life. Further, he did not get along well with his father. He was of the opinion that the offender had learnt a huge amount from his arrest and the time that he had already spent in custody.
Exhibit 1.5 is a referral from Mr Des Damme, the present employer of the offender. He speaks highly of the offender's work ethic and was aware of his family background. The offender had expressed to him deep remorse for his offending and contrition.
Exhibit 1.6 is a referral from the offender's former employer, with whom the offender started and completed an apprenticeship in carpentry and joinery. He also speaks highly of the offender's work ethic, and was aware of his dysfunctional upbringing. The offender had resigned his employment at a time when he was affected by his drug addiction, however, he had subsequently, following his release on bail, apologised for this behaviour.
The offender's cousin, Ms Jessica Jean Foster, gave evidence on his behalf. She was three and half years older than the offender, and is studying for a Bachelor of Psychological Sciences degree. She had known the offender since he was eight years of age. She gave evidence that he had a very troubled childhood, being exposed to a great deal of abuse, neglect and drug use. She had been close to him since he moved to Wagga Wagga when he was 15 years of age. He did not fit into boarding school. She saw the offender on weekends and during family holidays, and they spent a lot of time together. She was aware that when he was 17 years of age he had a "massive marijuana addiction", and she was very worried about him. She described him as "sad and troubled". When he finished school, he became a landscaper for a time with his father. He then commenced his apprenticeship as a carpenter, which he completed.
Ms Foster was aware that the offender's cousin ST had been living with him in Wagga Wagga from September 2015. She was aware that the offender's mother was both a heroin addict and addicted to ice, and had lost everything in February 2016 when her motor home had burnt down.
She was also aware that the offender had spent 49 days in custody, and did not like the experience. He had now been on bail for 392 days and she had observed changes in him. He had stopped using drugs, he was taking anti‑depressants, had gained weight and was a lot happier. He had, in early 2017, formed a relationship with a young woman who lived in Sydney and worked full time in recruitment.
The offender was enjoying his full time work with Mr Damme. He had also referred himself for counselling and in the future saw himself capable of obtaining a good job and having a happy family life.
Ms Foster described her relationship with the offender as being "close". She gave evidence that he loved his mother, notwithstanding her abuse of him, and that he received little support from his father. It was her opinion that he wanted to make something of his life.
In cross-examination, Ms Foster gave evidence that she had often spoken to the offender about his mother's drug addiction and its effect on his family. Whilst she was aware that he used cannabis daily, she could not say on how many occasions and was not aware of how he funded his addiction. He had worked full time for four to five years and on occasions she had told him that he should see a psychologist. Prior to his arrest, he had not been keen to do so, but said he wanted to help himself. She had told him on occasions, "you need to do something".

The offender's submissions

The offender, by his Counsel, noted that the offending took place between 15 September 2015 and 4 March 2016. Sequence 1, the supply of cannabis in an amount not less than a commercial quantity (i.e. 31.5 kilograms), was the most serious of the offences. It took place between 6 October 2015 and 22 December 2015.
Learned Counsel submitted that sequence 8, which took place between 14 October 2015 and 4 March 2016, concerned supply of the same drug that was involved in sequence 1. Therefore, it was submitted that ultimately, a discrete sentence for sequence 8 would be wholly concurrent with the sentence imposed for sequence 1.
It was submitted that sequences 5 and 6 (both Form 1 offences of supply cannabis), would also attract concurrent sentences, based on the relatively small amounts supplied.
A similar submission was made in respect of sequence 10 (Form 1 - agree to supply cocaine - 4.5 grams), which was wholly subsumed in the offending in sequence 3, where the amount involved was 28 grams.
It was submitted by learned counsel that the offending in sequence 1 fell well below the mid-range of objective seriousness for such an offence. It was conceded that there would be a degree of planning involved here, however, that that degree did not exceed what would be expected in a matter where a commercial quantity is involved.
The offending had taken place over a period of 2.5 months and all of the conduct subsequent to 22 December 2015 involved taking part in supplying what was already in the offender's possession for the purpose of supply.
In sequence 1, the quantity of drug involved (31.5 kilograms) was just above the commercial quantity (25 kilograms), whereas the large commercial quantity is an amount equal to or greater than 100 kilograms. Thus, the amount supplied was towards the bottom of the range for a matter involving a commercial quantity.
It was submitted that the offender played a relatively important role in the operation. However, he was not the original source of the drug. The scope of the operation involved the two men in Forbes, the offender and ST. His role was involved in the supply of drugs in Wagga Wagga, it was submitted that the scope of the enterprise was relatively small for a commercial operation.
Counsel noted the distinction in the DMTA between cannabis and other prohibited drugs. The maximum penalty for commercial supply of cannabis was 15 years imprisonment, compared to 20 years imprisonment which applied to the commercial supply of other prohibited drugs such as methylamphetamine, heroin or ecstasy. The court would take into account that the offender was involved to a much lesser extent in the supply of cocaine, in that there was only one occasion when he arranged to purchase cocaine. The court would accept that the offender had an extensive and long‑standing cannabis habit from an early age, and the purpose of supply was to feed his addiction. There was no evidence in respect of acquired wealth or extravagant lifestyle.
Whilst it was conceded that the well-entrenched principle, that in the absence of exceptional circumstances, a full time custodial sentence should be imposed whenever an offender is substantially involved in the supply of prohibited drugs, it was submitted that each case should be considered individually, in its circumstances and on its merits, referring to EF v R [2015] NSWCCA 36. The offender here did not argue that exceptional circumstances are established on the evidence.
There were, however, significant subjective factors to be taken into account. The court would accept the evidence of Ms Foster and the opinions of Ms Farrow, particularly as she was a treating psychologist rather than a qualified expert witness. She had seen the offender for eight sessions over a lengthy period of time.
It was submitted that the offender was entitled to a 25% discount for the utilitarian value of his early plea of guilty. That plea also indicated some remorse on his behalf.
The offender submitted that his moral culpability was significantly lessened because he had as a child been exposed to a largely dysfunctional background. Evidence is contained in the history recorded in the Pre-Sentence Report, the opinion expressed by his grandfather, Digby Foster, anecdotal evidence from his two employers, and the report of Ms Farrow. In accordance with the principle in Bugmy v R [2013] HCA 37, it was submitted that an otherwise appropriate sentence will be reduced on account of his reduced moral culpability.
It was further submitted that as a young offender, the offender's moral culpability was lessened, relying on BP v R [2010] NSWCCA 159 per Hodgson JA at [5]. It was submitted that the offender's immaturity was a significant factor in his offending, and his emotional development had been stunted as a result of his exposure to childhood trauma and neglect.
Learned Counsel submitted that the offender had sought treatment for his mental health prior to his arrest. He had been prescribed anti-depressants. It was submitted that the offender's Depressive Disorder and Substance Use Disorder are so closely interconnected, that the court would find on balance that his depression had led to his cannabis use from a young age, which ultimately led to his involvement in the supply of prohibited drugs. There was therefore a causal connection between his depressive condition and his offending. This was also relevant to sentencing in that it diminished general deterrence as a factor in the sentencing process in accordance with DPP (Cth) v De La Rosa [2010] NSWCCA 194.
It was submitted that the offender has very limited criminal history and, on balance, good prospects of rehabilitation. He had been on strict bail conditions for over a year and had not further offended. Given his strict bail conditions, he should be entitled to a further backdated 90 days, being 25% of 392 days, in accordance with Hoskins v R [2016] NSWCCA 157.
Principles of parity would also apply. Of the two men based in Forbes, Mr Knox‑Niven was sentenced to a term of imprisonment of 28 months. Mr Hughes was sentenced by way of a 12 month Intensive Correction Order. It was acknowledged that those sentences were based on different facts.
It was submitted that there should be some accumulation for the cocaine charge, being sequence 3 only. That drug was sourced from the same supplier on the same day. It was therefore part of the same course of criminal conduct.
It was finally submitted that any sentence imposed should allow for a substantial portion thereof to be served in the community. It was submitted that it was in the best interest for the offender to continue his rehabilitation and it had already been a long time since his arrest. For that reason, the shortest period of full time custody should be imposed, and a finding of special circumstances made.

The Crown submissions

The Crown submitted that the offender was substantially involved in the trafficking of prohibited drugs, especially cannabis, but also cocaine. There was a large amount of money involved in the transactions and clear evidence that he was motivated by financial gain.
In assessing the objective severity of the offending, assessing the offender's role in the commercial operation was essential, together with the amount of prohibited drugs supplied.
It was submitted that this was not street level dealing. The offender was a middle man or up-the-line supplier.
The Crown referred to R v Nguyen [2015] NSWCCA 268 as a similar decision to the present case.
The Crown submitted there was clearly an element of greed here. In addition, the offender suffered a cannabis addiction, but there was no evidence that the supply had been carried out to fund that addiction. The Pre-Sentence Report itself had referred to "financial gain and self-gratification" as being the reasons for the involvement of the offender. Based on the psychological report however, it was clear that the cannabis abuse over a large number of years had affected his judgment.
The Crown accepted that the offender had suffered a deprived background and that the principle in Bugmy v R, supra, applies. It diminished his moral culpability, however, it remained that the offender had been involved in very serious offending. There was no other explanation for supplying cocaine, and therefore the court would conclude that it was supplied for greed and financial gain.
The Crown agreed that sequences 1 and 8 overlapped and submitted that there should only be a slight accumulation in respect of those two offences. There should be a greater degree of accumulation for sequence 3.
The Crown also accepted that parity had a limited role because the roles of the other offenders were vastly different.
Finally, the Crown accepted that there would a finding of special circumstances and that the offender would benefit by a lengthy parole.

Determination

Section 3A of the C(SP)A sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community."
The objective seriousness of the offending in sequence 1 is below the mid‑range of objective seriousness for an offence pursuant to s 25(2) of the DMTA. The amount of cannabis supplied, 31.5 kilograms was just over the commercial quantity proscribed (25 kilograms), and well below the large commercial quantity (100 kilograms). The role of the offender was, however, not of street dealer, but rather, an up-line supplier or middle man, who was responsible for disseminating the drugs to more than one community. His role was clearly motivated by financial gain, as well to feed his own cannabis addiction. For those reasons, the offending, which required some significant planning, lay towards the upper end of the lower range of objective seriousness. On that basis, it still constituted most serious offending. I do not accept the offender's submission that "the enterprise was relatively small for a commercial operation".
The offending in sequence 3 constituted offending within the lower range of offences pursuant to 25(1) of the DMTA. The commercial quantity of cocaine was 250 grams, and this was a one-off supply. It was therefore towards the middle of the lower range for the supply offence pursuant to s 25(1) of the DMTA.
Sequence 8 constituted offending at the lower end of the range for an offence pursuant to s 25(1) of the DMTA, being an offence of supplying 6.605 kilograms of cannabis. As outlined above, the amount supplied was completely subsumed by the offence in sequence 1.
I have taken into account the maximum penalty in sequence 1 of 15 years imprisonment and/or 3,500 penalty units; the maximum penalty in sequence 3 of 15 years imprisonment and/or 2,000 penalty units; and the maximum penalty in sequence 8 of 10 years imprisonment and/or 2,000 penalty units, as guidelines in the sentencing process.
I have also taken into account the three matters on the Form 1. Each of those matters were towards the lower end of objective seriousness for the offending referred to in each (i.e. sequence 5, 6 and 10).
I note that the offender has admitted his guilt in respect of each of the matters, and there must be some accumulation on sentence in relation to the matters taken into account on the Form 1.
The offender is entitled to a 25% utilitarian discount on sentence.
There are significant subjective matters which have to be taken into account in respect of this offender's background, his exposure from an early age to a culture of extreme violence, his consumption from an early age of alcohol and drugs and the effect of a lifetime of deprivation on him. In Bugmy v R, supra, the High Court held: 1. The circumstances that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his/her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way [40]. 2. The effects of profound deprivation do not diminish over time and repeated offending and should be given full weight in determining the sentence in every case [42-44]. 3. A background of that kind may leave a mark on a person throughout life and compromise a person's capacity to mature and learn from experience [43].
The High Court also noted that Aboriginal Australians, whether they live in remote or urban communities, may be subject to the grave social difficulties discussed in R v Fernando (1992) 76 A Crim R 58 and Kennedy v R [2010] NSWCCA 260. I am satisfied here that there is ample material establishing the offender's deprived background. I am satisfied that he was subjected to violence, drug abuse and neglect from an early age, such that his moral culpability for his criminal conduct must be substantially reduced.
General deterrence is always important in sentencing for drug supply offences. A clear message must be sent to the community that Parliament has proscribed severe penalties for drug supply offences, and that the courts are mandated to impose lengthy custodial sentences, absent exceptional circumstances. Specific deterrence is also important, however, is somewhat diminished here as a result of the offender's mental health problems, including his Depressive Disorder and Substance Abuse Disorder.
I have certified the matters on the Form 1 which must be taken into account by way of some accumulation on sentence.
The fact that strict bail conditions have been imposed may be taken into account, but there is no obligation on the court do do so - see Hoskins v R, supra, at [36]. I do not accept the offender's submission that it is appropriate to do so in this case. I also reject the offender's submission that his moral culpability was reduced by virtue of his youth, relying on BP v R, supra. That case concerned a child of 16 years, whereas the offender here was in his early twenties at the time of the offending.
The principle of parity, based on equal justice, cannot be applied here. The facts on which the other offenders were sentenced were different, and no remarks on sentence were made available.
I propose to proceed to sentence by way of an aggregate sentence pursuant to s 53A of the Crime (Sentencing Procedure) Act 1999 ("CSPA). The court is required to indicate the sentence that would have imposed for each offence had separate sentences been imposed instead of an aggregate sentence. This provides transparency in the sentencing process. I note that any aggregate sentence must be "just and appropriate" to the totality of the offending behaviour - see Mill v R (1988) 166 CLR 59 at [63].
The indicative sentences are as follows: 1. Sequence 1 - 2 years and 3 months imprisonment. 2. Sequence 3 - 12 months imprisonment. 3. Sequence 8 - 4 months imprisonment.
I find special circumstances established pursuant to s 44 of the CSPA, based on the offender's young age, the need for drug and alcohol counselling, and relapse prevention, and the fact that this is first time in custody. He will require a lengthy period of supervision in the community, and the Crown has not submitted otherwise.
I therefore intend to sentence the offender to a term of imprisonment of 2 years and 9 months, with a non-parole period of 1 year and 5 months. The sentence will be backdated to take into account the time that he has already served in custody.

Orders

I make the following orders: 1. You are convicted of the offence in Sequence 1, namely, take part in supply of an amount of a prohibited drug, namely 31.5 kilograms of cannabis, being an amount which is not less than the commercial quantity applicable to that drug, pursuant to s 25(2) of the DMTA. 2. You are convicted of the offence in Sequence 3, take part in supply of a prohibited drug, namely, 28 grams of cocaine, pursuant to s 25(1) of the DMTA. 3. You are convicted of the offence in sequence 8, supply prohibited drug, namely 6.605 kilograms of cannabis pursuant to s 25(1) of the DMTA. 4. I impose an aggregate sentence pursuant to s 53A of the CSPA as follows. 5. I set a non-parole period of 1 year and 5 months commencing on 6 April 2017 and expiring on 5 September 2018. 6. I impose a balance of term of imprisonment of 1 year and 4 months, to commence on 6 September 2018 and to expire on 5 January 2020. 7. The total sentence is 2 years and 9 months imprisonment, comprising the non-parole period and balance of term. 8. The offender is eligible for parole on 5 September 2018. 9. I have certified the matters on the Form 1. 10. I order the drugs the subject of the offences be destroyed.

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: 26 May 2017

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