R v Lovelock

Objective seriousness

1. In assessing the objective seriousness of each offence it is relevant to determine the role of the offender and also to consider the amount of drug involved. In respect of the amount of the drug it is well-established that quantity is neither the sole nor even the determining feature of the offending; Leung and Wong; Wong v The Queen [2001] 207 CLR 584. The amount nevertheless remains a factor to be considered. In Newman (a pseudonym) v R [2019] NSWCCA [157] it was said (at [10]) when dealing with an error by the sentencing judge as to the weight of the drug: Clearly the error could have affected the sentencing; there is a significant difference between a quantity which is only marginally above the threshold and a quantity which is more than twice the threshold
2. The facts of the offending clearly indicate some degree of planning; there were arrangements made for the amounts concerned for the first 4 offences to be delivered to the co offender, and there was the financing aspect. The offender was not a mere courier, as indicated by these financing activities, albeit that he may have ended up with a bad debt to some degree. I accept the submission of the Crown that the offender was "further up the hierarchy" than the co offender; the offender is the upline supplier of the co offender, with the co offender himself being a supplier to Mr Cook, who appears to be the "retailer". I note the co offender would text the offender when he needed more drugs; see [10d] of the agreed facts. Further, the offender is the link from the source of the drugs into the region of Grafton. Without such a link, the availability of drugs in the region is logically less, though that is not to say it may not be manufactured locally. These comments apply to the first four offences; as to the fifth offence, my view is the offender's role was more in line with the co offender of the first four offences, or Mr Cook; the smaller amounts in individual bags is markedly different to deliveries of a half ounce, and multiple ounces. I am not able to find, and it was submitted, that the offender was part of some larger organised crime operation, but he is clearly part of drug supply activity as described. Whilst the offending is for financial reward, just what that is is not stated. Further, it is recognised that it is part and parcel of this style of offending that it is done for financial gain. Without evidence of the size of the financial reward, this does not add to the seriousness of this offending.
3. In submissions reference was made to "financing". Whilst it seems accepted that there was indebtedness involved, the arrangements were far from sophisticated, and with count 1 involved the offender's girlfriend, not the offender. It is however an agreed fact that the offender supplied the drugs on credit (see [4] of the agreed facts) and that the co offender "inherited" Mr Cook's debt and liaised with the offender about paying it off; see [13d] of the facts.
4. With the above considerations in mind, I turn to each of the offences. The first offence involved 3 ounces (84g). The amount is beyond what is needed for an indictable quantity (5g) but well below what is required for a commercial quantity (250g). I would assess this as in the low mid range of objective seriousness.
5. The second offence involved an amount of 14 g which in my view on the facts of this case makes it less serious than the first matter. I would place this in the low range
6. The third matter involved 56 g and there is no reference to price or profit nor any reference to financial involvement of any kind so that I would place it also in the low mid range; I consider it less serious than count 1, but above the low range.
7. The fourth offence is an amount of 56 g but with the facts stating it had been cut by upline suppliers, that is, those that supplied the offender. This suggests its purity was less than the earlier offences. This in my view makes it a less serious offence than count 3. I would assess it as more serious than count 2, as being in the high low range.
8. As to the fifth offence it is obvious that there is packaging of small amounts of drugs and the agreed facts are that the drugs were for the purpose of supply. That there are as many prepackaged amounts suggests the offender's role was somewhat different to the earlier offending. It is arguably a role akin to that of the co offender in the earlier offences, or Mr Cook, that is lower down the hierarchy, and the quantity is modest. I assess this as being in the low range.
9. The Crown did not submit there were any s21A aggravating factors.

The subjective case

1. A plea was entered in the local court at a time which the parties agree entitles the offender to a 25% discount and that discount will be applied.
2. The offender is now 65 years old and was 62 the time of the offending of counts 1 to 4 inclusive. He has one conviction in 1995 for drug supply and received a bond and fine and another offence in 2003 of goods in custody which was dismissed under section 10. There was another offence in Queensland in 2010 of possessing dangerous drugs for which there was no conviction recorded and a $500 fine. It would seem obvious that over an extended period of time he has from time to time acted contrary to the law and twice in respect of drug matters. That said I do not think that record disentitles him to leniency.
3. A sentencing assessment report was prepared. It shows he has a supportive family. He has current employment as an interstate truck driver, which has been his occupation for almost all his adult life, though on one view on other evidence that position is in jeopardy as a result of the offending. He has two sons and is a grandfather of several.
4. The report is inconsistent as to the issues of remorse and insight. On the one hand it records his stated remorse and acknowledgment of wrongdoing, yet it almost immediately notes that the offender minimises his offending, asserting he only offended on two occasions, quite contrary to his plea, which he says was entered for the benefit of sentencing. In light of his plea, and no challenge to the facts, this must be rejected.
5. The report records that the offender accepted the need to dissociate from antisocial peers. He acknowledged use of amphetamines to assist with his work. He has been abstinent since his arrest and has continued working in that time.
6. He has some symptoms of depression resulting from the death of his wife.
7. He accepted the impact of his offending behaviour on the community and said that he was sorry.
8. He expressed an intention to engage with community-based psychological interventions to address his substance abuse and mental health issues. In terms of his willingness for community service work he was not prepared to be assessed for that due to his work commitments. He also said he would continue to reside in Queensland at the end of these proceedings. There is about these views a suggestion of a total lack of understanding of the precariousness of his position. Full time custody is a real possibility; not only may he not get to choose where he lives, but embracing community service work is advisable, to enliven non custodial options involving such work.
9. He is assessed as a medium to low risk of reoffending.
10. Other documents showed that the offender owned a house in Fairfield Heights Sydney. He has repartnered and is presently in a de facto relationship.
11. Numerous documents were also tended in support of the offender's case. The majority of them went to the issue of the offender's health. These documents establish a reasonably extensive range of health issues most relevantly including hypertension in 2014, diabetes from 2017 and hyperuricaemia in 2021. There was also evidence of a mental health care plan having been prepared significantly after the offending and very shortly before sentence. That plan dated October 2021 diagnosed prolonged grief which emerged following the death of the offender's wife of lung cancer in November 2018. Notably that predates the offending. There was an earlier mental health care plan dated 28 March 2019 and there is no doubt that the offender suffered significant grief following the death of his wife. The earlier plan however also notes that precipitating factors included work and employment stresses and financial issues.
12. The other material included two letters from his employer. The first indicated that employment would continue. That offer however was retracted when the full facts were made known but with a concluding paragraph that states "We will discuss with Noel further employment opportunities once sentencing is finalised". In my view this plainly allows for the prospect of continuing employment. There was also a letter of support from his daughter-in-law who speaks highly of him and says his conduct is out of character and notes that his wife had been with him for 45 years.

The submissions

1. The ultimate submission for the offender was that there be imposed an intensive correction order with home detention as a condition. This outcome would mirror the sentence imposed on the co-offender.
2. It was submitted for the offender that the factors contributing to the offending were the financial stress and grief which are no longer present. I accept that somebody depressed and grief stricken may act in a more reckless way than usual, and may have contributed to the offending. The evidence supporting this submission is however weak, based on the SAR, and not based on any detailed evidence, even untested, from the offender. I find that there is some small degree of reduced moral culpability in the circumstances.
3. The offender's prospects I find are reasonable to good; he has family support, a new partner, a home, and less financial stress than previously as well as, in my view, likely employment. His use of amphetamines is said to have ceased which adds to his prospects, as well as lessening his likelihood of reoffending.
4. The Crown argued against the imposition of an intensive correction order. The strong point of the Crown's submissions was the need for general and specific deterrence. That the offending constitutes distribution of methylamphetamine in a regional area is something which in my view is significant. This is not to say drug use is less insidious in metropolitan areas but it demonstrates the scourge of drugs throughout the community. The spread of that scourge needs to be deterred. The community needs to be protected. As the Crown submitted 210 g was distributed within the Grafton area in 42 days. The harmful and devastating effects of the drug are well recognised and seen in this court on a daily basis.
5. The other strong point for the Crown is the principle of parity. When the case of the co offender is considered it can be said that the offender is an up line supplier. I accept the submission of the Crown that the offender is "higher up the hierarchy" or better put, has a greater role in this drug supply, particularly in light of the matters set out at [13] and [14] above. The point concerning parity in this case is that there should not be any unjustified sense of grievance felt by the co-offender; the Crown submits that anything less than full time custody would cause such a feeling.
6. The co offender spent some 2 months in custody before sentence; the offender has spent no time in custody.
7. My findings on the offender's subjective case are as follows: 39.1. He has the benefit of a 25% discount due to his plea of guilty; 39.2. His criminal history in all the circumstances is not significant; 39.3. The likelihood of reoffending is medium to low; 39.4. The offender has reasonable to good future prospects; 39.5. The offender in my view lacks insight into the seriousness of his offending, and seeks to minimise his wrongdoing. Thus whilst he expresses regret, I do not consider that statement can be given the weight it may be given when there is a finding of genuine remorse and insight. 39.6. The offender's health and age are factors which suggest custody would be more onerous for him than otherwise, and there is also the consideration of the Covid pandemic adding to the difficulty of a term of custody. The offender's age also means that regard should be had to the sentence not being a crushing one, though as he is 65 and any non parole period would likely be in the region of 2 years, this consideration is not an overly significant one.
8. Overall this subjective case has some favourable aspects, but could not be described as strong.

Sentencing considerations

1. Section 3A of the Crime (Sentencing Procedure) Act ("CSPA") provides the purposes of sentencing are as follows: 41.1. To ensure the offender is adequately punished 41.2. To prevent crime by deterring the offender and others from committing similar offences 41.3. To protect the community from the offender 41.4. To promote the rehabilitation of the offender 41.5. To make the offender accountable for his actions 41.6. To denounce the conduct of the offender 41.7. To recognise the harm done to the victim of the crime and the community
2. The approach to sentencing in drug matters was considered in Parente v R [2017] NSWCCA 284. One aspect of that case was its express rejection of what had become known as the principal from the case of R v Clark that where there was drug-trafficking to a substantial degree there was ordinarily required a sentence of full-time imprisonment unless there was exceptional circumstances. In Parente the court adopted the view of Simpson JA in Robertson v R [2017] NSWCCA 205 which was to the effect that where there has been drug dealing to a substantial degree analysis of sentencing practices shows a term of imprisonment will ordinarily be imposed. The point being made however was that is not to be taken as a starting point and that each case relating to drug dealing needs to be dealt with consistently with ordinary sentencing principles.
3. In this case it is the purposes of deterrence denunciation and accountability as well as recognising the harm to the community that predominantly require recognition.
4. By section 5 of the CSPA a term of imprisonment should not be imposed unless there is no other more appropriate sentence. It is not argued in this case that there is some other more appropriate sentence. In my view whilst not particularly strong, the subjective case does assist the offender, and whilst it should be borne in mind that he is now 65 years of age and has not been in custody before, this is very serious offending with a significant maximum penalty and well recognised negative impacts on the community. In my view there is no other more appropriate sentence.
5. In order for an ICO to be the appropriate outcome, which is the ultimate submission of the offender, and which is opposed by the Crown, there are three steps that need to be considered. The first is whether the section 5 threshold is crossed which I have determined above. The second is to determine the length of the sentence. I have set out the objective and subjective considerations above. It is appropriate to proceed by way of an aggregate sentence. Before doing so it is necessary to indicate the indicative sentences for each offence, and to then consider the issues of totality and parity, before setting the length of the sentence.
6. The indicative terms for each offence are set out below, with the indicative term being stated before the application of the 25% discount, and then with the discount having been applied (and for convenience the amount of the drug relevant to each charge is indicated): 46.1. Count 1 (seq 3) 84g: 2 ½ years, so 22 ½ months; 46.2. Count 2 (seq 4) 14g: 12 months, so 9 months; 46.3. Count 3 (seq 5) 56g: 2 years, so 18 months; 46.4. Count 4 (seq 6) 56g: 18 months, so 13 ½ months; 46.5. Count 5 (seq 8) 17.14g: 12 months, so 9 months.

Totality

1. The principle of totality of criminality may have the practical effect that a lower penalty may be imposed for all the offences as compared to if the offences were dealt with separately and distinctly: R v Holder (1983) 13 A Crim R 375. A sentence must be just and appropriate to the totality of the offending behaviour.
2. In Cahyadi v R [2007] NSWCCA 1; 169 A Crim R at [27] Howie J said: [27] In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.
3. The principle was expressed in R v Chan [2000] NSWCCA 345 and Stratford v R [2007] NSWCCA 279 as being that a sentencing judge is required to have regard to the fact that an offender is being sentenced for multiple offences and is to ensure that the ultimate sentence imposed is appropriate to the totality of the offender's offending and to the offender's personal circumstances.
4. Here, whilst there are 5 discrete offences, there is a clear course of conduct, particularly in respect of the 2019 offending. The last offence, in 2020 is more distinct from the other offending, and suggests supply more in line with what the co offender, or perhaps Mr Cook, had been doing, rather than as the higher up role earlier adopted. In my view the appropriate aggregate sentence reflecting the overall criminality of the offender's conduct is 4 years imprisonment.
5. Before concluding this is the appropriate sentence it is necessary to consider parity, which is necessary to consider from the point of view of both the co offender and offender.

Parity

1. The co offender was charged with two offences under section 25A(1) of the DMTA, which are charges of ongoing supply that is that in respect of each charge he did on three or more separate occasions within 30 days supply methylamphetamine for reward. The maximum sentence is 20 years and there is no standard non-parole period. In terms of the maximum sentence therefore the offending is considered more serious than that of the offender though of course there are five charges against the offender as opposed to 2 against the co-offender.
2. The co-offender was the supplier of the third man named Mr Cook who would then on supply at what might be termed street level. The first charge consisted of five supplies between 14 March and 12 April 2019 (notably a period after one of the supplies in the current matter). In the case of the co-offender it is expressly acknowledged that he purchased the drugs from the offender. There is reference to the offender supplying drugs to the co-offender in March 2019 and 8 April 2019. The total amount supplied by way of the first count was 126 g.
3. It was a similar pattern in respect of the second count and the total supplied was 84 g giving a total of 210 g which is of course the total of the first four charges to which the offender has pleaded guilty.
4. The offending was considered to be a little below the notional mid range of objective seriousness and with the second offence slightly less serious than the first. The role of the co-offender was described as being a conduit between the offender and Mr Cook.
5. In terms of the respective subjective cases of the offender and co offender there are inevitably differences but neither the offender or co-offender has a "stand out" subjective case, and I consider them comparable. It does seem that there has been greater drug abuse on the part of the co-offender and they both seem to have a marked lack of insight with the co-offender saying that he was doing Mr Cook a favour. The co-offender did not seem to acknowledge the danger done to the community by his actions. He was found to have a medium to low risk of reoffending and also obtained a 25% discount. Given his at least partial success on the disputed facts hearing nothing adverse emerged from that. Remorse is considered limited. His prospects for rehabilitation were considered good.
6. Ultimately the indicative sentence for the first count for the greater amount of drugs was two years and three months the indicative sentence for the second count was one year and 10 months. The aggregate sentence was two years and 11 months. It seems that the indicative sentences were after the application of the discount which is not referred to.
7. Given the aggregate sentence was not more than 3 years, an ICO could be considered. The sentencing judge made it plain that it would not be imposed unless there could be a condition of home detention. Subsequently a report was provided which showed the offender was suitable for home detention and allowing for presentence custody a term of two years and nine months was set for the ICO which included the home detention condition. The view taken of section 66 was that there would be no compromise to community safety if the offender served his sentence in the community. The conditions imposed were the standard conditions, and additional conditions of 200 hours of community service, and that the first two years be served by way of home detention.
8. The doctrine of parity on sentencing is a norm of equal justice and an essential element of the rule of law: Green v R; Quinn v R [2011] HCA 49; (2011) 244 CLR 462 at [28]. The principle of equal justice requires, as far as the law permits, that like be treated alike and that differential treatment be meted out to reflect differences between those that are relevantly different: Green & Quinn at [28].
9. In Kelly v R [2017] NSWCCA 256 it was said, by reference to Postiglione (1997) 189 CLR 295, that the principle only requires that the actual period to be served by each offender for the common offence be "taken into account". Such a consideration "might suggest that something is askew but it is not determinative".
10. In Afu v R [2017] NSWCCA 246, the Court observed: Consistency in the punishment of offences against the criminal law finds expression in the parity principle. That principle requires that like offenders be treated in a like manner, but also allows for different sentences to be imposed for the same offences to reflect different degrees of culpability and/or different circumstances. Unjustifiable disparity is an infringement of the equal justice norm.
11. In Green it was said, at [28] (French CJ, Crennan and Kiefel JJ)[55] the "parity principle" requires that like offenders should be treated in a like manner. Accordingly the principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.
12. What is required to be shown is a marked disparity between sentences giving rise to the appearance of injustice because one offender has been unfairly treated having regard to the sentence passed upon the other offender: Green at [31]-[32]. Other descriptors of what is required include gross, glaring or manifest disparity: England v R; Phanith v R [2009] NSWCCA 274 at [61]-[67]; Dwayhi at [24].
13. It is also necessary to keep in mind that it is the sentence imposed upon a co-offender which is said to give rise to a sense of injustice, not the sentence imposed upon the offender; see Lewins v R [2007] NSWCCA 189; 175 A Crim R 40 at [7].
14. The sentence imposed on the co offender was in effect a 3 year term, with allowance for some two months in custody reducing it, by rounding, to 2 years and 9 months. I note the offences charged differ between the offender and co offender, and note also that but for the fifth offence the drugs being supplied were the same drugs, though this was partly if not wholly because the offender was supplying on demand by text of the co offender, reflecting the offender's greater role). I also note the greater maximum sentence for the offending of the co offender (albeit 2 counts, not 5). The greater role of the offender (see [13] and [14] above, but in particular the supplying on demand just mentioned, and the giving of credit), the comparable subjective cases, and the stand alone fifth offence dictate that the sentence be greater for the offender. I conclude that the sentence should be 4 years. The differences in the respective offending conduct of the offender and co offender mean that the offender can have no justifiable sense of grievance as to the different outcomes. In contrast, had the offender received a term of imprisonment of 3 years or less, then the co offender would justifiably be aggrieved. In short, the seriousness of the offender's conduct is greater than the co offender's, and the sentence arrived at reflects that.
15. This result means that by reason of s68 the imposition of an ICO is not available.

Special circumstances

1. The offender has a good case for special circumstances. In his favour is his age, the fact that this will be his first time in custody, and that an extended period of supervision may assist him with his mental health issues, and aid interventions to improve his insight into the wrongfulness of and the damage done by his drug activities. The non parole period will be 21 months, with the factor of the offender's age influencing this significant allowance.

Orders

1. Of the 5 offences under s25(1) of the DMTA the offender is convicted.
2. The offender is sentenced to an aggregate term of imprisonment with a non parole period to date from 17 December 2021 and expiring on 16 September 2023, and with a balance of term of 27 months expiring on 16 December 2025.

Amendments 17 December 2021 - Ammend sentence to say aggregate. 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: 17 December 2021