HIS HONOUR: Mr Lowe, the reason I cannot grant your counsel's application is going to become very obvious to you because of the character of the sentence I must impose. The time has come for sentencing and to my mind to delay the matter would only make more cruel the barb that follows from the sentence I propose to impose upon you. I propose to sentence you to five years imprisonment and I propose to fix a non-parole period of two and a half years in effect. That sentence is going to be backdated six months, so I am going to give you all the credit for the time you have previously spent in custody and I am going to give you additional credit beyond 50% of the quasi custodial setting of the rehabilitation centre. I am going to explain to you and your family particularly but also the community why it must be the case that you must be sentenced to a term of imprisonment and why it must be greater than the two years or less that your counsel was seeking.
The prisoner, Cole Andrew Lowe appears today for sentence in relation to three offences for which he was committed for sentence from the Local Court. It is important that I outline the particulars of the crimes. Those crimes each being crimes contrary to s 25(1) of the Drug Misuse and Trafficking Act, which each carry a maximum penalty of 15 years imprisonment and/or 2,000 penalty units. A penalty unit is I understand the matter being $110 each. In respect of each offence there isno standard non-parole period. The particulars of the three crimes are these; I will refer to them by sequence number because that is the way they are referred to in the Court Attendance Notices and the Crown Cover Sheet.
Sequence 1 is an offence of supplying a prohibited drug, to wit methylamphetamine between 1 January 2013 and 4 September 2014 at Lake Albert. I pause for a moment to note the evidence of the prisoner that in fact his supplying of drugs in accordance with the confession he made to the police, which I will deal with shortly, was not over that entire period and I accept that. But certainly, as I understood his evidence, it was for a period of at least 12 months.
The second offence, Sequence 2 is an offence of supplying a prohibited drug, to wit methylamphetamine at Lake Albert on 4 September 2014, arising out of the execution of a search warrant by police at a residence that I understand was occupied by his mother. The supply of the relevant drug relates to two quantities of methylamphetamine amounting in total to 46.2 grams of methylamphetamine, the supply being a deemed supply, and that he did have a quantity of that drug not less than the trafficable quantity.
The trafficable quantity of the drug methylamphetamine as I understand the matter is three grams. That is correct is it not Mr Crown?
CROWN PROSECUTOR: Yes.
HIS HONOUR: But the truth of the matter is that the possession by the prisoner of that quantity of methylamphetamine is very much directly linked to the confession that he gave to the police of his involvement in the supply of methylamphetamine before that date.
The third offence for which he is to be sentenced is an offence of supplying a prohibited drug on the 4 September 2014, to wit methorphan in an amount of 147.84 grams. I am not familiar with the drug methorphan and I have no particular evidence about its purpose. Some words have been bandied around the bar table to the effect that it is sold as "ecstasy" in a general sense. But little information is available and I cannot draw any conclusion one way or the other about the matter adverse to the prisoner or otherwise concerning its deleterious effects upon the community. I am advised by the Table that was provided to me by the Crown in relation to another matter that the trafficable quantity of that particular drug is three grams. That is correct Mr Crown is it not.
CROWN PROSECUTOR: It is.
HIS HONOUR: And a commercial quantity would be 250 grams, is that correct Mr Crown?
CROWN PROSECUTOR: It is.
HIS HONOUR: The same as is required in relation to methylamphetamine. So it is a very substantial quantity of that particular drug. However, in sentencing the prisoner in relation to the Sequence 1 offence; that is the supply over a period of time, I am required to take into account three matters on a Form 1. Those matters are in order in which they appear on the Form; having goods in his custody, reasonably suspecting of having been stolen or unlawfully obtained, and dealing with proceeds of crime relating to his possession of, in effect, $95,980 - the prisoner on the facts available to me was actually in possession of $135, 980, but the facts are prepared to concede that $40,000 of that money may well have been unrelated to drug dealing activity.
Finally, a third charge on the Form 1, possession of a particular drug shortly described as 25C-NBOME in an amount of 166 grams. The 'discrete' as it is called, dosage unit of this particular drug, another prohibited drug with which I am not familiar, is an infinitesimally small quantity of 0.0002 grams. I believe I was informed yesterday that a trafficable quantity of that particular drug was in a very small fraction of a gram.
The significance particularly of the 'deal with proceeds of crime' offence in the context of the facts of the case is to be found really both by reference to the quantity of the cash, but in the observations of the Court of Criminal Appeal in 2002 in the guideline judgment of that year relating to Form 1 matters. The Court of Criminal Appeal said in that judgment that the fact that there are matters to be taken into account on a Form 1 means that greater weight should be given to the need for personal deterrents and the community's entitlement to extract retribution.
The entire point of the process is to impose a longer sentence or to alter the nature of a sentence that would have been imposed if the principal, that is the Sequence 1 offence of supplying over an extended period of time had stood alone. It was wrong to suggest that the additional penalty should be small. Sometimes it will be substantial. However the Court noted that the sentencing process is only concerned with the principal offence, not to determine appropriate sentences for matters listed on a Form 1 or to determine an overall sentence that would be appropriate for all the offences.
The Court stated that deterrence and retribution are entitled to greater weight than they may otherwise be given when sentencing for the primary offence and I add the words, "in appropriate circumstances". This is such a case. Of course it is rarely appropriate for a sentencing judge to quantify the effect of taking into account matters on a Form 1 and, of course, the Court is constrained by the maximum penalty for the primary offence as well as the principal of totality. I draw that principle to attention in the context of both the facts and certain evidence given by the prisoner.
To deal shortly with the facts, which are an agreed statement of facts, the police executed a search warrant at the home of, as I understand it, the prisoner's mother on 4 September 2014. They obviously had information relating to the activities of the prisoner. Another search warrant was executed simultaneously at an address at Forest Hill and the prisoner was present at that location. At the Forest Hill address he was in possession of a set of keys which police suspected were capable of opening containers and other items found at his mother's address.
One of the keys was able to unlock a padlock and what the facts describe as a large yellow container. Within the contents of that container were a number of items of jewellery, electrical items, power tools and computer ware and also a clear resealable plastic bag containing a quantity of white crystalline substance which was methylamphetamine. Police in searching his mother's premises found a 'Sentry' brand, as it is described, portable safe on the laundry floor. The prisoner's mother indicated that belonged to the prisoner. It was opened from another key on the set of keys seized from the prisoner at Forest Hill and inside that safe police located a large quantity of Australian currency, predominantly $50 notes, totalling $75,880.
Another resealable plastic bag was found inside containing a large quantity of white pills, the Methorphan and another quantity of the white crystalline substance, methylamphetamine. They also found other drugs in tablet form including further methorphan. A diamond ring was also located. Subsequent analysis showed the DNA profile obtained from the plastic bags was identical to the prisoner's DNA profile. Further searching located a white plastic bag containing a quantity of $100 notes underneath a chest of drawers in the main bedroom of the residence. The prisoner's mother denied any knowledge of the money. It totalled $60,100. All these items were taken back to the police station.
Initial enquiries by police revealed that one of the motorcycles found at the premises at Lake Albert, was stolen during a breaking, entering and stealing at Wagga in June 2014. A number of other electrical items and jewellery were also identified. Investigations are continuing in relation to those owners. Clearly they were not lawfully obtained by the prisoner. The prisoner participated in an electronically recorded interview with police and during this interview he made a number of admissions. He needs to understand that the sentence I would have imposed in relation to the principal offence would have been substantially greater within the ambit permitted by the maximum penalty, but not for the prisoner's willingness to admit and disclose criminality about which the police may not have had sufficient evidence.
He admitted possession of the methylamphetamine that was found in the premises. He also admitted that he had supplied what is described as "ice", otherwise known as crystal methylamphetamine, on numerous occasions between early 2013 and September 2014. I do not have his record of interview, but his evidence seemed to narrow that period of time down from what is described in the facts. So far as the pills in his possession he claimed he, "found them at a music festival in Sydney approximately 12 months before." He did not know if they were drugs as such but he formed the opinion that they may have been "ecstasy". That explanation given the number of pills is hardly capable of acceptance.
With regard to the cash totalling $135,980 however the prisoner told a straight out lie to the police. He claimed that it was part of a gift of $200,000 cash he received from a relative five years before. I point out that the facts reveal that in fact an enquiry of relevant relatives showed that he had been given loans by a man now deceased in 2010 and at a later time to help the prisoner run a lawn mowing business of $20,000 on each occasion. It transpires that the Crown is prepared to concede that $40,000 of the $135, 980 is not attributable to the prisoner's criminal activity. I have to accept that. Although one might think that it would be highly unlikely that if a person borrowed money for an ongoing business to keep it sustained that that money would still exist as a discrete quantity. But I am prepared to sentence the prisoner on the basis as the Crown pleads that $95,900 is the proceeds in the illegal supply of drugs.
I pause to point out that I have dealt with a number of drug supply matters in the last few days, some of which are awaiting sentence. But to have some measure of the significance of that sum of cash one may, for example, look at the quantities of cash admitted to have been received or proven to be received by drug suppliers in those other cases where people are receiving sums of $300 and $500, barely totalling in respect of particular cases more than a few thousand dollars.
In any event the goods in custody charge on the Form 1, relates obviously to property that had been stolen by, I am prepared to accept, other people but in the possession of the prisoner without much explanation from him as to how he came into possession of it. I pause to point out at this juncture that the prisoner gave evidence to me about his background and was cross-examined about matters relating to the cash. Little of his evidence-in-chief related to the circumstances of the offending save for the most cursory details. What the prisoner seemed to assert in the cross-examination, as I understand, it was that the cash in his possession belonged to others.
He gave no details of who those others were and no attempt was made either in re-examination or even in his evidence-in-chief to adduce further details in relation to this. He conceded that he was receiving packages, I take it, of money and, as I understand his evidence, in the thousands of dollars. He was holding the money and passing it on to other people. I would take it from what he said that he understood the cash he was receiving was related to the supply of drugs and that he was receiving and passing on drugs in the same way. Although I bear in mind his own confession of supplying drugs to others an extended period of time.
I believe his evidence in cross-examination on the matter was very much a case of 'confess and avoid' on his part. He made what I thought was a ludicrous suggestion that his supplies were limited to a couple of times a week and yet he was conceding his possession of the cash, as I noted it, arising from specific occasions of receiving cash in tens of thousands of dollars. He conceded in cross-examination he was not employed at the time.
The bottom line is the prisoner has not endeavoured, in fact he has made no attempt really save for what he volunteered in the course of the cross‑examination by the Crown, to really explain his criminality. The concessions he made in cross-examination, even accepting them at face value, reveal on the part of the prisoner that he was well-trusted by others to receive very substantial sums of money on his account to hold them for others in the context of what clearly was an involvement substantially in the supply of drugs. At the end of the day, whilst I am prepared to accept that he may have received sums of cash from others to pass to others, I am quite satisfied beyond reasonable doubt that the very substantial sum of cash in his possession related to drug supplies in which he was involved and I do not accept the detail of his explanation in relation to the possession of that cash.
That having been said that does not mean to say I do not accept the rest of the evidence given by him about his attempts at rehabilitation. There is overwhelming evidence from the rehabilitation clinic and from the pre-sentence report of the earnest endeavours the prisoner has undertaken to address his usage. I am prepared to accept that he was a user of prohibited drugs at the time of the offending. This is not a man involved in the drug trade solely for cold profit. I do not accept the suggestion in his evidence that the use of drugs rendered him incapable of really understanding the enormity of what he was involved in and I do not accept the evidence of his mother, if it was led for that purpose, to suggest that the criminality with which I am concerned is solely a consequence of the prisoner acting under the influence of drugs.
I accept that he was a drug user who involved himself in the drug trade in that context. But it is quite clear having regard to the way items were secreted and the way in which he had organised his affairs, such as they are revealed from the objective facts, the prisoner well knew what he was doing and had himself well organised to secrete the very substantial sums of cash that were in his possession.
With regard to the subjective case run by the prisoner I have accepted that he has made earnest attempts to undertake rehabilitation. The facts are that when he came into custody in relation to the current matters, which was at the time of his arrest on 4 September, he was in custody for what is now agreed to be 18 weeks and two days, referable to the current matters. He was released to the rehabilitation centre and as his counsel pointed out by reference to the records that are available from the centre he spent a total of ten weeks at the rehabilitation centre. As I have indicated to the offender, I am prepared to give him credit for 18 weeks and two days plus in effect a further eight weeks, less two days of the time that he was in the rehabilitation centre and thus commence the sentences that I impose six months from today.
That is a generous recognition of the quasi custody. I hasten to say that there is a judgment from Fullerton J in recent times suggesting that, in certain circumstances, up to 75% of the time spent in rehabilitation centre may be taken into account. Certainly there are many authorities that acknowledge that 50% of time in rehabilitation care is an appropriate recognition for custody purposes. The prisoner's progress at the rehabilitation program is confirmed in documents that have been presented to the Court in the prisoner's bundle. There is, firstly, a report that was prepared on the 28 January by an officer of the Australian Council on Alcoholism and Drug Dependence. The prisoner as I understand was an attendee at the Canton Beach Family Addictions Recovery Centre on the Central Coast.
He participated well in the program and there is considerable detail about its program, the random testing of the prisoner over a period of time and a great deal of history, some of which confirmed in the oral evidence, confirmed elsewhere in references and the like concerning the prisoner's relationship with his family and the circumstances in which the prisoner moved into drug dependency and drug use. One of the features of the evidence of the prisoner and the evidence of the mother through her oral evidence and the reference she wrote, as well as the reference of the prisoner's stepfather, is that it would seem, and I am not criticising the parents or the stepparent by any means, that because of the stepfather's involvement with the Australian Army and the requirement for him to travel away from Wagga and to be stationed at places like Townsville and the like, as well as the mother's need to be with her new partner, her second husband, the prisoner was largely left to his own devices for an extended period of time.
The prisoner was born on the 25 May 1988. He will be 28 years of age this coming May. It would seem as though from his mid-teens he was, as I said, largely left to his own devices, moving around living with others outside of his family. I am prepared to accept from all the material including the prisoner's evidence that he moved to the use of prohibited drugs and had been a regular user of prohibited drugs. Reference is made in the report from the rehabilitation centre to an "addiction". That it may have been. Certainly I accept he was heavily dependent upon prohibited drugs at the time of his offending and for some years before that.
I accept from the evidence of the prisoner and the observations of the mother and the report from the rehabilitation centre that his endeavours to address his addiction and his rehabilitation have been "exceptional". But for reasons I will outline in a moment, that of itself and other subjective circumstances, do not place this within the "exceptional" case. In any event the exceptional case about which counsel referred to which might warrant a sentence other than full time custody is a case where taking all relevant factors into account, the objective facts and the subjective facts, one could consider a sentence of two years or less. This is not that case.
Clearly that is so, giving the prisoner full credit for all the favourable subjective matters to which reference has been made. I accept for example the prisoner has largely tested negative to drugs in the context of screening whilst in rehabilitation custody. Although I note in that regard for example an analysis of him when he first came into custody revealed a positive test to amphetamine type substances. This may well have been a leftover from the time he was in custody.
The rehabilitation centre has provided a further reference to the Court effectively supporting the request that has been made by his counsel that I further adjourn this matter so the prisoner could have the benefit of a s 11 remand at least to finish the six month program that he has undertaken. I have taken note of the various matters raised in that report. There are some assertions of supposed fact that do not accord with the evidence. I could find no evidence for example that the offender has a "mental illness". I am prepared to accept that he may have had a substance abuse disorder that he may have had other matters within his background that have contributed to his history of offending and the like, but there is no conclusive evidence even in the psychological report produced by the prisoner of the mental illness.
One of the difficulties of course, according with the request made by his counsel, was if I was to adjourn the matter for a month and I am prepared to give him credit at this point that he would complete that rehabilitation over that period of months successfully, the bottom line would be he would still have to return to custody. In my view neither his purposes nor the community's purposes would be served by delaying what is clearly inevitable.
I must say it is somewhat surprising that he was granted bail, but having noted that he was granted bail I am prepared to accept whilst on bail he honoured the conditions of his bail. Particularly undertaking the rehabilitation program to which I have referred. I have taken that matter into account. In that regard I need to refer to his criminal history. This is not an offender who comes before the Court with no prior contact with the criminal law. Whilst his criminal history is not as serious as many criminal histories are that I see, he has got a criminal history that in a general sense does not entitle him to any particular leniency.
In 2006, he got the benefit of a s 10 dismissal in relation to having goods in personal custody suspected of being stolen. In August 2008, he committed the offence of dealing with proceeds of crime, for which he was fined modestly $500, and possessing a prohibited drug. He also was convicted for failing, or refusing, to undergo a breath test for which he was modestly fined. He has a conviction for possessing a prohibited drug in September 2009. I bear in mind any convictions for possessing prohibited drugs are entirely consistent with his use of drugs in the past.
He has convictions for destroying or damaging property and for assault occasioning actual bodily harm that were recorded in January 2013, for which he received, amongst other things, a s 9 good behaviour bond. He was convicted in taking part in the cultivation of a prohibited plant to with cannabis. Presumably an offence committed at the time of the matters with which I am concerned. Dealt with in the Local Court after his arrest in relation to the current matters on the 26 June 2015, for which he was placed on a good behaviour bond.
He has a special category driver, drive with special range PCA conviction in 2007. He has a conviction for an offence for which he was charged in May 2015, dealt with at the Local Court on the 26 June 2015 of stalking or intimidating a person with intent to cause that person to fear physical harm, for which he was fined $1,000. He was convicted of driving whilst disqualified in 2008 and placed on a community service order for 100 hours, which matter he was called up in relation to on 18 November 2008 and was ordered to pay a $800 fine.
He was convicted of driving whilst disqualified again in May 2008 and sentenced as I understand it to ten months imprisonment. That was suspended. It is a little unclear whether that relates to the other drive whilst disqualified matter. He has other convictions for damaging and destroying property in 2011 for which he was placed on a bond, possessing an implement or equipment for administering prohibited drugs and the custody of a knife in a public place for all of which he was fined.
He has a conviction for goods suspected of being stolen or unlawfully obtained for which he was placed on a two-year good behaviour bond arising out of the circumstances of his arrest, for which he was dealt with in June 2015. I go through the detail of it to point out that it is not serious criminality like that I am concerned, with but it does reflect a relatively persistent course of conduct involving breaches of the law for which he has received a variety of orders which have been, one would have thought, designed to promote his rehabilitation and have not.
A pre-sentence report from the Community Corrections Service confirms his attendance upon the rehabilitation centre and noted what he said in his evidence of his desire in due course to move to Nowra where his father lives. He has not had a happy relationship with his father and I have read in the psychological report to which I will come to in a moment that one of the matters that he raised in 2012 was his difficulties in working with his father who was very demanding of him and made him basically work from sunrise to sunset, in effect. But I accept the prisoner now is desirous in due course of going to Nowra and starting his life over again.
The very brief report from Community Corrections, dated the 20 January 2015, states that his current risk rating is assessed at medium, that he was frank in discussing his issues and he had some insight of the correlation of the use of illicit substances and his offending behaviour. That would be on the facts of this case self-evident. He said as he said before me that he was willing to undertake long range change and engage in appropriate interventions and these will be matters for the parole authority.
If I could just finish with the evidence that was led on his behalf, I make the general observation, and it is not a criticism of the evidence of the prisoner the evidence of his mother the references and other documents that I have received, that the material available to me very much focused upon, apart from some aspects of his character which are said to be positive, the progress of his rehabilitation. One of the things that needs to be understood by those concerned with this sentencing exercise, particularly the prisoner, is the fact that the rehabilitation of the prisoner is only one of a number of matters with which I am concerned.
The prisoner would know I am sure from discussions with his counsel, or should know now, that the 'purposes of sentencing' are varied. Sometimes they, as the High Court said in Veen (No.2) from 1988, point in opposing directions. The purposes of sentencing in this matter, in my view, require consideration for adequate punishment, preventing this prisoner and others from committing similar offences and protecting in part the community from the offender, because there could be no doubt that the prisoner's conduct has led to damage to other members of the community. His own plea of the effect upon him of the use of prohibited drugs, should reflect in his mind the effect upon other people within the community. Those people in the community, I hasten to say, that themselves are not dealing in drugs and making considerable sums of money from the activity.
I am required to promote his rehabilitation, make him accountable for his actions, denounce his conduct and recognise the obvious, from his evidence, harm the supply of drugs to others would do. Although I have no specific evidence of that. In this context, as I said earlier, I accept what has been written by his mother and said by his mother about his progress. I accept the evidence she has given of the disruption to his life which may have had an impact upon his conduct leading to the situation we are in at the moment, dealing with him for these crimes.
I have taken into account the evidence of his partner and she speaks very positively of him and speaks of the attempts made by him to repair his life, the insight he has gained, the renewal of relationships with his family and the "massive steps" that he has taken. I am mindful of the evidence she gives and the evidence he gives about the effect upon him of the death of his "best friend" from what appeared to be a "suicide". One which the prisoner in his oral evidence before me suggested was something more sinister. That having been said, the death of his friend did not cause him to desist from involvement in a trade where violence against others as part of the machinations of drug supply can occur. Which seemed to be implicit in his own evidence.
It may be that his drug usage increased after the death of his friend. But he was already a drug user and by his own confession was already deeply involved in the supply of prohibited drugs. On his own account in his confession to police, the death of his friend did not tip him into offending. I point to these matters which I accept relating to the positive things said about him to just highlight the fact, as I said earlier, that the progress of his rehabilitation is not the only thing with which this Court is concerned.
This brings me back to the psychological report. The psychological report was prepared for other proceedings which appear in his criminal history. But it is tendered, I assume, to reflect a relevant history and a state of affairs that could be seen as pertinent to the matters with which I am concerned, being offences committed as I said in September 2014. I accept that he has had a diagnosis in the past of Attention Deficit Hyperactivity Disorder, ADHD, and did receive both counselling in relation to that and medication, particularly Ritalin, which he used for six months. Ritalin is well known to having adverse effects on children.
Previous intelligence testing revealed him as a teenager, or as a child, to have an average IQ. With regard to the testing of the psychologist, she undertook a detailed assessment of what was described as post-traumatic stress symptoms. I hasten to say, I am loath to say it in a public place, but it has to be said, part of his claim of symptoms relating to post-traumatic stress disorder related to what he claimed to be abuse suffered at the hands of his stepfather from the age of seven to 15. Which stepfather that is I do not know.
It is revealed in 2012 that there were elevated scores suggesting the prisoner had been subjected to past traumatic events and had symptoms of post-traumatic stress disorder. His negative score was elevated to the extent, however, that the protocol applied must be considered invalid. It may be that that is the prisoner's endorsement of very unusual experiences as a result of his chronic substance abuse. But whether this is so cannot be verified. What that means I suspect is that it may be that his recollections have been clouded by his drug use.
Ultimately the "diagnosis" of the psychologist in 2012 was essentially a background of Attention Deficit Hyperactivity Disorder and a history of cannabis abuse. She also identified as what she described as an 'Axis II disorder - Antisocial Personality Disorder', that is a failure to conform to social norms with respect to lawful behaviours, impulsivity and a failure to plan ahead, consistent irresponsibility and lack of remorse on occasions. Although I accept the prisoner has expressed remorse here.
She said that the prisoner should receive further attention to his background of ADHD and receive psychological counselling. He should engage in a detoxification program, which he has already undertaken. He needs psychological counselling to deal with his personality issues, particularly characteristics of "irresponsibility, lack of remorse, impulsivity, empathy and failure to conform with social norms". This was in 2012.
Now many of those things are quite negative of the prisoner I accept that and I temper my assessment of that matter by regard to the fact that the report was prepared three or four years ago. But it was produced by his counsel. The matter of sentencing the prisoner to the current offences might be seen by reference to long standing authority to which reference was made in the course of submissions, part of which I propose to refer to now. It has long been held by the courts, superior courts and those that apply the judgments to the superior courts such as my Court, that those who are substantially involved in trafficking of drugs should receive a fulltime custodial sentence unless there are exceptional circumstances. The position is worse when there is a profitable commercial exploitation, but trafficking alone in any substantial degree should normally lead to a custodial sentence. So said Hunt J in the decision of R v Clark from 1990. As is well known at the bar table, there are many decisions now available to the Court that reflect upon this general proposition and confirm it and refine it in a range of ways.
Amongst those decisions are decisions such as R v Gipp [2006] NSWCCA 115, R v Gu [2006] NSWCCA 104, R v Carrion (2000) 49 NSWLR 149 and Fayd'herbe v R [2007] NSWCCA 20, all decisions of the Court of Criminal Appeal which in their various way encapsulate that general proposition that I have outlined. I am mindful of the fact that Adams J in Fayd'herbe v R, reflecting upon the type of activity that might give rise to a finding of trafficking to a substantial degree, noted the concern he had about rigorous rules relating to sentencing exercises where individual discretion must be exercised. But nobody could argue in this case, based upon the prisoner's admissions, the objective evidence from the search and other factors, that the prisoner was not substantially involved in drug trafficking.
I referred counsel to the decision of Polley v R [2015] NSWCCA 247, a very recent decision. In that particular judgment the Court examined primarily what is to be regarded as "exceptional circumstances". My understanding of the submissions of Mr Barron was to suggest to me that the progress of the rehabilitation of the prisoner and other matters particularly as I would understand them subjective matters, amounted to exceptional circumstances. In that decision the Court reiterated what had been said in the decision of R v Carrion.
Their Honours said in that decision that the sentencing judge,
"… listed two groups of matters, which he categorised as commonplace and exceptional. In the former category he included the guilty plea, remorse and intention not to reoffend and proven rehabilitation in relation to the respondent's own drug use".
All those matters apply here I hasten to say.
In the latter category he specified five matters which he considered were all relevant to the relationship between the respondent and his brother, their shared institutional history, the influence of his brother, his fears of going to gaol arising out of the belief that he was a selected victim for a fate similar to his brother who was murdered after his return to prison, some reluctance of the prisoner to be involved in the offending behaviour and the fact that another man, a well‑known figure in organised crime, had preyed upon his brother to recruit him into the enterprise.
The Court of Criminal in that matter found that none of those five matters were exceptional. Whether taken individually or in combination. In that decision the Court referred to other decisions where a person's addiction to drugs, the affect upon their health, the absence of criminal history, the good prospects of rehabilitation, the unlikeliness of the prisoner reoffending and the fact the prisoner was in employment at the time of sentence, pleading guilty at the first opportunity and showing remorse were not 'exceptional' circumstances. In rejecting those combination of matters as exceptional the Court said:
"As this Court has repeatedly emphasised, when sentencing offenders who have supplied drugs to any significant degree the general principle is that the imposition of a fulltime custodial sentence is necessary to reflect the need for general deterrence even when the quantity of drugs involved reduces the objective seriousness to below the mid-range and that only in the exceptional case, where the applicant's objective circumstances can be shown to mitigate the objective gravity of the offending in such a way as to distinguish it from the general run of cases, will a non-custodial sentence be appropriate".
Here the seriousness of the criminal conduct in relation to the supply matter between 2013 and 2014 must be seen at least in the middle range of objective seriousness, a term that does not need to be utilised because here there is no standard non-parole period. Thus, it can be seen that where we are dealing with an offender who may have made remarkable steps in his rehabilitation, who has expressed contrition, who has pleaded guilty at the first reasonable opportunity, who has revealed his criminality to police beyond what they already knew, but who also comes forward with a criminal history that does not entitle him to any particular leniency and with really no explanation for his involvement in this criminal activity other than the fact that he was a user of drugs and dependent on drugs.
I do not accept for one moment that his sole involvement in the supply of drugs was to find money to obtain drugs for himself. That does not explain him dealing with $97,000 in the proceeds of crime. Thus it comes to pass in the context of those general principles, allowing for the need for individual discretion to be exercised, taking heed of the purposes of sentencing, giving credit for what could be called the "Ellis discount" which need not be quantified, and fixing obviously a discount of 25% upon each individual sentence to represent the utilitarian benefit of the plea of guilty that the Court must in sentencing the prisoner settle upon a sentence obviously greater than two years imprisonment.
I am required to have regard to s 21(A) of the Crimes (Sentencing Procedure) Act 1999. In my view ultimately I would conclude that the regular supply of drugs was clearly committed without regard for public safety. The prisoner obviously committed the offences, particularly the primary or principal offence, for financial gain. I am not prepared to conclude that his criminal history is itself an aggravating factor. The prisoner himself has indicated that this criminal activity involved other people. He has not named them and he has provided very bare details about them. But, on the other hand, although I will not conclude that it was planned or organised criminal activity, the facts of the matter are that drug dealing on this scale obviously must involve other people. But is not a feature such as to warrant a finding of an aggravating circumstance.
There is plenty of authority to point out that the supplying of drugs to others in the community is activity that is done by a persons without regard for public safety. With regard to mitigating factors, the particular mitigating factors I am prepared to conclude are that having regard to the progress of his rehabilitation I am prepared to find at this point of his life that he does have good prospects of rehabilitation. Notwithstanding the circumspection of the Community Corrections Service, having undertaken the rehabilitation program, given the support of his family, and as he is more forthcoming than he was in the past he is unlikely to reoffend.
He clearly cannot have findings made in his favour about his character. I am not prepared to find it is a mitigating factor that the offence was "not part of a planned and organised criminal activity". But I cannot find that as an aggravating factor beyond reasonable doubt either. His plea of guilty is a mitigating factor and I am prepared to accept as a mitigating factor that the prisoner has shown remorse. I am prepared to accept that he has taken responsibility for his actions. I am prepared to accept that he has shown that responsibility through his plea of guilty to each charge, his willingness to cooperate with the prosecution of him and of course the disclosure of criminal activity to police that I have already commented upon earlier.
Again, I come back to a point I have already made that whilst there is much favourable material particularly from his family and from the rehabilitation centre that material is only part of the picture and there are a number of other factors required to be taken into account. With regard to the issue of whether he committed offences while subject to conditional liberty he was subject to a 'field' Court Attendance Notice as I understand it in relation to the cultivate prohibited plant offence, but not formally subject to bail conditions, nor subject as I would understand it to parole. In fact the prisoner has never previously been sentenced to a term of imprisonment requiring parole conditions that he was obliged to honour.
With regard to the submissions of the parties obviously I have taken into account what Mr Barron has put to me, because many of the things that he has submitted I have either accepted or dealt with in the course of these remarks on sentence. I do not mean this unkindly of Mr Barron's great skill, but to come to this Court in the circumstances of this case and to suggest to the Court that the Court could impose a term of imprisonment of two years or less for the totality of the criminality is optimistic. I am not suggesting the asking for a s 11 remand even for a short time was necessarily optimistic, but it seemed not practical so to do. The Crown's point was that there was trafficking to a substantial degree. There were no exceptional circumstances and it was a matter where the Court would impose a term of imprisonment.
I am required to have regard to the totality of the criminality and in that regard I note what was said by the High Court in the majority in the decision of Pearce v R [1998] 194 CLR 610, particularly [45]. In that regard I propose to reflect some concurrency between sentences. Clearly the drug supply offences have a close relationship with the principal offence that is the supply over an extended period of time, taking into account matters on the Form 1.
But when taken together the three sentence matters will reflect a totality of criminality that requires a greater sentence than if Sequence 1 had stood alone. In that regard the sentences will be structured accordingly. I have not used Polley of course as a comparative case. No one case can be comparative. In sentencing the prisoner I have endeavoured to bring my experience in sentencing people over 15 years and sentencing many, many people for various types of drug supply offences.
It is to be borne in mind in relation to Mr Polley that he was ultimately sentenced to two concurrent sentences of two and a half years, with a non-parole period of one year and three months. He was 20 years of age. He had little criminal history and he was found in possession of $750. He was found in possession of 174 pills, which comprised 109 pills containing MDMA and 65 of methylamphetamine. This was the equivalent of 30.7 grams of MDMA and 20.36 grams of methylamphetamine. The purity of the MDMA was 19.5% and that of the methylamphetamine was 4%. Some number of text messages on his phone suggested that he was dealing with other offenders.
It can be seen, in the context of the Court of Criminal Appeal determining on the facts of that case that that was an appropriate sentence, that in sentencing this prisoner I believe I have given full weight to the positive matters, the favourable matters arising out of the subjective circumstances of the prisoner and recognition of his Ellis type cooperation with the authorities.
I am sorry to keep you Mr Lowe, but there are many matters a judge is required to address otherwise people complain that I have not addressed all the relevant matters.
In relation to the Sequence 2 offence you are convicted. You are sentenced to 18 months imprisonment. That sentence will date from the 11 August 2015 and on my calculation will expire on the 10 February 2017. In relation to the Sequence 12 offence you are convicted. You are sentenced to two years imprisonment, from the 11 August 2015. That sentence will expire on the 10 August 2017.
In relation to the Sequence 1 offence, taking into account the matters on the Form 1, you are convicted. You are sentenced to a non-parole period of two years. That will date from the 11 February 2016 and expire on the 10 February 2018. In relation to that sentence I fix a balance of sentence of two years, six months. Thus you will subject to parole for a maximum of two years and six months. Whether you are released - you can take a seat - whether you are released to parole would be a matter for the Parole Authority.
The total sentence I have imposed is five years imprisonment. The non‑parole period is two years and six months.
I have made a finding of 'special circumstances'. I have determined having regard, notwithstanding to your progress in your rehabilitation that you need an extended period of supervision to assist you in your rehabilitation and also to assist the community, because the truth of the matter is that people who are rehabilitated and people are rehabilitated after serving time in custody or outside of custody, notwithstanding the fact they commit serious crimes. In that regard I note what was acknowledged in R v Blackman and Walters, [2001] NSW CCA 121, as to the benefit to the community of promoting the rehabilitation of offenders.
I also acknowledge in the sentencing of you what was said about the relationship of mental disability to varying degrees in sentencing to consideration of matters of general and personal deterrence, circumstances of custody and the like. I have got no concrete evidence that your background of ADHD is a relevant matter concerning the circumstances of your custody. But I do acknowledge that it must have contributed, at least in the past, to your conduct, even leading to your attraction to prohibited drugs, either directly or indirectly. But overall, even giving it some weight in the measure of general deterrence particularly, it is not a matter of significance as other mental disabilities may be. Certainly no evidence is before me of a direct causal connection.
I am mindful of the fact that McClellan CJ at CL in DPP (Cth) v De La Rosa [2010] NSWCCA 194, conceded that a relevant mental illness or a disability may not necessarily be, to use his Honour's words, "a major illness". But, as I have said, there is no evidence of a mental illness in your case. I am prepared to accept the presence of ADHD as a form of mental disability. The problem of course with ADHD is that there are people in custody who act compulsively and commit serious crimes of violence and the like, who have been diagnosed with that condition in the past. This may require greater weight upon personal deterrence.
Yes, thank you any technical matters Mr Crown?
CROWN PROSECUTOR: Yes. Sequence 7 and sequence 8 to be withdrawn. They were on a 166. They were backup charges and a drug destruction order.
HIS HONOUR: All the backup charges in the s166 are withdrawn and dismissed. Any matters from you Mr Barron?
BARRON: No.
HIS HONOUR: Do you understand the sentence Mr Lowe?
OFFENDER: I'm a bit confused.
HIS HONOUR: What are you confused about?
OFFENDER: Just - just you said a lot - a lot of times. I just wasn't sure exactly--
HIS HONOUR: The total sentence is five years imprisonment. It's backdated to August last year and you've got a non-parole period of two years and six months and as I would calculate it that non-parole period will expire on the 10 February 2018. You will be eligible for release to parole on that date. Whether you're released on parole on that date will be a matter for the Parole Authority. What don't you understand about that?
OFFENDER: No, it's all right, I didn't understand it. I couldn't believe it that's all.
HIS HONOUR: You're excused thank you very much. All right, thank you Mr Crown. Thank you Mr Barron for your assistance. Thank you to all the Court staff for staying back. I am sorry to have kept you back so late I apologise. We adjourn thank you.
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Decision last updated: 22 February 2017