R v Lynch

The sentence hearing

1. The sentence hearing took place on 28 June 2019. The Crown Sentence Summary became Exhibit A. It included a Statement of Agreed Facts which may be summarised as follows.
2. On 26 May 2017 at 7.30pm, police observed a motor vehicle parked opposite a known drug house in Sutherland. They observed the vehicle's driver's side door open and observed the accused in the driver's seat. He appeared to be leaning forward in his seat and "shuffling around". Police approached the accused, who appeared "nervous and was visibly shaking". They observed on the front passenger seat and centre console numerous $50 notes strewn, as well as two mobile phones and an opened beer. When asked if he had consumed any alcohol, the accused replied he had "just started a beer". When asked if he had taken any drugs, the accused replied, "No, not since last weekend. I got drug swiped last Friday and it went positive." When asked why he was parked at the location, the accused replied that he was charging his phone.
3. The police conducted a search of the accused and in his left pocket found two clear resealable plastic bags. One bag contained a white powder found to be cocaine, and the other bag contained two bar-shaped tablets, found to be Xanax. When asked what the drugs were, the accused told the police they were "coke and Xanax", and that he had paid $300 for the drugs. When asked if there were any other items in the vehicle, he replied, "not that I know of".
4. The vehicle was then searched with the assistance of a drug-detection dog. That dog indicated Australian currency in the centre console totalling $395. In the driver's foot well, it indicated a headphone case which, when searched, revealed the following: 1. A set of scales; 2. Numerous empty small resealable plastic bags; 3. A medium size resealable plastic bag with empty capsules; 4. Four resealable bags containing a brown coloured rocky substance (MDMA); 5. A resealable bag containing an off-white powder (ketamine).
5. Also found in the vehicle was a black casing containing a black coloured electronic controlled device known as a taser. The accused was cautioned and when asked about the taser, he said, "it's been there for a while" and that he had gotten it from "like Bali or something".
6. When asked whether there was anything more on his person, the accused told police he had some cash "down my pants". A total of $1,100 in $50 denominations was found within his underwear. When asked why the money was located there, he replied, "to keep it safe".
7. The offender made the following admissions to police during his interview: 1. Two bags were located in his left short's pocket; 2. The two bags contained coke and Xanax, which both cost $300; 3. He was the owner of the motor vehicle; 4. The money found in the centre console of the vehicle totalling $395 was his pay from work for the day; 5. Inside the headphone case was located MDMA and ketamine, as well as scales and empty capsules, which he intended to use; 6. He bought the MDMA to give to his friends.
8. Subsequent testing of the drugs identified the following substances and weight: Exhibit No. ending in 17636 - being 3,4-Methylenedioxymethlamphetamine 3.44 grams (crystalline substance) Exhibit No. ending in 176272 - 3,4-Methylenedioxymethlamphetamine 2.69 grams (crystalline substance) Exhibit No. ending in 176283 - cocaine 0.38 grams (powder) Exhibit No. ending 176374 - ketamine 0.12 grams (powder) Exhibit No. ending 17626 - alprazolam 0.52 grams (2 tablets)
9. Analysis of the taser revealed as follows: "The UNKNOWN manufacture hand-held defence or anti-personnel device with combination torch … is in working order and is designed to administer an electric shock on contact. The exhibit consists of a black plastic housing, approximately 100mm in length and it is fitted with two static contacts electrodes that are pushed against the target by hand movement of the operator. The firing switch is then activated which discharges an electrical current through the target. An electric arc is clearly visible between the pairs of electrodes and a loud noise can be heard when this switch is activated. The weapon was a prohibited weapon as described in Clause 2 (18) of Schedule 1 of the Weapons Prohibition Act 1998."
10. Police sealed two mobile phones on which they observed text messages of conversations with three people on 26 May 2017 related to the supply of prohibited drugs.
11. Exhibit A included the criminal antecedents of the offender, which included the following history: 6 March 2014 - wilful and obscene exposure in/near public place/school - s 10 bond 3 months 30 July 2015 - possess/attempt to proscribed restricted substance - s 10 bond 12 months 22 September 2016 - possess/attempt to, proscribed restricted substance (call up) fined $250 22 September 2016 - possess prohibited drug - fined $600 5 October 2017 - two charges of possess prohibited drug - fined $500 on each 12 October 2017 - drive vehicle with illicit drug present in blood - fined $500, disqualified 6 months 19 November 2017 - drive with high range PCA - first offence - Community Correction Order 9 months commencing 11 March 2019
12. Exhibit A also included a Sentencing Assessment Report under the hand of Maria Popova dated 19 June 2019. The offender was interviewed for the purpose of that report in custody, where he continued to receive treatment for injuries he sustained in the motor vehicle accident in January 2019. The author noted that the offender had left school in year 9 and completed a motor trimming apprenticeship and had a gainful history of employment up until his arrest. Under the heading "Attitudes", she recorded that the offender indicated he was involved with a criminal peer group, he was using drugs and selling them to his friends for extra money, "a behaviour he rejected as drug dealing". He was financially motivated as it supported his lifestyle of choice at the time, being drug taking and gambling.
13. Under the heading "Substance Use", the offender indicated that he would smoke methamphetamines "a couple of times per week". In June 2017, he was accepted onto a MERIT program, however, he breached that program due to attending only six of 12 sessions. In June 2018, he successfully completed a 20 hour sober driver program as a component of his Community Service Order.
14. The offender agreed to an intervention plan, however, he does not have a good record of treatment compliance, having previously prioritised employment above his legal obligations. He had a poor record of a recent participation in a Community Service work condition. Further, since January 2019, he has suffered ongoing health problems following a serious motor vehicle accident.
15. The offender was assessed as a medium risk of re-offending. The following supervision plan was noted: 1. Referral to the EQUIPS Foundation. 2. Assessment and treatment by Sutherland Drug and Alcohol Services. 3. Engagement in program intervention exercises aimed at his addictions, environment and to promote a pro-social lifestyle. He was assessed as unsuitable to undertake Community Service work.

The accused's evidence

1. The accused gave sworn evidence. He was currently in Long Bay Correctional Centre Hospital as a result of the injuries suffered in the motor vehicle accident in January 2019. He was born in December 1992 and is 26 years of age and single. He left school at 14 years of age and completed an apprenticeship in motor trimming and was employed in that capacity for a period of seven years. He then worked for a labour hire company as a hoist operator for 18 months, following which, he worked in air-conditioning installation for a period of 12 months, which ceased at the end of 2018.
2. At the time of his arrest, he had a drug problem, but was also gambling. The sale of drugs funded his addiction for drugs and gambling. His drugs of choice were MDMA and cocaine. He mainly consumed those drugs over weekends so that they did not affect his ability to work.
3. In the motor vehicle accident in January 2019, he suffered a fractured spine and internal injuries, requiring the removal of part of his bowel, together with an injury to his heel. He still suffers back soreness at times. Since his arrest in January 2019, he has not consumed drugs and has no desire to use them at all, nor gamble. The offender gave evidence that custody "has been good for me". He gave further evidence as to the matters reported in the Sentence Assessment Report as to his poor compliance record with previous orders.
4. The offender gave evidence that the ketamine and alprazolam found by police were for his personal use. He gave further evidence that he had forgotten about the taser in his car. He regarded it as lost because he could not find it and it must have been in the vehicle for "a couple of weeks". He gave evidence that he had no intention of doing anything with it.
5. The offender had not had the opportunity to engage in any courses whilst in custody. As to his release at some time in the future, his hope and desire was to continue working, and to have a family. He had no intention of being involved in drugs or gambling.
6. The offender gave evidence of his family circumstances. He had a good relationship and support from his mother, who was present in court, and also from his father. He had an older sister, and a younger brother and sister and had good support from them, which he expected to continue on release.
7. The offender gave evidence of his remorse for his offending. He said: "It was stupid and I regret my actions. It has stuffed up my life. I regret everything."
8. In cross-examination, in response to the author's report that he had rejected drug dealing as an explanation, the offender gave evidence that he could not remember what he had told the author of the Sentencing Assessment Report, or about his rehabilitation treatment. He confirmed that he had forgotten about the taser. Notwithstanding that he could not find it, he agreed that the police had found it easily. He had never applied for a permit to use it.
9. Finally, in saying he was very sorry and that he regretted everything, he had learnt a big lesson. Subsequent to the sentence hearing, the offender tendered a letter from his mother (Ex 1). It set out some tragic circumstances in his life which affected the offender, and spoke of his profound regret for his criminal conduct.

The Crown submissions

1. The Crown relied on a thorough written outline of submissions which set out general principles of sentencing for drug supply offences. It set out the need for general deterrence as being significant, and submitted that the objective seriousness of both sequence 6 (supply prohibited drugs) and sequence 7 (possess or use a prohibited weapon without permit) fell below the mid-range of offences of their type.
2. The Crown submitted that it was open for the court to find that the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 ("CSPA") had been crossed and that having considered all possible alternatives, no penalty other than full time imprisonment was appropriate.
3. The Crown submitted that the subsequent offence with which the offender has been charged does not amount to an aggravating factor under s 21A(2) of the CSPA, however, the court could take the matter into account when considering the offender's prospects of rehabilitation.
4. The Crown conceded that the offender was entitled to a utilitarian discount of 25% for the plea of guilty he entered to each charge in the Local Court prior to Committal.
5. The Crown submitted that the court would be concerned that the offender's prospects of rehabilitation, given the lack of remorse outlined in the Sentencing Assessment Report and his poor compliance history, both with treatment programs such as MERIT and Community Service Orders.
6. Finally, the Crown respectfully requested a drug destruction order at the conclusion of the proceedings.

The offender's submissions

1. Counsel for the offender submitted that it was the drug and gambling addictions suffered by the offender which provided his motivation to offend, to finance his lifestyle. It was submitted that he did not know he needed a licence for the taser, and the court would take into account that there was no evidence that it had been used.
2. Counsel accepted the Crown submission that in respect of each charge, the objective seriousness fell below mid-range. The offender was 24 and a half years of age when apprehended and was therefore still a young man. He had undergone positive rehabilitation since, comprising the five and half months he had been in custody since January 2019, during which he had consumed no prohibited drugs. Further, whilst there was no courses available to him in the hospital, he would have taken any courses that had been available. He disagreed with the outline of his lack of compliance with the MERIT program and Community Service Orders.
3. Counsel also relied on the offender's evidence of his remorse. The court would accept his evidence that he believed drugs had "stuffed up his life".
4. There was no issue that the offender was entitled to a utilitarian discount of 25% on sentence for his early plea of guilty. He had good family support and future prospects for work. It was submitted that a non-custodial sentence would be appropriate, however, if a custodial sentence was imposed, that sentence should commence from 12 January 2019.

Submissions in reply

1. In submissions in reply, the Crown submitted there would be serious concerns about the offender's prospects of rehabilitation, given his history of non‑compliance with court orders and the MERIT program. His subsequent offending had been drug-related and a full-time custodial sentence was appropriate.

Determination

1. 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."
2. The objective seriousness of the offending in sequence 6, supply prohibited drug, namely greater than the indictable quantity, (6.13 grams of MDMA) is below the mid-range for an offence pursuant to s 25(1) of the DMTA. It still constituted serious offending. The trafficable quantity for that drug is 0.75 grams, and the indictable quantity is 1.25 grams. Therefore, the amount of the prohibited drug fell just under five times the indictable quantity. The role of the offender is also an important consideration in assessing the objective seriousness of the offending. The presence of the set of scales and other indicia of drug supply, including the two mobile phones, is relevant to assessing that role and indicates that the offender was dealing to a substantial degree. The objective seriousness is therefore in the upper end of the low range for an offence pursuant to s 25(1) of the DMTA.
3. Whilst the objective seriousness of the offending in sequence 7, possess or use a prohibited weapon without permit (taser), was also below the mid-range for an offence pursuant to s 7(1) of the WPA, it still constituted serious offending. Whilst there is no evidence that the taser had been used, its presence in close proximity to quantities of drugs and indicia of drug supply, lead inevitably to a rational inference that it was connected with the offender's drug supply activities. I do not accept the offender's evidence that he merely forgot about it, that it was lost and he could not find it, as the police found it easily. I further reject his evidence that he had no intention of doing anything with it, as being implausible.
4. The objective seriousness of the offending in respect of sequence 7 was clearly serious offending within the upper part of the low range for an offence pursuant to s 7(1) of the WPA.
5. General deterrence is important in sentencing for both drug supply matters and offences pursuant to the WPA. A clear message must be sent to like‑minded members of the community that Parliament has proscribed severe penalties for such offences, and that the courts will impose lengthy custodial sentences where the circumstances warrant it for such offences.
6. Specific deterrence is also important here, particularly given the offender's criminal antecedents, which included offences of possessing prohibited drugs, driving a vehicle with illicit drugs present in his blood, and other drug-related offences. His criminal antecedents disentitle him to leniency in sentencing, but are also relevant to the question of specific deterrence. The offender must understand that if he continues to offend in this way, the courts will impose increasingly more severe sentences on him for his criminal conduct.
7. It is common ground that the offender is entitled to a utilitarian discount on sentence of 25% for his early plea of guilty. He has asked to be taken into account on a Form1, four further charges. Three of them are for possession of prohibited drugs and the fourth involves dealing with proceeds of crime, namely, $1,100. There must be some accumulation in the sentence for sequence 6 as a result of these offences. I have certified that I have taken them into account on sentence.
8. Whilst the offender was relatively young at the time of this offending (24 years), he had already been sentenced for a number of drug-related offences. His relative youth therefore has little weight in the sentencing process here.
9. I intend to sentence the offender by way of an aggregate sentence pursuant to s 53A of the CSPA. Before I do so, I must set out the indicative sentences for each offence, having regard to the matters set out above, including the 25% discount on sentence. This is to provide transparency in the sentencing process.
10. The indicative sentences are: Sequence 6 - supply prohibited drug > indictable quantity (6.13 grams MDMA) - 2 years and 3 months imprisonment Sequence 7 - possess or use prohibited weapon without permit (taser) - 15 months imprisonment
11. It is clear that in aggregating the sentence, the principle of totality applies, and there must be some accumulation of sentences. Any aggregate sentence must be "just and appropriate" to the totality of the offending behaviour. In R v Van Ryn [2016] NSWCCA 1, the Court of Criminal Appeal had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with proper regard to the totality of the criminality involved: "[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows: The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently, a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation, a sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences."
12. The Court went on to emphasise the need to maintain public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 at [27]: "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 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 what 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 two offences. 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."
13. In JM v R [2014] NSWCCA 297 the Court of Criminal Appeal set out the relevant principles to be applied in arriving at an aggregate sentence - see also Berryman v R [2017] NSWCCA 297. It is important that the aggregate sentence arrived at reflects the totality of the criminality involved.
14. I have taken into account that the offender was granted bail for these offences, and but for his subsequent offending, would not be in custody. The only relevance of that offending could be related to an assessment of his prospects for rehabilitation. That assessment must be somewhat guarded, given his previous drug-related offences, together with a history of poor compliance as set out in the Sentencing Assessment Report. However, the offender has had little access to treatment programs in the past. Further, he has been abstinent from prohibited drugs since he has been in custody since January 2019.
15. I intend to sentence the offender to an aggregate sentence of 2 years and 6 months imprisonment.
16. Counsel for the accused has advocated a non-custodial sentence be imposed here. That could only be by way of an Intensive Correction Order pursuant to s 7 of the CSPA. In determining whether an ICO should be imposed, s 66(1) of the CSPA makes "community safety" a paramount consideration. In R v Pullen [2018] NSWCCA 264, the Court of Criminal Appeal said at [84]: "The concept of community safety as it is used in the Act is broad. As s 66(2) makes plain, community safety is not achieved simply by incarcerating someone. It recognises that in many cases, incarceration may have the opposite effect. It requires a court to consider whether an ICO or a full-time custodial sentence is more likely to address the offender's risk of re‑offending. The concept of community safety as it is used in the Act is therefore inextricably linked with considerations of rehabilitation. It is of course best achieved by positive behavioural change and the amendments recognise and give effect to the fact that, in most cases, this is more likely to occur with supervision and access to treatment programs in the community."
17. Section 66(3) requires the court to consider the purposes of sentencing as set out above in s 3A of the CSPA. In this case, in assessing community safety, the subsequent offending by the offender in what was a further drug-related offence, is relevant. Also relevant is his criminal history, which disentitles him to leniency. For those reasons, I am persuaded that the threshold in s 5 has been crossed and, in the interests of community safety, no penalty other than imprisonment is appropriate. I do, however, find that there are special circumstances here based on the offender's drug and gambling addictions, his relative youth and need for ongoing assistance on his return to the community. I therefore intend to vary the usual ratio between head sentence and non-parole period pursuant to s 44(2) of the CSPA. I intend to impose a non-parole period of 15 months, to date from 12 January 2019.

Orders

1. I make the following orders: 1. You are convicted of the following offences: Sequence 6 - supply prohibited drug greater than indictable quantity (6.13 grams MDMA) pursuant to s 25(1) of the Drug Misuse and Trafficking Act 1985. Sequence 7 - possess or use a prohibited weapon without permit (taser) pursuant to s 7(1) of the Weapons Prohibition Act 1998. 1. I have certified that I have taken into account the matters on the Form 1. 2. I have found special circumstances pursuant to s 44(2) of the CSPA. 3. I sentence you to a non-parole period of 15 months to commence on 12 January 2019 and to terminate on 11 April 2020. 4. The balance of sentence will be 15 months from 12 April 2020 and terminating on 11 July 2021. 5. Sequence 3 - possession of prohibited drug (6.13 grams MDMA) is withdrawn and dismissed. 6. I order that the drugs the subject of the charges be destroyed.

Amendments 12 July 2019 - Para 1 (2) "with permit" changed to "without permit" 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: 12 July 2019