R v Marshall

The police investigation

1. In March 2020, police investigators in the Tuggerah Lakes initiated Strike Force Harle and, at the same time, officers in Tamworth commenced Strike Force Kunderbung. Both initiatives were targeting the supply of the prohibited drug methylamphetamine, or 'ice'. Strike Force Harle was directed to the Central Coast; Strike Force Kunderbung was directed to the Tamworth area.
2. The co-offenders Hanrahan (and another co-offender not now before the Court for sentencing, Brooks) operated from the Tamworth area.
3. The co-offenders Scott, Cummins, Neale and Marshall (and another co-accused not now before the Court, being Weis, and a co-accused, Carruthers) were identified as operating from the Central Coast area.
4. As part of the police operations, police lawfully intercepted mobile telephone services used by the offenders, Hanrahan, Scott, Cummins and Marshall.
5. I will now address the roles of the co-offenders who will shortly be before the Court for sentencing.

Marshall

1. Marshall lived on the Central Coast. He sourced quantities of Methylamphetamine from an upline supplier in Sydney. He supplied quantities (between 2-6 ounces) of Methylamphetamine to Hanrahan in Tamworth, by utilising Cummins, Scott and Carruthers, to deliver the drug to Hanrahan and to collect the payment for the drugs.
2. Marshall repeatedly urged and tried to arrange for Scott, Cummins and Carruthers not to travel at night, so as to avoid travelling during 'RBT' times and avoid sending the same car to Tamworth, two days in a row, to avoid suspicion and police detection.
3. Marshall and Cummins arranged for Cummins and Carruthers to have 'paperwork' and other work-related reasons, or cover stories to be in the Tamworth area, to deflect suspicions as to their reason for travelling.
4. Marshall also supplied Methylamphetamine on the Central Coast, again, using Carruthers and others to deliver drugs and collect the payment.
5. On two occasions Marshall used (co-accused) Weis to collect methylamphetamine from the upline supplier in Sydney. Weis travelled to Sydney, collected the drugs and brought them to Marshall on the Central Coast. Weis' payment was that he had his drug debts to Marshall reduced by $800 to $700.

Hanrahan

1. Hanrahan bought and received Methylamphetamine from Marshall (delivered by various couriers), for the purposes of supply, including to another co-offender not now before the Court (Brooks).

Neale

1. On two occasions, Marshall used Neale to collect Methylamphetamine from the upline supplier in Sydney and bring it back to him on the Central Coast. Neale also supplied Methylamphetamine on the Central Coast at Marshall's direction.

Cummins

1. In November 2020 Cummins helped Marshall to prepare and co-ordinate supplies of Methylamphetamine between Marshall and Hanrahan (in Tamworth). He also acted as a liaison between Marshall and the couriers, and co-ordinated Carruthers to transport Methylamphetamine to Hanrahan.
2. Marshall and Cummins arranged for the latter and Carruthers to have 'paperwork' and other work-related reasons, to be in the Tamworth area, to deflect suspicions as to their reasons for travelling.
3. Cummins also directly supplied his own customers on the Central Coast.

Scott

1. In September 2020, Scott helped to arrange and prepare supplies of Methylamphetamine between Marshall and Hanrahan. He also delivered the drugs to Hanrahan and collected the cash for Marshall.
2. Scott also supplied his own customers on the Central Coast region between August and September 2020.

The offending conduct

1. Between 24 September 2020 and 2 December 2020 investigators amassed a large amount of electronic and physical surveillance on Marshall conducting no less than 103 drug transactions with a total amount of methylamphetamine supplied being not less than 1,465.20 grams. The supplies in relation to Marshall fell into two broad categories: first, there were 19 occasions of supply or attempted supply of the drug to the co-offender Hanrahan. Secondly, there were 94 occasions of supply of methylamphetamine in a quantity of 345.20 grams with the amount of money received for the supplies ranging between $95,680 and $121,080.
2. As to the first category of offending, the details of the nine transactions to Hanrahan were as follows: 1. supply of 56 g on 24 September 2020: 2. supply of 140 g on 25 September 2020; 3. supply of 140 g on 28 September 2020; 4. supply of 140 g on 7 November 2020; 5. supply of 168 g on 11 November 2020; 6. supply of 168 g on 17 November 2020; 7. supply of 56 g on 24 November 2020; 8. supply of 140 g on 26 November 2020; and 9. attempted supply of 112 g on 2 December 2020.
3. As to the second category of offending, a document being Annexure A to the agreed facts set out details of the dates, quantities supplied and amount of money charged for at least 94 separate transactions in the Central Coast area between 23 September 2020 and 3 December 2020. This activity coincided with the same period in which Marshall was supplying drugs to Hanrahan.
4. Some of these supplies in the Central Coast were to a co-accused (Weis) and co-accused (Carruthers) and many other individuals. Marshall's modus operandi involved text messages and/or phone calls that he had with each purchaser where price and quantity was discussed. Marshall would then deliver the agreed quantity of ice to the purchaser at an agreed location. In terms of payment, this was in various forms: cash, EFT, payment of all debts and a combination thereof. The price ranged from between $200-300 for a 0.5 g deal and between $6,500 - $10,000 for a 28 g deal.
5. The agreed facts also set out, or perhaps more accurately emphasised, Marshall's transactions with other co-offenders, Neale and Cummins and the co-accused Carruthers on the Central Coast.
6. In relation to his dealings with Neale, between 10 November 2020 and 3 December 2020, Marshall agreed to supply ice to Neale on at least 13 separate occasions; where he used Neale as a courier and to collect payment for drugs. These supplies were between 1 g to 7 g of ice for a total of 42.95 g. In respect to these supplies, Marshall had arranged details for the transaction with the customer. He then directed Neale to supply the drug and collect the agreed payment. Neale would then attend the location where he would supply the agreed amount of drugs and receive the agreed payment, as directed by Marshall. Among his communications with Neale, on one occasion, being 8:21am on 2 December 2020, Marshall flattered Neale by describing him as the "key player".
7. In relation to his dealings with Carruthers, Marshall used him on two occasions to deliver drugs and collect payment. This amounted to a supply of 7 g of ice and a supply of 3.5 g of ice. Marshall had arranged details for the transaction with the customer. Carruthers would then supply the drugs as directed by Marshall.
8. In relation to his dealings with Cummins, on one occasion Marshall arranged to supply 7 g of ice to another individual (S) for $2000. He directed Cummins to meet this individual and supply the agreed quantity of 7 g, which Cummins did. Cummins then called Marshall confirming the supply had occurred. On another occasion on 13 November 2020, Cummins contacted Marshall and acted as a liaison for the supply of 1.75 g of ice from Marshall to Carruthers for the sum of $650. Cummins then advised Carruthers how much to charge customers downline for quantities of drugs.

Marshall's arrest and the revelation of other offending

1. On 2 December 2020 police investigators executed search warrants at the homes of different offenders. This included Marshall's premises. Marshall fled the premises shortly before the execution of the warrant.

The proceeds offence (on the Form 1)

1. Police discovered the sum of AUD$1800 bound by a rubber band, and AUD$3,800 in a big envelope on the coffee table in the downstairs bedroom. Two quantities of AUD$9,950 were hidden in a black backpack in an air-conditioning vent, located next to the bottom stairwell in the hallway.

The drug possession offence (on the Form 1)

1. The quantity of 2.32 g of green vegetable matter (cannabis) was located inside the same black backpack where the two quantities of $9,950 were located.

Consideration of the objective gravity of the offending

Submissions

1. The Crown generally emphasised the aggregate 103 transactions engaged in over roughly 2 months and 9 days as being a 'very, very' large number, in the total quantity of 1,465.20 grams (far beyond the minimum quantity for this offence) which netted an aggregate turnover of between $380,680 and $447,580. These bare figures alone elevated the offending into the upper middle range or lower high range of objective gravity of the offending. What was worse, Marshall's motive was predominantly greed, since, as he told his psychologist, he had "seen the money. And it got the better of me". The financial return was considerably more than what might be expected for lower level 'street deals' (Prculovski v R [2010] NSWCCA 274 at [43]; Wat v R [2017] NSWCCA 62 at [48]).
2. The Crown broke down its submissions to address the transactions in the two main categories of offending identified in the Agreed Facts. As to the (9) supplies to Hanrahan, the actual or attempted supplies were significant and complex, involving Marshall sourcing quantities from the upline Sydney supplier, preparing them and having them couriered to Hanrahan. These were bulk supplies and spearheaded the involvement of the co-offenders so closely that Marshall never personally delivered or sourced the supply of drugs. Neither did he receive payments personally. His trusted couriers (including co-offenders Neale, Cummins and Scott) only needed to be in possession of money and drugs for brief periods. In particular, he directed Scott and thereafter Cummins to coordinate deliveries to Tamworth and he used Neale to collect the drugs from his upline supplier. There was a good deal of planning to this, including the use of code words, scheduling of drivers, organisation of different motor vehicles and fake paperwork to provide legitimate reasons for drivers to be present in Tamworth, with a view to minimising the risk of detection. This high level of planning went well beyond the lower level of offending for this offence (Wat v R [2017] NSWCCA 62).
3. As to the (94) supplies to his customers on the Central Coast, Marshall directly co-ordinated 15 such supplies, using the co-accused Carruthers and co-offender Neale as couriers and street-level dealers. Marshall made the arrangements and prices. Marshall's Counsel's submissions acknowledged that the financial value of the sales to customers on the Central Coast was between $95,680 and $121,080.
4. Counsel for Marshall conceded that his client was at the higher part of the criminal operation, although baulked at the Crown's characterisation of him as being "at the pinnacle". The co-offenders had been entrusted with a very valuable cachet of illegal drugs. Nonetheless, he accepted that the agreed facts disclosed serious objective criminality and acknowledged the seriously detrimental effects on the community from the supply of prohibited drugs. He also urged the Court to focus more on his client's role than the quantity of the drug involved.
5. Counsel emphasised that of the 1.4 kg purchased from the upline supplier in Sydney, 1.12 kg went directly to Hanrahan in Tamworth, with the help of Cummins, Scott and the co-accused Carruthers. With the help of co-offenders, Cummins and Carruthers, Marshall got the quantity delivered to the Central Coast. The level of sophistication was not quite how the Crown had characterised it: for example, there was no evidence of the systemic use of fake names; and his communications with co-offenders were detected, albeit by covert means, but still fairly readily. Marshall's Counsel observed also that there was no evidence of the quality or purity of the drugs.
6. The Crown argued that although his role in the operation may have been less than the upline supplier in Sydney, it was Marshall who was the link with the Sydney supplier and who arranged for the drugs to be obtained. He was not a broker between the Sydney supplier and Hanrahan at Tamworth. He arranged for the contracts for purchase, the actual purchases and the transportation for supply. To some degree, he was involved in the packaging of the quantities himself. Marshall provided the drugs to the co-offenders, who had their own supply businesses, but they also worked at Marshall's behest.
7. Counsel for Marshall submitted that his offending fell somewhere within the mid-range.

Evaluation

1. Ultimately, I did not discern all that much of a difference in the positions of the parties. Both accept that it was appropriate for this offence to be rolled-up in nature. Both accept that, in that circumstance, care needed to be exercised not to double count matters that would otherwise have aggravated the gravity of the offending, including the receipt of financial reward (which itself was virtually an implied element of the offence), series of criminal acts and planning. I prefer to treat them, strictly, as matters that go to the gravity of the offending. Whilst I accept that it is not without risk in applying labels, Marshall was a very significant distributor and/or supplier of the drug as part of two significant regional syndicates in New South Wales of a very large quantity of ice for a very significant financial reward. Whilst the offender might have quibbled with the extent of sophistication involved in the distribution and supplies, the operations were significant in scale and Marshall played an integral, to the point of commanding, role in the planning and execution. Although he was very hands on, he was (or so he thought he was) clever enough to use associates to limit the risk of his own exposure. I regard his offending as falling at the higher end of the middle range of offending.

The offences on the Form 1

1. The parties agreed that the basic effect of offences on a Form 1 is to increase the penalty that would otherwise apply for sentencing on the principal offence; typically by elevating the considerations of specific deterrence and retribution (Attorney General's Application Under Section 7 of the Crimes (Sentencing Procedure) Act Number 1 (2002) 56 NSWLR 146.
2. The Crown submitted that the proceeds offence (seq 95) should not increase the sentence for the drug supply offence. As the Crown explained, the sum of $25,000 was indicative of the financial rewards received for supplying the drugs.
3. Counsel for Marshall submitted that the additional offence (seq 96) of possession of a small quantity of cannabis would not ordinarily attract a custodial penalty; so that, in the result of the additional offences on the Form 1 would not significantly increase the penalty for the drug supply offence. I accept this submission. I would also add that it would be unlikely that this particular additional offence would have warranted the imposition of a custodial penalty.
4. Ultimately, the two additional offences do not substantially increase the penalty for the principal offence.

Age, background

1. Marshall was 29 years of age at the date of his offending.
2. Marshall's background was extensively reviewed in the report of a psychologist, Anica Spatz, dated 6 April 2022. She interviewed Marshall via video link on 3 March 2022. His background may be summarised as follows.
3. Marshall was born in Gosford and is one of four children who all have different fathers. His mother and biological father separated when he was an infant. He was predominantly raised by his mother with his three siblings and had occasional contact with his biological father who was a recovered drug and alcohol counsellor and has generally been supportive to the offender.
4. Marshall reported a disadvantaged and unstable childhood. His mother used illicit substances and he witnessed his mother being involved in several abusive relationships. One of his mother's ex-partners hit the offender and his siblings. The domestic abuse escalated to the point when the offender was 12 years of age, he arrived home from school one afternoon to the police at his home because his mother had stabbed her partner. A year later he was robbed and saw his uncle physically assaulted. Following this traumatic event, he did not receive counselling but laboured through acute stress symptoms.

Education and employment

1. Marshall reported struggling at school due to learning and behavioural problems and the disruption of domestic issues at home. He was ultimately suspended in his first year of high school for using and dealing in cannabis. He then attended a special school program organised by the PCYC for youth who did not do well in the mainstream education system. He completed schooling in Year 7.
2. Marshall reported that he attempted various vocational courses and acquired a White Card to work in construction. He completed a bricklaying apprenticeship and worked full-time for five years in a bricklaying job. He was also employed to cut gyprock for 12 months and worked in factories for several years.

Medical and psychiatric history

1. Marshall reported suffering a concussion at approximately 12 years of age. He reported multiple bone fractures due to numerous motorbike accidents through his motor cross riding. He reported breaking his leg in a car accident in which he was drink driving.
2. Marshall reported a history of anxiety and depression that commenced in adolescence. He reported that at approximately 13 years of age he and his uncle were attacked. He reported that his mother and brother have a history of depression and anxiety.
3. Marshall reported that his panic attacks have reduced in frequency over the years. He reported social anxiety and agoraphobia symptoms such as difficulty making phone calls, even to his parents and avoiding going to the shops.
4. Marshall reported that he briefly consulted a psychiatrist when he was younger and again in 2020 during a severe depressive episode. He reported being prescribed psychotropic medication, Mirtazapine (Avanza), at 15 years of age and continued using the medication up until April 2021. He reported that in his mid-twenties he took benzodiazepine and anxiolytic medication, Xanax, for several months as a prescription and, from then on, sometimes without a prescription, as he found it difficult to come off Xanax. His medications were managed by his family doctor, Dr Chris Tarren, however in the last 12 months he had not been taking psychotropic medications. He explained to his psychologist that he did not wish to rely on medication to stay well.
5. Marshall reported attending couples counselling with his ex-partner. He reported a history of anger problems but maintained that was in the past and he now found it difficult to become really angry. The offender reported completing the EQUIPS Addiction program in custody.

Substance use history

1. Marshall reported a history of polysubstance abuse. He reported that he commenced using cannabis at 11 years of age. He reported that his use of cannabis increased after the robbery and assault on his uncle, however, he noticed that this led to increased levels of anxiety and panic attacks and rarely used it after the age of 15.
2. Marshall reported that as a result of the domestic abuse and trauma he experienced during childhood, he commenced using alcohol at approximately 14 years of age and earned money by selling drugs. He reported that selling drugs got him out of the house, gave him the opportunity to interact with others that were not his family, distracted him from the issues at home and gave him the ability to earn money that ultimately led to him purchasing his first home at 18 years of age.
3. Since then, Marshall has been through stages of heavy drinking and dependence. Between 2019 and 2021 he reported only having approximately seven days that he did not drink and spending approximately $500 per week on alcohol. He reported he would consume alcohol to reduce his daily anxiety symptoms so he could function in social situations.
4. Marshall reported that he developed a gambling problem at 20 years of age when he won $5000. He reported he could spend up to $30,000 in one night at pubs, clubs or online. He currently does not have much money and now realises that he wasted valuable resources and time drinking and gambling.

Circumstances at time of offending

1. At the time of his offending, Marshall reported that he was residing with his partner, Hailey, and their child, Layla, who was 18 months old at the time of the offending. He has been in a de facto relationship with Hailey for 7 years and engaged to her for 3 years. He also has another daughter, Nehemiah, to a different woman who is 10 years of age. He has not seen Nehemiah in 9 years.

Explanation for and attitude to offending

1. Marshall also reported to Ms Spatz that he completed Community Service Work in the second half of 2020 and was struggling to find employment due to the COVID-19 Pandemic. Consequently, he commenced selling drugs and stated, "I had seen the money, and it got the better of me". He reported he was drinking heavily and using drugs at the time of the offending.

Ms Spatz' diagnoses

1. Ms Spatz opined that Marshall met the diagnostic criteria for anxiety disorder, particularly social anxiety and generalised anxiety as well as a major depressive disorder with recurrent episodes. Ms Spatz is of the opinion that, based on the ASRS results, the offender meets the diagnosis criteria for ADHD with both inattention and hyperactive/impulsivity. Research suggests that the core symptoms of ADHD likely made the offender more susceptible to drug use. Ms Spatz stated on page 11 that the offender's ADHD-related impulsivity and emotional regulation problems may also have contributed to his offending behaviour.
2. Ms Spatz also stated on page 11 that she was of the opinion that the offender met the diagnostic criteria for substance use disorder at the time of the offending and that according to research, chronic substance use is associated with cognitive problems such as impaired decision making and behavioural inhibition which partially contributed to his offending. Ms Spatz was of the opinion that the offender's intoxication at the time of the offending likely impaired his ability to judge the consequences of his actions, his social judgement, his ability to regulate his behaviour and manage his mental health symptoms. Ms Spatz stated on page 11 that she is of the opinion that the offender's behaviour is likely connected to his mental illness, history of mild but repeated head injuries, and long-term drug and alcohol issues.
3. In summary, Ms Spatz opined that the offender met the diagnostic criteria for the following mental health diagnosis at the time of the offending: other specified anxiety disorder with panic attacks, recurrent major depressive disorder in full remissions, ADHD combined presentation, moderate alcohol use disorder, moderate stimulant use disorder cocaine-type substance, moderate anxiolytic-related use disorder and moderate gambling disorder.

The Crown's critique of Marshall's evidence on mental health

1. The Crown accepted that, at the time of sentencing, there were mental health issues in Marshall which would at least sustain a finding of special circumstances, but it disputed that they caused or contributed to the offending. Ms Spatz's report did not address whether there were any earlier diagnoses of mental health professionals or refer to Justice Health records. Although some documents were considered, there was essentially a two-hour assessment which formed the basis for her opinions.
2. The Crown acknowledged observations made in Lloyd v R [2022] NSWCCA 18 which, in effect, disapproved any prevailing practice of sentencing judges to deprecate the opinions of mental health professionals that were substantially based only upon out of court statements by offenders (at least where those opinions were not actually challenged).
3. However, Ms Spatz is a psychologist, who with that field of expertise, purported to diagnose mental illnesses. Counsel for Marshall referred the Court to a decision of Johnson J in Jones & Anor v Booth [2019] NSWSC 1066 as authority for the proposition that a psychologist was qualified to express opinion on whether someone had a cognitive impairment or mental condition in the context of s 32 applications under the (since repealed) Mental Health (Forensic Provisions) Act 1990 (NSW). At [64]-[67], his Honour observed past differences in judicial approach to the reception of opinions of psychologists. It is important to acknowledge, however, that in making those observations, Johnson J was addressing himself to the basic question of a psychologist's eligibility to express views on s 32 applications: his Honour said that there was no 'blanket rule' (of prohibition). In response, the Crown referred the Court to another decision of the Court of Criminal Appeal, being Taitoko v R [2020] NSWCCA 43 (at [112]-[120]) where the appellate court did not disturb the sentencing judge's finding that the offender had not established a mental illness on the basis of a psychologist's opinion which did not have regard to contemporaneous medical records.
4. The Crown attempted to reconcile Lloyd with Taitioko; arguing that what the sentencing court should not disregard was unchallenged views of psychologists substantially based upon or resulting from the application of their specialised knowledge. The Crown argued that a psychologist's views about mental illness was not obviously within that field of specialised knowledge. The Crown argued that much of the language in Ms Spatz' report was couched in the language of 'possibility'. That was a lesser threshold of probability which Marshall, who bore the onus of proof on that standard, was required to establish a mitigating factor. Ms Spatz never opined that mental illness, or illnesses, probably caused or contributed to his offending. The absence of supporting, and more contemporary, medical material meant that even less weight should be given to her opinion. The Crown pointed out that, here, there was a gap of about 18 months from the date of the offending and the psychologist's report. The Crown also pointed to the apparent incongruity of finding that Marshall was affected by mental illness(es) with the circumstances of offending, committed over months with a good deal of sophistication.
5. Counsel for Marshall argued that Lloyd now meant that Ms Spatz' unchallenged views, following the application of her specialised knowledge, should not be discounted merely because she substantially relied upon what Marshall had reported to her.
6. I do not find persuasive the notion that an opinion by an experienced psychologist, falling within the particular practitioner's expertise, should be automatically or presumptively regarded as having any lesser weight than that of a psychiatrist. I regard that attitude myself as outmoded; if not also productive of generating prejudice. There is greater force, however, in the Crown's submission that some scepticism may be taken towards diagnoses of mental health conditions at the time of offending undertaken a substantial period of time after the date of offending; especially in circumstances where an offender has had a prior criminal history and such diagnoses have not previously been made. In making that observation, I do not overlook the possibility of an offender's entrenched mental health condition remaining undiagnosed. The real issue, to which I now turn, is whether such conditions played any causal role in the offending or might otherwise reduce the seriousness of the offending and his moral culpability.

Consideration of Culpability

1. At the sentencing hearing, the Crown accepted that Bugmy principles were engaged. As the High Court said in that decision, the effects of childhood disadvantage tend not to diminish over time. However, with reference to what was said by the plurality in Munda v WA (2013) 249 CLR 600 at [43], the Crown argued that there was, in effect, counterbalancing or countervailing consideration required, being the protection of the community in light of Marshall's drug addiction and recidivism; if not also specific deterrence.
2. Marshall's counsel also argued that the childhood disadvantage played into the development of his drug addiction. It could not be said that his drug addiction was entirely the product of choice. The Crown took issue with what had been identified by Ms Spatz as mental health conditions; on such issues of alcohol use disorder or stimulant disorder or dysfunction. For mental health conditions to give rise to mitigation, the law had to admit them as such. With reference to s 21A(5AA) of the Crime (Sentencing Procedure) Act 1999 (NSW) (the 'CSP Act'), which posited that self-induced intoxication was not a matter in mitigation, it followed that if, as he had reported, Marshall was intoxicated during portions of his offending, the offender could not rely upon that fact in mitigation; other than in the rare (and in this case unproven) instance of the intoxication not being self-induced.
3. Notwithstanding the injunction in s 21A(5AA), the Crown acknowledged that the Court of Criminal Appeal's decision in R v Henry (1999) 46 NSWLR 346 was still good law. It had been applied, amongst other cases, in SS v R [2009] NSWCCA 114, where it was said that a drug addiction was not a mitigating factor unless the offender acquired it during childhood (or another circumstance which did not apply here). However, even if Marshall fitted that category of case, the Crown submitted that Henry had recognised (per Spigelman CJ at [197]-[201]; see also R v Gagalowicz [2005] NSWCCA 452 at [34]) that even if an offender acquires a drug addiction in childhood otherwise than through the free exercise of choice, the mitigatory effect might reduce if the offender has not sought treatment. The Crown emphasised that Marshall had shown he was capable of abstention when in custody for his February 2018 sentence referred to later in these remarks.
4. I accept that Bugmy principles apply. I also accept that his drug addiction was not the result of the free exercise of choice, but rather the result of social and environmental factors at play. I accept, on the probabilities, that he has certain mental health issues, such as PTSD or anxiety.
5. To some degree these findings assist Marshall, but there were significant qualifications. First, his offending was not marked by impulsivity, anxiety, distress or an inability to control or regulate his emotions that marks out any, or any substantial, connection with the offending. To the contrary, the offending occurred over months, in a large series of transactions which he had coolly and calculatedly arranged and instigated and in a manner intended to conceal his involvement. Secondly, even if these matters initially had some causative role in the offending, he had exercised choice by his refusal to seek out counselling and treatment that might alleviate both mental health issues and to fight his addiction. He preferred instead to gratify his desire for money and prey upon the vulnerability of others, especially persons who were as young as he was when he started taking drugs, in the community. The matters relied upon in mitigation of Marshall's culpability do not reduce the seriousness of his offending or take his case out of the realm of being an appropriate vehicle for general and specific deterrence, retribution or denunciation; although they perform some (small) moderating force.

Discount for guilty pleas

1. Marshall is entitled to a 25% discount on account of his guilty plea.

Antecedents

1. Marshall's criminal history stretches back to when he was a child. He has many driving offences and some personal violence offences. What is more material is that he had offences for drug possession (in March 2015), attempting to bring a drug into a place of detention (October 2010) and drug (ice) supply (11 May 2016).
2. The agreed facts that were before the sentencing judge on 9 February 2018 for this last offence (in respect to which there was also sentencing for two other firearm offences) indicated that when executing a search warrant at Marshall's home, police found an 'ICE pipe', and a motor cycle in a room which contained 62.2 grams of ice (at 79% purity) and $15,000. The Crown emphasised that the last offence for drug supply did not involve a small quantity and he received a substantial aggregate sentence (although it is not clear what was the indicative sentence received from the drug offence) and submitted that the index offending could not be regarded as an uncharacteristic aberration.
3. Whilst in custody, over different periods from July 2015 to April 2022, Marshall has committed a significant number of institutional offences, relevantly including failures in prescribed drug tests, drug possession and failing to supply drug samples.
4. Counsel for Marshall conceded that this record does not assist him.
5. I find that his criminal history, and in particular, his recent drug offences, disentitle Marshall from leniency. Counsel for Marshall conceded this point.
6. I also find that it does not infringe the principles from Veen (No.2) to hold that his record is relevant to additional sentencing considerations, being his prospects of rehabilitation (and the allied consideration of likelihood of re-offending) (DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [267]), the need for specific deterrence (De La Rosa at [264]) and protection of the community (Kerr v R [2016] NSWCCA 218 at [74]); as his past record indicates that the index offending did not represent an uncharacteristic aberration. I acknowledge, however, that this record, by itself, does not increase the sentence beyond that which is proportionate to the gravity of the offending. On the aspect of specific deterrence, specifically, it can reduce the mitigation otherwise arising from matters such as Bugmy principles (Bugmy at [44]) or other mental disorders.

Contrition/remorse

1. According to Ms Spatz, Marshall expressed remorse and insight into his offending, stating "ice is a bad drug; it's disgusting". The offender reported to her that he is hopeful he can obtain employment in the mining industry when released from custody. He has the support of his long-term partner and described their relationship as strong. His partner has certain expectations about abstinence from drugs and alcohol and has been assisting the offender to reduce gambling and drug and alcohol use. He also has the support of his family and his partner's father. His partner warned him that if he went back to using and selling drugs he would lose his family; which is a strong motivator for him to remain abstinent and build a better life for himself and his family.
2. There was an indication of remorse in the evidence of his partner, Ms Houn, but it must be acknowledged that she is not the most objective or detached person: she has her own interests given that she is a single mum looking after a very young daughter.
3. As noted earlier, the Crown challenged that a finding of remorse could be made on the basis of what was reported to Ms Spatz. It generally submitted that the Court could be sceptical of out of court assertions.
4. I find, on the probabilities, that Marshall is remorseful, a finding based on the evidence from the third parties, but aided by the guilty plea; in that he has accepted responsibility for his offending. But I find that in the absence of more direct evidence from Marshall, his remorse is only partial in circumstances where there was little real recognition of the harm his conduct has caused to the community and acceptance of responsibility for that harm.

Rehabilitation prospects/likelihood of reoffending

1. Ms Spatz outlined different sets of recommendations, depending on whether he was in custody or whether he received a community-based sentence.
2. Marshall placed before the Court written references from his aunt (Brooke Marshall), a former employer (Nathan Muscat), his fiancé (Hayley Huon) and his biological father (Craig McGarry). Although they spoke of their perception of his positive personal qualities, the main import of their letters was confirmation of their continued support of Marshall and the indications or assurances of material features of support, such as accommodation (Brooke Marshall) and future employment (Nathan Muscat).
3. The Crown clarified that it was not suggesting that drug dealers were not entitled to have rehabilitation prospects taken into account, and acknowledged that Marshall's youth meant that he still had time on his side to rehabilitate, but it emphasised Marshall's troubling attitude, as manifested by the indication that he had not taken his medications in the last 12 months because he preferred not to rely on them. But although Ms Spatz had opined that he had shown little insight, statements that Marshall had made to her ("I have seen the money and it got the better of me") and his contrition supported this sentencing consideration, in the sense of illustrating some insight. I do not regard this particular statement in the favourable light Counsel for Marshall wished to make out; but rather consider that it evinced a clear-eyed recognition that his offending was not borne out of desperation, but greed if not perceived convenience. I do not accept that in the context in which this admission was made, it represented any revelation. His history as a young man in his late teens and early adulthood indicated that he had an early appreciation of the lucrative rewards that might potentially come from drug trafficking.
4. The Crown also noted that although Marshall had completed an EQUIPS addiction program during the earlier period in custody, he still re-offended, even when he was receiving pharmacological treatment and was abstinent. The Crown also noted his custodial offences involving drugs.
5. The Crown argued that the temporal proximity of the recent offending further undermined the force of Marshall's case on his rehabilitation prospects. This was not to say, however, that the importance of aiding his rehabilitation should not be taken into account in consideration of Marshall's claim for 'special circumstances', but at the same time there was a need not to double count.
6. Marshall's Counsel took particular issue with the suggestion that earlier offences were something of a harbinger on his likely prospects of re-offending. His offending in 2018 occurred 10 months after his parole had expired. He had not been in breach of any earlier orders. Although his earlier offending may not have entitled his client to leniency, it did not aggravate the index offending. I accept that the earlier offences could not aggravate the offending however, to repeat what I remarked earlier about the significance of his antecedents, I accept that his past record can bear upon (amongst other things), his rehabilitation prospects and his risk of re-offending.
7. Counsel for Marshall conceded that his client's prospects for rehabilitation were guarded and acknowledged that the Court might find it difficult to find that he was unlikely to re-offend.
8. Reflecting the concession from Marshall's Counsel, I find that his rehabilitation prospects are guarded.

Hardship

1. Marshall cited the impact of the Pandemic upon inmates at correctional centres and in particular restrictions on visits from family members. This was the subject of some commentary by Ms Spatz.
2. The Crown accepted that past, present and (potential) future extra restrictions in custody arising from attempts to mitigate the harm caused by the Pandemic will have a deleterious impact upon his mental health. I so find.

Parity

1. At the time of his sentencing hearing last April, a co-offender Brooks was sentenced.
2. The sentencing remarks for the other co-offenders, Hanrahan, Neale, Cummins and Scott will shortly follow these sentencing remarks. The Crown argued (as I will remark in the joint sentencing remarks) that Marshall had the highest level of involvement in the co-ordination of the Tamworth transactions and the most significant involvement in his own supplies on the Central Coast.
3. Hanrahan had a generally corresponding role in the Tamworth supplies, having supplied to Brooks and other dealers (though not as many as Marshall).
4. Scott and Cummins acted as couriers and each assisted Marshall in the Tamworth offences whilst engaging in their own respective street level supplies.
5. Neale was a courier and a street level dealer, with heavy oversight from Marshall.
6. Leaving aside the matter of their respective roles, the Crown noted that the co-offenders Hanrahan and Scott had prior drug supply offences.
7. I find that relative to all offenders, that although closer to Hanrahan, Marshall's role and involvement was significantly more serious than the other co-offenders. Included within that conclusion is his comparative role to the co-offender Brooks.

instinctive synthesis

1. I take into account the maximum penalty and the standard non-parole period.
2. I have also considered all of the sentencing considerations in s 3A of the CSP Act. The foremost considerations are general and personal deterrence, imposing a sentence which is protective of the community and which is sufficiently adequate to reflect the gravity of the offending. In this offender's case in particular, given his role, in comparison to the co-offenders, there is also significant force to be given to retribution and denunciation. His prospects of rehabilitation are guarded and have more weight at the point of considering the length of the non-parole period. When it comes to considering the head sentence, this particular consideration is subsidiary.
3. Mr Marshall's Counsel conceded that the s 5 threshold was crossed. He was correct to do so.
4. The sentence will be backdated to take into account the time that Marshall has spent in custody, which commenced on the date of his arrest on 4 February 2021.
5. Consistent with various concessions made by the Crown arising from recognising his mental health issues (to the extent that they will make his time in custody more onerous than if he did not have them) and the need to aid Marshall's rehabilitation for his addiction, I find that special circumstances arise to support a longer period on parole than the statutory ratio. However, the extent of that variation takes into account earlier opportunities given to Marshall to aid his rehabilitation which, his history shows, he did not effectively take advantage of.

Sentence

1. Mr Marshall, please stand.
2. You are convicted of the sequence 93 offence, being the supply of a prohibited drug, Methylamphetamine, in an amount which was not less than a large commercial quantity.
3. Taking into account your guilty plea for that drug supply offence, but also the two additional offences on the Form 1 attached to the drug supply offence, I sentence you to a term of 12 years imprisonment commencing on 4 February 2021 and expiring on 3 February 2033. The non-parole period is 8 years and 2 months and expires on 3 April 2029; after which you will be eligible for release on parole.
4. By consent, I also order that: 1. pursuant to s 18(1) of the Confiscation of Proceeds of Crime Act 1989 (NSW), cash in the sum of approximately $25,000 located at 60 Geoffrey Road Chittaway Point on 2 December 2020 be forfeited to the State; and 2. pursuant to s 19(3)(a) of the Confiscation of Proceeds of Crime Act 1989 (NSW), the property forfeited herein is to be disposed of forthwith.

Publication of these remarks

1. Finally, I wish to indicate to the parties that, subject to reasoned objection by the parties, I propose to publish these reasons on Caselaw.
2. In this regard, it is pertinent to note that shortly before the sentencing hearings of these offenders commenced, the Crown had applied for an adjournment to enable an ex officio indictment against the co-accused Carruthers and Weis to proceed.
3. I note that recently, the practice of the Court of Criminal Appeal has changed so that where a re-trial is necessary, a protocol is in place to ensure that a prospective jury is not prejudiced by what they see on Caselaw. As I understand the position, a not insignificant responsibility is placed on the Director in this regard. I do not see why the same principle should not be at play in the situation where co-offenders are sentenced before a trial for a co-accused, where the co-offenders have agreed to facts about the co-accused's conduct.
4. It will be up to the Crown and those representing Carruthers and Weis to take steps so as to remove publication of these remarks, or more accurately, a redaction of any references to Carruthers, closer to any trial in which he may be involved.

Postscript

1. The Court heard from the Crown and decided to refrain from publishing these remarks until further notice is received from the Crown.

Amendments 07 June 2024 - Publication restriction lifted following notice received from the Crown 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: 07 June 2024