R v Mason

District Court of NSW|2022-07-13

remarks on sentence

The offender, who was born on 18 February 1962, is to be sentenced in respect of the following two matters: 1. Supply prohibited drug greater than commercial quantity, pursuant to s 25(2) of the Drug Misuse & Trafficking Act 1985 ("DMTA"). The maximum penalty for the offence is 20 years imprisonment and/or 3,500 penalty units. There is a standard non-parole period prescribed of 10 years imprisonment. 1. Knowingly deal with proceeds of crime pursuant to s 193B(2) of the Crimes Act 1900. The maximum penalty prescribed is 15 years imprisonment and there is no standard non-parole period prescribed.
The offences were committed on 31 May 2021. The offender was arrested the same day and has been in custody since 31 May 2021.

The offender's submissions

Learned Queen's Counsel for the offender relied on a detailed written outline of submissions in which he set out a summary of the facts consistent with the above summary.
It was submitted that the role of the offender was germane to the assessment of the objective seriousness of the offence and was more important in determining a sentence than the quantity of drugs involved, which is not the sole or even principal determinant. Here, it was submitted the court would find the role of the offender to be that of a courier in return for a fee of $10,000. The offender had made immediate and full admissions to police, and it was submitted the court would assess the objective seriousness of the offender's involvement at a lower level of objective seriousness.
The offender submitted that there were no aggravating factors to be taken into account pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"). Mitigating factors to be taken into account were that the offender had a minor criminal record for driving offences (s 21A(3)(e)), that he was of prior good character (s 21A(3)(f)), that he was unlikely to reoffend and had good prospects of rehabilitation (s 21A(3)(g) and (h)), that he had shown remorse (s 21A(3)(i)) and had entered an early plea of guilty (s 21A(3)(k)), for which he was entitled to a 25% utilitarian discount on sentence.
It was submitted that the offender's motive was to earn $10,000 at a time he needed money to pay bills after a failed business venture. Thus, the court would find the offender was motivated by need, not greed.
The offender submitted that the report of Dr Nielssen and the SAR and other subjective material demonstrated that he had made significant progress towards total rehabilitation whilst on remand. Thus, there was now little or no need for personal deterrence.
The offender made submissions regarding the onerous conditions in custody caused by the COVID-19 pandemic.
It was submitted that the two offences were factually intertwined and committed by the offender at the same time, thus, an aggregate sentence pursuant to s 53A of the CSPA was appropriate and would reflect a large degree of concurrency between the indicative sentences. Any sentence would be backdated to 31 May 2021. The court would also make a finding of special circumstances given this was his first term of imprisonment.
Whilst the offence pursuant to s 25(2) of the DMTA carried a standard non-parole period of 10 years, given the offender's early plea of guilty, his advancing age, prior good character and low-level of objective seriousness, it was submitted the court would not impose the standard non-parole period.
The offender submitted that this was an appropriate case of imposing a term of imprisonment by way of an Intensive Correction Order ("ICO") which would be more likely to address the offender's risk of reoffending rather than serving a sentence by way of full-time detention. In considering the length of an ICO, the court was entitled to take into account the offender's pre-sentence custody of over 13 months and reduce the overall term of any ICO imposed accordingly, relying on Mandranis v R (2021) 289 A Crim R 260; [2021] NSWCCA 97.
In his oral submissions, learned Queen's Counsel for the offender rehearsed a number of the written submissions outlined above. He highlighted that the offender had made full admissions and cooperated with investigating police, and that his role was that of a courier in exchange for payment of $10,000. There were no aggravating factors and the offender had a criminal history involving minor events which were quite ancient, and therefore could be ignored. He therefore should be sentenced as a person of prior good character who is now aged 60 years. There was no evidence of any mental illness or background of deprivation.
Learned Queen's Counsel highlighted the opinion of Dr Nielssen that the offender's prospects of rehabilitation were good. Notwithstanding that the author of the SAR assessed the offender as being a medium risk of recidivism, that assessment was brought about by application of an algorithm which did not have regard to significant subjective factors in the offender's favour.
It was submitted that the offender was entitled to a 25% utilitarian discount for his early plea of guilty, but in addition, a further discount should be provided for the clear remorse that he had demonstrated, relying on Care v R [2021] NSWCCA 101 at [71]-[76] and Pritchard v R [2022] NSWCCA 130 at [90]-[91].
Learned Queen's Counsel rehearsed his submissions relating to the onerous conditions of incarceration caused by the COVID-19 pandemic. The offender had spent 104 days in isolation, 58 days of which were consecutive. There was also some hardship to his family. His parents' request to the Department of Corrections for his transfer to the North Coast Correctional Centre had been refused, and during the whole of his remand period, the offender had had no visitors. Relevant to his sentencing was that his parents were aged and required his care.
Learned Queen's Counsel rehearsed his submission that the sentences should be totally concurrent and the standard non-parole period should not be applied. The assessment of objective seriousness here would take into account that no encrypted device was found on the offender and given his role as a courier, it was not sophisticated offending. The judicial statistics revealed that approximately 20% of cases were disposed of by way of an Intensive Correction Order and given an aggregate sentence of up to three years, an ICO should be available.
It was conceded that the s 5 threshold had been crossed but the criminal conduct was characterised as "foolish", to act as a courier based on "need, not greed".

The Crown submissions

The Crown also relied on a written outline of submissions in which it referred to well established sentencing principles in offences involving drug supply in any substantial degree. Having regard to the facts here, the Crown submitted that the objective seriousness of the offence pursuant to s 25(2) of the DMTA fell towards the lower end of the mid-range of objective seriousness for offending of this type. The Crown noted the offender's very limited criminal history, which was not relevant to sentence and that he had been in custody since 31 May 2021. The Crown also conceded that a finding of special circumstances was open in this case.
The Crown submitted that the s 5 threshold has been crossed and a sentence of full-time imprisonment should be imposed. The Crown also noted a confiscation application would be made for forfeiture of the $10,000 in cash.
In her oral submissions, the Crown confirmed the Crown submission that the objective seriousness of the offending here was at the lower end of the mid-range for an offence pursuant to s 25(2). Whilst the quantity of the prohibited drug was not determinative of the objective seriousness of the offence, it remained highly relevant. Here, the quantity was near the upper range of the prescribed commercial quantity (250 grams). A large commercial quantity was prescribed as 1 kilogram. The Crown otherwise agreed that the role of the offender here was that of a courier for payment of $10,000. Whilst lower in the drug operation hierarchy as a courier, the offender must expect condign punishment, relying on Toole v R [2014] NSWCCA 318.
The Crown agreed there were no aggravating factors and any planning involved was carried out by others involved in the drug operation. Notwithstanding that, the offender was still in a position of trust with respect to the co-offender Templeton. The surrounding facts indicated that the operation was highly sophisticated and the absence of an encrypted device on the offender was of no great significance. The Crown conceded there was no indication that he was involved in any higher planning.
With respect to the offender's motivation, the Crown relied on his report to the author of the SAR that he had a drug debt of $8,000, which he had to pay to continue his lifestyle.
The Crown noted there was no causative mental illness offered by the offender and that his sentence should represent that he was a drug user who made a choice to offend in order to support his drug use, relying on Williams v R [2014] NSWCCA 57 and Jadron v R [2015] NSWCCA 217. His sentence should reflect the seriousness in distribution of and maintaining the supply of prohibited drugs in the community. The evidence supported a finding that he had an ongoing drug use issue over many years.
The Crown agreed that the offender was entitled to a 25% utilitarian discount for his early plea of guilty and that he made full admissions to investigating police about the drugs and money. The Crown also accepted that the offender had demonstrated remorse, however, whether he had accepted full responsibility formed part of the synthesis of sentencing. He was not entitled to any discount for facilitating the course of justice under s 22A of the CSPA.
The Crown submitted that the court would find that the offender's prospects of rehabilitation were guarded. The author of the SAR had assessed him as a medium risk of recidivism based on real risk factors involving his drug use, financial issues and vulnerability. The Crown however accepted that he had been abstinent of prohibited drugs in custody.
The Crown submitted that the court would take into account that the offender had told the author of the SAR that he had made a poor decision which involved a lapse in judgment, however, this demonstrated a lack of insight into his offending. In his own letter, the offender demonstrated his limited insight and remorse was self-focused and did not have regard to the damage prohibited drugs do in the community.
The Crown submitted it was open to the court to take into account the impact of the offender's incarceration on his family, however, this occurred in nearly every case and could not be regarded as substantial. Whilst the offender could be dealt with as a person of good character, the authors of the various testimonials as to his character were clearly not aware of the actual charges for which he was being sentenced. Further, in drug supply cases involving couriers, good character was of limited weight because general deterrence was important, relying on Van Can Ha v R [2008] NSWCCA 141 at [43].
The Crown rehearsed its submission that the s 5 threshold had been crossed and a term of full-time imprisonment should be imposed. The Crown agreed there should be substantial concurrency in sentence and a finding of special circumstances could be made. Any sentence should be backdated, however, if the court was to proceed to impose an ICO, it must date from the date of sentence. Finally, the Crown filed a confiscation order which was not opposed.

Determination

Section 3A of the CSPA sets out the purposes of sentencing 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."
In assessing the objective seriousness of the offence, pursuant to s 25(2) of the DMTA, I find that the offender was acting as a drug courier at the behest of Mr Templeton in return for payment of $10,000, which he intended to use in payment of a drug debt of $8,000 and other bills, given that he had been unemployed for a period of time prior to the offending and using prohibited drugs including cannabis, cocaine and ecstasy on a daily basis. I also take into account that the amount of cocaine involved, being 996.99 grams, was just below the prescribed large commercial quantity. The offender's role in the offending was unsophisticated, however, he knew what he was doing was wrong and illegal. It therefore constituted objectively serious offending just below the mid-range of an offence pursuant to s 25(2) of the DMTA.
The objective seriousness of the offence pursuant to s 193B(2) of the Crimes Act 1900 of knowingly deal with proceeds of crime involved the offender having $10,000 in cash as payment for his role as a drug courier. Given the amount of money involved, the short duration of the offending and surrounding circumstances, the objective seriousness of this offending fell in the low range for an offence pursuant to s 193B(2) of the Crimes Act 1900.
There were no aggravating circumstances to be taken into account on sentence. Mitigating factors to be taken into account are as follows: 1. The offender is now aged 60 and has no relevant criminal record (s 21A(3)(e)). 2. The offender is a person of prior good character (s 21A(3)(f)), however this factor is to be given limited weight given that couriers are usually chosen as they are of good character and will not attract attention of investigating authorities. 3. I find that the offender has learnt a salutary lesson and despite his assessment by the author of the SAR as a medium risk of recidivism, he is unlikely to reoffend (s 21A(3)(g)). 4. I find that the offender has reasonable prospects of rehabilitation given the progress that he has made whilst in custody in abstaining from prohibited drugs and coming to terms with his mental health issues (s 21A(3)(h)). 5. I accept the offender has demonstrated remorse and contrition both in his letter of apology to the court, his statement of remorse to others including Dr Nielssen (s 21A(3)(i)). 6. The offender has entered a plea of guilty at an early stage and is entitled to a 25% utilitarian discount on sentence.
General deterrence is important in sentencing for drug supply offences. A clear message must be sent to the community that Parliament has prescribed lengthy terms of imprisonment as maximum penalties to indicate the seriousness of such offences. Further, the courts will impose condign punishment in appropriate cases to deter people from the temptation of engaging in drug supply for financial rewards.
Specific deterrence is also important in this case in that the offender must understand that if he was to reoffend, he would be subject to increasingly severe punishment.
I have had regard to the maximum penalties imposed for the offence pursuant to s 25(2) of the DMTA of 20 years imprisonment and/or 3,500 penalty units, together with a standard non-parole period of 10 years imprisonment. I have also had regard to the maximum penalty for the offence pursuant to s 193B(2) of the Crimes Act 1900 of 15 years imprisonment. The maximum penalties and standard non-parole period for the drug supply offence are a yardstick, and a guidepost in the sentencing process. Given my finding of the objective seriousness of the offence pursuant to s 25(2) of the DMTA, and the subjective and mitigating factors referred to above, the standard non-parole period is not applicable in sentencing for the offence pursuant to s 25(2) of the DMTA.
I am satisfied that the s 5 threshold in the CSPA has been crossed and no penalty other than imprisonment is warranted in all of the circumstances.
There is no issue that the offender has and will continue to suffer hardship in custody as a result of the impact of the COVID-19 pandemic on the prison population. Restrictions have been imposed for the safety of the whole of that population, by way of restriction of visitation and access to education programs, together with long periods of isolation as suffered by the offender.
It is also not in issue that a finding of special circumstances should be made given the early plea of guilty, my findings of the objective seriousness of the offending and the fact that this is the offender's first term of imprisonment, together with the onerous conditions of custody as outlined above.
I intend to proceed by way of an aggregate sentence pursuant to s 53A of the CSPA. In order to provide transparency in the sentencing process, I am required to indicate the sentences that would have been otherwise imposed for each of the offences as follows: 1. Supply prohibited drug greater than commercial quantity, pursuant to s 25(2) of the Drug Misuse & Trafficking Act 1985 - two years and nine months imprisonment, with a non-parole period of one year and five months imprisonment. 2. Knowingly deal with proceeds of crime pursuant to s 193B(2) of the Crimes Act 1900 - 9 months imprisonment.
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."
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 Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 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."
Having regard to the fact that the offences took place at the same time over a short period of time, the sentences should be substantially concurrent. I therefore intend to impose an aggregate sentence of three years imprisonment.
In determining whether the sentence may be served in the community by way of an Intensive Correction Order, I am required to consider community safety as a paramount consideration, but also to take into account the purposes of sentencing as set out in s 3A of the CSPA above. I am also to have regard to the contents of the Sentencing Assessment Report in Exhibit A.
Here, as at the date of the offender's sentence, he will have spent one year, two months and 19 days in custody. I am satisfied that he has made considerable progress with his rehabilitation during that time and that he would be no threat to community safety. As held in R v Pullen (2018) 275 A Crim R 509; [2018] NSWCCA 264, the concept of community safety is inextricably linked with considerations of rehabilitation which is best achieved by positive behavioural change (see [84]). This is most likely to occur from the offender with supervision and access to treatment programs in the community, so as to address his drug issues and relapse prevention. Pursuant to Mandranis (supra) at [55] to [62], where the offender has already served a period of full-time custody, the length of sentence to be served by way of an ICO may be reduced to take into account the time served. I therefore intend to impose a sentence by way of an Intensive Correction Order pursuant to s 7 of the CSPA for a period of one year and eight months, to commence today.

Orders

I hereby order as follows: 1. You are convicted of the following offences: 1. Supply prohibited drug greater than commercial quantity, pursuant to s 25(2) of the Drug Misuse & Trafficking Act 1985; and 2. Knowingly deal with proceeds of crime pursuant to s 193B(2) of the Crimes Act 1900. 1. I sentence you to a term of imprisonment for a period of one year and eight months. 2. Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999, the sentence imposed on you is to be served by way of an Intensive Correction Order. The sentence will commence today, 18 August 2022. 3. The standard conditions of the order are to apply: 1. You must not commit any offence; and 2. You must submit to supervision by a Community Corrections Officer. 1. The following additional condition will apply: 1. A rehabilitation or treatment condition requiring the offender to participate in any rehabilitation program or to receive treatment as recommended by your treating doctor. 1. You must report to the Community Corrections Office at Tweed Heads as soon as practicable, but no later than seven days from the date of your release from custody. 2. If you fail to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or State Parole Authority. Those sanctions may include a formal warning imposing more stringent conditions, or it may include revocation of this order. 3. If the order is revoked, you may be required to serve all or some of the period of your sentence in full-time custody. You are now directed to attend the court registry where a copy of the order will be explained and given to you. 4. Pursuant to s 18(1) of the Confiscation of Proceeds of Crime Act 1989, the sum of $10,000 is forfeited to the Crown to be disposed of herewith.

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: 18 August 2022

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