On 8 March 2016, the offender was committed for sentence from the Queanbeyan Local Court for the following two offences which occurred on 18 August 2015:
1. Supply prohibited drug, being 215 grams of MDMA pursuant to s 25(2) of the Drug Misuse and Trafficking Act 1985 ("DMTA"). The maximum penalty for this offence was 20 years imprisonment and a fine of $385,000.00, or both. The offence carries a standard non-parole period of 10 years.
2. Supply prohibited drug, 155 grams of methylamphetamine pursuant to s 25 (1) of the DMTA. The maximum penalty is 15 years imprisonment and a fine of $220,000.00, or both.
The offender also asks that an additional charge be dealt with on a Form 1. That was an offence that occurred on 24 July 2015 of supplying a prohibited drug, being 1.31 grams of methylamphetamine pursuant to s 25(1) of DMTA.
The offender had been arrested in the Australian Capital Territory on 18 August 2015, and spent seven days in custody there, before he was extradited to New South Wales. He was then in custody from 25 August 2015 until 6 January 2016, a total of 140 days.
[2]
The sentence hearing
The sentence hearing took place on 23 May 2016. The Crown bundle became Ex A. It included a Statement of Facts which may be summarised as follows. On 24 July 2015, the accused met a male known to police, in the car park at Bungendore railway station and supplied him with 1.31 grams of methylamphetamine. That offence comprises the offence on the Form 1. A discussion took place about the future supply of prohibited drugs in which the offender stated that he could supply the male person with large quantities of MDMA, methylamphetamine, cocaine and cannabis. He also stated that he could supply the male with stun guns disguised as I-phones. The 1.31 grams of methylamphetamine was analysed with a purity of 79.5%.
On 6 August 2015, the same male contacted the offender and negotiated the supply of 140 grams of methylamphetamine, 225 grams of MDMA and five stun guns to be supplied on 11 August 2015. The offender met the male near Sutton on 11 August 2015, but did not have the drugs with him. He wanted to see the money and ensure that it was not a set up. After seeing the money, the offender made numerous attempts to obtain the drugs for the male, but was unable to do so. However, an agreement was made for the supply to take place on 18 August 2015.
The offender met the same man near Sutton on 18 August 2015 and supplied approximately 155 grams of what was purported to be methylamphetamine, and approximately 215 grams of what was purported to be MDMA. The male paid the offender a total of $32,000.00 for the drugs. The offender was in the company of a co-accused at that time. The offender advised that he was unable to obtain any stun guns, but reiterated his ability to source them.
When analysed, the 155 grams of purported methylamphetamine was shown to have no prohibited drug detected. The indictable quantity of the drug is 5 grams, and the commercial quantity is 250 grams.
The 215 grams of MDMA had been presumptively confirmed to be -3/4 methylenedioxymethylamphetamine. The indictable quantity of that drug is 1.25 grams, with the commercial quantity being 125 grams, and large commercial quantity is 500 grams.
When arrested, the offender had $1,400.00 is his possession. A drugs proceed order is sought pursuant to s 29 of the Confiscation of Proceeds of Crime Act 1989 for the sum of $32,000.00. A further order is sought for the destruction of the prohibited drugs retained by the NSW Police.
Exhibit A contained the criminal antecedents of the offender. They included the following convictions in the Australian Capital Territory:
1. Offence 31 August 2014 - Drive whilst suspended notice in effect - Fine $350.00.
2. Aggravated burglary, intent to commit theft - recognizance forfeited and warrant issued.
3. 26 July 2014 - Drive motor vehicle with alcohol in blood/breath - Fine $500.00, disqualified from holding or obtaining a licence for three months.
4. Offence 26 July 2014 - Contravene conditions of driver's licence - Fine $200.00.
The New South Wales criminal record referred to a number of motor vehicle offences in 2013, and relevantly, an offence on 5 May 2015 of possessing a prohibited drug, for which the offender was fined $500.00.
Exhibit B was a pre-sentence report under the hand of Ms Joanne Patten, dated 13 May 2016. The report noted the offender's family and social circumstances. He was brought up in a strict and caring household within the Muslim faith, and with a strong connection to his immediate and extended family. His parents separated when he was approximately 13 years of age, and he lived with his mother and siblings, but had regular contact with his father. At age 16 he became involved with illicit substances and withdrew from the family.
The offender completed school in Canberra at age 16. He then moved to Young and worked for a year at a meat processing plant and obtained his halal slaughterman's licence. In 2014, he returned to Canberra and commenced a plumbing apprenticeship, however, after a year he resigned from that apprenticeship because of his illicit substance abuse and anti-social lifestyle. He was unemployed for the majority of 2015. During that time, his abuse of illicit substances spiralled.
The offender was released to bail in January 2016 and thereafter entered a residential rehabilitation centre in Canberra. He completed all but the final week of the program. He was discharged due to leaving the premises without permission. He then attended a residential rehabilitation centre in Wagga Wagga for a short period of time between 16 March 2016 and 21 March 2016, when he voluntarily discharged himself. He reported to the author of the report that since his release from custody in January 2016, he has abused illicit substances on two occasions, however, he currently remains abstinent.
The report noted that the offender appeared to take responsibility for his role in the offences. At the time, he was heavily abusing illicit substances and had consequently accumulated large drug debts. He felt pressured to pay these debts and made the decision to supply the drugs for financial gain. He now showed some insight into the dangers of drugs, not only for an individual person, but to the community as well. He advised the author that he now intended to lead a pro-social lifestyle.
The offender was assessed as a low/medium risk of reoffending. His identified criminogenic needs were alcohol/drug problems. He appeared to be well motivated in relation to remaining abstinent from illicit substances and was awaiting an appointment with a local drug and alcohol counsellor to further support him. He was assessed as unlikely to benefit from a period of supervision by Community Corrections and as being suitable for a Community Service Order.
The offender tendered the following documents:
1. Exhibit 1 was an Analyst's Certificate pursuant to the DMTA which demonstrated that in respect of both substances supplied by the offender, comprising 214.5 grams and 155.7 grams, neither contained any prohibited drug.
2. Exhibit 2 was a bundle of character testimonials provided by the offender's family members and friends. They bespeak of a young person from a good family who was honest and hardworking, but his life spiralled out of control when he became addicted to drugs. Since his release on bail, he had demonstrated to the authors of each reference, that he had remorse for his offending and was committed to getting his life back on track. He was now working at the abattoir and also assisting on the family cherry farm. He had the support of a very large group of family and friends, and had adopted a mature outlook on his life and future, and was serious about trying to take back a life without drugs.
3. Exhibit 3 was a report from Directions Pathway to Recovery, under the hand of Kim Fleming. It was undated, however, it was prepared for the offender's appearance in the Magistrate's court at Canberra. It recorded his admission to the rehabilitation program on 6 January 2016, and his participation in all aspects of that program.
[3]
The offender's evidence
The offender gave evidence that he was born on 31 May 1996 and will be 20 years of age soon. He started using cannabis at 16 years of age, and after his move to the ACT in 2014, he commenced using methylamphetamine or ice. His use escalated and that is what led to his offending in the ACT Court, which is recorded above in 2015. He entered pleas of guilty to each of those charges.
The offender gave evidence the reason for his offending was that he owed people money for drugs. He used the $32,000.00 he received to pay his drug debt, and to purchase further drugs. Following his extradition to NSW, he was incarcerated at Goulburn gaol from 25 August 2015 to 6 January 2016. It was his first time in gaol and he did not enjoy the experience. Upon his release he attended the Arcadia House program, but was discharged when he left the premises for half an hour to buy cigarettes, which were prohibited. At the residential rehabilitation program at Wagga Wagga, the food was not halal and he could not eat, and felt he had to leave the program.
The offender gave evidence that the two occasions on which he had resorted to illicit drug use were when he had left Arcadia House. He was feeling "really stressed out" because of the court proceedings, and saw someone he knew who was smoking a joint and he participated.
The offender was now living with his mother on a cherry farm near Young. He was working full time as a halal slaughterman, which kept him busy. He was also happy to be working on a farm, as he grew up on one. He was earning his own income in order to repay the monies involved in the subject transactions.
The offender said he was not tempted to use drugs, and his time in gaol had made him wake up to himself. He wanted to get back to his life and his family.
The offender gave evidence that it was a condition of his employment at the abattoir to undergo compulsory urinalysis on a 6 monthly basis, and also to undergo regular testing by way of a mouth swab. He had had no positive results to that testing to date.
In respect of the offending, the offender said it was his intention to try and obtain drugs to supply them, but he never could. Further, he knew he could never get the amounts involved. When asked why therefore he went through with the transactions, he said he was in a tight situation. The drugs clouded his judgment and he did not think it through. At the time, he did not believe it was wrong to sell fake drugs. The people he owed money to were putting a lot of pressure on him, and he did not think of the consequences. He never believed that he was dealing in drugs.
The Crown submitted that in respect of each of the two matters of supply large quantities of drugs, the drugs represented to be sold were deemed to be supplied pursuant to s 40 of DMTA. The moral culpability of the offender was only marginally reduced on the basis that there was no prohibited drugs contained in those quantities and the offender must accept the consequences of his actions. The Crown conceded that he had entered an early plea of guilty and was therefore entitled to a 25% discount on sentence. The Crown further agreed that he had been incarcerated for 140 days.
The Crown submitted that the objective seriousness of the offending was towards the mid-range, given the quantities involved. The 215 grams was greater than the commercial quantity and significantly over (namely 125 grams). Further, the role of the offender was that of principal. The offences were committed for financial gain and the offender had asked that the actual supply offence be taken into account on the Form 1. The Crown submitted that the court should have regard to the high maximum penalties set by Parliament for the offences, the first carrying with it a standard non-parole period of 10 years. The Crown therefore submitted that a full time custodial sentence was warranted.
[4]
Offender's submissions
Learned Counsel for the offender referred to the decision of the Court of Criminal Appeal in R v Blair (2005) 152 ACrimR 462 at [56] as authority that purity of the drugs is one of the factors considered when determining whether an offence falls within the mid-range of seriousness.
Here, Counsel submitted that the objective seriousness of the offending was towards the lower range for the following reasons;
1. The absence of any prohibited drug in the material supplied.
2. That the supply took place in the context of a controlled operation.
3. It was submitted that the offender intended a heist rather than to supply prohibited drugs.
4. Further, the drugs were supplied to police and therefore did not make their way into the community. It was acknowledged that that would not ordinarily mitigate the offending.
Learned Counsel referred to Judicial Commission statistics for the offending which demonstrated 10% of offenders were sentenced to a non-custodial sentence. The statistics demonstrated that in a number of cases involving young people between 18 and 20 years, with an early plea of guilty, and some priors, but none of the same type, sentences other than full time custody were imposed.
The subjective factors were also strong here. The chronology demonstrated a downward spiral in the offender's life once he moved to the ACT and became involved in the use of ice. He was still very young, being 19 years of age, and had a minor criminal history which reflected his escalating use of ice. Further, the offender had undertaken successful rehabilitation to date and on return to his family at Young, there had been no reoffending. He was involved in pro‑social activity which saw him in full time employment and also employed on the family farm. He had already spent 140 days in custody, and if the court were minded to impose a sentence of 2 years or less, then it was advocated that the court should consider suspending any further period of imprisonment, pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999, or otherwise to consider an Intensive Corrections Order pursuant to s 7 of the Act, for the balance of his sentence.
[5]
Determination
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."
Section 40 of the DMTA provides as follows:
"Effect of certain representations
40 (1) A substance (not being a prohibited drug) which, for the purpose of its being supplied, is represented (whether verbally, in writing or by conduct), as being a prohibited drug or a specified prohibited drug shall, for the purposes of the Act, and the regulations, be deemed to be a prohibited drug or the specified prohibited drug, as the case requires."
The application of that section underlies the offender's offending pursuant to s 25(1) and (2). In respect of the supply of 215 grams of MDMA, pursuant to s 25(2), the amount supplied of 215 grams was a commercial quantity. In respect of the supply of 155 grams of methylamphetamine pursuant to s 25(1), the amount was less than a commercial quantity. I accept the submission made by learned Counsel for the offender that the purity of the drugs is one of the factors considered when determining whether an offence falls into the mid-range of seriousness. The quantity of drugs is not the sole, or principal determinant for sentencing in relation to drug offences. More important is the role of the offender and the level of his or her participation in the offence. There is an increase in the objective seriousness which is reflected by the increase in penalty as the quantity of the drug becomes commercial or greater quantities.
The supply here was on one occasion. The offender had no prospect of obtaining the drugs to be supplied, and carried out the transaction because of pressure on him to pay his drug debts. The offending was borne of his addiction, and for the purpose of facilitating that addiction by paying the people who had supplied him.
The objective seriousness of the offending here was below the mid-range, but not necessarily towards the lower end of that range, because of the quantities involved and the amount of money involved.
I have had regard to the maximum penalty of 20 years imprisonment and a fine of $385,000.00, or both, together with the standard non-parole period of 10 years in respect of the supply of prohibited drugs of 215 grams of MDMA. I have also had regard to the maximum penalty of 15 years imprisonment and a fine of $220,000.00, or both, in respect of the supply of 155 grams of methylamphetamine. The maximum penalties are guideposts in the sentencing process.
I note that the Crown agrees that the offender is entitled to a utilitarian discount for his early plea of guilty and that a maximum discount of 25% should apply. I have also taken into account the remorse of the offender and I accept his evidence, and that of his family members, that he has made significant progress in his rehabilitation from his addiction to illicit drugs.
I accept that general deterrence is an important matter to be taken into account in drug supply offences (see R v Wong [1999] NSWCCA 420). Specific deterrence is also relevant here by the fact that the offender now has insight into his criminal behaviour and has made real progress with his own rehabilitation. He has undertaken pro-social steps to ensure his return to the community.
I have also had regard to the statistics produced by the Judicial Commission of New South Wales. Whilst such statistics are of limited utility, they do demonstrate that where a full time custodial sentence is generally warranted for drug supply offenders, where there is one offence only, and with no relevant priors, and an early plea of guilty, then other sentencing options are available to the court. They include a suspended sentence pursuant to s 12, or an Intensive Corrections Order pursuant to s 7 of the C(SP)A.
In EF v R [2015] NSWCCA 36, the Court of Criminal Appeal considered earlier decisions of the Court such as R v Gu [2006] NSWCCA 104, which demonstrated that unless there were truly exceptional circumstances present, a full time custodial sentence ought to be imposed wherever the offender had been substantially involved in the supply of prohibited drugs. Simpson J described the decisions to that effect as being "legion" (see [10]). Having referred to the authorities, her Honour, at [12] said:
"I further observed that, at the time the statements of a "policy", or "rule" were made, the option of an Intensive Correction Order did not exist. That was introduced into the Sentencing Procedure Act with operation from 1 October 2010; Crimes (Sentencing Legislation) Amendment (Intensive Correction Orders) Act 2010 (NSW)."
Her Honour went on to state that failure to consider an optional alternative to full time imprisonment may be the cause of injustice in a particular case (see [13]).
I note that the offender has already served 140 days in custody.
I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. I am, however, persuaded, having regard to all of the above matters, that a sentence of not more than 2 years full time custody is warranted in this case. I am further persuaded that the offender should be assessed for his suitability for an Intensive Corrections Order, pursuant to s 7 of C(SP)A, which would reflect the objective seriousness of the offending, the offender's need for rehabilitation and the purposes of sentencing set out in s 3A of the C(SP)A, noting that he has already served 140 days in custody.
[6]
Orders
I make the following orders:
1. I am satisfied, having considered all of the alternatives, that no sentence other than imprisonment is appropriate.
2. I am satisfied that the sentence is likely to be for a period of no more than 2 years.
3. The offender is referred for assessment for suitability for an Intensive Corrections Order.
4. I have certified the matter to be taken into account on the Form 1, and I have taken that matter into account on sentence.
5. I adjourn the matter to 10 am on 18 August 2016 at Sydney District Court for consideration of the assessment report and for sentencing.
6. I order that pursuant to s 29 of the Confiscation of Proceeds of Crime Act 1989 the offender pay the sum of $32,000.00 to the State.
7. I further order that the prohibited drugs be destroyed by the NSW Police.
8. Pursuant s 7 C(SP)A, offender to serve sentence by way of ICO for a period of 18 months from today in accordance with the standard conditions in that section and the following further conditions:
1. Report to Community Corrections at Young within 7 days of today.
2. To reside at address as specified.
[7]
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Decision last updated: 19 August 2016