R v Newport, John Robert

Judgment

1. John Robert Newport, the offender, comes before me to be sentenced in respect of one offence of supplying a prohibited drug on an ongoing basis. The amount of drug supplied was 305.2 grams of methylamphetamine. The period over which the supply took place was from 14 May 2018 to 7 June 2018, involving three separate transactions between a co-offender and an undercover operative.
2. The offence is contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW) and carries a maximum penalty of 20 years imprisonment. The offence does not attract a standard non-parole period.
3. The offender pleaded not guilty and was committed for trial. The trial was listed to commence on 25 November 2019. The offender pleaded guilty on the first day of trial. It was a late plea of guilty. It is accepted on the offender's behalf that an appropriate reduction in sentence is one of 5%.

Facts

1. An offence contrary to s 25A of the Drug Misuse and Trafficking Act 1985 (NSW) refers to an offence of supplying prohibited drug on an ongoing basis. The reference to an "ongoing basis" is to the element that a person supplies the drug on three or more separate occasions during a 30-day period. The other element of the offence is that the supplies be made "for financial or material reward". It is necessary to note that one of the elements of this offence is financial or material reward.
2. The section is directed to the concepts of repetition, system and organisation and the objective criminality of any offence under the section should be determined by reference to those features, and not merely to the number and quantities of individual instances of supply: R v Hoon; R v Pouoa [2000] NSWCCA 137 at [39]; Kennedy v R [2020] NSWCCA 49.
3. The circumstances giving rise to the offence are set out in a Statement of Agreed Facts. The offender gave lengthy sworn evidence during the sentence proceedings. He was cross-examined at some length. The offender impressed me as an articulate, insightful and honest witness. The facts upon which I proceed to sentence the offender are based upon a summary of the Statement of Agreed Facts, complemented by the sworn evidence of the offender.
4. In February 2018, Strike Force Malakua was established to investigate the supply of methylamphetamine in the Surry Hills Police Area Command. During the investigation, police identified the offender as being involved in the supply of prohibited drugs with his co-offender, Hugh Bond.
5. An undercover operative using the assumed identity "Neel" contacted the co-offender to arrange for the supply of methylamphetamine. During their communications, the co-offender used coded terms to refer to methylamphetamine and quantity.
6. On 15 May 2018, a quantity of 83.8 grams of methylamphetamine was supplied to the undercover operative. The undercover operative had been in communication with the co-offender relating to the supply of 4 ounces of methylamphetamine for $4,000 per ounce.
7. On 15 May, the offender checked into a room at Zara Tower. He presented his passport and a St George bank card in his name. He paid a sum of $600, which I accept, having regard to his evidence, was a deposit that was returned to him.
8. I accept his evidence that the room cost somewhere in the vicinity of $250, a fee that was ultimately split between himself and Mr Bond.
9. At about 1:17pm on 15 May, the offender met with his co-offender at Zara Tower. At 1:46pm they left the building. The co-offender remained in the area. At 2:36pm the undercover operative arrived. The co-offender entered the undercover operative's vehicle. A request by the co-offender that the undercover operative go with him to the hotel room to retrieve the drugs was refused. The co-offender then left the vehicle and went back to Zara Tower. Some minutes later, he returned to the undercover operative's car and supplied the undercover operative with a package which contained 3 ounces of methylamphetamine. He told the undercover operative that he would have to come back later for the last ounce as "his friend had too much traffic".
10. The undercover operative paid $12,000 for the 3 ounces. This transaction involves 83.8 grams of methylamphetamine with a purity of 79.5%.
11. The second supply took place on 23 May 2018 and involved 138 grams of methylamphetamine. On this occasion the undercover operative called the co-offender and placed an order for 4 ounces of methylamphetamine. The undercover officer was told to attend Quay West Apartments. On 23 May the undercover officer and the co-offender exchanged a number of messages regarding the supply that day. At about 12:44pm on that date the co-offender was observed to be waiting at the front of Quay West Apartments.
12. At 12:52pm this offender left his home in Paddington and caught a taxi to Quay West Apartments. He was carrying a green coloured Coles canvas bag which contained 5 ounces of methylamphetamine.
13. He was observed to still be holding the canvas bag when he entered the foyer of the apartment building. He checked in using his own name and provided cash for the deposit which was later returned to him. The booking of the room was secured by a credit card in the co-offender's name.
14. At 1:30pm the undercover officer arrived at the location. Some minutes later the co-offender walked out of the hotel holding the green Coles canvas bag and entered the undercover operative's vehicle. He handed him the bag, which contained 5 ounces of methylamphetamine, in return for $20,000.
15. At 2:19pm, both offenders left Quay West Apartments. Subsequent analysis of the substance given to the undercover operative revealed a total amount of 138 grams of methylamphetamine with a purity that ranged between 69.5% and 73.5%.
16. The third supply took place on 6 June 2018 and involves 83.4 grams of methylamphetamine. Between 1 June and 4 June 2018, the undercover operative and co-offender exchanged a number of messages about purchasing methylamphetamine. An order was placed for 3 ounces of the drug for $12,000.
17. At about 1:46pm on 6 June the offender travelled to a location in Surry Hills where the co-offender was collected. The offenders then travelled to the Song Hotel. At 2:17pm the co-offender met the undercover officer outside of that hotel. They walked to the undercover operative's car and got inside. While in the car the drugs were handed over for an amount of $12,000.
18. Some minutes later, the offenders met and returned to the Song Hotel together. The offender checked into that hotel in his name and presented a credit card and an Australian passport in his own name as part of the check-in process.
19. The amount of the drug supplied was 83.4 grams with a purity of 78%.
20. On 27 June 2018 police executed a search warrant at the offender's premises. Among other things, the police located four iPhone boxes and one iPhone, approximately 2 grams of a white crystal substance which was not analysed, and a red plastic container containing an amount of brown crystal substance which was not analysed.
21. On each occasion the offender used identification documents bearing his own name. I am satisfied that on each occasion the cost of the room was split between the offenders.
22. There is no doubt that the offender engaged in this activity for financial reward. The offender gave evidence that his relationship with the mother of his child ended in 2009. He was not using illicit substances at that time. He then entered a relationship with a woman referred to as Zoe. That relationship lasted some five years. He did use prohibited drugs, about once a month, during that relationship.
23. Over time, his drug use increased and changed from cocaine to methylamphetamine. His use of methylamphetamine commenced some five to six years before the offending conduct. His drug use escalated and became a significant problem. Initially he was still running his business and using the profits to fund his addiction. He used the business profits and money intended for tax bills and payment of employees to buy drugs for his personal use. Maintaining his business became untenable and it ceased to operate some two years before his arrest.
24. In those two years he admitted funding his addiction by selling drugs. He gave evidence under oath that, in relation to the three supplies constituting the offence, he made a sum of $4,400 which was partly spent on purchasing drugs for his own consumption and paying rent.
25. He has no assets and there is no evidence that he enriched himself as a result of this offending conduct.
26. He also gave candid evidence that the up-level supplier did not trust Mr Bond and would not deal with him. As a result, an arrangement was entered into in which the up-line supplier would provide the drugs to this offender who would then supply them to the co-offender (Bond) who dealt directly with the undercover operative.
27. This offender gave evidence that the supplier trusted him to take possession of the drugs on credit. The offender was too scared to name the supplier. He gave evidence that during the offending period he was diligent in ensuring that payment was made to the supplier because he feared the ramifications if the supplier was not paid.
28. It appears that the up-line supplier did not trust Mr Bond because he had a gambling habit and there was some concern about whether he would make good the payment for the drugs.
29. The offender was cross-examined at length. Some seven or eight months after his release from custody he moved into the apartment in Paddington, sharing that accommodation with others. His share of the rent was $400 per week.
30. He was introduced to the co-offender in either December 2017 or January 2018. The co-offender wanted to set up a brothel and told this offender that he had investors. He became interested in the proposal because he viewed it as a way of getting back into the building industry. However, the offender came to realise that this was a pipe dream rather than a reality.
31. It was sometime after that he engaged in the arrangement with the up-line supplier and the co-offender to supply methylamphetamine. The offender and his co-offender divided the profits from each supply equally.
32. Although the offender admitted that he did supply the co-offender with small amounts of methylamphetamine from April 2018, he denied that Bond owed him a debt of $5,000.
33. When I sentenced the co-offender, I accepted his evidence that he engaged in the supply of drugs to repay a drug debt to this offender. At that time, I did not have the evidence of this offender. One of the disadvantages in sentencing co-offenders separately is that it deprives the Court of having all of the relevant information available at the one time. That is why it is preferable to have offenders sentenced together. That has not happened here. I must proceed on the evidence presented in these proceedings.
34. A transcript of the evidence given by Mr Bond is included in the Crown bundle (Exhibit A). While it is evidence in the proceedings, the weight I place on that evidence is reduced having regard to the fact that I have now had the opportunity to observe this offender give evidence and make an assessment of his credibility. I am satisfied that he is a wholly credible witness. He was unshaken in cross-examination and I accept his evidence that he received $4,400 which he used to fund his own addiction and pay his rent.
35. I accept his evidence that Mr Bond did not owe him a debt of $5,000 and that, while he did supply Mr Bond with the drugs, they were small quantities on a limited number of occasions from April 2018.
36. I find that this offender's role was one step up from that of Mr Bond because he was trusted by the up-line supplier and was responsible for ensuring that the transactions were successfully completed and payment made to the supplier. However, I am not satisfied that his role was significantly more extensive than that of his co-offender.
37. Although more trusted, I am unable to find beyond reasonable doubt that this offender's role was more sophisticated. There was no attempt for instance to disguise his identity. He used identification documents at the various hotels or locations which linked him to the various transactions.
38. Although his role is slightly higher than that of his co-offender, I am not persuaded that he fulfilled a senior role in this drug enterprise or that his conduct involved sophisticated criminal activity. Nor am I persuaded, as contended by the Crown (in written submissions), that this offender's role is accurately described as that of the principal.
39. He fulfilled a slightly higher role than his co-offender because he was more trusted by the up-line supplier. However, this offender was not a significant decision-maker. He did not decide upon the quantity of the drugs or the price of the drugs.
40. I do not take into account the fact that he engaged in the supply of prohibited drugs for financial gain as a separate aggravating factor. To do so, in my view, would be erroneous having regard to the fact that an element of the offence is engaging in the supplies for financial or material reward.
41. I have had regard to the quantity of the drug. This was a significant quantity of 305.2 grams of methylamphetamine. However I bear in mind that the quantity of the drug is not the chief or determinative factor in arriving at an appropriate penalty: Wong v The Queen; Leung v The Queen (2001) 207 CLR 584.
42. The importance of general deterrence in drug supply cases requires that a consistent message of deterrence from sentencing judges is necessary. Further, the protection of the community will usually be a significant factor having regard to the social impacts of drug use. I am conscious of the fact that in this case there was no risk that the drugs would be disseminated into the community having regard to the undercover operation. However, the extent to which that factor can be taken into account in mitigation of sentence is limited because it was through no act of the offender that the drugs were not disseminated into the community.
43. The offence does not attract a standard non-parole period. It is not necessary to characterise the objective seriousness by reference to a notional mid-point. However, in light of the way in which the submissions have been framed, it is important to say something about the way in which the objective seriousness of the offence has been characterised.
44. In written submissions, the Crown submits that the offence falls above the mid-range of objective seriousness having regard to the amount of drug supplied at relatively short notice, the purity of the drug and the role the offender played as the "principal" in the exercise.
45. I reject that submission. I do not find the offender played the role of principal. The quantity of the drug is substantial but is not the chief or determinative factor. There was nothing particularly sophisticated about the nature of this offending. I am satisfied that it falls just below the middle of the range of objective seriousness.

Subjective Circumstances

1. The offender grew up with his parents and older brother in northern New South Wales. His parents were strict. His father, in particular, instilled in him notions such as "males don't cry", "don't talk about your emotions" and "people need not know your business". His father was engaged in criminal conduct and the offender was exposed to what he described as "standovers" at the age of 7 or 8.
2. He was also exposed to verbal altercations between his parents in the family home and physical violence at the hands of his father. His mother engaged in what he described as "silent treatment", making him feel guilty by noting her disappointment in his behaviour, often being worried about how his behaviour would reflect on the family. His relationship with his family members was disconnected and he often felt as though he was the "black sheep of the family". He did not feel loved by his father whom he perceived as preferring his older brother.
3. The offender did have a warm and loving relationship with his maternal grandmother and his maternal uncle. His uncle struggled with heroin addiction over the years although this was not a factor the offender was aware of when he was younger. When the offender was in his early 20s, his uncle committed suicide. The offender's grandmother found her son deceased and was distraught. His uncle's death deeply affected the offender who resorted to using drugs as a way of numbing emotional pain. There is a family history of alcohol and drug abuse.
4. The offender completed Year 12 and described himself as academically above average although not popular. Following school, he was engaged in consistent employment. The offender completed a carpentry apprenticeship over a three-year period. Upon completing this apprenticeship, he travelled overseas, residing in various locations in Canada and the United States and holding employment in the building, retail and hospitality industries. He continued to travel between the United States and Australia until he was about 26 or 27 years old at which point he returned to Australia for a shoulder reconstruction surgery.
5. During this time, he resided in Byron Bay where he met Hayley with whom he formed a relationship. He subsequently returned overseas not being aware that Hayley had fallen pregnant with their daughter. Upon learning of the pregnancy, he returned to Australia where he remained and obtained employment in the building industry.

Parity

1. I sentenced the co-offender, Hugh Bond, on 20 June 2019. He pleaded guilty to an offence of supplying not less than the commercial quantity of methylamphetamine, an offence contrary to s 25(2) of the Drug Misuse and Trafficking Act 1958 (NSW). Following the application of a 25% discount for his early plea of guilty, I imposed a total sentence of 5 years imprisonment with a non-parole period of 2 years 9 months imprisonment. The starting point was one of 6 years 8 months imprisonment.
2. Notwithstanding the fact that this offender played a slightly more serious role, I am of the view that the appropriate starting point in this case is less than 6 years 8 months.
3. The principle of parity operates to avoid an offender having a justifiable sense of grievance. Sentences imposed upon co-offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with a heavier sentence or to give the appearance that justice has not been done. That said, where there are relevant points of distinction, it is necessary to take those differences into account in determining the extent to which the principle of parity applies.
4. Mr Bond was sentenced for his involvement in this offence having pleaded guilty to an offence that attracted a standard non-parole period of 10 years imprisonment. Although the maximum penalty in relation to the respective charges is the same, in Mr Bond's case there was an additional yardstick constituted by the standard non-parole period of 10 years imprisonment.
5. But more importantly, when determining the appropriate sentence in Mr Bond's case, I took into account two matters on a Form 1 document. Of relevance to the issue of parity is the first offence on the Form 1 document, an offence of agreeing to supply not less than the commercial quantity of methylamphetamine, namely 481.9 grams. The offence on the Form 1 document was objectively very serious and, although it did not operate to increase the objective seriousness of the substantive offence, it did serve to increase the weight to be given to denunciation and specific deterrence and thereby the ultimate penalty. This is an important distinguishing feature when one has regard to the fact that this offender has no Form 1 offences.
6. Furthermore, the offender's subjective case is highly compelling and the extent of his rehabilitation and prospects for the future are in a more favourable category than those of his co-offender. Put another way, I am satisfied that this offender's demonstrated rehabilitation is excellent.

Pre-Sentence Custody

1. The offender spent 5 months 1 day in custody before being released on Supreme Court bail. Thereafter he was in residential rehabilitation at Odyssey House between 27 November 2018 and 4 March 2020, a period of 1 year, 3 months and 7 days.
2. Residential rehabilitation programs have been held to constitute quasi-custodial conditions. An allowance can be made for an offender's participation in a residential program having regard to the restriction on the offender's liberty during the period of that program. I am satisfied, having regard to the restrictive conditions experienced by the offender during the residential program, that an allowance be made of 75% of the period spent in residential rehabilitation by backdating the sentence: Brown v R [2013] NSWCCA 44.
3. 75% of the total period spent at Odyssey House is 11 months 13 days. In addition, I take into account a period of pre-sentence custody of 5 months and 1 day. The total period of pre-sentence custody is therefore 16 months and 14 days.
4. Mr O'Sullivan submits on behalf of the offender that, having regard to the period of pre-sentence custody, I can proceed by way of a two-year term of imprisonment to be served by an Intensive Correction Order. Having regard to the objective seriousness of the offence, the maximum penalty and principles of parity, I am not persuaded that a 2-year head sentence would sufficiently reflect the seriousness of the offence (even having regard to the period of pre-sentence custody).
5. For the reasons stated above, notwithstanding the slightly higher role played by this offender, I am satisfied that a starting point less and 6 years 8 months is warranted in this case. Having taken into account the objective seriousness of the offence, the purposes of sentencing and the offender's subjective case including his genuine remorse and excellent rehabilitation, I am satisfied that a starting point of 4 years 9 months imprisonment is appropriate. That sentence will be reduced by 5% to reflect the utilitarian value of the plea of guilty. The head sentence is therefore one of 4 years 6 months imprisonment.
6. I make a finding of special circumstances warranting what is a significant variation of the statutory ratio. Indeed, the non-parole period will be significantly less than 50% of the total term of imprisonment. The offender's rehabilitation has been exceptional. Not only has he completed a residential program of some length, he continues to engage in counselling through that program while living in the community. Returning him to a further period of imprisonment will risk setting back that rehabilitation.

Determination

1. The offender is convicted.
2. Taking into account a discount of 5%, I impose a sentence of imprisonment consisting of a non-parole period of 1 year 4 months 14 days imprisonment, commencing on 25 December 2018 and expiring on 8 May 2020, with a balance of term of 3 years 1 month 16 days imprisonment, expiring on 24 June 2023. The total term is 4 years 6 months imprisonment. The starting point before the application of the 5% reduction in sentence is 4 years 9 months imprisonment.
3. The offender is eligible for consideration for release on parole at the expiration of the non-parole period, subject to the guidance and supervision of Community Corrections for as long as they deem necessary.

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