R v Newport, John Robert

District Court of NSW|2020-04-24

Judgment

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.
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.
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%.

Subjective Circumstances

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.
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.
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.
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.
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.
The relationship with Hayley ended but the offender maintained contact with his daughter. That contact was disrupted when his ex-partner and daughter relocated to northern New South Wales. As set out above, thereafter he formed a relationship with Zoe which lasted some five years.
Forensic psychologist, Ivanka Manoski, notes that the offender presents with significant difficulties with open communication and vulnerability in relationships. His upbringing had a negative impact on his ability to openly discuss his emotions, often keeping others at an emotional distance.
However, during his time at Odyssey House, he commenced developing an ability to communicate more openly about childhood issues. It seems that his relationship with his parents has improved at least to some extent. They have been supportive of him and offered him accommodation upon his discharge from Odyssey House.
The offender has a chronic history of substance abuse that commenced at about the age of 14. He was introduced to cannabis by friends. He commenced drinking alcohol at about the age of 15. At 18 he experimented with MDMA and amphetamine. He was introduced to methamphetamine use by one of his employees in 2014. He initially used that substance on weekends, however his drug use escalated and his life spiralled out of control.
The offender has a prior record of offending that for the most part includes driving-related offences. Of concern to the Court is the fact that he committed an offence of supplying a prohibited drug in July 2015 for which he was fined $1,000. His record disentitles him from the leniency that would be afforded a first-time offender or a person with a relatively minor record. That said, I am satisfied that in 2015 he lacked the maturity and insight to recognise the destructive impact of his drug-related activity upon himself and the wider community. He was lacking in insight, maturity and good judgement. By contrast, he is now at a stage in his life where he has developed maturity, insight and the capacity to lead a law-abiding life.
Following a period of being bail refused, the offender was granted Supreme Court bail to attend a residential rehabilitation centre. He entered into the Odyssey House residential rehabilitation program on 27 November 2018. He progressed well through the various levels of that program. Odyssey House enforces very strict rules which place significant limitations on the movement of patients. In that facility, he had limited telephone contact with others. He attended mandatory counselling and was closely monitored. Any infraction could have resulted in being discharged.
The offender gave evidence that, just before Christmas 2019, he progressed to a level where he was allowed to reside in more independent living quarters also owned by Odyssey House. The restrictions were relieved at least to some extent. He was able to cook and clean for himself and manage his own finances. A curfew continued to exist although the hours were extended. Mandatory counselling continued.
During his stay at Odyssey House, he underwent random urine analysis, and had to account for his whereabouts at all times, attend group meetings and maintain his job function.
His job function included: answering phones and inquiries; taking referrals and assisting staff to make appointments for assessment; assisting with admissions of new residents; answering any questions that newcomers or their families may have had regarding the program; escorting new admissions to the withdrawal unit; and supporting staff at the Admissions and Intake Centre. As he progressed through the program, he took on a mentoring role for new admissions.
Kate Taylor, Legal Issues Coordinator at Odyssey House, states that the offender's motivation has not waned and he has completed a series of relapse prevention workshops as well as studying online a Certificate IV in Building and Construction through TAFE NSW.
He completed Level IV in February of this year but continued to engage in one-on-one counselling at Odyssey House Community Services until Covid-19 restrictions were put in place. Since then, the offender has commenced an online SMART recovery group. He has expressed enthusiasm for the program and is committed to attending the program for the foreseeable future. The offender confirmed that history of his experience at Odyssey House and his continued commitment to rehabilitation.
The offender was discharged from Odyssey House on 4 March 2020 following successful completion of the program. Although the last 3 months or so involved more independent living conditions, the offender was still subject to restrictions including curfew and monitoring. He attended counselling and was still subject the rules and regulations of Odyssey House. His rehabilitation has been excellent.
The extent of his rehabilitation is evident in his appearance and demeanour during his evidence in the proceedings. I am satisfied that, having engaged in this course of lengthy rehabilitation, he has developed a genuine insight into the wrongfulness of his actions and the dangers involved in the dissemination of drugs into the community. I am satisfied that he has demonstrated excellent rehabilitation and, with continued intensive supervision, is unlikely to reoffend.
He now presents with insight regarding the relationship between his early childhood experiences and the addiction which gave rise to his criminal behaviour. The psychologist concludes that the offender impresses as someone who has gained much insight and skills from his participation in the residential rehabilitation program and recommends that he continue to engage in therapeutic intervention with Odyssey House to reinforce his demonstrated rehabilitation to date.
A number of references are relied upon by the offender. Lauren Shead, senior physiotherapist, states that it was upon entering residential rehabilitation that the offender commenced to reflect on his actions. She observed the offender's earnest approach to rehabilitation and witnessed his progress in the program.
Tomas Hanlon has known the offender to some 10 years and describes the offender as honest, reliable and responsible. He notes that about five years ago the offender's life changed and quickly went downhill, largely as a result of his addiction to ice. Mr Hanlon has also observed a significant positive change in the offender's life since he entered residential rehabilitation. Mr Archer confirms that the offender has worked for him as a carpenter on several occasions over the years and describes the offender as highly skilled, reliable and having a good work ethic.
I am satisfied that the offender is genuinely remorseful for his conduct and has developed a genuine insight into the underlying issues giving rise to his addiction. He has the capacity, intelligence and tools to remain abstinent and build a successful, law-abiding life, if he so chooses.

Parity

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.
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.
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.
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.
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.
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

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.
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.
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.
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).
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.
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.
"By contrast to deterrence, rehabilitation has as its purpose the remodelling of a person's thinking and behaviour so that they will, notwithstanding their past offending, re-establish themselves in the community with a conscious determination to renounce their wrongdoing and establish or re-establish themselves as an honourable law abiding citizen": R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225 at [124].
I find special circumstances warranting this significant variation of the statutory ratio because I am satisfied that the offender's continued rehabilitation is best achieved by way of counselling and supervision in the community.
Principles of general deterrence, denunciation and punishment are reflected in the lengthy head sentence and the fact that he will be subject to lengthy parole. The balance of all the foregoing considerations will require a substantial adjustment to the statutory ratio in order to do justice in the individual circumstances of this case.
The extent of the variation of the statutory ratio may be regarded as excessively favouring the offender. But in my view it serves to achieve the very important consideration of the protection of the community. Facilitation of the offender's excellent rehabilitation and ensuring that he remains a law-abiding citizen best serves not only the offender's interests but those of the community at large.
The protection of the community is contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of offenders who have not developed settled criminal habits: R v Blackman and Walters [2001] NSWCCA 121.
The offender is truly at a crossroads in his life. "There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform": R v Osenkowski (1982) 5 A Crim R 394 at 394 per King CJ.
I have endeavoured to reflect, in the head sentence, the objective seriousness of the offence and the important considerations of general deterrence, denunciation and punishment. General principles must, of their nature, be adjusted to the individual case if justice is to be achieved. Paramount among these is the achievement of justice in the individual case: R v Lattouf (Court of Criminal Appeal (NSW), 12 December 1996, unrep).
The sentence I impose will comprise a non-parole period backdated to take into account the total period of pre-sentence custody, expiring today. However, having regard to the fact that the total sentence is in excess of 3 years, as I understand it the offender will have to be taken into custody to be released by order of the Parole Authority. The sentence has been structured in such a way as to facilitate the offender's continuing rehabilitation in the community as soon as reasonably possible.

Determination

The offender is convicted.
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.
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.

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: 27 May 2020

Drug Misuse and Trafficking Act 1958(NSW)

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