[2010] HCA 45
Tamer v The Queen [2020] NSWCCA 333
Category: Sentence
Parties: Regina (Office of Director of Public Prosecutions)
Source
Original judgment source is linked above.
Catchwords
[2010] HCA 45
Tamer v The Queen [2020] NSWCCA 333
Category: Sentence
Parties: Regina (Office of Director of Public Prosecutions)
Judgment (3 paragraphs)
[1]
Mr Krisenthal (counsel for the offender)
File Number(s): 2021/174509
[2]
Judgment
Paul Norton, now aged 55, had no real record to speak of prior to a period of serious offending in March to June 2021 which leads to him appearing for sentence today having pleaded guilty to three offences arising out of his drug supply over that period.
1. An offence contrary to s 25(2) of the Drug (Misuse and Trafficking) Act 1985, in relation to the supply of 1,551g of methylamphetamine, an amount not less than the large commercial quantity (Sequence 1). The offence carries a maximum penalty of life imprisonment, with a standard non-parole period of 15 years. To be taken into account on a Form 1, attached to this sequence is an offence of supplying cannabis contrary to s 25(1) the Drug (Misuse and Trafficking) Act 1985 (sequence 6) The offence carries a maximum penalty of ten years and will be dealt with in the way suggested by CJ Spiegelman in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146.
2. An offence of deal with the proceeds of crime contrary to s 193B(2) of the Crimes Act 1900 (sequence 11). The offence carries a maximum penalty of 15 years imprisonment with no standard non-parole period. The amount involved was $177,873.
3. An offence of possess prohibited weapon contrary to s 7(1) of the Weapons Prohibition Act 1998 (sequence 12) in relation to possessing two tasers. The offence carries a maximum penalty of 14 years with a standard non parole period of five years.
The maximum penalties and the standard non-parole periods are important yardsticks in the sentencing process. The purposes of sentencing in outline in s 3A of Crimes (Sentencing Procedure) Act 1999, must be borne in mind at all times.
He has been in custody since his arrest on 17 June 2021. It is conceded that a term of full-time imprisonment is required, and it is unnecessary to consider any alternatives.
The pleas of guilty justify a 25% discount on any sentence imposed.
The sentence proceedings have been greatly assisted by the careful preparation by the Crown Prosecutor, and by Mr Krisenthal for the offender. There is little, if any, substantive difference between the positions of the two parties as to the principles to be applied, and the objective seriousness of the offending.
In short, the facts show that Mr Norton's mobile phone was intercepted by Police from March through to June 2021. He had been stopped in August 2020 while driving his car at Charlestown, a known spot for drug supply. His car was searched, and he was found to be in the possession of $14,000 in cash, a mobile phone, and other indicia of drug supply. That incident was shortly before some offences where he was ultimately charged with take and drive a conveyance without the consent of the owner, and having goods in custody. He was not dealt with in relation to those matters until November 2021, while he was in custody, bail refused on the matter upon which he is to be sentenced today, that he was dealt with on those matters at Belmont Local Court. A Community Corrections Order for a period of two years, commencing 24 November 2021 was imposed. At the same time, the Magistrate dealt with an offence of driving with an illicit drug present in his blood, which was on the day of his arrest, on 17 June 2021.
He has not served any time in custody for any other of the few, very minor offences on his record, several of which have been dismissed under s 556A of the Crimes Act 1900 or s 10 of the Crimes (Sentencing Procedure) Act 1999.
A summary of his offending, which is set out in detail over 31 pages of agreed facts is that he was engaged in the supply of methylamphetamine in the Newcastle area. He would obtain supplies of that drug from people in Sydney. He would arrange to meet to obtain his supplies at a residence at Catherine Hill Bay. He would obtain amounts varying from an ounce, up to ten ounces at a time. He obtained at least 1,551 grams of methylamphetamine during the period.
A table attached to the agreed facts set out those supplies, from other people to the offender, at various locations between 23 March and 17 June 2021.
There is also a table setting out the supplies of small amounts of the drug to his customers, totalling about 250 grams, over the period 10 March to 17 June.
The price that he paid his suppliers depended upon the quality and the supplier. He paid between $3,200 and $3,700 per ounce.
In making arrangements for meetings to obtain his drug supplies, he was conscious of avoiding being intercepted by Police. He arranged for most of the meetings to take place at an associate's house in Catherine Hill Bay, which is an isolated location, surrounded by bushland, and sometimes he had a drone conducting surveillance over the property. Sometimes he used an Uber car when Police were active in the area, at other times he would meet at isolated carparks.
The offender and his partner took steps to arrange to store the proceeds of the sale of the drugs in a safe located at the home of an associate. The safe had been purchased by the offender, and his partner assisted in installing the safe and setting up a PIN number on the safe.
Sometimes, the offender went to Sydney to collect the drugs. On two occasions, the Police intercepted the drugs that were intended for him, once from a person who was parked outside his house at Windale.
The modus operandi was that once he had obtained drugs, he would supply them to various customers in the Newcastle area, generally in what was referred to as a ball, or a portion thereof. A ball is 3.5g of methylamphetamine. The price that he sold it would vary between $800 and $900. He quoted $5,000 for an ounce.
He generally arranged to meet his customers at public carparks and make the exchange. Sometimes he supplied them with small amounts of cannabis.
On two occasions, Police intercepted a customer after they had been supplied with the drugs by the offender, and those customers were in possession of methylamphetamine.
On 1 June 2021, one of his customers sent him a message with a photo of two tasers, asking if he was interested in them. He said he was, and they were found by Police when they searched his house after the arrest.
On 17 June 2021, the day of his arrest, Police were monitoring him after he travelled to Sydney to purchase 10 ounces of methylamphetamine. He made his way back to Newcastle, supplying two customers on the way.
He was arrested in the morning while driving in Windale. He was subjected to a roadside drug test which was returned positive for methylamphetamine.
He was in possession of $5,228 in cash, a small bag of methylamphetamine, a mobile phone, which was the subject of a warrant, and 26gof cannabis.
The Police removed a portion of the dashboard and found eight ounces of methylamphetamine, weighing 221 grams. Search warrants were then executed at various locations. In total, $177,873 in cash was located at the premises of the offender, from his vehicles, and the other unit. That cash, I am told, is the subject of proceedings in the NSW Crime Commission.
Following his arrest, he participated in a recorded interview. He said that he was a drug-user, and he would consume half a gram of methylamphetamine, twice a week. He said that he used cannabis for pain. He acknowledged knowing various people who had been involved in the operation; he denied purchasing drugs from them and denied knowledge of the safe.
The balance of the 28 pages of the agreed facts cover the particulars of the drug supplies which are the subject of the total to which I have referred, and it is unnecessary to cover those.
His subjective case is set out in unchallenged material comprising hospital records, Justice Health records, and a comprehensive psychological report from Dr Rebecca Smith. The subjective material has been helpfully and accurately summarised by Mr Krisenthal in his submissions. They show that Mr Norton, who was 54 years old at the time of the offending, has no history of significant criminality. Prior to this offending, he was raised in a positive and healthy environment, even though his parents separated when he was young. He received a positive education experience, in a safe family environment, free of any of the issues experienced by many people who come before the courts charged with this type of offending here.
He had no issues with socialisation or interpersonal relationships. He has been in a stable relationship for 23 years, and they have one son, aged 7.
The history suggests that the birth of his son at a relatively late age for Mr Norton appeared to have precipitated abnormal anxiety, and that had been exacerbated by his ongoing separation from his son, given that he told the psychologist that he spent virtually every spare minute with his son prior to his incarceration, and his son is receiving psychological assistance as a result of the separation from his father.
His relationship with his partner has experienced significant issues as a result of his decline in functioning, and the future of the relationship is not certain.
He displayed a positive and strong work ethic. After leaving school he worked as a boilermaker and welder in the mining industry, and worked his way up to become a foreman, responsible for up to 20 people, and five apprentices at a time. He was highly regarded in his employment. Unfortunately, he suffered a serious knee injury in the mine in mid-2019 and could not continue his employment. That represented an almost immediate decline in his function, his self-esteem and overall mental health. He said he felt useless and went into his shell. He began to experiment with drug use which quickly escalated into a full-blown addiction, and he was soon unable to finance his addiction and began supplying to ensure his future supply.
He said that the people he was dealing with were ruthless. The more he used, the more he had to sell to support his habit. He was just being weak, "I was having a lapse in being a normal human being, I was engulfed in being a drug addict."
He said,
"It was the worst time in my life, but I've now been 12 months without it. I've got a frame of mind that if I don't give up, I'll never see my son. I'm an older man and I can't mix with the young boys in here. I've cancelled my medical appointments so that I can get back to Kempsey. I'm not a violent man, I want to be away from the violence in here. I want to work every day and stick to myself."
The officers call him "scaredy cat" because he always runs to his cell. He is in a one-out cell.
He said that,
"I accept that I did wrong and that I have to be punished, I hope that I can address things in here. I've never been a violent person, I've never been in trouble with the police for 56 years, I've never even had a drink driving charge."
The COVID pandemic has had a significant impact on Mr Norton, as it has on all prisoners, over the past two years. He has had 115 days in total isolation due to quarantining or being a close contact of a positive case, and as a result of staff shortages. His anxiety has been increased due to strict isolation and depressive symptoms and he understandably has concerns about his safety due to the deterioration of the mental health of other inmates and violence within the yard.
The psychiatrist noted that he demonstrated symptoms of depression and his levels of anxiety appeared especially notable. The psychiatrist recommenced intensive intervention, either in custody or upon release, to ensure that he has not returned to a life of drug taking.
His drug use was regarded by the psychologist as a maladaptive coping strategy, in a person whose mental health was fragile at the time, and it has worsened since entering custody.
To a limited extent, as Mr Krisenthal puts, one takes his mental condition into account in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 terms in the sentencing process. He suffers a number of physical ailments, as shown in the hospital records, including insulin-dependent diabetes, chronic foot ulcers and peripheral neuropathy, and severe varus knee arthritis, requiring a total knee replacement. He has had periods of hospitalisation in public hospitals since being incarcerated because his underlying conditions make him vulnerable to further ongoing illness and his imprisonment has been more onerous than it would be for a younger and healthier person.
He has had regular transfers for medical assessment and treatment, and each of those transfers requires a period of isolation, and there is no suggestion that there is likely to be any significant improvement in custodial conditions, due to the COVID pandemic in the foreseeable future.
I accept that he has very good prospects of rehabilitation, given his lengthy employment and pro-social record prior to losing his employment. It is accurately put, that pleasingly, he has not fit into the custodial lifestyle. He is someone with a strong motivation to engage in treatment for his issues and demonstrates a clear insight into his needs and the treatment required to deal with those. His offending can clearly be seen as an aberration, albeit over an extended period of months, and he appears to possess the skills and ability to successfully engage in assistance. His prospects of rehabilitation are favourable and his prospects of not reoffending are also favourable.
There is clearly a basis for a finding of special circumstances, given the health issues to which I have referred, and his need for a significant period of supervision on parole.
I turn to assessing the objective seriousness of the offending. It is clear that in relation to the drug supply, the Courts have repeatedly stressed that what is important is to identify the role of the offender, and the level of criminality as being more important factors than the quantity of drugs involved.
While the total amount subject of the supply charge is 1,551 grams, that was the total amount purchased for supply, and includes the amount found in his possession at the time of the arrest. The actual amount supplied, as I have indicated, was in the vicinity of 250 grams.
His role insofar as it requires a description, is put on his behalf as a mid-level dealer. The Crown said accurately that he could be described as the principal of his Newcastle business, in that he was operating for his own profit; he had regular customers, utilised others in the operation of his business, utilised techniques to avoid detection, and he met with customers at carparks for smaller supplies, and there was a level of planning, associated with the business.
It is accepted that there was a degree of planning and sophistication. It is pointed out that there is no upper limit of the large commercial quantity for methylamphetamines in excess of 500 grams, and this is perhaps towards the lower end of the range of quantities, given that open ended criteria.
I accept that the objective seriousness of the offending, in relation to the drug supply, is below mid-range, but not towards the bottom of the range.
In relation to the proceeds of crime offence, I note the maximum penalty and the amount of money involved, which is very significant, and the efforts made by him to conceal the money, namely placing a significant portion of it in a safe at an associate's property.
I accept there is no evidence that that amount represented any profit obtained from the enterprise by the offender. He was heavily addicted and using methamphetamines. He was living what appears to have been a modest existence, in a suburban Newcastle home without any evidence of a lavish lifestyle, and it is probable that the amount, even though it is described as the proceeds of crime, was to be likely returned in large extent to his upline supplier in the future, and I accept that that offence is towards the lower end of the range for offences contrary for this type of offence.
In relation to the tasers, and there is no evidence that they were used in connection with drug supply or were anything other than a curiosity or novelty item. I accept that it is an offence which is only slightly above the bottom end of the range of objective seriousness.
It is noted, as the Crown submits, that he was on bail for unrelated offending, which is an aggravating feature, but not one of any great significance in this case.
Questions of accumulation and totality must be taken into account. As was put on his behalf, all of the offending arose from his lifestyle of problematic drug use at the time. The offences are closely intertwined and there should clearly be a significant degree of concurrence, and only a relatively modest degree of accumulation, as the Crown acknowledges.
I have been provided by the Crown with two cases involving sentences for offending contrary to s 25(2) of the Drug (Misuse and Trafficking) Act 1985, and they are Tamer v The Queen [2020] NSWCCA 333 and Ebrahami v R [2019] NSWCCA 273.
In Ebrahami, Davies J noted at [2] the importance of judges of this Court being provided with assistance in terms of statistics and comparable cases. Ebrahami itself contains a constellation of summaries of seven cases which were put forward by counsel for the successful appellant in that case, and Mr Krisenthal has provided the statistics in relation to the s 25(2) offence, which cover a relatively large number of cases, and a very large range of sentences, as is expected, given the open-ended nature of the quantity which can be involved in large commercial supply.
Insofar as the statistics can be analysed further, if one goes to the short summary of each case set out in the JIRS database, ultimately Mr Krisenthal submitted that the sentence should be towards the lower end of the range of those set out in the statistics, which he has provided.
As Hidden J said in Ebrahami at [40],
"The limitations upon the use of what are said to be comparable cases in examining a particular sentence are well recognised, because each case turns on its own facts and the subjective circumstances of the offender. Nevertheless, the cases here do provide a "yardstick against which to examine" the present sentence, to adopt the expression used by Simpson J (as her Honour then was) in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [304], (70-71). Her Honour's approach was endorsed by the High Court in Hili & Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54], (537)"
In my view, Mr Krisenthal's submissions have considerable force, and notwithstanding that the Courts have time and time again emphasised the need for condign sentences to be imposed for substantial drug supply activities, particularly in relation to offences such as sequence one in the case, which carries a maximum penalty of life imprisonment, one must attribute adequate weight to the peculiar subjective circumstances of his offender and his very favourable prospects of rehabilitation, and reintegration into the community.
The orders that I make are as follows:
1. The offender is convicted of each offence.
2. Taking into account a 25% discount for the pleas of guilty, the indicative sentences are:
1. Sequence 1, taking into account the Form 1 matter (sequence 6) - three years with an indicative non-parole period of 18 months.
2. Sequence 11 - two years.
3. Sequence 12 - seven months with an indicative non-parole period of three months.
1. I impose an aggregate sentence of four years, commencing 17 June 2021.
2. I impose a non-parole period of 26 months, expiring 16 August 2023.
3. I find special circumstances.
[3]
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Decision last updated: 12 October 2022