HIS HONOUR: Todd Phillip Passlow appears today for sentence in relation to an offence contrary to s 25A(1) Drug Misuse and Trafficking Act 1985 which carries a maximum penalty of 20 years imprisonment and/or 3,500 penalty units. There is no standard non-parole period. There are no matters on a Form 1 and there was a s 166 certificate with what I understand to be backup charges, which I directed to be withdrawn and dismissed.
The offender gave evidence before me on the last occasion dealing with both the circumstances of the offending and matters relating to actions he had taken to endeavour to address some of the underlying issues to his offending since his release from custody. The prisoner has been in custody in relation to this matter, I am informed by the Crown after - no disrespect to the Crown - some confusion as to the time he was in custody between 23 June 2015 and 14 August 2015, which the Crown reminds me is one month and 22 days. Although this matter came on before me last week I do not have a transcript for obvious reasons.
There is a statement of facts which sets out the detail of the respective supplies constituting ongoing supply for financial or material reward in the period of time contemplated by the facts. That is, between 16 April 2015 and 15 May 2015. I have dealt with a number of people caught up in the same operation which led to the arrest of Mr Passlow, and it is intriguing to see the coincidence of dates that various events occurred. It is clear the undercover officers and the people involved in this particular operation were extremely busy over the months of April and May endeavouring to identify supplies of prohibited drugs, particular methylamphetamine and MDMA in this community.
Clearly it is to be understood, of course, that the drugs being amphetamine based with which this prisoner was concerned, or using, by his own experience do considerable damage to our community. The Courts see on a daily basis the consequences for the community of people using drugs and committing crimes either to obtain money to purchase further drugs, or committing crimes under the influence of drugs, it being well known as a general principle of sentencing that people who commit serious crimes affected by drugs or alcohol do not obtain any mitigation in the consideration of the objective facts by reason of intoxication by either prohibited drugs or alcohol.
The various supplies with which I am concerned, occurring over the 30 day period, involved the amounts of $200 and $300 on 16 April when two supplies were made, and $320, $300 and $550 on the 12th, 14th and 15 May. As I said, I do not propose to go into the detail of the facts but these facts emerge from the facts provided to me considered in the context of the evidence by the prisoner. Undercover police had identified a person by the name of Kitson as being a drug supplier or a person they suspected of being a drug supplier. They attended upon her residence in Tolland. She was asleep but the prisoner met the undercover police officer, not knowing obviously, that the person was a police officer. The undercover officer, opportunistically I clearly understand, had a conversation with the prisoner regarding the purchase of methylamphetamine. The prisoner agreed to supply the undercover officer with methylamphetamine for $200, the conversation between the prisoner and the undercover officer being secretly recorded. The quantity of the drug obtained was 0.21 grams of an amphetamine based substance.
Later on on the same day the same undercover officer came back to the premises, this time to discuss the purchase of methylamphetamine with Kitson, the original target of the operation. She told the undercover officer to come back at about 6pm, that is, at a later time. The prisoner happened to be present. Kitson agreed to supply the undercover officer with prohibited drugs and the undercover officer gave the prisoner $300 which the prisoner handed to Kitson, and she handed over the drugs. So, in the context of the extended definition of supply, the prisoner was taking part in the supply for financial reward at that particular point of time.
The point of those two transactions is that it would appear upon the facts that the prisoner's involvement arose out of his presence at a residence occupied by a person who had the capacity to supply methylamphetamine. Obviously the prisoner had that capacity to supply the first amount of methylamphetamine but in circumstances where he was at the residence of the primary target of the operation.
There and after the prisoner, when approached by an undercover officer on the 12th, 14th and 15 May, on request from the undercover officer, provided the relevant undercover officer - and I am unaware whether it is the same undercover officer because the facts do not go that far but it does not matter - with a substance on each occasion in which no prohibited drugs were detected. The prisoner gave evidence before me that on each occasion he provided the relevant undercover officer with what he described as rock salt in the knowledge - and this is the critical issue - that he knew that he was not providing a substance that contained a prohibited drug. This is not a situation where a supplier supplies a particular substance in the belief that it is a particular prohibited drug not knowing that what had been provided to him or her by some other source did not contain a prohibited drug. The prisoner knowingly provided a substance other than a prohibited drug on those three occasions.
In my view, this does substantially reduce the moral culpability of the prisoner, although the prisoner is liable at law as was discussed at some little length with the learned Crown Prosecutor and Mr Barron when the matter was before me. I had not researched the issue before the case came before me and I wondered aloud whether the knowledge of the supplier was such that he or she knew that he was not supplying a prohibited drug whether that gave rise to liability for supply. But it became apparent to me when I had looked at the cases, particularly a case of Kalpaxis [2001] NSWCCA 119, and also looked at the extended definition of supply in s 3 of the Drug Misuse and Trafficking Act in conjunction with s 40, that the prisoner was guilty of the crime. Every crime has degrees of moral culpability. Sometimes those degrees of moral culpability will be defined by the role that a particular offender plays; it may be defined by, in the case of the supply of prohibited drugs, the quantity, although that is not necessarily determinative as many cases make clear; but also the moral culpability of an offender will be determined by, in a supply allegation, depending upon an extended definition of supply, not actual supply or sale, the state of mind of the prisoner and the potential by the prisoner's action for harm to the community, assuming for the moment that in supplying to an undercover police officer a particular prisoner, and this prisoner particularly, did not know the drugs were not going to be disseminated to the wider community or particularly disseminated to that person.
One of the features of that aspect of the matter concerning the dissemination of drugs to the wider community is the issue is to be considered very much on consideration of the quantity involved. For example, if a person gives a person who turns out to be an undercover police officer a kilogram of cocaine one would ordinarily expect that there be a very high likelihood that there would be a dissemination to the wider community, because one would not reasonably expect that a person obtaining a kilogram of cocaine was simply buying it for their own personal use. The authorities are very clear in relation to the issue of selling to undercover police officers that whilst it is relevant to take into account the drug supplied to an undercover police officer will not be disseminated in the community of itself this is usually unlikely to lead to other - and a very minor diminution of culpability. So held the Court of Criminal Appeal in a decision of Chan [1999] NSWCCA 103.
Gao, a decision of the Court of Criminal Appeal from 2008, emphasised that it was not a matter of principle that supplying drugs to undercover operatives always involves the diminution of culpability. There may be cases assessed within the midrange of objective seriousness despite a guilty plea and a supply to undercover operatives; that much is clear. But it is clear on the facts of this case, to use the expression "midrange", which on one view of it may be a term more concerned with a Pt IV Div 1A Crimes (Sentencing Procedure) Act 1999. But this case is well below the 'midrange' of objective seriousness having regard to the quantities of drugs supplied or purported to be supplied, and of course, the financial reward for the prisoner. I bear in mind, of course, that the second buy, as it is described, or the second supply, would appear to involve financial reward not for the prisoner but for Ms Kitson, although the prisoner may have got some small financial benefit out of it.
The point I am getting to is twofold. Firstly, whilst usually there is only a minor diminution of culpability by reason of supply to an undercover police officer because by definition the drugs will not be disseminated into the community, in the circumstances of this case the prima facie quantities involved could only be disseminated to and used by the person who bought them, in my view. They were not of a such a quantity as to be capable of being shared amongst other people or a great many other people.
However, having made all those observations, the facts are that in this particular matter three of the five sales were of a substance, as I said earlier, that the prisoner knew was not a prohibited drug. In Kalpaxis the Court reflected, although it did not use the words "moral culpability" upon the appropriateness of a sentence of two years imprisonment suspended for a man who had negotiated with an undercover officer from the National Crime Authority, or an informant for the National Crime Authority, the supply of between 100 and 200 kilograms of cocaine. The facts found by the sentencing judge in that matter were that, firstly, the offender did not intend to supply 100, 150 or 200 kilograms of cocaine or, indeed, any cocaine. There was no actual supply of cocaine. The proposal by Mr Kalpaxis to supply that quantity of drug was not genuine. Furthermore, not only did the respondent not have the intention to supply cocaine, he did not have the ability to supply cocaine. Now, in Mr Kalpaxis' case it is to be borne in mind that what he pleaded guilty to was an offence contrary to s 25(2) of the Drug Misuse and Trafficking Act which is an offence that carries a maximum penalty of life imprisonment and/or a fine of $550,000. His Honour Judge Woods QC, a colleague of mine of the District Court, on 1 December 2000, described the case as "extraordinary". This case is in a different stratosphere altogether from the potential culpability of Mr Kalpaxis, particularly having regard to his liability for supply of a particular quantity having regard to the why definition of supply to encompass the facts of Mr Kalpaxis' case.
I also appreciate by reference to the particular matters I identified in the findings that the Court of Criminal Appeal accepted, that although the prisoner in relation to three of the sales had no intention to supply methylamphetamine I could not conclude necessarily that he did not have the ability to supply methylamphetamine although I accept it is a reasonable possibility that on those particular occasions he may not have had that ability, or simply he just decided to rip off the purchaser. Be that as it may, what flows from the decision of Kalpaxis is that, to use again terminology that has crept into sentencing more widely than it did in 2000 when Kalpaxis was decided, there is a lower level of moral culpability in the facts of this case than the case of a person who actually supplies the relevant prohibited drug in whatever particular quantity, or else supplies a substance that he or she believes that it contained a prohibited drug although it does not.
It is in this context, notwithstanding the maximum penalty, that I have ultimately concluded that I should not impose a term of fulltime custody. I pause for a moment to point out by reference to all that has been put before me skilfully by the Crown and Mr Barron, that I am very familiar with, and I refreshed my memory in these sittings, a number of decisions that deal with the offence of ongoing supply of prohibited drugs. I have read on a number of occasions, for example the judgment of Adams J in the decision of Fayd'herbe [2007] NSWCCA 20, although that judgment was focusing to a large extent upon the issue of whether in fact a person could be held to be substantially involved in trafficking in drugs arising out of particular factual circumstances. It is true, as Adams J said, that when an offender is charged with a s 25A offence one cannot rely upon an argument that the act of supply was an isolated event, nor can the prisoner expect to receive a sentence of the kind which may be appropriate for a single offence of supply. Significant sentences must be imposed in such cases in order to give effect to the clear legislative intention to discourage the ongoing trade in drugs, which depends entirely upon the availability of a person such as the then present applicant.
But having noted those observations of Wood J, who then was the Chief Judge of Common Law, adopted by Adams J, the bottom line here is, of course, that those observations were concerned with a person intentionally supply prohibited drugs as was the fact in both cases, Fayd'herbe and the judgment of Wood J of CBK (2002) 135 A Crim R 260, particularly at [56] - [57]. There are other judgments, of course, that I referred to yesterday in another judgment, Giang from (2005), MRN from (2006), where it was held that the quantity of the drug is not irrelevant, nor are repetition, system and organisation of greater importance. They take their place beside the number and quantities of individual incidences of supply. Of course, here, as I point out, three of the supplies did not involve an actual prohibited drug.
I also rely upon the observations of Hulme RS J in one of the early decisions dealing with the legislative purpose of this particular provision in the case of Smiroldo (2000) 112 A Crim R 47. I am mindful too of what Howie J said in Mirza in 2007 that
"The seriousness of this type of offence will not be diminished simply because the overall amount of drugs supplied is small. But it does not follow that the amount of drugs supplied is an irrelevant matter in determining the seriousness of the particular offence".
It brings us back to a consideration of each offence under the particular provision having regard to the issues that would inform the objective seriousness of the offending of repetition, system and organisation. There is some repetition here in a sense, but there is no system, nor any relevant organisation. All we have here is opportunism presented to the prisoner by reason of the approaches from undercover police officers.
Some coming back to basic principles, and that is the basic principle that in a drug supply case when a person is involved in trafficking to a substantial degree, or substantially involved in the supply of prohibited drugs, a fulltime custodial sentence must be imposed unless there are exceptional circumstances. It is quite clear on the facts of this case, notwithstanding it is an offence of ongoing supply, that I could not conclude that the prisoner was substantially involved in the trafficking or supply of prohibited drugs. Therefore, in sentencing the prisoner, notwithstanding the fact that I must have close regard to the maximum penalty, I conclude on the evidence available to me that the offence is at a very low level of criminal responsibility, perhaps not the lowest. For example, a person guilty under the section for supplying to a person what is held out to be a drug on three occasions that the person does not believe to contain a prohibited drug might be seen as less serious. That having been said I am reminded of what was said in Veen (No 2) by the High Court majority with regard to a worse case for a particular crime, one can always conjure up an example of a 'worst case' than the one at bar.
Thus, I turn to the relevant subjective issues arising from the material. The first thing to be said is the prisoner's criminal history entitles him to no particular leniency. To be fair to him his record is relatively minor. He has a number of offences consistent with a history of drug use; he has a number of offences related to the misuse of motor vehicles, including driving whilst disqualified; and he has convictions in various forms, including convictions for dishonesty in New South Wales and Queensland. I also bear in mind that the prisoner was, when he committed the offence with which I am concerned, on bail for an offence of assault occasioning actual bodily harm, and was in part, particularly in April 2015, subject to a s 10 bond that had been granted to him on 6 August 2014 in relation to an offence of driving whilst disqualified. Thus, there were two breaches of conditional liberty, which itself is an aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999. It is clear the offender committed the offences for financial reward. But that is an element of the crime and cannot be taken into account as an additional aggravating factor by reason of the terms of s 21A(2).
With regard to mitigating factors, I am prepared to accept, bearing in mind these offences were essentially opportunistic and not planned, that the offence with which I am concerned was not part of planned or organised criminal activity. I realise that drug supply can be very much intimately bound up with organised criminal activity, but not in this case. I cannot conclude the prisoner was a person of good character, and I accept essentially the submission put by the Crown that I could not conclude that the offender was unlikely to reoffend. However, I am prepared to make a finding favourable to the prisoner that he has good prospects of rehabilitation. The issue of contrition seems to me very much a neutral factor, and of course, the plea of guilty itself is a mitigating factor for which the prisoner's entitled to a discount of 25%. He, having pleaded guilty at the Local Court and being committed for sentence, I am prepared to give him the benefit of the maximum discount permitted for recognising the utilitarian benefit of the plea of guilty in accordance with the guideline judgment of Thomson and Houlton.
The prisoner's evidence reflected the fact that on his release from custody, which had been something of a wakeup call to him in the sense that he had not been in custody for such a significant period before, he undertook some rehabilitation programs although he had to leave one and is seeking re‑entry to it or another program. The Community Corrections report reflecting upon the factors relating to his offending noted his use of "illicit substances" since his teenage years and since the age of 25 an increasing daily intravenous use of methylamphetamine being clearly fully "enmeshed in the drug subculture" with a heavy "habit" at the time.
The Community Corrections Service confirmed that the prisoner had participated in 13 weeks of treatment including nine weeks of outpatient day program and four weeks in a residential therapeutic program. He had failed to comply with all program expectations and was discharged in November 2015, as he told me in evidence, but he had made reasonable progress during treatment and was eligible to reapply and is on the waitlist of which he spoke. Mr Passlow relayed his disappointment at being discharged and had asserted to Community Corrections he had since "engaged in one on one counselling to address his substance abuse" although not in a residential program. Inquiries conducted by the Community Corrections Service confirmed these matters and also confirmed that the prisoner appeared "motivated" to seek some resolution of his dependency or use of prohibited drugs.
The assessment of the Community Corrections Service was that the prisoner did not attempt to "minimise his behaviour". He acknowledged the impact that his illicit substance abuse had on his conduct and on his family, and that since his arrest he had made progress towards positive change by engaging in alcohol and other drug intervention. It was thought that he would benefit from a period of supervision by Community Corrections, particularly monitoring his compliance with alcohol and other drug interventions that he had organised for himself. This was the essence of the prisoner's evidence before me. He spoke in his evidence, of course, of the effect of his drug dependence upon his family, and he would endeavour, he said, to try to continue with the interventions that he had engaged up to the present time.
When asked by the learned Crown why the Court should have reason to have confidence in his "prospects of rehabilitation" he said that before he committed this offence he was on drugs and he had not sought help. He said, "Now I'm not on drugs and I'm seeking help". It was in this context that ultimately submissions were made by his learned counsel having regard to certain factual and other issues that I have already dealt with in the fact‑finding that I should consider a sentence other than fulltime custody. The Crown, in its submissions, indicated that it was a matter where a term of imprisonment ought be imposed, particularly having regard to the aggravations of breaches of conditional liberty but the Court may consider alternatives to fulltime custody.
The matter that I particularly dwelt upon is the issue of precisely how I can dispose of this matter. I have approached the matter in accordance with the reasoning of Howie J in the decision from 2002 of Zamagias, and I have ultimately concluded, taking into account the time already spent in custody, that I should impose a term of imprisonment of less than two years, giving the 25% discount to the prisoner in order to marry, integrate or synthesise both the objective features and the subjective features of the case. Probably the most compelling issue that militates in favour of the imposition of a non‑custodial sentence at this time is the assessment I have made of the objective facts, particularly the character of the supplies of the prisoner.
I gave some thought to imposing a term of imprisonment that might permit some assessment of the prisoner for his eligibility for an Intensive Correction Order. My ultimate conclusion is that I should impose a term of imprisonment that I should suspend but with conditions of supervision from Community Corrections, particularly addressing the issues of the drug rehabilitation, and particularly the monitoring the prisoner's progress. As I have earlier said, this is not a case where I am required in all the circumstances to make an assessment of whether there are relevant "exceptional circumstances" such as was discussed in the recent decision of Polley [2015] NSWCCA 247. In sentencing the prisoner, of course, I have had regard to s 3A of the Act, the 'purposes of sentencing'. It is a matter of relevantly endeavouring to achieve a balance between the need for weight to be given to general and personal deterrence and adequate punishment and the other, if I might call them punitive purposes, and the need to promote the rehabilitation of the offender.
So, having regard to all that has been put before me in evidence, and the submissions, I have concluded that I should impose a term of 18 months imprisonment that will be suspended at this point, having closely considered the issue of whether I should send the offender off for assessment for an ICO. I am mindful of the inherent leniency in a term of imprisonment suspended. Unlike an ICO there is a lesser degree of monitoring, there is no requirement to perform community service and the like, but in the scheme of things with the evidence standing as it does my view is the needs of the case can be met by the conclusion I have reached.
Mr Passlow, do you mind standing up, thanks very much. In relation to the offence to which you have pleaded guilty you are convicted. You are sentenced to a term of imprisonment of one year and six months. In fixing that term of imprisonment I have taken into account both the discount of 25% and also, additionally, the fact that you have spent one month and 22 days in custody. I propose to give the sentence a rounded feature or effect, the actual order for the term of imprisonment might have been expressed in months or years and months and days, but the Court of Criminal Appeal has on a couple of occasions criticised terms of imprisonment being imposed suspended expressed in those terms.
The sentence of imprisonment is suspended pursuant to s.12 of the Act. The conditions of the suspension are as follows: Firstly, you will be required to enter into a bond to be of good behaviour so that you will have to agree to be of good behaviour. Secondly, you will have to advise the Court of any change of residential address. Thirdly, you will have to appear before this Court if called upon to do so. Fourthly, you will be required to report to Community Correction Service in Wagga Wagga within 48 hours of today; that is, by close of business on Friday in order to permit the supervision to start promptly. Fifthly, you will be required to obey the reasonable directions of the officers of the Community Correction Service, particularly Corrections concerned with drug rehabilitation and counselling programs.
Now, Mr Crown, any technical matters?
TEMBE: No, your Honour, no further orders.
HIS HONOUR: I forgot to mention I had taken into account - of course the references, the treatment record and the certificate of achievement were obviously taken into account in the findings in respect of the rehabilitation program he had undertaken.
Any matters from you, Mr Barron?
BARRON: No, your Honour, thank you.
HIS HONOUR: Mr Passlow, it didn't escape my notice, by the way, that you and Mr Gray seem to know one another. That doesn't fill me with a great deal of confidence even though I've acquitted Mr Gray. But I do understand that it's clear, notwithstanding the evidence you gave, which I must confess I was reasonably impressed with in all the circumstances. I do understand that you're a person who, by reason of your drug use, is probably well known to a lot of people that have strong criminal connections in this town.
But I want you to understand something very clearly. If you are not of good behaviour, or if you do not comply with the directions of Community Corrections for the next 18 months you will go to gaol for the 18 months. I might have to consider the fixing of a non-parole period but you will go to gaol. And it doesn't matter whether the breach occurs in the first week or on the last day of the term of the bond. The law is very clear; if the breach is not trivial or there are not good reasons for excusing it, I must revoke the bond, so you'll start all over again.
So you've got a responsibility insofar as yourself is concerned to do the best you can to try and resurrect your life without the use of drugs. Now, whether that is possible in the short to medium to long term, it's impossible for me to say. I haven't got a crystal ball and in fact I only see the limited amount I just see in the courtroom. I don't see you out on the street, I don't see you at the Duke of Kent Hotel having a beer and see how you carry on there. Some of these things we just have to accept at face value, which is of course difficult for the public in some respects to understand, but how else can we do it? I can't follow you around and see what sort of person you really are.
Physically you're a reasonably impressive young man. You know, you look like a strong young man, you look like a man who's got the physical ability to make good of your life. But there's no future for you in drugs, and certainly there's no future for you in selling drugs. And, you've got to bear in mind you commit a serious enough offence that constitutes a breach of the bond, what you wind up with is a sentence of imprisonment for that offence and what I impose upon you will be accumulative or partially accumulative upon whatever sentence that is. Do you understand that?
OFFENDER: Yes sir.
HIS HONOUR: So, you know, like all people that come to court and don't go to gaol the ball's in your court. I'm not trying to give you a lecture, that's just the reality of the situation. I don't want you coming back to me in 12 months' time and telling me, "Oh, I didn't understand, your Honour, what you did", because I won't believe that for a moment. I've made it very clear to you the consequences of the orders that I made. The matter's not over, that's the bottom line. The case is still open, and it's up to you to prove to yourself, to your family who support you, which I've noted, that you are worthy of the support that they give you. And in the end, as I say, that's entirely a matter for you. You can take a seat, thanks very much.
Now, Mr Barron, could you assist your client up to the office if that's convenient?
BARRON: Yes. They'll still be open, will they?
HIS HONOUR: I beg your pardon?
BARRON: The office will still be open?
HIS HONOUR: I'm expecting so. I'm sorry, my associate couldn't--
BARRON: I'll take him straight up.
HIS HONOUR: --type up the orders because I was monopolising the bundle. But you will be required, you understand, to report to Community Corrections by the end of business on Friday? Today's Wednesday, I think. I'm giving you 48 hours. 5 o'clock, that's 48 hours and 15 minutes. But it's important that you report to them sooner rather than later so they can put in progress the supervision that's required in your particular case.
You're excused from the dock, Mr Passlow. I wish you well with the future, but as I say, don't come back to me at a later time and tell me you didn't understand what happened today because I won't believe that for one moment. There'll be a transcript of what I say and what I've said to you and your responses. So you're excused from the dock and Mr Barron, if he doesn't mind, can take you up to the office and we'll have the orders sent up there.
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Decision last updated: 10 January 2018