Mr M Coroneos (Counsel for the Offender)
File Number(s): 2019/42852
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Judgment
This is a case that graphically illustrates what happens when offenders breach the conditions of an Intensive Corrections Order (ICO), which frequently involves immediate incarceration for the full term of imprisonment. In December 2018, Sutherland DCJ sentenced this offender to three years imprisonment to be served by way of an Intensive Corrections Order, for a number of offences. First, supplying 11 grams of cocaine, secondly, supplying almost 11 grams of MDMA or ecstasy and thirdly, that he possessed $24,510 in cash reasonably suspected of being the proceeds of crime. The aggregate sentence commenced on 13 December 2018 and would have expired on 12 December 2021. The maximum penalties for the two drug supply offences dealt with were 15 years with no standard non-parole period.
However Nathan Rafferty, aged 31, foolishly chose to breach the terms that ICO, which had left him at liberty in the community. On 7 February 2019 he was arrested for much more serious drug supply offences, that lead to him appearing for sentence today for, a count of supply in excess of a commercial quantity of cocaine, namely 467 grams of cocaine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985, which carries a maximum penalty of 20 years and a standard non-parole period of ten years imprisonment. To be taken into account on a Form 1 in the way suggested by the Chief Justice in the guideline judgment (Attorney General's Application No. 1 [2002] NSWCCA 518; (2002) 56 NSWLR 146) is a count of having property suspected of being stolen namely an Australian Disability Parking Permit, possessing Oxycodone, contrary to s 16(1) of the Poisons and Therapeutic Goods Act 1966, and finally possessing testosterone also contrary to s 16 of the Poisons and Therapeutic Goods Act 1966.
The second principle offence to be dealt with is dealing with $8,800 being reasonably suspected of being the proceeds of crime under s 193C of the Crimes Act 1900, carrying a maximum of three years with no standard non-parole period.
He has pleaded guilty at an early opportunity justifying 25% discount for the utilitarian value of the plea.
He had never served any time in fulltime custody before his arrest on 7 February 2019. He was bail refused on these matters and in March the State Parole Authority revoked the Intensive Corrections Order, meaning that a fixed sentence of two years, ten months and six days was imposed commencing 7 February 2019 and expiring 12 December 2021. His record included larceny dealt with in the Local Court in 2006, a supply drugs dealt with by suspended sentence in 2011 and some driving offences as well as the drug supply matters to which I have referred.
The facts to be dealt with today involve Police searching his unit at Pagewood on 7 February 2019 and finding the cocaine, the oxycodone and the testosterone to which I have referred. He assisted police in the search of the kitchen and he identified scales and pointed them to a cupboard above the fridge and the cupboard in the island bench and when asked what the drugs were he said, "It's all coke whatever you found". His fingerprints were found on the outside of a large bag containing nine resealable bags of cocaine and $8,800 in currency found in various locations in the unit, some indicia of drug supply being a heat sealing machine, some electric scales, four mobile phones and a number of resealable bags. Also located was the Disability Parking Permit not in his name.
He was interviewed at the police station and he made no comment in relation to any of the drugs found. He admitted to possessing the Endone that was found in the car and said that someone had given him the disabled sticker a couple of days ago and he used it a couple of times. He agreed that the testosterone found in the bathroom cabinet belonged to him and he paid $100 a box and he never had a prescription. He said that he had used cocaine previously and that he does not use it anymore.
The evidence in the Crown case includes the facts on which he was sentenced in December last year. They also involve Police searching his unit after responding to a domestic incident involving his former partner. Police found $24,510 in a case and the drugs to which I have referred, MDMA, cocaine and oxycodone, also with indicia of drug supply.
The subjective material relied upon by Mr Coroneos, counsel for the offender, is approached with the caution attached to untested assertions and reports as set out in cases such as R v Qutami (2001) 127 A Crim R 396 and Imbornone v R [2017] NSWCCA 144(. One particular example pointed to by the Crown is his assertion to a psychologist that the drugs found on his premises were there at the initiative of other people. There is no other support or evidence for that proposition, and I do not accept it.
The Sentence Assessment Report prepared last week notes that prior to his incarceration he had been living with his long term partner in Pagewood. He had been employed fulltime in the construction industry. He said that the drugs in his possession were predominantly for personal use but he would occasionally sell to friends, cocaine had been his drug of choice since his teenage years and he also described regular weekend use of MDMA. He has a six month old child with his present partner and two children with his ex‑partner with whom he described ongoing conflict regarding custody.
As part of his ICO he was required undertake 400 hours of community service. The record shows that he had attended on two occasions before his arrest and that he has completed 15 hours to date. He was assessed as being at a medium risk of reoffending.
The report of the psychologist Mr Machlin refers to an earlier report following an assessment on 8 August 2018. It was presumably provided to Sutherland DCJ, but is not before me. There is no relevant conflict in the histories that I have seen, nor in the other material including a letter from the offender and a letter from his partner. He described his background in some more detail to Mr Macklin, including a dysfunctional home life with his mother on drugs throughout his youth, his step-father in and out of gaol, unstable accommodation and with frequent relocations around the city. He was unsupervised a lot of the time. He had no interaction with his biological father. He has been with his current partner for over two years and she is in court today. He went to a number of schools due to family relocations and he was academically average to below average. He does not believe he was diagnosed with any learning disability or disorder. He has always worked in the construction industry as a qualified carpenter, having completed his apprenticeship.
He said that he had been prescribed an antidepressant towards the end of 2018 as a result of stress and conflict with his ex-partner, with whom he had always had a volatile relationship. His history of conflict with his ex-partner was confirmed by the psychologist speaking to his mother, who emphasised that his ex-partner had caused him so much stress that it was not funny and that they separated because she was too much for him. The psychologist did not diagnose any mental condition.
As to his relapse on cocaine after receiving the ICO he stated candidly that he took it too lightly and succumbed to the temptation of partying with friends around Christmas, only to find that his habit became more intense than it had been, and even though he was working and refraining from drug use when he looked after his sons on the weekend, his cocaine use took hold at other times to the point where his relationship was suffering.
He discussed his offences with contrition and resolved not to use drugs again and not to associate with drug users. He says, as does his partner, that she is struggling in his absence and that is understandable. There is no evidence of any illegal drug use while he has been in custody. He ultimately acknowledged his drug related offending and he takes responsibility for it and does not blame his family history or recent domestic stress. He is clearly affected by the loss of contact with his family and he ruminates over the loss of contact with his children and his financial and other losses.
Mr Machlin prescribes a plan on his release of support and treatment involving drug counselling, attendance at Narcotics Anonymous and resuming employment and dissociation from drug use.
I take into account a letter written by his partner, who notes her regular contact with him while he was in custody, and her assessment that being in custody has made him realise that his actions were very selfish and that he is missing out on so much. She describes her struggles as a single mother and notes that his incarceration made him miss the birth of his daughter in April this year.
He has been working and studying while in custody and I accept that he is looking forward to doing his time and going home eventually and that he has learnt from the experience and is unlikely to reoffend.
Mr Rafferty's letter to the court contains similar sentiments, and he displays insight into how his drug addiction affected him and those close to him and the community. He says that his drug use basically took over his life in the last two years and leaves him with little memory of it. He expresses regret and remorse, which I accept, and he candidly acknowledges that he wishes he had been given a gaol sentence last year rather than the ICO because he says he had not really understood the reality of the penalty and the loss of what he had taken for granted as a person in the community until he went to gaol. He asks me to consider restoring the continuance of the ICO but that obviously is not a matter that I can deal with, and will be subject to review by the State Parole Authority in early December.
The Crown submissions note his prior history of drug offences, namely the suspended sentence in 2012 and the December 2018 sentence for drug matters. The general principles of sentencing for drug supply confirmed in R v Parente [2017] NSWCCA 192 are highlighted in the Crown submissions. In looking at objective seriousness I do take into account the total of 467 grams of cocaine, of a fairly high purity, located in resealable bags and along with indicia of drug supply suggesting that that was occurring and also the location of $8,800, which he acknowledged was reasonably suspected of being the proceeds of crime. These are objectively very serious matters.
It is an aggravating factor that he was on conditional liberty at the time of the offending.
I must, as the Crown points out, take into account general and specific deterrence along with the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.
It is conceded by Mr Coroneos of counsel that a term of full-time custody is required, and it is unnecessary for me to consider any alternatives.
It must be recognised that the community expects the courts to impose sentences for drug offending which clearly denounce and punish offenders for serious criminal offences.
Mr Coroneos has taken me to an analysis of the statistics which are often described as a blunt tool, but are of some assistance in illustrating a range over a number of offences, without indicating the circumstances, either objective or subjective, in relation to any of those cases standing behind the sentences.
As to aggravating factors in addition to the previous record identified by the Crown he acknowledges that I should take into account that these offences were part of a planned organised criminal activity, committed for financial gain and without regard for public safety. Apart from the recognition of the fact that he was on conditional liberty as to his previous convictions, it is not regarded as an aggravating factor but is a matter which disentitles him to leniency.
As to financial gain, Mr Coroneos notes that unless there is something significant and more than might be expected for this type of offending, it should not be regarded as an aggravating factor. Mr Coroneos has taken me to other authorities in relation to the consideration of the various aggravating factors, so that ultimately while he acknowledged that they could be considered, it is common ground only that the aggravating factor was that he was conditional liberty at the time.
Although the Crown says that his prospects of rehabilitation and an assessment of reoffending should be guarded, they are matters that I accept as mitigating factors as well as his plea of guilty and remorse shown by him.
Ultimately, I have to take into account questions of totality and it is complicated by the prospect that the State Parole Authority may not vary the current sentence which has been imposed. Mr Coroneos' ultimate submission is that a term of imprisonment should commence on 7 February 2019, the date on which he was arrested, although the Crown submits that would be an unjustifiable degree of concurrency.
In my view the appropriate course is to commence the term of sentence on the day of which he went into custody and impose a sentence having regard to the matters to which I have referred.
The orders that I make are:
1. He is convicted of each offence.
2. I impose an aggregate sentence of four years imprisonment commencing 7 February 2019.
3. I impose a non-parole period of two years and nine months expiring on 6 November 2021.
4. The indicative sentences are:
1. Sequence 001, taking into account the Form 1 matters: three years and seven months, with a non-parole period of two years and six months.
2. Sequence 007 one year
1. I find special circumstances
2. I make confiscation orders in accordance with the short minutes.
Note - These extempore remarks were revised without access to the court file
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Decision last updated: 21 January 2020