R v Roberts

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

REMARKS ON SENTENCE 1 HIS HONOUR: The offender stood trial with a co-offender, Kelly Louise Schumacher, on a charge that they did between March 1997 and September 2001 supply a prohibited drug, namely methylamphetamine, in an amount which was not less than a large commercial quantity for that drug. The offender also stood trial on two additional charges being that on specific dates in 2001 he did supply amphetamine in an amount not less than the large commercial quantity. 2 On 21 April 2004 the jury returned verdicts of not guilty in respect of the offences on the indictment. However, the offender and Ms Schumacher were both convicted by the jury of an alternative to the first count, available at common law, being that they did supply a prohibited drug contrary to s 25(1) of the Drugs Misuse and Trafficking Act. That is an offence that carries a maximum penalty of 15 years imprisonment. 3 Following the verdict of the jury the offender was arraigned before me on an indictment containing two offences of stealing a motor vehicle contrary to s 154AA(1) of the Crimes Act. The offender pleaded guilty to each of those offences and is to be sentenced by me for those matters as well as the offence of supply. Each of the offences on the second indictment carries a maximum penalty of 10 years imprisonment. 4 I note at the outset that, notwithstanding the maximum penalties prescribed for the offences before me, they are all matters that could on their face have been dealt with in the Local Court. I do not believe that a magistrate could have exercised jurisdiction for the supply of amphetamine in this case because the supply was on any view more than the indictable quantity of 5 grams. In respect of the larceny offences the Crown elected to have the matters heard in the District Court because of the value of the vehicles. In any event, had the offender appeared for sentence before the Local Court at the one time for the offences before me, I do not believe a magistrate could have appropriately exercised jurisdiction given the then limitation upon the sentencing power of magistrates. I understand that the limitation has recently been eased to allow magistrates to impose longer sentences than has been the case in the past. 5 The offender comes before the Court as a result of an investigation into two persons who were operating a business of supplying drugs in the Newcastle area in the years immediately prior to September 2001. The principal offender was a man named Walsh, who was the offender's employer at the time that he committed the offences before the Court. Walsh was also the Sergeant-at-Arms of the local chapter of the Nomads Outlaw Motorcycle Club of which the offender was also a member. The other principal participant in the business of supplying amphetamine was Walsh's wife, Melinda Love. 6 Walsh had two businesses operating at the time: one illegal, in that he was a major distributor of amphetamine in the Newcastle area, the other legitimate, as the principal of an excavating and earthmoving firm. In relation to the latter business Walsh also undertook serious criminal activity by stealing motor vehicles and other equipment to be used by him in carrying out his legitimate business. It so happened that he stole a truck in September 2000 that was to be used in his business after it was re-birthed by using parts from other vehicles stolen at his direction. It is because of the offender's association with Walsh, both through the Nomads and as an employee, that he came to commit the offences for which he is now to be sentenced. 7 The Crown case in support of the offence of supplying a large commercial quantity of amphetamine was based upon the evidence of two indemnified witnesses, Melinda Love and Paul Chapman, an associate of Walsh and at one time an employee of his. Chapman was not a member of the Nomads. Love and Chapman gave evidence before the jury as to what they maintained was the involvement of the offender and Ms Schumacher in the supply of amphetamine over a period of time leading up to the arrest of the offender in September 2001. Love estimated that the offender and Ms Schumacher had supplied about 96 pounds of amphetamine over that period. 8 It was the Crown case that the offender and Ms Schumacher were jointly supplying amphetamine to other persons in the community for profit for a period commencing sometime in 1997. The Crown asked the jury to accept the evidence from Love and Chapman that the offender and Ms Schumacher had been obtaining amphetamine from Love and Walsh on a regular basis for the purposes of on-supplying it to their own customers. Love alleged that the two had been in debt to Walsh at one stage in the amount of $20,000 on account of drugs they had obtained from him and Love. There was some support for the allegation that the offender, at least, had been involved in drug trafficking found in recorded conversations between the offender and a person identified as Tim Jordan. I will return to consider those particular conversations shortly. 9 The offender gave evidence at the trial denying his involvement in the supply of amphetamine to the extent alleged by Chapman and Love. It was his case that he had not become involved in the use or supply of amphetamine until March 2001, a point of time coincidental with the start of conversations recorded by police that prove his involvement with the drug. The charge in the indictment was left to the jury on the basis that, before they could convict the offender of that offence, the jury had to be satisfied beyond reasonable doubt that they could rely upon the evidence of Love and Chapman, or, in other words, they had to be satisfied that there was no reasonable possibility that the account given by the offender in the witness box of his limited involvement with amphetamine was true. 10 The Crown accepted during the trial that there was insufficient evidence in the telephone conversations alone for the jury to be satisfied beyond reasonable doubt that the offender or Ms Schumacher were guilty of supplying a large commercial quantity of the drug. The statutory alternative, that is the offence of supplying a commercial quantity, was not left to the jury because there was no factual basis upon which the jury could find the offender or Ms Schumacher guilty of that offence. At the end of the day the real issue for the jury was whether they were satisfied that the offender and Ms Schumacher were supplying amphetamine to the extent alleged by Chapman and Love. It was never really open to the jury on the evidence before them to acquit the offender of any offence relating to the supply of amphetamine 11 Clearly the jury's verdict means that they were not satisfied beyond reasonable doubt of the truth or accuracy of the evidence of Love and Chapman but, in my view, it means no more than that. It did not reveal the extent to which the offender was involved in the supply of amphetamine nor did it indicate that the account given by the offender in the witness box was true. I do not believe that the jury would have accepted, even on the balance of probabilities, the evidence given by the offender where it touched upon the involvement of him and Ms Schumacher in the supply of drugs. There were explanations given by him of the contents of telephone calls that were, with respect to him, patently untrue and bordering on the absurd. 12 One example, and it is probably the most outlandish lie told by the offender, was his assertion that, when Ms Schumacher asked him whether she should continue mixing some unidentified substance, she was referring to mixing cement to be used in the construction of a swimming pool at her sister's residence. One has only to see Ms Schumacher and to hear her on the telephone to believe that the last thing in the world that Ms Schumacher would be doing was mixing cement. The offender's evidence in that regard was risible. It is clear that the reference was to mixing amphetamine with some innocuous substance in order to dilute its strength for the purpose of resale. It was so patently obvious that this was the meaning to be attributed to the content of the particular conversation that, at the sentencing hearing, Ms Schumacher's counsel did not attempt to suggest otherwise. 13 Of particular significance so far as an assessment of the extent of the involvement of the offender in the supply of drugs is concerned are the conversations between him and Tim Jordan. The most incriminating of these calls took place on 13 September and was Exhibit No. B52 at the trial, but that conversation has to be seen in the context of other calls between the two. 14 In conversation B15 of 14 June the offender asks Jordan whether he wants to come to work for him again. Jordan replies, "Yeah, have you got much of it? Are they any good?" Jordan adds, "I heard Richard [Walsh]'s was alright actually". And the offender says "Yeah". Later Jordan tells the offender that he, Jordan, is probably going to be sent to gaol shortly, but he has a person "who's running, taking over my business anyway". The offender comments, "Oh yeah… its just that I…I need to fuckin do something". They arrange to meet later. 15 The offender told the jury that this was a discussion about Jordan doing some spray painting for him, but I have no doubt that it is about amphetamine that the offender was hoping to obtain from Walsh and was wanting to sell to Jordan, who was also a drug supplier. 16 On 16 June there is a further conversation between the two. In exhibit B18 Jordan tells the offender, "I can't load up off you because I think I could get locked up on Monday" and later he says "I'm stuffed if I'm goin' to walk out of gaol owing you money as well….OK?" There is no doubt that this is also a conversation about drugs and is in effect Jordan declining the offer to sell for the offender. 17 On 13 September in exhibit B52 Jordan, having been released by this time from custody, asks the offender whether he is "still doing that shit" and the offender replies "Oh, I've got to fuckin eat somehow." Jordan asks whether he was still doing "LPG". The offender admitted to the jury that this was a reference to amphetamine. The offender replied, "No I haven't fuckin' worried about it mate, I haven't got no one to fuckin' do it here". Jordan says, "I'd do for ya but you keep fuckin', um, putting Kelly [Schumacher] between it man". He tells the offender, "I won't deal with Kelly whatsoever". Although the offender says that this occurred a long time ago, Jordan tells him that it was only 6 months earlier and that is not a long time. The offender laughs. 18 The offender told the jury that he did not understand what Jordan was talking about in this conversation. He attempted, unsuccessfully in my view, to account for what appears to be extremely incriminating statements in this and in the other conversations between Jordan and him by asserting that Jordan was a person who was prone to exaggeration and obfuscation. The offender gave evidence that his previous relationship with Jordan, so far as the supply of drugs was concerned, arose when on one isolated occasion the offender supplied him with a single dose of amphetamine when Jordan came to Walsh's work premises looking to buy some amphetamine from Walsh. 19 Later on 13 September Jordan again speaks to the offender. During this conversation the offender says, "you know that price you told me?……….that's all I can get it for anyway". Jordan asks "But what's it like?" The offender's reply is inaudible. The offender sought to explain this conversation on the basis that he was then involved in negotiations between Jordan and Walsh for the supply of drugs by the latter to the former. 20 I have no doubt that the offender's evidence concerning these conversations and his relationship with Jordan was untrue. However, the offender is not to be sentenced because of his past relationship with Jordan or on the basis that there was an attempt by him to re-establish his drug dealing with Jordan shortly before the offender's arrest. The evidence however is important in that it gives context to the other telephone conversations and is relevant to whether I should accept the offender's assertion that his involvement in the supply of amphetamine was limited to obtaining small amounts from Walsh for the purpose of meeting Schumacher's needs, either for her own consumption or for her to sell in order to support her drug habit. 21 The Crown submitted that the jury verdict should be taken to have been an acceptance of the offender's account of his involvement in the supply of amphetamine because they rejected the evidence of Love that was inconsistent with it. With respect that reasoning is flawed. The jury did not have to make any finding about the evidence of the offender at all in order to reject the Crown's case in support of the charge on the indictment. The jury's verdict says nothing about the extent of the offender's involvement with the supply of amphetamine in the relevant period other than that it was less than a large commercial quantity. The jury's verdict does not mean that I have to sentence the offender on the basis of the version he gave in the witness box, and I do not intend to do so. 22 I am unable to form a settled view, at least beyond reasonable doubt, of the extent of the offender's involvement in the supply of amphetamine over the period in the indictment but I have no doubt that it was more than supplying Ms Schumacher's needs. I also have no doubt that it began earlier than March 2001, when the telephone intercepts commenced. I am satisfied that at some stage the offender was involved in supplying drugs to Jordan and was seeking to re-establish that market shortly before he was arrested. However, the offender has to be sentenced on the basis that the drug he supplied, either himself or in a joint enterprise, was less than 250gms, being the commercial quantity for amphetamine. However, I am also satisfied that, in addition to what she was receiving from the offender, Ms Schumacher was receiving or attempting to receive drugs from Love in order to avoid Walsh's veto of further credit being extended to her. Yet the offender cannot be sentenced for what Ms Schumacher was doing to obtain drugs independently of the offender. 23 I believe that from March 2001, that is at the time the telephone conversations in evidence in the trial were taking place, Ms Schumacher was more involved in the supply of amphetamine than was the offender. However, she was experiencing difficulty in pursuing this activity because she was in debt to Walsh and was not able to obtain from him the drugs that she needed and that had previously been available to her and the offender. The telephone conversations reveal the offender's attempts to supply Ms Schumacher with drugs for her own needs or what she had promised to others including her sister. 24 But the conversations also make it clear that on occasions the offender supplied Ms Schumacher with amphetamine of sufficient quantity or purity that she was able to cut it with dextrose or some other substance and supply it to others. The supplies by Ms Schumacher were principally carried out in an attempt by her to obtain funds to pay off her indebtedness to Walsh and maintain her drug addiction. 25 It follows that I am not satisfied beyond reasonable doubt that, between March and September 2001, being the period in respect of which the offender is to be sentenced, the offender or Ms Schumacher were involved in the supply of drugs as a commercial enterprise or for a substantial profit. 26 It seems to me that at least over the period of the recorded conversations Ms Schumacher was a drug addict who lived from day to day attempting to obtain drugs for her personal use or that she might sell to obtain money to purchase more drugs from Walsh and Love. She had become so unreliable in paying for the drugs that she obtained that Walsh took possession of a ring she owned as collateral for monies outstanding to him for drugs he had supplied to her or was to supply in the future. The offender became concerned that Ms Schumacher was going to lose the ring and was doing his best with Walsh to ensure that this did not happen. I have no doubt that an amount of $1800 that Ms Schumacher was trying to scrap together to give to Walsh and to which there is reference in one of the conversations, was payment for drugs and not for equipment hired by her sister for the building of a swimming pool as the offender asserted in the course of his evidence. it is significant, however, so far as the offender is concerned, that what debts were owing to Walsh appeared to be derived from Ms Schumacher's involvement with the amphetamine and not the offender's. 27 The recorded conversations also reveal that the offender was subject to continual urgings, almost amounting to harassment, by Ms Schumacher to obtain drugs from Walsh. When the offender appeared reluctant to do so or expressed concern that Walsh would be uncooperative, Ms Schumacher became abusive toward him. On one occasion she threatened the offender that she would reveal information to Walsh against his interests if he did not do more to obtain drugs for her. It is also apparent that the offender was unhappy with persons coming to Ms Schumacher's residence in order to purchase drugs from her. He was also concerned about schemes that Ms Schumacher was considering adopting to increase her ability to supply drugs in order to support her habit. 28 All of this indicates to me that between March and September 2001 the offender was on the lowest rung of the organisation disseminating drugs obtained from Walsh and was generally concerned with Ms Schumacher's needs rather than his own. But as I have indicated this period of time has to be considered in the context that to some unknown extent the offender himself had been involved in the supply of drugs on his own account and was intending to do so again if the opportunity presented itself. 29 It was put to me by Mr Simpson on behalf of the offender that, if I were considering only the offence of supply, it would have been open to me to determine that an alternative to full time custody was an appropriate punishment. In particular it was submitted that it was a case where a suspended sentence could have been utilised. Although I doubt that I could have been persuaded to adopt that course, it is really a moot point because of the two other charges for which the offender is to be sentenced. 30 The first of the larceny offences relates to a 1984 tip-up truck that was stolen in November 2000. There is before me an agreed statement of facts in relation to both the motor vehicles and I do not intend to set that out in any detail. This motor vehicle was stolen by Paul Chapman assisted by the offender. The venture was organised by Walsh who wanted parts from the vehicle to use on the vehicle he had stolen in the previous month. Walsh drove Chapman and the offender to the location of the vehicle to be stolen and provided them with equipment they would need for the theft, such as an ignition switch and 2-way radios. The offender and Chapman entered the vehicle and after unhitching the trailer, drove it back to Walsh's work shed where Walsh, Chapman, the offender and another of Walsh's employees cut the truck into pieces. Some parts of the truck including the bin were retained and the rest of the vehicle was buried. The owners of the vehicle estimated its worth as $45,000. 31 The second stealing offence was somewhat similar. Walsh wanted some aluminium wheels for the truck and trailer he had stolen in September. He had spotted some vehicles that were suitably equipped and informed Chapman that they were going to steal one for its wheels. On 3 December 2000 Walsh drove Chapman and the offender to the location of the vehicles and again equipped them with 2-way radios and the necessary tools to complete the task. Chapman cut a hole in a fence to gain entry to the vehicles and chose a prime mover with a dog trailer attached as a suitable vehicle because it was in pristine condition. 32 Although the offender's part in the enterprise was to cut the lock from the front gates to allow the vehicle to be removed, he was too nervous to do so. Chapman became impatient and drove the vehicle from the yard through the locked gates, leaving the offender behind. The offender was eventually picked up by Walsh and taken to meet Chapman with the stolen vehicle. The offender was then assigned the task of driving the truck to the premises of an associate where, the next day, the offender, Walsh and Chapman dismantled the truck. The bin of the dog trailer was cut up and sold for scrap. The wheels were placed on the truck stolen previously by Walsh and the rest of the truck buried. The truck and trailer were valued at $200,000. 33 These two offences are clearly serious examples of the theft of a motor vehicle. They were premeditated and planned criminal activity. Although the offender was not the principal in the enterprise he was an active, if not particularly competent, participant in both the stealing of the vehicles and in them being cut up. The value of the property stolen was high and the enterprise involved the complete destruction of the two vehicles merely for their parts. 34 There is no doubt that the involvement of the offender in these offences is directly related to his association with Walsh both as an employee and as a member of the Nomads. There is little doubt from the material before me that the offences were committed at the instigation, and for the benefit, of Walsh and not the offender. However, the offender is not an unintelligent person, he is a mature adult and he would have appreciated the serious criminality of his involvement in the theft of these two vehicles and the loss occasioned to the owners or the insurance companies. He assisted in the destruction of the vehicles and he knew that this was the purpose of the theft. 35 Once again Mr Simpson realistically conceded that the offences were so serious that a gaol sentence was inevitable. However he submitted that it was open to me to consider imposing a sentence that could be served by way of periodic detention. 36 It is clear that I should approach the task of determining the appropriate sentences to impose upon the offender for these three offences unconcerned with the manner in which any sentence of imprisonment should be served. Rather I should first determine whether a prison sentence is warranted, and, if it is, what sentence is required by reason of the objective circumstances of the offences considered in light of the offender's subjective material and the purpose of punishment such as denunciation and general deterrence. Having determined that sentence, I should then consider how the sentence might be served. 37 I have not mentioned the offender's rehabilitation as a relevant factor in determining the appropriate sentence because it seems to me that, with Walsh now in custody pending sentencing for his involvement in the supply of a large commercial quantity of amphetamine, the offender can live as a worthwhile citizen in the community without recourse to using or supplying prohibited drugs for either himself or Ms Schumacher and without committing further offences of dishonesty. I accept that he has endeavoured to rehabilitate himself since his arrest and has largely achieved that goal. 38 The offender is aged 42. There is little in his background of relevance as apparently he enjoyed a supportive and stable upbringing. He married in 1988 but the marriage concluded two years later apparently because of pressures brought about by his employment as a long distance truck driver. In 1994 the offender came to live in the Newcastle district and entered into a relationship with Ms Schumacher. They have two children aged 6 and 7. The relationship had been unsettled and, at the time of the offences involving the supply of drugs, they were living apart although in close contact with one another. At the time the offender was living with Ms Schumacher's parents. The offender and Ms Schumacher are presently reconciled and, before I revoked the offender's bail, they were living with their children in her parents' home. 39 The offender is usually gainfully employed, predominantly as a truck driver, plant operator or welder. He had obtained stable employment after his arrest and was gainfully employed at the time I remanded him in custody. 40 A pre-sentence report was requested in respect of the offender and Ms Schumacher but unfortunately, due to administrative problems emanating from the Criminal Registry of this Court, the reports were not ordered in sufficient time to permit the Probation Officer to fully investigate the offender. However, I am prepared to sentence him on the basis that he is no longer using drugs and has not done so since his arrest. 41 The offender presented to the officer preparing the report as an industrious and caring father notwithstanding his serious offending. As I have already indicated his criminal side emanates from his association with Walsh and the influence of that person over him. However, there is nothing in the material before me to suggest that the offender should be sentenced otherwise than as being both legally and morally responsible for his criminal conduct during the period of that association. 42 The offender's legal representative made it known to the Crown that the offender was prepared to plead guilty to the offence of supply simpliciter in June 2003 but the Crown indicated that it was not prepared to accept that plea in discharge of an indictment alleging the supply of a large commercial quantity. Although the offender did not plead guilty to that offence on arraignment before the jury, that seems to have been a result of legal advice he had received from his barrister. In relation to the motor vehicle offences the offender had indicated his preparedness to plead guilty to the offences on the indictment once the drug charges were out of the way. 43 It seems to me that he should be given the benefit of a discount of 20 per cent for his pleas of guilty. I also accept that the offender is to a degree contrite. Although, as I have already indicated, he was not, in my view, a truthful witness in giving evidence before the jury, he is not to be punished for that conduct and I do not think that it indicates a complete lack of contrition or remorse on his part. I do not believe the offender is a persistent or committed criminal nor is he likely to become one. 44 I have sentenced two offenders who were involved in criminal activity arising from their association with Walsh and Love. In respect of the offender Lott, there is nothing in the offences committed by him or in his personal circumstances that impacts in any way upon the appropriate sentence for the offender. There is no question of parity because Lott was not convicted of offences relating to drugs or involving dishonesty. He was not involved in any way in the offender's activities. 45 The other offender was Robert Zdravkovic. He was employed by Walsh, mainly as a spray painter. His talents were employed on at least one occasion to rebirth a motor vehicle stolen by Walsh and his associates. I understand that he took part in cutting up one of the vehicles stolen by the offender. He was sentenced by a magistrate for two offences of stealing a motor vehicle to a total sentence of 2½ years imprisonment with a non-parole period of 18 months, that sentence was to be served by way of periodic detention. I sentenced that offender for two offences of supplying a large commercial quantity of amphetamine arising from his accompanying Walsh to northern NSW to collect drug that Walsh intended to supply in Newcastle. For reasons that I need not repeat here, I sentenced Zdravkovic to a further sentence to be served by way of periodic detention notwithstanding the apparent seriousness of the offences to which he had pleaded guilty in this Court. In reality his criminality arising from those offences was very minor. He also had a powerful subjective case and he had spent five months on remand. 46 I have taken into account in sentencing the offender the issue of parity between him and Zdravkovic. The drug offence of which the offender was convicted by the jury was, somewhat ironically, much more serious having regard to its criminality that the two drug offences for which Zdravkovic was sentenced by me. Unlike Zdravkovic, the offender was involved in the supply of drugs to a substantial extent for at least a period six months. That course of criminal conduct alone warrants a full-time gaol sentence notwithstanding the offender's good character and the fact that he was supplying to assist Ms Schumacher maintain her drug habit. See R v Clark (NSWCCA, unreported, 15 March 1990) and R v Cacciola (1998) 194 A Crim R 178. The offender was aware that on occasions Ms Schumacher was on-supplying to others in the community. Although the supply was not a commercial venture for profit, it does not follow that the offence is neither a serious one nor one warranting other than a full-time gaol sentence. 47 There must be a degree of cumulation between the sentences for the drug offence and the offences relating to the motor vehicles. Although the offences arose in the overall circumstances of the offender's relationship with Walsh, they are separate and distinct serious acts of criminality that could not be reflected by concurrent sentences. Similarly concurrent sentences would not be appropriate to reflect the criminality involved in the two offences of stealing the motor vehicles. However, I have had regard to the totality of the offender's criminality and have designated fixed terms for the stealing offences because of the cumulation for the supply offence: Johnson v The Queen (2004) 78 ALJR 616. For that reason also the sentences I am imposing for the motor vehicles are individually and in combination less than would otherwise be warranted had they stood alone. I have also tempered the sentences to some degree in recognition of the fact that Zdravkovic received imprisonment by way of periodic detention. 48 There are no special circumstances justifying a disturbance of the statutory ratio between the overall term of the sentence and the non-parole period notwithstanding that the offender is otherwise of good character and is to serve his first custodial sentence. I have found special circumstances in relation to the sentence for the supply offence in order to preserve the statutory ratio overall. I have dated the sentence from a period when the offender was in fact not in custody to recognise the fact that he spent 23 days on remand. 49 The offender is convicted of each offence. 50 In respect of the first count on the second indictment the offender is sentenced to a fixed term of imprisonment for 14 months to commence on 10 May 2004 and to expire on 9 July 2005. 51 In respect of the second count on the second indictment the offender is sentenced to a fixed term of imprisonment for 14 months to commence on 10 September 2004 and to expire on 9 November 2005. 52 In respect of the offence of supply he is sentenced to imprisonment for 2 years to date from 10 November 2005. There is to be a non-parole period of 13 months to expire on 9 December 2006, the date upon which the offender is to be released to parole. 53 The intended effect of these sentences is that the offender is to serve a total sentence of 3 years 6 months from 10 May 2004 with a non-parole period of 2 years and 7 months expiring on 9 December 2006 the date upon which the offender will be released to parole. **********

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