CRIME - Sentencing - Aggregate Sentence - Form 1 Document - Special Circumstances
Legislation Cited: Crimes Act 1900 ss 193B
193C
Crimes (Sentencing Procedure) Act 1999 ss 3A
5
Source
Original judgment source is linked above.
Catchwords
CRIME - Sentencing - Aggregate Sentence - Form 1 Document - Special Circumstances
Legislation Cited: Crimes Act 1900 ss 193B193C
Crimes (Sentencing Procedure) Act 1999 ss 3A5
Judgment (3 paragraphs)
[1]
Judgment
The matter is before the Court today for sentence in relation to a number of matters. When it was first listed for sentence hearing there were disputed facts matter was resolved on the basis that to permit the facts which were sought to be adduced by the Crown as to other matters may result in a breach of the principles of R v De Simoni (1981) 147 CLR 383.
The factual matters which were disputed were contained in the original version of the draft facts in paragraphs 33, 34, 35, 36 in part and 37 in part, and it was said by the representatives of the Crown on that occasion that that evidence would permit the Court to infer that the Offender was engaged in offending beyond that for which he was charged.
On the basis of the well-known principles stated by the Chief Justice in the matter of De Simoni, I resolve the disputed facts by excluding from the agreed facts those matters which were disputed. I did so for the reasons referred to by the Chief Justice, in particular in [8], the statement:
"The general principle the sentence imposed on an Offender should take account of all the circumstances of the offence which is then subject to a more fundamental and important principle that no one should be punished for an offence of which he is not being convicted."
The concern was that to have regard to the facts in dispute and to draw the inference which the Crown contended for may breach that principle and result in at least the impression that he was being sentenced in relation to matters for which he had not been charged.
The Offender Dylan Shaw was born in 1994 and is currently 25 years of age. He had a difficult upbringing with drug addiction at an early age.
He has pleaded guilty to three principal offences, namely:
1. sequence 2, being supply a prohibited drug not less than the commercial quantity, being 249.9 grams of MDMA, in breach of s25(2) of the Drug Misuse and Trafficking Act. That carries a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years imprisonment and/or a fine of 3,500 penalty units;
2. sequence 9, that is knowingly deal with the proceeds of crime, being $179,000 in Australian currency, in breach of s193B(2) of the Crimes Act. The maximum penalty for that offence is 15 years imprisonment; and
3. sequence 16, supply a prohibited drug not less than the commercial quantity, being 402.2 grams of 2CB, also known as 'bromo', in breach of s25(2) of the Drug Misuse and Trafficking Act. The maximum penalty is the same as previously announced, that is an maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years imprisonment and/or a fine of 3,500 units.
The maximum penalty is a guidepost to sentence.
There are a number of additional charges on Form 1 documents, which I note were signed on the last occasion and also signed by me certifying they will be taken into account. By signing the certificates to those documents, I confirm that I have taken those charges into account. In sentencing for the principal charges I have just outlined, the charges on the Form 1 are to be taken into account with a view to increasing the penalty that would otherwise be appropriate for the principal sequence offences.
The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence and the second is the community's entitlement to extract retribution for serious offending.
There are five charges on the Form 1 document attaching to sequence 2. They are:
1. sequence 4, being supply prohibited drug, being 6.01 grams of methylamphetamine, in breach of s25(1) of the Drug Misuse and Trafficking Act. That offence carries a maximum penalty of 15 years imprisonment and/or a fine of 2,000 penalty units;
2. sequence 6, being supply a prohibited drug being 5.22 grams of methylamphetamine in breach of s25(1) of the Drug Misuse and Trafficking Act. That offence carries the same maximum penalty;
3. sequence 7, which related to the supply of 5.38 grams of methylamphetamine in breach of the same section with the same maximum penalty;
4. sequence 8, being supply of prohibited drug being 28 grams of methylamphetamine in breach of the same section with the same maximum penalty; and
5. sequence 12, being supply prohibited drug being 26.01 grams of methylamphetamine in breach of the same section, the same maximum penalty.
On the second Form 1 there is a charge which attaches to sequence 9 in the principal charges, being sequence 14, namely a charge of deal with property, the proceeds of crime, less than $100,000, in that case being $20,000 in Australian currency, in breach of s193C(2) of the Crimes Act. That offence carries a maximum penalty of three years imprisonment.
On the third and final Form 1 document there are two charges which is attached to sequence 16, which was the supply of not less than a commercial quantity of 4C-B or 'bromo.'
The two charges attaching by way of the Form 1 to sequence 16 are sequences 11 and 13. Sequence 11 is supply prohibited drug, being 13.4 grams of cocaine in breach of s25(1) of the Drug Misuse and Trafficking Act. I have already referred to the maximum penalties, to which I will have regard in determining the appropriate sentence outcome. Secondly, sequence 13 also attaches to sequence 16 and that related to supply prohibited drug, being 10.11 grams of cocaine, in breach of s25(1), with the same maximum penalty.
Standard non-parole periods apply in respect of two of the charges for sentence. That is sequence 2 and sequence 16. The relevance of a standard non-parole period was most recently discussed by the CCA in the matter of Tepania v R [2018] NSWCCA 247, where Johnston J, at [110], summarised the propositions that arose from the legislation which the provisions relevant to the standard non-parole period are found in their amended form after the decision of the High Court in the matter of Muldrock v The Queen (2011) 244 CLR 120.
The standard non-parole period is a matter to be taken into account as part of the determination of sentence. The Act provides that the standard non-parole period applies to an offence found in the mid-range of objective seriousness for such an offence, taking into account only objective factors without bringing into account matters that are unique to the offender or the class of offenders.
Ultimately, though, the standard non-parole period is but a factor to be taken into account in the sentencing exercise together with the objective and subjective matters which I will consider in synthesis in accordance with what McHugh J discussed in Markarian v The Queen (2005) 228 CLR 357. Thus, even though an offence might be found to be within the mid-range of objective seriousness, it does not automatically follow the standard non-parole period will apply, nor indeed that there should be a percentage calculation of a form where the offence might be found lower on the scale of seriousness.
For reasons which I will provide in due course I am of the view the standard non-parole periods in relation to sequence 2 and sequence 16, that is the standard non-parole period of 10 years in respect of each of those two offences, is not reasonable in the circumstances.
This offending was committed after the Offender had been charged for offences falling under a charge number commencing H ending 767, emanating from the importation of steroids. The Offender was arrested for those offences on 7 November 2016 and released on bail on 8 November 2016. Those offences were not dealt with by the Court until 26 April 2019. As this offending, the subject of this sentence, was committed between 15 March and 26 July 2018, the Offender was on bail for those earlier offences during the commission of these offences.
The Offender was arrested in relation to the charges relating to charge number H ending in '285' on 22 May 2018 and was granted bail on 30 May 2018. So, for part of the period of the subject offending, he was also on bail in respect of an additional offence.
The Offender was arrested on 26 July 2018 for these offences and was taken into custody.
On 26 April 2019 the Offender was sentenced for the offences relating to charge number H number ending in '767'. He received a fixed term sentence of seven months. In relation to the importation offence he was sentenced to a non-parole period of nine months to date from 12 December 2018, to expire on 11 November 2019, with a head sentence of 18 months which to expire on 11 June 2021.
For the offences falling under the H charge number 285, the Offender was sentenced to a s9 bond for a period of three years commencing 20 September 2018 and expiring 19 September 2021. Therefore, the period from 26 July 2018 through 11 December 2018 was time spent in custody, solely referable to these offences. It is not clear on the papers whether bail in respect of the other charges, which were outstanding at that time, was revoked, but in any event it is plain that that period just referred to was spent in custody as a consequence of the subject offending.
In the result, the Offender was in custody for a period of four months and 15 days solely referable to the present offences. From 12 December 2018 he was serving sentences for the charge H ending in '767' offences, as well as being bail refused in the present matter. The non-parole period component for the charge H ending in '767' will expire on 1 November 2019, from which time the Offender will be in custody for this sentence only.
In giving consideration to the question of totality and, in doing so, the commencement date for any sentence to be imposed today, plainly the sentence must be backdated. The starting point is the four months and 15 days in custody whilst bail refused for these matters. Next, I have had regard to the period of time for which he was serving sentences ending for charges ending 767 and in custody either bail refused in this matter or serving the sentence to be imposed today. That is, from 12 November 2018 through 11 November 2019. I propose to accumulate 50% of that period in further backdating the sentence, as I am not satisfied that the sentence for one set of offences could comprehend and reflect the criminality for the other set of offences. The commencement date for the sentence to be imposed today will be backdated to 26 November 2018.
The following are the facts agreed between the parties for sentence. In February 2018 police commenced the controlled operation in relation to the supply of prohibited drugs by a Facebook user known as Tony Rhino and a Wickr user known as "Tmontana1". Both of the social media accounts belong to the Offender.
The following facts relate to sequence 2, namely the supply of MDMA in the quantity of 249.9 grams. On 13 March 2018 a police undercover operative (UCO) contacted the Offender via the Wickr application. The following exchange took place:
UCO: Hey bro got this on facey [Facebook]. Do you deliver?
OFFENDER: Hey man everything is expressed posted unless ya local I can deliver
UCO: where's local bro?
OFFENDER: Central Coast/Newcastle
UCO: Sweet. I was wondering getting 100md-rounds/caps for Thursday. Can you come servo M1. I'll be come going up north.
OFFENDER: Yeah bro…
UCO: …how much?
OFFENDER: $8ea 11am?
At 1.30pm on 15 March 2018 the Offender met with the UCO at a location in Warnervale. The Offender told the UCO that he also had ice, methylamphetamine and cocaine for sale. The Offender supplied the UCO with 102 beige coloured tablets. The UCO paid the Offender $800 Australian dollars in cash. The tablets were subsequently analysed to be 26.43 grams of MDMA.
The following facts relate to a supply of 223.53 grams on 20 March 2018, part of the same sequence, namely sequence 2. On 19 March 2018 the UCO contacted the Offender through the Wickr application and the following exchange took place:
UCO: Hey cuz. Can I order 1000 for tomorrow
OFFENDER: yeah man easy do e done
UCO: wanna meet at maccas 1pm?
OFFENDER: Yeah perfect I'll go pick em up in a hour man
UCO: Cool sweet bro. $6 each. Btw can you send me your price list?
OFFENDER: Yeah Bro $6each
On 20 March 2018 the Offender met with the UCO at a location in Warnervale. The Offender supplied the UCO with a plastic resealable bag, containing 853 beige coloured tablets. The UCO paid the Offender $6,000 Australian dollars in cash. The tablets were subsequently analysed to be 223.53 grams of MDMA with a purity of 11.5%.
The following facts relate to sequence 16, which is also a supply of prohibited drug not less than the commercial quantity. On 26 March 2018, the UCO contacted the Offender via the Wickr application seeking, "Another 1,000" for the following day. The Offender told the UCO he would "message my pill guy" and get back to him.
On 2 April 2018 the UCO sent the Offender a Wikr message, which read: "Hey cuz did you get in touch with your mate, can you do 1,000 for this coming Wednesday, WED?"
The Offender replied:
Yeah bro, got in contacted with another guy, my guy got done bro but I'm picking up pills hopefully this week. MDMA base I'll be able to do 1,000 packs, 5,500 for you bro.
The Offender told the UCO that he would "keep you posted". On 12 April 2018 the Offender sent the UCO a Wickr message which read: "Sorry bra had a couple of fuck ups with the pills, they were shot but I got red Supermans SK a box ATM."
The UCO asked the Offender to put it aside, 1,000 for him, to which the Offender agreed. On 19 April 2018 the Offender sent a photo to the UCO via the Wickr application depicting red coloured pills.
The UCO sent the Offender a message which read: "That looks sick cuz, I get back over the weekend, I'll come and see you on Tuesday."
On 24 April 2018 the Offender met with the UCO at a location in Warnervale. The Offender supplied the UCO with a box containing 1,057 pink coloured tablets. The UCO paid the Offender $6,000 Australian dollars. The tablets were subsequently analysed to be what is referred to as 'bromo', with a purity of 4%.
On 1 May 2018 the UCO contacted the Offender via Wikr message which read, "Hey cuz, can I get the same as last time, one box on Thursday?" The Offender replied, "Easy an."
At around 11am on 3 May 2018 the Offender met up with the UCO at a location in Warnervale. The Offender supplied the UCO with a bag containing 1,005 pink coloured tablets. The UCO paid the Offender $6,000 cash. The tablets were subsequently analysed as being 194 grams of what is referred to as 'bromo', with a purity of 4%.
The following facts relate to sequence 4, which is on a Form 1 attaching to sequence 2. On 23 April 2018 the UCO started communicating with the Offender using a different Wikr account and user name. The following exchange took place:
UCO: G'day there. Just checking out how this work. Wanna get a sample first? Thanks
OFFENDER: Hey mate what products you after
UCO: Hey man just an 8ball of ice for a sample and if it's good I'll get more
…
OFFENDER: yeah I can do 8ball
…
UCO: Ok I'll try it. $900 how do we do this? How long does it take to get to me
The Offender then indicated that it would be a "next day delivery". The Offender directed the UCO to deposit the funds into a Commonwealth Bank account named "Luxe Lashes and Beauty" and to put lashes treatments in the subject line. On 26 April 2018 the UCO deposited $900 Australian dollars into the nominated bank account. He sent a photo of the transaction receipt to the Offender via Wikr together with a PO Box address in Willoughby.
Later that afternoon the Offender attended the Wyee Post Office and posted around four express post envelopes. On 27 April 2018 the Offender sent the UCO a photo of the express post tracking number. At around 1pm on 1 May 2018 the UCO attended the nominated post office and collected the express post envelope. The contents of the envelope were secured and later analysed to contain 6.01 grams of methylamphetamine with a purity of 60.5%. The Offender's fingerprints were developed on the envelope.
The following facts relate to sequence 6, which again is on the first Form 1 attaching to sequence 2. On 3 May 2018 the UCO sent the Offender a Wikr message which read, "G'day matey, can I get the same order, I'll deposit the cash after lunch." The Offender responded, "Yeah confirm bro coke or ice was it?" The UCO replied, "Ice bro okay depositing it now will send receipt soon." At 2.04pm the UCO deposited $900 Australian dollars into the same nominated Commonwealth Bank account. He sent a photo of the transaction receipt to the Offender. At 2.39pm the Offender sent the UCO a photo depicting an express post envelope addressed to the same post office box together with a tracking number.
On 4 May 2018 police attended the Post Office Box in Willoughby and recovered the express post envelope. Inside the envelope was an "Eclipse" mint tin containing a crystal substance which was later analysed to be 5.22 grams of methylamphetamine with a purity of 60.5%. The Offender's fingerprints were located on the envelope.
Next is sequence 7, which again is on the first Form 1 and attaches to sequence 2. On 10 May 2018 the UCO sent the Offender a Wikr message which read: "Hey buddy I want to order another 5 grams PS. I'll be depositing the $900 in your account after lunch." The Offender replied, "Easy brother no drama." At 1.55pm the UCO deposited $900 Australian dollars into the nominated Commonwealth Bank account and sent a photo of the transaction receipt to the Offender.
At around 4.30pm that afternoon the Offender attended the Wyee Post Office and sent the express post envelope. At 6.44pm the Offender sent a photograph of the tracking number to the UCO via Wikr. On 14 May 2018 police attended the Post Office Box in Willoughby and retrieved the express post envelope. Inside the envelope was a plastic resealable bag containing a white crystal substance, which was later analysed to be 5.38 grams of methylamphetamine with a purity of 60.5%. Again, the Offender's fingerprints were located on the plastic resealable bag.
The following facts relate to sequence 8, which again is on the first Form 1 attaching to sequence 2. On 15 May 2018 the UCO sent the Offender a Wickr message, which read, "Hey bud I want to order one occa(?)(ounce) for 3k." The Offender replied, "Hey bro that stuff ran out in got big shard in 3,500." The UCO responded that he only had $3,000 Australian dollars but would be ordering from the Offender on a weekly basis if the drug was of good quality.
The Offender said, "Here I'll cut you a deal 3,400." The UCO replied that he had only had '3K' but would try and get another 400. The Offender then sent a message which read: "I'll send you the oz you send me 3 K and once you sell a bit you pay the remaining 400, are you happy with that?"
The Offender asked the UCO to send cash rather than transferring funds into the bank account. The Offender nominated a postal address of "BH PO Box 8 Wyong, New South Wales, 2259". The UCO sent $3,000 Australian dollars inside an express post envelope to the address nominated by the Offender. At 12.17pm that afternoon the Offender attended Wyong Post Office and sent an express post envelope to the UCO at the Post Office Box in Willoughby. At around 12.25pm the next day on 17 May 2018 the Offender attended Wyong Post Office and collected the deliveries from Post Office Box number 8.
Also on 17 May 2018 police attended the Post Office Box in Willoughby and seized the express post envelope sent by the Offender. The envelope contained a clear plastic bag with some bubble wrap. The bag contained white crystallised granules, which were later analysed to be 28.0 grams of methylamphetamine with a purity of 81%. The Offender's fingerprints were located on the inside and outside of the express post envelope and on the bubble wrap.
The following facts relate to sequence 11, which by reason of a separate Form 1 attaches to sequence 16. On 23 July 2018 the Offender attended Wyong Post Office and sent an express post envelope addressed to 13 Mahilton Street, Townsville in Queensland. On 26 July 2018 police attended an Australia Post office in Townsville and retrieved the express post envelope, after staff had flagged the package as being suspicious. The envelope contained a light bulb box sealed with orange tape which read "Fragile". Inside the box was a substance later analysed to be 13.4 grams of cocaine with a purity of 6.9%. The Offender's fingerprint was located on the orange tape.
The following facts relate to sequence 9, the matter for sentence, which is knowingly deal with the proceeds of crime. On 26 July 2018 at about 5pm the Offender drove his vehicle, a white Honda Accord, from his house in Wyee to an address in Belmore. Police commenced a search of the Offender's vehicle, identified by registration number referred to in the Agreed Facts.
During the search of the Offender's vehicle police located a false wall. In a cavity between the false wall and the rear passenger seat police found a Tommy Hilfiger bag with a plastic "My Supplement Store" bag inside. The plastic bag contained two vacuum sealed bags with a total of $179,000 Australian dollars cash inside. The vacuum sealed bags were wrapped with bubble wrap. The Offender's fingerprints were located on the bubble wrap, the "My Supplement Store" plastic bag and also the Tommy Hilfiger bag.
On 27 July 2018 police executed a search warrant at the Offender's residential premises. Police located an orange Food Works bag in the living room. Inside that bag was a blue bag with $20,100 Australian dollars cash in $50 note denominations. That gave rise to charge sequence 14, which is on a Form 1 attaching to sequence 9.
Also located inside the bag was a freezer bag with a pink substance later analysed to be 26.01 grams of methylamphetamine. That discovery gave rise to the sequence 12 charge, which is attached by way of the Form 1 document to sequence 2.
Police also found a freezer bag containing a white powder substance inside a paper bag in the oven of the Offender's residential premises. The substance was later analysed to be 10.11 grams of cocaine. That discovery gave rise to the charge which was sequence 13, which appears on a Form 1 attaching to sequence 16.
Following his arrest the Offender was conveyed to Campsie Police Station and introduced to the custody manager. He agreed to participate in a recorded interview with police during which he made no comment in relation to the allegations and he exercised his right to silence. He was then charged with the matters before the Court.
The Offender presents before the Court with a strong subjective case. Notwithstanding the seriousness of his offending, he was effectively operating as an intermediary for drug deals of a wide variety of drugs on the Central Coast and in Newcastle. He did have a number of features in his background which gave rise to considerations of leniency or reduced moral culpability. Notwithstanding the apparent smorgasbord of drugs which he is to be either sentenced or to have regard to by way of the Form 1 documents, I have come to the view that the moral culpability of the Offender is reduced by reason of a number of factors, which I will turn to in a moment.
The subjective case proffered by the Offender commenced with a report by Dr Furst, Psychiatrist (Exhibit 1). Dr Furst prepared a report dated 22 September 2019, which followed an assessment of the Offender at the Metropolitan Remand and Reception Centre (MRRC) on 21 August 2019 for a period of about 60 minutes. The expert also had access to the agreed facts and the criminal history, including the bail report.
At page 2 of his report under the heading "Psychiatric History", he begins talking about the difficulties faced by the Offender had as a child, including low self-esteem and a difficulty conversing with adults, family friends and teachers. He attended speech therapy and occupational therapy, about which his mother gave evidence in the course of the sentence hearing.
Despite a number of features which may have suggested it, he was never diagnosed with the condition of Attention Deficit Hyperactivity Disorder. He did however experience what Dr Furst refers to as 'apparent depression' around the age of 12/13 years, cutting his wrist on one occasion towards the end of Year 6. He said that he felt "insecure" and "never felt good enough". He had a history consistent with social anxiety when he was in Year 6.
In Year 7 he went off the rails, coinciding with leaving school, the onset of regular drug use and his avoidance of school by truanting. He was in trouble on a regular basis with the local community centre. Ultimately, he began associating with older peers who were using drugs and were drinking. He began to run away from home, staying with older friends at various places on the Central Coast. His parents said that he would jump the back fence and would leave home for prolonged periods of time. On one occasion, at just 13 years old, his parents reported that he left home for a period between eight and 12 weeks. His parents would spend the nights searching for him. When he returned home it was apparent to his mother and, as a matter about which she gave compelling evidence, that he had been using drugs and "living rough".
According to Dr Furst's analysis the Offender developed anxiety, depression and suffered from mood swings associated from his use of drugs. He was frequently vomiting as a consequence of anxiety when he was just 16 or 17 years of age and was reluctant to go out. His anxiety was quelled to some extent during a period of a short relationship with his first girlfriend. However, following the breakdown of that relationship he became extremely anxious and again turned to drugs; initially steroids and later ice.
The history provided to Dr Furst, which I accept, was that the Offender began smoking cannabis at just 12 or 13 years of age. From recollection the Offender's mother gave evidence that her husband had discovered bongs in his bedroom. He used amphetamines from the age of 13. He drank alcohol from the age of 14 and he continued to use alcohol, cannabis and amphetamines when he was 15 to 16 years of age. At age 16, he was using about 3 to 7 grams of cannabis per day, just prior to a number of periods of juvenile detention. He reported, and I accept, that he would binge on ice on weekends.
He described his use of drugs as helping him to overcome his negative self-esteem, especially through the use of ice and anabolic steroids. Dr Furst also further refers, at page 4 of his report, to the steady relationship which the Offender had with his first girlfriend, which introduced some stability into his life. However, that was short-lived and upon it ending he was thrust back into suffering from periods of anxiety and self-doubt.
In terms of any psychiatric diagnoses by reference to DSM-V, Dr Furst diagnosed a Childhood Conduct Disorder and a Substance Use Disorder. Dr Furst expressed an opinion about the prospects of rehabilitation and re-offending which were referred to at the base of page 7 of his report, namely that the risk of re-offending is at least moderate, dependent upon the capacity of the Offender to remain abstinent from drugs whilst in custody and after being released into the community.
At the top of page 8 of his report Dr Furst stated:
Unfortunately drug addiction generally tends to be a chronic and relapsing condition. There is little reason to expect that Mr Shaw's addictive disorder will follow a different course.
Having carefully observed the Offender in the witness box and having given careful consideration to the insightful evidence provided by his mother, I hold out greater optimism for the Offender than does Dr Furst. I note that he has already completed some 9 out of 10 sessions of rehabilitation whilst in custody, the ultimate completion of that course being interrupted by a change of custodial locations.
In the opinion of Dr Furst, the Offender had insight into his offending and taken responsibility for his offending. He expressed deep regret about his actions and a commitment to having a drug-free life in the future, with the support of his current partner and family. I accept those expressions of remorse made by the Offender.
The Court was also assisted by a handwritten letter from the Offender to the Court. Initially that was to be the only source of information from the Offender. However, following the advice of counsel the Offender ultimately gave evidence, which permitted the Court to make an assessment as to his reliability and truthfulness. It is not necessary to refer to his hand-written letter in detail other than to observe that in it he expressed remorse and a commitment to not returning to the use of drugs in the future.
As mentioned, the Offender gave evidence before me. I considered him to be an impressive witness, notwithstanding the seriousness of his criminal conduct. He spoke of the family support which he had in the Courtroom, attended by his mother, father, girlfriend and his girlfriend's father. He adopted the matters referred to in the report by Dr Furst. He confirmed that he started using drugs from the age of 12 or 13 as a result of anxiety and a lack of feeling that he fitted in. He said that he went into a bad state as a child. Initially cannabis and amphetamines were used, and later steroids, benzodiazepines and methylamphetamine. As he said at T11.25 he used "pretty much everything".
He again reiterated that he always had problems trying to fit in, and suffered from social anxiety. There was some reference to taking anti-depressants in his early 20's, however that did not continue. He confirmed that he left school in Year 7 and commenced using drugs in the manner described. He also confirmed the history provided about running away from home and living on the streets.
Between the ages of 18 and 22, or thereabouts, he enjoyed a more stable life due to the presence of his first girlfriend, as well as working with his father. After the breakdown of the relationship, as I have already noted, he turned again to drugs and ceased working. He "spiralled out of control."
He was asked about how he felt about his offending and its impact upon others and he said in answer to question:
Q. Sitting there today who do you apologise to for your offending conduct?
A. My family and my partner and the community.
Q. Why the community?
A. Because I know what I've done is just horrible and I know the effects now after coming to gaol and seeing other people affected by drugs. It's not good.
I then said to the Offender in the course of his evidence:
Q. You know these pills can kill people?
A. I know, your Honour.
Q. So you'd accept responsibility for your actions?
A. Yes.
Q. Do you acknowledge your actions in supplying drugs has had an adverse impact on the community?
A. Yes.
Despite evidence and common knowledge about the availability of drugs in prison, which itself is troubling, this Offender has had no infringements whilst in prison and told the Court that he has not been using drugs - despite their availability whilst he has been in custody. In prison he has held a responsible position in the workshop, being in charge of power tools and their use by other inmates.
As mentioned, evidence was given by his mother, who confirmed most of the factual matters to which I have already referred. In terms of his maturity she expressed concern that, even at this age, he still lacks some maturity, but she spoke of improvements in his condition and state of mind since being in prison. She confirmed what was stated by her son, in that after seeing others in prison who had suffered from drug addiction for a period of time, he understands the effects and the part he played in the supply of drugs in the community. His mother confirmed that she would welcome her son home upon discharge from custody.
In considering the Offender's childhood, in particular from Years 6 or 7 onwards, it is apparent that his lifestyle was less than satisfactory, to say the least. Whilst I am not satisfied that it rises to the level considered by the High Court in the matters of Bugmy v The Queen (2013) 249 CLR 571, or Munda v State of Western Australia (2013) 249 CLR 600, I am satisfied that the use of drugs by the Offender at an early age was at a time when he lacked the capacity to make rational choices.
This was a matter considered by the Court of Criminal Appeal in the matter of R v Henry (1999) 46 NSWLR 346, where the Court considered whether or not a sentencing judge should have regard to an Offender's drug addiction as being a matter taking into account somehow in his favour in the sentencing process. There is no doubt that the use of drugs in the community and the supply of drugs in the community has reached a level where it has become a scourge. The use and supply of MDMA pills in particular has recently become particularly problematic, with pills resulting in the death of young partygoers. There is no doubt that the Offender's conduct has been anti-social and destructive.
However, accepting his drug addiction as a mitigating factor for the commission of the crimes he committed would significantly attenuate the message which the Court wishes to make to the community. That is, the anti-drug message which the Court often speaks of. Drug addicts who commit crimes should not be added to the list of victims. Their degree of moral culpability will vary just as it varies for the individuals who are not affected by addiction. Persons who choose a course of addiction must be treated as choosing its consequences.
Whilst there is no doubt that a choice was made by this Offender to commence using drugs, at aged 12 or thereabouts, and to continue using drugs into his adulthood, it is apparent from the evidence which he gave together with psychiatric medical evidence that he turned to drugs in periods of anxiety for relief. Although that mode of relief is not something which ought to operate in his favour, it must be observed that the pattern of turning to the use of drugs to treat his anxiety commenced at an age when he lacked the capacity to make rational decisions.
It seems to have continued through his adult life and, upon the breakdown of his relationship at age 22, he again went back to the same treatment for anxiety which he adopted as a child - that is, the use of drugs. In my opinion, the commencement of drug use for that purpose at a young age is a factor which the Court will have regard to in reducing the moral culpability of the Offender for the offences committed.
Submissions were made on behalf of the Offender and the Crown. It was submitted on behalf of the Offender that the case was not dissimilar from the decision of Owen v R [2017] NSWCCA 54. This was an appeal from a decision of a District Court judge who sentenced an Offender in respect of a number of charges. One charge bears a striking resemblance to the present, being the supply of not less than the commercial quantity of methylamphetamine of 269.17 grams, resulting in a period of imprisonment of five years with a balance of term of two years and 10 months - an overall sentence of seven years and 10 months.
Whilst it was accepted by Mr Jankowski of Counsel that there were great similarities between the two cases, it was also observed that Mr Owen was some 51 years of age, whereas Mr Shaw is presently just 25 years of age. Whilst there were some subjective similarities between the two Offenders, it is my opinion that the degree of culpability, by reasons of his drug addiction as a child and of his young age, justifies a lesser sentence than that which was imposed upon Mr Owen.
There were exchanges between the Bench and Mr Jankowski about the degree of planning involved, and he referred to it as being "unsophisticated", based on the fact that a lot of the distribution occurred by posting drugs through the mail and having payments made into a bank account. Whilst that does seem unusual, there plainly was a degree of planning and organisation in the operation conducted and the offences committed by the Offender.
However, I am not satisfied the degree of planning and organisation would exceed that which might be expected for an offence of supply a prohibited drug, not less than the commercial quantity. Inherent in such large supply matters is a degree of planning and organisation.
Counsel for the Offender was asked about his client's role in the drug enterprise. In relation to some of the matters on the Form 1 it is apparent that it was pretty much street level dealing. That is, the quantities of purity were such that it would suggest that it was street level dealing. In relation to the two primary charges relating to commercial supply, it was submitted by counsel for the Offender that he might be considered to be an intermediary. It is plain from the evidence that has been referred to as the agreed facts that that is the case. He was obtaining the drugs from another source and supplying it to another person who presumably would then pass those drugs onto street level dealers.
Mr Jankowski sought to emphasise the fact that his client's role in the enterprise was palpably weak due to the fact that at least on one occasion, that is the subject of the charge sequence 16, the Offender was provided with the wrong drug, being 'bromo' instead of MDMA. It is also not without significance that the purity of the drug, that is the MDMA in relation to sequence 2, was 11% and the purity of the 'bromo', that is sequence 16, is just 4%. Whilst I find the quantity of drugs plainly justify the charge and represent a substantial quantity, the purity of the drugs supplied by the Offender is of such a low range as to raise questions as to the control which he in fact had over the enterprise in which he was involved.
Questions also arose in the course of addresses as to whether or not the Offender ought to be found to have committed the offending for financial gain. It was conceded on behalf of the Offender that there was some financial gain involved in his offending.
The Court was referred by Mr Jankowski to a decision in the Court of Criminal Appeal of Fitzpatrick v R [2010] NSWCCA 26, where the Court, commencing at [22], began to review decisions relating to the occurrence of drug addiction at a very young age. The Court, in considering other cases, referred to a decision of SS v R; JC v R [2009] NSWCCA 114 in which the Court of Criminal Appeal stated, amongst other things, that in having regard to the general approach to how addiction ought to be treated in the sentencing exercise, the Court recognised that there would be cases where the general rule would not apply, for example, where the addiction was the result of youth.
In order to avoid any misconception, I find that this Offender's addiction commenced in his youth and continued into his adulthood, and it justifies a departure from the ordinary approach that the Court would adopt to drug addiction.
It was submitted on behalf of the Offender that the fact that the drugs were supplied to an undercover officer, and not disseminated within the community, was a factor to which the Court should have regard. I reject that submission. There are plenty of authorities on this point. In particular, I note the decision of the Court of Criminal Appeal in the matter of Giang v R [2017] NSWCCA 25, which made it clear that whilst the dissemination of drugs into the community constitutes a significant aggravating factor, the absence of an aggravating factor does not therefore constitute a mitigating factor. The fact that the drugs were not actually disseminated into the community as a result of a police operation is not a factor that reduces the Offender's moral culpability.
It was accepted on behalf of the Offender that his offending was aggravated by the fact that he was on bail at the time of the offending. Submissions were made concerning rehabilitation and the risk of re-offending, to which I have had regard, but will not further refer.
It was also submitted on behalf of the Offender that the Court ought to find special circumstances on the basis that it is his first time in custody, and that there is a need for rehabilitation. In fact, the 'first time in custody' suggestion came from the Court, and was not adopted by Mr Jankowski for the Offender given that the Offender is currently in custody serving a sentence for the steroid offences. Nevertheless, I am satisfied that he requires supervision in the community and an opportunity to undertake rehabilitation courses of the type referred to by Dr Furst. Noting the concession by the Crown of a finding of special circumstances, I make that finding.
It was submitted on behalf of the Offender that all of the offending fell below the mid-range. The Crown submitted that it fell within the mid-range but at the low end of the mid-range. Quite what is meant by that is unclear. For reasons which I will return to in a moment, I am satisfied that the offending falls as a question of objective gravity in the mid-range.
It was conceded on behalf of the Offender that what is often referred to as the s5 threshold has been crossed and the Crown agreed with that submission.
On the question of remorse, I indicated previously that I intended to find remorse in the statutory sense and the Crown did not wish to be heard against such a finding. The Crown also submitted, as I find, that the planning did not go beyond that which is considered or expected for offending of this type.
In turning my mind to any statutory aggravating factors under s21A of the Crimes (Sentencing Procedure) Act, I note that the Offender has a record of previous convictions, albeit as a youth, as well as the steroid offences for which he is currently serving a sentence. His previous convictions are such as not to aggravate the offending, but rather to result in depriving him of a finding of good character and any leniency which might flow from that.
Plainly, the offending was aggravated by the fact that the offences were committed whilst the Offender was on conditional liberty, that is, bail in relation to the other offences. As I have already observed, there was also discussion between the parties as to whether the offence was aggravated by the fact that the offending was part of a plan of organised criminal activity. I decline to make that finding, accepting that it is no greater or higher than that which you would expect for offending of this type.
Finally, in terms of statutory aggravating factors, it was conceded on behalf of the Offender that the offences were committed for, in part, financial gain. I consider that, given the sums of money involved and the quantity of drugs involved, financial gain was a motivating factor, such that it enlivens the aggravating feature pursuant to s21A(2).
Turning now to any mitigating factors. I declined to find prior good character, however, I do have greater hopes for the Offender than Dr Furst expressed in terms of his rehabilitation and re-offending. In relation to whether or not the Offender is likely to re-offend, my findings are guarded. As to his prospects for rehabilitation, I find that my findings are also guarded. Certainly, if he does what he has told the Court he will do, then he will not re-offend and he will become fully rehabilitated.
On the question of remorse, I find that the Offender has provided evidence that he has accepted responsibility for his actions, and I further find that the Offender has acknowledged the injury, loss or damage caused by his actions. Having made those findings, I find the statutory mitigating factors for remorse in accordance with the Act. He is also entitled to mitigation by reason of the guilty plea in accordance with the Act.
Prior to turning to the question of objective gravity for the three primary charges for sentence, I find that the Offender's moral culpability is reduced by reason of his drug addiction at an early age, and the pattern of turning to drugs in times of crisis, confusion and anxiety.
In respect of the first charge, that is the MDMA charge, the Offender supplied nearly double the commercial quantity. I consider his role in the offending as being that of an intermediary. I note the purity of the drug is just 11% and I find the objective gravity within the mid-range.
In respect of the second charge, being deal with the proceeds of crime being $179,000, I consider that to be a substantial amount of money, and as such I find the objective gravity of that offending to also fall within the mid-range.
With respect to the third charge, namely the commercial supply of a drug known as 2C-B or 'bromo', I note that the amount was 402 grams, which is about one and a half times the commercial quantity and not quite half the large commercial quantity for that drug. I note the purity was a level of 4%, which is very low, and that his role in the offending was that of an intermediary. Having regard to those factors I find the gravity of the offending again falls within the mid-range.
Before sentencing an Offender, the Court must have regard to the purposes for which a sentence may be imposed under the Crimes (Sentencing Procedure) Act. One is to ensure adequate punishment. I am satisfied the sentence to be imposed will achieve that purpose.
The next is purpose is to prevent crime by deterring the Offender and other persons from committing similar offences. There is no doubt that general deterrence is called for in relation to this offending. To operate an organisation in the manner which the Offender did on the Central Coast and beyond is, to say the least, anti-social behaviour, and that which calls for great and stern deterrence. In terms of specific deterrence to the Offender, I am mindful of the ameliorating factors referred to previously as those which have reduced his moral culpability, and I consider the need for specific deterrence to be tempered by those considerations.
The next purpose for sentencing is to protect the community from the Offender. Often, members of the community affected by offending of this type are anonymous to the offenders, but there is no doubt that drugs of this type can have a catastrophic effect within the community, and the sentence to be imposed upon the Offender must include an element of protection.
With that must be weighed the need to promote the rehabilitation of the Offender. I accept his evidence that he is motivated to rehabilitate himself and will avail himself of any courses once properly classified in prison and also upon release.
The next is to make the Offender accountable for his actions. I am satisfied the sentence achieves that sentence purpose. Finally, it is to denounce the conduct of the Offender and to recognise the harm done to the community. As I have already observed, the harm done to the community is often anonymously inflicted, but nevertheless greatly felt by those impacted by it.
Before sentencing an Offender to prison the Court must be satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. That was conceded on behalf of the Offender and contended for on behalf of the Crown. I find, pursuant to s5, that no sentence other than imprisonment is appropriate in these circumstances.
For his guilty plea the Offender will receive a discount of 25%. I find special circumstances for the reasons previously given. I depart from the standard non-parole period in relation to Counts 1 and 3, being sequences 2 and 16, on the basis that I have found, notwithstanding the finding of mid-range objective criminality, I have found reduced moral culpability. I have also noted the fact that the Offender has pleaded guilty. He has demonstrated remorse and has a need for rehabilitation, which if successful would protect the community. For those reasons, I find that it is appropriate for the Court to depart from the standard non-parole period of 10 years which applies to each of the two sequences 2 and 16.
Mr Shaw, please stand. You are convicted of three offences.
The first is supply a prohibited drug greater than the commercial quantity, that being 249.9 grams of MDMA. You are also convicted of the Count 2, being sequence 9, knowingly deal with the proceeds of crime, that being the $179,000 found in your motor vehicle. You are further convicted of Count 3, supply prohibited drug greater than the commercial quantity, that being 402.2 grams of 2C-B or bromo. Those offences I think are more properly described in the statutes as being not less than or greater than the commercial quantity. In any event, the convictions will appear in accordance with your contravention of s25(2) of the Drug Misuse and Trafficking Act in relation to Counts 1 and 3.
Now, prior to sentencing you, I am required to provide indicative sentences as I intend to impose an aggregate sentence.
In relation to the first count, that is sequence 2, with sequences 4, 6, 7, 8 and 12 attaching on the Form 1, I provide an indicative sentence of five years and four months, discounted on account of your guilty plea by 25% to become four years. In respect of that count I provide an indicative standard non-parole period of two years and eight months.
In relation to count 2, knowingly deal with the proceeds of crime, I provide an indicative sentence of four years, discounted to three years on account of your guilty plea.
In relation to count 3, supply of drug greater than the commercial quantity, I provide an indicative sentence of four years, discounted to three years on account of your guilty plea and an indicative non-parole period of two years.
For the three matters for which you have been convicted, I impose an aggregate sentence of six years to date from 26 November 2018 and to expire on 25 November 2024. I impose an aggregate non-parole period of four years to date from 26 November 2018 and to expire on 25 November 2022.
The ratio of non-parole to parole period reflects a favourable finding in relation to special circumstances. I have also had regard to the Commonwealth offences for which you were serving time in custody and I am satisfied that the principle of totality is met in that the overall sentence does not exceed that which reflects the criminality of the offending involved.
[2]
These reasons were revised without access to the Court's file
[3]
Amendments
25 February 2020 - Catchwords
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Decision last updated: 25 February 2020