Solicitors:
Director of Public Prosecutions (Cth)
File Number(s): 2017/385198
[2]
Judgment
HIS HONOUR: Brendan Sheffield is before the Court for sentence in relation to one offence of supply a prohibited drug in breach of s 25(1) of the Drug Misuse and Trafficking Act. That is a matter that provides for a maximum penalty of 15 years' imprisonment and/or a fine of 2,000 penalty units. No standard non‑parole period has application. There are no matters to be taken into account either on a Form 1 or pursuant to s 166 of the Criminal Proceedings Act. The matter was committed for sentence from the Campbelltown Local Court on 18 April 2018, and it is common ground between the parties that a full utilitarian discount ought to apply.
The facts in the matter are set out in an agreed facts document that is tab 2 of the Crown bundle. I do not propose to read all of the facts onto the record. In short, at 2.35pm on 25 May 2017, a person who is co‑accused with this offender, Asim Cardaklija was noticed by police. Upon that person being questioned and searched, police were then able to access a Toyota RAV4 vehicle. Within that vehicle, there were various things linked to that person. There was an amount of cash in almost the sum of $5,500, and within a dark coloured laptop case that was on the front passenger seat, there was a small set of scales, a computer cord, a tablet computer, two bank cards. Relevantly, there was a Turkish Airlines tin on the front passenger seat, which contained a clear resealable bag and a small clear resealable bag, both containing a crystal like substance. There were also a number of empty, clear resealable bags and a gold spoon.
The co‑accused Mr Cardaklija is said to have made admissions in relation to having an ounce of ice in the vehicle. The rim of the lid of the Turkish Airline tin was swabbed, and from that swab, DNA was recovered that, in broad non‑scientific terms, is highly likely to have been that of that co‑accused. Three of his fingerprints were found on two of the clear bags within the tin. The contents of the bag were analysed and in total, between a large amount in a large clear bag and a smaller amount in a small clear bag, there was a total of 60.68 grams of methylamphetamine.
On 12 October 2017, Mr Cardaklija made a Supreme Court bail application. He relied, among other things, on an affidavit of this offender, in which this offender stated that he had left the Turkish Airlines tin in the co‑accused's car on 25 May 2017, shortly before it was located by the police. He claimed ownership of the tin and the drugs within it, and stated that all of that belonged to him for his own personal use. By inference, as a result of the affidavit being sworn by this offender, the police interviewed him on 20 December 2017, at which time, he had already been in custody for more than five months in relation to unrelated matters. In that record of interview, he made a number of admissions, including being in the co‑accused's car, seeing the police, making his way out of the car, locking it behind him so that he did not come to the attention of police, and although he was unable to describe markings or logos on that particular tin, given that he had heaps of different tins, he said that the tin had been under the passenger seat, and that he did not move it from there.
Inside the tin was a big amount of ice that he had bought a couple of days before for personal use. He had bought 78 grams, and used "a fair bit of it". He admitted to the police that he had been a heavy smoker of methamphetamine, commonly known as ice, smoking it for 13 or 14 years, and that, given his diagnosis of ADHD, it makes him feel normal. He told the police that the ice in the tin was in two different sized bags. He told the police that he wrote the affidavit to own up because he did not want his mate to get charged for something that did not belong to him. He had been told by a mutual female friend of the charges against his co‑accused, and he could not let somebody go down for something he had done because he had left it in the co‑accused's vehicle. He relied on a similar account when he gave a history in relation to the commission of the offence to Ms Dombrowski, who is the author of exhibit 1, which is a forensic psychological assessment of him.
In terms of the objective seriousness of the offence, the offence is aggravated by the fact that it was committed in breach of two types of conditioned liberty; one a s 9 bond and one a s 12 bond. He has since been dealt with, for other reasons, in relation to the breaches of those conditional liberties, but it does aggravate this offence in terms of trying to assess the objective seriousness. Apart from that factor, there is, in the circumstances of this offender's case, no indicia of street level supply. I do take into account, without giving it overweight, the weight of the drug being 12 times the indictable quantity, but very well short of the threshold at which the commercial quantity cuts in. The objective seriousness of the matter is somewhere between the low and middle range for those reasons.
Turning to matters that are subjective to the offender who is now 27 years of age, he has a record that is lengthy. Because of the various character of offences on it, it is not a record that serves to aggravate. It is a record that denies him leniency that would flow to somebody who had been before the Court less often, if not at all. I accept Ms Hughes' submission that the record is consistent with a disregard for Court imposed sanctions, and I also accept the submission made on the offender's behalf by Ms Jardim, that the record is reflective of somebody at risk of becoming institutionalised. His behaviour in the community is almost designed to take him back into custody where he apparently feels more secure most of the time than on the street. Some understanding about why that might be so is drawn from this psychological assessment. There will be some times that a Court will place less reliance on self‑serving statements in a psychological assessment when there's no sworn evidence to support them, consistent with the principles in R v Quatami [2001] NSWCCA 353; (2001) 127 A Crim R 369. and similar cases.
In this circumstance, though, the history given by Mr Sheffield does not have the character of being a self‑serving one. There is much in the history given that resonates with his criminal history and his custodial history. Although I have not had sworn evidence, I accept from Ms Jardim that her inquiries of his natural father, and particularly, his sister, confirm much of the material on which Ms Dombrowski based her opinions.
It is fair to say that the offender had a highly dysfunctional upbringing. Apart from difficulties between his natural mother and natural father that led to the demise of their relationship, the mother was drug affected throughout her pregnancy with the offender, and that had some effects on him at birth and in his early development, and may account for some of his psychological difficulties. Beyond that, regrettably, the natural mother chose to repartner with a violent man, who was capriciously violent to this offender, including waking him up in the middle of the night to punish him. Eventually, he was able to make good his escape from the family home when the authorities failed to intervene to protect he and his siblings, and he was lucky enough to be able to make a home for some time with his elder sister. His sister and natural father have both recovered from any subjective difficulties that they may have, and they are both in court and state their support for him.
The matter is highly unusual because notwithstanding that the offender will attract a full utilitarian discount, because of his early plea of guilty, he also is entitled to what is commonly been known as an R v Ellis (1986) 6 NSWLR 603 type discount; that is, because there was absolutely no forensic link between him and the drugs, the circumstances of him making an admission give rise to a question mark as to whether he is simply trying to have somebody that he feels some loyalty to escape criminal liability. However, he has confirmed his plea before me today.
Ms Jardim, who is a responsible member of the Bar, assures me that she has very carefully reviewed the integrity of the plea with Mr Sheffield, and he adheres to his plea. I am obliged to accept, given that it is the only material before me, the account that the offender both told the police in his interview, and to the reviewing forensic psychologist; That is, he felt morally obliged to own up to his criminal activity and try and avoid his friend being wrongly punished for him having left his drugs in the co‑offender's car. That attitude, apart from assisting to administer the course of justice and showing, at least, a huge acceptance of responsibility, is morally commendable and must have some weight in the sentencing exercise generally.
I agree with and accept the submission of Ms Hughes, that it cannot be said that Mr Sheffield has good prospects of rehabilitation. That is for a number of reasons (1) because he a record that reflects that he continues to breach bonds and other forms of conditional liberty; (2) despite having opened up and become more and more cooperative in the assessment with the forensic psychologist, he says that he has no interest in undertaking drug rehabilitation.
His family upbringing is consistent with the kind of dysfunction that was considered by the High Court in Bugmy v R (2013) 249 CLR 571; [2013] HCA 37, and an upbringing of that kind, in the circumstances of this case, with drug use from his early teens, periods of homelessness, and very ineffective parental guidance from his natural mother or his stepfather mean that his moral culpability is reduced. I accept while it does not excuse his conduct, that the motivation for this offence was principally to continue to fuel his own drug addiction, although he does not rely on that as a defence to this charge. I have considered what use I can make of the fact that 78 grams of methylamphetamine must have cost a fair bit of money, but those addicted to prohibited drugs seem to find a way to fund that sad cycle.
The offender is at risk of institutionalisation. The way the Court of Criminal Appeal considered that issue in the case of Jinnette v R [2012] NSWCCA 217, was that they found that a sentencing judge was not in error to find the risk of institutionalisation as being a proper justification for special circumstances. The way that Court, agreeing with Johnson J, preferred to look at the issue was that it was really for the protection of the community to try and avoid people being institutionalised, and that is the way that I approach the topic. Although it is no longer the case following Parente v R [2017] NSWCCA 284 that it is inevitable of those involved in drug trafficking to a substantial degree will serve a full time period of imprisonment, Ms Jardim responsibly, in my view, concedes the s 5 threshold, and concedes that it will be inevitable that I will impose a period of full time imprisonment on Mr Sheffield.
I find special circumstances in the case; one, to address the protection of the public as a result of the risk of Mr Sheffield being institutionalised which has, as an impact, the likelihood of commission of offences to find his way back into custody. I also find special circumstances because issues of totality arise, because whilst he has only been in custody, bail refused, in relation to this matter since 14 February 2018, he has been in custody serving what relatively short wholly accumulative sentences since 6 July 2017. Necessarily, what part of the sentence that I impose, which becomes the non‑parole period, will fuse with that period to make an effective non‑parole period in relation to the entire sentence, is something I need to consider before I finalise my remarks.
Having regard to the reduction in moral culpability, the finding that I have made about the objective seriousness of the offence, the not insignificant Ellis style discount, the sentence that would have been imposed but for the 25% utilitarian discount would have been a head sentence of two years. The sentence that I impose is a total sentence of 18 months with a non‑parole period of nine months. I have determined, intending to make the sentence partially concurrent and partially accumulative to the sentences that he was already serving, to commence the sentence from the date that he was first bail refused in relation to this matter, which is 14 February 2018. What that means is that the entire sentence expires on 13 August 2019, and the non‑parole period and the earliest date on which Mr Sheffield could be considered for release to parole would be 13 November 2018.
Mr Sheffield, effectively, you have got nine months on parole if the State Parole Authority release you to parole at the earliest possible date. Given that is not far away, you ought to get working with your sister and your father about what your post release plans are, because post release plans are one of the matters that the State Parole Authority takes into account. I know, at the moment, that you do not see the utility in giving up prohibited drugs, and because I have been involved in the criminal justice system for a long time, I can tell you, as you probably well know, that if you keep picking up ice, whether it makes you feel good, or for whatever reason, you will be back in custody. Ms Jardim says you have got family support for now, but you might not have it forever. Now might be the chance for you to see things differently.
I suggest to you that every time you smoke ice, and then commit an offence, and then go back into custody, what you effectively say to the world and yourself is, "my stepfather manages to continue to ruin my life. I am allowing that man, who woke me up and bashed me, and treated my mother and my siblings so badly when I was a kid that I had to leave home when I was so young that I should not have to look after myself". Every time you have a taste, or a smoke of ice, you say, "He wins again". You choose whether you want that man and your mum's bad choices to continue to run your life, because if so, I will be seeing you again, I have given you a chance today, because the way that you have behaved in relation to this matter is unusual, but on your account, highly responsible, and I have tried to reward you for that. I hope you can make some use of the chance. It is a shame to see a good life like yours going to waste.
[3]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 11 September 2019