R v Stewart

The facts

1. These offences were detected following an investigation into the offender's involvement in the supply of prohibited drugs in the Coffs Harbour and Grafton area. That investigation uncovered the use by the offender of no less than nine mobile phone services in connection with his drug activities. Some were in fictitious names and some were used only for a short time. More than 12,000 calls and SMS messages were monitored between 20 October 2021 and 23 December 2021. On that later date the offender was arrested for other matters, which were dealt with by the Local Court on 15 February. Those offences were obstructing a search and possessing a prohibited drug. He received a CCO and a s10A order respectively in respect of that offending. Additionally, from 21 May 2021 the offender was on parole, for a term that was to conclude on 21 November 2023. Accordingly, the offender was on various forms of conditional liberty in the period of this offending. In respect of all counts he was on parole; in respect of counts 1, 2 and 3 and one occasion of supply for count 4 he was also on a CCO. This aggravates the offending.
2. The offender would travel to Sydney to buy methamphetamine and cannabis and return to the Coffs Harbour and Grafton areas to supply those drugs. He was arrested in relation to these matters on 14 April 2022 and was remanded in custody.

Count 4

1. Count 4 which is the supply of 108.25 g of methylamphetamine is a charge made up of 21 different supplies with a total of the quantities involved being 108.25 g. That is an average of approximately 5 g per supply though it is a better measure of the activity to look at the actual particulars set out in the facts. What those facts show is a predominant method of operation where he would receive a text message where a request was made for drugs and a price was discussed and supply then took place as agreed. The language used adopted a certain code or codes though the facts suggest that the codes were either familiar to the police or were quickly able to be understood.
2. The agreed facts are that on five occasions 1 g was supplied and on one occasion 0.5 g was supplied. On three occasions 1.75 g was supplied and another three occasions 3.5 g supplied. 3.5 g was sold for $1400 and the lesser amounts roughly represented a price in proportion to that figure. There were also five occasions of supplying 7 g, one occasion of 10 g and three of 14 g or half an ounce in imperial measure. The highest price was for one of the supplies of 14 g at $4750. The total revenue was $36,040. The first supply occurred on 8 November 2021 and the last on 11 April 2022, though the second last occurred on 19 December 2021. The offender was in custody from 23 December 2021 to 15th February 2022. In the period between 8 November 2021 and 23 December 2021 a period of some six weeks there were 20 supplies. The 21st and last supply was of 1 g and that occurred on 11 April. The facts of that offence however at paragraph 59 of the agreed facts certainly convey the impression that the offender was still very much in the business of supplying methylamphetamine.
3. Apart from the trips to Sydney there is nothing in the facts that indicate the offender's source of these drugs. All that can be said is that he had a supplier "upstream" from whom he could obtain the drugs that he then on sold. Certainly the quantities up to and including 1.75 g suggest he is very much towards the end of the supply chain in respect of those matters and is a low level dealer to the end user. That accounts for nine of the occasions of supply. The supply of the larger amounts suggest that he is somewhat higher up the chain particularly when dealing in amounts of 14 g. Two of the 14g supplies (15 and 18) were to the same person Jay Griffiths. They occurred on 27 November and 8 December. The inference which I draw is that Jay Griffiths is a supplier of similar nature to the offender, though likely downstream, and he would then on supply the 14 g in smaller amounts to the end user. The concession of the offender that he was a mid level supplier is sensibly made.
4. By schedule 1 DMTA a commercial quantity of methylamphetamine is more than 250 g and an indictable quantity is 5 g. This rolled up charge is therefore less than half the amount required for a commercial quantity. That is a matter to take into account though the quantity of the drug is not the sole nor even the determinative factor to consider, depending on the facts of the case.
5. In determining the offender's role in the drug supply operation in question I note his ability to supply as much as half an ounce and that more than half of the occasions of the 21 supplies involved amounts of more than 1.75 g.
6. There is also the frequency with which he has carried out the supply namely the 21 occasions. Further, whilst the method of communication is basic, being by mobile phone with no suggestion of any encryption, the fact that there were 9 mobile phones shows a degree of sophistication.
7. In seeking to assess the objective seriousness of this offending it is clearly not at the bottom of the range and in my view it reaches the low end of the so-called broad mid range.
8. There are no Form 1 matters to consider in respect of this offence.

Count 1

1. Count 1 occurred by the offender obtaining 9.087 kg (20 pounds) of cannabis in Sydney and then arranging for that cannabis to be driven back by two other people to Grafton in a second vehicle to what the offender had travelled in. The agreed fact is of the offender trying to source 20 pounds of cannabis for a Rochelle Whitton, and in messages to her stated "2400 each 48k 20p", which would appear to mean the price was $2400 for each pound so that 20 pounds was $48,000. The offender then stated that it may be "only 46,500 my rate" and also "41K same stuff another guy". The amount of cannabis is less than the commercial quantity which is 25 kg.
2. In terms of objective seriousness, I take into account that it is towards the maximum amount of the drug within the indictable range as just noted, and consistent with that well in excess of the indictable amount which is 1 kg. Beyond that however there is little known of the offence. There was some degree of sophistication and organisation in arranging for somebody other than the offender to be driving the drug back and also showing that he sought to put some distance between himself and the delivery of that drug by car. It suggests that he is not at the very end of this particular hierarchy. Matters adverse to the offender must be established beyond reasonable doubt and in my view on those facts although somewhat scant the involvement of others beneath him and the agreed fact that he arranged for them to drive a second vehicle persuades me that this is into the mid range of objective seriousness.
3. The first of the two Form 1 matters in relation to this matter was the supply of 2.217 kg of cannabis. That offence was uncovered when the offender was arrested on 14 April and a search was conducted of his vehicle. That search discovered 1319 g of cannabis in three vacuum sealed bags in a country road bag in the boot of the car, a further 891 g of cannabis in two vacuum sealed bags in a taped up Sunbeam kettle box in the boot of the car and a further 7.5 g of cannabis in a resealable bag in a country road bag in the boot of the car. The street value of the cannabis was some $20,000. Also found in the car were indicia of drug dealing such as digital scales, a large number of plastic resealable bags, and a magnetic lock box. The second Form 1 matter arose from the search of an industrial shed used by the offender a further amount of cannabis was found of 445 g in a vacuum sealed bag in the boot of an Austin Healey car. It is agreed the offender had it in his possession for the purpose of supply. Its street value is $4000.
4. What these additional matters show is the significant involvement of the accused in drug supply. They are not trifling matters and will be taken into account in accordance with the Form 1 procedure.

Count 2

1. Also on 14 April 2022 police searched the offender's home at 2 Cowan Street South Grafton. It was there that $12,300 was found which is the subject of Count 2. Beyond that mere fact there is nothing else said as to this offence. It is an offence which at the time had no minimum or maximum amount. It is plainly not a negligible amount, nor is it a vast quantity. In my view this must be assessed as being low in objective seriousness for whilst one would have a great suspicion about the source of this money namely that it was from the sale of drugs, the character of the offence (that is reckless as opposed to knowingly) and the scant factual basis do not allow for that conclusion beyond reasonable doubt. In any event, even on that more adverse basis,the drug supply offending of the offender means that the possession of such amounts of money is most likely, or could be said to be part and parcel of his overall offending; see Redfern v R [2012] NSWCCA 178 at [17], so that the overall offending is not significantly increased.
2. In relation to this count there were two matters on a Form 1 being $9225 found upon the search of the car and a further $1000 found located in a different car at an industrial shed in South Grafton used by the offender. Notably the principal offence and both Form 1 matters are under section 193B(3) and are recklessly dealing with proceeds of crime or as the section reads, "dealing with proceeds of crime being reckless as to whether it is proceeds of crime". The more serious offence is knowingly doing so which carries a maximum penalty of 20 years in prison. It cannot be said therefore that the money found was from the sale by the offender himself of cannabis or other drugs or from other illegal activity for that must carry with it the conclusion of it being the more serious offence of knowing the money to be proceeds of crime.

Count 3

1. It was also in the search of the industrial shed leased by the offender that a plastic resealable bag containing 190.7 g of methylamphetamine was located inside a chip packet in the glove box of the same car in which was found the $1000 of cash. That has an approximate street value of $77,000. The offender intended it to be used in his ongoing supply of the drug.
2. That is a significant amount bearing in mind 250 g is a commercial quantity but as already noted that is not the sole nor even the determinative factor, depending on all the facts. The agreed facts state these drugs were intended to be used in the ongoing supply of the drug by the offender. I find beyond reasonable doubt that it would have been supplied in a manner in keeping with what can be seen for count 4.
3. There is nothing to distinguish counts 3 and 4 other than two matters; firstly this is a greater amount by almost a factor of some 80% or thereabouts. Secondly, these drugs did not reach the market. Those matters are counter balancing, and this matter too is in the low mid range of objective seriousness.
4. In respect of this count there is one Form 1 matter to take into account. This arises from the search of 2 Cowan Street where 13.48 g of methamphetamine was found in two resealable bags with 13.17 g in one bag and the balance in the other. It is agreed it was intended to be used by the offender in the ongoing supply of the drug. With respect that adds to the quantity perhaps and shows another amount of drug to be supplied and therefore adds to the sentence as allowed by the Form 1 procedure remembering of course that the focus is on the principal offence and the need for the sentence to be proportional to that principal offence.
5. The submission of the accused when the matter was before the court in March 2023 was that it was conceded that the offender should be seen as a mid level dealer. The offender accepts there was a degree of planning and sophistication in the drug supply. The three supply accounts are said to be just below the mid range, an assessment not far removed from that determined above.
6. As to the proceeds of crime matter it was said to be towards the lower end of the range with the submission being the offender was living a modest existence and it may well be that those funds were to be returned or on forwarded to the supplier up line. I accept that submission.
7. I note the aggravating factor of all the offending occurring on varying types of conditional liberty, and that the drug supply offending was engaged in for financial gain. I take those matters into account.

Subjective case

1. By reason of the timing of the offender's pleas he is entitled to a 25% discount in respect of each offence.
2. The offender has a poor criminal history, which certainly deprives him of leniency. This is referred to further below.
3. The offender relied on a psychological report of Dr Pussey dated 23 October 2022. The offender also placed significant weight on having successfully completed the permanent residential rehabilitation programme that was the basis for the s11 bail.
4. The main points of the report of Dr Pussey were as follows: 1. Early on in his custody there were significant lockdown periods due to Covid; 2. His last period in the community prior to his arrest (which I take to be a reference to the 23 December 2021 arrest) of a year was his longest in the community since the age of 18, and he was by then 29 (the period was actually about 7 months). 3. The offender frankly states that he committed the offences as he saw it as easy money, but also describes it as conduct that began as almost incidental, but grew into something much bigger. 4. He has never met his biological father and his mother is an alcoholic. He left home at 13 or 14 and "pretty much ended up on the street". 5. Whilst in a juvenile justice facility he was sexually abused. This is presently the subject of a claim. 6. He left school in year 8. He is a self taught mechanic with, on his account, the skills of a third or fourth year apprentice. He has a history of buying, fixing up, and selling cars. On his account he had more work than he could manage when he last did this in the community. 7. The offender has held off on children because he wants to "straighten out" first and does not want a child growing up in circumstances similar to his upbringing. 8. His drug use history is "pot" and pills at 14 and 15. Primarily he has used cannabis and sedatives and randomly ecstasy. He denied ice use. He denies an alcohol problem, saying he does not want to end up like his mother. 9. He recognised a benefit in his incarceration of providing him with structure. 10. He claims to suffer depression and possible PTSD. He has received no treatment in custody. His sleep is poor. He has experienced suicidal thoughts but has not acted on them. 11. He feels guilt and remorse and regrets everything.
5. Dr Pussey diagnosed substance use disorder at the time of the offending. His drug use is an avoidance strategy and has in turn led to poor decision making. This lessened his ability to consider the consequences of his behaviour. He considers he has a major depressive disorder and says further assessment should be done to determine the PTSD issue.
6. A risk of reoffending assessment was undertaken. The conclusion, perhaps unsurprisingly, was that the likelihood of reoffending was dependent on drug rehabilitation. The proposed treatment is to support insight into his developmental vulnerabilities and identify warning signs; to support his capacity to deal with impact of historical trauma and support his capacity to be abstinent. It was this report that supported the bail application for the purpose of attending a substance use treatment facility.
7. In addition to the report of Dr Pusey, when the matter was first before the court the offender also relied on a series of references, a letter of acceptance from Connect Global, and a letter from Slater and Gordon, solicitors. The letter of Slater and Gordon confirms that firm acts for the offender in relation to an institutional child abuse claim. The letter from Ashley Whitton speaks of the offender having assisted her out of an abusive relationship and also gives an example of him helping another woman in need of assistance (the coincidence of Ms Whitton's surname being the same as the intended recipient of the 20 pounds of cannabis was not the subject of any submission). Ms Diane Fuller, a retired woman talks of the concern the offender showed for her after her husband had died. A Mr Jack Thompson is involved with motor vehicles and is a mechanic and speaks of his involvement with the offender in that regard and speaks well of him. Mr Wayne Whitney says that in 2021 the offender received the employer of the year award with his solar company. The manager of that company gives a similarly supportive reference. A Helene O'Driscoll gives a further reference consistent with the others and I note they all reside in the South Grafton area.
8. The offender relied on all the above material at the hearing in March 2023. One concern then raised by the Crown amongst others and which was again raised at the recent hearing was the extent to which the Connect Global facility could be considered to be residential rehabilitation. That very issue was the subject of further submissions by the parties on the last occasion which led to a canvassing of a number of authorities which had dealt directly with this same facility and indeed the cases made reference to a Mr Pene who is involved in the conduct of the facility and who has provided material in this case. Reasons were given on the last occasion as to why it was appropriate for the offender to be bailed to the Connect Global facility referring to those authorities. In essence the Crown's argument is that there is little in the way of security to ensure the residents of the facility remain within it and that the degree of freedom enjoyed is such that little if any allowance of quasi-custody should be made. What that submission overlooks is that any non-compliance with the conditions of the facility (which is not conduct that is unlawful, beyond a breach of bail) will lead to a return to custody and that alone makes it a markedly different living arrangement than being at liberty. There is also access to communications including the Internet and one phone but those facilities are monitored, again being an imposition upon somebody's liberty. The question is not whether it constitutes quasi-custody but just to what extent. It is commonly said that the range at the general observation may be between say 40% and 75% or perhaps 50% to 75%. I accept that the restriction is not as onerous as might be found in some facilities but it is nevertheless a restriction amounting to quasi-custody which should be viewed as 50%.
9. It was submitted there should be a large degree of concurrence as the offending was occurring in effect concurrently and are all intertwined. As to the commencement date the offender was arrested on 14 April 2022 and was then serving a balance of parole which continues to date. Given that these offences led to the revocation of parole it was submitted that the commencement date be largely backdated.
10. The report of Dr Pusey set out above was relied on to found a submission to the effect that "Bugmy" principles apply. There was no real submission of the Crown contesting that submission and I accept it. The offender has not had the start to his life that one might expect from what Justice Simpson referred to in Millwood [2012] NSWCCA 2 as an "ordinary" upbringing, and the likelihood of his involvement in drugs and crime has been rendered more likely. In addition to that he has had to deal with the significant traumatic event of childhood sexual abuse.
11. The offender has a significant criminal history and has spent much of his adult life in custody. The earlier offences are largely property offences though there are also driving offences. By far the major offence committed was that in 2016 of firing a firearm at a dwelling house with disregard for safety which saw him receive a seven-year sentence with a 4 ½ year non-parole period. That sentence was imposed on 10 December 2018 and was backdated to commence on 22 November 2016 resulting in parole on 21 May 2021. It was only seven months later that he was arrested and refused bail for the offences that he was sentenced for on 15 February 2022. Of course during this time and leading up to 14 April 2022 the offender was committing the offences now being dealt with.
12. As borne out by the report of Dr Pusey there has been a long dependence on substances by the offender, largely it would seem prescription medication in the nature of sedatives not prescribed to him and I would note not including methylamphetamine. He is also diagnosed with a Major depressive disorder and the submission made is that this will make his time in custody more onerous.
13. As to the key question of the prospects of rehabilitation and the likelihood of reoffending the offender relies on the report of Dr Pusey which identified three main factors, namely substance use, antisocial attitudes and negative peer associations. As will be seen below the updated state of the evidence gives some cause for confidence that these risk factors have been and are being addressed. As to the substance abuse the offender has now had the lengthy period of residential rehabilitation and his treatment is ongoing. He also has advanced plans to further formalise his car repair activities that he was engaged in prior to incarceration and has the support of both family and community, as is borne out by the subjective material.
14. The offender makes an argument for special circumstances due to the mental health issues and the need for ongoing drug counselling. That is there is a need for counselling in respect of both those matters and rehabilitation would be assisted by a longer period of supervision. In addition to that his mental health would make the time in custody more onerous.
15. On this further hearing the Crown provided written submissions which were marked MFI 1 and there were written submissions from the offender marked MFI 3 together with a further six exhibits. Exhibit 2 was a report from Connect Global. That report is dated 9 October 2023 and from it I note the following: 1. The offender progressed well through the program. He showed himself to be keenly responsible and determined to be accountable. He is described as empathetic, hard-working and responsible. 2. He did not miss one session in the six-month period. He entered the program on 29 March 2023 and graduated on 31 August 2023 and left the facility the weekend before this hearing so 14 October. That is a period of 6 ½ months. I will allow a period of three months as quasi-custody to be added to the time that he has already spent in custody for the reasons given at [38], and also in the reasons given in March 2023. 3. All urine drug analysis tests returned negative 4. The focus of the program appears to be on forming responsible attitudes towards what are called lifestyle solutions including manhood, fatherhood, family, workplace and community. The report indicates that the offender made marked progress in each of these capacities. It also notes that he worked voluntarily on the property as directed. He offered support to others in the program. His engagement was excellent. He was well respected and regarded. 5. Notably the report recognises the importance of the behaviour of the offender to be monitored and this is suggested to be achieved by the offender remaining actively engaged in the extension program. The CEO of the program Mr Penn offers to remain in weekly contact with the offender to aid this. 6. As to the progress of the offender it is said to have been significant. The unchallenged evidence, albeit not on oath, is that the offender has turned a corner and "shows evidence of healing in his emotional physical, spiritual and mental health". He has expressed sincere remorse. 7. He was given the responsibility of senior resident which includes responsibility to oversee the conduct of others. He has shown leadership. He has assisted with a range of practical contributions such as renovations, grounds maintenance, painting and motor vehicle repair. He has completed a positive lifestyle program and a friendship centre course. 8. Significantly in my view Mr Pene a expresses the view that a return to custody may undo the positive work that has been achieved by the offender. No reasoning is given to support that assertion but in my view it can readily be inferred. That is that having been out of the custody setting for now some seven months and having made the advances just outlined for a person who at the age of 29 has spent more of his adult life in custody rather than out of it by some margin, and who may be at risk of institutionalisation and who suffers from depression, a return to custody would be seen by the offender unavoidably as a significant defeat. I accept the view expressed by Mr Pene in that regard.
16. Also in evidence was a supporting letter from a chaplain service confirming the successful completion by the offender of an eight session program positive lifestyle. The program facilitator, Mariki Venter, notes that it was the offender's idea to sign up for the program and his views of the offender match that of Mr Penn. The letter talks of his ability as a mechanic. The letter frankly acknowledges that some topics were not easy for the offender to grasp and that he initially struggled to express remorse with the focus being on his own survival.
17. There was also a further testimonial from Ms Whitton. She is currently in employment as an optometrist assistant in Grafton and is also an NDIS support worker. She supports the offender and wants to assist him into the future.
18. Whilst at Connect Gobal a business plan was prepared by the offender relating to his intended motor vehicle repair business. The plan is fairly basic, but shows that the offender is giving considered thought to his future. In addition to that there was evidence given at the hearing by the stepfather of the offender, Bernard O'Maley. He is a train driver. He has a long-term involvement with the offender and confirmed the involvement in car repair of the offender prior to incarceration. He spoke of the plans they had to either build a shed in his backyard for the purpose of the business or to lease a shed off site. He has confidence in the offender and offered to supervise him. In cross examination he noted that the offender already had his ABN, business cards, software for invoices and that plans were well advanced. He acknowledged that he would not be available all the time but said that did not mean he could not help.
19. In the submissions made following the successful completion of the rehabilitation program the Crown fairly conceded that the reference to a five year term at the earlier hearing was not something that the court was bound to. The Crown noted a lack of medical evidence to support the positive views of the likelihood of rehabilitation. Reference was made to the complex issues outlined by Dr Pusey. The Crown's argument was that if a return to custody could undo the work done to date then how effective has that work been for the offender to be so vulnerable.
20. Whilst at the earlier hearing the Crown's position was that an ICO would be prohibited by section 68, that position was not maintained. It was nevertheless argued that in all the circumstances of this case it would not be appropriate to proceed by way of an ICO. That submission would seem to be based on the Crown's assessment as to the likelihood of reoffending, and with a positive view of those prospects being dependent upon the offender remaining abstinent as well as receiving effective treatment for his depression.
21. As to the backdating question the Crown suggested that the further offending in the parole period was almost cynical, meaning there should be a lesser rather than greater period of backdating.
22. The submission of the offender focused on section 66 CSPA. One aspect of that submission was that it is open to the court to impose an ICO allowing for presentence custody and with the term of the ICO commencing on the day of the order which is what is required by the CSPA. That is the argument was that an ICO may be imposed for a period of no more than three years if that period is arrived at by reducing the sentence by whatever the period of presentence custody may be with the balance of that period then commencing on the date of the order for the ICO. That an ICO period can be arrived in that fashion has been recognised; see Mandranis [2021] NSWCCA 97. In that case however the starting period before the reduction for the time served was always a period such that section 68 did not prohibit the imposition of the ICO. The offender relies on R v Doan [2000] NSWCCA 317 for the proposition that it is the sentence actually imposed that needs to conform with jurisdictional limits such as section 68 and not the starting point. The Crown did not contest otherwise and in my view the approach being contended for by the offender and not contested by the Crown is the correct approach. There was a full contest in this regard in a matter of R v Alferlink [2021] NSWDC 473 and I adopt the reasons set out there supporting the views of the parties here.
23. In terms of the section 66(2) assessment in short the offender notes the progress well made by the offender and says that the likelihood of his reoffending is better addressed by maintaining his progress towards rehabilitation rather than being returned to custody which, in the view of Mr Pene, is likely to "undo" that progress.

Determination

1. The findings as to objective seriousness have been set out above. They were in respect of count 1 that the offending was into the mid range of objective seriousness, that count 2 was in the low range and that both counts 3 and 4 were in the low mid range of objective seriousness.
2. I have taken into account the aggravating feature of this offending occurring whilst the offender was on two forms of conditional liberty.
3. I note also that the offending was carried out for financial gain and that the offender frankly concedes as much. Whilst it might be said that the offence of drugs supply can be expected to be for that purpose it needs to be noted that in this case the offender was not a person who offended simply to finance his own drug needs which is a matter adverse to him. At the same time it is also plain he was not living a lavish lifestyle.
4. To determine whether or not there should be an ICO is a three-step process. The first step is to determine whether or not there is any other sentence more appropriate than a term of imprisonment. It is conceded, and the facts make plain, that the nature of this offending means that the so-called section 5 threshold is crossed.
5. The second step is to determine the length of the sentence. That must be done before any consideration is given to whether or not an ICO is imposed.
6. In assessing the appropriate length of sentence I take into account favourably to the offender the manner in which he has applied himself to the residential rehabilitation over the past seven months. True it is that a person facing a term of full-time imprisonment has much motivation to conduct themselves in the way that he has yet it still remains for that person to do so and he has. Furthermore, he has done it coming from a disadvantaged background and one where he had spent most of the previous five years in custody.
7. I accept the submission that the background of the offender is one of significant social disadvantage. He had very minimal if not negligible parental guidance. He does not know his father and his mother is an alcoholic who did not provide him with the nurturing and guidance one would hope to receive. His education was minimal, leaving school in year 8. He was exposed to substance abuse from an early age. In addition to that he is diagnosed with a Major depressive disorder and possibly suffers from post-traumatic stress disorder. He is a victim of childhood sexual abuse. In these circumstances the offender's moral culpability is less than it would otherwise be.
8. The offender's criminal history and the fact that he committed this offence only seven months after having served 4 ½ years in prison, does not augur well in any assessment of the likelihood of reoffending and in assessing the offenders prospects including as to rehabilitation. Yet the evidence of his time in full time rehabilitation at Connect Global suggests he does have a capacity to be pro social and to end his abuse of substances. In addition to that the underlined passages above in respect of parts of Dr Pusey's report suggest a degree of insight consistent with that more positive view. It is significant and favourable to the offender that those insights were evident before the residential rehabilitation was undertaken.
9. The purposes of sentencing are as follows: 1. To ensure the offender is adequately punished 2. To prevent crime by deterring the offender and others from committing similar offences 3. To protect the community from the offender 4. To promote the rehabilitation of the offender 5. To make the offender accountable for his actions 6. To denounce the conduct of the offender 7. To recognise the harm done to the victim of the crime and the community.
10. In this case there is the need to protect the community from the great harm created by drug use and to denounce this behaviour. The circumstances of the offender mean that there should be less emphasis on both specific and general deterrence but by no means is the need to meet that purpose obviated. To again note the words used by Simpson J in Millwood the impact of a disadvantaged background (depending on the particular facts) is "limited". There should also be the promotion of the rehabilitation of the offender.
11. Whilst the offender may no longer be termed a youth he is still only 30 years of age with most of his life ahead of him. There is obviously a great benefit to the community if the steps already taken can be progressed to see him become a contributing member of the community in a prosocial way. He has already begun down a path to that goal and has in place community support in the form of members of the South Grafton community who know of him and speak well of him, personal support in the form of his partner Ms Whitton, family support in the form of his stepfather Mr O'Maley and professional support in the form of Connect Global. He also has an objective to develop his car repair business which is no pie in the sky scheme given that it was already in operation prior to his incarceration and his ability in that regard is supported by the evidence. In the circumstances and in light of the facts of this particular case I consider his prospects to be good, though with the qualifier as in any case concerning addiction, that the assessment is necessarily dependent on continued abstinence.
12. In setting the sentence for the offender I propose proceeding by way of an aggregate sentence and will indicate the indicative sentences for each offence taking into account the relevant Form 1 matters and then applying the 25% discount before determining the aggregate sentence. For convenience the conclusions as to objective seriousness and the indicative sentences are set out at a table at the conclusion of these reasons. For present purposes however I can indicate that the indicative sentences in respect of the matters identified above as counts 1, 2, 3 and 4 are as follows:

• Count 1: 30 months prior to the discount and 22 ½ months following the discount:
• Count 2: 18 months before the discount and 13 ½ months after the discount:
• Count 3: 3 years before the discount and 27 months after the discount:
• Count 4: 30 months before the discount and 22 ½ months after the discount.

1. In determining the aggregate sentence, the principle of totality plainly has a role to play. The offending occurred in the period 8 November 2021 to 14 April 2022, a period of five months but in respect of which for the period 23 December 2021 to 15 February 2022 the offender was in custody, so in effect a period of just over three months. The three supply offences were all conduct carried out in the same period and can be seen to be the one course of conduct. Counts 2 and 3, and the 3 Form 1 matters relating to those offences, all arise from searches carried out on 14 April 2022, though plainly reflect criminal behaviour leading up to that date. The proceeds of crime charges also are clearly intertwined with these activities albeit the charge is "reckless" (as opposed to "knowingly") and not specifically tied to the drugs supply.
2. In the case of Hall v The Queen [2021] NSWCCA 220 Hulme J reviewed the principles of totality. He referred to R v Holder [1983] 3 NSWLR 245 which makes it plan that what is required for a sentencing judge is to evaluate the overall criminality involved in all of the offences and to adjust the aggregate sentence, "To achieve an appropriate relativity between the totality of the criminality and the totality of the sentences." Put perhaps more simply his Honour referred to Mill v The Queen [1988] HCA 70 where it was said the Court, "Must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences." Hulme J also referred to Cahyadi [2007] NSWCCA 1. At [27] of Cahyadi it was said in considering whether the sentence for one can comprehend the criminality of another: "This is so regardless of whether the offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course, it is more likely that where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will affect the criminality of both."
3. On the facts of this case whilst there are obviously separate episodes of criminality, the overall offending can sensibly be viewed in a broad sense as being a single episode of criminality with common factors namely the ongoing supply of drugs over a period of months.
4. There should therefore be in my view a significant period of concurrency. The aggregate sentence will be four years imprisonment.
5. Based on the methodology of Mandranis, depending on how much of the sentence has presently been served will determine whether section 68 prohibits the consideration of an ICO.
6. It was submitted for the offender that he had spent 11 months in custody before giving consideration to quasi-custody. He was taken into custody on 14 April 2022 and was granted bail on 23 March 2023. A condition of bail was that he attend the rehabilitation facility Connect Global, and the offender entered that program on 29 March 2023. Whether he was bailed for those six days is not clear. Taking the earlier date he has therefore been in custody prior to the date of the order for bail for approximately 11 months. As indicated above, the period of quasi-custody is to be assessed at three months. The question then is how far to backdate the time spent in custody given that his parole for the earlier offence had been revoked. The other offending that he was sentenced for in February 2022 was dealt with in a non-custodial way. Therefore, but for this offending he would have been in the community on parole. That said this offending is in flagrant disregard to his parole conditions and it is conceded that there must be some recognition of the period spent in custody being attributable to that offending for which he was on parole. The start date of the sentence will be backdated nine months with the result that, taking the quasi custody into account, the period in custody is 12 months.

Orders

1. The offender is convicted of counts 1, 2, 3 and 4.
2. The indicative sentences for each of the offences taking into account the form one matters and having applied the 25% discount have been set out above.
3. The offender is sentenced to a term of imprisonment, taking into account time already served, of three years to commence 27 October 2023 and expiring on 26 October 2026.
4. The term of imprisonment is to be served by way of the imposition of an intensive correction order for a term of three years to commence 27 October 2023 and expiring 26 October 2026 and being subject to the following conditions: 1. The offender must not commit any offence; 2. The offender must submit to supervision by a community corrections officer. For that purpose I direct the offender to attend at the Grafton office of community corrections by no later than 3 November 2023; 3. That the offender remain abstinent from all illegal drugs and all prescription drugs other than drugs prescribed to him; 4. That the offender participate in the outpatient extension program provided by Connect Global for a period of 12 months subject to Connect Global stating in writing that engagement should end but in any event for no less than six months and that the offender meet the conditions of that extension program as set out on page 2 of the document headed extension program and forming part of exhibit 2.

TABLE Count Amount Max Obj ser F1s Ind Less 25% 1; 25(1) 9.087kg cannabis 10y Mid i. Supply 2.217g cannabis 30m 22 ½ m ii. deal reckless with proceeds of crime $9,225 2; 193B $12,300 10y low $9225 and $1000 at 2 locations 18m 13 ½ m 3; 25(1) 190.7g methylam 15y Low mid 13.48g meth found on search; intended for supply 3y 27m 4; 25(1) 108.25g meth 15y Low mid none 30m 22 ½ m

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