David Taylor was born in 1952. He is for sentence today for an offence of supplying a commercial quantity of the prohibited drug methylamphetamine.
The offence charged, pursuant to s 25(2) Drug Misuse and Trafficking Act 1985 (NSW), carries a maximum penalty of 20 years imprisonment and, for an offence which taking into account only objective factors, falls in the middle of the range, there is a standard non-parole period of 10 years.
The standard non-parole period and the maximum penalty are guides to the exercise of my sentencing discretion. Content should be given to the guidance offered by the standard non-parole period. But that said, every offence and every offender is different. I do not simply start with the maximum or the standard non-parole period and make proportional deductions from them.
I start by considering what was done that establishes the crime for sentence. There are many aspects to this offence that are simply not known. Courts should not speculate. Courts sentence according to what is known. Matters that operate to increase the sentence should be proved beyond reasonable doubt; matters in mitigation, on balance of probabilities. Some matters are uncontroversial, others very much so.
[2]
Agreed Facts
Agreed Facts were provided to me. What is known is - that on the afternoon of 23 February 2023 police stopped a vehicle in southern Wollongong owned and being driven by David Taylor. Police searched the vehicle and in a backpack was found a tissue box which appeared heavier than normal. In it was found 492.9 grams of the prohibited drug methylamphetamine.
The Drug Misuse and Trafficking Act notes that the commercial quantity for that drug is 250 grams or over and a large commercial quantity is over 500 grams. The quantity of the drug set the penalty range available. Quantity is also one important matter that has to be considered when I come to fix the appropriate penalty.
One of the phones held by the offender was able to be digitally examined. There are communications on that phone with a person alleged to be his upline supplier. During them he complains about the quality of methylamphetamine supplied.
From those Agreed Facts, I can determine that this is not the first time that Taylor has obtained methylamphetamine from this supplier and that he has supplied it to others. He is not to be sentenced for earlier offences. Those facts simply reveal however, that this is not a one-off offence.
I note he told his psychologist and his parole officer he wanted to relieve financial pressures that is, make a financial gain.
[3]
Objective seriousness
Mr Ford, solicitor, who appears for Taylor, submitted that I could treat him as a "courier." In some cases where a person is simply delivering a packet from A to B with no real knowledge about its contents or its weight, that can be a significant mitigating factor. In other cases, someone moving drugs from point A to B who knows what the drugs are, how much drugs are being carried, and what the purpose of their being couriered is, it remains a very serious offence. Without couriers, drug networks would not be able to exist.
In this case, it is clear that the offender was more than a mere courier. He had collected the drugs, he intended to dispose of those drugs, and the only conclusion I could reach is that he intended to make a financial gain from the disposition of those drugs.
Most drug supply networks do not come to the notice of police because they publish organisational charts. I do not know how he intended to dispose of the drugs, whether as small weight individual supplies or larger weight supplies to others, or whether he had the drugs for delivery to others. What I do know is he was in possession of a quantity of drugs closer to the large commercial than the commercial supply amount and that those drugs were intended to be distributed to others on the south coast and would eventually have been consumed.
The harm caused to users by illicit drugs is one reason for the heavy maximum penalties and the standard non-parole period. The harm caused to the community by the crimes committed by users is one reason for the high maximum and the high standard non-parole period. The economic harm that the trade in illicit drugs causes the community is another reason why we have heavy penalties.
Those penalties are in place:
1. To reflect the potential harm that drug supply causes;
2. To attempt to deter individuals from committing offences because the consequences of getting caught are almost inevitably that they will end up on gaol for a period; and
3. To try and deter others from supplying drugs because of the likely consequences if caught.
Taking those matters into account, so serious is this matter that only a custodial sentence of some length could be imposed and given the nature of the offence and the standard non-parole period, inevitably, a significantly longer sentence that he received on the last occasion. So much is accepted by the offender.
[4]
Other matters
This is not Taylor's first time before a court for drug supply or a methylamphetamine offence. His criminal antecedents reveal that in 2018 he was sentenced to a term of imprisonment of 2 years and 6 months and a non-parole period of 18 months for supplying greater than the indictable quantity of the drugs, I am told a bit over 200 grams. He obviously did not learn the lessons that custodial sentences are meant to impose.
For the reasons I have outlined, sentences of a sufficient severity to deter him and others from taking that risk again, or others from taking that risk, are required.
[5]
Subjective case
There are, however, reasons to moderate the impact of the sentence on him. I have the benefit of a comprehensive Sentence Assessment Report and a report of Ms Durkin, a clinical and forensic psychologist, that reveals matters disclosed by Taylor. Her assessment of what was disclosed does not appear to be simply parroting what he expected the court would want to hear. He appears to have been fairly honest with her, as he was when he spoke to her prior to the last sentencing proceedings.
He disclosed that, although his criminal antecedents show only one unrelated matter, in the 1970s, before the drug matter in 2012, that he had for most of his adult life been engaged in some form of illicit activity. He did this to supplement social service payments. He has received unemployment benefits, a carer's pension and, more recently the age pension.
He revealed that at the relevant time he was in need of funds because his house was falling down around him because of termite damage. He said he took the "easy" way out. But as a result of taking that "easy" option his liberty was taken from him. I have no details about what condition the house is in, the termites may still be chomping away.
Mr Ford asked for a cautious approach to sentencing as there is a danger, given the prior period in custody, that Mr Taylor will becomes accustomed to being in gaol, having a roof over his head with three meals a day and thus, not engage in programs designed to help his restoration to the community.
Motivation is important to rehabilitation. It is accepted that for a number of reasons, including his poor health, that there should be a finding of special circumstances to maximise his time under supervision in the community and minimise his time in custody. But that said, the minimum time he must spend in custody must properly reflect the purposes of sentencing, particularly those I have already set out. It must be of sufficient seriousness to meet those purposes.
I will not go through in detail the comprehensive personal history set out in Ms Durkin's report. Born in 1952, it would appear that Taylor's early life was heavily influenced by his parents. They were supportive, but not always on the right side of the law. He left home at 14. He worked in rural industries until he was 21. Since then, he has never had regular work. Although he is working in prison industries and has good reports.
There is a history of alcohol and substance abuse. He has had two relationships and has four children. He has family support. Two of his children are here to support him today.
The report reveals has a number of significant and notable personal issues in his background including sexual abuse. They will be taken into account. He has been able to overcome some of the problems revealed. Such matters are taken into account because the negative impact of abuse on a person's social development is well recognised. It can, and here does, help me understand why his moral compass was set askew.
He has a number of health conditions. His alcohol abuse has caused repeated problems. He has diabetes, atrial fibrillation, hyperlipidemia, osteoarthritis, sleep apnoea. He sleeps with the help of a CPAP machine. He has had a heart attack is currently prescribed a number of medications.
Offenders cannot avoid punishment because of ill health. But ill-health is a relevant matter and can mitigate the punishment because it means, along with his age, that imprisonment would be, and is, a greater burden on him than those who do not have his underlying health conditions.
Courts do not underestimate the lived experience of gaols, particularly for those who are older with some debilitating physical conditions: R v Burrell [2000] NSWCCA 262 at [27]. That can, and does here, mean that special circumstances can be found and there should be some reduction in sentence, but care should be taken not to double-count such mitigating factors: R v Sellen (1991) 57 A Crim R 313. Ill health does not necessarily mean a prison sentence should not be imposed, or that the sentence should be reduced below that which is required by the circumstances of the case: R v L (Court of Criminal Appeal (NSW), 17 June 1996, unrep).
There are, through Ms Durkin, expressions of remorse or regret, but I cannot accept that Taylor is truly insightful or has any significant understanding of the consequences of his criminal actions.
Taylor's prospects for the future must be guarded, given his recent history. But he must be released to the community. He should be supervised for as long as possible in the community and given what support can be provided to him. He is not a young man, rebuilding his life will be significantly more difficult than someone who is younger, matters I take into account. Given this is his second drug supply offence he is at risk, if not given support, of continuing a pattern of offending and going back to gaol.
[6]
Submissions
Courts, by the severity of the sentence imposed, have, to do, what they can to prevent further crime. Courts must also reflect in the sentences, the matters brought forward by the defence and the prosecution.
Here I have raised and discussed with the parties matters that arose from their comprehensive written submissions that were in dispute or needed to be further ventilated. I have sought to address those issues in these remarks. But other matters were either uncontroversial or the parties agreed, so far as relevant principles are concerned.
[7]
Orders
Taking all those matters into account and giving him the benefit of the 25% reduction for the utilitarian value of his plea of guilty, there will be a sentence here of 3 years and 9 months' imprisonment. For transparency's sake my starting point was 5 years imprisonment. That involves a significant departure from the standard non-parole period, but one all the facts here, in my view, justify. The non-parole period will be one of 2 years and 3 months.
The sentence will commence on 23 February 2023, which means that the offender will be eligible for release to parole on 22 May 2025.
Although parole will require a decision of the State Parole Authority, given the material before me and his work in the gaol, I would expect that if he continues as present, he will be released on that date. They cannot hold him without parole just because he is a good worker. The parole period will be one of 1 year and 6 months.
To reiterate: The sentence 3 years 9 months, reflects the 25% reduction. Non-parole period, that is minimum time in custody, 2 years 3 months. From 23 February 2023 to 22 May 2025. The parole period of 1 year and 6 months reflects a finding of special circumstances.
The report of Ms Durkin should go with the warrant to Corrective Services because that should assist in him getting parole.
[8]
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Decision last updated: 29 August 2024