Mr Tony Uati-Palemia is before the Court for sentence today on a single charge of supply a prohibited drug under section 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty for that offence is 20 years' imprisonment and it also has a standard non-parole period specified, which is of ten years. The maximum penalty and the standard non-parole period are of course guideposts in the sentencing exercise to which I have had regard. He has pleaded guilty at the earliest opportunity and therefore is entitled to a 25% discount on account of the utilitarian value of that plea.
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FACTS
The facts of the offence are agreed and are as follows. At about 10.45pm on Saturday, 7 March 2020, police were conducting surveillance in a street in St Clair when they saw a vehicle stop out the front of a particular house in Cassia Place, St Clair. About 25 minutes later the police saw a male walk from the garage of those premises holding a bag. That person was the offender. He then approached the vehicle that was in front of the house and got into the rear passenger seat on the driver's side and the vehicle then drove off. Police a short time later stopped the vehicle on Mamre Road, St Clair, and found three people in the car, including this offender, who was in the back seat, and two other males who were also in the car.
They searched the car and found at the feet of where the offender was sitting a Coles supermarket bag in which they found a plastic container with a large amount of a crystalline substance. That substance was subsequently analysed and found to be methylamphetamine, with a total weight of 446.52 grams and with a purity of 79.5%. In other words, a purity of methamphetamine which puts it into the category of what is these days referred to as ice, although I note that that is not a legal description.
Police also found another bag in the boot of the vehicle which contained a large number of resealable plastic bags and two sets of electronic scales. A number of mobile telephones were also found in the vehicle. The offender was arrested and taken to St Marys Police Station where, after speaking to a lawyer, he declined to be interviewed. The agreed facts also indicate that his fingerprint was found on the box that contained the drugs. Those are the facts on which he is to be sentenced.
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OBJECTIVE SERIOUSNESS
I am required to make some assessment of the objective seriousness of the offence. Firstly, that is marked by the very significant maximum penalty and the standard non-parole period that applies for this type of offence. In addition, drug offences have been regarded for some decades in this state - and this country, for that matter - as requiring significant punishment. That is in part because of their prevalence, partly because of the harm that they do, and partly because of the significant maximum penalties that apply to these types of offence. It is for these reasons that the Courts have emphasised the importance of deterrence; that is, the need to deter or dissuade people generally and IN particular offenders from being involved in these sorts of offences. that principle has been emphasised many, many times over the years.
As part of the assessment of objective seriousness, I am required to have regard to all of the circumstances, of course, and one of those circumstances in a drug case is the quantity of drug and the purity of that drug. These are important matters, although they are not the sole focus of determining objective seriousness. In this particular case the quantity is significant. Being 446 grams approximately means that it is getting close to double the commercial quantity of 250 grams and is only about 53 grams or so short of the large commercial quantity of half a kilogram.
The purity in this case is also quite significant, namely, as I've said, 79.5%, which is quite a high degree of purity. However, as I said, quantity and purity are not the only factors, and indeed, not even the most important factors. Rather, I need to focus on what the offender's role was, that is, what did he do. In this regard, I note that the Crown accepts that, as noted in paragraph 9 of the Crown's submissions, "The offender's role was limited to bringing the drugs to the motor vehicle." It was also argued by the Crown that the offence is aggravated because it was committed and motivated by financial reward, and I accept that. However, in drug supply offences, financial gain or financial reward will almost invariably be an inherent characteristic of the offence.
In those circumstances, I should only treat it as an aggravating feature where the financial gain is significantly more than might ordinarily be expected with such things - see the decision of the Court of Criminal Appeal in Wat v R [2017] NSWCCA 62 at 44. I do not make such a finding in this case. In other words, while I accept that the offence was motivated by financial reward, I do not find that the financial gain in this case was such that it was outside what might ordinarily be expected from such an offence.
The Crown further submitted that the offence lies below the mid-range of objective seriousness. In making that submission, of course, the Crown is addressing a principle that the Courts need to consider in all cases of criminal offences, namely where on a theoretical scale of seriousness the particular offence before the Court lies. in submitting, as the Crown did, that it falls below the mid-range, the Crown is suggesting that it falls somewhere below the middle of the range of theoretical seriousness for such an offence.
I accept that submission generally, although the words, "below the mid-range," still involve a large range of criminality. So it is important, I think, for me to try to determine how far below that mid-range this offence sits. In this regard the statement of facts indicates that the offender's involvement with the drugs was not only a limited role, but involved a very short period of time in which he was in possession of the drugs. That was no doubt, however, by reason of the police intercepting him on that evening.
While the car, which contained two other men, also contained some scales and plastic bags - which raises the strong suspicion that the drugs were to be packaged up for the purposes of supply - there is nothing in the statement of facts and no submission by the Crown that the offender was to be involved in anything other than bringing the drugs to the car. I therefore disregard any suggestion that he might have been involved beyond that point. I treat the offender's role, therefore, as being that of a courier.
Notwithstanding that, I am fully conscious of the fact that the Courts have said for many years - decades, in fact - that the mere fact that somebody is acting as a courier does not necessarily mean that their role is not an important one. After all, drug supply businesses could not operate without the cooperation and assistance of people who are prepared to act as couriers, and it is for that reason that the courts have emphasised that, even where a person is regarded as a courier, penalties of significant proportions are nonetheless required.
In this case the fact that the drugs were intercepted by police reduces to a slight degree the objective seriousness of the offence, given that they were not distributed into the community. There are no aggravating features that the Crown seeks to rely upon in this case. Having regard to all of those matters and all of the facts, in my opinion the objective seriousness of the offence lies towards the lower range of objective seriousness, although not at the bottom of that range.
Having said that, it is, as the Crown submitted, important that I have regard to a number of observations by the Court of Criminal Appeal in its approach to offences involving significant drug trafficking. In its decision in Parente v R [2017] NSWCCA 284, the Court of Criminal Appeal effectively altered the long held principle referred to in the Clarke decision, an unreported decision of that same Court of 15 March 1990, which had been, under the Clarke decision, a principle that drug trafficking to any substantial degree would normally lead to a custodial sentence and that it would only be in exceptional circumstances that a non-custodial sentence would be imposed.
Nonetheless, as the Crown submitted in its written submissions in this matter, although the Court held in Parente that Clarke should not be followed in that regard, the Court emphasised the importance of general deterrence of drug supply and that:
"An inherent characteristic of most activity relating to illicit drug supply is that participants take steps to ensure it is carried out covertly with the result that significant resources have had to be devoted by law enforcement authorities to detection and successful prosecution. A consistent message of deterrence from sentencing judges is necessary."
The Court also said that, "Having regard to the social impact of drug use, particularly as an underlying cause of other criminal offending, the protection of the community will usually be of significance as well." Those are principles with which I am fully conscious and to which I have referred already. It has not been suggested in this case that it would be appropriate for a non-custodial sentence to be imposed.
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SUBJECTIVE MATTERS
I turn then to consider the subjective or personal circumstances of the offender. He is currently 27 years of age and his criminal history is fairly limited. Leaving aside some Children's Court matters, he has as an adult been before the courts on drink driving and other road traffic offences, including driving whilst cancelled and whilst disqualified. On 6 September 2019 he was placed on a community correction order for six months for an offence of drive whilst disqualified, and that Community Correction Order expired on 5 March 2020. Fortunately for the offender's sake, two days before the offence for which he is now before the Court.
Had that order still been in place, then that would have been a significant aggravating feature on sentence. The fact that this serious offence was committed two days after that order expired, however, is not a matter that I have ignored, because it is of relevance to at least his future risk of re-offending, his prospects of rehabilitation, as well as factors relevant to personal and general deterrence. I note, however, that he has no prior drug offences on his record.
I have been informed of his personal circumstances by means of a Sentencing Assessment Report and a psychological report as well as some character references and the offender's evidence on oath. The psychological report, which the offender affirmed in his evidence with regard to the information he had provided to the psychologist, notes that he was born in New Zealand and came to Australia in 1996, when he was about three years old. He, however, was as a young child - and in fact up until his teenage years, it seems - living in a house where, regrettably, his father had some very significant problems with alcohol and also with aggression and violence when he was drinking.
The offender described his father's anger as mostly being vented on their mother, but also at times on himself and his brother, and he described a background of continual domestic violence up until the stage when he was about 16 years of age, and he moved out of home at about age17. I will come back to that history in a few moments.
In addition, he, relevantly, had an episode when he was about 14 years of age where he was attacked while walking along the street and stabbed multiple times in the back with a broken beer bottle. That has led to his having increased levels of anxiety about his personal safety and about the prospect of potentially being attacked by others, especially from the rear, in the future. He also reported a history of some bullying when he was in high school. I note that his history includes having been expelled from two high schools due to fighting.
He has a reasonably good work history, although it has been interrupted to some degree by some periods in Juvenile detention when he was younger, and his history has included operating his own business at one stage, although that ended after he broke up with the mother of his children. He also has a background as a quite talented football player and at one stage hoped to make that into the form of a career, but that for various reasons did not happen, probably, I conclude, due to the fact that he commenced using illicit substances from about age 16, including cannabis and ecstasy, and later progressed to using the drug ice.
The psychologist expresses the view that the offender has been the subject of anxiety and depression symptoms since childhood. The psychologist expresses the view that he was suffering a mental health condition prior to and during the period when he committed this offence and that that condition likely impacted on his decision-making processes at the time of being involved in this offence. I take this into account as part of the general background, although it was not suggested to me that any mental condition that he was suffering, or may now be suffering, was such as to engage the principles discussed by the Court of Criminal Appeal in CDPP v De La Rosa [2010] NSWCCA 194.
Nonetheless, I take all of this background into account, as well as the offender's childhood background of domestic violence, being bullied at school and attacked with the broken bottle when he was a teenager. In my opinion these factors do not rise to a level where the offender's moral culpability is reduced. In that regard I refer to the 2013 decision of the High Court of Australia in Bugmy v R (2013) 302 ALR 192. However, they do provide some support for the view that the offender was, as a result of that background, more susceptible to becoming involved in drug-taking and becoming, as he put it, a junkie.
While this is not a classic Bugmy v R type case, the background of domestic violence is such that it has shades of Bugmy considerations to it. I take these into account, therefore, in a general way as part of the overall factual matrix that I must consider in determining the appropriate sentence.
The offender gave evidence before me today in which he confirmed the history given by him to the psychologist and in which he said that he has been off drugs since being in custody, and indeed, his presentation today tends to support that claim. He says he has had sweeper roles at Silverwater and Parklea and he is now a head sweeper at the Correctional Centre where he is currently held. I am aware of the fact that those roles are usually only given out to prisoners who are seen as complying with routine and who are seen as cooperative inmates, and that the role involves some degree of trust inside the corrective system.
He has also confirmed that since being in custody, in fact only quite recently, he has commenced doing the EQUIPS remand course, and that of course is also to his credit, that he has apparently avoided any potential exposure to drugs whilst in custody, and that he is taking some steps to rehabilitate himself. He also said that he is prepared to do anything that he can once he is released to avoid alcohol, drugs and gambling, and that in particular he is distressed by having been in custody now since March this year and not being able to see or care for his children, for which he said, to quote him, that he "feels like a shit bag".
He further went on to say that he feels pretty bad about the offence and he accepts that he was going to move a big quantity, as he put it, and that he accepts, having reflected upon it, that if that drug had got through, a lot of people would have been affected by it, just like he had been when he was "a mad junkie" as he put it. He confirmed in his evidence that he committed the offence because he had racked up a significant debt due to drugs and gambling problems and that it was in that context that he had agreed to commit this offence.
This is Mr Uati-Palemia's first period in custody and I accept that it has been a significant wake up call for him. In particular, his custody has involved a total separation from his children. There is also the fact that his mother has recently been diagnosed with a malignant lymphoma and that the offender wishes to be reunited with his mother as soon as possible and intends to live with her when he is released. In my opinion, these family considerations are the biggest factor supporting a finding that he will in the future stay away from drugs and gambling. In other words, that he now realises the real consequences of getting involved in offences like this, and that they include not only the adverse effects on himself, but also on his children.
Children should be able to look up to their parents as good role models. Children should not have to endure the confusion and humiliation of having to see a parent in a prison setting. It seems to me likely that this offender has now learnt this lesson and that in the future he is far more likely to stay away from drugs, gambling and former drug associates. I note that the Crown accepted that he has shown insight and a recognition of the impact of his offending on the community as well as on himself and his family.
I have also been supplied with some documents which are in the nature of character references, one of which describes the offender as a very talented sportsman, especially in regards to his training for professional fighting, and that although that had been his past behaviour, the referee, Mr Ashby, comments that he did see a significant slip in the offender's behaviour after he became more dependent upon prohibited drugs. He nonetheless says that he believes that the offender is remorseful - and, as he puts it, very remorseful - for his offence.
I have a similar positive character reference from an associate of the offender who has known him for about six and a half years, who describes him positively in relation to volunteer work that he has done, including mentoring and training children in the martial arts area. I have also, amongst the character references, a letter from his former partner, who is the mother of his children, who says that in her belief this offence is out of character and that in her experience the offender has been an extremely hard working family man who is otherwise a good father, who would usually have the children for contact every weekend, and who was an important contributor to her care of the children, both physically and financially. She also expresses the view that he has learnt a lesson and is remorseful for his offending.
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REMORSE AND PROSPECTS
I have taken into account all of these pieces of evidence, as well as the evidence given by the offender today, and in my view, his prospects of rehabilitation are reasonably favourable. I also accept that he has expressed genuine remorse.
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COVID
In determining the appropriate sentence I also take into account, as I was invited to do, that from the time of his incarceration on 7 March 2020 he has been subject to the very significant limitations that have been imposed from about that time as a result of the current COVID-19 pandemic, and that, as I am fully aware, until only about two weeks ago, contact visits between family and persons in custody have been restricted to audio visual or telephone contact, and even then, as I am aware, those occasions are often difficult to come by, or non-existent due to the lack of resources. I take into account, therefore, that his period in custody since March 2020 has involved that additional element of hardship. As to whether that will continue to be the case into the future is not something about which I can accurately and reliably make any prediction.
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DETERMINATION
I am satisfied that the section 5 threshold has been crossed. In other words, that - and as was conceded - that no penalty other than full-time imprisonment is justified and appropriate in this case. In coming to that view I have had regard to the purposes of sentencing, of course, set out in section 3A of the Crimes (Sentencing Procedure) Act 1999, which of course are the importance of ensuring that the offender is adequately punished, of preventing crime by deterring both the offender and others, of protecting the community, of making the offender accountable, of denouncing his conduct, of recognising the harm done in this case to the community, but also, of course, of promoting the rehabilitation of the offender.
In determining the sentence I have had regard to a number of decisions of the Court of Criminal Appeal and also statistics held by the Judicial Commission for offences of this kind. Although I am more than conscious of the need for caution in approaching statistics, given that they are a blunt instrument, as has been said, they do not disclose the individual circumstances of particular cases. I have nonetheless had regard to those statistics for cases involving this type of offence dealt with after 24 September 2018. Those statistics refer to 34 cases involving pleas of guilty, of which about 50% received a head sentence of four years' imprisonment or less. Of course, I have not overlooked that the other 50% received a head sentence of between four and a half years to nine years. I have not used the statistics for the purposes of determining the appropriate sentence, but I have had regard to them as one of the matters assisting me in informing my conclusion as to whether the sentence I intended to impose is a just and appropriate one.
As I have said, I make allowance for the plea of guilty of 25% on account of its utilitarian value. Having done so, I impose a sentence of four years' imprisonment, that being the head sentence. I find special circumstances for varying the ordinary ratio between head sentence and non-parole period, based upon this being the offender's first period in custody and the need for an extended period of supervision to monitor him once he is released to parole. I impose a non-parole period of two years. Each of those will date from 7 March 2020. The head sentence therefore will expire on 6 March 2024 and the non-parole period will expire on 6 March 2022.
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Decision last updated: 14 February 2022