R v Joshua Degouveia [2019] NSWDC 161
R v Way (2004) 60 NSWLR 168
Source
Original judgment source is linked above.
Catchwords
R v Joshua Degouveia [2019] NSWDC 161
R v Way (2004) 60 NSWLR 168
Judgment (5 paragraphs)
[1]
Solicitors:
Morrisons Law (for the offender)
Ms A Cabrera (for the Director of Public Prosecutions)
File Number(s): 2018/00092075
[2]
SENTENCE - ex tempore revised
It bears repeating and repeating, that the sale of illicit drugs causes considerable harm, not just to those who purchase and ingest the drugs, but to the community in general. The illicit trade in drugs is a principal source of crime in the community. It is not just the crimes committed by the sale of illicit drugs, it is the crimes that are committed by those who seek to obtain funds for drugs, and the crimes which are funded by the profits that can be made, and ultimately the destruction to personal and family life that drugs cause.
Jamie Warren, the offender, does not need a lecture about the harm drugs cause to the community. Throughout his young life, before he was old enough to make any rational choices, drug use has blighted his life and the life of his family. He has for more than a year engaged in the Odyssey House program, and is now seen as a mentor and a leader in that program: A program that does good work helping people come to grips with their drug problems.
R v Warren [2019] NSWDC 820 | Case summary | Zoe
The seriousness of the particular offences which are before the Court are reflected in the maximum penalties. For the most serious offence, 20 years imprisonment with a standard non‑parole period of ten years for an offence that falls objectively in the middle of the range, and 15 years for the other matter. Courts are told to do what they can to attempt to deter others from committing the sort of crimes that Warren committed. Ordinarily, we do so by imposing harsh punishment in the hope, and experience shows that it is often just a hope, that that punishment will prevent further crime.
Actual experience, study and empirical research shows that dealing with the root problems, personal and community, for drug use, often has a more significant role to play in the prevention of drug crime. It has been said by many with experience that you do not solve society's illicit drug problem by arresting and gaoling individuals.
Here, I am dealing with one individual. Warren was engaged with others as part of a criminal group in the attempting the retail distribution of cocaine, methylamphetamine, 3,4‑MDMA and cannabis over a period of months. The seriousness of his crimes lies in part on what was done or attempted to be done by him in maintaining a market for various illicit drugs.
I am prepared to accept that any profits made were largely squandered in local hotels, and his drug and alcohol use and other addictions. However, notwithstanding that activity, he remained at the time clear thinking enough to be able to carry on his trade in an apparently rational, clandestine, and efficient manner.
The facts before me are admitted and were subject of early acceptance in the Local Court. Together with associates, it appears some of whom are still to be finalised by the Courts, arrangements were made to meet in December 2017 at a hotel in Shellharbour. Contact was made, and Warren was able to obtain from a cannabis supply group run by Jose and Joshua Degouveia, over 3 kilograms of cannabis for $20,000. In 2019 I sentenced those men: R v Jose Degouveia; R v Joshua Degouveia [2019] NSWDC 161.
There were further meetings, which led to the undercover operatives being provided by Warren, with 27.2 grams of methylamphetamine for an agreed price of $4,800, and 6.87 grams of cocaine for $2,200. Arrangements were made for a further transaction with the undercover operatives; these also involved the other man. Samples were provided. There was an attempt by Warren to obtain 28 grams of 3,4‑MDMA. He was able to supply, sourced from the Degouveias.
With the help of an associate Gil another 3 kilograms plus of cannabis was obtained from the Degouveias. It was brought to back to the Warren's home where 26.89 grams of cocaine was supplied for $8,000, and 28.6 grams of methylamphetamine for $3,200.
Soon after a similar arrangement was entered into this time, involving meetings at Albion Park, where 55.8 grams of methyl amphetamine was supplied for $9,600. 16 grams of 3,4‑MDMA for $3,200, and 24.6 grams of cocaine for $8,000.
On 8 February, there were arrangements to supply what an ounce, or 28 grams, of 3,4‑MDMA and cocaine for nominated sums. There were further agreements to supply 56 grams of methylamphetamine, 28 grams of 3,4‑MDMA, and 28 grams of cocaine. That supply was meant to occur on 22 March 2018 however the offender was arrested that day.
The three matters for sentence involve two counts of supply of a prohibited drug more than the indictable, less than commercial amount: s 25(1) Drug Misuse and Trafficking Act 1985. They relate to the rolled up quantities of respectively methylamphetamine and the cocaine that were supplied or agreed to be supplied. The maximum penalty for that offence is 15 years imprisonment. The total amount of 3,4‑MDMA was 127.87 grams, when rolled up, came to just over the commercial quantity of the drug, which is 125 grams. A commercial supply offence, s 25(2), carries a maximum penalty of 20 years imprisonment and for an offence which falls, taking into account only objective factors, in the middle of the range, a non‑parole period of ten years. There are many reasons for significant variation from that standard non‑parole period, but some content must be given to it.
When I sentence for the 25(2) offence, I am also asked to take into account on the Form 1 matters relating to the supply of over 6 kilograms of cannabis. That is not an insubstantial offence in itself, but I do not sentence for it. It does mean that greater weight has to be given to deterrence and community protection when I sentence for the principal offence.
There is also an offence of knowingly participating in the criminal group on that Form. The agreed facts set out Warren's participation and involvement as part of a group whose aim was to supply to the undercover operatives, or obtain drugs for the undercover operatives. Placing that offence on the Form 1 does not add to the sentence, because, frankly, those matters have already been counted when I formulated the objective seriousness of the principal offence.
In his written submissions, MFI 2, Mr McCallum who appears for the offender, notes that particularly so far as the 3,4‑MDMA is concerned, Warren did have difficulty sourcing the 3,4‑MDMA; some notice was required and discussions had to be entered into before Warren obtained the drugs. However generally the drugs were able to be obtained on relatively short notice and in significant amounts. This indicates that the offender was not himself the principal source of the drugs, but that he had access to a bulk supplier of multiple drugs. He was above a street level dealer; as motivation and planning were involved.
Ms Cabrera, for the Director of Public Prosecutions, submits that Warren managed his own little operation, involving the supply of three types drugs. He took an active role in dealing with the undercover operatives. Further a matter, which is not to his credit, he involved his nephew in the supply operations, putting him at risk of a gaol term. Ms Cabrera concedes that there is little need to go to my earlier decisions in relation to the cannabis suppliers, the Degouveias, or another man, Tugaga. It accepted Gil was more actively involved in the cannabis aspect of the operation.
I must give content to the maximum penalties and the standard non‑parole period as guides, but I do not need to contrast the actual offence with an abstract one, or identify features which were or were not taken into account when considering the standard non‑parole period. There are some difficulties here as the transactions were each connected with each other in time and place. They formed part of the same criminal enterprise. Further the counts have been rolled up to reflect a course of supply involving multiple acts, or agreements to supply. It is agreed that one charge with reference to each of the three drugs supplied can recognise that course of conduct. This unifying common purpose, meant the commercial quantity was reached in relation to the s 25(2) only by accumulating the individual amounts supplied and the agreements to supply, where there is no evidence before me the drugs were actually in possession of the offender.
This fact can be taken into account when I come to formulate the particular penalty for each offence. Going back to the original facts and the summary contained therein; of the 194 grams of methylamphetamine, 110 was actually supplied; of the 127 grams of 3,4‑MDMA, 45 grams was actually supplied: Of the 114 grams of cocaine only 58 was actually supplied. The quantity of drug and how it was utilised by the offender is one of many factors I take into account when assessing objective seriousness.
The drugs were not disseminated into the community but the offender was not to know that the buyer was an undercover operative and the drugs would be ultimately seized and destroyed. The Court of Criminal Appeal has said that this fact is of limited relevance: R v Chan [1999] NSWCCA 103 and R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131. Here, as the Court made clear in Way, what is relevant to an assessment of moral culpability is the offender's motivation or understanding. Warren expected and received a profit. He acted on the understanding that the drugs would be resold. He did so heedless of the consequences to those who purchased and consumed them, and the consequences of drug use.
That the drugs were not distributed was not due to any act of the offender. So far as the distributed portion of the drugs are concerned, and so far as the other matters, it seems either his arrest or difficulties with sourcing the drugs were the principle reason they were not sold, or passed on to the undercover operative, or that the undercover operative did not attend the meeting.
However, I must also look at the harm done when offences are committed. While it doesn't mitigate the subjective criminality of this offender, I can take into account the damage done as a consequence of drug supply to the community. Where that drug was not supplied, the converse is also true, as Hulme J pointed out in R v DW [2012] NSWCCA 66.
I have to fix an appropriate sentence for each offence, taking into account they were rolled up offences. The total sentence must be just and appropriate to the totality of the offender's behaviour. The purposes of sentencing apply to both the parole period and the balance of term to be served.
Different drugs were supplied, each could have had different impacts on the community. Public confidence in the Courts requires that there be some accumulation, but the principle of totality also requires some considerable concurrence. No questions of parity, or even comparison, arise with the Degouveias or those who have yet to be sentenced.
As Mr McCallum submitted, if that was all that was before the Court, this would be a relatively straightforward sentencing exercise. There would be appropriate reference to objective seriousness of the offence, reference to maximum penalties and the relevant principles, to which I have referred. But sentencing is not just about the offence, it is also about the offender, and here it is hard to think of a starker contrast between the man who was arrested and gaoled on 22 March 2018, and the man who stands for sentence today on 15 November 2019.
Warren was born in April 1989. He has one matter on his record, but no convictions. Despite the revelations in his subjective case he is entitled to be regarded as someone who has no prior convictions. It would be impossible to say that he was a person of prior good character. That absence of good character is explained by all of the material which was put before me.
Warren's personal history was affirmed in evidence today. It is set out in summary in the sentence assessment reports and detailed by Ms Duffy, a respected psychologist. It is quite clear from that history that he had a highly abusive and violent upbringing. His father who committed multiple crimes against the community and against his own family. Warren still has an emotionally and psychologically complex relationship with his father, which he alluded to briefly in his evidence today.
It is far from surprising that as a very young man Warren took up the use of drugs, alcohol, and associated gambling and other addictive behaviours. These were described by the psychologist as "maladaptive behaviour patterns." The history affirmed in evidence today and set out in the report was confirmed by testing, which indicates significant symptoms of post-traumatic stress disorder, persistent depressive disorder, substance and alcohol use disorders. The report, which was before me when I adjourned earlier this year, noted his growing insight and acceptance of responsibility and recommended that he complete the Odyssey House rehabilitation program that he entered, when given Supreme Court bail, on 18 October 2018.
The Sentence Assessment Report, 21 May 2019, says Warren was frank in saying that he believed the world "owed him a living," and that he enjoyed manipulating people: exhibit B. He said however that his world view was shifting. The 13 November 2019 Sentence Assessment Report notes significant insight into his offending behaviour: exhibit C. The Odyssey report notes that he has completed level 3: exhibit 3. He had been drug and alcohol free, and I am aware of regular testing to confirm this, since he was bailed. He has just commenced the Odyssey House Level IV, re‑entry to the community program.
Warren has worked diligently on his anger management, co‑dependency relationships, grief and in parenting programs. He has formulated positive values, which are set out in the statement that he provided today. In his evidence today, he not just affirmed all the material before me, but he spoke of how he wished to give back to the community, and how he had positive plans for the future. Those plans include strategies should he be returned to gaol. He has positive plans to assist the Odyssey House community. He aims ultimately to lead a normal community life; frankly, until now he has never had the opportunity to lead a normal community life.
Mr McCallum submits that I can make a 50% allowance for the quasi‑custody element of attending Odyssey and take into account the 209 days he spent bail refused. With over 400 days spent in custody or quasi‑custody, when I come to formulate the appropriate sentence, this would allow for an aggregate sentence of under three years. Mr McCallum submitted that the balance of the sentence could, accordingly, be served by way of intensive correction in the community. He said that while it might be seen as a lenient disposition, given the objective seriousness of what was done and the harm that was done; the interests of the community justify that lenient disposition. An Intensive Correction Order would allow for the rehabilitation of the offender and also allow him to continue to participate as part of the Odyssey House community, by giving back to the community. The alternative, wasting his time in gaol would require him, perhaps every day, to exercise his safety strategies to avoid falling back into the lifestyle that he lived prior to going to Odyssey.
Ms Cabrera for the Crown adopts submissions that were put before me on the last occasion, stressing the maximum penalties and the objective seriousness of what was done. She reminds me that the Courts have a duty to signal to the community the consequences for anyone engaging in criminal drug supplies at the level engaged in by this offender.
[3]
Synthesis
Every offence and every offender requires individualised treatment. Courts must, in exercising an undoubted discretion, also take guidance from a number of sources. They include the maximum penalties prescribed, standard non‑parole periods, if they have to be considered, decisions of other Courts, for the purposes of sentencing. The protection of the community is contributed to by the successful rehabilitation of offenders, and this aspect of sentencing should never be lost sight of.
It would appear that the Supreme Court bail and the s 11 remand that I have allowed, has achieved, so far as it is possible, the purpose of rehabilitation. The offender has fulfilled all of the obligations that were placed on him, but a Court's ultimate duty is to do what it can to ensure community protection. This involves more than dealing with the offender himself. Courts have an obligation to ensure that an offender is adequately punished for each of the offences for sentencing, and while the theory of general deterrence is subject to attack, Courts must always go back to the seriousness of the crime committed. Offenders must be held accountable for their actions, and the Court must, by the severity of the sentence, denounce what was done. When the Court, is sentencing for matters such as this, of a severity such as this, mitigating factors can go only so far.
Honestly and frankly, Warren acknowledged that what he did was wrong. His early plea of guilty, will lead to a reduction in the otherwise appropriate sentences by 25%. He said to me he has to "own" what he does, when he does the wrong thing.
Warren's rehabilitation to date will be fully credited. I acknowledge there is a public interest in not interfering with demonstrated rehabilitation, and that when someone is at the crossroads, every effort should be made to avoid sending them back to gaol, where they can be at risk of succumbing and returning to antisocial activities and more crime. I accept the process to rehabilitation already undertaken will be interrupted by a gaol sentence. I have sought in structuring the sentence to reduce to the minimum the time in custody called for by the purposes of sentencing, recognising as best I can the considerable changes and efforts made by the offender. But these were not minor crimes, these were a series of very significant crimes committed against the community.
There is a requirement for punishment that could only be met by fulltime custody. I will recognise in its structure, its length, and by backdating as best I can, every effort made by Warren; to encourage him to stick to his safety plans, while he serves the minimum additional term that the law demands.
[4]
ORDERS
In relation to each of the matters, you are convicted. I take into account the two matters on the Form 1. I have to indicate individual sentences. For the principal offence, taking into account the matters on the Form 1, I indicate a sentence of three years and nine months, with a non‑parole period of two years.
For each of the other matters, I indicate sentences of two years.
There will be an aggregate sentence in this matter of four years and two months. There will be a non‑parole period of two years and two months. The sentence will, on my calculations, date from 3 October 2018. That is making allowance of 408 days for custody and quasi custody. The offender will be eligible for consideration for release to parole on 2 December 2020. Total sentence will expire on 2 December 2022.
I make a drug destruction order, if one has not been made.
[5]
Amendments
01 April 2020 - Typographical error in sentence commencement date.
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Decision last updated: 01 April 2020