HIS HONOUR: Cameron Leonard Woods appears today for sentence in relation to what are now five offences on an indictment which was presented today, although the accused was committed for sentence from the Local Court.
There was a deficiency in one of the Court Attendance Notices that was detected yesterday when this matter started before me. I was in the middle of a busy list of sentence matters and I stood the matter over to today to complete the matter given, amongst other things, the convenience of the Crown, counsel for the accused and appearance of the prisoner who had travelled down from the North Coast.
The indictment presented today encapsulating what was reflected in the Court Attendance Notices the subject of committal for sentence, alleges charges of supplying a prohibited drug to wit 3,4‑methylenedioxyamphetamine, otherwise known as MDMA between 4 April 2014 and 1 May 2014 at various places, usually in Sydney. Although, to be fair, count 4 is in fact an offence of "knowingly take part in the supply of a prohibited drug" intimately concerned with the supply of that particular drug.
A charge brought pursuant to s 25(1) Drug Misuse and Trafficking Act carries a maximum penalty of 15 years imprisonment or 2,000 penalty units or both. There is no standard non-parole period for that offence.
The fifth count on the indictment is an offence of supplying not less than a commercial quantity of the prohibited drug 3,4 methylenedioxyamphetamine on 8 April 2014. This is an offence contrary to s 25(2) Drug Misuse and Trafficking Act 1985, carries a maximum penalty of 20 years imprisonment or 3,500 penalty units or both and has the standard non-parole period of ten years imprisonment.
The prisoner was arrested on the date of the commission of the fifth matter on the indictment, the most serious charge, and has been in custody since that date. The sentences will be calculated to take into account all time spent in custody. The pleas of guilty entered at the Local Court as I earlier explained were entered at the first reasonable opportunity, there is no doubt the prisoner is entitled to a discount for the utilitarian benefit of his pleas of guilty in accordance with the guideline judgment of Thomson and Houlton and the discount he is accorded is in accordance with that guideline judgement, 25% in respect of each offence.
There are five matters on a Form 1 which are to be taken into account in respect of the principal offence which is count 5 in the indictment, the supply not less than the commercial quantity of MDMA. Those five charges are three charges of supplying small quantities of MDMA on 22 February, 20 March and 17 April 2014, a charge of supplying 6.99 grams of cocaine on 24 April 2014 and a charge of possessing a restricted substance as a result of a police search of premises occupied by the prisoner after his arrest at Terrigal. Identified in the Form 1 are particulars and Court Attendance Notices are attached to the Form 1 that have been provided to the Court.
Those matters will be taken into account in accordance with the guideline judgment of the Court of Criminal Appeal in relation to Form 1 matters ((2002) 56 NSWLR 147 Attorney‑General's Application No 1 of 2002) and I particularly refer in general terms to the observations of the Chief Justice for the Court between [18] - [43]. I am only sentencing for the "principal offence."
"It is no part of the task of the sentencing court to determine appropriate sentences for offences listed on a Form 1."
It is acknowledged, for example, at [18] that, "The entire point of the process is to impose a longer sentence (or to alter the nature of the sentence) than would have been imposed if the primary offence had stood alone" in the appropriate case.
In this particular matter these other offences do not greatly aggravate the criminality of the principal offence which is substantial. But they provide, particularly as to the supply prohibited drug offences, a context for what is self-evident from the facts. That is, the prisoner was involved in an ongoing sale of prohibited drugs over a period of nearly three months and the conduct of the prisoner involved escalating criminality as undercover agents or else police operatives lured him into providing greater and greater amounts of prohibited drugs, particularly MDMA. Which I hasten to say, as the facts reveal, were provided to the prisoner by a person who obviously was substantially involved in drug distribution. The prisoner was, if one can use the expression, 'the middleman' in the relevant transactions. Although it is clear he was cultivated by, and himself cultivated the relationship with, an undercover operative.
In relation to this matter, further, there is an offence on a s 166 certificate to complicate matters further which is a related offence of having in his possession $460 which was proceeds of crime. For some reason he was charged under the Commonwealth Criminal Code pursuant to s 400.8(1) of that Code. The sum was a modest sum. It was found with some capsules believed to be MDMA tablets. That matter will be the subject of a discrete sentence but which will be concurrent with the non-parole period the law requires me to fix in relation to the principal offence, that is, count 5 on the indictment.
I have already provided somewhat of a global summary of the offending but it is important that just reflect upon some of the details taken from the agreed facts and the evidence that the prisoner gave today, in the context of histories the prisoner has given to the Community Corrections Service and to a psychologist.
The police set up a strike force to investigate the supply of prohibited drugs in the Sydney area and the prisoner came within the thrall of that particular operation. It was the case the prisoner was in contact with undercover operatives who obviously, working on behalf of the Police Force, were able to pass the drugs obtained onto investigators and they can be analysed on the spot so that there is no doubt as to the quantities involved and the purity of the drugs.
I interpose at this point to reflect upon some evidence given by the prisoner that I have just mentioned in passing. The prisoner was a man substantially without criminal convictions. He has a finding of guilt for driving whilst suspended, but he is not a person who is naturally disposed to criminal activity. There is no suggestion of him having what could be described as an 'antisocial personality'. He had generally been in employment, largely working in the mining industry until he was 26 years of age when he suffered a back injury, the circumstances of which he explained in the careful cross‑examination of the learned Crown Prosecutor. It led to him losing his employment from which he received a modest, it would seem, compensation payment for the injury suffered to his back, this was a sum of just over $12,000, he lived off that sum in part. Not being able to work in the mining industry he took up working as a DJ, it would seem, somewhere on the Central Coast. He obviously came into contact with people involved in what is sometimes colloquially called the "party lifestyle" and in the context of the reaction to his loss of employment, perhaps to some extent the pain he was in and the like, the prisoner, who had only occasionally dabbled in prohibited drugs before, commenced to use quantities of prohibited drugs, particularly MDMA. I am satisfied on the evidence he became dependent upon them. He developed a drug debt which he in fairness to him frankly conceded was $1,700. Although the Community Corrections Service wrongly reported it as $7,000. Usually when people are making up a story they tend to increase the amount for sentencing purposes rather than decrease it as the prisoner frankly did on this occasion.
The prisoner gave evidence of being approached by a number of people that he understood were connected with the Rebels 'outlaw', as it is sometimes called, motorcycle gang and pressure was put upon him to sell drugs on behalf of members of that group or associates of that group in order to reduce his debt. In the period of time between February and May over which time the prisoner committed the offences with which I am concerned the prisoner gave evidence, at first hand hard to believe but ultimately I accept, that in fact his debt increased, notwithstanding increasingly substantial sums of money being received by him for the purposes of the purchase of drugs from him, supplied to him by a person, or at least one person, called "Ilich."
I pause at the moment to say as is probably self‑evident from anyone who had the opportunity of watching the proceedings that in the fact finding I make at this particular time there is a coalescence so to speak between the facts in the Crown case and the evidence in the defence case because to understand the facts in the Crown case one needs to properly put them in their perspective.
The first supply of the prisoner was to an undercover operative of 0.34 grams of MDMA in Sydney. The prisoner charged $30 per capsule and he received a total of $180. The purity of the tablets was very high. The prisoner himself was using the tablets so he must have known what strength they had. This is a level of purity I have not seen in tablets. I have been involved with cases of this type, not just supplies within Australia but importations of massive amount of drugs from what seemed to be endless numbers of MDMA factories in Belgium and the Netherlands, usually the tablets being imported from overseas in the middle of the first decade of the century had a purity of around 25%. I am sentencing some offenders this afternoon who were supplying MDMA or MDA in powder form with a purity of over 70%. Perhaps it is a dangerous trend.
I do not draw a conclusion adverse to this prisoner in this context concerning these matters but the facts of the matter are we read of tragedies everyday of young people taking one tablet and dying from the ingestion of that one MDMA tablet. One, in reading those tragic stories, could reflect upon the purity of the drug being in the vicinity of perhaps 20% or even less as was more commonly found in some tablets. One is concerned with, if there are tablets on the street with a purity of around 76 - 75%, what adverse effect that might have upon a susceptible recipient. That charge on 22 February is on the Form 1.
The next offence in time is on the Form 1. This is an offence of supplying 1.79 grams of MDMA outside the nightclub where the first supply occurred. The prisoner received $500. He drove his own motor vehicle to the scene, the registration of which was taken. The car I point out was purchased for him by his parents and has been forfeited as proceeds of crime. The purity of these tablets that he sold were 63.5%. The prisoner provided mobile phone numbers or a mobile phone number to the undercover agent.
The next supply shows this development of the relationship and, the greater and greater quantities on the prisoner's account, because of enticement to supply more from the undercover authority. That offence occurred on 4 April, 15 tablets for $500 which were 78.5% pure. This is a supply matter which is on the indictment.
The next offence on 10 April is on the indictment. This is supplying 115 capsules containing approximately 6 grams of MDMA outside the same nightclub and receiving $3,000. Again, supplying the drugs from his own car. The purity was 78%.
The next offence in time is on the Form 1. This is an offence on 17 April 2014, supplying 15 tablets containing 1.49 grams of MDMA for $500, 79% pure.
The next offence again on the Form 1 is on 24 April, supplying 500 clear coloured capsules containing 27.5 grams of MDMA and also supplying 6.99 grams of cocaine (another offence on the Form 1) which caused the prisoner to receive $10,000 for the MDMA and $2,000 for the cocaine. I should pause for a moment to say that the supply of the MDMA is one of the counts on the indictment.
The next count, or the next offence, committed on 1 May is on the indictment. It is count 4. This is the supply of 300 clear coloured capsules containing MDMA. The prisoner was given the capsules by a person who is described as "the co-accused" and then the prisoner supplied the tablets over a period of seven or eight days. The approximate weight of the capsules was said to be 30 grams. That supply, as I take it from the facts, although they are not entirely transparent on this regard, would appear to be monitored by telephone intercepts rather than dealing with an undercover operative.
The principal offence, Count 5 in the indictment, was committed on 8 May 2014. The prisoner was supplied by the so called "co-accused". The man who was the provider of drugs at relevant times to the prisoner provided the prisoner with 1,000 capsules and 260 grams of MDMA powder. The prisoner was provided with 1,000 capsules which contained 90.8 grams of MDMA and 260 grams of MDMA powder. He received $39,000 for the powder and $19,000 for the capsules. The prisoner was dealing of course with an undercover operative at this particular point. He was arrested, it would seem, on the spot as the transaction took place. The co-accused was arrested as well and the drugs that he provided to the undercover operative were clearly, based upon the police investigations, provided to him a short time before by the co-accused. The cash that he received was to go to the co-accused.
Police investigations led them to his apartment in Terrigal and the various items were found in the house, giving rise to the related offence on the Form 1 and the identification of other drugs, including the restricted substance which is on the Form 1. The average purity of the MDMA supplied by the prisoner over the course of the investigation was 75.5% with the highest purity being 90%.
The prisoner was born on 24 February 1987 according to the criminal history I have, therefore, he is now 28 years of age as I have earlier mentioned.
He has a minor matter of no relevance on his record and no other convictions. The Community Corrections Service prepared a report in relation to the prisoner and reflected upon the fact that in custody he has incurred no institutional misconduct offences and he has completed various courses including a Positive Lifestyle Program for which I have been provided with a certificate. I have a reference from the Chaplain at the institution where he is held which I will refer to in a moment.
There has been some positive feedback in relation to his work within the gaol, although there has been some deterioration in recent weeks.
He is an only child. His parents have children from other relationships, as I understand it. He grew up in a loving household and there are no issues in relation to his background that would explain his offending. He had been in a relationship prior to coming into custody but that was terminated in November 2014 which has had an effect upon him.
At school he was subject to some bullying. He attempted to complete a mechanical apprenticeship but was assaulted apparently two years into training and did not complete that apprenticeship. These events, according to the Community Corrections Service, have an impact upon him still. He worked in the mining industry, as I pointed out, for an eight year period until injury. He has been a member of the Australian Army Reserve for a period of time and I have seen a Certificate of Service in that regard. I have already reflected upon the effect of his injury as it is relevant to the assessment of his offending.
The Community Corrections Service report reflects upon his use of drugs as I have already summarised it. He has in custody attended some Alcoholics Anonymous meetings, did not find them beneficial. He is willing to engage in interventions to remain drug free.
He said that he was able to identify the issues that caused him to engage in the offending with which I am concerned and is able to have insight into that and the effect upon other people of his conduct. Although, only through the fact that he was dealing with people that he did not know were undercover police officers or police operatives that the drugs supplied did not find their way to the community. A matter about which I will comment in a moment.
He now sees, both in his evidence and the histories that he has given to the psychologist and the Community Corrections officer, the impact upon himself, his family and others of drug use. He is quoted by the Community Corrections Service as acknowledging that his involvement in drug use and in drug supply had "ruined his life" and that he had "hit rock bottom" and he was now picking up the pieces.
The Community Corrections Service said that he was forthcoming and he had largely led a 'prosocial' lifestyle until recent years. He accepted responsibility for his actions, sought not to justify his behaviour or place blame on others and he stated that he was lucky in one way that he supplied the drugs to an undercover officer.
In his evidence before me he said, as I noted it, that the arrest of him was, as he looks upon it now, "a good thing". He described it as "an element of relief" on his arrest. Not immediately and I can understand that. When a person is first arrested and realises that they are going into custody for the first time, there would be a range of reactions and emotions. But as time wore on the implications of his arrest were clear to him and as I said he described that as a relief.
I have mentioned the psychologist's report. It is a very detailed report, although it does not undertake the depth of psychometric assessment one would hope from a psychologist. It is an increasing trend in psychologists reports to be presentence reports reflecting upon matters the subject of history without undertaking any objective testing such as is capable of being tested. Although the material within the histories that accord with the prisoner's evidence, he has given evidence that the histories essentially as reported by the psychologist and the Community Corrections officer, are accurate. I accept those histories.
I do not need to reflect upon the very considerable detail in the history I have summarised it, I believe, largely from the observations I have made, thus far.
The psychological assessment of the prisoner was that he was greatly affected by the loss of his employment, he thought that his career was over because his back injury continues. The Crown led evidence of the fact that he still suffers discomfort and he would need to make some recovery before he went back into heavy industry such as mining. He was an individual who developed low self-esteem and poorly developed self-identity as he grew up through a number of experiences of bullying at school and other problems. He had some symptoms of social anxiety and generalised anxiety but these are described as "subclinical". As an adult he had not involved himself in antisocial or aggressive behaviours. He denied any functioning concerns in custody. He had recovered from the breakup of his relationship. He was not having any difficulties at the moment with sleep or appetite, energy, concentration and was not considering self‑harm.
There was one personality assessment undertaken by the use of the Millon Clinical Multiaxial Inventory. This self‑reporting questionnaire seeks to assess various aspects of personality and other matters. The prisoner reflected an elevation on pessimistic thoughts and has some sense of hopelessness. He has some problems with anxiety and some social fears and difficulties with drug use, including impulsivity and resistance to having limits placed on his behaviour.
The results of the testing were "consistent with the information he provided." The bottom line is, however, when one analyses it, while the information is all very interesting, assuming that the accused is of average intelligence and does not have any cognitive disability (which is not reported), there is nothing in the psychological report that reflects upon a mental disorder or a mental illness, or a mental abnormality, that has a causal connection with his offending behaviour.
The formulation of the psychologist reflects upon the stability of his upbringing, some aspects of the matter concerning lack of confidence and some social anxiety. He had been engaged, it is said, in unhealthy behaviours targeting at increasing his body image such as he has self‑admitted use of steroids which had an effect upon his health, as did his use of drugs in early 2014 from the evidence he gave in this Court.
His offending would appear, from the history he gave and the analysis I make of it from the objective facts, reflecting upon the analysis of the psychologist, to have developed from his association with undesirables who were able to introduce him to the use of drugs and effectively took advantage of him in the way that the Crown articulately identified.
He was in some form of psychosocial functioning decline at the time of the offending, but this was very much reflected in what could be called prosaic circumstances such as the loss of employment and financial difficulties leading to indebtedness and thus being placed in a position where he could not get away from the entreaties of those more powerful than him.
The psychologist reflected upon him not being ingrained in an antisocial lifestyle as a rule, needing assistance in relation to substance use and assistance in relation to lifting his self‑esteem and his self‑identity.
I must say he presented very well. He obviously looks very fit and came appropriately attired to Court. He may have had some difficulty articulating matters but he struck me as presenting a very positive image at least in his presentation in Court.
It is recommended that he have some residential rehabilitation program available to him on his release to custody, this will be a matter for the Parole Authority. He would need assistance too in relation to self‑confidence and self‑esteem, and also in finding employment in the community should he not be able to return to the mining industry in the view of the psychologist.
There are a large number of references from a range of people, obviously very respectable people, some have known the prisoner for a relatively short time, some, such as an uncle, have known him of course all of his life. The various referees speak of the fact that they are shocked and surprised by his involvement in this type of offending. The prisoner is well regarded usually, when not affected by drugs and not involved in this sort of activity, as a good young man, responsible, helpful, being a person who generally has taken responsibility for himself. One person describes him as "not an immoral person" the offending being "extremely uncharacteristic."
The difficulties for his family are reflected upon. If given an opportunity, one referee says, that referee is confident given his past performance that he can make a valued contribution to the community.
Some people of course were not fully aware of the prisoner's background. One referee refers to him not having previously been involved with drugs which is not entirely correct. His uncle has found him throughout his life as a respectful, pleasant, well-mannered young man, with a sense of family and willing to listen to his family. That uncle, who is a retired high school mathematics teacher, said that the prisoner can make a positive contribution to the community.
I have also viewed a number of a Certificates reflecting upon attainment of qualifications and certifications to perform particular tasks, particularly within the mining industry. The prisoner has Certificates in relation to attending upon various programs relevant to his employment. There is a Certificate of his enlistment, as I mentioned earlier, in the Australian Army Reserve in 2009. I have seen the certificate for the program he has undertaken in custody. I have taken all this material into account.
I have already referred to some of the evidence given by the prisoner and I have sought to integrate that into the fact finding in relation to the offending. As I said earlier, he explained, particularly in cross-examination, how it was that he still was indebted at the time of his arrest. I was, as I mentioned earlier, somewhat circumspect in my understanding or appreciation of what he was saying, but I am prepared ultimately to accept that he was caught in a situation where at the behest of others, he was supplying drugs for which he was not receiving a particular financial profit beyond the use of other drugs and an attempt to quell the debt which had in fact increased over the period of time. He talked about the effect of drugs upon his physical health and spoke positively in his cross-examination of his wish to attend upon the Cessnock institution run by Corrective Services to obtain trade certificates or qualifications for future employment.
If I could start with the learned Crown submissions because in my view they set a template for what was put by the defence. I summarise the submissions as necessarily I must. The Crown recognised the prisoner was an unlikely criminal and acknowledged that the evidence revealed that he was beholden to others who were in a more powerful position. He pointed out, as I had commented, that the prisoner had given evidence that may be difficult on the face of it to accept, although the Crown very fairly said, in an observation that was astute, that the prisoner may have struggled to properly express himself and he also made the observation that perhaps this is not unnatural in these circumstances, the prisoner has been "thinking about his situation too much", as I noted the Crown's words.
The Crown acknowledged that he had done a lot in life and he had good prospects for the future, although he noted the Community Corrections report reflected upon a "medium risk of reoffending" a matter about which the Crown and I had a short discussion. From my understanding of how these assessments are made the Crown was not particularly au fait with that assessment. There are many features of the prisoner's offending that would raise concerns in the testing that the Community Corrections does in this regard. I understand that entirely. A person who is drug dependent committing crimes in the context of drug dependency is very much at risk of reoffending if they go back to the use of drugs. Whether the prisoner will be able to avoid the use of drugs is something that I do not have the crystal ball to predict but I am prepared to accept that the prospects for him reoffending in my view are good if he can avoid the use of drugs and particularly noting his family's support.
The Crown noted, as the defence had, the escalating criminality reflected in the various charges and of course he pointed out that the minimum quantity of the relevant prohibited drug for a commercial quantity was 125 grams. The minimum quantity for a large commercial quantity was 500 grams or higher, therefore, whilst it was not the largest amount that could be covered by the charge, it was a substantial quantity of drugs within the context of the legislative provisions. He said that specific and general deterrence had their role to play, but he also acknowledged prospects of rehabilitation being encouraging and I believe he agreed with me when I pointed out that the time in custody for the prisoner would be a salutary experience, which I certainly believe and accept.
Counsel for the accused, apart from reflecting from the objective facts and the escalation of supply, noted the pressure upon the prisoner from the supplier and the enticements of undercover officers. She reflected upon the weight to be given to the plea of guilty, the prospects of rehabilitation, the family support, the making good of his time in custody thus far, the capacity to apply himself and pointed out that this was a man seeking to support his drug dependency, not for profit, arising out of the difficulties caused by his loss of employment through no fault of his.
If I could just deal with some of the legal issues that arise. Every sentencing exercise throws up a raft of matters that are required to be addressed.
First of all, there is, at the forefront, the 'purposes of sentencing' under s 3A Crimes (Sentencing Procedure) Act 1999 ('the Act'). The learned Crown had pointed to two of the purposes, both general and specific deterrence, which will always be present as matters to be taken into account to varying degrees in drug supply matters.
There is a need to promote the rehabilitation of the prisoner but also to make him accountable for his conduct and to denounce his conduct and to ensure that there is adequate punishment in all the circumstances of the matter.
There are the terms of s 21A of the Act, not only the importation of common law principles of sentencing in s 21A(1) of the Act, but consideration of the presence or not of aggravating factors and mitigating factors under subs (2) and (3). I am not satisfied beyond reasonable doubt, beyond the facts of the case and what they speak of, that there are specific aggravating factors arising under subs (2). I am not satisfied beyond reasonable doubt that the prisoner conducted the offence for "financial reward."
In that regard, the learned Crown Prosecutor very helpfully provided me with a number of Court of Criminal Appeal judgments that might provide some assistance for showing a range of penalty imposed in relation to offences covered by count 5 in the indictment, that is, offences contrary to s 25(2) of the Act. Those decisions are Barlow [2010] NSWCCA 215, Ellis [2010] NSWCCA 298, LMN v R [2012] NSWCCA 52, McBeth [2009] NSWCCA 235. Those cases I have read. Each case is different, if I accept that, but they are of assistance.
The case of Barlow is an interesting case. The young offender who was 19 was involved substantially in the supply of ecstasy but received a term of imprisonment, after a 40% discount, of two‑and‑a half years to be served by way of periodic detention. The Crown appealed against this sentence on the basis of inadequacy of sentence, but the Court of Criminal Appeal confirmed the approach of the learned trial judge. There were important matters that were taken into account. Including the circumstances in which the young offender was detected. One of the matters raised by the offender, accepted by the trial judge and given the imprimatur of approval by the Court of Criminal Appeal was the finding that the offence, the relevant offences, were not committed for "financial gain." The prisoner had involved himself in very substantial criminal activity to endeavour to settle or diminish or remove a drug debts. The Court found that it was open to the trial judge to have regarded as his settlement of a debt for drugs used by him as not being to be considered as for the purpose of financial gain. The learned judge who delivered the judgment of the Court, Justice McCallum observed:
"In my view, it is clear that his Honour regarded Mr Barlow's aim of eliminating a debt as a purpose in a different category from the case of a person who engages in the sale of drugs for profit."
In my view, this case on the evidence available to me fits within the same rubric in the circumstances I have outlined.
With regard to mitigating factors under s 21A(3) ultimately I conclude that the prisoner does not have any record of previous convictions. He was a person of good character. I am prepared to accept on balance that he is unlikely to reoffend. The prisoner has good prospects of rehabilitation. The prisoner has shown remorse by providing evidence that he has accepted responsibility for his actions and acknowledged the damage or the potential damage his conduct had done. He was aware of the damage it was doing to him, that is, the ingestion of prohibited drugs. The plea of guilty of the prisoner is a relevant mitigating factor for which he receives a discount as I have already identified.
With regard to the issue of the circumstances of the offending the evidence he gives is that he was enticed into providing more and more drugs. This is a perfectly legitimate police tactic to draw out those that have the capacity to provide the drugs. It is not a case of a young Aboriginal 18 years of age being asked by an undercover police officer in a pub to provide a "point of" methylamphetamine, as I found in Wagga once, rushing out of the pub to find the drug supplier to get the "point" to bring it back to the undercover officer, and doing that over a three or four day period on three occasions, finding himself charged with a "s 25A offence", in circumstances where it was quite clear that the young person would never have committed the offences unless the undercover officer had asked him to commit them. It was quite clear on the facts of the matter that he had no access to any drugs at all unless he went and asked somebody who was a real drug supplier.
But, having said that, in the decision of Chan [1999] NSWCCA 103 Acting Justice Smart reflected upon the role of what was called "entrapment" and its relevance to the assessment to the diminution of culpability where an undercover officer was involved. In that particular matter his Honour referred to three decisions of the Court of Criminal Appeal and the South Australia Full Bench at [14] - [16]. Two of those decisions turned upon the factual determination that the prisoner was in the business of selling prohibited drugs and had not been encouraged to do something that he or she would otherwise have not done.
It is a fine line in this matter because it is quite clear on the facts available to me that the prisoner himself was not capable of immediately filling orders placed with him. On the other hand he was dealing with people that he knew wanted drugs sold that could fill the orders as they were increasingly made and was able to facilitate what was being requested from people who were more than willing to fill the orders.
In Taouk (1993) 65 A Crim R 357, particularly at 403-404, the late Justice Badgery‑Parker came to the conclusion that if there was a reasonable possibility that a police officer had encouraged the commission of a crime that would not have otherwise been committed, but for the officer's facilitation of the supply, that might be a matter to be regarded as diminishing the culpability of the offender. He said that the assistance, encouragement or incitement offered by the police officer was such that the prisoner would not have committed the crime as a reasonable possibility. In all the circumstances of the case involvement of the police in the commission of the crime was such as to diminish the prisoner's culpability.
In this particular matter, it seems to me from the escalating quantities of supply, that the accused on his evidence, and I have no other evidence other than the statement of facts, was being encouraged to supply more and more. If not encouraged he would not have supplied more and more. But I point out the facts obviously point to the fact that the prisoner was supplying to others as well. It was not as if the prisoner was enticed into supplying prohibited drugs. Just that the quantity of drugs that he supplied may have increased based upon that encouragement.
In Chan it was concluded that had the police agent not made the request, or not made the purchase, the offence of supplying prohibited drugs would not have been committed. But Chan would have supplied someone else. It was held that the appellant was happy to deal with customers unconnected with the police.
In this particular matter the situation is not quite as bald and straight forward. Ultimately I have concluded there will be some slight diminution of culpability in the context of his relationship with an undercover police officer, but I point out of course the prisoner was not just concerned to supply to that person.
In any event, the Court in Chan held that if there was a suggestion of reluctance or hesitancy or persuasion in supplying drugs the accused should give evidence about the matter and any issue of encouragement making a difference should appear in the evidence. These matters are not to be resolved by speculative or informal conclusions or assumptions.
There is another point, however, that emerges from Chan which is clear in this case. That is that when drugs are supplied to undercover agents those drugs will not be disseminated into the community. That is a matter of minor diminution of culpability simply because the offender had the intention to supply and believed the drugs would likely find their way into the community by the fact of supply, which is self‑evident.
The principal offence has a standard non-parole period. Of course in Muldrock v R [2011] 244 CLR 120 when considering Part 4 Division 1A of the Act the Court overruled some of the significant conclusions of the Court of Criminal Appeal in the [2004] decision of Way. Ultimately, the Court concluded, in the context of the earlier judgment of the High Court of Markarian v R (2005) 228 CLR 357, that the standard non-parole period is just one part of the larger task of passing sentence. It is a guide but not a starting point and made various observations at [17] - [29] which changed the approach to the treatment of standard non-parole periods.
What was held by the High Court in Markarian is now reflected in s 54A(2) and s 54B(2) of the Act. Those provisions amending the Crimes (Sentencing Procedure) Act 1999 noted that the standard non-parole period was only relevant to the objective factors concerning the relative seriousness of the offence and the assessment of whether an offence was in the middle range of the seriousness. The standard non-parole period is a matter to be taken into account without limiting the matters that are otherwise required or permitted to be taken into account in determining the appropriate sentence.
I am of the view in relation to the matter, having regard to the prisoner's role, the moral culpability of the prisoner, the quantity of course (which is always relevant) but not a final determinant, that the offending of the prisoner falls below the middle range of objective seriousness, if that assessment is required. It is not low of course but it is certainly below that of the middle range of objective seriousness.
I have concluded in the context of fixing the appropriate non-parole period, as a non-parole period must be fixed, that there are 'special circumstances' pursuant to s 44 of the Act. There is a need for an extended period of supervision to assist the prisoner to adjust to community living, he will need professional assistance from the Parole Authority, both the Authority itself and the officers of the Community Corrections Service, in relation to matters such as employment, drug counselling, associations and perhaps psychological assistance.
The sentences I impose must take into account the totality of the criminality. In that respect I reflect the principles that are summarised by the majority of the High Court in Pearce v R (1998) 194 CLR 610, particularly at [45] which reflected upon the fact that in sentencing for multiple offences an appropriate sentence for each offence must be fixed, unless one uses the aggregate sentencing facility pursuant to s 68A of the Act. Then the Court must address the issue of appropriate concurrency accumulation ultimately to reflect the totality of sentence required for the offences to which the prisoner is to be sentenced. In this regard there will be a partial accumulation which of itself is a 'special circumstance' warranting an adjustment of the relationship of the effective non-parole period to the balance of sentence.
The Crown very helpfully provided me with some statistics. They show a range of sentences for 95 cases for an offence under s 25(2) relating to the supply of at least a commercial quantity of ecstasy. The range of sentences show what appears to me to be, for what it is worth, a mean figure of somewhere in the order of five to six years imprisonment for offences under this provision. I have not done a statistical analysis of the range in terms of fixing upon what the statistics reveal to be either a median or mean figure but I see the range of sentences reflected in the statistics for imprisonment are between 30 months and 12 years imprisonment. These statistics do not tell me discounts for pleas of guilty and or cooperation and the like. They provide some assistance.
I am mindful of what Chief Justice Spigelman said in the decision of Bloomfield (1998) 44 NSWLR 734, particularly at p 739 about the difficulties with the use of statistics, they provide a range of penalty. There must be caution exercised in relying upon them, they give an indication in general sentencing trends and standards but they provide not sufficient detail about the circumstances, each case being different, the larger the sample the more likely the statistics are likely to be useful in respect of the matters that statistics can assist a Court to determine in relation to a particular matter. I note, of course some of the matters he observed relevant to statistics are more within the thrall of a Court of Criminal Appeal reviewing whether a particular sentence is manifestly excessive or manifestly inadequate than for a court finding facts at first instance.
There are a number of features of statistics that his Honour did not refer to in Bloomfield. Time spent in custody might not necessarily be reflected in the particular penalty that has been imposed amongst other factors, and of course every case is different.
The same with comparative cases. There is some recent authority, RCW (No 2) reflected upon the failure of the District Court Judge to avoid concentrating on one comparative case. It was held to be an error to use a particular case that was unrelated as a starting point in comparative sentencing exercises that may be appropriate. But I have taken into account comparative cases which provide some assistance.
Obviously a term of full‑time custody is appropriate, I do not think there was any discussion about that aspect of the matter and this is a case that does not require the consideration of the analysis that appears in decisions such as Gip, Carrion, Clarke, Gu and Fayd'Herbe. This is not a borderline case. Naturally the principal offence is one which ordinarily would attract a term of imprisonment as the statistics themselves reveal and no particular submission was put to me to suggest otherwise.
I believe I have addressed all the relevant matters that were either referred to, not referred to or hinted at and otherwise not developed in the course of the conduct of the case, bearing in mind, of course, I am giving my judgment more or less immediately after the completion of the submissions with no transcript of the proceedings.
Could you stand up, thank very much, sir.
Mr Woods, in relation to count 1 on the indictment you are convicted.
You are sentenced to a term of 12 months imprisonment to date from 8 May 2014, expiring on 7 May 2015.
In relation to count 2 you are convicted.
You are sentenced to a term of imprisonment of 18 months to date from 8 May 2014, that will expire on 7 November 2015.
In relation to count 3 you are convicted.
You are sentenced to a term of imprisonment of 2 years to date from 8 May 2014, expiring on 7 May 2016.
Likewise, in relation to count 4, you are convicted and you are sentenced to two years imprisonment to date from 8 May 2014, expiring on 7 May 2016.
In relation to count 5, taking into account the matters on the Form 1, you are convicted. You are sentenced to a term of imprisonment by way of a non-parole period of two years that will date from 8 May 2015 and on my calculation will expire on 7 May 2017. In relation to that sentence I fix a balance of sentence of two and a half years imprisonment. The balance of sentence will on my calculation will expire on 7 November 2019.
That is, on my calculation, a total sentence of five and a half years imprisonment with an effective non-parole period of three years, that total as I have described it effectively commencing on 8 May 2014.
In respect of the matter on the s 166 certificate, that is the proceeds of crime offence, you are convicted. In relation to that offence you are sentenced to a term of imprisonment of six months that will date from 8 May 2015 and will expire on 7 November 2015.
You can take a seat, thank you very much.
[2]
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Decision last updated: 09 October 2015