R v Wright

District Court of NSW|2021-09-16

Solicitor/Trial Advocate: A. Chauvet (Crown) File Number(s): 2020/00151476

REMARKS ON SENTENCE

The offender is to be sentenced in respect of the following charges. Count 1 - supply large commercial quantity of prohibited drug, being 1907.5 g of methylenedioxy-methylamphetamine ("MDMA") pursuant to s 25(2) of the Drug Misuse and Trafficking Act 1985 ("DMTA"). The maximum penalty prescribed is life imprisonment and there is a standard non-parole period of 15 years imprisonment. Sequence 2 - deal with property proceeds of crime greater than $100,000 ($187,500) pursuant to s 193C(1) of the Crimes Act 1900. The maximum penalty prescribed is five years imprisonment. There is no standard non-parole period.

The sentence hearing

The sentence hearing took place on 16 September 2021. The Crown Sentence Summary became Exhibit A. It included a statement of facts, which may be summarised as follows.
On 20 May 2020, police applied for and were granted a search warrant of the offender's premises at Oatley. Shortly before 6am on 21 May 2020, the offender left the premises in his motor vehicle and was stopped by police. The offender was informed that police had a warrant to search his address in relation to break and enter and drug offences. The offender immediately stated, "It's all in my room, I'll show you where it is" and, "I have some stuff in my room and the phone is in the house too".
At the premises, the offender directed police to a cupboard in his bedroom and indicated a white storage tub containing illicit drugs. Within the container was found the following:

1 x vacuum sealed bag containing 961.8g of MDMA at 76.5% purity;
1 x vacuum sealed bag containing 932.8g of MDMA at 76% purity (the total MDMA located was 1907.5g);
1 x vacuum sealed bag containing 104.1g of cocaine at 10% purity with a street value estimated between $20,000 and $30,000;
2 x sets of scales;
3 x heat sealing machines;
Freezer bags;
Gelatine capsules in plastic bottle;
Box containing rubber bands.

The offender told police that the drugs were MDMA and said, "that's what I was told when I picked it up".
When asked about the purpose of the freezer bags, the offender responded that they were used "in case I'm asked to change the sizes to whoever I'm giving it to". Similarly, he told police he had the gelatine capsules, "in case they ask me to put it into caps".
Inside the same cupboard were two safes for which the offender provided keys. In the bottom of the larger safe was $187,500 in multiple denominations and 19 bundles. The offender told police that this money was his life savings, having been accrued over at least eight years of working. Inside the smaller safe were six mobile phones.
Elsewhere in the house, the offender directed police to a black Samsung mobile phone which was encrypted with the "Cipher" program.
Following his arrest, the offender declined to be interviewed.
Also in Exhibit A were the facts relating to the offence of steal property in dwelling house. A business had operated a fully functioning gym within premises in Oatley. When the business went into administration, the property was transferred to the building owner. Between 26 April 2020 and 2 May 2020, the offender and a co-offender, Thompson, attended the premises and dismantled a "Smith Machine", taking it to premises in Revesby. On 21 May 2020, police executed a search warrant at those premises and recovered the Smith Machine. The offender made full admissions relating to stealing the property and his intentions of using the property for exercise.
Exhibit A also detailed the offender's criminal antecedents. In 2009 he had been fined $1,200 for driving whilst license suspended. In 2010 he was fined for possess prohibited drug and drive whilst disqualified from holding a license and was sentenced by way of two s 9 bonds to be of good behaviour.
Exhibit B was a Sentencing Assessment Report ("SAR") under the hand of Mr A. Head dated 26 May 2021. The author had been qualified with a letter from a neurosurgeon, confirming the offender had been diagnosed with a pituitary brain tumour and required surgery which was to occur on 2 June 2021. The author noted that the offender had recently commenced full-time self-employment in the steel fabrication industry. He had minimal criminal history and had become involved in drug supply as a way to support his own substance addiction. He told the author that he became involved in warehousing illicit substances through associates at his prior employment who are involved in the drug trade industry. He told the author that on the first occasion this group provided him with illicit substances to warehouse, he had consumed eight ounces of cocaine over a six month period, thereby becoming indebted to them. The author reported that the offender's substance abuse issues commenced in 2006, however, he had made successful attempts to abstain from all illicit substances since December 2020. He had engaged with two psychologists in order to address his substance abuse issues.
The author noted that the offender reported diagnoses of Attention Deficit/Hyperactivity Disorder ("ADHD"), anxiety and depression and sought treatment for his mental health issues.
The author stated that the offender demonstrated appropriate insight into the impact of his offending behaviour and expressed willingness to engage in any additional intervention to prevent relapse. He was assessed as a low risk of reoffending and as suitable to undertake community service work.

The offender's documentary evidence

The offender tendered a bundle of documents which became Exhibit 1.1 - 1.8. Exhibit 1.1 was a report from Ms K Ram, psychologist. She reported a family history in which the offender stated he had a happy childhood. His mother died in 2012 aged 59, following which his drug use escalated. His father was a Vietnam veteran who was terminally ill, having been diagnosed with asbestosis and scleroderma. He reported having a supportive relationship with his family and lived with his father, sister, wife and son.
The offender was diagnosed with ADHD at school and prescribed stimulant medication in Year 7 or 8. He left school after Year 10 and commenced TAFE courses in Carpentry and Construction. He held an apprenticeship for two years and thereafter worked in unskilled positions as a traffic controller and labourer. From 2012 to 2013, he was employed by a labour-hire company. He suffered an injury to a disc in his back and was on workers compensation for eight months.
In 2014, he was employed in a steel factory and gained experience in welding. He was eventually promoted to head fabricator and worked on a number of major infrastructure projects. In 2019 he obtained employment with an air-conditioning company and is now a sole trader, making cages for air-conditioning condensers.
The author took a history of the offender's use of alcohol and illicit drugs from the age of 18. Whilst cocaine was his drug of choice, he had also smoked cannabis from age 20 until December 2020. At the peak of the offender's cocaine use, he was using two to three grams per day. He was still functioning and able to work.
Following his release on bail, the offender engaged in treatment with Ms A De Santa Brigida, psychologist, to assist in recovery from substance abuse. His pituitary tumour was diagnosed in 2012, approximately one week after his mother passed away. He was treated conservatively but developed vision problems and subsequently underwent surgery to treat the tumour in 2020.
The author noted that the offender had accrued a drug debt of $100,000 by 2016. In January 2020, he was given drugs to hold in his possession. He did this because he was fearful that if he did otherwise, his family would get hurt. He had however been drug-free for a period of four to five months prior to his arrest.
The offender expressed remorse and shame for his actions. He wanted to succeed in his business as a steel fabricator and to look after his family.
Ms Ram opined that the offender met the diagnostic criteria for the following:

Moderate Cocaine Use Disorder (currently in early remission);
Cannabis Use Disorder (currently in early remission);
Attention Deficit/Hyperactivity Disorder (ADHD), Inattentive Type;
Other Specific Trauma-and-Stress Related Disorder.

Ms Ram opined that the offender had developed insight into his condition and had sound rehabilitation prospects. Becoming a father had changed his life and provided him with additional motivation to rehabilitate.
Exhibit 1.2 was a report from Ms De Santa Brigida dated 28 April 2021. She had treated the offender on eight occasions between 1 July 2020 and 7 April 2021. He had also completed a substance abuse program at Mindways Psychological Services. The author recorded a family and substance abuse history consistent with the history outlined above. The author also recorded his history of treatment for ADHD, diagnosed as a teenager and treated with dexamphetamine. As an adult, he could no longer be prescribed psycho-stimulants. The report recorded that the offender had been an active participant in his treatment and was highly motivated to address the underlying factors contributing to his drug history.
A report from endocrinologist Dr Ann McCormack dated 23 April 2020 confirmed the diagnosis of pituitary tumour in 2012.
Exhibit 1.3 was a copy of the SAR referred to as Exhibit B above.
Exhibit 1.4 was an affidavit sworn by the offender on 14 September 2021, expressing his remorse and contrition for his offending. It set out his history of abuse of illicit drugs and the accumulation of a drug debt. He held his suppliers' drugs as a means to clear that debt. The offender also set out his rehabilitation progress and promised never to "do drugs again".
The affidavit attested to the offender being a fully functional drug abuser with a strong work ethic and the support of his wife and family. On 2 June 2021, he underwent successful surgery for his brain tumour and is now required to receive regular check-ups, regulation of his medication and regular MRIs. He is required to exercise each day to assist in his recovery from surgery. He is also taking hydrocortisone, cephalexin and dymista. The offender has concerns about contracting COVID-19. He also suffers from sleep apnoea and requires a CPAP machine to sleep. He will need follow-up by way of regular check-ups from his endocrinologist and his otolaryngologist for a period of two years.
The offender sincerely apologised for his actions and was deeply remorseful and regretful for his offending and embarrassed by what he had done.
Exhibit 1.5 was a bundle of testimonials from Mr Roger Stevens dated 30 April 2021, Ms M Hamilton dated 8 September 2021 and Mr B Woodward dated 10 May 2021. Each spoke highly of the offender's character and his work ethic, attested to the progress he has made with his rehabilitation, and opined that he is at a low risk of reoffending. He has the support of his family and wishes to turn his life around.
Exhibit 1.6 was a bundle of medical records relating to his brain surgery.
Exhibit 1.7 was six urinalysis reports for the period 10 April 2021 to 7 September 2021, all of which showed negative outcomes.
Exhibit 1.8 was a letter from Dr C Y Goh dated 15 September 2021 noting that the offender suffers from symptomatic obstructive sleep apnoea and requires CPAP treatment, especially in the background of his brain tumour resection. The use of the CPAP machine would put those around him at risk, should he contract COVID-19. If he contracted COVID-19 he would also be at slightly higher risk of oxygen desaturation if he developed ARDS whilst asleep.

The offender's oral evidence

The offender gave evidence that he was now 32 years of age and except for being convicted of one charge of possess prohibited drugs eleven years ago, he had no other relevant criminal history. He deposed that the histories recorded in the reports of Ms Ram and Ms De Santa Brigida were correct, as was the history in the SAR (Ex B). He denied receiving any direct payment for holding the drugs, stating that his remuneration was the removal of his drug debt. He otherwise had no means to satisfy the debt.
The offender gave evidence that he did not source the drugs. Nor did he give directions to anyone else to deal with them. He gave evidence of his financial circumstances. He had a car debt of $40,000 on a bank loan, and savings with his wife of $25,000. He otherwise owned no shares or property.
The offender gave evidence that the sum of $187,000 in cash was held by him for the same period of time as the drugs, namely, one to two months. He had the 104 grams of cocaine in his possession for some time. It was of 10% purity and he was told that his supplier would take it back to cut their drugs. He was unaware at the time that there was any cocaine in it at all. He described it to the psychologist Ms Ram as "jump". He now accepted that it did contain cocaine.
The offender gave evidence that he made frank admissions about the drugs on his arrest. When asked why, he said that he wanted to help the police get it over and done with. In respect of the six mobile phones found on the premises, he gave evidence that some were old phones which have photos and some were work phones which employees had handed back to him; they had nothing to do with drug supply. He had told the police that the Samsung phone was encrypted.
In respect of the matter on the Form 1 of steal property, the offender gave evidence that the abandoned gym was open to the public and accessible and he didn't have any money to buy such equipment. He now realised it was irresponsible and unacceptable to steal the gym equipment. In his ERISP interview, he had told police the location of the stolen equipment.
The offender gave evidence that he became a sole-trader following his release on bail. Steel fabrication was a great passion for him, and his business enabled him to support his family, which was very important. His ADHD had previously caused him to struggle with employment but his present business was a challenging job and kept him very busy.
The offender gave evidence that he appreciated there was a high likelihood he would be placed in custody upon sentence. He was apprehensive about his sleep apnoea condition as he required a CPAP machine nightly to sleep. He had also undergone a nose reconstruction following his arrest and the operation was successful. He was concerned about his ongoing treatment following his brain tumour operation as he was not vaccinated. His immune system was therefore weak and he was concerned about the side-effects of COVID-19.
The offender gave evidence that he had advanced his rehabilitation and was now drug-free, as evidenced by the urinalysis tests. He said he had no need or desire to take illicit drugs. His wife, son and job were motivation for him and he had found counselling extremely helpful.
When released on parole, he would be willing to attempt further drug and alcohol rehabilitation. Finally, he gave evidence that he was extremely embarrassed and remorseful for his actions. It was the worst decision he had ever made and he would never do anything so stupid again, namely, warehouse drugs.
In cross-examination, the offender gave evidence that he incurred his drug debt in 2015 and 2016. It was a sum of $100,000 and he had incurred it over six months. He had been able to obtain cocaine on tick from the same person during that time. He had also held a sum of $187,000 for the same time as he had held the drugs. It was put to him that he held the drugs for a period of five months; however, he said he held them for three months from March 2020. It was put to him that in Exhibit 1.1, Ms Ram recorded a history that he had the drugs for five months. He agreed that history was correct.
It was put to the offender that to hold drugs and money on behalf of other persons for that period of time requires a certain level of trust. He gave evidence that he was actually motivated by fear, in that the people he was indebted to knew where he lived and knew that he would do what they told him to do. He was also asked about the resealable bags and capsules. He gave evidence that he had them in case he was asked to use them to package the drugs, but that he had not used them before.
The offender was asked about his drug rehabilitation with Mindways. He had attended several times and was asked whether he found it easier than he expected, to which he replied, "sort of". He confirmed that he had achieved abstinence five months before he was arrested and was not using whilst he was holding the drugs. He confirmed his early diagnosis of ADHD as a child and confirmed that he had worked and functioned as a normal person whilst he was addicted to drugs.
In re-examination, the offender confirmed that in January 2020 he was not using drugs. He still had the drug debt and had no option but to do what he was told. He confirmed that he was concerned for his family's safety. He gave evidence that he had attended Mindways counselling sessions on more than 12 occasions.

The Crown submissions

The Crown relied on a detailed written outline of submissions, outlining the offences and maximum penalties referred to above. The offender was entitled to a discount of 25% for his early plea of guilty.
The Crown submitted that in assessing the objective seriousness of Count 1, the quantity of the drugs supplied was a paramount consideration, it being an offence of supply large commercial quantity of MDMA. Here, the offender had 1907.5 grams in his possession. The indictable quantity for that drug is 1.25 grams and the large commercial quantity is 500 grams. The drug was stored in two vacuum sealed bags. The offender also had capsules available and made an admission to being prepared to put the drugs into caps if requested. The purity of the drug was relatively high, at 76.5% and 76% respectively for each bag.
The Crown submitted the role of the offender should be assessed by reference to the freezer bags and capsules, together with other indicia of a drug supply operation, including heat sealing machines, scales, rubber bands, six mobile phones and two safes. One of the mobile phones contained the encrypted device "Cipher". Also present was the large amount of money suspected of being proceeds of crime.
Sequence 2 on the Form 1 was an offence of supply 104.1 grams of cocaine. The quantity was more than 20 times the indictable amount for that drug.
The Crown submitted that on the evidence, the offender was ready and willing to package and cap the prohibited drugs for the purpose of supply. The presence of the other drug supply indicia clearly pointed to a role more significant than that of merely minding or couriering the drugs. The indicia of supply point to the offender's role as being one involving the actual supply of drugs in smaller quantities and leads to the inevitable conclusion that this was carried out for financial reward.
The Crown submitted that the offence fell above the mid-range of objective seriousness for this type of offence.
In respect to sequence 3, deal with suspected proceeds of crime, namely $187,500, the Crown submitted the money was located in close physical proximity to the large commercial quantity of drugs. It was bundled in 19 separate bundles. The amount of money was close to double the threshold in s 193C, which increased the criminality. The Crown submitted the offending fell just below the mid-range of objective seriousness for an offence pursuant to s 193C.
The Crown submitted the offender's limited criminal record, with no record of offending for this type, was of reduced significance in drug supply offences.
The Crown submitted that of the two offences on the Form 1, one was wholly unconnected, namely, stealing from a dwelling. The offence was committed in company and constituted brazen criminal conduct given that a large piece of machinery which required disassembly was taken. Sequence 2 on the Form 1 concerned the possession of 104.1 grams of cocaine for the purpose of supply. The street value of the drugs was substantial and the offence would normally require a high level of general deterrence. In taking these matters into account, the court should have regard to the total criminality involved, referring to Nguyen v R [2019] NSWCCA 209 at [58] - [64].
The Crown submitted that the criminal conduct in Count 1 and sequence 3 inform the court of the role of the offender in a wider criminal enterprise. The Crown accepted that an aggregate sentence was appropriate. In referring to the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"), the Crown submitted that general deterrence is of primary importance in sentencing for drug supply matters. Count 1 carried a maximum penalty of life imprisonment and a standard non-parole period of 15 years and thus would lead to a sentence of full-time imprisonment unless exceptional circumstances existed, referring to R v Qi [2019] NSWCCA 73; 277 A Crim R 82.
In her oral submissions, the Crown submitted that the court should not accept the mental health diagnosis referred to by the psychologist in Exhibit 1.1. There was no causal link between the ADHD suffered by the offender and his criminal conduct. At the time of the offending, he was not using drugs, which significantly impacted the offender's submissions.
The Crown conceded that the offender's progress with his rehabilitation meant the court could determine a positive outcome for his prospects of rehabilitation. However, it was submitted this does not go to mitigation, nor does it ameliorate any sentence to be imposed. The fact of the offender's previous drug use gave context as to how the offending came about, namely, that he accumulated a significant drug debt. The Crown submitted this does not diminish the objective seriousness of the offending or in any way mitigate sentence.
The Crown submitted that the offender's diagnosis as a child of ADHD had not affected his long history of employment. He had otherwise led a law abiding life and had been able to function as a normal person. There was no causal link between his mental health issues that would diminish the moral culpability for his offending, or diminish the need for general deterrence in sentencing which was important in drug supply cases.
The Crown submitted that the evidence relating to the offender's sleep apnoea and his need for a CPAP machine would not amount to hardship so as to mitigate his sentence. To that extent, the report of Dr Goh (Ex 1.8) provided little assistance in respect of the offender's need for treatment of his sleep apnoea and the attendant risks caused by COVID-19. With respect to the COVID-19 pandemic, it was a common problem for the whole of the prison population.
The Crown conceded that the court could find special circumstances here, given that it would be his first time in custody and given the conditions of hardship caused by the COVID-19 pandemic.

The offender's submissions

Counsel for the offender also relied on a detailed written outline of submissions. It was submitted he was entitled to a full 25% discount on sentence for his early plea of guilty to each of the charges and in addition a further discount for his demonstrated remorse pursuant to s 21A(3)(i) of the CSPA. The offender made frank admissions to police in relation to each of the charges, directed them to the location of the drugs at the time of his arrest and assisted them in discovering the contents of the two safes and mobile phones on the premises.
It was submitted that the offender had demonstrated insight into the impact of his offending. With respect to the objective seriousness of the offending in Count 1, counsel for the offender submitted that the quantity of the drug should not be a prime or even determinative factor in fixing the sentence, relying on Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64. His role at the time was that of a warehouseman and in that capacity he knew what type of drug it was and was given directions as to how to deal with it. It was submitted that it was of note that police found no evidence of drug lists or financial records or any indication of someone who played a high role in the drug supply hierarchy.
The offender submitted that all factors which bear upon the seriousness of the offence should be taken into account in assessing its objective seriousness. This would include factors such as the offender's mental condition at the time of the commission of the offence. It was submitted that the offender's mental health diagnosis and drug addiction were relevant considerations in the sentencing exercise, referring to DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194. It was submitted that the offender's mental condition was relevant to a reduction in the seriousness of the offending in that it may reduce his moral culpability, providing his condition contributed to the commission of the offending in a material way. Here, it was submitted his mental condition and his substance abuse disorder affected his ability to exercise self-control and judgment and thus contributed to the development of his drug addiction.
It was also submitted that less weight should be given to general deterrence, and given the offender's insight, his cooperation with police and the progress he had made in rehabilitation, the need for specific deterrence was diminished.
Counsel submitted that as a matter of general principle of sentencing, the offender's drug addiction may affect the determination of the appropriate sentence. The offender first used cocaine when he was 18 years of age and continued that use constantly over a 13 year period, together with use of cannabis. It was submitted that his drug addiction may explain his impulsivity, state of mind and capacity to exercise judgment.
It was submitted that there was a causal link here, given that his addiction started at 18 years of age when he was no longer legally medicated for his ADHD.
Counsel highlighted the progress the offender had made with his own rehabilitation. He had also provided recent evidence in the form of urinalysis. Prior to his attendance at Mindways, the offender had never previously sought or obtained drug rehabilitation. Those factors, taken together with his remorse, lack of reoffending since the offence, strong family support and strong work ethic, meant the court could be confident that he was at a low risk of reoffending.
The offender submitted that his physical health considerations should be taken into account in mitigation of sentence. Imprisonment will be a greater burden on the offender in respect of his ADHD, sleep apnoea and his recovery from brain surgery.
Counsel also submitted that COVID-19 was relevant to the sentencing exercise, given the impact it has had on correctional centres in NSW. It was the offender's first time in custody and he will be required to undergo a mandatory quarantine period of 14 days, which would add to the hardship of his custody. It would also result in the cancellation of his rehabilitation program.
Finally, it was submitted that the court should find special circumstances pursuant to s 44(2) of the CSPA as given his need to undergo drug rehabilitation treatment, his good prospects of rehabilitation would be assisted by a longer period on parole. This was his first custodial sentence and he suffered a number of mental health issues, together with physical health issues.
In his oral submissions, counsel submitted there was a causal connection between the offender's drug addiction and the offending conduct, given that he had incurred a drug debt of $100,000. His drug use was related to his ADHD condition and notwithstanding that he was not using in 2020, he had still accrued a large drug debt and was addicted. Ms De Santa Brigida confirmed that he had struggled previously with employment and focus and suffered a real disability. Thus it was submitted the causal relationship with his drug abuse and the offending was established.
With respect to his rehabilitation, counsel submitted that the background here was important. The offender had developed a serious drug problem over a number of years. Amongst other things, this led him to require nasal reconstruction surgery and it has been very much to his credit that he was able to rehabilitate. In his sworn evidence, the offender had told the court that he feared for his family's safety and did not have the means to satisfy the debt. Further, there was no evidence of him having money or lifestyle from drug supply offences. He and his wife had a small deposit for a house and a motor vehicle loan. There was no expensive lifestyle or trappings of wealth arising from profits of a drug enterprise.
It was submitted the offender had made a frank explanation to police and to the court of his offending. There was no challenge to him being genuinely remorseful, which entitled him to a discount beyond the 25% utilitarian discount for his early plea of guilty.
Whilst the offender accepted the inevitability of a custodial sentence, there were serious health issues relating to his sleep apnoea and recovery from surgery for his brain tumour. Further, he would suffer hardship in custody given that the gaols were not functioning as they used to. It was submitted that they were "overloaded" because of the COVID-19 pandemic and severe restrictions were placed on prisoners including long periods of confinement. It was submitted the court was entitled to take the offender's mental health issues into account and in his case, they constituted an enormous burden for the offender to deal with in custody. It was further submitted that his time in custody will be mentally very burdensome on him, given his mental health issues and diagnoses.

Determination

Section 3A of the CSPA sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community."
The objective seriousness of the offending in respect of Count 1 must be assessed in light of all of the circumstances outlined in the agreed facts, including the quantity of prohibited drugs, the purity of those drugs and the role of the offender in the criminal enterprise as far as it can be determined. The total amount of MDMA located was 1907.5 grams, nearly four times the prescribed commercial quantity of 500 grams. It also had a high level of purity as outlined above (76.5% and 76% respectively for the two lots). Also located on the premises were indicia of a drug supply operation, including two sets of scales, three heat sealing machines, freezer bags, gelatine capsules and a box containing rubber bands. Given the offender's admissions, it was clear that he was required to repackage the drugs for ongoing supply if asked to do so.
As is often the case, the totality of the drug operation is unknown. However it is clear that the offender had possession of the illicit drug for a number of months. Having regard to all of those circumstances, including the large quantity and high purity of the drugs, I find the offending fell within the mid-range for an offence pursuant to s 25(2) of the DMTA.
The objective seriousness of the offending in sequence 2, deal with property proceeds of crime greater than $100,000, was also relatively high. The amount of $187,500 was almost twice the prescribed amount and the funds were clearly related to the drug enterprise. It clearly constituted serious offending.
In respect of the matters on the Form 1, the offence of supply prohibited drug contrary to s 25(1) of the DMTA concerned the offender's possession of 104.1 grams of cocaine. This was more than 20 times the indictable amount for that drug, although I note the purity was 10%. The offending fell below the mid-range for an offence pursuant to s 25(1) of the DMTA and towards the middle of the low range. The objective seriousness of the offence of steal property in dwelling house less than $2000 in value, contrary to s 148 of the Crimes Act 1900, fell towards the lower end of the range of objective seriousness for an offence pursuant to s 148.
General deterrence is particularly important in sentencing for drug supply offences. The fact that Parliament has set a maximum penalty of life imprisonment and a standard non-parole period of 15 years imprisonment for the offence in Count 1 is an indication that this offence is one of the most serious in the criminal calendar. That is reflective of the widespread damage caused to the community by the dissemination of prohibited drugs. A clear message must be sent to likeminded members of the community that, given the maximum penalties and standard non-parole period prescribed, the courts will impose condign punishment in appropriate cases. Specific deterrence is also important in that the offender must understand the serious nature of his offending, the damage caused to the community by it and his exposure to increasingly severe penalties if he were to reoffend.
I accept that the offender was diagnosed with ADHD whilst at school and prescribed appropriate medication in his early teens. As an adult, he was not medicated for that condition and for some time he had a truncated employment history. Notwithstanding that, since 2014 he has worked as a steel fabricator and now operates a fabrication business as a sole trader. Further, despite his spiralling drug use, he was able to function normally. I therefore do not accept that there was a causal connection between the offender's ADHD condition and his offending conduct. Notwithstanding that it may have been a factor in his abuse of prohibited drugs, the offender on his own evidence had been abstinent from drugs for between four and five months prior to his arrest, and had for a number of years been functioning normally. I accept that the background and context of the offending conduct was his accumulation of a drug debt of $100,000.
I therefore find that the offender's mental health issues do not diminish his moral culpability for his offending here. Nor do they impact significantly on the need for general deterrence, given the history outlined above.
The offender does have significant physical health issues which are relevant to his sentencing. I accept that he has been diagnosed with sleep apnoea and requires a CPAP machine to sleep. He has also recently undergone brain surgery to remove the pituitary tumour and requires ongoing supervision from his specialist post-surgery, regulation of his medication and MRI scans. Whilst Justice Health has a statutory duty to provide reasonable care for inmates in custody, these services are likely to be outside its resources and will need to be accessed externally. Further, the COVID-19 pandemic has necessitated onerous conditions for custodial sentences. Corrective Services have imposed measures for the safety for the whole of the prison population which severely restrict the conditions of custody including lockdowns and limitation on access visits and educational programs. These onerous conditions also impact on the mental health of inmates and create additional hardship for young and first-time offenders - see DPP (Cth) v Saadieh [2021] NSWSC 1186. I am satisfied that these matters, together with the offender's mental health issues, mean that he will suffer real hardship in custody. I therefore intend to take this into account in mitigating his sentence.
The offender is entitled to a 25% utilitarian discount on sentence in respect of his plea of guilty. I am also satisfied that he is entirely remorseful for his criminal conduct. I was impressed with the evidence given by the offender as to his remorse and contrition and the manner in which he has engaged in his rehabilitation to address his drug abuse issues. He is clearly motivated to lead a drug-free and law abiding life and has established his own business using the skills he has developed in steel fabrication.
I accept the Crown's submission that the offender's limited criminal record, which contains no record of offending of a similar type, is of reduced significance in drug supply offences. I therefore find that his criminal history does not entitle him to leniency in the sentencing process here.
I am satisfied that the offender has made considerable progress with his rehabilitation, that he has engaged fully with the rehabilitation program outlined by Ms De Santa Brigida and that he has been an active participant in his treatment. I accept that he is highly motivated to address the underlying factors contributing to his drug addiction. I therefore find that he has reasonable prospects of rehabilitating. I also find that he is a low risk of recidivism, however, this is inextricably bound with his rehabilitation and his successful relapse prevention. I have also taken into account his otherwise good character as outlined in the testimonials above.
As outlined above, the COVID-19 pandemic has created difficulties in the management of the prison population so as to ensure their safety. The courts have recognised the hardship this has caused to prisoners, both generally and during the more recent introduction of the Delta strain which has caused a number of positive cases in correctional facilities. This will not only lead to hardship for this offender in terms of the fourteen day quarantine period in isolation, but given his particular health problems, may exacerbate the risk to his physical and mental health wellbeing. While the maximum penalties imposed by Parliament and the standard non-parole period remain a guidepost in the sentencing procedure, notwithstanding that the offending in Count 1 was objectively very serious so as to attract the standard non-parole period, it should not apply here.
I have taken into account the maximum penalty of life imprisonment and standard non-parole period of 15 years imprisonment in respect of Count 1 and the maximum penalty of five years imprisonment in respect of sequence 2 as guideposts in the sentencing process. I have also certified that I have taken the matters on the Form 1 referable to Count 1 into account on sentence.
I am satisfied that the threshold in s 5 of the CSPA has been crossed and no sentence other than imprisonment is warranted in all of the circumstances. I find special circumstances are established pursuant to s 44(2) of the CSPA on the basis of the offender's physical health and mental health issues, his need for ongoing treatment and rehabilitation and the fact that this is his first time in custody.
This is an appropriate case for the imposition of an aggregate sentence pursuant to s 53A of the CSPA. For the sake of transparency in the sentencing process, I am to set out the following indicative sentences which take into account the objective seriousness of the offending, the 25% utilitarian discount on sentence and the subjective matters set out above which in this case will result in a more lenient sentence than would otherwise be imposed due to the offender's underlying health issues. The indicative sentences are as follows: Count 1 - supply large commercial quantity of prohibited drug, being 1907.5 grams of MDMA pursuant to s 25(2) of the DMTA - five years imprisonment and a non-parole period of two years and six months imprisonment. Sequence 2 - deal with property proceeds of crime greater than $100,000 ($187,500) pursuant to s 193C(1) of the Crimes Act 1900 - 18 months imprisonment.
In assessing the aggregate sentence to be imposed, principles of proportionality and totality in sentencing must be addressed. Any aggregate sentence must be "just and appropriate" to the totality of the offending behaviour. In R v Van Ryn [2016] NSWCCA 1, the Court of Criminal Appeal had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with proper regard to the totality of the criminality involved: "[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows: The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently, a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation, a sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences."
The Court went on to emphasise the need to maintain public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]: "There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
Having regard to the totality of the criminality here, a concurrent sentence is called for as the offending in both charges arose from the same course of criminal conduct. I therefore intend to impose an aggregate sentence of five years imprisonment with a non-parole period of two years and six months imprisonment.

Orders

I hereby make the following orders: 1. You are convicted of the following offences: Count 1 - supply large commercial quantity of prohibited drug, being 1907.5 g of methylenedioxy-methylamphetamine ("MDMA") pursuant to s 25(2) of the Drug Misuse and Trafficking Act 1985 ("DMTA"). Sequence 2 - deal with property proceeds of crime greater than $100,000 ($187,500) pursuant to s 193C(1) of the Crimes Act 1900. 1. I sentence you to an aggregate sentence of five years imprisonment, with a non-parole period of two years and six months imprisonment. The non-parole period will commence today and expire on 27 April 2024. 2. The balance of term will be a period of two years and six months expiring on 27 October 2026. 3. I certify that I have taken into account the following matters on the Form 1: 1 Supply prohibited drug (104.1 grams of cocaine) contrary to s 25(1) of the DMTA. 2 Steal property in dwelling house less than $2,000 in value, contrary to s 148 of the Crimes Act 1900.

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