Regina v Lee Clark

Section 400.4(1) Offence - Count 1

1. On 26 November 2010 Ms Callaghan an associate of the offender leased a safety deposit box X089 at Kennards Self Storage in Camperdown. The offender was listed on the lease as an alternate contact and had access to the safety deposit box. Ms Callaghan told the police that she leased the safety deposit box at the request of the offender and did not have access to it.
2. Between 5 March 2014 and 20 March 2014 a number of conversations that the offender had with others were lawfully recorded. During one conversation the offender discussed the idea of having another person purchase a new car on his behalf by paying with cash in instalments of amounts less than $10,000 to ensure that the transactions did not come to the attention of the Australian Taxation Office.
3. On 25 March 2014, the offender had a number of conversations with Mr Allison during which he made reference to having large sums of money kept in a safety deposit box.
4. On the evening of 26 March 2014, police executed search warrants on the safety deposit box and at the offender's home. The sum of $120,100 in cash was recovered from the safety deposit box. At the offender's home police located the keys for the padlock on the safety deposit box, and more cash in the sum of $23,880. The total amount of the cash recovered was $143,980.

Section 25(2) and Form 1 offences

1. A number of other items were found at the offender's home including: 1. 12.7g cocaine (average purity 49%) found in multiple resealable bags in a hidden cavity under the kitchen bench; (Form 1) 2. 7.8g MDMA (average purity 76%) found in a hidden cavity under the kitchen bench; (Form 1) and 3. keys to the padlock used to secure the garage at the premises in Paddington (the garage).
2. On the evening of 26 March 2014, police executed a search warrant at the garage. Police located and seized 1. drug paraphernalia, including an hydraulic pill press, a booklet entitled "Cocaine Handbook", a set of electronic scales, various sized clip sealed plastic bags, a Sunbeam Foodsaver vacuum and 563.9 grams of lignocaine a substance commonly used to "cut" cocaine for supply; 2. 417g cocaine (average purity 58%) packaged in bags; (Count 2) 3. 402.6g MDMA (average purity 72%) packaged in capsules; (Count 3) 4. 1.6g MDMA (14.9% purity); (Form 1) 5. 59.127kg of various anabolic and androgenic steroids. (Count 4)

Section 25A(1) offence - Count 5

1. At around 2.40pm on 19 March 2014, a series of coded text messages sent from the offender's mobile telephone number to a mobile telephone number used by a Mr Dolan were lawfully intercepted. In these messages, Mr Dolan requested 3 grams cocaine and advised the offender that he would pay him $8,400.
2. At about 3.45pm that day, the offender met Mr Dolan at the Commonwealth Bank at Darling Quarter. He gave Mr Dolan 3 bags, each containing one gram of cocaine. Mr Dolan gave the offender $8,400 cash.
3. On 25 March 2014, Mr Dolan and the offender exchanged a number of text messages. Shortly after 12.45pm on 25 March 2014, the offender met Mr Dolan in the same location. The offender gave Mr Dolan 2 bags, each containing 1 gram of cocaine, in a sealed white envelope. Mr Dolan gave the offender $1,500.
4. The offender and Mr Dolan exchanged a number of text message on 26 March 2014. That evening at about 7.34pm, the offender drove to the Caltex Service Station at 488 Old South Head Road, Rose Bay. At around 7.39pm, Mr Dolan arrived by car at this location. Mr Dolan used the ATM located at the service station and then entered the offender's vehicle. Mr Dolan paid the offender $1,800 and the offender gave Mr Dolan 6 bags, each of which contained one gram of cocaine.
5. On 26 March 2014 the offender was arrested at his home and has been in custody since that time.

Psychological Report

1. The court received a psychological report of Sam Borenstein, clinical psychologist, dated 11 July 2016 that can be summarised as follows.
2. The psychologist saw the offender once on the 10 July 2016 at Parklea Correctional Centre for the purpose of preparing the report.
3. The offender was born in London and has a younger sister who is married with 2 children. His mother is still alive and lives in the United Kingdom. His father died this year, whilst he was in custody.
4. The offender reported having a happy childhood until the age of about 11 when his father ceased work, placing the family under financial pressure. His father began to self-medicate using alcohol.
5. The offender finished school and completed a Diploma in Fitness. At age 22 he enrolled at Southbank University and completed a degree in Sports Science with a High Distinction average. He moved to Perth, initially intending to return to London.
6. The offender began monitored use of steroids at age 27 with regards to liver function. He separated from his wife Annie aged 30, and began using recreational drugs at this time.
7. The offender reported to the psychologist that he had a positive relationship with Annie for 5 years, the two being married for 3.5 years. He said that the relationship broke down when Annie put pressure on him to have children. Annie fell pregnant when the offender was with a new partner. DNA testing was carried out and Annie informed the offender that he was the father of the child.
8. When the child was one year old the offender's new partner pressured him to repeat the DNA testing. This DNA testing showed that the offender was not the father, however he has maintained a parental role. The offender's new partner exerted pressure on the offender not to have contact with the child.
9. The offender's new partner had two children and the offender got on well with them. He described his new partner as controlling and financially irresponsible, and their relationship as dysfunctional. They split on several occasions, but reconciled. They bought a house together which resulted in the offender becoming over-committed financially. The offender reported using increasing amounts of drugs while they were together and becoming isolated from his friends.
10. The relationship ended following an argument and the offender left the house for around 6 months. He reported that after 6 months she left with everything and that he could not sell the house. The offender reported being in considerable debt having financially supported her and the children. He was left with a significant credit card debt.
11. The offender did not pay the mortgage for 6 months. The bank sold the property. The offender was left with a debt in excess of $350,000 and was forced to declare bankruptcy.
12. The offender was served with a bankruptcy notice at work which led him to attempting suicide on 15 March 2013. He consumed a number of drugs, went to his ex-wife's property and an ambulance was called. He was admitted to St Vincent's Hospital for one week. The offender saw consultant psychiatrist Dr Peter Sternhell during this time and on at least 3 subsequent occasions.
13. The offender reported that his depression was unabated and that he used illicit drugs including steroids, cocaine, MDMA, GHB and occasionally Xanax to self-medicate. He accidentally overdosed on GHB in February 2014. The offender reported that he also engaged in binge drinking and gambling. He continued working during this time.
14. In September 2013, the offender began his offending behaviour to gain financial security and a supply of drugs. At this time he continued to binge drink, used steroids daily, cocaine at least 3 times per week, and MDMA and GHB regularly. The offender described this conduct as 'escapism' and acknowledges that his untreated depression contributed to his offending.
15. The offender described prison as 'extremely stressful' and has suffered sleep disturbance, appetite disturbance, weight loss and an overall deterioration in his health since he has been incarcerated. The offender has had multiple hip surgeries, knee surgery and a discectomy. He suffers chronic back pain which was treated by osteopathy prior to him going to prison. He has researched self-development and meditation while in prison.
16. The psychologist opined that the offender displayed severe symptoms of depression and marked potential for emotional and/or behavioural problems. The psychologist found the offender to be 'disciplined and committed' and opined that he is highly unlikely to reoffend.

Dr Peter Sternhell Report

1. Dr Sternhell wrote a report while the offender was admitted at St Vincent's Hospital following the March 2013 suicide attempt. Dr Sternhell diagnosed the offender as having an adjustment disorder which had been complicated by substance intoxication prior to the suicide attempt.

Character references

1. The offender relied on 21 character references from a collection of people, including his ex-wife, his personal training clients, and the prison chaplain.
2. Annie Clark, the offender's ex-wife is a psychologist. In her letter to the Court she wrote that the offender has offered her and her son emotional support following the breakdown of their relationship. She confirmed that the offender had suffered from substance abuse disorder relating to cocaine and that it had culminated in a suicide attempt in March 2013. The offender has expressed remorse to her and an understanding that he needs to change to avoid a premature death.
3. The offender's personal training clients all expressed a close relationship with him. They described him as a motivating force and a dedicated professional. Many of them expressed surprise as to the position that he now finds himself in.
4. The prison chaplain noted that the offender has completed the positive lifestyle program offered by the Salvation Army. The offender has also attended AA meetings and works as a reception sweeper, a trusted position in the gaol. He has been described in his custodial management file as a hard worker, able to follow directions and as demonstrating a high standard of behaviour and co-operation. The chaplain sees the offender a few times a week has observed that he is interested in reading and self-development and that he spends his time in custody constructively.

Pre-Sentence Report

1. The Court received a Pre-Sentence Report dated 4 November 2015. The offender gave the author of the PSR a history consistent with that he gave to Mr Borenstein and I will not repeat those matters.
2. The offender has been employed in the fitness industry since he was 18 years of age.
3. The offender reported that he began consuming alcohol aged 17, at which time he drank approximately 20 standards drinks in one session per week. This continued until he was 18 when the offender ceased alcohol use. The offender reported that he resumed alcohol use aged 31 following his divorce, drinking around 20 standard drinks once per week. He began drinking 20 standard drinks twice a week around 12 months prior to his incarceration.
4. The offender reported to the author of the PSR recreational drug use, as well as using non-prescribed pain medication. He would take 10 doses of that medication three times per week.
5. The offender admitted that his substance use became problematic around 12 months prior to his incarceration. He communicated a willingness to engage in drug and alcohol intervention.
6. The offender reported developing a gambling addiction in 2012. At this time he would spend between $1,000 and $2,000 per week on poker machines. This behaviour continued until his incarceration. The offender told the author of the PSR that he would be willing to engage in therapy to address his gambling addiction.
7. The offender was assessed as a medium/low risk of reoffending. The author of the PSR opined that the offender expressed insight into the impact that his substance use and gambling issues have had on his life. She opined that he has accepted responsibility for his actions and understood how his choices and addictions resulted in his current situation.

Consideration

1. In sentencing the offender for the section 400.4 (1) offence, I must have regard to Part IB Crimes Act 1914 (Cth) and in particular section 16A. A court determining a sentence in respect of any person for a federal offence must impose a sentence that is of a severity appropriate in all circumstances of the offence: section 16A(1). However, section 16A(1) does not stand alone and should be read in conjunction with section 16A(2), Wong v The Queen (2001) 207 CLR 584 at [71] per Gaudron, Gummow and Hayne JJ.
2. In section 16A(2) subsections (j), (k) and (n) refer to the purposes of sentencing including deterrence, punishment and rehabilitation. Whilst section 16A(2)(j) refers to specific deterrence, it is trite law that the court must have reference to general deterrence which has been said to be "a matter so obviously relevant sentencing" that it must be taken into account, Putland v The Queen (2004) 218 CLR 174 at [12], R v Paull (1990) 20 NSWLR 427 at 434 and DPP (Cth) v El Karhani (1990) 21 NSWLR 370 at 378.
3. In sentencing the offender for the other offences, I must have regard to the objects of the Crimes (Sentencing Procedure) Act 1999 set out in section 3 and the purposes of sentencing set out in section 3A, together with the aggravating and mitigating factors provided for in section 21A, such as are established by the evidence to the requisite standard of proof.

Objective Seriousness

1. The objective seriousness of the section 400.4(1) offence is determined by the amount of money involved, the mental element proved for the offence and the maximum penalty: R v Ly [2014] NSWCCA 78 at [86]. In the present case the amount of money was in excess of $100,000 but not significantly so. The offender knew that the money was the proceeds of crime because he had accepted it in return for the sale of prohibited drugs. There is no evidence from which I can infer how many transactions were involved in the offender possessing the cash, however it cannot be said to be a case of isolated offending. The maximum penalty is 20 years imprisonment and/or a fine of $204,000. The receipt of the money from the sale of prohibited drugs involved significant planning. The section 400.4(1) offence is in the low range of objective seriousness.
2. The section 25(2) offences involved possessing the drugs for the purpose of supply, agreeing to supply them and actually supplying various quantities of them. The offender had a substantial amount of the drugs for the purposes of supply. He had approximately 1.6 times the commercial quantity of cocaine, 3.2 times the commercial quantity of MDMA and over 10 times the commercial quantity of steroids. The offender was recorded offering for or agreeing to supply each of the cocaine, MDMA and steroids on multiple occasions for each drug during the period 7 February 2014 to 21 March 2014. The offender had the ability to supply the drugs corresponding to each offer or agreement. The offender was recorded actually supplying each of the drugs more than once each in the period 7 February 2014 to 21 March 2014. The offences were committed for financial gain and for the supply of drugs for personal use. The offender was involved in preparing the drugs for sale by cutting the cocaine with other substances, putting the MDMA into capsules, weighing the cocaine and putting it into plastic bags for distribution, packaging the steroids in vials for sale and dealing with people to supply the drugs. The section 25(2) offences required and demonstrated an extensive amount of planning. The offender on-supplied up to 5 people with cocaine that they would cut and sell to end users. He profited from those actions and was the principal of that operation relating to the supply of the cocaine. Overall he was the principal of a mid-level supply operation supplying cocaine, MDMA and steroids. He was a regular user of the drugs supplied by him and the operation was partially conducted for that purpose. In my view the supply of the steroids was the most serious of the offences being in the mid-range of objective seriousness, followed by the supply of MDMA and the supply of cocaine, which were both approaching the mid-range of objective seriousness and I would equate them.
3. An offence under section 25A is generally considered to be more serious than an offence of supply simpliciter under section 25. An offender charged with a section 25A offence cannot rely on an argument that the act of supply was an isolated event. The maximum penalty provided for is a clear legislative intention to discourage the ongoing trade in drugs, which depends entirely upon the availability of a person such as the offender. The quantity of the drugs involved in the section 25A offence was not large. The facts relating to the section 25A offence are limited to the supply of cocaine to Mr Dolan on 3 occasions within a 7 day period. The offender was the only person involved in that supply which was arranged by the exchange of text messages. The section 25A offence was in the low range of objective seriousness.

Deterrence

1. General deterrence is of significance in sentencing offenders for serious drug supply offences. The availability of drugs is pervasive in the community and persons considering committing these types of offences should be aware by reference to the penalties given for them that they will meet with severe punishment if they choose to participate in the supply prohibited drugs.
2. Similarly, serious money laundering offences warrant severe punishment to reflect a very significant degree of general deterrence.
3. General deterrence may be attributed less weight in cases where the offender suffers from mental condition because such an offender is not an appropriate person to be made an example of: Muldrock v R (2011) 244 CLR 120 at [53]-[54]. The authorities do not mandate an entire disregard of general or specific deterrence by the sentencing judge: The extent of the reduction depends on the circumstances of the case: Palijan v R [2010] NSWCCA 142 at [27], R v Scognamiglio (1991) 56 A Crim R 81, R v Wright (1997) 93 A Crim R 48 and R v Lawrence [2005] NSWCCA 91.
4. The factors that are relevant to the assessment include the nature and extent of the mental condition suffered, whether the offender acted with knowledge of what they were doing and the gravity of their actions and whether the community requires protection from the offender by reason of the mental condition suffered.
5. There is independent evidence from Dr Sternhell that the offender was suffering from an adjustment disorder with features of substance abuse in March 2013. The extent of that condition was sufficient to lead to a serious suicide attempt. The offender had suffered a series of relationship, family and financial stressors that were exacerbated by significant poly substance abuse and a gambling addiction. I also accept the opinion of the psychologist that he suffers from severe depression and has done so for some time. I am satisfied on the balance of probabilities that there was a causal connection between the nature and extent of his mental condition and the offending conduct. I am also satisfied on the balance of probabilities that the offender's mental condition put him in a position where he was available to be introduced to the offending conduct by criminal elements. There is no evidence to suggest that he did not understand the gravity of his actions or that they were wrong. I am satisfied on the evidence that the offender is a low risk of re-offending and the community does not require protection from him in the future.
6. This is a case in which the offender's mental condition has the effect of reducing his moral culpability and thereby general deterrence, retribution and denunciation should be afforded less weight: Muldrock v The Queen (2011) 244 CLR 120 at [53] and DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177].
7. Specific deterrence remains relevant but can be afforded less weight. The offender's drug and gambling addictions appear to be in remission since he has been incarcerated. He would benefit from participation in structured courses to ensure that those matters are resolved. He has indicated that he is willing to participate in such courses. He has completed the positive lifestyle program whilst in custody and shows good insight into his previous choices that led to the offending conduct. He has demonstrated himself to be a compliant prisoner.

Aggravating factors

1. The offences involved a series of criminal acts: section 21A(2)(m) Crimes (Sentencing Procedure) Act 1999. Each of the section 25(2) offences and the section 400.4(1) offence involved a series of criminal acts.
2. The offences were part of a planned or organised criminal activity: section 21A(2)(n) Crimes (Sentencing Procedure) Act 1999.
3. The offences were committed for financial gain: section 21A(2)(o) Crimes (Sentencing Procedure) Act 1999.

Mitigating factors

1. The offender does not have any record of previous convictions: section 16A(2)(m) Crimes Act 1914 and section 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. This should be assessed by reference to the fact that the offender was aged 42 at the time of committing the offences.
2. The offender was a person of good character: section 16A(2)(m) Crimes Act 1914 and section 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. This is demonstrated not only by his lack of prior convictions but also in the evidence of the offender's character witnesses.
3. The offender is unlikely to re-offend: section 21A(3)(g) Crimes (Sentencing Procedure) Act 1999. The psychologist and the author of the PSR assessed the offender as a low risk of re-offending. I am satisfied on the balance of probabilities that the offender is unlikely to re-offend.
4. The offender has good prospects of rehabilitation: section 16A(2)(n) Crimes Act 1914 and section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender's gambling and drug addiction has been in remission whilst he has been in custody. He has demonstrated insight into those addictions and expressed a willingness to participate in rehabilitation. He has completed the positive lifestyle programme and engaged with a psychologist whilst in custody. He has demonstrated a change in attitude towards life. I am satisfied on the balance of probabilities that the offender has good prospects of rehabilitation.
5. The offender has demonstrated remorse: section 16A(2)(f) Crimes Act 1914 and section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender has accepted responsibility for his actions and has expressed his remorse to the psychologist, the author of the PSR and to his character witnesses. I am satisfied on the balance of probabilities that the offender has expressed genuine contrition and remorse.
6. The offender entered a plea of guilty: section 21A(3)(k) and section 22 Crimes (Sentencing Procedure) Act 1999. For Commonwealth offences the Court must consider the offender's willingness to facilitate course of justice and not the utilitarian value of the plea of guilty: Cameron v The Queen (2002) 209 CLR 339 at [14]. In assessing the willingness of the offender to facilitate the course of justice the strength of the Crown case against the offender is a relevant consideration: Danial v R [2008] NSWCCA 15 at [27]-[28]. That enquiry may reveal whether the plea was a recognition of the inevitable or truly motivated by willingness to facilitate the course of justice: Lee v R [2012] NSWCCA 123 at [58]. As part of facilitating the course of justice the court can also take into account the fact that the guilty plea has saved a witness or witnesses from giving evidence at trial: Cameron at [79]. The Court is not required to specify quantifiable discount for the offender's plea of guilty in relation to a Commonwealth offence but to do so is not an error: Lee at [58] and Markarian v The Queen (2005) 228 CLR 357 at [24]. I am satisfied that the offender's plea of guilty represented a willingness to facilitate the course of justice and that the appropriate discount to be applied for the section 400.4(1) offence is 25%.
7. For the State offences the offender is entitled to a discount on penalty that reflects the utilitarian value of that plea. The extent of the discount should generally be assessed in the range of 10-25%, but that is only a guide. The primary consideration in determining where in the range particular case should fall, is the timing of the plea so that the earlier the plea the greater the discount: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount in this case is 25%.

Totality

1. The facts of the offences support the finding that the offender was operating a mid-level supply operation. He was involved in supplying drugs on a wholesale basis as well as to end-users. This is a case where there must be some accumulation of the penalties imposed to reflect the supply of the various drugs and to reflect the different criminality involved in the offences to which the offender has pleaded guilty. I have had regard to the principle of totality in the context of the objective seriousness of the offences, the maximum penalties, the standard non-parole periods and the subjective matters.

Penalty

1. I have had regard to section 17A(1) Crimes Act 1914 and section 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that after having considered all other available sentences that no sentence other than a sentence of imprisonment is appropriate in all the circumstances of the case. The reasons for this finding are that: (a) the offences committed are objectively serious; (b) there is a need for general deterrence although it is reduced by reference to the mental condition of the offender; (c) there is a need for denunciation of the offending conduct; and (d) that whilst the subjective considerations relating to the offender are persuasive they are necessarily subsidiary to the duty of the Court to ensure that he is given a punishment of appropriate severity.
2. The following terms of imprisonment are appropriate: Count 1 3 years and 4 months; Count 2 5 years and 4 months; Count 3 5 years and 4 months; Count 4 4 years; Count 5 6 years.
3. Each of those terms will be discounted by 25% to reflect the plea of guilty.
4. I find that there are special circumstances. This is the offender's first time in custody. He requires treatment for drug and gambling addictions and depression. The offender has good prospects of rehabilitation.
5. The offender is convicted on all counts.
6. I take into account the matters contained on the Form 1 certificate.
7. In relation to Count 1 the section 400.4(1) offence the offender is sentenced to imprisonment for 2 years and 6 months. I decline to make a recognizance release order because the offender will be serving a sentence for the State offences being Counts 2 to 5 I will impose.
8. In relation to Count 2 the section 25(2) offence relating to the cocaine the offender is sentenced to imprisonment for 4 years with a non-parole period of 2 years and 8 months to date from 26 March 2015.
9. In relation to Count 3 the section 25(2) offence relating to the MDMA the offender is sentenced to imprisonment for 4 years with a non-parole period of 2 years and 8 months to date from 26 September 2015.
10. In relation to Count 5 the section 25A offence the offender is sentenced to imprisonment for 3 years with a non-parole period of 2 years to date from 26 September 2016.
11. In relation to Count 4 the section 25(2) offence relating to the steroids the offender is sentenced to imprisonment for 4 years and 6 months with a non-parole period of 1 years and 6 months to date from 26 September 2017.
12. The overall effective sentence I have imposed is one of 8 years imprisonment with a non-parole period of 5 years to date from 26 March 2014. The offender will be eligible to be released on parole on 25 March 2019.

Amendments 23 August 2016 - Formatting error. Removal of double sub-paragraph numbering 07 September 2016 - Sentence for Count 1 corrected pursuant to sections 19AH and 19AHA Crimes Act 1914 (CTH) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 September 2016