Blankevoort v The The Queen

[2022] NSWDC 571

District Court

New South Wales

Medium Neutral Citation:

Blankevoort v R [2022] NSWDC 571

Hearing dates:

2 August 2022

Date of orders:

2 August 2022

Decision date:

02 August 2022

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

See pars [30]-[31].

Catchwords:

CRIME – APPEAL – SEVERITY OF SENTENCE – Drug trafficking – Whether the custodial sentence ordered appropriate – whether appropriate reductions for Early Appropriate Guilty Plea.

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes Act 1900 (NSW)

Cases Cited:

Nil.

Texts Cited:

Nil.

Category:

Sentence

Parties:

Appellant – Christopher Blankevoort
R - Crown

Representation:

Appellant – Mr Maxton of LegalAid NSW
R – Ms O’Connell of the Office of the Director of Public Prosecutions (NSW)

File Number(s):

2021/00330224

Publication restriction:

Nil.

 Decision under appeal 

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

6 April 2022

Before:

Milledge LCM

File Number(s):

2021/00330224

Judgment

1. HIS HONOUR: This is an appeal from a sentence passed by Milledge LCM sitting in the Local Court at Waverley on 18 May 2022. The Appellant was charged with seven offences. Her Honour imposed the sentence now in question in respect of the sequence 1 offence. The sequence 1 offence was that on 17 November 2021, at Maroubra in this State, the Appellant did supply a prohibited drug, namely methadone. The quantity of the methadone was greater than the indictable quantity, but less than the commercial quantity. The trafficable quantity of methadone is 3 grams, the indictable quantity of methadone is 5 grams, and the commercial quantity is 500 grams. The exact weight of the methadone supplied was not in the facts presented either in the Local Court or in this Court.

2. The other six offences of the seven charged were also dealt with by her Honour. In respect of sequences 2 and 3, her Honour merely recorded a conviction pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999. In respect of sequences 4, 5, 6 and 7, her Honour took those into account on a Form 1. The matters taken into account on the Form 1 were the crimes ascertained on 19 November 2021 when the police executed a search warrant at the Appellant’s place of residence.

3. Sequence 4 was that in his premises at Pyrmont, he had nine Seroquel pills which might be reasonably suspected of being stolen or otherwise unlawfully obtained. Sequence 5 was that at Pyrmont he had certain property, a box of rings, which might be reasonably suspected of being stolen or otherwise unlawfully obtained. Sequence 6 was that at Pyrmont on the same day, he did have in his possession a prohibited drug, namely methamphetamine. Sequence 7 was that at Pyrmont on the same day, he did have in his possession a prescribed restricted substance, namely Seroquel, the chemical name of which is quetiapine. Relevantly, the Appellant had in his possession at the time of the execution of the search warrant prohibited substances Seroquel and methamphetamine as well as was thought to have been stolen.

4. The facts are these. At the relevant time the Appellant was 42 years old. He was known to a couple residing in a flat in Anzac Parade Maroubra. The male was Mr Curtis Dubois, and that man’s partner was Ms Lucy Martin. There also resided a cousin in the same premises, a cousin of Mr Dubois to whom I shall refer merely as Tom.

5. On 17 November 2021, Dubois contacted the accused via Facebook Messenger. Dubois asked the Appellant to supply him with 40 tablets of the prohibited drug oxycodone. Mr Dubois wished to buy them from the Appellant. The factsheet contains this transcript of their conversation:

“The accused said, “Address please”.

Mr Dubois asked: ‘I’m at [address provided].

The accused said, ‘Okay for today it’s been a bitch of a day so u I only charge 45000 [I presume this means $450] that includes me and 50 beautiful oxy at 10 mil each one and did there and back okay cause I can sell each for 40 each one. Anyways I’m coming my friend’.

Mr Dubois said, ‘Cya soon bro’.

The accused said, ‘Please for you I don’t make very little so please id paper me 20mins’.

Mr Dubois said, ‘How much’.

The accused said, ‘I see you soon’.

Mr Duboi said, ‘Do you know how ling away we are’.

The accused said, ‘Yes pay id 10 min’.

The conversation continued later in this fashion:

“Mr Duboi said, ‘Nearly here man?’

The accused said, “Okay at Mascot getting a drink of coke I got there and I had to wait now all good. Here is a picture.”

6. The Appellant then sent to Mr Dubois a photograph which depicted a small plastic clear resealable bag containing white coloured tablets. Shortly after that, the Appellant arrived at Dubois’ residence on Anzac Parada Maroubra. Dubois purchased the white coloured tablets from the Appellant. Dubois’ partner, Ms Martin, was present during the exchange when she heard the Appellant explain that the bag contained 50 tablets, and she heard the Appellant say “only take three”.

7. On the following day at 3.30pm, Dubois and Ms Martin went to sleep. They had not slept the evening before, that is, on the evening of the 17th to 18th. Therefore, they went to bed early. Ms Martin woke up on Friday 19 November 2021 at 2.20am and found Dubois to be in physical distress. Ms Martin called an ambulance and police but, unfortunately, Dubois was found by the ambulance officers to be dead at 3.10am.

8. There is no evidence before me to suggest that the death of Dubois was caused directly or even indirectly by the ingestion of the tablets supplied to Dubois by the Appellant. But it must be noted that Dubois believed that he was buying oxycodone and in fact the appellant supplied methadone. Whether this had anything to do with the death of Dubois, one does not know. Police seized the remaining tablets which proved positive to a presumptive test for their being methadone.

9. The agreed facts tell me that the Appellant supplied the deceased Dubois with at least 40 tablets of methadone, which amount to the indictable quantity of that prohibited drug. As a result of what they found, the police executed a search warrant at the Appellant’s residence in Pyrmont on 19 November 2021 and found the material referred to in sequences 4, 5, 6 and 7. Sequences 2 and 3 in respect of which the learned Magistrate merely recorded a conviction were, as far as sequence 2 is concerned, the possession of a debit card in the name of a person and two keys inside a fob inside a purple female clutch bag reasonably suspected of being stolen or otherwise unlawfully obtained. Sequence 3 was the custody of a knife in a public place, namely Harris Street, Pyrmont, without reasonable cause.

10. One should note that this was an actual supply of a prohibited substance. The purchaser was provided with a prohibited drug other than the prohibited drug which he thought he was purchasing. The arrangement for the delivery of the drugs was something that may have happpened between the appellant and Dubois in the past. It appears that they must have been known to each other.

11. The actual supply of any prohibited drug for reward is a very serious offence. It amounts to drug trafficking. As I pointed out at the commencement of these reasons, at the time the Appellant was 42 years old. He was hardly a young man. His criminal history, leaving aside a matter dealt with in the Children’s Court, commences at the age of 18 with driving offences. However, they were quickly followed by offences of larceny and other driving offences. At the age of 28, the Appellant was convicted of possessing a prohibited drug for which a fine was imposed. A similar offence was committed on 13 May 2008 when the Appellant was 29 years old. I omit from this recital of the Appellant’s criminal history other driving offences.

12. On 10 January 2009 the appellant was convicted of resisting a police officer in the execution of his duty and offensive behaviour in or near a school or public place. On 30 January 2009, when he was 30 years old was convicted of having goods in custody suspected of being stolen and a possessing a prohibited weapon. On 22 May 2009 at the age of 30, he was found guilty of assaulting an officer in the execution of his duty and was sentenced to imprisonment for three months but that was suspended pursuant to s 12. He was also found guilty of a domestic violence offence for which he was placed on a bond to be of good behaviour for 12 months.

13. On 13 June 2011 at the age of 33 he was found guilty of a domestic violence common assault, for which again he was placed on a bond. On 22 August 2011, at the age of 33, he was found guilty of possessing a prohibited drug, domestic violence common assault, and contravening a prohibition or restriction in an Apprehended Violence Order (“AVO”).

14. On 27 January 2012 at the age of 34, he was found guilty of driving under the influence of alcohol or other drugs and was sentenced to imprisonment for eight months, but that was suspended pursuant to s 12. On 6 April 2012, he was found guilty of goods in personal custody suspected of being stolen and of possessing a prohibited drug.

15. On 14 July 2013, at the age of 34 he was found guilty of having goods in personal custody suspected of being stolen for which he was given a bond to be of good behaviour for a period of 12 months. On 23 July 2013, a week later he committed an offence of receiving or disposing stolen property for which he was again placed on a bond to be of good behaviour.

16. On 18 September 2014 at the age of 35, he was found guilty of possessing a prohibited drug. There were further drug offences committed on 31 January 2015. On 28 December 2015 at the age of 36, he was found guilty of possessing prohibited drug for which he was imprisoned for nine months, but that sentence was suspended. However, on appeal to this Court the order was confirmed. The offender was called up for a breach of that order and resentenced to imprisonment for nine months commencing on 11 May 2016 and ending on 10 February 2017. Before that sentence commenced however, he was found guilty of possessing a prohibited drug, an offence committed on 27 March 2016 for which he was imprisoned for one month, again commencing on 11 May 2016.

17. On 28 March 2016, he committed the offence of having goods in custody suspected of being stolen. He was then 37 years old. He was sentenced to imprisonment for four months commencing on 11 May 2016, consistent with the sentence imposed for the offence committed on 28 December 2015 which was confirmed by this Court on appeal.

18. On 11 May 2016, when he was 37 years old, he committed two offences, possessing house-breaking implements and an offence under s 114 Crimes Act 1900, having a previous conviction for that offence. For those offences he was sentenced to imprisonment for 12 months, commencing on 11 May 2016 with a non-parole period of nine months, concluding on 10 February 2017. On 6 July 2016, he committed an offence of possessing a prohibited drug, for which a sentence of imprisonment was imposed, but again covered by the earlier sentence to which I have referred. At the same time, he also committed an offence of having goods in custody suspected of being stolen.

19. On 17 August 2018 he committed a number of offences. He was then 39 years old. He was sentenced for drug offences and possession of identity information enabling him to commit an indictable offence, to imprisonment for six months commencing on 11 September 2018, concluding on 10 March 2019. On 5 September 2018, he was found guilty of supplying prohibited drugs on an ongoing basis. For that offence he was committed for sentence in this Court. On 20 September 2019, this Court imposed and Intensive Corrections Order (“ICO”) for a period of one year and ten months, commencing on 20 September 2019 and expiring on 19 July 2021. The ICO included supervision, participation in rehabilitation and treatment as directed by Corrective Services, and continuation of a drug rehabilitation, residential program at Odyssey House.

20. As far as I am aware, that ICO was successfully completed, although the word “successfully” has a very limited application, because the Appellant committed this supply offence on 17 November 2021, the ICO having expired on 19 July 2021, that is, some four months later. Clearly, the Appellant did not maintain the rehabilitation that he had been offered during the period of the ICO previously imposed by this Court. Unfortunately, his drug trafficking was ascertained because of the death of Dubois, but of course the Appellant cannot be blamed for that. However, he can be held liable and must be held liable for drug trafficking for personal reward, and also supplying the wrong drug, the drug that Mr Dubois had not anticipated ingesting.

21. The maximum penalty for the offence committed by the Appellant if dealt with in this Court carries a sentence of 15 years imprisonment and or a fine of $220,000. However, if dealt with in the Local Court the maximum penalty that can be imposed is imprisonment for two years and or a fine of $11,000.

22. It is clear to me from the endorsements made by the learned Magistrate on the coversheets that there was a discount granted for a late plea of guilty. The matter was first before the Local Court on 20 November 2021, returned to it on 24 November 2021, 8 December 2021, 22 December 2021, when the Magistrate ordered that a plea must be entered on the next occasion. The next occasion was 2 February 2022, when an order was made for a brief to be delivered on 2 March 2022 and a reply to be made by the Appellant. The next date set was 15 March 2022, and on that day there was again an order for a brief to be delivered and a reply to be made on 6 April 2022. It appears to me likely that the brief was delivered shortly thereafter. On 6 April 2022, the Appellant entered pleas of guilty in respect of all seven offences, and the matter was adjourned to 18 May 2022 for sentence, and her Honour ordered a sentence assessment report, that led to her Honour imposing the sentence which she did as I stated earlier on 18 May 2022.

23. The sentence assessment report commences with these points:

“- Mr Blankevoort was residing with his mother as her carer in the Glebe area prior to his incarceration.

- Mr Blankevoort’s partner gave birth to their child six months ago, however due to his incarceration; he has not seen the child as yet. There are Apprehended Domestic Violence Orders between the two, listing Mr Blankevoort as both the defendant and the person in need of protection (pinop). They have another child aged six years who is in the care of FACS.

- He stated that he has some contact with his 18- and 12-year-old children from other relationships.

Education and employment

- Mr Blankevoort stated that he completed Year 12 and established his own cleaning business in 2003, which he claimed is still a functioning business, however due to the COVID pandemic, he was not working in this capacity.

- Mr Blankevoort reported that he was in receipt of the Newstart and carer’s benefit and supplementing this with casual work on fishing boats.”

24. It should also be noted that later in the sentence assessment report this is stated:

“Mr Blankevoort stated that he felt badly that someone [died], but he was only trying to help him out.

…

Mr Blankevoort reported historical issues with heroin and Ice. He claimed that he participated in the Odyssey House Rehabilitation Program in 2021 and he would again re-engage with the program as an outpatient for additional support in his abstinence.

…

Mr Blankevoort reported that prior to incarceration he had engaged with a community psychologist to address as childhood trauma issue. He reported that he felt it assisted his progress and would like to continue this when next in the community.”

25. I should point out that providing Dubois with illicit drugs “was not helping him out” at all. It may, in fact, have been lethal. It makes the point that supply of prohibited drugs does not assist anybody, in fact, it creates problems for all drug users. It should be apparent from the circumstances of the crime he committed, and the material found at his residence when he was arrested, that the Appellant had returned not only to drug trafficking but likely to drug use, and therefore he failed to learn from the Odyssey House rehabilitation program that had only ended relatively recently.

26. Finally, I must note that there was nothing in evidence from the psychologist who had treated the Appellant to say anything about his psychological progress.

27. Tendered today, on behalf of the Appellant, is a report from Dr Small of Alexandria who has been treating the Appellant’s mother for a number of years. She apparently was living in the same address where the Appellant was living at the time of the execution of the search warrant. She has a number of illnesses. She would appear to be now 61 years of age and has morbid obesity, haemochromatosis, diabetes, hepatic transaminitis, and also suffers from agoraphobia. For some time, she has been diagnosed with Tourette’s Syndrome and she looks to her sons, and I use the word in a plural advisedly, to assist her. One of them was clearly the Appellant. Her other son at the time, Dr Small wrote the report on 8 September 2021, was overseas, but as to whether he has returned to Australia or not and has taken over the care of his mother, the evidence is quite silent.

28. Numerous attempts have been made over the years by the Courts to seek to accommodate Mr Blankevoort. He has been given suspended sentences, he has been placed on bonds to be of good behaviour, and he has been sentenced to imprisonment but that appears not to have deterred him. He was given the benefit of an ICO but, regrettably, shortly after it was completed he committed this offence of drug trafficking. Clearly, a custodial sentence was called for. The Appellant has to realise that, essentially, if he continues to offend, he will spend more and more time in prison. He is no longer a young man. It is easier to rehabilitate persons when they are young than when they are well set into their ways, which a man of 43 years should be seen as being.

29. I cannot cavil with the two-year starting point decided upon by the learned Magistrate. However, it appears to me, as it has been submitted, that the discount for the plea of guilty was perhaps too small. The discount allowed, assuming that the learned Magistrate started at two years’ imprisonment was 12.5%. Before the Early Appropriate Guilty Plea regime started, a plea at the time that was entered by this appellant may have attracted the maximum allowable discount of 25%. The current matter is not governed by the Early Appropriate Guilty Plea regime, but in my view there was a slightly late plea and the appropriate discount ought to have been 20%. Starting at the same basis that the learned Magistrate did, the head sentence should be reduced to 19 months, and applying the same ratio as did the Magistrate, the non-parole period should be reduced to 12 months. Without there being any evidence as to the status of the Appellant’s mother at this time, and as to the whereabouts of the Appellant’s brother and his ability to care for their mother, I do not place any significance on this new piece of evidence. For those reasons the appeal is allowed.

30. I re-sentence the Appellant to imprisonment for 19 months commencing on 19 November 2021 and expiring on 18 June 2023. I fix a non-parole period of 12 months expiring on 18 November 2022.

31. The appeal is allowed. The sentence imposed by the Local Court at Waverley on 18 May 2022 is set aside. In lieu thereof, the Appellant is sentenced to a non-parole period of 12 months commencing on 19 November 2021 and expiring on 18 November 2022. I impose a further period of imprisonment of seven months to commence upon the expiration of the non-parole period and expiring on 18 June 2023. The total sentence is, therefore, 19 months comprising the non-parole period and the balance of the sentence. I have found special circumstances. You are eligible to be considered for release to parole at the expiration of the non-parole period. In imposing that sentence I take into account the matters on the Form 1.

Decision last updated: 21 November 2022