R v Amoroso

[2021] NSWDC 393

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Amoroso [2021] NSWDC 393

Hearing dates:

12 August 2021

Date of orders:

12 August 2021

Decision date:

12 August 2021

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of 3 years 3 months with a non- parole period of 2 years.

Catchwords:

CRIME - Ongoing supply of a prohibited drugs methylamphetamine and gammabutyrolacton– Supply commercial quantity of a prohibited drug gammabutyrolacton

CRIMINAL PROCEDURE – committal for sentence - fresh indictment to correct errors in committal for sentence process

SENTENCING - Relevant factors on sentence - drug user - COVID related drug price increase - regular drug user - sale of drugs - number of supplies - small quantity supplied on each occasion - limited profit - early guilty pleas

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Criminal Procedure Act 1986

Drug Misuse and Trafficking Act 1985

Cases Cited:

Attorney General’s Application No. 1: (2002) 56 NSWLR 146

Cahyadi v Regina [2007] NSWCCA 1

Crimes (Administration of Sentences) Act 1999

DPP (Cth) v Maxwell [2013] VSCA 50.

Henry v R (1999) 46 NSWLR 346

Hili v The Queen (2010) 242 CLR 520

Markarian (2005) 228 CLR 357

Mill v The Queen (1988) 166 CLR 59

Muldrock v The Queen (2011) 244 CLR 120

Petkos v R [2020] NSWCCA 55

R v CBK [2002] NSWCCA 457

R v Durant [2002] NSWCCA 295

R v Nai Poon [2003] NSWCCA 42

R v O'Connor [2014] NSWCCA 53: (2014) 239 A Crim R 487

Silvano v R [2008] NSWCCA 118

Veen v The Queen (No 2) (1988) 164 CLR 465

Weininger v The Queen (2003) 212 CLR 629

Texts Cited:

NSW Bar Association Discussion Paper - Drug Law Reform 24 11.2014

UN Office on Drugs and Crime, World Drug Report 2009

Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497

Category:

Sentence

Parties:

Jason Amoroso (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Ms L Jardim (for the offender)

Solicitors:
Legal Aid NSW (for the offender)
Mr L McGonigal (for Director of Public Prosecutions)

File Number(s):

2020/00229190

sentence

Introduction

1. An Indictment was presented today against Jason Amoroso. He said he was guilty of three offences. Two involved the ongoing supply of the prohibited drugs – methylamphetamine and gammabutyrolacton (GBL) for financial or material reward: s25A Drug Misuse and Trafficking Act 1985. These ongoing supply offences occurred between 23 April 2020 and 21 June 2020. The third offence - knowingly take part in the supply of a commercial quantity of the prohibited drug – GBL, occurred between 15 and 18 July 2020: s25(2) Drug Misuse and Trafficking Act 1985.

2. There is a further s 25A matter to be taken into account on Criminal Procedure Act 1986 Form 1. This ongoing supply offence occurred between 22 June 2020 and 19 July 2020.

3. Amoroso had been committed for sentence from the Local Court. The Indictment was only presented to cure a technical defect in the committal papers. Count 4 was an ex officio count and is now on a Form 1. The Director of Public Prosecutions (DPP) accepted the guilty pleas to the first 3 counts in full satisfaction of the counts on the Indictment. Amoroso must have a reduction of the otherwise appropriate sentences of 25% to reflect his early indication of guilt: s25A Crimes (Sentencing Procedure) Act 1999. I will take care that when I fix the aggregate sentence I do not erode that benefit.

Agreed Facts

4. In January 2020 a police Strike Force began investigating the supply of prohibited drugs in the Illawarra Region. Telecommunications warrants were obtained for a phone known to have been used by Amoroso. That phone was registered in a false name. Between 23 April 2020 and 19 July 2020 the offender supplied either methylamphetamine or gammabutyrolacton (GBL) on no less than 60 separate occasions. The offender would receive calls to his mobile phone and arrange for delivery of the prohibited drugs where he would either accept payment in cash in person or receive deposits into his bank account.

5. Analysis of the intercepts revealed two other associates who were also involved in the supply of prohibited drugs. The two co-offenders Jade Asher and Kelly Dent would communicate only with the offender and not with each other. Both are for sentence in this court shortly. The agreed facts set out how they interacted.

6. The agreed facts detail each of the transactions relied on for the ongoing supply charges. Thirty involve methyl amphetamine. Twenty six involve GBL. Two involve either methylamphetamine or GBL. Two involve both GBL and methylamphetamine. Count 1 involves 32 supplies. Count 2 involves 13 supplies. The Form 1 matter involved 15 supplies.

7. All of the transactions were of relatively small scale. The largest methylamphetamine supply was for $1,100. Most of the GBL supplies were for amounts between $100 and $300. Some sales were for cash, for others the purchaser deposited money in the offender’s account. Varying arrangements were made for delivery of the drugs; for example a meeting at Bunnings. On one occasion when he dropped drugs off, the offender was also reporting to Lake Illawarra Police on bail.

8. Unsophisticated codes were sometimes used. A gram of methylamphetamine would be sold for $200 to $250; 100 ml of GBL for $300. On some occasions he tells his customers he has nothing to supply. It is accepted that at times he tells them he only had “perso,” which the prosecution accept meant a quantity for personal use: MFI 1 Crown Submissions [27].

9. In early July 2020 intercepted telephone calls between Amoroso and the co-accused Kelly Dent revealed that Dent was attempting to procure a larger amount of GBL from a supplier in Sydney for $2000 a litre. The two discussed how the drug was to be paid for and eventually Amoroso transferred Dent that amount.

10. On 16 July 2020 police saw Dent in a car parked on the side of the M1 motorway at Maddens Plain. Police searched the vehicle and found 7 bottles containing a clear liquid. They asked Dent about the bottles and she replied that it was “just water.” Later analysis confirmed that one of the bottles contained 2251 grams of gammabutyrolacton.

11. That afternoon Dent rang the offender and told him “I’m going to jail Jas” Amoroso made arrangements to go and collect her.

12. On 6 August 2020 police executed search warrants at the Novotel apartment where the accused was staying and his usual residence in West Wollongong. Among the items they seized were diaries said to be drug ledgers and a ‘tic’ sheet with names and numbers on them.

13. The offender was arrested. In an electronically recorded interview he admitted to having a daily drug habit of both Methamphetamine and GBL. He denied and/or declined to answer all allegations of drug supply.

Objective seriousness

Section 25A

14. As with all similar drug supply operations these crimes were committed without regard for community safety. While at a low level this was still organised criminal activity. Amoroso engaged directly in supply transactions and personally negotiated prices. He supplied to a broad customer base. As Mr McGonigal, Solicitor for the Director, submitted, while ongoing supply is the critical element of the offence, here his actions were “persistent and repetitive.” While only small amounts were supplied they were not “altogether insignificant.”

15. As the NSW Court of Criminal Appeal has made quite clear:

“An offender charged with a s 25A offence cannot rely upon an argument that the act of supply was an isolated event. Nor can [they] expect to receive a sentence of the kind which may be appropriate for a single offence of supply. Significant sentences must be imposed in such cases in order give effect to the clear legislative intention to discourage the ongoing trade in drugs, which depends entirely upon the availability of a person such as the present [offender]:” R v CBK [2002] NSWCCA 457 at [57].

16. Section 25A is directed to this repetition and the business operation of supplying prohibited drugs and the magnitude (or otherwise) of the operation. Here, the offender conducted an effective retail distribution operation over the course of 3 months. In each matter for sentence I have to consider; the quantity of drugs, the number of instances of supply and the individual quantities supplied.

17. It is accepted that application of the profits of this activity was largely directed to the purchase of quantities of the drugs for Amoroso’s own use. But he chose to fund his need for the drugs by selling them to others in the community. Notwithstanding his own usage he remained clear thinking enough to be able to carry on his trade in a rational, clandestine and efficient manner. And he did make some profit enabling him to support himself and his drug habit.

18. The seriousness of a retail distribution such this lies, in part, in its contribution to servicing and maintaining the market for the drugs methylamphetamine and GBL. This maintained market in turn provides the economic incentive for manufacture, importation and distribution of illicit drugs at the bulk and wholesale levels.

Supply of GBL

19. The commercial quantity of GBL is 1 kilogram. The indictable quantity is 50 grams. GBL is purchased and supplied as a liquid. In the facts it is noted that Amoroso and his customers used the term “drinks.” While weight is one important factor on sentence and determines the penalty range it is not determinative. To the contrary in commercial supply matters greater emphasis can be placed on any financial reward received or anticipated. It is often that reward that leads to harm to the community; as the illicit trade in drugs is one of the principal sources for crime in the community: Petkos v R [2020] NSWCCA 55; DPP (Cth) v Maxwell [2013] VSCA 50.

20. This offender does not need a lecture about the harm illicit drugs can cause users. His life has been blighted by his drug abuse and similar problems were experienced by his mother. But it bears repeating that the sale of illicit drugs causes considerable harm not just to those who purchase and ingest such drugs but to the community in general. That is one reason why often calls are made for heavy sentences with an emphasis on general and specific deterrence.

21. Here, I focus on what was done. The offender took up the opportunity to purchase a litre of GBL for $2,000. He played his part in a supply involving over 2 litres of the drug. He was intending to on sell that drug. At the time he was selling GBL for about $300 for 100ml – a potential profit on 10 sales of $1,000. He was not moving into the big league. This was a very low level commercial supply.

Other relevant factors on sentence

Form 1

22. The matter on the Form 1 will be taken into account when I determine the appropriate penalty for the offence to which it relates but I do not “in any sense” impose a sentence for that offence: Attorney General’s Application No. 1: (2002) 56 NSWLR 146 at [68]. It operates to increase the sentence that would otherwise be appropriate as part of the instinctive synthesis approach to sentencing. The increase recognises the need for personal deterrence and retribution for the crime for sentence: Attorney General’s Application No. 1 at [39] – [42].

Maximum penalty

23. Careful attention to the maximum penalties and standard non-parole periods is always required. The ongoing supply offences carry a maximum penalty of 20 years imprisonment. A commercial supply offence has a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years. The standard non-parole period represents the non-parole period for an offence that taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.

24. I am required to give content to the standard non-parole. In doing so I am required to assess objective seriousness without reference to matters personal to the offender and wholly by reference to the nature of the offending: Muldrock v The Queen (2011) 244 CLR 120 at [27]. However, as the court in Muldrock made clear neither can I engage in a staged approach to sentencing: at [28].

25. Ultimately I must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors relevant to offending behaviour and the offender: Muldrock; Markarian; Hili v The Queen (2010) 242 CLR 520.

Accumulation and concurrence

26. I am required to indicate an appropriate sentence for each offence and to structure the sentences such that the overall sentence is just and appropriate to the totality of the offender’s crimes, including the sentences upon which it must be partially accumulated: Mill v The Queen (1988) 166 CLR 59 at 62-63. Each offence was part of a single extended episode of criminality with many common factors but the s25A matters occurred sequentially and the s 25 matter was committed to obtain more GBL for further sales. The sentence for one offence could not comprehend and reflect the criminality of the others. There must be some accumulation of penalty: Cahyadi v Regina [2007] NSWCCA 1.

Past criminal history

27. Amoroso’s criminal record dates from 2008. He has committed a large number of drive while disqualified offences. On two occasions in 2018 he had the benefit of serving terms of imprisonment for drug supply offences subject to intensive correction in the community. In 2020 he received another Intensive Corrections Order (ICO) for yet another drive while disqualified offence.

28. His persistence in supplying drugs in the community means he is not entitled to the leniency often given first offenders or those without settled criminal habits. It indicates that these offences were not uncharacteristic aberrations. It demonstrates his continuing disobedience towards the law. While prior criminal history cannot result in a sentence which is disproportionate to the gravity of the offences, here a more severe penalty is warranted with additional focus on retribution, deterrence and the protection of society: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477.

29. Amoroso was on bail at the time of some of his offending. His last ICO was handed down on 14 July 2020 along with a further Community Corrections Order for breaches of earlier orders. This court date was just before he was organising the supply of GBL and before he completed his 57^th to 60^th documented supply of GBL and methylamphetamine. His offending while on conditional liberty is another aggravating factor on sentence.

30. His breach of the ICO and three other sentences imposed after he was arrested for these matters led to terms of imprisonment from 6 August 2020 to 13 April 2021. He has been in custody solely for this matter since that later date.

COVID-19

31. The present crisis has increased apprehension by prisoners about infections in gaols, as it does in the community in general. As a community we are being asked, urged and compelled to self-isolate. This cannot happen in a gaol. Social visits were suspended for over a year reducing any capacity to remain in direct contact with pro-social friends and family. Face to face visits had only just resumed, only to be stopped again. Access to telephone calls and AVL links has increased.

32. COVID-19 has not (as at today) entered our gaols. Amoroso falls into a category that might be considered for early parole if it does: s276 Crimes (Administration of Sentences) Act 1999. The offender has endured over a year of such restrictions. He faces them now. He may face them again. The lack of visits, and heightened anxiety and concern, are relevant factors that must be synthesised along with all other matters.

Proposed supervision on release

33. Two Sentence Assessment Reports were tendered. The first from March 2020 notes Amoroso’s unsatisfactory compliance. However, despite this supervision was suspended “due to case load rationalisation.” Offenders who received parole supervision commit fewer offences than offenders who were released unconditionally into the community: Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497. That fact was borne out by what occurred in this matter.

34. The Sentence Assessment Report from August 2020 indicates Amoroso now has some insight into his offending behaviour: Exhibit B. He has engaged in courses. He is working and has a earned a TAFE certificate. Although still at medium risk of reoffending that risk can be moderated by a supervision plan. That plan includes; further EQUIPS courses, and the PGI module supplemented by attendance at the Illawarra Drug and Alcohol Service and a Mental Health Care Plan though his local GP.

Subjective case

35. A psychosocial report prepared by Mr Bembrick, a Legal Aid Social Worker, sets out Amoroso’s background. Although not supported by evidence on oath it is not controversial. He grew up in Kiama mainly with his mother as his parents separated when he was 5. That separation had an impact on him. Neither he nor his mother coped well. Mr Bembrick describes a lack of “consistent and involved parenting at critical development stages.” Amoroso went straight from school to a carpentry apprenticeship working for his father’s business. He had however by then already fallen into a problematic party lifestyle involving drink and drugs. He lost his driver’s licence and has had a perennial problem with driving while disqualified since then.

36. Mr Bembrick sets out how Amoroso’s drug use escalated into a methylamphetamine (ice) habit. He also regularly used GBL. Mr Bembrick speculates that this may have been as a result of his self-medication for underlying depression and anxiety. Amoroso told Mr Bembrick he began to sell the drugs as he could not afford to buy what he needed due to COVID related price increases.

37. He will need residential drug rehabilitation on release and individual therapy with a psychologist. Before his arrest he had engaged with a local psychologist. His psychologist will continue treatment on release. He has some rapport with his ex-partner, who has allowed regular video link access to their daughter.

Assault in custody

38. In August 2018 Amoroso was assaulted in custody. As a consequence he suffered immediate pain and subsequent anxiety. He now serves his time on protection.

39. That a person has been assaulted in gaol is a relevant factor on sentence. A distinction has however been drawn between assaults that can be shown to involve extra curial punishment and those that cannot be so linked: Silvano v R [2008] NSWCCA 118: R v O'Connor [2014] NSWCCA 53: (2014) 239 A Crim R 487. This was not a matter where extra curial punishment principles can be relied on.

40. However, a sentencing court cannot ignore the lived experience of gaol. Judges must take into account and synthesise all relevant considerations. Even after the physical injuries heal, a prisoner assaulted in custody, will inevitably suffer anxiety and other concerns as they are being kept in or returned to the same type of environment where they were previously assaulted. Gaols are nasty violent places – all prisoners are at risk. They have no control over who they associate with and no control over their immediate safety. If they could not be protected in the past it requires no imagination to conclude that a person who has been seriously assaulted in gaol will find incarceration at the very least more worrying than someone who has not.

Drug Addiction

41. That a person committed the offences to help meet a long term drug addiction cannot excuse their crimes. The fact of addiction and its consequences, how it came about and what is to be done about it may however be taken into account as a factor relevant to the sentencing. It allows me to understand why he did what he did and continued to do it, and, to understand his state of mind. It is relevant to the offender’s subjective case, as the origin or extent of the addiction, and any attempts to overcome it, impact upon his prospects for recidivism or rehabilitation: Henry v R (1999) 46 NSWLR 346.

Submissions

42. Mr McGonigal, for the Director and Ms Jardim, counsel for the offender, provided helpful written and oral submissions. They differ more in emphasis than on matters of principle.

43. Mr McGonigal, by reference to R v Nai Poon [2003] NSWCCA 42 and R v Durant [2002] NSWCCA 295 reminded me that the seriousness of an offence must be judged by reference to the maximum penalty, and that it is impossible, consistently with ordinary principles of construction, for the Courts to say simply that some drugs are worse, or dealing in them more heinous, than dealing in others. He took me to aggravating factors but properly conceded that the enterprise was “relatively unsophisticated” and that someone who supplies to meet the needs of their own habit is not in the same category as someone who supplies solely out of greed. He notes however that Amoroso’s enterprise was too extensive to be assessed solely on the basis he was meeting his own needs for the drugs. He recognised the importance of the court structuring the sentence to facilitate the offender’s rehabilitation prospects.

44. Ms Jardim noted that in GBL supply matters it is not the heinousness of the drug that distinguishes it from other drugs but the fact that it is supplied in liquid form, making weight of less significance in determining seriousness. She notes that the Amoroso supplied small amounts of low value. She said he falls into the “classic category of lower-level user dealing [and] is clearly suffering from an unresolved drug dependency.” While recognising the requirement for just punishment she suggested that the community interest could best be served by Amoroso serving a long period with supervised parole directed at helping him resolve his drug abuse problems.

Synthesis

45. The sentencing exercise involves: “a synthesis of competing features, which attempts to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money:” Weininger v The Queen (2003) 212 CLR 629.

46. While a Court’s sentencing discretion cannot be judicially constrained, a Court, must nevertheless give full and proper consideration to the guidance offered by past sentencing decisions.  In practice it is likely that, in the absence perhaps of some unusual circumstance, proper application of principle mean a sentence of imprisonment for those who engage in trafficking in illicit drugs, no matter what their level: Robertson v R [2017] NSWCCA 205

47. Amoroso offended over a three month period. He supplied drugs to many other users. Despite being allowed conditional liberty he continued to buy and sell the drugs. He must be appropriately punished for those crimes. The requirement for appropriate punishment means that only full time custody can be imposed. So much is accepted by Amoroso.

48. That said, the community must understand that the problems caused by illicit drugs cannot be solved by arresting or gaoling our way to a solution. The evidence is in, harsher prison sentences for users and conventional law enforcement methods cannot cure what is a social problem, a health problem, a personal problem, a community problem and ultimately a policy problem: see NSW Bar Association discussion paper Drug Law Reform 24 11.2014; UN Office on Drugs and Crime, World Drug Report 2009.

49. Here the community would be best served by Amoroso getting help needed to deal with his long term drug addiction. If he can deal with that problem he has skills and a work ethic that will enable him to be a productive member of our community. I have structured the sentence to allow that to occur but first he must serve the minimum period in custody his crimes deserve.

50. The sentence cannot be backdated to when he was first arrested. There must be some independent punishment for the sentences imposed in the Local Court; including the Intensive Corrections order breached so soon after it was imposed. This sentence will commence on 5 November 2020.

Orders

Indicative sentences

1. Ongoing supply of prohibited drugs, taking into account the matter on the Form 1, I indicate a sentence of 2 years 3 months.

2. Ongoing supply of prohibited drugs, I indicate a sentence of 2 years.

3. Knowingly Take Part in a Commercial Quantity of a Prohibited Drug namely GBL, as it carries a standard non parole period, I indicate a sentence of 2 years and a non-parole period of 1 year 2 months.

Aggregate sentence

51. The total aggregate sentence is 3 years 3 months.

52. There will be a non-parole period of 2 years commencing 6 November 2020 and expiring 5 November 2022. The balance of the sentence of 1 year 3 months is to commence upon the expiration of the non-parole period on 5 November 2022, and expiring on 5 January 2024.

53. You will be eligible for release to parole at the expiration of the non-parole period on 5 November 2022.

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Amendments

13 August 2021 - Typographical error in imprisonment release date