R v Andrew Lee Black; R v Rowan Alistair Connell

[2019] NSWDC 756

District Court

New South Wales

Medium Neutral Citation:	R v Andrew Lee Black; R v Rowan Alistair Connell [2019] NSWDC 756
Hearing dates:	5 December 2019
Date of orders:	16 December 2019
Decision date:	20 January 2019
Jurisdiction:	Criminal
Before:	Priestly SC DCJ
Decision:	Andrew Black- Aggregate Sentence 9 years with non parole period of 6 years Rowan Connell – Aggregate sentence of 8 ½ years with a non parole period of 5 ½ years
Catchwords:	Supply large commercial quantities of MDMA- breach of s 7 (1) Firearms Act- breach of section 62 (1) (B) Firearms Act.
Legislation Cited:	Crimes (SP) Act 1999
Cases Cited:	Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 Briouzguine [2014] NSWCCA 264 Newman [2019] NSWCCA 157 Nye [2018] NSWCCA 244 R v Farrell [2015] NSWCCA 68 R v Millwood [2012] NSWCCA 2 Tepania v R [2018] NSWCCA 247
Category:	Sentence
Parties:	R-v- Andrew Black R-v- Rowan Connell
Representation:	Counsel: For Andrew Black Crown: Mr Hanna Defence: Mr Behan For Rowan Connell Crown: Mr Hanna Defence: Mr Cochrane
File Number(s):	Black 2019/52491 Connell 2019/52493
Publication restriction:	NIL

TABLE OF CONTENTS

The charges - paragraph 3

THE AGREED FACTS - paragraph 4

AGREED STATEMENT OF FACTS

BACKGROUND - paragraph 1

Objective seriousness

Connell and Black

DMTA offence - paragraph 5

Firearms - paragraph 16

THE AUTHORITIES - paragraph 26

Statistics - paragraph 34

THE SUBJECTIVE CASES

Connell - paragraph 36

SNPP - paragraph 66

ORDERS: CONNELL - paragraph 69

SUBJECTIVE CASE  

BLACK - paragraph 74

Consideration - paragraph 87

SNPP - paragraph 97

ORDERS: BLACK - paragraph 100

Judgment

1. Andrew Lee Black and Rowan Alistair Connell are to be sentenced for three charges that will be particularised below. Each of them also has charges to be dealt with by way of the form one procedure. The form one offences differ as between the offenders. The sentencing hearing for both offenders took place in Lismore on 5 December 2019. Mr Cochran of counsel appeared for Mr Connell, Mr Behan appeared for Mr Black and for both matters the Crown prosecutor was Mr Hanna.

2. The offences are very serious drug offences with the offenders vulnerable to very significant terms of imprisonment. I will set out below firstly the three charges and their maximum penalties followed by the agreed facts, and assess the objective seriousness of those offences, and review some comparabIe cases relevant to both offenders. I will then deal with the offenders separately in terms of the form one matters and their respective subjective cases to determine the appropriate sentence for each offender. I might add that structuring these reasons in this way is a convenient way to deal with the common aspects of the matter, and is in no way a two step approach to the sentencing process.

The charges

3. Each offender is charged with the following offences:

1. Supply large commercial quantity of MDA being an amount of 6.552 kilograms in breach of section 25 (2) Drug Misuse and Trafficking Act (“DMTA”). This offence has a maximum penalty of life imprisonment and a standard non-parole period of 15 years.

2. Possess a shortened firearm being a 12 gauge shot gun in breach of section 62 (1) (B) of the Firearms Act. This offence has a maximum penalty of 14 years imprisonment and there is no standard non-parole period.

3. Possess a .22 calibre automatic pistol in breach of section 7 (1) of the Firearms Act. This offence has a maximum sentence of 14 years and a standard non-parole period of four years.

THE AGREED FACTS

4. The agreed statement of facts is not so long that simply repeating them is impracticable. Further in my view it is important that the agreed facts be recorded precisely as agreed particularly given the seriousness of the offending. What follows is a transcription of the agreed statement of facts formin part of the Crown sentence summary which in each matter was marked as exhibit “A”.

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AGREED STATEMENT OF FACTS

BACKGROUND

1. Strike Force Deveril is an investigation into the Large Commercial Supply of prohibited drugs by Rowan Connell and Andrew Black. Police allege Connell and Black were operating as a joint criminal enterprise supplying prohibited drugs namely MDA on a Large Commercial level. The investigation utilised covert electronic surveillance which captured evidence of Connell and Black involved in the offences.

2. On 15 February 2019 about 8.20pm electronic evidence identified Connell and Black inside Connell's address at 98 Bundara Park Drive Tuckombil handling a sawn off single shot 12-gauge shotgun. Both Connell and Black engaged in a conversation about the characteristics of the firearm. Connell gave the gun to Black so that Black could look at it. Black was holding the gun for about one minute on that occasion.

3. Later that evening, at about 9:12pm, Connell told Black that he would keep the firearms at his residence for defence against other criminal elements, hiding them loaded in the wall cavity near the front door.- Black said, "You're going to jail if you get caught with them." Connell replied, "That doesn't concern me...if they hit me with that they will try, it won't be just possession of firearms, it will be like, possession of firearms use to, in the commission of the ongoing criminal activity, one of those bullshit charges bro."

4. On the 16 February 2019 about 3.48pm electronic evidence identified Connell and Black inside 98 Bundara Park Tuckombil. At the time Black's juvenile son Jayden was also present. Black asked Connell,"Where are the Monaro keys?". Connell responded, "Maybe in the centre console of the ute." Black left the house and returned with a sawn off single shot 12-gauge shotgun and a .22 calibre pistol. Black instructed Jayden to place gloves on his hands. He said, "You can't tell mum, you can't tell anyone." When showing Jayden the shotgun, he said, "This is rusty but we are going to fix it up. We are going to make it all smick again." Jayden picked up and handled both the shotgun and the pistol. Both Connell and Black provided instructions to Jayden on the operation of the pistol before Black took both firearms outside..

5. On the 16 February 2019 about 6.30pm electronic evidence identified Connell and Black inside 98 Bundara Park Drive Tuckombil. Connell produced a large black plastic bag containing several heat sealed bags containing brown coloured pills. Connell and Black placed disposable gloves on their hands and set up a heat sealing machine on the kitchen bench

6. Connell and Black then commenced a packaging processing which they used electronic scales to weigh out quantities of drug in lots of 1000 and 5000 pills. The 1000 and 5000 lots were placed into Tupperware containers and then into plastic bags which were then sealed with the cryovac machine. The offenders also prepared several smaller packages of 10 pills which they referred to as, 'sample packs'. The sealed packages were then all placed inside a large white plastic drum with a screw top lid. The entire process took the offenders several hours to complete. The offenders were taking cocaine and cannabis during the process

7. Once the packaging was complete, Connell wiped down the workspace.

8. During the drug packaging process the offenders discussed methods of avoiding getting caught and discussed the prices for which they had purchased the drugs.

9. Police applied for and were granted search warrant No. 7123/19 to search the property. About 9.50pm police attended 98 Bundara Park Drive Tuckombil and executed the search warrant. Entry to the property was gained via the unlocked veranda door. Black and Connell were arrested in the main living area watching TV.

10. Once the house was secured a video recording was commenced and the search warrant was explained to Connell and Black. Connell and Black were both provided with their rights under Part 9 of the Law Enforcement Act.

11. A systematic search of the property commenced and police located a large white coloured drum containing a large amount of brown coloured pills was located positioned on the kitchen island bench.

12. In the presence of Connell and Black Police opened the drum and the following items were removed:

•   2 x heat sealed packages each containing 1575 grams of MDA pills.

•   1 x heat sealed package marked "400" containing 140 grams of MDA pills

•   6x heat sealed packages containing 10 grams each of MDA pills.

13. The total weight of all MDA pills was 6.5245 kg. (13 times the large commercial quantity of 500g). The purity of the drug was between 5.5% and 6.5%. The purpose of the operation was to later on­ supply the drugs and the offenders agree that that they jointly possessed the drugs for the purpose of supply.

14. Connell and Black refused to comment in relation to the items and were conveyed to Lismore Police Station.

15. The search continued of the kitchen and living area and police seized the following, 2.17 grams of a white powder identified as Cocaine, Samsung mobile phone, Vial containing 46 white tablets identified as Diazepam, heat sealing machine,1x heat sealed package containing 10 grams of brown MDA pills,1x heat sealed package containing 15 grams of brown MDA pills, a plastic bag with brown coloured powder / residue, Digital scales, a box of disposable gloves and a rubbish bag containing all the items Connell used to clean up after packaging the pills. This rubbish bag contained opened heat-sealed bags with containing a brown powder residue and pills totalling 10 grams of MDA. The blue plastic cups used to divide the pills from the bulk packaging, used disposable gloves and wet wipes.

16. During a search of the lounge room numerous mobile phones were seized along with digital computer tablets. A red Tupperware container was located near the TV which contained 28 grams of cannabis.

17. During a search of the bedroom occupied by Connell police located $1150 in cash concealed inside a jacket within the wardrobe and $60 in cash on a shelf.

18. The search moved outside the property where Connell's Holden Monaro NSW registration DXE40D was parked under the car port. On the back seat of this vehicle police located a yellow coloured hard case. The yellow case was opened and found to contain the following, a .22 calibre automatic pistol and 3 boxes of .22 calibre ammunition. Police also located a maroon coloured towel on the back seat of the vehicle. The towel was unrolled and was found to contain a sawn off 12-gauge single shot shotgun. A search was also conducted of Connell's Holden Commodore Utility NSW registration DLU24L during which a further $1200 in cash was seized

19. Police searched a Holden Commodore SS sedan bearing NSW registration ZG05AA owned by Black and located and seized $215 in cash and an Apple mobile phone.

20. Connell and Black were spoken to at Lismore Police Station by investigators and refused to participate in an electronically recorded interview.

21. On the 18 February 2019, a further search warrant was executed by police at 23 Shearman Drive, Goonellabah. During a search of the bedroom occupied by Black police seized two vials of steroids, Diazepam tablets, numerous disused mobile phones, and a heat sealing machine.

Objective seriousness

Connell and Black

DMTA offence

5. Both the Crown and the offender Connell relied on written submissions which they supplemented orally. The offender Black adopted the submissions of Connell. In the Crown’s written submissions it was argued that the MDA offence falls at the upper end of the range of seriousness. This submission was based on the offender being motivated by financial gain and on the facts of this case the likelihood of that being a substantial financial gain, the size of the risk to the community given the quantity of drugs involved, and the submission that the offenders were acting as principals in the business of trafficking MDA. This last submission was based on the further submission that the offenders were deciding on the weights, quantities and prices of the drugs they proposed to supply. The agreed facts do not support all of this submission. The discussion as to price related to what the drugs were purchased for, not what they would be sold for. Further whilst the agreed facts referred to the drugs being weighed out in quantities of lots of 1000 and 5000 pills by the offenders the agreed facts do not say those quantities were determined by them.

6. The Crown submission goes on to say that there is no evidence that the offenders were employed by others a submission supported by the fact that the agreed facts say that they purchased these drugs. That however is perhaps ambiguous for if they purchased these drugs from others those others are presumably another layer above the offenders in the hierarchy. The Crown submission is that the offenders are at the top of the drug hierarchy and close to the source of the chain of supply. For the same reason I tend to agree with that submission to some extent; that is they purchased these drugs for a certain price as opposed to being paid some amount of money for furthering its distribution. Whoever they were paying was the source of these drugs though query whether that person/s in turn had sourced it from somebody again further up the chain. The Crown concludes by saying the offending was part of a planned or organised criminal activity and there can be no doubt about that.

7. For both offenders it was conceded that they played a significant role as principals by personally handling the drugs with a view to their on supply. The offenders submitted they were clearly not to be regarded as a street level dealer. The Crown is of the same view.

8. The offenders make the point that the purity of the drug was low and already pressed into tablet form. This, it was submitted, suggests the offender was not “very high up in the chain of distribution”. Based on the evidence of the “sample packs” the submission was that the offenders’ customers were the actual street level local dealers. The submission was that the offender’s position was higher than that of the street level dealer but not much higher and that they were intending to sell to the street level dealer or thereabouts.

9. The view I take of the role of the offenders is somewhat more than argued for by the offender and somewhat less than that argued by the Crown.

10. In my view the submission for the Crown that the offenders are at the same time at the top of the drug hierarchy and close to the source of the chain of supply is contradictory. If they were the top of the drug hierarchy they would be the source of the chain of supply. In order to take matters into account adverse to the offender I need to be satisfied of them beyond reasonable doubt. But for the fact that the offenders discussed the price at which they purchased the drugs there would be little difficulty in concluding that they were at some lower point along a broad mid-level of the drug hierarchy. The evidence provides very little guidance as to just what quantities could be expected to be provided to street level dealers. The degree of packaging is reasonably complex; it is certainly not simple. Electronic scales are used to weigh out the quantities in lots of 1000 and 5000 pills. Those 1000 and 5000 lots are then placed into Tupperware containers and then in the plastic bags which were then sealed by a cryovac machine which without demur from the bar table was said to be a packaging process which removes the air from the packaging. Those packages together with the so-called “sample packs” were then placed inside a large white plastic drum with a screw top lid. The fact that so many pills were being put into one plastic drum in a range of other packages within it suggests that that drum was going to some other person who would then distribute it. It seems an inordinately large amount of pills to be going to a street dealer.

11. The authorities are clear that the amount of drug involved is not determinative of the degree of seriousness of the offending. See for example Wong v DPP (2001) 207 CLR 584. That however does not make it irrelevant. On this point I note the passage of Lee [2019] NSWCCA 106 where Button J said:

In Koh v R [2013] NSWCCA 287 at [108] Johnson J observed:

There is no upper limit beyond the large commercial quantity. That category may be engaged where the quantity just exceeds the limit, or where the offence escalates to involve quantities confined only by the limits upon the capacity of a criminal syndicate to organise drugs for supply for potentially massive profits. The extent to which the quantity exceeds the threshold for the large commercial quantity is a very material consideration in assessing the objective seriousness of an offence: (Citations omitted).

This is not in any way inconsistent with Wong v R (2001) 207 CLR 584; [2001] HCA 64 where at [67] Gaudron, Gummow and Hayne JJ said:

... the particular amount of narcotic involved can have significance in fixing the sentence that is to be imposed on an offender.

This is especially so, their Honours said, when the weight of the narcotic is given statutory significance for sentencing purposes by the Parliament distinguishing between the maximum sentences that may be imposed for escalating categories of drug supply offence.

12. I am not able to make a determination of precisely what level of a drug distribution hierarchy these offenders are at. It does appear however that they were provided with the pills in capsule form so that the submission of the offender that they were not the ones operating a pill press for the production of these drugs is made out. They clearly are not as high up the hierarchy as the Crown argues. Without necessarily finding they are only one step above the street dealer, something which I frankly doubt but do not expressly find, the degree of packaging and the degree of involvement therein to pass these drugs down to the next level to enable the ultimate distribution is a significant fact that I take into account in reaching the conclusion that their role is a significant one.

13. The offenders made reference to a number of authorities, the most helpful on this point of objective seriousness being in my view the matter of Newman [2019] NSWCCA 157. In that case approximately 1.7 kg of cocaine was found together with some quantities of MDMA and methyl amphetamine as well as cash of $44,450 in the offender’s car and other places. The Court of Criminal Appeal found the objective criminality of the cocaine offence as being below the middle range. In Newman the offender had controlled his own drug supply business from his home and dealt directly with the customers. In my view although that offender was totally involved in the supply of the drug to customers so that his level of involvement in the illegal activity was that of a retailer, the objective seriousness of that behaviour is less then the present case due to the fact of the current offenders being further up the drug distribution chain, and the significantly greater quantity of drugs involved.

14. Further, unlike in cases involving “runners” or “couriers”, in the present case the offenders have the difficulty that the large amount of drugs involved cannot be ameliorated by peripheral involvement; they are well aware of just how large the quantity of drugs is.

15. I assess the objective seriousness of this offending as being in the mid range.

Firearms

16. There remains the question of the firearms offences. The offenders acknowledge the seriousness of these charges. The Crown seeks to emphasise a connection between the firearms offences and the drug offence. Based on the agreed facts the packaging process for the drugs commenced about 6:30 PM on 16 February 2019. At that time the firearms are not at the same location or at least not in the same room as the drug packaging operation, and the guns are not involved in the packaging process.

17. The agreed facts as to the possession of the firearms offences show that on 15 February 2019 at about 8:20 PM both offenders were handling a sawn off single shot 12 gauge shot gun. Connell handed the gun to Black who held it for about one minute. At 9:12 PM nearly an hour later Connell told Black that he (that is Connell) would keep the firearms at his residence for defence against other criminal elements hiding them loaded in the wall cavity near the front door. Black then stated “you’re going to jail if you get caught with them” and Connell replied “that doesn’t concern me… If they hit me with that they will try it won’t be just possession of firearms it will be like possession of firearms used to, in the commission of the ongoing criminal activity one of those bullshit charges bro”. In the light of these agreed facts the argument that there was a lack of connection between the drug criminal activity and the firearms criminal activity was an ambitious one. The offender properly conceded that the matter was serious but submitted that it was a far cry from actually using the firearms in a robbery.

16. On the following day 16 February the guns the subject of the charges were brought into the property where the drugs were to be packaged by Black. It seems Black wished to show the guns off to his young son. There is no suggestion that the guns were loaded at the time. Black later took the firearms outside and it was after that that the drug packaging commences.

17. When the firearms were found by the police they were found in Connell’s car.

18. I consider the objective seriousness of these possession offences varies between the offenders because of their different roles in the possession of them. It is plainly Connell who is intending to use these weapons for a criminal purpose as he said it was for defence from criminal elements. Connell also appears responsible for introducing the firearms to the situation, given that they were ultimately found in his car. Consistent with this view, the nature of Black’s possession of these weapons is of a lesser degree of seriousness than Connell’s.

19. In assessing the objective seriousness of these offences I have had regard to R v Farrell [2015] NSWCCA 68. The weapon involved in that case was an Uzi 9mm machine pistol. The attempts to conceal that weapon were greater than here, and it is likely to be of greater risk to the community given its machine pistol characteristic. In that case, unlike here, the serial number had been removed. The sentence imposed and which the Court of Criminal Appeal was not persuaded was unreasonable or plainly unjust, was a two year ICO following 9 ½ months imprisonment on remand. Hanley DCJ at first instance found the offending fell well below the mid range of objective seriousness.

20. In leaving this decision undisturbed, Bellew J noted the following matters, at [48]:

Firstly, the inherently serious nature of offending against s. 7(1) of the Act is reflected in the maximum penalty set by Parliament. In the present case, the Crown placed significant reliance upon the nature and characteristics of the firearm to demonstrate what was said to be the seriousness of the offending and the manifest inadequacy of the sentence. However, they were not the only factors which were relevant in determining the seriousness of the offending. Given the charge, the nature and circumstances of the respondent’s possession of the firearm were obviously relevant.

23. I would assess the objective seriousness of the firearms offence relating to the sawn off shot gun as being well below the mid range in respect of Black and also below the mid range for Connell, though I assess Connell’s offending as slightly more serious.

24. I reach almost the same conclusions in respect of the possession of the pistol offence, which for each offender I consider just marginally of less seriousness as that weapon was handled only once in contrast to the shot gun which was handled twice.

25. The Crown acknowledge that as the firearms offences were committed in the course of the drug enterprise it would be appropriate to have partly concurrent sentences or for an aggregate sentence to be imposed.

THE AUTHORITIES

26. I have mentioned the case of Newman elsewhere in these reasons. The sentence imposed by the Court of Criminal Appeal was an aggregate sentence of 6 ½ years with a non parole period of 4 years (with a discount of 25% for the guilty plea and a further 35% for assistance to authorities). A case not far removed from the facts of Newman was that of Lee [2019] NSWCCA 106. In that case the Court of Criminal Appeal held that the primary judge had made an erroneous assessment of the offender’s role in the drug supply enterprise and therefore in the evaluation of objective seriousness. The charge in the case was the same as here, a breach of section 25(2) DMTA. There were three form one matters being dealt with, being a proceeds of crime charge in respect of some $23,000, participating in a criminal group and knowingly allowing the use of premises the offender occupied as drug premises.

27. The appeal succeeded because there was no evidence to support the finding of the offender as the source of the drugs in question as had been found by the primary judge. The sentence of 7 ½ years with a NPP of 5 years was reduced to 6 years with a NPP of 4 years. The amount of cocaine in that case was just on 1 kg. The objective seriousness of the drug offence was assessed to be somewhat below the midline. This assessment was made on the basis that whilst the offender was not the “source” of the drugs, nor was it accepted that he was a mere warehouseman. A guilty plea was entered in the Local Court, so presumably the sentence reflected the 25% discount.

28. The other case I found helpful was that of Nye [2018] NSWCCA 244. One charge was of supplying methyl amphetamine of a large commercial quantity, some 3.9 kg. A second charge was of supplying a large commercial quantity of amphetamine of 1.34 kg. A third charge was of supplying a commercial quantity of methyl amphetamine. There were two further drug charges to be taken into account on a form one, the first being a possession charge and a second being a further supply charge. There were also two related matters relating to large quantities of cash dealt with under section 166 of the criminal procedure act. Those matters however resulted in verdicts of not guilty.

29. Whilst the weight of the drug methyl amphetamine in Nye could be viewed as comparable to our present case (though it is only some 66% of the quantity) I note that the drug is different and also, perhaps more significantly, that the purity in the present case is between 5.5% and 6.5%. In Nye the purity of the 3.9 kg of methyl amphetamine was some 78% with a value of some $2 million. There is no evidence in our present case as to the value of the drugs.

30. In Nye the Court of Criminal Appeal reconsidered the sentence (for it was not ultimately disturbed) because the primary judge had made an error in considering the offences a series of criminal acts and because he had been proceeding on the basis of the wrong maximum sentence.

31. The sentence imposed by the primary judge which ultimately was not disturbed was not an aggregate sentence, but the effect of the sentences for each of the three offences was a total head sentence of imprisonment for eight years and the non-parole period of five years and eight months.

32. The Crown referred to Briouzguine [2014] NSWCCA 264. There were 4 charges, 1 of supply prohibited drug and 3 of supply a large commercial quantity of a prohibited drug. The drug for 3 of the counts was MDA, as in our present cases, 2 of which were supply a large commercial quantity of MDA, as is count 1 in our present cases. For those two offences indicative sentences was stated to be 7 years and 4 years. The respective quantities involved were 2900g and 882g. Owing to the facts of the matter it was conceded by the Crown that those sentences should be substantially concurrent. The role of the offender in this case was something of a mix between a street dealer and one step removed from street dealer; both he and another person were sourcing drugs which they then supplied to each other. The primary judge found the role did not exhibit criminality of a high order associated with a principal in an extensive and organised network distributing large quantities of prohibited drugs. The appeal by the offender asserted the overall sentence to be manifestly excessive. The appeal was dismissed.

33. What these cases show is that sentences in the realm of 8 years for these offences of utmost seriousness are both imposed by the Court of Criminal Appeal and also left undisturbed. That said, it remains to determine each individual case on its on facts and circumstances. The brief case review just conducted is of more assistance than the statistics referred to below, but also has similar limitations. With the statistics the facts are not known; with comparable cases no two sets of facts are the same.

Statistics

34. The submissions made on behalf of the offender Connell, adopted by the representative of Mr Black, sought to assist the Court by identifying a penalty range for offending of this type by reference to the Judicial Commission statistics. In doing so the limitation on statistics was recognised, namely that without knowing the particular facts of the matters the subject of the statistics, guidance for the particular case being dealt with is somewhat speculative. Further as pointed out by the Crown the sample of statistics since the amendments to the Crimes (Sentencing Procedure) Act in 2018 was in this case limited to some 18 matters.

35. A further limitation in this case is that the statistics referred to cases where the offence involved particular types of drugs but without a category for the drug in question in this case, which is referred to as MDA. The agreed facts do not actually state what MDA is. Its acronym suggests some chemical similarity to MDMA commonly known as ecstasy. Counsel for Mr Connell volunteered without contradiction that MDA is in fact methyl amphetamine. Part of the argument for the use of statistics by the offenders was that the statistics relating to MDMA could provide some assistance. A review of the statistics showed a vast majority of sentences for MDMA offences receiving sentences of between four and eight years and in respect of amphetamines the range was between six and 10 years, or 6 to 12 for the older cases, that is pre-September 2018. The limitation on the statistics is marked in this case because just how many of those cases just referred to involve 6.5 kg of the drug? I do note the range of 6 to 10 years just referred to is comparable to the range suggested by the cases discussed above.

THE SUBJECTIVE CASES

Connell

36. The evidence relied upon by Mr Connell was a psychological report of Kim Dilati a forensic psychologist dated 3 December 2019 and references from his father George, a close friend Bec Washington and another close friend Alan Virtue.

37. The psychological report was prepared after an interview with Mr Connell, in the course of which various testing was undertaken and also with the psychologist having the benefit of various documents including the agreed facts. In terms of presentation the psychologist noted there was no evidence of formal thought disorder or psychotic features and that he engaged well. The comment was made that he displayed limited insight and judgment into his mental health and offending behaviour. It records that Mr Connell was born in Moree the youngest of three siblings. His father was a high school teacher and his mother worked part-time. His mother passed away in 2018. His upbringing was free of significant deprivation though he does give a history of a tumultuous relationship with his father. There was some conflict at home described by the offender as “a lot” with his father, who on the offender’s account was often drunk and verbally abusive to his mother. His relationship with his father is now amicable and his father is supportive of the offender in his present circumstances.

38. In early high school the offender performed well however in year eight and year nine began drug use and disruptive behaviours leading to suspension from school. Mr Connell is a single parent and lived up to his incarceration with his seven year-old daughter in Wollongbar.

39. In 1998 he began a butcher apprenticeship in a business which he later purchased in 2010. A back injury from work in 2010 led to the selling of the business. Since 2013 he has been unemployed, he says due to the back injury.

40. The offender acknowledges being abusive in his relationships though he now maintains an amicable relationship with the mother of his daughter. It was in 2016 that Mr Connell became a full-time carer for his daughter as the mother moved away with a new partner.

41. The offender has a significant substance use history starting with cannabis at age 14 and binge drinking from age 16. From age 18 drug use escalated to daily and he started weekend ecstasy use and recreational use of LSD and magic mushrooms during his 20s and then commenced daily amphetamine use. This was from about the age of 27 at which time cocaine was also regularly used. From the age of 34 which would be 2015 he started using heroin. He disclosed a history of selling drugs. He also became hooked on prescription painkillers for his back injury. The offender sought assistance from a counsellor in 2012 and attended for 6 to 8 sessions and was abstinent for approximately four months. On the night of his arrest he used cocaine and had approximately 12 beers. He has indicated he is willing to seek help and remain abstinent.

42. In addition to his work injury he also suffered numerous broken noses from intoxicated altercations and was also involved in a car accident after which he was arrested with a high range PCA.

43. The offender presented with a limited mental health history though he was diagnosed with reactive depression after the death of a close friend in 2010. Since incarceration he has been prescribed Avanza to improve his mood.

44. The offender complained of paranoia and of generalised anxiety when drug-free.

45. The offender scored in the mild range of depression, the normal range of anxiety and the normal range of stress when the depression anxiety and stress scale test was administered. A separate test suggested that the offender was experiencing a constellation of distressing symptoms.

46. In terms of risk assessment the tools used by the psychologist had the offender scoring within the moderate range of future violence which was the measure of the test for reoffending. Counselling can be effective in reducing this risk.

47. He is currently functioning adequately psychologically. The diagnosis proffered by the psychologist was a stimulant use disorder and a cannabis use disorder which on the history of this offender is with respect hardly surprising and one I accept.

48. The psychologist also concludes that the drug use as given in the history of this offender rapidly spiralled out of control which led to overall poor decision-making a conclusion with which I would agree. In order to avoid this continuing there needs to be long-term treatment of counselling, psychotropic medication, psychoeducation intrinsic motivation, personal responsibility and relapse prevention planning.

49. The psychologist states that the offender demonstrated appropriate remorse for his offending. He identified the impacts of his behaviour on his daughter. I consider that understandable and I accept it shows insight.

50. The offender sought to justify his possession of weapons by stating he is interested in guns as a hobby which frankly is an absurd thing to say in the circumstances of the agreed facts. Returning to a more realistic statement the offender appeared motivated to cease his offending behaviours for the benefit of his daughter. Perhaps because of this the psychologist expressed the view that Mr Connell would remain compliant with conditions imposed and spoke optimistically of rehabilitation if the proposed treatment plan was adhered to. The prospects of rehabilitation are better with a shorter sentence (see page 10) and that is a matter I take into account on the question of special circumstances.

51. In the reference from George Connell the offender’s father it is said that the offender turned to his mother in times of need and that his mother’s death affected the offender significantly causing him to lose some direction. I accept there would have been some significant distress at the loss of the offender’s mother but it is clear from the history that he had lost some direction well before then.

52. The loss of his mother coincided with the greater responsibility of parenting and a reduction in the opportunities for work though that too may not withstand scrutiny. The offender has not worked full-time if at all since 2013 due to his back injury. I do accept though what the offender’s father says, that since incarceration he has been attentive to the father’s health and based also on what was said in the psychologist report of appearing to be in reasonably good spirits and proud of himself of how he is coping, it may even be that the arrest is something of a turning point in realising how he was misspending his life. This view is further supported by the remorse that was expressed to the psychologist and also expressed to his father and the fact that the offender made no excuses.

53. Pausing there, the final sentiments of the father’s testimonial are sentiments which, whilst one would expect them to be made, have some basis in this case. The offender is a person who was a tradesman for some 12 years working for the one business before ultimately buying it before his recreational drug use spiralled out of control. His criminal history which I refer to below is far from pristine but this is by far the most serious offence that he has committed. His behaviour as recorded in the agreed facts shows that he embraced the antisocial lifestyle that he was very much a part of. The view I form of the offender is that he fully recognises the errors he has made and that an understanding and full appreciation of the dangers of his lifestyle has just come too late. Whilst there is a need for a significant sentence I do take into account favourably to the offender his expressions of remorse which I accept and that in his personal circumstances the prospects of rehabilitation are reasonable though will take time.

54. The two remaining references support the view that I have just expressed. Ms Washington recounts that the offender was close to his family and was a loving father and well liked by his workmates and customers. The reference from Mr Virtue also impressed me. Despite the substance abuse issues that the author was clearly aware of this person has taken the trouble to contact the offender weekly and also to have visited him in jail. That somebody would support the offender in this way reflects well on the offender.

55. I have read the submissions on the subjective matters and have covered the topics relevant above. The one point of difference really is that I do not accept that the disadvantaged childhood argument in this case is on a level of the type of cases referred to in R v Millwood [2012] NSWCCA 2. The evidence simply does not bear that out.

56. The offender pleaded guilty at the first opportunity and there is no dispute that he is entitled to the 25% discount.

57. In terms of the offender’s criminal history he first came to the notice of police at the age of 18 in 1999 for what might be called street offences of using offensive language and not comply with a direction. Those matters were dismissed under the then section 556A. Some two months later he was charged with driving with mid range PCA and received a fine. Seven years later he received a fine for driving with a mobile phone and another fine for driving with a low range PCA. The month before that he was charged with negligent driving. Three years later in 2009 he was fined for possessing a prohibited drug. In 2015 he was fined for committing assault. In Queensland in 2016 he failed to appear on a charge of possession of a knife in a public place. This criminal history is one that is sufficient to deprive the offender of leniency that might be shown to somebody without any criminal history. However it is notable that the entirety of his offending with the possible exceptions of the assault charge and the knife charge, is related to his substance abuse be it alcohol or drugs. It has never resulted in a term of imprisonment reflecting the low level of criminality involved. The current offence reflects a degree of criminality very far removed from his earlier behaviour.

58. In the submissions of this offender the section 21A factors of both an aggravating and mitigating kind were addressed. I agree that the prior convictions are of little consequence in the sentencing consideration. Indeed those offences support the view I had formed, expressed above, that there is indeed a basis for hope for this offender upon his ultimate release. The offender argues that other possible aggravating features should not be taken into account against him, in broad terms because they are intrinsic to the offence itself. This argument applied to the matters of danger to public safety, the nature of planning, and the inherent financial gain. The matter of the degree of planning and sophistication has been taken into account in assessing the objective seriousness of the matter as has the issue of financial gain. That they were considered in terms of objective seriousness is in keeping with that submission being made by the offender. I accept the offender’s submission in this regard.

36. As to mitigating factors, the offender points to the low level of the criminal history, the guilty plea and remorse are relied upon as is the prospects of rehabilitation. I have discussed these matters above and in broad terms I accept the submission.

37. Taking all these matters into account I am able to arrive at a sentence for each of the charges. I propose setting out my indicative sentences for I consider it appropriate to proceed by way of an aggregate sentence. In doing so I have taken into account the maximum sentence and the standard non parole period set out at the beginning of these reasons, and note the discussion of the SNPP provisions in Tepania v R [2018] NSWCCA 247, especially at [110]-[111]. Before doing so however I need to take into account the form one matters in relation to the s25(2) DMTA charge. There were two possess prohibited drug charges being cocaine and cannabis, which the Crown accepts was for personal use and indeed was being used on the night of arrest. Each of those offences has a maximum sentence of two years and/or 20 penalty units. My view is that those offences have little impact on the overall sentence. The third of the four form one matters was a possess ammunition charge which is fine only offence of 50 penalty units and I take that into account. The remaining charge is dealing with proceeds of crime being $2410 in cash which has a maximum sentence of three years. In my view that requires more significant consideration than the possess drug matters and I take it into account accordingly.

38. In regards to the form one procedure it is important that the focus remains on the principle offences for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community’s entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ.

39. In arriving at these indicative sentences and ultimately the aggregate sentence which I will set below I have been much guided by the discussion as to the comparable cases above. The result that I come to is that the indicative sentences, prior to applying the 25% discount, should be as follows:

1. Supply large commercial quantity of MDA:   9 years:

2. Possess shortened firearm:         2 ½ years:

3. Possess pistol:               1 ½ years.

63. Allowing for the discount for the early guilty plea and allowing for a reasonable degree of concurrency for the firearms offences, I set an aggregate term of imprisonment pursuant to section 53A of 8 ½ years.

64. The Crown argued against special circumstances on the basis that due to the length of the sentence the statutory ratio would result in a lengthy period on parole to facilitate any rehabilitation. Based on the evidence of a psychologist this offender is facing a long period of rehabilitation and treatment and the certainty with which that might be provided in custody is far from certain. For that reason I consider rehabilitation requirements to justify a finding of special circumstances as does the fact that this will be the offenders first time in custody. For those reasons I find that there will be a non-parole period of 5 ½ years.

65. The offender was taken into custody in respect of this matter solely on 16 February 2019 which is a total of 304 days in custody as at today’s date 16 December 2019. I will backdate the sentence to commence on 16 February 2019.

SNPP

66. The charge under s25(2) DMTA has a SNPP of 15 years. Like the maximum sentence of life imprisonment, that is a legislative guidepost. The charge under s7(1) of the Firearms Act has a SNPP of 4 years. By s54B(4) when an aggregate sentence is imposed in respect of one or more offences, then for those offences for which there is a SNPP the Court must indicate the non parole period it would have set for each such offence, and by s54B(5), if the non parole period differs to the SNPP the Court must make a record of the reasons why it would have done so and identify each factor it took into account.

67. The non parole period I would have set if dealing with the s25(2) offence solely would have been 4 ½ years, which is the indicative sentence discounted by the 25% for the guilty plea, then further discounted taking into account the special circumstances set out at par 62 above. I also have regard to the air of unreality of the exercise given that the head sentence is itself less than the SNPP, an occurrence which the authorities and statistics show is very common. The outcome I have come to is, where special circumstances have been found, I note, in line with the intent of s44(2B). There is a clear tension in the legislation where, as here, the head sentence is less than the SNPP. If the SNPP is used as a guidepost, as I have used it, then some guidance as to what is an appropriate non parole period in circumstances where the head sentence is less than the SNPP can be taken from s44(2B).

68. For the same reasoning, the non parole period for the s7 offence would have been 7 months, though to properly reflect the seriousness of that offence when looked at in isolation I would have imposed a non parole period of 9 months.

ORDERS: CONNELL

69. Rohan Connell, of the three offences with which you are charged you are convicted.

70. I have indicated the indicative sentences above taking into account the matters on the form one.

71. Pursuant to section 53A I impose an aggregate sentence of 8 ½ years commencing on 16 February 2019 and expiring on 15 August 2027.

72. I impose a non-parole period of 5 ½ years commencing 16th February 2019 and expiring on 15th August 2024. I have stated above my reasons for varying the statutory ratio as required by section 44(2B).

73. The earliest date for which you will be eligible for release is 15 August 2024.

SUBJECTIVE CASE  

BLACK

74. In respect of the offender Andrew Black a sentencing assessment report had been obtained. He is the father of three children to 2 women and intends to reside with the mother of his older children when released. The report notes that this offending occurred whilst on parole so that this offending places him in breach of that parole. That matter is being monitored by the state parole authority who are next to consider the matter once this court outcome is known though the report refers to a date earlier than now, presumably because the report writer expected the matter to be finalised before now. The fact of the offending occurring whilst the offender was on conditional liberty is of course an aggravating factor.

75. The offender was unemployed at the time of entering custody. He admitted to being entrenched in a drug dealing lifestyle. He asserted that he was motivated to commit the offence in order to pay a large historical drug debt relating to a prior offence. He asserted his family had been threatened by the creditor/s and that had he not so acted by offending the matter would have ended in violence. He accepted that he would also benefit financially in addition to getting out of debt quickly. He was anxious prior to the arrest but felt it was too late to stop. The offender’s substance use history seems to involve having been abstinent during his previous custodial term of some three years ending approximately six months before the current offending but then lapsing upon release into occasional cocaine and ice use. The report records insight into the impact of offending and regret for having let his family down. He is willing to engage in interventions

76. On the two occasions he has been subject to parole the supervision was suspended due to his compliance and low assessed risk level though the current offending is clearly an exception to that. He was assessed as a medium risk of reoffending. He was assessed as suitable for community service work. The offender does not argue for a non custodial sentence.

77. Mr Black also relied on a psychiatrist report dated 27 April 2016 ironically prepared for his last occasion when appearing for sentence. It is convenient to refer to that earlier offending now. That earlier sentence was for supplying a prohibited drug of more than an indictable quantity. The agreed facts of that offence form part of exhibit “A” in this case. It was a supply of methyl amphetamine in the same district as the current offending. The actual charges were of two counts of supplying a prohibited drug of more than the indictable quantity and one charge of knowingly deal with proceeds of crime. The amount of drugs found in the offender’s possession on that occasion was 166 g of methyl amphetamine with a purity of 80%. He was also found to be in possession of four firearms and cash of some $105,000.

78. Beyond that offence the offender’s record commences in 2003 at the age of 19 with driving offences followed in 2006 with more driving offences and again in 2007. But for the significant offending in 2015 (sentenced for in 2016) the record is of a similar nature to Mr Connell. I should note that the sentence imposed for the 2015 offences was an aggregate sentence of six years with a three-year non-parole period which concluded on 19 August 2018, that is, six months before this offending and with 2 ½ years of a parole period remaining.

79. Returning then to the psychiatrist report of 27 April 2016. In the history he gave to the psychiatrist he said he had been on a slippery slope for about 10 years after having referred to his drug use getting out of hand. He asserted that the possession of guns had arisen from a long association with guns in a legitimate way in connection with his country upbringing. No such assertion is made on this occasion.

80. He said the large amount of money involved in that case was being held by him to give to a larger scale drug dealer upon that man’s release. He described his state of mind back in 2016 as being one of permanent paranoia. Unfortunately that does not assist me as to his state of mind in the present matter.

81. The report is useful for some history. An elder brother committed suicide but the offender said he was unaware of any diagnosed mental illness of himself or other members of the family. His upbringing was not deprived though he was affected by his brother’s suicide. He had made attempts and did indeed see a counsellor but found the experience difficult. Apart from the substance use his medical history is of good health overall. In terms of substance use or misuse he drank alcohol from his teenage years and first had cannabis at age 12. He took amphetamine as a teenager and smoked methamphetamine from about the age of 20. He is the youngest of three children and was raised by his mother and stepfather. His surviving sibling has a qualification in information technology. School was relatively uneventful and he worked for a panel beater for three years on leaving school and held a series of other jobs until about 2014. He has three children aged in 2016, 10, 5 and 14 months, so now approximately 13, 8 and 4. He is a competent mechanic.

82. A mental state examination made favourable findings.

83. A psychiatric diagnosis of substance use disorder in remission was made.

84. The psychiatrist on the basis of this material assessed the offender to have good prospects of rehabilitation. The background would support that conclusion. He seems to have been a productive member of society until about 2014 albeit one with a significant drug use issue. He has some family support. One could see why optimism would be expressed that rehabilitation would occur. Sadly however the evidence now is to the contrary and in a substantial way.

85. Also relied upon by Mr Black was a letter he wrote to the Court stating he accepted full responsibility for his poor decision-making. He acknowledges he will receive a lengthy custodial sentence and sets out what he plans to do by way of education and rehabilitation. At the least this demonstrates some insight as to the need to change his lifestyle, to put it mildly. Mr Black is to be encouraged to take the course that he discusses in that letter. Already he says he has obtained a trusted position in the mid North Coast correctional Centre. He notes that he will miss out on significant time with his children. I take this letter into account in setting his sentence. Despite the significant seriousness of his repeated criminal behaviour he does create an impression of a person who has a degree of insight. One can only hope that after the second period of significant imprisonment he will truly rehabilitate, and this insight gives support for that prospect.

86. In support of his intended education into the future there was a letter from the education services coordinator of the mid North Coast correctional Centre supporting what he had indicated he wanted to do in his letter.

Consideration

87. I have assessed the objective seriousness of the offences of Mr Black above. In respect to the Form one matters (in relation to the s25(2) offence) I treat them in the same way as outlined above in relation to Mr Connell; see at [61]. In the case of Mr Black the form one matters are slightly less serious with three of them being possess prohibited drug charges and the fourth being a possess ammunition charge. The real point of difference is the absence of a deal with proceeds of crime charge.

88. I have set out the maximum sentences above and note also the standard non-parole periods. In respect of those matters I treat them as guideposts as recently discussed in Tepania v R referred to at [60] above. There is a significant aggravating factor to this offending, specifically the fact that it was committed a relatively short time into a parole period in respect of the offending of precisely the same nature though with a lesser quantity involved. I note the alleged motivation for the offending however that is on the untested say-so of the offender. The offender’s conduct since arrest has been commendable and he plainly seems to have applied himself well in custody.

89. I am conscious also of the need for parity with Mr Connell and but for three matters the sentence would necessarily be very similar. The three points of difference are firstly Mr Black’s criminal record where this is the second serious offence and not his first, secondly the fact of this matter being committed on conditional liberty, and thirdly that I consider the subjective case for Mr Connell to be stronger.

90. This offender is entitled to 25% discount for his early plea of guilty.

91. I am aware of the objectives of sentencing as set out in section 3A. The need for deterrence, denunciation and punishment, and the need to protect require a stern sentence. There is also the consideration of promoting rehabilitation. As in the matter of Connell I have been guided to some degree by the various cases referred to by counsel. I would note here also that there is a disparity between the offenders in respect of the sentences for the firearm offences because of the view I have taken as explained above that there was greater involvement in that regard by Mr Connell. I note the subjective matters suggest a history of firearms involvement by Mr Black however the agreed facts show him to be the lesser player in that offending.

92. The result that I come to in light of all the above considerations, objective and subjective, is that the indicative sentences, prior to applying the 25% discount, should be as follows:

1. Supply large commercial quantity of MDA:   11 years:

2. Possess shortened firearm:         2 years:

3. Possess pistol:               1 year.

93. Allowing for the discount for the early guilty plea and allowing for a reasonable degree of concurrency for the firearms offences, I set an aggregate term of imprisonment pursuant to section 53A of 9 years.

94. The non parole period I will impose will vary slightly from the statutory ratio. This is because the argument against a finding of special circumstances (mainly, the non parole period is necessarily a significant period, and the offender’s disregard for supervision on the last occasion) is outweighed by what I hope is not misplaced optimism that, as discussed above at [84] and [85], there does emerge from the material a basis for a finding, which I make, that there are prospects for rehabilitation, which are likely to be enhanced by a longer period of supervision.

95. For these reasons the non parole period shall be 6 years, which I note is at variance from the statutory ratio outcome by 9 months.

96. I will backdate the sentence to commence on 16 February 2019, the date that the offender was taken into custody.

SNPP

97. As to the requirements of s54B(4) I repeat par [66] above.

98. The non parole period I would have set if dealing with the s25(2) offence solely would have been 5 ½ years, which is the indicative sentence discounted by the 25% for the guilty plea, then further discounted taking into account the special circumstances discussed above. I repeat here my comments at [67] above.

99. For the same reasoning, the non parole period for the s7 offence would have been 4 ½ months, though to properly reflect the seriousness of that offence when looked at in isolation I would have imposed a non parole period of 6 months.

ORDERS: BLACK

100. Andrew Black, of the three offences with which you are charged you are convicted.

101. I have indicated the indicative sentences above taking into account the matters on the form one.

102. Pursuant to section 53A I impose an aggregate sentence of nine years commencing on 16 February 2019 and expiring on 15 February 2028.

103. I impose a non-parole period of six years commencing 16th every 2019 and expiring on 15th February 2025. I have stated above my reasons for varying the statutory ratio as required by section 44 (2B).

104. The earliest date for which you will be eligible for release is 15 February 2025.

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Decision last updated: 17 December 2019