R v Anthony Daniel McIver

[2016] NSWDC 95

District Court

New South Wales

Medium Neutral Citation:	R v Anthony Daniel McIver [2016] NSWDC 95
Hearing dates:	24 May 2016
Decision date:	27 May 2016
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full time custodial sentence. For orders see [34] and [35].
Catchwords:	Supply prohibited drug; possession; custody of knife in a public place
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985
Cases Cited:	Veen v R No. 2 (1998) Vol 164 CLR 465 at 477
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Anthony Daniel McIver (Offender)
Representation:	Solicitors: G Gaynor (Crown) R Bennett (Offender)
File Number(s):	15/323300
Publication restriction:	Nil

REMARKS ON SENTENCE

1. The offender was committed for sentence on 8 March 2016 from Queanbeyan Local Court, having pleaded guilty to one charge of supply prohibited drug (methylamphetamine 7.15 grams) pursuant to s 25(1) of the Drug Misuse and Trafficking Act 1985 (“DMTA”). The maximum penalty for the offence is 15 years imprisonment and/or a fine of $220,000.00.

2. In addition, there are three charges the subject of a Certificate pursuant to s 166 of the Criminal Procedure Act 1986 The are:

Sequence 2 – Possess prohibited drug.

Sequence 3 – Custody of a knife in a public place.

Sequence 4 – Possess proscribed restricted substance

The sentence hearing

3. The sentence hearing took place on 24 May 2016. The Crown bundle became Exhibit A. It included Agreed Facts which may be summarised as follows. The offence occurred on 3 November 2015. The offender was born on 1 June 1989 and was therefore 26 years at the time of the offence. He was at that time both on parole in respect of a previous sentence, and on bail, which he obtained on 19 August 2015 in respect of unrelated matters.

4. The circumstances of the offending and the offender’s arrest are somewhat extraordinary. On 3 November 2015 he attended Queanbeyan Police station to report, in compliance with his bail conditions. The police had received information that led them then to believe that the offender was in possession of prohibited drugs. He was therefore questioned about that at the police station and searched, whereupon police located a set of electronic scales and a capped syringe inside his shoulder bag. He was immediately cautioned and a further search revealed a large knife, approximately 30cms in length. During the search a bag fell from the offender’s waistband, and inside that bag police located four clear clip-seal bags containing 7.15 grams of methylamphetamine, which is the subject of this sentence.

5. The police also found a sealed bag containing a number of different coloured pills, which were analysed as Diazepam, and a further green tablet, which was analysed as MDMA.

6. The contents of both those bags and the custody of the knife referred to above, comprise the three matters referred to in the S 166 Certificate.

7. The offender was arrested and has been in custody since his arrest. Therefore, he has now been in custody from 3 November 2015 to 27 May 2016, a total of 206 days.

8. The Crown seeks following sentence, an order to destroy all illicit drugs and other drug related exhibits, including drug paraphernalia and an order for the accused’s phone to be forfeited as it was used in commission of drug related offences. Those orders are not opposed.

9. Exhibit A included the offender’s criminal history. In New South Wales he had been convicted on 17 February 2010 of the following offences which occurred on 16 February 2010:

1. Resist officer in execution of duty – Fined $200.00.

2. Receive stolen property – Imprisonment 18 months with non-parole period of 12 months.

3. Drive with high range PCA – Imprisonment 18 months with non-parole period of 12 months.

4. Drive whilst disqualified – Imprisonment 12 months with non-parole period of 9 months.

5. Drive vehicle recklessly/furiously or speed/manner dangerous – Imprisonment 12 months with a non-parole period of 9 months.

10. On 4 May 2011 he was convicted of an offence of resist officer in the execution of his duty and fined $700.00.

11. On 13 August 2014 he was convicted of the following offences:

1. Assault occasioning actual bodily harm – imprisonment 15 months with a non-parole period of 10 months.

2. Armed with intent to commit indictable offence – imprisonment 15 months with a non-parole period of 10 months.

3. Take and drive conveyance without consent of owner – imprisonment 9 months with non-parole period of 6 months.

4. Break and enter house and steal – imprisonment 12 months with non-parole period of 9 months.

12. On 5 January 2016 the offender had been convicted of the following offences:

1. Drive motor vehicle during disqualification period – 2nd offence – imprisonment 7 months with non-parole period of 4 months.

2. Take and drive conveyance without consent of owner – imprisonment 7 months with non-parole period of 4 months.

3. Goods in personal custody suspected of being stolen – imprisonment 4 months.

13. It was the offences to which he was sentenced on 13 August 2014 which related to his conditional liberty, namely, for which he was on parole, which expired on 12 November 2015, some nine days following the subject offence. Further, he was granted bail on 19 August 2015 in relation to unrelated matters.

14. In addition to the above criminal history, the offender had a history of criminal convictions in the ACT. There were numerous offences in the ACT Children’s Court between 2003 and 2008, and thereafter in 2009, a conviction for possession of methylamphetamine, and convictions for various matters including theft, driving whilst disqualified, driving under the influence of alcohol, taking motor vehicles without consent, together with a number of other minor misdemeanours. In 2013, the offender had been convicted and sentenced to a term of imprisonment by the ACT Supreme Court on charges of theft, burglary and breach of previous Bonds, and in 2014, he had been convicted and sentenced to a term of imprisonment in respect of a charge of drive a motor vehicle without consent.

15. Exhibit B was a pre-sentence report under the hand of Gavin McDonald dated 11 May 2016. The author noted that the offender had been in foster care since age five, and had manifested behavioural and learning difficulties until the termination of his education at age 15. He maintained contact with his foster parents, however, he had experienced substance abuse and dependence issues from early adolescence. He commenced using cannabis at the age of 14 and progressed to heroin and methylamphetamine use from the age of 20 years. He has been on a methadone treatment program in recent years. The author of the report stated that the offender showed a tendency to increase his dependence on illicit substances when undergoing interpersonal or emotionally disruptive events. The offender therefore needed to become more resilient in dealing with unexpected events in his life. It was the opinion of the author that the offender would benefit from a period of supervision by Community Corrections, and case management strategies would include regular urinalysis and referral for substance abuse and emotional management programs. He was assessed as being unsuitable for Community Service.

The offender’s evidence

16. The offender gave evidence that he had been in custody for six and half months since his arrest. Prior to his arrest, he was living at a flat in Queanbeyan, having been assisted by a local church. He had grown up in Canberra in foster care, and remained in contact with his foster parents who were very supportive. His own mother had died when he was aged 13 years, and he had never met his father. He gave evidence that he commenced using drugs at age 12, and was now on a methadone program, which he was hoping to reduce. He was educated to year 6 at primary school, and then attended Galilee College, a special needs school at Kanbar to year 10, which he did not finish. He had been diagnosed with ADHD and prescribed dexamphetamine. He was taking no medications at the time of the offending.

17. The offender gave evidence that he was welcome at a local community church, which had counselling services available. He understood that a full time custodial penalty would be imposed. His previous sentence had expired on 2 March 2016, and he had therefore been placed back in remand from that date. He was now at Goulburn gaol and was classified as a protected inmate.

18. Upon release from custody, the offender planned to go to TAFE and qualify as a personal trainer. The local church community were still supportive of him, and he was positive that he would re-engage with that group. He was also planning to undergo counselling and drug and alcohol rehabilitation.

19. Prior to his arrest, he had paid his rent on time.

20. In cross-examination, the offender acknowledged that he was on supervised parole at the time of the offences. His only rehabilitation had taken place at the Gillard Centre, which was not effective. It involved him attending one hour per day and he “didn’t really get into it”. He had also previously attended a residential program which he completed at Arcadia House. It was a nine week program, following which, he was abstinent for approximately one year before he relapsed into illicit drug abuse. It was his intention on release from custody, to commence study into a personal training course.

The Crown submissions

21. The Crown submitted that it was a significant aggravating factor here that the offending had occurred whilst the offender was still on parole, and subject to bail conditions. Further, his criminal history disentitled him to leniency and warranted a full time custodial sentence. In terms of backdating his sentence, his sentence, his previous sentence imposed on 3 November 2015, had terminated on 2 March 2016.

22. The Crown acknowledge that a 25% utilitarian discount on sentence should be allowed in view of his early plea of guilty. In respect of the offences contained on the 166 Certificate, penalties were to be imposed on those offences.

Submissions of the Offender

23. The offender acknowledged that there were significant aggravating factors, namely, that the offending occurred whilst he was on parole and whilst he was on bail. However, he had almost completed his parole period, and was nine days short of doing so. The court would take into account the time that he had already served, and the fact that the offending was “unsophisticated”. It was submitted that the local church community was willing to support him and that he was clearly disadvantaged in the community. He did have a good relationship with his foster parents and hoped to undergo counselling to assist in his constructive return to the community.

24. It was submitted that the court should find special circumstances pursuant to s 44(2) in the event that a suspended sentence was considered inappropriate.

Determination

25. Section 3A of the C(SP)A sets out the purposes of sentencing as follows:

“3A The purposes for which a Court may impose a sentence on an offender are as follows:

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community.”

26. I accept the submission of the solicitor for the offender, that the offending here was “unsophisticated”. Notwithstanding the circumstances of his arrest being almost comedic, the offending remains a serious offence pursuant to s 25(1) of the DMTA. The objective seriousness of the offending here, however, in the circumstances, is towards the lower end of the range for offences pursuant to s 25(1).

27. I have had regard to what the High Court said in Veen v R No. 2 (1998) Vol 164 CLR 465 at 477 where the plurality said:

“The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. The antecedent criminal history is relevant, however, to show that the incident offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In that case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.”

28. The offender falls within the latter category of cases, and therefore he is disentitled to any leniency based on his previous criminal record, which is appalling.

29. I have had regard to the maximum penalty of 15 years imprisonment and/or a fine of $220,000.00, as a guidepost in the sentencing process. I have also had regard to the offender’s plea of guilty which entitles him to a 25% utilitarian discount on sentence. He is also entitled to have taken into the time that he has already served, a period of 206 days, however, part of that time related to his previous sentence.

30. An aggravating factor here is clearly the fact that the offender was on bail imposed on him on 19 August 2015, less than three months prior to the offence. Further, he was still on parole, with another nine days to serve on parole. These are both aggravating factors to be taken into account in the sentencing of the offender.

31. The subjective factors emphasised on the offender’s behalf are not strong. Whilst he has a strong relationship with his foster parents, they are not prepared to have him live with them, and he is reliant on the local church group in Queanbeyan for accommodation and support.

32. Having regard to his need for drug and alcohol rehabilitation, I make a finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (“C(SP)A”).

33. I intend to sentence the offender for a total of 2 years and 3 months imprisonment, with a non-parole period of 15 months.

Orders

34. I make the following orders:

1. You are convicted of the offence pursuant to s 25(1) of the DMTA 1985.

2. I sentence you to a non-parole period of 15 months, to commence on 2 March 2016 and expire on 1 June 2017.

3. I sentence you to a further term of imprisonment of 12 months from 2 June 2017 to 1 March 2018. The total term of imprisonment is 2 years and 3 months.

35. In relation to the offences certified pursuant to s 166, I sentence you as follows:

1. Sequence 2 – possess prohibited drug – I sentence you to 3 months imprisonment from 27 May 2016 to 26 August 2016.

2. Sequence 3 – custody of a knife in a public place – I sentence you to a fixed term of imprisonment of 3 months from 27 May 2016 to 26 August 2016, to be served concurrently with the above sentence.

3. Sequence 4 – possess restricted substance – I dismiss this charge pursuant to s 10A(1) of the CSPA.

36. I further order that the drugs and drug paraphernalia, the subject of these offences be destroyed.

37. I further order that the offender’s phone be forfeited.

38. I note the parole eligibility date is 1 June 2018.

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Decision last updated: 30 May 2016