R v Aston (No 2)

[2018] NSWDC 428

District Court

New South Wales

Medium Neutral Citation:	R v Aston (No 2) [2018] NSWDC 428
Hearing dates:	13 June, 18 October 2018
Date of orders:	18 October 2018
Decision date:	18 October 2018
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Sentenced to imprisonment for a term of 1 year, 9 months commencing today, 18 October 2018 to be served by way of intensive correction in the community.
Catchwords:	CRIME – SENTENCE – DEEMED SUPPLY OF PROHIBITED DRUG (3,4 MDA) – Offender attempts to take into a dance festival 115 tablets of prohibited drug – Offender did so at request of a man met outside the festival venue for a promised reward of $600 – Man in early 20s whose life had been affected by drug addiction since shortly after leaving school – In custody for 3 months and 7 days at time of sentence – Drug free during that period – Offender now aware of his problem and determined to stay off drugs – Also called up for breach of section 9 bonds – Time spent in custody served for breach of bonds – ICO of 1 year and 9 months imposed, including attending a full-time residential drug rehabilitation course for minimum of 3 months
Legislation Cited:	Drug Misuse and Trafficking Act 1985
Cases Cited:	Parente v R [2017] NSWCCA 284
Category:	Sentence
Parties:	Regina (Crown) Aaron Brian Aston (Offender)
Representation:	Counsel: Ms A Philpot (Crown) Mr Z Khan (Offender)   Solicitors: ODPP (Crown) Toomey Defence Lawyers (Offender)
File Number(s):	2016/370646
Publication restriction:	Nil

Judgment

1. HIS HONOUR: Aaron Brian Aston stands for sentence as a consequence of pleading guilty to a charge that on 10 December 2016 at Sydney Olympic Park in this State he did supply a prohibited drug, namely, 3,4-methylenedioxyamphetamine. I shall refer to that drug hereafter as 3,4MDA.

Facts

2. On Saturday 10 December 2016 there was being conducted at Sydney Olympic Park a dance festival known as the “Knockout Circuz Dance Party”. In connection with that dance festival, the police were conducting an operation using drug detection dogs. At about 6.50pm the offender was approached by Senior Constable Matthew Grand who was attached to the Police Force Dog Unit and was handling a drug detection dog known as Rachey. Rachey had been trained to detect the odours of a number of drugs including heroin, cocaine, cannabis and amphetamines, including speed, methylamphetamine, methamphetamine and crystalline methylamphetamine and amphetamine analogues such as MDMA and 3,4MDA. Drug detection dog Rachey stopped at the accused and indicated by her demeanour to her handler that he had on his person a prohibited drug.

3. The offender was then cautioned by Senior Constable Grand who asked him whether he had any illegal drugs on him. The offender said, “Yes. I have some pills down my pants.” Senior Constable Grand then asked the offender how many pills he had, and the offender replied, “About 110. Some guy out the front was going to pay me $600 to bring them in.” The offender was then led to a designated search area where he was to be searched by the police. He reached into his underwear and removed a blue balloon filled with numerous brown tablets. Those brown tablets were seized. After he did that, the offender was searched by another constable who did not locate any further drugs on his person.

4. He then had a short interview with Senior Constable Tara Warwick from Bankstown Detectives. She advised the offender that he was under arrest for possessing a prohibited drug. She formally cautioned him. This conversation then occurred:

“WARWICK: So tell me more about the drugs. How much were you paid?

OFFENDER: Nothing yet. He was going to find me in here and pay me.

WARWICK: What does he look like?

OFFENDER: Middle Eastern male, twenty-five years old, unshaven, Gucci sunglasses, white Lacoste shirt. He was standing behind the station.

WARWICK: Why did you do it?

OFFENDER: It was easy money.

WARWICK: Have you taken anything?

OFFENDER: Two ecstasy and some base. Speed.”

At that stage, Senior Constable Warwick thought that the offender appeared relatively unaffected by drugs but he was, however, a little agitated. A little later, she noted increased agitation and the offender commencing to sweat and being unable to stand still. Later at Bankstown police station, the offender was more noticeably affected by some substance. The evidence before me includes a statement of Detective Senior Constable Lauren McCann who said this:

“Whilst weighing the prohibited drugs in custody with Plain Clothes Constable Tara Conaghan, the Accused stood at the custody counter watching. During this time, I observed the Accused who had bloodshot eyes and large pupils. The Accused was chatty and made several off-the-cuff comments as I counted the drugs in his presence. The Accused was untidy and fidgety, and from my observations I formed the opinion that he was well affected by a prohibited substance.”

In other words, the observations initially made by Senior Constable Warwick and later made by Senior Constable McCann indicate that the offender was increasingly being affected by, most probably, drugs, which is consistent with his having told Senior Constable Warwick that prior to being intercepted by the drug detection dog he had taken some ecstasy and some amphetamine.

5. The offender told me that before reaching Sydney Olympic Park he had travelled by taxi from a Meriton hotel at Zetland, and that if he had taken drugs prior to entering the venue of the dance festival, he would have taken the drugs at Zetland prior to entering the taxi. It appears to me that the observations made by the police about the offender’s demeanour confirm that he had taken some illicit drugs prior to leaving Zetland to travel to Sydney Olympic Park.

6. The Crown submits that the Court could not be satisfied on the balance of probabilities that the story told by the offender as to how he had a blue plastic balloon containing drugs in his underwear were true and that the probabilities favour the offender having the pills on his person as his own property for the purpose of his supplying them to other patrons at the dance festival with the intention of making money. However, it has to be observed that the offender immediately when he was confronted by Senior Constable Grand and then very shortly thereafter when confronted by Senior Constable Warwick gave a contemporaneous history that he had been given the drugs by a man of Middle Eastern appearance when he arrived at the taxi rank at Sydney Olympic Park, behind the railway station, and that he agreed to bring the pills to the dance festival in consideration of a promise of being paid $600.

7. Whether the offender knew at the time he made his bargain with this Middle Eastern man that there were drug detection dogs employed at this venue is unknown to me but it would appear that the bargain that he made was a foolhardy one but is consistent with his having ingested drugs and being a long-term drug user, which was his background at the time. In other words, he was hardly thinking rationally at the time he made the bargain with the Middle Eastern man. He told me when he gave evidence that he believed it was a good bargain. After all, $600 was a large sum of money for a man who is only intermittently employed and a drug user, and he was buying ecstasy tablets for either $20 or $30 each and one might think that $600 would enable him to buy twenty or more ecstasy tablets, which is more than anyone would need at any festival attendance.

8. Having heard and seen Mr Aston in the witness box, I accept what he told me and I accept that he did make this somewhat unequal bargain with the unidentified Middle Eastern man outside the railway station at Sydney Olympic Park whereby, in the consideration of a promise of $600 once he entered the dance festival, he would attempt to take into the dance festival the blue balloon containing tablets which were thought to be ecstasy.

9. Ecstasy is usually said to be the drug 3,4-methylenedioxymethylamphetamine (MDMA) but the drug which this offender actually attempted to take into the dance festival was 3,4MDA. Initially the police thought that the offender had secreted on his person 108 tablets albeit that the offender said that he was told by the Middle Eastern man that there were 110 tablets and that is what he communicated to the police. Later the analyst counted the tablets as amounting to 115. According to the analyst’s certificate, the 115 brown tablets were marked with a “MasterChef” logo and contained the drug 3,4MDA. The total weight of the drugs was 33 grams but the purity of the drug was only 7.5%.

10. I have been provided with an expert’s report made by Detective Inspector Stuart Cadden who has extensive experience in the NSW Police and in particular has been a senior investigator at the Clinical Operations unit of the Drug Squad and a team leader of the Chemical Operations unit and has other extensive experience in law enforcement, including clandestine laboratories and prohibited drugs generally. His report contains this matter:

“(24) I am aware that in New South Wales that there are a number of prohibited drugs sold in pill form. These drugs are usually grouped under the generic term of ‘Ecstasy’ . From experience, I know that a pill sold as ‘Ecstasy’ may actually be a number of different prohibited substances, including 3,4-methylenedioxymethylamphetamine (MDMA), 3,4-methylenedioxyamphetamine (MDA), 4-methoxyamphetamine (PMA), methylamphetamine, amphetamine or 4-bromo-2,5-dimethyloxyphenethylamine (2CB or ‘Nexus’). When an end user purchases and consumes a ‘pill’, they have no way of determining the exact content of the pill, however, the pills are often sold as and purchased on the assumption that they are ‘Ecstasy’ or MDMA.

(25) MDA is a synthetic derivative of the drug amphetamine. In pure form, MDA is a white powder, although it is more likely to appear as a tablet ranging in colour from white to yellow to brown (depending on purity). MDA was popular in the 1960s and 1970s when it was known as the ‘Love Drug’, until the emergence of MDMA in the 1980s. The effects of MDA are more intense and hallucinogenic than those of MDMA.”

11. A purity of 7.5% appears to be a low grade of purity. For example, there is in evidence before me details of other drug transactions that were intended to be carried out at this dance festival, 270 capsules of 3,4MDMA which had a purity of 55.5%. That appears to be a relatively high grade of purity, but the grade of the purity of the drug which the offender had in his possession appears to be of a low purity.

12. The statement of Detective Inspector Cadden also gives me some idea of values but is not particularly helpful. He thought that the wholesale price of the MDA could be anywhere between $2,185 and $1,495, but if sold in “single units” its value could be anywhere between $5,750 and $2,300. If the offender was paying $30 for a “pill” believing it to be ecstasy, at this time the 115 pills would have returned $3,450 to their owner if he could achieve such a price. The value of the actual drugs if they had reached their way inside the dance festival is really a matter for speculation. It is a question of supply and demand and I do not know what the extent of the supply was, nor do I know what the extent of the demand was. The only evidence which might point towards the extent of the demand is evidence given by the offender that it is very common for those attending dance festivals to take illicit drugs. Perhaps that confirms the name given to these dance festivals in the judges’ common room as “drug festivals”.

Seriousness

13. The accused has been charged with supply and has pleaded guilty to supply. Because the amount of the drugs deems the possession of the drugs to be for supply, unless proven to the contrary, the offender is guilty of deemed supply of the prohibited drug 3,4MDA.

14. I accept that the offender agreed to act as a courier, that his agreement was perhaps affected by his ingestion of drugs earlier on that day and by his extended drug use for a number of years beforehand, that he may have not been thinking straight. However, this may be another case of “eyes wide shut” in that he knew, because he was told by the man of Middle Eastern appearance, that he was taking into the dance festival 110 pills which were obviously illicit drugs. However, in the grand scheme of drug supply, this is hardly anywhere in mid-range; indeed, it is towards the bottom of the range of objective seriousness.

15. Albeit that it is a little bit out of order for me to draw attention to statistics, I would point out this. Of all those charged with supplying ecstasy contrary to the provisions of s 25(1) of the Drug Misuse and Trafficking Act 1985, 6.5% of offenders receive a s 10 bond and the average length of the bond is between 18 months and 24 months. In the past, 21.1% of offenders have been placed on a bond pursuant to s 9 and the average duration of such bonds was between 18 months and 24 months. 4% of offenders obtained a community service order. In the past, 37.4% of offenders obtained a suspended sentence and the average suspended sentence was for 18 months. 11.1% of offenders have received an intensive corrections order and the average duration of such orders is 18 months. In the past, 2.6% of offenders obtained periodic detention, and only half a per cent of offenders have been sentenced to home detention. 16.7% of offenders have been sentenced to fulltime imprisonment and the median head sentence is 24 months' imprisonment and the median non-parole period is 12 months' imprisonment.

16. As I said, this offence is towards the bottom of the range for supplying drugs. The maximum penalty is 15 years imprisonment and/or a fine of $220,000. There is no standard non-parole period. To me, the duration of various orders made in the past is indicative of the type of behaviour in which this offender was engaged, being typical of the majority of persons sentenced for this crime.

Criminal history

17. The offender has a criminal history. Shortly before turning 16 years of age he was dealt with for four “traffic” offences, for which merely a conviction was recorded. Reading between the lines, they probably arise from the offender’s driving a trail bike on a public road. On 21 December 2011 at the age of 18, the offender was found in possession of a dangerous drug in Queensland. No conviction was recorded by the Queensland Magistrate’s Court but a fine of $400 was imposed. On 18 May 2012 when the offender was 18 years old, he was found guilty of common assault. For that offence he was fined $1,000 and was ordered to execute a bond under s 9 to be of good behaviour for 12 months. According to the history given by the offender to Dr Marcelo Rodriguez, a psychologist who interviewed him on 11 October 2018, the offender punched a transit officer after that officer attempted to apprehend him because he was drinking alcohol on a New South Wales Government railway train.

18. On 26 August 2012, again at the age of 18, the offender was guilty of assault occasioning actual bodily harm and the use of an offensive weapon. For that crime he was sentenced to an intensive corrections order for a period of 12 months. Dr Rodriguez said that that charge related to an assault upon a security guard after the offender had consumed a bottle of vodka at a private party near Hornsby and the security guard appears to have been concerned with either keeping the offender out of the private party or ejecting him from the private party. Another history obtained by Dr Rodriguez indicates that after those events the offender gave up alcohol because he found it was leading him to commit crimes of violence.

19. On 28 September 2014 at the age of 20, the offender drove whilst suspended and was fined for that offence, as well as a period of disqualification. On 6 June 2016 at the age of 22, the offender drove whilst his licence was suspended, which led to another fine and another disqualification, and a bond to be of good behaviour. He committed the same offence on 13 June 2016, a week later, and that led to a further fine, a further s 9 bond and a further period of disqualification. Those two offences are relevant because by committing the current offence, the offender breached those s 9 bonds and, inter alia, he appears before me today on a call up for breach of those bonds.

20. On 26 September 2016, within a number of months of the current offence, the offender appeared before the Local Court at Dubbo and was fined for possessing a prohibited drug. After the offence now in question on 1 September 2017, the offender was fined again for possessing a prohibited drug, and between 13 and 14 July 2018, that is, earlier this year, the offender was found guilty of possessing a prohibited drug, namely, 1 gram of methylamphetamine. The Local Court merely recorded a conviction under s 10A, but significantly, revoked the offender’s bail, which he had been on since the commission of the current offence. The offender has been in custody since 14 July this year, a period, I am told, of three months and seven days.

Personal circumstances

21. The offender was born in Robina on the Gold Coast in Queensland. He lived in Queensland for the first six years of his life before his family moved to Berowra Heights. He has a younger sister, Carly, who is a childcare worker. I note that today the offender’s mother and his sister are present in court to support him. The offender believed that he had a good childhood. His mother had her own health problems which required her to take medication, which improved her condition, but may have affected the offender’s development. The offender’s father is a concreter and runs his own business. Relatively recently the offender’s parents have moved to live in Bellbrook, west of Kempsey, but his father commutes between Bellbrook and Berowra to run the family business.

22. Essentially, the offender had an excellent childhood, there being only one traumatic event, but it was indeed traumatic. When he was 16 years old his next door neighbour stabbed her four year old daughter and then committed suicide. The mother of the four year old brought the toddler, who was bleeding profusely, to the residence of the offender and his family, and the offender remembers caring for the toddler by applying pressure to the wounds with towels in an attempt to staunch the bleeding. Fortunately, the toddler survived, but the offender feared that she would die. The offender told Dr Rodriguez that he thought about that incident now and again and sometimes had “flashbacks”.

23. Shortly after that experience, the offender “rebelled” at the age of 17. I am careful to observe the logical fallacy of post hoc ergo propter hoc, and that the two are not necessarily related. Young teenage men often “rebel”. The offender did so by starting to use cannabis and amphetamines with friends. However, he did not engage in any antisocial acts.

24. The offender had originally commenced his high schooling at the Ku‑ring‑Gai Creative Arts High School, but then moved to the Asquith Boys High School. He believed himself to be an average student and he admits to not applying himself. For the first six to nine months after leaving school, he worked as a landscaper and then intermittently worked with his father in his father’s concreting business, but he did not get along with one of his uncles by marriage, and that made working in the family business difficult, because the offender did not like working with his uncle by marriage, who was also a partner in the family business. The offender has subsequently worked intermittently as a tree lopper and would like to establish his own business in that area.

25. His working career has been marred by his drug use. He commenced drinking alcohol at the age of 15, which is not uncommon in our community. He started smoking cannabis at the age of 16, which is also not uncommon. As I mentioned earlier, he stopped drinking alcohol after the two assaults to which I have referred because he realised that drinking alcohol led to episodes of violence. However, when he stopped drinking alcohol, the offender took up the regular use of cannabis. He had commenced using amphetamines at the age of 17 and commenced regularly using amphetamines at the age of 20. For five years prior to his incarceration he was using crystal methamphetamine, approximately one to one and a half grams every two days.

21. He has used the benzodiazepine Xanax to “come down from drugs”. As I understand it, he does not have that drug prescribed to him. He has used it illegally. In the past the offender has also smoked heroin twice and has used cocaine, ecstasy and LSD “recreationally”, and I assume by that is meant occasions such as dance festivals and parties.

22. Clearly, with those drug habits, the offender’s working life has been interrupted and become intermittent. He has lost his way in our society and he has committed a number of criminal acts, including the criminal act for which he currently stands for sentence.

23. One important thing that has happened to the offender has been his admission to gaol. At the commencement of his report, Dr Rodriguez said this:

“Mr Aston reported that he had been abstinent from substances in the last three months and had noticed a remarkable change in mood and outlook since then. He endorsed an improvement in sleep, appetite, concentration and memory. He said he had read more than 15 books in this period, which was a record for him. He was exercising every day and looking forward to life.”

29. The pre-sentence report dated 27 September 2018 I find to be a positive one and it tells me that the offender’s parents are happy for him to live with them at Bellbrook and that the offender’s mother confirmed that the offender’s family would continue to offer support to the offender and to provide him with stable accommodation. It appears likely to mean that the offender’s family have realised that he may have turned a corner at the crossroads at which he arrived when he was sent to prison.

30. The offender in his oral evidence today told me that he is “over drugs”, and I accept that he means to turn his life around, but clearly must be encouraged to do so. Dr Rodriquez said this:

“In my opinion, Mr Aston requires a mandated residential drug and alcohol facility to treat his serious drug dependence. His participation in the William Booth program is essential for him to find new ways to deal with life’s difficulties and confront his problems.

He is likely to require medication to assist with his rehabilitation and cravings.

He will require maintenance drug and alcohol counselling, and group support (NA meetings) so there is abundant emotional and practical support in times of stress, which is when he would be at a high risk of returning to drug use. He will need to develop adaptive coping strategies to deal with the life stressors, other than using substances.

He will require neuropsychological assessment and neuro-imaging to investigate for possible organic brain damage to inform future treatment.”

The last need identified by Dr Rodriquez is one not commonly available to reforming drug users in this State, nor is it something that is generally provided by Community Corrections. However, the rest of the observations of the doctor are confirmed in the pre-sentence report.

31. Most importantly, the offender has been accepted into the Bridge program offered at William Booth House in Surry Hills by the Salvation Army, and has an admission booked for not later than 12pm on 30 October 2018. The offender wishes to participate in that course, and that can be part of an intensive corrections order. The Bridge program typically lasts between three and nine months, depending on the person’s individual circumstances. How long the offender may need to participate in the course is not currently known, and that no doubt will be ascertained by those presenting the program and after consultation between the program provider, the offender and a Community Corrections Officer.

Consideration

32. The Crown concedes that this is not a matter where the imposition of a full-time custodial sentence is inevitable, and referred me to the decision of Parente v R [2017] NSWCCA 284. It is quite correct that each case must be assessed on its own merits. The Crown also observed that the offender has a reasonable subjective case in light of his drug addiction, notwithstanding that his prospects of rehabilitation are guarded, and that there is a risk of reoffending. That risk has been found by Community Corrections as being medium.

33. However, this is a case where, looking at the matter holistically, and bearing in mind what the offender told me from the witness box, I accept that the prospects of rehabilitation are better than merely medium, that the prospects of rehabilitation are good, provided the offender maintains his resolve and realises that, if he does not use the opportunities now being offered to him, the rest of his life may not be a very pleasant one.

34. Bearing in mind the objective criminality involved, but also bearing in mind the personal circumstances of the offender, and his prospects of rehabilitation, I believe that this is an appropriate case in which to impose an intensive corrections order.

35. In my view, I should start the sentencing exercise with a sentence of imprisonment of two years. The offender pleaded guilty, albeit at the time when his case was listed for trial, but before any jury was empanelled. He pleaded guilty after exchanges between the Bench and his counsel indicated to his counsel that the defence under the so-called “Carey” principle would not be successful in the current matter. The Crown concedes a discount of 10%. Ten per cent of 24 months gives me twenty-one and a half months, but in accordance with authority I should discount the sentence to 21 months, such that the period of imprisonment will be one year and nine months. That can be spent by way of intensive correction in the community.

36. The offender asks me to call him up and deal with him for breach of the two s 9 bonds imposed by the Local Court at Hornsby on 30 June 2016, and I intend to do so. The time spent in custody between 14 July 2018 and today can be taken up with prison sentences reflecting his culpability for the two offences that were the subject of the s 9 bonds.

37. I have not made any orders, but no-one needs any further reasons do they?

KHAN: Not from me, your Honour, no.

PHILPOT: No, your Honour.

HIS HONOUR: Neither the solicitor for the Crown nor counsel for the offender require any further reasons for sentence.

Sentence

38. Aaron Brian Aston, in respect of the charge of driving whilst your licence application was refused, the subject of charge number H61506456, I revoke the s 9 bond that you entered into on 30 June 2016. In lieu, I sentence you to imprisonment for 49 days commencing on 14 July 2018 and expiring on 31 August 2018.

39. In respect of a second offence of driving whilst your licence application was refused, the subject of charge number H61391804, I revoke the bond entered into on 30 June 2016. I sentence you to imprisonment for 48 days commencing on 1 September 2018 and expiring today, 18 October 2018.

40. In respect of the offence that on 10 December 2016 at Sydney Olympic Park in this State you did supply a prohibited drug, namely, 3,4‑methylenedioxyamphetamine, you are convicted. I sentence you to imprisonment for a term of one year and nine months commencing today, to be served by way of intensive correction in the community. You are to report to Community Corrections Office at Kempsey on Monday 22 October 2018 during business hours. The conditions of your intensive corrections order are these:

1. You must not commit any offence.

2. You must submit to supervision by a Community Corrections Officer.

3. You are to participate in drug and alcohol rehabilitation, counselling and testing, including the Bridge program conducted at William Booth House at 56 to 60 Albion Street, Surry Hills, commencing on 30 October 2018, for at least such minimum period as is required of you by a Community Corrections Officer.

4. You are to reside at [redacted] on your release from custody until you enter the Bridge program and after your discharge from that program you are to reside at an address approved by a Community Corrections Officer or [redacted].

5. You are to abstain from any illicit drug or any prescription medication that has not been prescribed for you.

6. You are to undertake any other form of rehabilitation reasonably demanded of you by a Community Corrections Officer, including any mental health referral.

41. What that means, Mr Aston - well, it should be, I hope, fairly clear what it all means - you are free to leave this courthouse today, you will have to go downstairs first to be processed out of the Corrective Services system, your mother can take you home to Bellbrook today, all right?

And look after him, make sure he gets back here for William Booth.

Any other orders sought?

PHILPOT: Yes, your Honour, there is the matter on the 166 certificate.

HIS HONOUR: You want that dismissed, was it?

PHILPOT: Yes, thank you.

HIS HONOUR: The charge number H62341170, sequence 1, possessing a prohibited drug, is dismissed.

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Decision last updated: 23 January 2019