R v Ayres

[2019] NSWDC 193

District Court

New South Wales

Medium Neutral Citation:	R v Ayres [2019] NSWDC 193
Hearing dates:	17 May 2019
Date of orders:	07 May 2019
Decision date:	07 May 2019
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	Imprisonment for a period of 3 years, commencing 31 May 2018 and expiring 30 May 2021, with a non parole period of 18 months, commencing 31 May 2018 and expiring 30 November 2019.
Catchwords:	CRIME — Drug offences — Supply prohibited drug SENTENCING — Penalties — Imprisonment
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999. Crimes Act 1900 Drugs Misuse and Trafficking Act 1985
Cases Cited:	Dang v R [2013] NSWCCA 246 R v Day (1998) 100 A Crim R 275 R v Osenkowski (1982) 5 A Crim R 394 R v Pham [2001] NSWCCA 307
Category:	Sentence
Parties:	Regina (Crown) Robert Ayres (Offender)
Representation:	Counsel: Ms E Brown (Solicitor Advocate, Crown) Mr A Djemal (Offender)
File Number(s):	2018/171247; 2018/270145

Judgment

INTRODUCTION

1. Robert Ayres appears for sentence. He has pleaded guilty to 2 counts of supply a prohibited drug contrary to section 25(1) of the Drugs Misuse and Trafficking Act. The first offence (sequence 1) involves 84.08 grams of methylamphetamine and the second offence (sequence3) involves 27.09 grams of methylamphetamine.

2. He has asked the court to take into account 2 matters on a Form 1, namely supply 55.3g of gamma butyrolactone contrary to s25(1) of the Drugs Misuse and Trafficking Act and deal with property proceeds of crime ($4900 cash) contrary to s193C(2) of the Crimes Act.

3. I have taken the Form 1 matters into account in the sentence I will impose on the sequence 1 offence.

4. In relation to the supply matters the statutory maximum penalty is 15 years. There is no standard non-parole period. The maximum penalty on the proceeds of crime on the Form 1 is 3 years.

5. The maximum penalty is an important guidepost in the assessment of sentence. A judge should steer by the maximum penalty but not aim for it.

6. The offender was arrested on 31 May 2018 and has been in custody since that time. The commencement date of sentence will be from 31 May 2018.

THE PLEA OF GUILTY

7. The guilty plea and the timing of the plea are to be taken into account on sentence pursuant to s21A(3)(k) and s22 of the Crimes (Sentencing Procedure) Act 1999.

8. The guilty plea was indicated and entered at an early stage in the Local Court. The crown in its submissions conceded that the pleas were entered at the earliest reasonable opportunity and accordingly the full 25% discount is applicable.

9. The indicative sentences that I will announce in these reasons for judgment will have been discount by 25%.

AGREED FACTS

10. There is an agreed facts document at tab 5 of exhibit 1 (the crown sentence summary). I intend to summarize those agreed facts.

11. The offender was renting a single bedroom unit. On 31 May 2018 police obtained a search warrant for the unit. Prior to the execution of the warrant the police saw the offender walk from the lift to the car park. He attempted to run from police but was arrested.

SEQUENCE 1 (supply prohibited drug ­­- 84.08g of methylamphetamine)

12. The police searched the offender’s satchel bag and located a clear freezer bag containing 84.08g of methylamphetamine. His DNA was located on the freezer bag. He also had in his possession 120 clear freezer bags.

13. The search warrant was executed. 2 people were in the unit. Police observed syringes, spoon, tourniquets and other drug paraphernalia on the floor and kitchen bench. Police located the following in the common areas of the apartment:

• 5.7g of methylamphetamine on the dining table

• 14ml of GBL in a box on the stove

• 32ml of GBL on the kitchen bench

FORM 1 (supply prohibited drug-55.53g of GBL)

14. Police located 55.3g of GBL in the offender’s bedroom beside the top drawer.

FORM 1 (deal with proceeds of crime-$4900)

15. Police located a locked hand held safe. Keys which had been in possession of the offender opened the safe. The safe was unlocked and contained $4900. The premises also contained small kitchen scales, butane lighters and clear resealable bags.

SEQUENCE 3 (supply prohibited drug - 27.09g methylamphetamine)

16. On 23 April 2018 police conducted a controlled operation relating to the drug supply activities of Hugh Bond.

17. Bond met with an undercover operative on 1 May 2018 and arranged to purchase 2 ounces of methamphetamine. Bond contacted the offender to arrange one of the ounces. The UCO was introduced to the offender and supplied the UCO with an ounce of Methamphetamine for $3600. The offender told the UCO that he was using methylamphetamine.

18. Analysis of the product confirmed that it was methylamphetamine and weighed 27.09g with 80% purity.

OBJECTIVE SERIOUSNESS

SEQUENCE 3 (27.09g)

Quantity

19. The indictable quantity is 5g. The offender was in possession of 27.09 of the drug, which is more than five times the indictable quantity.

Purity

20. The purity of the drug, namely 80% is significant.

Financial motivation

21. The offender was paid $3600 by the undercover operative for the sale, indicating the offender’s financial motivation.

Role Played

22. The weight of the drug, the purity of the drug and the financial reward suggest the offender’s role is not trivial or insignificant. He was able to facilitate the completed sale of the drug. I assess the objective seriousness below the mid-range and towards the lower end.

SEQUENCE 1 (84.08g)

Quantity

23. The offender had in his possession close to 17 times the indictable quantity of the drug. It was located in a clear freezer bag within the offender’s satchel. The satchel also held 120 clear empty freezer bags. Inside the police also located small kitchen scales, butane lighters and further clear resealable bags. This is suggestive of a supply operation which was born out in sequence 3.

24. The police also located gamma butyrolactone demonstrating he offender’s ability to hold more than one drug.

Financial motivation

25. The possession of $4900 in a locked safe is indicative of the offender’s financial motivation.

Role Played

26. The offender was involved in drug supply over a protracted period. It was not an isolated event. The offender was actively involved in street level distribution of drugs. The objective seriousness was below the mid-range. He was not a courier or delivery person. He is higher up in the hierarchy than those positions.

MORAL CULPABILITY

27. The offender told the UCO that he was using drugs. That admission is consistent with the police finding drug use paraphernalia at his apartment. It is also consistent with his criminal history. Since 2017 the offender has been dealt with on 6 occasions for possession of drugs in New South Wales. On 9 May 2012 he was sentenced in the County Court of Victoria to 30 months imprisonment. 24 months were suspended for the traffic of a commercial quantity of a prohibited drug. He was released upon the passing of the sentence having spent 6 months on remand.

28. In Day (1998) 100 A Crim R 275, Wood CJ at CL held, “the objective criminality of an offender who traffics in drugs to feed a personal habit is somewhat less than that of a trafficker for greed.” In the case of a street level user/dealer there is room for a measure of clemency: Pham [2001] NSWCCA 307 at [46].

29. “The circumstance of addiction is also accepted as potentially relevant to moral culpability. A person in the grip of an addiction has less freedom of choice than would otherwise be the case. Moral culpability is a function of perceived freedom of choice”: Dang [2013] NSWCCA 246 at [30].

30. I find that although the offender was trafficking for financial reward he was in the grips of addiction and using money for the purchase of his own drugs. It was not pure greed. His moral culpability reduces the objective seriousness of the offending.

SUBJECTIVE CIRCUMSTANCES

31. Exhibit D2 is the defence bundle on sentence. It contains 6 references including one from the mother of the offender and a report from Dr Paul Pusey, psychologist dated 11 May 2019.

32. The offender is 36. His father was ill during the latter part of his schooling. The illness was a rare genetic disease, which deteriorated his central nervous system and he literally withered to his death. This grossly affected the offender who idolised his father. His father died when he was 17 and it had an enormous impact upon him. He turned to drugs and has battled addiction throughout his adult life. After his release from the Victorian charge he underwent extensive rehabilitation and moved to Sydney to distance himself from his former “friends”. He turned his life around, but all too frequently relapse is often an unavoidable element of addiction.

33. He reported to Dr Pusey that his life derailed a “little bit approximately 6 to 12 months before he got arrested”. He was not working and supported himself through crime and family assistance. He was mainly “doing low level drug dealing within my group of friends”.

34. He reported that after his father’s death he began using speed and ice. His use increased when he was fired from his employment with a bank. After his move to Sydney and his relapse he began to use GHB daily. He reported that he “was spending his savings to support his habit and when he ran out of savings he sold drugs to support it”.

35. His diagnosis is prominent substance use pathology in response to cope with his father’s illness and death. The psychologist rated his substance use disorder during the period of offending as severe.

REMORSE

36. The offender expressed remorse to the psychologist. He said,

“I feel remorseful for what I have done. I know what drugs have done to me, so I feel bad being a person who assisted in putting this misery on others. I accept what I’ve done. I’ve put that misery onto others in the community because the drugs I sold were probably sold on to others”.

PROSPECTS OF REHABILITATION

37. The offender has a complex history of substance abuse. He has insight into his offending. It is his intention upon release to engage and undertake a rehabilitation program.

38. “There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has been traditionally been extended even to offender’s with bad records when the judge forms the view, almost intuitively that leniency at that particular stage of the offender’s life might lead to reform”: Osenkowski (1982) 5 A Crim R 394, King CJ at 395.

39. I have formed the view that leniency may lead to reform.

STATISTICS

40. JIRS statistics show that between January 2008 and 23 September 2018, 181 cases were dealt with Form 1 matters, priors and a plea of guilty. The most occurring non-parole period was 12 months (38%). The next most occurring was 18 months (34%).

CONSIDERATION

41. The major sentencing consideration is general deterrence. A consistent message of deterrence is necessary in drug supply cases given that such offences are carried out with some level of covert activity. The protection of the community is also significant in light of the social impact of drug use. Specific deterrence is also relevant in this case due to the relapse and further offending by the offender.

42. As there is a temporal disconnection between the dates of the offences it will be necessary for there to be some degree of accumulation upon each charge within the principle of totality.

SPECIAL CIRCUMSTANCES

43. I find special circumstances. This is the first time the offender has received an immediate term of imprisonment. Due to his drug relapse he requires an increased period of supervision to minimise the risk of a further relapse. It is in the long term interest of the community that he be rehabilitated.

AGGREGATE SENTENCE

44. Pursuant to section 53A of the act I impose an aggregate sentence.

45. The indicative sentences have been reduced by 25%.

46. The indicative sentences are:

1. Sequence 1 (supply 84.08g methylamphetamine) - 2 years imprisonment, but for the 25% discount the sentence would have been 2 years and 8 months.

2. Sequence 3 (supply 27.09g methylamphetamine) - 18 months imprisonment, but for the 25% discount the sentence would have been 2 years.

47. The aggregate sentence is 3 years with a non-parole period of 18 months.

ORDERS

48. The offender is convicted and sentenced to 3 years imprisonment. The sentence is to commence on 31 May 2018 and will expire on 30 May 2021. I set a non-parole period of 18 months to commence on 31 May 2018 and expire on 30 November 2019. The offender will be eligible for parole on 30 November 2019.

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Decision last updated: 07 June 2019