R v Baptist

[2016] NSWDC 83

District Court

New South Wales

Medium Neutral Citation:	R v Baptist [2016] NSWDC 83
Hearing dates:	25 February 2016
Date of orders:	25 February 2016
Decision date:	25 February 2016
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	The offender is referred for assessment as to his suitability to serve his sentence by way of an Intensive Corrections Order
Catchwords:	CRIMINAL LAW – Sentence - Drug supply - Amphetamine - Lysergide -Trafficking to a substantial degree - User/dealer
Legislation Cited:	Crimes (Sentencing Procedure) Act
Category:	Sentence
Parties:	The Crown Matthew Brian Baptist
Representation:	Solicitors: Director of Public Prosecutions- Crown Sydney Criminal Lawyers - Offender
File Number(s):	2015/115776

Judgment

1. HIS HONOUR: Many in the community seem puzzled by the attitude that the law takes to drug use. Many question why harsh penalties need to be imposed on those who use drugs and even those who supply drugs. Those of us who have dealt in the criminal law for many years know all too well the effects of drugs on individual members of the community and the community in general. Drug users often become terrible people. They lie and they cheat, and, more importantly perhaps, they commit significant crimes in order to fund their drug addiction.

2. Few offences which come before the Court for sentence, particularly offences of break, enter and steal and robbery, do not involve a drug user desperate for money to fund their addiction. It is for this reason that when a drug supplier appears for sentence significant and even harsh sentences are appropriate. That will explain the sentence I will announce on the offender who appears for sentence today, Matthew Brian Baptist.

3. He is to be sentenced for supplying a significant quantity of amphetamine, 27.77 grams, which was contained in about a hundred separate pills. He is also to be sentenced for supplying .36 grams of Lysergide. That drug, a significant proportion of the quantity which is described as the commercial quantity, was divided up into 39 separate dosage units.

4. The offender pleaded guilty to both offences in order to reflect the utilitarian value of those pleas. I will impose upon him a sentence which is 25% less than it would otherwise have been.

5. The offences came to the attention of police in the following manner. They were at a dance party, called the Midnight Mafia Dance Party held at Sydney Olympic Park. The offender went to a cloak room, where he left his belongings. Police searched one of the bags left by the offender and discovered a significant quantity of currency, $2,695. Police therefore waited for the person who had checked the bag to come and collect it. The offender and another man arrived at 5.15 and collected the bags. Police intervened. The offender admitted that he owned a particular bag. Police then searched the offender and found the drugs that I have referred to.

6. No‑one actually counted the number of pills regrettably. The offender told police that there were 100 tablets in his possession. I will sentence him on the basis that that is an accurate assessment.

7. But that was not the extent of his drug supply activities that evening. He told me that he had supplied to drug‑using friends about 50 tablets already by the time he was arrested. So the offender went to the dance party with about 150 tablets of amphetamine with a significant quantity of LSD, supplied about 50 tablets and had 100 tablets still in his possession which he intended to supply in the future. It is obvious that that was trafficking to a substantial degree. I will return to the significance of that finding in a little while.

8. Along with a lot of other drug suppliers, the offender did what he did to support his own drug habit. He was not in this to fund a champagne lifestyle. He was at a stage of his life where his social life really revolved around dance parties and drug use. He would drink alcohol during the week and on weekends would consume drugs and go to the parties. Of course drugs are expensive, it is one of the reasons people commit crimes to fund their drug habit, and so he found himself in a position where he could not afford to pay for any more drugs. At that stage he had a choice, he could recognise that he just simply could not afford the drugs, or - and this is what he did do - he decided that he would commit a very serious criminal offence, supplying drugs, in order to fund his own drug habit.

9. When we think about moral culpability of offenders we often examine the level of personal choice that goes into a decision to commit a crime. I repeat, the offender had a personal choice to make when he could not pay for his own drugs. Was he to accept reality and simply not use them, or was he, and this is the choice he made, to become a drug supplier? There is no suggestion at all that the offender’s moral culpability should in any way be reduced because of the circumstances he was in when he made that decision.

10. In common with many drug suppliers, since arrest he has improved his life. He claims that he no longer uses drugs. He says that he goes to Narcotics Anonymous. He is being counselled by a psychologist and he accepts what he should have seen before, how his behaviour has affected so many people, not only his family and friends who have all been affected by his arrest and the disclosure of his misconduct, but also the people to whom he supplied drugs. He says, reasonably accurately, that drugs have destroyed his life and what he did when he was supplying drugs to others was to aid in harming their lives as well.

11. The offender had an upbringing which was less than ideal. His father was a drug user. His parents separated and some of the men his mother associated with after separation treated the offender badly. At one stage DoCS were involved. For a while he was a successful motocross rider. That was an activity he enjoyed and was good at, but he gave it up all of a sudden one day because of pressures from his father. He began to use drugs and gradually got to the position that he finds himself in today.

12. The abandonment of the sport of motocross is regarded by Mr Borenstein, the psychologist, as important. He said that motocross gave Mr Baptist stability, purpose and a sense of success, which all but evaporated when he decided to abandon the sport on impulse. It goes without saying that many people give up a sport that they love without resorting to drug use in order to fill the gap.

13. I am satisfied that the offender has good prospects of rehabilitation. He is supported in court today by members of his family. He has a relationship with a young woman, and he has prospects for the future as regards his employment and his desire to start up a spray painting business.

14. Many people would ask what is the point of punishing someone who has achieved so much in recent times. The answer is as I think I expressed at the beginning, to deter others who might think that they should resort to drug supply as a way of funding their own drug use, because of the harm that such behaviour creates.

15. Mr Singh, who appeared for the offender today, conceded appropriately that his client was trafficking to a substantial degree. He also conceded that there were no exceptional circumstances to which attention had previously been paid when courts applied what I will call the rule that those who traffic to a substantial degree must go to gaol full time unless there are exceptional circumstances. Mr Singh submitted that even though such concessions would in the past have meant that his client had to go to gaol full time, the rule was laid down at a time when intensive corrections orders were not available.

16. Given the absence of authority from the Court of Criminal Appeal as to whether the rule still applies now that ICOs are available, it is for sentencing judges like me to determine whether those who traffic to a substantial degree where there are no exceptional circumstances still need to go to full‑time gaol.

17. Mr Singh pointed to a number of circumstances which would suggest that his client should receive the benefit of a sentence much more lenient than full‑time custody. He said that in contrast to many other cases, his client’s behaviour was towards the lower end of seriousness. He suggested that supplying to your friends just to supply your own habit is less serious than approaching total strangers and seeing if they wanted to buy drugs.

18. The offender gave evidence that he only supplied to friends that he had met at dance parties. He was not challenged on that evidence. I will therefore sentence him on the basis that what he said was true. I do have some scepticism as to the accuracy of the evidence though, given the number of drugs found in his possession and the number of pills he was prepared to have admitted to supplying earlier in the evening. Despite that, as I have said, I will sentence him on the basis that he did not supply to strangers, just those who he knew were already drug users.

19. I turn now to the question as to the appropriate sentence. In the event that I have decided that a sentence of two years or less should be imposed or is likely to be imposed, the Crimes (Sentencing Procedure) Act provides that an ICO is available. But should one be imposed in the present case, there is no doubt that compared with full-time custody an ICO is lenient. Intensive corrections orders do restrict the liberty of an offender through curfews, community service, monitoring by Probation and Parole, but there is a vast difference between those limitations and the restrictions which apply when someone is sent to gaol full time.

20. Although of course an ICO is a custodial sentence, there is a vast difference in the way that sentence is served when compared to a sentence of full-time custody. That suggests that where general deterrence is required, an ICO may often be insufficient to act as a general deterrent. ICOs have the benefit of course of focussing much more on rehabilitation than is possible in a custodial setting where prisons are vastly overcrowded and resources are stretched. In the present case, to a large extent, the offender does not need rehabilitation, he needs support with his efforts which he has previously undertaken, but that is not a reason not to impose an ICO. Many ICOs are imposed on people who need no rehabilitation at all.

21. In my view having decided that a sentence of two years’ imprisonment or less is likely, it is appropriate to refer the offender for assessment as to his suitability to serve a sentence by means of an intensive corrections order. That of course does not mean that such a sentence will be imposed. A lot will depend on the ICO assessment report which is prepared by the authorities. Should the assessment come back indicating unsuitability, I will have no hesitation in imposing a sentence of full-time imprisonment. Even if the assessment does suggest Mr Baptist’s suitability, there is no guarantee that that is the sentence I will impose. As I have said a lot will depend on the contents of the assessment report.

22. I will therefore continue Mr Baptist’s bail and refer him for assessment as to his suitability to serve a sentence of imprisonment by means of an intensive corrections order.

23. ADJOURNED TO FRIDAY 20 MAY 2016

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Decision last updated: 23 May 2016