R v Burkitt

[2020] NSWDC 50

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Burkitt [2020] NSWDC 50

Hearing dates:

19 December 2019, 13 March 2020

Date of orders:

13 March 2020

Decision date:

13 March 2020

Jurisdiction:

Criminal

Before:

Weinstein SC DCJ

Decision:

Full-time custodial order to be served by way of intensive correctional order. For orders see [87]

Catchwords:

SENTENCING — Penalties — Intensive correction orders

 

CRIME — Drug offences — Supply prohibited drug — Commercial quantity

  CRIME — Drug offences — Supply prohibited drug — Indictable quantity

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW)
Drug Misuse and Trafficking Act 1985

Cases Cited:

Abbas & Ors v R [2013] NSWCCA 115
Attorney General’s Application (No 1) (2002) 56 NSWLR 146
Casella v R [2019] NSWCCA 201
DPP v De La Rosa (2010) 79 NSWLR 1
Karout v R [2019] NSWCCA 253
Markarian v The Queen [2005] HCA 25
Mill v The Queen (1988) 166 CLR 59
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Fangaloka [2019] NSWCCA 173
R v Jarrold [2010] NSWCCA 69
R v Pullen [2018] NSWCCA 264
Veen v The Queen (No 2) at [476–477]
Watts v R [2007] NSWCCA 153

Category:

Sentence

Parties:

Regina (Crown)
Alexander Leonard Burkitt (Defendant)

Representation:

Counsel:
Ms S. Stuart (Crown)
Mr M. Crawford-Smith (Defendant)

File Number(s):

2018/0039281

Judgment

1. The offender Alexander Leonard Burkitt, born in 1983, is before the court for sentence for supply of a commercial quantity of prohibited drug, being 1124 grams of gamma butyrolactone, on 19 December 2018, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985 (DMTA) (sequence 1), for which the maximum penalty is 20 years, 3500 penalty units, or both, and the standard non-parole period is 10 years. There is a second charge of supply an indictable quantity of a prohibited drug, being 984.62 grams of gamma butyrolactone, between 8 November 2018 and 20 December 2018, contrary to section 25(1) of the DMTA (sequence 7), for which the maximum penalty is 15 years, 2000 penalty units, or both, and for which there is no standard non-parole period.

2. There is also a Form 1 which the offender asks me to take into account when sentencing him for sequence 7. This is a charge of supply an indictable quantity of a prohibited drug, being 16.15 grams of methylamphetamine, between 13 and 20 December 2018.

Evidence

3. Before me are five exhibits. Exhibit 1 is a bundle of documents prepared by the Crown which includes:

1. A Charge Certificate;

2. The Form 1;

3. The Agreed Facts;

4. The offender’s New South Wales and Commonwealth criminal history; and

5. The offender’s custodial history;

4. Exhibit 2 is a Sentencing Assessment Report (SAR) dated 13 December 2019 under the hand of Nofar Boskila.

5. Exhibit 3 is a bundle of documents tendered by the offender, which includes:-

1. A report of Thea Gumbert, psychologist dated 17 December 2019;

2. A letter from Simon Martin, counsellor, Stimulant Treatment Program at St Vincent’s Hospital;

3. A letter from Chris Theordoridis, psychologist of ACON dated 12 December 2019;

4. A reference from Laurie Mansfield dated 18 December 2019;

5. A reference from Todd Elvy dated 17 December 2019;

6. A letter from Dr Sian Ong of South Pacific Private Hospital dated 4 February 2019;

7. A letter from Max Lawson, counsellor of the Buttery dated 14 August 2019;

8. A letter from Dr Jeremy Smith of Macleay Street Medical Practice dated 16 December 2019 and

9. A copy of the offender’s Bachelor of Arts certificate dated 14 June 2005.

6. Exhibit 4 is a bundle of documents from various health providers.

7. Exhibit 5 is a copy of a page of the New South Wales Police Force Custody Management Record of 20 December 2018, which indicates that after his apprehension, the offender was unable to stay awake and maintain a conversation, was highly drug affected and kept falling asleep and hitting his head on the wall.

8. Exhibit 6 is a bundle of defence documents tendered on 13 March 2020, consisting of eight tabs:-

1. Letter of Simon Martin, counsellor at St. Vincent’s Hospital stimulant treatment program dated 11 March 2020;

2. Letter of Chris Theodoridis, registered psychologist at ACON dated 11 March 2020;

3. Letter of Thanh Lam, social worker at the community care unit at ACON dated 10 March 2020;

4. Letter of Max Lawson, counsellor at the Buttery dated 11 March 2020;

5. Letter of Laurie Mansfield, Narcotics Anonymous sponsor dated 12 March 2020;

6. Letter of Lara Ducasse, dated 8 March 2020;

7. Letter of Russell Symmans dated 11 March 2020; and

8. Letter of Dr Jeremy Smith general practitioner at Macleay Street medical practice dated 11 March 2020.

9. Exhibit 7 is a bundle of documents relating to the Buttery and which are said to be relevant solely to the issue of quasi-custody.

10. Exhibit 8 is a bundle of documents produced on subpoena by the Buttery, also said to be relevant to the issue of quasi-custody (although I note that there are two drug analysis reports dated in July and August 2019 which indicate that there were nil drugs detected).

11. The offender gave extensive evidence before me on 19 December 2019, and was cross-examined at some length by the Crown.

12. I was assisted by the able written and oral submissions of Mr Crawford-Fish on behalf of the offender and Ms Stuart on behalf of the Crown.

13. The Agreed Facts are as follows:-

Sequence 1; Supply of a prohibited drug (gamma butvrolactone) not less than commercial quantity s. 25(2) Drug Misuse and Trafficking Act 1985)

1. At 11:50 pm on 19 December 2018, police attended Queens Avenue, Rushcutters Bay in relation to reports of the offender screaming and throwing himself at a fence. They found the offender leaning against a small metal fence, about 15 metres away from a Mini Cooper vehicle which was stationary in the middle of a laneway with its engine running. There were no other people in the vicinity. Police saw that the offender was in an agitated state and suspected he was under the influence of drugs or alcohol.

2. The offender told police that he and his partner had been inside the vehicle. He stated they had started fighting, and that his partner had walked off, leaving the offender and the vehicle. Police conducted a search of the offender's person. No items were found.

3. Through the windows of the Mini Cooper, police saw a syringe and small vial on the passenger side. In an interaction captured by a body worn video camera, the offender denied that there were any items about which he wished to inform police.

4. Police officers then searched the Mini Cooper. In the front passenger side of the vehicle, police immediately located a large syringe and wallet on the rear of the seat. The wallet contained a driver's licence belonging to the offender. In the passenger side drink holder, police found a small brown glass bottle with the lid removed. Police seized the syringe and bottle, and another small brown glass bottle.

5. Police then seized a 1-litre Powerade bottle containing a clear liquid from the footwell of the passenger side of the vehicle. The mass of this liquid was later calculated at 1124g (or 1L of fluid). A representative sub-sample of the liquid confirmed it was gamma butyrolactone (GBL). This quantity of GBL would be capable of comprising approximately 281 typical street dosages of 4ml, at an approximate total value of $5620 (as at 2015-16).

6. The offender was cautioned and asked a number of questions. He denied knowledge of either the Powerade bottle or the syringe. He further stated that he had been in the passenger seat of the car that night.

7. The offender was arrested and taken to Kings Cross Police Station, where he supplied police with the PIN code to his mobile phone, which was seized as an exhibit. The offender participated in an ERISP, in which he stated:

1. He had gotten into an argument with his partner in the Mini Cooper. He had been in the passenger seat and his partner had been driving. His partner got out of the car and left about 20 minutes prior to police arriving;

2. He had borrowed the car from a friend about 2 weeks ago;

3. There had been no other passengers in the car that night;

4. He had not used drugs the evening of his arrest but had "used G" in the past;

5. He had appeared anxious when police arrived due to the argument with his partner; and

6. He did not know anything about the syringe, vials, or the plastic bottle containing GBL and had not touched these items.

8. The offender was then released without charge.

Sequence 7: Supply of a prohibited drug (gamma butvrolactone) (s. 25(1) Drug Misuse and Trafficking Act 1985)

9. Later on 20 December 2018, police reviewed messages on the offender's mobile phone. Messages were addressed to and from 'Alex' and 'Alexander Burkitt'.

10. An analysis of the messages on the offender's phone reveals that he was engaged in the supply of GBL to various purchasers over iMessage and Whatsapp. Customers would contact the offender asking for quantities of GBL, referred to as "mis", "drinks", or "rain water". The offender would respond to the customer and either deliver orders or request that they be collected from his home.

11. The offender supplied GBL at a cost of between $5.50 and $7 per "drink" or "ml", depending on the customer.

12. A schedule of the relevant transactions is set out below:

Date	Application	Purchaser	Order	Methylamphetamine	Price
9/11/18	iMessage	Jeremy	25 drinks	25	Unclear
16/11/18	Whatsapp	Carlos	10 mis	10	$70
22/11/18	iMessage	Jeremy	25 bottle	25	Unclear
26/11/18	iMessage	Jeremy	25 drink	25	Unclear
28/11/18	Whatsapp	Mark	20 drinks	20	Unclear
29/11/18	Whatsapp	Keith	40 drinks ($7 ea)	40	$280
30/11/18	Whatsapp	Keith	16 mis	16	Unclear
11/12/18	Whatsapp	Rad	150 ($6.50 ea)	150	$975
14/12/18	Whatsapp	Josh	50 drinks ($6 ea)	50	$300
15/12/18	Whatsapp	JP Elizabeth Bay	50ml rain water ($6.50 per ml)	50	$325
15/12/18	Whatsapp	Sitruc	50 mis	50	Unclear
16/12/18	Whatsapp	Jason	50 drinks ($7 ea)	50	$350
17/12/18	Whatsapp	Janey	20 drinks ($120) and mis from other night ($240)	60	$360
18/12/18	Whatsapp	LUCAS	Two MLS drink	2	Unclear
18/12/18	Whatsapp	Chase	20-30 drinkie poos ($6 ea)	20	$120
18/12/18	Whatsapp	Andrew	50 ml ($6.25 ea)	50	$312.50
18/12/18	Whatsapp	Emmet	6 drinks	6	Unclear
18/12/18	Whatsapp	Sitruc	90 (mis) ($6 ea)	90	$540
18/12/18	Whatsapp	Samir	40ml drinks	40	Unclear
18/12/18	Whatsapp	Sitruc	41 drinks	41	Unclear
18/12/18	Whatsapp	RKG	lOmls drink	10	Unclear
19/12/18	Whatsapp	Gareth	6 mil	6	Unclear
19/12/18	Whatsapp	Moe	Some g - 30m	30	Unclear
19/12/18	Whatsapp	Soux	10 drinks	10	Unclear
TOTAL 876

13. Based on a density of 1124.0 g per litre of GBL (the density of the GBL found in the offender's car), the total amount of GBL supplied was approximately 984.62 g based on a volume of 876 ml.

14. Based only on the transactions in the above schedule for which a price was explicitly discussed, the offender made a profit of at least $3,622.50 from the supply of GBL.

Form 1 Offence - Sequence 5: Supply of a prohibited drug (methylamphetamine) (s. 25(1) Drug Misuse and Trafficking Act 1985)

15. An analysis of the messages on the offender's phone also reveals that he was engaged in the supply of a total of 16.15g of methylamphetamine to various purchasers, in a similar manner to the supply of GBL. The methylamphetamine was referred to as "HB" (a half-ball or 1.75 g), a "ball"(3.5 g) or "food". A schedule of the relevant transactions is set out below:

Date	Application	Purchaser	Order	Methylamphetamine	Price
14/12/18	Whatsapp	Sitruc	HB	1.75	Unclear
15/12/18	Whatsapp	Sitruc	HB	1.75	Unclear
18/12/18	Whatsapp	Kyle	Usual HB	1.75	Unclear
18/12/18	Whatsapp	Sitruc	Ball	3.5	$600
18/12/18	Whatsapp	Sitruc	HB	1.75	Unclear
18/12/18	Whatsapp	RKG	4 point food	0.4	Unclear
19/12/18	Whatsapp	Gareth	A ball	3.5	$700
19/12/18	Whatsapp	Moe	HB	1.75	Unclear
TOTAL 16.15

Arrest and post-arrest

16. At 12:55pm on 20 December 2018, police attended the offender's home and arrested the offender.

17. The offender was taken to Kings Cross Police Station and participated in a further ERISP, in which he again denied any knowledge of the contents of the bottle found in the Mini Cooper. He also stated that the mobile phone seized by police did not belong to him and the messages on the phone were not sent by him. The offender denied any knowledge of specific messages related to the supply of prohibited drugs.

18. In particular, he was asked about a series of Whatsapp messages between himself and 'Robbie' which had been sent and received shortly prior to the offender's arrest. In these messages exchanged from 9:29pm and 11:54pm, the offender agreed to deliver "50ml" to a person called 'Robbie' on a cost basis of "50 @ 6" on the evening of his arrest. It is the Crown case that the reference to "ml" is a refence to mls of GBL. The offender denied that he had sent the messages and that he was on the way to delivering any drugs.

14. In evidence, the offender adhered to his plea and to the facts, and made further admissions about supply, to which see below.

Exhibit 1

15. The offender’s criminal history consists of offences relating to the possession of a prohibited drug in 2009 which was dealt with by way of bond and fine, an attempt to import a prohibited substance in early 2010 which was dealt with by way of recognizance, and driving whilst under the influence of drugs in 2017 which was dealt with by way of fine. The first two offences relate to GHB or GBL, which terms were used interchangeably throughout the sentence proceedings to refer to the substance the subject of sequences 1 and 7. I do not consider that the offender’s criminal record is an aggravating factor on sentence. Neither does it assist him. The salient feature of his record is that it confirms that the offender has had a long history of drug involvement and abuse, and in particular with the drug GBL.

Exhibit 2

16. The SAR notes that the offender is currently living with his partner with whom he has a strained relationship, in a private rental. He was currently working without pay for a company owned by himself and his partner. He was seeking a new job despite having a medical certificate which exempted him from job searching. Mr Boskila noted that the offender had a history of drug related offences. The offender reported that he had much regret and he wished that he could turn back the clock as he now sees how much drugs have impacted his life. He reported that during the period leading up to the commission of the offences he was “too much into his own addiction and that he put the drugs before everything else”. He also said that it does not excuse his behaviour but that at the time of the offence he was in a bad place mentally. He was separated from his partner and did not have a job and he did not think he had any alternatives at the time. The offender reported that at the time of the offence he was under the influence of GBL and possibly methamphetamine and that his drug use was very bad at that time; he could not go for 90 minutes without using. He began using drugs recreationally at the age of 22 and became addicted thereafter.

17. The offender reported not being able to handle the financial pressure he was experiencing during the time leading up to the offence. He was dismissed from work in January 2018 for underperformance whilst on workers’ compensation. He had a lot of spare time and a lot of money from his compensation pay which caused his digression into further drug use. When the payments stopped he suddenly found himself without money. He was living on his partner’s pay check, which led to financial strain and the breakdown of the relationship. This in turn led him to sell drugs, as he did not know how else to make money.

18. At the time of the offending, the offender reported that he was experiencing psychotic episodes frequently because of his drug use and felt “insane” most of the time. He has been diagnosed with anxiety and depression.

19. The offender noted that at the time of the offending he put drugs before everything else and could not see the impact that it had on those around him, which he now sees. He reported that at one of his group meetings the term “polluting the community” was used and he now understands the impact his actions had on the community.

20. At the time of the SAR, the offender had been abstinent for some time and was engaging in volunteer service. He had also attended more than 140 alcohol and drug support group meetings since his release from prison. He had also completed programs at two different residential rehabilitation facilities. Contact with the offender’s psychotherapist revealed that he was attending, and had attended about 10 sessions to address his methamphetamine use and was engaging well. Contact with the offender’s social worker, counsellor and psychotherapist revealed that the offender had a “lot of will to rehabilitate”. The report writer was of the view that the offender’s responses were compliant, suitable, and informative. On the Level of Service Inventory, the offender was assessed at a T1 medium low risk of reoffending. He was assessed as suitable to undertake community service work and it was noted that Community Corrections can provide the equivalent of up to 24 hours of work per month.

Exhibit 3

21. Ms Gumbert assessed the offender for approximately 2.5 hours. She noted that the offender was apprehended for the index offences on 19 December 2018 and charged the following day. He was then remanded to custody until 15 January 2019, but spent most of the time in Blacktown Hospital in treatment for drug withdrawal. He was voluntarily admitted to South Pacific Private Hospital during January 2019, but after his release, overdosed on illicit drugs on 18 February 2019 and was returned to custody on 21 February 2019 for breach of bail. He remained incarcerated until 25 June 2019 when he was released to the Buttery residential rehabilitation program. He completed the program on 13 August 2019 and shortly thereafter engaged with outpatient services through ACON Health and the stimulant treatment program at St. Vincent’s Hospital. The offender reported that he has been abstinent from all illicit drug use since his return to custody in February 2019, which is not in dispute. He has weekly counselling and attends Narcotics Anonymous meetings most days.

22. The offender was born in England and raised in Stafford. At age 18 the offender left home to attend university, where he met his now husband Sean at age 23. They have now separated but are cohabiting. Between 2005 and 2018 the offender was continuously employed by the same company. In 2015 he developed carpal tunnel syndrome in both hands, and in 2017 he underwent two surgeries, one to each hand. He was dismissed from his job in 2018 apparently for poor work performance.

23. The offender reported that he was addicted to methylamphetamine and GBL for several years in the lead up to the offending. During his university years, the offender began using amphetamines and ecstasy occasionally and progressed to regular weekend use after finishing his studies. After moving to Australia, he first tried methylamphetamine and GBL and reported that between 2007 and 2015 he gradually progressed from monthly to daily use. By 2015 he was using approximately 50 mL of GBL every day, and at the height of his use in 2018 he estimated that he was using approximately 90 mL of GBL as well as .5 g of methylamphetamine. Subsequently, his methylamphetamine use decreased as his GBL use took over. He was using .1 g of methylamphetamine per day at the time of the offending.

21. Ms Gumbert is of the view that the offender’s symptoms are consistent with diagnoses of sedative, hypnotic or anxiolytic use disorder (severe) and stimulant use disorder (amphetamine type severe) according to DSM-5 criteria.

22. The offender first referred himself for treatment in 2017 as an outpatient to the Cabin Rehabilitation Centre at Edgecliff, and then completed a four night detoxification program at St. Vincent’s Hospital in December 2017. He thereafter relapsed and continued to use throughout 2018. In Ms Gumbert’s opinion, the offender’s (then) current presentation would be classified as in early remission.

23. The offender reported that his GBL use had been escalating over the months prior to his arrest and he required approximately $500 per day for his GBL habit alone. He began supplying GBL as a means to fund his own use and reported that he did not make any profit as he was using so heavily. He reported that the year 2018 was a very difficult year that included the loss of his job of 13 years, the struggle with the impact of his carpal tunnel injuries and the separation from his husband.

24. Ms Gumbert believes that there is a clear nexus between the diagnoses and the offender’s offending behaviour. He was heavily addicted to methylamphetamine and also to GBL at the time of the offending. His judgment was likely to have been substantially impaired as a result of his addiction and he would have been cycling quite rapidly through periods of intoxication and withdrawal. As he had been abstinent for 10 months at the time of assessment and reported no ongoing active symptoms other than cravings, she confirms that his condition can be classified as in early remission. Ms Gumbert is of the view that the most substantial risk factor associated with the offender’s offending was his substance dependence, as he otherwise has a very limited history of criminal offending and did not express an attitude that would support or condone criminal activity. She believes that he has a good degree of insight into his areas of difficulty and has taken appropriate steps to engage with both inpatient and outpatient treatment options. She understood that his urinalysis records confirm his ongoing abstinence from illicit drug use since detoxification in early 2019. In her opinion, the offender shows good prognosis for lasting change and rehabilitation. However, given the severity of his prior dependence, there is a prospect of setbacks or relapse should he disengage with his treatment supports.

25. Ms Gumbert believes that the offender’s recovery would be best fostered through community sentencing options which would allow him to continue with his current treatment providers. She believes that a custodial sentence would have a very limited rehabilitative benefit and would likely undermine his progress in recovery. Should he be eligible for community sentencing, she recommends that he be subject to conditions of supervision including regular urinalysis and ongoing engagement with treatment. He should continue to engage in counselling through the stimulant treatment program and may also continue to benefit from additional participation in support groups and psychotherapy through ACON.

26. Simon Martin of the Alcohol and Drug Service at St. Vincent’s Hospital notes that the offender first engaged with that service by voluntarily presenting on 16 August 2019 for an intake session with a clinician. He attended his first counselling session on 12 September 2019 and has attended scheduled weekly appointments up to the date of the letter of 10 December 2019. Mr Martin says that the offender has displayed active engagement with counselling and has maintained abstinence from drugs. He notes that he is committed to attending Narcotics Anonymous meetings as well as social work and counselling support at ACON.

27. Mr Theodoridis, psychologist confirms that the offender has been a client of the substance support service of ACON since 10 September 2019. The service provides a harm minimisation approach to assist clients reach their goals of managing, reducing or quitting their drug use. He says that the offender is motivated and focused on rehabilitation, attends every session and is engaged with the therapeutic process.

28. Mr Mansfield confirms that he is the sponsor of the offender at Narcotics Anonymous. He says that the offender often speaks of his regret surrounding his behaviour and is extremely remorseful.

29. Mr Elvy has known the offender since 2010. He confirms that the offender appeared to be significantly affected by negative factors in his life in 2018 including the loss of his job, a breakdown of his long-term relationship, the injuries to his hands and a dependency on drugs. Since then, Mr Elvy confirms that the offender has been genuinely remorseful and has attempted to overcome his drug dependency and implement changes in his life.

30. Dr Ong confirms that the offender received inpatient treatment at the psychiatric facility of the South Pacific Private Hospital for drug dependence and mental health issues from 21 January 2019 to 11 February 2019 and engaged with the therapy program and adhered to treatment.

31. Max Lawson, counsellor at the Buttery, confirms that the offender attended the program from 26 June 2019 to 13 August 2019. He says that the offender was an active and willing participant and made a positive contribution to the program. He showed commitment to recovery from drug addiction and developed awareness of the core reasons behind his substance use issues during his stay.

32. Dr Smith confirms that the offender has been compliant with voluntary urine drug screen testing between the periods of 13 September 2019 to 28 November 2019 when no drugs of abuse were detected. He notes also that the initial urine screens had breakdown products of diazepam which were prescribed to the offender by Dr Smith.

Exhibit 4

36. Amongst the documents in Exhibit 4, is an email of 23 December 2018 from Dr Yuliya Richard of Blue Horizon Counselling confirming that the offender had been attempting to manage his drug abuse for a number of years, a discharge summary from St. Vincent’s Hospital confirming the offender’s past medical history of GBL dependence and abuse, and confirming that the offender had been brought to the hospital by police after being found disoriented on the street due to alprazolam abuse, a discharge summary from South Pacific Private Hospital, two letters from the Emergency Department of St. Vincent’s Hospital and a referral to South Coast Private Hospital from Dr Smith.

Exhibit 6

37. Mr Martin confirms that the offender has maintained abstinence from his drugs of concern. In his opinion the offender has made considerable progress over the more than six months that he has accessed the stimulant treatment program. He says that there is a behavioural evidence of the offender’s desire to rebuild his life in positive ways.

38. Mr Theodoridis confirms that the offender has been a continuing client of the substance support service of ACON since September 2019. The offender has attended 13 weekly counselling sessions. The offender has not used drugs in over a year and reports no current cravings or fear of relapse. He has been employing strategies learned in therapy to manage stress and anxiety in healthier ways. He acknowledges that his occupational and social environment created extreme levels of anxiety resulting in drug use and harmful life choices that he now regrets, and he is working his way towards a more responsible, healthier future. He is of the opinion that the offender is motivated and focused on his rehabilitation, attends every session and is engaged with a therapeutic process. His further of the view that there does not appear to be any fear of relapse or reoffending.

39. Mr Lam says that the primary reason for the offender’s referral to him, was that he needed support with an application for social housing. The offender attends all of the appointments and is always punctual. He notes that the offender’s parents and siblings in the United Kingdom still maintain regular contact with him and are supporting him throughout his legal matters. Mr Lam notes that the offender has been abstinent since February 2019, that he is reflected on his life choices, and that he is eager to return to the workforce and earn his income legitimately.

40. Mr Lawson notes that the offender commenced the Buttery residential rehabilitation program on 26 June 2019, when he paid and up-front fee of $15,000 to gain a priority bed. He self-funded approximately four weeks of the seven weeks he was in the program at a rate of approximately $300 per week. Mr Lawson says that the offender was a willing an active participant in the program, attended all groups including daily psycho education, small group therapy, process groups and one-on-one counselling. He is of the opinion that the time the offender spent to the program gave him a valuable insight into his issues which he could further work on after he left the program. The offender has notified Mr Lawson that since he left the program he has maintained abstinence from drugs and alcohol and is now one year without substance use. In Mr Lawson’s opinion this shows a significant effort towards rehabilitation and demonstrates that the offender has clearly implemented what he learned at the Buttery.

41. Mr Mansfield continues to sponsor the offender in Narcotics Anonymous. The offender has increased his commitment notably in the context of service to the Fellowship. The offender holds two secretary positions meaning that he is responsible for ensuring the venue is open for other members to attend and to ensure the smooth running of the meeting. The offender also holds a group service representative position which requires him to attend regular area level service meetings. Mr Mansfield observes that the offender has maintained a determination to sustain the changes he has made in his life in order to remain abstinent.

42. Ms Ducasse, who is a counsellor and trainer sometimes contracted to New South Wales corrective services as an external facilitator, says that the offender has shown a great willingness and enthusiasm to participate in the assistance of running of the inner west and Darlinghurst area narcotics anonymous meetings. She believes that he is a great asset to the program and a fine example of someone on a recovery journey.

43. Mr Symanns is employed as a trauma informed care practitioner by multiple agencies in Sydney including the Rainbow Lodge, the Haymarket Foundation and St. Vincent de Paul. In his opinion the offender is gone above and beyond in his commitment to life in recovery. The offender is dedicated, fastidious and reliable in meeting attendance and has placed himself in the centre of the recovery community.

44. Dr Jeremy Smith notes that the offender continues to be compliant with his voluntary urine drug screen testing and that during the period of 23 December 2019 to 27 February 2020 no drugs of abuse have been detected.

The offender’s evidence

45. In evidence before me, the offender confirmed that he had had drug abuse problems for many years and had made attempts prior to the offending to address his abuse, without success, by engaging in outpatient programs. Whilst in custody, he was hospitalised at Blacktown Hospital when he withdrew from drugs. Upon his release, he soon overdosed on benzodiazepines and was then admitted to South Pacific Private Hospital for 21 days where he was administered quetiapine, an antipsychotic medication. The offender said that it was an excellent foundation when he learned about the concept of recovery. He participated in group sessions and all programs from 8 am to 9 pm every day. He was not permitted to leave. He had no access to television or computers. He could not go off hospital grounds unless it was during a supervised walk with the counsellor. Thereafter he was voluntarily admitted to St. Vincent’s Hospital following a GBL overdose which was the last time he used any illicit substance. He then spent another four months and four days in custody and as a condition of bail was permitted to attend the Buttery residential rehabilitation program. He told me that this institution was different and he completed the first stage of the program. There were many more rules in the Buttery. There was a significant curfew when he had to be within the house in which he was living and he was not allowed onto any other part of the premises. The only time he ever went off site was to attend a 12 step meeting when he was escorted. He had no access to a mobile phone and was on a roster where he cooked, cleaned, did ground maintenance, painted and cut the grass.

46. The offender’s bail conditions since 14 August 2019 are onerous. He reports daily to Kings Cross police station and has a nightly curfew of 9:30 pm to 6:30 am. As of 19 December 2019, he had attended 187 Narcotics Anonymous meetings. Usually, he attends two meetings a day, and averages 12 meetings per week.

47. The offender conceded that he lied to the police in December 2018 about the drugs but said that he did not remember much about being arrested as he was drug affected by GBL. He said he was using approximately 90 mL of the drug per day, or half a litre or more per week. At the time of his arrest, more than half of the drugs in his possession were for his own use. He said he made very little, if any, financial gain from selling drugs because he was spending greater than $500 per day – probably $700 a day – on his own habit. He was supplying drugs to friends. He said that there was no real operation to sell drugs, but rather it was a case of people he had known for many years with a similar habit to him spending time together.

48. In cross-examination, the offender said that he could not really recall whether he had taken methylamphetamine just before his arrest. He could not recall saying anything to the police, but conceded that he was likely to have misled or lied to the police about his consumption of drugs and whether or not the drugs found in the vehicle were his. He also lied to police about the messages found on his phone. He appropriately conceded that he was supplying drugs to approximately 20 people as indicated in the text messages, for the purpose of funding his habit.

49. Ms Stuart suggested to the offender that he may have avoided taking a urine test the week prior to 19 December 2019 because he had consumed an illegal substance. This was denied by the offender who explained that the results of a urinalysis done on 5 December 2019 would not have been available to the court on the day of sentencing being 19 December 2019, and that this was the reason that he did not undertake that urinalysis. Ms Stuart also explored the offender’s departure from the Buttery and suggested that he exited prematurely. It transpires, and I accept, that the offender exited because of an incident when a participant of the program attempted to have physical contact with him and which required him to leave, at a time which was for all intents and purposes at the end of the stage I of the program, and I refer to the letter of Max Lawson of the Buttery noted above.

50. I accept that the offender has had an increasing drug dependency over the years 2009 to 2019. He was frank to the court about the extent of his drug dependency. In my opinion, he showed some considerable insight into his offending behaviour and the effects of that behaviour on his friends, his partner and the community.

Time in custody

51. The Crown says that taking into account the time spent in custody and allowing 50% of the time spent in rehabilitation as quasi custody, the offender has spent 190 days in custody which I should take into account, and backdate. The offender says that I would allow greater than 50% for the time spent in rehabilitation, taking into account the offender’s evidence about the restrictions placed upon him. I am of the view that the restrictions were restrictions that one would expect in any residential rehabilitation facility, and there is nothing that would cause me to exercise my discretion in favour of a finding of greater than 50%. I will take into account that the offender has spent 190 days in custody.

Consideration

Aggravating Factor

52. Ms Stuart submitted that for sequence 7, I would find that the multiple criminal acts were aggravating factors for the purpose of section 21A(2)(m) of the Sentencing Act. So much is clear from the Agreed Facts. Mr Crawford Fish made no submission to the contrary. I take this into account in determining the sentence.

Plea of Guilty

53. The offender pleaded guilty at the earliest opportunity and he is entitled to a discount of 25% for the utilitarian value of his early plea, which is agreed between the parties.

Objective Seriousness

54. In relation to both GBL offences for which I sentence him, I find that the offender was a low-level street supplier of that prohibited substance, and on the balance of probabilities I find that it was primarily used to fuel his own addiction, but (as he conceded) that he also supplied it to friends with whom he took drugs. I note the legislative guideposts of the maximum penalty and the standard non-parole period, which indicates the seriousness which the legislature considers such offending. It is trite to say that it is serious indeed, and that the difficulties in detecting drug offences and the social consequences which flow from their commission reflects this seriousness. I note too that the weight of the drugs for both sequences is considerable, and the supply totals 2108.62gs, which together are more than twice the commercial quantity.

55. There is no evidence or suggestion that the offender was living a lavish lifestyle financed from the proceeds of his drug supply. As I have said, the evidence points to him spending all his money on his own drug habit.

56. The Crown submits that the offender obtained a financial benefit of approximately $8500 from the supply of GBL and methylamphetamine the subject of the Form 1, during the period 9 November 2018 and 19 December 2018. She says that financial motivation is relevant to the offender’s moral culpability, and that I can take the financial motivation into account as either a factor that increases the objective seriousness of the supply offences or alternatively as an aggravating factor under section 21A of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act).

57. I accept on the balance of probabilities, that the offender had a drug habit of at least $500 per day or $3500 per week. I accept the offender’s evidence that he was consuming over a half litre of GBL per week. Any profit he would have derived from the drug supply as particularised by the Crown, would have been spent on drugs to fuel his own habit over a 2 ½ week period. I do not find that earning money from the supply was a motivating factor for the offender which increases the objective seriousness. Neither do I find it an aggravating factor, as any financial gain was insignificant.

58. As to the matter on the Form 1, the offender conceded that he was also supplying methylamphetamine as a means of funding his own addiction to that drug.

59. I take into account the submissions advanced by both Ms Stuart and Mr Crawford-Fish on this issue.

60. With respect to the matters for which I am to sentence the offender, I find that his role was at a lower level for this type of offending. All his offending was for the purpose of feeding his own drug habit. Whilst the offender’s role was at a low level, I also take into account the quantity of the drugs as a factor. I find that both offences fall between the low and mid-range of objective seriousness.

General Deterrence and Denunciation

61. In this case, relying on the offender’s evidence, the documents in exhibit 4 and in particular Ms Gumbert’s report, I am satisfied the offender’s declining mental and physical state over the few years prior to the offender’s arrest inspired or at least contributed to the offending. This moderates against making him an example to others and thus diminishes the weight I give to general deterrence and retribution: see Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [53]; DPP v De La Rosa (2010) 79 NSWLR 1. I take into account that the offender has longstanding largely untreated mental health and addiction issues, and a substance use disorder that spiralled out of control. Notwithstanding those comments, I must still consider the large quantity of drugs, and the Form 1 offence when determining the appropriate sentence.

61. As was said in De La Rosa, the state of an offender’s mental health, where it contributes in a material way (as set out in Ms Gumbert’s report), may reduce, ie diminish, an offender’s culpability. I find some reduction in this case, but I note that it does not exculpate the offender.

Personal Deterrence and Prospects of Rehabilitation

63. Similar comments may be made about personal deterrence. On one hand, the offender’s declining mental health and substance abuse makes him an inappropriate vehicle for personal deterrence. On the other hand, he has some history of drug supply. In my opinion, personal deterrence has some limited role to play.

64. As to his prospects of rehabilitation, I note that the SAR and Ms Gumbert say that the offender is at a low/moderate risk of re-offending.

65. I consider that there is objective and compelling evidence of the offender’s prospects of rehabilitation.

66. The offender has been abstinent since February 2019, which is more than one year. This abstinence is after continuous drug use since 2007, a period of over 12 years, and is the longest period of abstinence since his substance abuse problems arose. In my opinion, one thing can be said with certainty. The offender’s arrest has caused him to engage with a variety of persons and programmes to assist him in the difficult process of recovery. I note the involvement of psychologists, medical practitioners, social workers and addiction specialists. The offender is to be commended for his abstinence and the insight he appears to have into the seriousness of his addiction behaviours.

67. I find that the offender has very good prospects of eventual rehabilitation if he continues being abstinent and if he continues to access appropriate mental health and addiction services. I emphasise that his abstinence over more than a year weighs heavily in favour of his eventual rehabilitation.

Remorse

68. I accept that the offender has expressed remorse and that he is genuine in his expressions. I note that he has consistently expressed remorse to various persons, and I find that he has demonstrated some significant insight into his offending behaviour. I note that in his evidence, the offender said that he had now understood that his actions “polluted the community”. I find on the balance of probabilities that the offender has expressed appropriate remorse including to the community at large.

69. The Crown appropriately concedes, at least following his arrest, that the offender has shown remorse and insight.

Prior Criminal History

70. The offender has a criminal history as noted above. He has never before been sentenced to a full-time custodial sentence. I find that the offender’s criminal history, such as it is, disentitles him to leniency in all the circumstances. No submissions to the contrary were put.

Totality

71. A court sentencing an offender for more than one offence must determine the appropriate sentence for each individual offence and then consider questions of accumulation or concurrence bearing in mind the principle of totality. The effect of the totality principle is to require me, having assessed all individual sentences, to stand back and consider whether the overall sentence to be imposed is just and appropriate and reflects the overall criminality of the offending. [1]

    1. Mill v The Queen (1988) 166 CLR 59 at [63].

72. This in turn requires consideration to be given to whether the sentences to be imposed for each offence should be concurrent or cumulative.

73. The two principal offences, being Counts 1 and 2, were committed in close proximity to one another, and the Crown concedes that they were part of an ongoing course of conduct which concluded with the offender’s arrest and that a degree of concurrency would be appropriate. A sentence must not be concurrent simply ‘because it may be seen as part of the one course of criminal conduct’. [2]

    2. R v Jarrold [2010] NSWCCA 69 at [56].

Standard Non Parole Period

74. Given the terms of s54B(3) of the Sentencing Act (NSW), I indicate that my reasons for deviating from the standard non-parole period (which is imprisonment for 10 years for the s25(2) DMTA offence) are that the offending was below the mid-range of objective seriousness and the subjective factors favouring the offender, including his abstinence from drugs and the fact that this would be his first time in custody.

Special Circumstances

75. Having regard to the offender’s ongoing need for psychological therapy, drug counselling, and other intervention which will assist him in his rehabilitation, I make a finding of special circumstances. I observe that the Crown does not disagree that I should make such a finding.

Threshold

76. Having considered all the possible alternatives, I am satisfied that the section 5 threshold has been crossed. Due to the seriousness of the offences, I find that no penalty other than imprisonment is appropriate. No submissions were put otherwise.

Form 1 Matter

77. As I indicated earlier, I have been asked to take an offence into account on a Form 1 basis when sentencing the offender for the principal offence, the details of which I have already set out above. This has the effect of increasing the sentence that would otherwise be imposed for the sequence 7 offence. [3] The increase operates to recognise the need for personal deterrence and the community’s entitlement to retribution for the Form 1 offences, although the focus remains on the primary offence. [4] I have taken these offences into account and I have carefully considered s33 of the Sentencing Act and the judgment of Spigelman CJ in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002.

    3. Abbas & Ors v R [2013] NSWCCA 115 at [22].

    4. Watts v R [2007] NSWCCA 153 at [4]; Attorney General’s Application (No 1) (2002) 56 NSWLR 146 at [39]-[42].

Sentence

78. I have taken into account the various purposes of sentencing under s3A of the Sentencing Act. They include: ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender’s rehabilitation, making an offender accountable for his or her actions, denouncing an offender’s conduct and recognising the harm done to victims of an offence in the community. As I have said, with respect to Alexander Burkitt, the facts and circumstances of the present offence and this offender highlight how the various purposes of sentencing pull in competing directions – especially given in my opinion the offender’s own addiction to multiple drugs and his history of mental and physical health issues played a contributing role in his offending behaviour.

79. As the High Court said of s3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]:

The purposes there stated (in s3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) at [476–477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) [at 476] in applying them.

80. The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the court, including the facts surrounding the commission of each offence, matters affecting relative seriousness, the offender’s subjective circumstances and other aspects which bear upon the question of sentence, including the guideposts of the maximum penalty and the standard non-parole period and the factors referred to in s21A of the Sentencing Act. The sentencing court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances (Markarian v The Queen [2005] HCA 25).

81. In determining an appropriate sentence I have kept in mind the two legislative guideposts: the maximum penalty of 20 years and or a fine of 3500 penalty units, and the fact that there is a standard non-parole period of 10 years for the sequence 1 offence, and the maximum penalty of 15 years and or a fine of 2000 penalty units for the sequence 7 offence.

82. I intend to proceed to sentence the offender by way of an aggregate sentence pursuant to s53A of the Sentencing Act (NSW). I have been mindful to ensure that the aggregation of the sentences reflects an appropriate measure of the total criminality involved.

83. As I am satisfied that no alternative other than a sentence of imprisonment is appropriate, the next step is to determine the aggregate sentence in the quantitative sense. Having considered all of the matters I have referred to in this sentence judgment, I impose an aggregate sentence of imprisonment for 3 years.

84. As required by s53A(2)(b) of the Sentencing Act (NSW), the indicative sentences I would have imposed are as follows:

1. For the Sequence 1 offence, namely supply prohibited drug not less than the commercial quantity (1124g gamma butyrolactone), I would have imposed a sentence of imprisonment of 2 years, and set a non-parole period of 14 months.

2. For the Sequence 7 offence, namely supply prohibited drug not less than the indictable and commercial quantity (984.62g gamma butyrolactone) and taking into account the mater on the Form 1, I would have imposed a sentence of imprisonment for 2 years.

85. The final matter I must consider is whether it is appropriate to impose an alternative to full-time imprisonment – namely, in these circumstances, an Intensive Correction Order. I note that the passing of the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW) has provided for alternative sentencing options in order to provide justice to the community as a whole. For example, in the second reading speech regarding the legislation, the Attorney-General stated:

“We know from Australian and international research that community supervision, combined with programs that target the causes of crime, reduce offending. We know that community supervision is better at reducing reoffending than leaving an offender in the community with no supervision, support or programs. We also know that community supervision is better at reducing reoffending than a short prison sentence.”

86. Community safety is the paramount consideration when determining whether to impose an Intensive Correction Order (s66(1) of the Sentencing Act. I am satisfied the offender has good prospects of getting his life on track in the community, and the fact that he has been of good behaviour since committing these offences is some indication of that. I am also satisfied that the offender has a reasonably low risk of reoffending and that the safety of the community is more likely to be addressed if the offender’s sentence is served within the community rather than in gaol (s66(2) of the Sentencing Act). Indeed, I am of the view that by serving his sentence in the community and by continuing to access his current treatment providers, his risk of re-offending is lower than if he were to go into a custodial setting, as I am of the view that his rehabilitation will be significantly interrupted should he go into custody. In arriving at these conclusions, I have also considered the provisions of s3A and the relevant common law sentencing principles, along with the other relevant matters referred to in this sentencing judgment (s66(3) of Sentencing Act) and the cases of R v Pullen [2018] NSWCCA 264, R v Fangaloka [2019] NSWCCA 173, Karout v R [2019] NSWCCA 253 and Casella v R [2019] NSWCCA 201. I also note, to paraphrase Simpson JA in Robertson v R [2017] NSWCCA 205, that the section 5 threshold having being crossed, I am entitled to consider a non-custodial means by which the sentence can be served in a case of drug supply.

Orders

87. Mr Burkitt, please stand.

88. You are convicted of the offences of:

1. supply prohibited drug not less than the commercial quantity (1124 grams) of GBL, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW);

2. supply prohibited drug not less than the indictable and commercial quantity (984.61 grams) of GBL, contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW);

89. You are sentenced to an aggregate term of imprisonment for 3 years.

90. Pursuant to s7(1) of the Sentencing Act (NSW), the sentence imposed on you is to be served by way of an Intensive Correction Order.

91. The sentence will commence today 13 March 2020, and will expire on 12 March 2023.

92. You must report to the City Community Corrections Office as soon as practicable, but no later than 7 days from 13 March 2019. This means that you must report to the City Community Corrections Office by 20 March 2020.

93. The standard conditions of the order apply, namely:

1. You must not commit any offence; and

2. You must submit to supervision by a community corrections officer.

94. The following additional conditions apply:

1. You must remain abstinent, and undertake weekly urinalysis screenings with your general practitioner;

2. You must attend Narcotics anonymous meetings at least twice a week; and

3. You are to arrange for a Mental Health Plan with your general practitioner to be funded by Medicare, with a view of seeing a psychologist 10 times through each calendar year of the Intensive Correction Order to address your psychological and addiction issues; and

95. I impose a community service work condition requiring the performance of community service work at the direction of City Community Corrections for a period of 500 hours.

96. If you fail to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions or it may include revocation of this order.

97. If the order is revoked you may be required to serve all or some of the period of your sentence in full-time custody.

98. I make an order pursuant to s29(1) of the Confiscation of Proceeds of Crime Act 1989 that the defendant pay to the State of New South Wales the sum of $4932.50.

99. You are now directed to attend the court registry where a copy of this order will be explained and given to you.

100. Mr Burkitt, do you understand the order that has been given?

**********

Endnotes

Amendments

18 March 2020 - Decision date corrected to 13 March 2020

Decision last updated: 18 March 2020