R v Christie-Gilbert

[2017] NSWDC 453

District Court

New South Wales

Medium Neutral Citation:	R v CHRISTIE-GILBERT [2017] NSWDC 453
Hearing dates:	16 October 2017
Decision date:	16 October 2017
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted on each count. SEQ 8: Special circumstances found - first time in custody, will be assisted by longer than usual period on parole in re drug rehabilitation and return to lawful employment. Form 1 matters SEQ 5 & 7 taken into account in re SEQ 8. Sentenced to a total term of imprisonment for 5 years and 6 months with a NPP of 3 years and 6 months to commence on 12/6/17 and to expire on 11/12/20 and a balance of term of 2 years to commence on 12/12/20 and to expire on 11/12/22. SEQ 6: Fined $300. Disqualified from driving for 6 months. SEQ 3 & 4: Back up offences withdrawn and dismissed.
Catchwords:	CRIMINAL – sentence – supply prohibited drug, MDA, greater than commercial quantity – possess restricted substance, Diazepam – supply prohibited drug, cannabis, less than commercial quantity – drive vehicle under influence of drugs – organised & significant criminal enterprise – travel from Newcastle to Adelaide – lies – drug use – parity – subjective matters
Legislation Cited:	Drug Misuse and Trafficking Act 1985 Poisons and Therapeutic Goods Act 1966 Road Transport Act 2013 Crimes (Sentencing Procedure) Act
Cases Cited:	Thomson and Houlton (2000) 49 NSWLR 383
Category:	Sentence
Parties:	Aaron Samuel CHRISTIE-GILBERT
Representation:	Counsel: Crown: Mr C Bailey Defence: Mr P de Dassel   Solicitors
File Number(s):	2016/128235

Judgment

1. HIS HONOUR: Aaron Christie-Gilbert appears for sentence in relation to a number of offences. The first offence is supply 3,4‑methylenedioxyamphetamine (MDA) in greater than a commercial quantity, that being 218.5 grams, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum penalty provided by the legislation is 20 years’ imprisonment and/or 3,500 penalty units. In respect of that offence a standard non-parole period is provided by the legislation of 10 years’ imprisonment.

2. When being sentenced in respect of that matter, he asks that the Court take into account a further two matters contained on a Form 1. The first of those is possess restricted substance contrary to s 16(1) of the Poisons and Therapeutic Goods Act 1966. The maximum penalty available in relation to such an offence is six months’ imprisonment and/or 20 penalty units. There is no standard non-parole period, and in the ordinary course of events it would be expected to have been dealt with in the Local Court. That relates to 32 tablets of Diazepam.

3. The second offence that he asks the Court to take into account is supply cannabis, being less than a commercial quantity, contrary to s 25(1) of the Drug Misuse and Trafficking Act. The quantity is 10.499 or approximately ten and a half kilograms. The maximum penalty provided is ten years’ imprisonment and/or 2,000 penalty units.

4. There is a further offence contained on a s 166 certificate, being drive vehicle under the influence of drugs contrary to s 112(1)(a) of the Road Transport Act 2013. The maximum penalty in relation to that offence is nine months’ imprisonment and/or 20 penalty units and there is an applicable 12 months automatic licence disqualification.

The facts are agreed and are as follows:

5. On 26 April 2016 at about 2.50pm police observed a maroon Holden Statesman, New South Wales registration ARM 74L, travelling north on the Sturt Highway at Buronga, New South Wales. Police signalled for the car to pull over for the purpose of a random breath test.

6. The offender pulled the car into a nearby Caltex Service Station, where the co-offender, Joel David Matzanke, exited the front passenger seat and walked into the store. The offender then exited the driver’s seat and approached police, who identified themselves and asked to see his identification. He handed over his provisional driver’s licence, at which time police observed his hands trembling uncontrollably.

7. Police inspected the car for P-plates and smelt cannabis emanating from inside the car. The offender told police that he had been camping with his friend Matzanke in the Blue Mountains, and pointed in the direction of Victoria. When police remarked that the Blue Mountains were in New South Wales, not Victoria, the offender stated that they were camping in the Adelaide Hills.

8. Matzanke returned to the car and police asked him about his movements. Matzanke told police he and Christie-Gilbert had travelled to a suburb in Adelaide but he could not recall the name.

9. Police formed the view that the offenders were in possession of prohibited drugs, and commenced searching the car, in which they located the following:

• A blue sports bag in the boot of the car containing a black Maglite torch. Inside the battery compartment of the torch, police recovered three resealable bags which contained pink pills.

• A green swag, which when rolled out contained 22 individual vacuum sealed plastic packets which contained green vegetable matter.

10. The car was towed to Denton Police Station where police undertook secondary research. Police located Garmin and Navman GPS units suspected of being stolen property and an additional two resealable plastic bags which contained pink pills.

11. In total, police located 210.58 grams of 3,4‑methylenedioxyamphetamine with a purity of 5% in the additional two resealable plastic bags, 183.56 grams of 3,4‑methylenedioxyamphetamine with a purity of 5% in the torch, and 10.499 kilograms of cannabis leaf in the green swag.

12. Police subsequently located Matzanke’s DNA on a couple of packages which contained the cannabis leaf and the MDA. Christie-Gilbert’s DNA was not located on any packaging. The offender was unaware of the MDA located in the torch.

13. I note in respect of the MDA located in the torch that there is no charge relating to that quantity against the offender. The basis upon which it is accepted that he was unaware of it is not apparent from the facts; however, I note that it is in the circumstances a quantity that I cannot take into account in sentencing.

14. Testing of the offender revealed that he was under the influence of cannabis whilst driving the motor vehicle, which belonged to Mr Matzanke.

15. Police arrested the offenders, at which time the offender stated he was in possession of 32 Diazepam tablets for which he did not have a prescription. The offenders were then conveyed to Denton Police Station where they agreed to be interviewed by police. The offender told police the following:

• He lives in Newcastle and left with Matzanke for a camping trip in the Adelaide Hills a day or two earlier;

• He owns the black suitcase fishing tackle box, the Pixie Alcatel mobile phone and the Diazepam tablets;

• He slept in the tent and then moved to sleep in the car. He denied knowledge of the existence of the cannabis leaf and MDA.

16. The offenders were then charged with the subject matters on 11 August 2016. The offender provided an additional statement to police wherein he stated a number of matters as follows:

• He became depressed after a knee injury at work in August 2015. He self-medicated with cannabis on a daily basis and ice every second day;

• Matzanke sold him cannabis and on occasion would give him ecstasy in pink tablet form;

• Matzanke asked him to come on a camping trip to the Blue Mountains. He asked the offender to drive, as he did not have a valid driver’s licence;

• The offender agreed and met at Matzanke’s house later that night. Matzanke told the offender that he had all of the camping gear;

• During the trip Matzanke told the offender to drive to the Adelaide Hills instead of the Blue Mountains. The offender said he did not want to go any more but Matzanke insisted. Feeling fearful of Matzanke, the offender relented;

• After a while, the offender told Matzanke that he needed to sleep. Matzanke took over driving and when the offender awoke they were just outside of Wagga Wagga;

• The offender took over driving again and Matzanke directed him to pull into a service station in Wagga Wagga. Matzanke got out of the car and walked towards a Toyota Hilux. Christie‑Gilbert saw Matzanke pull a tent out of the rear of the HiLux and put it in the car with them;

• Matzanke then told the offender to continue driving. After a long time they crossed the border into South Australia. Matzanke told the offender to pull over onto the side of the road;

• The offender got out of the car and Matzanke gave him the swag and told him to go to sleep. When the offender awoke the following morning Matzanke said, “Come, check this out.”

• The offender saw a number of vacuum-sealed plastic bags which contained what he thought to be cannabis leaf and two plastic bags which contained pink tablets;

• Matzanke told the offender to put the cannabis leaf in the swag but the offender refused. Matzanke yelled, “Put it in the bag now” and the offender relented;

• Matzanke told the offender to put the two plastic bags of pink tablets in the small compartment above the middle back seat.

17. The facts state that it is accepted that the offender’s role in the offending was less than that of the co‑offender, Matzanke. The basis on which that is stated, as agreed by the Crown, has not been placed before the Court. The offender gave evidence on sentence and there are some additional matters that arose from his evidence that are relevant.

18. A judgment provided to the Court of Lakatos SC DCJ of 16 March 2017 in relation to the sentencing of Joel Matzanke was tendered as part of the Crown bundle. In the reasons on sentence, his Honour referred to some matters which were not contained in the facts tendered to the Court in respect of this offender, but in respect of which he has given evidence on sentence.

19. Although not put in full detail, they are in summary to this effect:

“That at about 2.45am on 25 April 2016 police patrolling in Wallsend, Newcastle, observed a Holden vehicle travelling north and signalled the vehicle to pull over for a random breath test. The person driving the vehicle was the offender and seated beside him was Mr Matzanke, the registered owner of the vehicle.

While speaking with the police they located in Mr Matzanke’s shirt pocket a small clear resealable plastic bag which contained .64 grams of methamphetamine. They also located in the vehicle a cigarette packet on a seat containing 35 rolled cannabis cigarettes as well as an amount of $5,720 cash in the glove compartment of the car.”

20. While Mr Matzanke was charged with a number of matters relating to what was located, the offender was not charged with any offence resulting from those findings on that occasion. In his evidence, he said that Mr Matzanke was his drug dealer who supplied him with cannabis and, according to what he told the police, on 11 August 2016, also ecstasy.

21. He accepted that he was aware, as a result of the location of the drugs and money, of the fact that Mr Matzanke had been in possession of that relevant material at about 2.45am on 25 April 2016. Accordingly, between 2.45am on 25 April 2016 and about 2.50pm on 26 April 2016, the offender and Mr Matzanke had travelled from Wallsend, Newcastle, to Adelaide and returned to the area of Buronga. At the time they were observed on the Sturt Highway, they were travelling north, that is, after having been to Adelaide.

22. The offender, in what he told the police on 11 August 2016 and what he has said today in evidence, has claimed that he set out to go on a camping trip to the Blue Mountains, notoriously not far from Sydney, but when they reached the vicinity of the Blue Mountains he was directed to continue on to Canberra and they continued on to Adelaide where he was kicked out of the car and Mr Matzanke returned the following morning and showed him the drugs and told him to put them in the car.

23. On the occasion that Mr Matzanke told him to drive on to Canberra, he was aggressive and the offender was scared of Mr Matzanke, who was larger than him. When he was directed to put the drugs in the car, Mr Matzanke was again aggressive when the offender at first declined to do so before relenting and doing as directed.

24. He also said that he did not realise that they were drugs until such time as he was directed to put them in the car, that he had no knowledge of the purpose of the trip to Adelaide until such time as Mr Matzanke had returned with the drugs and directed him to put them in the car.

25. This was clearly an organised and significant criminal enterprise involving travelling from Newcastle to Adelaide in order to acquire substantial quantities of prohibited drugs, approximately ten and-a-half‑kilos of marijuana, and at least as far as the facts assert in relation to Mr Christie‑Gilbert, some 218.5 grams of MDA.

26. That Mr Matzanke would set out from Newcastle on a lengthy overnight trip with the prospect of what must have been an immediate return in order to collect prohibited drugs in Adelaide without any significant stopover, as would appear to be allowed by the evidence, is hardly likely in the Court’s view to have occurred in the circumstances where the offender was not from the outset a knowing participant to the arrangement.

27. The offender initially lied to the police about his knowledge of the drugs and in my view continued to attempt to mitigate any sentence that might be imposed on him by again endeavouring to deceive them when he went in to speak to them on 11 August 2016 to make a further statement. As a witness he was most unimpressive.

28. Although glib in putting forward his case as to why he was not knowledgeable until such time as the drugs were produced and he was directed to secrete them in the vehicle, it is entirely implausible that Mr Matzanke would co‑opt the assistance of another in relation to such a serious criminal offence in the expectation that he would be able to scare him, in effect, into complying with his desires, and also in the expectation that the offender would not report the matter to the police or give evidence against him.

29. The offender’s version of what occurred is so grossly implausible as to be totally unbelievable. He also claims that at no time was he ever offered any payment or supply of drugs for participating in the offending conduct. There is no evidence that he was to receive money, or that he was to receive any portion of the drugs.

30. Nor is there any evidence that he paid for any of the drugs, but it is impossible to accept, in the circumstances of such significant participation over the course of days, with a person that he has stated was his drug dealer, in relation to such substantial quantities of drugs, that he did not have an expectation of a financial benefit or at the least a significant reward by way of the provision of prohibited drugs.

31. The fact that his version is so unbelievable significantly affects what reliance the Court can place on any other statement made by the offender. He claims that he is very remorseful and has learnt a lesson, that he no longer wants drugs in this life and he wants to go home and do right by his family, which consists of a partner and her son. He also claims that he has ceased the use of prohibited drugs. I will return to that in due course.

32. For the moment, in relation to the offence itself, that is, the trip to Adelaide and the return with drugs, it must be regarded as a serious course of criminal conduct, and as I have previously indicated, I do not accept the offender’s version. I find beyond reasonable doubt that the offender was knowingly participating from the time he left Newcastle in a significant drug operation.

33. While such an operation is not defined simply by the quantity of drugs, I note that he had 32 tablets of Diazepam which he acknowledges were his, and otherwise he was assisting in the transport of at least, according to the agreed facts, 218.5 grams of MDA and ten and half kilos of cannabis.

SUBJECTIVE MATTERS

34. Before the Court is of course the offender’s evidence on sentence;

• a pre‑sentence report under the hand of Sheena Lin, dated 2 March 2017;

• medical reports from Dr Mark Adamski, dated 12 February 2016 and 11 May 2016 and associated notes of the doctor’s;

• a letter from a clinical psychologist, Dr Gillian Maddock, dated 1 August 2017;

• a letter from Hunter Concrete Pump Hire Pty Limited indicating that the offender has been working as a concrete pump hand on a casual basis since 20 October 2016, working most days;

• an email from Rebecca Hall who met him at a birthday party a couple of years ago. She is a cousin of the offender’s partner, Amanda Moait.

35. I note Ms Hall’s familiarity with the offender appears to be not very substantial. There is no reference in the email to knowing anything about the offender’s past or his use of prohibited drugs on an ongoing basis at least up until the time of the offending conduct;

• a letter from Amanda Moait, dated 16 October 2017. She indicates that she first met the offender some two years ago when he was apparently depressed, but to her observation he was a charming, caring person stuck in a rut. She states that both she and her son were devastated when they found out that the offender had been charged. She also states “Aaron felt remorse straight away” and “If Aaron gets a gaol term today I will not be able to support our family, as I have severe depression because of all this stress”.

36. In relation to the report of Dr Mark Adamski, dated 12 February 2016: it is a referral note referring him to Dr Gilliam Maddock to obtain assistance in respect of depression arising from a work injury when his right kneecap was dislocated as a result of being hit by a crowbar when working. It is stated that he had become

“…very negative, pessimistic, dark and withdrawn. He is having suicidal ideation but no intent. He feels hopeless about his future and has become disillusioned with people and life. He isn’t sleeping, he’s tearful and can’t eat. He has never suffered any anxiety or depression in the past. He started Fluoxetine four days ago with little effect so far.”

37. I note that in the notes attached to the letter of 12 February 2016 that he reported to the doctor that as a result of his inability to sleep and eat, he had lost 10 kilograms and had tried to smoke THC to help him sleep, but to no avail, and had been smoking on and off for 12 years, but the Valium had never caused him depression, and that when he was living in Queensland prior to moving to New South Wales, his life had been a mess as he was always being arrested for fights and using drugs, and had been told by a judge that the next time he was in trouble, he would go to gaol. He apparently moved to the Hunter to avoid that trouble, and looked for a job and found one where he was unfortunately injured.

38. The first report was prepared obviously as a result of a consultation for the sake of his workers compensation claim. The second letter of 11 May 2016 is addressed to Justice Health, and would appear to have been for the purpose of informing Corrective Services that he had had a previous dislocated right kneecap and developed depression as a result and to inform them of the prescriptions that had been provided for him.

39. Dr Gilliam Maddock saw him on four occasions between 17 February 2016 and 20 April 2016, presenting with symptoms of depression, anxiety and claiming to have panic attacks. On 17/02/2016, after a consultation, his level of psychological distress was described as extremely severe, including suicidal ideation. By 9 March 2016, his level of psychological distress was moderate. His DAS score, which showed depression, moderate anxiety and severe stress, is described as moderate. As to risk, it is described as being “nil risk reported”. There were no consultations after 20 April 2016 and there is no indication of any finding on 20 April 2016. He apparently moved out of the area on that date.

40. However, the letter from Hunter Concrete Pump Hire indicates that he has been able to return to work on a casual basis, working most days since 20 October 2016. That is approximately six months after his last consultation with the psychologist. There is no information as to exactly what particular physical exertion is required by a concrete pump operator, but clearly his dislocated kneecap has apparently resolved.

37. I note that in the reports at least, his employer, at the time that he was injured and/or the insurer, appeared to have some doubts about the significance of his injury and its continuing consequences. However, I accept that he was injured and that it did have some adverse consequences for him, noting that they appear to have at least been resolved by the time he became a concrete pump operator.

38. None of the medical reports, the psychological report or the reference from Rebecca Hall or the offender’s partner Amanda Moait provides any material of significant assistance to the Court, although I note the claim by Ms Moait that he “felt remorse straight away”. She does not, in any way, explain how it is that she is aware that he “felt remorse straight away” or how he expressed that to her.

39. The pre-sentence report indicates the following, although it is, apart from any assessment, largely reliant on self-reporting by the offender. He had apparently recently relocated to the Maitland area with his partner and his stepson and his stepson’s friend, presumably indicating that the stepson is at least in the late teenage years.

40. He described to the pre-sentence officer what he described as a “neglected upbringing”, his parents separating when he was a baby, and he resided predominantly with his mother who relocated numerous times throughout New South Wales and Queensland. He claims that he was a victim of physical, sexual and mental abuse inflicted by his mother and unknown males. He describes his relationship with his mother as strained but that he continued to have a supportive and position relationship with his father, younger sister and his current partner.

41. His partner described him as maintaining a close relationship with her son. He was educated to Year 11 and is said to have obtained qualifications or certificates in asbestos removal and furniture removal, and, as previously noted, to being employed on a casual basis as a concrete pump operator, said to be earning some $600 per week. Of note in respect of this offence is that he had apparently been on workers’ compensation since August of 2015 up to the time of the offending conduct, rather than employed in any job which would have resulted in a significant weekly income. He reported a history of binge drinking and commencing with the use of cannabis at age 16 and methamphetamines at age 20. He stated that over time he had increased his cannabis and methamphetamines use to “as much as possible”. The pre‑sentence officer noted that he appeared to show some insight into his substance use and the effect it had had on his life and that he claimed not to have used any illicit substance since his release from custody in November 2016. I note in that respect that he has not attended any rehabilitation to deal with any outstanding drug or alcohol issue; nor is there any objective evidence that he has ceased the use of drugs, simply his claim to have done so. That is, he has not endeavoured to have regular urinalysis conducted in order to be able to objectively prove that he has ceased the use of drugs.

42. Although the pre‑sentence officer noted that he had reported a history of depression, there was no formal documentation provided.

43. As to his attitude to offending, the report states,

“The offender appeared to minimise his involvement in the offence and stated, ‘I only owned the Valium’. The offender denied responsibility for his criminal behaviours and claimed that he was not dealing drugs and there was no intent to deal drugs.”

48. He was assessed as being a medium risk of re-offending.

49. Under “Issues Relating to Community-Based Sentencing” it was noted that as he had been on workers’ compensation due to the knee injury, he was requested to obtain a medical assessment. He did, but the assessment outlined that he, “is fit for normal hours of work”.

50. On 24 February 2017, he reported to Community Corrections and advised that he had to leave work early that day due to hurting his back. He was of the opinion that it was a “pinched nerve” and was directed to provide another medical assessment from his general practitioner evaluating the severity of this new injury, and that was provided on 3 March 2017 and stated, “Fit for normal hours of work”. I note that he currently resides with his partner, stepson and son’s friend in the Maitland area.

51. In respect of the quantity of 3,4-methylenedioxyamphetamine, the trafficable quantity is .75 grams, an indictable quantity is 1.25 grams and a commercial quantity is 125 grams. He had approximately 32 grams less than twice the commercial quantity. The next range of seriousness in relation to methylenedioxyamphetamine is a large commercial quantity, which is 500 grams. So again, he had approximately 230 grams less, or approximately half a large commercial quantity by some 30 grams.

52. In respect of the Form 1 charge of supplying cannabis, less than the commercial quantity, an indictable quantity is 1 kilogram, and he had ten and a half times the indictable quantity. The next level of seriousness is 25 kilograms, so he had a little less than half the next level of seriousness, according to quantity.

53. The co-offender Matzanke was sentenced by Lakatos DCJ, as previously referred to, on 16 March 2017. He was sentenced for a total of six offences. In relation to four of those offences, being: goods in custody relating to the $5,270-odd I previously referred to; dealing with property suspected proceeds of crime; possess methylamphetamine, which I understand is the small quantity found in his shirt on 25 April, and possess cannabis, which I understand, although it is not obvious from his Honour’s reasons, to be the 35 cigarettes found in the cigarette packet on the 25th.

54. In relation to those four offences, his Honour gave him the benefit of applying s 10A, that is, a conviction with no other penalty. The two significant offences that his Honour dealt with are similar, but at least in one case not the same as this offender faces. One offence was supply cannabis, being less than the commercial quantity, relating to the 10.5 kilos found on 26 April in the motor vehicle being driven by this offender, and the second offence related to supplying 3,4‑methylenedioxyamphetamine greater than the commercial quantity, however the quantity in relation to the co-offender included the quantity of methylenedioxyamphetamine located in the torch, being a total of 394.14 grams: a little less than 180 grams more than this particular offender. The co-offender was committed for sentence on 4 October 2016 and received a 25% discount for the utilitarian value of the plea.

55. In respect of the supply ten and a half kilos of cannabis, his Honour imposed a sentence with a non-parole period of two years and three months to date from 27 April 2016 with a balance of term of nine months, and in respect of the offence of supply methylenedioxyamphetamine, more than a commercial quantity, a sentence with a non-parole period of three years and six months to date from 27 April 2017, that is one year after the sentence imposed in relation to the last matter, with a balance of term of two years. Because of the accumulation, the total term imposed was a sentence of six years and six months imprisonment with a non-parole period of four years and six months, giving a balance of term of two years. However, the methylenedioxyamphetamine and the cannabis were dealt with by separate charges, the subject of separate sentences. In respect of this offender, the cannabis offence relating to the ten and a half kilograms was placed on a Form 1 to be taken into account when he is being sentenced in respect of the supply of the 3,4-methylenedioxyamphetamine, more than a commercial quantity, and is about two-thirds of the quantity relevant to Mr Matzanke.

56. Clearly, there is an issue of parity in relation to the two offenders that is for my consideration in achieving a sentence for this offender which is appropriate, but taking account of parity with the sentence imposed on Mr Matzanke.

57. The Crown was clear that there was a joint criminal enterprise to travel to Adelaide, to acquire prohibited drugs, to return them to New South Wales and most probably the Newcastle area for further distribution. As I have previously indicated, the fact that there were at least two separate prohibited drugs and that each was in a substantial quantity, even allowing for the lesser quantity relevant to this offender, it must be accepted that this is a serious example of such offending, and a significant penalty must be imposed both to ensure specific deterrence and general deterrence. The drug trade can only continue to flourish while individuals are prepared to conduct themselves in the way that this offender has, at least by taking part in the transportation, if not otherwise, of drugs.

58. I accept that it was Mr Matzanke’s car that was being used. I accept that it was probably seen as necessary or at least preferable, to have the offender drive the vehicle, as he at least had a licence at the time, but it is clear from the offender’s evidence and what he said to the police on 11 August 2016 that they both drove the car at times. It is not difficult to imagine that, leaving Newcastle presumably in the early hours of the morning on 25 April, there was a need to change drivers at times in order to so rapidly travel to Adelaide and then return so as to be at Buronga by 2.50pm on 26 April. The offender’s participation was clearly a significant contribution.

59. As to the prior criminal record of this offender, he has a number of offences in Queensland. He is now 28 years of age. He has no previous offences in New South Wales, but in Queensland, in April 2007, he was before the court in relation to committing a public nuisance but no conviction was recorded on the basis that he would serve 40 hours community service. In April 2009 he was again before the Queensland Magistrates Court in relation to possession of a knife in a public place or school: again, no conviction was recorded and he was fined $450. Also, in April 2010 he was before the same Local or Magistrates Court in Queensland, referred to there for conduct causing a public nuisance. No conviction was recorded but a $300 fine was imposed. He was again before the Toowoomba Magistrates Court in July 2010 for offences of commit public nuisance, assault or obstruct police officer, and for possessing dangerous drugs. In relation to the public nuisance and assault police officer, no conviction was recorded, although he was required to perform community service, being four hours. In relation to the possess dangerous drugs, again, no conviction was recorded, he was simply ordered to enter a recognisance in the sum of $400 and to be of good behaviour for a period of four months, and it would appear, to take part in drug diversion. He was again before the Toowoomba Magistrates Court in October 2010. Unfortunately, the Queensland court outcome does not record any offence but simply that no conviction was recorded and he was fined $400. In January 2012 he was before the same court again for an offence of drunk or disorderly in premises to which a permit or licence relates. This was an occasion on which for the first time the conviction was actually recorded, and he was fined $400. One month later, in February 2012, he was before the same court for common assault, and this was the second recording of a conviction, and he was fined $800.

60. It is clear from the offender’s history, as given by him in the pre‑sentence report and in the court, that he has had a drug problem for some years. His past record in Queensland is, in my view, of no real significance in relation to the offending the Court is concerned with here. Clearly, the fact that there were a number of offences in respect of which no conviction was recorded indicates that whatever the particular conduct was, it fell within the least serious category of such offending. Although he can be essentially regarded as a person with such minimal criminal history as to be regarded as a person of good character, that is tempered by the fact that he has admitted that for many years he has been addicted to prohibited drugs, and to using them in substantial quantities.

61. I am unable to determine on the evidence and the agreed facts whether the offender had any more significant role to play than being the driver for a significant course of criminal conduct, and it is at least reasonably possible that he engaged in the conduct at the request of the co-offender.

62. He has spent some time in custody from his arrest on 27 April 2016 until 30 August 2016, being a period of 126 days. That is the first period of time that he has spent in custody.

63. I find it difficult to accept in the absence of any objective evidence and in the light of what I have referred to as the poor quality of the offender’s evidence and the implausible explanation that he is, indeed, genuinely remorseful or contrite in relation to his offending conduct. However, I will give him the benefit of such a finding, despite my observations.

64. As to his ability to rehabilitate himself, in my view that will be entirely dependent on the question of whether he has, in fact, ceased using prohibited drugs. Should he be still continuing to use prohibited drugs, or should he return to their use in the future, in my view there is a high risk that he would not only be offending by using prohibited drugs, but that he would find himself in similar circumstances where in order to feed his own addiction he may well undertake conduct that makes him liable for significant offences such as this.

65. I cannot find that there is a low prospect of reoffending, nor can I find that there is a good prospect of rehabilitation. The key to both of those aspects will be whether the offender has genuinely ceased, or can cease using prohibited drugs.

66. The distribution of prohibited drugs in our community is a serious and real problem, both as to the effect that the prohibited drugs have on the users and the effect they have on the community who have to suffer the depredations of users who frequently commit other offences in order to feed their addiction, or because the particular drugs they consume cause them to become violent. In the circumstances of this matter, as conceded by Mr de Dassel, not in his oral submissions but in his written submissions, which I have, of course, read during the interim period, there can be no question in this matter that a term of full‑time imprisonment must be imposed.

67. I accept that the plea was entered at the earliest opportunity, and he is entitled to a 25% discount for the utility of the plea alone, as referred to in Thomson and Houlton (2000) 49 NSWLR 383, and I note that offenders who are charged with supply, even where that supply is based on the deeming provision, are to be regarded as suppliers, in effect. In my view, this was, as I have said, organised criminal conduct of a significant nature, and a commercial endeavour.

68. I also take into account that the co-offender Matzanke has a more significant criminal history than this offender, although it is not dramatically worse.

69. The sentence to be imposed on an offender must reflect the seriousness of the offence, as well as reflecting the need for both specific and general deterrence, as well as meeting the fundamental purpose of punishment: that is, the protection of society. I am satisfied, pursuant to s 5 of Crimes (Sentencing Procedure) Act, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. Indeed, the sentence to be imposed must be a significant sentence.

70. Accordingly, Mr Christie-Gilbert, would you please stand.

71. In respect of the sentence of supply methylamphetamine, being more than a commercial quantity, 218.5 grams, you are convicted. In sentencing you in respect of that offence I take into account the matters contained on the Form 1, being supply cannabis less than the commercial quantity, being 10.499 kilograms, and the further offence of possess restricted substance, being 32 tablets of Diazepam. You are sentenced to a term of imprisonment with a non-parole period of three years and six months. As you have already served a period of 126 days, that will be backdated from today, so that it commences on 12 June 2017. The balance of term is two years giving a total sentence of five years and six months. The total term will expire on 11 December 2022. You will be first eligible for parole on 11 December 2020. Whether you are released on that date will depend on your conduct while in custody and what the authorities make of your conduct while in custody.

72. In respect of the offence of drive vehicle under the influence of drugs, you are fined $300 and disqualified from driving for a period of six months.

Now, I think, Mr Crown that is all of the relevant matters.

BAILEY: I think, your Honour, there might be still the two back-up matters.

HIS HONOUR: The back-up charges of possess prohibited plant and possess prohibited drug need to be withdrawn and dismissed?

BAILEY: Indeed, your Honour, thank you.

HIS HONOUR: Yes, well I will do that. But I think that is everything now, isn’t it?

BAILEY: Yes, your Honour. For my friend’s benefit, I think what will happen is that the authorities will date the disqualification period from--

HIS HONOUR: When he’s released.

BAILEY: When he’s released, yes.

HIS HONOUR: Yes. But I don’t need to say that.

BAILEY: No, your Honour doesn’t, I’m just saying that for my friend’s benefit in case he didn’t know.

HIS HONOUR: Yes, the current legislation provides that if a term of imprisonment is imposed, any disqualification imposed in relation to that offence commences on release on parole -that is, the disqualification period.

Anything else, gentlemen? No errors?

BAILEY: No, your Honour.

HIS HONOUR: Apart from the ones Mr de Dassel will take elsewhere.

DE DASSEL: Thank you, your Honour.

HIS HONOUR: Sorry, I should have said.

73. In relation to the fact that the balance of term indicates that I have not applied the statutory relationship between the non-parole period and the balance of term, I have found special circumstances on the basis that this is the offender’s first time in custody, and also because if I am correct in suspecting that he continues to be affected by prohibited drugs, a more extended period of parole will assist him both in relation to that and also in relation to returning to lawful employment in the community.

I think that now covers everything.

Decision last updated: 25 February 2019