R v CJC

[2008] NSWDC 137

CITATION:	R v CJC [2008] NSWDC 137
JUDGMENT DATE:	1 February 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted.of both offences. Sentences of imprisonment imposed - sentences to be served in juvenile custody. (see paragraphs 70-71).
CATCHWORDS:	Criminal Law - Sentencing - Juvenile offender - on-going supply prohibited drug (ecstacy) - agreement to supply prohibited drug (ecstacy) - whether to sentence at law - sentences to be served in juvenile custody.
LEGISLATION CITED:	s. 11, s.18, s.19 Children (Criminal Proceedings) Act 1987
CASES CITED:	R v Rushby (1977) NSWLR 597 R v Cuthbert (1967) 2 NSWR 329 R v Hayes [1984] 1 NSWLR 740 Roper v Simmons (2005) 543 US 1 at p.15-16 R v WKR (1993) 32 NSWLR 447.
PARTIES:	Regina C J C
FILE NUMBER(S):	07/21/0222
COUNSEL:	T. Gartelmann
SOLICITORS:	Mr L Crepaldi

JUDGMENT

HIS HONOUR:
1. Section 11(1) of the Children’s (Criminal Proceedings) Act 1987 provides that the name of any person must not be published or broadcast in a way that connects the person with criminal proceedings if he was a child when the offence to which the proceedings relate was committed. In light of the way in which the legislature is drafted there is no need for me to make an order in respect of that, I simply draw it to the attention of those who may be reading this judgment.

2. C---- J-- C----, hereinafter CJC, is a juvenile to whom the provisions of s 11 of the Children (Criminal Proceedings) Act 1987 apply. During his 17th year CJC travelled the journey through the world of drugs, from being a relative neophyte to an accomplished drug trafficker; from experimenter to dealing to those he knew would on-supply to another. Today he is to be held accountable for his criminal conduct arising at the end of that journey.

3. CJC began the process of accountability when he pleaded guilty to a charge that between 11 January 2007 and 8 February 2007 at Castle Hill he supplied on at least three separate occasions ecstasy, a prohibited drug, for financial material reward. He is also to be dealt with for agreeing to supply, which is of course a supply of 500 ecstasy tablets that agreement being made between 11 January 2007 and 15 February 2007.

4. As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for these two offences before this Court committed by this offender harming this community or at least attempting to harm this community in the way he did. My initial task requires an assessment of the objective criminality of the offences before the Court. I will also need to have regard to matters personal to him, subjective matters.

5. The starting point for these assessments requires the sentencing judge to make findings of fact from the evidence before the Court relating to both the offence and to offences and the offender. The offender’s rehabilitation prospects will have to be assessed, even if looking through a glass darkly. Before any sentence can be made there are technical questions to be resolved relating to the appropriate jurisdiction to be exercised, deterrence, discounts, whether special circumstances are to be found, parity, totality, the length of any parole period or it’s equivalent and finally of course the ultimate length of the term of imprisonment or other penalty that is to be imposed. None of these can be commenced until the primary facts are to be determined. What weight needs to be given to all of these matters against the imperative that all sentencing should have as it’s primary focus the protection of the community will also need to be determined. See R v Cuthbert [1967] 2 NSWR 329, R v Rushby [1977] NSWLR 597 and R v Hayes [1984] 1 NSWLR 740.

6. The Court is faced with a threshold task of determining whether either or both of these offences is to be dealt with “at law”. That is dealt with as though the offender were an adult, or whether he should be dealt with on one or both charges pursuant to the provisions of the Children (Criminal Proceedings) Act 1987. Sentencing proceedings pursuant to that Act require the Court to recognise the minority of the offender’s age and to give greater focus on his juvenile status in the sentencing outcome.

Offending conduct - The indicted charge.
7. Four discreet episodes of supply are relied upon to satisfy the indictment. Each of these supplies of fifty ecstasy tablets was made to a co-offender, Daniel Chippendal. In each case Chipendal on­supplied to an undercover police operative who had negotiated the deal with him. Chippendal relied upon CJC as his supplier. On each occasion Chippendal creamed off money from the price paid by the undercover operative to him before passing on the balance to CJC. The first supply occurred on 11 January 2007, the next on 25 January 2007, the third on 1 February 2007 and the final supply on 8 February 2007.

8. The supplies by this offender to Chipendal required him to negotiate with his own supplier, drive to a pick up point, obtain the relevant drugs, return with the relevant tablets to Chippendal, deliver the product to Chippendal, wait until Chippendal returned with payment and then return to the original supplier and satisfy his debt to that supplier.

9. The negotiations with the undercover operative in respect of these sales comprising 200 tablets was done, as best I can tell, exclusively by Chippendal. The negotiations with the original supplier to CJC was done as best I can tell, exclusively by CJC.

10. As to the second offence it was an agreement made by CJC to supply 500 tablets. The agreement was made on 8 February shortly after the last of the deliveries relating to the ongoing supply charge. The undercover operative had already met CJC some weeks earlier. On that night he spoke to him about purchasing 500 tablets of ecstasy.

11. Ecstasy tablets come in different shapes, colours and carry different logos. The undercover operative nominated “hearts” as the particular ecstasy tablet he was requiring on a regular basis to deliver between Brisbane and Perth. The Brisbane/Perth route was a route he said he would be flying once he graduated as a Jetstar pilot.

12. CJC willingly accepted the challenge of supplying the 500 tablets to the undercover operative at $16 per tablet. However I note in conversation the undercover operative offered $17,000 for the 500 tablets. The first of the tablets was to be supplied on 15 February 2007. Ten days later they had still not been supplied.

13. I am satisfied CJC’s supplier was either unable or unwilling to supply that quantity. The offender gave evidence that when he agreed to supply he did not know for certain that he would be able to secure 500 tablets. Indeed the offender expressed some reservation on the night that he could secure 500 “hearts”. “I dunno” he said, “cause I haven’t been able to get them lately”.

14. This agreement to supply was charged as supply, the Crown relying upon the definition of supply in the Drugs Misuse and Trafficking Act 1985 . CJC was committed to this court for sentence upon that charge on 14 August 2007.

15. CJC told Andrea Schilder, his Juvenile Justice counsellor, he was first exposed to other young people using illicit drugs recreationally when he was aged seventeen. He was offered ecstasy tablets by a friend and decided to experiment. He rationalised his behaviour, at least to his counsellor, claiming he would avoid any risk associated with drink driving. That explanation ignores the reality that driving under the influence of a drug is both dangerous and illegal.

16. I note most of his consumption appears to have been at the Castle Hill Tavern where ale would have been available to quench any thirst caused by the MDMA. I know that most ecstasy tablet users usually have a bottle of water in one hand but it doesn’t seem to me that they are excluded from having a drink of alcohol.

17. In any event he enjoyed the experience of ecstasy. He became a regular consumer, consuming up to eight pills in a night. When loaded with ecstasy he had increased social confidence and felt like “the Man”. When his friends requested tablets he would supply them. The request for supplies increased in the second half of 2006. As he supplied girls he met became more interested in him. He enjoyed being asked to give tablets. Initially he did not seek to make a profit from the transfer of tablets but simply to cover his costs. Friends of friends approached, meantime he was also playing the poker machines. He started to make a profit initially a dollar per tablet, most of his dealings so far as I can glean, occurred at the Castle Hill Tavern or in circumstances where he was among his mates in partying mode. It was the drug dealing at the Tavern that initially attracted the police intervention.

18. Two facts flow from this journey from neophyte to trafficker. Firstly the insidious speed with which the drug culture can convert a healthy young athlete into a drug focused lawbreaker with all the changes in values occurring silently and without being recognised by the owner of those attitudes. Secondly, the offence that I am dealing with does not present as an isolated incident of abhorrent behaviour but rather as a major and dramatic peak in his unlawful behaviour that had been ongoing for some time.

Objective criminality.
19. From the facts as he finds them to be the sentencing judge is required to assess the objective criminality of the offence as an essential step in assessing the seriousness of the criminal behaviour of the offender. That is done by comparing objectively the criminality exhibited in the instant offences which criminality of offences of a similar kind. It is in this way that the objective seriousness of the criminality of these two offences can be evaluated. The objective criminality has an important impact upon the overall sentencing outcome.

20. The courts and legislature have made it quite clear that drug supplying is an unacceptable criminal activity. It should not be difficult to understand why drug supplying is a criminal activity. Contrary to the impression that this offender may well have received initially, it is not social but rather antisocial behaviour. Courts have long recognised that in assessing the objective seriousness of a drug offence it is necessary to have regard to the drugs potential for harm to others [Drug Law in New South Wales, 2 ^nd Edition. Zahra et al p349]. Harm to others if inflicted by someone else or contributed to by someone else is antisocial. Drug dealing is harmful to the community by it’s direct impact upon those who purchase drugs and it’s indirect impact upon the community at large. I have already tried to highlight the drug’s impact upon this offender. Insidious, silent, it changed what was a remarkable young man to a lawbreaker. It changed what was a man growing in confidence to one who ended up needing a crutch to be confident. It changed from one who was able to function at TAFE to one who had to change his drugs to function at TAFE.

21. Some if not most, drugs such as ecstasy are addictive. Some are also otherwise destructive, causing or contributing to mental health problems and/or aggression. Supplying drugs leads to, creates or sustains drug addicts. Drug addicts are human beings whose capacity to function and to feel human is smothered to a greater or lesser extent by addiction and the other effects of drugs. That is the real essence of the criminal harm done by suppliers of drugs, that is, in a greater or lesser way, it disenables human beings impacting upon their capacity to accomplish that which other human beings would normally want to accomplish.

22. Associated with drug addiction are other forms of crime such as armed robbery, breaking and entering. Associated with those crimes is the psychological damage and the loss of property done to victims. The supply of drugs results in a transference of wealth without any corresponding economic gain to the community. A fact I would have thought this offender would be well conscious of, given he was earning $450 weekly from his wages and yet transferring much of that to nothing at all except a drug experience and an inability to sleep after it was over.

23. The first supply comprised ecstasy from two sources weighing 10.19 grams, the second 9.8 grams, the third 9.2 grams and the final supply 11.1 grams. The purity of the drug supplied ranged from ten per cent to 50.5 per cent.

24. The total of the 3,4­methylenedioxymethylamphetamine admixtures supplied was 40.3 grams. To put that figure into some context the trafficable quantity is 0.75 grams, the indictable quantity is 1.25 grams and the commercial quantity is 125 grams. I picked that commercial quantity because it is at that level that the maximum penalty increases from 20 years to 25 years. The quantity that I am dealing with is about thirty times the indictable quantity and about one third of the commercial quantity. It is 39 grams more than the indictable quantity and 85 grams less than the commercial quantity. So stated it is in the lower third of the registry between indictable and commercial.

25. The quantity of drugs supplied is an important factor in assessing criminality. Clearly the greater quantity supplied the greater the criminality. The intention of the legislature was to harness this offence to discourage drug traffickers who only dealt in small quantities but dealt frequently. While that may have been the intent of Parliament, policing of the offence has seen undercover operatives persuading traffickers to sell at the top of their range rather than to pursue their normal dealing patterns. The undercover operative used such an approach on Daniel Chippendal, a nineteen year old youth. Chippenal’s keenness to deal was in turn persuasive to CJC who willingly supplied his friend in the quantity he sought.

26. The offence is one, which contemplates multiple supplies within a one month period. Three supplies are essential for the offence to be completed. However the potential number of supplies within a one month period could be far greater. Where more dealings than three supplies is done within the period that further dealing becomes an aggravating feature, in this case the supplies that are subject to the charge is confined to four. On that measure, that is the measure of frequency of criminal activity, this offence again is towards the lower end of the range.

27. CJC received on my calculations $3,800. He skimmed somewhere between $200 to $500 before satisfying his seller with the balance of that $3,800. In other words the sums made by him from this supply were not great. Nor was the quantity of money involved great so far as drug suppliers go. On that measure this offence falls again towards the lower range. Effectively, 200 discreet deals would have been available to market. Fortunately for this offender, and indeed Chippendal, the drugs were seized and never otherwise made the market.

28. The consumption pattern of ecstasy varies from user to user. Some users consume several tablets at the one function. Others are more cautious and may consume only one. Had the 200 tablets been made available for sale on the market they would have been used, on my calculations, by something less than fifty to sixty users. I note en passant that this offender used somewhere of a night between five and eight tablets as illustrating my point. On that measure, that is the measure of distribution one can imagine more street deals being distributed to users than what I might call fifty to sixty. True it is they were 200 tablets. Another measure of criminality is whether there is likely to be any recruiting of new drug users. There is nothing in the evidence before me suggesting that this distribution was targeted to new drug users

29. As to the second offence, it was an agreement made by a young person seeking to impress the undercover operative who presented himself as a trainee pilot finishing his exams; being awarded a major airline route; wanting to purchase 500 tablets weekly; was intending to party at an hotel with girls in the following week when finishing exams; and who would be willing to pay the asking price of $16, even though that price had apparently gone up a couple of bucks, and perhaps was suggesting a price of $34 per tab, or trying to give the impression that money was of little concern to him.

30. This is an offence where CJC’s lack of maturity, underdeveloped sense of responsibility and recklessness of judgment were activated. That can be seen from his expressed concern on the night and his acknowledgment in evidence that he wasn’t entirely sure he could complete the deal. It turns out that he was unable for some reason to complete the deal, probably because his supplier would not be in it. Juveniles are more vulnerable or susceptible to negative influence, outside pressures and peer pressure than adults. It is also an area where the offender’s underdeveloped strength of character was no match for the apparent enthusiasm displayed by the undercover operative and his apparent capacity to fund the claimed plan of distributing ecstasy into two of Australia’s State capital cities. The offender’s response was irresponsible and immature, qualities juveniles are susceptible to. See Roper v Simmons (2005) 543 US 1 at p15 -16 per Kennedy J.

31. It is obvious from the facts as I have reviewed them that no actual supply of the 500 or any part of the 500 tablets was accomplished. Nor, interestingly enough, do the facts, if I am correct, reveal any activity by this offender to pursue the agreement to supply.

32. HIS HONOUR: Am I right on that Mr Gartelmann?

33. GARTELMANN: Yes your Honour.

Jurisdiction to be applied.
34. The offences before the Court are offences carrying a maximum term of imprisonment of 20 years for the first and 15 for the second. As such neither qualifies as Serious Children Indictable Offences. S17 of the Children (Criminal Proceeding) Act provides all Serious Children’s Indictable Offences are to be dealt with according to law. Those offences include homicide, offences having maximum penalty of twenty-five years, some sexual assault offences and some firearm offences carrying a maximum penalty of twenty years imprisonment. No offences relating to drug trafficking qualify as Serious Children’s Indictable Offences. However s 18 of the Children (Criminal Proceedings) Act gives an option to the Court to deal with any indictable offence other than a Serious Children’s Indictable Offence according to law. The two offences before me are both indictable offences. The prosecution asks that they be dealt with according to law. In considering this issue I must have regard to the following matters:
· The seriousness of the indictable offence concerned;
· the nature of the indictable offence concerned;
· the age and maturity of the person at the time of the offence and at the time of sentence;
· the seriousness, nature and number of any prior offences committed by the person;
· such other matters as are relevant.

35. In discussing the seriousness of the indictable offence concerned I have already referred to their maximum penalties. In discussing the objective seriousness of the offences it must be clear that I regard the ongoing supply charge as the more serious charge. It is a charge relating to an offence by a user dealer dealing in a drug that is neither at the soft end nor at the high end of addiction, in quantities that were above what he would have normally have supplied, knowing they were to be on­supplied to a designated third person with whom he had not previously dealt and reckless as to whether that third person would on­supply to an ultimate user. While there was a potential for on­supplying to perhaps as many as sixty users, the illicit tablets were seized and no such supply was made. I would catalogue that offence as a serious offence. I would not describe it as extremely serious or grave. While courts may be anxious to ensure that persons sentenced understand the true impact of their criminal behaviour we should avoid rhetorical flushes and hyperbole.

36. As to the second offence had it been consummated as an actual supply it would have been serious. There was an aspect of unreality to the agreement as was demonstrated by the failure to deliver and the lack of confidence on the night. I have also described in some detail the nature of each offence and the potential of offences of supply to cause harm to the community.

Age and maturity of the offender.
37. This offender was born in March 1989 at the time of offending he was two months shy of his eighteenth birthday. He is now two months shy of his nineteenth birthday. He was attending TAFE, obtaining distinctions, participating in sport and recognised within his team as a valuable member and as a leader. He was pursuing an apprenticeship as a fitter and turner, that is, he was part of the adult workforce.

Prior offending

.

38. There are two offences on his antecedents, supply and possess prohibited drug. Both were charged a week before his arrest and at a time when he was committing the ongoing supply otherwise there are no criminal convictions.

39. However I have referred to his uncharged drug dealing among his friends and regard that as a factor to be taken into account when determining whether to deal with each of these matters as a matter of law. That is to say, recognising that these matters were not isolated incidents.

40. The law is,

“If the offence were a grave or serious one (albeit not one falling within the definition of serious indictable offence) and if the offender standing for sentence were of such an age and maturity that he did not deserve the benefit of special provisions in Part 3, Division 4 [Children (Criminal Proceedings) Act] when being punished for such a grave or serious offence, the judge would be more likely to determine that he should be dealt with according to law rather in accordance with Part 3, Division 4. Similarly if it were appropriate that the offender standing for sentence should serve a custodial sentence in a detention centre plus a period on parole under supervision thereafter, or if he were not an appropriate person to be detained in a detention centre or if for any other reason it were appropriate that he should serve a custodial sentence in prison rather than in a detention centre the judge would be obliged to determine that he be dealt with according to law rather than in accordance with Part 3, Division 4.” R v WKR (1993) 32 NSWLR 447.

41. In respect of the first offence I am satisfied the offence is a serious one. I am satisfied the offender should serve a custodial sentence in a detention centre followed by parole. I am satisfied his age and maturity were and are such that he does not deserve the benefits of the special provisions of the Children (Criminal Proceedings) Act . In respect of the second offence had it stood alone for reasons given when analysing the objective criminality I would have dealt with it pursuant to the relevant provisions of the Children (Criminal Proceedings) Act . However the offence is part of the continuing criminal conduct relating to the supply of ecstasy to the undercover operative. It makes sense to deal with it also according to law. The consequence of all that is that I will be dealing with both offences according to law.

Subjective matters

.

42. CJC is an eighteen year old youth with two younger siblings. His parents separated when he was two years old. His natural father lived in Queensland during much of the separation, although he is now reported to have visited his son in custody regularly. CJC intends to live with his mother upon release. There have been episodes of domestic violence by the mother’s subsequent partners towards her and on occasions towards CJC. In more recent times the second step­father was even more violent towards CJC than the first. When the relationship between the mother and the second partner ended, he continued to stalk her.

Education, skills and employment.

43. CJC’s education was disrupted during primary school as his family frequently relocated. The offender described himself as “a little terror” at primary school displaying aggressive and difficult behaviour. He is probably of above average intelligence. He completed Year 10 at Bathurst High School. His grades were above average. He gained an apprenticeship with Sell & Parker at Blacktown as a fitter and turner. He was in full time employment and at TAFE at the time of his arrest. As I noted earlier he was receiving distinctions in his TAFE studies. In custody he has completed some Year 11 studies and quite possibly now has completed them entirely. There is little doubt he has capacity to complete Year 12 and tertiary studies, it is a question whether he has the self-discipline. There are prospects of returning to his former employer upon his release. I understand there are also prospects of his remaining within his apprenticeship.

44. Prior to his arrest he played rugby league for Hawkesbury City Junior Rugby League. His talents as a footballer and leader were recognised by his club in 2006 when he received it’s highest award, the Life Membership Award, an award presented by the life members of the club. The offender would also appear to be an avid player of Oztag, a form of touch rugby league football.

General Health.

45. The offender presents as an athletic man who, as best one can tell, is in good general health.

Mental health issues

.

46. It is said the offender has no mental health issues. I wonder whether that is true. The high level of violence exhibited towards him and his mother during his childhood must have left it’s scars. His interest in drugs may well have been driven in part by undeclared issues he seeks to deal with silently. His response and dependence to his peers and apparent need for their approval suggests an insecurity arising from what he may perceive as an absence of approval within his home and from at least one of his parents and subsequent step-parents.

47. No one is likely to know of any mental health issues unless he has the courage to verbalise them. I can only act on the evidence before me that there are no mental health issues.

48. He was gambling I suspect more than he lets on. Problematic gambling is frequently a symptom of depression. He conceded he is fearful of his drug supplier, Ben, to whom he now owes $800. He is scared of the consequences of non-payment for himself and for his family. He is currently experiencing insomnia and stress, which he puts down to “his situation” whatever that may mean. As I say I am not entirely convinced that there are no mental health issues.

Substance use and abuse.

49. This offender claims to have begun his use of illicit substances by way of experimentation in mid-2006. As I sought to show, his use of ecstasy escalated insidiously and quickly. He concedes the psychological dependence I earlier referred to. Although he does not use those terms to describe his situation, he did, however, tell his juvenile counsellor he was unable to go with his friends without using drugs to keep him alert and interested. He has used cocaine to keep him alert. Cocaine is an addictive stimulant. He gave evidence he recognised drugs harmful effects and he self-referred to a drug and alcohol counsellor once in custody. He has already begun to reduce his consumption of drugs prior to going into custody.

Character and antecedents.

50. CJC presents as a young fit youth on the threshold of adulthood. Since leaving school he has displayed a strong work ethic, skills and leadership in sport, above average intelligence, commitment to TAFE studies and his apprenticeship.

51. On the other hand, he has shown appalling judgment, gross lack of self- discipline around drugs and possibly gambling. He has displayed a lack of character in his willingness to engage in conduct he knows to be illegal and a recklessness in the degree to which he was prepared to commit that illegal conduct by supplying ecstasy knowing it was going to be on-supplied to another.

52. Although the product of a disruptive childhood emotionally and educationally there were many avenues where he had succeeded. His Under 17 coach said this of him.

“I have always found CJC to be well mannered, honest, hard working and courteous. He took instructions well without conflict and never caused any disruption at training or games. He showed due respect to myself and all officials at all times.

CJC’s courage and determination allowed him to perform well above his weight. His commitment to his friends and team mates often pushed him past the sensible limits of physical endurance. Despite being injured in our grand final he returned to the field and scored the winning try. He was awarded the club trophy for his efforts.

Ironically I believe the same determination to impress his peers has led him into the trouble he now faces. It is totally incongruous and out of character to find CJC in this trouble.
I have coached boys and young men in rugby league for over twenty years and in that time I have seen some of the best and worst of today’s youth. CJC would rate as one of the best not simply because of what he does on the field but by the way he conducts himself and carries himself off the field.”

53. He appears to have been diligent whilst in custody using his time well in both educational and therapeutic programs. He comes to sentence as a person who, but for those offences of criminality associated with this period in his life, is otherwise a person of good character.

Attitude to the offence.

54. He indicates in evidence that he recognised his conduct was illegal but did not recognise the seriousness of the illegality. He claims the custodial consequence of his actual supplies took him by surprise. There may be some element of truth in his claim. He was fully engaged in what is sometimes described as the “party drug culture” where drugs such as ecstasy, amphetamines and cocaine are consumed in large quantities by significant numbers of youth. For very important health reasons drugs such as these are ultimately dangerous in their long- term effects both in terms of addiction and adverse mood altering sequelae.

55. This offender has shown some insight, he recognises drugs have potential for harm. He is assessed by Andrea Schilder as appearing genuinely motivated to cease his offending behaviour. He demonstrated she said a sincere desire to provide accurate and detailed information regarding his offending behaviour. He did not appear to be minimising information, which may have portrayed him in a negative light. I am satisfied he is contrite.

Plea status

.

56. Although charged with the ongoing supply on indictment he was committed for sentence, as I understood it on a number of supply matters including the count of agreeing to supply. I regard the plea as early entered. The Crown does not appear to dispute this. I intend to give twenty­five per cent discount. This discount includes a component for the utilitarian value of the plea and the level of contrition demonstrated. I should indicate the pleas are an acceptance by CJC of his need to be accountable for his criminal conduct.

Co-operation with police

.

57. Defence counsel sought to argue this offender was entitled to consideration because of his willingness to assist authorities and his attempts to do so. At the end of the day he has failed to provide useful information to police. There may be many reasons for this including a fear for himself and family from his supplier and others. I am not persuaded he told the police all he knows. He will not be penalised for that, nor will he gain a benefit for speaking to police and being little more than polite with them and telling them what they already knew.

Prospects of rehabilitation

.

58. There are several positive rehabilitation indicators - strong family support; plea of guilty; recognition of wrong doing; useful efforts to advance his rehabilitation in respect of drugs; good past work ethic; a participator in team sports and the strong support and social contact those activities provide back to him; reasonable post release plans; good health; reasonable intelligence.

59. There are some negative indicators that will need addressing: - number of stressors, fears of harm to himself and family from drug suppliers and outstanding debt; concern no doubt about his capacity to function in a community without the aid of drugs.

60. Andrea Schilder’s assessment,

“From the present assessment it can surmised that CJC struggles with issues of identity, self esteem and belonging which appear to be at the extreme end of the continuum of identity struggles typical in adolescents. His family history is likely to have contributed to these difficulties... CJC’s involvement with other young people who both sell and use illicit substances appears to be the most significant contributing factor to his offending behaviour.”

61. There is also his drug rehabilitation not yet tested in a community setting; a number of negative peers and party culture, which was an essential feature of his lifestyle prior to arrest. It is unclear how he will function in respect of those matters post release.

62. Level of gambling is unknown.

63. I am satisfied special circumstances should be found so that his rehabilitation can be advanced in a realistic community setting rather than in the hothouse of a custodial setting. When sentencing young offenders rehabilitation is entitled to greater weight, particularly is this so with juveniles. The Court can both express it’s view about the objective criminality and make appropriate allowance for the needs of the community based rehabilitation for young people by finding special circumstances and giving particular weight to that factor in the sentencing outcome.

Deterrence

.

64. Deterrence is usually given less weight in sentencing of juveniles. However, where, as in this case, the juvenile standing for sentence has mixed in a party culture where many other young men are using and supplying drugs a case for specific deterrence can be made out, that is a deterrence for like minded young men and women who but for the certain knowledge of imprisonment would be willing to deal in ecstasy and the like.

65. The Crown has sought partly cumulative sentences. I do not intend to make the sentences partly cumulative. I am dealing with episodes of criminality within a month period arising from contact between this offender and his associate on the one hand and the undercover operative seeking to deal with them for purposes of obtaining evidence and arresting them on the other.

66. Of course the sentence for the more serious offence, the ongoing supply, will reflect the totality of criminality. Consequently it will be inflated above what it otherwise would have been had it stood on it’s own.

Parity.

67. My attention has been drawn to two sentences imposed by Judge Marian of this court upon a co-offender, Daniel Chippendal. His Honour was there dealing with an adult offender, although the age difference is not great between the youths. CJC was not an adult and on that basis alone is entitled, even at law, to consideration of that fact. His Honour was dealing with two discreet supply charges and an ongoing supply charge. My understanding is that the two supply charges were consummated. His Honour was also dealing with a Form One matter, which is supply of three ecstasy tablets that could have been dealt with at the Local Court.

68. The ongoing supply reflected that offender’s participation in supplying the undercover operative the tablets supplied to him by this offender. For reasons I have explained I do not regard the ongoing supply as an “extremely serious” offence. I have categorised it as serious. His Honour’s assessment differs from mine. His Honour regarded the criminality that he was dealing with as falling in the mid-range of seriousness. My own evaluation of the criminality would place these offences or either of them below the mid range of seriousness. I have set out my reasons for reaching my assessment. Briefly, the quantity, the number of actual supplies, the age of the offenders, their absence of prior records, the selling of quantities above their normal supply level to police are all factors that persuade me to set a level of criminality at a point below the mid range. Nor is the offence a trivial offence. I have evaluated it as serious. It has a capacity to impact upon as many as sixty people.

69. My own assessment is that the starting point for the totality of criminality by this offender should be set at a point below the starting point fixed by his Honour for the adult offender. But for the plea of guilty I would have set an overall sentence for the ongoing supply of four years imprisonment. As a consequence of the plea that figure shall be reduced by twenty­five per cent so the overall sentence will be one of three years.

Formal Orders

70. C--- J-- C---, you are convicted of the offence that you between 11 January 2007 and 8 February 2007 at Castle Hill did on at least three separate occasions, I have found there to be four, supply a prohibited drug namely methylenedioxymethylamphetamine for financial material reward. In respect of that offence you are sentenced to a non-parole period of fifteen months imprisonment to commence on 15 February 2007 and to expire on 14 May 2008. I set a balance of term of twenty­one months to expire on 14 February 2010.

71. For the offence that you between 11 January 2007 and 15 February 2007 but I have found it to be on 8 February 2007 at Castle Hill did supply an amount of prohibited drug, to wit,3, 4 methylenedioxymethylamphetamine, you are convicted. That is the agreement to supply. In respect of that offence but for the plea of guilty I would have sentenced you to eighteen months imprisonment, I have deducted twenty­five per cent and rounded it out and I set a term of fourteen months imprisonment to date from 15 February 2007 and to expire on 14 April 2008. I order your release to parole on 14 May 2008. Pursuant to section 19 of the Children (Criminal Procedure) Act I order that the sentence be served at a detention centre.