R v Clemas

[2023] NSWDC 607

District Court

New South Wales

Medium Neutral Citation:

R v Clemas [2023] NSWDC 607

Hearing dates:

24 November 2023

Date of orders:

24 November 2023

Decision date:

24 November 2023

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Imprisonment sentence of 3 years with a non-parole period of 2 years

Catchwords:

CRIME — Drug offences — Supply prohibited drug — Commercial quantity

SENTENCING — Penalties — Imprisonment

SENTENCING — Relevant factors on sentence — Objective seriousness — Maintenance of innocence

SENTENCING — Sentencing procedure — After jury trial — Fact finding consistent with jury verdict

SENTENCING — Subjective considerations on sentence — Childhood deprivation — Drug addiction­ good prospects if he engages in treatment — Solid work history — Special circumstances

Legislation Cited:

Bail Act 2013(NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571

Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 52

Olbrich v The Queen [1999] HCA 54; (1999) 199 CLR 270

R v Shi [2004] NSWCCA 135.

Category:

Sentence

Parties:

Barry Clemas (the offender)
Director of Public Prosecutions (the Crown)

Representation:

Solicitors:
I Vizintin Legal Aid NSW (for the offender)
R Taylor for Public Prosecutions (NSW) (Crown)

File Number(s):

2022/15682

JUDGMENT – Ex tempore revised

Introduction

1. On 13 July 2023, after a short trial, a jury of 12 convicted Barry Clemas of Supplying a Commercial Quantity of the Prohibited Drug methylamphetamine: s 25.2 Drug Misuse and Trafficking Act 1985 (NSW). That offence carries a maximum penalty of 20 years’ imprisonment. There is a standard non-parole period of 10 years. The commercial quantity of the drug is 250 grams.

2. Clemas must be sentenced on the basis that he knowingly possessed and transported the drug knowing there was more than the commercial quantity of it. The critical issue at trial was whether Clemas had possession of a plastic bag containing 499.03 grams of methylamphetamine that was carried by taxi from Liverpool to Port Kembla and back. The taxi was intercepted by police as it returned from Port Kembla to Liverpool.

3. The jury, by its verdict, must have rejected the defence case that Clemas had gone to Port Kembla for an innocent purpose, not knowing drugs had been placed in the taxi’s boot. Given the way the prosecution case was presented, the jury must have accepted the evidence of the taxi driver when he said he saw Clemas at the car when the bag was placed in the boot by another person, and that Clemas took the bag from the car while he visited a house at Port Kembla before returning to the taxi with that bag.

4. The jury, by its verdict, must have accepted beyond reasonable doubt that Clemas knew that the bag in the taxi contained a drug. And, as he took the bag from the taxi to the house at Port Kembla and returned with it, he would have had some idea of its weight.

Fact finding

5. There were a number of unanswered issues raised by the prosecution case, not the least of which is why drugs were first transported to Port Kembla, and then, after a two-hour period returned to Liverpool.

6. The jury obviously did not accept Mr Clemas told the truth in his police interview. I am deeply sceptical that any civilian witness at the trial was entirely truthful. The taxi driver, in my opinion, was trying to distance from the parcel and the suspicious circumstances involved in transporting it. The person who took the parcel to the car was not of good character. The Port Kembla witness was also suspect of being involved in criminal activity.

7. My sentence must be consistent with the jury verdict. Matters in aggravation must be proved beyond reasonable doubt. Matters in mitigation must be proved on balance of probability. The evidence at trial enables only limited findings of fact to be made. I must sentence according to what is known and able to be accepted: Olbrich v The Queen [1999] HCA 54; (1999) 199 CLR 270.

8. Accordingly, I find that:

1. Clemas knowingly accompanied the bag from Liverpool to Port Kembla.

2. His motivation was not innocent.

3. The bag was placed in the boot by another. He told the jury it contained a drug.

4. Clemas was present when the bag containing the drug was placed in the boot.

5. During the course of the journey, he made some telephone calls, but I cannot make any positive findings as to what those calls were about and there is insufficient evidence before me to indicate that Clemas organised the transaction. It is more likely than not it was the man at the Liverpool address.

6. Clemas took the bag from the boot of the car and went with it to the address at Port Kembla.

7. At Port Kembla he had interaction with a man at that man’s home.

8. He then returned to the taxi with the bag containing the drugs intending to return to Liverpool.

9. The bag contained twice the commercial quantity of methlyamphetamine.

9. Clemas’ possession of the drugs for that period makes him liable at law for supplying the drug. He maintains his innocence. Accordingly, no reason for his involvement has been put forward. I can discern no reason from the evidence at trial, or presently before me, why he did what he did. In the absence of evidence, I do not speculate. I sentence based upon what is known to the Court.

10. The Crown accept that they cannot establish aggravating features, such as; planning or organised criminal activity or financial gain over and above those that are usual features of supply. Those usual features lead generally to a conclusion that some organisation was required.

11. No mitigating facts were put forward indicating that that the offender engaged in the supply for altruistic reasons. No reasonably benign reason for the supply could not be established on balance of probabilities, given Clemas denies possession of knowledge of the bag.

12. It seems obvious that some benefit or reward was expected by him, but one cannot speculate further about what that reward might be.

13. I sentence Clemas on the basis that he agreed to act as a courier of, on this one occasion, an illicit drug with an awareness that there was a significant or real chance that what was in the bag was at least the commercial quantity of an illicit drug.

Objective seriousness

14. In every such sentencing exercise the quantity of drugs is an important consideration, not the least because it fixes the penalty range. It is not the sole consideration that must be taken into account when assessing objective seriousness.

15. What makes this matter serious is the fact that the offender acted, in effect, as a courier to facilitate the movement of the drugs. I cannot find any transaction was completed but he was in possession of the drugs during; the journey from Liverpool to Port Kembla, the hours he spent at Port Kembla, and for the return journey until intercepted by police on Picton Road.

16. He chose to involve himself in the facilitation of the movement of illicit drugs. Without the involvement of people prepared to take risks involved in the possession of large quantities of drugs the criminal enterprises that do make profits from the sale of such drugs could not operate: R v Shi [2004] NSWCCA 135.

17. So serious was his involvement that it is accepted that only a custodial sentence could properly reflect the objective seriousness of the crime. There are, of course, many more serious offences of this type, but that does not mean it was not a serious offence.

18. The requirement that sentences, by their severity, must attempt to deter offenders and others is of particular importance. So much is expected by Clemas. People who are tempted to involve themselves in the supply of drugs at any level must ask themselves the simple question, “Is it worth it?” The answer to that question must be a resounding, “No.”

19. That said, many of the factors which can lead to very significant sentences for commercial supply offences are absent in this case. No transaction occurred. There is no evidence money was exchanged. There is no evidence of significant planning. There is no evidence that Clemas was aware of the exact quantity of the drugs. There is no evidence of the reward that he might have expected, though one must be presumed. Risk and such altruism are rare. No drugs were disseminated into the community. There is no evidence that Clemas had any other involvement other than that which was put before the Court. As is commonly the case, it appears he was being used by others.

Maximum penalty

20. Careful attention to the maximum penalty and the standard non-parole period is required, not just because Parliament has legislated for them, here, both provide sentencing measures to be balanced with all other relevant factors and content should be given to the standard non-parole period.

Criminal record

21. Clemas was in custody, bail refused for 7 days. He was on bail until the verdict. Although he did breach that bail, no action was taken. He has been in custody since the jury verdict, it being accepted that no other sentence other than custody could be imposed: s 22B Bail Act 2013 (NSW). I propose to date his sentence from 6 July 2023.

22. While on bail, he was charged with an offence involving drug premises and received a sentence.

23. His record reveals dishonesty offences in 2013 but before this matter his criminal record was minimal. The drug premises offence was committed after this matter. It is relevant, only to give some support to the proposition that he was an illicit drug user and that he had little respect for the law.

24. His record prior to the commission of this offence had nothing of this nature. While he is not entitled to leniency often given to first offenders, it is his first time in gaol and there is reason to suspect that if he engages in rehabilitation, he can resume normal community life.

Subjective case

25. I have the advantage of a report from a forensic psychologist, Dr Klammer. Given Clemas’ maintenance of his plea of not guilty and maintenance of his innocence, some of Dr Klammer’s opinions involved a degree of speculation. They were made on the basis that the jury verdict was correct.

26. The personal background described in the report is not controversial. It fits in with everything I know about Clemas.

27. Dr Klammer describes what she says, is Clemas’ “mixed developmental history”. It includes periods of parental abandonment, inconsistent supervision, and reports of sexual abuse.

28. Clemas was raised by his grandparents to a large extended family and according to Māori tradition. The family were poor with limited facilities available to them. They lived in a shack near a river. However, Clemas (and his brother) were able to go to boarding school when he was aged ten or eleven. After that, he maintained some contact with his parents.

29. Clemas completed his education. He trained as a PT teacher and has had various jobs in different fields. At the time of trial, he was working with his brother as a chef in their catering business. He is presently working as a chef at the gaol.

30. Dr Klammer concludes that in order to cope with his developmental disadvantages, Clemas appears to have focused on improving himself by gaining formal secondary and tertiary qualifications as a way to increase his vocational opportunities.

31. Despite this, Dr Klammer postulates that he has some ongoing instability “within the vocational space”. She reports his personal network is primarily prosocial, but she also notes a history of methylamphetamine use on a weekly or twice weekly basis. She notes that he reports he was unable to cease drug use, but he did not regard this as problematic. That was despite this jury’s finding, and the later drug premises conviction.

32. Dr Klammer postulates that the negative impacts on him; of a hard life, particularly as a child, and his substance abuse indicate limited insight into the illegal nature of drug use and the connection between his drug use and the offending.

33. She suggests that while he has used his childhood disadvantage to motivate himself and increase his level of resilience and coping and personal skills, those disadvantages, which included a sexual assault when a child, led to negative personality traits being developed over the years.

34. In her opinion, those traits caused him to focus on protecting himself as his first priority. As a consequence, it led to a level of disregard for the law. This disregard was modelled during childhood. It is reflected in the commission of the other offences on his record and the commission of this offence.

35. She puts forward a treatment program on page 7, par 32 of her report (Exhibit 1). I will have a copy of Dr Klammer’s report sent with the warrant to the gaol in the hope that the Corrections and the State Parole Authority can take have regard to it. If it is put into place, there are reasonable prospects that the offender, having served the minimum term necessary for this sentence, can resume a normal community life and, hopefully, a drug free community life.

36. I do not underestimate the evidence in relation to his background nor do I underestimate the impact on anyone of a child’s sexual assault, it must be taken into account. His moral culpability or his moral compass was formed by his background: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571. It helps explain the attitudes to offending and illicit drug use set out in Dr Klammer’s report.

37. It is clear that if his formative years had not been marred in the way set out in the material before me, he may not have had those attitudes and may not have engaged in offending and drug use. But those matters do not absolve him of responsibility, far from it, but they help explain why he was involved in drug use and acted as the jury found he did.

38. It also helps me understand why, as what he said to police made clear, his thinking was “scattered”. He was, in my assessment, barely coherent, particularly when it came to his attempts to explain what he was doing and why he was travelling to Port Kembla: see police interview, dated 19 January 2022, Trial Exhibit M.

39. No oral evidence was led. Clemas is entitled to maintain his innocence, but he does not get the benefit of remorse, or benefits often given to those who accept responsibility either before or after trial.

40. The fact that he is a drug user and has a stimulant use disorder, as suggested by Dr Klammer, is not put forward as an excuse, given there is the denial. But his drug use, its origin and how he may go about dealing with it are relevant. Drug use clouds people’s thinking, and it is clear that his prospects will be enhanced if he engages in illicit drug treatment programs.

Submissions

41. Mr Taylor, solicitor advocate for the Director of Public Prosecutions, and Mr Vizintin, solicitor advocate for the offender, provided written submissions to which both spoke. I have sought to do justice to submissions in relation to my fact-finding exercise. There were no significant differences between in terms of matters of principle.

42. Mr Vizintin properly submitted, in my view, that Clemas’s prior history was not relevant to my assessment of objective seriousness. He also took me to sentences by judges of this Court and sentencing statistics. While what was done in other courts is always welcome, because sentencing exercises should have some degree of consistency to them, every offender and every offence is individual: Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 52.

Synthesis

43. The material before me demonstrates that Clemas has the capacity to lead a normal law-abiding life and productive life in the community. But his persistent, and on the evidence before me, relatively low-level drug use, must be addressed. So too must his behavioural attitudes, going back to his childhood. They appear to have pushed askew what we would regard as an ordinary moral compass. There is a need for treatment and support, both in gaol and the community. I have some confidence that, with assistance, he will not reoffend. These matters provide a basis for finding special circumstances, increasing the period he should spend on parole.

44. Returning to what I said earlier, this was a serious offence. But it is by no means the most serious. Far from it. His involvement in this transaction, although I can only make limited findings of fact, warrant a custodial sentence of some length. He is not to be punished for his protestations of innocence, but I sentence according to the jury verdict. He does not get the benefits that an early plea of guilty could have achieved. At the same time, these facts do not call for a sentence anything like the maximum or the standard non-parole period. This crime is very much of a lower order than many sentenced by this Court.

Orders

45. In accordance with the jury verdict there will be a conviction. The non-parole period of the sentence is 2 years. The sentence will commence on 6 July 2023. You will be released to parole on 5 July 2025. The balance of the term of 1 year will commence on 6 July 2025 and expire on 5 July 2026. The total sentence is 3 years’ imprisonment.

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Decision last updated: 28 February 2024