R v CV

[2010] NSWDC 36

CITATION:	R v CV [2010] NSWDC 36
HEARING DATE(S):	21/01/2010
JUDGMENT DATE:	28 January 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Supply prohibited drug (2009/00047068): Convicted. Sentence to a fixed term of 1 year, 4 months and 15 days imprisonment to date from the 16th January 2009 and expire on the 30th May 2010. Supply prohibited drug (2009/00147423)- sequence 1: Convicted. Sentence to a fixed term of 1 year, 9 months and 15 days imprisonment to date from the 16th January 2009 and expire on the 30th October 2010. Supply prohibited drug (2009/00147423)- sequence 3: Convicted. Sentence to a non-parole period of 1 year 11 months and 15 days to date from the 16th July 2009 and expire o the 1st July 2011. Balance of term of 1 year and 8 months to expire on the 28th February 2013. I take into account the 7 matters on the Form 1. These matters include: 1.Deal proceeds of crime ($1200.00). Sequence 2 2.Deal proceeds of crime ($14,950.00). Sequence 4 3.Possess prohibited weapon (knuckle duster). Sequence 5 4.Possess prohibited drug (2.0g cocaine). Sequence 6 5.Possess prohibited drug (0.2g heroin). Sequence 7 6.Possess prescribed restricted substance (2 tabs alprazolam). Sequence 8 7.Possess prohibited drug (2.0g cannabis). Sequence 9 I order the offender’s release to parole on the 1st July 2011. Forfeiture Orders: Pursuant to s.18 (1) of the Confiscation of Proceeds of Crime Act 1989, cash in the sum of $1200.00 found at Camperdown in silver Ford motor vehicle registration WTL 636 (VIC) on 16th January 2009 be forfeited to the State. Pursuant to s.18 (1) of the Confiscation of Proceeds of Crime Act 1989, cash in the sum of $14,950.00 found in premises rented by the respondent at 216/1 Missenden Road Camperdown on 16th January 2009 be forfeited to the State. Destruction Orders : I order the destruction of the drugs. I recommend the offender to enter into a fulltime rehabilitation centre in New South Wales for the first 6 months of parole.
CATCHWORDS:	Criminal Law - Sentencing - Supply prohibited drugs (x3) - methamphetamines - commercial quantity - Form 1 - dealing with proceeds of crime - possess prohibited weapon (knuckleduster) - possess prohibited drugs - supplies constituted actual and deemed supplies - poly-drug dealing - financial gain outstrips cost of maintaining personal drug habit - standard - non-parol period - commercial supply fall below mid-range of seriousness - standard non-parole period does not apply - plea of guilty.
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Gladue v The Queen [1999] 1SCR 688 [80] R v Cuthbert (1967) 2 NSWR 329 R v Rushby [1977] NSWLR 597 R v Hayes [1984] 1 NSWLR 740 R v Way (2004) 60 NSWLR 168
PARTIES:	Regina CV
FILE NUMBER(S):	2009/11/1174
COUNSEL:	Defence: P Boulten SC
SOLICITORS:	Crown: Mr. N Borosh

JUDGMENT

Portions of these remarks on sentence have been excluded from this report of them for public policy reasons.

1. CV is another example of the ineffectiveness of a punitive deterrence focussed paradigm of sentencing whom dealing with drug addicts for drug offences. In 1998 he was first before the District Court for supply cocaine, amphetamine and ecstasy. Periodic detention was imposed. In 2002 he was sentenced to prison for two years for importing prohibited goods, there were two charges. In 2006 he was again before the courts for possessing prohibited drugs. In September of 2006 he was before the District Court for supplying prohibited drugs. On this occasion he was sentenced to a non-parole period of six months and a balance of term of eighteen months. He was released from full time custody to serve the balance of his sentence in the community on 18 March 2008. That was his third term of imprisonment and the second full time incarceration.

2. The case law is replete with appeal decisions establishing that punishment and deterrence, both general and personal, are among the prime, if not the prime purposes of sentencing. I, of course, am bound by those principles but research and also the number of Parole Board revocations demonstrate the ineffectiveness of the punitive/deterrence based paradigm as a means of reforming offenders and more importantly of protecting the community.

3. Half way through CV’s parole period, police had sufficient evidence of police concerns to satisfy a senior judicial officer to grant a warrant to intercept calls made from his mobile phone for an eighty-eight day period. As the calls proceeded, one after the other it became clear the police concerns were well founded. A large number of calls between CV and his associates established he had agreed to supply and, I am satisfied, did in fact supply prohibited drugs to a number of associates. One hundred of those calls have been transcribed and relied upon by the Crown.

4. Today CV is to be held accountable for his drug dealing between 22 December 2008 and 16 January 2009. The criminality of that offending conduct has been encapsulated in three charges. Firstly, supply 13.8 grams of methamphetamine on 16 January 2009, said to be a deemed supply charge. Secondly, supply 156.3 grams of methylamphetamine on 16 January 2009, a second deemed supply charge. Thirdly, supply a quantity of methamphetamine greater than the commercial quantity between 22 December 2008 and 16 January 2009. Form 1 offences: deal with the proceeds of crime, a second count of dealing with the proceeds of the crime, possess prohibited weapon (knuckle duster), possess prohibited drug (cocaine 2.0 grams), possess prohibited drug (heroin 0.2 grams), possess prescribed restricted substance (2 tabs of Alpaprazolam), possess prohibited drug (2.0 grams cannabis).

5. As sentencing Judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentences for these offences before this court, committed by this offender, harming this community, seeGladue v The Queen [1999] 1SCR 688 [80]. 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, that is the subjective matters. The starting point for such assessments requires the sentencing Judge to make findings of fact from the evidence before the Court relating to both the offence and the offender. The offender’s rehabilitation prospects will have to be assessed even if looking through a glass darkly.

6. Before any sentence can be made there are technical questions relating to deterrence, discounts, whether special circumstances are to be found, Form 1 matters and how to deal with them, whether any of these offences, as indeed one does, attracts a standard non-parole period and the length of the relevant parole periods and finally of course the ultimate length of the term of imprisonment. All of these matters have to be discussed and none can be commenced until the primary facts are determined. At the end of the day the real overview of sentencing is that it should have as its primary focus the protection of the community. How this sentence can assist in the protection of the community will 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.

Facts- The First Indicted Charge

7. On 16 January 2009 police overheard three conversations between one Peter Booth in Camperdown and CV. Police formed the view that Booth was meeting or seeking a meeting with CV in order to purchase drugs. In an unmarked car, police went to Church Street near the intersection of Parramatta Road, Camperdown. They knew Booth and saw him pacing on Church Street continually looking at his mobile phone, on occasion talking on his mobile phone for a short period. Eventually a vehicle driven by CV arrived. Booth got into the vehicle. Police watched as CV drove the vehicle around the block, as best I can tell. They formed a view that drug activity was taking place and stopped it on Marsden Road.

8. Police approached passenger and driver’s side doors, identified themselves; Booth and CV were removed. Police told CV and Booth they believed a drug related transaction had occurred and that they would be searching for drugs. CV said, “There are no drugs in there. We were just looking for a place to have a drink”. When searched two mobile phones were located on Booth. While police searched Booth and CV, Booth’s phones were ringing continually. CV attempted to remove a SIM from his car just before being searched. Both males were then strip searched in the rear of the caged police vehicle. The motor vehicle, driven by CV was searched. $1200 in cash contained in a white envelope was in the centre console. It had the name CV written on it. CV denied any knowledge of that money. Looking at the envelope he said, “That looks like my girlfriend’s writing.” That is one of the Form 1 offences.

9. Police checked under the vehicle for further items. They saw a small plastic bag underneath the vehicle directly under the driver’s side door. It contained half an ounce of crystalline substance. The bag was seized and labelled. Both men were cautioned and at that point placed under arrest. When questioned at the scene CV said, “It must have been there already, I’ve never seen it before.” Subsequent analysis of the contents of that bag revealed it to contain 13.8 grams of crystalline methamphetamine.

10. Two months later on 12 March 2009 CV provided another version of events in relation to the supply of methamphetamine to Booth. CV said he had received a call from Booth on 16 January asking if he, CV, could sell Booth a half an ounce of ice amphetamine. He said that at about 7pm he weighed out half an ounce and put it in a small resealable bag, called Booth from his phone and they arranged to meet on the corner near the kebab shop. He went down to his vehicle - I should note that the vehicle was a Thrifty hire car - drove out the security gates and went to where he picked up Booth. It was CV’s account that he had handed the drugs over to Booth and asked whether three and a half thousand dollars in payment had come in for the drugs. CV’s account is that Booth pulled money from his sock and said he only had $2700 with him and would pay CV the outstanding $800. CV’s reply was, “You’ve put me in a bad position. I owe money. Make sure you give it to me tonight.” CV was told that he would be paid the outstanding money that evening.

11. It is CV’s account that he saw Booth place the bag containing the drugs on the centre console armrest. CV looked in the rear vision mirror and saw the police. At that point the drugs were still on the centre console. Booth was holding the money. CV said to Booth, “Grab the shit.” Booth grabbed the bag of drugs. CV did not see what Booth did with the drugs or money as the arrest took place. That, as I say, constitutes the Crown case on the first charge in the indictment.

12. Those facts have been agreed between the parties. Notwithstanding my concern that the facts so put would appear to be somewhat favourable to the offender, given the Crown does not seek to challenge the circumstances relating to the attempted disposal of the amphetamine at the time of arrest I shall not intrude into the agreed facts as a factual basis for sentencing.

The Second Indicted Charge

13. Following the arrest the police obtained a warrant to search CV’s residential premises. There they found 156.3 grams of crystalline methamphetamine. The basis for the supply are the deeming provisions found in the Drug Misuse and Trafficking Act, that is an offender is deemed to have the drugs in his possession for the purposes of supply. If I understand the evidence correctly it was contained in three plastic bags, one of 28 grams, one of 14 grams and a balance of about 115 grams in a third bag. Twenty-four and 14 gram lots are a well recognised unit of sale of drugs, the former being an ounce and the latter a half ounce respectively. The remainder of 115 grams constitutes about five and a half ounces approximately.

14. During the search further items of interest were found so far as is relevant to the Form 1 offences. The following items were found,

· $1495 in various denominations.

· Small resealable bags each containing approximately 0.2 grams of white powder believed to be cocaine.

· One set of black knuckle dusters.

· One small resealable bag containing vegetable matter believed to be cannabis.

Third Charge

15. The parties agree that between 22 December and 16 January 2009 the accused in some nine transactions supplied a quantity of methamphetamine greater than the commercial quantity. A divergence occurs as to the actual quantity of methyl amphetamine supplied. The defence argue that the Crown cannot prove beyond reasonable doubt the 644 grams it alleges. Sometimes the administration of criminal law recognises that what the evidence proves does not reflect the reality of what occurred, but where punishment, particularly incarceration, follows from what the evidence proves the highest standard of proof known to the law should apply. I have already made reference to the methamphetamine found during the execution of the search warrant, in particular one bag of 28 grams and another of 14 grams. I have noted those are well recognised units of sale.

16. Determining the quantity of drugs sold on the evidence before the Court requires interpretation of coded or obscured phone conversation. The Court also has the advantage of the expert evidence of Detective Adam Pierce who has had more than twenty years operational experience and more than twelve years in drug investigation work. Both parties have recognised his expertise. For my part I have had sufficient experience to know that frequently when buyers want a half ounce they say I want a half, nonetheless I have been guided by the evidence in this case. The first of the supplies is to Harken on 23 December 2008. He spoke of having $9,000. Sergeant Pierce’s evidence establishes the price for methamphetamine ranges between $6,000 and $10,000. There is no issue that the drug supplied was methamphetamine in all of these deals. I am satisfied beyond reasonable doubt the quantity supplied on this occasion was an ounce. See also Sergeant Pierce’s evidence, para 24 in relation the to supply there were six phone conversations. My memory is from the other material that I read that there is a statement standing in the accused’s name to the effect that that was an ounce, I may stand corrected on that.

17. The second supply is also to Ozer(?)Harken the following day. The relevant conversation is that Harken says “I want you to bring them two” and reaffirms “I’ll have another two but one hour” and in the second call “I got ten grand I...I want to give you...but I need another two.” In the opinion of Sergeant Pierce this conversation is about the purchase of two ounces for $10,000 or $10,000 each (para 30 Sergeant Pierce’s statement). It is, however, unclear which. On my reading of the phone taps Harken only has $10,000. He had paid $9,000 the day before for one ounce. While I accept prices may fluctuate seriously and even quickly, I doubt that the price would fall to four and a half thousand per ounce without some adverse comment about the quality of the drug. The two packets coupled with the ten thousand may be a reference to two 14 gram packets. I am satisfied beyond reasonable doubt the quantity supplied was at least 28 grams.

18. The third deal is on 24 December, Christmas Eve, at about 2.48. A man named Brett telephones. When asked what he was after Brett replies two. The offender, it is likely, continues on with the question “What are you after? The same?” The reply, “Two big, no two.” Again no price is mentioned. The word “no” in what Brett says I have interpreted as meaning not the same as last time. It is likely he wanted two big, ie, two ounces but that likelihood depends upon what the word “no” relates to. In all of the circumstances I accept there is a reasonable possibility the “no” is a correction to the adjective “big”. I am satisfied beyond reasonable doubt the quantity supplied is at least 28 grams.

19. The fourth deal relied on, the Crown says, was a delivery of four ounces to Ozer on 21 December 2006. Sergeant Pierce notes the key to the conversation is a payment of $22,000 for the lot and Ozer says, “Can you bring four?” Not to be overlooked is a reference that he will pay off all his debts. Sergeant Pierce does not postulate any defined quantity. I am satisfied the quantity supplied is not less than 56 grams.

20. The fifth deal is to Harken which is Ozer I think. The information relied upon by the Crown is contained in some phone taps made on Christmas Day at 14.48. Harken asks for four for a friend and four for himself. The offender replies, “I’ll say forty. I’ll try to be less than forty minutes.” I have considered whether that reply constitutes a price fixing at $40,000 but I cannot be satisfied beyond reasonable doubt it does. I am satisfied beyond reasonable doubt that not less than five half ounces were supplied, that is 70 grams.

21. The sixth deal relied upon is with Ozer. He wants “four, five make sure it's like the first batch.” Again the sum is not specified. Sergeant Pierce is able to set a quantity. I am satisfied it is not less than four times 14 grams, that is 56 grams.

22. The seventh deal is with Ozer on 29 December 2008. It seems agreed that Ozer has obtained two ounces of ketamine for $4,000 which he regards as a good price for it. The offender is asked to “bring one” and Harken agrees to pay the difference. On the Crown case the “one” refers to an ounce, Sergeant Pierce regards this conversation as a deliberate contradiction and is consistent with a request by Harken to purchase “one” and on-sell this product. I note that at the time of his arrest the search did not turn up any ketamine which may support Sergeant Pierce’s interpretation. The starting figure of four grand appears below the range of going prices for an ounce of methamphetamine. I am unable to determine what sum is embraced in the term “the balance”. In all the circumstances I am satisfied the quantity of methamphetamine supplied was not less than 28 grams.

23. The eighth deal is with Ozer later the same day. At the 16.52 call the offender says, “leaving now”. It would appear he made a delivery proximate to 16.52. Almost two hours later there is a second call at 18.32. CV asks for half an hour before making the delivery presumably to organise the product. He is asked to bring “my one”, no price is discussed. Sergeant Pierce’s notes “reference to something possibly pre-arranged by two persons in the conversation”. I do not rule out that a pre-arrangement could have been made at the time of the earlier delivery of the quantity of methamphetamine earlier that afternoon. In the absence of anything more I am satisfied the quantity of meth supplied was not less than 28 grams.

24. The ninth supply relied upon occurs on 7 January 2009. At 13.51 a Peter Bianchi phoned asking for “three tickets”. As a consequence of this call police observed Bianchi arrive at the offender’s residence, shortly leave, return to his vehicle and drive away. Shortly after he was stopped, Bianchi’s vehicle was searched and approximately three ounces of crystal methamphetamine was found. The offender in June 2009 admitted to supply 3 ounces of methamphetamine for $21,000, that is $7,000 per ounce making a total of 84 ounces on that occasion. The nine deals relied upon by the Crown established beyond reasonable doubt the offender supplied no less than 400 grams of methamphetamine.

25. From the telephone intercepts before me I am satisfied during this twenty-five day period the offender made other substantial supplies of prohibited drugs, including to a man who spoke of two step and five step ladders, another of three bottles and yet another “like the same but twice” and another “just the normal”. I understand from admissions made that the three bottles are admitted as three 350 ml bottles of GHB. Further I am satisfied that these twenty-five days of transactions is a snapshot of a more extended period of dealing undertaken by CV sometime after he was released to parole. Of the twenty-five days phone records before me that have been tendered show he was active on nineteen of those twenty-five days.

26. While there is little doubt the offender was addicted to drugs the level of his distribution and financial gains from dealing far outstripped his own substantial expenditure. I am satisfied his capacity to rent inner city accommodation, furnish his apartment, have use of a rented car were made possible from the proceeds of his drug dealing. I am satisfied his gross turnover from the sale of drugs during that twenty-five day period exceeded $100,000. In reaching that calculation I have applied a price of $7,000 per 28 grams only to the quantity relied upon to prove the second count in the indictment.

Objective Criminality

27. From the facts as he finds them to be a sentencing judge is required to assess the objective criminality of the offences 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 case which criminality of drug supplies of a similar kind. It is in this way that the objective seriousness of the criminality of these three offences is evaluated. Objective criminality obviously has the most important impact upon the overall sentencing outcome.

28. Courts and legislature have made it clear that drug supplying is an unacceptable criminal activity. It is not difficult to understand why drug supplying is a criminal activity. It is an attack upon the public health of citizens of the state. Contrary to the impression offenders may well entertain initially, it is not a social but rather antisocial behaviour because it undermines the public health of good men and women in our state. Courts have long recognised that in assessing objective seriousness of a drug offence it is necessary to have regard to the drugs potential for harm. Harm to others when inflicted by someone or contributed to by someone is antisocial conduct of a high order. Distributing half ounces and ounces of methamphetamine, contributing to addiction of drug addicts is antisocial conduct, in my view, of a huge dimension. For some, if not for most, drugs such as those I am concerned with, methamphetamine, can be addictive. It is otherwise destructive, causing or contributing to mental health problems, aggression. It creates or sustains drug addicts. A drug addict is a human being whose capacity to function and feel human is smothered to a greater or lesser extent by the level of his addiction. The real essence of the criminal harm of drug suppliers is that in a greater or a lesser way they are contributing to the disenabling of other human beings. As I said, it undermines public health.

29. Associated with it are other forms of crime such as robbery, break enters and steals, that is losses to working men and women, of property usually purchased as a result of their own efforts in the community. That is their own working efforts. Associated with those robberies is trauma, emotional and psychological damage to victims, caused by violence and intrusion to others. The drug suppliers contribute to all that. True it is they are not directly there, but their fingerprints are all over the people who are.

30. The spending of money on drugs by addicts without any corresponding productivity by drug dealers amounts to monumental transference of wealth. Funny thing about this day and age as we are interested in what happens economically in our community and the transference of money in huge sums, billions of dollars a year, without productive reproduction is sapping the lifeblood out of the economic community. On any view then drug trafficking is antisocial conduct of a high order.

31. The criminality of each of these offences is centred against the background of ongoing drug dealing, principally, but not exclusively, in methylamphetamine in quantities that are for the on-supply by purchasers, that is criminal associates. Negotiations are conducted in terms to avoid detection - or in the event of detection full accountability for the criminality; and indeed even this accused’s own transport from home to delivery site is conducted in circumstances that make it a little bit more difficult for it to be detected who owns the vehicle he is driving in because it is hired. This case is a classic example of that. He gets the benefit of aburden of proof beyond reasonable doubt. That is appropriate and proper that he should, but it is only because I cannot understand the language in which he is talking.

32. Steps and care are taken in delivery to avoid detection. The two deemed supply charges occur in circumstances where police have disrupted an attempt to supply. In the search of CV’s residence quantities of methamphetamine destined for supply in the very near future are found. The offender’s attitude on arrest was not one of contrition but rather one of seeking to avoid his own guilt.

33. The potential for the harm to the health of others was serious and ongoing given the quantities being disturbed from his store. He is clearly at least two steps away from end users putting him relatively high but certainly by no means at the highest on the distribution tree. He was of course purchasing his product from one or more persons higher up. That distribution was part of his system of minimising his liability if caught. Had he had large quantities of drug on his premises obviously his criminality would have been greater. His gross turnover at the time of arrest was in excess of $100,000 per twenty-five days. Even assuming his business did not grow and the income stream was constant for a year his annual gross would have been in the vicinity of $1.5 million per annum. Of course the criminality I am dealing with is only for a twenty-five day period.

34. In assessing the objective criminality of the third count one needs to bear in mind,

· It was part of an ongoing criminal activity.

· Supplies to those who will on supply.

· Supply to those who were willingly dealing in drugs, that is there is no attempt to force drugs on anybody other than those who want them.

· The quantity supplied was not less than 400 grams.

· The supply was for financial gain, ie, a sum not less $100,000.

· The supplier was addicted to the product he was supplying.

· There was a degree of professionalism about the supply business including the use of codes, variable pickup points, the use of hire cars and other practices including keeping reduced amounts of stock on premises.

35. The large commercial quantity begins at a 1,000 grams. The commercial quantity begins at 250 grams. 400 grams is well within the commercial range but still below the halfway point. The offender is two suppliers removed from the end user. He is purchasing his stock albeit in larger amounts than he is selling but apparently not in great bulk. He was addicted to the product I have no doubt. His addiction mitigated in his own mind the evilness of the trade he was involved in and for reasons related to his own addiction he refused to acknowledge the potential for health harm related to his actions.

36. I would put his objective criminality in respect of the third offence as approaching and closely approaching the mid-range of seriousness. In other words the criminality does not quite reach on its own objective facts the mid- range of seriousness.

37. The first two charges on the indictment are serious offences. In assessing their seriousness I note in each case the prohibited drug did not make its way into the community. In respect of the first charge the transaction has been all but completed. On the Crown case delivery of the goods had not been completed so that the possession of the drugs remained with the offender, although that is not quite how his statement would put it. In respect of the second charge the Crown case is those drugs were in his possession for the purpose of supply. It was only the intervention of police in each case that prevented the drugs from reaching the community. These offences are so serious that imprisonment, the heaviest form of punishment known to the law, are called for in each case.

Subjective Criminality

38. Counsel for the offender sought to obtain second hearsay confirmation of histories given to Dr Roberts, a psychiatrist, and to Christine Bridekirk, author of the Department of Corrective Services Alcohol and Other Drugs report. I should note that Dr Roberts is a psychiatrist retained by the defence. That approach was not challenged by the Crown, thus the evidence is before me with no objection. I should indicate that I am extremely careful about the weight I will give to second-hand hearsay confirmation of any self serving statements that appear in either history. Frankly, the proposition that a non-drug using partner would have full knowledge of her drug using partner’s conduct including his conduct overseas is stretching the elasticity of history evidence too, too far.

Family Background and Relationships

39. CV was born in Chile, emigrated in about 1972/73 with his parents and older brother when he, CV, was two. He is presently approaching his fortieth birthday. His father was prone to heavy drinking and parties. His parents were hardworking, both holding two jobs each. It seems CV was a latch key child. There was constant argument with verbal and physical abuse in the home. That his parents spoke in broken English and their level of abuse at home were factors he claims making him feel self conscious in what he regarded as an upper class Anglo-Saxon environment.

40. His partner BM has known him for more than ten years. The two have been in what I would call an off and on relationship since 2005. He has a son , born in the first half of 2008. BM experienced post natal depression and attributed the tensions in the marriage to that cause. With heavy drug using and drug dealing partner, to single out post natal depression as the primary cause of tension within the relationship seems to me charitable beyond belief, to say the least.

Education, Employment Skills

41. CV attended catholic schools where he claims there was physical abuse at the hands of priests and sexual abuse towards classmates. He left school having completed the Higher School Certificate. His first employment was at a real estate agency. He obtained his real estate licence and auctioneer’s licence, he completed a year at TAFE College although the course attended has not been specified. I have suspected that it related to the real estate and auctioneer licences. These are careers that his criminal convictions deny him access to in future. That is not extra-curial punishment of this offence because of his prior offending, these career paths seem to me to have already been blocked out.

42. He has owned a petrol station. He has IT skills and worked in that field. He owned a pizza shop prior to his last conviction. That was sold by BM on his behalf not only because he was in custody but her pregnancy meant she was unable to continue working in the shop. He is not without work skills, experience or work ethic. Indeed his work ethic is also apparent in his total commitment to drug supply during that twenty-five day period.

General Health

43. He smokes twenty-five cigarettes daily. He appears overweight and unfit. He complained to Dr Roberts of experiencing pins and needles in arms and legs when he lay down. He has asthma which is controlled by Ventolin. He says he had recovered from Hepatitis B in 2004. Otherwise there do not appear to be any major health problems that should impact upon his rehabilitation.

Mental Health Issues

44. When interviewed in prison by Dr Roberts, CV complained of suffering “from depression secondary to the situation he found himself in”. I doubt that that is an actual quote of CV but suspect that it is an interpretation by Dr Roberts. He described himself as “being frustrated not only with the position in which he has put himself but the effect of his behaviour upon his family.” Dr Roberts diagnosed a substance abuse - substance dependency disorder. Dr Roberts also canvassed the likelihood of a personality disorder diagnosis. Although he expanded upon the symptoms and cause of such diagnosis it is to be noted he does not make the diagnosis. Dr Roberts’ opinion was that the accused’s presentation at the consultation was totally explicable on the basis of substance abuse.

45. Dr Roberts recommended a treatment plan where long term management of CV’s substance abuse - substance dependency disorder should occur following release from custody. That recommendation was made against the background that the doctor had been told CV had not used drugs in custody. Dr Roberts also recommended that a drug rehabilitation program be a portion of any sentence the Court considers appropriate. I note the Court cannot order anyone into a drug rehabilitation program as part of a sentence or otherwise. He recommended he be under a treating and experienced, in the field psychiatrist on a regular basis for two years after release.

Drug and Alcohol Abuse

46. Much of Dr Roberts’ opinion rests upon the history given to him by the offender, two court attendance notices and the offender’s presentation.

47. There is also before me Christine Bridekirk’s Alcohol or Other Drug report earlier referred to. It documents a history of alcohol consumption at fourteen, monthly binge drinking with friends, a continuation of alcohol consumption in varying degrees throughout his adult life. Cannabis:- He first consumed cannabis aged twenty. He admits to smoking cannabis twice weekly when in the community. Amphetamines:- He says he was introduced to these at the age of twenty-five. His initial use was described as recreational. Later he relied upon amphetamines to get through heavy workloads and stressful situations. At twenty-seven he progressed from snorting and drinking to intravenous consumption on a daily basis. His abstinence he says was limited mainly by incarceration. The switch to methamphetamine was made in 2005 because of its increased strength.

48. Exhibit 4 constitutes two photos of the offender apparently taken at different times prior to his incarceration in 2007. In both he is shirtless and severe track marks from injection abuse of the arm are visible on each arm.

49. Christine Bridekirk opines CV’s criminal behaviour is strongly linked to his drug use. I am prepared to accept that may well be so. He claims to have been using 1 gram of methylamphetamine daily. He claims he was using his supply to fund and supply his own drug use. I have already made the point his supply of drugs to others was far in excess of what he needed to fund his own drug use. At 1 gram per day his drug use would cost him $7,000 for a twenty-eight day period on the figures I have used. That is 28 grams or an ounce for $7,000. During the twenty-five day period his gross turnover was in excess of $100,000, that is more than ten times what he needed on my figures for a twenty-eight period.

Character and Criminal History

50. I have reviewed most of his criminal history at the outset of these remarks. What becomes obvious is that any claim for leniency on that account would be hopeless. His criminality has long been associated with drugs, drug use and drug supply. Further at the time of this offence the parole he breached was parole in respect of a drug related crime.

51. I have noted his strong work ethic. Since March 2009 he has come to a position where he seeks to assist authorities associated with the administration of criminal justice. I shall return to this momentarily.

Breach of Parole

52. This offending conduct constitutes a serious breach and a continuing breach of his parole. His breach of parole by any criminal act and even more so by a continuing criminal acts constitutes an aggravation of the criminality of the offences I am dealing with.

Attitude to Offence

53. I have already noted he attempted to exculpate himself from the deemed supply charge and the circumstances of his arrest on 16/01/09 as demonstrating an absence of contrition at that time. S 21(3) requires an offender to provide evidence that he has accepted responsibility for his actions and acknowledges any injury, loss or damage caused by his actions before remorse can be taken into account. I note in all other instances where the use of the phrase “the offender” it is a direct and personal connection between him or her and the verb following, eg the offender was provoked, the offender was acting under duress, the offender was a person of good character. There is no reason to make an exception when the onus is put upon the offender to provide acceptance of responsibility for his act. CV certainly has not entered the witness box nor is there any written statement or letter from him. In those circumstances there is no evidence that he accepts responsibility or if it be known to him that his actions have caused injury, loss or damage.

54. These appear to be pre-conditions for having remorse shown by him considered as a mitigating factor pursuant to s 21A(3)(i). There is evidence from BM that the accused rings her six times daily and tells her he will never do anything like this again. There is also evidence from four character witnesses that he has expressed regret to them. Given each of these references makes reference to regret and remorse I do not rule out some orchestration, not necessarily by the offender himself or the reporting of expressions “remorse and regret”. If those expressions stood on their own I would given little weight to them but there is also his co-operation with persons involved in the administration of justice that would be consistent with him really having regrets.

55. The cases establish that common law principles of sentencing work in tandem with the provisions of s 21A, see Way’s (R v Way (2004) 60 NSWLR 168) case. Evidence of remorse and regret is available to mitigate pursuant to the common law. I make it clear I have given some weight in sentencing outcome of his expressions of regret and remorse.....

His honour then went on to deal with other matters

Setting the Sentence- Deterrence

61. The law requires that general and personal deterrence be given proper weight in the sentencing determination. I record that I have done so. The maximum penalty for supply an indictable quantity of prohibited drugs is fifteen years imprisonment. The maximum penalty for supply a quantity of prohibited drug greater than the commercial quantity is twenty years imprisonment and I have mentioned the standard non-parole period of ten years.

Standard Non-Parole Period Does Not Apply

62. I have determined the objective criminality of the commercial quantity charge falls below the mid range of objective seriousness and explained my reasons for so doing earlier. In those circumstances I would not be required to apply the standard non-parole period. I have noted factors of aggravation as I dealt with my assessment of the objective seriousness. I note two important factors found in s 21A(3) that would also take this matter outside the requirement that a standard non-parole period apply, including the plea of guilty.... So to hold does not constitute double counting of the plea of guilty....

Form 1 Matters

63. The Form 1 matters will drive the sentence upwards in respect of the sentence imposed on the commercial supply charge. I have assumed all of the matters on the Form 1 could have been dealt with summarily. Their impact upon the overall sentence will reflect a level of seriousness that might be reflected in totality of summary offending flowing from those offences.

Some Cumulation of the Sentences

64. While all offending conduct was brought to a head on 16 January 2009 I am of the view the sentences for the first two matters should be partly cumulative to the commercial supply. Initially I was minded to make the cumulation twelve months. I have reduced that to six months. My logic is that I intended to reduce the overall sentences by fifty-five percent for reasons earlier given. To accumulate the sentence as initially intended an extra twelve months would deprive the offender of the full value of the discount.

Applying the Discounts

65. In respect of the first offence I would have set a fixed term of three years discounted by fifty-five percent and rounded up that constitutes a reduction of nineteen months and fifteen days leaving a sentence of sixteen months and fifteen days or one year, four months, fifteen days.

66. In respect of the second offence I would have set an overall sentence of four years imprisonment. I would have discounted that by fifty-five percent and rounded up the reduction amounts to twenty-six months, fifteen days leaving a sentence of twenty-one months fifteen days or one year, nine months, fifteen days.

67. In respect of the third offence I would have set an overall sentence of eight years discounted by fifty-five percent and rounded up, that constitutes a reduction of fifty-two months and fifteen days leaving forty-three months and fifteen days. Put in English you can understand, three years, seven months, fifteen days.

68. The first two sentences will be fixed terms.

Special Circumstances

69. I have decided to find special circumstances.... I have been asked to regard him as serving a sentence on protection. Currently he is not doing so. I am aware that there may be an explanation for that but I have no evidence that the explanation hinted at is in fact true. In my own experience that is true and will remain true for the whole of the sentence....

70. The finding of special circumstances acknowledges .... the arduousness and additional stress of prison as a consequence of giving assistance. Again I note this is no double counting. The discount earlier referred to was given because of the benefit to the administration of justice. The finding of special circumstances arises by recognition of the consequence of assistance upon the offender.

Sentencing

71. CV I convict you of the offence that you on 16 January 2009 at Camperdown supplied a prohibited drug, to wit, crystalline methamphetamine. For that offence you are convicted to a fixed term of one year, four months, fifteen days commencing on 16 January 2009 and expiring on 30 May this year.

72. Likewise I convict you of an offence in the very same terms being the 150 plus grams of methamphetamine in your home. I sentence you to a term of imprisonment of one year, nine months and fifteen days being a fixed term commencing on the same date 16 January 2009 and expiring on 30 November this year.

73. Finally I convict you of the offence that you on 22 December 2008, between that date and 16 January 2009, at Sydney, supplied an amount of prohibited drug, namely methamphetamine, being an amount which was not less than the commercial quantity applicable to that drug. In respect of that offence you are sentenced to one year, eleven months and fifteen days. That is as close as I can get to two years, from 16 July 2009 expiring on 1 July 2011.

74. I set a balance of term expiring on 1 March 2013. I order your release to parole on 1 July 2011.

75. I recommend, I cannot order you, but I recommend that you attend a full time rehabilitation centre located in New South Wales for a period not less than six months of your parole. That is a recommendation that will be taken up with you and the Parole Board. Have a seat.

HIS HONOUR: I make an order for the destruction of all drugs.

HIS HONOUR: I order that pursuant to s 18(1) cash in the sum of $1200.00 found at Camperdown in a silver Ford motor vehicle, registration number WTL636 Victoria, be forfeited to the state of New South Wales. I also order that cash in the sum of $14,950 found in premises rented by the offender in Missenden Road, Camperdown be forfeited to the state of New South Wales.