R v Daniel Warren Carriage

[2020] NSWDC 339

District Court

New South Wales

Medium Neutral Citation:

R v Daniel Warren Carriage [2020] NSWDC 339

Hearing dates:

26 June 2020

Date of orders:

1 July 2020

Decision date:

01 July 2020

Jurisdiction:

Criminal

Before:

Priestley SC, DCJ

Decision:

See [50]

Catchwords:

CRIME — Drug offences — Supply prohibited drug — Commercial quantity

CRIME – Drug Offences – Deal with property proceeds of Crime

Legislation Cited:

Drugs Misuse and Trafficking Act 1985 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ.

Muldrock v The Queen [2011] HCA 39

Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41

R v Holder [1983] 3 NSWLR 245

Category:

Sentence

Parties:

Regina (Crown)
Carriage (Accused)

Representation:

Counsel:
Mr Stephenson, Solicitor Advocate, for the Crown;

Mr Hussey for the offender

File Number(s):

2019/00134891

Publication restriction:

Unrestricted

Contents

Judgment

Introduction

Charge, maximum sentence, SNPP

Form 1 procedure

Standard non-parole period

The facts

Objective seriousness

Section 21A

Subjective case

Psychologist’s report

Guilty plea

Criminal History

Likelihood of reoffending

Remorse and contrition

Good prospects

Covid 19

Totality

Special circumstances

Sentencing considerations

Orders

Judgment

Introduction

1. The offender was born on 12 June 1992 and so is presently 28 years old. The date of the offending is in early 2019 so that the offender was 26 years old at the time of the offending. The offender has been in custody since 30 April 2019 for this offending alone.

Charge, maximum sentence, SNPP

2. The offender is to be sentenced for two offences. One is a charge under s25(2) of the Drugs Misuse and Trafficking Act arising from the supply of 487 g of methylamphetamine. This offence has a maximum sentence of 20 years imprisonment, and there is a standard non parole period of 10 years. In relation to the sentencing for this offence there is to be taken into account an offence under s25(1) of the DMTA, being the supply of no more than 175g of cocaine, a matter which itself has a maximum penalty of 15 years imprisonment.

3. The second charge is under s193C(1) of the Crimes Act, the offence of dealing with proceeds of crime of more than $100,000, specifically, $155,000. The maximum sentence for this offence is 5 years and there is no standard non parole period.

Form 1 procedure

4. In regards to the Form 1 procedure it is important that the focus remains on the principle offence for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community’s entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ.

Standard non-parole period

5. I have noted the SNPP in respect of the s25(2) offence. The standard non-parole period is to be considered a guidepost in the same way as the maximum sentence may be considered a guidepost.

6. At [29] of Muldrock v The Queen [2011] HCA 39 it was said that Division 1A requires sentencing judges to state fully the reasons for arriving at the sentence imposed. In discussing what was required by section 54B(4) which was to the same effect as the current section 54B(3), the Court said that “the obligation applies in sentencing for all division 1A offences regardless of whether the offender has been convicted after trial or whether the offence might be characterised as falling in the low middle or high range of objective seriousness for such offences”. The obligation being referred to was the central purpose of division 1A, to require sentencing judges to state fully the reasons for arriving at the sentence imposed.

7. The matter of the SNPP is to be taken into account together with the maximum penalty as part of the instinctive synthesis process; see Muldrock at [27]. Thus it is a matter to be taken into account with all others with the requirement upon me to set out the reasons why I determine the non-parole period to be something other than 10 years.

The facts

8. The Crown bundle was tendered without objection and became exhibit A. It included a statement of agreed facts from which the following summary is taken.

9. From August 2018 police were investigating cocaine supply in Coffs Harbour. From early January 2019 to mid April 2019 the offender was supplying cocaine to a man named Rovere. The offender was assisted in this by a man named Silvia. Silvia’s house was used as a meeting point for the offender and Rovere. The supplying stopped with the arrest of Rovere on 18 April 2019. The practice of the offender and Rovere was to meet regularly and it is agreed that Rovere on supplied this cocaine to his customers. It is agreed the amount of cocaine is no more than 175 g, and in submissions it was acknowledged that this was intended as an approximate amount. Thus it can be said that it is well in excess of the 5 g starting point for an indictable quantity and some way short of a commercial quantity of 250 g.

10. A conversation recorded by an authorized listening device between the offender and Silvia shows them to be having a conversation about the quality of the cocaine they had previously supplied and the current cocaine they were to supply. It is difficult to make much more of this from this conversation; for example there is reference to the first lot of cocaine which would clearly show this was not a one-off occurrence but on the other hand, was it the very first occasion that is being referred to or just a “first” lot from a particular supplier. The conversation does not reflect a high degree of sophistication.

11. Those matters just recounted go to the Form 1 matter. A curiosity of this case is that the more serious charge of supplying methyl amphetamine of 487 g arose in the course of the investigation of the supply of the cocaine. The 487 g of methylamphetamine was delivered to the offender whilst he was at Silvia’s house on 18 April 2019. Later that day Rovere collected this package from that house and was subsequently stopped by police.

12. The other charge, under section 193C emerges because the offender received $155,000 in cash from Rovere on about 23 March 2019. The facts show that there were discussions between the offender and Rovere about the supply of drugs and the cost of them. The discussion included reference to MDMA though precisely what drug was the subject of the purchase price is not stated in the agreed facts.

Objective seriousness

13. The facts in this case are remarkably sparse concerning the more serious charge concerning the 487 g of methylamphetamine. It is at the very top end of the range of commercial quantity with a large commercial quantity commencing at 500 g. Yet it is clear on the authorities that a determination of objective seriousness is not arrived at solely by a consideration of weight; see Wong v The Queen; Leung v The Queen (2001) 207 CLR 584. At the same time it is obviously a relevant matter.

14. Most of the agreed facts relate to the supply of cocaine, that is the Form 1 matter. It is apparent that of the people mentioned in the agreed facts, namely the offender, Silvia and Rovere, that it is the offender who is the furthest up the hierarchy. Exhibit A, the Crown bundle, also included statements of facts relating to the upcoming sentence hearings of Silvia and Rovere and it was agreed that those facts also reflected that position. That hierarchy however is a heirarchy of 3 and in my view is not an overly helpful indicator. It is plain that there is more to this supply chain than these 3 people. The offender seeks to minimise the seriousness of the offending by referring to it as a backyard operation. It is not suggested by the Crown that the offender is anything other than a person who obtains quantities of drugs from others. In this regard however what is plain is that the offender is supplied by others with significant amounts of drugs and is trusted by those others with large quantities of drugs for example 487 g of methyl amphetamine, and also large amounts of money namely the $155,000.

15. The agreed facts give little indication of just how this operation works and so far as they do it is of communications and organisation of a very basic kind. It is also not known from the facts just what amount if any of the proceeds of the sale of the drug or of the $155,000 were to be retained by the offender. I find that he was making a financial benefit from the activity but I am unable to determine whether this was negligible or significant other than that it was sufficient to enable him to purchase his own drugs and other discretionary spending.

16. In my view it would be to underplay the criminality involved in this conduct to assess it in the low range. I come to that view based on the quantity concerned and the obvious level of trust placed in the offender and the fact that his drug-related activity was occurring from at least January 2019 to mid April 2019. At the same time I do not consider the material justifies an assessment of the objective seriousness of the matter being in the middle of the range of objective seriousness. I would give this offending an assessment in terms of objective seriousness as being above the low range and just into the lower levels of the middle of the range. If mid range is considered to be one half and low range is considered to be a quarter I would assess this as three eighths on the scale.

17. In my view this same analysis could almost apply precisely to a consideration of the section 193 C charge. I say almost because the one point of difference is that even less is known about that matter. It is however a significant amount of money and must have involved in my view a significant amount of drugs or drugs of very high quality. I would assess this charge as slightly less objectively serious than the section 25 (2) charge.

Section 21A

18. In the Crown’s oral submissions it withdrew its written submission relying on section 21A (2) (n) and (o), leaving reliance to be placed only on the criminal history of the offender (which I discuss below) and that the offence was committed without regard for public safety. It would be difficult for this offence to be carried out with regard to public safety and I do not consider this factor in this case meaningfully aggravates the offending.

Subjective case

Psychologist’s report

19. The offender relied on a psychologist report of Rebecca Smith dated 2 June 2020, 3 character references and medical records of himself and his grandmother. As to the grandmother’s medical records it shows that she is an elderly woman with numerous medical conditions who would clearly benefit from gaining assistance from her grandson. This material was to give a broader picture of the circumstances of the offender and I did not understand the submission to be made that the circumstances were such as to justify a reduction in sentence by reason only of the need to care for the grandmother.

20. The offender’s medical records raise the prospect of a borderline personality disorder and record a history of cocaine addiction in March 2018. This supports the submission of a degree of insight by the offender who was seeking assistance before the offending in question.

21. The character references showed that there are some people who consider the offender to come from a good family and he was a person who has studied in the past and has a desire to better himself and who cares for his daughter. One reference is from a person who would be the narcotics anonymous sponsor for the offender.

22. This material bears out that there is both family and community support for the offender.

23. The psychologist’s report, together with the evidence given by the offender at the sentencing hearing, goes to support an argument of a background of social disadvantage. To some extent that is contradicted by the references just referred to which talk of the offender coming from a good family. The view I have arrived at is that taking all the material into account is that whilst the offender’s family may have been well respected within its community that does not mean that the upbringing of the offender was not one where he was not exposed to domestic violence and drug use.

24. I note the following matters from the psychologist report:

1. The offender grew up in an aboriginal mission outside of Kempsey. His parents separated when he was very young and his living arrangements varied until he was about 6 years of age. His mother suicided when he was 7 years old by reason of an overdose when suffering a psychotic episode. His father abused both alcohol and cannabis and at about the time of his mother’s death the offender went to live with his grandparents and has remained close to his grandmother ever since. The evidence was of one occasion where the father insisted the offender walk to school despite the fact that he had hurt his leg which later was found to be broken.

2. He described his growing up as being with auntie’s and uncles who drink and “are bad on the needles”. He described violence and fighting as being “all you know when you grow up with it”. He further gave some evidence in court and also made reference to the psychologist of a history of sexual abuse although given in guarded terms.

3. He managed to complete year 12 saying he did not want to end up like his family members. He was accepted into university but deferred his degree and did not ultimately take that up. He subsequently pursued studying counselling.

4. The offender has one child and remains either in a relationship or closely in touch with that child’s mother. He attributed the current offending to his inability to regulate his feelings very well and not being able to deal with the deterioration in that relationship.

5. In terms of substance use he experimented with drugs at 19 at a time when a shoulder injury prevented him playing football and by age 21 was using cocaine and developed a bad habit. He talks of supplying drugs in order to meet his debts from drugs.

6. The offender did not seek to minimise his involvement in the offences and expressed remorse. In fact to both the psychologist and in his oral evidence he expressed gratitude for his incarceration as he said it has given him an opportunity to reflect on the course his life is taking which he wishes to change.

7. In summary the report noted the history of substance abuse, the need for rehabilitation which the offender acknowledges and significantly refers to his background of trauma. The report also talks of management strategies which acknowledge indigenous disadvantage and which it is said can yield better outcomes both therapeutically and in terms of recidivism rates. The report discussed the range of different courses that may be available to the offender.

25. In my view the report is helpful for setting out the circumstances of the offender. Thus the benefit of the report to the offender, to the extent that I accept it, is in assisting a finding of special circumstances, and also for the evidence it provides to aid a Bugmy submission.

26. There is no reason not to accept the views expressed in the psychologist report which I consider to be considered and, assuming the history is correct and to which the offender swore was true without challenge in the witness box, consistent with the sort of history that has been described by the offender.

Guilty plea

27. I find the offender is entitled to the 25% discount for entering his plea at the Local Court. There is no dispute on this point.

Criminal History

28. The offender’s first offence was in 2013 for being a licensed driver with mid-range PCA sitting next to a learner driver. In 2014 there was a reckless wounding offence which resulted in a suspended 18 month sentence. In 2019 there were 3 offences which appear to be related of contravening an AVO, stalking and destroying property for which he received a 12 month community correction order in each case. Whilst this certainly impacts on the degree of leniency that might be shown to the offender I do not accept that it disentitles him to any leniency whatsoever. In the context of his upbringing it shows that he was 22 before committing a significant offence (the wounding matter) and that a further 4 years passed before domestic violence related matters occurred when he was 26. Those matters are of course intolerable but overall my view is that some degree of leniency should be allowed.

Likelihood of reoffending

29. I find it difficult to assess the likelihood of reoffending. The competing factors are a background of disadvantage which may make the offender a person more likely to succumb to offending and his history of substance abuse and the accompanying risk of relapse to drug use and then offending. On the other hand the evidence also shows this young man to have studied and to have been a contributing member of the workforce and on his case seeking to assist others in his community overcome disadvantage. I would assess the likelihood of reoffending as being low to medium with the risk decreasing if the offender is able to undergo the various programs recommended by the psychologist.

Remorse and contrition

30. I accept this offender is genuinely remorseful and contrite based on the psychologist report and his evidence to that effect in the witness box. The offender as noted above was quite frank in asserting that prison for him had been a good thing. To be able to make that statement suggests to me a significant degree of insight and acknowledgement of his wrongdoing.

Prospects

31. The offender’s history of study and of working and of the support of his family and in particular his grandmother and his sister, together with other community support demonstrated by the references, suggest there are prospects of a pro social return to the community. The offender still needs to deal with the issues raised in the psychologist report in particular his substance use and to also seek counselling for some of the psychological if not mental ill-health issues discussed in the report. I would describe the prospects as cautiously positive.

Covid 19

32. The significance of the Covid 19 pandemic is that the time the offender has spent in prison has been more arduous due to the conditions imposed in order to ensure it does not reach the prison population. This includes for example not having visitors in the usual way. This will continue for some time and may even become more strict depending on what eventuates. I have taken this factor into account in connection with the length of the non-parole period.

Totality

33. In respect of totality I note R v Holder [1983] 3 NSWLR 245 which calls for an evaluation in a broad sense of the overall criminality involved in all of the offending and that there is then a determination of what downward adjustment is necessary if any so as to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. I note also in Cahyadi v R[2007] NSWCCA 1; 168 A Crim R 41 at [27] it was said:

34. “[T]here is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences.

33. The offending occurred between January and April 2019. That is on one view a significant period of time over which the drug offending occurred. As noted above however the most serious of the offending relating to the methyl amphetamine on the facts appears to have been a one off offence and the Form 1 matter is a matter constituted by the series of supplies of modest amounts of cocaine. The section 193C offence is also a discrete event but clearly at the same time part of the continuing course of conduct. My view is that there needs to be a significant period of concurrency so as to properly reflect the criminality of the offending.

Special circumstances

36. I accept the submission that special circumstances can be found in this case due to the need for rehabilitation. I also bear in mind that this is the first significant period of custody for the offender.

Sentencing considerations

37. In Wong v The Queen; Leung v The Queen (2001) 207 CLR 584 at [67] to [73] the High Court said it is wrong to assess a drug matter simply by reference to the weight of the drug involved. It is just one of the recognised factors that must be taken into account along with all the other facts and circumstances of the case.

38. That said, the weight of the drug involved certainly remains a factor to be considered. In Newman (a pseudonym) v R [2019] NSWCCA [157] it was said (at [10]) when dealing with an error by the sentencing judge as to the weight of the drug:

39. Clearly the error could have affected the sentencing; there is a significant difference between a quantity which is only marginally above the threshold and a quantity which is more than twice the threshold

40. The approach to sentencing in drug matters was considered in Parente v R [2017] NSWCCA 284. At [107] the court set out the approach to sentencing in drug supply matters. The first is to follow general principle and to take account of all relevant factors to arrive at a single result by taking due account of them all. Secondly regard must be had to the maximum penalty and standard non-parole periods. Thirdly to consider whether a sentence of imprisonment should be imposed and in that regard the court noted that nothing in section 5 of the crimes sentencing procedure act excludes non-custodial ways of serving such a sentence.

41. In this case there is no argument but that there is no more appropriate sentence than a full-time custodial sentence; section 5 of the CSPA.

42. Section 3A sets out the purposes of sentencing. They are in short:

1. to ensure the offender is adequately punished;

2. both general and specific deterrence;

3. to protect the community;

4. to promote rehabilitation of the offender;

5. to make the offender accountable for his actions;

6. to denounce the conduct;

7. to recognise the harm done to the victim and community.

43. The purposes that attract the most attention in the present case in my view are punishment, denunciation, protection of the community and rehabilitation. Deterrence is also relevant but less so than may ordinarily have been the case given the background of the offender.

44. There is no doubt that this offender was meaningfully engaged in the supply drugs which must have had as their ultimate consumers members of the community. Parts of the offender’s case on sentence are persuasive, in particular the significance of his background, and the evidence suggesting that not only is there a prospect that he may adopt pro social behaviours into the future but that there is evidence that he has done so in the past.

45. On the other hand parts of the offender’s case are less persuasive. The idea that he was so affected by the deterioration in his relationship that drug dependence became irresistible overlooks a degree of self-discipline that a person with the intelligence of this offender is likely to have. Further some of his expenditure was on his evidence simply self-indulgent rather than addictive.

46. Overall however I am impressed by the subjective case of the offender and consider that if the rehabilitation steps being taken such as abstinence continue together with counselling that will become available following his sentence then he should become better equipped at dealing with life’s adversities.

47. I propose proceeding by way of an aggregate sentence. My view is that the indicative term of imprisonment for the section 25(2) matter, taking into account the form one matter and allowing for the 25% discount is 4 years imprisonment. As there is a standard non-parole period relevant to this offence I indicate that had I not proceeded by way of an aggregate sentence I would have imposed a non-parole period of 2 years. This is at variance from the standard non-parole period of 10 years due to the offenders plea of guilty, the fact that I have assessed the matter as being below the middle of the range of objective seriousness and due to the subjective matters considered above.

48. I consider the appropriate indicative sentence for the section 193C offence to be 18 months.

49. Bearing in mind the principle of totality I determine the aggregate sentence to be 5 years. I consider the facts of this case to strongly support an extended period of supervision and assistance with rehabilitation upon the offender’s release and I also take into account the Covid factor which has only arisen since March of this year. For those reasons there will be a non-parole period of 2 years.

Orders

50. Taking all of the above matters into account, including the Form 1 matter and the 25% discount for the guilty plea, I arrive at a non-parole period of 2 years commencing on 30 April 2019 and expiring on 29 April 2021 with a balance of term of 3 years commencing 30 April 2021 and expiring on 29 April 2024.

51. I make the following orders:

1. Daniel Warren Carriage for the offences charged under section 25(2) of the DMTA and under s193C of the Crimes Act you are convicted.

2. I sentence you to a term of imprisonment with a non-parole period of 2 years commencing on 30 April 2019 and expiring on 29 April 2021 with a balance of term of 3 years commencing 30 April 2021 and expiring on 29 April 2024.

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Decision last updated: 01 July 2020