R v Darren Andrew COLE

[2008] NSWDC 126

CITATION:	R v Darren Andrew COLE [2008] NSWDC 126
HEARING DATE(S):	1 May 2008
EX TEMPORE JUDGMENT DATE:	1 May 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The offender is sentenced to imprisonment with a non-parole period of twelve months to date from 1 May 2008. and a head sentence of two years and three months. The offender will thus be released to parole on 30 April 2009.
CATCHWORDS:	CRIMINAL LAW - sentence - supply prohibited drug - trafficking to a substantial degree - full admissions - emotional trauma - post traumatic stress
PARTIES:	The Crown Darren Andrew Cole
FILE NUMBER(S):	DC/2008/11/0186
SOLICITORS:	NSW DPP Legal Aid Commission

SENTENCE

1 The offender, Darren Andrew Cole, appears for sentence after having pleaded guilty at an early stage to an offence of supplying a prohibited drug, the drug in question was amphetamine in the form of Ice.

2 The offender came to the attention of police due to his manner of driving. He sped past police and so they decided to stop him. He, through his manner of driving, indicated that he was not going to stop and it was not until he collided with another car that police were able to arrest him. Police then searched the vehicle driven by the offender. They discovered both drugs and indicia of drug supply. They found two resealable bags containing a crystal substance, thirty-three unused plastic resealable bags, a set of palm scales. They also found on the offender a substantial amount of money, $4,290.

3 The offender has pleaded guilty to an offence of goods in custody in relation to that money and has asked that I take it into account when sentencing him for the drug supply matter.

4 The crystal substance proved to be Ice, one quantity of 2.86 grams and the other 2.43 grams.

5 The offender was interviewed by police in relation to these matters and made full admissions as to his drug dealing activities.

6 Police also found a digital camera and upon reviewing the photos stored in it they found photos that the offender had, helpfully, kept showing him with large sums of money. The offender told police that the amount of money he had on him came from supply which he had conducted earlier that evening. He said that he had sold Ice on five occasions in the Five Dock, Leichhardt and Surrey Hills areas. The offence for which he is to be sentenced relates to those five acts of supply. The offender also told police that he had been supplying drugs on other occasions. He said that he had been doing this for about eight weeks and that he would have supplied Ice on more than ten occasions but less than thirty. Of course he is not to be sentenced for the acts of supply other than those on 30 August, but the relevance of what he told police is, firstly, that he came clean with them and, secondly, that he is not to be sentenced as though his activities on 30 August were isolated.

7 He was trafficking to a substantial degree. The authorities are clear: unless it is an exceptional case, full-time custody must follow trafficking to a substantial degree.

8 The offender was born in Taree. His mother is of Indonesian background. He speaks fluent Indonesian and English. He had an unremarkable childhood before joining the navy. He performed the role of a medic whilst in the navy, and because of his skills in that area and his fluency in Indonesian, he played a very important role in the Australian humanitarian efforts after the tsunami on Boxing Day 2005. He was on the Kanimbula and, as will be well remembered, a helicopter from that ship crashed during the humanitarian efforts killing a number of service personnel.

9 The offender gave evidence about that circumstance in his evidence today. He was in fact due to travel on the helicopter which crashed until about ten minutes before it departed. He knew all of the nine people killed; four aircrew who were regularly based on the Kanimbula and five medics. He assisted in caring for two of those who were injured who were received onto the Kanimbula; one of those was in fact his cabin mate. The following day he assisted in the retrieval of the bodies of his nine shipmates.

10 It is difficult for anyone sitting in a comfortable courthouse to imagine the effect of such tragedy upon the offender. A report from Dr Allnutt goes a long way to putting in psychiatric terms the consequences for the offender after he returned from Aceh.

11 The offender is entitled to be very proud of what he did for his country, and people affected by the tsunami and its aftermath. His involvement in the relief effort following the tsunami and his involvement in the consequences of the helicopter crash had a significant effect upon him.

12 Upon his return to Australia he thought that he had a chip on his shoulder. He was dissatisfied with life in the navy and felt that he was not being supported by them and so he left. He worked for a while but then suffered a significant assault at work, the assault left him with a fractured skull. Whilst unable to work he was at home a lot and in those circumstances he began to consume drugs. That led to him becoming a drug supplier.

13 But this is not a case which is commonly put before the court where the offender supplies drugs merely to fund his own habit, in this case the offender was motivated, at least partly, by the money that could be made from drug supplies. Indeed, he told police this when he was arrested. The police said, “Can you tell me why you conduct this type of business?” And he said, “For reasons I guess to satisfy one’s needs” and “just for the profit that’s available out of a sale.” It is clear that the offender went into this drug supply operation in order to make money. That is a significant circumstance in deciding the appropriate sentence to impose upon him.

14 Also relevant is the fact that the offender was on a bond at the time he committed this offence, having been dealt with in the Local Court for a driving matter. He has other driving matters on his criminal history, although there is nothing of this seriousness. When referring to driving matters, it is also not irrelevant that he refused to stop when police attempted to stop him, although I do note that he is to be dealt with for offences committed whilst driving, and so I will not increase the sentence because of that circumstance.

15 The offender’s prior good character of course is qualified by those driving offences which he earlier committed, the fact that this is not an isolated act of supply and that he was a drug user for some time. I am satisfied however that the offender has good prospects of rehabilitation and that he is unlikely to re-offend. Indeed, he will be personally deterred from offending in the future because of the sentence I will shortly impose upon him. The offender, consistent with his attitude towards the police, (that is, as I described he came clean with them), pleaded guilty at the earliest opportunity and so I will discount the sentence I would have otherwise imposed by twenty-five per cent to reflect that circumstance.

16 The drug Ice is a particular dangerous one. It causes many problems to both individuals and society generally. It is a comparatively cheap form of drug which notoriously leads to psychotic episodes on the part of some drug users, and in common with almost all drugs leads to many other offences being committed, as drug users commit offences in order to fund their activities. This offence is a very serious one carrying with it the maximum penalty of fifteen years imprisonment.

17 I am satisfied the offender is remorseful and I am satisfied also that to a large extent he is no longer the person he was when he committed these offences. Mr Marshall says this is an exceptional case such as would justify a sentence other than full-time custody. I take it from that that Mr Marshall is accepting that the offender was trafficking to a substantial degree, a finding which I have already made. I am not however satisfied that this is an exceptional case justifying anything other than full-time imprisonment. Many people begin to take drugs at a time of emotional trauma such as that suffered by the offender, but that scarcely explains the decision made by the offender to become a drug dealer, a decision prompted, at least in part, by the money which was available to be made. He told the police that he was undergoing some financial stress at the time, but that is again no justification at all for having decided to commit a particularly serious offence, a particularly dangerous one as well. This is not an exceptional case at all. It is unfortunately all too common where someone suffers emotional trauma and begins using drugs and then begins to sell them. What is unusual perhaps is that the offender in this case went beyond simply funding his own drug habit and was motivated by a desire to make money. Indeed, he seems to have been quite successful at it as the amount of money found in his possession would demonstrate.

18 I have found special circumstances in this case. It is the offender’s first time in custody. He is still suffering the effects of the post traumatic stress disorder to which I have referred, and he, thus the community, will benefit from a longer period of supervision on parole.

19 The offender is sentenced to imprisonment. I set a non-parole period of twelve months to date from today, 1 May 2008. I set a head sentence of two years and three months. The offender will thus be released to parole on 30 April 2009.

20 Any other matter, Mr Crown?

21 JOHNSTONE: Your Honour, I seek the forfeiture of the cash of $4,290 and also the destruction of the drugs.

22 HIS HONOUR: I make both of those orders.

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