R v Daves

[2015] NSWDC 356

District Court

New South Wales

Medium Neutral Citation:	R v Daves [2015] NSWDC 356
Decision date:	02 October 2015
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	For the offences of supplying a prohibited drug and knowingly dealing with the proceeds of crime, an aggregate sentence of imprisonment for five and a half years and a non-parole period of two and a half years. Form 1 taken into account.
Catchwords:	CRIMINAL LAW – sentence – particular offences – drug offences – supply prohibited drug – knowingly deal with proceeds of crime – relevant factors – prior criminality – criminal record for similar offences – nature and circumstances of offender – development of serious physical disability – drug problem related to pain management – addictive personality trait – efforts to rehabilitate while on bail evident – genuine remorse – good prospects of rehabilitation – gravity of offences – middle of the range of objective seriousness – physical disability not so exceptional as to warrant imposing anything other than a full time custodial sentence – pleas of guilty not entered at earliest opportunity – 10% discount – finding of special circumstances – Form 1 taken into account for offences of drug supply and possession
Legislation Cited:	Crimes Act 1900 (NSW), s 193B(2) Crimes (Sentencing Procedure) Act 1999 (NSW), s 32 Drugs Misuse and Trafficking Act 1985 (NSW), s 25
Cases Cited:	R v Clark (Court of Criminal Appeal (NSW),15 March 1990, unrep)
Category:	Sentence
Parties:	Regina (Crown) Desmond John Daves (Offender)
Representation:	Counsel: P Curtis (Offender)   Solicitors: G Wasilewicz, Office of the Director of Public Prosecutions (NSW) (Crown)
File Number(s):	2013/221480

Judgment

1. The drug methylamphetamine, commonly known as ice, is well known to sentencing judges as a scourge within the community. It wreaks huge havoc on people’s lives. An example is the offender whom I am sentencing today, Desmond Daves.

2. For that reason Parliament has fixed significant penalties, indeed severe penalties, for those who supply prohibited drugs including the drug methylamphetamine. I am sentencing a man who had in his custody no less than 15 times the trafficable amount of methylamphetamine, or nine times the indictable amount. In addition, police found in the car $65,000 in cash which represented the proceeds of crime.

3. These were two very serious offences. That is obvious by the fact that Parliament has fixed to each of those crimes a maximum penalty of 15 years imprisonment. This is not an assault case with a maximum of five or seven years or even a case with a maximum of ten years. These are indeed very serious offences and Parliament expects judges to take into account the maximum penalty when working out what an appropriate penalty is in a particular case.

4. Judges take into account many other things as well which I will refer to. They need to work out how serious an example the particular offence is that they are sentencing for. It may be far removed from the worst kind of case. These crimes are not the worst kind of case. Judges also need to take into account the personal circumstances of the offender and I have been assisted by a lot of evidence about the personal circumstances of this offender.

5. The offender’s name is Desmond John Daves. He is now 55. I am sentencing him for the two crimes that I referred to. The first is supplying a prohibited drug less than the commercial quantity. It was just over 45 grams of methylamphetamine, or ice. That is an offence against s 25(1) of the Drugs Misuse and Trafficking Act 1985 (NSW). Parliament, as I said, has fixed to it a maximum of 15 years imprisonment as the penalty. The other offence that I am sentencing him for is knowingly dealing with the proceeds of crime. That is an offence against s 193B(2) of the Crimes Act1900 (NSW). Again, Parliament has fixed a maximum of 15 years imprisonment to that offence.

6. Mr Daves has signed a document asking me to take into account, when I am sentencing him for the drug supply, two other less serious drug offences. One is the supply of the prohibited drug cocaine. Police found about six grams of cocaine on him when they arrested him. The other is possessing a prohibited drug; namely, cannabis. He had about 10 grams of cannabis on him. I will, in sentencing him for these offences, take into account those offences and I certify to that effect in a document under s 32 of the Crimes (Sentencing Procedure) Act1999 (NSW).

7. Judges should always start with a brief account of what happened to amount to the crime, so that the judge can make an assessment of how serious an example the crime is.

8. Police saw Mr Daves and someone else speeding along the Oxley Highway near Summerton. He was travelling between 140 and 150 kilometres an hour. Understandably the police officer pulled him up, Mr Daves appeared to be nervous -

“[H]is voice was shaking and his hands were shaking. The offender’s skin was pale, he had a brown substance around the sides of his mouth, he was sweating (it was a cold morning), he appeared groggy, he spoke slowly and his pupils were dilated.”

The police officer searched the car. He found glass crack pipes. He was arrested and the car was taken to the Tamworth Police Station. They found the cocaine and the cannabis. In addition they found “a set of digital scales, a white plastic spoon and a resealable bag containing hundreds of small resealable plastic bags.” They found cash in the tyre well of the car, which totalled $65,000. That led to the charge of knowingly dealing with the proceeds of crime. They also found five plastic containers with a total of 45.27 grams of methylamphetamine. The purity of the methylamphetamine was some 74%. That represents the charge of supplying a prohibited drug, which I am sentencing Mr Daves for.

9. If I have not formally done so, I now convict Desmond Daves of the two offences that I am sentencing him for.

10. A judge will also be interested in an offender’s criminal record. In this case Mr Daves, who is 55, does have a criminal record. It started with some very minor offences when he was under 18. I place no weight on those whatsoever. When he was quite young or relatively young he has a couple of offences of cultivating a prohibited plant and possessing a prohibited drug. The most recent of those earlier ones was 1992. I also disregard those.

11. In 2005 Mr Daves was convicted of assault occasioning actual bodily harm and common assault. Neither could have been so serious because at Penrith Local Court he received a good behaviour bond. He was convicted of drink driving in 2013.

12. Significantly, Mr Daves has a record in Queensland. He spent some time in Queensland. In 2007 he was convicted of possessing dangerous drugs as well as assault and spent some time in gaol in Queensland. So he comes before the Court with a record from 2007 of possessing a dangerous drug. On the other hand, he does not have a criminal record for supplying a prohibited drug, which is the offence that I am sentencing him for.

13. I have some material about Mr Daves’ personal circumstances in various forms. One is a pre-sentence report prepared by a Community Corrections officer. It provided some helpful background about Mr Daves. It noted that he had developed chronic back pain over the last ten years or so and has gone onto a disability support pension. He admitted to the Community Corrections officer that he had a drug abuse problem and his lifestyle since 2005 until his arrest “became extremely chaotic.” He commenced a methadone program on 16 November 2013 which was, I am told, partly related to his drug habit but more significantly related to his back pain. He acknowledged a gambling problem from many years ago and his partner told the Community Corrections officer that she has seen him winning upwards of $100,000 on one night.

14. Mr Daves gave an account of what the drugs were doing in the car, saying that the “majority of the illicit substances were intended for himself and his former partner’s personal use.” The author of the report noted a psychological report which I will refer to in a moment which itself identified “mental health issues and an addictive personality trait that may benefit with psychological intervention.”

15. His account given to the Community Corrections officer about the purpose of having the drugs and the source of the money lacked credibility. Fortunately he has been more frank in Court.

16. Mr J Curtis of counsel, who appears for Mr Daves, tendered a bundle of material which included a detailed psychological report from a clinical psychologist, Dr Lisa Patterson-Kane. She too noted some of the matters which the Community Corrections officer had noted. She also noted that Mr Daves “reports a substance use history that was dominated by heavy drug use, particularly methylamphetamine (Ice), cocaine, marijuana and in the past heroin.” Mr Daves reported to the psychologist that he had lost control of his life and was “gambling excessively and dealing drugs to sustain his lifestyle and reportedly the cycle of his dependence deepened.” She noted that he was well aware of his own addictive personality and his need for assistance. She concluded that he presented as being -

“extremely unhappy in his current life predicament and remorseful of the actions that have led to it. Mr Daves currently presents with symptoms consistent of an anxiety disorder with depressed mood. From Mr Daves’ recollection of his past mood and functioning it is highly probable that his anxiety disorder has been long standing and that the current features of depressed mood are reactive to his current life situation.”

17. Dr Patterson-Kane noted the coincidence of anxiety-related issues and substance abuse as being common. They can lead to poor decision making. She thought it “probable that Mr Daves’ decision making at the time of his offences was impaired by the effects of both an anxiety disorder and illicit drug use.” She said that psychological therapy would help to “address both elements of substance abuse and an anxiety disorder as the issues appear significantly interrelated for Mr Daves.” She also thought, interestingly, that he should engage in “some form of meaningful work, within the limitation of his physical capabilities.”

18. I should make the observation that I put very little weight on the reference to his mental health condition affecting his decision making at the time of the offences. That is not because I do not respect the opinion of the psychologist, but because I think it highly likely that people who are addicted and deal in drugs are likely to suffer from anxiety and depression. Were that to be given significant weight in reducing general deterrence, it would be applicable in far too many cases.

19. To his credit since being released on bail after some 89 days in custody, Mr Daves has been getting his life back into order, both personally and so far as his health is concerned. He has been regularly seeing people in Tamworth concerning his drug dependency and his mental health. He is in contact with them by either telephone or in person and there are detailed reports of that regularity which were tendered by Mr Curtis. There are a couple of times, picked up by Ms G Wasilewicz who appears for the Direction of Public Prosecutions, where there is a reference in the notes to “speed in his last urine.” I do not appear to have any tests which confirm that. Indeed on one occasion Mr Daves explained it “by taking speed in prison.” I do notice also there is one instance on 6 November 2013 of “wrong labelling of sample.” What I do take from that is that he is serious about getting his physical and mental health into some order.

20. Mr Daves’ physical health is not good. He has a serious back condition which he himself described as debilitating and which it appears he receives the disability support pension for. It affects the movement of one of his feet.

21. Mr Curtis called his client to give evidence. I referred to Mr Daves trying to get his personal life into order. That has been significantly assisted by his former wife who has returned to live with him and support him, and his daughter. He is receiving admirable support from both of them.

22. Mr Daves said in examination-in-chief that the $65,000 was from selling drugs but also from gambling. He also received support from his brother and his sister-in-law who live in Gunnedah where he lives with his former wife and his daughter. He has been drug-free for two years since he came out on bail and he is getting psychological support in Gunnedah. He expects to get psychological support in the future.

23. Mr Daves has had surgery on the back which he told me about, for a condition which affects his foot, which is foot-drop syndrome. His physical disability is such that recently he has had to go into a wheelchair and indeed, he appears in Court in his wheelchair. He needs support on a daily basis which he receives from his former wife and his daughter.

24. Mr Daves acknowledged his genuine, I accept, remorse for his activities and said that he was more than sad and remorseful he had affected so many people’s lives including friends whom he had given drugs to.

25. Understandably, Ms Wasilewicz in cross-examining Mr Daves focused attention on the intended use of the drugs which he had and the money which he had. He said he had about a month’s supply of drugs in the car and the money was from the drug supplying, but over a long period. Over about a year he had accumulated the funds. He also acknowledged that his gambling is a cash-flow business along with another private business that he had. He did not agree that the $65,000 was the result, probably, of the supply of a significant amount of drugs. He said that because he had accumulated it over a long time.

26. Mr Daves said the way that he operated was that his then partner sold the drugs that he gave to her and she brought the money back. She sold to a selected number of close friends. I repeat, he said that the $65,000 was accumulated over a long period of time.

27. What this displays, and I accept, is that the intended use of the methylamphetamine that he had with him was for distribution even though, I accept, limited within the community. Some of it may have been for his own use but the overall intention was that it should be on-sold, through his then partner, to persons selected in the community. I accept also that a majority of the $65,000 was the result of supplying drugs. It does not really matter over what period of time he was supplying them.

28. These are, I repeat, very serious offences. Mr Curtis also called Sarah Daves, Mr Daves’ daughter. Admirably, despite having two very young sons, she has moved in with her parents at Gunnedah and has been helping her father on a daily basis. His needs are such that she described the circumstances as like having another baby. He cannot walk unassisted. She was the one who took the initiative in getting the wheelchair for him. I accept that his disabilities and his need for a wheelchair are genuine. As Ms Daves said, she acknowledged that it is difficult but they do manage and get the job done.

29. I turn now to the arguments that were put on Mr Daves’ behalf and on behalf of the Director of Public Prosecutions. Mr Curtis acknowledged that the plea of guilty was not entered at the earliest available opportunity. Mr Daves was called for trial on three occasions. It was adjourned for a number of reasons and it was not until August this year that he pleaded guilty to the offences that he is now charged with. I propose to allow a discount of just over 10% in due course on the sentences that I will impose upon him. The discount reflects the fact that the plea of guilty assists the criminal justice system by freeing up lists for trials of other people who defend their cases. When a person acknowledges their guilt early in the piece it receives more benefit. But even a late plea, like Mr Daves has made, will attract some discount and I will indicate that in due course.

30. I accept Mr Curtis’ submission that there is no evidence that Mr Daves was an upper or medium level supplier. He was a street-level supplier. That is consistent with the evidence. Mr Curtis realistically acknowledges that the two sentences should be partially made cumulative. He is right and realistic in making that submission and in due course I will indicate the accumulation and then fix an aggregate sentence.

31. By way of mitigation, Mr Curtis argued that his client has good prospects of rehabilitation. I agree with that submission. The fact that he is getting professional assistance and has such strong personal support point in that direction. Ms Wasilewicz acknowledged as much as well. As a matter of practicality, I also acknowledge that he is unlikely to re‑offend. I think his life is very much focused on his physical and mental recovery at this stage.

32. I take into account the remorse which Mr Daves has expressed. Mr Curtis made submissions about special circumstances which would entitle me to adjust the ratio between a head sentence and the non-parole period and I will do that in due course.

33. Mr Curtis also acknowledged that the objective seriousness of the crimes, at least the drug offence, was in the middle of the range. Ms Wasilewicz agreed and I also agree. He said that Mr Daves was candid in his evidence. I thought he was somewhat defensive, but then he was being cross-examined about his drug supplies and at least he was more forthright in his evidence than he was to the Community Corrections officer.

34. Mr Daves’ sentence, when I impose it shortly, will be backdated to take into account the fact that he has served 89 days in custody and MFI 5 indicates that the sentence should commence on 6 July 2015.

35. Mr Curtis, on behalf of his client, made a submission that I could consider a suspended sentence. A preliminary to a suspended sentence must be that the sentence itself would be two years or less. That is the first decision that has to be made regardless of whether a judge is inclined to suspend the sentence or not. These offences are not such that they warrant a sentence of two years or less. The disability which Mr Daves suffered do not constitute exceptional circumstances for departing from the principle which the Court of Criminal Appeal has made very clear since the judgment of Hunt J, as his Honour then was, in R v Clark (Court of Criminal Appeal (NSW),15 March 1990, unrep). His Honour said that “trafficking alone in any substantial degree should normally lead to a custodial sentence.” There must be exceptional circumstances for not imposing fulltime sentence. I am confident that the Corrective Services Department will be able to manage Mr Daves’ disability.

36. Although Ms Wasilewicz pointed to the pre-sentence report’s assessment of his risk of re-offending being medium, I accept Mr Curtis’ submission that that assessment must be seen in the context of the evidence that I have seen and heard today. I think in light of that evidence that the prospects of re‑offending are not at all high.

37. I turn now to consider the sentences which I should fix in this case. Taking into account the matters on the Form 1 and how serious an example the drug supply of methylamphetamine was in this case, I would regard an appropriate sentence as being one of five and a half years imprisonment. For the goods in custody - the cash - I would regard an appropriate sentence as being four years imprisonment. However Mr Daves has pleaded guilty to both counts. I will therefore discount the five and a half years imprisonment by a little more than 10% and round it off to four years and ten months imprisonment. I will discount the four year sentence by 10% which would be three years and seven months and round it down to three and a half years imprisonment.

38. I would be inclined to accumulate both sentences by eight months so that the total sentence would be five and one half years imprisonment. For a sentence of five and a half years imprisonment the legislation envisages that a non-parole period would be four years and one month. So that Mr Daves, if I were to fix that non-parole period, would be eligible for release in August 2019.

17. However, I accept Mr Curtis’ argument that there are special circumstances for reducing that non-parole period in this case. The special circumstances include his need for medical treatment and his physical disabilities. He will serve prison time harder. I accept that submission made by Mr Curtis. In addition, he will need time in the community to continue the rehabilitation which he has already started.

18. I would therefore regard an appropriate overall non-parole period as being one of two and a half years imprisonment. I would have fixed non-parole periods on the individual sentences which I have indicated which correspond to the same ratio of 30 months to 66 months. I say that for abundance of clarity.

19. I propose to aggregate the two sentences and fix one sentence of five and a half years imprisonment. It will be backdated to commence on 6 July 2015 and it will expire on 5 January 2021. The non-parole period will be two and a half years commencing on 6 July 2015 and it will expire on 5 January 2018.

HIS HONOUR: Mr Daves, I am going to formally sentence you now.

42. I fix a non-parole period of two and a half years imprisonment. It commenced on 6 July 2015. It will expire on 5 January 2018. The overall sentence is five and a half years in prison. It too commenced on 5 July 2015. The overall sentence will expire on 5 January 2021. The first date on which you are eligible for parole, at the end of your two and a half years in prison, will be 5 January 2015.

HIS HONOUR: I am going to ask Mr Curtis and Ms Wasilewicz to check my calculations. I do not fix or order parole because it is over three years.

CURTIS: Your Honour just said, “eligible for parole 5 January 2015”.

HIS HONOUR: Did I? I apologise. 5 January 2018. 5 January 2018 - that is about two and a half years time, no it is just under two and a half years time. When you have both checked the sums tell me whether I have got it right.

WASILEWICZ: I have no issues with those dates your Honour.

CURTIS: Yes, I have no issue your Honour.

HIS HONOUR: They are correct.

43. Mr Daves, your overall prison sentence is five and a half years. I have explained my reasons why it is so high. You have committed two very serious crimes, each of them with 15 years maximum imprisonment. Your non-parole period for the sentence I gave you could have been as high as four years and one month; I have reduced it significantly to two and a half years because of your disabilities and your need to keep on your rehabilitation path. You will be eligible for release - the Parole Authority decides that - on 5 January 2018.

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Decision last updated: 08 February 2016