R v Errington; R v Pantea

[2017] NSWDC 85

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Errington; R v Pantea [2017] NSWDC 85
Hearing dates:	24 February 2017
Date of orders:	24 February 2017
Decision date:	24 February 2017
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Ms Pantea - is referred for assessment as to her suitability to serve her sentence by means of an Intensive Corrections Order Mr Errington - Sentenced to imprisonment. I impose a non-parole period of three years and a head sentence of five years. I note that backup charges on the s166 certificate are withdrawn.
Catchwords:	CRIMINAL LAW – Sentence – Form 1 – Drug supply on an ongoing basis – Deal with property suspected to be proceeds of crime.
Category:	Sentence
Parties:	The Crown Andrew Lee Errington Christina Pantea
Representation:	Counsel: Ms O’Reilly – Crown Mr D Kerkyasharian – Offender Errington Ms R Rodger - Offender Pantea   Solicitors: Director of Public Prosecutions - Crown
File Number(s):	2015/82457 – 2015/82534

SENTENCE

1. HIS HONOUR: Many people appear before these courts charged with offences of drug supply, but few such offenders have a child at a private school and conduct some of their drug dealing activities from a BMW convertible.

2. The offenders appearing for sentence today are in a rare category of offender. They are people who are living a lifestyle which many others might envy. They were themselves drug addicts but their drug dealing activities appear to have gone beyond merely a means of funding their own drug habits. To fund their own drug use they could have sold the BMW, they could have pulled their son out of private school but they did not.

3. The two offenders are appearing for sentence on different charges. Andrew Lee Errington pleaded guilty at a late stage to an offence of supplying heroin on an ongoing basis and to an offence of supplying a prohibited drug, also heroin, relating to a significant quantity of that drug found in his possession.

4. Ms Christina Pantea also pleaded guilty at a late stage to an offence of supplying heroin based on her possession of a significant quantity of heroin for the purposes of supply. They each ask when I sentence them that I take into account offences of dealing with property suspected to be the proceeds of crime. A substantial sum of money is involved, almost $80,000.

5. Andrew Errington was suspected by the police of running a drug supply business. Investigations were carried out and the police suspicions were confirmed. Part of those investigations involved physical surveillance as well as electronic surveillance of mobile telephones used by Mr Errington and others. The statement of facts records a number of actual supplies of drugs to a number of people. There were five such supplies and when he was arrested he was found to have possession of 4.4 grams of heroin for the purpose of supply in a blue Tarago, 2.4 grams for the purpose of supply in the BMW and a wallet, and 30.85 grams of heroin for the purpose of supply in his home unit. There was also a much larger quantity of heroin and this forms the basis of the second charge to which Mr Errington pleaded guilty, 120.38 grams of heroin in a storage unit.

6. Ms Pantea’s plea of guilty relates to the 30.85 grams of heroin found by police in the home unit she shared with Mr Errington.

7. A remarkable feature of one act of supply by Mr Errington is this, he supplied some drugs to a woman called Bettina Rogers on 8 March 2015. After that telephone call the offender rang Ms Rogers. He was concerned that he had given her too much heroin. He frankly admitted his concern that he did not want to be responsible for her death. When the offender was supplying drugs he thus well knew the harm that he could have caused to his customers.

8. Andrew Errington’s experiences with drugs began when he was about 30. He had been in a relationship with a woman and had a daughter with her but lost contact with his daughter. A girlfriend who he was with at the time introduced him to heroin. The offender told a psychologist that he was down in the dumps. For some time he maintained a daily habit which was not that heavy. He and Ms Pantea used the drug together. He told the psychologist that they were able to hide their usage from the children, that may not have been entirely successful. After Mr Errington was stopped by police at one stage Ms Pantea rang her son and told him that Mr Errington had been arrested in possession of heroin. It is clear from the terms of the telephone call that the son was aware that Mr Errington was a drug dealer.

9. Mr Errington has made attempts in the past to rehabilitate himself to get himself off drugs but as is obvious these have been unsuccessful. Since his arrest however, he says that things have improved dramatically as far as his drug use is concerned. He spent 15 months in custody. He was released on bail and has been working as a courier, a job which he loves. He has assisted in his work by his brother who has funded the purchase of a ute for him and his nephew who assists with the physical aspects of the job. His health has improved since quitting heroin and stabilising on methadone.

10. Mr Errington did not give evidence and so why exactly it is that the offender decided to turn from being a mere drug user to a drug supplier is difficult to understand. As I began these remarks on sentence, he was not in financial difficulties and yet he made the very serious criminal decision to become a drug dealer of some significance. Fortunately, his drug dealing activities were detected by police. I say fortunately, fortunately for the community and, as it turns out, fortunately for the offender as well.

11. He is a former prison officer. Whilst in custody bail refused he lived in fear of being recognised. He has recently undergone a sleep study which has revealed that he suffers from sleep apnoea. A recommendation has been made, not only that he lose weight, but that he also use a CPAP machine.

12. Whilst on bail he has been subject to fairly strict bail conditions. It is undeniable that he has achieved a great measure of rehabilitation and that he is doing well in the community. Unfortunately he still needs to be sentenced for having committed two very serious offences. His ongoing drug supply offence relates to his street level drug dealing. His possession for the purposes of supply offence relates to a significant quantity of drugs which he intended to supply

13. As he no doubt recognises, each time he supplied drugs to another person he was harming them. Not only does drug supply harm the individual drug user but the community at large suffers too. Anyone who has spent any time in the criminal courts in New South Wales would know the enormous proportion of offences committed which are the result of drug addiction. The offender played a significant role in the business of drug dealing.

14. He has spent one year, three months and six days in custody and Mr Kirkasharian who appears for him today suggested that any custodial sentence imposed on his client could be such that he was not sent back to gaol. The level of his drug dealing activities is such that a non-parole period of one year, three months and six days would simply fail to affect the objective gravity of his conduct.

15. I will take into account in determining the length of sentence to impose upon Mr Errington that there is a risk that he will be recognised, or otherwise identified as a prison officer. There is a risk that he might have to serve some part of his sentence, if not all of it, in protection and there is a risk that if that happens his conditions of custody will be worse than those of a general prison population. Even if he is not ultimately recognised, everyday in custody he will live in fear of being recognised.

16. I will take into account in Mr Errington’s case that he has no criminal history involving any offence remotely approaching the seriousness of these offences. He has expressed his remorse to a psychologist, although as I have noted he did not give sworn evidence before me.

17. It remains the case that as I have said he has achieved a significant level of rehabilitation. I have to recognise that by sending Mr Errington back into gaol there is a risk of interruption to that rehabilitation. I do not assess the risk as being a terribly big one given everything that Mr Errington has achieved including whilst in custody beforehand, but even if it were the case that sending Mr Errington back into gaol would undo the good work that he has done, it would nevertheless be necessary to do so.

18. No-one would deny that drug dealing is serious offending and that the Courts must do what they can to deter others, people like Mr Errington, who are living a reasonable lifestyle who may be tempted to fund their own drug use and maybe even make a bit of money themselves through drug supply activities. Such people should be deterred by the prospect of heavy sentences of imprisonment being imposed upon them.

19. I turn now to Ms Pantea’s case, her drug use apparently began when she started to rebel against her parents as a teenager. She began smoking cannabis at the age of 14, using amphetamines at the age of 15, and she was using ice regularly leading up to her arrest. She has used heroin and cocaine on top of all that. She has a significant history of drug use. She drank a lot as well.

20. She has three children, two to an earlier partner and one to Mr Errington. She said to the psychologist who interviewed her that it was Mr Errington who introduced her to hard drugs. She describes a relationship with Mr Errington in which she was very much dominated by him.

21. I do have to say a couple of things about that. Firstly, like Mr Errington, she did not give evidence to that effect. Secondly, I made a ruling in the course of the evidence that that evidence to which I have just referred was not to be used in the case of Mr Errington. It may be true, it may not. Ms Pantea said it to a psychologist but her failure to give sworn evidence before me is a substantial impediment to me putting much weight on what she has said.

22. She too appears to have achieved a large measure of rehabilitation since her arrest. She has been seeing counsellors who report that she tells them that she is not using drugs and they say they have no reason to doubt her. She is caring for her youngest son, and her two oldest sons when she can. The question becomes of course whether a sentence of full time custody is required.

23. Ms Rodger who appears for Ms Pantea concedes that Ms Pantea was trafficking to a substantial degree, clearly the amount of drugs that she was in possession of for the purpose of supply are enough to establish that. But Ms Rodger says that Ms Pantea should not go to gaol full-time for two reasons. Firstly, in accordance with the principal laid down by the Court of Criminal Appeal for many years that those who traffic in drugs to a substantial degree should go to gaol full-time unless there are exceptional circumstances demonstrated, Ms Rodger says that there are such exceptional circumstances in this case.

24. The second reason Ms Rodger says that full-time custody is not required is this. The principal laid down by the Court of Criminal Appeal was laid down at a time when intensive corrections orders were not available. It is unknown what the Court of Criminal Appeal will say as to whether the rule needs to be modified now that ICOs are available.

25. Ms Rodger relies on the hardship that would be occasioned to Ms Pantea’s youngest son if she were incarcerated. I can only take into account hardship to third parties where such hardship is exceptional. Unfortunately it is not exceptional that parents go to gaol. Often these are single parents and so the gaoling of a parent often leads to a child being without the care of his or her parents. It is also, I regret to say, somewhat distasteful for an offender to commit offences, offences where a home is used to store drugs where at least one child knows about a parents drug dealing activities and where the offender must know that if she is detected as a drug dealer then she might well go to gaol, to then rely on the hardship to those children when she appears for sentence. I place greater weight on other factors relied on by Ms Rodger.

26. Ms Pantea is a woman with no prior record and has not committed any offences since her arrest for this matter. She has undertaken significant rehabilitation and putting her in gaol would risk her being granted public housing for herself and her children. There is also the rehabilitation that she has achieved that I have referred to earlier.

27. So when I consider those circumstances and when I consider that the rules to which I earlier referred was laid down at a time when ICOs were not available, I am satisfied of the following: a custodial sentence is required; it is likely to be two years or less; and if suitable I would order that Ms Pantea serve her sentence by means of an intensive corrections order.

28. Accordingly in her case I will adjourn the matter to a date to be discussed with counsel for the consideration of a report into her suitability to serve her sentence by means of an intensive corrections order.

29. I return now to Mr Errington’s case. There are special circumstances in his case, they relate to the need to ensure that upon release from his further period of custody his rehabilitation will continue. He and the community would be assisted by a longer period of supervision on parole than the statutory ratio would otherwise result in.

30. I take into account the pre-sentence custody of one year, three months and six days and so the sentence I am about to announce will commence on 18 November 2015. I impose a non-parole period of three years to date from 18 November 2015 and a head sentence of five years. The non-parole period will expire on 17 November 2018 on which day the offender is eligible to be released to parole. I note that backup charges on the s166 certificate are withdrawn.

31. ADJOURNED TO FRIDAY 28 APRIL 2017

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Amendments

20 April 2017 - Spelling correction to name of offender

Decision last updated: 20 April 2017