R v Fairbairn

[2021] NSWDC 368

District Court

New South Wales

Medium Neutral Citation:

R v Fairbairn [2021] NSWDC 368

Hearing dates:

30 July 2021

Decision date:

30 July 2021

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Full time custodial order to be served by way of an Intensive Correctional Order. For orders see [23]-[27]

Catchwords:

CRIME - Ongoing supply of the drug methylamphetamine

SENTENCING - Relevant factors on sentence - drug user - COVID related unemployment - regular drug user - sale of drugs to other dealers - number of supplies - small quantity supplied on each occasion - limited profit - early guilty plea - 7 months in custody- impact of custody – is further full time custody now required - ICO imposed

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Criminal Procedure Act 1986

Drug (Misuse and Trafficking) Act 1985

Cases Cited:

Blackman and Walters [2001] NSWCCA 121

EF v R [2015] NSWCCA 36

Hili v The Queen; Jones v The Queen (2010) 242 CLR 52; [2010] HCA 45

Mandranis v R [2021] NSWCCA 97

R v CBK [2002] NSWCCA 457 at [57].

R v Edelbi [2021] NSWCCA 122

Robertson v R [2017] NSWCCA 205

Yardley and Betts (1979) 22 SASR 108

Category:

Sentence

Parties:

Aaron Fairbairn (the offender)
Director of Public Prosecutions

Representation:

Solicitors:
Ms E Parkes, Solicitor Advocate, Legal Aid NSW (for the offender)
Ms T Lasschuit (for Director of Public Prosecutions)

File Number(s):

2020/00229276

sentence

Introduction

1. Arron Fairbairn lives with his mother and grandfather in the Wollongong area. He is 38 years old. He has worked most of his adult life. He helps care for his grandfather. He has a few matters on his criminal record but nothing related to drugs. He has however been a regular user of methylamphetamine for over 10 years.

2. When the COVID pandemic hit us in 2020 he lost his job. He did not lose his dependence on methylamphetamine. In order to support his use of the drug he supplied it, primarily to two other men, who in turn sold to other users. Fairbairn did not know that police had targeted those men, with physical and covert surveillance and telephone intercepts.

3. On 6 August 2020 he was arrested for his role in that drug supply business. He was kept in gaol until he received bail on 10 March 2021 (216 days).

4. In the Local Court, during the charge negotiation process, he accepted he was guilty of an offence of ongoing supply of the drug methylamphetamine He adhered to that guilty plea today. That offence carries a maximum penalty of 20 years imprisonment.

Facts for sentence

5. The offending occurred in June and July 2020. Police surveillance captured this offender supplying small quantities of methylamphetamine on 8 occasions at various locations in the Wollongong area. The drug was supplied as “dots.” A dot is 0.1 of a gram. In all 4.28 grams were supplied for $4,250.

6. The offender was able, and ready, to supply drugs on short notice. He would cut and weigh the drugs before delivering them for a set price. At times the men used code. At times they forgot their code words. The activity was low level and relatively unsophisticated.

Objective seriousness

7. The seriousness of the particular offence before the Court is reflected in the maximum penalty of 20 years. I must have regard to that maximum penalty when I come to determine the appropriate sentence in this case. As with all similar drug supply operations it was a crime committed without regard for community safety. While at a low level it was still organised criminal activity. As the NSW Court of Criminal Appeal has made quite clear:

“An offender charged with a s 25A offence cannot rely upon an argument that the act of supply was an isolated event. Nor can [they] expect to receive a sentence of the kind which may be appropriate for a single offence of supply. Significant sentences must be imposed in such cases in order give effect to the clear legislative intention to discourage the ongoing trade in drugs, which depends entirely upon the availability of a person such as the present [offender]:” R v CBK [2002] NSWCCA 457 at [57].

Subjective case

8. I have the benefit of a comprehensive Sentence Assessment Report (SAR). It sets out Fairbairn’s personal and drug use history. It notes his insight into his offending and his claims he has remained drug free since his arrest.

9. He was until the recent COVID lock down back at work. He was compliant and willing to accept direction and undertake community service work. Such work is available. If he remains drug free he is assessed as having a medium to low risk of reoffending. Ongoing contact with Community Corrections is not required.

10. While in custody he completed the Remand Addictions and other programs to good effect. His mother and a family friend in letter to the Court speak of the changes they have noticed in him. He appears to have taken back control of his life.

11. His employer also wrote a letter to the Court. He said Fairburn works hard and is friendly and cheerful. Work is available but has been suspended during the current lockdown. At present Fairburn subsists on the CV-19 Disaster Support Payment.

12. Fairbairn gave evidence today. He took me through his personal history and how recreational drug use became a part of his lifestyle. He said he could not pay for his drugs when work stopped during the 2020 lockdown. He made no excuses and expressed appropriate remorse.

13. He said that gaol was “shattering… I saw things I wished I hadn’t.” He used his time in his cell to think. He appears to have learned from a harsh lesson.

14. He told me he has no desire to go back to his old chaotic life. Drug free he is a better person. He is presently caring for his grandfather. He will go back to work as soon as the lockdown restrictions are lifted. He has sound plans for the future that do not involve past criminal associates.

Submissions

15. Ms Lasschuit, Solicitor, for the Director of Public Prosecutions, accepts that only a relatively small quantity of methylamphetamine was supplied; less than the indictable quantity of 5 grams. She submits that only a custodial sentence could meet the purposes of sentencing and reflect the seriousness of the offence. She recognises however that the offender, having spent time in gaol, now has some insight into his offending and can give something back to the community by performing community service.

16. For the offender, Ms Parkes, noted that given the early plea, the small quantity of drug supplied and the time in custody on remand, a sentence of less than two years could be imposed. She then put a powerful case for it being served in the community given Fairburn’s demonstrated progress toward rehabilitation.

Synthesis

17. Significant sentences are generally required for matters such as this because the ongoing trade in drugs depends entirely upon the availability of a person such as Fairbairn. But each offence and each offender is different. Sentencing Judges must balance often complex, and sometimes competing or contradictory, factors in each individual case: Robertson v R [2017] NSWCCA 205; Hili v The Queen; Jones v The Queen (2010) 242 CLR 52; [2010] HCA 45.

18. Proper recognition of the serious social implications of drug dealing (reflected, if in nothing else, in the maximum penalty) suggests that, in the ordinary case, a sentence other than imprisonment will fail to meet one import sentencing objective – deterrence: Robertson v R. But, it is recognised that there will be exceptions. As this was relatively low level offence a sentence of less than two years can properly be imposed. Then offender has shown promising signs of progress toward rehabilitation. Accordingly, an Intensive Correction Order ought to be given full, fair and genuine consideration: EF v R [2015] NSWCCA 36.

19. I am sure Fairbairn has learned some important lessons from his time in gaol. He spent that time subject to COVID restrictions. He has considerable incentives not to return to drug use and drug supply. He can give something back to the community. But the best thing he can do is remain drug free.

20. Ultimately, the aim of any sentencing exercise must be community safety. It can be achieved by removal of an offender from the community but as he cannot be locked up for longer than the circumstances of his crime requires it is best achieved by positive behavioural change. Community safety as the term is used in s 66 Crimes (Sentencing Procedure) Act 1999 is therefore inextricably linked with considerations of rehabilitation.

21. The protection of the community is contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of: Yardley and Betts (1979) 22 SASR 108 applied in Blackman and Walters [2001] NSWCCA 121.

22. There must be a custodial sentence. Had it not been for your early guilty plea a sentence of 2 years 8 months would have been imposed. That sentence must be reduced by 25% to reflect the utilitarian value of that plea: s25A Crimes (Sentencing Procedure) Act 1999. I must also give credit for the 7 months spent in custody: s24 (a) Crimes (Sentencing Procedure) Act 1999; Mandranis v R [2021] NSWCCA 97; R v Edelbi [2021] NSWCCA 122.

Orders

23. Mr Fairbairn, in accordance with your guilty plea, adhered to today, you are convicted.

24. Your sentence will commence today. There will be sentence of 1 year 5 months. That sentence is to be served subject to intensive correction in the community.

25. The standard conditions of the order apply: ss 73(1), 73(2)

1. You must not commit any offence; and

2. You must submit to supervision by a community corrections officer.

26. The following additional conditions apply: s 73A(2):

1. a community service work condition requiring the performance of community service work for 100 hours.

2. To accept the guidance and supervision of Community Services NSW and obey all reasonable directions of that service including acceptance of referral to a Drug and Alcohol rehabilitation maintenance program, if required.

27. You must attend the Registry at Wollongong Court before 3:30PM today in order to enter those orders. You have my permission to enter the building and security will be advised you are attending.

28. The backup matters on the s 166 Criminal Procedure Act 1986 Certificate are marked – withdrawn and dismissed.

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Decision last updated: 30 July 2021