R v Fisher

[2019] NSWDC 299

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Fisher [2019] NSWDC 299
Hearing dates:	28 June 2019
Decision date:	05 July 2019
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Conditional Release Order without proceeding to conviction; for orders see [59]
Catchwords:	Supply prohibited drugs; young offender
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Nicholas Daniel Fisher (Offender)
Representation:	Counsel: C Newlan (Offender)   Solicitors: A Trajkovski (Crown)
File Number(s):	18/310412
Publication restriction:	Nil

REMARKS ON SENTENCE

1. The offender is to be sesntenced for an offence of supply prohibited drug, namely 5.68 grams of 3,4 Methylenedioxy-methylamphetamine pursuant to s 25(1) of the Drug Misuse and Trafficking Act 1985 (“DMTA”). The maximum proscribed for the offence is 15 years imprisonment and there is no Standard Non-Parole Period.

2. The offender has asked to be dealt with on a Form 1, one charge of possess prohibited drug, namely, 1.2 grams of cannabis pursuant to s 10(1) of the DMTA. The penalty for that offence is a fine of 20 penalty units or imprisonment for a term of 2 years, or both. The offender admitted his guilt in respect of this charge.

3. The offender was born in February 1999, and the offences occurred on 2 June 2018 when he was 19 years of age.

The sentence hearing

4. The sentence hearing took place on 28 June 2019. The Crown Sentence Summary became Ex A. It contained an Agreed Statement of Facts which may be summarised as follows.

5. At 8.15pm on Saturday 2 June 2018, a motor vehicle driven by a co-offender, Mr Michael Chidgey, was stopped by police for the purpose of a random breath test. The offender was seated in the front passenger seat of the vehicle and police formed a suspicion that there may be cannabis inside the vehicle. The offender told police there was a small amount of cannabis, and retrieved a clear resealable bag from the front passenger seat. The bag contained 1.2 grams of cannabis and the offender was arrested and cautioned for possession of a prohibited drug. That is the offence the subject of the Form 1.

6. Police then conducted a search of the offender and his personal property, during which they located a black coloured satchel in which they located a clear resealable plastic bag containing a quantity of 20 capsules, which subsequent analysis confirmed contained a total of 1.98 grams of 3,4 methlenedioxy-methylamphetamine. The offender was cautioned before being asked about the capsules, before stating, “It’s MDMA, I’m taking them to a party”.

7. Police informed the offender that the vehicle would be thoroughly searched. The offender told the police that there was a shoebox within the vehicle, “with some stuff in it”. A search revealed a white rectangular cardboard shoebox within the foot well area, where the offender had previously been seated, containing the following items:

1. A large quantity of clear capsules;

2. A set of electronic digital scales;

3. A container of “clear eyes”; and

4. A plastic tub which contained a crystal rock-like substance.

8. The crystal substance was analysed as 3.70 grams of methylenedioxy‑methylamphetamine. When asked about the contents of the plastic tub, the offender told police, “it’s MDMA, I’m taking it to a party”. Police also located a bong within the vehicle with what appeared to be cannabis residue in it.

9. When interviewed by police in relation to this matter, the offender made an admission as to the MDMA and told police that the 20 capsules were to be consumed at a party between friends. He had paid $500 for the drugs. When asked what he planned to do with the contents of the white shoebox, the offender answered “same as I said earlier”. The offender told police that about 50 capsules could be constructed with the MDMA located in the plastic box. When asked whether he planned to sell the capsules at a later time, he told police, “No, I got them for this one occasion, being a party”.

10. The offender has no criminal antecedents. Exhibit A also contained a certificate pursuant to s 166 of the Criminal Procedure Act 1986 for the same offence of possess prohibited drug, which was the subject of a Form 1.

The offender’s evidence

11. The offender relied on the following documentary evidence.

12. Exhibit 1 was a letter from Mr Paul Cole, dated 5 June 2019. Mr Cole is the offender’s employer and described him as being “extremely trustworthy and reliable”. Mr Cole was aware of the offender’s charges and was supportive of him.

13. Exhibit 2 was a report from the offender’s treating psychologist, Hamid Attai. The offender had been referred to Mr Attai by Dr Tam on 14 March 2019 and had been seen on a regular fortnightly to monthly basis for eight treatment sessions. Mr Attai stated that the offender had displayed remorse and contrition for his criminal conduct. He had a history of recreational drug use with MDMA and marijuana. He had also been diagnosed with ADHD since childhood, and was under the supervision of his GP and psychiatrist for that condition.

14. Since being charged, the author noted that the offender reported not using MDMA and his marijuana had significantly decreased from daily use to smoking it on only two occasions. Psychometric testing revealed a moderate score for depression, a severe score for anxiety and a moderate score for stress.

15. The author noted that the offender was motivated to engage with counselling services to assist his underlying psycho-pathology and problematic drug use, and to demonstrate a willingness to correct his behaviours. He was now taking his medication for ADHD, namely, Concerta, and was engaged in full-time work, voluntarily fortnightly drug testing, going to TAFE and doing the Smart Recovery Program.

16. Mr Attai recommended the offender continue a course of psychological treatment for a period of six months aimed at developing further skills at managing his anxiety and drug use, and to assist with relapse prevention.

17. Exhibit 3 was a psychological assessment report under the hand of Laura Durkin dated 13 May 2019. In that report the author set out the offender’s family and development history. He was the youngest of three children and had a close relationship with his mother. Over the last 10 years his family had experienced a number of stressors which included the offender’s father being diagnosed with cancer, his mother suffering a significant back injury, which limited her ability to parent the offender and his siblings. In the last 12 months before his offending, various health issues plagued the extended family, including his two grandfathers, and in May 2018, a cousin died suddenly for no apparent cause. All of these matters caused the offender to struggle with his schooling and subsequently work, and led to a deterioration of his mood and he reportedly became increasingly hopeless and apathetic.

18. The author reported that the offender had a transient work history, however, he was now in employment as an apprentice electrician and hoped to qualify after completing the necessary training at TAFE. He hoped to join the armed forces as an electrician in the future.

19. The author noted that the offender was diagnosed in mid-adolescence with ADHD and was prescribed Concerta, but was not medication compliant at the time of his offending. He has now recommenced his medication.

20. The author noted that the offender had commenced using alcohol, cannabis and MDMA since mid-adolescence to manage his “issues”, which he defined as anxiety and feelings of failure, inadequacy and a lack of ability. From 15 years of age he developed and maintained a binge drinking pattern until the time of his arrest. He was also smoking cannabis daily and was introduced to MDMA when he was 17 years of age. Prior to his arrest he was consuming up to 15 pills of MDMA over a course of a weekend. He had experimented with other prohibited drugs, but described that use as “rare and intermittent”.

21. The author noted that since December 2018 the offender had been attending Smart Recovery meetings on a regular basis, from which he had gained skill and strategies to prevent relapse into drug use.

22. The author opined that:

“Drug abuse and association with drug‑using peers, familial stress, underlying self-esteem issues and ADHD appeared to have contributed to the offending in this case.”

23. The author noted that his rehabilitation had progressed, and that his prognosis was considered positive. He was described as:

“A competent and resilient young man who appears to have matured somewhat after experiencing the aforementioned challenges and the shock of the arrest.”

24. The author described the offender as being likely to be vulnerable in gaol generally, and opined that he should be encouraged to maintain his apprenticeship and continue to pursue training and his career.

25. Exhibit 4 was a statement from the offender to the court dated 13 June 2019. In it, the offender stated that he understood the serious impact his behaviour had had on his mental health and the impact of his criminal conduct on his mother and family members. He expressed his remorse and took responsibility for his actions. He expressed a desire to work as an electrician in the Air Force, and to travel overseas. He described the time since his arrest as “a huge wakeup call to me”. He had made a huge effort to turn his life around.

26. Exhibit 5 comprised letters from the offender’s mother and a family friend, Ms Sue Lorenz-May, which set out details of the family background, and the events which led to stressors in the offender’s life, prior to the offending. They speak highly as to his character and the detrimental impact on him of some significant and unfortunate events in his family. They also attest to his extreme remorse for his criminal conduct and the active steps that he has taken to turn his life around.

27. The offender gave sworn evidence of his work as an apprentice electrician. He had one year to complete of his TAFE course and had disclosed the criminal charges to his employer. The offender was still under the care of a psychiatrist, Dr S Yensen, for his ADHD, and was taking 27 milligrams of Concerta daily. Following the sentence hearing, the offender’s solicitor forwarded a letter from Dr Yenson confirming his diagnosis and treatment, and that the offender was compliant with his medication treatment.

28. The offender gave evidence that he was attending the Smart Recovery program every week. There he had learnt self-help, and had been given strategies and advice to cope with his problems with drugs, including drug management and avoidance strategies.

29. When asked what he wanted for the future, the offender gave evidence that he wanted to repay his mother, save up money for a utility vehicle and a holiday, and eventually seek a role in the Air Force as an electrician. He was determined not to use drugs any more.

30. In cross-examination, the offender said that he had not used drugs since his arrest. He was sorry for not living up to the standards that he grew up with and that were expected of him and that he had let the community down by his criminal conduct. He was determined to continue his rehabilitation.

The Crown submissions

31. The Crown relied on a written outline of submissions setting out general principles of sentencing in respect of drug offences.

32. The Crown submitted that the objective seriousness of the offence of supply prohibited drug, namely, 5.68 grams of MDMA, was objectively serious, but fell below the mid-range of offences pursuant to s 25(1) of the DMTA. The trafficable quantity was 0.75 grams, and the indictable quantity is 1.25 grams. The total here of 5.68 grams therefore fell between four and five times the indictable quantity. Also found within the vehicle was a set of scales and other indicia of dealing in drugs.

33. The Crown submitted that given the prevalence of this type of offence, specific deterrence and protection of the community ought to be paramount considerations in this sentencing exercise.

34. The Crown submitted that the following were mitigating factors:

“(1) Section 21A(3)(k) – a plea of guilty was entered at the earliest possible time in the Local Court, thereby entitling the offender to a utilitarian discount of 25%.

(2) Section 21A(3)(f) – the offender had no prior criminal convictions and could be said to be of good character. He was “relatively young”.

35. The Crown submitted that principles of parity did not apply here. The co‑offender was sentenced in respect of a charge of driving with illicit substance in his blood, and was sentenced by way of a Conditional Release Order with no conviction for a period 12 months. The Crown submitted that parity was not of significant concern due to the disparity in the offences, however, both were drug related.

36. Finally, the Crown sought a drug destruction order pursuant to s 39P of the DMTA. This was incorrect, as s 39P provides for the return of substances, not the destruction thereof. The power to destroy substances is found in s 39F of the DMTA.

37. In oral submissions, the Crown submitted that when assessing the subjective material relied on by the offender, it was notable that there was no report from his treating psychiatrist, and therefore no evidence of the nature and extent of, and severity of, his ADHD. Having regard to the objective seriousness of the offending, a conviction was warranted in this case.

Offender’s submissions

38. Counsel for the offender also relied on a written outline of submissions. There were no aggravating features and the following mitigating factors should be taken into account pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”):

“(b) the offence was not part of a planned or organised criminal activity;

(e) the offender does not have any record of convictions;

(g) the offender was unlikely to re-offend;

(h) the offender had good prospects of rehabilitation;

(i) the offender had shown remorse; and

(k) the offender had pleaded guilty.

39. Counsel for the offender submitted there was significant subjective features to take into account here. The offender was 19 years of age at the time of the offending and he had no criminal antecedents. He had since the offending obtained employment full-time as an apprentice electrician and was attending classes at TAFE. He had the benefit of a letter of support from his employer, Mr Cole. The offender had also engaged in the Smart Recovery program and was receiving medical treatment from a psychiatrist and drug counselling from a psychologist. The psychologist had concluded that the offender was engaging with treatment and was motivated to make amends for his behaviour. He had a positive prognosis, given that his risk of re-offending was being actively managed. The court would also take into account the subjective matters set out in the report of Laura Durkin, as well as the character reference from Ms Lorenz-May.

40. It was submitted that the offender had excellent prospects of rehabilitation, given his clean record and his engagement with counselling and medical treatment. It was submitted that the need for specific deterrence here was low, that the offender had admitted his guilt and expressed remorse and contrition for his criminal conduct. Further punishment would not lead to a better outcome.

41. Counsel for the offender submitted that a Conditional Release Order would be appropriate in the circumstances for this offender. Further, having regard to his age, character, antecedents and good prospects for rehabilitation, it was submitted that the offender is a suitable candidate for the exercise of the discretion under s 10 of the CSPA.

42. Counsel for the offender also provided JIRS statistics in respect of offences pursuant to s 25 of the DMTA. It was notable that for offenders within the same age group as this offender, namely, 18 to 20 years, the statistics demonstrated that of 315 cases, 47 were disposed of by way of a s 10(1) bond, amounting to 15% of the total.

43. In his oral submissions, counsel highlighted the significant subjective factors to be taken into account in the sentencing process here, in particular, the progress made by the offender with his rehabilitation and the family support provided to him. It was submitted in all those circumstances the court would make a Community Release Order with no conviction.

Determination

44. Section 3A of the C(SP)A sets out the purposes of sentencing as follows:

“3A The purposes for which a Court may impose a sentence on an offender are as follows:

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community.”

45. In assessing the objective seriousness of the offending pursuant to s 25 of the DMTA, the court is to take into account both the quantity of prohibited drugs involved, and the offender’s role in the drug supply enterprise. I accept here the Crown submission that the objective seriousness of the offending in respect of the charge of supply prohibited drug pursuant drug pursuant to s 25(1) of the DMTA fell below the mid-range for an offence of that type. Whilst the quantity of MDMA was between four and five times the indictable quantity, the section covers a wide range of drug supply type offending. I take into account, however, that there was present and in the offender’s possession, drug supply indicia including a set of electronic scales and a large quantity of empty capsules. Having regard to all of the circumstances, and the admissions made by the offender, both as to the drugs and his intended use of them, I am satisfied that the objective seriousness of the offending fell just above the middle of the low range for an offence pursuant to s 25(1) of the DMTA. It still constituted serious offending.

46. I take into account the offender’s early plea of guilty for which he is entitled to a utilitarian discount on sentence of 25%. I also find that he is genuinely remorseful for his criminal conduct and has taken responsibility for it.

47. The offender has progressed his rehabilitation by both attending the Smart Recovery program, regularly attending counselling with his psychologist, and undergoing regular treatment by his treating psychiatrist, including being compliant with his medication regime for his ADHD. I am satisfied that he has made significant progress with his rehabilitation, notwithstanding that he had on two occasions consumed cannabis following his arrest. I am satisfied in all of the circumstances that he has good prospects of rehabilitation.

48. General deterrence is important in sentencing for drug supply matters. A clear message must be sent to the community that Parliament has proscribed harsh maximum penalties for such offences and the courts will, in appropriate cases, impose lengthy custodial sentences for them. The evil that is done by drug supply offences in the community is well documented and a clear message must be sent to those in the community that they will be severely punished if they engage in such criminal behaviour.

49. Specific deterrence is also important in that the offender must understand the seriousness of his conduct and the consequences attached to that conduct. He has, however, learnt a salutary lesson by this experience.

50. I have had regard to the maximum penalty for this offence of 15 years imprisonment and/or 2000 penalty units, or $220,000. This is a guidepost in the sentencing process. I have also taken into account the mitigating factors relied on by the offender and set out above, namely, that the offence was not part of a planned or organised criminal activity, that the offender does not have any record of previous convictions, that he is unlikely to re-offend and that I have found that he has good prospects of rehabilitation.

45. I also take into account the offender’s genuine remorse.

46. There are significant subjective features to be taken into account here. The offender was very young, namely, 19 years of age, at the time of his offending. In the years prior to that, a number of stressors had arrived in his life by virtue of ill health and injury to his parents, injuries sustained to grandparents and the death of his young cousin. Imposed on a pre-existing diagnosis of ADHD, for which he had become non-compliant with his medical regime, the offending here was a consequence of his development of social isolation and anxiety.

47. I also take into account the significant progress that the offender has made with his rehabilitation, and the fact that he has full-time employment and the ongoing support of his employer.

48. I also take into account that he has no criminal convictions and, having learnt a salutary lesson, he is unlikely to offend again.

49. A new sentencing scheme was introduced in New South Wales by way of the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017. This led to changes from 24 September 2018 in the sentencing options in the CSPA. Section 9 of the CSPA provides as follows:

“9 Conditional release orders

(1) Instead of imposing a sentence of imprisonment or a fine (or both) on an offender, the court that finds a person guilty of an offence may make a Conditional Release Order discharging the offender, if:

(a) the court proceeds to conviction, or

(b) the court does not proceed to conviction but makes an order under s 10(1)(b).

(2) In deciding whether to make a Conditional Release Order with a conviction, the sentencing court is to have regard to the following factors:

(a) the person’s character, antecedents, age, health and mental condition;

(b) whether the offences are of a trivial nature;

(c) the extenuating circumstances in which the offence was committed;

(d) any other matter that the court thinks proper to consider.

Note: these factors are considered under s 10 in respect of an order under s 10(1)(b) in connection with a Conditional Release Order without a conviction.

(3) To avoid doubt and without limitation:

(a) a fine and a Conditional Release Order cannot be imposed in relation to the offender in respect of the same offence, and

(b) a Conditional Release Order with a conviction may be made as an alternative to imposing a fine.

(4) This section is subject to the provisions of Part 8.”

56. Also relevant is s 10 which provides as follows:

“10 Dismissal of charges and conditional discharge of offender

(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders:

(a) an order directing that the relevant charge be dismissed;

(b) an order discharging the person under a Conditional Release Order (in which case the court proceeds to make a Conditional Release Order under s 9);

(c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.

(1A) A reference in any legislation (including this Act) to an order under this section includes, in the case of an order under ss (1)(b), a reference to a Conditional Release Order made under s 9 pursuant to that paragraph.

(2) An order referred to in ss (1)(b) may be made if the court is satisfied:

(a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or

(b) that it is expedient to discharge the person under a Conditional Release Order.

(3) In deciding whether to make an order referred to ss (1), the court is to have regard to the following factors:

(a) the person’s character, antecedents, age, health and mental condition;

(b) the trivial nature of the offence;

(c) the extenuating circumstances in which the offence was committed;

(d) any other matter that the court thinks proper to consider.”

57. Here, the offender’s character, lack of criminal antecedents, age and health and mental condition, together with the extenuating circumstances which led to the offending, support the making of a Conditional Release Order. The fact that the offence was not of a trivial nature contra-indicates such an order. Notwithstanding that, a Conditional Release Order is appropriate here given the progress made by the offender with his rehabilitation, his full-time employment and his ongoing need for supervision and access to treatment programs in the community. The purposes of sentencing are therefore met by the imposition of a Conditional Release Order, the real question here being whether the court proceeds to a conviction. A conviction can have deleterious impacts on a person’s life, including employment prospects and travel restrictions, particularly a conviction for a drug supply offence. In the case of such a young person starting out on his career, such impacts can be draconian, and out of proportion. Given his youth and lack of criminal antecedents, I am therefore persuaded to sentence the offender by way of a Conditional Release Order without conviction. It must be understood, however, that the matter that he asked the court to take into account on the Form 1, must lead to some accumulation on sentence. I intend therefore to sentence the offender, pursuant to s 10(1)(b) of the CSPA, to an order discharging him under a s 9(1)(b) Conditional Release Order without proceeding to a conviction. The term of the order is to be for a period of 18 months. The order will be subject to conditions which are outlined below.

58. Principles of parity do not apply here with respect to the sentence of the co‑offender. He was charged with a different and less serious offence, and sentenced in the Local Court.

Orders

59. I make the following orders:

1. Pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999, an order is made discharging the offender under a s 9(1)(b) Conditional Release Order without proceeding to conviction.

2. The term of the order is for a period of 18 months from 5 July 2019.

3. The standard conditions of the orders apply:

1. You must not commit any offence, and

2. You must appear before the court if called on to do so at any time during the term of the order.

4. The following further conditions will apply:

1. You are to remain under the care and treatment of your treating psychiatrist for the term of the order and remain compliant with any medication regime prescribed for you.

2. You are to remain under the care of your treating psychologist and undergo any recommended counselling for as long as your psychologist deems appropriate in respect of drug and alcohol counselling and relapse prevention.

5. You are directed to attend the court registry where a copy of this order will be explained and given to you pursuant to s 17I and 17J of the CSPA.

6. The drugs the subject of the offences are to be destroyed.

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Amendments

17 July 2019 - Cover page - "Decision" changed to "Conditional Release Order without proceeding to conviction".

Decision last updated: 17 July 2019