R v Fossey

[2014] NSWDC 49

District Court

New South Wales

Medium Neutral Citation:	R v Fossey [2014] NSWDC 49
Hearing dates:	27 March 2014
Decision date:	27 March 2014
Before:	Berman SC DCJ
Decision:	The offender is referred for assessment as to his suitability to serve his sentence by way of an Intensive Corrections Order
Catchwords:	CRIMINAL LAW - Sentence - Form 1 - Drug supply - Cocaine - Delivery person
Category:	Sentence
Parties:	The Crown Adam Fossey
Representation:	Counsel: Mr Williams - Offender Solicitors: Director of Public Prosecutions
File Number(s):	2013/94451

Sentence

1. HIS HONOUR: The offender, Adam Fossey, a man of 27 years of age and thus some maturity, made the decision one day that he would involve himself in drug supply. That was not only an unwise decision, it was a criminal one. It is remarkable that Mr Fossey who has done much that he can be proud of in his life, and who has no prior convictions, should decide to become a drug supplier simply as a favour for his flatmate.

1. Police became aware of the matter when they observed what appeared to be a transaction involving the supply of drugs. They saw a man approach a motor vehicle driven by Mr Fossey. There was a short conversation and the two separated. Police then stopped the vehicle driven by Mr Fossey and searched it. They found a substantial quantity of cocaine in three bags in the centre console of the car.

1. Mr Fossey now faces charges involving the supply of 27.74 grams and asks that when I sentence him for that matter I take into account on a Form 1 a charge relating to the possession of 1.95 grams of cocaine. Fortunately for the offender police were able to intercept telephone calls which revealed his role. Those telephone calls suggested that it was the offender's job to pick up the drugs and to deliver them, thus I have no trouble accepting the categorisation of the offender's role that Mr Williams puts forward. His role was to accept drugs and deliver them to someone else. That of course is still a serious criminal matter. The maximum penalty indeed is imprisonment for 15 years.

1. Anyone who has been involved in the criminal law for any length of time can understand why drug supply offences are treated as seriously as they are. The commission of such crimes harms not only the users of the drugs but, like ripples on a pond, the harm spreads outwards, as drug users commit crimes to obtain money to purchase their drugs, as drug suppliers import drugs to meet their demand and in a very real sense the entire community suffers because of offences such as this. It is easy to simply look at the offender's conduct and say all he did was on one occasion to get drugs intending to move them to another place but for the reasons I have just outlined any involvement in drug supply, including involvement as a delivery person, is serious criminal conduct.

1. The offender's background was described by a psychologist who prepared a report for the Court as "average". His parents separated when he was six and he has had little contact with his mother since then. He was brought up at first by his father but then moved in with his grandparents, with his grandmother becoming his primary carer. He did well enough at school and after leaving school has an enviable work history. He worked selling televisions but then decided on a change of career and moved into personal training. That was not much of a success, he had difficulty getting clients and of course those clients he did have wanted to do their personal training outside normal work hours, with the result that Mr Fossey was working very early in the morning to late at night, with a large gap in the middle.

1. What led to the commission of this offence is the offender's involvement with less than desirable friends and companions after he moved into accommodation in Rushcutters Bay. He was vulnerable at the time because of a number of circumstances. Firstly his grandmother, who was more like a mother to him, passed away. That led to an increased use of both drugs and alcohol on the offender's part. He also had a falling out with his father with the result that they were not speaking. He experienced depression, anxiety and stress. It was in those circumstances that when his flatmate ask that he obtain the drugs and deliver them to him he said yes.

1. Since the commission of this offence things have changed. He is now living again with his father and his stepmother. He is seeking help from a psychologist and he is not associating with those with whom he used to associate. It is to be hoped that this offence is a one-off matter. References tendered today attest to the underlying good character of the offender. There is a reference from his current employer, this speaks very highly of him. It appears that that reference was made in circumstances where the referee was made aware of the charge involving drugs. Notwithstanding that disclosure the offender is highly regarded by his employer and it appears that he has a future there. Other references reveal that this offence is very much out of character and can be explained by the particular circumstances which I have referred to earlier.

1. Consistent with the offender's attitude towards his offending, he has pleaded guilty at the earliest opportunity so the sentence I impose upon him will be 25% less than it would otherwise have been.

1. Of course there is a wellknown principle of law that must be applied here. Those who traffic in drugs to a substantial degree must ordinarily receive a sentence of full time custody unless there are exceptional circumstances. That principle of law is subject to one qualification, the cases which stated that principle all pre-date the introduction of the sentencing option of an Intensive Corrections Order. No case that I am aware of has examined the application of that principle now that such a sentencing option is available.

1. In any case however I am not satisfied that the offender was trafficking to a substantial degree. Of course one-off supplies can nevertheless be categorised as trafficking to a substantial degree, but in this case where it was a single occasion involving a relatively small quantity of drugs and the offender's role was limited to being that of a delivery man, I am able to say without any hesitation that this was not trafficking to a substantial degree. Thus exceptional circumstances need not be demonstrated in order to avoid a full time custodial sentence. On the other hand there is no principle of law that says those who are not trafficking to a substantial degree should not receive sentences of full time imprisonment in an appropriate case.

1. Sentences of imprisonment are very much sentences of last resort, but a fundamental rule in sentencing is that a sentence must reflect the objective gravity of an offender's conduct. Acting as a delivery man for your flatmate whereby you collect drugs and deliver them to him is, as I have made clear I trust, serious criminal conduct. I am satisfied that a sentence of imprisonment is therefore required.

1. Mr Williams suggests that it would be appropriate to suspend such a sentence, in the event of course that the sentence I have selected is two years or less. I do not propose to suspend the sentence of imprisonment. As the Crown accurately pointed out general deterrence is of importance in this case. People involve themselves in drug supply activities for various reasons. Some seek to make a profit out of it, some seek to support their own drug habits, but whatever the precise cause it is undeniable that many people do engage in drug supply and those offences cause great harm. General deterrence is of prime importance in this case. I do not consider that a suspended sentence of imprisonment would have sufficient deterrent effect. I am however prepared to investigate the possibility of the offender being able to serve his sentence of imprisonment other than by full time custody. I have decided that the sentence I will impose upon him, taking into account the matters on the Form 1 is likely to be two years or less. Accordingly I will grant him bail and refer him for assessment as to his suitability to serve that sentence of imprisonment by means of an Intensive Corrections Order.

1. Mr Fossey's bail is therefore continued to 2 o'clock on 23 May and I request an CO report. I will also order a transcript of my remarks that I have just delivered. I note that the matter on the 166 certificate has been taken into account on the Form 1.

ADJOURNED TO FRIDAY 23 MAY 2014 AT 2PM

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Decision last updated: 12 May 2014