R v Frankcom

[2021] NSWDC 294

District Court

New South Wales

Medium Neutral Citation:

R v Frankcom [2021] NSWDC 294

Hearing dates:

25 March 2021; 4 June 2021; 1 July 2021

Decision date:

01 July 2021

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Sentenced to a term of imprisonment of 2 years 5 months. Non parole period of 12 months.

Catchwords:

CRIME – supply commercial quantity methyl amphetamine - criminal group

SENTENCING – procedure - application to withdraw Form 1 to allow for aggregate sentence – whether application unseemly – whether aggregate sentence appropriate interests of justice require rejection

SENTENCING – Relevant factors - early guilty plea -part of criminal group – parity - user dealer - recruited others - not a sophisticated operation - first gaol term - very positive efforts at rehabilitation - insight and remorse shown - strong family support - serious medical condition – length of sentence – gaol may impede progress toward rehabilitation - no ICO available given length of sentence - significant finding of special circumstances

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Criminal Procedure Act 1986

Drug (Misuse and Trafficking) Act 1985

Justice Miscellaneous Bill 2021

Cases Cited:

Abel v R [2020] NSWCCA 82

Afu v R [2017] NSWCCA 246

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146

Cahyadi v R [2007] NSWCCA 1

Brown v R [2020] VSC 60

Cross v R [2019] NSWCCA 280

Green v The Queen (2011) 244CLR 462

Hamzy v R (1994) 74 A Crim R 341

Henry v R (1999) 46 NSWLR 346; (1999) 106 A Crim R 149

Jadron v R [2015] NSWCCA 217

Mandranis v R [2021] NSWCCA 97

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Lindsay v R [2012] NSWCCA 124

Muldrock v The Queen (2011) 244 CLR 120

Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17

Parris v R [2013] NSWCCA 5

R v Burrell (2000) 114 A Crim R 207

R v Ceissman [2004] NSWCCA 466 at [24];

R v Dekker; R v Kominkovski [2021] NSWDC 186

R v L, NSWCCA unreported, 17/6/96

R v Pullen [2018] NSWCCA 264

R v Sellen (1991) 57 A Crim R 313

Robertson v R [2017] NSWCCA 205

Smith (1987) 44 SASR 587

Tepania v R [20018] NSWCCA 247

Wanyv DPP [2020] NSWCA 318

Category:

Sentence

Parties:

Joshua Peter Frankcom (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr W Tuckey (for the offender)

Solicitors:
Legal Aid NSW (for the offender)
Mr M Rollestone (for Director of Public Prosecutions)

File Number(s):

2019/00354344

SENTENCE

Introduction

1. In the Local Court Joshua Frankcom indicated he was guilty of supplying a commercial quantity of a prohibited drug, being 311 grams of methylamphetamine: s25 (2) Drug (Misuse and Trafficking) Act 1985; maximum penalty 20 years imprisonment; standard non-parole period 10 years. He has adhered to that guilty plea in this court. Frankcom also asked, initially, that when I sentence him I take into account on a Criminal Procedure Act 1986 Form 1 the offence of participate in criminal group: s 93T Crimes Act 1900.

A late application

2. When Frankcom’s matters were before the Local Court and subject to the Early Guilty plea provisions of Part 2 Criminal Procedure Act 1986 it was agreed that his various drug supply matters would be rolled up into one supply commercial quantity offence and that a participate in a criminal group offence would be placed on a Form 1. When the matter commenced before me on 25 March 2021 the guilty plea was adhered to and I was asked to take the Form 1 into account when I sentenced Frankcom for that offence. I formed the view that it was appropriate I do so as the criminal group offence was inherently linked to and provided the context for the various rolled up supplies: s 33(2)(b) Crimes (Sentencing Procedure) Act 1999. I signed the Form 1 that had previously been signed by the offender. The matter was adjourned to 4 June 2021.

3. On that day an open discussion took place. I indicated that, while I was mindful of the fact that a fulltime custodial sentence could impede the offender’s undoubted progress toward rehabilitation and place him at risk because of his medical condition, disposition by way of a sentence served by intensive correction in the community was unavailable as the single sentence I had to impose must exceed 2 years.

4. Mr Tuckey, for the offender, asked for an adjournment so that he could consider whether to make an application to withdraw the agreement to the Form 1 procedure and to consider whether additional evidence might be tendered; evidence that might compel a further reduction in sentence and allow for the Intensive Correction Order (ICO) option.

5. Mr Rollestone, for the Director of Public Prosecutions (DPP), maintained his position that only a sentence of full time imprisonment could properly meet all the purposes of sentencing, in particular general deterrence. While he said he would seek instruction from the Director about whether consent would be given to the withdrawal of the Form 1, he indicated his opinion that such a course would not be appropriate. He said that if additional evidence was able to be put before the court there would be no objection to its tender.

6. Section 68 Crimes (Sentencing Procedure) Act 1999, in its terms, allows for the following options; described by the Court of Criminal Appeal (CCA) as “anomalous” and “highly counter-intuitive:” Abel v R [2020] NSWCCA 82.

1. An Intensive Corrections Order (ICO) is available for a sentence between 2 and 3 years if an aggregate sentence is imposed but not if there is a sentence for a single offence and the other offence is on a Form 1.

2. If a sentence between 2 and 3 years is imposed, an ICO may be made if it is an aggregate sentence. An ICO cannot be made if there is a total effective sentence in that range but one of the individual sentences exceeds 2 years: Abel at [4]

3. Concurrent sentences of between 2 and 3 years are not eligible for an ICO, but an ICO is an available option if an aggregate sentence of the same length or under 3 years is imposed: R v Pullen [2018] NSWCCA 264 at [83]; Cross v R [2019] NSWCCA 280.

7. In Abel Justice Button commented in a negative way on the propriety of a judge allowing the withdrawal of a Form 1 effectively at the conclusion of his or her remarks on sentence. To do so he said was “unseemly.”

8. Although the point was not argued His Honour expressed his doubts whether an application to have an offence taken into account on a Form 1 could simply be “withdrawn” after (at the latest) the closure of the evidence in the proceedings on sentence. He seriously doubted whether a Form 1 could be withdrawn right at the conclusion of the remarks on sentence.

9. Justice Button noted that when an offence is taken into account on a Form 1 it does not lead to imposition of a sentence for that offence: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146. He respectfully opined that Parliament should reconsider the mechanics of the current structure whereby the circumstances in which an ICO may be imposed are restricted. Justice RA Hulme specifically agreed with those comments.

10. The anomalies were not addressed in the most recent Justice Legislation Amendment Acts. I understand that a proposal to amend s 68(1) to remedy anomalies that limits the availability of ICOs has not yet been “progressed” by the Department of Communities and Justice and will not be included in Justice Miscellaneous Bill 2021

11. Mr Tuckey did ask that I give my leave to the withdrawal of the Form 1. The application was opposed. At the time I indicated the application would be refused and that I would give my reasons today.

12. To allow the application would reverse the Local Court charge negotiations process already undertaken. It would also, in a general sense, work to undermine that process.

13. Sentencing is generally an intuitive process: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25. However, in some specific circumstances a staged or stepped approach is mandated, particularly where a court has to consider not the length of the sentence itself but the mode by which a sentence of imprisonment may be served: Mandranis v R [2021] NSWCCA 97; Wany v DPP [2020] NSWCA 318.

14. A judge should not begin a sentencing process with the aim of imposing an ICO; even if to do so would meet the paramount interest of community safety spelt out in s 69. Before an ICO can be considered the court must first reach a conclusion on the length of the sentence; having considered all the purposes of sentencing in the context of the objective circumstances of the crime and the subjective case for the offender. Only if the strict requirements in terms of length of the sentence or sentences are met can an ICO then be considered. To accede to the defence application would be to ignore that procedure; as the sole aim of the application is to enable an ICO to be imposed.

15. Even if the application were allowed and a separate sentence imposed for the Form 1 offences there could, in the circumstances here, be little utility in imposing an aggregate sentence. This is because the criminal group offence informed the objective circumstances already taken into account for the principle supply offence. Any sentence imposed for the criminal group offence would be served concurrently.

16. The Crimes (Sentencing Procedure) Act 1999 assumes concurrency in the absence of a direction to the contrary: s 55(2). Where the offences are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both: Cahyadi v R [2007] NSWCCA 1 at [27]; Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [36] – [40].

17. Further, while a Court’s sentencing discretion cannot be judicially constrained, a sentencing Court, must nevertheless give full and proper consideration to the guidance offered by past sentencing decisions: Robertson v R [2017] NSWCCA 205. For commercial drug supply trafficking matters in practice this will result, absent some unusual circumstances, a sentence to be served by full time imprisonment. Although two co-offenders were ultimately allowed to serve their sentences subject to an ICO both had already served periods of imprisonment and both were lower in the hierarchy of offending than Frankcom.

18. Accordingly, it would not be in the interest of justice to allow the offender’s application to withdraw his consent to the criminal group offence being dealt with on the Form 1.

Other offenders

19. In March 2021 sentence proceedings were commenced for a group of people associated with the supply of the illicit drug methylamphetamine, in the Wollongong area. Although they started together the proceedings have since been separated. On 25 March 2021 I sentenced Dekker & Kominkovski: R v Dekker; R v Kominkovski [2021] NSWDC 186. Proceedings for the others remain in my list. Frankcom is for sentence today. Luke Kinzett is for sentence on 23 July 2021. Another co-offender, Spinks, is for sentence in August 2021.

20. I am endeavouring to hear all the matters to ensure parity and proportionality principles apply to each. Parity is a classic example of the need to, so far as possible, ensure equal justice: Green v The Queen (2011) 244 CLR 462; Afu v R [2017] NSWCCA 246. That said each sentence must also be determined by having regard to the circumstances of the co-offenders and their respective degrees of culpability - like must be compared with like. Different personal and criminal histories may justify a real difference in the time each will serve in prison or in the disposition of the matter.

21. The offence here involved a number of transactions of about 28 to 52 grams. The drug quantities have been rolled up into one offence. This accumulation was accepted by the defence. It was entirely appropriate: Hamzy v R (1994) 74 A Crim R 341 and Jadron v R [2015] NSWCCA

Agreed facts

22. There is a 17 page agreed facts document before me. The agreed facts document sets out a number of recorded conversations and texts between the co-offenders and gives details of the criminal enterprise in which each offender participated. As the person known as “the supplier” is still before the courts he will be referred to by that pseudonym.

23. In April 2018, a Police Strike Force was investigating the supply of methylamphetamine in the Lake Illawarra area. Lawful telephone intercepts and other surveillance revealed that the supplier would purchase bulk amounts of methylamphetamine, which he then on-sold to Spinks, Frankcom, Kominkovski, Dekker and Kinzett for further distribution. The supplier, Spinks, Frankcom, Kominkovski and Dekker were part of a criminal group. Kinzett had a discrete connection to Spinks and the supplier.

24. Nine supplies are relied on. While the number of supplies cannot aggravate the sentence (as s21A(2)(m) Crimes (Sentencing Procedure) Act 1999 could not apply to a rolled up offence) the number of transactions and the period over which they occurred remain relevant.

25. The following transactions have been ‘rolled up.’

1. 5 May 2018, the offender received 56.6g methylamphetamine for the purpose of supply.

2. 17 May 2018, the offender received 28.3g methylamphetamine for the purpose of supply.

3. 20 May 2018, the offender received 56.6g methylamphetamine for the purpose of supply.

4. 29 May 2018, the offender received 28.3g methylamphetamine for the purpose of supply.

5. 13 July 2018, the offender received 28.3g methylamphetamine for the purpose of supply.

6. 18 July 2018, the offender supplied 28.3g methylamphetamine.

7. 21 July 2018, the offender supplied 42.4g methylamphetamine.

8. 21 July 2018, the offender supplied 14.1g methylamphetamine.

9. 14 November 2018, the offender received 28.3g methylamphetamine for the purpose of supply.

26. The agreed facts set out the details of each transaction relied. The following summary gives some flavour to the specific allegations against Frankcom and his relationship to the others in the criminal group.

7 April 2018 – The supplier and Spinks discuss recruitment

27. In April 2018 Spinks and the supplier met to facilitate drug supplies. The pair discussed the recruitment of Frankcom and Kominkovski as down-line suppliers.

28. In 5 May 2018, Spinks made a phone call to Frankcom and asked, ‘do you have much yet?’ Frankcom replied he would have ‘half a ball’ left after he completed his next supply.

5 May 2018 – The supplier supplied to Frankcom – 2 ounces of methylamphetamine (56.6g)

29. The supplier made a phone call to Frankcom. Frankcom asked for ‘two’. The supplier said, ‘Yeah, obviously one for you and one for old mate.’ Frankcom said, ‘Yeah, yeah.’

17 May 2018 – The supplier supplied to Frankcom - 1-ounce methylamphetamine (28.3g)

30. That day the supplier chased up debts from Spinks and Frankcom. That evening, Spinks had a text message exchange with Frankcom. Frankcom indicated he needed more methylamphetamine and that Kominkovski required a further ounce.

31. Frankcom sent a text message to the supplier which said, ‘…I only need one (ounce methylamphetamine) bro and ill be on my way in less then 5 bro…’ Frankcom then met with the supplier.

20 May 2018 – The supplier supplied to Frankcom – 2 ounces methylamphetamine (56.6g)

32. On 20 May 2018, Frankcom made a phone call to the supplier and asked to meet. He followed up with a text message, ‘Bring 2 case bro leaving now.’

33. The supplier sent a text to Frankcom, ‘You owe 1850 need it fixed my 2 moz night if you can bro’.

27 May 2018 – The supplier calls Frankcom re debt

34. On 27 May 2018, the supplier sent a text message to Frankcom, ‘Your at 5400 an u gave mi 1600 u need to giv over 4 to get again coz u hav a bill an needs to come down.’

35. Frankcom replied, ‘Yeah all good bro should be able to chip it off.’

29 May 2018 - The supplier supplied to Frankcom – 1-ounce methylamphetamine (28.3g);

Recruitment of Casey Dekker

36. On 29 May 2018, Frankcom texted to the supplier “she [Dekker] keen… ‘I’m ready bro an ill get it on me bro cause now I feel like a dickhead cause I told her I would grab one [ounce] cause… an she goes good bro benefit you in the
    long run bro’. After the exchange of further messages the supplier wrote, ‘Just fix ours an I’ll have a chat to her brother she won’t be getting your price.’

37. The supplier then met with Frankcom to supply him with a further ounce of methylamphetamine.

5 June 2018 – The supplier seeks payment from Dekker & Spinks

38. On 5 June 2018, the supplier made a phone call to Frankcom and asked if he had seen Dekker. The supplier asked if Dekker had received the ‘whole one’ [one-ounce methylamphetamine]. Frankcom said, ‘Spinks halved it.’

10 June 2018 – The supplier checks on debts of Dekker, Frankcom and Kominkovski

39. On 10 June 2018, the supplier sent a text message to Frankcom which read, ‘Bra, send me what you gave me today [payments].’ Frankcom replied, ‘Case [Dekker] 3950, I have 3600 komo [Kominkovski] 1900.’

16 June 2018 – The supplier chases debts

40. On 16 June 2018, the supplier made a telephone call to Frankcom. Frankcom said, his brother Mitch owed $1300 and he owed $3100.

18 June 2018 – The supplier asks Frankcom to check on Kominkovski;

21 June 2018 - The supplier discusses payments with Frankcom

41. On 21 June 2018, the supplier made a phone call to Frankcom at Spinks’ request. The supplier enquired about Dekker’s activities and stated he wanted to check on Kominkovski. Frankcom agreed to collect the money for the supplier.

42. On 12 July 2018, Spinks was arrested in relation to an unrelated matter.

13 July 2018 – The supplier supplied to Frankcom – 1-ounce methylamphetamine (28.3g)

43. On 13 July 2018 Frankcom met with the supplier and was re-supplied with 1 ounce of methylamphetamine.

­18 July 2018 – The supplier/Frankcom supplied to Dekker – 1 ounce methylamphetamine (28.3g)

44. On 18 July 2018 Dekker made a phone call to the supplier and asks if she can ‘just grab one [ounce methylamphetamine] from Josh [Frankcom] ‘if it makes it easier.’ The supplier agreed.

45. Dekker told the supplier she owed him $6000. The supplier told Dekker he would ‘fix’ Frankcom up with another ounce in lieu.

21 July 2018 – The supplier/Frankcom supply to Dekker – 1.5 ounces methylamphetamine (42.4g);

21 July 2018 – Frankcom supply to Dekker – 0.5 ounces methylamphetamine (14.1g)

46. On 21 July 2018, Dekker asked if the supplier could do ‘one and a half (ounces of methylamphetamine)’ as she has a buyer arrange for ‘half’ (an ounce) and had to ‘grab a half ounce (methylamphetamine)’ from Frankcom ‘last night.’ The supplier agreed and asked Dekker to ‘leave it with him’.

47. Later on 21 July 2018, the supplier told Dekker he ‘left one and a half’ with Frankcom. About 3:20pm, Dekker confirmed with the supplier that she owed him $3800.

The supplier discusses money owed

48. On 29 July 2018, the supplier stated Dekker gave him $1400 and Frankcom would owe ‘a couple hundred off 14 ($1400). The supplier stated Kominkovski paid him $2500 the previous night. The supplier then directed Frankcom to collect Dekker’s ‘coin’.

49. About 5:35pm, the supplier made a phone call to Frankcom. The supplier stated he received $8300 from Frankcom, who still owed $10500 and Dekker owed him $4350.

Frankcom collects Dekker’s money on behalf of the supplier

50. On 1 August 2018, the supplier asked Frankcom to ‘grab Casey’s coin’. The supplier stressed that the cash be delivered early as he will be ‘under the pump hard tomorrow.’

10 August 2018 The supplier takes ‘orders’

51. On 10 August 2018, Frankcom made a phone call to the supplier. Frankcom stated he was going to visit Dekker and ‘see what she needs’. The supplier told Frankcom he ‘needs the orders now.’

Frankcom and Dekker pay the supplier

52. On 28 August 2018 Frankcom made a phone call to the supplier and said Dekker had $1600 and was about to collect a further $2000.

Dekker temporarily ends her association with the supplier

53. About 5:40pm on 7 September 2018, Dekker informed the supplier she would no longer supply on his behalf.

8 – 10 September 2018 The supplier collects payment from Frankcom, Dekker, Kinzett and Kominkovski;

4 October 2018 – Frankcom – low on methylamphetamine

54. About 10:22pm on 4 October 2018, Frankcom called the supplier and said his supply of methylamphetamine was ‘going quick.’ Frankcom stated he was in possession of a ‘round one’ (3.5 grams methylamphetamine) and would need to see the supplier the next day to obtain more.

On 9 October 2018 the supplier chases payment from Frankcom for 3 ounces methylamphetamine

55. On 9 October 2018 the supplier made a phone call to Frankcom.

20 October 2018 – Dekker returns to supply for the supplier – The supplier offer to supply to Dekker;

!4 November 2018 the supplier checks in on debts – Frankcom concerned about quality of methylamphetamine;

The supplier supply to Frankcom – 1-ounce methylamphetamine (28.3g)

56. On 14 November 2018, the supplier sent a text message to Frankcom, ‘…will need papers off u and ya brother bro’. The pair agreed to meet at a shopping centre in Figtree. At the meeting the supplier supplied Frankcom with one ounce of methylamphetamine.

57. Later Frankcom sent a text messages to the supplier, ‘Bro that’s (methylamphetamine) no good that one bro looks the part but no good bro’.

58. And, ‘…I thought I would try it and tried small stuff an bigger stuff bro and wouldn’t set and tasted like plastic’.

59. And ‘Hey bro I don’t mean to pester u bro ban can u at least let me know wats happening bruz my mate is on my case n he want stuff or rego (methylamphetamine or his money) back bro’.

7 February 2019 Kominkovski ceased association with the supplier

Frankcom – Arrest

60. On 11 November 2019, Frankcom was arrested at his home. He served 9 days in custody. He has been on strict bail ever since.

Objective Seriousness

61. An offender’s role in a drug supply is very relevant to my assessment of the objective seriousness of the offending. I have to consider; the nature of the supply operation, any profit that an offender sought to make and whether they had any role in the management of the operation or a decision making role. I must consider how their role relates to that of other co-offenders in the group.

62. The operation was run by the supplier, assisted by Spinks and to a degree Frankcom. The offender’s supply offence was; relatively disorganised, relatively low level, conducted on credit by a user/dealer who was seriously addicted and using considerable quantities of his own product. He was selling drugs so that he could obtain drugs for his own purposes and to support his addiction to the drugs. He was constantly in debt to the up line supplier and acted at his direction. But he had his own customers and importantly he recruited others into the criminal group. In Dekker’s case she had been indebted initially to Frankcom.

63. His actions were repeated. There was some system. It was very loose but required some organisation. He was an active participant. He had some autonomy. The financial arrangements were clearly haphazard.

64. As is common with most such offences they were committed without regard for public safety. As is evident by the Form 1 matter to which he has admitted his guilt, it was part of organised criminal activity. To the extent I have taken that factor into account in assessing the seriousness of the offence for sentence that factor should not be double counted against the offender in aggravation of penalty.

65. The quantity supplied is one measure of the seriousness of the offence. The quantity supplied determines the maximum penalty available to the court and the applicable standard non-parole period. The indictable quantity fixed by Parliament is 5 grams. The commercial quantity is 250 grams. The large commercial quantity is 500 grams. Here, 311 grams were supplied. Frankcom expected to make some profit although it would appear most of his profit was drugs for his own use.

66. Absent the involvement of people such as Frankcom drug distribution networks would simply collapse

67. The operation was run by the supplier assisted by Spinks. Below Spinks was Frankcom then Dekker and Kominovski; who both had limited autonomy. Kinzett operated outside the group dealing only with the supplier. Dekker voluntarily stopped supplying but later re-joined the group. Kominovski ceased supplying of his own volition in February 2019. Frankcom stopped supplying in mid-2019 prior to his arrest.

68. I accept the prosecution submission that:

1. The offender’s role within the operation was below that of the supplier and Spinks and slightly above that of Dekker and Kominkovksi. Frankcom played a role in the recruitment of Dekker as well as assisting to collect other debts owed to the supplier.

2. The offender acted as a street level dealer.

3. The offender lacked the financial means to purchase methylamphetamine up front and was regularly in debt to his up-line supplier.

4. He possessed limited autonomy. He was reliant on his relationship with the supplier to obtain methylamphetamine and to obtain directions to collect debts owed.

5. What he did with the methylamphetamine appeared to be at his own discretion.

General principles

Guilty Plea

69. The guilty plea was entered in the Local Court. A 25% reduction of the otherwise appropriate sentence is required to recognise its utilitarian value: s 25D Crimes (Sentencing Procedure) Act 1999. It also indicates some practical remorse and acceptance of responsibility, matters that go to the offender’s prospects of rehabilitation.

Guidance

70. While every offence and every offender requires individualised treatment courts must in the exercise of their undoubted discretion take guidance from a number of sources. They include; the maximum penalty and its standard non-parole period. The standard non-parole period does not determine the sentence. A process of comparing and contrasting the actual offence with an abstract one is not necessary nor is it necessary to identify features of the offence which were or were not taken into account when considering the role of the standard non-parole period; s.54B(6): Tepania v R [20018] NSWCCA 247 at [103] to [120]

71. I am required to give content to the standard non-parole period. However, as the High Court in Muldrock v The Queen (2011) 244 CLR 120, made clear I cannot engage in a staged approach to sentencing: at [28]. Accordingly, any finding as to the objective seriousness of each offence does not compel any one result.

72. I have to take guidance from the decisions of other courts, particularly those designed to give guidance; and of course, the purposes of sentencing, which here importantly include the deterrence of this offender and others from committing similar crimes and proper recognition of the harm done to the community.

Drug Use

73. That a person committed the offences while suffering from a long term addiction cannot excuse their crimes. Nor can debts to or pressure from suppliers; falling short of non-exculpatory duress: R v Ceissman [2004] NSWCCA 466 at [24]; Lindsay v R [2012] NSWCCA 124. The fact of any addiction and its consequences, how it came about and what is to be done about it may however be taken into account as a factor relevant to the sentencing. It allows me to understand what he did and continued to do it, to understand his state of mind and capacity to exercise sound judgment: Henry v R (1999) 46 NSWLR 346; (1999) 106 A Crim R 149; Jadron v R [2015] NSWCCA 217.

Criminal antecedents

74. Frankcom has been before the Local Court for drug use, driving, assault and dishonesty offences. He has never before been sentenced to a gaol term. There are no prior drug supply matters. He spent 9 days in custody before being admitted to bail. While he is not entitled to the leniency often given first offenders some leniency can be extended to him.

Parity

75. There must be some relatively and proportionality between this sentence and the sentences already imposed on others. My starting point for both Kominkovski and Dekker was 3 years. But taking into account their guilty pleas, time spent in custody and rehabilitation, sentences of less than 2 years were imposed on them leaving open the serving of the term subject to intensive correction in the community.

Subjective Case

76. Frankcom gave evidence on 1 July 2021. He told me of the important influences on his life and how his drug use escalated to become the most important aspect of his life. Once addicted to methylamphetamine (“ice”) he began purchasing on credit (“on tic”). He soon fell into debt. He was pressured to repay debts. He was assaulted for non-payment. He turned to his family for loans that he could not repay. He began his association with Spinks and the supplier and sold drugs to ensure he could have enough for his own heavy use and to repay debts. He in turn introduced Dekker to the group. He took the opportunities offered by his supplier.

77. He said his drug use had put him in a rut and he couldn’t see a way out of it. He was “off the rails” unable to think clearly or rationally about the consequences to himself or others.

78. He said he stopped selling drugs in mid-2019, shortly before receiving the diagnosis of a life threatening heart condition. He said, following that diagnosis he stopped using and selling methylamphetamine. He told me how determined he became to focus on his health. And how he; as a consequence and with help from rehabilitation providers, his doctors, family, friends and work mates, had changed his life.

79. He spoke of the increasing anxiety and distress he had felt as he awaited sentence and his worries about returning to gaol. He said he now has some capacity to look at the positives but he fears gaol and associations with those in gaol will impact negatively on his mental health. He accepted however that the harm he had done required punishment and he accepted responsibility for what he had done; indicating a high degree of contrition and remorse.

80. I have the benefit of; a report from Ms Van De Velde a forensic psychologist, a Sentence Assessment Report (SAR), a number of personal references and documents relating to the offender’s serious cardiac condition.

81. Ms Van de Velde sets out the offender’s personal history which is uncontroversial. He had strong family support as a child. His parent’s separation when he was 16 was one catalyst for his starting to use illicit drugs. His family remained supportive and tried to help him deal with this problems but he was “not ready.” Although he was bullied and did not thrive at school he was able to get a job until his drug use made this impossible in about 2017. The diagnosis of a serious cardiac problem in 2019 would have been traumatic and can be associated with mental health decline.

82. She notes that depression and emotional difficulties and that the use of drugs to minimise those problems, can then lead to impaired problem solving skills. When combined with anti-social peers this can lead to offending such as drug use and supply. She reinforced the steps already taken by the offender to break that cycle by suggesting a treatment plan that involves treatment and therapy with a psychologist, SMART recovery program. Continuation of the good work done to date will reduce any risk he could reoffend.

83. In a letter to the Court, Frankcom told me he had been drug free for the last two years. Family support, engagement in treatment for his acute heart condition and rehabilitation programs have helped him turn his whole life around. He expressed appropriate remorse and regret for his offending. He thanked his family and other “true friends” and gave a commitment to remain drug free.

84. A number of family and friends attended court and provided references that supported these contentions. His father gave evidence and told me how his son had changed his life. Each referee noted that Frankcom has responded well to rehabilitation programmes and his work commitments. They say he is drug free and determined to work hard and restore himself in the community’s eyes. On balance I can accept them.

85. The SAR confirms Frankcom’s significant progress to rehabilitation. He has overcome his drug dependency and changed his life since his arrest. He has completed the Watershed day drug rehabilitation program and continues to engage with a recovery group. He has strong family support and demonstrated insight and remorse. Frankcom has a job and been offered the opportunity of an apprenticeship. If not gaoled he can do community work.

86. The medical reports indicate that Frankcom’s condition is so serous he may need a heart transplant. Decompensated cardiac failure at such a young age has significant implications for his long term well-being. It was complicated by his drug use and morbid obesity. Until recently he was too obese for surgery to be considered but bariatric surgery and consequent weight loss of 32 kilograms mean that is now possible. While on remand Frankcom has made serious efforts to address both his drug use and obesity problems,

87. Professor Fenton-Lee in his reports notes his concern that if Frankcom is gaoled the lack of mobility associated with lengthy time in a cell and poor diet may increase his weight. The Professor concludes incarceration would be deleterious to his health and could “derail” his ability to turn his life around. He needs ongoing medical review for both his heart condition and to reinforce weight loss regime.

Ill health

88. Offenders generally cannot escape punishment because of the condition of their health: Smith v R (1987) 44 SASR 587. Ill-health can however mitigate punishment, particularly where, as here, imprisonment will be a greater burden on the offender by reason of their state of health and carries with it a significant risk.

89. Courts do not underestimate the lived experience of gaol, particularly for those who, like the offender, have a serious life-threatening condition and require constant monitoring and assistance: R v Burrell (2000) 114 A Crim R 207 at [27]. Imprisonment will be more of burden on the offender than for the notional prisoner without his multiple conditions. Those matters can warrant a longer period on parole and a finding of special circumstances: R v Sellen (1991) 57 A Crim R 313. Care however should be taken not to double count such mitigating factors. And, Ill health does not necessarily mean that a prison sentence should not be imposed, or that the sentence should be less than the circumstances of the case would otherwise require: R v L, NSWCCA unreported, 17/6/96.

COVID 2021

90. The present crisis has increased apprehension by prisoners about infections, in gaols as it does in the community in general. Social visits are still suspended reducing any capacity to remain in contact with pro-social friends and family. Access to telephone calls and AVL links has increased. Prisoners are commonly locked in their cells for extended period in many cases all day meaning they cannot exercise as much as they want or need.

91. CV-19 has not entered our gaols. But if it does early parole may be given some prisoners: s276 Crimes (Administration of Sentences) Act 1999. The offender falls into a category that might be considered for early parole.

92. CV-19 restrictions and heightened anxiety are relevant to all prisoners but they are of greater and particular concern here because of Frankcom’s precarious health: Brown v R [2020] VSC 60 at [48].

Submissions

93. Both counsel provide written and oral submissions and spoke to them. There is one significant difference between the Director and the defence.

94. Mr Tuckey, for the offender, submits that a sentence of less than 2 years could be imposed and that it is in the offender’s and the community interest it be served subject to intensive correction in the community. There could be no community safety concerns if this option were allowed given the solid progress toward rehabilitation already demonstrated.

95. Mr Rollestone, submits: first, that taking into account all relevant factors the sentence must exceed 2 years and secondly so serious and persistent was the offenders crime that the purposes of sentencing requiring general deterrence and adequate punishment that reflects the harm offences such as this cause the community will generally outweigh subjective circumstances: Parris v R [2013] NSWCCA 5.

Synthesis

96. Frankcom had a long term addiction to methylamphetamine that was exploited by his up-line suppliers and led to him selling the drug himself and recruiting others to the criminal group. The diagnosis of a serious heart condition was a catalyst for change. He has, with his family’s support and the help of a rehabilitation program, apparently beaten his addiction. He has made serious efforts to address his morbid obesity; a condition that prevented surgery for a life threatening cardiac condition.

97. Frankcom is employed and is ready to start an apprenticeship. He is well on his way to leading a normal community life. If he is gaoled he will suffer more than many prisoners because of his long term health condition. If he is gaoled there is a risk that frustration at having his good work put at risk, association with old associates and drug users together with the pressures of custody might set back significant his demonstrated progress. As a consequence gaols can, paradoxically, be crime producing environments.

98. Community safety would be enhanced if he could serve his sentence in the community. But while community safety is the ultimate concern of any sentencing exercise there are other purposes of sentencing. They require deterrent and retributive punishments that gives proper weight to the seriousness of the crime for sentence.

99. Frankcom over many months engaged in the distribution of an illicit drug. He did so for profit, although mainly to support his addiction. He did so without regard to the consequences to himself or other users or to the community. He now has considerable insight into what he did and why but he must be sentenced for what he did. That sentence, because of its length, cannot be served subject to intensive correction in the community. I can however give full weight to factors established in mitigation, and in this special case the need to reduce as far as practicable any interference with his progress to rehabilitation, by a significant finding of special circumstances and a long period of supervised parole. That said, the minimum period for which the offender should be imprisoned must also properly reflect the gravity of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].

Orders

100. The original term of the sentence was 3 years 3 months. After applying a discount of 25% for the guilty plea’s utilitarian value, the term of the sentence is 2 years 5 months.

101. Taking into account a finding of special circumstances, and applying a generous 40:60% ratio, I set a non-parole period of 12 months, backdated by 9 days, to commence on 22 June 2021 and expiring on 21 June 2022. There will be a parole period of 1 year 5 months to commence upon the expiration of the non-parole period on 22 June 2021 and expiring on 21 November 2023. Frankcom is be released to parole at the expiration of the non-parole period.

102. A copy of his medical reports Exhibits 4 to 8 should accompany his warrant so that Justice Health can have as much information as possible about his current state of health and dietary needs.

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Decision last updated: 02 July 2021