R v Gill

[2022] NSWDC 7

District Court

New South Wales

Medium Neutral Citation:

R v Gill [2022] NSWDC 7

Hearing dates:

16 November 2021

Date of orders:

2 February 2022

Decision date:

02 February 2022

Jurisdiction:

Civil

Before:

R. J. Weber SC DCJ

Decision:

Sentence: Supply commercial quantity of methylamphetamine: 2 years and 6 months imprisonment with a non-parole period of 1 year and 6 months to date from 15 December 2020. The offender is eligible for release on parole on 14 June 2022.

Catchwords:

CRIME — Drug offences — Supply prohibited drug — Commercial quantity

SENTENCING – Relevant factors on sentence – Objective seriousness – Relevance of drug addiction

SENTENCING – Relevant factors on sentence – Objective seriousness – Role - Courier

Legislation Cited:

Drug Misuse and Trafficking Act 1985

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571

Koh v R [2013] NSWCCA 287

Lam v R [2014] NSWCCA 50

R v Calcutt [2012] NSWCCA 40

R v Henry (1999) 106 A Crim R 149

R v Muanchukingkan (1990) 52 A Crim R 354

R v Simpson (2001) 53 NSWLR 704

R v Speechley (2002) 133 A Crim R 26

Thomas v R [2019] NSWCCA 88

Toole v R [2014] NSWCCA 318

Category:

Sentence

Parties:

Regina (Crown)
James Peter Gill (Offender)

Representation:

Counsel:
Mr Kondich for the Offender

Solicitors:
Office of the Director of Public Prosecutions (Crown)

File Number(s):

2020/355198

Publication restriction:

None.

Judgment

1. The offender comes before the court having pleaded guilty to a charge of supplying a prohibited drug in a quantity which is not less than a commercial quantity. The drug concerned was methylamphetamine and the quantity was 497.6 grams. This is conduct contrary to the provisions of section 25(2) of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years.

2. I have used both the maximum penalty and the standard non-parole period to provide me with valuable guideposts within which to undertake the sentencing task which confronts me.

Early Guilty Plea

3. The offender pleaded guilty to the offence at an early time, and it was common ground between the parties that he was as a result entitled to a 25% discount on any sentence which might otherwise have been imposed upon him.

Agreed Facts

4. The matter proceeded by way of agreed facts, which I believe can be summarised as follows.

5. Strike Force Delalah was established in early 2020 as a joint operation investigating the unlawful activities of the offender’s co-accused, and certain of that co-offender’s associates.

6. On 24 February 2020, a controlled operation was authorised, in which an authorised witness would engage in negotiations with the co-accused and his associates relating to the supply of drugs, and the importation of border-controlled drugs.

7. Between February and October 2020, a witness engaged with the co-accused using a combination of platforms, including Ciphr, on encrypted telecommunication devices.

8. Between 15 and 16 September 2020, the co-accused and a witness engaged in Ciphr communications in which the co-accused agreed to supply 500 grams of methylamphetamine to the witness for the sum of $130,000. These communications included the transmission of photographs depicting shards of white crystalline substance consistent with methylamphetamine. The co-accused requested that the witness send him a copy of a bank note with a visible serial number, which would be shown to the driver at the point of supply by way of identification. The witness messaged the co-accused, confirming what became referred to as “the token” as being a $20 note. The serial number of that note was also provided.

9. There is no evidence that the offender was a participant in any of these communications. It seems that his role was solely as a delivery driver for the delivery of the drugs, and the collection of the sale price. On 17 September 2020, police met with the witness and a second witness, and provided them with $116,000 (an arrangement having been reached, apparently, that the balance of the total sale price of $130,000 would be paid at a later stage).

10. At about 2:40 pm on 17 September 2020, following communications with and directions from the co-accused, the witness drove to the vicinity of Govett Street and White Street in Randwick, where he saw a grey Mazda 3 Sedan parked in White Street. The offender was in the driver’s seat. As the witness approached the vehicle, the offender signalled to him by waving his hand. A second witness approached the vehicle in which the offender was located and sat in the passenger’s seat. He was carrying a bag containing the $116,000 in cash.

11. The second witness had a conversation with the offender, which was electronically recorded. The offender asked the second witness, “Do you have the 20?” In response to which the witness produced the “token” being the $20 note with the serial number which had been provided. The offender checked the serial number of the note against the serial number with which he had been provided, which was stored in his phone.

12. The bag containing $116,000 in cash was then exchanged for a bag containing a crystalline substance.

13. The bag containing the crystalline substance was later analysed and was found to contain 497.6 grams of methylamphetamine with a purity of 75%. This was 2.4 grams less than the amount that the co-accused had agreed to supply.

14. On 15 December 2020 a search warrant was executed on the offender’s premises, and he was placed under arrest.

Objective Seriousness of the Offending

15. The parties were in substantial agreement as to the principles that are to be applied in consideration of the objective seriousness of the offending.

Quantity and Quality of the Drug

16. The quantity and quality of the drug involved, while clearly being relevant to the issue of objective seriousness, is not determinative of that issue. The court must consider all the circumstances informing the issue of objective seriousness, including the role played by the offender, his or her state of knowledge, the reward to be received, and other relevant indicators of moral culpability or lack thereof. That said, nonetheless, as was explained by Latham J in R v Calcutt [2012] NSWCCA 40 at [59], the quantity of the drug involved remains a very material consideration in assessing the seriousness of an offence.

17. In the instant case, the quantity of the drug was 497.6g. Accordingly, while the quantity was within the range of the quantity described in the legislation as a “commercial quality”, the amount was a mere 2.4g less than the 500g minimum quantity which is considered to be a “large commercial quantity”.

18. The purity of the drug was also high, being as it was 75%. The seriousness of such offences is elevated where the purity of drugs is high (Lam v R [2014] NSWCCA 50).

The Role of the Offender

19. The role of the offender in offending such as the present is most relevant in assessing the objective seriousness of the offending. As a general proposition, the higher in the organisational hierarchy in which the offender is placed, the more serious the offence, and the greater the sentence imposed. As was explained by Hulme J in the matter of R v Speechley (2002) 133 A Crim R 26 at [19] (with Mason P and Hidden J agreeing):

An offender’s role is significant in any judgment as to his criminality. All other things being equal, the more extensive that role, the higher the sentence is likely to be.

20. As the authorities make clear however, an assessment of the offender’s role is not to be determined simply by the selection of an appropriate label. Rather, what is required is consideration of the offender’s actual involvement, and the steps which he or she undertook to commit the offence. (Thomas v R [2019] NSWCCA 88; Koh v R [2013] NSWCCA 287).

21. For the offender, it was submitted that his role was limited to being a courier. It was correctly put on his behalf that there was no evidence that the offender had any authority in relation to the transaction, nor did he have an involvement in management or decision making in relation to the exchange.

22. That said, to describe the offender as a mere courier tends to detract from the crucial role which he played in ensuring that the significant illicit transaction was completed. In that regard, it is well to note that he was entrusted with a very valuable cache of illegal drugs, for which he received a very significant sum of money in exchange. Consequently, while the offender is properly to be described as a courier, there is no relevant similarity between him and, say, a person involved in a similar role in relation to street level drug dealing.

23. Moreover, as the authorities make clear, couriers and intermediaries must expect substantial sentences, because without them, drug supply chains would collapse (Toole v R [2014] NSWCCA 318; R v Muanchukingkan (1990) 52 A Crim R 354).

24. The offender also relied on the following factors, which he contended were relevant to the objective seriousness of the offending. He submitted that his motivation for his conduct was to pay off his own drug debt to his co-offender. This amounted to the sum of $1,500. He referred the court to the matter of Hili v The Queen [2010] HCA 45, 242 CLR 520 at [65], where their Honours French CJ, Hayne, Crennan, Kiefel, and Bell JJ referred to a case where “[t]he offender was found to have been borne out of need, not greed” as one that was less serious. I accept that this is an appropriate matter to be brought into account.

25. In addition, the offender submitted that the fact of the causal link between his addiction and the commission of the offence was a matter to be taken into account as going to the objective criminality of the proceedings.

26. I do not accept that this is the case. I take this view as such a causal relationship does not automatically lead to a more lenient sentence (R v Henry (1999) 106 A Crim R 149 at [259]). Moreover, since I have taken into account the offender’s motivation for his offending, being to pay off his drug debt, as a matter going to the offender’s benefit in assessing the objective seriousness of his offending, I believe that to also take his addiction into account in relation to the issue of objective seriousness would be to engage in a degree of double counting.

27. At the end of the day, the Crown contended that the offending falls to be considered as being toward the midrange of the offences of this nature. For the offender it was submitted that the objective seriousness should be considered to fall towards the lower end of the scale.

28. In my opinion, the Crown’s position in relation to objective seriousness is correct, given especially the quantity and purity of the drugs involved, together with the nature of the offender’s involvement.

Aggravating Factors

29. The Crown did not submit that there were present any aggravating factors pursuant to the provisions of section 21A of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act).

Mitigating Factors

Rehabilitation/Reoffending

30. For the offender it was contended that his prospects for rehabilitation were good, and correlatively that he was unlikely to reoffend. This was not put in issue by the Crown.

31. The offender gave evidence in the sentencing hearing in which inter alia he gave unchallenged evidence that he had not offended or taken illicit drugs in the period between the offending on 17 September 2020 and his arrest on 15 December of that year. He gave evidence that he has not used illegal drugs while incarcerated. Following the commission of this offence, he returned to gainful employment. He has had no institutional misconduct charges while in custody, and, where it has been available to him, he has engaged in work in the corrective institutions in which he has been housed.

32. The offender told the Court that he understands that he needs help to continue with his rehabilitation from his previous drug addiction, and he has made enquiries in an attempt to arrange post release rehabilitation services, including at the Glen Rehabilitation Centre. He gave evidence that he was committed to attending psychological counselling services upon his release.

33. Relevant to his prospects of rehabilitation and risk of reoffending is the fact that in a letter to the Court, which the offender verified, the offender expressed considerable remorse and shame for his actions. He also demonstrated a considerable insight into the menace which illicit drugs present, not only to him, but to the community at large.

34. That the offender was remorseful was accepted by the Crown.

Character

35. A further mitigating factor upon which the offender relied was that prior to this offending the offender had had no convictions of any nature and was a person of good character and renown. Included in the evidence were certificates from the Smith Family Children’s Charity which indicated, prior to his offending, that he was the sponsor of children in need.

Mental Conditions

36. The offender attended upon Ms Kris North, a forensic psychologist, who prepared a report in respect of the offender for the Court. In her report, Ms North opines that the offender meets the criteria for the following diagnoses:

1. Adult attention deficit hyperactivity disorder combined type (ADHD);

2. Major depressive disorder;

3. Stimulant use disorder; and

4. Generalised anxiety disorder.

37. Ms North opines:

Of relevance, it was my opinion that poor impulse control associated with ADHD and poor coping skills relating to his depression and anxiety directly contributed to Mr Gill’s subsequent drug use issues, and as such it is recommended future treatment target these issues concurrently. Further, it was noted his drug use and related financial stressors were the main risk factor in the offence, and as such it is my opinion his risk could be managed should he maintain abstinence. On a positive note, Mr Gill had accepted responsibility and expressed remorse for his offence at the time of the interview, and presented as motivated towards engaging in treatment. As such, a detailed treatment plan is outlined at the end of this report and it is my opinion Mr Gill’s risk for reoffending could be managed should he engage in such treatment.

His poor impulse control was identified as contributing to his past substance use issues, consistent with research indicated ADHD may predispose an individual to the development of substance use issues.

He has been assessed as being in the severe category for both depression and anxiety.

38. For the offender it was submitted that as there had been an established causal link between his ADHD and his drug addiction, which in turn caused his offending, this, he submitted, was a matter to be taken into account as mitigating the offending. I accept that that is the case.

Childhood Disadvantage

39. The offender also gave a history to Ms North. He verified this history on oath in his evidence before me. The offender was born in 1991. He relayed to Ms North a history of violence within his parents’ relationship, up until the time that he was eight years of age. He reported that both of his parents abused alcohol when he was young, and that his mother suffered from depression and anxiety. He described his home environment as “chaotic”. The offender told Ms North that both of his parents, however, have since reduced their level of alcohol intake, and his mother’s mental health is more stable. He described his parents as having “got better with age”.

40. Notwithstanding the difficulties of his home environment, the offender has, to a significant degree, succeeded in life. He completed his year 12 HSC in 2007. In a letter to the court from his mother, she reports that he did well in the HSC. He gained entry into university and, after a series of false starts, he was admitted into a Bachelor’s Degree of Business/Marketing at the University of Sydney. He is one year away from graduating. He intends to return and complete his degree upon release.

41. Mr Kondich of counsel, who appeared for the offender, submitted that the history which the offender provided to Ms North provides a sufficient factual basis for a finding that he suffered an upbringing of the type described by the High Court in Bugmy v The Queen (2013) 249 CLR 571. I do not believe that this is a correct analysis No doubt aspects of the offender’s upbringing were suboptimal, that said it would not be right to characterise those circumstances as calling into consideration the Bugmy principles.

The Section 5 Threshold

42. The parties were agreed that the offending crosses the section 5 threshold, that is to say, that, in the circumstances of the offending, no sentence other than a term of imprisonment is appropriate. I agree with the joint position of the parties.

Intensive Corrections Order

43. The decision that a sentence involving a term of imprisonment is required does not of course necessarily require that that sentence be served by way of a full time custodial sentence. For the offender it was submitted that in all the circumstances, and especially given his prospects for rehabilitation, the interests of the protection of the community were best served by the sentence being served by way of Intensive Corrections Order in the community.

44. Having given the matter considerable thought, I do not consider that this is an appropriate course. When all of the features of the offending to which I have earlier referred are taken into account, I am of the view that a custodial sentence in excess of two years is necessary, and as such the option of the imposition of an Intensive Corrections Order is not available to me.

45. I should note that my conclusion was in accordance with the Crown’s submissions, namely that the only appropriate sentence was a sentence of full-time custody.

Special Circumstances

46. Mr Kondich for the offender suggested that special circumstances existed for the purposes of section 44(2) of the Sentencing Act. He drew my attention to the dicta of Spigelman CJ in R v Simpson (2001) 53 NSWLR 704 where his Honour said at [59]:

The words “special circumstances” … are words of indeterminate reference and will always take their colour from their surroundings. … the non-parole period is to be determined by what the sentencing judge concludes that all of the circumstances of the case, including the need for rehabilitation, indicate ought be the minimum period of actual incarceration.

47. The offender submitted that the following constituted special circumstances, namely:

1. His good prospects for rehabilitation;

2. That this will constitute his first time in custody; and

3. The effect of restrictions imposed on inmates to guard against the spread of COVID 19 in the correctional system.

48. I believe that each of these matters is appropriate to be taken into account as constituting factors relevant to special circumstances, and indeed the Crown did not submit to the contrary.

49. As to the COVID-19 issues, the offender gave evidence as to the very limited number of visits that have been available to him during his period on remand due to COVID related restrictions, together with the fact that he has been subjected to substantial 24 hour a day lockdown periods which were deemed necessary by the authorities to prevent the spread of the virus within the prison population.

50. As I have indicated, I find special circumstances and shall proceed to sentence accordingly.

Sentence

51. In setting forth the following sentence, I have taken into account the matters set forth earlier in these Reasons in relation to the objective seriousness of the offence. The mitigating factors to which I have referred have also been taken into account.

52. As to the discount for the offender’s guilty plea, this has been applied.

53. I also propose to take into account the time already served by the offender while on remand. The offender was bail refused from the date of his arrest on 15 December 2020. There was no submission other than that it is appropriate to backdate the commencement of sentence to that date.

51. James Gill,

1. You are convicted for the offence of supplying a prohibited drug being not less than the commercial quantity, namely, 497.6 grams of methylamphetamine.

2. You are sentenced to a term of imprisonment of 2 years and 6 months, with a non-parole period of 1 year and 6 months.

3. I direct that such term of imprisonment shall commence on 15 December 2020, and that the non-parole period expire on 14 June 2022, with the balance expiring on 14 June 2023.

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Decision last updated: 09 February 2022