R v Glen Michael Rootsey

[2015] NSWDC 98

District Court

New South Wales

Medium Neutral Citation:	R v Glen Michael Rootsey [2015] NSWDC 98
Hearing dates:	10 June 2015
Date of orders:	19 June 2015
Decision date:	19 June 2015
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	For Orders see [52]
Catchwords:	Ongoing supply prohibited drugs; supply prohibited drugs; sentencing
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985 Confiscation of Proceeds of Crime Act 1989
Cases Cited:	Braithwaite v R [2005] NSWCCA 451 Pearce v R (1998) 194 CLR 610 R v Burns [2007] NSWCCA 228 R v Carrion (2000) 49 NSWLR 149 R v Farah [2005] NSWCCA 67 R v Giang [2005] NSWCCA 387 R v MRN [2006] NSWCCA 1555 R v Wong [1999] NSWCCA 420 Veen v R (No. 2) (1998) 164 CLR 465
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown Solicitor) Glen Michael Rootsey (Offender)
Representation:	Counsel: K Stanley (Crown Prosecutor) M North (Offender)
File Number(s):	14/267097
Publication restriction:	Nil

REMARKS ON SENTENCE

Introduction

1. The offender is charged with two offences as follows:

1. Supply prohibited drug on an ongoing basis, being heroin, pursuant to s 25A(1) of the Drug Misuse and Trafficking Act 1985. For that offence the maximum penalty is a term of imprisonment of 20 years, a fine of $385,000 or both. There is no standard non-parole period proscribed for that offence.

2. Supply prohibited drugs, namely, 2.78 grams of heroin pursuant to s 25(1) of the Drug Misuse and Trafficking Act 1985. The maximum penalty proscribed is 15 years imprisonment and a fine of $220,000 or both. Again there is no standard non-parole period proscribed in respect of that offence.

2. In respect of the first offence, there are three further charges to be taken into account by way of a Form 1 and they are as follows:

1. 17 June 2014 supply prohibited drug greater than indictable quantity (not cannabis).

2. 27 May 2014 supply prohibited drug greater than small and less than indictable quantity.

3. 20 May 2014 supply prohibited drug greater than small and less than indictable quantity.

3. A s 166 Certificate pursuant to the Criminal Procedure Act 1986 has been certified in relation to three back-up offences being three offences of supply prohibited drug heroin, however, the Crown consents to an order dismissing each of those charges following sentence on the two charges above.

4. The Crown also seeks an order pursuant to the Confiscation ofProceeds of Crime Act 1989 in respect of the sum of $11,050.00. That order is not opposed by the offender.

5. The offender was arrested on 10 September 2014 and remained in custody until he was granted bail by the Supreme Court on 4 February 2015. He has therefore served 148 (or 4 months and 25 days) days in custody.

Facts

6. A summary of the facts is that in May 2014 the offender, who was born on 1 November 1973, and is aged 41 years, came to the attention of Strike Force Babyl, an investigation conducted by the Monaro Drug Unit into the supply of prohibited drugs in Cooma and the Alpine Region of New South Wales.

7. On 13 May 2014 a male known to the police who were operating a controlled operation was introduced to the accused for the purpose of forming a drug supply relationship. Negotiations commenced regarding the purchase of a quantity of heroin and a short time later the offender and the male travelled to the ACT where the offender supplied 2.78 grams of heroin with a purity of 22% and was handed the sum of $1,050. Before supplying the heroin, the offender removed 0.7 grams of the substance which he retained in his possession (sequence 9).

8. On 20 May 2014 a further transaction took place between the male person and the offender where again they travelled from Cooma to Canberra, and on this occasion, 2.78 grams of heroin with a purity of 21.5% were supplied for the sum of $1,050. Again, before the supply took place, the offender removed 0.7 grams of the substance which he retained in his possession (sequence 8).

9. Four other transactions of a similar nature, for similar amounts took place up until July 2014. They comprised two of the matters on the Form 1 (sequences 6 and 7) and two of the matters the subject of the Certificate under s 166 of the Criminal Procedure Act (sequences 4 and 5).

10. On 22 July 2014 a further transaction took place whereby the male person paid $4000 into a nominated bank account of the offender and he was supplied with 12.19 grams of heroin with a purity of 20%. That conduct comprised sequence 3 which is also dealt with on the s 166 Certificate.

11. The offender was arrested on 10 September 2014 at premises where he resided in Cooma. The offender was cautioned by police and gave consent to the police to conduct a search of his premises and participated in a Record of Interview.

Previous Criminal History

12. The crown bundle (exhibit A) included the criminal history of the accused. Of relevance, that history included a charge of possess prohibited drugs of which the offender was convicted on 17 June 2014 and fined $150.

Pre-Sentence Report

13. A pre-sentence report under the hand of Mr D Kelley dated 3 June 2015 was tendered (exhibit B). That report noted that the offender had been a single man since separating from the mother of his now 18 year old daughter, 17 years ago. The offender had financially assisted that child through private secondary school education and had up until the time of the present charges maintained a good relationship with her. The offender had lived in Cooma where he was educated to year 10 level and thereafter qualified as a pastry cook. He is presently unemployed, but obtains casual work as a truck driver, delivering bread twice a week.

14. The pre-sentence report noted that the offender had used heroin intermittently from age 23, with sustained periods of abstinence. He had participated in a methadone program from April 2007 until February 2008 and then again from December 2010 until August 2014. Whilst on that program he still occasionally used heroin. He reported also having used other drugs in small quantities including amphetamines and un-prescribed medication including a narcotic pain reliever.

15. The offender was said to have been drug free from about August 2013 until relapsing on heroin about a month before his arrest in September 2014. He recanted that version when confronted with the history of him retaining a small portion of each amount of drug supplied for his own use, the first such occasion taking place in May 2014. He claims to have been drug free since the time of his arrest.

16. The report notes that the offender concurs with the police facts, however, he contends that he was enticed to become involved in supplying the undercover operative and his motivation for doing so was to acquire a portion of the drug for his own use. He acknowledged that it was wrong to supply drugs but contended that he did so by seeking an assurance from the person he was supplying that the drugs would not be further distributed in Cooma.

17. The offender was assessed as a low/medium risk of reoffending. His identified criminogenic needs are “leisure/recreation, companions, alcohol/drug problems and attitude/orientation”. It was considered that the offender would benefit from a period of supervision by Community Corrections and that case management strategies would include:

1. Monitoring of attendance and engagement in substance abuse programs/counselling.

2. Referral to further alcohol and other drug services as may be considered necessary.

3. Providing guidance and some direction regarding associates and activities.

4. Urinalysis to ensure compliance.

18. The report noted that the offender had been assessed as suitable for a Community Service Order. He was, however, ineligible for developmental programs facilitated by Community Corrections.

Evidence on the Sentence Hearing

19. The offender tendered a letter from D Mould as to his character. He was described as a hard worker who was reliable, loyal and had an impeccable work ethic. Ms Mould believed that the offender had initially refused to provide drugs to the undercover police officer, but out of sympathy for a fellow user who was suffering withdrawals, conceded to that officer’s continued pleading. She had known of the offender’s previous battles with drug addiction and the fact that he had been on a methadone program. Since his release from custody, the offender had been working for Ms Mould and her husband delivering bread two days per week and had been attending Alcoholics Anonymous meetings. She testified as to his remorse and determination not to re-offend. Other testimonials from the offender’s sister and his brother-in-law attested to the character of the offender. A letter was also tendered from Mr K Weston on behalf of Alcoholics and Narcotics Anonymous in Cooma attesting to the regular attendance of the offender at meetings in Cooma over the last two months (exhibit 1).

20. A medical certificate was tendered to confirm that the offender had been on anti-depressive medication since July 2007 (exhibit 2). A further letter was tendered from the Drug and Alcohol Clinician, Cooma Mental Health Drug and Alcohol confirming that the offender had attended drug and alcohol sessions on 12 May 2015, 21 May 2015 and 1 June 2015 (exhibit 3).

21. Evidence was given by Janelle Roberson, the mother of the offender. She had a close relationship with the offender, having separated from his father some 23 years ago. She had three other children, including a daughter who was unwell. Mrs Roberson gave evidence that the trigger for the offender’s drug use around 2000 was the separation of her and his father. From that time he became a father figure in the family and supported his mother and sisters. Mrs Roberson was aware of the offender’s drug use problem, however, she gave evidence that he was clean at times before relapsing every so often, usually when he was in situations of extreme stress. Mrs Roberson gave evidence that the offender’s daughter, who was 19 years of age this year, does not want to know the offender as a result of the current charges. The offender had had to fight for access to his daughter and he was a dedicated father and had paid for her secondary schooling. Mrs Roberson had spoken to the offender who was remorseful for his conduct and determined now to get his life back into order.

22. The offender also gave evidence. He agreed with the police facts and said that he at first declined the request to supply from the undercover police officer. He was not at the time using drugs and had been on methadone for a number of years. However, he gave in to the persistence of the police officer and agreed to meet and then supply in the manner outlined above. The offender gave evidence that he told the undercover police officer that he would only supply him with heroin for his own use, and that if he sold it in the Cooma area he would not further supply him. In the course of supplying him he developed a drug habit again. At the time he thought he could have “a little bit” without becoming addicted.

23. The offender gave evidence that he had the support of his family, although he had caused them a great deal of pain. His mother was well known in the Cooma area and his offending has reflected adversely on her and her family.

24. The period following his arrest, during which he was incarcerated between 10 September 2014 and 4 February 2015, was his first time in custody. In the past he had never received any drug and alcohol counselling and had never reached out for help. He now realised that he had to get help and that he was just getting too old to be using drugs. The offender gave evidence that he did not associate with the criminal class and still worked two days per week delivering bread whilst receiving a part-payment from CentreLink. The offender accepted that the offences were very serious. He now never wants to reoffend and realises that he was doing the wrong thing. He does not blame the police for his offending but did so to support his habit. He thought at the time he would be strong enough to use heroin only once.

25. In cross-examination the offender said that he had never been a dealer of drugs before. He had made a very bad decision and now had to use so as to not be sick. He agreed that he had supplied heroin on seven occasions between 13 May and 22 July 2014. He relied on each of those transactions to obtain enough heroin to support his own habit. He made no money out of the transactions. Following his arrest on 10 September 2014 he had weaned himself off heroin. He now understood that he made a very bad decision but was trying to change his life and had gone to Alcoholics Anonymous. He said he would like to contribute to the community again.

Submissions on Behalf of the Offender

26. Ms North, solicitor for the offender, submitted that he was entitled to a 25% utilitarian discount on sentence for his early plea of guilty. That was agreed by the Crown. It was submitted on behalf of the offender that he was a middle man or courier and that that should be taken into account in assessing the objective seriousness of the offending. He knew where to go to obtain the drugs and did supply them but for the purpose of obtaining small amounts for his own use. It was not done for financial gain or greed. Given the weight of the drugs involved, the offending was not at the high end of the scale.

27. It was submitted that the indictable quantity was 5 grams whereas the commercial quantity was 250 grams. Whilst significant amounts were supplied, it was significantly less than the commercial quantity.

28. In respect of the first offence of ongoing supply pursuant to s 25A of the Act, it was submitted that this offending was at the bottom end of objective seriousness for such offending, irrespective of the weight. The subjective circumstances should be taken into account including the evidence of the offender’s mother and the attempts that the offender had taken to commence rehabilitation. It was not submitted that he had rehabilitated but rather, that he had an ongoing need for rehabilitation which need warranted a finding of special circumstances pursuant to s 44 of the Crimes Sentencing Procedure Act (“C(SP)A”) so as to reduce the ratio of any non-parole period to his head sentence. It was submitted that notwithstanding the content of the pre-sentence report, the offender accepted responsibility for his conduct. He was remorseful and had learnt his lesson as a result of spending five months in custody. He had also lost his relationship with his daughter and his risk of reoffending was described in the pre-sentence report as being low to medium risk.

29. It was submitted that his prospects of rehabilitation are good and that if the court were minded to impose a sentence of less than two years imprisonment then he was suitable for an Intensive Correction Order which would allow his rehabilitation to continue.

30. Further, he had not opposed an order for repayment of the sum of $11,050 as proceeds of crime. That would place a considerable burden on him, referring to R v Farah [2005] NSWCCA 67.

31. It was submitted that the offender had made a misguided decision to supply the drugs, however, that he had stopped when he thought that the person he was supplying was obtaining the drugs for re-supply. That was in relation to the transaction in which the quantity of 12.19 grams was supplied for the sum of $4000.

Crown Submissions

32. The Crown submitted that the principle to be applied in respect of drug trafficking was that a custodial sentence had to be imposed unless exceptional circumstances were demonstrated, relying on R v Carrion (2000) 49 NSWLR 149 at [25]. The ongoing supply in this case took place over a period of five months and also requires an incremental sentence for the three matters listed on the Form 1, namely:

Sequence 8 - 20 May 2014 - Supply of 2.78 grams

Sequence 7 – 27 May 2014 – Supply of 2.81 grams

Sequence 6 – 17 June 2014 – Supply of 6.21 grams.

33. It was submitted that the seriousness of the offending needs to be reflected in considering sentence in respect of the ongoing supply charge Sequence 1.

34. It was conceded that the voluntary cessation of the offender in supplying the drug was a significant matter to be taken into account in mitigation, referring to R v Burns [2007] NSWCCA 228.

35. The Crown noted that there had been no supply between 22 July 2014 and 7 September 2014 and that the offender had taken steps to start rehabilitation. There was a public policy to be taken into account here that would encourage cessation of criminal activity. There was also strong evidence of the offender’s remorse and rehabilitation. The Crown accepted that the offences arose out of the offender’s need for the drug for his own use rather than greed.

Sentence

36. 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.”

37. In respect of the first count pursuant to s 25A(1), I have regard to the number of occasions in which the supply occurred between 13 May and 22 July 2014. I have also taken into account as an aggravating factor the fact that the offence was committed without regard to public safety (pursuant to s 23(2)(i) of the C(SP)A). The same aggravating factor applies to the second count pursuant to s 25(1).

38. Having regard to the amount of prohibited drugs involved, I find that the offending in respect of both counts is towards the lower end of the range of objective seriousness for offences pursuant to both s 25A(1) and s 25(1). The objective seriousness of the offending here is to be determined by reference to the business operation supplying prohibited drugs, namely, the repetition, system and organisation involved (see R v Giang [2005] NSWCCA 387 at [18] and [19]). The quantity of drugs involved is also relevant, as was the number and quantities of individual incidents of supply (see R v MRN [2006] NSWCCA 1555 at [142-145]. The repetition, system and organisation of the supply here was in relative terms unsophisticated and at the bottom of the supply chain. For those reasons I find that the objective seriousness of the offending was towards the lowest level of the range for both offences.

39. I am also satisfied that the offending was borne out of the offender’s addiction to heroin and that since his arrest he has become drug free and has remained drug free.

40. The offender has little by way of relevant criminal history. There was one charge of possess prohibited drug for which he was convicted on 17 June 2014 and fined $150. I have disregarded a number of other unrelated offences in the sentencing process here, and I have had regard to what the High Court said in Veen v R (No. 2) (1998) 164 CLR 465 at p 477 where the plurality said:

“The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed and it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. The antecedent criminal history is relevant, however, to show that the incident offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In that case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.”

41. I find that the latter is not the case here so that the antecedent criminal history cannot be taken into account so as to impose a more severe penalty.

41. I find that the offender pleaded guilty at the first available opportunity and is entitled to a 25% utilitarian discount on sentence. I also find that his plea of guilty indicates remorse and that he has accepted responsibility for his criminal conduct.

42. I am satisfied that the offending was borne out of the offender’s addiction to heroin and that he did not profit from it. I also take into account that he has not opposed an order for repayment of $11,050 as the proceeds of crime which will place a considerable burden on him.

43. In Braithwaite v R [2005] NSWCCA 451 the Court of Criminal Appeal held that a finding of exceptional circumstances is not a pre-condition to suspending a sentence for a drug supply offence, nor is the fact that the offending is characterised towards the bottom of the scale of criminality for such offending. Hodgson JA said at [25]:

“As pointed in Foster v R, the first step is to decide whether the case is appropriate to be dealt with by way of imprisonment. Then it is necessary to decide the term of imprisonment, this involving the determination of a non‑parole period and the determination of an additional term or overall term and then the Judge may consider various alternatives to full time imprisonment.

I do not think it is correct to say that in all cases of s 25(1) offences it is a pre‑condition to suspending the sentence that the offences fall towards the lower end of the scale or that there are or may be exceptional circumstances.”

45. A distinguishing feature of that case was that it was not a case where the offender was substantially involved in the supply of prohibited drugs. Here, the distinguishing features of the offender’s conduct are that first, he sought assurances from the person supplied that the drugs were not to be re‑supplied, and secondly, he unilaterally ceased supplying the drugs despite requests for him to do so. These are mitigating factors to be taken into account on sentence, and amount in my view to exceptional circumstances.

46. I am persuaded here that there are special circumstances pursuant to s 44(2) of the Sentencing Act, having regard to the fact of the offender’s addiction to heroin, his effort to overcome that addiction, the fact that he, of his accord, terminated the process of supply and his need for ongoing rehabilitative treatment in respect of his drug addiction.

47. General deterrence is an important matter to be taken into account in drug supply offences (see R v Wong [1999] NSWCCA 420) and specific deterrence is also relevant here. As set out above, I am satisfied that the offender was involved in the supply of drugs for the purpose of feeding his drug addiction, namely, his heroin addiction, but that necessarily meant that he was supplying prohibited drugs for profit.

48. I have also had regard to the principles of totality, proportionality and parity set out in Pearce v R (1998) 194 CLR 610 at [45].

49. I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate in respect of the second offence pursuant to s 25(1). I note that the offender has already spent 148 days (or almost five months) in custody. I intend to sentence him in respect of the second offence pursuant to s 25(1) of the Act to the time he has already spent in custody.

50. In respect of the offending pursuant to s 25A(1) the offender has asked that three further charges be taken into account by way of a Form 1. Those matters have been taken into account incrementally so as to properly reflect the seriousness of the offending.

51. Having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate for the offence of ongoing supply pursuant to s 25A(1) of the Act. I intend to sentence you to a term of imprisonment of 18 months. However, having regard to all of the mitigating factors here I intend to suspend that sentence pursuant to s 12 of the C(SP)A.

Orders

52. I make the following orders:

1. You are convicted of the offence pursuant to s 25A(1) of the Drug Misuse and Trafficking Act 1985, to which you have pleaded guilty in this Court.

2. I sentence you to a term of imprisonment of 18 months to commence from today.

3. Pursuant to s 12 of the C(SP)A I suspend that sentence and direct that you be released from custody on condition you enter a bond to be of good behaviour on the conditions set out below:

1. The conditions proscribed by s 95(a) and (b) of the C(SP)A.

2. That you accept any direction of the Community Corrections Service as to drug and alcohol rehabilitation.

3. You report to Community Corrections at Cooma within 7 days.

4. I have certified that the matters contained in the Form 1, which is contained in exhibit A, have been taken into account in sentencing in this matter.

5. In respect of the offence pursuant to s 25(1) of the Drug Misuse and Trafficking Act 1985, you are convicted. In respect of that offence, I sentence you to a fixed term of time spent in imprisonment of 148 days being time already served.

6. The three offences contained in the s 166 Certificate are dismissed.

7. Pursuant to s 29(1) of the Confiscation of Proceeds of Crime Act 1989, I order the offender Glen Rootsey pay to the State of New South Wales a drug proceeds order in the sum of $11,050.00.

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Decision last updated: 24 June 2015