R v Grant Durrington; R v Matthew John Corby

[2008] NSWDC 362

CITATION:	R v Grant DURRINGTON; R v Matthew John CORBY [2008] NSWDC 362
JUDGMENT DATE:	31 July 2008
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	In respect of Mr Corby - good behaviour bond for period of 3 years. In respect of Mr Durrington - good behaviour bond for period of 3 years.
CATCHWORDS:	CRIMINAL LAW - sentence - knowingly taking part in the supply of a prohibited drug - plea of guilty - no prior convictions - applicability of Clark principles
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985 s 25(1) Crimes (Sentencing Procedure) Act 1999 s 9
CASES CITED:	R v Clark
PARTIES:	Regina Matthew John Corby Grant Durrington
FILE NUMBER(S):	2008/6248; 2007/12253
COUNSEL:	Mr Strickland S.C. (for Durrington)
SOLICITORS:	Director of Public Prosecutions Mr Mazurkiewicz (for Corby)

JUDGMENT

1. I am sentencing two young men for crimes under the Drug Misuse and Trafficking Act 1985. Each of them has pleaded guilty to knowingly taking part in the supply of a prohibited drug, namely MDMA, commonly referred to as Ecstasy. Each of them, as I said, has pleaded guilty and I convict each of them of that offence, the offences against s 25 (1) of the Drug Misuse and Trafficking Act. The offence carries a maximum of fifteen years imprisonment.

2. One young man, Matthew John Corby, pleaded guilty on 20 March 2008 at his arraignment before the Parramatta District Court. His offence was committed on 1 February 2007 and he was arrested two weeks later on 15 February.

3. The other offender, Mr Grant Durrington, pleaded guilty on 4 February 2008 at committal at Parramatta Local Court. He committed his offence on 11 January 2007 and was arrested at the same time as Mr Corby on 15 February 2007.

4. It is, firstly, important to note the circumstances of each offence. They were both very similar and they need only be referred to in short detail.

5. Mr Corby’s crime was committed on 1 February 2007. It was committed with a man named Daniel Chippendore. Mr Corby drove Mr Chippendore to a car park. Mr Corby was informed on the way that Mr Chippendore wanted to go to the car park in order to supply Ecstasy tablets by a previous arrangement. Those tablets were not in Mr Chippendore’s possession. He obtained them once he got to the car park from somebody else. Once they got to the car park, Mr Corby remained in the car ready to assist and at some point afterwards drove Mr Chippendore back home.

6. The circumstances of Mr Durrington’s offence were very similar. As I said, he committed his offence on 11 January 2007. Once again Mr Chippendore was involved as well as a young person named “C”. Mr Durrington owned a car. He picked up the young person and later picked up Mr Chippendore, then drove them to the same car park. The car park was opposite a particular tavern where Mr Chippendore was, it seems, actively supplying Ecstasy tablets. Once again, on the way to the car park Mr Durrington knew that the young person and Chippendore were going to sell Ecstasy tablets in the tavern. After the supply occurred the young men left and were then arrested by the police. Mr Durrington admitted that he had a fair idea that Mr Chippendore was going to sell drugs. In fact, he admitted that he knew that he was going to deal in drugs.

7. Mr Corby turned twenty this year, having been born on 15 March 1988. He has no record of any criminal convictions. Mr Durrington is also twenty years old, having been born on 5 May 1988 and also has no criminal convictions.

8. There is some personal material about each of them. Both of them have been interviewed by an officer of the Probation and Parole Service and pre-sentence reports have been prepared.

9. Mr Corby is recorded as having accepted responsibility for his part in the offence and showed regret. However, the probation officer noted that he seemed to lack any real insight into general community expectations in relation to such illegal activity. The probation officer thought it unlikely that he would require or benefit from supervision by the Service because there were no factors related to the offence which could be addressed.

10. Mr Durrington was said to be a naive young man who may have been unable to recognise the manipulation of his co-offenders. He has ceased all his previous associations with those people. He comes from a strong and supportive family network as well as a supportive relationship with his partner. The Service thought he would be suitable for a low level of intervention by way of supervision.

11. A report has been tendered in respect of Mr Corby by a psychologist, Steve Henkelman, dated 10 July 2008. It diagnosed a post-traumatic stress disorder arising from a particular event in the past and also expressed the opinion that his symptoms were consistent with depression. It noted his supportive relationships with his family and his partner.

12. Mr Strickland S.C., who appears for Mr Durrington, submits that the appropriate sentence for his client is a bond under s 9 of the Crimes (Sentencing Procedure) Act 1999. He says that the offences are at the low end of the scale, in fact, at the bottom end; that there was no financial gain; and that there were a number of mitigating factors attending the offence and no aggravating factors. The mitigating factors included no significant harm, no planning, no criminal antecedents, good character, an unlikelihood of re-offending, rehabilitation, remorse, and an early plea.

13. Mr Strickland says the personal circumstances of his client have changed since the offence on 11 January 2007. He now has a good relationship with a steady girlfriend and is taking no drugs at all and has no association with those with whom he was committing the offence. He is about to obtain a trade certificate and has good character references. He says that a s 9 bond is appropriate because two offenders who were involved in similar activity, a Mr Fox and a Mr John, also received a good behaviour bond. One important distinction between this case and those cases, which needs to be observed, is that both those offenders were charged with concealing a serious indictable offence. That is not so serious an offence as the offence that these two are charged with. Mr Strickland argued that the factual circumstances were not dissimilar and there is some force in that argument.

14. Mr Mazurkiewicz, who appeared for Mr Corby, adopted Mr Strickland’s submissions so far as the mitigating features were concerned and the absence of aggravating features. He drew my attention to the statistics and made the same submission so far as the cases of Fox and John were concerned. He pointed to the fact that his client’s grandparents were present in court and supportive.

15. Miss Swift, who appears for the Prosecution, noted the pleas of guilty but also noted that they had committed a serious offence. Each one involved some fifty tablets. However, she acknowledged that there was no suggestion that either had actual possession of the drugs. Their role was to assist. Nor she said was there any evidence that either of them had been involved in substantial trafficking or trafficking to any degree which would have attracted the principles applied by this court following the judgment of the Court of Criminal Appeal in R v Clark. She also acknowledged, fairly, that the objective seriousness of each offence was very low. She acknowledged that Mr Fox was in a very similar position and the circumstances were almost the same. Very fairly, she acknowledged that the appropriate way of determining this case was somewhere between a s 9 bond and a s 12 bond.

16. I have determined to accept the submissions of Mr Strickland and Mr Mazurkiewicz and I regard the appropriate sentences in these cases as bonds under s 9 of the Crimes (Sentencing Procedure) Act. I do so with some hesitation because I do regard the offences as serious. They are each breaches of the law of this State which carry a maximum of fifteen years imprisonment. Both young men were knowingly involved in the supply of a drug which, in inexperienced hands, could be regarded as very dangerous.

17. Mr Corby, if you would stand up. Mr Corby, instead of imposing a sentence of imprisonment, I make an order directing you to enter into a good behaviour bond for a period of three years. The good behaviour bond is subject to these conditions:

1. That you must remain of good behaviour;

2. That you must appear before the court if called upon to do so;

3. That you must notify the court of any change of your residential address.

Thank you, you can sit down.

18. Mr Durrington, instead of imposing a sentence of imprisonment upon you, I make an order directing you to enter into a good behaviour bond for three years. The term of your bond is subject to these conditions:

1. That you must appear before the court if called upon to do so;

2. That you must, during the term of the bond, be of good behaviour;

3. That you must notify the court of any change of your residential address; and, in your case,

4. That you subject yourself to the supervision of the Probation and Parole Service and accept their reasonable directions and recommendations so far as the issues of alcohol use and peer interactions and associates are concerned. You can have a seat.

I will explain those sentences in a moment.

Mr Brown, first, are there any other orders or formalities that I need to attend to before explaining?

BROWN: No, your Honour, except that they’re s 9 bonds, I take it.

HIS HONOUR: They are. Mr Mazurkiewicz?

MR MAZURKIEWICZ: No.

HIS HONOUR: And Mr Blunt?

BLUNT: No, your Honour.

19. Gentlemen, Mr Durrington and Mr Corby, you have both been involved in very serious offending. Because of the legal representation which you have had, I have listened to both their arguments and I have accepted them. The prosecution, also, presented good arguments and was very fair in what they had to say. A lot of young men go to gaol for offences of the kind which both of you have committed. You have got yourself involved in some very, very serious criminal behaviour. Each of you now has a criminal record to demonstrate that. However, I have decided not to send you to gaol. I have given you each a bond to be of good behaviour for three years. That means that you have got to stay out of trouble for three years, no drink driving, no brawling, no drug activity, no possession of drugs. If you do, you come back before me and I can re-think the sentence and perhaps impose a sentence which is more serious.

20. Mr Durrington, you have the supervision component because that was recommended by the Probation and Parole Officer. It was not recommended for Mr Corby so that is why your order is slightly different, but both of you must understand that if you misbehave yourselves then you will be back before me and I can re-think the sentence and impose a more serious offence (as said) which can involve things like community service, weekend gaol, or full-time gaol. Do you both understand? Now, stay out of trouble and good luck.

BLUNT: Your Honour, there is one final matter in the matter of Durrington. There was folder tendered which had a--

HIS HONOUR: A what?

BLUNT: A folder tendered, might that be returned?

HIS HONOUR: Yes, which I think was exhibit B. I had taken that into account and looked through the papers.

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