R v Henson

[2019] NSWDC 874

District Court

New South Wales

Medium Neutral Citation:	R v Henson [2019] NSWDC 874
Hearing dates:	24 July 2019
Date of orders:	24 July 2019
Decision date:	24 July 2019
Jurisdiction:	Criminal
Before:	Judge W Hunt
Decision:	Sentenced to imprisonment for a period of 4 years and 3 months with a non-parole period of 2 years and 3 months.
Catchwords:	CRIMINAL LAW – Sentence – Supply prohibited drug greater than commercial quantity – Methylamphetamine – Form 1 – Possess prohibited drug – Deal with the proceeds of crime
Legislation Cited:	Confiscation of Proceeds of Crime Act. Crime (Sentencing Procedure) Act. Drug (Misuse and Trafficking) Act.
Category:	Sentence
Parties:	The Crown Roldan Henson
Representation:	Counsel: G Brady SC – The offender     Solicitors: Director of Public Prosecutions
File Number(s):	2018/282841

SENTENCE

1. HIS HONOUR: Roldan Henson is before the Court for sentence in relation to one offence of supply prohibited drug, being greater than the commercial quantity at an amount of 345.6 grams of methylamphetamine, in breach of s 25(2) of the Drug (Misuse and Trafficking) Act. For that matter a maximum penalty of 20 years and/or a fine of 3,500 penalty units has application and a standard non-parole period of 10 years applies.

2. When I come to sentence Mr Henson for the index offence I propose to take into account five matters on a Form 1. Of those, the most significant is a further offence of supply prohibited drug, being a supply of 14.84 grams of cocaine, similarly in breach of s 25(1) of the Drug (Misuse and Trafficking) Act. That matter, on indictment, has a maximum penalty of 15 years.

3. There are three further charges of possess prohibited drug in modest quantities in relation to cannabis, cocaine and methylamphetamine, and additionally there is one offence of deal with proceeds of crime, being less than $100,000. Consistent with principle and authority it is inevitable that, taking those matters into account, will place upward pressure on the penalty to be imposed for the index offence. Having said that, it is clearly the supply prohibited drug cocaine offence that has the most work to do in that regard.

4. The facts are agreed between the parties, and from the agreed facts I extract the following. In May 2018 police commenced a strike force in relation to supply of methylamphetamine in the south-west metropolitan region of Sydney. As part of that a controlled operation was organised. Investigators were able to access an instant messaging service known as Wickr which allows users to exchange end to end encrypted content with the messages expiring after some time. The index offence is comprised of three different transactions totalling the amount of methylamphetamine I have identified.

5. On 20 July 2018 a participant in the controlled operation contacted a particular Wickr address and requested two ounces of methylamphetamine, which is 56.8 grams. On that day the offender, in a vehicle that was registered to his name, arrived at a nominated location and received $6,000 in Australian currency and in exchange supplied the amount of drug I have identified with a purity of 72.5%.

6. On 26 July 2018 a participant contacted the same Wickr address and requested five ounces, or otherwise 142 grams of methylamphetamine, and at the same time half a gram of cocaine. Arrangements were made as to a meeting point and at noon on that day the offender arrived and entered a vehicle that the participant had arrived in. .54 grams of cocaine with a purity of 84% was provided. They are the facts in relation to the first matter on the Form 1. Additionally an amount of 139.9 grams of methylamphetamine with a purity of 70% was exchanged, and the total funds received by the offender in relation to the two transactions was $15,200.

7. On 1 August 2018 the final transaction that accounts for the criminality in relation to the index offence is that a participant contacted the same Wickr account and asked for five ounces, as I have said 142 grams, of methylamphetamine, and half an ounce, being 14 grams, of cocaine. Arrangements were made as to a meeting point, and at about 12.45 on 1 August the participant approached the door of a vehicle that the offender was in that was registered to him and handed him $18,400 in Australian currency, in exchange the offender supplied 149.9 grams of methylamphetamine with a purity of 74% and additionally 14.3 grams of cocaine with a purity of 80%. That second matter accounts for the balance of the facts in relation to the supply cocaine that is on the Form 1.

8. In the course of all those transactions the offender received a total financial benefit of $39,600.

9. The offender was arrested on 14 September 2018. When arrested he was found in possession of a black iPhone and a Blackberry device, $280 in cash which accounts for the proceeds of crime in relation to the matter on the Form 1. He was taken to Auburn Police Station and relied on his right to silence.

10. Later on the same day police executed a search warrant at his residential premises and there was found $1,315 in Australian currency, which accounts for the balance of the deal with the proceeds of crime, and small amounts of methylamphetamine, cocaine and cannabis, which are additionally disclosed as offences on the Form 1. Police found some clothing that was similar to clothing that was worn by the offender at some of the transactions.

11. The Crown contends that the objective seriousness of the offence is at the mid-range. Mr Brady SC contends that the objective seriousness of the offending is just below the mid-range. The weight of the drug itself is not determinative but it is worth noting that the weight of the drug involved is just under halfway between the threshold for commercial quantity and towards the large commercial quantity. I accept the Crown’s submissions that the offender seems to have had ready access to relatively large amounts of prohibited drug at fairly short notice. I accept Mr Brady’s submission that the role of the offender, although not being able to be characterised as a street level dealer, exposed him to some risk, that is consistent with him being lower in the hierarchy than a principal or a significant apparatchik. That said, he was trusted at least with large quantities of drugs and large quantities of money.

12. The criminality involved three separate supplies across a number of days. It is a mitigating factor that the offender has pleaded guilty. It is a mitigating factor that he has no prior convictions. There is no statutory aggravating factors. I consider, when considering all the matters put to me by the parties, that the criminality is virtually at the mid-range, but just slightly below.

13. I find that his role was not as a street level user/dealer but something more significant than that, but not approaching management level;, it is a little bit opaque to work out what exactly this offender’s role was.

14. Moving to some matters that are personal to the offender. He has no previous criminal entries. He was 30 years of age at the time of the offending and is now 31. He has a significant level of family support against the backdrop of a difficult background where his parents separated when he was relatively young and still living in The Philippines. His mother and his younger sibling came to this country and he was able to apply himself to study and the acquisition of the English language such that he was able to matriculate from the HSC, although he had some significant difficulties in both fitting in socially and finding consistent work as a result of those earlier reversals.

15. He had one significant relationship for about five years that broke down as the result of a failed commercial venture between he and his former partner. He has now been with a new partner who, on my assessment, taking into account her reference before the Court and the contents of the psychological assessment of Mr Fordyce, is a pro-social force for good. His brother additionally writes a letter of insightful support as does a further family friend.

16. Although the material in the psychological report is not supported by sworn evidence from the offender there is support for its contents both in terms of the lack of the criminal history and, as I have said, the detailed references that have been provided.

17. The offender provided a short handwritten letter of remorse. The expressions of remorse as detailed by the various referees attained more weight than that handwritten document.

18. I am prepared to accept the assessments of Mr Fordyce who seems to have undertaken a thorough psychological assessment of the offender. It is clear that for periods in advance of the offending the offender suffered from depression and anxiety. He is now assessed as, at the time of the offending, having suffered from cannabis use disorder, methylamphetamine use disorder, and cocaine use disorder, all currently in early remission in a controlled environment. I accept the assessments of Mr Fordyce, first of all, that the offender has expressed not only remorse to him but some insight into his criminal offending and the reasons for it.

19. I give some weight, particularly on the issue of special circumstances, to Mr Fordyce’s formulation of useful treatment for Mr Henson moving forward as needing to involve some significant work in the community so that he is able to stay drug and offence free.

20. I consider that the offender is remorseful. I consider that he has good prospects for rehabilitation. Apart from the pro-social supports that he has, the way in which he has applied himself to both education and roles of responsibility in the prison community, support that view. I consider that he is unlikely to re-offend.

21. I find special circumstances first on the basis of this being the first time that the offender has served a prison sentence. Second, supported by what I have referred to in Mr Fordyce’s report, is a need for an extended period of supervision in the community. I note that the Crown did not oppose the finding of special circumstances. Additionally the parties are joined in the position that the early pleas of guilty in relation to the matters should result in a full 25% utilitarian discount.

22. I have had regard to all the purposes of sentencing as provided by s 3A of the Crime (Sentencing Procedure) Act. I accept the Crown’s submission that general deterrence has an important part to play in this sentencing exercise. The absence of any prior record means that he is entitled to a leniency that somebody with a prior record would not be entitled to.

23. I consider, because of his psychological condition, that the need for specific deterrence is slightly diluted and I suspect that most of the work of specific deterrence has been done by him being in custody for the first time ever.

24. Taking into account all those things, and taking into account the effect of the matters on the Form 1, and most particularly the supply cocaine, which itself contained two separate transactions across a period of days, I take the view that the starting point sentence just before the application of the utilitarian discount would have been something just short of six years.

25. In relation to the matter you are convicted of the offence. I take into account the matters on the Form 1. I find special circumstances. You are sentenced to a period of imprisonment of four years and three months to date from 14 September 2018 and expiring on 13 December 2022. There is to be a non-parole period of two years and three months, which means the first date on which you can be entitled to be considered for release to parole is 13 December 2020. I have intentionally significantly re-arranged the proportion between the head sentence and the non-parole period that would normally otherwise apply by operation of the legislation. Just take a seat.

26. I make orders consistent with the short minute of order pursuant to the Confiscation of Proceeds of Crime Act. That order relates to cash in the sum of $1,595 found at the offender’s address, two mobile phones, and a drug proceeds order for $39,600?

27. I note sequences 11, 12 and 13 are back-up charges and are now withdrawn and dismissed. I also note that sequences 2 and 4 constituted part of the matters that I took into account in relation to sequence 1.

28. I make orders for the destruction of all the drugs involved.

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Decision last updated: 28 April 2020