R v Howell

[2021] NSWDC 744

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Howell [2021] NSWDC 744

Hearing dates:

26 November 2011; 16 December 2021

Decision date:

16 December 2021

Jurisdiction:

Criminal

Before:

Noman SC DCJ

Decision:

Aggregate sentence. Indicative sentences:- On Count 3 (ongoing supply), taking into account the further offence on the Form 1: 22 months. On Count 2 (ongoing supply), taking into account the further offence on the Form 1: 2 years and 3 months. Sentenced to a term of imprisonment of 3 years with a non-parole period of 2 years to date from 26 January 2021. Released to parole 25 January 2023.

Catchwords:

SENTENCING — Drug offences — Ongoing supply

Legislation Cited:

Drug Misuse and Trafficking Act 1985 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Category:

Sentence

Parties:

R;
Steven Anthony HOWELL

Representation:

Counsel:
Defence: T. Hennessy
Solicitor:
Crown: N. Lawrence

File Number(s):

2020/306743

Judgment

1. The offender, Steven Howell, appears for sentence on two offences of ongoing supply of prohibited drugs contrary to s.25A(1) Drug Misuse and Trafficking Act 1985 (NSW). The nominated 30 day periods are March - April 2020 [count 3] and June – July 2020 [count 2]. The maximum penalty of 20 years imprisonment operates as a legislative guidepost and represents the Legislature’s assessment of the seriousness of the offence. The periods of February – March 2020 [count 1 / sequence 1] and July- August 2020 [count 4 / sequence 7] are reflected in offences on two forms 1.

2. I intend to apply a reduction of 25% after the otherwise appropriate sentence has been determined to reflect the early pleas of guilty in the Local Court. An indictment was presented to address date inaccuracies. Pleas of guilty were entered to counts 2 and 3. No plea was sought on counts 1 and 4 and these offences are listed on the forms 1. Sequence 1 attaches to count 3 and sequence 7 attaches to count 2.

3. The offender asked that the offence on each form 1 be taken into account when I sentence on each principal offence. These offences are under the same offence provision. Having regard to the facts supporting each matter I consider it appropriate to take them into account and I will do so in accordance with the guideline judgment. An adjustment to each sentence is required to reflect the additional criminality encapsulated on each form 1.

4. I have had regard to the tendered facts and do not recite them.

5. The offender was sentenced for unrelated offences including participating in a criminal group and being an accessory to a break, enter and steal. He received sentences that expired or the non-parole period ceased on 15 February 2020. He was on parole for the accessory offence from this date until 15 August 2020. All his index offending was committed in breach of this parole. His first offence commenced on 20 February 2020, that is, 5 days after release to parole.

6. I note the circumstances of the individual supplies supporting each of the two ongoing supply offences.

7. Count 3 is supported by 39 separate supplies ranging from 0.1g up to 3.5g. The Crown submissions reflect that at least 37.875g was supplied for at least $6310. Some deals or payments are not specified and evidently more drugs were supplied and for more money. The offence on the form 1 involves 11 supplies and at least 12.55g for at least $3100.

8. Count 2 is supported by 49 separate supplies ranging from 0.1g up to 14g. The Crown submissions reflect that at least 55.56g was supplied for at least $16 025. Some deals or payments are not specified and evidently more drugs were supplies and for more money. The offence on the form 1 involves 14 supplies and at least 7.05g for at least $6050.

9. I observe the defence submissions address slightly different weights of 38.35g and 54.44g. The difference in each case is not of significance.

10. The conduct supporting each offence for sentence proceeded throughout the permitted 30 day period. The offender supplied well above the lower limit of 3 supplies. On occasion there was more than one transaction noted on an individual day. The drug supplied was methylamphetamine. Although many supplies were low quantity and consonant with a single use, a number were well above this. However, the conduct of the offender presented as a street level supplier. He was able to source the drugs on demand. He had his own client base and liaised directly with those purchasers. He organised and delivered supplies. He conducted his own business. There was a component of sophistication. The offender accepted not just cash but also payment by PayID. The drugs supplied were sourced from elsewhere and supplied by Alexis Logan. She mailed the drugs or buried the drugs to be retrieved later. Codey Barrett also supplied to the offender. Other persons performed a role similar to the offender although they operated their own business after receiving the drugs from the same source.

11. Police commenced a strike force investigation into the supply of drugs in Broken Hill in September 2019. On 14 April 2020 the offender was identified after he met with Logan and others who performed roles similar to his as independent street level dealers.

12. There were a number of customers and the drugs were disseminated into the community.

13. On 16 April 2020 the offender was stopped by police. Police located 30.8g of methylamphetamine and drug supply indicia. He was charged and bailed. Police Cellebrited his phone and detected details of the supplies used to support the two earlier periods of ongoing supply. After his subsequent arrest and after a defended hearing hewas sentenced for drug supply. He received a sentence of 12 months imprisonment with a non-parole period of 6 months to date from 27 October 2020. This sentence will be relevant to totality.

14. After being bailed he continued to offend, whist subject to bail. He committed the other offence for sentence and that on the form 1. His involvement was detected via telephone intercepts.

15. The offender used drugs and was involved to make money to support his own habit. He told the author of the Sentencing Assessment Report it was also to fund his living expenses. The money he received was not all profit as he was required to purchase the drugs.

16. This was a sophisticated operation although the offender was not particularly sophisticated in his on-supply dealings. I determine both offences, involving large individual supplies, to fall within the midrange of seriousness for this offence provision.

17. The offender is aged 32.

18. The offender’s criminal history commenced in 2007, when he was aged 18. In 2016 he received a Community Corrections Order for offences of trafficking amphetamines and possessing ecstasy in Victoria. In 2017 there was a further traffick amphetamines in Victoria and the 2019 offences of accessory and participate in a criminal group in 2019. These all culminated in terms of imprisonment. His other drug offence is the one relating to his arrest on 16 April 2020.

19. The offender has been in custody since 27 October 2020. This is for a drug offence occurring in amongst those for sentence. I note it is indicated in the sentence reasons that he sought to assert the drugs were for personal use but was sentenced for an offence of supply. Had he been dealt with at the time this offending would have resulted in some concurrency. He was eligible for parole on 26 April 2021.

20. The offender’s antecedents disentitle him to leniency.

21. The breaches of parole and bail, each a form of conditional liberty, is a circumstance of aggravation.

22. The offender gave evidence and relies upon letters of support, the contents of the Sentencing Assessment Report and a psychological report of Sam Borenstein. He attested to the truth of what he conveyed to the psychologist.

23. The author of the Sentencing Assessment Report indicated the support available in the community to the offender. He had support in court and there are letters of support. His current partner is continuing to offer practical support. He attested to wanting to return to work although it is noted he has not worked since 2018. He has completed various courses to address his addiction. He indicated in evidence he would be prepared to repeat the courses now that he is more focussed on remaining abstinent. He has been abstinent since his arrest and confinement. Caring for his alcoholic mother was one of the noted stressors contributing to drug use. She died on 25 February 2020 and her absence will lessen one cause of stress. He was already supplying drugs at this time.

24. The offender told the author of the Sentencing Assessment Report that he was easily and poorly influenced when under stress. He said he was encouraged by his co-offenders to participate.

25. He was assessed in the Sentencing Assessment Report as being at a medium risk of reoffending. This is a realistic assessment.

26. Mr Borenstein referred to the offender witnessing a suicide shooting in 2017. In evidence he confirmed he did not witness the event but arrived soon after. He said this contributed to his drug addiction that had previously been recreational. I observe he already had drug offences commencing in 2016. The offender advanced to Mr Borenstein and in evidence that he medicated with drugs and alcohol to address PTSD symptoms. He had a childhood diagnosis of ADD/ ADHD and he suffered learning difficulties in school resulting in placement in special needs classes. He is currently assessed as borderline to low-average intelligence.

27. The offender experienced a difficult childhood with exposure to parental substance abuse and domestic violence. He was not supervised as a child partly due to his mother’s mental health issues. His mother possibly was traumatised as a victim of the ‘stolen generation’.

28. The offender’s background including his childhood, his mental health and his self-medication with drugs, warrants a lessening of moral culpability and some amelioration to sentence.

29. Mr Borenstein assessed severe levels of depression and extremely severe levels of anxiety in custody. He advanced the diagnosis of complex PTSD. Intensive psychological treatment and drug treatment is foreshadowed.

30. Family friends, friends and his current partner each wrote of the offender’s positive attributes and the qualities he possesses when not in the ravages of drug use. These qualities, if they remain on the surface, will assist him to move forward. Those who support him are prepared to assist. The motivation of his children, including his youngest, is recognised. He was however already in a relationship with his current partner prior to his offending. Her support was insufficient. His abstinence in custody has not been tested upon return to the community and exposure to stressful situations. His evidence was compelling when he stated he knew himself to be a good person and that he needed to get in the right head space. He intends to avoid poor peer influences.

31. I accept that there is some remorse and insight. Despite the current drug abstinence, personal deterrence continues to play an important role. I note Mr Borenstein’s indication of the need for treatment and support. I accept the offender is prepared to undertake courses and treatment. I accept he has been unable to access appropriate courses due to COVID restrictions and his remand status.

32. He has some prospects for employment upon release and if achieved will prove beneficial to his prospects.

33. The supply of drugs into the community is not victimless. The drugs on each occasion were disseminated into the community, and to different purchasers. There is considerable misery occasioned to users, addicts, their families and those in the community impacted by drug related crime. General deterrence and denunciation are important sentencing considerations.

34. I have had regard to the purposes of sentencing identified in s.3A Crimes (Sentencing Procedure) Act 1999 (NSW) and which sentencing option best addresses rehabilitation.

35. I have regard to the sentences imposed upon others involved in the drug operation. They are not strictly co-offenders. There are no shared offences. I am provided with some documents relevant to each and the details of the sentences imposed. I do not have the reasons for sentence. I know nothing of the subjective circumstances of these offenders.

36. The s.5 threshold is passed and a sentence of full-time imprisonment is required. I acknowledge the submission on the offender’s behalf that an Intensive Correction Order could be considered. I do not accept this submission in view of the seriousness of the offending.

37. These offences for sentence occurred as part of an ongoing supply, yet each is a separate offence of discrete supplies within 30 days. Some accumulation is required. I am mindful of totality and the earlier sentence from 27 October 2020 to 26 April 2021. The timing and circumstances of that offence calls for some concurrency with the sentences for the index offending. I propose to back date this sentence to commence on 26 January 2021.

38. I make a finding of special circumstances based on the need for additional support, the impact of accumulation due to totality and the restrictive conditions in custody due to COVID.

39. The offender is convicted of both offences of ongoing supply. I intended to impose an aggregate sentence. The indicative sentences, each reduced by 25% to reflect the plea of guilty, are:

On count 3, an offence of ongoing supply, taking into account the further offence on the form 1: 22 months imprisonment

On count 2, an offence of ongoing supply, taking into account the further offence on the form 1: 2 years and 3 months imprisonment

40. I sentence the offender to a term of imprisonment of 3 years with a non-parole period of 2 years to date from 26 January 2021. The offender will be released to parole on 25 January 2023. This is a variation to the statutory ratio to 66% to give effect to my finding of special circumstances.

41. As this sentence is partially accumulated on a separate sentence, the overall sentence is one of 3 years and 3 months with an overall non-parole period of 2 years and 3 months. I note the overall ratio is 69%.

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Amendments

14 April 2022 - coversheet - corrected case name

Decision last updated: 14 April 2022