R v Jessop

[2023] NSWDC 367

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Jessop [2023] NSWDC 367

Hearing dates:

16 March 2023

Date of orders:

16 March 2023

Decision date:

16 March 2023

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate imprisonment sentence of 2 years 10 months to be served subject to an Intensive Corrections Order

Catchwords:

CRIME —Drug offences — Multiple drug offences — Cultivate prohibited plant — Manufacture the prohibited drug psilocybin — Small quantity of mushrooms but relatively large quantity of psilocybin — Supply prohibited drug — Personal use

CRIMINAL PROCEDURE — Back up and related offences — Procedures

SENTENCING — Penalties — Intensive correction orders

SENTENCING — Plea of guilty — Committal for sentence

SENTENCING — Relevant factors on sentence — Form 1 offences — Objective seriousness — Purposes of sentencing

SENTENCING — Subjective considerations on sentence — Experience of trauma and neglect

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Procedure Act 1986 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Poisons and Therapeutic Goods Act 1966 (NSW)

Weapons Prohibition Act 1998 (NSW)

Cases Cited:

Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Henry v R (1999) 46 NSWLR 346; [1999] NSWCCA 111

Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3

Category:

Sentence

Parties:

Thomas Oliver Jessop (offender)
Director of Public Prosecutions (the Crown)

Representation:

Counsel:
P Williams (for the offender)
N Johnson (solicitor) (for the Crown)

Solicitors:
Tony Cullinan Lawyers (for the offender)
Public Prosecutions (NSW) (for the Crown)

File Number(s):

2021/308491

JUDGMENT – Ex Tempore REvised

Introduction

1. A police investigation into the supply of prohibited drugs in the Bega Valley led to the seizure of mobile phone footage which showed a pill press and a person with tattoos manufacturing pills with a Rolex symbol. Fifteen pills were produced. Thomas Jessop has tattoos similar to those in the footage obtained by police.

2. Further investigation led to Jessop’s vehicle being stopped by police on 30 October 2021. He and his car were searched. Police found a card blade; an item that resembles a credit card but can be folded out, origami style, to be a knife. A card blade is a prohibited weapon within the schedule to the Weapons Prohibition Act 1998 (NSW). He also had a sum of cash, a small quantity of cocaine and cannabis leaf. A search warrant was applied for at his home in Bega.

3. In the home they found; a cannabis plant, books about the cultivation of cannabis and more cannabis plants in ‘grow pots’. At various locations in the premises, they discovered bags of cannabis leaf. When all the cannabis in the house and car were added together it totalled 2.732 kilograms.

4. Also found were items connected with and used in the growing of mushrooms of various types; all of which contained psilocybin. The offender has always maintained, and affirmed in evidence today, that he was manufacturing those mushrooms for his own use. In total 4.6 grams of mushrooms containing the prohibited dug psilocybin were found. There is no evidence that Jessop was attempting to extract that critical ingredient from those mushrooms by any further manufacturing process. Also found were small bags containing pills weighing 9.77 grams. They were analysed and found to contain the prohibited drug MDMA. Another 26 tablets of Modafinil were found on a bookshelf in his home.

5. There was also a pill press. It is accepted, that it is the press depicted in the video which initially attracted police attention.

6. Police also found 17.38 grams of methylamphetamine, some knuckledusters and $2,510 in cash.

7. When the matter was before the Local Court, Mr Jessop said he would plead guilty to four indictable offences:

• Sequence 7: Manufacture a Prohibited Drug being 4.8 grams of MDMA; s 24(1) Drug Misuse and Trafficking Act 1985 (NSW), maximum penalty 15 years imprisonment;

• Sequence 11: Supply of a Prohibited Drug, 9.77 grams MDMA; s 25(1) Drug Misuse and Trafficking Act 1985 (NSW), maximum penalty 15 years imprisonment;

• Sequence 17: Manufacture a Prohibited Drug, 4.6 grams of psilocybin; s 24(1) of the Drug Misuse and Trafficking Act 1985 (NSW), maximum penalty 15 years’ imprisonment; and

• Sequence 18: Supply a Prohibited Drug, 2732 grams cannabis leaf: s 25(1) Drug Misuse and Trafficking Act 1985 (NSW), maximum penalty 10 years’ imprisonment.

8. He also accepted his guilt for five additional matters, which were sent to this Court for sentence pursuant to a s 166 Criminal Procedure Act 1986 (NSW) certificate:

• Sequence 2: Possess Prohibited Weapon, the card blade; section 7(1), Weapons Prohibition Act 1998 (NSW);

• Sequence 8: Possess Prescribed Restricted Substance, 26 tablets of Modafinil; s 16(1) Poisons and Therapeutic Goods Act 1966 (NSW).

• Sequence 12: Supply Prohibited Drug, 17.38g methylamphetamine; s 25(1) Drug Misuse and Trafficking Act 1985 (NSW).

• Sequence 15: Possess Prohibited Weapon, the knuckle dusters; s.7(1) Weapons Prohibition Act 1998 (NSW).

• Sequence 16: Deal with Suspected Proceeds of Crime, the $2,510 cash; s 193C Crimes Act 1900 (NSW).

9. Jessop asks that when I sentence him for the manufacture of the MDMA, I take into account;

• Sequence 1: The possession of a tablet press, s 11B(1) Drugs (Misuse and Trafficking) Act;

• Sequence 3: Cultivate prohibited plant; and

• Sequence 5: Possess the prohibited drug.

10. Matters to which I have earlier referred. I will do so. I do not sentence for matters on the Form 1.

11. Ordinarily they mean that greater weight has to be given to community protection and specific deterrence in the matter for sentence in accordance with guideline judgment of the Court of Criminal Appeal: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [39] to [42]. Here, as each of the matters on the Form 1 inform my assessment of the objective seriousness of other matters presently before the Court for sentence, it would be wrong if I double counted by taking them into account on two occasions. In essence, these matters clear the slate. And, if sentenced individually would not have led to custodial sentences. Nevertheless, they must be taken into account.

12. The maximum penalties are important guides to the exercise of my sentencing discretion. The pleas of guilty are also important. Each of the matters for sentence must have the sentences reduced by 25% to reflect the utilitarian value of the pleas. I note that, given the number of matters before the Court, the efforts that were made in the Local Court to resolve these matters did have value to the course of justice and freeing up of Court time. His pleas indicate cooperation by Jessop, in addition to their purely utilitarian value. That cooperation is some indication of Jessop’s prospects for the future. Matters that I take into account when I come to synthesise or formulate the appropriate sentence.

Objective seriousness

13. In her written submissions, Ms Johnson, who appears for the Director of Public Prosecutions, sought to place each of the matters for sentence into a notional range. I do not believe I need to do so. What is critical to any sentencing exercise is that my judgment set out a proper appreciation of the seriousness of what was done. Objective seriousness must be synthesised along with all other relevant factors.

14. Some of the material as to the offender’s background indicates underlying mental conditions may be present, and I will take those into account. But I do not believe that they fall into the category of causally connected matters that are sometimes used to reduce the objective seriousness of the offending. Nevertheless, they are important and relevant, and I will refer to them later.

15. The manufacture of any illicit drug is prohibited because Parliament, on behalf of the community, has made it abundantly clear over many, many years that illicit drug use must be treated very seriously by the courts because of the harms they cause individuals and the community.

16. While individuals are entitled to opinions about the harm drugs cause, Parliament has said that their possession and manufacture and cultivation is illegal. The public has to understand the consequences of breaching those laws, particularly where heavy maximum penalties are prescribed.

17. Jessop admitted the manufacture of the MDMA was partly for his own use and partly for supply. In his evidence, he sought to downplay the level of supply, and in his own mind, I am sure, he believes that he was not a drug dealer as such, but he admitted to his GP, Dr Brown, that he did sell both cannabis and MDMA because he thought it would help his financial situation. Jessop has to understand, as do members of the community, that any supply of illicit drugs will be treated seriously.

18. Jessop has, over his young life, suffered from the impacts of illicit drugs on him. His father suffered the impacts of illicit drugs and the family suffered as a consequence of his father’s drug use. It is for that reason that any supply activity is treated seriously and will be treated seriously by the Court. So seriously here, that as I indicated in discussion, I believe custodial penalties are warranted.

19. I have regard to the quantity of MDMA which was not high, relative to many matters dealt with by this Court. I have regard to, how the pill press was used, how easy it was to obtain the pill press and the amateurish nature of the operation. He was not setting up a business for supplying MDMA, but he did supply it and he had the capacity to supply more.

20. Possession for the purpose of supply is the offence. It does not matter that someone is also using it for themselves. If they were prepared to supply to others, they have committed a serious offence.

21. In so far as each of the supply offences are concerned, the plea indicates an acceptance that he could not meet the onus showing possession was for anything other than supply to others, even if it was in part for his own use, it was also for the supply to others.

22. Assessing the seriousness of the psilocybin count is an interesting exercise. Jessop clearly went to some trouble to obtain spores and grow the mushrooms. He said in evidence, that he had read about recent moves, supported by many respected members of the community, to decriminalise such drugs, and allow for their use in the treatment of mental conditions. That said, the same, in a sense, goes for cannabis. But the law is clear while those drugs are illegal, one can read about it, but one cannot act.

23. Members of the community have to understand that if they believe that they would benefit from the use of what are illicit drugs, they must lobby Parliament for change and vote for those who want to make such changes. They cannot take the law into their own hands, whether it be cannabis use, cannabis cultivation, mushroom growing or mushroom use, without consequence.

24. As is clear here, and is clear from the submissions, they have to also understand that drug weights are one important aspect that the Court takes into account when it comes to formulating an appropriate sentence. And that the form of the drug may sometimes have an impact on its weight.

25. Here, the offender may not have thought that 4.6 grams of mushrooms was a particularly large amount. But as the Crown submissions make clear, the law is not concerned about the dosage unit, but the quantity of whatever the psilocybin is contained in it. Here, the indictable, that is serious, quantity of psilocybin is only 0.25 of a gram. The quantities here, given the measure is the total weight of the mushrooms, is significantly more than that anyway.

26. What I have just said also applies to possession and cultivation of cannabis. Further, I do not accept his evidence that it was for his own use, given the way it was bagged and kept. Obviously, as he said to Dr Brown, some of it was to be sold.

27. But there is no indication in the material before me that he was conducting a drug supply operation as such, and there are no indicators there was any greed-based supply. Matters I take into account.

28. I will try and reflect the relative seriousness of the matters in the penalties that I impose to give some further indication, without the need for excessive use of adjectives, as to how serious I viewed each of the matters for sentence.

29. So far as the matters on the 166 Certificate are concerned, there are strict rules about the possession of prohibited weapons such as knuckle dusters and card blades. If they are possessed in the presence of drugs, then they can be used to harm people. If people know, as they clearly did here, that drugs are being held or manufactured in a home, some in the community may decide to help themselves to them. If people then seek to defend their property and their illicit drugs, things can escalate, and if weapons are involved people can get hurt. There is no excuse for carrying such weapons.

30. So far as the other matters are concerned, what I said earlier applies equally to the supply offence. The possession of the modafinil does not justify a custodial penalty but the other matters do. Having formulated those views as to seriousness, I then have to consider the totality of the offending.

31. I will indicate a sentence for each of the matters when I come to formulate the aggregate taking into account all relevant matters. The total sentence must be proportionate to both what was done and the subjective case of the offender, to which I will now refer.

The case for the offender

32. Jessop gave evidence. I was prepared to accept what he said on most matters. But some matters where he contradicted by things he had said to others.

33. I accept that since his arrest for this matter, he has done everything he can do to turn his life around. And that is, sadly and relevantly, unusual in matters such as this. But Jessop is an unusual man, and I mean no criticism of him by that.

34. His background attracts the sympathy of the Court. It is set out in material before me. There is evidence about aspects in his background that show he experienced trauma and neglect. His mother and father both had their demons. Both have, over time, dealt with their problems but sadly, his father died while the offender was young.

35. His history is set out in the material before me. I can accept it. He has received treatment from health professionals, for Attention Deficit Disorder and other underlying mental conditions, although they have not been formally diagnosed.

36. Ms Whiting, a clinical psychologist, in her comprehensive report, notes that he has experienced at least five of the ten adverse childhood experiences listed on professionally endorsed scales. She notes that if unaddressed, early trauma creates strong emotional reactions and triggers throughout life, particularly if there are no positive role models in a child’s life.

37. She also notes the many positives Jessop has and his capacity as an affable young man to live a more law-abiding life in the community. She notes the deterioration of his mental health over the four years which led to and coincided with the commission of these offences. She notes he still experiences emotional vulnerability, as shown in his evidence today.

38. A Mental Health Care Plan is in place and is being adhered to. He has remained drug free. He has been subject to, while on bail, regular random drug testing and there are no negative or adverse reports. He now uses medical cannabis legally to deal with an underlying pain problem resulting from a serious accident.

39. He is assisted by Sapphire Health & Wellbeing Service. He is engaged in drug counselling and actively participating in all recommendations of his health professionals. Matters I take into account.

40. I do not underestimate the impact of his family background and the various traumas to which he was subject. There is still debate about whether such matters strictly fall within the scope of the principles enunciated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. But there is no doubt that events described here can have a detrimental impact on a child, or a young person, and are significant by way of mitigation.

41. Courts do not devalue the impact of the events detailed in the reports before me, and their impact on the young man, the adolescent, and the young man now for sentence. Such matters are always relevant when it comes to synthesising and formulating an appropriate and just sentence.

42. One way can be to assist the Court in understanding why he took up the use of illicit drugs, and what can and is being done to deal with that problem. A Court cannot take it into an account as a mitigating factor, that the offences were committed by someone affected by drugs for the purpose of obtaining drugs to feed their addiction. Bit how their addiction came about and what is to be done about it are particularly relevant questions when it comes to formulating an appropriate sentence: Henry v R (1999) 46 NSWLR 346; [1999] NSWCCA 111 at [273].

43. Care needs to be taken, because, while full weight can be given to a person's background, that does not mean necessarily their moral culpability should be reduced in every case. Here, drug befuddled though he was, Mr Jessop clearly undertook a series of actions which he well knew were illegal. He had come before the Court previously and been treated relatively leniently for cannabis matters. But despite those matters being dealt with leniently, he continued to grow, continued to use, and on occasions, provide cannabis to others. And he took up the manufacture of other illicit drugs.

44. Although it was easy to gain information from YouTube and get materials over the internet, he acted in defiance of the law, and he well knew this. Matters that reinforced my view that custodial sentences are required.

Submissions

45. Ms Johnson, for the Director, provided helpful and comprehensive written submissions which I have sought to address and incorporate into this judgment. She notes that the matters raised in mitigation did not significantly reduce Jessop’s moral culpability, although of course, they must be considered.

46. She says in maters such as this there should be an emphasises general deterrence and denunciation. General deterrence in the sense that others in the community have to understand the consequences of behaving as Jessop did, and denunciation, to appropriately reflect the harm illicit drug supply and manufacture can cause individuals in our community.

47. Mr Williams, who appears for the offender, notes the material before me demonstrates that, since his arrest, Jessop has used the help that has been offered to him, and with that help he has sought out to turn his life around.

48. He says, the evidence today indicates a commitment to change, and that he has come a very long way in a relatively short period. Mr Williams suggested initially that the s 5 Crimes (Sentencing Procedure) Act 1999 (NSW) threshold had not been crossed. But I, hopefully respectfully, cut him short for the reasons I have outlined that custodial penalties are required in this matter despite the strong case in mitigation.

49. Courts recognise that where someone is still young, still impressionable and has demonstrated a commitment to rehabilitation, that that can be rewarded. There is a community interest in them being given an opportunity to live a law-abiding life in the community, a productive life in the community. This is of particular importance where they have not developed settled criminal habits.
    A lenient sentence is not just in their interest but the community's.

45. Mr William’s asks that I deal with the matter subject to an Intensive Correction Order. As I indicated at the outset of these remarks, I accept that disposition is in appropriate.

An Intensive Corrections Order

51. Before an Intensive Correction Order can be made, three steps must be undertaken. First, I have to consider all possible alternatives, and reach a conclusion no penalty other than imprisonment is appropriate. Secondly, I must determine the appropriate term for the sentence. And then, and only then, do I consider whether or not to make an Intensive Correction Order. And although I announced the decision at the outset, in a hope of reducing the anxiety of the offender, that is the process I undertook today.

52. I note that community safety issues are critical to such an assessment. And that those aspects underpin some of the general purposes of sentencing which I had to consider when deciding whether a custodial sentence was warranted. Community safety is required to be considered again, and in a different manner when considering making an ICO. And here I am referring to the recent High Court decision of Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3.

53. There are mandatory considerations when considering whether to make an ICO set out in s 66 of the Crimes (Sentencing Procedure) Act. The section requires the Court to treat community safety as the paramount consideration. In that context, community safety principally concerns possible harms to the community from the offender's future risk of reoffending.

54. The issue is not merely the offender's risk of reoffending but the narrow risk of reoffending in the manner that may adversely affect community safety: Stanley [72] and [116]. The section is premised on the view an offender's risk of reoffending may be different depending on how their sentence of imprisonment in served. It implicitly rejects an assumption that fulltime detention will most effectively promote community safety. It requires the Court to look forward to the future possible impacts of the sentence of imprisonment. It also requires the nature and content of any conditions that might be imposed to be considered because they are an important measure of the risk of reoffending. While community safety is not the sole consideration, it would usually have a decisive effect.

Synthesis

55. Imprisonment can protect the community by an offender's removal, and then making them subject to supervised parole. However, if a Court has some confidence that a process of rehabilitation is being undertaken, then the likelihood of reoffending can be diminished by use of an Intensive Corrections Order.

56. It is also accepted that time in gaol, while it may cause an offender to dwell on what they did and refrain, given recidivism rates, that purpose is not often borne out by experience.

57. Here, it is important to note the professional opinion of Dr Brown that custody would have a retraumatising effect and interrupt the healing process. Courts do not underestimate the traumatising impact of gaol on individuals, particularly those with the psychological vulnerabilities demonstrated in the evidence before me.

58. Despite the seriousness of the offences and the number of them, I believe that the offender is sufficiently engaged and motivated. As the material before me makes clear, he has been active in his own rehabilitation. He has been motivated by his determination to keep to his bail conditions and the threat of gaol. He has responded positively to that motivation. All the material before me indicates that he is quite a different person than the person who was arrested and spent a day in custody on 31 November 2021.

59. For those reasons, as I indicated at the outset, there will be aggregate sentence of imprisonment, but that sentence can be served subject to intensive correction in the community. In doing so, as I indicated, I have taken into account the principle of totality.

60. There must be some independent punishment for each of the matters for sentence. Given the nature of the matter that is before me, the confused nature of what he was doing at the time, there must also be considerable concurrence, as one matter seemed to merge into the other. The purposes of sentencing apply to all of the relevant matters. And many of those purposes overlap.

The formal orders of the Court

61. There will be convictions in each matter. I take into account the pleas of guilty and each indicated sentence has been reduced by 25%. Sequence 8 on the 166 Certificate, will not be part of the aggregate sentence. In relation to Sequence 8 there will be a Community Corrections Order for a period of 12 months from today's date.

62. The other matters will all be dealt with as an aggregate sentence. I have to indicate each individual sentence:

63. For the Sequence 7, the Manufacture of 4.8 grams of MDMA, plus matters on the Form 1, I indicate a sentence of 2 years and 3 months imprisonment.

64. For the Sequence 11, Supply MDMA, I indicate a sentence of 1 year and 3 months.

65. For Sequence 17, the Manufacture of Prohibited Drug psilocybin, I indicate a sentence of 1 year and 6 months.

66. For the Supply of cannabis leaf, I indicate a sentence of 1 year and 6 months.

67. For the card blade, Sequence 2, I indicate a sentence of 1 month's imprisonment.

68. For the Supply of 17.3 grams of methylamphetamine, I indicate a sentence of 9 months.

69. For the Prohibited Weapon, knuckle dusters, I indicate a sentence of 3 months imprisonment.

70. For Dealing with Process of Crime, I indicate a sentence of 9 months.

71. The sentence will commence today. That aggregate sentence will be 2 years and 10 months imprisonment commencing 16 March 2023, expiring 15 January 2026. That sentence is to be served subject to intensive correction in the community. There are standard conditions which I have explained. The most important being, to report and be of good behaviour. There must be no offending. If you breach by offending, you could be brought before the State Parole Authority. You could end up in gaol.

72. Additional conditions are:

1. To engage as directed by Community Corrections in psychological treatment for as long as they deem necessary.

2. To engage in drug relapse, or drug and alcohol programs as directed.

73. The remaining matter is withdrawn and dismissed. I will entertain any other applications for orders within 28 days.

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Amendments

11 September 2023 - Typographical error.

Decision last updated: 11 September 2023