R v Jones

[2019] NSWDC 654

District Court

New South Wales

Medium Neutral Citation:	R v Jones [2019] NSWDC 654
Hearing dates:	26 June 2019
Date of orders:	26 June 2019
Decision date:	26 June 2019
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	3 year Community Corrections Order
Catchwords:	CRIME — Drug offences — Supply prohibited drug
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	Qutami [2001] NSWCCA 353 The Queen v Osenkowski (1982) 5 A Crim R 394 The Queen v Ross [2019] NSWDC 115
Category:	Sentence
Parties:	Regina (Crown) Brendon Jones (Offender)
Representation:	Aiyathurai Kirupaidasan (Crown) Mary Keaney (counsel) (Offender)   Director of Public Prosecutions (NSW) (Crown)
File Number(s):	2018/00184627

EX TEMPORE REVISED Judgement

INTRODUCTION

1. This is a somewhat unique case I find. Brendon Jones is 22, he will turn 23 later this year, and when one considers his antecedents it is clear that he has been a persistent criminal offender from April 2014 when he was first prosecuted in the Children’s Court. Apart from the various conditional liberties that were extended to him as a child before he became an adult, he has had the benefit of supervision on past occasions by order of adult courts and yet he has continued to embark upon the criminal misconduct, escalating in seriousness, and of such significance that from the age of 18 he has spent most of his time in gaol. Thus, although a young man I fear that there is a risk of him becoming an institutionalised criminal, more comfortable in gaol than out on the street with the remainder of his life effectively lost to him.

CUSTODIAL HISTORY

2. The custodial record before me has him in custody from October 2014 when he was just 18 years of age; that was for one day when he was bailed and then he was at large for seven months until 21 May 2015 when he was in custody for two days; then he was bailed and he was at large until 24 June 2015, at which point he was taken into custody for the purposes of a sentence until his parole in January 2017.

3. He came into custody again on 2 April 2017 for breach of parole and he was required to serve the balance until that sentence expired on 20 November 2017; nine months later he was sentenced once again, from 16 August 2018 until he was paroled on 14 March 2018. In that period between the 20 November 2017, when his sentence expired and his admission on 16 August 2018, he committed the offence upon which sentence is to be imposed. He was in that time subject to conditional liberty by way of a bond pursuant to s 9 Crimes (Sentencing Procedure) Act 1999. He was called up for breaching that bond by reason of this misconduct or other misconduct, but the Court upon finding the breach established on 30 January 2019 made an order pursuant to s 10A Crimes (Sentencing Procedure) Act 1999 imposing no penalty other than the conviction to which he was exposed. This is a brief description of his history. He has spent no time in custody for the present offence

THE OFFENCE

4. These proceedings are in respect of a charge of supplying a prohibited drug, namely 6.03 grams of methylamphetamine contrary to s 25(1) Drug Misuse and Trafficking Act 1985, for which the maximum penalty is imprisonment for 15 years and a fine of 2000 penalty units. There is no standard non-parole period for the purposes of Pt 4, Div 1A Crimes (Sentencing Procedure) Act.

THE PLEA

5. The offender pleaded guilty in the Local Court and then was committed for sentence to this Court.

THE FACTS

6. The offence is alleged to have occurred between 12.28pm and 1.28pm on 20 April 2018 at Liverpool; the supply occurred in the course of a transaction between the offender and his accomplice and an undercover operative. The drug, as particularised in the Court Attendance Notice, at 7 grams, no doubt reflected the packaging which would have increased the mass from the 6.03 grams referable to the drug alone. The purity of this methylamphetamine was 68.5%.

7. The Court need not spend any significant time dealing with the significance of the drug in question - reflected in the decision by Parliament to specify the various amounts in the Drug Misuse and Trafficking Act 1985 Schedule 1 adjusted to reflect the very serious consequences for the community that the distribution of this poison has. In some areas it has been devastating to those who are addicted to it and to other members of the community who become exposed to the depravations of addicts as a consequence of the burden under which they live.

DISCOUNT FOR UTILITY

8. The offender adhered to his plea of guilty in this Court. Were he to be going in to gaol today, whether to serve a sentence in prison or to serve a sentence by way of an intensive correction order, he would be entitled to a discount of 25% to reflect the utility of a plea of guilty.

PRELIMINARY CONSIDERATIONS

9. At the beginning of the hearing of this matter I was given the Crown material, which I read without reference to the subjective matters that counsel wanted to tender offering support for her submissions. My immediate assessment of the matter upon the limited material I had was that the line in s 5 Crimes (Sentencing Procedure) Act 1999 had been crossed and that a sentence of imprisonment was appropriate subject to further discussion upon the manner in which it should be served. I made clear at the time that I was expressing that view upon the Crown material only. After I had finished reading it counsel tendered the subjective material upon which reliance was to be placed and that was followed by the Crown supplementing the Crown bundle, exhibit A, with a further psychological report written on 8 July 2016. The purpose of the Crown in doing so was to bring to my attention the opinion given by the psychologist who wrote on that occasion that the offender was an unreliable historian. It appears that that opinion was offered upon a comparison made between representations attributed to the offender and records from which a chronology was drawn in the period from 27 June 2015 through to 11 August 2015. It was apparent that there were some, I would say, minor inconsistencies.

10. I would not agree with the opinion offered in the report, for it is apparent when one reads closely that report written on 8 July 2016 and the further report provided on 16 June 2019 that the representations attributed to the offender by each of the psychologists were for the most part consistent. To the extent that there might be some disparity that would be clearly explained by the time that had passed between the consultations that were undertaken for the purposes of the reports, and as I remarked it would be most surprising if the appellant had notes to draw from for the representations made to the subsequent psychologist. Indeed, such differences as there are, which are not significant in my view, enhance the reliability and credibility of the representations attributed to him and thus the circumspection urged by Smart J in Qutami [2001] NSWCCA 353 having been employed does not cause me to conclude that I should not find on the balance of probabilities the facts in mitigation of penalty to which I shall come.

11. But first I shall deal with the facts in more detail.

THE FACTS IN MORE DETAIL

12. The offender engaged upon this activity with a co-accused, Ashley Virissimo [1] . Ms Virissimo, a female, was charged with one offence of ongoing supply contrary to s 25A (1) Drug Misuse and Trafficking Act 1985. That is a more serious offence than that with which this offender is charged. She is listed for sentence in this Court on 24 September 2019. There is a further offence of supply prohibited drug contrary to s 25(1) of the Act to be taken into account on sentence. She also faces a further charge of participating in a criminal group contrary to s 93T(1) Crimes Act 1900 which is also placed on the Form 1 to be taken into account. Thus parity does not arise in this case at all at this stage of the proceedings for the simple reason that the co-offender is facing a much more significant array of misconduct, including a more serious charge with additional offences to be taken into account, and this offender is the first to be sentenced for the participation upon which he engaged with her to a more limited extent.

    1. At the time of reviewing this judgement I was in a regional centre without access to the file. There might be some inconsistency here in the spelling of this name.

13. An undercover operative contacted Virissimo and organised to obtain 7 grams of methylamphetamine and they agreed to meet with the supplier at 12pm the next day. The implication in that statement is that the supplier was this offender.

14. On 20 April 2018 at 12.30pm the undercover operative drove to Liverpool Railway Station, where Virissimo entered the passenger seat of the vehicle. The undercover operative then drove to an address in Liverpool, where Virissimo got out of the car and entered the doorway to the unit complex. A few minutes later she walked back to the car. The undercover operative saw a taxi stop outside the complex. The offender alighted and walked down the driveway. Virissimo left the operative’s car again and spoke with the offender for a short time, before they walked into the unit complex. Virissimo returned to the car again, before getting out of the car and entering the unit complex.

15. A short time later, Virissimo and the offender walked out of the complex. Virissimo re-entered the car, while the offender walked to the driver’s side; the undercover operative put her window down, whereupon the offender handed her a small resealable bag containing the prohibited drug. A conversation followed, in the course of which the undercover operative said:

“UCO: So you lookin at three five now.

Offender: All right.

UCO: Four, after that can you do more than one at a time, or?

Offender: How many you want, whatever.

UCO: Like, would you be able to do three at a time?

Offender: Yeah.

UCO: All right.

Offender: Mate, if it’s gonna be three at a time that’s, like, 3200 … 3200.

UCO: 3200.

Offender: Yeah.

UCO: In each.

Offender: For, for three ockers.

UCO: Yeah.

Offender: For, yeah.

UCO: Yeah yeah.

Offender: For three …. It’s cheaper, I have …

Offender: …The higher you go the cheaper it is … Straight out, that’s good for you, bro, it’s from Punchbowl.

UCO: All right, and do you always get it from the same place, like, it’s always good.

Offender: It’s alwa, always from the, like, there’s two pla, there’s two places I love to go there, I love to go there, and my, my, my step‑dad’s.

UCO: Yeah.”

16. I referred to this exchange in the course of the presentation of the matter. The implication in the conversation is that the offender was willing to make available greater quantities that would be cheaper because of the bulk, including a reference to the number 3200, which appears to me to be a reference to a price for a quantity of the drug described as “three ockers”.

17. The offender is not charged with a broader concept of the term supply that might well be caught by the extend of the meaning of the term encompassed in s 3 Crimes (Sentencing Procedure) Act 1999 definition of “supply”, which can be committed in circumstances where there is an offer to supply a drug regardless of whether there is a drug available for that purpose. So, care must be taken not to breach the De Simoni principle and to confine the punishment to which the offender is exposed by the misconduct upon which he has been presented and to which he has pleaded guilty. That said, the conversation provides a measure of context which I have not ignored in the assessment of the outcome in this case.

18. The UCO paid $1,250 to the offender. The offender introduced himself as “B” before leaving and returning to the inside of the unit complex. Virissimo left the car and went inside the unit complex and upstairs, then returned to the car.

19. The drug was submitted for analysis and found to be 6.03 grams of methylamphetamine with a purity of 68.5%, as I said earlier. DNA matching the offender was located on the sealed area of the drug bag.

20. A search warrant was executed on 14 June 2018 at the premises. I will not specify the address because the premises were used not only by the offender; he was living there with his mother and also another person named in the facts.

21. Upon the execution of the search warrant the police found a weight scale, scissors, two straws, a spoon and a bundle of red-lined clear plastic bags all together in his bedroom, all of them paraphernalia for the purposes of the supply of drugs.

22. He was arrested and cautioned and taken to Campbelltown Police Station. After the various Law Enforcement (Powers and Responsibilities) Act 2002 procedures were followed, he declined to answer questions. He participated in an interview but offered no comment to the allegations that were made.

THE OFFENDER

23. Born in 1996, he will later this year reach the age of 23 years. His record includes his use of aliases. His name is recorded on the antecedent report as Brendan Lee Jones, Brendon Lee Jones, BJ, Brendon Jones, Beejay, William Er, William Murat Er, Murat William Er. His date of birth is recorded as occurring on two different days in the antecedent report.

24. His record begins in April 2014 when he was in the Children’s Court for goods in custody and possessing a prohibited drug. Later, in April 2015 in the Children’s Court he was before the Court for resisting an officer in the execution of duty, driving whilst disqualified, failing to appear. The failure to appear was dismissed with a caution. The other two were proved in his absence and a warrant was issued. He was convicted of those offences on 4 May 2015, again a warrant was issued, and then on 11 May 2015 the same matters were back before the Court, again offences proved, warrant to issue. They were ultimately dealt with on 15 May 2015 with conditional liberty and dismissals with cautions.

25. Then in July 2015 he entered the adult system and in the Local Court at Liverpool for possessing an unauthorised prohibited firearm he was imprisoned for six months, for possessing a prohibited drug he was imprisoned for two months. In January 2016 for being taken in a conveyance taken without the consent of the owner he was convicted without penalty pursuant to s 10A Crimes (Sentencing Procedure) Act 1999. In January 2016 for contravening an apprehended violence order and damaging property he was imprisoned for a month in each case, both concurrent. In July 2016 for robbery he was imprisoned for 16 months, including a non-parole period of six months. Going back in time, in January 2016 for possess a prohibited drug he was imprisoned for one month. In August 2017 for goods in custody he was imprisoned for three months. In August on the same day for custody of a knife in a public place he was imprisoned for six months. In September 2017 in the District Court there was variation of those orders to replace the six month sentence for the custody of a knife in a public place with a sentence of three months and for the goods in custody a section 9 bond. It was in respect of that matter that he was called up on 31 January 2019 as I described earlier. Also in January 2019 for attempting to commit an offence under “this Act”, which is not further described, he was imprisoned for 13 months, including a non-parole period of seven months.

26. In January 2014 for driving while suspended he was fined and disqualified. In December 2013 for driving while suspended he was fined and disqualified. In January 2016 for possessing a prohibited drug, driving whilst disqualified, engaging in a police pursuit, supplying a prohibited drug and not stopping at a stop line with a red light he was sentenced to various terms of imprisonment, but in respect of the disqualification and the not stop at the red light line s 10A Crimes (Sentencing Procedure) Act 1999 was employed with no penalty, rather, other than in respect of the drive whilst disqualification, which attracted a disqualification period of two years.

27. With regard to the attempt to commit an offence under “this Act”, there is nothing to indicate what the Act was on this antecedent report but at the end of the day it does not make a great deal of difference to the outcome in the proceedings today.

28. In January 2018 for possess a prescribed restricted substance he was fined $300.

29. Thus my comment earlier about his persistent criminal lifestyle throughout his life to date.

30. But it appears there has been a change but before I come to that I will deal with the psychological assessments that were made first in 2016 and reported on 8 July of that year, and then later reported on 16 June 2019.

31. The first report was provided by Ease Psychology written by Danielle Hopkins. The history is, as I said, largely consistent with what was contained in the later report; I do not intend to summarise both reports beyond making this comment, however I will quote para 36 of this report where the following appears:

“Formulation: According to his self-report, Mr Jones experienced early exposure to violence, drug use and anti-social influences in the area he resided. His stepfather was a volatile and controlling man who placed strict regulations on the behaviour of Mr Jones and his mother. Reactive to difficulties in his home environment, Mr Jones began a foray into cannabis use in the context of depressive symptoms. He ceased education, and was easily recruited into a delinquent peer network, where he engaged in further substance use. After he was shot when he was 16 years of age, this seemed to affect him significantly, although he lacked insight into specifically what impact it had. This is because Mr Jones attempted to cope and regulate his emotional functioning with daily, significant substance use. This continued despite associated health difficulties including seizures and he used cocaine regularly while he was in the hospital recovering from a gunshot wound.

For several years leading to his offending, Mr Jones was leading a daily substance use lifestyle in the context of anti-social peers. He spent limited time in the family home and his mother’s attempts to externally regulate him were unsuccessful. At his reported highest use levels, he meets the criteria for diagnoses of several substance use disorders.”

32. There were recommendations and, as I said, a history consistent with what I am about to come to in the other psychologist’s report.

33. The reference to the shooting incident when he was 16 years of age was not explained in the material before me and I gave counsel the opportunity for instructions to be taken in relation to that. He was in a relationship and there is the perception at least that it was his girlfriend who shot him. That is drawing upon what was seen by a neighbour who saw a female person proximate to where the offender was at the time he was shot who immediately thereafter fled the scene. It is likely that there has been a conclusion or inference drawn that it was the girlfriend who shot him, although there is nothing that would be sufficient, it would appear, to have justified her prosecution. It is common ground that there was no person arrested or charged in relation to this which I accept had profound impact upon him both physically and emotionally. There is no indication of what the weapon was but upon the description given with regard to the wound, it could not have been such as a .22 calibre or .32 calibre weapon. I have had in my past life and, indeed, as a barrister practising in the criminal courts and as a judge exposure to various weapons and the capacities and from the description given it would seem to me that the wound was inflicted using a weapon consistent with a 9 millimetre weapon or a comparable calibre expressed as a 0.45 calibre weapon. That could be the only explanation for the significant injuries he suffered in an event from one gunshot wound. There was a point of entry and a point of exit for the projectile. Had there been a shotgun used for the wound, it would have been of a different configuration but as I said, for the damage to be as extensive as it was, it had to be a weapon of at least the calibre 0.45 or 9 millimetre.

32. The further report prepared by InPsych Psychological Consultants was written by Kerry Watson. This psychologist has not only provided an assessment but has been giving the offender counselling which is continuing today.

33. The developmental history describes a dysfunctional home environment devoid of continuity, consistency and predictability. He was denied the safety and security that all children in their formative years need to develop into properly functioning adults in our community. His biological parents separated in early childhood. He has met his biological father twice only. His mother was an intravenous heroin user. He was exposed to persistent emotional and physical abuse from his stepfather with whom his mother partnered in his early primary years. That relationship continued until he was aged 16. His mother suffered severe beatings and he was regularly bashed. His stepfather installed cameras to monitor the activities of both the offender and his mother in further efforts to control them.

34. The offender was shot, as I have said, at the age of 16.

35. He left school midway through Year 10. He gained work as a tyre fitter. Unemployment thereafter followed because of his substance abuse and periods of imprisonment, unsurprising in the circumstances when he spent so much of his time in gaol. His work has been with labouring and unskilled activity.

36. In recent times, he has been employed in a labouring position and I have material here from his employer to which I shall come.

37. His historical social functioning is indicative it is said of significant interpersonal functioning deficits arising from the home provided by his drug-addicted mother and his violent stepfather. He had no identifiable friendships of significance or note apart from his partner to whom he has been married for some four years. At this stage, there have been episodes of discord and separation because she is intolerant of his drug-abuse and his criminal misconduct. I note that she is in the back of the Court. I note that she has provided a document speaking to her perception of him and the progress he has made in recent times towards his rehabilitation.

38. He has been in full remission from drug use since August 2018. I have a document showing that on the last seven occasions when he submitted to urinalysis for various prohibited drugs, each one has been negative.

39. His misuse of drugs follows the pattern that the Court has come to expect: cannabis at the age of 15, cocaine at the age of 16 including extensive intra‑nasal consumption which ultimately caused damage to his septum. He moved to methamphetamine at the age of 17. He became addicted. When imprisoned at the age of 18, he had regular access to buprenorphine illegally obtained in custody. Upon release, he recommenced using methylamphetamine and once he was returned to custody, he returned to buprenorphine.

40. He withdrew from the ice and heroin addictions upon his more recent admission into prison and from that time on has maintained full remission from all illicit drugs. He is in good physical health at the moment, however, at the age of 16 he was shot, as I said. The bullet shattered his tibia and fibula. They required surgical reconstruction. He was hospitalised for some four months during which he was prescribed morphine and Endone which could have not done anything but to contribute to his addiction I would have thought. That does not intend to offer criticism to the medical practitioners. No doubt he was suffering severe pain and required medication to cope.

41. His drug addiction and misuse has led to seizures and he developed an abscess on the lung at one point.

42. He was submitted to psychometric testing. He has depression, anxiety and post-traumatic stress. He was prescribed Zoloft for depression at the age of 14 to 15, together with psychological counselling over five sessions which ceased upon his return to illicit drugs at the age of 15.

43. The symptomatology identified by the psychologist was exacerbated by his experience of being shot leading to his post-traumatic stress disorder. There were suicide attempts described including the swallowing of razor blades. I do not have any further material concerning that. That was one of the matters that led to the earlier psychologist finding him to be an unreliable historian.

44. The report proceeds to describe his current psychological presentation. He is assessed to have a low psycho-social maturity well below his chronological age.

45. He has depression, persistent anxiety, sleep disturbance and post-traumatic stress. He attributed his drug use as a means to survive. It served to enhance his mood states, his confidence and it served to suppress his traumatic memories he said. Psychometric assessment scored him in the extremely severe range for depression, severe range for stress and severe range for anxiety.

46. Counselling is continuing and the dates upon which he has attended are there described in the report. The opinion, p 9, is expressed in the following terms:

47. “I am of the opinion that Mr Jones’ mental health issues developed in accordance with his precarious and traumatic developmental history, the nature of which has undoubtedly been complicated by his abuse of illicit drugs. Mr Jones has demonstrated a severe propensity to abuse illicit drugs since his early adolescence. By the age of fifteen, Mr Jones was heavily abusing marihuana, by age sixteen he was addicted to cocaine; by age seventeen he was addicted to methylamphetamines; and from age eighteen he was sequentially and simultaneously abusing opioids and methamphetamines.

48. Mr Jones’ drug abuse, and in fact every aspect of his life, have clearly been out of control since his early adolescence, and he had evidently been deeply immersed in the cycle of drugs and criminality. Mr Jones has reportedly maintained a full remission from all illicit drugs since August 2018.”

49. The next paragraph I do not accept. It suggests that his misuse of drugs as it developed, on the history that has been provided, has a correlation with his index offending with a level of intoxication that, it is said, undoubtedly distorted his decision-making, reasoning and consequential thinking, and led to behaviour repertoires that were impulsive, reckless and without reflection. When I look to the manner in which this crime was committed, and the measure of organisation which is what one would expect and such misconduct, and not such as to aggravate the criminality, it was not impulsive. It involved a measure of decision-making and reasoning and consequential thinking. So much is clear in my view from the conversation in which he participated with the undercover operative. There are recommendations thereafter in the report as to his future management.

FINDINGS

52. Subject to the aforementioned qualification, I accept the opinions offered by the psychologist and those that were given in the earlier report which I quoted. I am satisfied in this case that this young man has taken a decision perhaps with the support of his wife to change his ways. I find that the material I am about to come to could lead to no other conclusion.

53. First, there is a document from Buildsafe Scaffolding Group who has employed him for the past month as of 4 May 2019 as a scaffolder. Scaffolding is hard work, not an activity upon which I have ever engaged, but I have friends who have worked in scaffolding and at least back in the day when I was a much younger age interacting with those people, it was a challenging form of employment.

54. He has been found to be hardworking, with potential to climb the ladder within the construction industry. I do not believe the author of the document intended any pun in that regard. He was punctual. He works well individually and as a team member. There has been no absence from work. He has been forthcoming about his criminal history and incarceration. The offender has discussed his ambitions and goals and his pursuit of a better future. He has expressed remorse. He has been dedicated to find appropriate housing for him and his partner, and this person, his site supervisor, accompanied the offender to one of his Narcotics Anonymous meetings and came away favourably impressed with his enthusiasm in his participation.

55. There are documents before me whereby the offender and his partner have made arrangements to obtain a tenancy. There is a series of group certificates or pay records confirming his employment. There is a letter written by his partner. I note that she goes by the family name Jones in this document but in the earlier document where her name appears for the purposes of the lease she has used another family name. The marriage, as I understood from the material, followed an Islamic style but I accept that they have committed themselves to their relationship. She described him as a loving husband. She has been married to him for four years and in more recent times he has progressed toward putting others ahead of him. He is working, looking for a better existence for his family and himself. There is reference to his background. He has been attending all parole appointments. They have a daughter aged 11 months. She has seen an extraordinary change in his life and his commitment to his family.

56. I have a document written by the offender, not evidence, but I accept it to be a reliable representation of his response to this prosecution and recognition of the harm that he caused and his remorse. I accept that there are prospects for rehabilitation. They are likely to be successful but I could not come to the view that they could be described as good because history is yet to prove that fact. I accept his sincerity and the Court is hopeful that he will be able to achieve rehabilitation and continue down the path he has embarked upon because he must realise that if he does not continue along this road over the next three years and he falls by the wayside he will be back before me and will be facing a gaol sentence.

57. This brings me to the sentence assessment report, which is part of the Crown bundle exhibit A. This provides an objective analysis in more succinct terms by truly independent officers. He is assessed with a medium to high risk of reoffending upon the inventory that was applied to his circumstances. He is attributed with insight into his offending, being to recover money to address his gambling and cocaine dependence. He was said to be minimising behaviour, not seeing himself as a drug dealer as such and that might well be his subjective perception but it clearly is wrong. But he acknowledged that he was focussed on obtaining financial gain to fund his lifestyle choices. His history is broadly summarised, consistent with what was contained in the other material. At the time of this report he was under supervision following his release to parole on 14 March 2019. If he is allowed into the community there will be a supervision plan. The particulars of that are contained in the report and this is going to involve some significant challenge, I would expect, but it will be a matter for the offender to rise to the occasion and take the opportunity that will be presented to him.

58. The Crown is of the view and made the submission, in cogent terms I might say, that the line in s 5 Crimes (Sentencing Procedure) Act 1999 has been crossed and I have no doubt of that. When I put aside the subjective material that I have, but for this material which has persuaded me that he should be given this chance he would be going to gaol. Whether or not he would have the opportunity to serve the sentence by way of an intensive correction order was not explored and I put that consideration entirely to one side. However, when I synthesise everything together, as I am required to do, I have come to the view that upon the entirety of the material the line in s 5 has been approached but the offender has not crossed it. Of course if he does breach the order I am about to make the benefit of the subjective material will evaporate and we will be back where I was at the beginning of his hearing and it will be then a question of determining how long the gaol sentence should be.

59. I am of the view that this young man might well be at the crossroads of his life and I am well familiar with the decision in the Supreme Court in South Australia The Queen v Osenkowski (1982) 5 A Crim R 394. I was taken to the judgement of his Honour Grant DCJ in The Queen v Ross [2019] NSWDC 115 wherein his Honour made reference to that authority. As the Crown correctly pointed out Grant DCJ is a relatively recent appointment to this Court and could not be said to be an experienced judge, but as I observed I knew his Honour from the occasions he appeared before me. I have no doubt of his ability and his experience and competence as a judge. That said, his decision is not binding upon me, and moreover, though the case that he had before him had comparisons to be made with the present matter there are differences. Even so, the principles that persuaded his Honour do have work to do in this case and I agree with his observations that there are cases where the individual circumstances must excite a measure of mercy and sympathy in the hope that the opportunity to rehabilitate can be properly exploited in someone who has taken strides toward that goal. I find that this offender is such a person.

THE SENTENCE

60. I convict the offender of the offence to which he has pleaded guilty.

61. I intend to order a community correction order in accordance with s 85 Crimes (Sentencing Procedure) Act 1999. That shall commence today. The order shall be for a period of three years. There are standard conditions that will apply in accordance with s 87 of the Act and s 88. These will be that the offender must not commit any offence and must appear before court if called upon to do so. Additional conditions are available. I do not intend to impose community service. I will require abstinence from drugs and I will require supervision, including with regard to the participation in rehabilitation opportunities.

62. I should observe that upon the material before me, bearing in mind the nature of the transaction and the circumstances in which it occurred, the reasons why the offender involved himself in this activity against his background of drug abuse that found its genesis in the lifestyle that was provided by his mother and stepfather, the objective gravity of the offending must be below mid-range, toward the lower end of the range perhaps.

63. I have brought to account the purposes of sentencing in s 3A Crimes (Sentencing Procedure) Act 1999. General deterrence always has a role to play; specific deterrence too; denunciation; recognition of harm; a measure of punishment but also with the offender’s rehabilitation kept in mind.

Orders

64. The offender is convicted of the offence of supply prohibited drug.

65. I impose a community correction order for a period of 3 years commencing today.

66. The conditions of the order are that the offender must not commit any offence. He must appear before court if called upon to do so.

67. Pursuant to s 89(2)(c) Crimes (Sentencing Procedure) Act 1999 he is to submit to a rehabilitation or treatment condition requiring him to participate in rehabilitation and receive treatment as might be required, in accordance with what was published by the psychologist who is providing ongoing assistance. I note that the psychologist recommends ongoing and regular psychological counselling to which he must submit; he must continue to participate with Narcotics Anonymous and he should under the supervision of Community Corrections be given the opportunity for a psychiatric review to assess his need, if any, for psychotropic medication.

68. The further aspects of supervision as articulated in the supervision plan by Community Corrections I find attractive. I will not at this stage order that each of those be employed; I will simply make an order that the offender is to be supervised by Community Corrections. He is to make contact with Liverpool Community Corrections Office no later than Friday of this week, that is 28 June 2019, and he is to abide by all directions given by the officer deployed to his supervision with regard to the supervision plan that is proposed for his benefit and as described in the report written by Jessica Smith on 13 May 2019.

69. I make a drug destruction order.

70. I will leave the exhibits on file.

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Endnote

Decision last updated: 11 November 2019