R v Joseph Gregory RIDER

[2007] NSWDC 314

CITATION:	R v Joseph Gregory RIDER [2007] NSWDC 314
HEARING DATE(S):	2 November 2007
EX TEMPORE JUDGMENT DATE:	2 November 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Taking into account matters on a Form 1, the offender is sentenced to imprisonment for a period of three years with a non parole period of eighteen months..
CATCHWORDS:	Criminal Law - Sentence - Supply methylamphetamine - Failure to appear - Delay
PARTIES:	The Crown Joseph Gregory Rider
FILE NUMBER(S):	07/11/0347
COUNSEL:	K. Buckman (Offender)
SOLICITORS:	NSW DPP Legal Aid Commission

SENTENCE

1 HIS HONOUR: Joseph Gregory Rider pleaded guilty today to an offence of supplying amphetamine. This was not the first time he has pleaded to that offence. The offence was committed as long ago as 1995. The offence came to light in the following circumstances: the offender was at the Courthouse Hotel on 20 January 1995. He was playing the poker machines. After he left the hotel, staff discovered that he had left something behind. It was a metal canister with a brown lid. That canister, upon inspection, proved to contain a white powder in clear plastic resealable bags. The hotel staff called police who arrived a short time later and took possession of the canister. A little while later the offender came back to the hotel and asked staff members if it had been handed in. It was at this stage that the offender was arrested. He was taken back to Surry Hills police station. He made admissions that the canister found by hotel staff and then given to police was his and that he was the possessor also of the white powder inside it.

2 The powder weighed more than 60 grams and proved to be amphetamine. He pleaded guilty at the Local Court to an offence of supplying the drug but once he came to this court he did not adhere to his plea and so the matter was set down for trial. On the day that the matter was listed for trial, in November 1996, he again entered a plea of guilty. The matter was therefore stood over for sentence but on that occasion just before he was about to be sentenced he withdrew his plea and the matter was therefore listed for trial again, this time in March 1997 and once again on the day of trial a plea of guilty was entered. Again the matter was stood over for sentence but merely three days later the plea was once again withdrawn. The matter was stood over for trial once more. On this occasion the offender simply did not appear. Instead he, after some time, travelled to Tasmania where he lived with his parents. In that time he appears to have overcome the drug addiction that he had and lived a drug-free life for some considerable time.

3 However he returned to Sydney in about 2002 and although it was not an immediately thing, he then fell back into his old ways and consumed methylamphetamine. In order to maintain his habit he also began to supply methylamphetamine and so it was that on 26 April 2007 police arrested him, searched him and found that he was in possession of 2.7 grams of methylamphetamine. Some of this was for his own use and some of this was for the purposes of supply.

4 Police enquiries also revealed that he had an outstanding warrant that was issued after his failure to appear at trial in April 1997. The offender was also charged with a number of other offences arising out of his conduct on 26 Aril 2007, supplying the methylamphetamine that was found in his possession, receiving (relating to a Bose DVD entertainment system) and attempting to dispose of stolen property (presumably that also relating to the same entertainment system which the offender told police he intended to sell on behalf of a person called Joe).

5 The offender was brought up in Tasmania where his parents still live. His relationship with his parents was somewhat difficult due to his temper, and in particular whilst under the influence of drugs his propensity to be abusive and violent. Once he came to Sydney he commenced using drugs and worked as a prostitute. His addiction became quite severe so that by 1995 he was using up to 7 grams of amphetamine a day and in order to support his habit he committed the offence for which he is to be sentenced today.

6 Shortly before he returned to Tasmania, that is after he failed to attend at his trial, he discovered that he was HIV positive. This clearly had an effect upon him and I gather was one of the reasons that he moved to Tasmania and then was able to remain drug-free whilst there.

7 Of course one of the most important factors in assessing the appropriate sentence in this case is the delay which has occurred since the commission of this offence, twelve years ago, although not to much can be made of it because the delay is very much due to the offender absconding. He should have appeared at trial but simply chose not to. It is difficult to say in those circumstances that the offender should be rewarded for his misconduct. On the other hand I have to sentence him as he is today, not as he was twelve years ago.

8 This is a case where the offender has demonstrated two things. Firstly that he is capable of getting off drugs and being a worthwhile citizen, that is he is capable of rehabilitation. But it has also demonstrated the need for a sentence to be imposed upon him which would act as a substantial personal deterrent against the offender committing further offences of this nature in the future. It seems that the offender all too easily fell into his old ways after a period of time back in Sydney.

9 The sentence that I will shortly announce upon him has been formulated with the idea of personal deterrence very much in mind.

10 The offender now says, and I have no hesitation in accepting, that he wishes to rehabilitate himself, that he wishes to get off drugs and that he wishes to put his old ways behind him. He has been accepted into a residential rehabilitation programme. Clearly he will not be able to attend that programme in the near future because of the need to impose a sentence upon the offender which properly reflects the objective gravity of his most serious drug-dealing conduct. But I consider that a residential rehabilitation programme such as the one to which the offender has been accepted, that is at Glebe House, the twelve week programme there, will benefit him considerably.

11 Accordingly I will make a finding in his favour of special circumstances. It will be a condition of his release to parole that he is only released to a residential rehabilitation programme, that is a form of quasi custody. And so I have taken that into account in deciding the appropriate ratio between non parole period and head sentence.

12 It is a matter of aggravation that the offender was on a bond at the time he committed this offence. In fact that bond was also imposed for a drug offence. I also have to bear in mind that the offender is asking me to take into account three matters on a Form 1 and there will be an appropriate adjustment to the sentence I would have otherwise have imposed upon him to reflect those offences. In particular it is necessary to reflect his further misconduct in 2007 where he once again supplied a most dangerous drug, namely methylamphetamine.

13 The offender pleaded guilty today as I mentioned at the outset of these remarks on sentence, and accordingly consideration has to be given to whether, there is a discount on the basis of utilitarian benefit for the plea of guilty and if so, how much that should be. It is not an absolute rule that a plea of guilty must always result in a discount for a utilitarian benefit. In this case I consider that the offender’s history of entering pleas of guilty and then withdrawing them repeatedly, and then ultimately absconding is such that there should be no discount given for his plea of guilty. That is not to say there is not a utilitarian benefit in avoiding the need to conduct a jury trial, but it is to say that it is not a universal rule that a discount on such a basis should be given to a plea of guilty and I do not consider it is appropriate to give such a discount in the present circumstances.

14 The offender impresses me, from the short time that I saw him in the witness box, as a genuine man who is committed to the idea of him putting his drug addiction behind him. I am satisfied that he has a genuine desire to rehabilitate himself but it must be recognised that the road ahead is not going to be a smooth one. He will need some assistance and that is part of the reason that I have decided to find special circumstances. Ultimately, however, I am constrained by one important factor and that is that the non-parole period to be imposed for his drug supply offence has to reflect the objective gravity of his misconduct. That is the case even in a case such as this where there has been a delay between offence and sentence. Although in an appropriate case the authorities speak of an undue level of leniency being offered to an offender, I do not consider that this is a case where undue leniency is appropriate. The sentence I am going to announce is the most lenient I consider appropriate in view of the objective gravity of the offender’s conduct. Because this offence was committed before 1 February 2003, I should announce the head sentence first, followed by the non parole period.

15 The offender is sentenced to imprisonment. Taking into account the matters on the Form 1, I impose a sentence of imprisonment of three years to date from 26 April 2007. I set a non parole period of eighteen months also to date from 26 April 2007. It will expire on 25 October 2008. On that date the offender is to be released to parole but it is a condition of his release to parole that he enter a residential rehabilitation programme, preferably the twelve week programme at Glebe House.

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