R v Knight, Brian and Knight, Kevin

[2008] NSWDC 135

CITATION:	R v Knight, Brian and Knight, Kevin [2008] NSWDC 135
HEARING DATE(S):	03/04/2008-04/04/2008
JUDGMENT DATE:	10 April 2008
EX TEMPORE JUDGMENT DATE:	8 August 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Brian Knight: Convicted Knowingly take part in supply of cannabis, sentenced 7months non parole, balance of term 3months 22days. Also convicted knowingly take part in supply of methylamphetamine, sentenced 6 months fixed term. Brian Knight: Convicted knowingly take part in supply of cannabais. Sentenced 10 months imprisonment, suspended conditional upon offender entering into good behaviour bond pursuant to s.12 Crimes (Sentencing Procedure ) Act.
CATCHWORDS:	Criminal Law - Sentencing - Knowingly take part in Supply Drugs - Methylamphetamine - Cannabis -offenders highly placed Aboriginal men in Bourke - deemed supply methylamphetamine - actual supply through network of cannabis - trafficking in a substantial degree - meaning of - what constitutes exceptional circumstances when determining if supply not one calling for full time incarceration - tensions between principles of custodial sentence for those who traffic in drugs and sentencing consistency as revealed by JIRS sentencing statistics - subjective matters - offenders aged 54 and 37.
CASES CITED:	Gladue v The Queen [1999] 1SCR 688 [80] R v Rushby [1977] NSWLR 597 R v Hayes [1984] 1 NSWLR 740 R v Cuthbert [1967] 2 NSWR 329 R v Clarke unreported NSWCCA 15 March 1990 R v Kipic and Elias [2004] NSWCCA 452 R v Pilley (1991) 56 A Crim R 202 R v Ozer unreported NSWCCA 9 November 1993 Cacciola (1998) 104 A Crim R 178 R v Ccciola (1998) 104 A Crim R
PARTIES:	Regina - Prosecutor Brian Knight - Offender Kevin Knight - Offender
FILE NUMBER(S):	06/61/0092
COUNSEL:	D. G. Rickard for Offender Kevin Knight C.S.Mendes for Offender Brian Knight
SOLICITORS:	Mr J. May, Office of the DPP Dubbo for the Crown

JUDGMENT

HIS HONOUR:

1. Given a chance Aboriginal people can make a great impact on our way of life in Australia. Aboriginal people form something less than 3% of the general population. There are many areas in which Aboriginal people excel and form more than 3% of participants. Contact sports such as Australian Rugby League and Australian Football League are two that spring to mind. Aboriginal abstract artists certainly would constitute greater than 3% of Australia's abstract artists. Aboriginal singers and songwriters, Aboriginal actors are batting well above the 3% in their respective fields. Aboriginal tour guides, Aboriginal stockmen also.

2. Regrettably on the darker side of society Aboriginals are also overrepresented. Nearly one in five prisoners is Aboriginal. More importantly Aboriginal men and women are overrepresented among drug and particularly cannabis users. Some Aboriginal intellectuals are arguing that it is the Aboriginal men and women who must begin to accept responsibility for and work to change many of the unhealthy aspects of the Aboriginal circumstance. Cannabis use is denying many Aboriginal men and women their chance to succeed that has been realised by others of their race. Cannabis is a drug thats devastating side effects are understated, particularly for long­term users. It can play havoc with the mental health of the users.

3. Kevin Knight’s concern was that the younger members of his race may prostitute themselves to obtain money to purchase drugs. He and his younger brother Brian have sought to present themselves to this Court as pillars of the Aboriginal community in Bourke, in particular focussing on Aboriginal welfare. In those circumstances one could be pardoned for thinking neither would seek to make financial gain by distributing among their own community a product so undermining of health, culture and financial status for their race.

4. Yet today each is to be held accountable for knowingly taking part in the supply of a prohibited drug cannabis in not less than the indictable quantity. Brian Knight also is to be held accountable for knowingly take part in the supply of a prohibited drug methylamphetamine in an amount of twenty­five point two grams.

5. As sentencing judge, it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentences for these offences before this Court committed by these offenders, harming as they do their victims in this community Gladue v The Queen [1999] 1 SCR 688 [80]. My initial task requires an assessment of the objective criminality of the offences before the Court. I will also need to have regard to matters personal to each offender, that is the subjective matters. The starting point for such assessments requires a sentencing judge to make findings of fact from the evidence before the Court relating to the offence and to the offenders. My fact finding task has been circumscribed in that the parties have tendered an agreed set of facts to which I shall shortly return.

6. It is sufficient at this point that I remind the Court a judge is not a party to the agreed set of facts. The tender of an agreed set of facts does not relieve the judge from his or her fact finding responsibility. It simply limits the material from which facts may be found to the extent if it be the case that the facts as agreed do not reflect, as I suspect they do not, the actual events that occurred. It must be remembered the Court can only find the facts from the evidence placed before it.

7. Each offender’s rehabilitation prospects will have to be assessed even if looking through a glass darkly. Before any deterrence can be made there are likely to be technical questions relating to deterrence, discounts, whether special circumstances are to be found, parity, totality, and finally of course the ultimate term of imprisonment or other penalty to be imposed. None of these can be commenced until the primary facts are determined. What weight needs to be given to all of these matters against the imperative that all sentencing should have as its primary focus the protection of the community will also need to be determined. See R v Rushby [1977] NSWLR 597, R v Hayes [1984] 1 NSWLR 740, R v Cuthbert [1967] 2 NSW 329.

FACTS.
8. The Darling River Local Area Command detectives formed an Operation Reynaldo targeted at investigating cannabis supply by members of the Knight family and associates. In the course of this operation they sought to gather evidence targeting participants in the distribution network. Their inquiries led them to believe Brian Knight was sourcing quantities of cannabis, breaking it down to street level quantities and overseeing street level distribution. Other family members including Brian Knight’s older brother Kevin were believed by police to perform roles in the distribution of this drug in the Bourke area. On the basis of their beliefs they sought and were granted warrants permitting the interception of telephones being used by Brian Knight. The warrants were granted under the investigation parameters of Operation Reynaldo. Of the calls intercepted, some were between each of these offenders. During these calls, code and terminology were used to describe drugs, money amounts and sums owed by various persons.

9. During the course of this investigation, investigators made two separate drug seizures due to information obtained from lawful telephone warrants. At 1.05pm on 20 June 2005, an SMS text message was lawfully intercepted from the mobile phone of Kaylene Knight to Brian Knight. The message read, “I got none left.” At 2.45 the same day, a conversation was lawfully intercepted between an unknown female believed to be Lavinia McKellar, the de facto partner of Brian Knight, and Kaylene Knight. Whoever that female was, she stated, “Brian said to come and get them.” Investigators believe the text message and telephone call relate to arrangements for Kaylene Knight to obtain more prohibited drug deals from Brian Knight for distribution.

10. As a result of the lawfully intercepted telephone conversations and text message, police commenced surveillance of Kaylene Knight. About 3pm on the same day, Kaylene Knight was sighted by police walking south on Warraweena Street, Bourke towards the premises of Brian Knight. About 3.20, Kaylene Knight was located walking north near an intersection of Tudor and Warraweena Streets, Bourke. She was stopped, spoken to and arrested by police and conveyed to the Bourke Police Station.

11. A search of her person located a quantity of twenty separate deals of cannabis secreted in the front of her pants, weighing a total of twenty-nine grams. Later, she made admissions the drugs were $500 worth of “sticks.” She was charged with supply and possession. She told police that a “stick” was a single deal of cannabis worth twenty-five dollars.

12. At 4.07 on the same day, a telephone call between Brian Knight and Kenneth Knight was intercepted lawfully. In this telephone call, Brian Knight told Kenneth Knight that “Kaylene had got put in by Kenny after she left my house and was caught with $500 worth of sticks”. Kenneth Knight told Brian Knight that, “She had some of his deals.”

13. The Crown case is that Brian Knight had been seeking to source amphetamine to on-sell in the drug enterprise and that he was ultimately successful in sourcing approximately one ounce in St Peters, Sydney.

14. On 7 and 10 July 2005, Kevin Knight contacted Brian on his mobile service. Again these phone calls were lawfully intercepted by police. Kevin Knight asked Brian Knight on 7 July, “Hey, is there any more?” The Crown case is this was a reference to cannabis leaf. On 10 July, in another call, Kevin asked, “Have you got another one?” Again, the Crown case is that is a reference to cannabis leaf.

15. On 10, 11, 12 and 13 July, Brian Knight arranged for the purchase of three pounds of cannabis leaf in Mildura. On 12 July 2005, Kevin and Brian Knight and others travelled to Mildura to purchase the drugs. The vehicle they drove in was one owned by Kevin. The deal failed as the middle man was unable to source the drugs. The offenders returned to Bourke.

16. On 17 and 18 July, Brian Knight arranged the purchase of three pounds of cannabis. A number of people, including Kevin Knight, organised the finances towards the purchase of the cannabis leaf. Brian Knight also organised the purchase of an ounce of amphetamine to take place in Sydney. All of the conversations divulging those facts were lawfully intercepted. The drugs were obtained from a related offender, a man by the name of Gayle.

17. Three pounds of cannabis is approximately one point three eight kilograms. An ounce of amphetamines is approximately twenty-eight grams.

18. On 19 July, investigators reacted to the information; obtained and executed two search warrants at the Formula One Motel, St Peters. The two rooms searched were booked and paid for by Brian Knight. In one room, police seized three large bags of cannabis and a bag of amphetamine in an esky.

19. On 28 July 2005, police executed two simultaneous search warrants at premises occupied by the offender Brian Knight, namely 4 Dedman Street, and premises of a co-accused, Wayne Knight, at 148 Meadow Road, both in Bourke. Police seized various items relevant to the operation at each of the premises. At 4 Dedman Street, police located and seized 1,000 small resealable plastic bags, a number of manual and electronic weighing scales, a kitchen blender with residue thought to be cannabis residue, and other items. Police seized the mobile telephone belonging to Brian Knight and satisfied themselves that that was the mobile telephone that they had been intercepting.

20. Brian Knight had travelled to St Peters with his wife and two daughters. He was carrying more than $15,000. $3,000 of that was his own money for one pound of cannabis, and $2,500 of his own money for the methylamphetamine. $6,000 of it was advanced by others, including $3,000 advanced in the name of Kevin Knight, for an additional two pounds of cannabis to be purchased on behalf others, including Kevin Knight. The $3,000 contributed by Kevin Knight was comprised of $2,500 of his own money and $500 of borrowed funds. The balance of money being carried by Brian Knight of about $4,500 was said to be for expenses related to their stay in Sydney including concert expenses (although the tickets had already been paid for) and purchases for their daughters whilst in Sydney.

21. Brian Knight’s case is this was a one-off deal to help him through a financial crisis. He had received shortly before these purchases $6,200 in workers’ compensation settlement for an injured foot. The test of whether he has proved financial crisis can be ascertained by his distribution of the proceeds of this payment. The money was placed in his partner’s bank account. $4,500 of it was taken to St Peters to purchase items for his daughter and to spend on accommodation and entertainment. He was in Sydney to attend a rap concert with his family. The tickets were purchased prior to his arrival. While he nominated electricity and car payments as matters financial, and claimed there was a $12,000 debt at about this time, there is no evidence of any of the $6,200 going on anything to relieve the financial debt.

22. On the information before me, there are indications of suspicious activity in respect of cannabis dealing occurring before 20 June. For example, at 4 Dedman Street there is the 1,000 resealable plastic bags, the Wang scales, the blender with residue, and the network of contacts. There is clear evidence of two offenders being knowingly concerned with the supply of twenty deals on 20 June. That is a month before his arrest as a result of the purchase. All of these facts make it impossible to draw the conclusion of fact argued for that the purchase of the cannabis and methylamphetamine was a one-off dabbling with drugs to alleviate a personal financial crisis by Brian Knight. The onus of proving that proposition rested with the defence.

23. Kevin Knight also argued that his involvement was motivated by financial crisis. His involvement is limited to the first charge, knowingly involved in the supply of cannabis. He contributed $2,500 of his own money that he won on Keno. None of that $2,500 was devoted to alleviating any debts. No documents were produced from the relevant gambling organisation that had paid out the $2,500. He was prepared to borrow a further $500. If Keno presents as a gambling risk, purchasing $3,000 worth of cannabis is an even greater gamble. No doubt Kevin Knight would have believed that even had he lost his investment, he would not have been exposed to arrest. Unfortunately for him, he was unaware of the telephone taps.

24. I am not satisfied there was any pressing financial debt that he was facing. No documents have been tendered demonstrating any indebtedness. I am satisfied both men were knowingly involved in cannabis supply for their own financial gain in circumstances where there was no pressing debt but lifestyle choices that would flow to each from the profits, such as taking the family to attend a function in Sydney and carrying $4,500 to spend.

25. I am satisfied from the evidence before me that Brian Knight was a principal dealer of cannabis supplying to members of his network, including his brother Kevin, and that the brother was, at least on 19 July if not before when they were heading to Mildura, willing to join as an equal distributor and distribute through the same network he would share through his brother, constituted in the main by other family members.

OBJECTIVE CRIMINALITY.
26. From the facts as he finds them to be, the sentencing judge is required to assess the objective criminality of the offences as an essential step in assessing the seriousness of the criminal behaviour of each offender. That is done by comparing objectively the criminality exhibited in the case before the Court with criminality of other offences of a similar kind that have been before the Court on past occasions. It is in this way that the objective seriousness of the criminality of these offences can be evaluated. Not surprisingly, the objective criminality has an important impact upon the overall sentencing outcome.

27. The courts and legislature have made it clear that drug supplying is an unacceptable criminal activity. It is not difficult to understand why drug supplying is a criminal activity. Contrary to the impression that offenders may have entertained initially, drug supply is not a social but rather anti-social behaviour. The courts have long recognised that in assessing the objective seriousness of a drug offence, it is necessary to have regard to the drug’s potential for harm.

28. Harm to others when inflicted by someone else is always anti-social. Drug dealing is harmful to the community by its direct impact upon those who purchase drugs and by its indirect impact upon the community at large. Some if not most drugs, and particularly cannabis and amphetamines, can be addictive. Some are otherwise destructive, causing or contributing to mental health problems - that is particularly so with cannabis - and/or aggression - particularly so with cannabis and frequently with amphetamines. Drug addicts are human beings whose capacity to function and to feel human is smothered to a greater or lesser extent by addiction and other effects of drugs. I commented in my introductory remarks how many in the Aboriginal communities are kept down, in my view, by their abuse of drugs and in particular cannabis. That is the real essence of the criminal harm done by suppliers of drugs. That is, that in a greater or a lesser way, they are disenabling other human beings by their supplying of drugs.

29. Associated with drug addiction are other forms of crime such as robberies, break, enter and steals. That is the loss of a gain (property) usually arising from an owner’s productive efforts in the community. Associated with robberies and break and enter offences is the personal trauma, emotional and psychological damage done to the victims of those crimes. The spending of money on drugs by addicts without any other corresponding productivity for the community other than the drug deal amounts to a monumental transference of wealth, usually from the already poor, without any corresponding gain to the economic community. At every level then, drug dealing is conduct that is corrosive on society and therefore anti-social.

30. Brian Knight’s decision to take part in the supply of methylamphetamine lifts his criminality. It is regarded as a harder drug than cannabis. At law, although I have my doubts about it - it is not as high on the list as heroin or cocaine or those other more potent drugs. I am satisfied Brian Knight’s knowing involvement in the supply of cannabis involved his purchase of the three pounds of cannabis, one for himself, one for his brother Kevin, and one for some other person or persons who would also be distributing in the Bourke area. The culmination of that criminality, as with his earlier dealing, as represented by the charge of being knowingly concerned occurs at St Peters when the three pounds of cannabis and the one ounce of methylamphetamine is purchased. All of the offending, including the supply of the twenty sticks of cannabis to Kaylene, occurs against the background that none of these incidents are isolated in his case, including the purchase of the cannabis at St Peters. The purchase of the methamphetamine or amphetamine at St Peters does appear to be isolated. Under the microscope the criminality of these charges then is, generally speaking, an ongoing criminality with cannabis and an expansion into methamphetamine.

31. The criminality exposed by the evidence so far as Kevin Knight is concerned is far less than that of his brother. Initially in the evidence he appears to be one of Brian’s distributors. The purchase of one pound of cannabis, on the evidence before me, represents an upgrade of his role to distributing within the network of cannabis equal in status to his brother.

32. When assessing the objective criminality of the offences, it is important to remember these figures. The trafficable quantity of cannabis leaf is 300 grams. A small quantity is 30 grams. An indictable quantity is 1,000 grams and a commercial quantity is twenty-five kilos.

33. In respect of methylamphetamine, the trafficable quantity is 3 grams, the indictable quantity is 5 grams, and the commercial quantity 250 grams. There is no evidence of the purity of the methylamphetamine, but I am told it was below ten per cent purity. It is argued by the Crown and conceded by the defence that both offences Brian Knight is facing could have been dealt with in the Local Court. In respect of the cannabis, these figures were set long before hydroponics and other developments impacted upon the potency of cannabis. There is a strong argument that, given the dangers of cannabis, the trafficable, indictable and commercial thresholds should be revised downward. However, my task is to administer the drug laws, as they presently exist.

34. Embraced in the facts against Brian Knight is a supply to Kaylene of a quantity of twenty sticks in circumstances where he either knew or was reckless as to whether she would on-supply some or all of those sticks. Indeed, it would seem that his case is he was the distributor and distributed to others knowing that they would on-supply. There is also evidence that on 7 and 10 July, Kevin sought further supplies of cannabis. I have inferred his request for cannabis was satisfied by Brian Knight.

35. The evidence discloses that at the time of his criminal behaviour, Brian Knight would indulge in cannabis one or two times weekly after drinking. There is no suggestion he was heavily addicted or was supplying to finance his addiction. Likewise, Kevin Knight was knowingly involved in supplying, not because of any addiction he had. Indeed, his evidence discloses that he did not use cannabis at all. The involvement and supply was, for both men, exploitive of their fellow Aborigines.

36. While the case against Brian Knight is clear, I detail the basis upon which Kevin Knight is being sentenced. The specific acts of criminality before the court occur on 7 and 10 July when he sought further supplies of cannabis and, it would seem, passed them on. There is no evidence in the Crown case of any financial gain made by Kevin Knight in respect of these transactions. He says he made no financial gain but was simply the conduit by which the cannabis was passed to another, a man named Shillingsworth. The Crown did not seek to challenge that evidence.

37. On 12 July, Kevin Knight made his vehicle available for the Mildura trip. On 12 and 13 July, he travelled to Mildura with his brother. On or about 18 July, Kevin gave $3,000 of money in his own name to his brother to purchase a pound of cannabis on his behalf. On 19 July, Brian, as Kevin’s agent, purchased the pound of cannabis, which thereafter became the property of Kevin Knight although it was at that time possessed by Brian Knight. There is no evidence establishing the size of the network or frequency of cannabis distribution. The only purchase by Brian or Kevin Knight before me is the one on 19 July of 6 (as said) pounds. It is not clear whether that was a normal amount of supply, an expansion or contraction of the cannabis supply. The evidence indicates only one pound was destined for Brian Knight. It is difficult to determine whether Kevin and the un-named other purchasers were replenishing or initiating a first supply. I have taken the view more favourable to Kevin, that he was joining his brother as an equal supplier in the network rather than continuing that activity.

38. Brian Knight claims the 19th was his first foray into being knowingly involved in the supply of methylamphetamine. There is no evidence before me contradicting the claim. On the balance of probabilities therefore I am satisfied it is so.

39. There is no evidence of financial benefits to Brian Knight or Kevin Knight from their activities prior to 19 July, nor what would be the likely financial benefit from the purchase of the drugs seized on 19 July. Doing the best I can and stressing that I believe this to be conservative, I am satisfied from the evidence that for every dollar expended by Brian Knight he received three back. That is to say, he anticipated making $9,000 on his investment of $3,000 for the cannabis, amounting to a profit of some $6,000. Likewise I am satisfied Kevin anticipated the same sort of profit on his investment.

40. I am satisfied Brian anticipated selling the methylamphetamine for about $7,500, making at least $5,000. Of course, the drugs purchased on 19 July were seized. The actual damage to the Aboriginal community from the purchase of these drugs was nil. Nor was there any profit to either person as a consequence of these purchases.

41. There is no suggestion of any recruiting of non-users or juveniles to the consumption of cannabis. I am satisfied they sought to satisfy existing demand without seeking to increase market share by recruitment of new users to their product.

42. The Court of Criminal Appeal has long established a sentencing policy in respect of those who traffic in illegal drugs to a substantial degree. Only in exceptional circumstances will a non-custodial sentence be imposed on those who traffic in drugs to a substantial degree, see R v Clarke unreported NSWCCA 15 March 1990, R v Kipic and Elias [2004] NSWCCA 452. Of particular importance in this case, more so in the case of Kevin Knight, is the question of whether his purchase of a trafficable quantity of cannabis constitutes trafficking in a substantial degree. That matter appears to be resolved adversely to these offenders in R v Pilley (1991) 56 A Crim R 202. In that case the Court of Criminal Appeal came to a view that it was satisfied beyond reasonable doubt that the respondent to a Crown appeal in that case had the drug in his possession intending to supply it commercially.

43. I have come to the same finding in respect of both offenders. That is to say that the cannabis at the motel as to one pound was owned by Kevin for the purpose of supply and was in possession of his agent. While the one pound of drug may not have been in his physical control, as I say, it was in the possession of his agent.

Justice Finlay, speaking for the Court of Criminal Appeal in Pilley , said,

“Once that finding is made, then the policy laid down by the Court of Criminal Appeal that only in exceptional cases will a non-custodial sentence be appropriate for drug traffickers becomes applicable.

Indeed, as was pointed out by Hunt Justice in Clarke’s case, the policy laid down by that court that only in exceptional circumstances will a non­custodial sentence be appropriate for drug trafficking, is not restricted to those cases in which it has been demonstrated that a profit has been obtained. That policy is principally directed to trafficking, the dissemination of drugs to others. The position is worse when there has been a profitable commercial exploitation, but the trafficking alone in any substantial degree will normally lead to a custodial sentence.”

44. Whatever that judgment may say about the concept of “trafficking” when applied to drug matters against its normal meaning of the word, it clearly is a judgment binding upon judges of this Court, cf R v Ozer NSWCCA 9 November 1993. In those circumstances, I find that Kevin Knight’s involvement amounted to trafficking to a substantial degree. That finding is based principally upon his purchase of the one pound lot of cannabis. I could not make that finding on the other matters relied upon by the Crown in this case. It follows I also find Brian Knight’s involvement in both the cannabis and the methylamphetamine and the ongoing nature of his activities amounts to trafficking in a substantial degree.

SUBJECTIVE MATTERS

45. I turn now to the subjective matters. I am both entitled and required to do that. Not only am I sentencing for the criminal offences but I am also sentencing each of these offenders for it. Each offender coming before the Court varies from other offenders who stand or who have stood for sentence. Circumstances personal to an offender may offer to the Court some explanation and insight into the commission of these offences by these offenders, or some reason why a more or a less sentencing outcome is appropriate.

KEVIN KNIGHT- SUBJECTIVE CASE

46. I turn to the case of Kevin Knight firstly. He was born in December 1950. He was aged fifty-four at the time of the offence and fifty-seven at the time of sentencing. He is grandfather to two children of his thirty year old daughter. He also has a son aged fourteen at boarding school in Dubbo. He has a long term partner of eighteen years. He is the fourth of fifteen siblings, many of whom live in the western region, all of whom are still alive. His mother lives in Bourke in the house next door to his brother Brian. His family is very supportive of him. He has lived in Bourke all of his adult life.

EDUCATION, SKILLS AND EXPERIENCE.

47. Kevin Knight completed 6 ^th grade primary in Bourke. He says by this time he was sixteen and left school to work at the abattoirs. Due to his father’s employment principally as a fencer in rural industry, the family from time to time lived in remote communities of Weilmoringle, Enngonia and Wanaaring. During his mature years, he had held numerous positions of significance in the Aboriginal community in western New South Wales, including regional counsellor for ADSIC, founding member of the local CDEP, was chairman of the Orana Haven Drug Rehabilitation Centre for five years, manager of the Dunvi Proclaimed Place, a respite centre for homeless men and women, director of Aboriginal health, presumably the local Aboriginal Medical Service, on the board of directors of the Aboriginal Legal Service. He was a field officer for five years with one of these organisations. He left in 2002 because of a shoulder injury. He is co-founder of the Boomerang Cricket team and the Bourke Aboriginal rugby league team. Clearly he has skills relating to management and formulating policy directions for organisations focused upon Aboriginal welfare and lifestyle choices.

GENERAL HEALTH.
48. Mr Kevin Knight presents as an obese man of fifty-seven years. Presently he is on workers’ compensation as a result of a shoulder injury in 2002. This injury is still painful. He manages the pain by taking Panadeine Forte. He also suffers from an ulcer, has high cholesterol. Both are subject to medication. Health summary sheet, exhibit KK1, that I have assumed comes from the practice of Rebecca Oates, and printed on 3 April this year, describes his current active problems: “acute bronchitis,” apparently first reported in 2001. The current status of that condition is not otherwise developed in the evidence before me. Included among past illnesses is a diagnosis of “reactive depression” in 2002. I have assumed that that depression has resolved. There are five medications listed. I am able to identify the cholesterol, depression and pain medication. The others are given for purposes I have not identified. I note in the health report no diagnosis of ulcers.

MENTAL HEALTH.
49. There is a past complaint of reactive depression for which he was prescribed Edronax. He no longer takes it as it was not beneficial. There is nothing before me to otherwise suggest that there are any mental health issues that could impact or should impact upon the sentencing outcome.

DRUG AND ALCOHOL.
50. There appear to be no drug and alcohol issues of any significance.

CHARACTER AND CRIMINAL HISTORY.
51. This offender appears to have played an active role within organisations focused upon Aboriginal welfare, health and lifestyle choices for the past twenty or so years. There are four references tendered noting his contribution in these areas. While there are criminal antecedents, but for an offensive behaviour in 2002 his last court appearance and his last conviction were for possessing prohibited drug in 1986. He was incarcerated as an adult for seven days in 1969 (vagrancy), three months for stealing in 1969, six weeks for larceny (1972), two months for indecent behaviour (1972). As a child he spent time at the Mittagong Boys’ Home. It would appear from his record that may have been in July 1968, but it would appear he was out by January 1969, a period of only six months, in circumstances where he suggested it was eighteen. It is difficult for me to resolve that difference. All of his offending has been in the Local Court. But for an appeal against severity, this is his first occasion in the District Court. But for one drug possession charge in 1986, there are no other drug matters on his record.

ATTITUDE TO THE OFFENCE.
52. Given that I have rejected his claimed financial difficulties, my view is he has sought to mitigate his involvement with an unfounded claim. Nonetheless, when he gave evidence he appeared frank and otherwise willing to acknowledge his involvement in the purchase of the pound of cannabis. When speaking to Probation and Parole, he denied being part of an organised enterprise. I accept that minds may differ as to what is meant by “organised enterprise.” However, I am satisfied he worked within and, more importantly, was intending to distribute within a network comprised of extended family and associates in Bourke that he knew his brother was involved with. His plea, once entered, was acknowledgement of his responsibility for his offending behaviour.

53. I have some difficulty understanding why someone who had been involved in drug rehabilitation for 5 years and in Aboriginal health could become involved in trafficking in drugs within the Aboriginal community. To Kevin Knight’s credit, he professes shame at his involvement, sorrow and embarrassment. He recognises his family has suffered because of his involvement.

PLEA STATUS.
54. The Crown and defence argue the plea was early entered. The court file appears to the contrary. He was committed for trial to this Court. He has been before this Court on six occasions before the accused was arraigned. Upon arraignment on 15 October 2007, he pleaded guilty. The matter’s first appearance in this Court appears to be in late 2006. The defence case is the matter was assigned to his present solicitors in May 2007. Counsel was briefed in July 2007. There were difficulties securing a grant of legal aid for counsel between July and September. There was a conference with counsel in September 2007 and the plea was entered in October 2007. This very chronology makes the point the utilitarian value of the plea must necessarily be less than the utilitarian value of a plea entered before the Local Court. None of those transactions would have occurred but for the plea not being entered in the Local Court.

55. It was said he was charged with two offences. While that may be so and his position in respect of the second charge has been vindicated, he was always charged with knowingly involved in the supply of cannabis. There was nothing to stop him pleading to that charge before the magistrate. Further, he was represented by an experienced solicitor in late 2006 when the matter first came before this Court. He was also in the care of a solicitor who held himself out as competent to advise and represent him until July 2007 when Ms Mendes was briefed. If discounts of twenty-five percent are reserved for those who plead guilty at the earliest opportunity on the basis that the utilitarian value to the overall administration of criminal justice, including freeing up Court time, resources of the profession and defence, then where the Court, defence and prosecution resources are consumed to a greater extent after committal, the discount must be lighter in the light of the consumption of those resources. In this case I intend to discount the sentence I otherwise would have given by seventeen and a half per cent in recognition of its utilitarian value.

REHABILITATION PROSPECTS.
56. This offender’s rehabilitation prospects must be regarded as good because of strong family support, his mature age, and his past commitment to the Aboriginal community. He has a regular income stream from workers’ compensation, and there is contrition and acceptance of responsibility for his offending conduct.

PARITY.
57. It is important that the role of parity in sentencing be understood. It plays a part in this sentence. It does not play a part in Mr Brian Knight’s sentence. Parity is a check available in circumstances where a higher sentence than that received by a co-offender or related offender would cause a justifiable sense of grievance. The doctrine of parity, properly applied, may have the effect of driving a prospective sentence downward. It should not be called in aid to drive a prospective sentence upwards.

58. Ms Mendes calls in aid the sentences received by the related offender, Gayle. Gayle had been contacted by Brian Knight in numerous phone calls on 17 and 18 July. In these calls, Brian Knight sought to be supplied with and Gayle agreed to supply him with three pounds of cannabis and one ounce of methylamphetamine at St Peters. Gayle was before the Penrith District Court on indictment. There was only one prior drug matter in his record, cultivate small quantity of cannabis plant. For the supply of amphetamine he received a suspended sentence of two years. For the supply of an indictable amount of cannabis he received 500 hours community service. It is to be remembered he supplied the three pounds of cannabis. Kevin Knight’s criminal involvement in that supply is limited to only one pound. It would appear the sentencing judge came to a view Gayle had drug problems of a sufficient level to require rehabilitation conditions on the bond.

59. The Crown's answer to the parity argument is that in drug cases one looks to the actual role played by an offender. In Gayle’s case, it would appear it was the one-off supply of an indictable quantity of two different species of drugs. In Kevin Knight’s case, it is the participation in his brother’s network demonstrated by two episodes and his participation in the purchase of a pound of cannabis with the intent to supply it. While I have accepted that Kevin Knight’s purchase of the cannabis with intent to supply it amounted to trafficking to a substantial degree, I regard Gayle’s sale of the product as trafficking to a more substantial degree. One was the actual transfer of the goods, the other was an intent to do so. There is a case for accepting Kevin Knight may have a legitimate and justifiable sense of grievance if he received a penalty greater than Gayle’s.

EXCEPTIONAL CIRCUMSTANCES, YES OR NO?
60. The defence also sought to argue exceptional circumstances.

61. Ms Mendes sought to argue that there were a number of circumstances that brought this case within the exceptional. She argued there was a delay of almost three years between the commission of the offence and the sentencing disposition being announced. This Court seeks to resolve matters within twelve months from committal. In country regions, particularly in trial matters, that target cannot always be met. The plea was entered into in October 2007 and is being finalised in April 2008. During the period January 2007 to October 2007, the matter was in a trial list. While there is a delay in finalising the matter, there is no authority before me for the proposition that a delay of, say, two years is such as to amount to an exceptional circumstance to a charge, so that what should otherwise be a sentence of full time custody becomes one of something less. Delay of two years in an appropriate case may mitigate the length of custody, but it would not be sufficient to change it into something other than full time custody.

62. Ms Mendes also sought to argue other factors were exceptional, namely demonstrated rehabilitation, twenty-two years without conviction, the likely impact of imprisonment on a fifty-seven year old male of ill health. There is no evidence of the likely impact of imprisonment upon Kevin Knight, nor is his health so precarious as to amount to an exceptional circumstance. The presence of extra-curial punishment, namely the financial burden imposed upon the offender in maintaining insurance payments upon his motor vehicle whilst it has been in police custody; the offender’s prior contributions to and good regard of the Bourke Aboriginal Community service - none of those subjective features would amount to exceptional circumstances either on their own or accumulated. In Cacciola (1998) 104 A Crim R 178, Priestley said,

“...I am not intending to give any foothold for the idea that subjective matters in the respondent’s case were such as to constitute exceptional circumstances of the kind referred to in the leading decisions of this court as being the sort of exceptional circumstance necessary to justify the non-imposition of a custodial sentence for offences of this kind. A distinction needs to be drawn between the strong subjective case and the exceptional circumstances which justify a non-custodial sentence.”

63. My attention has been drawn to the fact that this offender’s charge could have been dealt with in the Local Court. Presumably the election to have the matter dealt with on indictment was made by the prosecution at a time when this offender was also charged with knowingly concerned with the supply of methylamphetamine. I am aware that others within the network were charged with supplying cannabis. All related offenders but for Gayle were dealt with in the Bourke Local Court. Penalties ranged from s 9 bonds, community service order, s 12 suspended sentences and one fixed term of three months full time custody. The maximum penalty for this offence before the Local Court is two years imprisonment.

JIRS STATISTICS.

64. The maximum penalty for the offence in this Court is ten years imprisonment and/or a fine of $220,000. Bearing in mind the Local Court deals with supply of cannabis up to but not including commercial quantity, most sentencing for supply of cannabis would be finalised in that jurisdiction. Of 1,149 cases, only 20% resulted in full time incarceration. 75% of cases before the Local Court resulted in fines, s 9 bonds, community service orders or suspended sentences. It is impossible to tell from the presentation of the statistics which case involved a commercial quantity of cannabis but I am satisfied many, many of them did.

65. Statistics for cases coming before the higher courts shows that 50% receive a sentence of less than full time custody. 45% of those given full time custody receive sentences of two years or less. An overview from all of the Courts puts less than 25% of cannabis suppliers going into full time custody. In Cacciola , the Court’s attention had been drawn to the JIRS statistics as they existed in a total of 714 cases for supplying methylamphetamine. His Honour said,

“To the extent that statistics may have any use for present purposes, they do suggest that there may be amongst sentencing judges at first instance a too frequent non-compliance with what has been said in this court (CCA) about the necessity for cases of this kind to be punished by custodial sentences unless in exceptional circumstances. Perhaps that has occurred by reason of a very broad understanding of exceptional circumstances, perhaps it has occurred by reason of not paying sufficient regard to what this court has said in Clarke or following cases. One thing we would hope would come from the present decision is that sentencing judges will pay proper regard to what has often been said in this court on this point.”

That is a decision of the Court of Criminal Appeal given in 1998, a decade ago. There has been no substantial shift in sentencing outcomes that I can see in the past ten years.

66. In Kevin Knight’s case there are seriously competing tensions: Consistency in sentencing as exhibited by current sentencing practices of judges and magistrates dealing with cannabis supply offences; compliance with the policy settings authoritatively required of me by the Court of Criminal Appeal and the doctrine of parity as illustrated in the sentence given to Gayle which was not appealed against. None of these ingredients can be combined to make anything of sense. It is clear from the remarks just referred to by Priestley JA that the Court of Criminal Appeal requires judges of this Court to pay proper regard to the sentencing policy as declared by that Court. I am also bound by the same authority to pay proper regard to parity. I am also bound by the same authority to pay proper regard to consistency in sentencing outcomes.

67. Unconstrained by the issue of parity I would have imposed a full time custodial sentence. I regard the well-established principles of parity in the circumstances of this case as the exceptional circumstance taking this offence and offender out of a full time custody requirement. This offender has not been assessed as suitable for a community service order. In any event, I intend to pay obeisance to the dictates of the Court of Criminal Appeal as best I can by imposing a term of imprisonment. A term of imprisonment must be recognised as acknowledging the dictates of personal and general deterrence. But for the plea of guilty I would have set a term of imprisonment of twelve months. Discounted by 17.5%, that effectively becomes a sentence of imprisonment of ten months. In the event that he is willing to abide by the terms of a good behaviour bond for a period of ten months for today, I intend to suspend the operation of that sentence.

BRIAN KNIGHT SUBJECTIVE CASE.

68. Brian Thomas Knight, aged thirty-seven, is the youngest of the fifteen siblings. He is a grandfather three times over and about to be a grandfather for the fourth. He has two daughters. He has been in a relationship with his partner, an alleged co-offender, for a period of twenty-one years. This offender looks to his family for support. His mother occupies premises next door to him. All of his siblings are still alive. He and his partner are caring for a grandson until his daughter, Renee, obtains independent housing. His father died of a heart attack when the offender was in his mid-teens. He was close to his father and still finds his passing difficult. Significantly, he still visits and maintains his father’s grave.

EDUCATION, SKILLS, EMPLOYMENT HISTORY.
69. This offender skipped a lot of school before moving to Cobar where he attended high school. He finished high school aged fifteen. He was halfway through Year 9 at that time. His literacy and numeracy skills remain undeveloped. He claims adequacy in reading, but I note that he needed to be assisted completing the psychological testing. He grades his mathematics skills as poor. He has worked at the meatworks, grape picking and seasonal work. For the past eight years he has worked in the building industry, constructing homes for Aboriginal housing. In March 2008 he told Miranda Stevens, a clinical psychologist, he was working two days weekly with CDEP. It would appear he principally focuses on tiling in his employment with Aboriginal housing, but he has done carpentry and joinery courses at TAFE. He had the workers’ compensation claim I earlier referred to finalised in 2005. He has an interest in sport. He has managed the local football club for twelve months. He also played cricket. He belongs to a men’s group that teaches children about the bush. He enjoys fishing, hunting, spending time with his grandchildren and relaxing in front of the TV.

GENERAL HEALTH.
70. At thirty-seven he is overweight. He sustained a work injury to his foot, which was compensated. He appears to have reasonable mobility. He says he is still working two days weekly with the CDEP. There is nothing in any of the evidence that suggests any significant general health problem.

MENTAL HEALTH.
71. Ms Stevens, who conducted psychological assessment of the offender, finds he appears to be anxious to a level consistent with having a panic disorder. He has experienced a number of traumatic episodes and secondary to the panic disorder, she says, is depression. The loss of his nephew is one of those traumatic experiences. That still plagues him today.

DRUG AND ALCOHOL ISSUES.
72. Brian Knight commenced marijuana use aged fifteen, when he also started drinking alcohol. His alcohol consumption sat at a carton of full strength beer daily. In recent times it has reduced to a carton weekly, primarily Friday afternoons through to Saturday nights. He has attended Orena Haven Drug and Alcohol Rehabilitation Centre on three occasions, the last being in 2003. His consumption of cannabis has reduced, as I earlier mentioned, to two or three times weekly, usually after drinking. He currently smokes half a packet of cigarettes daily. His past use of methamphetamine is virtually nil. He has no current dealing with that drug.

CHARACTER AND CRIMINAL ANTECEDENTS.
73. Brian Knight presents as a strong family man, close to his immediate family and his two siblings. He has demonstrated a work ethic through his employment years in circumstances where it may otherwise have been difficult to find employment. At a mature age he started training as an apprentice builder. He appears to be well­regarded in the community, particularly for his commitment to Aboriginal housing. He has an interest in sport and the bush. He has sought to share these interests with Aboriginal youths. Regrettably, he has been frequently in trouble with the law between 1981 and 2005. Much of his offending would appear to be alcohol related and in that context several episodes of domestic violence.

74. Between 1981 and 1998 there appear to have been sixteen appearances before the Children’s Court for break, enter, larceny, illegal use of motor vehicle, malicious damage to property, assault and driving offences. As an adult there are drink driving charges, further malicious damage to property, occasioning actual bodily harm and common assault, resist and assault police, offensive conduct, driving whilst disqualified, breaches of apprehended domestic violence orders, affray. Between 1989 and 2005 there were more than thirty appearances in the Local Court. All of his offending has been before the Local Court. None of it relates to dealing in drugs.

75. His antecedents reveal that he was charged on 5 May 2005 with assault occasioning actual bodily harm, presumably to his partner. That matter was dealt with by way of a suspended sentence in December 2005. In the meantime he was on bail. These two offences occurred early in that bail period. The commission of an offence whilst on bail has long been regarded by the law as a breach of an understanding made with the court that, if given liberty during the charge period, he would be of good behaviour. Thus the commission of the offence in breach of that undertaking aggravates his criminality in respect of both offences. In 1991 he served four months imprisonment for domestic violence. In 1994 there was three weeks imprisonment for assault police. There was a further four months imprisonment in 1999 for domestic violence.

ATTITUDE TO OFFENCE.
76. As with his brother, this offender claimed he was motivated by his financial situation. For reasons I have given I rejected that explanation. His reliance upon it was also an attempt to mitigate his involvement. Otherwise it is fair to say he has accepted full his responsibility. He was otherwise frank in his evidence, accepted his role in the organisation, claiming he did not sell but rather organised the distribution and would receive the money. He offered to plead at the committal stage to the charges he has been indicted upon. His offer was not accepted. The loss of the utilitarian value of the plea is not his fault. He bears no responsibility for it. He should be entitled to the full twenty-five per cent discount he would have received if his offer had been accepted when first made. That early offer was indicative of a willingness to accept full responsibility of his criminality from the outset. I am satisfied he is genuinely remorseful and embarrassed by his criminal conduct and the charges that have resulted.

REHABILITATION PROSPECTS.
77. His rehabilitation prospects are perhaps more clouded than his brother’s. He is younger and has had more recent brushes with the law. It would appear he may have put in place strategies to deal with his propensity to domestic violence. He is drinking less. He says he contacts police when trouble is brewing. This is his first foray into drug dealing. He has strong family support, he has a strong work ethic. He is contrite and accepts responsibility for his criminal behaviour. All of these are positive rehabilitation indicators.

SETTING THE SENTENCE.
78. The maximum penalty for being knowingly concerned with the supply is ten years, as I said earlier, and the maximum penalty for being knowingly concerned with the supply of methamphetamine is fifteen years.

ASSESSMENT.
79. Brian Knight’s role and criminality is of a much higher order than Kevin Knight’s. In respect of the first charge, his involvement is documented. On 20 June, when some twenty sticks are supplied to Kaylene Knight. There are two other occasions documented on the 7th and 10th. He negotiates the purchase of three pounds of cannabis to be delivered at Mildura and heads to Mildura to purchase. That purchase falls through. There is a second negotiation of three pounds, to be delivered to St Peters, and of course the methamphetamine. He heads to St Peters. He purchases the three pounds, one for himself and two pounds on behalf of other buyers. At the same time he also moves into the harder drug. His intention is to disperse both purchases that he made on his own account within the Bourke community.

80. The purchase of these drugs is the first step in drug trafficking in respect of these purchases. They are to be added to his prior drug trafficking between 20 June and 18 July. He has been trafficking to a more substantial degree than his brother or than Gayle. This is a case where his role within the network becomes important, as the Crown argued in both cases. His is a case where full time custody is required. In his case, the greater criminality attaches to his knowingly concerned in cannabis. This is the greater crime of the two. It has a much longer history than his involvement with methamphetamine. While the indictment focuses on a period commencing 20 June, I am satisfied that was not the commencement of his operation. This offence then has to be seen as part of an ongoing course of conduct. The amount of cannabis I am dealing with is very close to the threshold marking the indictable quantity. In those circumstances this offence falls towards the lower range of seriousness but for its ongoing nature and his senior role in that network.

81. But for the plea of guilty, I would have set a sentence of fifteen months imprisonment. That is reduced by twenty-five per cent which equates to three months and seven days, assuming my maths to be correct. That makes the overall sentence for the cannabis offence one of eleven months and twenty­three days.

82. I intend to find special circumstances. Firstly, his age. He will be more than ten years above the median age of prisoners. That will tend to isolate him. He will be housed in a prison, a substantial difference from his family, making family contact difficult and his time in prison arduous. His rehabilitation is better achieved in the community and indeed, in respect of the domestic violence offences, his recent conduct indicates that he is willing to rehabilitate.

83. The needs of personal deterrence upon release are better met with a longer rather than a shorter parole period. In respect of the second offence, still acknowledging the appropriateness of a twenty-five per cent discount, I intend to set a fixed term of six months imprisonment. It can be seen that my starting point was eight months. His purchase of methylamphetamine was tied in with his purchase of the cannabis. It is really an extension of the same criminality. For that reason, I intend to require the two sentences to be served wholly concurrently.

SENTENCING.
84. Mr Brian Knight, would you stand up please.

85. Brian Knight, I convict you of the offence that you between 19 June and 20 July at Bourke and St Peters in the State of New South Wales knowingly took part in the supply of a prohibited drug, namely cannabis leaf, in an amount not less than the indictable quantity. For that offence you are convicted. I sentence you to a term of imprisonment of seven months to date from 10 April 2008 and to expire on 9 November this year. There is an additional term of three months and twenty-two days which is to expire on 3 March 2008. I order your release to parole on 9 November 2008.

86. I also convict you that at the same time and place you knowingly took part in the supply of a prohibited drug, namely methylamphetamine, in the amount of twenty-five point two grams. For that offence you are convicted. You are sentenced to six months to date from today and to expire on 9 October 2008. Would you sit down please.

87. Kevin Knight, would you stand up please.

88. Kevin Knight, you are convicted of the offence that you between 19 July 2005 and 20 July 2005 at Bourke and at St Peters did knowingly take part in the supply of a prohibited drug, namely cannabis leaf, in an amount not less than the indictable quantity. For that offence you are sentenced to ten months imprisonment. I assume that you would want to have that sentence suspended conditional upon you entering into a bond to be of good behaviour for ten months from today. That needs to be formally communicated to the court. Before you do so, you should speak to your solicitor about it. I do not intend, unless otherwise requested, to require his supervision by Probation and Parole. Would you see if he is consenting?

RICKARD: Certainly, your Honour. Your Honour, he does consent to that course of action.

HIS HONOUR: Thank you. Conditional upon the offender consenting to enter into a bond pursuant to s 12 of the Crimes Sentencing Procedure Act , I suspend the operation of the sentence. The duration of the bond will be one of ten months commencing today and expiring on 9 February 2009. The conditions of the bond are that you are of good behaviour. Any offence of any kind will bring you back before me, and you will be told no doubt that I have very little chance to avoid sending you to full time custody. The law requires in respect of suspended sentences that unless there are exceptional circumstances, and you have heard what I have had to say about exceptional circumstances, you would not avoid imprisonment. That is the first, to be of good behaviour. The second is to give your address to the registry and notify them of any change of your address. The final one is, in the event that there should be a breach, you acknowledge that you will be bound to come back before me, or some other judge if I cannot deal with it, and it would only be if I could not deal with it that you would not come back before me for sentence.

RICKARD: Sorry, Mr Brian Knight, considering the sentence your Honour has imposed, has asked that your Honour would recommend to Corrective Services that he might serve that at Yetta Dhinnakkal Prison at Brewarrina.

HIS HONOUR: I will recommend that he be considered for classification for Yetta Dhinnakkal. The sentences that you have served before are less than six months and it may be that that’s the threshold, but I know there is a previous sentencing threshold that may disqualify you. But I do recommend strongly that you be sentenced to Yetta Dhinnakkal, particularly because of your location and your otherwise relatively short periods of imprisonment.

RICKARD: Thank you, your Honour.

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