R v Kramer

[2018] NSWDC 491

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Kramer [2018] NSWDC 491
Hearing dates:	19 April 2018
Decision date:	11 May 2018
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted. Special circumstances found – age (24) first substantial period in custody, need for longer period of parole to reintegrate into the community, need for supervision in respect of drug rehabilitation  Form 1 matters taken into account (on Count 1): H60774226/03 & 04 - Possess prohibited drug H61997829/47 - Deal with property suspected proceed of crime Indicative terms: 2016/00185322-011 (H61997829/11/6836379) - 4 years. 2016/00185322-041 (H61997829/41/6812413) - 1 year, 6 months. 2016/00185322-043 (H61997829/43/6791764) - 1 year. 2016/00185322-044 (H61997829/44/6812231) - 1 year. 2016/00185322-046 (H61997829/46/6829906) - 2 years, 6 months. 2016/00185322-050 (H61997829/50/7021436) - 2 years, 6 months. Form 1 has also been taken into account. 2016/00185322-051 (H61997829/51/7018323) - 2 years. ORDERS:  SEQ 48, 49 withdrawn and dismissed SEQ 1-6,8,10,12-19,21-24,25, 27,29-39, 42,45 - Back up offences withdrawn and dismissed AGGREGATE SENTENCE: Sentenced to a term of imprisonment for 5 years comprising a NPP of 3 years to commence on 18/6/16 and to expire on 17/6/19 and a balance of term of 2 years commencing on 18 June 2019 and expiring on 17 June 2021.
Catchwords:	CRIMINAL – sentence – aggregate  - multiple offences of supply prohibited drug, more than indictable quantity methylamphetamine – Form 1 matters, deal with property suspected to be proceeds of crime  - possess prohibited drug  - supply more than indictable but less than commercial quantity of cannabis leaf – possess shortened firearm, not pistol, without authority – supply prohibited drug, 1,4-Butanediol – s166 Certificate matters - police pursuit not stop, drive dangerously - drive motor vehicle during disqualification period, second offence - subjective matters
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drugs Misuse and Trafficking Act 1985 Firearms Act 1996
Cases Cited:	Bugmy v The Queen [2013] HCA 37 Fernando v R (1992) 76 A Crim R 58
Category:	Sentence
Parties:	Regina Benjamin Kramer
Representation:	Counsel: Defence: Mr T Warr Solicitors: Crown: Mr A Barnes; Mr A Brown Defence: Mr M Cronin
File Number(s):	2016/92103; 2016/185322

Judgment

1. HIS HONOUR: In this matter, Benjamin Kramer, also known as Morphett, appears for sentence in respect of a number of offences. The first of those is an offence of agree to supply a prohibited drug, being more than an indictable quantity, contrary to s 25(1) of the Drugs Misuse and Trafficking Act. The maximum penalty provided is imprisonment for 15 years and/or a fine of 2,000 penalty units.

2. When being sentenced in respect of that offence he asks the Court to take into account three offences, one offence being contained on a Form 1 and two offences being contained on a separate Form 1. However, both Forms 1 are to be taken into account in respect of the same single offence.

3. The first Form 1 offence is are deal with property suspected to be proceeds of crime, contrary to s 193C(1) of the Crimes Act in the amount of $12,500.

4. The second Form 1 refers to two separate offences, each being possess prohibited drug. The offence of dealing with property suspected to be the proceeds of crime when dealt with separately - I don’t suppose anyone has a Crimes Act here at the moment?

Sorry Mr Crown, the Form 1 refers to it as being an offence contrary to s 193C(1) and the quantity as being $12,500. S 193C(1) is dealing with property suspected to be the proceeds of crime where the value of the property is $100,000 or more and in respect of which the maximum penalty is five years. Subsection (2) deals with the same offence, but where the property is less than $100,000. So, what is referred to on the Form 1 as an offence contrary to 193C(1) must surely be in fact an error.

BROWN: Yes, your Honour, that does seem to be another error in the Crown sentence summary.

HIS HONOUR: And the CAN notice which is part of the bundle that I have makes the same error. Mr Warr, do you have any difficulty if I amend both the‑‑

WARR: No your Honour.

HIS HONOUR: --CAN notice and the reference on the Form 1?

WARR: No, your Honour.

HIS HONOUR: Ms Coffey, before we return the file to the Court, I’ll need to make those amendments on the Court copy.

WARR: And of course, the maximum penalty also changes with that change.

HIS HONOUR: Sorry?

WARR: The maximum penalty also changes.

HIS HONOUR: Yes.

WARR: The Crown has it as five years.

HIS HONOUR: Yes, it’s three years.

5. If I have not said it, the other two matters on the separate Form 1 are simply referred to as possess prohibited drug, Sequence 3 and Sequence 4 in relation to H number 60774226.

6. The second offence in respect of which he is to be sentenced is agreeing to supply cannabis, being more than the indictable quantity but less than the commercial quantity, 4.5 kilograms of cannabis leaf - that offence is contrary to s 23(1)(b) of the Drugs Misuse and Trafficking Act. The maximum penalty is imprisonment for ten years and/or a fine of 2,000 penalty units.

7. The third offence is possess shortened firearm, not pistol, without authority, being a .22 calibre rifle, contrary to s 62(1)(b) of the Firearms Act. The maximum penalty provided is 14 years imprisonment.

8. The fourth offence is agreeing to supply a prohibited drug, being more than an indictable quantity described as 500 millilitres of 1,4-Butanediol contrary to s 25(1) of the Drugs Misuse and Trafficking Act. The maximum penalty is imprisonment for 15 years and/or a fine of 2,000 penalty units.

9. The final offence is deemed supply of prohibited drug, being more than an indictable quantity, not cannabis, but 56.1 grams of methylamphetamine.

10. In relation to the quantities that I have just referred to, I note for evaluation of the objective seriousness of the offence, that in respect of methylamphetamine, 3 grams is a trafficable quantity, and an indictable quantity is 5 grams. Accordingly, the charge relates to more than 16 times the traffikable quantity and more than ten times the indictable quantity of 5 grams.

11. In respect of cannabis leaf, the trafficable quantity is 300 grams and an indictable quantity is 1 kilogram. Accordingly, the quantity relevant to the charge is 4.5 times the indictable quantity.

12. In respect of the 500 millilitres of 1,4-Butanediol as previously referred to, with the agreement of the parties, I equate that to being the approximate equivalent of 500 grams of that substance. Thirty grams is a trafficable quantity, 50 grams is an indictable quantity. The quantity is therefore ten times the indictable quantity.

13. In relation to the final count concerning 56.1 grams of methylamphetamine, that is, in relation to methylamphetamine, I note that the indictable quantity commences at 5 grams and the next level of seriousness is 250 grams.

14. In respect of the 1,4-Butanediol, while 50 grams is indictable, the next level of seriousness commences at 1 kilogram, being the commercial quantity.

15. In relation to cannabis leaf, the next level of seriousness is 25 kilograms.

16. Each of the prohibited drugs is in each case substantially less than the next level of seriousness, but nonetheless each is significantly more than the quantity that qualifies for the particular charge that is before the Court.

17. In respect of the two offences that I previously referred to as possess prohibited drug being on a Form 1, each of those is contrary to s 10(1) of the Drugs Misuse and Trafficking Act and the drug involved was in one case 26.9 grams of methylamphetamine and in the other 6.43 grams of MDMA. The maximum penalty provided when dealt with separately for those offences in each case is the same, imprisonment for two years and/or a fine of 20 penalty units.

18. In addition, the offender has asked the Court to deal with him in respect of two offences contained on a s 166 certificate. Those are both with the same H number 61997829, being Sequences 43 and 44. One is police pursuit not stop, drive dangerously, in respect of which the maximum penalty, if dealt with in the District Court, is three years, but two years in the Local Court. There is an automatic disqualification period of three years which may be reduced to a minimum of one year.

19. The second offence is drive motor vehicle during disqualification period, second offence, in respect of which the maximum penalty is two years imprisonment and there is an automatic period of disqualification of 12 months although that may be reduced to a minimum of six months.

20. The facts are agreed and in order to try and make more logical sense of what has been presented, I will commence with the facts in relation to the driving offences on the s 166 certificate and the possess prohibited drug offences contained on one of the Forms 1. Those facts are as follows.

21. On 11 May 2016, police were driving along David Street, Albury, and observed the accused driving a silver Holden Commodore as it was leaving a BP Service Station. Police decided to stop the vehicle for the purpose of submitting the driver to a roadside breath test. Police followed the vehicle and activated the warning lights and the vehicle increased speed to 68 kilometres an hour in a 60 kilometre an hour zone. The vehicle turned left onto Logan Road where police observed the vehicle to cross over to the incorrect side of the road, across double unbroken lines. The vehicle’s speed increased to 90 kilometres an hour in a 60 kilometre area and it became apparent to police that the vehicle was not going to return to the correct side of the road. Police terminated the pursuit. At the time of this incident the accused was disqualified from holding a driver’s licence.

22. The offence is an objectively serious offence. The offender at one stage was travelling at a rate in a 60 kilometre zone at a speed more than 50% over the limit. He travelled on the incorrect side of the road. In relation to the disqualified driving offence taken into account by the particular section under which he was charged is the fact that it was a second offence of the same nature. Clearly, the offender increased his speed in order to try and avoid apprehension.

23. I note that the facts contain no information as to the time of day, the road conditions or whether there was any other traffic using the road but I would accept that travelling at 90 kilometres an hour in a 60 kilometre zone being in an urban area on the wrong side of the road represents a substantial threat to other road users and must be regarded as objectively serious.

POSSESS PROHIBITED DRUG X 2

24. About 11.35am on Thursday 24 March 2016, police observed Tyson Leander’s vehicle drive into the driveway of a unit complex situated at 484 Green Street, Lavington. The vehicle remained at the location for approximately 5 minutes before travelling east on Green Street. Police followed the vehicle into Kaylock Road and it stopped at the corner of Brent Court.

25. Tyson Leander was driving the vehicle at the time and was spoken to by police. There were three other occupants in the vehicle, being the offender, who was seated in the front nearside seat, James Kypirtidis, seated in the rear nearside seat, and Marni Thwaites, seated in the rear offside seat. All occupants of the vehicle appeared to be nervous when spoken to by police. Police formed a suspicion that there were prohibited drugs on the occupants and within the vehicle.

26. All persons alighted from the vehicle and were searched as was the vehicle. Located in the cavity between the centre console and the floor of the front nearside of the vehicle was a black sunglasses bag with its drawstring tightened. Located inside the bag were:

1. A number of vials and resealable bags containing the prohibited drug methylamphetamine with a weight of 26.99 grams with a purity range between 74% and 76%.

2. A number of vials and resealable bags containing 3,4‑Methylenedioxymethylamphetamine (MDMA) with a weight of 6.43 grams.

27. The offender was arrested and conveyed to the Albury Police Station where he took part in an ERISP. He made admissions to police that he had seen Kypirtidis trying to conceal the sunglasses’ bag inside a cavity at the bottom of the centre console and was asked by Kypirtidis to assist him with concealing the item. Kramer admitted assisting in the concealing of the bag in the cavity and he acknowledged that he was aware that the bag contained prohibited drugs.

28. It was necessary to refer to those facts first because having been arrested he was granted conditional bail on 25 March 2016 at the Albury Local Court.

29. He was also charged with some other offences which for present purposes are not relevant as they were eventually withdrawn and dismissed.

BROWN: Your Honour, I apologise for interrupting. In terms of the driving offence and police pursuit on 11 May 2016, in terms of the time, it should be in the facts sheet but there is some assistance in terms of a court attendance notice which puts it between 11.15pm and 11.20pm.

HIS HONOUR: 11.20pm.

BROWN: Thank you, your Honour.

HIS HONOUR: Thank you. I will modify the remarks on sentence to include the reference to the time as being between 11.15pm and 11.20pm. Thank you.

30. Having been released on bail, he was accordingly on conditional liberty at the time of committing the offences to which I am about to refer, contained in a separate document entitled “Agreed Facts”.

1. Detectives attached to the Albury Drug Unit formed Strike Force Plum to investigate persons involved in the supply of drugs in the Albury area.

2. A telecommunications interception warrant was issued on 1 May 2016 in respect of a mobile phone service ending 553 used by the offender. The recording showed on that on 29 occasions between 13 May 2016 and 11 June 2016 the offender agreed to supply methylamphetamine to a total amount of 84 grams with two other individuals. The amounts of the drugs to be supplied ranged from 0.1 gram to 7 grams.

AGREE TO SUPPLY CANNABIS LEAF

1. On 23 May 2016, the offender, using mobile ending 553, discussed with another party using mobile ending 205, and agreed to supply 4.5 kilograms of cannabis leaf between two known individuals.

2. On 6 June 2016, the offender used mobile ending 553 to communicate with another to facilitate the supply of 500 millilitres of 1,4-Bitanediol.

DEEMED SUPPLY OF 56.1 GRAMS OF METHYLAMPHETAMINE

1. On Friday 17 June 2016, police executed a search warrant on a storage shed situated at Airport Estate leased by Tim Corrigan and used on occasion by the offender. Upon searching the shed, police located a safe, inside which was 56.1 grams of methylamphetamine and $12,500 in cash. The accused DNA was located inside the safe.

POSSESS FIREARM

1. At 1.10pm on Friday 17 June 2016, the offender attended the Albury Police Station where the offender was placed under arrest.

2. The offender was interviewed by police and made admissions to supply prohibited drugs. However, he stated that the alleged methylamphetamine supplies within his telephone conversations were in fact cannabis leaf.

3. Following the interview, the offender stated that there was a rifle inside a couch in the storage shed searched earlier by police. Following receipt of this information, the police conducted a further search of the location and found a .22 calibre rifle. The rifle had been given to the accused by Tim Corrigan. The rifle had been taken from Corrigan’s father’s gun safe days earlier and shortened by Corrigan. The parts of the .22 firearm removed had been recovered by police within the bedroom used by Tim Corrigan.

31. I accept from the combination of information before me that although Mr Corrigan had identified a potential location or locations at which the shortened rifle might be found, it was this offender who in fact identified the actual location of the firearm hidden inside a lounge, as a result of which the firearm was removed from the possibility of further being loose in the community.

32. The facts make it clear that the offender was carrying on a substantial business in drug distribution in the Albury area. There is no actual evidence that any of the agreed amounts of methylamphetamine were in fact supplied. However, the dates of the conversations were well in advance of the occasion on which he was finally arrested and 56.1 grams of methylamphetamine was located in the storage premises.

33. The 56.1 grams located were also located in a safe together with the $12,500 cash, and of course, secreted in a lounge at those premises was the .22 shortened firearm.

34. Shortened firearms with part of the barrel and stock removed are clearly designed to make the weapon concealable, and being found at a location which was clearly being used as part of a drug distribution network is indicative of the firearm being in possession for the purpose of protecting persons involved in distribution from that place and/or the drugs or money which might necessarily be the result of conducting such an operation.

35. There is, however, no evidence in respect to the firearm as to whether it was loaded or unloaded. In the circumstances, I will conclude that it was not loaded. There is no information as to any ammunition being found in the premises. In the circumstances I will conclude that no relevant ammunition was located.

36. Even without ammunition, the shortened firearm was capable of presenting a threat to anyone who might try to interfere with the operation by way of instilling fear into them that it might in fact be armed and capable of discharge.

37. In those circumstances, I regard the offences covered by the charges of agreeing to supply the various prohibited drugs, the possession of the firearm and the money and the actual methylamphetamine located as being objectively serious offences in relation to which I accept that the offender was the more significant participant in the offending than the co-offender Tim Corrigan, who was also charged as a result of, in particular, the interception of telephone calls between him and others and dealt with for a number of offences by her Honour Baly DCJ on 8 December 2016.

38. It is necessary to refer to her Honour’s remarks on sentence as it has been submitted by Mr Warr on behalf of this offender that there is an issue of parity in relation to the sentences to be imposed on this offender arising from the sentences imposed on Mr Corrigan.

39. In respect of Mr Corrigan, he was sentenced in respect of a total of five offences and in respect of one of those offences there were five further offences contained on a Form 1. On the Form 1, there were two offences of supplying less than an indictable quantity of methylamphetamine, each being 1.75 grams, one offence of shortening a firearm, and two offences of possessing a prohibited drug.

40. The five offences in respect of which he was sentenced were each as follows:

1. On 11 June 2016, supply 3 grams of methylamphetamine;

2. On the same day agreeing to supply 3.5 grams of methylamphetamine;

3. On 12 June 2016 agreeing to supply 7 grams of methylamphetamine;

4. On 10 June 2016 for giving possession of a shortened firearm to this offender without being authorised to do so by permit;

5. On 17 June 2016 supply 2.8 grams of 3,4-methylenedioxymethylamphetamine (MDMA or ecstasy)

41. The total amount of the methylamphetamine agreed to be supplied was 13.5 grams, if included with that are the two quantities referred to on the Form 1 of 1.75 grams, and the total amount involved in relation to the offences that he was sentenced for was a total of 17 grams. In addition, of course, was the fifth count which was 2.8 grams of MDMA.

42. There is a significant distinction, in my view, between the charges in respect of which Mr Corrigan was sentenced and the charges that this offender is being sentenced in respect of. Similarly to this offender, Mr Corrigan was on conditional liberty at the time of the offending, being the subject of a s 10 bond.

41. I have read the remarks on sentence of her Honour in respect of Mr Corrigan, and I have already noted that there are a number of matters which I have indicated I will ignore as being inconsistent with the facts in relation to this offender, or prejudicial to him, in the absence of any relevant material being contained in the agreed facts that are before me. I will, of course, in those circumstances as indicated, ignore those matters. As I have indicated, in my view, each of the offences in respect of which I am sentencing him was an objectively serious offence, particularly when taken into account in the overall circumstances in which they occurred.

42. He was arrested on 18 June 2016 and has been in custody in respect of these matters since that date. His bail in respect of the earlier offences, as I understand it, was eventually revoked after he was charged in respect of these matters. He initially entered pleas of not guilty in respect of offences with the H number 60774226 on 5 December 2016, although he subsequently on 16 February 2018 entered pleas of guilty in relation to Sequences 3 and 4, being the two possess matters contained on the Form 1. Those matters were then linked up with the current matters.

43. He was committed for trial in respect of the current matters on 19 December 2016. The matters were the subject of a number of call‑overs over time and a trial was listed to commence on 6 November 2017. The matter came before his Honour Jeffreys DCJ on 6 November 2017, at which time he entered pleas of guilty in respect of the five counts I have referred to. Accordingly, the pleas of guilty were very belated, and it would seem that during the period between 19 December 2016 and 6 November 2017 a substantial raft of offences with which he had been originally charged were reduced by rolling up individual agreements to supply into single charges. The matter appears to have had a somewhat convoluted course during the approximately one year period before the pleas of guilty were entered. However, there was still utility in the pleas, and I would assess an appropriate discount as being in the order of 10% in relation to each of the charges, although when providing the sentences it will later be indicated that I have rounded down sentences in the offender’s favour.

44. I have not previously noted but I do now note, in respect of the two possess prohibited drug offences contained on the s 166 certificate relating to 24 March 2016, that the facts accept that the offender was in possession of it for the purpose of assisting someone else to conceal them rather than them being his or being possessed by him for the purpose of supply.

SUBJECTIVE MATTERS

47. The offender at the time of the offending was 24 years of age; he is now 26 years of age. Available to the Court in respect of subjective matters is a New South Wales criminal history, an Australian Capital Territory criminal history, a New South Wales Department of Corrective Services Convictions, Sentences and Appeals Report, a Pre-Sentence Report under the hand of Ricky Pratt dated 15 February 2018, and a Psychological Report tendered on behalf of the offender from Robyn Fowkes, dated 13 December 2012, and a letter under the hand of Cody Whittaker from Creative Plasterers Pty Ltd, dated 19 February 2018, Cody Whittaker being the manager. The offender did not give evidence on sentence and the subjective matters are taken from the material that I have referred to.

48. Although his parents have never been married, they lived together for approximately some 14 years, but separated when the offender was approximately ten or 11 years of age. He has two full-blooded siblings and a half-brother. At least in relation to his siblings, he is apparently the only one who has ever been in trouble or in gaol. The family apparently lived mostly in Housing Commission homes for most of their lives. He describes his mother and his father as being into heroin, and observing his mother shooting up. He apparently barely saw his father when he was growing up because when his father finished work he attended the pub.

49. He reported his mother as stealing to buy their clothes because all their money went on heroin and alcohol. His parents were generally smashed out of their minds and the children were left to their own devices with simple rules such as being home before the streetlights came on. After his biological parents separated his mother formed a relationship with a heroin dealer. His mother apparently wanted to establish a better life for her and her children; however, she did this by forming a relationship with a person who funded the better life by dealing in drugs.

50. The offender had a somewhat chequered history in relation to the attendance at various public schools from kindergarten until Year 4 and up until the commencement of high school. He informed that he would get into trouble for not listening to the teachers and walking out of classrooms. He felt that he did not fit in and he did not get on with the other children, and as indicated, he changed a number of schools in his early years. He eventually went to James Fallon High School in North Albury but was expelled in Year 7. School was difficult because kids at school were referring to rumours about his parents’ use of drugs. He was eventually expelled and I note that his criminal career commenced as a juvenile.

51. He was eventually enrolled in Trinity where he completed Years 7 and 9, but he ceased in Year 9 as he wanted to follow in the footsteps of his older brother Chris, who had left in Year 9. In addition, the fees were apparently causing some difficulty for his mother. He did not return to school for Year 10. By Year 7 he had spent a couple of nights in juvenile detention for arson. I will return to his juvenile criminal history later. He reported that the arson related to one of his friend’s fathers paying him and a mate to burn the mate’s mother’s motor vehicle, which apparently caused a block of units to catch fire and burn down. At age 16, he was again in juvenile detention for his participation in an affray which he described to the psychologist as being as a result of his provoking a riot.

52. At the age of 18 years he worked as a furniture removalist for about four or five months, and at age 19 he got a job as a plasterer with Creative Plasterers in Albury, a company for which his father worked, and which was owned by one of his father’s uncles. He apparently successfully completed a four year apprenticeship and has continued to work for that company. The letter from Cody Whittaker of Creative Plasterers indicates that he has worked with them for the last eight years and is well regarded by Cody Whittaker, who is prepared to employ him in the future.

53. He had a relationship with a female at the age of 18 which lasted for about nine months, but he subsequently formed a new relationship with a girl he had known since the age of about 14. Their relationship has been on and off, particularly, apparently, when his partner started taking drugs.

54. As a child he was a participant in sport and his father was very sport‑orientated, assisting him in his participation. From 15 to 18 he played football for the North Albury Football Club juniors, and from 21 to 24 he was playing for the Rand and Walbundrie Tigers at a senior level. Although he commenced drinking alcohol at about 13 years of age, he significantly reduced his drinking at about the age of 18 when he realised that when he drank he got into trouble, at which time he stopped drinking every night after work and only drank socially on occasion. He refers to “All my sentences involved alcohol”.

55. He first started using prohibited drugs at the age of 13, consuming an ecstasy tablet at a party, which he only did a couple more times. However, he started dealing in ecstasy and pot at the age of 14, when he was not in fact taking them himself. He did this apparently on weekends to get cash. He did, however, take ecstasy at parties on weekends but did not smoke cannabis. At 15 to 16 he started dealing methylamphetamine when he moved to the Australian Capital Territory, but states that he was not using it himself. He subsequently moved back to be with his mother, and stopped using it and claims not to have used it since.

56. While in custody he has been provided with Suboxone. Although he had never injected drugs prior to going in custody, he apparently commenced his custody with a heroin habit and required the Suboxone to deal with it. While in custody since 18 June 2016, there have been some eight institutional misconduct charges including possess offensive weapon, fighting, possess drug, refuse fail drug sample, and possess drug implement. Six of the eight offences relate to drug use or implements. His custodial record indicates that although he has apparently been provided with Suboxone, he continues to have ongoing problems in relation to the use of prohibited drugs.

57. As to his criminal history, it commenced in 2006 with damage property by fire, in relation to which he received a control order together with supervision being ordered. He has a number of other offences as a juvenile, such as: behaving in offensive manner or near a public place or school, having custody of an offensive implement in a public place, using offensive language in or near a public place or school, obtaining money by deception, affray, shoplifting, resisting officer in execution of duty, using uninsured motor vehicle, never licensed person drive on road, use unregistered registrable class motor vehicle, drive vehicle recklessly/furiously or speed manner dangerous, learner driver not accompanied, failing to display L plates, using a vehicle not comply with standard emission/silencer. There is a similar charge in relation to tyres.

58. There have been a number of occasions in relation to which he has been called up. He has had other offences such as driving with a middle range PCA, drive while disqualified, in relation to which on appeal his sentence was reduced and replaced by an Intensive Correction Order of four months.

59. He has a chequered history both as a juvenile and as an adult, and I note in relation to a number of offences for which he has been dealt with, supervision has been imposed, designed obviously to assist him in dealing with his problems, but it has apparently not resulted in him managing to curb his conduct; although from 2011 on until the date of these offences, there are no further offences in the interim period.

60. The Pre-Sentence Report notes, in relation to some s 12 good behaviour bonds and the Community Service Order in 2012, that he completed the order and met the goals of his supervision plans with early termination. However, he started a 12 month ICO on 18 August 2013 and after numerous breaches and failing to report as directed, he was in fact imprisoned for an eight week period before returning to the community to complete the ICO. Although he has had the institutional misconduct matters that are referred to, the Pre-Sentence Report dated February 2018 indicates that at least for the two months prior to the date of the report he had managed not to breach any further institutional regulations.

61. I accept that in his early childhood he was exposed to both drugs and violence and that the Court must take into account the principles referred to in Fernando (1992) 76 A Crim R 58 and Bugmy [2013] HCA 37 as necessitating some reduction in his moral culpability, although I note that apparently his siblings have apparently been capable of being law abiding citizens.

62. He informed the presentence officer that at the time of the offending his substance use had become an addiction, in particular the methylamphetamines, and that he was in fact dealing to support his addiction, spending up to $6,000 a week and being out of control and not knowing how to stop. If he was consuming $6,000 a week of methylamphetamine, it is a wonder he was capable of holding down any job, and it would indicate, although not the subject of the charges, that his drug distribution business was a lucrative one. I accept that he was a user-dealer but he was clearly significantly involved in drug distribution.

63. The presentence officer assessed him as being at a medium risk of reoffending, an assessment which I accept in the circumstances. I note that perhaps one of the best things that he has going for him is that despite his use of prohibited drugs over the years, he has no previous or significant matters relating to prohibited drugs, with obviously the exception of the matters that he was on bail for at the time of committing these offences.

64. The psychological report indicates that he continues to enjoy a high level of support from his family. I note that he has indicated that he wishes to get onto a methadone or Suboxone program when he leaves gaol so that he is not tempted to resume use of heroin. I note, however, that so long as he is on such a program, whether it be in gaol or in the community, there will always be a strong temptation to return to the use of heroin. Methadone and Suboxone are in effect holding patterns. He will only be able to properly address his use of prohibited drugs by in fact ceasing not only the use of them but the use of replacements.

65. I note that he made a number of remorseful and contrite statements to the psychologist and is said to demonstrate significant insight into his behaviour. I accept, despite the belated nature of the pleas, that he is remorseful and contrite. I accept that there is at least a reasonable prospect of rehabilitation, particularly if he can cease all use of prohibited drugs, including authorised replacements.

66. For the purposes of sentencing, the Court must have regard to s 3A of the Crimes (Sentencing Procedure) Act 1999 as well as taking into account any relevant aggravating or mitigating factors as referred to in s 21A(2) and (3). Any sentence must reflect the objective seriousness of the offence as well as the need for both general and specific deterrence and meet the fundamental purposes of punishment; that is, the protection of society.

67. In relation to this offender and these offences, I am of the view that both specific and general deterrence are important factors to take into account. Methylamphetamine in particular has become a very serious problem for the community in recent years. It has penetrated all levels of society and all geographical areas of New South Wales. It is very frequently associated with the commission of other offences; that is, offences committed in order to obtain the funds to purchase drugs, or offences arising from the consumption of methylamphetamine involving violence. A considerable portion of the time of this Court is now taken up with having to deal with offences that arise from the consumption of methylamphetamine. It is a plague of serious dimensions and its adverse effects on those who use it are well known. Accordingly, it is necessary to impose sentences which will operate as a disincentive to those who wish to participate in its distribution.

68. I intend to proceed by way of an aggregate sentence, and accordingly it is necessary to specify indicative sentences in relation to each of the individual offences.

69. I have taken into account the 10% discount for the utility of the pleas as previously referred to, and in respect of the two possess matters contained on the Form 1 on the earlier offending, were I separately sentencing in respect to those, I would have allowed a 25% discount in each case.

70. In relation to Count 1 on the indictment being agreeing to supply 84 grams of methylamphetamine, and including the three matters contained variously on the two Forms 1, the indicative sentence is three and a half years.

71. In relation to the second offence, being agreeing to supply cannabis in the quantity of 4.5 kilograms, the indicative sentence is two years.

72. In relation to the offence of possess shortened firearm, not pistol, without authority, Count 3 on the indictment, the indicative sentence is imprisonment for one and a half years.

73. In relation to Count 4 on the indictment, agreeing to supply a prohibited drug being 500 millilitres of 1,4-Butanediol, the indicative sentence is four years.

74. In relation to the fifth offence, being deemed supply of a prohibited drug relating to 56.1 grams of methylamphetamine, the indicative sentence is two and a half years.

75. In relation to the offences contained on the s 166 certificate, being police pursuit not stop, drive dangerously, the indicative sentence is one yearf imprisonment and in relation to the offence of drive motor vehicle during disqualification period being a second offence, the indicative sentence is one year of imprisonment.

76. I note in relation to each of the offences that I have so far provided an indicative sentence in respect of that there is no standard non-parole period provided, and hence it has not been necessary to determine any individual non‑parole period for the purpose of the indicative sentence.

77. I have taken all of those matters into account. I have also taken into account that there is, in effect, some overlap in relation to the offending and I have given consideration to the concept of totality. I note, if I have not made it clear already, that I do not regard there being any real question of parity in relation to the sentences to be imposed on this offender as a result of the penalties imposed on the co-offender, Mr Corrigan, who, if I did not say it before, received a number of sentences of imprisonment, all of which were suspended pursuant to s 12. The longest sentence imposed on him was one of two year’s imprisonment. All of the sentences were concurrent as they had to be in order to be suspended.

78. I regard this offender as having been in an entirely different and far more significant position than Mr Corrigan.

79. In the light of all that I have referred to, the sentence to be imposed has a non-parole period of three years commencing on 18 June 2016. The offender will be first eligible for parole on 17 June 2019. The balance of term is two years, giving a total sentence of five years with a three year non-parole period and a two year parole period.

Mr Kramer, you will not necessarily be released at the conclusion of the non‑parole period. That will depend on how you go while in custody, because it is a matter for the authorities to determine. I will leave the conditions of your release at that time to them rather than specifying anything now. They should be in a much better position at the conclusion of the three years, which is 17 June 2019, to assess what conditions should apply to your parole. You need to be aware that you will not necessarily be released on that date unless they feel that you are doing appropriately within the custodial system.

80. The full sentence will expire on 17 June 2021.

81. Now, in respect of the police pursuit not stop, you are disqualified from driving for a period of one year, which is the minimum under the section .

82. In relation to the offence of drive motor vehicle during disqualification period, you are disqualified from driving for the automatic period of 12 months.

Mr Crown, I believe that there are a number of sequences to be withdrawn?

BROWN: Yes, your Honour. These are outlined on the second page of the Crown sentence summary.

HIS HONOUR: Those being H61997829, sequence 48 and 49?

BROWN: Yes, that’s correct.

HIS HONOUR: And is it necessary to do anything in regards to the ones on the first page which, as I understand it, have been rolled up into the charges that I have dealt with? They are backup offences, aren’t they?

BROWN: I’m sorry, your Honour, are you referring to the offences at the bottom of that page?

HIS HONOUR: The first page of the 166 certificate has H number 61997829, 1 through to 6 - 7 and 9 and 11, 20, 26, 28 and 40.

BROWN: Yes, your Honour, I believe they still need to be withdrawn even though they’ve been rolled up into--

HIS HONOUR: Well, that’s what I would’ve thought because they have been consolidated into the charges that I have sentenced him in respect--

BROWN: Yes. Yes, your Honour.

HIS HONOUR: So they are backup offences rather than related offences?

BROWN: Yes, that’s correct.

HIS HONOUR: All right. Then I will just indicate in relation to the backup offences H 61997829, 1, 2, 3, 4, Sequences 8, 10, 12, 13, 14, 15, 16, 17, 18, 19, 21, 22, 23, 24, 25, 27, 29, 30, 31, 32, 33, 34, continuing through to 39 and in addition 42 and 45 are withdrawn and dismissed.

My associate has handed me a note which refers to some of the sequence numbers that I have not referred to because they’re not listed on the 166 certificate being 7, 9, 20, 26, 28 and 40. My associate tells me that each of those sequences is live on JusticeLink but they’re not otherwise referred to in this summary anywhere.

BROWN: Yes, your Honour. Although I don’t have JusticeLink in front of me it appears from the Crown sentence summary that that would be the case.

HIS HONOUR: Well, I think this creates a problem for my associate in terms of acquitting the matter on JusticeLink.

BROWN: Yes, I imagine it would, your Honour.

HIS HONOUR: Well for the moment, sequences with the H number 61997829, Sequences 7, 9, 20, 26, 28 and 40 will simply be stood over until you, Mr Crown, work out what should be happening with them and I give you leave to approach my associate if necessary to deal with them.

BROWN: Thank you, your Honour.

HIS HONOUR: All right. Now is there anything that I have omitted?

WARR: Your Honour--

HIS HONOUR: I think I’ve referred to the discounts in relation to all of the relevant offences - rehabilitation, remorse, contrition. I may not have referred to re-offending, I think, on reflection. In that regard, I would say that considering his past history disclosed in the psychological report - I think it is the psychological report - to dealing in the past, although not the subject of charges, that I could not find that there was a good prospect of not re‑offending in the future which I’ll add back into the remarks on sentence - for the reasons. Now is there anything else?

WARR: Yes, your Honour. In terms of assistance to authorities, the Bench Book says one has to indicate whether there is a discount being‑‑

HIS HONOUR: There is no discount for his disclosure of the location of the firearm. All right? So you can make that an appeal point if you like, Mr Warr. I have taken into account the fact that he assisted them in taking the firearm out of the community, but in my view it did not warrant a separate consideration for a discount for doing so.

WARR: Very well, your Honour.

HIS HONOUR: All right.

WARR: In terms of addressing special circumstances, is--

HIS HONOUR: Yes, sorry.

83. In respect of special circumstances which I have omitted, I found special circumstances on the basis of his comparative youth, at 24 years of age, this being the first substantial period of time in custody, and as I perceive it, a need for a more significant period of time on parole in order to help him deal with his drug problems in the community rather than simply in gaol.

Thank you for reminding me. Is there anything else? The forfeiture order, okay, yes, all right. I think I’ve got that here. All right, Mr Crown, there is a notice of motion in relation to a forfeiture order.

84. I order pursuant to s 18(1) that cash in the approximate sum of $12,500 - which appears to be precise rather than approximate, however - found at the leased storage premises on 17 June 2016 be forfeited to the State and I consider that pursuant to s 18(3) the value today of the property forfeited in that order is $12,500.

85. Now I think that is everything.

86. BROWN: Yes, your Honour.

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Amendments

21 February 2024 - Paragraph 26 amended to remove excess bracket.

Decision last updated: 21 February 2024