R v Leslie Lloyd

[2016] NSWDC 62

District Court

New South Wales

Medium Neutral Citation:	R v Leslie Lloyd [2016] NSWDC 62
Hearing dates:	19 April 2016
Decision date:	28 April 2016
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full time custodial sentence For Orders see [46]
Catchwords:	Sentencing – ongoing supply of prohibited drugs, break and enter with intent to commit an indictable offence; aggregate sentences
Legislation Cited:	Confiscation of Proceeds of Crime Act 1989 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985
Cases Cited:	JM v R [2014] NSWCCA 297 McIntosh v R [2015] NSWCCA 184 Mill v The Queen (1988) 166 CLR 59 R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 R v Giang [2005] NSWCCA 387 R v Harris [2007]NSWCCA 130 R v Merrin [2007] NSWCCA 255 R v MRN [2006] NSWCCA 1555 R v Ponfield (1999) 48 NSWLR 327 R v Van Ryn [2016] NSWCCA 1 R v Wong [1999] NSWCCA 420
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Leslie Lloyd (Offender)
Representation:	Counsel: A Meredith (Crown) M King (Offender)   Solicitors:
File Number(s):	15/178004
Publication restriction:	Nil

remarks on SENTENCE

1. The offender was committed for sentence on 27 January 2016 from Wagga Wagga Local Court. He entered a plea of guilty to one count of supply drugs on an ongoing basis between 6 January 2015 and 2 April 2015, pursuant to s 25A(1) of the Drug Misuse and Trafficking Act 1985 (“DMTA”).

2. The offence carries a maximum penalty of 20 years imprisonment or 3,500 penalty units, or both.

3. The Crown bundle on sentence (Ex A), included a certificate pursuant to s 166 of the Criminal Procedure Act 1986 which listed six backup offences (sequences 8-13), which are to be withdrawn following the offender’s conviction on the ongoing supply charge.

4. In addition, the offender is to be sentenced in respect of seven further offences pursuant to s 112(2) (four offences), and s 113 (2) (three offences) of the Crimes Act 1900, of aggravated break, enter and steal which occurred on 6 January 2015. The offences carry a maximum penalty of 20 years imprisonment and 14 years imprisonment respectively.

5. The offender was arrested on 16 June 2015 and has remained in custody since then.

6. Exhibit A contains an Agreed Statement of Facts in relation to both series of offences. In relation to the ongoing supply of prohibited drugs, the Agreed Statement of Facts refers to six separate transactions that took place between 24 March 2015 and 2 April 2015, in which the offender supplied to undercover police, methylamphetamine of amounts varying between 0.34 grams and 0.45 grams. The total of the prohibited drugs supplied in the six transactions was 2.28 grams, for a total of just less than $1,500.00. It was conceded by the Crown that the ongoing supply was indicative of a street level dealer in prohibited drugs, and the total amount supplied was less than the trafficable quantity as defined in the Act. However, the Crown submitted that the offender had passed the s 5 threshold and that only a sentence of full time custody could be imposed.

7. The facts in relation to the seven offences pursuant to ss 112(2) and 113(2) of the Crimes Act, were that on Tuesday 6 January 2015, at approximately 3.40am, the offender and an unidentified co-accused forced entry into commercial premises at Wagga Wagga which contained several businesses. The offender and co-offender forced entry through locked glass panel doors and stole money and property from four of the seven businesses. Those were the four charges pursuant to s 112(2). The circumstances of aggravation in each offence was that the offender was in company with another person, who remains unidentified. The total property stolen amounted to less than $600.00 in cash. Also stolen from one of the premises was a safe containing banking records, other business records, together with $800.00 in cash, however, the safe was recovered after it had been abandoned by the offender and his co‑offender, and returned to its owner with the contents intact.

Submissions on behalf of the offender

8. Learned counsel for the offender submitted that he was a long‑term drug user and a person who knew where to find drugs. Officers from Strikeforce CALYX made contact with him. In respect of the first three transactions in the ongoing supply, the evidence established that the offender had no drugs for sale, but knew where to buy them. It was clear that he had no capacity to supply prohibited drugs.

9. It was submitted that in respect of the fourth, fifth and sixth transactions, which make up the ongoing supply, the modus operandi changed slightly. The offender was contacted daily by the undercover police and acted as a conduit to supply small amounts of prohibited drugs.

10. It was noted that the total amount supplied was 2.28 grams, whereas a trafficable quantity under the relevant Act was 3 grams, and an indictable quantity 5 grams. Here, the offender received minimal financial rewards for the transactions: a total of $34.00 and some razors. There was no evidence that he had taken part of the drugs, and it was submitted that he had supplied the drugs “out of the goodness of his heart”.

11. In the circumstances in which he was supplying to undercover police, the offender felt a sense of entrapment, however, learned counsel acknowledged that that was not a defence. However, in all of the circumstances, it was submitted that the objective seriousness of the offending here was right at the bottom of the range, given the small amount supplied and the limited material gains made from the transactions.

12. It was submitted that there were no aggravating factors to be taken in account pursuant to s 23A of the Crimes (Sentencing Procedure) Act 1999 (“C(SP)A”). A mitigating factor was that there was no planning on his part.

13. In relation to the break and enter with intent to commit a serious indictable offence, namely, stealing, it was submitted that the objective seriousness of the offending here was also at the bottom of the range. An aggravating circumstance was that the offender was in company, however, as an aggravating circumstance, this was at the lower end of the range of itself.

14. The Crown had conceded that the premises involved were a commercial premises and the offences occurred in the early hours of the morning, when there was no risk of the offender coming into contact with any persons.

15. In relation to the s 113(2) offences, learned counsel for the offender submitted that he obtained no material gain. The most significant “booty” from the offences was the safe referred to above, which was abandoned and returned to its owner.

16. Counsel submitted that there were the following “Ponfield” factors to be taken into account, (referring to R v Ponfield (1999) 48 NSWLR 327). Namely, that it was a single incursion into the same group of premises, there was no damage done, and the offender had nil previous relevant convictions, although he had a number of convictions in the Children’s Court which were now stale. His record, it was submitted, did not disentitle him to some degree of leniency. An aggravating factor here was that the criminal conduct was separated into several individual Court Attendance Notices because of the seven different premises broken into.

17. Learned counsel for the offender agreed that some degree of accumulation was required here because of the different victims of the crime, however, he submitted a high degree of concurrency was required on sentence.

18. Exhibit 1 was a report from Dr Richard Furst, dated 17 April 2016. It set out a number of significant subjective factors, including that prior to the offending, the offender was the carer for his mother, who is ill. The offender was desirous of resuming that role upon his release from custody.

19. The report also recorded that he had been diagnosed with a Substance Abuse Disorder, having first consumed cannabis at age 12 years. At the time of the offending he was using ice on a daily basis, and that use had increased after the death of his father some five years previously. Whilst it was not a mitigating factor, the offender had demonstrated that he had prospects of rehabilitation by not using prohibited drugs since he had been incarcerated.

20. The offender had accepted responsibility for his criminal conduct and accepted that he required ongoing rehabilitation to allow him to return to a constructive role in the community.

21. It was submitted that a finding should be made pursuant to s 44(2) of the C(SP)A, that special circumstances existed, based on his need for supervised assistance and rehabilitative services to assist his return to the community. Although there should be partial accumulation in the offences, this was the first time he had been in custody, and totality in sentencing was important.

22. Learned counsel submitted that an aggregate sentence pursuant to s 53A of the CSPA was appropriate.

23. On the question of totality, the Crown had relied on the Court of Appeal’s decision in R v Merrin [2007] NSWCCA 255. To the extent that that decision relied on the Court’s previous decision in R v Harris [2007]NSWCCA 130, counsel submitted that the condemnation by the Court of repeat offenders, referred to therein (at [38]) did not apply here.

24. Learned counsel also referred the court to statistics published by the Judicial Commission of New South Wales, in respect of offences pursuant to s 25A DMTA and offences pursuant to ss 112(2) and 113(2) of the Crimes Act 1900. Whilst it is well recognised that the statistics are of limited utility, here they did demonstrate a clear mid-line for sentences in respect of each offence. It was submitted that when the objective and subjective features are taken into account, then the offender should be sentenced towards the lower end of the terms reflected in the statistics. The offender had pleaded guilty at the Local Court at the earliest possible opportunity, and it was common ground that he was entitled to the maximum discount on sentence.

25. Further, counsel submitted that the offender had shown remorse for his criminal conduct, and the report of Dr Furst demonstrated that he had insight into his offending, had accepted his guilt and the need for rehabilitation. Further, he had a need to care for his mother, and would return to that role upon his release from custody. Any supervision, once he was released, would involve referral to drug and alcohol services, as well as grief counselling, in respect of the loss of his father.

Determination

26. Section 3A of the C(SP)A sets out the purposes of sentencing as follows:

“3A The purposes for which a Court may impose a sentence on an offender are as follows:

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community.”

27. The objective seriousness of the offending here is to be determined by reference to the business operation of supplying prohibited drugs, namely, the repetition, system and organisation involved – see R v Giang [2005] NSWCCA 387 at [18] – [19]. The quantity of drugs involved is relevant as well as the number and quantities of individual incidents of supply – see R v MRN [2006] NSWCCA 1555 at [142] – [145].

28. The repetition of supply here was six occasions within three months. There was no system or organisation of supply, rather, it was an unsophisticated street level supply at the bottom of the supply chain. For those reasons I find that the objective seriousness of the offending was below mid-range of objective seriousness for offences pursuant to s 25A of the Act, and probably at the lowest level.

29. I am satisfied that the offending was borne out of the offender’s wish to supply other drug users, who, unknown to him, were undercover police, and that he did not materially gain from it in any substantial way.

30. The offender has no relevant criminal history involving supply of prohibited drugs. I have had regard to what the High Court said in Veen v R (No. 2) (1998) 164 CLR 465 at 477, where the plurality said:

“The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. The antecedent criminal history is relevant, however, to show that the incident offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In that case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.”

I find that the offender falls into the former category described by the court, and is entitled to some leniency on the basis of his previous good record.

31. I am persuaded that there are special circumstances here pursuant to s 44(2) of the C(SP)A, having regard to the offender’s need for rehabilitation and grief counselling. It is the first time in custody for the offender and he will require supervision and recourse to rehabilitative services to assist in his productive return to the community. I find that the offender does have good prospects of rehabilitation.

32. I have had regard to the maximum penalty of 20 years imprisonment, and/or 3,500 penalty units, as a guidepost here. The offender is also entitled to a utilitarian discount for his early plea of guilty and there is no dispute that the maximum discount of 25% should apply. I also take into account the remorse of the offender, and I accept the evidence of Dr Furst, that the offender is remorseful.

33. General deterrence is an important matter to be taken into account in drug supply offences (see R v Wong [1999] NSWCCA 420) and specific deterrence is also relevant here.

34. In respect of the offences pursuant to ss 112(2) and 113(2) of the Crimes Act 1900, I accept that these seven charges arise from a single “incursion” as submitted by the offender’s counsel, and that the evidence demonstrates there was no damage done to the premises.

35. Whilst the offender had some prior offences in the Children’s Court, they were more 11 years ago and therefore should not be taken into account so as to disentitle him to some degree of leniency. I accept that there was little planning involved in the offences and that the objective seriousness of the offending was at the lower end of the scale of objective seriousness for such offending.

36. However, there is a degree of accumulation required on sentencing here, with seven different victims, and the need for both general deterrence and specific deterrence. However, I note the subjective factors relied on by the offender as set out in the report of Dr Furst, referred to above.

37. I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate for the various offences. I also note that the offender has been in custody since 16 June 2015.

38. I intend to proceed to sentence the offender by way of an aggregate sentence pursuant to s 53A of the C(SP)A. Sections 53 and 53A provide as follows:

39. Section 53 and s 53A of the Sentencing Act provide as follows:

“S 53 Multiple sentences of imprisonment

(1) When a court imposes a sentence of imprisonment on an offender in relation to more than one offence, the court must (unless imposing an aggregate sentence of imprisonment in accordance with section 53A) comply with the requirements of this Division by imposing a separate sentence in relation to each offence.

(2) The term, and any non-parole period, set under this Division in relation to a sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation to another offence.

S 53A Aggregate sentences of imprisonment

(1) A court may in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each.

(2) A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a record of, the following:

(a) The fact that an aggregate sentence is being imposed,

(b) The sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence.

(3) Subsection (2) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(4) The term, and any non-parole period, set under this Division in relation to an aggregate sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation to another offence.

(5) An aggregate sentence of imprisonment is not invalidated by a failure to comply with this section.”

40. I note that any aggregate sentence must be “just and appropriate” to the totality of the offending behaviour – see Mill v The Queen (1988) 166 CLR 59 at [63]. In R v Van Ryn [2016] NSWCCA 1, the court had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with proper regard to the totality of the criminality involved:

“[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows:

The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently, a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation, a sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.”

41. The court went on to emphasise the need to maintain public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 at [27]:

“There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what it warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. … Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

(See also R v Caldwell [2016] NSWCCA 55)

42. I am mindful that the offences occurred whilst the offender was on conditional liberty. Having regard to the principles of sentencing referred to above, and in particular those of totality and proportionality, I propose to aggregate the sentences to be imposed, having first assessed the indicative sentences to be imposed in respect of each count. It is clear that the aggregation of sentences pursuant to s 53A must reflect some accumulation of the indicative head sentences – R v Rae [2013] NSWCCA 9.

42. The Court is required to indicate the sentence that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence. This provides transparency in the sentencing process – see McIntosh v R [2015] NSWCCA 184 at [135]. It is clear that in indicating the sentences, there is no requirement to specify non-parole periods unless the offence is one for which a standard non-parole period is prescribed – see McIntosh v R, supra at [142], JM v R [2014] NSWCCA 297 at [8].

43. The indicative sentences I would have imposed for each offence are as follows:

1. Offence of ongoing supply pursuant to s 25A(1) of the DMTA – 2 years and 3 months imprisonment.

2. Offence of break, enter and steal pursuant to s 112(2) of the Crimes Act – 6 months imprisonment.

3. Offence of break, enter and steal pursuant to s 112(2) of the Crimes Act – 3 months imprisonment.

4. Offence of break, enter and steal pursuant to s 112(2) of the Crimes Act – 3 months imprisonment.

5. Offence of break, enter and steal pursuant to s 112(2) of the Crimes Act – 3 months imprisonment.

6. Offence of break, enter and steal pursuant to s 113(2) of the Crimes Act – 3 months imprisonment.

7. Offence of break, enter and steal pursuant to s 113(2) of the Crimes Act – 3 months imprisonment.

8. Offence of break, enter and steal pursuant to s 113(2) of the Crimes Act – 3 months imprisonment.

45. Having regard to the fact that the offences pursuant to s 112(2) and s 113(2) arise out of the same course of criminal conduct, they would warrant a high degree of partial concurrency.

Sentence

46. I hereby sentence you as follows:

1. You are convicted of the offence of ongoing supply of prohibited drugs pursuant to s 25A(1) of the DMTA.

2. You are also convicted of the seven further offences pursuant to s 112(2) and s 113(2) of the Crimes Act 1900, of aggravated break, enter and steal.

3. The sentence I impose pursuant to s 53A of the Crimes (Sentencing Procedure Act) is a non-parole period of 18 months, to date from 16 June 2015 and to expire on 15 December 2016.

4. There will a further term of 12 months dating from 16 December 2016 until 15 December 2017. The total term will be 2 years and 6 months.

5. Your parole eligibility date is 15 December 2016.

6. I order that all drugs seized in respect of this offence be destroyed.

7. I further note that the following back up charges pursuant to the s 166 Certificate of supply prohibited drug – H 233686 595 sequences 8-13 are withdrawn.

8. I further order pursuant to s 29(1) of the Confiscation of Proceeds of Crime Act 1989 the offender to pay the sum of $1,520.00 to the State.

9. I direct that upon the his release to parole, the offender accept the supervision of Community Corrections and follow direction that he attend rehabilitative services for his drug and alcohol problems.

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Decision last updated: 02 May 2016