R v Matthew John Smith

[2007] NSWDC 391

CITATION:	R v Matthew John SMITH [2007] NSWDC 391
JUDGMENT DATE:	4 October 2007
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	For each offence - non parole period of 18 months, balance of the term of 12 months.
CATCHWORDS:	CRIMINAL LAW - sentence - supply prohibited drug - four counts, four drugs - plea of guilty - not isolated incidents - deemed planned and organised crime - offence committed without regard for public safety - good prospects of rehabilitation
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 s 21A Drug Misuse and Trafficking Act 1985 s 25(1)
PARTIES:	Regina Matthew John Smith
FILE NUMBER(S):	07/51/0079
COUNSEL:	Mr Carroll for Mr Smith
SOLICITORS:	Ms Mudge for the Director of Public Prosecutions

JUDGMENT

1. Mr Smith, I am going to sentence you now; you can stay seated for the time being.

2. Police suspected Matthew John Smith was involved in the supply of prohibited drugs in Armidale. They mounted an investigation. On 26 September 2006 they searched his out at 10 Enid Street in Armidale. Their suspicions were confirmed. They found no fewer than four different kinds of illegal drugs.

3. They found almost 277 grams of cannabis; they found almost 7 grams of MDMA, or Ecstasy, comprising 26 pills; they found about 3 grams of Lysergide, or LSD, in the form of 46 tablets, they found about 3 and a half grams of methylamphetamine, commonly known as “speed”. Not only did they find the drugs, but the found electronic scales and over sixty-six thousand dollars in cash.

4. Mr Smith was arrested and charged with four counts of supplying a prohibited drug, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. Mr Smith was charged with one count for each type of drug. Each charge did not represent an actual supply, but a deemed supply in accordance with s 19 of the same Act.

5. Mr Smith has been in custody since his arrest on 26 September 2006. He has pleaded guilty to the charges, and is before me for sentence. His counsel, Mr Carroll, realistically acknowledged that his client was obviously involved in drug trafficking to a substantial degree.

6. So the principal issue in these sentence proceedings is for how much longer should he remain in custody as part of a non-parole period for a custodial sentence.

7. I turn to the objective seriousness of the offences first. These were not isolated instances. Mr Smith was obviously involved in extensive drug supply and made a considerable amount of money. Whereas the vast majority of people in the community supplement their incomes by extra employment, or they adjust their lifestyle, Mr Smith supplemented his income by selling drugs within the community of Armidale.

8. It was obviously a planned and organised crime. His motivation was greed rather than need. One indication of the planning was the presence of a floor safe in his house.

9. Mr Smith’s reputation within the community was of a respected and well regarded person; on the other hand, he was clearly a local drug dealer.

10. Having said this, I am conscious that I am sentencing him for four deemed supplies, and not a series of actual supplies. The inferences which I draw about his activity as a drug supplier are relevant as his counsel submitted. To demonstrate that, his claim to be well respected needs to be seen in that context. It is relevant also to planning and it is relevant to the offences not being isolated. It is in respect of those features only that I take into account the matters which I have earlier mentioned.

11. Also because it is a deemed supply I do not take into account in this case as an aggravating factor that the offence was committed without regard for the public safety; a factor mentioned in s 21A(2)(i) of the Crimes Sentencing Procedure Act 1999.

12. Nevertheless, the objective seriousness of these offences is further illustrated by the fact there are four offences, not one; by the fact that there were four different kinds of prohibited drugs, and by the fact that only one of the those drugs was the prohibited drug of cannabis, which is regarded as a slightly less serious offence by the relevant legislation.

13. Turning to subjective material, Mr Smith is a father of three children aged eleven, nine and seven. He has been in a relationship with a woman named Ruth Keller for some eighteen months or so. She gave evidence before me as did Mr Smith. She said that he is, to her observation, an excellent father and a good carer to his children. He is so regarded within the community as well. I make that observation about him subject to the finding which I have made about his drug selling activity.

14. She has indicated that she and Mr Smith have discussed their future, and that they have agreed that they will resume their relationship after his time in custody and in fact they will live together in a house in Uralla with his children and hers. She herself has four children, three of them the same age as Mr Smith’s children, and a six year old. They attend the same school which is how Mr Smith and Ms Keller met. Hence there is a prospect, a good prospect, that after his release from custody that he will go into a supportive environment.

15. In addition Mr Smith has given evidence that he has remained off illegal drugs while he has been in custody. I should add that he himself from earlier years has been a drug user; as he said he has tried most drugs but his usual drug has been cannabis. He has been offered drugs in custody but has refused them, and he has avoided in custody the cultivating friendships which might lead to further drug usage.

16. Mr Smith is obviously regretful for deciding to support himself and his family by selling prohibited drugs; he described it as the worst decision he has made in his life. He described to me what he has learned about the effects of illegal drugs on those who take them. I regarded with some scepticism his claim not to have understood those effects before recently.

17. To his credit, he has been undertaking a TAFE course since 2003, and is keen to resume that form of education and render himself more employable in appropriate employment within the community.

18. A pre-sentence report has been prepared. It sets out Mr Smith’s background which includes a what is described as an unpleasant and unstable home situation when he was quite young which evidently led to him leading an irregular lifestyle as a young man. He had a drinking problem some years ago until he became a single father when he resumed custody of his three children from their mother. And since then the taking of alcohol and illegal drugs has not been a significant factor in his life.

19. Mr Smith’s criminal record is unremarkable. There is only one entry which is relevant which is for possessing prohibited drugs in 1997 in the Local Court; otherwise they are for traffic offences.

20. Mr Smith has references from a class teacher at his children’s school and from a Mr Hutchison who indicates that Mr Smith could be employed within his business of home maintenance and lawn mowing.

21. I have been supplied by Mr Carroll with comparative sentences which I marked MFI 2 in these proceedings.

22. Mr Smith has committed a series of four serious drug offences. The drugs are all different and each of them has the potential to considerably harm the community. Nevertheless, all he has been convicted of is possessing a quantity of each drug sufficient for him to be in possession of those respective amounts for supply.

23. I regard his prospects of rehabilitation as good. I have taken into account the evidence by Ms Keller and his own evidence regarding his attitude in the prison to drug taking and his plans for the future.

24. I have also taken into account his plea of guilty. I specifically mention his plea of guilty because I would regard an appropriate overall head sentence in this matter but for the plea of guilty something in the area of three and a half to four years. But taking into account his plea of guilty and his expression of contrition and remorse, I have discounted that figure and I propose to sentence him to an overall period of two and a half years in prison. I propose to set a non-parole period of eighteen months. The parole period is greater than the statutory period because I am satisfied that there are special circumstances warranting this.

25. I have taken into account the prospects of rehabilitation and the fact that this is his first time in prison. I propose to fix the same sentence in respect of each offence even though the maximum for cannabis is less, and I propose to fix them to run concurrently because they were essentially all discovered at the same time and his possession of those drugs was part of the same criminal activity.

Would you stand up Mr Smith please.

26. In respect of the offence of supplying a prohibited drug, namely methylamphetamine, I set a non-parole period of eighteen months to commence on 26 September 2006 and to expire on 25 March 2008 and I fix an additional term of twelve months to commence on 26 March 2008 and to expire on 25 March 2009.

27. In respect of the offence of supplying a prohibited drug, namely cannabis, I set a non-parole period of eighteen months to commence on 26 September 2006 and to expire on 25 March 2008 and I fix an additional period of twelve months to date from 26 March 2008 and to expire on 25 March 2009.

28. In respect of the offence of supplying a prohibited drug in the form of methylenedioxymethylamphetamine, I set a non-parole period of eighteen months to date from 26 September 2006 and to expire on 25 march 2008 and I fix an additional period of twelve months to commence on 26 March 2008 and to expire on 25 March 2009.

29. In respect of the offence of supplying a prohibited drug namely Lysergide, I fix a non-parole period of eighteen months to commence on 26 September 2006 and to expire on 25 March 2008 and I set an additional term of one year to commence on 26 March 2008 to expire on 25 March 2009.

30. I note that I have a certificate under s 166 of the Criminal Procedure Act 1986 naming certain backup offences of possessing amphetamine and possessing methylenedioxymethylamphetamine, and possessing Lysergide and possessing cannabis resin and dealing with property suspected of being the proceeds of crime and pursuant to s167(1A), I order that those charges be dismissed.

31. I order that the drugs be destroyed under s39P of the Drug Misuse and Trafficking Act 1985.

Have a seat Mr Smith for a moment.

Now Mr Carroll, Ms Mudge, have I left anything out?

CARROLL: Not from my perspective your Honour.

MUDGE: In relation to, I’m not sure of your Honour’s view in relation to the subject of supervision when on parole.

HIS HONOUR: Thank you. It is a two and a half year sentence, you are right, so I have to give a direction because it is less than three years. You are quite right.

32. In accordance with s 50 of the Crimes Sentencing and Procedure Act 1999, I make an order directing the release of Mr Smith on 25 March 2008, that is at the end of his non-parole period, I make it a condition of the parole order that I have just made requiring that Mr Smith subject himself to supervision by the Probation and Parole Service and that he accept their reasonable directions concerning alcohol and drug rehabilitation.

33. Mr Smith, you have got two and a half years; you have got eighteen months to serve. It is backdated, so it started when you went into custody. You got yourself into very serious trouble. I think you are lucky to have somebody like Ms Keller who is going to resume her relationship with you and your children and you will be on parole for a year, that is longer than normal because I think your rehabilitation is important, and I have suggested that you get some supervision on parole to help you with your rehabilitation. Do you understand all that? Okay, thank you.

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