R v Matthew Mark RENEHAN

[2008] NSWDC 95

CITATION:	R v Matthew Mark RENEHAN [2008] NSWDC 95
HEARING DATE(S):	17 March 2008
JUDGMENT DATE:	17 March 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	See paragraphs [21] & [22]
CATCHWORDS:	CRIMINAL LAW - Sentence - Ongoing supply of drugs
PARTIES:	The Crown Matthew Mark Renehan
FILE NUMBER(S):	DC 2007/11/0981
COUNSEL:	L. Nicholls - Offender
SOLICITORS:	NSW DPP Shad Partners - Offender

SENTENCE

1 HIS HONOUR: Matthew Mark Renehan appears for sentence today having pleaded guilty on an earlier occasion to two offences involving the supply of drugs. The first is supplying methylamphetamine on an ongoing basis and the second is the offence of supplying a drug. These offences relate to the activities of Mr Renehan in June and July 2007.

2 The matter came to the attention of police when an undercover officer contacted Mr Renehan on his mobile telephone. This was on 27 June 2007. the undercover officer discussed the purchase of what is called an eight ball of amphetamine and so it was that on 28 June 2007 the undercover officer went to a hotel in Gladesville where he met the offender and a man by the name of Benjamin McDonald. There a transaction took place whereby the offender supplied the undercover officer with a clear plastic satchel containing a yellow coloured paste substance which proved upon analysis to be methylamphetamine with a total weight of 3.3 grams and a purity of 13½ per cent. The undercover officer paid $400 for this drug. A short time later, in mid-July 2007, there were further negotiations culminating in the supply of a further quantity of drugs for $400 - this time 3.1 grams with a purity of, again, 13½ per cent. This time the transaction took place at a McDonald’s on Lane Cove Road at Ryde.

3 The third occasion of supply for the ongoing supply offence was on 19 July 2007. The day before, the undercover officer had contacted the offender’s mobile phone and arranged to receive a further eight ball of amphetamine the following day. This transaction took place at McDonald’s at Ryde. When the offender arrived in his car he got out and went into the undercover officer’s vehicle where again a transaction took place. This time it cost $450 for the supply of 3.2 grams of methylamphetamine, this ,on analysis, turning out to have a purity of 11 per cent.

4 Those three occasions represent the three ongoing supplies, the subject of the first count on the indictment. During this last transaction the undercover officer raised with the offender the prospect of getting a supply involving a greater quantity. He said, “What’s the chance of getting an ounce?” The offender said, “base?” When the undercover officer said, “Yeah.” The offender said, “Yeah, easy.” He quoted about $2500 for that supply.

5 I mention this conversation because of a submission put to me that the offender was reluctant in his drug dealings. I will come back to that issue later. This conversation took place on 19 July. There was a further conversation between the offender and the undercover officer on 25 July. The undercover officer said, “I was still after that one if that is okay?” The offender said, “It shouldn’t be a problem, I’ll have to make a couple of phone calls and get back to you in about an hour.” The offender confirmed that the price was still $2500. The offender did contact the undercover officer some hours later and said that he could not do the deal that day but would telephone him the following morning. The next day the undercover officer tried to contact the offender on his mobile phone but was unsuccessful. It turns out that the offender was ill. However, Mr McDonald took over matters, he contacted the undercover officer and told him that he would be able to supply the ounce and so at about 10.20am on 28 July 2007 the undercover officer met Mr McDonald. Mr McDonald supplied twenty-four grams of methylamphetamine with a purity of 11½ per cent for $2200. After the transaction was completed the police arrested Mr McDonald, and a short time later they arrested the offender at his parent’s home where he was living.

6 These are very serious offences. The offender was prepared to get involved in the evil drug trade in order to both support Mr McDonald (so he says,) and get his drugs for free. Parliament has recognised the seriousness of such conduct by providing for a maximum penalty of imprisonment for twenty years for the offence of ongoing supply and fifteen years for the second count on the indictment for supplying methylamphetamine.

7 I mentioned during the course of my recitation of the facts in this matter that there was a submission that the offender was reluctant to become involved in his drug dealings. The objective circumstances suggest otherwise, at least at the start of his criminal activities. In fact, they suggest enthusiasm. The evidence suggested that the offender became involved in drug dealing when he met a person by the name of Lindsay in the early hours of one morning after he had been drinking a lot. He agreed at Lindsay’s request to supply him some drugs, even writing out a price list on a beer coaster. Later on, when the undercover officer contacted the offender he said that he was a friend of Lindsay’s and referred to the price list on the beer coaster during their negotiations. The fact that the offender was prepared to write out a price list on a beer coaster suggests other than reluctance to become involved in drug supply activities. It is said that he was drunk at the time when Lindsay first approached him but his attitude does not appear to have changed once he sobered up. Enthusiasm can also be found in the offender’s evidence that he used his IT sales skills in an effort to sell more drugs. The evidence was that he told the undercover officer at one stage that he was involved in other drug supplies. He said in evidence today that this was not true but he wanted to keep his customers happy because he wanted to sell more drugs. A third factor suggesting enthusiasm, rather than reluctance, is the offender’s response once the undercover officer raises the prospect of an ounce of methylamphetamine being supplied.

8 The only evidence of reluctance comes from the offender, himself, when he says that on 26 July he refused to take any telephone calls from the undercover officer. I am prepared to accept that that decision to refuse to take calls arose from reluctance to become involved in the supply of the ounce. But I am not prepared to find that up until that time the offender was other than an enthusiastic drug supplier.

9 At this stage I raise an issue concerning the role of the offender and Mr McDonald. Judge English sentenced Mr McDonald earlier this year. He was sentenced only for his involvement in the supply of the ounce on 28 July 2007 and did not face any charges in relation to the ongoing supply matter faced by this offender. Indeed, Judge English sentenced Mr McDonald on the basis that his involvement was a “one off”. She also sentenced him on the basis that he got involved because he was doing a favour for this offender. Completely the opposite suggestion is made in these proceedings. It is suggested by the offender that he was less involved that Mr McDonald and that he was helping Mr McDonald with his finances by supplying drugs. In other words, the offender blames Mr McDonald and Mr McDonald blamed the offender. It would have been better, of course, if the offender and Mr McDonald had been sentenced at the same time before the same judge. It would have been interesting to know what Mr McDonald might have said about the circumstances in which he became the person who did the actual supply of the ounce of amphetamine on 28 July 2007. But that has not come about. I raised with the Crown during the course of the submissions the concern that I felt about the way in which the sentencing matters had proceeded. Nevertheless, I have to deal with the matter as it becomes before me today and that is that there is uncontradicted evidence about the offender’s reluctance to actually supply the ounce of amphetamine he had previously agreed to supply.

10 In the light of that uncontradicted evidence I will sentence him on the basis that he was beginning to have second thoughts about his activities by the time count two came about. I repeat that I am giving the offender the benefit of the doubt on this issue.

11 The offender is a man who had many advantages in life as he was growing up. He comes from a family which supports him. His parents separated after a short time of marriage but his father remains very supportive of him and his stepfather regards him as his son.

12 I gather that the family was not suffering any particular hardship of a financial kind as the offender grew up. He attended school to year 12 and whilst in year 12 undertook parallel education in TAFE pursuing tech drawing and tech studies. He commenced working on a part time basis in year 10. Upon leaving school he managed to obtain various forms of employment before he managed to get a job which interested him, and which he was good at, in IT sales and support. He has a nine year old daughter from a previous relationship. He supports his daughter and gets on well with her mother. He has a relationship with his fiancée, Michelle. They have been together for a number of years and indeed the offender proposed to Michelle in July 2007 at the very time that these offences were being committed.

13 The offender thus had many advantages in life which are denied many people who come before the courts. He, however, has not taken advantage of those circumstances. Instead, he has chosen, and I use the word “chosen” carefully, to become involved in very serious criminal activity.

14 Shortly before his involvement in these matters the offender suffered a number of losses. His grandmother died; a school friend died in strange circumstances; a friend of his committed suicide; as did a former neighbour. The offender seems to have reacted to these stressors by commencing a period of heavy drinking and gambling. The offender’s fiancée gave evidence before me today and she said that he became a different person, less willing to talk about things with her and going out without letting her know where he was going. He also recommenced recreational drug use. He had earlier taken drugs for about four years but gave them up in 1999. The offender is lucky that his family still support him and that his fiancée has indicated a willingness to stand by him. A reference was also tendered from his employer today. His employer speaks of him not only as an employee but also as someone whose character he knows and has been able to assess.

15 The offender is a person who has done much good in the world. He has, as I said, supported his daughter. He has been gainfully employed since leaving school and he apparently is good at his job. On the other hand, he did decide in the middle of last year to become a drug dealer. He said that his motive for offending was twofold. That he would get his drugs to use recreationally for free but also he was going to help Mr McDonald who was going through financial difficulties at the time. There is something of a paradox here, however. Mr McDonald’s financial circumstances were unlikely to be significantly improved by any small scale drug dealing. The offender’s motivation for helping his friend must have included a motivation to sell many more drugs than he actually did. He was really only going to help Mr McDonald if he got involved in drug supply at a much deeper level than that for which he is to be sentenced today. It is for this reason that he was prepared to use his IT sales skills when speaking to the undercover officer in order to sell more drugs. So although the offender seeks to rely on the circumstance that he was trying to help Mr McDonald, the fact that he could only really help Mr McDonald by becoming a serious and larger scale drug dealer is something which actually counts against him. It illustrates the offender’s preparedness to supply drugs at a much more significant level and that in turn illustrates his character, at least in the middle of last year.

16 Mr Nicholls, who appears for the offender, suggested that I should impose a suspended sentence on his client. When he raised that submission with me, Mr Nicholls recognised that he faced two hurdles. The first was that the length of the sentence I imposed upon his client had to be such that suspension was available. The second hurdle was that the Court of Criminal Appeal has repeatedly said that for trafficking of this nature a full time custodial sentence is required unless circumstances are exceptional. Mr Nicholls accepted that a sentence of imprisonment was required but hung his hat on the idea of a suspended sentence. Mr Nicholls addressed me as to why it was that circumstances were exceptional. I will take those matters into account also when deciding the length of the appropriate sentence.

17 One thing I will not give significant weight to is the hardship to the third parties which may arise from the offender’s imprisonment. I mentioned on a couple of occasions earlier that the offender supports his nine year old daughter. She will no doubt suffer in the event that the offender is sent to gaol but such consequences are unfortunately commonplace when those who have responsibilities for others decide to get involved in serious criminal activity. One thing I will take into account, however, in relation to the offender’s daughter is that his time in custody will be harder because of his knowledge that through his actions he has deprived his daughter of the support he was previously providing.

18 The issue of parity arises in relation to count two on the indictment. Comparing the facts upon which Mr McDonald was sentenced with those on which I will sentence the offender, it can be seen that this offender was objectively less involved, as I have said, because of a reluctance on his part to go through with what he had agreed to do. There are many similarities between Mr McDonald and the offender in relation to their age. A finding in Mr McDonald’s case that he was less responsible for his actions than others might have been, also arises here, because of the circumstance in which the offender became stressed, drank more than he should and thus became involved in drug dealing. Also, in common is the circumstances of the early pleas of guilty. As far as the character of Mr McDonald is concerned and comparing that with the character of the accused the offender has one prior matter of a PCA offence but in contrast to Mr McDonald the commission of count two on this indictment is not a one off offence. The offender’s character is someone who was prepared to become involved in other drug dealing apart from count two and was also someone who had been prepared to illegally use drugs in the past.

19 Mr Nicholls made no submission that I would find special circumstances. Nevertheless I will find special circumstances this being the offender’s first time in custody. I will, therefore, enlarge the period of eligibility for parole at the expense of a non-parole period. I accept that the offender today is a very different person from the offender who committed these offences in the middle of last year. But that does not make punishment inappropriate. I accept that the experience of being in custody for nineteen days has provided a salutary lesson to the accused and that his prospects of rehabilitation are good. But my task is not simply to look at the offender. My task is to look at the community as a whole and impose a sentence which does what I can to protect the community from drug dealers ,whether they become involved because of the stressors that Mr Renehan felt or whether they become involved for pure greed. It is important that sentencing judges mark in a concrete and unmistakable way just how wrong it is for people to decide to supply drugs to others.

20 Consistent with proper practice I have firstly decided, as was conceded by Mr Nicholls, that a period of imprisonment is required. I have next decided the length of the two sentences. I am satisfied that a period of accumulation is required to reflect the separate acts of criminality involved in the ongoing supply matter and the decision to become involved in the supply of a larger quantity on 28 July 2007. Having made that decision it is apparent that suspension of the sentences is not an option. Periodic detention is available but it would be insufficient to punish the offender for his wrongdoing. One of the fundamental rules in sentencing is that the sentence has to reflect the objective gravity of the offender’s conduct. As I have tried to explain the offender was gravely involved in serious criminal activity and the only available option is a sentence of full time custody.

21 On count two the offender is sentenced to imprisonment for twelve months. That is a fixed term because of the next sentence I will impose. That sentence is to have commenced on 27 February 2008.

22 On count one the offender is sentenced to imprisonment. I set a non-parole period of twelve months to commence on 27 August 2008. I set a head sentence of two years. The overall sentence is thus one of two and a half years with an eighteen month non-parole period. The offender is to be released to parole on 26 August 2009.

23 Anything else, Mr Crown, Mr Nicholls?

24 HENDERSON: Your Honour, just an order for the destruction of the drugs.

25 HIS HONOUR: I think they have already been destroyed but I will make an order that the drugs are to be destroyed.

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