R v McPhillips

[2006] NSWDC 92

CITATION:	R v McPhillips [2006] NSWDC 92
HEARING DATE(S):	18/8/2006, 20/9/2006
JUDGMENT DATE:	5 October 2006
JUDGMENT OF:	Conlon SC DCJ at 1
DECISION:	See para 39
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985 ss 25, 25A Crimes (Sentencing Procedure) Act 1999 ss 3A, 5, 22
CASES CITED:	R v Clarke (NSWCCA unreported 15 March 1990) R v Sharma (2002) 54 NSWLR 300 R v Thomson and Houlton (2000) 49 NSWLR 383 R v Hoon and Pouoa [2000] NSWCCA 137 R v Smiroldo (2000) 112 A Crim R 47 R v Cheikh and Hoete [2004] NSWCCA 448 R v Petersen (NSWCCA unreported 6 August 1992) R v Way [2004] NSWCCA 131 R v Bimahendali (1999) 109 A Crim R 355
PARTIES:	Regina Jonathan Paul McPhillips
FILE NUMBER(S):	06/41/0150
COUNSEL:	Mr J Peluso (offender)
SOLICITORS:	Mr Y Astar, Mr D Wallace (DPP) Mr M Abboud (Michael Abboud & Co)

JUDGMENT

1 HIS HONOUR: The offender, Jonathan Paul McPhillips, appears for sentence consequent upon his pleading guilty to the following two charges. First, that between 8 March 2005 and 2 April 2005 he did on three or more separate occasions supply a prohibited drug for financial reward, namely 3,4-methylenedioxy-methylamphetamine, the maximum penalty being twenty years imprisonment. Secondly, that between 1 March 2005 and 4 May 2005 he did supply a prohibited drug, namely cannabis, the maximum penalty for that offence being one of imprisonment for ten years.

2 The offender has asked the Court to take into account five further matters on a Form 1 schedule.

3 An agreed statement of facts of some twenty pages in length details the facts and circumstances upon which the Crown relies to support not only the charges on the indictment but also the matters to be taken into account on the Form 1 schedule. Whilst those detailed facts clearly demonstrate the objective seriousness of the present offences I will not repeat them here. However, by way of brief summary on 18 February 2005 the Deputy Commissioner Madden granted police authority to conduct a controlled operation codenamed “Operation Welch”. The warrant was granted for the period 17 February to 17 May 2005.

4 Pursuant to the authority granted, police conducted a number of undercover purchases. Listening device warrants were also obtained in respect of various telephone numbers. Telephone number 0415781232 was the “run” phone used by customers of the syndicate to contact the runners on their shifts. Telephone number 0422085430 was used by Bojan Trkulja, one of the suppliers of cannabis to the offender. Telephone number 0404158531 was used by the offender.

5 Consequently a number of telephone conversations were lawfully intercepted and numerous of them are described in the agreed statement of facts. The offender was one of five runners of the syndicate and according to the facts he was one of the most senior runners.

6 During the period the offender commenced supplying cannabis and MDMA to undercover operatives.

7 In respect to the first charge of ongoing supply (s 25A), the first supply took place on 9 March 2005. It involved MDMA, three tablets weighing 0.72 grams. The second supply took place on 11 March 2005 involving ten tablets MDMA, weighing 2.4 grams. The third supply occurred on 22 March 2005, ten tablets, weighing 3.03 grams. The fourth supply on 24 March 2005, ten tablets 3.0 grams and the fifth supply on 1 April 2005, six tablets 1.73 grams.

8 In respect to the second charge on the indictment, a charge of supplying cannabis (s 25(1)) between dates, that was made up of a supply on 2 March 2005, cannabis weighing 5.6 grams; on 9 March 2005, cannabis weighing 6.0 grams; and on 12 April 2005 cannabis weighing 453 grams.

9 It should also be pointed out in respect of this second charge on the indictment involving supplying cannabis a similar charge of supplying cannabis by the co-offender Rao between 22 February 2005 and 3 May 2005 was placed on a Form 1 schedule instead of being placed on indictment. I will have regard to this fact when finally considering the question of parity as between this offender and the co-offender Rao.

10 Following the supply to an undercover officer on 3 May 2005 the offender was arrested. He was later interviewed but made no relevant admissions. He remained in custody from 3 May 2005 until 15 September 2005, a total of four months and thirteen days.

11 The offender has one prior matter on his record for possession of cannabis. That conviction was recorded on 23 May 2003 and he received a s 12 bond. Evidence was given before me by his father that it was he, that is the father, who requested the police to attend his garage on that occasion where he suspected that the offender and some of his mates were using cannabis. The offender, in giving evidence, has also stated that he virtually stopped the use of that drug following his arrest on that occasion.

12 Whilst the offender has acknowledged the use of other illicit substances like amphetamines and ecstasy and ketamine, he claimed that at the time of the subject offences he had abstained from any drug taking for some years. The offender has stated that he had significant gambling problems at the time of becoming involved in working for the drug syndicate. Consequently, as in the case of co-offender Rao, the offender’s involvement was for monetary gain.

13 R v Clarke (unreported NSWCCA 15 March 1990) affirmed the principle that the general policy in respect of drug traffickers is that only in exceptional circumstances will a non custodial sentence be appropriate.

14 The offender is twenty-two years of age, with the exception of the one matter of possess cannabis (May 2003) he has no other criminal convictions. He was born in Australia, he still resides in the family home along with his parents and two brothers, one aged twenty-one and the other twelve.

15 In the history provided to the Probation and Parole Officer and also to Ms Seidler, psychologist, (report dated 20 July 2006, exhibit 3), it appears the offender grew up in a satisfactory and secure environment until the age of ten when his mother gave birth to the youngest brother. Following the birth of that child the mother developed very high blood pressure and it seems suffered some type of nervous breakdown. She became a totally different person and despite the family encouraging her to seek mental health treatment she was unwilling to do so.

16 His father subsequently began working two jobs to supplement the family’s lost income. The offender’s mother reportedly began exhibiting strange behaviour at the offender’s school and soccer club and this in turn resulted in considerable ridicule from other children causing the offender to become withdrawn. Through his teenage years he apparently suffered the stress associated with mental illness in the home and lacked adequate parental supervision. It seems the offender came increasingly under the influence of his peers and succumbed to drug use.

17 His interest in sports declined and eventually ceased. His academic progress also declined, as did he engagement in school. He also began to truant occasionally and received suspensions during Years 10 and 11. He completed Year 12 studies and obtained the HSC in 2001, although the offender commented to Ms Seidler that it was his belief that he underachieved and that his performance had been affected by drug use.

18 After leaving school he worked in a fast food outlet and later worked as a forklift driver. The offender informed Ms Seidler that he eventually became involved in the supply of illicit drugs through anti-social peer connections in his local area.

19 Ms Seidler stated the offender acknowledged his responsibility in relation to his offending but claimed he felt trapped and unable to separate himself from offending without placing his family at risk. According to Ms Seidler he expressed some relief at being arrested, which ostensibly forced him to distance himself from his previous connections, lifestyle and activities.

20 His co-offender Rao also indicated that he was too scared to leave the syndicate and feared for the safety of his family. I commented in the co-offender’s matter that I was prepared to accept on the balance of probabilities that it was likely some pressure was brought to bear upon runners in order to persuade them to remain on the job and I am of the same view in regard to this offender.

21 The offender gave evidence that he pleaded guilty before the magistrate at the first opportunity. Within two weeks of bail being granted (September 2005) he secured work as a data entry and call centre clerk for Crisco. At the commencement of 2006 he enrolled at TAFE and was undertaking accounting and carpentry qualifications. In May 2006 he commenced his own transport business in partnership with a friend. He has undertaken a loan of $54,000 for the purchase of an Isuzu truck and secured a contract with Cadbury Schweppes delivering drinks. He produced the company certificate of registration in the name of JAG Logistics. He also produced other documents referrable to the business including the BAS statement for the last three months. He stated that he has been working five or six days a week. He said that immediate upon his release from custody he felt that he wanted to work to make an honest living. He said his first time in gaol at Parklea had devastated himself and his family. He saw other inmates and observed the impact drugs have had on their lives.

22 In giving evidence, he expressed remorse and contrition and said, “I know I have to be punished”. He also said, “If given the chance I know I can successfully continue in business...it was a God-send that I have been able to distance myself from my former associates...I am playing soccer and keeping company with decent individuals”.

23 I was impressed by the offender’s ability to face the consequences of his behaviour. On the possibility of further custody he said that he had a partner and had faith in him to continue on with the business in his absence. He also stated that he intends to go back to the business when he is able. He has shown both initiative and drive in setting up this business. I think his prospects for rehabilitation are outstanding.

24 The offender’s father, Paul McPhillips, also gave evidence. He confirmed his wife’s illness and how she has refused to have treatment. She is apparently still unwell. Mr McPhillips said his wife’s illness had the greatest effect on the offender as they had been really close. Mr McPhillips said his son excelled in his primary schooling but that his behaviour changed in high school. Owing to the family situation and the fact that he had to work two jobs he said, “I was not there for my son”. He confirmed that it was he who had contacted the police in 2003 and requested their attendance at the garage where the offender was arrested for cannabis possession. Mr McPhillips said that that was the first time he was aware that his son had a drug problem.

25 Mr McPhillips also gave evidence that he was permitted to visit his son three times a week when his son spent that period in custody. He said he observed a dramatic change since his release from custody.

26 Mr Peluso, who appeared for the offender, submitted that rehabilitation for this offender would be a significant factor. He also submitted that I should take into account his family circumstances and emotional immaturity at the time of the offences as well as his gambling problems that led him to seek an easy way out. Mr Peluso submitted that the Court would be impressed by his exceptional progress with his own rehabilitation and that rarely do courts see such a positive attitude to employment. Mr Peluso suggested that the Court would be satisfied of his good prospects for not re-offending.

27 The offender is entitled to have his plea of guilty reflected in mitigation of penalty. This is done on two bases: to reflect the utilitarian benefit to the criminal justice system and to reflect contrition: s 22 Crimes (Sentencing Procedure) Act; R v Sharma (2002) 54 NSWLR 300.

28 His plea was first entered on 5 April 2006 at Liverpool Local Court and consequently it is a plea at the earliest opportunity and will receive a discount of about twenty-five per cent to reflect the utility of that plea of guilty. (See R v Thomson and Houlton (2000) 49 NSWLR 383.)

29 Despite having regard to all of the subjective material presented on his behalf there is nothing in my view that would amount to exceptional circumstances.

30 I have also had regard to s 5 of the Crimes (Sentencing Procedure) Act and the Court is satisfied that no penalty other than imprisonment is appropriate. The Court has also taken into account the purposes of sentencing set out in s 3A.

31 Section 25A of the Drug Misuse and Trafficking Act was introduced in 1998 with the intention of targeting dealers who had organised their affairs in such a way as to limit the full effect of the Act by dealing in only small quantities at the time. The gravamen of s 25A lies in the repeated acts of supplying the prohibited drug within a closed period. In R v Hoon and Pouoa [2000] NSWCCA 137 Dunford J said of s 25A at para 39:

“The section is directed to the concepts of repetition, system and organisation and the objective criminality of any offence under the section should be determined by reference to those features and not merely to the number and quantities of individual instances of supply.”

32 However it is relevant to consider whether an offender convicted of an offence under the section has sold three lots of one kilogram each or three lots of one gram (by way of example). (See R v Smiroldo (2000) 112 ACrimR 47 and R v Cheikh and Hoete [2004] NSWCCA 448.

33 It has been accepted by the Crown that the offender’s role was that of a runner. In R v Petersen (unreported NSWCCA 6 August 1992) Matthews J said at p 6:

“It is now a trite proposition that in all but rare and exceptional cases full time deterrent sentences must be given to people who involve themselves in the drug trade. Even middlemen who make no financial gain from dealings fall within this category.”

34 On the question of the objective seriousness of the offence I have taken into account that MDMA (ecstasy), ketamine and methylamphetamine are what the Courts have determined as, “middle range drugs”. (See R v Way [2004] NSWCCA 131.)

35 Regarding the s 25(1) offence, cannabis falls into the category of, “a soft drug”. (See R v Bimahendali (1999) 109 A Crim R 355 at para 16.)

36 I have earlier drawn attention to the fact that in respect of the second charge on the indictment (supply cannabis between 2 March and 12 April) a similar charge of supplying cannabis by co-offender Rao between 22 February and 3 May was placed on a Form 1 schedule in his case instead of being placed on the indictment. I have taken that into account on the question of parity as between the offender and the co-offender. Consequently that fact forms part of the reason as to why in my opinion it would not be appropriate in the circumstances to attempt any partial accumulation of the sentences as between the first and second charges. I am of the view that the agreed facts indicate that the overall criminality of the offender has been slightly higher than the co-offender Rao as the offender was one of the more senior runners and this is established by the agreed facts.

37 The Court is impressed by what the offender has done so far as his own rehabilitation is concerned and there is reason to be positive that he is unlikely to re-offend. The Court is similarly impressed by the manner in which the offender has accepted responsibility for his behaviour and both his acknowledgement and remorse for his wrongdoing.

38 I find special circumstances, being his age, the lack of any prior criminal convictions, my assessment of his good prospects of rehabilitation and the possible need for supervision once he is released so that he can be better prepared to resume his business.

39 Mr McPhillips you are convicted and you are sentenced to imprisonment. In respect to the first charge on the indictment I fix a non parole period of eighteen months to date from 23 May 2006 and to expire on 22 November 2007. I fix an additional term of two years and six months to expire on 22 May 2010.

40 In respect of the second charge on the indictment I sentence you to a fixed term of imprisonment for twelve months to date from 23 May 2006. What I have done gentlemen there in respect of that period of four months and thirteen days is that I have taken that into account and I have backdated it. By my calculation, which I have gone over numerous times, it appears that the appropriate date would be to backdate that sentence to 23 May 2006. That minimum term will expire, Mr McPhillips, on 22 November 2007. That will be the date upon which you will be eligible for parole.

41 I also recommend that he be accepted into the Young Offenders’ Program as soon as is possible.

42 Mr McPhillips this has been a difficult sentencing task. I think you have come to the realisation of why the law, and indeed the community, demand that persons who involve themselves with drug syndicates, even as runners, are required to be punished with custodial sentences. The Courts need to send a strong message out to those who are involved in this type of criminality and those who are thinking about becoming involved that their behaviour will not be tolerated. The Court has set what it believes to be the minimum term that can appropriately be specified having regard to the objective seriousness of the crime.

43 As I have already indicated, your ability to acknowledge and accept that your behaviour required punishment was something that impressed me, as was your ability to attempt to get on with your life. You are young and I believe that you have very good prospects when you resume your business, which I have no doubt that you will. I am also confident you will not re-offend. You will have a successful life as long as you steer clear of any further criminal activity.

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