R v Meredith

[2022] NSWDC 504

District Court

New South Wales

Medium Neutral Citation:

R v Meredith [2022] NSWDC 504

Hearing dates:

01, 29 April 2022 & 29 July 2022

Date of orders:

29 July 2022

Decision date:

29 July 2022

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

Specify a term of imprisonment of 2 years to be served by way of intensive correction in the community

Catchwords:

CRIME — Drug offences — Supply prohibited drug

SENTENCING — Penalties — Intensive correction orders

Legislation Cited:

Confiscation of Proceeds of Crime Act 1989

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Drug Misuse and Trafficking Act 1985

Public Health Act 1910

Cases Cited:

Attorney-General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518

R v Borkowski [2009] NSWCCA 102

Category:

Sentence

Parties:

Regina (Crown)
Samuel James Meredith (Offender)

Representation:

Alexandra Bova (ODPP solicitor)
Angela Cook (Counsel for the Offender)

Director of Public Prosecutions (NSW) (Crown)
Macedone Legal (Offender)

File Number(s):

2021/00204311

REVISED EX TEMPORE JUDGEMENT

INTRODUCTION

1. Samuel James Meredith is before me today for sentence in respect of two offences, the first contrary to s 25(1) Drug Misuse and Trafficking Act 1985 alleging that he between 17 May 2021 and 17 July 2021 at Cronulla in the State of New South Wales supplied a prohibited drug, namely cocaine. The second offence is one contrary to s 10 Public Health Act 1910 alleging that he between 17 May 2021 and 17 July 2021 at Cronulla in the State of New South Wales with notice of administerial direction under the Public Health Act 2010 failed to comply with that direction without a reasonable excuse.

THE PENALTIES

2. The offence charged as sequence 2, the supply prohibited drug, cocaine, carries a maximum penalty of imprisonment for 15 years and a fine of $220,000. The offence charged to sequence 4, failing to comply with the Public Health Act 2010 has a maximum penalty of six months imprisonment and a fine of $11,000.

THE OUTCOME

3. Considering the way the matter has unfolded and the progress made by the offender, it would seem to me that the appropriate course in this case is to identify a sentence appropriate for the supply charge. I am satisfied that a sentence of two years is appropriate and in the circumstances that may be served by way of an intensive correction orders in the community. My reasons for this decision will follow.

4. Insofar as the failed comply with a Public Health Act offence is concerned, I propose to simply convict the offender but pursuant to s 10A Crimes (Sentencing Procedure) Act 1999 I shall not impose any penalty.

FORM ONE OFFENCES

5. When I determine the sentence for the supply charge the offender asks that I take into account additional offences. These are sequence 3, contrary to s 93P(1) Crimes Act 1900, that he between 17 May 2021 and 17 July 2021 at Cronulla in the State of New South Wales knowingly participated in a criminal group, knowing that his participation contributed to criminal activity being the supply of cocaine. The maximum penalty for that offence is imprisonment for five years.

6. The second offence to be taken into account is contrary to s 25(1) Drug Misuse and Trafficking Act 1985 alleging that he on 16 July 2021 at Cronulla in the State of New South Wales supplied a prohibited drug, namely 7.82 grams of cocaine. This offence, as with the offence charged in sequence 2, carries a maximum penalty of imprisonment for 15 years with a fine of $220,000.

7. The third offence to be taken into account is sequence 7 contrary to s 193B(2) Crimes Act 1900 alleging that he on 16 July 2021 at Cronulla in the State of New South Wales knowingly dealt with the proceeds of crime, namely $1,525 in Australian currency. That carries a maximum penalty of imprisonment for 15 years.

8. There is no standard non‑parole period for any of these offences for the purposes of Part 4 Div. 1A, Crimes (Sentencing Procedure) Act 1999.

THE PLEA OF GUILTY

9. The offender pleaded guilty in the Local Court at Central after negotiations between the parties. Therefore, this is a matter to which Part 3 Div. 1A Crimes (Sentencing Procedure) Act 1999 applies. The discount for the utility of the pleas of guilty to the indictable charge is therefore 25% in accordance with s 25D(2) of the Act. Were I to impose a sentence upon the offence of contravening the Public Health Act 2010 and in accordance with R v Borkowski [2009] NSWCCA 102 the offender would be entitled to a discount for the utility of 25%, but because I am not imposing any penalty that consideration is in the circumstances otiose.

PRE-SENTENCE CUSTODY

10. The offender was arrested on 16 July 2021 and remained there until I granted bail with strict conditions so that he might pursue rehabilitation pursuant to s 11 Crimes (Sentencing Procedure) Act 1999. This occurred on 1 April 2022 when his bed was available to him at the facility where this opportunity was arranged.

11. On 29 April 2022 upon an application made on his behalf after attending to the formal requirements for the continuation of the proceedings, I adjourned the matter to today to allow the rehabilitation to continue. The offender was excused from appearing if legally represented on this date, but as the matter evolved he successfully completed the program into which he was admitted and he is before Court today. Notwithstanding the matter was listed for mention only, I am encouraged to proceed to conclude the matter considering the progress made and considering there being no utility in further delaying the proceedings.

12. The pre‑sentence custody and the continuation of his containment participating in the program to which he was admitted I have brought to account in determining the length of the sentence to be imposed for the offence of supplying cocaine.

13. The bail conditions to which he was subject to allow him to pursue that opportunity were limiting and imposed significant constraint upon the offender. Those imposed were that he surrenders his passport, not obtain or attempt to obtain any travel document, not enter any airport or recognised point of nautical departure from Australia, to reside at the establishment where the program was conducted, not leave there until the program was complete except to participate in compulsory program activities, conferences with legal advisers, attending court, or at the direction of the person in charge, not to have any contact directly or indirectly except through a lawyer with a prosecution witness, to appear. when required, not consume alcohol, or enter premises where alcohol was sold, not take illegal or prescription drugs except a drug lawfully prescribed, comply with reasonable directions of the person in charge and managing the rehabilitation program.

14. If not accepted into the program or withdrawn or discharged from the program, he was to be returned to custody. He was ordered to be released from custody on the morning of 4 April 2022 to allow him to enter the facility. He was required to travel there directly in the company of named persons and to immediately commence participation in that endeavour.

15. There was a requirement that an acceptable person agree to forfeit a sum of money with acceptable security deposited.

SIGNIFICANCE OF THE FORM 1 OFFENCES

16. The Form 1 offences have been brought to account in the determination of this matter. They have impacted upon the determination of sentence, bearing in mind the connection between those offences and the principal offence upon which a sentence is to be imposed. The offender has gained a benefit out of this opportunity by not having to face separate punishment for those matters, but at the same time he has provided considerable utility in having the slate cleared of all outstanding offences and he must be allowed that consideration.

17. The additional offences, as I said, have impacted upon the determination of sentence, bringing to bear the need for appropriate weight to be given to personal deterrence arising from the entire extent of his misconduct and to recognise the community’s entitlement to retribution and denunciation for the offences and the entirety of the misconduct upon which he engaged. The guideline judgement in Attorney-General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518 I have reviewed to guide me in the course that I have taken.

ANTECEDENT RECORD

18. Before I go to the facts I will refer to the offender’s antecedents. They are limited. He has one matter on his record prior to this in 2015 of possessing a prohibited drug for which he was given the benefit of s 10 Crimes (Sentencing Procedure) Act 1999 with a bond to be of good behaviour for a period of 12 months.

THE FACTS

19. The agreed facts present a well organised business model conducted by the principals in this group. The offender was engaged in the activities of courier but to a relatively extensive degree over a period of some months during which surveillance was conducted. There are two co‑offenders named in the facts, a person with the family name Moussa and a man with the name Sweeney.

20. In April 2021 the New South Wales Police commenced a strike force tasked with investigating the drug supply activities of Moussa and Sweeney. The police used covert evidence gathering techniques, including electronic and physical surveillance. The electronic surveillance included telephone interception.

21. The group was a cocaine supply service operating seven days per week through a central mobile phone number. That number would receive an order from a customer specifying a delivery address and the number of bags of cocaine required. The syndicate member operating the central phone would then refer the order to a drug runner who would complete the delivery. Each bag of cocaine was sold for $250 cash. The syndicate had runners working in tandem on Friday, Saturdays, and Sundays. These were the busier days. There was generally one runner working at a time on weekdays. Customers were routinely advised that deliveries would begin at 2.30pm each day, although orders were received and acknowledged earlier. Cocaine was generally delivered between 2.30pm until about 10.30pm on each day.

22. There were many customers serviced by this enterprise located primarily in the Sutherland Shire. The central phone would routinely send a message to a bulk customer list on a Thursday or Friday evening which read, “On tonight and all weekend will deliver to you.” By way of example the central phone sent a message in those terms to 821 people on the night of Friday, 18 June 2021.

23. The syndicate operated using different types of safe houses to store bags of cocaine, which the drivers accessed to either collect bags of cocaine before a shift and during reloading occasions, or to return money at the end of the shift. The safe houses used by the syndicate were located between 7 May 2021 to 11 June 2021 at an address in Denham Avenue, Caringbah, the home of a person named Troy.

24. From 11 June to 25 June 2021 a white Holden utility was used for that purpose, owned by a friend of Sweeney’s, referred to as “Saucer”, who was interstate at the time. This was parked on Broula Close, Caringbah about 30 metres from Sweeney’s home.

25. From 25 June until 10 July 2021 a red Nissan Pulsar, a rental car with Victorian registration, was used replacing “Saucer’s” utility at the same location. From 10 July to 15 July 2021 a black Hyundai i30 was used. This vehicle was registered to Sweeney. It replaced the red hire car and was in the same position. From 15 July to 16 July 2021 a silver Nissan X‑Trail was parked on Denham Avenue Caringbah. The premises and those vehicles were used as safe houses in the manner I earlier described.

26. Moussa and Sweeney were the joint principals of the syndicate. They were responsible for organising and manning the central mobile phone, directing runners to complete transactions, purchasing larger amounts of cocaine for supply, creating small deal bags of cocaine, and ensuring that the runners were stocked with enough cocaine to meet demand. They were each making about $8,000 to $9,000 per week from the enterprise. They were jointly responsible for collecting the cash takings each day and distributing the money.

27. This offender, Meredith, was a runner or courier for the syndicate acting at the direction of the other two. Others identified as being involved, named in the agreed statement of facts, were a person named Ngati, who operated the central phone at times, and runners McNally, Marfi, O’Neill and Reddy.

28. O’Neill has been sentenced in respect of his participation. That occurred on 17 March 2021. O’Brien DCJ imposed a sentence of two years and two months, including a non‑parole period of 13 months. There are distinctions between that offender and the present offender which justify a departure the approach that taken by O’Brien DCJ, and my decision to impose the sentence of two years to be served by way of an intensive corrections order.

29. During the operation police conducting the physical surveillance observed the runners, including this offender, regularly attending the various safe houses that were listed before. These were in furtherance of the syndicate and involved the dropping off or collecting of cocaine and/or money.

30. Drivers working for the syndicate would collect a Ziplock bag at the time the safe house was attended. These were stored inside a large empty protein powder container. Each Ziplock bag contained ten smaller plastic resealable bags with cocaine. Once the driver had supplied the ten small bags with cocaine, they would return the Ziplock bag now containing the money collected from the customers to the safe house. The driver would exchange the Ziplock bag containing cash with a fresh Ziplock bag containing ten bags of cocaine. This is conduct referred to as reloading.

31. At the end of the shift the drivers would return the Ziplock bag in their possession containing money and any leftover unsupplied bags of cocaine to the safe house.

32. The facts then deal with the first central phone used between 7 May 2021 and 16 May 2021. Between those two dates the police lawfully intercepted the phone number used by the syndicate; over ten days there were 190 orders for cocaine. These were completed by different runners working for the syndicate. The total of 190 transactions involved the supply of 276 bags, with resulting revenue of $69,000.

33. On 14 May 2021 police conducting surveillance outside the Caringbah Hotel stopped one of the customers in possession of a small bag with 0.57 grams of cocaine delivered immediately before the customers was detained. On 17 May 2021 the same customer messaged the first central phone to advise that he had been arrested after being supplied with cocaine and that his phone had been seized. After that the first central phone number was no longer used. The number stopped responding to customers.

34. There was a second central phone operated from 18 May 2021. This was the second central phone used by the syndicate. The second phone contacted this offender, Meredith, on the encrypted application “Signal” and said, “Hey bro, it’s us. New number,” and asked about his availability to work as a driver for the syndicate.

35. On 18 May 2021 and in the months that followed Meredith commenced working as a driver for the syndicate. He used “Signal” to contact the second central phone number when he was working. During the resolution phase of the operation, on 16 July 2021, he was arrested and his mobile phone seized. Police could access his “Signal” application which revealed the extent of his courier activities.

36. On Tuesday, 18 May 2021, between 5pm and 9pm, he supplied 11 bags of cocaine for the syndicate at different locations in the Sutherland Shire across seven transactions. He was paid $300 for the day.

37. On 19 May 2021 he contacted the second phone on “Signal”. The offender said, “I heard that some young bloke got done out of the Northies and heard Task Force Northrop is pumping around here.” The second central phone replied, “Yeah bro, it is at the moment. Cronulla is the worst and Caringbah.”

38. On Friday, 21 May 2021, between 4.30pm and 10.30pm, Meredith supplied 13 bags of cocaine for the syndicate through the Sutherland Shire. There were nine transactions and he was paid $500.

39. On 23 May 2021, between 2.30pm and 9.30pm, he supplied 19 bags of cocaine on behalf of the syndicate to 15 customers and was paid $500 for the day.

40. On Tuesday, 25 May 2021, between 5pm and 8.30pm, he supplied 15 bags of cocaine for the syndicate throughout the Sutherland Shire in exchange for $300 in pay, a total of six transactions.

41. On Wednesday, 26 May 2021, between 4.30pm and 10.30pm, he supplied ten bags of cocaine for the syndicate across eight transactions. He was paid $300.

42. Over the period 18 May to 26 May 2021, nine days, the second central phone received 45 orders for cocaine. He was the driver who supplied those orders to the customers. In total there were 45 transactions involving the supply of 68 bags of cocaine.

43. The second central phone was intercepted between 28 May 2021 and 16 July 2021. By this time the syndicate was accepting orders for cocaine on the second central phone by a normal non-encrypted text message system, which was intercepted by the police and by the encrypted signal application. Over the 50 days within this period the second central phone received 617 orders for cocaine. These were completed by different runners working for the syndicate, including the offender. In total the 617 transactions involved the supply of 1,064 bags of cocaine. From 28 May 2021 to 16 July 2021 Meredith was responsible for the supply of 426 of those bags of cocaine.

44. From 28 May 2021 the police also commenced intercepting the mobile telephone belonging to Sweeney. On that day Meredith worked for the syndicate while driving a white Nissan utility. He delivered 16 bags of cocaine to 12 different customers. He delivered cocaine between 4.30pm and 11pm and was paid $500.

45. On 29 May 2021 he delivered cocaine in the white utility for the syndicate from 4.15pm to about 10.10pm. He delivered 34 bags of cocaine and was paid $500. On 31 May 2021 at 4.15pm he supplied one bag of cocaine and was paid $100. On 1 June 2021 he supplied eight bags of cocaine and was paid $300. On 2 June 2021 he supplied 11 bags of cocaine and was paid $300.

46. At 8.30am on 5 June 2021 he contacted a friend named Matthew Wall. Sweeney asked whether Wall “Could do the phone for me while I’m playing soccer until I get back at 5.” Sweeney checked whether Wall would be back by 2.30 at least. Wall agreed to cover the phone for $350. Sweeney said he would leave the phone at home for him. At 1.52pm that day Meredith contacted the second central phone to confirm that they “Definitely didn’t need anyone today”.

47. At 2.10pm Wall called Sweeney to say that “Old mate, new driver”, referring to Meredith, “wants to know if you need anyone tonight.” Sweeney said, “Nah, tell him I don’t need him tonight, but I need him tomorrow.” Wall asked about the car that the trio was in and Sweeney referred to the silver X‑Trail and spoke of not knowing what other vehicle was going to be used apart from having heard that it was a Kia or a silver ute. At 2.12pm Wall messaged Meredith using the second central phone to confirm his services were not required.

48. On 6 June 2021 Meredith supplied 16 bags of cocaine and was paid $500. On 7 June 2021, eight bags of cocaine and was paid $300. On 8 June 2021, seven bags of cocaine and was paid $300. On 9 June 2021, 30 bags of cocaine and was paid $300. I will note that the facts refer to 30 bags of cocaine, I am not quite sure whether that is accurate.

49. On 10 June at 1.51pm the second central phone sent a bulk message to customers advising, “On tonight and all weekend, we deliver to you.”

50. On 11 June 2021 the syndicate commenced using a new safe house to store cocaine and money. This was a white Holden ute with Victorian registration belonging to “Saucer”. On 11 June 2021 the offender supplied 25 bags of cocaine and was paid $500.

19. I will just pause here to note that the facts would appear to be correct that at para [41] it was in fact 30 bags of cocaine.

20. On 15 June 2021 he supplied ten bags of cocaine and was paid $300. At 3.32pm on 18 June 2021 the second central phone sent a message to 821 individuals advising, “On tonight and all weekend, we will deliver to you.” On 18 June 2021 Meredith supplied 22 bags for $500, 19 June 2021 28 bags for $500, 21 June 2021 four bags for $300, on 22 June 2021 14 bags for $300, and 23 June 2021 ten bags for $300.

21. On 24 June 2021 the syndicate began using another safe house, namely the red Nissan Pulsar rented from a business at Taren Point. The circumstances of that arrangement are described.

22. There was surveillance on 25 June 2021 at 8.16am where Sweeney was seen accessing a white utility used as a safe house. He moved that vehicle and then alighted holding a protein tub container, which he carried to the red Nissan Pulsar with the Victorian registration parked across the road. He then moved the red vehicle to the spot previously occupied by the white utility. He confirmed with Moussa that the red car was now in position and ready to be accessed.

23. On 25 June 2021 Meredith supplied 26 bags for $500, 28 June 2021 eight bags for $300, 29 June 2021 ten bags for $300, 30 June 2021 five bags for $300, 2 July 2021 15 bags for $500, 3 July 2021 13 bags for $500, 5 July 2021 seven bags for $300, 6 July 2021 11 bags for $300, 7 July 2021 $300 for the delivery of ten bags.

24. On 8 July 2021 at 5.25pm a second central phone delivered a bulk message advising customers that the service was available. On 8 July 2021 Meredith supplied 12 bags of cocaine for $300, 9 July 2021 24 bags for $500. On 10 July 2021 Sweeney was again the subject of surveillance. He was seen to access the red vehicle with the Victorian registration. This was moved and then the next vehicle, a black Hyundai i30 was put in its place as the new safe house.

25. On 10 July 2021 at 2.03pm the offender was the subject of surveillance and he accessed the new safe house, the black Hyundai i30. On 11 July 2021 he was paid $500 to deliver cocaine for the syndicate. He supplied 23 bags. On 12 July 2021 two bags for $300, 13 July 2021 four bags for $300.

26. On 15 July 2021 at 2.56pm he was under surveillance and was seen to access the next safe house, the Nissan X-Trail, colour silver. On 15 July 2021 he was paid $300 for supplying 12 bags.

27. The operation was resolved on 16 July 2021 at 10.57am that day. The offender was the subject of surveillance when he accessed the safe house, the silver Nissan X-Trail vehicle. At 11.40am Sweeney was also the subject of surveillance when he accessed that vehicle. At 2.19pm Moussa was observed to be doing the same.

28. At 2.53pm on 16 July 2021 a search warrant was executed at Sweeney’s home. Sweeney and Moussa were present. Police seized 64.2 grams of a compressed white substance powder, $11,545 in cash, four Apple iPhones and one Oppo mobile phone, electronic scales with white residue and rubber bands. One of the Apple iPhones seized contained the SIM card from the second central phone which had been used as earlier described. Moussa was seen to drop this phone into a dog bed in the lounge room after police forced their entry. They were arrested and taken to Sutherland Police Station. Each declined to comment about the allegations.

29. At about 3pm on 16 July 2021 the police executed a search warrant at Moussa’s home. They recovered $475 in cash, an Apple iPhone and $32,000 in cash, an Australian passport, a club membership card, and rubber bands. Those last four items were inside an electronic safe in the main bedroom.

30. The Nissan X-Trial was searched and police located 118 small resealable plastic bags containing 76.04 grams of cocaine. The cocaine was found to contain traces of benzocaine, caffeine, and lidocaine.

31. At about 2.50pm on 16 July 2021 the offender was stopped by police in Cronulla while conducting a delivery for the syndicate. He was driving a white utility. He was arrested and cautioned. He acknowledged that he had ten or 15 bags in the rear of the vehicle. The police seized from his vehicle $1,525 in cash founding the Form 1 offence of knowingly deal with the proceeds of crime, a digital scale, 14 small resealable bags of cocaine weighing 7.82 grams, the subject of the supply prohibited drug charge on the Form 1. He declined to participate in an interview.

32. The facts then provide some total figures.

33. From 7 May 2021 to 16 July 2021 the syndicate received and completed a total of 852 orders for cocaine. These involved the supply of 1,408 bags of cocaine at $250 per bag, representing a total revenue of $350,000.

34. From 18 May 2021 to 16 July 2021 Meredith supplied 494 bags of cocaine, the principal offence with which he is charged. He worked as a driver for the syndicate on 36 days and was paid approximately $13,300 for his services. The total amount of the cocaine supplied by the offender was at the top end of the indictable range.

35. In the period between 18 May 2021 and 16 July 2021 he participated in the criminal group in the enterprise in which they were all engaged. That is the other Form 1 offence to be brought to account.

36. There is reference then to the failure to comply with a direction which is before the Court pursuant to s 166 Criminal Procedure Act 1986. This is where he was in breach of the order when delivering cocaine for the syndicate. He was prohibited from leaving home without a reasonable excuse in accordance with a ministerial order under s 7 Public Health Act 2010.

CO-OFFENDERS

69. I have the papers for Dylan John O’Neill which has enabled me to appreciate the significance of his activities to be compared with those of this offender. He had one Form 1 offence to be brought into account, namely participating in a criminal group. He faced a charge of supplying 67.2 grams of cocaine, participating in the criminal group, failing to comply with the Public Health Act and supplying 16.79 grams of cocaine. The participation in a criminal group, sequence 2, was included on the Form 1. He committed his offence while he was subject to appeal bail for an intensive corrections order that was imposed originally on 4 May 2021. He unsuccessfully appealed that on 14 December 2021.

70. The facts that were before O’Brien DCJ define O’Neill’s role. There are comparisons to be made, but there are also contrasts as have been identified on behalf of the offender before me, including his successful participation in the program to which I referred. His record includes an offence of recklessly cause grievous bodily harm.

THE OFFENDER

71. When the matter first came before me the application originally made was to grant bail and to adjourn the matter pursuant to s 11 Crimes (Sentencing Procedure) Act 1999 to allow the offender to take the opportunity to exploit the rehabilitation available through the program which he was ultimately allowed to enter.

72. Having reviewed the material I took the view that it would have been a more efficient process to get the sentencing proceedings underway and then to allow the matter to be adjourned to permit the offender to exploit the opportunity for rehabilitation and then to return to the Court for final resolution, as has evolved. As I said, he has successfully completed the program.

73. I have further material tendered today marked as exhibit 2, to which I shall now refer, noting first that he was born in 1994 and will reach 28 years of age this year.

74. The first document tendered to me is a report from Connect Global, 15 July 2022, which provides me with the program details in which the offender has participated, the program overview, his progress, which is in terms that he was seen to be “Respectful, adaptable and flexible, with a deep desire to change his life, putting his words into action.” He expressed his remorse for having made the decision to embark upon this misconduct. He understands accountability and the consequences of his actions and is willing to adjust to continue his life in a new direction. He participated with a positive attitude, learning of substance abuse and how to move on without it. He was witnessed to be disciplined and consistent in his daily routine. He mentored his peers, in addition to other tasks that were asked of him.

75. The document includes the following:

“I strongly believe that a return to custody may undo all the positive work that Samuel as accomplished during his time here at Connect Global. During the program Mr Meredith’s progress has been significant and I confidently say that within our care he has been in a positive and a safe environment to continue to grow and reconnect his life to healthy habits and purpose”.

76. The report confirms the program would be completed on 29 July 2022 and that has proved to be the case.

77. I have an affidavit affirmed by the offender on 26 July 2022. He has not been required for cross‑examination in respect of the representations he made in here. He speaks of the loss of his father when he was young, his involvement of his mother in his life, working hard to give the best life that she could. He lost his way in his 20s, experimenting with drugs and ultimately embarking upon daily use. His relationship with his mother suffered. He treated her badly, showed her no respect and took her for granted. Notwithstanding his attitude to her, she demonstrated for him unconditional love which he now appreciates.

78. He wants to be a better person, a good role model. He wants to have his own family. He wants to face the things of which he is not proud and upon which he had engaged, but he will learn from his past and become a better person. He speaks of what it was like in custody and how it has improved since his release, reconnecting with his childhood friends, particularly those who have led clean and productive lives.

79. He will seek further treatment after his discharge from the program and will be guided by his GP. He has consulted a psychiatrist, who diagnosed him with ADHD and prescribed medications. He will comply with whatever recommendations are made by his GP, his psychiatrist, or any other health professional that he consults.

80. I accept the representations as firm evidence of contrition and remorse and prospects for rehabilitation.

81. There is an affidavit from his mother, affirmed on 25 July 2022, speaking of his progress, the love that she obviously has for her son, and the observations she has made along the journey that her son has been required to take to reach his present point. She provided the support for him with the application for bail.

82. This material, I should add, as noted previously, is material that was in support of the application for his release to bail when the matter first came before me.

83. There is an affidavit by Mark Feeney, affirmed on 25 July 2022. He also referred to his former affidavit. This deals with the prospect of a variation of bail conditions and that he will do all that he can to assist the offender in complying with any bail conditions that are imposed, and to provide whatever assistance might be sought for his ongoing rehabilitation.

84. There is a document provided by the family medical practice of Dr Nahla Kamel written to the Waratah Private Hospital that resulted in an assessment upon which a report was provided by Dr Yu‑Tang Shen, consultant psychiatrist and psychotherapist. This provides the information that he worked with a plumber but was interrupted by his incarceration upon his arrest for this offending. He has not seen a psychologist in the past and he has not seen a psychiatrist before. He was in rehab for cocaine use and for the charges. He has a “pretty good mood”. He has been exercising and sleeping poorly with initial insomnia due to a racing mind. His appetite remains the same. His anxiety is manageable at the present time.

85. There were concerns that he had ADHD. He had symptoms of inattention and several symptoms of hyperactivity and impulsivity since childhood which impaired his education and social skills. He was previously diagnosed with anxiety over the past six or seven years, but unsure about what brought it on.

86. His history is discussed in some little detail, together with what was found upon mental state examination, leaving the impression that he has ADHD, combined subtype generalised anxiety disorder, panic attacks, social anxiety disorder, binge eating disorder, gambling disorder, cocaine use disorder in remission.

87. Recommendations are made in terms of a regular routine, regular exercise, healthy diet, sleep hygiene and mindfulness. He would benefit from psychological intervention to manage his anxiety and the options that are discussed with him there are listed.

88. There is a reference from Joshua Carter, written on 25 July 2022, knowing of the offences with which he is charged and for which he has been in gaol and for which he has sought rehabilitation. He advises that if the offender needs employment on release he is prepared to offer that on a casual basis. He works as a qualified remedial massage therapist in a business enterprise and is also the owner of a building company.

89. We have a reference from Adam Evans, a 28-year-old home owner, who has known the offender as his best friend for over ten years. He speaks well of the offender. He was surprised and troubled by the lack of judgement demonstrated in the decision that the offender made to engage upon this misconduct, and attributes him with remorse for the behaviour upon which he engaged.

CONSIDERATION

90. The Crown in written submissions has helpfully provided me with the authorities dealing with punishment for drug supply. The Crown provided the circumstances, pointing to the assessment of objective seriousness of the misconduct with which the offender is charged. The offender’s role was at the bottom of the syndicate’s hierarchy the Crown notes, but nevertheless he was responsible and obviously trusted for a significant number of transactions over a prolonged period. The offences are said in the circumstances to be broadly within the middle range of objective seriousness.

91. Upon my assessment of the circumstances and the role the offender played in this enterprise and the offence upon which the sentence is to be imposed, I would have put the objective seriousness a little below middle range. It does not follow, of course, that he would suffer a sentence that falls somewhere along the halfway line between zero and 15 years. One needs to synthesise all the relevant factors to determine what is the appropriate sentence to meet the unique circumstances of the offender and to satisfy the requirement that the justice be individualised.

92. The Crown concedes that although the line in s 5 Crimes (Sentencing Procedure) Act 1999 has been crossed, and a term of imprisonment is required in the circumstances of his role identified in the terms I have discussed, he has satisfactorily completed the program and moreover has already spent a not insignificant period of time in custody and subject to constrained liberty, such that it is within the range of options to impose an intensive corrections order.

93. Ms Cook, on behalf of the offender, has provided her written submissions. Largely, I might say, both advocates are of one mind in the way that this matter should be resolved. I agree with the submission that this offending falls somewhere marginally below mid-range for the reasons that have been identified by Ms Cook.

94. I accept that there is remorse. I accept that his prospects of rehabilitation are good. I accept that there are no aggravating factors and I accept the mitigating factors that have been identified by Ms Cook in her submissions. Apart from this misconduct he is a person without a significant record of past offending. He is to be assessed as a person otherwise of good character and there is the identification of issues by Dr Shen which must also be brought to account.

95. I agree that he is someone who should be assessed considering the ADHD and his general anxiety disorder, social anxiety disorder and gambling disorder.

96. I do not take the view that he is not an ideal vehicle for general deterrence. General deterrence has a role to play in this case, as does specific deterrence and the conduct needs to be denounced. Indeed all the purposes of sentencing articulated in s 3A Crimes (Sentencing Procedure) Act 1999 are engaged. There must be appropriate punishment and the offender must be made accountable to realise the significance of what he has done. I have brought into account COVID restrictions impacting upon inmates in gaol, which is now well known.

97. The differences between this offender and the others involved are identified and I accept those, a difference in criminal antecedents, the difference in conditional liberty, the difference in the completion of residential rehabilitation which is the significant factor in this case, and the prospects of rehabilitation.

98. It is for those reasons, considering the additional offences on the Form 1, I have decided to specify a term of imprisonment of two years for this offence. I will certify the Form 1 to confirm that I have taken the additional offences into account.

THE SENTENCE

99. The offender is convicted of the charge of supply prohibited drug. The offender is sentenced to a term of imprisonment of 2 years. The sentence is to be served by way of an intensive corrections order in the community. I am satisfied that I have sufficient material before me to conclude that is the appropriate course. I have had regard to s 66 Crimes (Sentencing Procedure) Act 1999, noting that community safety is the paramount consideration. I am satisfied that the order to serve the sentence by way of an intensive corrections order is more likely to address his risk of re-offending; I brought into account the purposes of sentencing in s 3A of the Act.

100. The sentence will commence today. The standard conditions must apply. These are that he must not commit any offences and he must submit to supervision by a Community Corrections officer.

101. I am required to impose an additional condition, drawing upon s 73A of the Act, to facilitate the ongoing rehabilitation, and in the light of the content of the report from Dr Shen I propose that as a condition of this order he maintains contact with his general practitioner and such psychologists or psychiatrists as the practitioner might specify for his continued rehabilitation and management of the conditions identified by the psychiatrist in the report tendered to me, and to participate in whatever treatment, course or program is recommended to him to facilitate that process.

102. The compliance with that condition, which I impose in accordance with s 73A(2)(e) of the Act will be a matter for supervision by Community Corrections.

103. There are short minutes of consent order before me pursuant to the Confiscation of Proceeds of Crime Act 1989, specifically s 18(1). Cash in the total sum of $1,525 seized from the offender on 16 July 2021 is forfeited to the State. Pursuant to s 29(1) of the Act the offender is to pay to the State a pecuniary penalty order, also known as a drug proceeds order, in the amount of $11,775, and leave is given pursuant to s 19(3)(a) that the property forfeited by the order made pursuant to s 18(1) may be disposed of forthwith.

104. The orders were explained to the offender.

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Decision last updated: 25 October 2022