R v Michael Corbett

[2016] NSWDC 61

District Court

New South Wales

Medium Neutral Citation:	R v Michael Corbett [2016] NSWDC 61
Hearing dates:	27 April 2016
Decision date:	29 April 2016
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full time custodial sentence imposed. For Orders see [56]
Catchwords:	Sentencing – ongoing supply prohibited drugs
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Drugs (Misuse and Trafficking) Act 1985
Cases Cited:	EF v R [2015] NSWCCA 36 Jadron v R [2015] NSWCCA 217 Knight v R [2015] NSWCCA 222 Lam v R [2014] NSWCCA 50 Pearce v R (1998) 194 CLR 610 R v Cahyadi (2007) 168 A Crim R 41 R v Caldwell [2016] NSWCCA 55 R v Elfar [2003] NSWCA 358 R v Hide [2003] NSWCCA 371 R v Wong [1999] NSWCCA 420
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Michael Corbett (Offender)
Representation:	Counsel: A Meredith (Crown) M King (Offender)
File Number(s):	15/179096
Publication restriction:	Nil

REMARKS ON SENTENCE

1. The offender was committed for sentence on 3 February 2016 from Wagga Wagga Local Court on one charge of ongoing supply, pursuant to s 25A of the Drugs (Misuse and Trafficking) Act 1985 (“DMTA”). The maximum penalty for this offence is 20 years imprisonment and/or 3,500 penalty units. There is no standard non-parole period.

2. In addition, the offender has asked that two matters be taken into account on a Form 1. They are as follows:

Sequence 1 – Supply 0.14 grams of methylamphetamine and;

Sequence 2 – Supply 0.11 grams of methylamphetamine.

The sentence hearing

3. At the sentence hearing on 27 April 2016, the Crown Bundle (Ex A) included an Agreed Statement of Facts. That Statement related to 11 occasions when the offender supplied methylamphetamine to undercover police between 23 April 2015 and 15 June 2015 in Wagga Wagga. The offender was arrested on 17 June 2015 and remained in custody from that date until 3 October 2015 (3 months and 17 days).

The circumstances of the offending

4. A police operation known as Strikeforce CALYX was established to investigate drug supply activities in Wagga Wagga in February 2015. As part of that operation, two female undercover police officers met with a female person on 23 April 2015, and she took them to premises in Wagga to meet the offender. The offender told them to return later in the day, as he was receiving a supply of ice that day. Later that day, the undercover officers gave the female person $200 and she then approached the offender and gave him $200. The offender left the location and returned approximately one hour later and supplied a substance which was found to be 0.14 grams of methylamphetamine. This was the conduct that comprised sequence 1 on the Form 1.

5. On Friday 24 April 2015, the two female undercover police officers again met with the third person, and all three attended the same premises in Wagga. The third person was supplied with $200 to purchase 2 points of methylamphetamine. She entered the premises and a short time later exited and spoke to the undercover officers. She stated that the offender told her that he already had enough customers and did not want to meet with the undercover officers, but was willing to deal to them through the third person. The officers then gave the third person $20 and asked her to give it to the offender as a thank you for assisting them. The third person then returned to the premises and returned with drugs later found to be 0.11 grams of methylamphetamine. The third person told the undercover officers that in future they could deal directly with the offender. This was the conduct that comprised the second offence on the Form 1.

6. The subject offence is that of ongoing supply between 18 May 2015 and 16 June 2015. It comprised 11 separate occasions which may be summarised as follows.

1. Buy 1 – supply 0.8 grams of methylamphetamine on 19 May 2015.

2. Buy 2 – supply 0.39 grams of methylamphetamine, with a purity of 79% on 20 May 2015.

3. Buy 3 – supply 0.15 grams of methylamphetamine on 21 May 2015.

4. Buy 4 – supply 0.05 grams of methylamphetamine on 22 May 2015.

5. Buy 5 – supply 0.38 grams of methylamphetamine on 3 June 2015.

6. Buy 6 – supply 0.88 grams of methylamphetamine on 4 June 2015.

7. Buy 7 – supply 0.40 grams of methylamphetamine on 10 June 2015.

8. Buy 8 – supply 0.22 grams of methylamphetamine on 10 June 2015.

9. Buy 9 – supply 0.75 grams of methylamphetamine, with 65% purity, on 12 June 2015.

10. Buy 10 – supply 0.81 grams of methylamphetamine on 14 June 2015.

11. Buy 11 – supply 3.13 grams of methylamphetamine, with 79% purity, on 15 June 2015.

7. On each occasion the same modus was used, namely, the offender supplied to undercover police officers. The total drug supplied was 7.24 grams of methylamphetamine, and the amount of money involved was $4,800.00.

8. Exhibit A contained the criminal antecedents of the offender. Leaving aside a matter in the Children’s Court, the only relevant prior offending was for an offence on 9 April 2001 of supply prohibited drug. On 5 April 2002, the court imposed a s 9 Bond to be of good behaviour for 12 months, in respect of that offence.

9. On 14 December 2011, the offender was convicted of one charge of possess prohibited drug, and one charge of possession of equipment for administering prohibited drugs. He was fined $660 on each charge.

10. Exhibit A contained a pre-sentence report under the hand of Mr Paul Bonnett dated 29 February 2016. That report set out the family and social circumstances of the offender. He was a single man, although he has a close relationship with his ex-partner of 18 years. They have an eight year old daughter who lives with the offender in Wagga Wagga. The offender has two adult sons, one of whom suffers from a serious mental illness and requires the offender’s support. The offender’s partner has three sons of her own, two of whom are adults, and the author noted that the offender has had a positive role in their life.

11. The report also notes that after leaving school in year 10, the offender has mostly been gainfully employed in manual labour and forklift driving roles, until 2004. Thereafter, he had been in receipt of a disability pension as a result of being diagnosed with insulin dependent diabetes.

12. The report also related that the offender admitted to ongoing cannabis use since he was 12 years of age. He also admitted to a methylamphetamine habit for approximately 20 years. Since his arrest in June 2015, he has remained illicit drug free and when granted bail, attended the Calvary Drug and Alcohol Rehabilitation Centre day program, and successfully completed the eight week program in late 2015. He commenced a further 12 week program in early 2016, but was subsequently discharged from the program for a serious rule infraction, which he disputed. He would like to attend full time residential rehabilitation to embed the lessons he has learnt to deal with his addictions, and may be considered for such a program in the future.

13. The offender denied to the author that his drug selling was for any financial benefit. He claimed that the funds given to him by the police were simply used to buy the drugs and the only benefit he received was “free drugs of his own”, meaning that he took part of the drugs purchased for his own use.

14. Under the heading “Attitude to Offending”, the offender stated that he did not view himself as a dealer. He thought the people he was selling to were “hanging” out and he was helping them with their symptoms. As he knew what it was like to withdraw from ice use, he was of the view that he was “helping some mates”.

15. The offender did express remorse from the point of view of the impact on his family as a result of being on remand and unavailable to his daughter. His eight year old daughter appears to be a prime motivating factor for him to maintain abstinence and live a life without illicit drug use. He was assessed as a medium risk of re-offending. In respect of his rehabilitation, the report noted that the period on remand in custody, and the time in rehabilitation, appears to have caused a sobering rethink of the offender’s life choices. He was assessed as suitable for a Community Service Order.

Evidence relied on by the offender

16. The offender tendered a report from the Calvary Riverina Drug and Alcohol Centre dated 4 December 2015 (Ex 1). That letter confirmed his attendance and successful completion of the drug program in December 2015. It stated:

“Michael has shown commitment and dedication to his recovery through putting the tools and strategies offered at the program into practice; utilising a range of techniques encompassing Mindfulness and Cognitive Behavioural Therapy. Michael continues to work hard on his recovery and is focussed on challenging past negative behaviours.”

There was no report from Calvary as to the unsuccessful participation in the 2016 program.

17. Exhibit 2 was a medical certificate certifying his diagnosis of insulin dependent type 2 diabetes mellitus.

18. The offender also relied on a bundle of testimonials (Ex 3). They speak of the offender being a hard-working, honest and reliable person, and for the current offending to be out of character for him. They also bespeak that the present charges have caused him a desire to turn his life around and to do his best to look after his family, and in particular, his daughter.

The Crown submissions

19. The Crown submitted that the offending was objectively serious. There were 11 transactions and a total quantity of 7.24 grams of methylamphetamine. A trafficable quantity was defined as 3 grams, and an indictable quantity as 5 grams.

20. As to the material relied on in the pre-sentence report, the Crown submitted that that material could not be used to minimise the objective seriousness of a crime pursuant to s 25A, relying on R v Elfar [2003] NSWCCA 358 at [24] to [25]. It was submitted that the assertions made by the accused in respect of the offending and recorded in the pre-sentence report, were not borne out by the evidence. In fact there were 11 occasions in 30 days and the Crown noted that in respect of sequence 2, the Agreed Facts recorded that he had told the third party that he already had enough customers, and did not want to meet with the undercover police officers, but was willing to deal with them through the third party.

21. The Crown submitted that purity of the drugs was also relevant, and in this case, they were towards the highest level of purity, namely, between 65 and 79%.

22. The Crown submitted that whilst the individual amounts were relatively small, the total amounts supplied was above indictable quantity, and therefore the small amounts supplied did not mitigate the seriousness of the offending, relying on Lam v R [2014] NSWCCA 50.

23. The Crown also relied on R v Hide [2003] NSWCCA 371 as authority for the proposition that undercover police involvement does not diminish the moral culpability of the offender in the offending. At the time of the supply, he had no knowledge that the drugs were not entering the community.

24. The Crown also referred to Jadron v R [2015] NSWCCA 217 in respect of the proposition that the offender was funding his own drug habit through the transactions. This meant that it was an economic incentive for those involved in drug trafficking further up the line. The Crown also referred to Knight v R [2015] NSWCCA 222 which involved distribution of drugs in a small rural community, where the court held that general deterrence was important.

The offender’s submissions

25. Learned counsel on behalf of the offender submitted that he had first consumed cannabis at age 12 years, and had been addicted to methamphetamines for a period of 20 years. Notwithstanding that, for a lengthy period of time, he had maintained active employment until he was diagnosed as an insulin dependent diabetic.

26. It was submitted that he fell within the category of user/dealer and that the supply was at street level. It was only in relation to “Buys” 1, 4 and 7, that he had drugs available for sale. In respect of each of those “Buys”, the quantity sold was 0.08 grams, 0.05 grams, and 0.40 grams respectively. On each and every other occasion he had to go and obtain the drug, which indicated the type of supplier he was.

27. It was submitted that of the total drugs supplied, namely, 7.24 grams, almost half of that comprised the last “Buy” of 3.13 grams. That was a supply to order, in which he acted as a conduit, and the motivation for his conduct was his addiction to the prohibited drug.

28. The offender had told the Probation and Parole officer that he gained nothing financially, but took a cut of the drug supply on each occasion. The offending should be regarded at the lower end of the range for such offences, and there were no statutory aggravating factors.

29. Counsel submitted that he was entitled to a 25% discount on sentence for his early plea of guilty, and that there was no planning on his part, but rather, the offending was brought on by the intervention of the undercover police officers. The offender had, however, demonstrated remorse and the references tendered on his behalf spoke highly of his character.

30. In respect of his antecedents, the 2002 conviction for supply related to cannabis and he was sentenced by way of a s 9 Bond for 12 months. It was submitted that that history did not of itself disentitle him to more leniency.

31. Learned counsel submitted that the court would take into account the following subjective matters. The offender had an early start in his consumption of illicit substances from age 12, which led to a lot of problems. He now has children and dependents who are supporting him. Also, he has good prospects of rehabilitation. Having had a 20 year addiction to methylamphetamine, he was in custody for three and a half months before granted bail to attend drug and alcohol rehabilitation. He had demonstrated a willingness to engage in the process, and there was a dispute as to why he was discharged from Calvary. The offender stated that he was drug free and wished to maintain a drug free state.

32. Counsel submitted that according to the pre-sentence report, he would still require ongoing rehabilitative support.

33. Counsel submitted that if the court were minded to impose a penalty of 2 years or less, then he was suitable for assessment for an Intensive Correction Order pursuant to s 7 of the Crimes (Sentencing Procedure) Act 1999 (“C(SPA”), relying on the principles in EF v R [2015] NSWCCA 36.

Submissions in reply

34. The Crown submitted that the purity of the drugs supplied were at the high end. The drugs supplied was methylamphetamine in crystalline form, which remains in that form. It was conceded that special circumstances could be made out pursuant to s 44 (2), as it was the offender’s first time in custody and there was a need established for rehabilitation.

Determination

35. 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.”

36. The ongoing supply here was 11 occasions within a period of less than a month. The quantity of the total drugs supplied here, 7.24 grams, is relevant, as is the amount of money, i.e. $4,800.00. I note that the trafficable quantity, as defined in the DMTA is 3 grams, and the indictable quantity is defined as 5 grams.

37. Whilst it is clear that the offender was a street level user/dealer, the evidence established that he was readily able to supply prohibited drugs on short notice, if he did not have them available for supply straight away. I find that the offending here is below the mid-range of objective seriousness for an offence pursuant to s 25A of the DMTA, but only just below it. It was clear that he was using the financial gains from the supply in each case to purchase drugs for his own use, however, I accept the Crown’s submission that that constituted an economic incentive for those involved in drug trafficking further up the line.

38. I have had regard to the maximum penalty of 20 years imprisonment, and/or 3,500 penalty units as a guidepost in the sentencing process. The offender is entitled to a utilitarian discount for his early plea of guilty and a maximum discount of 25% should apply.

39. General deterrence is an important matter to be taken into account in drug supply offences (see R v Wong [1999] NSWCCA 420).

40. The offender has also has also asked that two matters be taken into account on a Form 1, being sequences 1 and 2, for the supply of 0.14 grams, and 0.11 grams of methylamphetamine, respectively. I have certified on the Form 1 that I have taken those matters into account.

41. In relation to the offender’s 2002 conviction for supply related to cannabis, for which he was sentenced by way of a s 9 Bond to be of good behaviour for 12 months, I accept the submission made by his counsel that, given the length of time that has passed, that history does not of itself disentitle the offender to more leniency.

42. I have also had regard to the subjective matters set out in the evidence. The offender commenced consumption of illicit drugs at an early age, and had a 20 year addiction to methamphetamines. Since he was arrested he has demonstrated a willingness to engage in rehabilitation.

43. I have also had regard to the principles of proportionality and totality referred to in Pearce v R (1998) 194 CLR 610 at [45] – see also R v Cahyadi (2007) 168 A Crim R 41, and R v Caldwell [2016] NSWCCA 55.

44. In all of the circumstances here, having considered all possible alternatives, I am satisfied that no penalty other than imprisonment is appropriate. Given the number of occasions of supply, the amount of drugs supplied, I am not persuaded that a sentence of less than 2 years full time custody is warranted in this case.

45. I do, however, find special circumstances pursuant to s 44(2) of the C(SP)A, that the offender will require ongoing rehabilitation and supervision in respect of his drug addiction, to ensure that he remains drug free.

46. I intend to sentence you to a non-parole period of 1 year and 3 months, with a further term of 1 year and 3 months. Having regard to the period of time you have spent in custody, namely, 3 months and 17 days, that sentence will be backdated to commence on 10 January 2016.

Orders

47. The orders I make are as follows:

1. You are convicted of the offence pursuant to s 25A of the Drugs (Misuse and Trafficking) Act 1985.

2. I sentence you to a non-parole period of 1 year and 3 months to commence on 10 January 2016 and expiring on 9 April 2017.

3. The balance of the term will be a period of imprisonment of 1 year and 3 months commencing on 10 April 2017 and expiring on 9 July 2018.

4. Your parole eligibility date will be 9 April 2017.

5. The total term of the sentence of imprisonment is 2 years and 6 months.

6. I order that all drugs seized be destroyed.

7. I note that I have certified the matters contained on the Form 1, which is contained in Ex A, to have been taken into account in sentencing.

8. On release to parole the offender is to be under the supervision of Community Corrections Wagga Wagga. To report within 7 days of release, and take all recommendations from that service to participate in drug rehabilitation.

9. Pursuant to s 29(1) of the Confiscation of Proceeds of Crime Act 1989 that the offender pay to the State of NSW a drug proceeds order in the sum of $5,100.00.

10. I order Corrective Services to allow the offender access to his Insulin medication as required.

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Decision last updated: 29 April 2016