R v MYERS

[2023] NSWDC 445

District Court

New South Wales

Medium Neutral Citation:

R v MYERS [2023] NSWDC 445

Hearing dates:

18 August 2023

Decision date:

23 October 2023

Jurisdiction:

Criminal

Before:

NOMAN SC DCJ

Decision:

Aggregate sentence imposed. Indicative sentences nominated (reduced by 25% to recognise the pleas): Seq 3: Supply commercial quantity of prohibited drug cocaine, taking into account the further 3 offences on the Form 1: 4 years and 6 months imprisonment with a non-parole period of 2 years and 8 months. Seq 10: Supply commercial quantity of prohibited drug cocaine, taking into account the further 2 offences on the Form 1: 4 years and 6 months imprisonment with a non-parole period of 2 years and 8 months. Seq 9: Supply commercial quantity of prohibited drug cocaine, taking into account the further offence on the Form 1: 6 years imprisonment with a non-parole period of 3 years and 6 months.

The sentence imposed is one of 7 years imprisonment with a non-parole period of 4 years and 2 months to date from 27 July 2021. Eligible to release to parole on 26 September 2025.

Catchwords:

SENTENCING - supplying a large commercial quantity of a prohibited drug - supplying a commercial quantity of a prohibited drug – objective seriousness – remorse – guilty plea – disadvantaged background – genetic vulnerability – drug user – general deterrence – personal deterrence – special circumstances.

Legislation Cited:

s.25(2) Drug Misuse and Trafficking Act 1985 (NSW);

s.3A Crimes (Sentencing Procedure) Act 1999 (NSW).

Category:

Sentence

Parties:

R;
Maxwell MYERS

Representation:

Counsel:
Defence: Mr S Buchen SC

Solicitors:
Crown: Mr A Charleston

File Number(s):

2021/213913

Publication restriction:

The full judgment was delivered in court and provided to both parties. Part of [24] was redacted from the published version at the request of the solicitor for the offender: s 8(1)(d) of the Court Suppression and Non-Publication Orders Act, 2010. Other than access to the parties, or another court, there is to be no publication of the portion redacted.

JUDGMENT

1. The offender used the ANON application to conduct his drug supplies. As this was not anonymous, but a tool of investigators, his communications were intercepted. Police were able to monitor his communications wherein he arranged to supply and on occasion supplied large quantities of cocaine. His phone was monitored for just over 5 months. The initial monitoring evidences a pre-existing involvement in supplying drugs. This informs the context of the offences for sentence.

2. By his acceptance of his involvement as disclosed in the negotiated facts, the offender abandoned a possible challenge to the legality of the ANON application. This is relevant to his acceptance of responsibility and remorse.

3. That involvement causes him to appear for sentence after entering pleas in the Local Court to three separate offences contrary to s.25(2) Drug Misuse and Trafficking Act 1985 (NSW); one of supplying a large commercial quantity of a prohibited drug [sequence 9] and two of supplying a commercial quantity of a prohibited drug [sequences 3 and 10]. This conduct exposes him respectively to a maximum penalty of life imprisonment with a standard non-parole period of 15 years and 20 years imprisonment with a standard non-parole period of 10 years.

4. He is entitled to a reduction to each sentence of 25% to reflect the timing of the pleas.

5. In addition to the offences for sentence, other involvement in drug supply is contained on three separate forms 1. As with the offences for sentence, the drug on all occasions was cocaine. Each offence for sentence has a form 1 attached. The offender asks that I take into account these matters on the forms 1 when I sentence on the supply offence to which it attaches. The form attached to sequence 9 contains a commercial quantity of a drug. The form attached to sequence 10 contains other offences of the same or almost the same seriousness as the principal offence. The form attached to sequence 3 has indictable supplies. I consider it appropriate that I take these further matters into account and I do so in accordance with the principles set out in the guideline judgment. There is serious additional criminality reflected on each form 1 reflecting further occasions of actual or offered supply albeit all conduct was within a 5 month period. I acknowledge the submissions on behalf of the offender that the offences for sentence and on the forms formed part of a course of conduct and that application of totality warranted limiting any increase. I consider that the conduct warrants appropriate increases. There will be a different adjustment to each sentence reflecting the varying seriousness of the additional offending.

6. The offender is to be sentenced for:

1. Sequence 9 – Supply Large Commercial Quantity Prohibited Drug (1kg).

Attached to this offence is a form 1. The offender asks that I take into account the further offending listed of:

• Sequence 8 – Supply Commercial Quantity Prohibited Drug
  (666g)

2. Sequence 3 – Supply Commercial Quantity Prohibited Drug (666g).

Attached to this offence is a form 1. The offender asks that I take into account the further offending listed of:

• Sequence 1 – Offer to Supply Indictable Quantity Prohibited Drug
  (140g);

• Sequence 2 – Supply Indictable Quantity Prohibited Drug
  (140g);

• Sequence   4 – Supply Indictable Quantity Prohibited Drug
  (28g).

3. Sequence 10 – Supply Commercial Quantity Prohibited Drug (280g).

Attached to this offence is a form 1. The offender asks that I take into account the further offending listed of:

• Sequence 6 – Supply Commercial Quantity Prohibited Drug
  (280g);

• Sequence 7 – Offer to Supply Commercial Quantity Prohibited Drug (250g).

7. Both the maximum penalty and the standard non-parole period operate as legislative guideposts, and each represents the Legislature’s assessment of the seriousness of the offence.

8. The facts are detailed in Exhibit A. I have read and considered the full facts and refer to them in summary. The facts disclose the offender was involved with a number of other persons. He was involved in using the ANON messaging service between 31 December 2020 and 2 June 2021. He used the platform to engage in drug supplies. As the ANON platform was encrypted and believed to be secure there was no need for any code or circumspection. He sourced the cocaine from at least three suppliers. He was involved in supplies to IT [who I have anonymised as he has not accepted guilt] and “Hannibal”. The identity of only IT is disclosed. All supplies were in significant quantities with the smallest being an ounce. He negotiated and arranged his own supplies or was involved with supplies organised by IT.

9. During the proceedings there were submissions on the findings to be made as to the role performed by the offender and his position in the hierarchy where others were involved.

10. The facts detail the following supplies:

Sequence 1:   4 January 2021, form 1 offence of offer to supply. The offender exchanged messages with Hannibal, about supplying 140g. He asked if Hannibal wanted 5 ounces for $40,500. The offender organised where the supply would occur. This is a typical offer to supply of a sufficient quantity to suggest the amount was to be on-supplied. The offender organised the supply.

Sequence 2:   8-11 January 2021, form 1 offence of supply. The offender exchanged messages with IT over 3 days about supplying 140g. The terms of the contact disclose prior drug related contact. IT asked if they could share 1kg which was declined by the offender. He offered to supply 140g for $40,500. The offender asked to meet IT to deliver the drugs. After this occurred the offender returned the money to a location provided by “Killaburger”, who appears to be the person from whom the drugs were sourced. This supply reflects a typical supply made to the purchaser, albeit there was additional conversation of jointly making a larger purchase. The quantity is of a reasonable weight within the offence category. The money from the sale was returned in full to the upline supplier.

Sequence 3:   27-29 January 2021, offence for sentence of supplying a commercial quantity. The offender, IT and Hannibal liaised together to share the purchase of 1kg from a supplier for $275,000. IT negotiated the price, and it was agreed that the offender would collect the drugs. The offender took the drugs home and sent photographs to both IT and Hannibal. He messaged IT that the drugs were ready to be collected. IT responded he thought the offender would deliver it and asked for it to be delivered. Although the supplier is not named in the initial part of the facts, the facts indicate “Dontstop”, one of the offender’s suppliers [or for whom the offender conducted supplies], messaged that the money, contained in three separate envelopes, was $550 short. The offender indicated the amounts contained in each of the three bags. The offender then delivered both Hannibal’s and IT’s drugs, about 666g, to IT. The facts do not disclose what the offender intended to do with his third share, or about 333g. The facts disclose he used some. The offender was involved in a joint purchase on his own behalf. The amount is such as to indicate his share was not all for personal use. However, the count is limited to his on-supply of part of the amount, to IT and Hannibal, being 666g. This amount falls in the middle of the weight range for the offence provision. It was submitted on his behalf that he performed a lower role given IT negotiated the price and the offender was exposed to risk by collecting the drugs, keeping it in his home and then delivering it. I do not interpret the offender to be subservient. He was entrusted to take everyone’s share of the money and purchase the joint amount. Both Hannibal and IT had been customers in earlier supplies. He delivered the drugs as he had previously done or offered to do. They present as equally culpable in obtaining their equal shares.

Sequence 4:   9 February 2021, form 1, offence of supply. The offender offered a sample to IT of drugs he tried. IT agreed to receive the sample. The offender offered to deliver an ounce and IT indicated he didn’t require that much. The offender indicated it was already packaged and any surplus could be returned. They agreed to meet near IT’s home. The offender initiated the supply and made the arrangements including the quantity. It is a lower-level supply at 28g.

Sequence 10: 11-17 February 2021, offence for sentence of supplying a commercial quantity. The offender contacted IT and offered to put 10 ounces [280g] aside for $70,000. The offender agreed to deliver the drugs. He then contacted “Dontstop” to source the drugs. He collected the drugs from him and delivered them to IT. IT then contacted the offender to give him the payment and he brought it to near the offender’s home. Later IT communicated dissatisfaction with the quality of the drugs based on reports from others. The offender instigated the offence and was able to supply without delay. The amount is not much above the lower limit.

Sequence 6:   11-15 February 2021, form 1, offence of supply commercial quantity. The offender and Hannibal communicated about supplying 280g. The offender asked when it was required. Some days later a location was discussed. They met and the supply occurred in exchange for $70,000. The offender sourced the drugs from “El-Gambler” and provided the money obtained from Hannibal to him.

Sequence 7:   2 March 2021, form 1, offence of offer to supply commercial quantity. IT contacted the offender asking for drugs. The offender gave prices for 5 ounces and 10 ounces. IT said 10. The price was $70,000. The offender said he would deliver 9 ounces [250g] and he had already provided an ounce to IT. They discussed where to meet. There is no evidence the supply occurred. This is a typical supply, although one that did not occur, with IT wanting drugs and the offender suggesting two different quantities.

Sequence 8:   12-14 April 2021, form 1, offence of supply. IT contacted the offender about sourcing drugs from “Dontstop”. The offender queried price and was told about $270,000. The offender commented on the price. The offender agreed to join IT and another if a third purchaser was required. IT confirmed it could proceed with each paying $90,000. The offender said he would pay and collect the money for the other shares from IT and Hannibal. The offender obtained the drugs and photographed it in his home. The offender arranged to meet IT and they swapped the 666g in exchange for $180,000. The money was later delivered by the offender to “Dontstop”. Although IT made the initial proposal and quoted a price, all the conduct was undertaken by the offender. The offender is not charged with the 333g he obtained as his share. A submission was made on behalf of the offender that his role was limited. There is no suggestion he was other than equally complicit in a shared purchase where there was a three-way split. I note where the amount involved was within the commercial range.

Sequence 9:   9-12 May 2021, offence for sentence of supplying a large commercial quantity. IT contacted the offender to inquire if he was interested in buying more drugs. IT communicated with “Dontstop”. “Dontstop” contacted the offender to indicate 1.5kg was available and the offender agreed to take it. He then communicated with IT and Hannibal to say they could share a 1.5kg bag; stating it was up to IT and Hannibal. The offender delivered 1.5kg to IT and they divided it into three equal parts. The offender is not charged with the 500g he purchased. He is only liable for the 1kg he supplied to IT and Hannibal. Hannibal later sent a message about making payment and was advised by the offender it was $138,500 each and half was purchased on credit. Hannibal delivered his money to IT and then messaged the offender to thank him for the help. Although IT made contact, all three were involved in obtaining equal shares for equal cost. The amount supplied is the lowest to amount to a large commercial quantity. There is no upper limit for this offence.

11. To the extent the facts may not fully indicate the relationship between the offender and others on one occasion, the other interaction on other occasions assists. I have made comments specific to each supply. There was evidently an ongoing relationship between the offender, IT and Hannibal. I have considered the submissions, including those in MFI 2, specifically addressing the role for each offence. I do not consider the offender to be acting on behalf of others. He organised supplies by sourcing drugs and supplying or offering to supply. On occasion he did not initiate the involvement. However, he readily became involved and in circumstances where he was to benefit, either by obtaining a third share or making a sale. I appreciate the submissions made on behalf of the offender, directed at paragraphs [10], [34] and [41] of the agreed facts, that the supplies were not initiated by the offender. This may on occasion be of significance. For the reasons previously indicated, I do not consider the circumstances lessen his role. He was engaged in an ongoing relationship of supplying or participating in supplying with others, including IT and Hannibal. He supplied, or pooled resources to participate in a supply. They present as all equally complicit and that the offender did not commence a discussion is of less consequence in the overall circumstances.

12. I am required to assess the objective seriousness of each offence and ultimately the moral culpability.

13. Senior counsel for the offender and the advocate for the Crown made both written and oral submissions on the factors that informed this assessment. I addressed some of those factors in assessing particular offences.

14. In assessing the objective seriousness, I am informed by a determination on the role played, the participation of others and an assessment of a position in the hierarchy, the period of the involvement, that the drug was cocaine, the quantity of the drug, and whether they are actual supplies or offers to supply and whether drugs were disseminated into the community. None of the drugs were seized and therefore purity is unknown. There are anecdotal comments by users as to the quality of some drugs. As each supply was not a street deal and evidently reasonably large supplies for on-supply, the purity is of less significance. The lower minimum weight for a large commercial quantity of cocaine is 1kg and a commercial quantity is above 250g. Other than the offers to supply, drugs were supplied and disseminated to the community. No particular offence entailed any degree of sophistication or other than minimal planning to secure supply. No offence was a street deal of merely handing across drugs that were available in exchange for money. Some arrangements to meet, or to collect and meet, in exchange for money occurred. However, this was the level or interaction necessary to facilitate larger supplies, and he is the recipient of the supplies in which he played a role. I do accept the offender was exposed to risk in transporting drugs and money. He only dealt with a limited number of customers which entailed some security. This exposed him to more risk than the person from whom he sourced the drugs. However, he supplied to others who were then taking possession of the drugs, or in possession of money, because they in turn were to supply what was purchased.

15. Also, I consider what benefit was obtained and whether a person was involved to support their own drug habit and out of need or acting in part or purely out of greed. Counsel for the offender submitted it was of significance that the offender remitted the full amount from some supplies to his supplier. Reference was made to paragraphs [29], [40] and [45] of the agreed facts as supporting the offender to operate as a mere conduit. Little is disclosed in the facts about profit. There is mention of the offender providing the full amount from a supply to his supplier. The details of the benefit from the shared purchases is not explored. However, he was not involved for altruistic reasons. I accept there is no evidence of enrichment and that he was involved out of need. He advanced he was involved to obtain unlimited drugs for his own use. As he required money, he also evidently received some financial recompense. He told Mr Borenstein he received money. The offender was a drug user and involved for financial reasons including supporting his own use. This financial imperative is expected in commercial supply. The precise amount of the benefit is not known. He evidently received sufficient benefit, in cash and or drugs, for him to continue for over 5 months in significant illegality. There is no evidence his lifestyle reflected indicia of wealth. There is considerable evidence of the offender’s financial stress prior to becoming involved. COVID impacted his business and then his wife’s employment. They were expecting their first child. The facts reflect that the offender brought the drugs to his home that he shared with his wife on occasion. He stored the drugs whilst on-supply was pending. There is no evidence of any enhanced security or caution to avoid detection. There are some single supplies and some supplies delivered to one purchaser to be shared equally with another purchaser. The offender presents as conducting his own business.

16. Counsel for the offender submitted on the objective seriousness of each of the three offences for sentence. It was submitted that sequences 9 and 10 each fell in the low range of the different offence provisions and sequence 3 fell below the mid-range. On behalf of the Crown, it was submitted that sequence 9 fell at or below the mid-range and sequences 3 and 10 fell within the mid-range.

17. I am careful not to attribute too much significance to the weight although it is a factor relevant to where the weight falls within the offence provision. I have assessed the role of the offender as important in each offence. I have had particular regard to his conduct in the discrete offence, but do not overlook that each offence is part of ongoing interaction. His importance or role is not lessened by any actions or conduct of others who participated. I determine that each falls within a classification of below mid-range and certainly not in or towards the low range.

11. The offender is now aged 31. He has limited historical antecedents and I regard him as generally and more recently as a person of prior good character. The offender’s absence of significant antecedents operates to entitle him to leniency.

12. I have already referred to the offender adopting an approach of negotiating with the prosecution and determining to abandon argument on the illegality of the use of ANON by investigators. This speaks of insight and remorse. There is a considerable utilitarian benefit that flows from the pleas of guilty.

13. There is a further matter of note. The offender‘s home was searched. He was advised police proposed arresting him. The police liaised with his solicitor and delayed acting on the arrest until after the offender’s wife gave birth. He ultimately attended upon a police station by arrangement. This reflects there was no endeavour to flee despite being on notice he was to be arrested and would likely receive a not insubstantial gaol term. Nothing is known of whether he was in a position to illegally flee Australia. Although he had drug contacts that does not of necessity equate with contacts who could spirit him overseas. However, it is of some relevance that he did surrender, and this accords with his ultimate acceptance of responsibility. It all works to support his acceptance, insight, and his remorse. In addition to his conduct supporting this determination, the offender wrote to the court and his words accord with what may be divined from his conduct. The pleas of guilty, post arrest conduct, and the self-stated expressions of remorse support a finding of genuine remorse.

14. There is considerable material available to support the offender and his subjective case.

15. I am assisted by a Sentencing Assessment Report. The offender suggested he was involved to receive unlimited access to drugs, and he was inveigled by peers who offered him a pathway to fund his drug use. He said he had been under financial strain due to his business dealing and both his drug use and gambling. He is assessed in the medium risk of reoffending and various referrals are suggested as part of a proposed supervision plan.

16. The offender wrote directly to the Court wherein he expressed his shame and accepted responsibility for his offending. He explained aspects of his background and sought to explain his offending. The offender reported both his parents had been drug addicts. This indicates of itself an unfortunate childhood. However, even more tragically, as an 8-year-old he witnessed his father overdose and die. His mother continued with her drug usage and overdosed in 2022. His mother also made lifestyle choices that must have further adversely impacted his childhood. The offender indicated that despite this exposure, he left school at 16 and managed to obtain employment until he started his own successful pool business. He sustained a relationship with his current partner. They decided to have a child. In 2020 his partner lost her job due to COVID and was expecting their child in mid 2021. From other records I add their child was born on 16 June 2021. Against this financial imperative, the offender succumbed to stress and anxiety resulting in escalating drug usage and his involvement in the current offending. He advanced that he has been drug abstinent since entering custody. He has obtained employment whilst on remand.

17. Dr Furst, Forensic Psychiatrist, prepared a report dated 19 July 2023. He documented the offender advancing exposure to domestic violence perpetrated by his father upon his mother, his brother and himself necessitating the involvement of child protection services. The offender also claimed to Dr Furst that he was {                                                                 }. Not surprisingly, against this background, the offender used illicit drugs from his teens. The drug of choice changed over the years as did the degree of usage. He maintained employment despite the drug use. His business only declined during COVID and not due to drug use. The offender claimed to be using cocaine, Valium, Xanax and MDMA in 2020-2021, with the usage increased due to situational pressure. Dr Furst opined that the material was suggestive of ADHD although it was not previously diagnosed. He indicated the offender met the criteria for ADHD and also substance use disorder. Despite the period of over a year of abstinence he did not indicate the disorder was in remission.

18. Dr Furst indicated the offender’s background informed the impact from his elevated stress and anxiety; which led to increased drug usage and poor decision making. This disadvantaged background and genetic vulnerability is said to inform the subsequent drug use. He suggested the offender needed to address his addictive disorder, with specific programs of benefit noted, and that he had positive prospects of rehabilitation. He stated however that the offender’s vulnerability made it more difficult to sustain abstinence; although his success in business and relationships indicated a reasonable degree of resilience if provided sufficient support and guidance.

19. The offender relies upon the content of two reports of Sam Borenstein, Psychologist, authored in 2023. The offender mentioned in addition to other drugs described to Dr Furst that there was cannabis use and alcohol binges leading up to his offending and he also advanced a gambling problem. He claimed his offence involvement was informed by the stress of job insecurity and his pending parenthood enlivening childhood issues. The offender claimed he used any money he made to support his habit. Mr Borenstein suggests undertaking relapse prevention measures and addressing the ongoing trauma from his childhood experiences.

20. Both the offender’s brother and his partner provided affidavits supporting personal factors. His step-father and grandmother similarly support the historical narrative. All continue to offer tangible support for the offender in custody and to continue upon release. I note a particular personal aspect his grandmother attributes to his mother. This supports further significant abuse as a child that I choose not to include.

21. The other documents tendered on behalf of the offender support matters raised elsewhere and do not need further repetition.

22. I have had regard to the purposes of sentencing identified in s.3A Crimes (Sentencing Procedure) Act 1999 (NSW). One of the purposes for which a court may impose a sentence on an offender is to recognise the harm done to the victim of the crime and the community. Each of the offences harm the wider community. The presence of drugs in society causes considerable misery.

23. Although I accept the offender has substance abuse issues and meets the criteria for a diagnosis of ADHD, this does not render conditions in custody more onerous, reduce the importance of general deterrence or influence personal deterrence. His substance abuse issues, informed by his most difficult childhood, which likely triggered succumbing to stress and are also causally linked to his offending, serve to lessen his moral culpability to a not insignificant extent.

24. General deterrence and retribution are important considerations for these offences. They are not reduced by any background or mental health issue.

25. The offender has abstained from drugs in a controlled environment. Although he has previously lessened his use, he has not previously abstained for any period, let alone 2 years. He was a user of illicit substances as a coping mechanism since his teens. His prospects of continued drug abstinence upon release will be enhanced by commencing treatment to address historical trauma. The tendered evidence reflects that there will be, as there was previously, support in the community. These serve as protective factors. The prospects of rehabilitation and of not reoffending are promising. It follows personal deterrence has a more limited but continuing role to play.

26. Having considered all the possible alternatives, I am satisfied no penalty other than full-time imprisonment is appropriate.

27. I am required to consider totality. The offences for sentence occurred within a 4 month period- January, February and May 2021. Each was within the context of ongoing supply that occurred over 5 months. Although some aspects of the offending support concurrency some accumulation between each is required to reflect the serious and separate offending that occurred within this period.

28. The offender had limited access to programs initially on remand due to COVID restrictions. Generally, under COVID restrictions all aspects of gaol life were harsher and more restrictive. He documented 140 days in lock-in. For the same reason he was unable to have visits from his partner and child. Even with visits permitted, there is a strain on his family having to travel a distance.

29. I make a finding of special circumstances relying on the need for continued support upon release and the restrictive conditions in custody due to COVID. Rehabilitation has commenced, it will likely continue during sentence and will require a period of additional support upon release. This is his first custodial sentence.

30. I was provided with a number of sentencing decisions. None was said to be truly comparable. The facts and the substance of subjective cases are dissimilar. Nothing is gained by highlighting the points of difference and limited points of alignment. Whilst appreciating the limited utility, I have considered the pertinent features and outcomes.

31. The offender is convicted of all three offences.

32. The offender was on remand from 27 July 2021. Sentence will date from this date.

33. I propose to impose an aggregate sentence. I nominate the following indicative sentences, each of which is reduced by 25 % to recognise the pleas:

34. Sequence 3:    Supply commercial quantity of the prohibited drug cocaine, taking into account the further three offences on the form 1: 4 years and 6 months imprisonment with a non-parole period of 2 years and 8 months;

35. Sequence 10: Supply commercial quantity of the prohibited drug cocaine, taking into account the further two offences on the form 1: 4 years and 6 months imprisonment with a non-parole period of 2 years and 8 months;

36. Sequence 9:   Supply large commercial quantity of the prohibited drug cocaine, taking into account the further offence on the form 1: 6 years imprisonment with a non-parole period of 3 years and 6 months.

37. The sentence imposed is one of 7 years imprisonment with a non-parole period of 4 years and 2 months to date from 27 July 2021. The offender will be eligible for release to parole on 26 September 2025.

38. This is a variation to the statutory ratio to 59%. This gives effect to my finding of special circumstances.

**********

The full judgment was delivered in court and provided to both parties. Part of [24] was redacted from the published version at the request of the solicitor for the offender: s 8(1)(d) of the Court Suppression and Non-Publication Orders Act, 2010. Other than access to the parties, or another court, there is to be no publication of the portion redacted.

Decision last updated: 23 October 2023