R v Nathan McIlwraith

[2019] NSWDC 213

District Court

New South Wales

Medium Neutral Citation:	R v Nathan McIlwraith [2019] NSWDC 213
Hearing dates:	21-25 January 2019
Decision date:	30 May 2019
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence. For orders see [80]
Catchwords:	Deemed supply of prohibited drugs; two offences; being armed with intent to commit indictable offence
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985 Inclosed Lands Protection Act 1904
Cases Cited:	Berryman v R [2017] NSWCCA 297 Bugmy v R [2013] HCA 37 Jinnette v R [2012] NSWCCA 217 JM v R [2014] NSWCCA 297 R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 R v Van Ryn [2016] NSWCCA 1
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Nathan McIlwraith (Offender)
Representation:	Counsel: Ms D Hawkins   Solicitors: Ms K Zielinski
File Number(s):	17/277112
Publication restriction:	Nil

REMARKS ON SENTENCE

1. On 21 January 2019 the offender pleaded not guilty to two counts on an Indictment. They were:

1. On 12th day of September 2017, at Fairlight in the State of New South Wales, did supply a prohibited drug, namely, 23.40 grams of methylamphetamine.

2. On 12th day of September 2017, at Fairlight in the State of New South Wales, did supply a prohibited drug, namely, 69.48 grams of heroin.

2. Both counts were alleged breaches of s 25(1) of the Drug Misuse and Trafficking Act 1985 (“DMTA”).

3. On 21 January 2019, the offender entered a plea of guilty to the following charge brought on Indictment:

That he on 12th day of September 2017 at Fairlight in the State of New South Wales, did without lawful excuse have in his possession an implement capable of housebreaking, namely, a screwdriver, and that he was at Sydney on 20 November 2015, convicted of the indictable offence of being armed with an offensive weapon with intent to commit an indictable offence.

4. That offence was brought pursuant to s 115 of the Crimes Act 1900. It carries a maximum penalty of 10 years imprisonment and there is no Standard Non‑Parole Period proscribed.

5. The following matters are related offences that are subject to a Certificate pursuant to s 166 of the Criminal Procedure Act 1986:

Sequence 3 – Assault officer in execution of duty. The offence is pursuant to s 58 of the Crimes Act 1900 and the maximum penalty is 2 years imprisonment.

Sequence 8 – Enter inclosed lands. The offence is pursuant to s 4(1)(b) of the Inclosed Lands Protection Act 1904. The maximum penalty is 5 penalty units.

Sequence 9 – Enter inclosed lands.

Sequence 11 – Carry cutting weapon. This is an offence pursuant to s 547D of the Crimes Act 1900 and carries a maximum penalty of 6 months imprisonment.

A further offence, being Sequence 5, deal with the proceeds of crime ($3,625.00), an offence pursuant to s 193C(2) of the Crimes Act 1900 is to be withdrawn by the Crown at the conclusion of this sentence.

6. On 25 January 2019, the jury brought in verdicts of guilty on Counts 1 and 2 on the Indictment. The maximum penalty for each offence pursuant to s 25(1) of the DMTA is 15 years imprisonment and/or 2000 penalty units. There is no Standard Non-Parole Period proscribed.

7. The following findings of fact may be derived from the jury verdicts. At about 7am on Tuesday 12 September 2017, police were called to premises in Fairlight in respect to a complaint of owners of a property that there was a man on their balcony. Police arrived at the property and were directed to the back of the property. The offender identified himself by saying words to the effect of “Aww me ankle”, and the police observed him on the neighbouring property seated on a small set of stairs. Police officers jumped the fence and arrested the offender, who was wearing a black puffer jacket, black running shorts, compression tights, and a pair of runners.

8. A police search of the offender’s jacket revealed a piece of cigarette packet cardboard containing a crystalline substance, later revealed to be methylamphetamine, a mobile phone in a case which contained $3,625 in cash, a razor blade and another mobile phone.

9. Investigating police observed a bulge protruding from the offender’s groin area, and the search found hidden within his underwear, of which there were multiple layers, a plastic bag which contained a substance later analysed as 23.4 grams of methylamphetamine. That was the prohibited drug referred to in Count 1 on the Indictment.

10. A further search of the back of the accused’s clothing revealed a resealable plastic bag containing pellets, which were later analysed to constitute 69.48 grams of heroin. That was the prohibited drug the subject of Count 2 on the Indictment.

11. In respect of each count on the Indictment, the Crown case was that the accused was in possession of than greater than the proscribed trafficable quantity for each drug, which was 3 grams in respect of both methylamphetamine and heroin. It was the Crown case that as the offender possessed the prohibited drugs in quantities greater than the trafficable quantity, he possessed them for the purpose of supply.

12. During the search of the offender’s underpants, investigating police also located a 15 cm long bent screwdriver, which was the implement upon which an offence pursuant to s 115 of the Crimes Act was based. Also, during that search, the offender became aggressive and was thrashing about. He turned towards Sergeant Church and spat at him. The Sergeant ducked out of the way of the spittle. This was the basis of the offence in Sequence 3, assault officer in execution of his duty, pursuant to s 58 of the Crimes Act 1900.

13. At trial it was the offender’s case that he possessed the prohibited drugs, albeit in a smaller quantity than particularised, but greater than 3 grams of both methylamphetamine and heroin, for a purpose other than for supply, namely, his own personal use. By its verdict, the jury rejected that defence and his evidence in relation to it.

The sentence hearing

14. The sentence hearing took place on 8 March 2019. The Crown Sentence Summary became Ex A. It included a summary of facts arising from the jury verdicts, which accords with my summary of the facts as outlined above. The offending took place on 12 September 2017 at a time when the offender was on parole. He was released to parole on 18 June 2017, which parole was due to expire on 17 June 2018. He had therefore been in custody solely in respect of the subject offences since 18 June 2018, his parole having been revoked on 12 September 2017.

15. The Crown summary of facts referred to evidence given at trial by Detective Sergeant Michael McGreachie, who estimated the street value of the methylamphetamine in the offender’s possession as $11,500 if sold as individual point deals. The estimate of the street value of the heroin found in the offender’s possession was $20,000, based on an average street value of heroin being $350 per gram. He was further of the opinion that the multiple mobile phones were items commonly associated with the supply of prohibited drugs.

16. Exhibit A also included the criminal antecedents of the offender. His criminal history was lamentable, having commenced in the Children’s Court between 1994 and 2000, with numerous charges involving dishonesty, violence, resist and assault police, enter inclosed lands, possess prohibited drug, goods in custody and escape lawful custody. In 2000, the offender was sentenced in relation to multiple charges of break and enter, larceny and goods in custody, by way of fines, and suspended sentences. Similar charges of goods in custody and resist and hinder police the same year were dealt with by way of two s 9 bonds for a period of 12 months. In 2001, the offender was sentenced for offences of destroy or damage property, larceny and steal property dwelling house by way of fines, and concurrent sentences of imprisonment for 12 months with a non-parole period of 9 months. At the same time he was sentenced to the same sentence for two break and enter with intent to steal offences.

17. In 2002 and 2003, there were further offences of assault officer in execution of duty, carry cutting weapon and resist or hinder police, for which he was sentenced to terms of imprisonment of 6 months and 5 months to be served concurrently. Further offences of break and enter building with intent to steal, steal property in dwelling house and goods in personal custody in 2003 led to concurrent terms of imprisonment of 17 months with a non-parole period of 5 months. In the same year, an offence of larceny brought a concurrent term of imprisonment of 2 months, as did offences of possess prohibited drug and a further offence of resist or hinder police officer in execution of his duty.

18. In 2004, the offender was sentenced on a charge of aggravated robbery to a term of imprisonment of 6 years with a non-parole period of 4 years.

19. In 2008, there were convictions for not paying authorised fares, and in 2009 the offender was imprisoned for concurrent terms of 4 months on charges of assault occasioning actual bodily harm and common assault.

20. In 2010, the offender was sentenced to 2 years imprisonment with a non‑parole period of 14 months on a charge of recklessly cause grievous bodily harm. At the same time, a s 9 bond for a period of 4 years was imposed for an offence of assault occasioning actual bodily harm.

21. Those sentences were confirmed on appeal.

22. In 2012, further charges of break and enter brought sentences of 2 years 3 months and 3 years imprisonment respectively, with a non-parole period of 1 year and 4 months.

23. In 2015, on a charge of use offensive weapon with intent to commit indictable offence, the offender was sentenced to 1 year and 10 months imprisonment with a non-parole period of 1 year and 2 months. At the same time, on an offence of aggravated break and enter and commit serious indictable offence whilst armed, the offender was sentenced to 4 years imprisonment with a non‑parole period of 3 years commencing on 18 June 2014. It was that sentence from which he was released on parole on 17 June 2017. Appeals against both of those sentences were dismissed.

24. Exhibit A also contained the offender’s custodial record. That record contained numerous notations of infractions for violence and drugs whilst in custody.

25. Exhibit A also included a number of breach of parole notifications. In 2017 he was noted to be generally compliant with supervision. On 21 July 2017 he admitted to using heroin on a daily basis and his response to supervision was described as “borderline”. In a report dated 13 September 2017, the day after his arrest, the offender’s response to supervision was described as being “unsatisfactory”. His chronic drug use and unresolved mental health issues had been identified as areas requiring assistance. When directed to engage in drug and mental health intervention programs on numerous occasions, the offender had failed to do so.

26. Exhibit A also included remarks on sentence by sentencing judges of this court in respect of prior offending by the offender, for which he was sentenced on 31 August 2004, 11 April 2011, 29 June 2012 and 20 November 2015. Those remarks are referred to below.

27. Exhibit B was a Sentencing Assessment Report under the hand of Mr A Sandercock dated 6 March 2019. The report noted that the offender had advised that he intends to reside with his father in the Swansea area upon his release, notwithstanding their estranged relationship. Under the heading “Attitudes”, the author noted that the offender identified not being in the right state of mind prior to the commission of the subject offences. He believed police were targeting him at that time and appeared to justify his criminal conduct stating that he acted in this way to attempt to evade police.

28. The offender had a significant history of drug and alcohol issues and had consumed ice, heroin and Xanax prior to the commission of the subject offences. The offender had also become addicted to gambling which had exacerbated his substance abuse issues. The author opined that the offender appeared to demonstrate limited insight into the impact of his offending behaviour on the victims. The author noted that the offender said he had been recently diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”).

29. The author noted that the offender stated he was willing to engage in required interventions, notwithstanding that he had never completed any course of treatment in the past.

30. The offender was assessed as being at a high risk of reoffending and would require T2/high supervision level if subject to a supervised order.

31. The author outlined the following supervision plan:

• “Referral and ongoing intervention provided by the Mater Hospital, Lake Macquarie to address his anger/aggression, drug use and mental health issues.

• If required, instructions to comply with medication to address his mental health issues.

• Referral to interventions and ongoing engagement to address his gambling addiction.

• Regular and random alcohol testing to confirm abstinence.

• Regular contact with NSW Police to monitor any concerns.

• Third party contact with the abovementioned stakeholders to ensure the offender remains compliant and engages in required interventions.

• Practice Guide to Intervention (“PGI”) exercises with a focus on managing environment, substance abuse, dealing with setbacks, managing impulsivity and pro-social lifestyles.”

32. The offender was assessed as suitable to undertake Community Service Work up to 21 hours of work per month.

The offender’s evidence

33. The offender tendered a report of Dr E Collins dated 7 September 2015 (Ex 1). This was a psychological assessment report prepared for previous sentence proceedings on a charge of aggravated break and enter and commit serious indictable offence. The author had previously assessed the offender in March 2012 and provided a report dated 30 March 2012. He was assessed via AVL on this occasion, and his mood was described as labile and he exhibited anger at times. He also reported significant anger and paranoia towards the various authority figures. The report set out the offender’s background history. His parents had separated shortly after his birth, as his father served 14 years in gaol. Both parents abused prohibited drugs and he was often left in the care of his grandmother. She drank heavily and became aggressive once intoxicated.

34. At school, the offender experienced literacy problems and was diagnosed with ADHD and medicated with Dexamphetamine.

35. The offender spent time in juvenile justice. He had a younger brother who died in a pool accident and he had been on a disability support pension due to his ADHD condition.

36. The offender had spent very little time in the community as an adult and expressed significant anger at this fact, blaming authority figures such as judges, police and correctional officers for his perceived institutionalisation. His mother had died in early 2015 and he was angry and distressed that he could not attend the funeral because he was in custody. He had been released on parole in May 2014 and had offended six weeks later.

37. At the time of that assessment, the offender was somewhat preoccupied that he may have had a biological son.

38. The author noted the offender’s early onset of substance abuse from early adolescence. At the time of the assessment, the offender had expressed motivation to engage in residential rehabilitation to address his substance abuse issues. He had attended the compulsory custodial drug treatment program (“CDTCC”), but did not view that form of rehabilitation to be of much benefit. The author noted that his anger at any perceived authority figures undermined his successful completion of such programs.

39. The author noted that the offender identified a difficult childhood marked by parental drug abuse, instability and violence. His relationship with both parents had seemingly improved as an adult, however, he was at the time experiencing grief at the recent death of his mother. His function in the community was persistently affected by heavy drug use, which exacerbated anger dyscontrol and paranoia. He was described as having a difficult inter‑personal style and was likely to react to perceived authority figures with hostility and resentment.

The Crown submissions

40. The Crown submitted that the weight of drugs in respect of Counts 1 and 2, namely, 23.40 grams of methylamphetamine (Count 1) and 69.48 grams of heroin (Count 2), were relevant to the assessment of objective seriousness. The amount of methylamphetamine was eight times the indictable quantity, and the amount of heroin was 23 times the indictable quantity. For a deem supply offence, each offence was just below the mid-range of objective seriousness for an offence pursuant to s 25(1) of the DMTA.

41. In respect of the offence pursuant to s 115 of the Crimes Act, the Crown submitted that there should be a 10% discount in respect of the offender’s plea of guilty which came on the first day of the trial. The offending was objectively serious, given the circumstances, namely, the offender had been in possession of the screwdriver on the balcony of premises which he was trying to get into, which was a terrifying experience for the owners of those premises. It was submitted that the objective seriousness fell below mid‑range for that offence. In respect of the four offences subject to the s 166 certificate, namely, sequences 3, 8, 9 and 11, it was submitted that sequence 3 was the most serious offending. That offence of assault police officer involved the offender spitting at a police officer who was required to undergo blood tests, and was desk bound following police protocol for such offences for a period of three months.

42. The Crown submitted the offending was aggravated by the offender being on conditional liberty at the time of the offending. He was at the time on parole which had expired on 17 June 2018. Further, his response to supervision whilst on parole at various times was described as “entirely unsatisfactory”, “borderline”, and in the final report, “unsatisfactory”.

43. The Crown submitted that it would be very difficult for the court to be satisfied that the offender had any prospects of rehabilitation. He had been given every opportunity in the past including drug rehabilitation programs, but had failed to take advantage of any of them. The author of Ex 1 noted that the offender had attended the Custodial Compulsory Drug Treatment Program (CDTCC), but did not view that form of rehabilitation to be of much benefit. The author went on to state that “an intensive intervention with therapeutic supports is recommended”, however, none had been achieved. On his last parole period, the offender had been encouraged to attend rehabilitation on four occasions and had failed to do so. Further, in the community, the report noted that his peer supports were a network of largely drug abusing peers.

44. The Crown referred to the offender’s criminal history and submitted that it disentitled him to any leniency. The previous remarks on sentence in 2012 and 2015 were in respect of offending which had occurred whilst the offender was on parole on both occasions.

45. The Crown submitted that the offender had been assessed at a high risk of re‑offending. A significant aggravating feature was that he was on parole. That, together with the objective seriousness of the offences and the limited prospects of rehabilitation, meant that the s 5 threshold had been crossed here.

The offender’s submissions

46. Counsel for the offender relied on a thorough written outline of submissions. In them, she submitted that the offender maintained his innocence regarding the deem drug supply charges, on the basis that the drugs were for his personal use, noting no indicia of supply was present and a discrepancy between the amounts cited in the expert report and the weight attributed to the drugs at the time they were weighed.

46. Notwithstanding that his assessment has a high risk of re-offending, it was submitted that a risk of further institutionalisation and recidivism can also mean that he required a level of supervision within the community to reduce the risk of recidivism and to enable him on “his new path to reconnect with his daughter and for community protection”, relying on Jinnette v R [2012] NSWCCA 217 at [103].

47. Counsel submitted that the offender risked institutionalisation and therefore required long-term assistance. Having set out his lengthy criminal antecedents, it was noted that whilst it did not entitle him to leniency, he had no prior convictions for drug supply.

48. Notwithstanding that the Sentence Assessment Report stated that he was estranged from his daughter, it was submitted that he had now reconnected with her through her mother for the first time in her life. She resided on the north coast of New South Wales, and he now saw a very positive goal to reconnect with her. This had given him an impetus to become drug free.

49. Counsel submitted that whilst the offender had not been psychometrically tested, the psychologist had referred to mental health issues including paranoia, negative relations with authority, long-standing drug addiction and grief issues. It was submitted that in accordance with Muldrock v R (2011) 244 CLR 120, his mental health issues made him inappropriate as a vehicle for denunciation and retribution.

50. Counsel submitted that a finding of special circumstances should be made in this case, given his need for mental health treatment, drug rehabilitation and the risk of institutionalisation.

51. It was submitted that the offender was entitled to a 10% discount in respect of his plea of guilty to the s 115 offence.

52. Notwithstanding that the offender has served a balance of parole from 12 September 2017 to 16 June 2018, it was submitted that any sentence should be backdated from 12 September 2017 as a matter of the court’s mercy and discretion due to his institutionalisation.

53. Counsel referred to comparative case in respect of drug supply matters, advocating, given that the “Clarke” principle had been overturned, that the offender could be placed on an Intensive Correction Order or on parole in respect of these offences.

54. In her oral submissions, Counsel rehearsed her written submissions in respect of the offender’s prospects for rehabilitation and risk of recidivism, as outlined above. Counsel highlighted that this was his first offence for supply prohibited drugs, and had come after a period of reckless spending of money he inherited from his mother’s estate, at a time when he was grieving deaths in his family, which had retriggered his drug use and gambling addictions. The offender had come from a very disadvantaged background and the offending had taken place at the one time therefore the sentences should be served concurrently.

55. It was submitted that the principles in Bugmy v R [2013] HCA 37 should be applied, given his lifetime of disadvantage.

56. On release from custody, the offender had proposed to live with his father, which would take him away from the northern beaches area where his previous peer support group had persons involved in prohibited drugs. He had also recommenced the relationship with his daughter who was not in her early 20’s. This had given him “a glimmer of hope”, whereas prior to the offending he had been on a path to destruction and had perceived himself that he had not much to live for. It had given him an impetus to remain drug free and to live in the community.

57. On the question of backdating the sentence, it was submitted that the court should exercise its discretion to backdate any sentence to the date of the offence, namely, 12 September 2017. Whilst he had been released on parole on 17 June 2017, he had offended within three months of his release.

58. Counsel acknowledged, given his criminal antecedents, he was not entitled to any leniency in sentencing, however, due to his mental health issues, general deterrence should be given less weight in the sentencing process.

59. Counsel urged a finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”) due to his mental health issues, his need for rehabilitation and his risk of being institutionalised.

60. In respect of Counts 1 and 2, it was submitted that they were within the low range of objective seriousness for deem supply offences, given the lack of indicia for such supply and his claim that the drugs were for his personal use. Notwithstanding that submission, the court was informed that the offender accepts the jury decision. Finally, it was submitted that the opportunity to reconnect with the offender’s daughter had given him “a light at the end of the tunnel”.

Determination

62. 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.”

63. The objective seriousness of the offending in respect of the deem supply offences must be assessed in the light of all of the circumstances of the offending. One factor is the weight of the drugs which, consistent with the jury verdict, comprised 23.4 grams of methylamphetamine, which was eight times the indictable quantity in respect of Count 1. Count 2 involved 69.48 grams of heroin, which was 23 times the indictable quantity. Further, the drugs were found secreted within the offender’s multiple layers of clothing, at a time when he had exhausted, within a short period of time, a substantial amount of money he received as a windfall from his mother’s estate.

64. I find the objective seriousness of the offending in respect of both Count 1 and Count 2 was just below the mid-range for an offence pursuant to s 25(1) of the DMTA. Both charges still constituted serious offending.

65. The objective seriousness for the offence pursuant to s 115 of the Crimes Act was below mid-range and just above the middle of the low range for an offence pursuant to that section.

66. An aggravating factor of the offending was that the offender was on conditional liberty, having been released on parole just three months prior to the date of offence.

67. General deterrence is important in sentencing for drug supply matters. A clear message must be sent to the community, and like-minded members of the community that Parliament has proscribed very heavy maximum penalties for such offences and the courts will impose lengthy custodial terms in appropriate cases. To the extent that general deterrence must be diminished on the basis of the mental health issues referred to by Dr Collins in Ex 1, that report had been prepared in 2015 in respect to a previous sentence, and notwithstanding those ongoing issues, the offender had continued to offend. In those circumstances, specific deterrence was also important here, notwithstanding the risk of the offender becoming institutionalised by reason of his repeated criminal conduct.

68. I take into account the maximum penalty in respect of Counts 1 and 2 of 15 years imprisonment and/or 2,000 penalty units, and the maximum penalty in respect of the offence pursuant to s 115 of the Crimes Act of 10 years imprisonment as guideposts in the sentencing process.

69. The offender is also entitled to a 10% utilitarian discount on sentence in respect of the offence pursuant to s 115 of the Crimes Act in respect of his plea of guilty. Otherwise, the offender has shown no remorse for his offending and has adhered to a belief that the drugs were for his personal use in the fact of the jury finding to the contrary.

70. There is little by way of subjective factors to take into account here, other than the offender is at risk of institutionalisation as a result of his continued, repeated criminal conduct. The contention that he had renewed his relationship with his daughter, who was now in her 20’s, was not supported by evidence and cannot be given much weight in the sentencing process, given that he had previously made a similar submission in a previous sentencing matter in respect of a son with whom he was estranged. The offender’s reliance on Jinnette v R, supra, is therefore of little utility, given the practical reality that the offender has placed himself at risk of institutionalisation by way of his continuing criminal conduct.

71. It was conceded that the offender is not entitled to leniency given his criminal history. That history demonstrates a contempt for the law and authority figures. Some allowance may be made for a lifetime of disadvantage, however, this offender has been given multiple opportunities in the past to rehabilitate himself and has failed to do so on each and every occasion. He must come to understand that unless he acknowledges his offending and takes responsibility for his rehabilitation, he will, in the event that he reoffends, continue to be subject to condign punishment for his serious offending.

72. I reject the submissions made on his behalf that, as a result of the “Clarke principle” being overturned, the court would impose a non-custodial sentence here. Clearly, given the seriousness of the offending and taking into account all of the matters outlined above, the threshold in s 5 of the CSPA has been crossed, and no penalty other than full time custody is warranted in the circumstances.

73. This is an appropriate case for an aggregate sentence to be imposed pursuant to s 53A. However, before I do so, I must set out the indicative sentences in respect of each matter. This is important to provide transparency in the sentencing process. The indicative sentences are as follows:

Count 1 – 2 years and 6 months imprisonment

Count 2 – 2 years and 9 months imprisonment

S 115 of the Crimes Act 1900 offence – 9 months imprisonment

74. There should be some accumulation in sentencing for an aggregate sentence, however, in this case, given that the offences occurred at the same time, there will be a large degree of concurrency. This is informed by application of principles or proportionality and totality in sentencing.

75. It is clear that in aggregating the sentence, the principle of totality applies, and there must be some accumulation of sentences. Any aggregate sentence must be “just and appropriate” to the totality of the offending behaviour. In R v Van Ryn [2016] NSWCCA 1, the Court of Criminal Appeal had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with proper regard to the totality of the criminality involved:

“[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows:

The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently, a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation, a sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.”

76. The Court went on to emphasise the need to maintain public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 at [27]:

“There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

77. In JM v R [2014] NSWCCA 297 the Court of Criminal Appeal set out the relevant principles to be applied in arriving at an aggregate sentence – see also Berryman v R [2017] NSWCCA 297. It is important that the aggregate sentence arrived at reflects the totality of the criminality involved.

78. I intend to sentence the offender to a head sentence of 3 years and 6 months. I do however find special circumstances pursuant to s 44(2) of the CSPA and therefore intend to vary the statutory ratio between head sentence and non‑parole period. The non-parole period will therefore be 2 years and 3 months.

79. I note that the offender has been in custody since 12 September 2017 and served the balance of his parole until 18 June 2018. As a matter of discretion, I intend to backdate his sentence so that the non-parole period will commence on 12 March 2018.

Orders

80. I make the following orders:

1. You are convicted of the following offences:

Supply prohibited drug being 23.4 grams of methylamphetamine pursuant to s 25(1) of the DMTA

Supply prohibited drug being 69.48 grams of heroin pursuant to s 25(1) of the DMTA

Commit s 114 offence having a previous conviction, pursuant to s 115 of the Crimes Act 1900.

2. I sentence you by way of an aggregate sentence pursuant to s 53A of the CSPA.

3. The non-parole period will be a period of 2 years and 3 months imprisonment to commence on 12 March 2018 and to expire on 11 June 2020.

4. The balance of term will be a period of 1 year and 3 months to commence on 12 June 2020 and to expire on 11 September 2021.

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Decision last updated: 30 May 2019