R v Neal, R v Small and R v Williams

[2018] NSWDC 30

District Court

New South Wales

Medium Neutral Citation:

R v Neal, R v Small & R v Williams [2018] NSWDC 30

Hearing dates:

9th February 2018

Date of orders:

27 February 2018

Decision date:

27 February 2018

Jurisdiction:

Criminal

Before:

Berman SC DCJ

Decision:

Mr Neal is sentenced to imprisonment consisting of a non parole period of 3 years with a head sentence of 5 years.

Ms Small is sentenced to imprisonment consisting of a non parole period of 2 years with a head sentnece of 4 years.

Mr WIlliams is bailed under s11 Crimes (Sentencing Procedure) Act

Catchwords:

CRIMINAL LAW – Sentence - Supply prohibited drugs - Three offenders had sad and challenging upbringings.

Legislation Cited:

Crimes (Sentencing Procedure) Act

Category:

Sentence

Parties:

The Crown
Robert John Neal
Rebecca Jane Small
Neil John Williams

Representation:

Counsel:
Ms S Climo – Offender Small
Ms Z Alderton – Offender Neal

  Solicitors:
Director of Public Prosecutions – The Crown
Legal Aid Commission – Offender Williams
Cunninghams The Law Practice – Offender Neal
Kenny Springs Lawyers -Offender Small

File Number(s):

2015/322054; 2015/319431; 2015/319398

Judgment

Introduction

1. In the latter half of 2015 the three offenders, Robert Neal, Rebecca Small and Neil Williams were involved in a significant heroin supply operation in Bathurst. They are each to be sentenced for offences involving serious drug trafficking.

2. This particular operation worked this way. Robert Neal and Rebecca Small were in a relationship and lived together. Neal Williams was their neighbour. Robert Neal and Rebecca Small would travel from Bathurst to Sydney for the purposes of purchasing heroin. They would then arrange for Mr Williams to distribute that heroin for them by selling it from his house. Mr Williams' reward for doing this was that he was allowed to keep a proportion of the heroin for his own use, selling the rest and accounting to Robert Neal and Rebecca Small for the proceeds. He may have also received some relatively small amounts of money from time to time.

3. Each of them now faces sentence for offences relating to their drug supply activities. Mr Williams faces 2 charges, supplying prohibited drugs on an ongoing basis, an offence for which the maximum penalty is 20 years imprisonment and supplying a prohibited drug which relates to a number of individual supplies which when totalled amount to about 160 grams of heroin, the period covered by this offence being about 4 months from 2 July 2015 to 30 October 2015. That is an offence which carries a maximum penalty of 15 years imprisonment.

4. Ms Small is to be sentenced for supplying heroin, that charge relating to the 160 grams of heroin I mentioned earlier which she jointly supplied to Mr Williams so that he could on sell it for her and her partner.

5. Mr Neal is also facing sentence for an offence of supplying a prohibited drug, that relating to both to the 160 grams of heroin which Mr Williams supplied over time in relatively small amounts, and also approximately 56 grams Mr Neal supplied (one ounce) and offered to supply (a further ounce) directly to a person named Irene.

6. Fortunately the activities of these 3 offenders were the subject of significant surveillance by the police. Such surveillance revealed the extent of the operation. Mr Neal and Ms Small would supply Mr Williams with what they described as an egg which contained 16 big ones (each being 0.25 grams) and 16 small ones (each being 0.1 grams). Mr Williams would sell those drugs after keeping one big one and one small one for his own use.

7. Surveillance revealed that Mr Williams would have about 30 visitors per day attend his house during the period of the investigation. The supply charge relating to Mr Williams covers 292 separate supplies over the course of the 4 month period.

8. When Mr Neal and Ms Small travelled to Sydney for the purposes of purchasing more heroin they would arrange for Mr Williams to attend their home to look after their 3 children as well as his own. Police arrested Mr Neal and Ms Small when surveillance evidence suggested they were travelling back from Sydney to Bathurst having purchased heroin. The arrest was made more difficult because Mr Neal, the driver of the car despite him being disqualified from driving, engaged police in a pursuit. A couple of days after that he attended Bathurst Police Station in order to be arrested. He refused an interview.

9. Ms Small was arrested before then. She participated in an interview with police and denied any involvement. She was later re-interviewed and made substantial admissions.

10. Mr Williams was arrested shortly after Ms Small was arrested at his house in West Bathurst. He also participated in an interview but denied any involvement in the offences.

11. Whilst in custody, Mr Neal told a female acquaintance who visited him there of the location of a firearm and some cash. Police therefore went to this female acquaintance a short time later and found her to be in possession of $143,000 dollars. She told police that she'd found it under the house of Mr Neal's next door neighbour after he told her where it was.

12. Police later went to the house previously occupied by Mr Neal where they found the firearm. It turned out to be a .22 calibre shortened firearm together with 15 rounds of ammunition and slightly more than $5000 in cash. Mr Neal has already been dealt with in the Local Court for a number of offences relating to the firearm, the police pursuit, offences of driving whilst disqualified and possessing cannabis. He was sentenced in the Local Court to a total term of 2 years 11 months and one day with an effective non-parole period of 2 years and 3 months. It expired a few days ago on the 2nd of February 2018.

13. At the time of committing these offences Mr Neal was on an Intensive Corrections Order for an offence of driving whilst disqualified. As a result of committing the offence which I have to sentence him the ICO was revoked.

14. All of the offences for which these people are to be sentenced were serious. Somewhat ironically given the maximum penalty, the objective criminality of Mr Williams' ongoing supply offence is less than his supply simpliciter offence, the latter, as I have mentioned relates to 292 separate supplies involving about 160 grams of heroin but the former relates to only 3 acts of supply to an undercover police officer each of which involved about .4 of gram of heroin. He will receive no extra punishment for his ongoing supply offence, the criminality of that being encompassed by the other offence for which he is to be sentenced.

15. Each of the offenders pleaded guilty at the earliest opportunity to the charges brought against him or her. The sentences I impose upon them will therefore be 25% less than they would otherwise have been.

16. The principles of parity of course apply. No offender should have a justifiable sense of grievance when he or she compares his or her sentence with sentences I have imposed upon the co-offenders. In this case it is important to differentiate between both the offences and the offenders. Despite facing two charges, Mr Williams' role was clearly subservient to that of Mr Neal and Ms Small. He was one rung down the ladder of drug supply. Financial gain was less of a motive in his case than his co-offenders. It must also be remembered that he has spent longer in actual custody than Ms Small before being released on bail and longer in quasi custody than her as well.

17. As between Ms Small and Mr Neal, whilst it is clear that Mr Neal was the main driver of the drug supply operation, something he freely admitted, I do not find that Ms Small's role was as subservient as she would like to suggest. Perhaps the best evidence of the roles played by Ms Small and Mr Neal comes from Mr Williams who saw them on a daily basis and was something of an independent observer of the roles they each played. I am satisfied that Ms Small's role was less significant than that of Mr Neal but that their objective criminality was not greatly different.

18. One remarkable feature of this operation is that the drug supply activities took place from residential premises which were also occupied by children

19. All offenders have criminal histories. Mr Neal's is extensive. He has offended regularly and often in the past, indeed his criminal history is 36 pages long. Most of the offences were dealt with in the Local Court. This appears to have been his first involvement in drug supply. Mr Williams is younger than Mr Neal with a less extensive criminal history beginning in the Children's Court. This appears also to be his first involvement in criminal matters involving drug supply. Ms Small also has a criminal history consisting of Local Court matters. Her history does involve offences relating to possession of prohibited drugs and on one occasion an offence of bringing or introducing a syringe into a place of detention.

Subjective Features

20. In common with almost all drug users and suppliers who come before the Court the offender's backgrounds were both sad and challenging. It is certainly easier to understand why each of them began to use drugs and relapse into drug use when their backgrounds are considered.

Mr Neal

21. Mr Neal is one of 3 siblings born to his parents who have now died. He told the author of a Pre-Sentence Report that he had a difficult upbringing where he was subject to various forms of abuse which the offender believes are the underlying cause of his criminal behaviour.

22. He and his former partner, his co-offender Ms Small, have now separated which he has found difficult because he has had very little contact with their 3 children whilst he has been in custody.

23. As well as running his drug supply business at the time of his arrest he ran a lawn mowing business. This was apparently successful at times and employed a number of casual employees, including Mr Williams. Mr Neal hopes to re-establish that business upon his release from custody.

24. He has had problems with use of drugs for many many years, primarily the drugs cannabis and heroin. He was using these drugs at the time he was supplying them. He claimed that one of the reasons he took drugs was as a tool to deal with his emotional issues. He said that he was depressed at the time which the offender ascribes to the death of his father and issues of abuse related to his childhood. Despite suggestions that his lawn mowing business was successful, the offender Mr Neal also told the author of the Pre-Sentence Report that he needed money to survive at the time of his offending and was struggling financially. He said that he regretted his actions.

25. Mr Neal described his home life as horrible, being brought up by parents who were both lifelong chronic alcoholics. During his formative years he was exposed to physical, mental and sexual abuse within his family home. Mr Neal was introduced to cannabis at a young age and heroin at the tender age of 14. He has since been a user of heroin. Thus 38 years of his 52 years have been spent as a user of heroin. At times he has used in a manner which he described as not being pursuant to an addiction but at other times, including when he was committing the offence for which I must sentence him, he was using drugs quite heavily. He gave evidence that drugs were an escape from emotional trauma, especially that trauma flowing from the death of his father.

26. Mr Neal expressed his remorse saying he was sorry because he had caused 3 parents to be away from their children, referring here to himself, Ms Small and Mr Williams. He also expressed concerns for the people who were supplied.

27. He suggested that his level of drug use was such that he had to resort to selling it. There is however one aspect of the evidence which calls this claim into question, that is of course the circumstance that police found $143,000 hidden under his neighbour's house which it is agreed was money which he controlled. When asked about this money he at first said that it was the proceeds of his lawn mowing business but when it was pointed out to him that that suggests that he didn't need to supply drugs in order to be able to afford them, his evidence changed to some extent.

28. I will sentence Mr Neal on the basis that one part of his motivation in supplying drugs was to fund his drug habit and that of his then partner Ms Small, but it was also clearly a motivating factor that he could make money out of supplying drugs.

29. Mr Neal is currently on protection in custody following receipt of a letter in which threats were made. He spends much more time in his cell than he would in the mainstream prison population. In determining the sentence to impose upon Mr Neal I will take into account the risk that he will serve the entirety of his sentence in protection and the risk that if that happens his conditions of custody will be harsher than they would have been otherwise.

30. Mr Neal became quite distressed when giving evidence about the lack of support available to him in custody as he attempts to deal with his drug habit. Evidence suggests that he has been unable to access all the courses and supports which one might have thought should have been available to him.

31. He says that he has not used drugs since his arrest and the absence of any offences on his custodial history involving failure to undergo urinalysis or failing a urinalysis test tend to suggest the honesty of Mr Neal's evidence in that regards. Whilst Mr Neal would not accept everything put to him by counsel for Ms Small as regards the roles played by them in this drug dealing business he did accept that he was the main driver of the organisation.

32. In common with his co-offenders he does not appear to have been living a lavish luxurious lifestyle as a result of his drug dealing activities. He now has a committed band of supporters including a woman who is willing to have him live with her in Lismore upon his eventual release from custody.

33. I can't say that he has good prospects of rehabilitation. There is hope for the future but the length of Mr Neal's criminal history suggests that the path towards a law abiding lifestyle may well be a rocky one.

34. As I mentioned he was on an Intensive Corrections Order at the time he was supplying drugs.

35. That is of course a matter of aggravation but it is important that I do not double count. Accordingly there will be partial concurrence between the sentence for this offence and the sentence he was serving as a result of having breached his ICO. I will date the sentence of imprisonment I will shortly announce from the 2nd of November 2016.

36. There are special circumstances in his case. He is in real need of support in the community upon his release from custody if he is to avoid further criminal behaviour. I have therefore reduced the non-parole period which would otherwise apply - not as a favour to him of course, but in an attempt to protect the community from further offending by him.

Ms Small

37. Ms Small is, as I have mentioned, the former partner of one of her co-offenders. Since their arrest she has had no contact with him.

38. Ms Small's background was also challenging in some respects. Her mother and step-father, with whom she had a close relationship, separated when she was 11. Ms Small described this as devastating. It also had the consequence that Ms Small's mother began spending most of her time at the local pub. Ms Small began associating with "the wrong crowd" and was kicked out of home by her mother when she was 14. She moved into a share house with an older cousin and it was then that Ms Small began using drugs because drug use was common amongst the house mates. She was sexually abused as a child which she suspects has made her vulnerable to unhealthy relationships in later life.

39. She has been visited by tragedy as well. When she was 19 her younger sister did not return home one night and has been missing, presumed murdered, ever since. Perhaps somewhat understandably after that awful event Ms Small began to increase her use of drugs, beginning to use heroin, whilst her mother increased her use of alcohol.

40. Ms Small has 3 children from her relationship with Mr Neal. When she was in custody and then when she was attending a rehabilitation program at Bennelongs Haven they were cared for by her mother. She has resumed sole custody of the children from March 2016.

41. In evidence she expressed her remorse. She explained that she used to think she was only hurting herself but after a while she realised that her offending had affected many other people as well.

42. It appears that Ms Small is keen to bring about a change in her life. Although she initially lied to police when first interviewed she told the truth a short time later when she was re-interviewed by them. She gave evidence that she last used cannabis mid-2017 and the last time she used heroin was on the day of her arrest. She completed her residential drug rehabilitation program successfully, and continues to take steps to prevent a relapse.

43. She continues to do a significant amount to support herself in her efforts at rehabilitation. She attends various programs on a weekly or fortnightly basis with the goal that she wishes to have a better relationship with her children and would like to have a job one day. She is doing some training in caring for captive animals. Fortunately and realistically she has discussed with her mother who is going to care for her children in the event that she is returned to custody. To her great credit her mother has indicated a willingness to have the children live with her.

44. I accept that Ms Small played a lesser role in this enterprise than Mr Neal but that is not to say that her role was insignificant - far from it. Mr Neal may have been the main person behind the business, something he admits, but Ms Small played a significant role nonetheless.

45. She spent almost 7 months in gaol before being released on bail, a condition of which was that she attend a drug rehabilitation facility. She then spent 5 months in quasi custody at Bennelongs Haven.

46. As is common with almost all offenders with children who face the prospect of a gaol sentence, she is concerned about the impact upon them of her being sent back to gaol. I regret to say that there is nothing at all uncommon about the situation Ms Small's children find themselves in through no fault of their own. They are fortunate that Ms Small's mother, their grandmother, has expressed a willingness to care for them.

47. The consequences for her children of Ms Small being sent back to gaol are not exceptional. However I will take them into account as part of the general mix of subjective factors. As well, she will do her time in custody harder as I have no doubt that she will be distressed by the knowledge that she has harmed her children through her illegal behaviour.

48. Ms Small's rehabilitation is less clear than that of Mr Williams who I will mention in a moment. In particular there is less evidence to support her claim to have been abstinent from heroin since her arrest. That is not to say there is no evidence, but evidence of regular urinalysis since being released from custody is not available in her case. Despite that I will accept her claim that she has been drug free since arrest.

49. She also expressed remorse for her behaviour.  That is consistent with her behaviour in being re-interviewed by police after her initial denials and making substantial admissions to them.

50. I am satisfied that she is unlikely to re-offend and has good prospects of rehabilitation. On the other hand it is a fundamental rule in sentencing that a sentence must reflect the objective gravity of an offender's conduct. She has done 7 months in custody and 5 months in quasi custody but even so I am satisfied that the length of the sentence I should impose upon her is such that nothing less than full time custody is available as a sentencing option. She played a significant and joint role in the supply side of this operation even though she was less involved in the purchase of the product.

37. There are special circumstances in her case. They relate to the need to support her efforts at rehabilitation once she is released from custody, particularly as she is likely to take be significantly affected by being sent back to gaol.

38. I will take into account her time, almost 7 months, in gaol by dating the sentence 6 months and 24 days before today. I will take into account her quasi custody in determining the sentence.

Mr Williams

53. Mr Williams is a single man who also has a long history of drug use commencing since the age of 15. It is not surprising to learn that he committed his offences to support both his drug use and for financial gain. Since being arrested, spending time in custody and then being released on bail, he entered into a drug rehabilitation facility.

54. Mr Williams was first raised by his mother and a man who he believed was his biological father. Domestic violence was a feature of the household. At the age of 10 Mr Williams discovered that the man was not his biological father after all, which, he told a psychologist, made him feel ostracised and betrayed. He rebelled from the family home living in various forms of temporary accommodation as a result.

55. Although he performed well academically in school his behaviour was problematic and so he was expelled. A combination of his poor behaviour, and his peripatetic lifestyle led to him attending seven different schools when he was young.

56. He started drinking alcohol at the age of 15, although this was not a problem, but his drug use was. He began cannabis use at 13, and amphetamine use at 15, using such drugs daily from the age of 19. He gave up amphetamines after his daughter was born, but about a year after that his mother died and he relapsed, beginning to use heroin. Until his arrest he was using heroin daily.

57. In the face of such a heavy and longstanding drug use, what Mr Williams has achieved since his arrest is remarkable. He was released on bail after about 11 months in custody and since then he has spent about one and a half years in quasi custody as part of residential drug rehabilitation. Reports tendered on his behalf from Odyssey House speak highly of Mr Williams' achievements. He has now moved to the re-entry stage of the program. He still lives at Odyssey House but is responsible for organising his own educational or vocational training outside. He has a position of responsibility at Odyssey House as well. It almost goes without saying that as part of his rehabilitation he has been subject to regular and random urinalysis. It is pleasing to note that since Mr Williams' entry into the Odyssey House program he has not failed a single urinalysis.

58. He is now a sole parent to his daughter and has been since she was 17 months old. She is now 12 years of age. She lives with his brother and sister-in-law with whom he plans to live after he leaves Odyssey House. He also hopes to get a job as a sheet metal worker through his brother.

59. I am satisfied that the offender does have good prospects for rehabilitation. He hasn't used drugs for a considerable period of time. He had done very well at Odyssey House, he has accommodation and prospects of employment when he finally leaves Odyssey House.

Sentences

60. Mr Neal is sentenced to imprisonment I set a non-parole period of 3 years and a head sentence of 5 years to date from 2nd of November 2016. His non-parole period will thus expire on 1st of November 2019 on which day he is eligible to be released to parole.

61. Ms Small is sentenced to imprisonment. I set a non-parole period of 2 years to date from the 3rd August 2017 with a head sentence of 4 years. Her non-parole period expires on the 2nd of August 2019 on which day she is eligible to be released to parole.

62. In Mr Williams' case I am satisfied that it is appropriate to give Mr Williams a chance to demonstrate that he is able to remain drug free once he no longer resides at Odyssey House. I also wish, when finally sentencing him, to have an understanding of how he is going to live his life once that happens. Accordingly I grant bail to Mr Williams under s11 of the Crimes (Sentencing Procedure) Act. I will sentence him on 14th of December 2018. The conditions of Mr Williams bail are as follows:

• He is to use no illegal drugs whatsoever

• He is to be supervised by the Probation and Parole Service

• In order to ensure that he is complying with first condition, that is that he is to use no illegal drugs whatsoever, he is to undergo regular urinalysis. If the Probation and Parole Service do not arrange at least fortnightly testing, he is to arrange at his own expense at least fortnightly testing.

• The results of all urinalysis tests are to be provided to the Court on the next occasion.

• In the event that after some time he has had clean urinalysis reports, and the cost and frequency of testing is prohibitive, he is granted leave to approach the Court and seek a relaxation of the frequency of testing.

• He is to make substantial and persistent efforts to gain employment.

• He is to live with his brother at XXXX 

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Decision last updated: 27 February 2018