R v O'Casy, Angus

[2010] NSWDC 110

CITATION:	R v O'Casy, Angus [2010] NSWDC 110
HEARING DATE(S):	15/04/2010 and 19/04/2010
JUDGMENT DATE:	20 April 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Sentence 15 months minimum term. Balance of term of 1 year and 9 months
CATCHWORDS:	Criminal Law - Sentencing - Supply Prohibited Drugs - MDMA (Ecstacy) - 700 tablets (175 grams) - purchased 900 tablets for $12K - proposed to sell in Alice Springs - hoping to receive $40 -$50 per tablet - 22gms Cannabis leaf on Form 1 - random roadside breath test - drugs concealed in back pack in car boot - estimate 28 - 140 deals - po0ssession of drugs represents offender graduating from small time supplier to mid-level supplier - on bail at time of offending - possible standard non parole offence - below mid range of seriousness - no actual lsupply - potential for harm not realised at time of arrest - plea of guilty - subjective circumstances reviewed.
CASES CITED:	R v Cuthbert [1967] 2 NSWR 329 R v Rushby [1977] 1 NSWLR 597 R v Hayes [1984] 1 NSWLR 740 Lozanovski v The Queen [2009] NSWCCA 123 R v Hearne (2007) 124 AcrR 457 R v Clarke unreported NSWCCA 15 3 90
TEXTS CITED:	Drug Law in New South Wales 2nd ed, Zahra et al
PARTIES:	Regina Angus Bartholomew O'Casey
FILE NUMBER(S):	2009/4755
COUNSEL:	Crown: G Corr
SOLICITORS:	Defence: Mr D Davidge

JUDGMENT

1. In 2006 Angus O’Casey was the victim of a serious assault to his head resulting in skull fractures and damage to his auditory canal and significant psychological problems. On the basis of those injuries O’Casey received $37,000 by way of a victim injuries compensation payment in late October 2008.

2. Some of the money he used to repay debts to his mother and for various doctors’ reports. He bought a PlayStation and other items. He spent monies on himself and others. It is likely he bought a new mobile phone in early December of 2008 and he spent $12,000 purchasing 900 ecstasy tablets for the purpose of selling them in Alice Springs. He said he was wanting forty or fifty dollars for each tablet.

3. On 16 December he was travelling west along the Stuart Highway to Balranald at a speed of ten kilometres over the posted speed limit. He was a passenger. The car was pulled over by police and as events turned out the car was searched. 700 of those 900 tablets were found. He and his mates had used 200 of the tablets the previous weekend.

4. How he was planning to get from Balranald to Alice Springs having come, as I understand it, from the Gosford region is moot. The ecstasy tablets weighed in at 175 grams thereby constituting a commercial quantity. He was arrested and charged with supply commercial quantity of ecstasy, an offence that carries a maximum penalty of twenty years imprisonment and, for a case falling in the middle of the range of objective seriousness, a standard non-parole period of ten years. At the time of the offence Angus O’Casey was eighteen years and three months.

5. Today he is to be held accountable for his criminal conduct. He asks that I take his possession of twenty-two grams of cannabis into account when sentencing him on a Form 1 although no Form 1 has yet been handed up.

6. As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for this offence before this court committed by this offender harming or potentially harming the community to which he was heading.

7. My initial task requires an assessment of the objective criminality of the offence before the court. I will also need to have regard to matters personal to him called subjective matters. The starting point for these assessments requires me to make findings of fact from the evidence before the court relating to the offence and to the offender.

8. My fact finding task has been circumscribed in that an agreed set of facts has been tendered to which I shall shortly return. It is sufficient at this point that I remind the court a judge is not a party to the agreed set of facts. The tender of agreed facts does not relieve the sentencing judge from his or her fact finding responsibility. It simply limits the material from which facts may be found. To the extent if it be the case that the facts as agreed do not reflect the actual events that occurred it must be remembered a court can only find facts from the evidence placed before it.

9. The offender’s rehabilitation prospects will have to be assessed even if looking through a glass darkly. Before any sentence can be made there are likely to be technical questions relating to deterrence, discounts, whether special circumstances are to be found, the Form 1 matter I have referred to, whether this offence does in fact attract a standard non-parole period and the length of the parole period, and finally, of course, the ultimate length of the term of imprisonment to be imposed.

10 None of those things can be commenced until the primary facts are determined. What weight needs to be given to all of these matters against an imperative that sentencing should have as its primary focus the protection of the community will also need to be determined, see R v Cuthbert [1967] 2 NSWR 329, R v Rushby [1977] 1 NSWLR 597 and R v Hayes [1984] 1 NSWLR 740.

Facts

11. The vehicle was pulled over some seventy-five kilometres east of Balranald. It was stopped so that police could conduct a mobile random breath tests. The driver of the vehicle indicated negative to alcohol. The offender was seated in the front passenger seat of the vehicle. As a result of inquiries at the scene police executed a police power to search the vehicle. In the boot of the vehicle police located a black backpack. Inside that backpack police located a small plastic releasable bag containing cannabis leaf.

12. Further search revealed a glass bong and a metal bowl containing a small amount of loose cannabis leaf. The offender immediately informed police that the cannabis and bong located belonged to him.

13. In a blue backpack also belonging to the offender and located in the boot of the vehicle police located a clear plastic resealable bag containing a large amount of Australian currency. Upon further search of the blue backpack police located two small plastic resealable bags containing a number ecstasy tablets. The offender told police, “The cash is mine from a compo payout and the ecstasy tablets are mine for personal use”.

14. Further in the boot of the vehicle police located a brown plastic shopping bag containing a large number of small empty resealable plastic bags. Police continued to search the vehicle and found a yellow torch behind the driver’s seat. When opened, police located a clear plastic resealable bag containing a number of other plastic resealable bags which in turn contained ecstasy tablets.

15. O’Casey told police, “They are mine as well and I wasn’t going to tell you they were there”. He was arrested and taken back to Hay Police Station and placed in police custody.

16. The drugs were weighed by police in the presence of the offender and his money counted. The cannabis leaf in the small plastic resealable bag weighed in at 22.3 grams and the loose cannabis leaf weighed in at half a gram. The total weight therefore of the cannabis leaf was 22.8 grams.

17. The two small plastic resealable bags located in the black backpack weighed in at 19.2 grams.

18. The clear plastic resealable bag from inside the yellow torch was removed and it contained a further twelve resealable bags each containing tablets. They were tested by DAL, analytical laboratories, and found to be 3/4 methylenedioxymethamphetamine. The total quantity of the tablets found was 175 grams.

19. The cash from the blue backpack was counted in front of the offender and it amounted to $5,390 Australian currency in varying denominations.

20. Despite the comments made by the offender to police while the vehicle was being searched, the Crown accepts the plea of guilty on the basis that the offender had the ecstasy tablets in his possession for the purposes of supply, a proposition that appears to have been agreed to by the offender when giving evidence.

21. Although there is no evidence before me of prior drug dealing as best I can discern from the material before me in thirty-six SMS messages which had been captured on his new mobile phone between the fifth and 14 December, he appears to have been involved in something less than half a dozen deals, at least two of which appear to have been related to the supply of cannabis and all his dealing to apparent end users.

22. I can identify beyond reasonable doubt two customers, one of whom appears to owe him some $700. His purchase of the ecstasy tablets was a step intended to elevate him from a small time supplier to known friends or associates to a mid level supplier to persons he did not necessarily know or have any other basis for contact with them.

23. On the evidence before me there is a reasonable possibility the cash found by police is as he describes it, is cash he was able to withdraw from a bank account because of his victim injury compensation. It is not unreasonable to infer he took it as part of a bankroll for the further purchase of drugs or for a larger purchase of drugs than he originally made or as a bankroll for the trip he was then embarked upon.

Objective Criminality

24. From the facts as he finds them to be a sentencing judge is required to assess the objective criminality of the offence as an essential step in assessing the seriousness of the criminal behaviour of the offender. That is done by comparing objectively the criminality exhibited in the instant case with criminality of offences of a similar kind. It is in this way that the objective seriousness of the criminality of this offence can be evaluated. The objective criminality has an important, indeed in this case, the vital impact upon the overall sentencing outcome.

25. Courts and the legislature, that is, parliament, have made it clear that drug supplying, that is, the supplying of illegal drugs, is an unacceptable criminal activity. It is not difficult to understand why drug supplying is a criminal activity. Contrary to the impression this offender may well have entertained, it is not a social. but rather antisocial, behaviour.

26. Courts have long recognised that in assessing the objective seriousness of a drug offence it is necessary to have regard to the actual harm done by the drug or in this case the drug’s potential for harm, see Drug Law in New South Wales 2nd ed, Zahra et al.

27. Harm to others when inflicted by someone else is antisocial. Drug dealing has as its core an attack upon the health of members of the public. For his $12,000 investment O’Casey was seeking a profit ranging from $16,000 to $23,000 on his investment. He had sufficient quantities to supply to those who would in turn on-supply to others.

28. Ecstasy, at least from my experience where I sit, seems to be sold to individual users in lots ranging from single tablet through to twenty or twenty-five tablets. Thus a working potential for the number of discrete deals appears to range from somewhere between twenty-eight and 140 deals. In Lozanovski v The Queen [2009] NSWCCA 123, Adams J with whom McClellan CJ at CL and James J agreed, noted:

“Although the amount of drugs supplied is far from the only factor to be considered when assessing the objective seriousness, yet it is in most cases the most significant factor since it measures at once the scale of the dealing itself which is at the very centre of the offence but also the risk to society that dealing in such quantities entails”.

29. Ecstasy is addictive. The user’s intent may be to one of seeking a relaxed, upbeat mood and seeking social confidence. Ecstasy however is well known for its long lasting negative impacts. These will build up the more the ecstasy is used. Those negative impacts include confusion, sleep deprivation, anxiety, paranoia, depression, aggression, brain damage including impaired memory, chills and sweating. Significantly many of those complaints are complaints reported to Dr Lennings by this offender.

30. While the amount of ecstasy he had to supply as he intended would not have caused any of these symptoms in those using the tablets to a point of illness, what would have happened is they would have contributed to the health deterioration or further health deterioration of numerous unknown users.

31. Treating drug addicts and conditions, particularly mental health conditions, caused by drug abuse is costing this nation many hundred of million dollars annually. If the effects of drug abuse is not the major health problem of the nation, it is certainly one of them.

32. This offender was seeking to move to a middle level of drug dealing. As such his potential to contribute to the public health problem rose proportionally from his earlier dealings. He says he did not turn his mind to detection. That cannot be so. In order to conceal them he placed a large number of the ecstasy tablets in the shell of his large yellow torch. That can only be because he was seeking to minimise risk.

33. At the time of this offence he was bailed in the Local Court upon a charge of breaking, entering and stealing. That bail was, by the time of this offence, only one month old. His commission of this offence, whilst being allowed at large on bail, must aggravate the seriousness of this charge before me. That is because he has breached an understanding that he would be of good behaviour to the court which granted him bail.

34. The Crown argued the objective seriousness of the offence fell within the mid range of seriousness. That cannot be so. The quantity of ecstasy subject of this charge is in the lower quadrant of the range between 150 and 500 grams. Indeed, it is only twenty-five grams above the threshold.

35. The basis of the charge is in possession for the purposes of supply, that is, that the potential for harm was real and on that basis punishable, for example, such in driving in a manner dangerous where the potential danger to the public is the nub of the offence. But that potential had not been realised as it may have been had the actual supplies been consummated.

36. I made the point earlier that the likely consequence of supply of this quantity as planned was contribution to harm or further harm rather than causing measurable harm. Even that contribution to harm did not occur.

37. The background against which the offence is to be evaluated is that of a small time dealer taking the opportunity provided by access to substantial cash to step up his level of drug dealing. He was aiming to deal in Alice Springs. That is to say, there were still a number of days before supply for financial gain was to be undertaken. Again, that puts his criminality less than somebody whose background has been that of a full time middle level dealer who returned immediately to his established market with his product.

38. This background does not reflect the same level of criminality as a mid level supplier of some standing replenishing his supplies and being caught. Nonetheless this offender’s intent was clear and firmly held. There does not appear to have been any ambiguity or ambivalence about it.

39. I would assess this offence, bearing in mind it is a charge of supply a commercial quantity of ecstasy as falling in the bottom quadrant of seriousness for those kind of offences, but towards the top of that quadrant.

Subjective Matters

40. I turn now to the subjective factors. I am both entitled and required to do that. Not only am I sentencing for this criminal offence but I am also sentencing this offender for it. Each offender coming before the court varies from others who stand or who have stood for sentence.

41. Circumstances personal to Angus O’Casey may offer to the court some explanation and insight into the commission of this offence by him or some reason why a more or a less sentencing outcome is appropriate.

Family, Relationships and Background

42. At the time of the offending Angus O’Casey was a single man aged eighteen years and three months. He is as best I can tell the oldest of three siblings. He says he has reasonable relations with his younger brother and a sister. His parents separated when he was two. The father has maintained contact but is described as abusive towards this son. The son seeks to minimise that abuse in his reports of his father.

43. His mother, Mrs O’Casey, reports some long term defacto relationships after the separation and one of those partners apparently was also abusive towards the offender.

44. I sense there were behavioural problems through adolescence which are being minimised as “adjustment issues” in one of the reports before me.

Education, Training and Experience

45. Angus O’Casey’s present income stream is a disability pension. He was somewhat hyperactive at school and had some hearing problems which may have had some impact upon his capacity to receive information in a classroom. He left school in Year 8. Frequent family movement must have resulted in some instability in his educational settings. There was problematic behaviour, at least towards the end.

46. He told Dr Lennings he saw himself as a protector of the weak. While I accept that may have been true for him at school, it is clearly a principle he has now abandoned because his intention was to prey upon the weak, the drug addicts and the drug users and make money out of their addictions.

47. Having left school he continued at TAFE. He completed Year 9 but not Year 10. He then shifted to studying various vocational streams initially Engineering Certificate II passing only two out of the eight subjects and withdrawing from most. He had more success with a Certificate for Foundational and Vocational Attainment passing seven out of the ten.

48. Then he moved to Hospitality II, obtaining a pass only in food handling. He obtained an Occupational Health and Safety Certificate for general construction work. At nineteen he is still needing some direction and time to sort out a career path.

49. His strongest interests at school were sport and mathematics, but from the evidence before me he does not appear to have persisted in either. He has a long history of unemployment with a few days as a labourer in 2008 and in the past week.

50. Post-injury he sought employment through an employment agency but his behavioural problems impeded progress.

General Health

51. He presents as a fit young nineteen year old. There is a hearing problem I earlier referred to. Whether that has resolved itself or was exacerbated by the injury is unclear. Nor is there any history of it being treated or addressed. There apparently has been some damage occasioned to the auditory bone. He reports a dizziness with postural change which may be related either to blood pressure or to those parts of the ear that relate to balance.

Mental Health

52. Dr Lennings diagnosed a post-traumatic stress disorder falling into the mild clinical range which Dr Lennings thought was elevated beyond a degree he would have anticipated from a young person with a history of chronic oppositional behaviour, that is, somebody who was used to getting into trouble quite a lot.

53. Dr Lennings regarded O’Casey’s level of high anger as his most serious psychological problem. That assessment was made two years after the assault. Whether it has abated in the last two years is not disclosed. The doctor assumed the anger arose from the assault upon him by the three youths. I do not rule out the anger having its origins in causes long before the assaults. The pre-assault oppositional behaviour suggests that may be so.

54. Dr Lennings saw him being “locked into being an angry and bitter young person if unable to process his difficulties”. There is a remarkable nonchalance exhibited by this offender in tending to his problems, although he has seen a usefulness in relying upon them at sentence.

55. There is also some claimed cognitive deficits but these must be assessed against his IQ and pre-existing problems. While his mother regarded him as having a high IQ in his younger years that assessment may have been made upon the basis of his then development as against his youth or his young child status.

56. In any event, his current IQ has been assessed as quite low being at the bottom of the average end or at the top of the low average range. He has excellent non-verbal skills falling into the above average range.

57. Angus O’Casey’s cognitive assessments as tested by Dr Lennings revealed mixed signs. It was not inconsistent with poor educational adjustment and/or subclinical ADHD. It may also have been reflective of injury or intrusion into the cognitive system based upon anxiety.

58. Testing confirmed obsessional attitudes, paranoia, intense suspiciousness and anxiety. Dr Lennings described him as “a disturbed and psychologically vulnerable young man who is in need of urgent treatment”. He noted that delay in treating him for the original injury has led to some embedding of maladaptive psychological responses.

59. The offender is concerned that he has had impaired memory and difficulty finding the precise word he wants since the assault upon him. He reports that his thought processes have been slowed and “thinking in a fog or feeling confused”. Dr Lennings’ assessment was that Angus O’Casey’s functions were “more or less within acceptable limits”, although there was a verbal/non-verbal discrepancy. He thought many of the problems were driven by anxiety. It was Dr Lennings’ opinion that the psychologic rather than the neurological sequelae of the assaults causes most harm to the offender.

60. Of real worry with the high level of anger is the noted impaired executive function of the brain. Contained within the executive functioning is the function of judgment. Judgment or impaired judgment and a high level of anger suggests further trouble to come if it is not addressed and treated.

Drug and Alcohol Issues

61. He had been using cannabis prior to his head injury. Since the head injury his usage increased to ten cones daily. He was abusing ecstasy. He gives as an example he and his mates consuming 200 tablets, if I have understood the evidence, over a weekend.

62. He claims only occasional binge drinking. His evidence was that at the time of the offending he was using five to ten tablets per day and double that on weekends.

63. As I said earlier many of the symptoms he claims are consistent with the side effects of the drugs he has been abusing. He claims either restricted use or no use since his arrest on this charge.

Character and Criminal History

64. Angus O’Casey comes to sentence a young man with a history of oppositional behavioural issues that saw him in trouble at home and at school but significantly not before the courts. This was his second major offending conduct. It is of concern that it occurs a month after a break, enter and steal offence.

65. He has been assessed as having a disability presumably arising from his mental health issues. He appears to have made a good effort to obtain vocational training at TAFE.

Attitude to the Offence

66. Angus O’Casey has no understanding of the public health issues relating to drug abuse or how his intended sales of ecstasy may have contributed to them. Nor does he understand his own symptoms of anxiety, confusion, anger and aggression may be sustained or aggravated by his personal abuse of drugs. It seems to me he is putting all that down to the effects of the attack upon him. I suspect his attitude to this offence is formulated by this.

67. He well understands the law regards what he did as an offence and a serious offence and that it is being dealt with in the District Court where the range of penalties is greater than the lower court. He certainly regrets being caught with the drugs.

68. He understands the stress and anxiety it has caused his mother and family and no doubt himself. And I genuinely believe he is minded not to re-offend for those more concrete reasons than the other. Frankly he may be a concrete thinker and may not be able to come to an understanding of the real basis of criminality of drug dealing.

Early Plea

69. This plea was entered on the day this offender’s trial was listed as a second trial in the criminal list at the Griffith District Court at its last sittings. One of the disadvantages that occurs in circuit courts is that the various legal representatives are not in daily contact with each other in the weeks or months leading up to the next sittings of a District Court. While I accept that measured against city centres the utilitarian value of a plea at committal or on arraignment is greater, this is another instance of a system working against those in remote and regional areas. I must, however, assess the real utilitarian value and against that I intend to give a fifteen per cent discount for the plea.

Rehabilitation Prospects

70. This offender’s rehabilitation prospects are clouded. As I said but a moment ago I do believe he genuinely intends not to re-offend. He enjoys the strong support of his mother and says that he gets on well with his younger siblings. Family support is crucial to rehabilitation.

71. He appears since leaving school to have made genuine efforts to advance his education in vocational training areas but his present income stream is a disability pension and one week of labouring work.

72. As best one can tell he has reasonable physical health although if he still has a hearing problem it may be contributing to some of his issues. On the other hand his psychological profile is far from supportive. But worse, he has done nothing to treat it in the past two years and his drug taking could only have exacerbated it. The conduct bringing him before the court is an example of his willingness to take risks, that is, an example of his poor execution of judgment.

73. His commission of the break and enter offence a month before demonstrates the same character flaw. His executive functioning including judgment is impaired. He claims to have cut back on his use of drugs but there is no forensic evidence to support that. The Crown has not disputed his claim. I am cautious in accepting it, and when I do accept it I cannot know entirely what motivates it, that is, whether it is the sentence hanging over his head or a genuine desire to abandon drugs.

74. He is not likely to purchase $12,000 worth of ecstasy tablets and to seek to trade at that level. But my sense is that is in part because he has exhausted the compensation funds he received rather than any conversion from drug abuse or understanding of the public health harm drug dealers create.

Setting the Sentence

75. I acknowledge a drug supply offence is one calling for strong weighting of general deterrence. I have already noted that the maximum penalty for this offence is one of twenty years imprisonment with a standard non-parole period for an offence in the middle of the range of objective seriousness for offences in the standard non-parole period table.

76. Should the standard non-parole period apply? I have found this offence falls below the middle of the range of objective seriousness. For that reason the standard non-parole period does not apply but when setting the sentence I must remember it still has work to do. In considering the residual impact the standard non-parole period should have on this sentence I note that even had the offence fallen in the middle of the range there are other reasons why a standard non-parole would not have applied. These reasons must be found in s 21A of the Crimes (Sentencing Procedure) Act 1999. Section 21A(1) requires the court in determining an appropriate sentence for a mid range offence to take into account:

(a) aggravating factors referred to in s 21A(2);
(b) mitigating factors referred to in s 21A(3);
(c) and/or objective or other subjective factors that affect the relative seriousness of the offence.

77. Under aggravating factors I have already taken into account 21A(2)(j) that O’Casey was on bail.

78. Mitigating factors include 21A(3)(a), loss, injury, emotional harm caused by this offence was not substantial. Although there was a real potential for harming public health it did not eventuate;

(e) the offender does not have any significant record for past offending;
(j) the offender was not fully aware of the potential consequences of his action because of his age, modest intellectual capacity and concrete thinking patterns.

79. 21A(3)(k), a guilty plea by the offender but that; of course has been addressed.

80. Finally I am satisfied of a line of authority endorsed by Hearne’s case (R v Hearne (2007) 124 AcrR 457) case supports a finding of special circumstances in cases where young offenders are to be incarcerated but given parole based upon the weight to be given in such cases to the need for rehabilitation.

81. Thus where there are multiple compelling reasons to give a lesser parole period than the standard non-parole the weight to be given to the residual effect of the provisions of s 54B of the Crimes (Sentencing Procedure) Act 1999 must become more muted than would be the case if there was only, say, a plea of guilty.

82. R v Clarke unreported NSWCCA 15 3 90 does it apply? In this case police intervention as a consequence of police search resulted the seizure of 700 ecstasy tablets on the road between Balranald and Hay. I have noted the original purchase was 900 tablets, 200 of which were consumed by the accused and his mates over the weekend prior to his arrest. They are uncharged, but form the backdrop of his circumstances when arrested.

83. There is no evidence the distribution of those tablets was for financial gain or even for any money. The Crown has not established on the facts before me the money found on the accused was from the sale of drugs. Clarke’s case establishes:

“The policy laid down by the Court of Criminal Appeal, that only in exceptional circumstances will a non-custodial sentence be appropriate for drug traffickers, is not restricted to those cases in which it has been demonstrated that a profit has been obtained. That policy is principally directed to the trafficking, the dissemination of drugs to others. The position is worse when there has been a profitable commercial exploitation but trafficking alone in any substantial degree should normally lead to a custodial sentence” (head note).

84. Also of importance coming out of the same case, and perhaps to the same effect, are the following:

“This court has, on occasions too numerous to mention, emphasised that sentences involving a substantial general deterrence are to be imposed on drug traffickers and it is indicated that only in exceptional circumstances will a non-custodial order be appropriate...”

85. What the statement is principally directed to is the trafficking- the dissemination of drugs to others. That is made clear by Street CJ in Hayes’ case at 457.

86. While I accept it was certainly O’Casey’s intention to traffic with these drugs, that is, to disseminate them to others, in the unusual circumstances of this case he did not do so in respect of the 700 tablets he has been charged with. There was an earlier distribution of 200 tablets among himself and others on the weekend. That certainly constitutes the start of the dissemination but it is a question of degree.

87. I am prepared to find there was, in the circumstances of this case, no dissemination or trafficking of the drugs subject to the charge to or in any substantial degree, although as I earlier found he was stepping up to become a mid level drug supplier. Because of his possession of more than a trafficable quantity for the purpose of supply he must obviously be regarded as supplying. But this offence does not reach the seriousness of trafficking in, or disseminating, 700 tablets among the community or even to undercover police operatives as is so often the case.

Setting the Sentence

88. I reviewed the JIRS statistics for supplying a commercial quantity of amphetamines both pre standard non-parole period and post standard non-parole. Ninety-two and ninety-four per cent respectively of all offenders are subject to full time imprisonment. This offender does not fall into this extraordinary category of six per cent who have been able to avoid full time incarceration.

89. Prior to the standard non-parole impacting on sentence the imprisonment range for full sentences ranged from eighteen months to seven years with forty-six per cent receiving sentences of three and a half years or less. Post the standard non-parole period impacting upon sentences the full range has now climbed from two and a half years to twelve years with forty per cent receiving five years imprisonment or less.

90. Prior to the standard non-parole period, the non-parole periods ranged from six months to four years with fifty-two per cent receiving a standard non-parole period of two years or less. Since the standard non-parole has come into force only nineteen per cent of imprisoned offenders receive a standard non-parole period of two years or less. Forty-eight per cent of imprisoned offenders receive a standard non-parole period of three years or less.

91. The objective seriousness of the offence I am dealing with, having 700 ecstasy tablets for supply, is so serious that a full time custodial sentence is called for. This offender has a strong subjective case but even so custody is nonetheless required. The observations of the professionals that he be treated urgently should not be ignored. A copy of these remarks should be sent to Justice Health together with a copy of the defence forensic reports outlining the health issues.

92. I have been concerned that full time custody will stand in the way of needed recommended treatment but little has been done to advance that treatment in the past two years nor, it seems to me as a matter of law, can needed treatment be a basis, at least in this case, for avoiding the inevitable.

The Form 1 Matter

93. The Form 1 matter relates to possession of less than an indictable quantity of cannabis. Frankly, if it had been dealt with before the Local Court the offender would likely have been fined. It will be taken into account but its impact on the overall sentence will be minimal.

94. My initial assessment of the objective seriousness put this matter in the lowest quadrant of seriousness for commercial supply. The subjective case I have classified as strong. The standard non-parole period impact is more muted than it otherwise might have been because of the youth, abstinence of actual harm and minimal criminal record in addition to the plea of guilty. I have distinguished Clarke’s case.

95. But for the plea of guilty I would have set an overall sentence of three and a half years. That figure can be discounted by fifteen per cent which amounts on my calculation to a six month discount. Thus, the overall sentence is to be one of three years imprisonment.

96. I find special circumstances namely the need for rehabilitation to be undertaken in the community, the treatment of psychological issues needs to be undertaken in the community, the need to enforce illicit drug abstention needs to be undertaken in the community.

97. I come now to the formal sentencing but before I do that, do we have a Form 1?

[Discussion between His Honour and legal representatives]

98. Angus Bartholomew O’Casey, you are convicted that you on 16 December 2008 at Hay in the State of New South Wales did supply an amount of prohibited drug to wit 175 grams of 3/4 methylenedioxymethamphetamine more commonly known as ecstasy being an amount which was not less than the commercial quantity applicable to that prohibited drug.

99. I sentence you to a non-parole period of fifteen months to date from 12 April 2010 and to expire on 11 July 2011. I set a balance of term to make up the three years to expire on 11 April 2013. I order your release to parole on 11 July 2011. Pursuant to s 52 of the Crimes (Sentencing Procedure) Act 1999, I order that you be supervised by Probation and Parole.

100. I require as conditions of your supervision that you accept drug and alcohol counselling, that you submit yourself to random drug screening four times monthly for the balance of your parole and you are to undertake psychological treatment as agreed between you and the Probation and Parole Service.