R v Owens

[2019] NSWDC 705

District Court

New South Wales

Medium Neutral Citation:	R v Owens [2019] NSWDC 705
Hearing dates:	13 June 2019
Decision date:	13 June 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Full time custodial order of 2 years 5 months to be served by way of an intensive correctional order. For orders see [28] – [36]
Catchwords:	SENTENCING: supplying a prohibited drug - ongoing supply of a prohibited drug - relevant factors on sentence – courier - trafficking for reward - requirement for deterrent sentences - alternative to full time custody considered - assistance to authorities - early guilty plea
Legislation Cited:	Crimes (Administration of Sentence) Act 1999 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1995
Cases Cited:	EF v R [2015] NSWCA 36; R v Clark (Court of Criminal Appeal (NSW), 15 March 1990, unreported). Robertson [2017] NSWCCA 205
Category:	Sentence
Parties:	Wayne Anthony Owens (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr Steward (for the offender)   Solicitors: Maguire McInerney Lawyers (for the offender) Ms N Olender, Director of Public Prosecutions
File Number(s):	2018/00055651
Publication restriction:	A non-publication order was made so as not to reveal the offender’s assistance to authorities. A pseudonym has been used and identifying particulars removed from the published version of this judgment.

Judgment – EX TEMPORE REVISED

1. Wayne Anthony Owens stands for sentence today for two offences: supplying a prohibited drug, not less than 15.54 grams of methylamphetamine: s 25 Drug Misuse and Trafficking Act 1995, maximum penalty 15 years imprisonment; and ongoing supply of methylamphetamine: s 25A Drug Misuse and Trafficking Act, maximum penalty 20 years imprisonment. He has asked that when I sentence him for the ongoing supply matter, I take into account one matter involving dealing proceeds of crime on a Criminal Procedure Act 1986 Form 1. I have already made an order by consent allowing those proceeds to be confiscated.

2. Generally when matters are dealt with on a Form 1, they lead to an increase in the sentence that has to be imposed. The courts have however to be particularly careful when dealing with drug supply matters and recognise that it is implicit in most supply transactions that there will be a reward, and when arresting drug dealers, police sometimes find them with more money and less drugs and sometimes less money and more drugs. It really depends at what time in the business cycle the police interrupt their activity.

3. The interruption of Wayne Anthony Owens’ criminal activity was brought about partly because he was, along with others, the subject of a police strike force. That task force was focused on another man who faces a jury trial shortly. For the moment, I will not name him. That other man was the principal target of the police investigation. I will refer to him as “the principal.”

4. Owens was arrested on 19 February 2018. That day Owens did everything he could to bring himself to the attention of the police. Police had attended the principal's home with a search warrant and seized a vehicle. The offender was driving nearby. He saw his friend's car being taken away by a tow truck and chose to follow it to see where it was being taken and what was to happen to it. In the course of following the vehicle he attracted police attention by flashing his car’s lights at the tow truck.

5. Not surprisingly he was stopped and spoken to by police. He was asked for his licence. He did not have one. He was driving in defiance of a court order that disqualified him from driving until 2044. His children were in the car. Owens was promptly arrested and the children's mother called to pick them up. He was searched. A quantity of powder was found. He, using the colloquial term, described it to police as "shit." Whatever it was, it was not a prohibited drug.

6. His mobile phone was seized, as was $4,500 cash, the subject of the count on the Form 1. He says that some of the money related to a vehicle that he and his wife were purchasing from the principal. Forensic analysis of his mobile phone indicated a significant amount of evidence that connected him to the use, and supply of illicit drugs; they included a number of photographs.

7. One photograph, taken on 9 February 2018, depicts a white crystal rock on a set of digital scales. The scales are reading 15.54 grams. This evidence is the subject of the supply count now before the Court.

8. The police task force also monitored messages, texts and telephone calls between his principal and others involved in the principal's drug distribution network, they included this offender. Four instances involving this offender are documented. They make up the ongoing supply of methylamphetamine for financial reward count:

1. On 31 January 2018, 3.5 grams for $650.

2. On 2 February, 1 gram for $150.

3. On 7 February 2018, 1.75 grams for $350, and

4. On 7 February 2018, 1.5 grams for $300.

The total amount of the methylamphetamine supplied was 7.7 grams. The total financial reward expected was $1,450.

9. Other text messages located in Owen’s phone indicate that he had contact with others involved in the use and supply of prohibited drugs. The Crown submit that the additional material, while not the subject of separate charges, goes to the offender's moral culpability. It is accepted by Mr Steward, who appears for Owens, that all of the material before the court indicates that the two matters for sentence are not isolated incidents.

10. It is clear from all of the material before me that the offender chose to engage with his principal in the supply and distribution of illicit drugs in the community. His role was primarily that of a courier and that he expected some financial reward for what he was doing.

11. Generally where people are caught supplying and distributing illicit drugs in the community sentences of full-time imprisonment are imposed, as the statistics which have been put before me indicate. One reason for that is the explicit guidance given by the maximum penalties provided for by Parliament; another, is the general practice of the Court to apply principles going back to Clark's case in 1990: R v Clark (Court of Criminal Appeal (NSW), 15 March 1990, unreported).

12. Courts in matters such as this are required to impose deterrent sentences; sentences which by their harshness are meant to indicate to others in the community the consequences of choosing to engage in the sale and distribution of illicit drugs. The hope is that they and others may be dissuaded from so doing in the future. The apparent abject failure of the principle of deterrence in cases such as this has not deterred the Parliament from insisting on behalf of the community that the effort be continued to be made by judges; and judges must apply the law. If the legislation calls for deterrent sentences, deterrent sentence should be imposed: s 3A (b) Crimes (Sentencing Procedure) Act 1999.

13. I sometimes prefer the word "retribution" rather than deterrence, because the community expects that those who prey upon the community by distributing illicit drugs be harshly punished. Whatever the label, heavy penalties are to be expected by anyone who seeks to traffic in illicit drugs, even in small amounts. One purpose for introducing the ongoing supply drug offence was to target those, such as this offender, who are used by those further up the supply chain to take the risks by regularly supplying small amounts, in an attempt to dissuade them from doing so.

14. A rationale for all of this is the fact that the sale and distribution of illicit drugs is a principal source of crime in the community. It is not just the destruction of users' lives and family lives that drugs cause, but the criminalisation of some drugs enables considerable illicit funds to be generated by their sale. This in turn leads some to use the profits to fund other crimes and attracts other crimes. There is both a personal cost from the use of the drugs the distributed in the community and a significant economic and extended criminal cost to the community from the criminalisation of the drug.

15. Since Clark's case the Court of Criminal Appeal in this state, taking appropriate guidance from the High Court of Australia, has made it clear that while, when sentencing, judges of this court must accept and apply the guidance offered by superior courts, judicial sentencing discretion should not be unduly constrained: EF v R [2015] NSWCA 36; Robertson [2017] NSWCCA 205.

16. Courts must give full and proper consideration to a number of factors, the first being the circumstances of the offender, the second the circumstances of the offence. Every offender is individual and entitled to an individual approach to sentencing, not a blanket one. But, as Simpson JA pointed out in Robertson, sentencing courts must nevertheless still give proper consideration to the guidance offered by past sentencing decisions.

17. Effectively, what those decisions now do is allow a court to take advantage of the changes to the non-full-time custodial system recently brought into operation and consider whether a deterrent sentence and harsh sentence falling short of full-time imprisonment could apply to the particular circumstances of the offence and the offender. That is what I have been urged by Mr Steward to do today.

18. The basis for that submission is twofold. The first is the material that has been put forward on behalf of the offender. He did not give evidence, but I have a report from a respected psychologist, Bianca Frahm, 22 January 2019: exhibit 1.

19. Her report sets out Owen’s personal and family history. One source of employment brought him into contact with the principal in this matter. He has fallen foul of the law. He has an apparently entrenched disrespect for the driving laws of this state, in particular the orders of a court saying he should not drive. He has been punished for driving while disqualified on a number of occasions.

20. There are also a number of other matters on his record but they are of a different order than the matter for sentence today. He is not entitled to the leniency often extended to first offenders. He has sought, in his own way, to provide for his family, but it is clear that under the influence and perhaps at the urging of his principal, he chose the easy course for obtaining funds and that significantly may have something to do with the fact that he himself was using the product he was selling.

21. Ms Frahm's testing indicates that Owens has an attention deficit hyperactivity disorder problem, which can lead to; a poor ability to focus, impulsive decision-making, a poor ability to self-manage, and impulsivity without thought of potential consequences. The matters leading to his arrest in this matter are ample demonstration of that diagnosis.

22. Ms Frahm recommends that he be given assistance with; his illicit drug abuse problem by counselling, that he be subject to urine analysis, and that he engage in cognitive behaviour therapy and psychotherapy to address his psychological problems. At the same time she notes that he is proud, justifiably, of the bonds he has with his family and his capacity to work legitimately in the community.

23. Owens’ arrest was a catalyst for an apparent change in his attitude. I say "apparent" because there is one matter that is referred to in Exhibit B that indicates that he will opportunistically, and against the interests, in a sense, seek to minimise offending behaviour or avoid the consequences of his offending. At the same time, the material in exhibit B shows that he has chosen to make a complete break from his associations with his principal and others. The material indicates that he has and will provide reliable, correct assistance of high value.

24. After discussion with the parties, it is accepted that the past value of that material justifies a reduction of 10% in the otherwise appropriate sentence, and the promise of future assistance justifies a reduction of 15% in the otherwise appropriate sentence: s 23 Crimes (Sentencing Procedure) Act 1999. It also appears he has learnt a lesson from the just over a month he spent in custody, it has had a specific deterrent effect. I am prepared to accept, even though he did not give evidence, such that he does not wish to return to gaol.

25. There are two matters before the Court. The total reduction, which I will roll up to 40%, given his early and timely pleas of guilty, means that individually sentences of less than two years can be imposed and collectively a sentence of three years can be imposed. I then have to consider whether all of the interests of the offender but importantly the community can be met by that sentencing being served in the community.

26. Intensive Corrections Orders carry with them a degree of leniency but they are also meant to be harsh and deterrent penalties. Some community service will be required above and beyond what he has promised the police. If he is as good a worker as he says, he will not have any trouble completing that community service. He will be required to engage in the programs recommended by Community Corrections, specifically alcohol and other drug assessment, mental health assessments, and restrictions on his associates, but I will leave the details of that to Community Corrections.

27. A Court Duty report was prepared today by Ms Hallinan. It summarises most of the material before me and indicates a willingness to engage with Community Corrections. Owens should have turned his life around a bit earlier. Today I will give him the opportunity to do so. If he fails in that attempt or does not obey the directions of Community Corrections disciplinary action will be taken. It could lead to him being returned to custody for the balance of the term that I am about to impose.

Orders

28. In relation to the two matters for sentence, so far as the supply is concerned had it not been for your plea of guilty and assistance, a sentence of three years would have been imposed. I indicate a sentence of 1 year 9 months.

29. For the second matter, the ongoing supply, taking into account the matter on the Form 1, had it not been for your plea of guilty and its utilitarian value, a sentence of three years and three months would have been imposed. Taking into account a 40% reduction, that is a sentence indicated of 1 year 11 months.

30. A sentence of 2 years 6 months was required. I reduce that sentence by 1 month to take into account the time served.

31. There will be a sentence of 2 years 5 months from today's date. That sentence is to be served by Intensive Correction in the community in accord with the Crimes (Administration of Sentence) Act 1999 for a period of 2 years 5 months. The sentence will commence on 13 June 2019. You are to report within seven days to the Community Corrections Office at Wollongong so that that order can take effect.

32. The standard conditions of the order apply. The following additional conditions apply:

1. A community service work condition requiring the performance of community service work for 200 hours

2. You engage in any program recommended or advised by Community Corrections

33. I make a drug destruction order. The police don't have to comply with it until the end of the matter with the principal.

34. I have already made the confiscation order.

35. I would ask the press who are in Court and may be reporting this matter, not to publicise the fact of Owens’ assistance. A non-publication order applies to that part of these proceedings. In any publications relating to this matter Owens is to be referred to by a pseudonym. Identifying material will be removed from any published version of the judgement other than that necessary for related court proceedings of co-offenders or Court of Criminal Appeal.

36. Exhibit B is to be sealed, kept with the court papers. It is only to be opened on order of a judicial officer.

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Decision last updated: 27 November 2019