R v Parker (No 3)

[2018] NSWSC 1132

Supreme Court

New South Wales

Medium Neutral Citation:	R v Parker (No 3) [2018] NSWSC 1132
Hearing dates:	19 July 2018
Date of orders:	19 July 2018
Decision date:	19 July 2018
Before:	Adamson J
Decision:	(1) Order that Mark Patrick Parker be convicted of the offence of supply prohibited drugs, namely heroin, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). (2) Order, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), that the proceedings be disposed of without imposing any other penalty.
Catchwords:	SENTENCING — Relevant factors on sentence —Availability of disposal without imposition of any other penalty where significant period spent on remand   SENTENCING – Relevance of jurisdictional maximum penalty in Local Court where index offence only dealt with on indictment because of associated strictly indictable offence of manslaughter
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) ss 9, 10A, 12, 24 Drug Misuse and Trafficking Act 1985 (NSW) ss 25, 32
Cases Cited:	Veen (No 2) v The Queen (1988) 164 CLR 465; [1988] HCA 14
Category:	Sentence
Parties:	Regina (Crown) Mark Patrick Parker (Offender)
Representation:	Counsel: C M Everson (Crown) E Ozen (Offender)   Solicitors: Director of Public Prosecutions NSW (Crown) Legal Aid NSW (Offender)
File Number(s):	2017/116828
Publication restriction:	None

Judgment: EX TEMPORE

Introduction

1. Mr Parker stands to be sentenced for an offence of supply a prohibited drug, namely heroin, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (the supply offence).

2. The supply offence was committed on 23 June 2016 when Mr Parker supplied heroin to Allan McBride. After having being supplied with the heroin, Mr McBride used the heroin intravenously and became unconscious. On 26 June 2016 he was pronounced dead of an overdose. This led, as set out below, to Mr Parker being charged with manslaughter. The Crown case was based on manslaughter by unlawful and dangerous act, the unlawful and dangerous act being the alleged injecting of Mr McBride by Mr Parker. Mr Parker was also found to be in possession of a prohibited drug (heroin) and also various goods. These matters led to his being charged with possession, goods in custody, supply and manslaughter. He pleaded guilty to all charges except the manslaughter charge.

The nature of the offence

3. It is accepted by the Crown that the amount of the supply was less than a small quantity, namely 1g. Mr Ozen, who appeared on behalf of the offender, contended that it was likely that the amount was approximately 0.3g or less, having regard to the weight of other packages found in the offender's possession for which he has already been sentenced (the possession offence). I accept that the amount of heroin supplied was substantially less than 1g.

Mr Parker’s criminal and custodial history

4. The sentencing task in this case is affected by a number of circumstances. First, Mr Parker was charged on indictment with the supply offence. The reason for this is that he was also charged with manslaughter, which is a strictly indictable offence. It was accepted by the Crown that, had the supply offence been charged separately, the Director of Public Prosecutions would not have elected for it to be dealt on indictment, having regard to the quantity. The supply offence would accordingly otherwise have been dealt with in the Local Court, where there is a jurisdictional limit of two years on any sentence which may be imposed by a magistrate.

5. Other matters of significance include the prior criminal history of Mr Parker and earlier sentences imposed on him, which are summarised below.

6. On 23 June 2016, when the supply offence was committed, Mr Parker was on parole in respect of a sentence which had commenced on 16 June 2015 and was due to expire on 15 December 2016 (the earlier sentence). The parole period for the earlier sentence commenced on 15 June 2016. On his release to parole, Mr Parker moved to Matthew Talbot Hostel. Matthew Talbot Hostel is a shelter in Woolloomooloo for homeless men, many of whom are afflicted by drug and alcohol addictions as well as mental illnesses.

7. Little more than a week after his release to parole, Mr Parker committed the offences of supply, goods in custody and possession. On 23 September 2016 he was arrested and charged with the possession and goods in custody offences. On 19 April 2017 he was charged with manslaughter of Mr McBride and the supply offence. Mr Parker pleaded guilty to the supply offence after committal but before trial. He pleaded not guilty to the charge of manslaughter. The jury returned its verdict of not guilty on that charge on 18 July 2018, at which time I granted bail to Mr Parker pending sentence for the supply offence.

8. Mr Parker was sentenced in the Local Court for the possession offence and goods in custody offence. In respect of each of these two offences, a sentence of a fixed term of two months’ imprisonment was imposed, commencing on 23 September 2016 and expiring on 22 November 2016. These sentences were wholly concurrent and were backdated to commence at the time of his arrest on 23 September 2016. The breach of parole was dealt with by the imposition of a further term in custody of 5 months and one day (from 23 September 2016) which expired on 23 February 2017.

9. Mr Parker was at liberty for a period from 23 February 2017 until 19 April 2017, when, as referred to above, he was arrested and charged with supply and manslaughter. He remained in custody on remand until released on bail on 18 July 2018.

10. The maximum penalty for an offence against s 25(1) of the Drug Misuse and the Trafficking Act is a term of imprisonment of 15 years: s 32(1) of the Drug Misuse and the Trafficking Act. However, in the circumstances which I have outlined above, that maximum, though strictly applicable, has relatively limited relevance because the offence would have been dealt with in the Local Court, and Mr Parker is not to be prejudiced, having been found not guilty by the jury of the offence of manslaughter which led the offence of supply being dealt with on indictment.

11. Mr Parker has a lengthy criminal history which is largely, if not exclusively, the result of his addiction to prohibited drugs, which began when he was still a minor. On many occasions custodial sentences have been imposed. As referred to above, the offender was on parole at the time of this offence.

Subjective matters

12. Mr Parker is now 52-years old. He did not give evidence in the sentence hearing. However, Mr Ozen informed me of his instructions from Mr Parker, which I accept, that Mr Parker was very shocked by the death of Mr McBride, which was accepted to be as a consequence of the heroin which Mr Parker had supplied to him.

13. Mr Ozen has informed me that Mr Parker has, by reason of Mr McBride's death, realised that unless he stops using drugs there are only two possible scenarios for him: either he will reoffend and be sent back to gaol, or he will die of an overdose, as occurred with Mr McBride. I understand that Mr Chick, who was to be one of the Crown witnesses, has also died of an overdose in the interim.

14. Mr Ozen informed me that his instructing solicitor, Mr Spohr, made enquiries of the Long Bay Prison Hospital and was informed by a welfare officer that there were no disciplinary problems whilst Mr Parker was in gaol, and there was no indication that he used drugs during his period in custody from 19 April 2017 to date. Mr Ozen has informed me that prohibited drugs are available in New South Wales Correction Centres. Accordingly the fact that there is no positive urine analysis report in respect of Mr Parker over the most recent period in custody provides some indication that he has kept to his resolution to stop using prohibited drugs.

15. In considering the appropriate sentence to be imposed in the present case I must take into account the time spent in custody: s 24 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The principle of totality applies, particularly having regard to the circumstances taken into account by the magistrate who imposed a sentence on Mr Parker for the possession offence, which are evident from the Facts Sheet. However, if the supply offence were regarded in isolation, a custodial sentence for a period of 15 months (being the period of custody from 19 April 2017 to date), would, in my view, exceed the range of appropriate sentences for this offence, even having regard to the offender’s criminal history and the fact that the supply offence was committed on parole. It would be outside the range because of the very small quantity supplied.

Sentencing options

16. Accordingly, there is a number of choices open to me. I could impose a sentence on Mr Parker to date from 19 April 2017, and stipulate an end date of either 18 July 2018 (being the day on which he was released to bail following the return of the jury’s not guilty verdict) or some earlier date. There is a degree of artificiality in such a course. Further, I am sure Mr Parker is concerned more about the future than the past. Further, no-one can return to him those days that he has spent on remand.

17. The other alternatives for me are to direct Mr Parker to enter into a good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act, or to exercise my power under s 10A of that Act to convict Mr Parker of the supply offence (in accordance with his plea) but dispose of the proceedings without imposing any other penalty. It would also be open to me to impose a suspended sentence under s 12 of the Crimes (Sentencing Procedure) Act and direct that Mr Parker be released on condition that he enter into a bond. It was not suggested that any other sentencing options, such as community service orders or a fine, would be appropriate. Accordingly, I put them to one side.

18. Mr Crown submitted that it would be desirable for a s 9 bond to be ordered because that would give Mr Parker the benefit of some supervision while he is at liberty. He submitted that this would serve the dual purposes of rehabilitation of the offender as well as protection of the public. The Crown accepted that a s 9 bond would afford greater flexibility since a s 12 bond requires there to be a sentence of imprisonment which is suspended.

19. Mr Parker has told me through Mr Ozen that he plans to leave Sydney and settle at an address in Maitland where he will be required to pay $100 per week rent. He already has a Ford motor vehicle and some funds in the bank, which are likely to be augmented by a further sum which will be made available relatively soon. Mr Ozen tells me that Mr Parker wishes to have new teeth, as his own teeth are in a poor state by reason of his long-term use of the drug heroin. He is presently on the disability support pension because of a diagnosed condition of bipolar disorder. Mr Ozen tells me, and I can see from Mr Parker’s appearance, that the offender is concerned about his physical health, and has taken such steps as are available to him in custody to maintain and develop his physical health and fitness by exercise and abstention from prohibited drugs. Mr Ozen says that there is little point in ordering Mr Parker to enter into a good behaviour bond under s 9 since he is able to plan for his future and has already done so in the short time available since his release.

20. Mr Ozen reminded me that whilst supervision may be thought to advance the purposes of sentencing, it is a fundamental principle of law that a sentence must be proportional to the crime and that that matters of protection and dangerousness ought not distort that principle by imposing a heavier sentence than one that is warranted.

Consideration and conclusion

21. I have given consideration to the circumstance that a good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act is seen as a less onerous and less serious sentencing option than a custodial sentence. Nonetheless, the ordering of a s 9 bond would subject Mr Parker to a further restriction on his liberty, in addition to the 15 months which he has already spent in custody on remand.

22. The High Court said in Veen (No 2) v The Queen (1988) 164 CLR 465 at 474-475; [1988] HCA 14 that protection of the community cannot justify a sentence which is out of proportion to the seriousness of the offence committed. This principle is of significance in the present case. The imposition of a bond may protect the community and advance the offender’s prospects of rehabilitation, but it constitutes an additional penalty which, in the context of the time already spent on remand, would be, in my view, disproportionate to the seriousness of the supply offence. I regard the objective seriousness of that offence as being relatively low.

23. In these circumstances, I am disposed to exercise my power under s 10A of the Crimes (Sentencing Procedure) Act to make the following orders:

1. Order that Mark Patrick Parker be convicted of the offence of supply prohibited drugs, namely heroin, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW).

2. Order, pursuant to s 10A of the Crimes (Sentencing Procedure) Act1999 (NSW), that the proceedings be disposed of without imposing any other penalty.

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Decision last updated: 20 July 2018