R v Paul Edward Dumas

[2016] NSWDC 165

District Court

New South Wales

Medium Neutral Citation:

R v Paul Edward Dumas [2016] NSWDC 165

Hearing dates:

10 August 2016

Decision date:

12 August 2016

Jurisdiction:

Criminal

Before:

Mahony SC DCJ

Decision:

Full-time custodial sentence. For orders see [47]

Catchwords:

Supply prohibited drug; indictable quantity of heroin

Legislation Cited:

Confiscation of Proceeds of Crime Act 1989
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1986

Cases Cited:

Fitzpatrick v R [2010] NSWCCA 26
Pearce v R (1998) 194 CLR 610
R v Hemsley [2004] NSWCCA 228
R v Wong [1999] NSWCCA 420
Veen v R No. 2 (1998) 164 CLR 465

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
Paul Edward Dumas (Offender)

Representation:

Counsel:

B Queenan (Crown)
R Jankowski (Offender)

 

File Number(s):

15/208928

Publication restriction:

Nil

REMARKS ON SENTENCE

1. The offender was committed for sentence on 3 November 2015 from Taree Local Court. He entered a plea of guilty at the earliest opportunity to one count of supply prohibited drug of greater than indictable quantity, namely, heroin, pursuant to s 25(1) of the Drug Misuse and Trafficking Act 1986 (“DMTA”).

2. The offence carries a maximum penalty of 15 years imprisonment and/or 2,000 penalty units. The offender has also asked that three drug possession charges be dealt with on a Form 1.

3. The offender has spent one month and 27 days in custody since his arrest on 16 July 2015.

The sentence hearing

4. The sentence hearing took place on 10 August 2016. The Crown bundle became Ex A. It contained a Statement of Agreed Facts relating to the supply by the offender of heroin between 2 June 2015 and 5 July 2015, during which a total quantity of 8.55 grams of heroin was supplied to two co‑offenders, namely, Craig Plane and Sarah Bowman. The drug was supplied in a total of 285 caps containing approximately 0.03 grams per cap.

5. The Agreed Facts may be summarised as follows. In January 2015 a special operation team targeted the supply of heroin by Mr Plane and Ms Bowman in Taree. A telecommunications interception warrant was granted in relation to a telephone service used by the co-offenders, and during the period of the warrant, the offender was identified as a person supplying heroin to them for on‑supply. Surveillance of the co-offenders revealed that the offender was one of two suppliers to his co-offenders. Conversations were recorded in which the offender discussed supply of heroin with his co‑offenders. On each occasion of supply, the offender delivered 50 caps to the co‑offenders and on each occasion they would pay him for 40 caps. The co‑offenders would then retain the profit made by them for the remaining 10 caps. For each supply the offender received $2,000.00. The arrangement was in place for a number of months. Relevantly, supplies took place on 3 June 2015 (50 caps), 18 June 2015 (150 caps), 5 July 2015 (85 caps), amounting to a total of 285 caps.

6. Following his arrest on 16 July 2015, a search warrant was executed at premises in Taree occupied by the offender and his partner. The following prohibited drugs were located within the premises:

Methylamphetamine weighing 0.4 grams (Sequence 2 on the Form 1)

Cannabis weighing 8.5 grams (Sequence 3 on the Form 1)

Vials of testosterone (Sequence 4 on the Form 1).

7. Exhibit A contained the offender’s criminal record which was extensive, commencing in 1996 in the Taree Children’s Court. Ignoring the Children’s Court matters, it contained numerous offences of destroying property, assault occasioning actual bodily harm; resisting officer in execution of duty; possession of prohibited drugs; possession of equipment for administering prohibited drugs; goods in personal custody suspected of being stolen; aggravated break and enter and commit serious indictable offence, for which he was imprisoned for 4 years with a non-parole period commencing 19 December 2005; robbery, for which he was imprisoned for 2 years with a non‑parole period of 12 months commencing 11 June 2009; wound with intent to cause grievous bodily harm for which he was imprisoned for 4 years with a non-parole period of 2 years and 3 months commencing 23 March 2011. He also has earlier offences of receiving stolen property (imprisonment one month commencing 2 February 2004) and affray, for which he was imprisoned for 5 months commencing 19 July 2005.

8. Exhibit A also contained a pre-sentence report under the hand of Ms Jayne Parker, dated 27 January 2016. The offender first came to the notice of Community Corrections in July 2000 for the purpose of a pre‑sentence assessment. On that occasion, a sentence of 200 hours of community service work was imposed, however, he failed to carry out that work and a warrant was issued. Since that time, the offender has been subject to numerous pre-sentence and pre-release reports, and periods of probation and parole supervision. Breach action was initiated on four occasions by virtue of his non-compliance and re-offending.

9. Whilst in custody in 2009, the offender completed a number of therapeutic programs which targeted violence and substance abuse. His most recent period of parole supervision expired in March 2015, and it was noted at the time that he had a very positive response to supervision. He had secured full time employment and maintained abstinence from illicit drugs. Unfortunately, he succumbed to the use of methylamphetamine and his use escalated leading to him being dismissed, notwithstanding that he was described as a good worker by his employer.

10. The report outlined a protracted history of substance dependence. He had commenced using illicit drugs at age 14 and by his mid-twenties his drug of choice was heroin. In 2013, whilst under supervision, he commenced a pharmacological program as a substitute for heroin and, with the benefit of counselling, he maintained abstinence from opiates. Unfortunately, he dabbled experimentally with ice in 2015 and his use quickly escalated to daily use and dependence. The subject offence was borne of his need to support his daily usage of methylamphetamine. His criminal conduct was not therefore profit driven.

11. The author of the report identified his criminogenic needs as:

• Education/employment

• Alcohol/drugs

12. He has continued to be fully compliant with his opiate treatment program, and the author considered that he would benefit from a period of supervision by Community Corrections, with case management strategies that would include:

• Maintain compliance with opiate treatment program

• Continue with alcohol and other drug counselling.

• Program participation in EQUIPS Addictions.

• Vocational and personal development program.

13. He was assessed as unsuitable for a community service order.

14. Exhibit A noted that Mr Plane and Ms Bowman pleaded guilty and were sentenced on a set of charges and facts substantially different to the offender. They each pleaded guilty to two counts of ongoing supply with additional matters on the Form 1. Mr Plane was sentenced to 18 months with a 12 months non-parole period on Count 1, and 2 years with a 12 months non-parole period on Count 2, which included matters to be taken into account on the Form 1. Both sentences were to be served concurrently. Ms Bowman was sentenced to 18 months on Count 1 and 2 years on Count 2, with an Intensive Correction Order ordered. The Crown bundle in respect of Mr Plane’s offending was tendered as Ex B and both the Agreed Facts and antecedent criminal history are significantly different from that of the offender.

The offender’s evidence

15. The offender tendered a report from Dr Christopher Bench, psychiatrist, dated 11 April 2016 (Ex 1), and a report from Dr A Baird, psychologist, dated 2 August 2016 (Ex 2). Dr Bench diagnosed the offender as suffering from a Poly-substance Dependence, Anti-social Personality Disorder, and Social Phobia. He had a past history of Substance-Induced Psychotic Disorder, however, he stated that he had no such difficulties for a considerable period of time. Dr Bench made a clinical judgment that the offender was likely to suffer borderline intellectual functioning, which meant that he would have been more likely to act without consideration for the consequences of his actions. Notwithstanding his capacity to carry out a degree of planning and organisation in his criminal conduct, it was Dr Bench’s opinion that:

“The most significant causative connection between his mental health conditions and the offending behaviour is his poly-substance dependence. It was noted both during the clinical evaluation and in the collateral materials, the offender freely acknowledged having engaged in his offending behaviour in order to pay for his significant methylamphetamine dependence. It is likely for this reason that he was unable to stick to his own decision to have his co‑accused’s cease selling drugs for him, as he was not able to put his own addiction to the side.”

16. Dr Bench recommended that the offender engage in a prolonged period of in‑patient rehabilitation, otherwise, if he continued to use drugs and alcohol, he would be a high risk of recidivism.

17. Dr Baird carried out a neuropsychological assessment on the offender, the main findings of which were significantly reduced performances for verbal and visual reasoning skills (extremely low and borderline impaired range respectively). There was evidence of cognitive dysfunction, primarily effecting verbal and executive functions, mediated by the left hemisphere and frontal related brain regions. He had never been prescribed any medication for his symptoms, and Dr Baird also recommended an in-patient drug rehabilitation program.

18. The offender gave evidence in which he adhered to his plea of guilty and agreed with the Agreed Facts. He said he had been truthful to both Dr Bench and Dr Baird when assessed by them, and gave evidence of his opiate substitution program in which he was taking bupremorphine for a period of three years, together with counselling from Ms Jenny Spittels.

19. The offender described his offending for the purpose of obtaining money to purchase methylamphetamine. He had applied for a residential rehabilitation program at Benelong Havens, however, had received no reply to his application. The offender was currently living with his mother, but in the future, wanted to move to Tweed Heads, and become a truck driver. He was now 34 years of age, and had four children, the youngest of whom was 18 months old. He was sharing time between his partner and mother, who was ill with emphysema and was awaiting a lung transplant. He cared for her by carrying out domestic duties and looking after her yard. He had been taking drugs for a period of some 20 years, since he was 14 years of age, and gave evidence that he considered that it was about time he moved on with his life.

20. In cross-examination, the offender gave evidence that he saw Ms Spittels for counselling two to three times per month. He had started the opiate replacement program upon his release to parole in June 2013. Since September 2015, he had used methylamphetamine on a couple of occasions. One of those was referred to in the report of Dr Bench.

21. The offender’s employment was terminated after an argument with his boss. He gave evidence that it was his own choice, but he started missing days at work because of his use of ice. The offender gave evidence that his work at the timber mill was the only time he had been employed in his life, and that he enjoyed working. He had not tried to obtain further employment because he was on bail, nor had he followed up his application to Benelong Havens. It was put to him that he was not taking his rehabilitation seriously, but he denied that. He had undergone drug and alcohol programs at Long Bay known as “Get Smart” and relapse prevention programs.

22. He agreed that the offence for which he had been imprisoned in 2011, namely, wound with intent, was motivated by his need to obtain drugs. When asked why he now considered the future would be brighter for him, he said:

“I can’t say that I have a brighter future. I was younger then and I’m now in my mid-thirties.”

23. The offender agreed that he had sold the heroin to support his ice habit, and it was put to him that it would have been easier for him, and more profitable if he had sold the heroin himself, to which he answered “I guess it would be”.

The Crown submissions

24. The Crown relied on a written detailed outline of submissions. With respect to the issue of parity, as far as the sentence of Mr Plane was concerned, the Crown submitted that the offender’s offence was more serious than that of Mr Plane, because of the weight of heroin involved (8.55 grams, compared to 4.5 grams for Mr Plane). Also significant was the role each of the men played. The offender was a level above Mr Plane in the chain of supply. Further, the offender’s criminal history was more serious than that of Mr Plane, and his most recent custody was for a drug related offence. Mr Plane had one supply offence in 2006 which was dealt with in the Local Court, and a criminal history which was far less serious than that of the offender, involving mainly traffic offences. The Crown therefore submitted that there was not much “parity between the co-offenders”.

25. With respect to the co-offender Bowman, the Crown submitted that there was no parity as she had no antecedents and there was no comparison between her offending and that of the offender here.

26. The written outline relied on by the Crown set out some general sentencing principles in respect of supply prohibited drugs offences referring to appellate decisions which made it quite clear that, unless there are truly exceptional circumstances present, a full time custodial sentence ought to be imposed wherever an offender has been substantially involved in the supply of prohibited drugs. The Crown submitted that the amount of drugs was not the determinant factor in assessing the seriousness of the offending, and the extent of the enterprise, the frequency of sales, and the role and level of involvement of the offender, as well as his state of knowledge and decision making power, were all important considerations in assessing the objective seriousness of the offending. General deterrence was also important in the sentencing process for drug offences.

27. The Crown submitted that the offending here constituted trafficking to a substantial degree, and that there were no factors present which would amount to exceptional circumstances. Further, the Crown submitted that the offender’s criminal record disentitled him to any leniency, and that there was nothing to warrant a finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (“C(SP)A”). The recent past had demonstrated that longer periods of parole had not assisted the offender with his rehabilitation, as he had relapsed into drug use and trafficking in order to feed his drug addiction.

Offender’s submissions

28. Learned counsel for the offender submitted that in respect of parity with the matter of Plane, there are only slightly less drugs involved in the co‑offender’s offending when all matters were taken into account, including those on the Form 1. It was submitted that the weight of drugs is one factor to be taken into account, and in the case of Plane, the supply had taken place over a longer period, namely, from January 2015 to July 2015, whereas the offending here took place over approximately one month.

29. Counsel also submitted that the offender here did not exercise any control over the way in which Plane and the other co-offender went about their supply business. Counsel characterised the role of the offender as being that of a user/dealer, not supplying just for profit, and therefore his role could not be described as more significant than that of Mr Plane.

30. It was further submitted that the offender had maintained two years employment before he was introduced to methylamphetamine, and his use thereof escalated very quickly. It was this addiction from which the offending, by way of supply of heroin, was borne.

31. Counsel referred the court to Fitzpatrick v R [2010] NSWCCA 26, where at [22], Harrison J said:

“22 The applicant referred to the decision of this Court in SS v R; JC v R [2009] NSWCCA 114, in which the Court reiterated the general rule that the fact of drug addiction is not a mitigating factor. The Court, however, noted that there were exceptions to this principle:

‘[102] The Judge misstating the general rule that the fact of drug addiction is not a mitigating factor: R v Henry (1999) 46 NSWLR 346. The occurrence of a drug addiction at a very young age has, however, been recognised as an exception to the general rule: R v Henry per Woods CJ at CL at [273]. As was said by Hulme J in R v Todorovic [2008] NSWCCA 49 at [58].

‘In R v Henry, this court considered at length and firmly rejected the proposition that, in general, addiction to drugs should be regarded as a mitigating factor. In doing so the Court recognised that there would be cases where the general rule would not apply, for example, where the addiction was the result of youth …’”

32. Here, Counsel submitted that since the age of 14, the offender had unabated drug problems, with very little intervention. His opiate substitution program had proved to be successful, however, his addiction to prohibited drugs from a young age was a relevant factor to take into account on sentencing. It also affected his ability to properly exercise sound judgment, referring to the report of Dr Bench, as referred to in [15] above. Further, his impaired intellectual capacity, as assessed by Dr Baird, was also relevant.

33. Counsel submitted that special circumstances were established here, where, on the clear evidence of both Dr Bench and Dr Baird, a longer period of parole was required for both drug and alcohol rehabilitation and relapse prevention rehabilitation.

34. Learned Counsel submitted that the offender was entitled to a utilitarian discount on sentence of 25% for his plea of guilty, as conceded by the Crown. His sentence also had to be backdated to reflect the time spent in custody. Further, it was submitted that the offender’s mental health issues reduced his moral culpability in the offending conduct and there may not be the same call for denunciation of his behaviour, therefore any punishment may be accordingly reduced, referring to R v Hemsley [2004] NSWCCA 228 at [33], per Sperling J.

35. Counsel referred to the subjective factors to be taken into account, including that the offender had the support of his partner, his four children and his mother. Mitigating factors included that his pre-sentence report had been very positive in respect of his employment, and his criminal history had few offences for drug related offences and only one offence of violence.

Determination

36. 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.”

37. I find that the offender was one level above the street dealer of the heroin supplied by him, but may still be characterised as a user/dealer, as his supply of heroin, which he did not use, being already on an opiate substitution program, was borne of his addiction to methylamphetamine, and the need for him to obtain money to buy that drug. He was therefore not dealing for the purpose of profit only. Having regard to the whole circumstances of the offending, including the amount of 8.55 grams of heroin, compared to a commercial quantity of 250 grams, I find that the objective seriousness of the offending was below the mid-range for an offence pursuant to s 25(1) of the DMTA. It was still serious offending, however, involving drug trafficking to a substantial degree. I am satisfied that the offending was borne out of the offender being addicted to methylamphetamine, for the purpose of facilitating his own addiction.

37. I have had regard to the maximum penalty of 15 years imprisonment and/or 2,000 penalty units as a guidepost in the sentencing process. The offender is entitled to a utilitarian discount for his early plea of guilty and a maximum discount of 25% should apply.

38. I accept that general deterrence is an important matter to be taken into account in drug supply offences (see R v Wong [1999] NSWCCA 420). I do not accept that specific deterrence is not relevant here, however, it is somewhat diminished by the fact that the offender suffered the mental health diagnoses outlined by Dr Bench, which would reduce his moral culpability for the offending.

39. I have had regard to the offender’s antecedent criminal history, which is extensive. In Veen v R (No. 2) (1998) 164 CLR 465 at 477 the plurality said:

“The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. The antecedent criminal history is relevant, however, to show that the incident offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In that case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.”

The offender clearly falls within the second category of offenders outlined above, and therefore is not entitled to any leniency as a result of his criminal record.

41. I do not accept the submissions made on behalf of the offender that the offending of the co-offender, Plane, was more significant than that of the offender here. The offender here, was supplying the heroin in large quantities to Mr Plane and his co-offender for them to sell at street level. The quantity of heroin supplied was also larger than that for which Mr Plane was sentenced. Without the offender’s supply, the amount of heroin disseminated by Plane and his co-offender would have significantly less. I do not accept the submission made on behalf of the offender that he did not exercise any control over the way in which Mr Plane and his co-offender went about their supply business. If the offender did control that business, the objective seriousness of the offending may have been characterised as more serious. In fact, the offender facilitated the manner in which Mr Plane and his co‑offender engaged in their business of supplying prohibited drugs.

42. I accept the Crown’s submission that the criminal antecedents of Mr Plane involved one offence of supply prohibited drugs in 2006, and otherwise comprised mainly traffic offences. It was therefore much less serious than the criminal history of the offender. In the circumstances, principles of parity have little work to do in the sentencing process here in respect of the offending of Mr Plane, and no role concerning the sentencing of Ms Bowman.

43. I have had regard to the principles of proportionality and totality referred to in Pearce v R (1998) 194 CLR 610 at [45].

44. I do not accept the Crown’s submission that a finding of special circumstances is not warranted here. The fact that the offender has undergone rehabilitation programs when in custody in 2009, which appear not to have been successful, is not the only consideration. Upon his release on parole in 2013, the offender did undergo rehabilitation and commenced an opiate substitution program successfully. For almost two years, he maintained, for the first time, full time employment and was regarded as a good employee by his employer. It was his relapse into methylamphetamine use, which he had not consumed before 2015, which led quickly to his addiction to that drug, from which the current criminal conduct was borne. For that reason, I find that the offender’s need for intervention, particularly by way of a residential in-patient rehabilitation program, as advocated by Dr Bench and supported by Dr Baird, together with relapse prevention programs, warrant a finding pursuant to s 44(2) of the C(SP)A of special circumstances in this case.

45. I am satisfied, having considered all possible alternatives, and as was fairly conceded by Counsel for the offender, that no penalty other than imprisonment is appropriate pursuant to s 5 of the C(SP)A. Having regard to the objective seriousness of the offending, and the offender’s antecedent criminal history, I am not satisfied that the subjective factors relied on by the offender should outweigh the need for general deterrence, and specific deterrence in the sentencing process. I therefore intend to sentence the offender to a term of imprisonment of 2 years and 6 months, but vary the ratio between the non-parole period and the head sentence by finding special circumstances, and impose a non-parole period of 15 months. The sentence will be backdated to reflect the time spent in custody, namely one month and 27 days from today.

46. In coming to that sentence, I have taken into account the matters on the Form 1 and have certified on the Form 1 that I have done so.

47. I make the following orders:

1. You are convicted of the offence of supply prohibited drug being an indictable quantity of heroin pursuant to s 25(1) of the DMTA 1986.

2. I sentence you to a non-parole period of 15 months imprisonment commencing on 15 June 2016 and expiring on 14 September 2017.

3. I impose a balance of sentence of 15 months imprisonment commencing on 15 September 2017 and expiring on 14 December 2018.

4. Your parole eligibility date is 14 September 2017.

5. I order the drugs the subject of the offence and the subject of the offences on the Form 1 to be destroyed.

6. Pursuant to S 29 (1) of the Confiscation of Proceeds of Crime Act 1989, the respondent Paul Dumas pay to the State of NSW a pecuniary penalty in the sum of $14,250.00.

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Decision last updated: 12 August 2016