R v Paxton

[2009] NSWDC 326

CITATION:	R v PAXTON [2009] NSWDC 326
HEARING DATE(S):	6 November 2009
JUDGMENT DATE:	6 November 2009
JURISDICTION:	District Court Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	For the offence of receiving I set a fixed term of imprisonment of three years to date from 10 May 2008. For the offence of supplying a commercial quantity of cocaine I set a fixed term of imprisonment of eight years to date from 10 May 2009. For the offence of supplying a large commercial quantity of methylamphetamine I set a fixed term of imprisonment of twelve years to date from 10 May 2011. For the offence of supplying a large commercial quantity of ecstasy I set a non-parole period of sixteen years, that will commence on 10 May 2013, and a balance of parole of seven years. This means that the offender will be eligible to be released to parole on 9 May 2029. The overall sentence is one of a non-parole period of twenty-one years with a head sentence of twenty-eight years. In each case I have taken into account the relevant form 1 matters.
CATCHWORDS:	Criminal Law - Sentence - Form 1 - Plea of guilty - Supply a commercial quantity of cocaine - Supply a large commercial quantity of methylamphetamine - Supply a large commercial quantity of ecstasy - Receiving - Supply to pay debts
CASES CITED:	R v Kalache (2000) 111 A Crim R 152 Regina v Walsh and Little [2005] NSWSC 125
PARTIES:	The Crown Mark Allan Paxton
FILE NUMBER(S):	DC 2009/8173
COUNSEL:	Mr S Cairns - Offender
SOLICITORS:	NSW DPP

SENTENCE

1 HIS HONOUR: Mark Allan Paxton appears to be sentenced after having supplied enormous quantities of drugs, quantities rarely seen in the courts. Overall he supplied about eight and a half kilograms of ecstasy, 335 grams of cocaine, 2.3 kilograms of methylamphetamine, almost half a kilo of an admixture of heroin, and almost 6 kilograms of cannabis. Those figures alone show the enormous extent of Mr Paxton’s criminality.

2 In looking at the appropriate sentence to impose upon him there is not much assistance that can be gained from other cases due to the fortunate rarity of offending of this extent. The crown referred me to the case of R v Kalache (2000) 111 A Crim R 152, and also the case of Regina v Walsh and Little [2005] NSWSC 125 who supplied and manufactured drugs, and more than Mr Paxton was involved in. But it is to be remembered that they were all dealt with before the introduction of standard non-parole periods, a significant factor affecting the sentences I will ultimately announce on Mr Paxton.

3 The offender’s criminality, in so far as I am concerned commenced on 14 March 2008. Police had been interested in the activities of two men, Orchard and Burnett. Burnett was a keen drug supplier but needed to obtain substantial quantities of drugs in order to pass them on. He had been operating in the Lake Macquarie area but was having trouble identifying large scale suppliers in the area and so his contacts led him to Sydney.

4 On 14 March 2008 he met up with this offender. On this occasion the offender produced a small quantity of methylamphetamine in the form of ice. He told Burnett that he could obtain 15 ounces of ice for him and offered to sell that to him for $6,500 per ounce. It was agreed that he would sell and Burnett would buy that quantity of the drug for that price.

5 The two men thus commenced the business of drug supply and drug purchase. The offender was able to supply various quantities of drugs, although he preferred to deal in larger quantities. He was also able to supply, as I have suggested in the opening of these remarks, different types of drugs. It is not an exaggeration to say that the offender appears to have been able to supply large quantities of whatever drug was sought. He was operating, in effect, a one-stop shop.

6 After their meeting on 14 March, police were able to intercept a number of telephone calls and text messages in which the supply of the methylamphetamine which had been agreed to be supplied was discussed. Arrangements were made, such that on 17 March 2008 Burnett went to the offender’s home to buy 10 ounces of methylamphetamine in ice form and hand over $75,000 for that purpose. The offender telephoned a contact and the money was picked up. Later that morning the 10 ounces was delivered. The drug was supplied to the offender, who passed it on to Burnett.

7 Whilst Burnett was at the offender’s home waiting for the drug to be delivered the offender explained to Burnett that he had a range of different types of drugs available for sale. He showed Burnett some ecstasy tablets. He told him that he could sell the tablets for $11 each if a minimum of 1,000 were purchased, or $10 each if a minimum of 10,000 were purchased. Ultimately several thousand MDMA tablets were located when the offender’s premises were searched later on. The large majority of them were packaged in 1,000 tablet lots, which indicates the large scale of the offender’s supplying.

8 As well as telling Burnett that he could supply ecstasy, he also told him he could supply cocaine. He produced a sample bag, identifying it as cocaine, and offered to sell cocaine by the ounce as well.

9 He also said that he could sell LSD and produced three or four small pieces of cardboard. The police did find LSD upon searching the offender’s premises but the offender faces no charges in relation to it, presumably because of the small quantity involved.

10 The offender also told Burnett that he could supply heroin. He produced a Tupperware container which appeared to contain a white powder with rice grains mixed in. The offender explained that the heroin had been gluggy so he, that is the offender himself, had mixed rice into it to absorb the moisture. The offender was thus doing more than simply taking drugs from person A and giving them to person B.

11 Further contact was made between Burnett and the offender relating to further drug supplies. At a later meeting Burnett was offered by the offender a sample of methylamphetamine. He tested it and decided that it was of such high quality that he wanted 18 ounces of it or half a kilogram. The offender said he could supply that quantity for $115,000.

12 The offender’s interests extended beyond drugs as well. It appears that in January a large quantity of jewellery was stolen from a jewellery store in the Queen Victoria Building in Sydney. Whilst Burnett was at the offender’s house the offender showed him some of the jewellery which had been stolen from that jewellery store. The offender was offering the items for sale. Burnett bought a ring. When police searched Burnett’s house they discovered that ring, and when they searched the offender’s house they discovered a large quantity of jewellery, $104,000 worth.

13 On 15 April Burnett went to the offender with $117,000. Although he had been quoted the price of $115,000, he told the person to whom he was going to sell the drugs of an inflated price so he could make a profit on the deal. Contact was made between Burnett and the offender, until ultimately when Burnett went to the offender’s house, the offender supplied him 18 ounces for $115,000. Whilst there the offender told Burnett that he could supply another 8 ounces if he was interested in buying them. Burnett said that he would discuss the matter with someone else and get back to him.

14 Whilst there they also discussed whether the offender could supply cannabis. The offender said that he was getting a couple of pounds the following day. Over the course of the next few days they had coded discussions relating to both the jewellery and the amphetamine.

15 In the meantime, Burnett, in discussions with the person to whom he supplied, had decided that he wanted to purchase the heroin which had been mixed with the rice. There was therefore a discussion between the offender and Burnett on 17 April in which arrangements were made for the heroin to be supplied.

16 On 9 May a further supply of methylamphetamine took place, this time 550 grams for $110,000. Whilst at the house, Burnett asked whether he could buy the cannabis that had been mentioned earlier. The offender obtained pound bags of cannabis, ten of them in total, and they carried this to the car that Burnett was driving.

17 On 9 May the offender was arrested and he has been in custody since 10 May.

18 Police searched the offender’s premises and discovered a plethora of drugs in various locations. Drugs of various types were located throughout the house. They were packaged ready for sale, but not ready for small street-type sales. This was large scale drug dealing. In total there were, for example, 38,700 tablets of ecstasy. Police also discovered items used for the packaging and cutting of various drugs, as well as $2,700 in Australian currency, which is clearly the result of the offender’s drug supplying activities.

19 The offender thus faces a number of very serious charges. The most serious is, of course, supplying a large commercial quantity of ecstasy relating to 8.497 kilograms of that drug. The maximum penalty for that offence is life imprisonment and it carries with it a standard non-parole period of fifteen years. When I sentence the offender for that offence, he asks that I take two other matters into account; the supply of a commercial quantity of heroin and dealing with the proceeds of crime, that relating to the $2,700.

20 He is also to be sentenced for the supply of a commercial quantity of cocaine. That also carries a standard non-parole period but this time of ten years with a maximum penalty of twenty years.

21 The third count relates to methylamphetamine. The offender is to be sentenced for supplying a large commercial quantity of that drug, 2.318 kilograms of the substance and, once more, there are two matters on a form 1, each relating to the supply of cannabis.

22 And finally, the offender is to be sentenced for receiving $104,000 worth of jewellery.

23 The offender had an unremarkable upbringing. He lived with his parents, his brother and his sister. He left school at fifteen, halfway through Year 9, and then spent fifteen years working as a deckhand on Sydney ferries. Three ferry captains have provided references in support of the offender’s good character at that time. They say things such as:

“When I received the information regarding Mark and the charges I was bewildered and saddened that Mark would be involved in such activities. I find this out of character.”

24 The three ferry masters are no doubt shocked at what they have learnt about the offender’s substantial wrongdoing.

25 After the offender left Sydney Ferries he worked roofing for a while and then whilst living in Redfern started using ice. This was a year or a year and a half before his arrest. It was not long before he was addicted and got into debt because he was using ice every day to deal with his depression but unable to work because a friend of his whom he relied on for transport lost his licence. He accumulated a fairly modest debt of $5,000 or $6,000 and was told by his drug suppliers who had been supplying him on credit that he could pay off that debt by assisting them in their drug supply activities. He says this went on for four or five months until he was arrested.

26 The offender tried to minimise the extent of his criminality by saying that all that he was really doing was providing a house for the drugs to be left at. He said that, “They would leave stuff at my house.” This significantly understates the offender’s conduct. He provided much more than simply premises. It was his job, which he seems to have enthusiastically accepted, to sell the drugs. He was tasked with much more than providing the premises. He was a drug dealer, not simply a drug minder.

27 The offender pleaded guilty at the Local Court. It was not at the earliest opportunity but it was an early plea nevertheless. In order to reflect the utilitarian value of his plea of guilty, I will discount the sentence I would otherwise impose by 20 per cent. This is a substantial discount to the offender, given the lengthy period of imprisonment which he must necessarily serve.

28 I mentioned that three of the offences have standard non-parole periods. Of course, they are not of direct application because of the offender’s pleas of guilty but they remain as a guidepost. I am satisfied that the offence involving ecstasy is in the upper range of objective seriousness of offences of that type. The quantity involved, seventeen times the large commercial quantity, is all that really needs to be referred to as justifying that finding.

29 As far as the other matters are concerned, I note that the methylamphetamine supply matter involved two and a half times the large commercial quantity, and so I find that objectively that is above the mid range.

30 In relation to the remaining matter of supplying the cocaine, that is at the mid range.

31 Of course, standard non-parole periods are difficult to apply when there must necessarily be partial accumulation. Nevertheless, as I have said, I have had regard to the standard non-parole periods as a guidepost. They indicate with some considerable force the attitude that the legislature takes to large scale drug supply offences. As I mentioned before, when a comparison is made between the overall sentence I will ultimately impose on Mr Paxton and other large scale drug suppliers or drug manufacturers dealt with before standard non-parole periods were introduced, it must be remembered that it was the clear intention of the legislature that sentences for standard non-parole period matters would increase as a result of the change in the law.

32 Let me say something in general about why the legislature has responded in the way it has to offences of this kind. The extent to which the community suffers through offences of this type cannot really be underestimated. Those of us who have been involved in the criminal law for many years understand the close relationship between a large proportion of offending and drug use, drug addiction and drug supply. There is barely a person appearing for sentence for a charge of armed robbery, break enter and steal, or even shoplifting who does not say that their need for money arose out of their need to fund their addiction. All of us suffer because of offences committed by people like the offender, not just those who become addicted to drugs.

33 Burnett was sentenced in this court. However, he was sentenced for a different offence and a single offence and received a substantial discount for assisting the authorities. In those circumstances, there is no real issue of parity that applies.

34 The offender gave evidence. The Crown asked him to name other people involved in the operation and he refused to do so because he said that he was in fear of his life and was worried for the safety of his family. I want to make it clear that the offender is not to be punished for the attitude he took. It simply means that he does not get a discount. It also perhaps means that any finding of remorse might have been harder to make but, in any case, there was no evidence of any remorse expressed by the offender, at least as far as s 21A is concerned.

35 The offender said that he went into this so that he could pay off his debt. Whether or not that was initially the case, it is clear that the offender adopted his role enthusiastically. I do not accept on the balance of probabilities that the offender was going to stop once he had paid his debt off. The offender agreed that he was not living a life of poverty. If the offender’s sole motivation had been to pay off the debt, one might have expected that he would have taken other steps to have reduced the debt apart from simply supplying drugs. The offender did this for financial gain in any case. It may not have been the case where he was a non-user dealer involved in this operation only because of the financial reward it could bring him, but it was nevertheless a financial gain to him to be able to pay off his debt.

36 It is never a pleasant task to impose a lengthy sentence on someone as young as Mr Paxton but it is necessary to do so. General deterrence is of prime importance in cases of this kind. The money involved in drug supplying provides a powerful incentive for potential drug suppliers to put to one side any qualms they might have about the harm they are causing individual drug users and the community in general. Offenders like Mr Paxton must understand that if they choose to involve themselves in drug supply, especially to the extent that Mr Paxton did, they will go to gaol for a very long time. The ability of courts to respond when offences of this kind are detected is limited. The courts have rather blunt tools, but they must use them when they can in order to perform the ultimate function of protecting the society in which we live. For this reason, very lengthy sentences will now be imposed upon Mr Paxton.

37 For the offence of receiving I set a fixed term of imprisonment of three years to date from 10 May 2008.

38 For the offence of supplying a commercial quantity of cocaine I set a fixed term of imprisonment of eight years to date from 10 May 2009.

39 For the offence of supplying a large commercial quantity of methylamphetamine I set a fixed term of imprisonment of twelve years to date from 10 May 2011.

40 For the offence of supplying a large commercial quantity of ecstasy I set a non-parole period of sixteen years, that will commence on 10 May 2013, and a balance of parole of seven years. This means that the offender will be eligible to be released to parole on 9 May 2029.

41 The overall sentence is one of a non-parole period of twenty-one years with a head sentence of twenty-eight years.

42 In each case I have taken into account the relevant form 1 matters.

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