R v Pearman

[2014] NSWDC 164

District Court

New South Wales

Medium Neutral Citation:	R v Pearman [2014] NSWDC 164
Hearing dates:	13 June 2014
Decision date:	13 June 2014
Before:	Berman SC DCJ
Decision:	Taking into account the sentences where the order for suspension has been revoked and the new sentences, the overall period of imprisonment consists of a non-parole period of 5 years and a head sentence of 7 years
Catchwords:	CRIMINAL LAW - Sentence - Offence committed while on a suspended sentence - Drug supply - Possession of a prohibited weapon - Taser - Dealing with the proceeds of crime
Legislation Cited:	Crimes (Sentencing Procedure) Act
Category:	Sentence
Parties:	The Crown John Ward Pearman
Representation:	The Director of Public Prosecutions Legal Aid Commission - Offender
File Number(s):	2013/187834 2011/321194

SENTENCE

1. HIS HONOUR: I gave John Ward Pearman the benefit of a suspended sentence on 7 June 2013. At the time I told him that if I was forced to send him to gaol he would only have himself to blame. I now am going to send him to gaol and it is entirely true that Mr Pearman only has himself to blame.

1. He came before me originally for offences involving drug supply and the possession of a prohibited weapon, namely a taser. I granted him bail under s 11 of the Crimes (Sentencing Procedure) Act to allow him to enter residential rehabilitation. He completed that program satisfactorily, and was in the community for some time before he came back before me on 7 June 2013 for sentence.

1. I have re-read my remarks on sentence from that day. There is a flavour of some scepticism about some of the evidence that was given to me about whether Mr Pearman had genuinely given up drugs completely. For that reason I made it a condition of the bond that he undergo regular urinalysis. It appears that he never got the chance to undergo regular urinalysis because only 12 days after I put him on a s 12 bond and warned him that he would go to gaol if he so much as used drugs, he was arrested in possession of drugs, which he had for the purposes of supply, and once again he was in possession of a prohibited weapon, namely a taser.

1. So a mere twelve days after I gave him the benefit of an order under s 12 of the Crimes (Sentencing Procedure) Act for two counts of supplying a prohibited drug and possessing a prohibited weapon, he committed another offence of supplying a prohibited drug and possessing a prohibited weapon. Mr Pearman has thumbed his nose at the law.

1. It is conceded, of course, that I must now revoke the order for suspension for the matters I dealt with in June 2013 and sentence him to imprisonment for the new offences. I will explain the circumstances of the new offences.

1. Police wanted to stop a car driven by the offender with his friend in the passenger seat. They wanted to subject Mr Pearman to a random breath test. It took some time for him to stop his vehicle. When they did, police, for obvious reasons, decided to search Mr Pearman and the vehicle.

1. Police found a large number of offending items. In particular they found 7.99 grams of methylamphetamine. Mr Pearman, by his plea of guilty, admits that he had that drug in his possession for the purposes of supply. Relatively small, though, that quantity is, it is to be noted that it was of quite high purity and that at the same time police discovered something in the order of $10,000 cash.

1. Police also found a small quantity of cocaine, a small quantity of heroin and a small quantity of cannabis. The possession of those drugs is on a form 1 attached to the offence of supplying the methylamphetamine..

1. Drug paraphernalia was found as well, syringes, a small spoon, scales and, most importantly for the purpose of the supply matter, large numbers of resealable bags. Police discovered that the taser was operational.

1. The offender has a lengthy criminal history. Not surprisingly he has also a history of drug use extending over some considerable period of time.

1. His upbringing was described as chaotic. He was sexually abused as a young boy. Indeed he told a psychiatrist that he attributes most of his history of substance abuse to the sexual abuse he experienced as a child and his attempts to block out memories of that terrible time.

1. After leaving school he had a large number of jobs and married and has two children who are, and have been for a while, in the custody of his parents.

1. What appears to have led to the cessation of his ability to be employed was a significant motorbike accident the offender suffered in 2005. He was significantly injured and has a number of ongoing consequences. He has persistent urinary incontinence, persistent lower back pain and pelvic pain.

1. The difficulty he has obtaining pain killing drugs, the difficulty he has obtaining incontinence pads and the embarrassing consequences mean that he will do his time in custody harder than would be the case if he were in the general prison population. I will take that matter significantly into account in his favour.

1. Also in the offender's favour is the circumstance that he did make a concerted effort to put his drug using days behind him. He completed the residential rehabilitation program when many people do not. He appears to have been for some indeterminate time, been able to remain drug free upon his release from that residential rehabilitation program. Those efforts are to be noted and they are to be rewarded. I have taken them into account in assessing the appropriate sentence to impose upon the offender for these new offences.

1. I note also that the offender pleaded guilty at the earliest opportunity. The sentences I impose upon these new matters will thus be 25% less than they would otherwise have been.

1. These are, of course, serious offences. As was conceded, general deterrence is of significant importance in offences of this kind. Time without number judges comment on the close relationship between drug use and crime in the community. Drug users can rarely fund their habits through lawful sources. Drug users tend to lie, cheat, deceive, rob, burgle and commit all manner of offences in their desperate need to obtain money to satisfy their desperate need for drugs. Drugs are terrible things. They greatly affect, in a terribly harmful way, the people who use them and they greatly affect the community in general and its individual members.

1. Drug dealing is an offence which almost always must have as its prime focus, general deterrence. But personal deterrence is also important in this matter. The offender's lengthy history of offending and his attitude towards the lenient sentence I imposed upon him demonstrate a need for him to have brought home to him, in the most concrete way, the consequences of his continuing criminal activity. The sentence I imposed upon him earlier focused on his rehabilitation. That was entirely unsuccessful.

1. As regards his conduct after I imposed the suspended sentence upon him, this time the focus must be on the offender's punishment and personal deterrence.

1. I note that the maximum penalties are significant. For supplying a prohibited drug, the maximum penalty is 15 years and for possession of the taser, the maximum penalty is 14 years. The taser matter also has a standard non parole period of 3 years. I have taken both the maximum penalties and where appropriate the standard non parole period into account in formulating the appropriate sentences in this case. My reasons for not imposing the standing non parole period appear in these remarks on sentence.

1. The sentence will date from 19 June 2013. That is the day on which the offender went into custody on these new matters. As I made clear when I dealt with Mr Pearman earlier, I took into account his pre-sentence custody and quasi custody when deciding the length of the sentences which were then suspended. So there is no justification for me backdating the sentences even further to take into account pre-sentence custody and quasi custody.

1. Mr Pearman presents as a man who was somewhat defeated by the circumstances in which he now finds himself. It is a terribly sad thing to see someone of his age going back to gaol for what must be a significant period of time. He has but one life to live and it is distressing to see him waste that life in the way he has been. That is especially so when the commencement of his drug use was in the circumstances that I have referred to. But ultimately it remains the case that Mr Pearman's decision to use drugs, Mr Pearman's decision to supply drugs and Mr Pearman's decision to arm himself with a taser, obviously prepared to use it as part of his drug dealing activities, are matters of personal choice.

1. I am not saying the choices are as easy for him as it is for those who are not addicted to drugs. It is a difficult choice. But Mr Pearman was given the opportunity to put his drug dealing days behind him. He failed to take it and he must be punished for the personal choice he made to commit these offences.

1. I will not make a finding of special circumstances in this case. There is no justification for an extended period of supervision on parole, especially in circumstances where the length of the sentence I am about to announce will give him adequate time to engage in any rehabilitation program he would wish to engage in upon the expiring of his non parole period.

1. The orders I make are these;

1. I revoke the order for suspension of the sentences previously imposed upon the offender and order that they date from 19 June 2013.

1. I set non parole periods as follows;

For the offence of possessing a taser, and to make it clear I am referring to the earlier matter, I impose a non-parole period of six months.

For the two offences of supply prohibited drug I impose a non-parole period of 18 months.

1. For the new offences I impose sentences as follows;

For the offence of dealing with the proceeds of crime appearing on the s 166 certificate, I impose a fixed term of imprisonment of one year to date from 19 June 2014.

For the offence of possessing the prohibited weapon I impose a sentence of imprisonment consisting of a non-parole period of two years commencing from 19 June 2014 and a head sentence of four years.

For the offence of supplying a prohibited drug, taking into account the form 1 matters, I impose a sentence of imprisonment consisting of a non-parole period of two years, six months, commencing from 19 December 2015 and a head sentence of four years six months.

1. Taking into account the sentences where the order for suspension has been revoked and the new sentences, the overall period of imprisonment consists of a non-parole period of five years to date from 19 June 2013 and a head sentence of seven years. The offender will become eligible to be released to parole on 18 June 2018.

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Decision last updated: 13 October 2014