R v Pedras

[2019] NSWDC 702

District Court

New South Wales

Medium Neutral Citation:	R v Pedras [2019] NSWDC 702
Hearing dates:	21 November 2019
Date of orders:	21 November 2019
Decision date:	21 November 2019
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Aggregate sentence of imprisonment of 2 years 3 months with a non-parole period of 1 year 3 months
Catchwords:	CRIME — Drug offences — Supply prohibited drug SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Drugs (Misuse and Trafficking) Act 1985 Prohibited Weapons Act 1998
Cases Cited:	Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] 56 NSWLR 146 McNaughton [2006] NSWCCA 242 Qutami [2001] NSWCCA 353
Category:	Sentence
Parties:	Regina (Crown) Thomas Pedras (Offender)
Representation:	Kenny Ng (Crown) Paul Johnson (counsel) (Offender)   Director of Public Prosecutions (NSW) (Crown) Mardini Defence Lawyers (offender)
File Number(s):	2017/000336159

EX TEMPORE REVISED JUDGEMENT

SENTENCE

INTRODUCTION

1. Thomas Pedras pleaded guilty in the District Court at Parramatta where he appeared before me after he was committed to the Court for trial. In respect of charges of supply prohibited drug.

2. Before the matter was allocated to a judge for the determination of the proceedings before a jury an application was made on his behalf in which counsel representing him argued that the evidence upon which the prosecution depended should be excluded. The evidence challenged was the discovery of quantities of prohibited drug in the offender’s home found by investigating police who attended the premises in response to the report of what might be said to have been a home invasion in the course of which the offender was shot in the leg.

3. In the exercise of powers given the police by virtue of the crime scene warrant that had been before then issued, the police, in the bedroom occupied by the offender, located parcels of drugs which ultimately led to his prosecution for two offences of supply prohibited drug contrary to s 25(1) and s 25(2) respectively of the Drugs (Misuse and Trafficking) Act 1985.

4. I heard the argument upon the application that the evidence be excluded. The premise upon which that argument was advanced was that the police had exercised powers beyond those given to them by the crime scene warrant and that they were, in the circumstances, compelled to limit the scope of their search to the immediate vicinity of where the crime reported had occurred, and that if any further search was required of the premises the duty of the police was to seek the issue of a search warrant in the execution of which they might well, one would expect, have found the exhibits.

5. Evidence was called from a police officer who controlled the search of the premises, purportedly under the authority of the crime scene warrant. In due course I found that the police had acted within the terms of the warrant. The perception I had of the matter was that it was a nonsense to have argued that they had no power to search a two bedroom apartment where there had been a crime involving the use of a semi-automatic weapon, the casings from which could have gone anywhere within the premises.

6. The application was accordingly refused. My judgement upon that topic was delivered on 21 October 2019. The draft was published to me; it has been perfected, and has been included on the offender’s file.

7. Different counsel was then retained in the matter and I now have the assistance of Mr Johnson who, in his usual fashion, has provided comprehensive written submissions in support of the case in mitigation of penalty presented on behalf of the offender who, after I had come to the decision upon the point raised by counsel earlier retained, pleaded guilty to a new indictment alleging one offence contrary to s 25(1) Drugs (Misuse and Trafficking) Act 1985, with an additional offence contrary to the same provision to be taken into account when I determine the penalty on the principal offence.

8. There is also an offence before me by way of s 166 Criminal Procedure Act 1986 alleging the possession of a prohibited weapon, namely a Taser. The charge was read to the offender who consents to this Court disposing of the matter and he pleaded guilty.

THE PLEAS OF GUILTY

9. The Crown correctly concedes a utility discount for both pleas of guilty but confines the utility in the charge upon the indictment to a discount of 5%, perhaps extending to 10%. The discount attaching to the summary offence before me is one of 25%, this being the first opportunity the offender has had to plead guilty to that charge in the prosecution of that offence.

THE PARTICULARS OF THE CHARGE

10. The other feature of this case that I would note is that the quantity of drug specified for the offence on the indictment is 125.03 grams, which is just over by .03 gram of the point when the particular drug falls into the category of commercial quantity. The drug concerned is 3,4-methylenedioxy-methamphetamine, otherwise known as MDMA or ecstasy.

11. The facts before me specify the quantity of 124.99 grams, which is below by 0.01 gram, the level at which the drug becomes a commercial quantity. The basis upon which the plea has been entered to this charge is that he was unaware that he had possession of the commercial quantity of the drug, and he is to be sentenced accordingly.

12. The particulars of the charge are that he, on 26 April 2017, at Wentworth Point in the State of New South Wales, supplied a prohibited drug, namely 124.99 grams of 3,4-methylenedioxymethamphetamine, being an amount not less than the indictable quantity for that drug. The charge is so structured to reflect his state of knowledge as to the quantity of drug that he had, that is to say, more accurately I suppose, his lack of knowledge that he had the commercial quantity of the substance.

THE PENALTIES

13. As I said, the offence is contrary to s 25(1) Drugs (Misuse and Trafficking) Act 1985. The maximum penalty specified for the offence is imprisonment for 15 years with a fine of $220,000.

14. The offence to be taken into account is also contrary to the same provision, in respect of 40.78 grams of methylamphetamine. Thus the maximum penalty, to which he is exposed, were he to be prosecuted on that offence in the more traditional way, would have been 15 years imprisonment and a fine $220,000. There is no standard non-parole period specified for the purposes applied for Division 1A Crimes (Sentencing Procedure) Act 1999.

PRE-SENTENCE CUSTODY

15. He has spent no time in custody for this offending. He has however been in custody since 27 June 2019 in respect of summary offences for which bail has been refused. These are for a defended hearing in February 2020 in a Local Court.

16. I propose that the aggregate sentence to be imposed today should commence on 27 June 2019 and whatever is to happen to him in the summary proceedings that are yet to be decided can be structured around this sentence.

17. The Crown has provided its bundle, marked exhibit A, and on behalf of the offender there is a bundle of documents which I marked exhibit 1. These include character references, a letter of apology and a report from a psychologist.

THE FACTS

18. The offending should be understood against the background of the crime that was committed against the offender and which led to the investigation in the course of which the drugs were found in his possession. I should pause to note that the plea of guilty to this charge and the acknowledgment of guilt in respect of the additional offence to be taken into account, which the offender has confirmed, acknowledge the elements of each of those offences and that he is to be dealt with on the basis that he had possession of the drug in each case for the purposes of supply. There were also indicia of supply found in the apartment when the police executed the search.

19. The offender was an occupant of an apartment in Wentworth Point. I will not identify the address with any detail other than to say that he was the occupant of a unit number XX0 and he had a neighbour who occupied unit number XX7 on the same floor. I refer to her by the initials QN. I have sentenced her in relation to her participation in the crime against the offender.

20. The offender and QN were involved in the use of prohibited drugs after which she alerted her accomplices to the fact that the offender had in his apartment a collection of valuable watches. A plan was hatched whereby she allowed the accomplices access to the building, allowing them to bring a motor vehicle into the carpark beneath the residences, and then allowed them into her apartment. The plan was refined to an arrangement whereby she attended the offender’s apartment, misrepresented that she had lost her swipe card and asked to search for it within his apartment. She feigned discovery of the swipe card, which was never missing, in her wallet as this was occurring within the offender’s apartment, and then as she left her accomplices forced entry. One was armed with a knife and the other armed with a pistol.

21. I have no material before me in the documents tendered in the Crown case to confirm the identity of the weapon, but I know from the evidence given before me by the detective that it was a semi-automatic weapon, and it was a pistol. The offender announced in court today his perception that it was a 22 calibre weapon, but the Crown announced from the document it has that it was a 0.38 calibre weapon. One way or another the offender who entered his apartment with the pistol discharged it twice. The first shot did not strike the offender but the second did. He was hit in the left leg. He contacted triple-0, first responders attended, and in due course he was taken to Westmead Hospital. The projectile apparently passed through his leg. He was administered treatment for the wound and was released from hospital the same day.

22. There have been no physical sequelae apart from the normal healing process and I am told he has made full recovery from the wound. There is nothing before me in the documents tendered to demonstrate any level of post-traumatic stress that might have been experienced by the offender as a consequence of this event. It would beggar belief, in my view, that there would not be some measure of psychological sequelae involving some level of post-traumatic stress arising from the circumstances where two armed offenders came into his home, one with a knife, one with a pistol, in the course of which he was shot. Notwithstanding the absence of any medical opinion or psychological or psychiatric assessment, I would take notice of the fact that such an event would have at least some psychological impact upon the offender.

23. He, against that background, has pleaded guilty to the following facts and circumstances. In the course of the search at the crime scene about 4.34pm the police entered his bedroom and located beneath pillows in the corner of his wardrobe a handheld defence anti-personal device designed to administer an electric shock on contact. It is a long way of describing the Taser found in his possession. This is a prohibited drug and consequently he was charged with the offence contrary to s 7(1) Prohibited Weapons Act 1998, the jurisdictional limit of the penalty for that offence is imprisonment for two years, it having been prosecuted as a summary offence being dealt with in this Court pursuant to s 166 Criminal Procedure Act 1986. I have not overlooked that the penalty that would have been available to this Court would have been significantly greater had it been prosecuted separately on indictment, and this is the benchmark that one must bring to account in the assessment of that sentence.

24. The search also revealed that the offender had possession of a black Samsung box beneath his bed with two sets of scales, a number of small resealable plastic bags and a plastic bag containing white powder, and two plastic bags containing brown powder. There was also a box of Astrix, a lawful medication. The substances were seized and weighed and submitted to the Forensic and Analytical Science Services for testing. The white powder was found to consist of 40.78 grams of methylamphetamine and that relates to the offence on the Form 1. The plastic bag was found to contain 125.03 grams of 3,4‑methylenedioxyamphetamine, the offence upon which sentence is to be imposed. The other items were evidence of supply. There were multiple small clear resealable bags and a bag of empty gelatine caps. A fingerprint located on the box of Astrix contained within the Samsung box matched the fingerprint of the offender. He was issued with a court attendance notice on 31 October 2017, which was some months after the discovery of these various items.

ASSISTANCE

25. S 23 Crimes (Sentencing Procedure) Act 1999 has some work to do in this determination informing the extent to which he ought to have a discount for assistance in respect of the crime in which he was a victim. I understand from the material before me that he did not identify the perpetrators, but he did identify QN and the role that she played in the event.

26. He did contact triple‑0 to report the incident which is hardly surprising bearing in mind that he was suffering a bullet wound in the leg, but it was a step taken in the process that ultimately led to the arrest of the offenders who committed the crime against him. I have not overlooked what the Crown brought to my attention, that other members of the community having heard the shots fired also contacted triple-0.

27. There is a trial to commence on Monday in the District Court at Parramatta. There has been no undertaking given by the offender to give evidence in those proceedings. He has not given evidence before me and so I am relying upon what Mr Johnson has said; I accept that his instructions were faithfully represented to me in the course of the proceedings. The offender’s position is that he will not sign the undertaking to give evidence because he is in custody. He will remain there for some little time after today and he is fearful. One can understand that. In the circumstances the Court takes notice of the fact that there are those in gaol who look upon others who offer assistance to authorities with some distrust, distaste and worse. It would beggar belief not to accept that he is at some risk if he assists authorities without adequate steps being taken to provide for his protection.

28. He will be called in the trial. He will be put in the witness box and it will be a matter for the Crown to adduce evidence from him and for the trial judge to deal with any contempt that might arise should he fail to answer questions. That is not a matter with which I need to be concerned. All I need to note is that at this stage I cannot allow him a discount for future assistance that would have been available to him upon an undertaking to give evidence in those proceedings.

29. I am going to allow him a discount though of 15% that will include a discount to represent the plea of guilty to the principal offence and the past assistance to authorities in the nomination of QN for her role in the crime against him; I believe the discount should be apportioned equally between the utility of the plea of guilty and the limited assistance given to the authorities.

30. As the Crown points out the utility is compromised by the position taken upon the argument for the exclusion of the evidence which led to my judgement on 21 October 2019. I do not know and I should not know what led to the decision to run that argument or upon whose advice or recommendation it might have been advanced. There is simply no evidence before me regarding that.

THE OFFENDER

31. The offender is 33 years of age, born in 1986. Regrettably he does not come before the Court clear an antecedent record. In July 2007 he was fined and ordered to pay compensation for two offences of damaging property. In October 2007 for resisting an officer in the execution of duty he was put on a bond pursuant to s 9 Crimes (Sentencing Procedure) Act 1999 for a period of two years and for an offence of assault occasioning actual bodily harm he was fined and put on a bond pursuant to the same provisions for the same period.

32. In April 2011 for demanding property with menaces he was given a further bond pursuant to the same provision. In August 2013 for possessing a prescribed restricted substance he was fined. For driving while suspended he was given the benefit of a bond pursuant to s 10 Crimes (Sentencing Procedure) Act 1999. For a further offence of driving while suspended he was ordered to perform 150 hours community service. Find it odd that he would get a s 10 bond for an identical offence committed on the same day. In any event in May 2014 for using an unregistered vehicle he was fined. For driving whilst disqualified he was fined with an Intensive Corrections Order of nine months.

33. In May 2014 FOR a further offence of driving whilst disqualified, he was ordered to perform another Intensive Corrections Order. In October 2017 for common assault he was imprisoned for six months. In May 2018 for common assault before the District Court on appeal, the order was varied to a 12 months suspended sentence pursuant to s 12 Crimes (Sentencing Procedure) Act 1999.

34. In January 2019 he was given a Community Corrections order for possess prohibited drug, a similar order for another possess prohibited drug; for other offending not in sequence in July 2006 for negligent driving he was fined and disqualified. In September 2006 for exceeding the speed limit and driving whilst disqualified he was fined and disqualified. In December 2007 for driving whilst disqualified he was ordered to perform community service. In June 2008 for possessing prohibited drug he was ordered to perform community service and for driving whilst disqualified he was imprisoned for 12 months suspended pursuant to s 12 Crimes (Sentencing Procedure) Act.

35. In February 2010 in respect of his possession of a prohibited drug he was called up for breaching a community service order; that was in due course extended. In May 2015 for using a carriage service to harass or offend he was fined and for intimidation he was put on a further bond for two years pursuant to s 9 Crimes (Sentencing Procedure) Act. In May 2015 for driving whilst disqualified he was ordered to serve home detention; that completes his antecedents.

36. The antecedent record includes offences after 26 April 2017 when he committed the offence with which I am now concerned. There is a common assault by two that were committed on 21 October 2017, the two offences of possess prohibited drug on 23 March 2018, and there is other offending that is yet to be resolved in the Local Court. I do not bring that to account. I do not have anything to inform me other than what I was told in the course of the hearing today.

37. He has one entry on his punishment details, an assault which was dismissed because of lack of evidence; thus he is to be dealt with on the basis that he has no custodial offences.

CONSIDERATION

38. Mr Johnson provided comprehensive written submissions summarising the circumstances of the event leading to his prosecution for these matters. I agree with the submission that there are no aggravating factors. I agree with the submission that the offending on this occasion is below mid-range, perhaps towards the lower end of objective seriousness for this type of offence.

39. Mitigating factors include what is said to be a limited record of criminal antecedents, although, usually that is presented an aggravating factor. In accordance with the statements of principle in the decision in McNaughton [2006] NSWCCA 242 an antecedent record does not aggravate the offending or the sentence that might otherwise be proportionate to the misconduct, but it does inform the extent to which specific deterrence must be given consideration and it denies the offender a leniency that might otherwise have been available to him.

38. Similar considerations apply in respect of offending that occurred after the misconduct that is before the Court.

39. His plea of guilty is noted. A discount of 10% is advanced on his behalf. I have already indicated what I see is appropriate in this case.

40. Upon the application of the discount I have identified I have abandoned any odd days and reduced the principal offence sentence to be expressed in years and months; so too with the s 166 offence where I have applied the discount of 25%. To the extent that there is any difference it has favoured the offender.

41. It is said that he has good prospects for rehabilitation but that must be informed by the fact that he has continued to offend after the conduct which has brought him before the Court, although according to the psychologist’s report to which I shall come, if he addresses what seem to be the problems he has had in the past there are some prospects that he will turn his life around. One hopes that is so.

42. He is attributed with remorse and the acceptance of responsibility, which must be tempered of course with the fact that the Court was called upon to determine the application to which I have referred.

43. Assistance has already been the subject of my comment. I need not revisit that.

44. I am reminded of what the guideline judgement in Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] 56 NSWLR 146 has given sentencing judges to assist them in this task, particularly the judgement by Spigelman CJ speaking to the promotion of rehabilitation, utilitarian value, and the manner in which it informs the extent to which specific deterrence must be attributed weight whilst at the same time allowing the Court to increase the sentence on the principal offence to reflect the community’s entitlement to retribution for the full range of the misconduct upon which the offender has engaged.

45. Turning to the aspect of delay, it is noted that the drugs were seized in April 2017 but the Court attendance notice was not issued until 31 October 2018. I am not satisfied that there is delay to impact on this case. The suggestion that the offender was left in a state of suspense for 18 months I do not overlook but there is nothing to indicate to me by way of evidence what stress he might have experienced as a consequence of that. There could be, one might expect, some impact from the period of 18 months specified, but thereafter of course the offender chose to plead not guilty until ultimately when, represented by Mr Johnson, he took the commendable course of changing his direction.

46. Turning to the psychologist’s assessment, there are aspects of it that point in different directions.

47. As I understand the history of these events he was enjoying the drug known as GHB with QN in the limited relationship that they had together leading up to the commission of the crime upon him.

48. He has also a good relationship with his sister, seven years older than he, and he is now in a relationship with someone who is said to provide a measure of stability, for whom he has affection, and for whom he intends to provide appropriate care and consideration when given the opportunity.

49. In contrast to that he is attributed with representations by the psychologists regarding a challenging relationship with his mother who is said to have been an alcoholic, who was in due course separated from his father, to re‑partner with another man who initially was not close to the offender. Over time, however, it is said that they formed a stronger bond. His mother is attributed with neglect, to put it bluntly, because of her misuse of alcohol and as a consequence he was denied the nurturing and affection that might have otherwise been provided had she been in a position to provide the care and love that one ought to expect of a mother toward her child.

50. I take note of the fact that people, especially in the very early formative years do need nurturing, love and affection from their parents, and in the absence of it there is an impact upon their developing psychology usually to their detriment. Most people in society who have those experiences generally rise above them; not everybody resorts to crime and antisocial behaviour, notwithstanding that they had such difficult formative years.

51. Mr Pedras unfortunately is one of those people who seem to have been unable to cope with what he perceived to be deficiencies in his upbringing, and thus he embarked upon the use of alcohol, cannabis, and other drugs including those substances with which he was found on the date of the search of his apartment.

52. He also was denied a father figure during those formative years including I would accept as a consequence of his strained relationship with the man with whom his mother re‑partnered.

53. There is a further complication. Along the way, when he was 26 years of age, his mother developed throat cancer, and as a consequence lost her voice. I take that to mean the ability to communicate by speaking.

54. It is said that he has an underlying distrust of women as a consequence of the relationship with his mother, and yet he had a meaningful relationship with his sister, and he has a continuing meaningful relationship with his partner as I understand the report, and moreover he had this association with QN as a preamble to what befell him on 26 April 2017.

55. He was educated to Year 12. He did not do well at school. He was apparently diminutive and was bullied. He completed a bricklaying apprenticeship but has a bulging disc in his lower back and cannot continue with such heavy work.

56. His substance use is discussed. Clinical assessment was performed with psychometric testing. I note the testing involved self-reporting but with that in mind one can note that he scored as moderate for depression, anxiety and stress currently, but at the time of offending those conditions were assessed as extremely severe. There is nothing other than what is contained in the report to suggest that he was so affected.

57. There is a further discussion in the report of his depression and anxiety and his cognition suggesting he has a negative perception of himself which perhaps contributed to his misuse of drugs and the offence with which he is charged.

58. He speaks of his sense of being isolated from his family, because he was not talking to his brother at the time. He was not able to communicate with his mother, who could not speak. He felt guilty because he was not staying in the family house to look after her. He was with a woman at that point in a dysfunctional relationship which meant he could not keep up with his financial obligations and this period he described as the worst time in his life. He is attributed with contrition. He is said to meet the criteria for a major depressive generalised anxiety disorder and drug use disorder, which all contributed it is to his commission of these offences. There is a treatment plan structured in the document.

59. I have viewed the document with a measure of circumspection consistent with what Smart AJ said in Qutami [2001] NSWCCA 353.

60. It would seem that his pattern of offending and his background of misuse of drugs might find its genesis in the circumstances described and that this contributed to his decision to have these drugs in his possession for the purposes of supply so that he could make money from them, but at the same time provide a source of drugs which he consumed, including on the occasion before the home invasion with the woman known as QN.

61. His apology letter expresses regret for his failure to his family and friends and the community, his shame, his decision to risk his life by involving himself in drugs, his involvement with the wrong crowd leading to continuing and developing substance abuse. Gaol has been salutary. He recognises that escaping the reality of life through drugs is not the way to continue.

62. With regard to his shooting he writes

“Being a victim of a shooting and being in gaol for my offence has greatly impacted my life. I cannot sleep, I am anxious and suffer from nightmares, I appreciate life more; I believe God has given me another chance to make better life choices and all I want is to be on the right side of the law. I want to go back to work to commit to having a good future.”

65. In gaol, as I said there are no custodial offences. I expect there has been over the six months or so since he has been there, commencing on 22 June this year, urine or drug testing, which is required as a matter of course, none of which appears to have resulted in any indication of misuse of drugs.

66. He is employed in gaol. He has prospects for work when he gets out. There is a character reference from his brother-in-law speaking of his knowledge of the offender from when he was 11 years of age and attributing him with expressions of remorse. There is a document from his sister speaking of the difficulties in their formative years, the love that his family has for him and her anger with him for putting himself in this position and attributing him with the regret that he has expressed to her.

67. I am satisfied on the material before me that the offender has demonstrated contrition and remorse. It is regretful that he will not sign an undertaking with regard to the forthcoming trial, because the sentence that I intend to impose on him would have been reduced to below what it is, but that is his decision and he has had ample opportunity to consider his attitude in the course of the proceedings today, apart from what I would have expected in conference with Mr Johnson when speaking to him regarding his options.

68. I have taken into account the additional offence on the Form 1 and I will certify the document to confirm that I have done so.

THE SENTENCE

69. The offender is convicted of the offence to which he has pleaded guilty of supplying prohibited drug. I indicate a sentence of 2 years and 2 months imprisonment for that offence, taking into account the additional offence and allowing him the discount 15% to which I referred. For the offence of possessing the prohibited weapon, pursuant to s 166 Criminal Procedure Act 1986 he is convicted and I indicate the sentence of imprisonment for 6 months. I specify an aggregate sentence of 2 years and 3 months, commencing on 27 June 2019. Upon finding special circumstances I specify a non-parole period of 1 year and 3 months. That shall expire on 26 September 2020; thereafter he shall be eligible for parole for a period of 1 year and that shall expire on 26 September 2021.

70. Thus the sentence is overall 2 years and 3 months, including the non-parole period of 1 year and 3 months from 27 June 2019 to 26 September 2020 and the balance to 26 September 2021.

71. I will leave the exhibits on file.

72. I ask that my judgement be taken out as a matter of urgency; it will be required for the trial next week. I will review the draft and perfect it for the purposes of those proceedings.

73. I require that a copy of the psychologist’s report accompany the offender into custody.

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Decision last updated: 27 November 2019