R v Perry

[2023] NSWDC 236

District Court

New South Wales

Medium Neutral Citation:

R v Perry [2023] NSWDC 236

Hearing dates:

24/2/23, 2/3/23

Date of orders:

2/3/23

Decision date:

02 March 2023

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to a term of imprisonment of 7 years with a NPP of 4 years 6 months (23/5/22-11/11/26).

I find special circumstances.

I have taken into account a discount of 25 percent for the plea.

Form 1 taken into account.

Catchwords:

Crime – Sentence – Supply large commercial quantity of methylamphetamine

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Drug Misuse & Trafficking Act 1985

Cases Cited:

Attorney General’s Application under s 37 Crimes(Sentencing Procedure)Act 1999 [2002] 56 NSWLR 146

Bugmy v The Queen [2013] 249 CLR 571

(Cth) Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194

MillwoodvR [2012] NSWCCA 2

Veen v The Queen (No.2) [1988] 164 CLR 465

Category:

Sentence

Parties:

NSW DPP – Crown
Michael Shane Perry - Offender

Representation:

Mr B Donnelly for Crown
Mr Breeze for Offender

File Number(s):

21/231967

sentence

1. Mr Perry is to be sentenced in relation to the sequence 5 offence, which is an offence of supply large commercial quantity of methamphetamine, namely 3235.17 grams. That is an offence under s 25(2) of the Drug Misuse & Trafficking Act 1985 which carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years is specified.

2. In sentencing him for that offence, he asks that I take into account on a Form 1 document two other offences; firstly an offence of supply indictable quantity of methamphetamine, namely 54.67 grams. The maximum penalty for that offence under s 25(1) of the same Act is 15 years’ imprisonment. The other offence on the Form 1 is the sequence 3 offence of fail to disclose identity of driver of a vehicle in response to a demand, the maximum penalty for that offence being 12 months imprisonment.

3. The maximum penalties and, where applicable, standard non-parole period, of course, are important guideposts in the sentencing exercise to which I have had regard.

4. The offender pleaded guilty at the earliest opportunity, and, therefore, I intend to allow a 25% discount by reason of the utilitarian value of that plea.

5. The facts of the offences are agreed and, in summary, are as follows.

FACTS

6. On 28 April 2021 a telecommunications interception warrant was granted to police to intercept messages and phone calls between a Jake Formosa and any other persons to whom he might have communicated using that telecommunications number.

7. On 28 July 2021, in other words, a few months later, police intercepted messages and telephone calls between Formosa and others which led to them suspecting that he would be purchasing some illicit substances.

8. At 9.45pm on that same day, this offender was captured on CCTV entering the Cranebrook Shopping Centre, via the car park. I note the shopping centre is approximately 800 metres from his home in Fireball Avenue, Cranebrook.

9. The offender was seen to leave the Cranebrook Shopping Centre about 7 minutes later, at about 9.52pm. However, about two minutes before he exited the shopping centre, in other words, at 9.50pm, police were patrolling the area in an unmarked vehicle.

10. After receiving information that a drug deal was to take place in Cranebrook involving a vehicle with the registration numbers ending in 760, those police drove to Cranebrook.

11. Shortly after arriving there, they saw the vehicle enter the Cranebrook Village Shopping Centre car park, being the same shopping centre to which the offender had arrived at around that same time, or shortly before.

12. The vehicle with the registration ending in 760 parked in one of the marked bays and stayed stationary for a while before moving to another spot. Shortly after this the offender walked to the rear of that vehicle and entered the back seat.

13. Once he was inside the vehicle, the vehicle left the car park and turned onto Laycock Street, before turning onto Bluebird Road, and, in the course of being followed, was seen to perform a U-turn and return back in the same direction that it had earlier travelled. The offender was seen to get out of the car and walk towards Arafura Avenue where he was approached by three police and was searched.

14. Meanwhile the vehicle with registration ending 760 continued along Laycock Street until it turned into a 7-Eleven store. The vehicle was followed by an unmarked police car for a short distance before the police activated their lights and sirens to signal for the car to stop.

15. The vehicle was then approached by police and was searched. The search resulted in a plastic bag being found with a crystalline substance inside, which was subsequently found to be 54.67 grams of methylamphetamine with a purity of 76%.

16. The agreed facts note that, while the offender was in that vehicle, he had supplied Mr Formosa with the 54.67 grams of methamphetamine, to which I have just referred.

17. That brings me, then, to the facts of the substantive offence for which the offender is to be sentenced, that being the offence of supply large commercial quantity of methamphetamine.

18. On 11 August 2021, police were granted a warrant to search the offender’s premises at Fireball Avenue, Cranebrook. Those premises were positioned on a battle-axe block. The entrance was secured by an electronic gate and a long driveway which had a CCTV system covering it. The premises were a brick house with a front veranda which adjoined a detached garage. The offender was the registered proprietor of that address.

19. In the early hours of 13 August 2021, police conducted a search at the Cranebrook residence. When police arrived, members of the Operations Support Group conducted an entry clearance and securing of the property. The offender was found sleeping on a lounge near the front door of the premises.

20. The search of the premises identified a number of items of interest. Firstly, inside the garage there were found multiple plastic containers of varying sizes, shapes, and colours which contained dark, opaque liquids. Also, a number of SIKA brand measuring cups were also found on a fold-out table in the garage which of those contained about 500 mils of a dark coloured substance.

21. Police also found a CCTV system connected to a screen within a room in the garage. Inside a laundry which was linked to the garage, police found more measuring jugs of a plastic nature.

22. Outside the premises police located a homemade power relay system that operated to open and close the front gates that were the entrance to the driveway of the premises and which were otherwise fortified by cinder blocks and sheet metal fences.

23. Police located CCTV cameras and spotlights drilled into the tree at the premises that were aimed at the driveway. Amongst some material found was a significant amount of property indicative of the offender entering and occupying the garage, including inside the garage a vehicle registration certificate in his name, a cardboard box with an address label in his name at that address, a Commonwealth Bank letter addressed to him, and, inside a laundry area connected to the garage, a veterinary hospital invoice addressed to the offender.

24. Inside the garage there was found on a work bench six plastic containers to which I have already made some reference. These were presumptively tested and tested positive to the presence of illicit substances.

25. On the afternoon of that day, police had a conversation with the offender and told him what had been found in the garage. About 4pm that day a police officer placed upon the offender an indictable form of demand. The demand was for information as to the name or address of the driver and passengers of the vehicle in Cranebrook at 9.52 and 9.53pm on 28 July 2021, that being the vehicle that I have earlier referred to.

26. The offender was shown screenshots of CCTV to assist in his recollection about the driver or passengers in that vehicle, and was warned it was an offence not to provide information as requested under the demand. The offender, however, said that he did not know the driver or passengers. However, the agreed facts record that the offender did know the details of the passenger and driver. This being the fail to disclose identity offence on the form 1 document.

27. The agreed facts record results of certain forensic examinations which, in summary are as follows: DNA samples were taken from a number of locations at the scene which indicate the offender’s presence in the garage. DNA matching the offender was found on the paper of three cigarette butts inside the garage, on the garage floor.

28. Also, the offender could not be excluded as a contributor to a mixed DNA sample obtained from a trace DNA tape-lift from inside the right hand of a blue glove that was found on a laundry bench top. He could also not be excluded as a contributor to a mixed DNA sample obtained from a tape-lift from inside the right hand of some green gloves that were found on a clothes airer in the laundry.

29. Furthermore, the right index fingertips of both pairs of rubber gloves were analysed and found to have methylamphetamine on them. Also, the offender could not be excluded as a contributor to a mixed DNA sample obtained from a tape-lift on three zipper pulls of a Nike brand satchel bag found in the lounge room of the premises which matched a bag worn by the offender on 28 July 2021 when he went to the Cranebrook Shopping Centre. A swab taken from inside that bag was found to contain methamphetamine.

30. At the premises of the offender, specialist police officers separated the substances found in the six plastic containers into solid and liquid contents for the purposes of analysis before they were placed into drug bags.

31. The six plastic containers on the bench in the garage were analysed and separated so far as possible into their liquid and solid components which are set-out in a table of three-pages which forms part of the agreed facts, and which table will be annexed to these remarks on sentence once they are revised.

32. The solids taken from the containers ranged in purity between about 54 to 76 per cent, and the liquid ranged from about 35 to 48 per cent. The total quantity, based on the admixture found in the garage, was 6,589 grams.

33. The two other seizures, one being in a Toy Story box in a freezer, was found to be 26.9 grams of methylamphetamine at 77% purity, while a further quantity of 0.94 grams, which was in a zip lock bag was not tested for purity.

34. The total quantity of methamphetamine, based on the admixture found in the premises, was 6,617.4 grams; in other words, just over 6.6 kilograms. The agreed facts record that the drugs were analysed by a relevant expert who concluded that the drugs in the garage, which were either liquid or mixed liquid and solid, were in a “process of refinement”.

35. As I have noted, the total quantity of drugs based on the admixture was just over 6.6 kilograms; however, there is agreement between the parties that, for the purposes of sentence, this amount is to be treated as 3,235.17 grams, that being based on a purity of 100%. Those are the facts upon which the offender is to be sentenced.

OBJECTIVE SERIOUSNESS

36. It is important that I make an assessment of the objective seriousness of the offence, in particular the supply large commercial quantity offence, for which the offender is to be sentenced. Of course, the maximum penalties and, in relation to the substantive offence, the standard non-parole period are important guidepost, as I have said, and also an indication of the very, very serious attitude which has been taken by Parliament to this type of offence.

37. However, in assessing the seriousness of the offence by the Court, it is important that I make an assessment of this offender’s role. In this regard the offender gave evidence to the effect that the various quantities of drugs that are the subject of the supply large commercial quantity offence were being warehoused by him, but had been delivered to his house only the night before police arrived.

38. He said in evidence last week that two men who he did not name dropped the drugs off between about 9.30 to 10pm the night before police arrived, and that he was expected to store the drugs, but he thought this would only be for about two days.

39. The offender said this arose due to a drug debt that he said was owed by him as a result of drugs lost in connection with an offence on 20 December 2017 of supplying 234 grams of methylamphetamine for which he was placed on an Intensive Correction Order by her Honour Judge English on 27 July 2020.

40. That offence, as well as others, were detected by police in December 2017 and the offender was arrested on 5 July 2018 when he presented himself at a police station. He remained in custody until 15 July 2019, when he was granted bail, and then was sentenced by Judge English about 12 months later.

41. In her remarks on sentence her Honour accepted that the offender was, in effect, a warehouseman for a third person who he was not prepared to name. In his evidence in these current proceedings the offender said that he was told by the unnamed persons who he claimed owned those drugs that, as a result of his losing the drugs in December 2017, he owed a debt of $30,000.

42. He claimed that he was told that, in order to pay off that debt, he had to store at his house the drugs that were discovered there by police on 13 August 2021, and that he was told that someone would pick them up. The offender said he did not go to police as he had received threatening messages before this and that he feared for himself and his family.

43. The essence of the offender’s evidence was, therefore, that he had been in possession of the subject drugs found at his house for a period well under 24 hours, and that, in committing this offence, he had, effectively, been coerced and threatened by unnamed persons insisting on this “drug debt” being satisfied.

44. If I was to accept this evidence, then it would reduce to a material degree the objective seriousness of the offence and the offender’s moral culpability for the offence. I do not, however, accept the offender’s evidence on this topic. There are a number of reasons for that conclusion.

45. Firstly, there is the timing. If the offender is to be believed, then he is, in effect, the victim of a terrible coincidence, and the extreme bad luck of having had these drugs delivered to him only hours before a police raid on his property. While those matters taken on their own might not be enough to disbelieve his evidence, the improbability of this timing is increased considerably by the fact that the drugs that were the subject of this alleged drug debt had been seized by police more than three-and-a-half years earlier. There is also the fact that since “losing” the drugs on 20 December 2017, the offender had been at liberty on bail since 15 July 2019, more than two years before the police raid on 13 August 2021; such that, if the offender is to be believed, it was just an unfortunate coincidence that these unnamed persons chose to enforce the alleged drug debt by delivering drugs to the offender only hours before a police raid. When these matters are added together, they render the timing involved in the offender’s story inherently improbable.

46. Secondly, there is the fact that the drugs found in the offender’s garage on 13 August were only partially processed, and not in a form readily able to be sold. This is another factor which tends to make the offender’s version that the drugs had only just been dropped-off and were only to remain there for about two days, improbable. It is far more probable, in my view, that the drugs had been at the offender’s house for some time and were intended to remain there for some time to come, perhaps until fully processed and ready for sale. However, the evidence is insufficient for me to make precise findings about these matters.

47. Thirdly, there is the fact that the offender appears to have made no mention of this story in a number of recent accounts by him where he spoke about his offence. In the Sentencing Assessment Report the author noted that the offender claimed that his co-offender:“made him liable for the financial impact of the drugs being confiscated” and that “he considered that he had no other choice other than to continue to supply drugs in order to repay the debt”.

48. However, this version made no reference to the drugs having been dropped‑off the night before by two men, and that the offender was expected to hold the drugs only for a couple of days. Also, it appears that the offender made no reference to this version when speaking to the psychiatrist, Dr Sidorov, who notes in his report under the heading “Account of Offending Behaviour”, simply that “Mr Perry states that he had pled guilty to charges of supply of methamphetamine”. Finally, there is no mention of this “late drop-off” story in the offender’s own letter to the Court where he essentially says that he was “associating with the wrong crowd, attracted to what he thought was camaraderie and strong relationships”.

49. A fourth problem with the offender’s story arises from what was found at his house. The agreed facts record that the entry to his premises was secured by electronically-operated gates, and that the entrance was “otherwise fortified by cinder blocks and sheet metal fences”. The facts also note that there were CCTV cameras and spotlights drilled into a tree and aimed at the driveway, which were apparently linked to a TV screen in the garage, being the same garage where the subject drugs were found. Also, police found on a table in the garage where the drugs were located some plastic measuring jugs which contained liquid methamphetamine, and somewhat similar, although empty, jugs were found in the laundry. While the offender gave some evidence in re‑examination about these jugs from the laundry which he said might have been used to put chlorine into a swimming pool, these answers were somewhat unconvincing when compared to his earlier rather vague answers to questions asked by myself on the same topic. Furthermore there is the fact that, in the laundry of the house, that is, in a different location to the drugs, there was found two pairs of gloves that had traces of methamphetamine on them which also contained a mixed DNA sample from which the offender could not be excluded.

50. A fifth problem with the offender’s story about the drugs being dropped‑off only hours earlier is the fact that police found a substantial quantity of methamphetamine in crystalline form inside a Toy Story lunchbox in a freezer and another, smaller quantity inside a plastic zip-type bag. While the offender said each of these quantities were for personal use and that he had “only just restarted” using methamphetamine, the quantity of methamphetamine in the Toy Story box, which was 77% pure, is, in my view, inconsistent with the offender’s evidence about personal use and more suggestive of a greater involvement in drug supply than the offender was prepared to acknowledge.

51. This conclusion is also consistent with the agreed fact that, on 28 July 2021, that is, about two weeks earlier, the offender had supplied 54 grams of crystal methamphetamine to Jake Formosa at Cranebrook.

52. As I said, I reject the offender’s claim that he had been in the possession of the drug since only the night before the police raid and he thought they were to be stored by him for only about two days.

53. I am unable to determine when the drugs first arrived at the offender’s premises and how long they were intended to be kept there, or what was going to happen to them. However, I do not accept the offender’s claim that he was in possession of the drugs for the limited period he claims, and I do not accept his evidence that he was holding the drugs because of threats made to him and/or his family.

36. It is not possible for me to reach any clear finding beyond reasonable doubt about the exact nature of the offender’s role in the deemed supply offence. Also, the evidence does not permit me to conclude that the offender was, himself, the manufacturer of the drugs, and I do not proceed on the basis that he was. I note also, as was submitted on his behalf, that there was no evidence of obvious wealth.

37. However, I am satisfied that he knowingly allowed the drugs, which were in a process of refinement, to be stored at his home. I am unable to conclude whether the refinement process had actually commenced at the offender’s home, nor can I conclude whether it was intended that the drug refinement would be completed there.

38. However, I am satisfied that the offender performed a very important role and was sufficiently senior to be trusted with such a substantial and highly valuable quantity of illicit drugs which were intended, ultimately, to be distributed into the community.

39. His role in this regard also included some level of planning and sophistication by reason of the somewhat fortified entry to his premises and its surveillance with CCTV cameras.

40. As already noted, the quantity of the drugs, being just over 3.2 kilograms, has been treated for the purposes of the sentence proceedings as being based on a purity of 100%. That is more than six times the large commercial quantity of 500 g.

41. While the quantity of drugs is a highly relevant matter on sentence, it is not the most important factor. However, the agreed purity of the drugs is a matter that increases the objective seriousness of the offence. Having regard to these various matters, I assess the offence as being well above the lower range and approaching the mid-range of objective seriousness.

42. The Crown submitted that there are two aggravating matters that also need to be taken into account in this sentencing exercise. Firstly, the offender’s history of prior offences, and, secondly, the fact that he was subject to conditional liberty at the time of offending, by reason of the Intensive Correction Order imposed on him by Judge English on 27 July 2020.

43. I accept that both of these aggravating circumstances are made out. While they do not increase the objective seriousness of the offence, they are matters that aggravate the offender’s overall criminality and are relevant to his moral culpability.

44. The principle in Veen v The Queen (No.2) [1988] 164 CLR 465 is not engaged automatically where an offender has a history of prior offences. Rather, I must consider whether the instant offence is an uncharacteristic aberration, or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence, and protection of society may all indicate that a more severe penalty is warranted.

45. In this case I am satisfied that the offender’s prior criminal history, but particularly his history of supplying a prohibited drug on 20 December 2017, for which he was still on an ICO at the time of the offending now before the Court, is such as to demonstrate a continuing attitude of disobeying the law, and is indicative of a high level of moral culpability.

46. I am also satisfied that the offender’s criminality is aggravated by reason of his being on conditional liberty when he committed the offending before the Court. However, there is a large degree of overlap in this case between these two aggravating features, and, so, I have taken care not to double‑count them.

SUBJECTIVE MATTERS

65. Turning to subjective matters relating to the offender, himself: he is now approaching 51 years of age. His subjective case has been placed before the Court by means of a psychiatric report and some other written material. In his evidence on oath he affirmed the contents of his letter to the Court and his self-report to the psychiatrist.

66. He was born in Sydney and has two younger sisters. His parents separated when he was about 14, which is approximately when he started using cannabis. He attended school until year 10, but was frequently in trouble and suspended for fighting, and other misbehaviour, before finally being expelled.

67. According to the psychiatrist, the offender described a generally good upbringing, although this is different to what the offender said in his letter to the Court, in which he said that his life growing up was difficult and he suffered severe beatings from his father whom, he claims, broke the offender’s nose when he was only ten. The offender, however, was not challenged about this history which I, therefore, accept.

68. After school he completed an apprenticeship in gyprocking, and worked in that industry for eight-to-ten years before working as a truck driver. He was previously married for ten years, but this relationship ended when the offender was around 30 years of age.

69. He has four children from his first marriage and three children with his current partner, with whom he has a 13-year-old daughter and 11-year-old twins. The offender was accompanied in Court during the sentence hearing by his current partner and two of his elder daughters.

70. The offender told the psychiatrist that he had been sexually abused by a priest on two occasions. In his evidence the offender said that this involved anal penetration by the same priest, once when he was 10, and another time when he was 12. He was not challenged in cross-examination on this history, and so it is a matter that must be given appropriate consideration.

REMORSE AND REHABILITATION

71. I turn, then, to matters concerning remorse, prospects of rehabilitation, and future risk. The offender, in his letter to the courts, says that he expresses “my sincere remorse for my behaviour”, and says that he “apologise to the community, the police, the courts, and my family”.

72. He adds to this, later in his letter, where he refers to being deeply ashamed of his actions and their impact on his family and the community, and he affirmed these things in his evidence on oath. He was cross-examined about this, and why the Court should accept, now, that he is truly remorseful, given his history.

73. He said that he is “older now, and sick of being drug-dependant” and that the current period in custody has been the longest drug-free period in his life. However, according to the remarks on sentence of her Honour, Judge English, the offender said similar things to a psychologist in 2020.

74. Furthermore, according to the Sentencing Assessment Report of 17 October 2022, the offender displayed minimal insight in terms of his offending behaviour, and justified that he had no other option than to engage in the offences, although he did acknowledge the negative impact of his actions on his family and on the community.

75. In my view, the offender is genuinely sorry for the impact of his actions on his family and himself. I also accept that he understands the negative impacts of drugs on the community, because, as he has said, he is a “drug addict myself”.

76. However, I am not satisfied that he is genuinely remorseful for the effects that his actions could have had on the community, generally. In my view, such a conclusion is inconsistent with the offending for which Judge English sentenced him, and inconsistent with his having committed the offences before the Court now, while he was on the ICO that her Honour imposed.

77. In reaching these conclusions I have also had regard to my own adverse conclusions about the offender’s credibility, given my rejection of his evidence about the circumstances of his possession of the drugs found at his house on 13 August 2021. In conclusion, while I accept there is some remorse for the offences, it is minimal.

78. As to his future risk and prospects, the Sentencing Assessment Report notes him to be a medium-high risk. There was also the fact that the psychiatrist diagnoses the offender as having an antisocial personality disorder, opioid-use disorder, and likely ADHD, and that the offender has not yet had any effective treatment for any of these problems.

79. On the positive side, he has completed some courses while in custody, and he has the continued support of family. I have taken this all into account, but I am unable to form a positive view of his prospects of rehabilitation, and I think there remains a material risk that he will reoffend in the future.

80. Counsel for the offender submitted that some weight ought be given to the offender’s history of exposure to domestic violence, physical abuse at the hands of his father, and, in particular, to his experience, which was not challenged in cross-examination, of having been sexually abused when he was ten, and again when he was 12.

81. It was not submitted that the circumstances of the offender’s background of abuse are such as to bring his case squarely within the principles discussed in Bugmy v The Queen [2013] 249 CLR 571, and also discussed in Millwood v R [2012] NSWCCA 2. However, I am conscious of the fact that there are no clear lines to delineate “Bugmy cases” from “non-Bugmy cases”. In my view, while the offender’s background is not one of “profound” deprivation and/or abuse, it is a significant and relevant matter that I have taken into account as part of the offender’s general background and subjective case.

82. In my view his background of abuse is relevant because, as was submitted on behalf of the offender, there is research which demonstrates a link between child sexual abuse and other abuse, and the development of a range of consequences, including mental health issues.

83. As already noted, the offender has been diagnosed with a number of mental health conditions to which I have earlier made reference. It was not submitted that the offender’s drug habit should act to reduce his moral culpability. However, in my view, the combination of mental problems with which the offender is and was affected are relevant, in that they made him more susceptible to making stupid and irresponsible decisions, such as those indicated by the offences before the Court.

84. It is in this sense that I accept that those mental conditions reduce his moral culpability to some degree. I remain of the view, however, that general deterrence and personal deterrence are highly relevant aspects in this sentencing exercise.

85. That is, in part, because as was said in (Cth) Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194, the offender’s mental problems may mean that the offender presents more of a danger to the community, such that personal deterrence should be given more weight.

86. In my view, this principle is enlivened in the case now before the Court. On the other hand, and by reference to “principle (3) from De La Rosa, I am satisfied that custody has and will continue to weigh more heavily on the offender by reason of his mental health conditions than it would have absent those conditions.

THE PANDEMIC

87. In determining the sentence, I have taken into account, also, the unchallenged evidence of the offender that he has spent under lockdown in custody, a period which he said amounted to around 178 days, perhaps half of which involved him being isolated in a one-out cell. I am conscious of the fact that this has been the situation for many inmates and remand prisoners due to the COVID restrictions, which has also meant limited or no access to visits, and restrictions on access to courses and other services. This has, no doubt, made the offender’s time in custody significantly more difficult than it otherwise would have been. There is also the possibility, although somewhat reduced in current times, that the pandemic may impact his future experience of custody.

FORM 1

88. In relation to the two matters on the Form 1 document. In my view the supply offence committed on 28 July 2021 which involved a separate act of criminality to the offence for which the offender is, today, to be sentenced, is a matter that should increase to some extent the length of the sentence that I impose.

89. In my view, that earlier supply offence involving the same type of drug increases the need for personal deterrence and the community entitlement to retribution for serious offences; see Attorney General’s Application under s 37 Crimes(Sentencing Procedure)Act 1999 [2002] 56 NSWLR 146.

90. On the other hand the “fail to disclose identity” offence on the Form 1 document, being a much less serious offence, is not a matter to which I attach any significant weight.

BACKDATING

91. The offender was arrested on the substantive offence on 13 August 2021, but was granted bail on that offence after spending an initial 55 days in custody. It was agreed that his total time bail refused on this matter as at the sentence hearing date last week of 24 February, is 245 days. Since then, however, he has spent another six days in custody.

92. However, between 18 November 2021 and 30 January 2023, the offender was serving a sentence imposed by the Local Court for domestic violence offences committed over a period of some months, which included serious threats and a breach of an Apprehended Domestic Violence Order.

93. It was submitted on behalf of the offender that any sentence that I impose should be backdated fully to 13 August 2021, when he was arrested for the large commercial quantity supply offence. However, this would mean that the sentence for the domestic violence offences would be served completely concurrently with the sentence that I am to impose.

TOTALITY

94. In my view, if the domestic violence offences were being dealt with at the same time as the matter before me, it would have been appropriate for there to have been some accumulation, so as to acknowledge the very different and quite separate criminal conduct involved.

95. Having had regard to totality principles, and making an assessment of the appropriate outcome, if all matters had been dealt with at the same time, and also the need to avoid a crushing sentence outcome, I intend to backdate the sentence to commence on 23 May 2022, being approximately 50% of the period between today and the offender’s arrest on 13 August 2021.

DETERMINATION

96. I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999, those being: the need for adequate punishment, the importance of general and personal deterrence, of protecting the community, of making the offender accountable, of denouncing his conduct and recognising the harm to the community, but also in promoting, so far as possible, the rehabilitation of the offender.

97. I am satisfied for the purposes of s 5 of that same Act that a period of imprisonment is the only appointment outcome, and, furthermore, that it must be a period of full-time imprisonment.

98. After taking into account the matters on the Form 1 document, and after the 25% discount for the plea of guilty, I impose a head sentence of seven years’ imprisonment. That has been arrived at based on the starting point of nine years, four months, from which I have deducted the 25% discount.

99. I find special circumstances, based on the need for the offender to be monitored for a significant period upon his release, given his drug and other problems.

100. I impose a non-parole period of four years, six months. As I have said, the sentence will date from 23 May 2022. The head sentence will, therefore, expire on 22 May 2029. The non-parole period will expire on 22 November 2026.

101. Anything to be raised on behalf of the Crown or the offender about any of those orders?

102. DONNELLY: Not from the Crown’s perspective.

103. GRAMOGLIA: Not on behalf of the defence, your Honour.

104. HIS HONOUR: All right, thank you.

105. Annexure

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Decision last updated: 30 June 2023