R v Peter May

[2018] NSWDC 446

District Court

New South Wales

Medium Neutral Citation:	R v Peter May [2018] NSWDC 446
Hearing dates:	11 May 2018
Date of orders:	13 September 2018
Decision date:	13 September 2018
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	See [123]
Catchwords:	CRIME – SENTENCE – plea of guilty – multiple accounts of drug supply – additional charges on Form 1
Legislation Cited:	Confiscation of Proceeds of Crimes Act 1989 Crimes (Sentencing Procedure Act) 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	R v McNaughton (2006) 66 NSWLR 566 Veen v The Queen (No 2) (1988) 164 CLR 465
Texts Cited:	None
Category:	Sentence
Parties:	Regina (Crown) Peter May (Offender)
Representation:	Counsel: Ms G Lewer (Offender)   Solicitors: ODPP (Crown) Legal Aid (Offender)
File Number(s):	2015/239352; 2016/381430
Publication restriction:	None

REMARKS ON SENTENCE

INTRODUCTION

1. The Offender appears before the Court for sentencing after pleading guilty to the charges on the Crown Sentence Summary (Exhibit A).

charges for sentence

2. The charges for which the Offender is to be sentenced are:

1. supply prohibited drug, being 7.97g of methylamphetamine (in breach of s25(1) of the Drug Misuse and Trafficking Act 1985), identified as the H59013466 offence;

2. supply prohibited drug, being 71.33g of 3, 4 MDA (in breach of s25(1) of the Drug Misuse and Trafficking Act 1985);

3. supply prohibited drug, being 373.4g of 1,4 butaneidol (in breach of s25(1) of the Drug Misuse and Trafficking Act 1985); and

4. supply prohibited drug, being 86.32g of 3, 4 MDMA (in breach of s25(1) of the Drug Misuse and Trafficking Act 1985). The three previous offences are identified as the H63208556 offences.

GUIDEPOSTS

3. The maximum penalty represents the legislature’s assessment of the seriousness of the offence. In exercising its sentencing discretion, the court must always arrive at an outcome that is just in all the circumstances. The maximum penalty for supply prohibited drug, as per s25(1) of the Drug Misuse and Trafficking Act 1985 is 15 years imprisonment, and/or 2,000 penalty units. There is no standard non-parole period.

FORM 1 or section 166 matters

4. The Offender has requested that, in sentencing on the principal charges, the court take into account further offences with which the Offender has been charged but not convicted. The Offender has admitted guilt in relation to those offences.

5. The charges on the Form 1 are to take into account with a view to increasing the penalty that would otherwise be appropriate for the principal offences to which the Form 1 attaches. The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence. The second is the community’s entitlement to extract retribution for serious offences.

6. In the present matter, the following additional charges appear on a Form 1:

1. possess prohibited drug, being 8.5 grams of gamma butyrolactone;

2. knowingly deal with proceeds of crime, being $765;

3. supply prohibited drug, being 19.51g of N-isopropylbenzylamine, and;

4. possess prohibited drug, being 26.64g of gamma butyrolactone.

7. I confirm that I have signed the certificate to the Form 1 (x2) confirming that the sentences imposed reflect an appropriate sentence for those charges.

procedural history

8. The first offending was committed on 16 August 2015 and the second on 19 December 2016. The Offender was arrested on both of these dates. The latter offences were committed whilst the Offender was on bail for the first offence.

9. The Offender was committed for sentence on the three latter offences on 4 September 2017 and was committed for sentence on the first branch of offending on 3 October 2017, which was the first day of the trial fixed in respect of that matter.

10. The Offender pleaded guilty to the charges on 3 October 2017 which in the scheme of the chronology in that matter was a relatively late stage of the proceedings but nevertheless must attract some discount representing the utilitarian value of the guilty plea to the community.

11. The Offender has been in custody on two occasions in relation to the charges the subject of the sentence. The first from 16 August 2015 to 19 August 2015, a period of four days. The second from 19 December 2016 to date. I will have regard to that matter when considering the commencement date of the sentence.

the evidence on sentence

12. The Crown relied upon the following material at the sentence hearing:

1. the Crown Bundle (Exhibit A).

13. The Offender relied upon the following material:

1. report by Megan Godbee, Psychologist dated 30 April 2018 (Exhibit 1);

2. Offender’s Submissions on Sentence (MFI 1); and

3. Outline of Statistics (MFI 2).

the agreed facts

14. The Statement of Agreed Facts provides as follows:

2015/239352 – Supply prohibited drug > indictable quantity (not cannabis), s25(1) Drug Misuse and Trafficking Act 1985

15. At about 2:30am on Sunday the 16th of August 2015, Peter May (“the Offender”) was driving a white Hyundai i30, registration CTW73U, in Redfern. The vehicle was a hire care from Drive My Car Rentals. Police observed the vehicle as the Offender conducted an illegal manoeuvre across a shared pedestrian and vehicle zone onto Redfern Street. Police initiated warning lights on their fully marked police car, indicating to the Offender to pull over. He continued to travel east along Redfern Street, so Police initiated sirens. The Offender continued to drop for approximately 150 metres before stopping the vehicle.

16. Police approached the driver’s window and introduced themselves to the Offender. They explained he had been pulled over for the illegal manoeuvre. Police conducted an alcohol breath test on the Offender, which produced a zero reading, and checked his identification. Police then conducted a check on the Offender via police radio, which revealed an outstanding warrant number 63086420, issued on 10 August 2015 in relation to drug and property matters H58237039 and H60854589. Police placed the Offender under arrest for the outstanding warrant matters.

17. Police formed a suspicion the Offender may be in possession of prohibited drugs, and decided to conduct a search of his clothing and the Hyundai. They located 11 small resealable bags containing a white crystalline substance in the right pocket of the Offender’s jeans. He was placed under arrest and cautioned by Police.

18. Police conducted a search of the Hyundai and located a blue Country Road bag on the passenger seat. Inside an internal pouch of the bag Police located one small resealable plastic bag containing a white crystalline substance and also a small black glass vial containing a clear liquid.

19. The crystalline substance in the 12 resealable bags was subsequently forensically examined. They contained a total quantity of 7.97 grams of methylamphetamine, with purity 79.5%

Possess prohibited drug, s10(1) Drug Misuse Trafficking Act 1985 – Form 1

20. Similarly, the liquid in the glass vial was examined, and was identified as Gamma Butyrolactone with total mass 8.5 grams. The purity was not tested.

21. The Offender was conveyed to the Redfern Police Station, where he was entered into custody and explained his rights.

2016/381430: Sequences 8, 9 and 12, Form 1 Sequences 7 and 11

22. At about 4:15pm on Monday 19 December 2016 Police were patrolling Defries Ave, Zetland.

23. They observed 2 cars parked near the kerb outside the ‘Meriton Apartments’ building. One of the cars was a white Kia. The Kia had Victorian Registration plates (1HZ8JZ). There was a man in the driver’s seat. The other car was a Suzuki Swift plates (958TDD).

24. The Suzuki was stopped in a ‘No Stopping’ zone. There was a man in the front passenger seat. He was shirtless and had tattoos (Tyler Pope).

25. Police stopped their car and observed the two parked cars for about 30 minutes. During this time they saw the accused walk from the footpath, open the front passenger door of the Kia and enter the car. He was carrying a dark coloured bag across his shoulder.

26. The accused remained in the passenger seat for 3 to 5 minutes before getting out of the car. He then walked back towards the Suzuki.

27. He stood at the front passenger side of the Suzuki, leaning inside the window and speaking with the male seated in the passenger seat.

28. After about 30 minutes the accused walked around to the driver’s side of the Suzuki and entered the driver’s seat.

29. A couple of minutes later the male in the passenger seat got out of the Suzuki, put a shirt on and placed the shoulder bag over his shoulder. He walked north down Defries Avenue.

30. Officer Dobson got out of the Police car, approached the male and identified himself. He completed a number of checks on the Police database and told the male he was free to leave.

31. Officer Simitsopoulos approached the accused, he saw that he was going through a brown shoulder bag on his lap. He knocked on the window and the accused opened the door.

32. The accused was told he and his car would be searched. The accused consented to the search and told the police he was on bail. He got out of the car, opened the back door and sat down on the rear passenger seat and complied. Officer Simitsopoulos asked the accused if there was anything in his pockets that should not be there.

Sequence 11 – Section 25(1) – Deemed supply 19.51g N-isopropylbenzylamine* (*an isomer of methylamphetamine)

33. The accused placed his right hand into the right pocket of his shorts and removed a large clear resealable bag containing an amount of a crystalline substance. This was seized and tested, and contained 19.51g N-isopropylbenzylamine.

Sequence 7 – Section 193B(2) Crimes Act – Knowingly Deal with Proceeds of Crime (Form 1)

34. He then placed the bag onto the footpath and removed items from his pocket to give to the police, including cash. He said “there it is”. He had a white iPhone in his hand.

35. The accused was placed under arrest. He told Police the bag contained ice, that he had a bag drug habit.

36. Police searched the car. They located a single brown pill (XD5000009402) (0.3g MDMA)

Sequence 8 – Section 25(1) DM&T Act – Supply 71.33g 3,4 Methylinedioxy-amphetamine

Sequence 9 – Section 25(1) DM&T Act – Supply 373.4g 1,4-butanediol

Sequence 12 – Section 25(1) DM&T Act – Supply 86.32g 3,4 Methylinedioxy-amphetamine

37. The accused then told Police there was a blue metal box within the car containing a large amount of MDMA.

38. Police could not locate the blue box. They seized what appeared to be a drug ledger from the car. The accused was taken to Redfern Police Station.

39. A short time later, when back at the station, Police received a call from, Jihun Ye, the manager of the Mertion apartments at Zetland.

40. She told Police she had located three bags belonging to Peter May, in the foyer of the Meriton apartments building. Police made arrangements to retrieve the bags.

41. The accused participated in an electronically recorded interview with Police where, among other things, he said the following:

1. Q&A23-27 – He agreed when he was approached by Police he had the brown bag on his lap and that he owned this bag.

2. Q&A36-41 – He agreed that when asked to empty his pockets he had produced a resealable bag containing what he thought to be ice. He said it “contained a drug that I’ve been using. I’m badly addicted to”.

3. Q&A105-113 – he said the bottle containing the viscous liquid he had picked up together with the ice in a bag left under a tree. He had paid $4000 which he left under the tree.

42. The accused denied he had been selling the drugs. He was taken into custody.

43. At about 11:55pm Officer Dobson attended the Meriton apartments at Zetland and seized the bags.

44. There was 1 large black suitcase, 1 black ‘Prada’ shoulder bag and 1 red calico grocery bag with ‘the Salvation Army’ printed on it. Each of the bags had attached a name tag in the name of Peter May.

45. CCTV footage depicts the bags being moved into the hotel by Peter May at around 4pm on 19 December.

46. Officer Dobson began to search the bags. Within the bags he located:

47. Red Calico Bag

1. Blackmores bottle with:

1. And clear resealable bags with Redback Spider logo containing 193 brown pills (XD5000009381) (tested and contained 61.19g MDMA total)

2. 1 brown glass bottle filled with approximately 50ml of liquid (XD50009382) (tested and contained 37.9g 1,4-butanediol);

3. Set of small silver scales;

4. Packet of small unused resealable bags;

48. Prada Bag

1. A 375ml ‘Voss’ brand water bottle with clear viscous liquid within (XD500009388) (tested and contained 297.5g 1,4-butanediol);

2. 1 brown glass bottle filled with approximately 50ml of liquid (XD00009389) (tested and contained 38g 1,4-butanediol);

3. A blue and white ‘Eclipse Chewy Mints’ container containing several clear resealable bags. 1 with 8 brown coloured pills within and the other containing 3 capsules filled with a brown powder (XD500009387) (tested and contained 2.05g MDMA);

4. 1 Tax Invoice from ‘Powermedia Systems Pty Ltd’ made out to Peter May

5. ‘Groupon’ documents made out to Peter May

49. Large Black Suitcase

1. Locked blue metal box containing a number of prohibited drugs;

2. 1 square ‘Tiffany and Co’ box containing 2 plastic bags with brown coloured powder (XD500009393) (tested and contained 85.9g MDMA total)

3. 2 loose capsules containing brown powder (XD500009394) (tested and contained 0.02g MDMA);

4. 1 small plastic food container with a pink lid

5. 2 small resealable bags with ‘Redback Spider’ logo containing a brown rock substance (XD500009392) (tested and contained 8.44g MDMA total);

6. 2 clear capsules containing off white powder and brown coloured rock (XD500009394) (tested and contained 0.44g MDMA);

7. 1 white apple iPhone;

8. Typed letter addressed to Peter May, 14 Little Street Darlinghurst;

9. Release Certificate issued by Corrective Services NSW with photograph depicting Peter May;

50. The accused surrendered his phone and provided PIN number to police to access the information contained on the phone.

51. The total amount of drugs seized from the accused was determined to be:

1. 3,4 Methylinedioxy-amphetamine 71.33g

2. 3,4 Methylenedioxy-methylamphetamine 86.32g

3. 1,4-butanediol 373.4g

4. N-isopropylbenzylamine 19.51g

OBJECTIVE FACTORS

Generally

52. A predominant factor relevant to the sentence is the objective seriousness of the offence. It is not, however, necessary to articulate a determination by placing the offence along a hypothetical range, although that commonly occurs. It remains an essential task to undertake an evaluative assessment of the objective seriousness of the offence.

53. The starting point is the legislative guideposts which I have already identified.

54. Next, one has regard to the particular circumstances of the offending in assessing the overall criminality.

55. The circumstances which exist here demonstrate a low-to-mid range level of overall criminality.

56. The Crown submitted at the sentence hearing that the objective seriousness of the offending does not exceed the mid-range of seriousness. This was paired with references to the comparison between the indictable quantity for the MDA offence, 1,4 butaneidol offence and the MDMA offence, against the quantity of drugs that was found on the Offender.

57. For the specific offences, the comparison can be found as follows:

1. for the methylamphetamine offence, the Offender was found with 7.97 grams, which is only slightly above the indictable quantity being 5 grams;

2. for the MDA offence, the Offender was found with 71.33 grams, considerably in excess of the indictable quantity of 1.25 grams;

3. for the 1,4 butanediol offence, the Offender was found with 373.4 grams, the indictable quantity being just 50 grams;

4. for the MDMA offence, the Offender was found with 86.32 grams, with the indictable quantity being 1.25 grams.

58. Whilst I have made reference to the quantity of drugs, in the context of considering the objective seriousness of the offending, it is by no means determinate of the objective gravity, it is a matter to which the Crown invited the Court to have regard and is a matter which I have taken into account in determining the matter.

59. Counsel for the Offender conceded that for the MDA and MDMA offences that the offending falls around the mid-range. For the methylamphetamine offence, Counsel for the Offender submitted that the offence is at the very bottom of the range. For the 1,4 butaneidol offence, Counsel for the Offender submitted that this offending falls below the mid-range.

60. Counsel for the Offender also submitted that factors that decrease the objective criminality of the offending is that the offences did not involve a series of acts and that there is no evidence of a financial gain made from the supply of drugs by the Offender.

61. The Crown and Counsel for the Offender agreed that the methylamphetamine offence is at the very low end with regards to objective seriousness. I accept those submissions and make that finding. The parties were however at odds with regard to the other offences.

62. I find that due to the evidence of indicia of supply, that this offending falls in the mid-range of objective seriousness.

63. The Court may also have regard to any aggravating or mitigating circumstances, particular to the Offender and the offending. The former to be proven beyond reasonable doubt and the latter on the balance of probabilities.

64. In relation to such matters the Court has taken into account the offender’s previous criminal convictions. It is also relevant the time of the second offending the offender was on conditional liberty in relation to the first offence. It is also apparent from the quantity of drugs and the manner in which they were carried that there was a degree of planning and organisation involved, although far from being a large criminal enterprise. It may also be inferred by reason of the quantity of the drugs in the possession of the offender that the offending was committed for financial gain, although as I previously noted there is no direct evidence of that matter.

65. I have also taken into account the fact that the offender has demonstrated some remorse and he has pleaded guilty to the charges before the Court.

THE SUBJECTIVE CASE

66. The offender is 54 years of age, having been born on 8 January 1964.

67. I have already referred to the report by Ms Godbee which was relied upon by the offender (Exhibit 1). The Offender was interviewed via telephone on 26 April 2018 for the purpose of the report dated 30 April 2018.

68. The Offender described growing up in rural Victoria where his parents’ relationship was characterised by alcohol abuse and violence. The Offender and his siblings lived with his maternal uncle for several years whilst his parents were separated for a period of time. The Offender left home shortly after his parents’ separation. He was 15 years of age and has had minimal contact with his family since that time. The Offender had a good relationship with his mother although he reported that he did not feel safe within the family home due to the domestic violence mentioned.

69. Other than alcohol dependence the offender reported no familial history of drug abuse. He reported to the psychologist that he enjoyed school, being one of the top students in his class, having good friends and not engaging in any serious misbehaviour. He stated that he left school at the age of 16 in order to move away from his family home. Upon leaving home he moved to Melbourne and completed a chef apprenticeship before opening his own restaurant. Subsequently he moved to Sydney and worked as a chef and caterer until his mid-thirties. At some stage thereafter he moved to Papua New Guinea and worked on a boat for National Geographic. At some stage thereafter he moved to the United States where he worked as a private live-in chef for a family for about 12 years before he and his then partner decided to move back to Sydney.

70. The Offender then in Sydney undertook a Diploma in Acute Care Nursing and Intravenous Medication but was unable to complete the final practical placement due to illness.

66. In 2014, he was diagnosed apparently with a Golden Staph infection in his leg, which according to the Offender was misdiagnosed for several months. He recovered slowly from the illness due to allergies to penicillin. Ultimately, the infection was successfully treated but with considerable stress and it is suggested in the psychologist’s report that perhaps it contributed to the subject offending.

67. Like every case in which the Offender elects not to give evidence, the Court is always concerned about the weight to be given to hearsay statements contained in reports of psychologists and the like or character references which in this case do not exist. I approach the history provided to the psychologist with caution and do not place undue or excessive weight upon the history there provided unless otherwise corroborated by independent sources.

68. The Offender reported that he first drank alcohol at the age of 12 and began drinking independently at the age of 17, explaining that he and his friends from work would go out for drinks a few times a week and get drunk. The Offender said this continued for a few years but subsequently his drinking has become irregular and non-existent since his illness.

69. He tried cannabis on a few occasions but did not enjoy the feeling. He started using ice in his mid-thirties having been introduced to the drug at a party and like many people became quickly addicted to that drug. The Offender estimated that he used ice daily for approximately one month before being arrested for possession and serving a custodial sentence. He indicated that he did not use ice again until 2014 when an acquaintance began offering him the drug. The Offender reported that he began consuming up to one gram of ice per day from 2014 onwards. He served another prison sentence in 2015 and he reported abstaining from substance abuse during that time and for the first two months upon release until he began associating with the same acquaintance who had previously offered him ice.

70. With regards to his personal relationship history, the Offender realised his sexuality in his adolescence but did not accept that until he moved to Sydney. He had a number of positive relationships throughout his forties and he reported a relationship which lasted almost ten years, ending poorly as a result of his partner partying and dating other people. The offender stated that the distress over the end of that relationship was part of the context of this offending. As previously stated, in the absence of sworn evidence to that effect little weight can be given to that statement.

71. After this relationship, the Offender stated that he met a younger person online whom the Offender said was a “hustler” and who reintroduced the Offender to ice. The Offender reported to the psychologist that the person began to steal from the Offender, bringing large quantities of drugs to the house for which the Offender was expected to pay. He also began acting in a violent manner towards the Offender.

72. With regard to the context of his offending the subject of the sentence the Offender stated that he was struggling to cope with the end of the long-term relationship and also had to sell the house that he and his ex-partner had owned. This apparently resulted in him being targeted by hustlers as a result of money he had available in his bank account. Around the same time he suffered from the staph infection previously referred to and was unable to complete the course previously referred to. He began using ice on a regular basis.

73. The Offender reported feeling overwhelmed by the violence and theft he experienced at the hands of the person he was dating. On the day of the offence the Offender stated that he intentionally parked in the no stopping zone as he knew police patrolled the area regularly and could not see any other way out of the relationship than to get himself arrested.

74. The Offender reported a number of assaults in custody, the first occurred at Windsor Correctional Centre in 2015 when his jaw was broken, the second at Parklea in 2017, where he was severely bashed by his cellmate who was suffering from an ice induced psychotic episode. This has caused a number of personal ongoing concerns for the offender who remains in custody.

75. Ms Godbee the psychologist recommended the offender engage in a long term psychological treatment in order to assist him in processing his history of trauma, improving his sense of control over his life, learning problem solving and emotional regulation skills, developing insight into the role of his own thoughts and behaviours in his current difficulties and challenging his disordered beliefs about his substance abuse. Those recommendations of themselves suggest the difficulties referred to as being targeted are ongoing concerns.

76. Previous Convictions (if applicable)

77. In considering the appropriate sentence I have as required had regard to previous convictions, counsel for the offender helpfully provided a chronology of prior convictions (MFI 3). The Court of Criminal Appeal sat as a bench of five judges in R v McNaughton (2006) 66 NSWLR 566 to settle how a prior criminal record should be used. They set out seven propositions, indicating how a sentencing judge should take into account the criminal record of an offender at the time of sentencing in order to ensure that the principles proportionality and totality are not breached.

78. Ultimately the sentence to be imposed upon the offender is one which in all the circumstances is not excessive and should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances to which I have already made reference.

79. Here, the previous offending includes the following:

1. supply prohibited drug, having been charged on 15 September 1993;

2. possess prohibited drug and goods in custody, having been convicted on 28 March 1995;

3. 3 charges of possess prohibited drug, having occurred on 6 March 2015;

4. destroy or damage property, having occurred on 31 July 2015;

5. possess prohibited drug, having occurred on 1 August 2015;

6. goods in personal custody suspected being stolen, having occurred on 1 August 2015;

7. larceny value of greater than $5,000 and less than $15,000, having occurred on 6 August 2015;

8. larceny value of greater than $2,000 and less than $5,000, having occurred between 3 August 2015 and 12 August 2015;

9. larceny value of less than $2,000, having occurred between 6 August 2015 and 16 September 2015;

10. goods in personal custody suspected being stolen, having occurred on 16 August 2015;

11. possess prohibited drug, having occurred on 7 September 2015;

12. possess identity information to commit an indictable offence, having occurred on 16 September 2015;

13. possess prohibited drug having occurred on 15 September 2015; and

14. goods suspected stole in or on premises, having occurred on 15 September 2015.

85. The Offender of course is entitled to know the matter in which his previous offending has affected the sentence to be imposed in this instance. In my opinion, his previous offending of the same type for which he presently appears before the Court disentitles him to leniency which he may otherwise attract if he was a person of good character.

86. Remorse

87. Evidence of contrition or remorse in respect of the subject offending is also a relevant consideration. Evidence of remorse must be assessed in context. Remorse is but one feature of post-offence conduct upon which an offender may seek to rely as a matter which has the potential to mitigate penalty. Ordinary human experience would suggest that it is only natural that a person who has committee some misdeed would wish to make the most favourable impression possible in seeking to make amends for it.

88. In the present case the evidence of remorse or contrition as derived from the facts is that the Offender has pleaded guilty to the charges, although one might observe that the plea was made in the face of a strong Crown case.

89. History of Addiction

90. The history of addiction to illicit substances is also a matter in which the Court should have regard. It must be given some weight in the exercise of sentencing both as to the sentence but also in determining the extent to which the offender would benefit from serving part of the sentence in the community. The evidence establishes that the offender has a history of addiction to ice and that he is intending to overcoming that addiction through his participation in rehabilitation programs whilst in custody.

Particular Hardship to Offender

91. In determining this sentence I have also had regard to the particular hardship which may be caused to the offender by being imprisoned in view of his prior experiences and other matters referred to by the psychologist.

92. Rehabilitation

93. In terms of rehabilitation having given careful consideration to the evidence which informs this matter I find that the prospects of successful rehabilitation are just moderate. That evidence of course includes the opinion of the psychologist who states that rehabilitation will only be successful if the offender remains abstinent from illicit substances, something he has struggled to do in the past.

94. Re-offending

95. The likelihood of reoffending is also relevant consideration. Consistent with the finding I have made concerning rehabilitation, I find that the likelihood of reoffending is regrettably moderate. Whilst the psychologist did not specifically address the question of reoffending I take the favourable view for the offender that the risk of reoffending will be substantially diminished through successful rehabilitation.

approach to sentencing

General Principles

96. In sentencing any person it is necessary to have regard to the purposes for which sentences may be imposed as set out in s 3A of the Crimes (Sentencing Procedure) Act NSW 1999. That includes punishment, deterrence, protection, rehabilitation, accountability, denunciation and recognition of the harm done by the offender to the community.

97. There is no doubt that all of those purposes are alive in the present matter. There is obviously a need for punishment in respect of the extensive offending referred to previously. Given the history of offending there is also the need for specific deterrence and given the nature of the offending there is always in cases such as this the need for general deterrence. The sentence must also be directed towards protecting the community from the offender, particularly in circumstances where there is a history of similar offending. Rehabilitation is a further matter to which the Court has had regard.

98. Of course the statutory purpose set out in s3A go no further than those which have been established over many years of common law and the Court does not depart from the principles explained by the High Court in cases such as Veen v The Queen (No 2) (1988) 164 CLR 465 and others. The emphasis to be placed upon the various purposes for sentencing will vary according to the circumstances of each case, including the objective and subjective considerations.

Proportionality

99. The proportionality principle must also be at the forefront of the sentencing judge’s mind; that is to ensure that an offender is adequately punished. The proportionality principle requires that the sentence should neither exceed nor be less than the gravity of the crime having regards to the objective circumstances. In sentencing there must be a reasonable proportionality between the sentence and the circumstances of the crime. The relevant importance of the objective facts and the subjective features will vary in every case. Due weight must be given to the objective circumstances and the Court engages then in a process which has been referred to elsewhere as one of instinctive synthesis.

IMPRISONMENT

100. There is no doubt that charges of this nature to which the Offender has pleaded guilty would ordinarily attract a period of imprisonment. I must be satisfied, however, having considered all possible alternatives that no sentence including non-custodial sentences other than imprisonment is appropriate.

101. In this case, the Crown has contended that the s5 threshold has been met and the term of imprisonment is warranted. Counsel for the Offender frankly admitted the same. I find that, after considering all possible alternatives, imprisonment by way of full-time custody is appropriate.

Guilty Plea

102. I have already mentioned that the offender has pleaded guilty to the charges. Section 22 of the Sentencing Act requires the Court to take into account the fact of a guilty plea, when the guilty plea was indicated and the circumstances in which the offender indicated intention to plead guilty. The Court has discretion pursuant to s 22 of the Act to impose a lesser penalty having regard to the plea of guilt.

103. With regards to the 2015 matters the offender initially pleaded guilty and was committed for sentence in the Local Court, however at the District Court the offender was unrepresented and did not adhere to that plea. The matter was then fixed for trial. After obtaining legal representation the offender indicated to his legal representatives that he would be willing to plead guilty and the plea was formally entered on the first day of trial. With regard to the 2016 offences, pleas of guilty were entered in the Local Court.

104. Counsel for the Offender submitted that the discount on sentence of 15% would be appropriate for the 2015 offence and 25% for the 2016 offence. The Crown agreed with the Offender’s submissions regarding the latter but in respect of the former suggested a 10% reduction.

105. In the circumstances I consider that, having regard to the savings to the community by reason of the fact that the offender has pleaded guilty, a discount of 15% for the 2015 offence ought to be allowed and the full discount of 25% for the latter offences should be allowed and are just and reasonable in the circumstances. I specifically find that such a discount will not result in a lesser penalty which is unreasonably disproportionate to the nature and the circumstances of the offences.

special circumstances – s44

106. Before imposing a sentence and in particular a non-parole period it is also necessary for a Court to consider whether any special circumstances exist so as to justify a departure from the statutory non-parole period of 75/25. The Crown conceded without argument that special circumstances did in this case exist.

107. The Offender submits that special circumstances would be found on the following bases:

1. the particularly onerousness nature of custody for the Offender;

2. the need for appropriate supervision upon release;

3. the need for psychology services, and;

4. to ensure he remains abstinent from illicit drugs.

108. Having regard to the position adopted by both parties and the submissions advanced on behalf of the Offender I find that special circumstances do exist such that the statutory ratio for parole to non‑parole ought to be varied in favour of the Offender.

consistency

109. As previously mentioned, counsel for the Offender presented the Court with statistics regarding sentences for offences of this type. Statistics such as those are of limited use because they do not reveal the full extent of either the objective or subjective case to which they relate. They necessarily provide some guide which should be considered to ensure consistency in sentencing for like matters.

110. Without going through the detail of the statistics handed up by counsel for the Offender from a previous occasion (MFI 2), I can indicate that I have had regard to that matter in considering what is an appropriate and consistent sentence to be applied in this case.

totality, concurrency and accumulation

111. I have also taken into account the principles of totality, concurrency and accumulation to ensure that the sentence imposed is not unduly crushing upon the offender. It is necessary for the sentence to reflect the total criminality of the offending. The sentence must be just having regard to sentencing principles and, as I say not, crushing.

the sentence

Aggregate sentence

112. Having regard to those principles and the question of totality I intend to impose an aggregate sentence pursuant to s53A of the Crimes (Sentencing Procedure) Act. That section of course first requires me to record the sentence which I would otherwise have imposed in respect of each count on the indictment or in this case the Crown Sentence Summary, there being four charges.

Indicative Sentences

113. Before announcing the indicative sentences I confirm that the charges on the two Form 1 documents which attach to the respective charges referred to previously have been taken into account. At the encouragement of counsel for the Offender I have also had regard to the level of co-operation demonstrated by the Offender to the police at the time of his arrest and following.

114. In respect of the first charge, supplying a prohibited drug, namely 7.97 grams of methylamphetamine, were it not for the fact that I intend to impose an aggregate sentence, taking into account the matter on the first Form 1, I would have sentenced the Offender to a period of imprisonment of 30 months which, after the discount of 15% is a term of imprisonment of 25 months.

115. In respect of the second charge, supplying a prohibited drug, namely 71.33 grams of 3,4 methylenedioxyamphetamine (MDA), were it not for the fact that I intend to impose an aggregate sentence, and taking into account the three charges on the second Form 1, I would have sentenced the Offender to a period of imprisonment of 2 years which, after the discount of 25% is a term of imprisonment of 18 months.

116. In respect of the third charge, supplying a prohibited drug, namely 373.4 grams of 1,4 butanediol, were it not for the fact that I intend to impose an aggregate sentence, I would have sentenced the Offender to a period of imprisonment of 2 years which, after the discount of 25% is a term of imprisonment of 9 months.

117. In respect of the fourth charge, supplying a prohibited drug, namely 86.32 grams of 3,4 methylenedioxymethylamphetamine (MDMA), were it not for the fact that I intend to impose an aggregate sentence, I would have sentenced the Offender to a period of imprisonment of 2 years which, after the discount of 25% is a term of imprisonment of 18 months.

118. The total indicative sentence is 8 years and 6 months which, after the various discounts is 6 years and 7 months.

Aggregate Sentence

119. In terms of the aggregate sentence for the head sentence I determine that a period of five years and six months is just and appropriate in the circumstances. With a finding of special circumstances the non-parole period will be three years and eight months representing adjustment of the statutory ratio from 75% down to two-thirds reflecting the special circumstances to which I have previously referred.

Commencement Date – s47

120. In my opinion, the sentence ought to commence from the date 15 December 2016 which is four days prior to the date from which he has been in custody, namely 19 December 2016, representing the additional four days being custody in 2015.

pronouncement of conviction and sentence

121. Would the Offender please stand?

122. You are convicted of the 4 offences set out on the Crown Sentence Summary.

123. I impose a sentence consisting of a non-parole period of 3 years and 8 months commencing 15 December 2016 and expiring 14 August 2020 at which time you will eligible for parole. I impose a head sentence of 5 years and 6 months, which will expire on 14 June 2022.

124. I direct that a copy of the report by Megan Godbee accompany the Offender’s Warrant of Commitment.

125. Further, in respect of this matter I order that, pursuant to s18(1) of the Confiscation of Proceeds of Crimes Act 1989, the sum of $765.00 found on the offender on 19 December 2016 be forfeited to the State. I make orders in accordance with the short minutes of order signed by the parties. Further, in relation to this matter I order that the drugs seized by the police in respect of the various offences referred to be destroyed.

EXPLANATION TO THE OFFENDER

126. This means that you have been sentenced to a period of imprisonment of 5 years and 6 months, with a non-parole period of 3 years and 8 months. The non-parole period which I have set is the minimum time you must remain in prison. After that date, 14 August 2020, you will be eligible for parole. During the period on parole you must be of good behaviour.

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I certify that these are the reasons for the Judgment

of his Honour Judge D Wilson SC

Associate

Last Revised 13 February 2019

Decision last updated: 13 February 2019