R v Porter (a pseudonym)

Case •

[2022] NSWDC 680

•

14 December 2022

No judgment structure available for this case.

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v Porter (a pseudonym) [2022] NSWDC 680
Hearing dates: 25 November 2022
Date of orders: 14 December 2022
Decision date: 14 December 2022
Jurisdiction:Criminal
Before: Haesler SC DCJ
Decision:

Aggregate sentence of 6 years 6 months with a non-parole period of 3 years 3 months

Catchwords:

CRIME - multiple offences - supply large commercial quantity of prohibited drug methylamphetamine - Acquire ammunition subject to Firearms Prohibition Order - Do act with intent to pervert the course of justice - Deal with property reasonably suspected proceeds of crime - Do act with intent to pervert the course of justice - Police pursuit – confiscation of proceeds of crime

SENTENCING - Relevant factors on sentence – multiple offences – assessing objective seriousness of each offence - Form 1 – accumulation and concurrence - accumulation on existing sentence - totality – parity and proportionality with a number of co-offenders - starting date - impact of COVID - good use of time in custody - childhood trauma - childhood deprivation

Legislation Cited:

Courts (Suppression and Nonpublication Orders) Act 2010

Confiscation of Proceeds of Crime Act 1989

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Drug (Misuse and Trafficking) Act 1995

Firearms Act 1996

Road Transport Act 2013

Cases Cited:

Afu v R [2017] NSWCCA 246

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2013] NSWCCA 115; (2002) 56 NSWLR 146

Basedown v R [2010] NSWCCA 76

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Cahyadi v R [2007] NSWCCA 1

Campbell v R [2014] NSWCCA 102

Director ofPublic Prosecutions (Cth) v Beattie [2017] NSWCCA 301

DS v R; DM v R [2022] NSWCCA 156

Green v The Queen (2011) 244 CLR 462; [2011] HCA 49

Hamzy v R (1994) 74 A Crim R 341

Harrigan v R [2005] NSWCCA 449

Isaac v R [2012] NSWCCA 195

Jadron v R [2015] NSWCCA 217

Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40

MAKv R [2006] NSWCCA 381

Marinellis v R [2006] NSWCCA 307

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Mill v The Queen (1988) 166 CLR 59; [1998] HCA 70

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Nasrallah v R [2021] NSWCCA 207

Paterson v R [2021] NSWCCA 273

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

R v Cartwright (1989) 17 NSWLR 243

R v Clinch (1994) 72 A Crim R 301 at 306

R v Dekker; R v Kominkovski [2021] NSWDC 339

R v Frankcom [2021] NSWDC 294

R v Gavel [2014] NSWCCA 56

R v Giang [2001] NSWCCA 276

R v Glynatsis [2013] NSWCCA 131

R v Gordon (1994) 71 A Crim R 459 at 466

R v Herring (1956) 73 WN (NSW) 203

R v Holder; R v Johnston [1983] 3 NSWLR 245

R v Kinzett [2021] NSWDC 339

R v MJB [2014] NSWCCA 195

R v Pangallo (1991) 56 A Crim R 441

R v Simpson [2001] NSWCCA 534; 53 NSWLR 704

R v Spinks [2021] NSWDC 452

R v Spinks [2021] NSWSC 649

R v Taouk (1992) 65 A Crim R 387

R v XX ]2009] NSWCCA 115

Refaieh v R [2108] NSWCCA 72

Stanton v R [2021] NSWCCA 123

Taylor v R [2007] NSWCCA 99

Tepania v R [20018] NSWCCA 247

Van Ryn v R [2016] NSWCCA 1

Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Weininger v The Queen (2003) 212 CLR 629

York v The Queen (2005) 225 CLR 466 [2005] HCA 60 at 542

Texts Cited:

Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497, 2011, BOCSAR

Second Reading Speech for the Crimes (Public Justice) Amendment Bill (Legislative Assembly, Hansard, 17 May 1990

Category:Sentence
Parties: John Porter (the offender)
Director of Public Prosecutions
Representation:

Counsel:
Mr P Strickland SC (for the offender)

Solicitors:
Bilias & Associates (for the offender)
Mr M Rollestone (for Director of Public Prosecutions)
File Number(s): 2019/00260632
Publication restriction:

Pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW), the name of the offender is not to be published nor any information that may reveal the identity of the offender. In this judgment the offender is referred to by a pseudonym.

Portion of published judgment redacted at [15], [98] - [105] [125]

sentence

  1. Pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW), the name of the offender is not to be published nor any information that may reveal the identity of the offender. In this judgment the Offender is referred to by a pseudonym.

  2. Redactions have been made from the published version of this judgment in order to comply with orders made pursuant to the Courts (Suppression and Non-publication Orders) Act.

Introduction

  1. In April 2018, police established a Strike Force to investigate the supply of methylamphetamine in the Southern Wollongong area. Lawful telephone intercepts were placed on suspect’s phones. Because of that investigation, it is now accepted that John Porter, a pseudonym, (the offender) purchased amounts of methylamphetamine from an “upline supplier” and others which he then on-sold to Spinks, Frankcom, Kominkovski, Dekker and Kinzett for further distribution.

  2. In the Local Court those transactions were “rolled up” into a single count with a total weight of 1,286.8g of methylamphetamine: Seq 10 – Supply large commercial quantity prohibited drugs: s25(2) Drug (Misuse and Trafficking) Act 1995 (DMT Act). This accumulation was accepted by the defence.

  3. The snippets of conversation included in the agreed facts reveal how Porter dealt with his associates and managed his business. Those dealings are relevant both to assessing the objective seriousness of the supply charge and to a further charge of knowingly direct criminal group, which will be dealt with on a Form 1: Seq 7 - s93T(4A) Crimes Act 1900 (Form 1)

  4. The telephone Intercepts and police investigations also lead to other charges:

  • Seq 2 – Acquire ammunition subject to a Firearms Prohibition Order: s 74(3) Firearms Act 1996.

  • Seq 3 – Do act with intent to pervert the course of justice: s 319 Crimes Act.

  • Seq 13 – Deal with property reasonably suspected of being proceeds of crime (Audi A5 and Mercedes C63); s 193C(2) Crimes Act.

  • Seq 2 – Do act with intent to pervert the course of justice: s319 Crimes Act .

  • Seq 8 – Police pursuit: s 51B Crimes Act.

Guilty Plea

  1. Guilty pleas were indicated in the Local Court. An aggregate sentence will be imposed. The indicated sentences will each reflect a reduction of 25% to take into account the utilitarian value of the offender’s guilty pleas; which were adhered to in this court: s 25D Crimes (Sentencing Procedure) Act 1999 (C (SP) Act). I have sought not to erode the benefit given for those pleas when formulating the aggregate sentence.

Facts

Seq 10 – Supply large commercial quantity prohibited drugs

  1. The agreed facts set out how, on many occasions, from 7 April 2019 to 9 September 2019, the offender supplied or agreed to supply a total of 1,286.8g of methylamphetamine. About 1,050g (175g on 6 occasions) of the methylamphetamine supplied was purchased from a specified upline supplier, “H”. Who in turn purchased from a wholesaler/manufacturer who was always referred to by a code name; sometimes that wholesaler “let him down.”

  2. Over those few months, the offender and Spinks would discuss the cost, quantities, availability and quality of the drugs supplied. Generally: they discussed the recruitment of others; who were either supplied by Spinks or directly by the offender. At times the offender would chase Spinks and others for money owed to him, as it appears the drugs were supplied on credit. For example, a text to Frankcom on 27 May 2018: “Your at 5400 an u gave me1600 u need to give over 4 to get again coz u have a bill an needs to come done.”

  3. The offender’s dealings involved a criminal group including Spinks, Dekker Kominkovski and Frankcom. The offender had a discrete supplier relationship with Kinzett.

  4. In another call this time from the offender to Spinks on 24 June 2018 the offender says he believed Spinks had “lost interest’ as a supplier.

  5. Spinks replied he had “put in a good effort over the last few days.” Spinks would also supply drugs to others in the network and collect money for the offender. This operation continued until Spinks was arrested on unrelated matters in July 2018: see R v Spinks [2021] NSWSC 649; R v Spinks [2021] NSWDC 452.

  6. The offender, either through Spinks, or directly, supplied drugs to Frankcom, Kominkovski, Dekker and Kinzett. Again, drugs were supplied on credit and debts needed to be chased. Although amounts as small as 3.5 grams were supplied, most involved 28.3 grams (an “ounce”). Some were 14.1 g (½ ounce) and on occasions 42.4 or 56 g (2 or 3 ounces) were supplied.

  7. Each co-offender had their own customers. The offender’s last supply was to Dekker on 20 February 2019.

  8. Frankcom, Kominkovski, Dekker and Kinzett were each arrested in November 2019. The offender had gone into custody on other matters on 22 February 2019: [redacted] He was arrested for these matters on 9 September 2019, He declined to participate in an electronically recorded interview.

  9. I sentenced Kominkovski and Dekker on 25/03/2021: R v Dekker; R v Kominkovski [2021] NSWDC 339

  10. I sentenced Frankcom on 01/07/2021: R v Frankcom [2021] NSWDC 294.

  11. I sentenced Kinzett on 23/07/2021:  R v Kinzett [2021] NSWDC 339.

  12. On 7 October 2022 I sentenced the specific up line supplier, “H”. He was given a pseudonym and non-publication orders were made pursuant to the Courts (Suppression and Nonpublication Orders) Act 2010. That ex tempore judgment has not yet been taken out. That upline supplier plead guilty to two 25(2) Drug Misuse and Trafficking Act offences, involving the six transactions where he supplied the offender with 175g methylamphetamine. Each count was rolled up to 525 grams; a total of 1,050g. For each count I indicated a sentence of 3 years 6 months. The total aggregate sentence was 4 years. with a non-parole period of 1 year 10 months and a balance of the sentence of 2 years 2 months. I reduced the sentence I would otherwise have imposed by 25% in accordance with s 25D Crimes (Sentencing Procedure) Act and 25%, applying s.23 Crimes (Sentencing Procedure) Act, a total of 50%.

Other matters

Seq 2 – Acquire ammunition subject to Firearms Prohibition Order

  1. On 28 September 2015, police served a Firearms Prohibition Order and Weapons Prohibition Order on the offender.

  2. On 26 April 2018, NSW Police conducted a Firearm Prohibition Orders search on the home of the offender’s mother in southern Wollongong. At this time, the offender was bailed to reside at this address.

  3. Police searched the premises and, inside a portable demountable shed attached to a trailer, found; four boxes of shot gun cartridges (57 shells in total), three boxes of .22 calibre rounds (150 rounds) and a rifle scope.

Seq 3 – Do act with intent to pervert the course of justice

  1. At the time of the searches, telephone intercepts captured the offender as he alerted his associates to the search warrants. The offender admitted to possessing and having knowledge of the ammunition; and that he was the subject of a Firearms Prohibition Order.

  2. The offender contacted Spinks and asked he identify a ‘third-party’ who would be willing to claim ownership of the ammunition and take responsibility for them.

  3. Police captured a series of phone calls between the offender, Spinks and a woman, where they sought to devise a scenario that would cast doubt as to the ownership of the ammunition.

  4. The group decided to prepare a false receipt in relation to the purchase of the trailer. Spinks wrote up a false receipt. The woman spoke to police. She stated she had recently purchased the trailer. She gave police the fraudulent hand-written receipt.

  5. After she left the premises, she met up with Spinks. Spinks then made a phone call to the offender and outlined the woman’s recollection of her dealings with police.

Seq 13 – Deal with property reasonably suspected to be proceeds of crime (Audi A5 and Mercedes C63)

  1. During the period of the investigation the offender acquired two high-end vehicles; an Audi A5 and a Mercedes C63.

  2. The Audi A5 was purchased on 26 May 2018 for $32,000.

  3. On 29 May 2018, the offender and one of his sisters attended on the Roads and Maritime Service (RMS). The offender filled out a bill of sale which stated his sister bought the Audi A5 for a price of $1000. The registration of the Audi A5 was then transferred to her name by the RMS.

  4. On 26 September 2018, the offender travelled to Sydney. While there, the offender purchased a white Mercedes C63. This purchase was confirmed by recorded conversations.

Seq 2 – Do act with intent to pervert the course of justice

  1. On 4 June 2018, police attached to Wollongong Highway Patrol established a stationary random breath test site (RBT) on Mount Ousley Road, Fairy Meadow.

  2. At 11:47am, police attempted to stop the Audi A5 for the purpose of conducting a RBT on the driver. The offender was the driver of the vehicle. He failed to stop as directed and accelerated away from the RBT site at high speed.

  3. Police attempted to pursue the vehicle however, due to its speed and manner of driving, they lost sight of the vehicle. It is accepted that the offender did not know police had attempted to pursue his vehicle.

  4. About 11:49am, The offender made a phone call to his sister and said, 'Ah you gotta um ring the cop shop can you ring 000... and tell them you just walked out the front of your house and your car has been stolen please.’

  5. At 11:50am the offender made a telephone call to Spinks and sought his assistance. Spinks offered to let the offender hide the Audi A5 in the rear yard of his property.

  6. About 11:53am, police sighted the offender as he passed the intersection of Northcliffe Drive, Berkeley on the M1. Police activated warning lights and sirens and accelerated to 120km/h however they could not catch up to the offender and terminated the pursuit. It is accepted that, due to the speed of his driving, The offender did not know police were in pursuit.

  7. About 4:35pm the offender made a telephone call to Spinks. Spinks told the offender that police were parked outside his residence. The offender and Spinks had a series of phone calls during which they discussed a plan for Spinks to speed away from the property to distract police from the presence of the Audi A5. However, Spinks gave police consent to search his property. Police seized the silver Audi A5. Spinks and the offender were then recorded discussing plans to fool the police about whose car it was.

  8. That day, the offender’s sister contacted police to report the vehicle stolen.

  9. On Monday 28 June 2018, the offender’s sister participated in an electronically recorded interview with police where she was asked questions such as, ‘What type of car is it?’ and ‘How much did you pay for it?’ She was unable to answer these questions.

  10. The Audi was later forensically examined. Fingerprints belonging to the offender and Spinks were found in the vehicle. The sister’s fingerprints were not located inside or outside the vehicle.

Seq 8 – Police pursuit

  1. The offender is disqualified from driving a motor vehicle until 14 May 2033.

  2. About 5:13pm on 26 September 2018 police were on Mount Ousley Road, Cataract, when they saw the Mercedes C63 the offender had purchased earlier that day. Police attempted to pull the vehicle over.

  3. At this time, police intercepted a phone call between the offender and a friend, who was driving directly behind him. The offender asked her to impede police and block their path. She was unsuccessful and police overtook her. The offender sped off and a pursuit was instigated. Highway Patrol Police activated all warning devices and pursued the offender as he reached speeds of more than 150km/h.

  4. The pursuit was terminated as the offender began to weave in and out of traffic at a high speed. Telephone intercepts revealed the offender drove to an address in Fairy Meadow to hide the car from police. Telephone Intercepts captured the offender and his brother discussing various options to disguise his involvement in the pursuit and protect the vehicle from seizure.

  5. A witness told police that on the night of the pursuit the offender attended her house and bragged that he reached up to 200km/h during the pursuit. The offender stated he was not ‘too concerned’ as the car was registered in another’s name. Later that day police seized the Mercedes C63.

Objective seriousness

  1. A judge must identify all the factors that are relevant to the sentence, discuss their significance and then makes a value judgment as to what is the appropriate sentence, given all the factors of the case: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39. An assessment of objective seriousness or gravity of the offending is a critical component of the sentencing process: Campbell v R [2014] NSWCCA 102 at [27]. But it has been remarked that in some cases an attempt to locate the objective seriousness of the offence on a hypothetical range of seriousness can be unhelpful: Paterson v R [2021] NSWCCA 273 at [32] to [33]); Bektasovski v R [2022] NSWCCA at [11].

Commercial Drug Supply

  1. The sale of illicit drugs causes considerable harm, not just to those who purchase and ingest such drugs but to the community in general. It must be made perfectly clear that those who engage in the sale of drugs for profit, if caught, will almost inevitably end up in gaol. Generally, only a substantial full time custodial sentence can properly reflect the objective seriousness of a commercial drug supply offence and meet the needs, as reflected in s 3A Crimes (Sentencing Procedures) Act, as a sentence by its severity must attempt to deter others.

  2. Further, people who are tempted to supply drugs must ask themselves a simple question: is it worth it? The answer to that question is simple – “No.” If you supply drugs and get caught, you will end up in gaol for a long time!

  3. The amount supplied here is a relevant factor. When the matter was in the Local Court it was agreed that the supply of methylamphetamine in various transactions should be rolled up into one count of supply large commercial quantity of methylamphetamine: s25(2) D(MT) Act: Here, that amount was calculated to be 1.286 KG. The large commercial quantity for the prohibited drug is 500g. The accumulation of drug quantities from over 30 transactions was entirely appropriate and was accepted by the defence: Hamzy v R (1994) 74 A Crim R 341; Jadron v R [2015] NSWCCA 217.

  4. The advantage to the offender in the use of a rolled-up charge is that it restricts the maximum available sentence to that prescribed by the legislation for the single offence, rather than the total theoretically available maximum sentence from multiple charges. The disadvantage is that, as the quantity of drugs supplied sets the penalty range, the quantity now puts him in the large commercial range with a high standard non-parole period and the highest maximum penalty - life imprisonment. That said, in any sentencing exercise the whole of the conduct of the offender must always be considered, regardless of how the charge or charges come before the court for sentence. All of the conduct encompassed in the rolled-up charge is relevant: R v Glynatsis [2013] NSWCCA 131 at [68].

  5. As it is axiomatic that rolled up quantities involve a series of criminal acts, care needs to be taken not to double count aggravating factors, such as s 21A(m) C (SP) Act. Although the number of occasions drugs were supplied remains a relevant consideration.

  6. The offender ran his operation over some months. Although haphazard and based on extending credit to downstream suppliers, who were all themselves users, it was his business. A large number of transactions took place and he intended to profit from each of them. A considerable quantity of methylamphetamine made its way into the community. While that quantity is double that at the bottom of the large commercial range it must be noted that the upper end is unlimited and can involve quantities in the tonnes. He contributed financially to the cost of the operation and while he allowed his subordinates credit, he expected, and demanded, repayment. He had a decision-making role. He distanced himself from the day-to-day sales to users.

  1. Here, while I have no doubt that the offender was himself a user, the drugs were distributed for profit, for greed. The offender’s operation was substantial. Its objective features require a substantial punishment that can only be met by years of imprisonment.

Police pursuit

  1. The community is dependent on the hard work and at times courage of police officers for the protection of lives, personal security and property. Police officers take substantial risks in the execution of their duties. Where a driver blatantly ignores police and seeks to flee, they put police and other road users at significant risk. To ignore police directions shows a high degree of moral culpability.

  2. The extent of that culpability can be assessed by considering; the distance covered, nature of the driving and speed relative to posted speed limits and driving conditions, the time of day, how much other traffic is about and level of risk to other road users, including police.

  3. Here, the offender put police and other road users at risk by driving at excessive speed and weaving in and out of traffic, in a manner so dangerous that police prudently stopped their pursuit. He was disqualified and should not have been driving at all. His actions were so serious a breach of the road rules that only a gaol sentence could meet the purposes of punishment and reflect how serious his offending was.

  4. He must also be disqualified from driving. That disqualification will be stayed while he remains in custody: s 206A Road Transport Act 2013. It will be accumulated upon other disqualifications. He is presently disqualified until 2033. Not having a licence will impact on his capacity to rehabilitate particularly in obtaining employment but some disqualification period relative to his offending must be imposed. Serious though his driving offence was I will set the minimum disqualification period the law allows. He may, if he applies himself, earn a reduction in his disqualification period: s 221B Road Transport Act.

Pervert the course of justice

  1. The community has an interest in ensuring that justice is properly done: Second Reading Speech for the Crimes (Public Justice) Amendment Bill (Legislative Assembly, Hansard, 17 May 1990.

  2. Offences of perverting the course of justice can strike at the very heart of the justice system. Accordingly, it is generally accepted that they must be severely punished wherever detected, as strongly deterrent sentences are required: Marinellis v R [2006] NSWCCA 307 at [10]; R v Pangallo (1991) 56 A Crim R 441 at 443; Harrigan v R [2005] NSWCCA 449 at [47]; R v Giang [2001] NSWCCA 276 at [21].

  3. The fact that an attempt to pervert the course of justice did not succeed or was doomed to failure is of far less significance than in the case of sentencing for an attempt to commit some other substantive offence: Taylor v R [2007] NSWCCA 99 at [25]; Marinellis at [8]; R v Taouk (1992) 65 A Crim R 387 at 392. It is the tendency of the conduct which is decisive, and it is irrelevant whether the conduct does or does not bring about a miscarriage of justice: Marinellis at [8].

  4. Here, both efforts to pervert the course of justice were uncovered as they began. They were amateurish and had little hope of success, even if the police had not been aware of them because of the telephone intercepts. Neither offence rose to the level of “striking at the heart of the justice system” and were thus low order examples of this sort of offence.

Deal with property reasonably suspected of being proceeds of crime

  1. The acquisition of assets, such as high-end motor vehicles is seen, to some, as symbols of success. When those assets are acquired from the proceeds of a drug supply enterprise, they similarly symbolise the dealer’s success in their chosen trade.

  2. Although, as Mr Strickland SC for the offender, points out, each vehicle was older and second hand; their acquisition reflects the fact that the offender’s operation was run not just to secure drugs for his own use but to fund a lifestyle he aspired to a lifestyle based on the exploitation of others.

  3. Here; the extent and nature of the enterprise and the fact it was carried out for financial gain has already been taken into account. While a separate and discrete penalty is required for each offence, that assets were bought with the proceeds of the drug supply does little to increase the overall criminality of the offending behaviour. Care must be taken not to doubly punish for matters already taken into account when sentencing for the other more serious offending.

Acquire ammunition subject to Firearms Prohibition Order

  1. The criminality of breaching Firearms Prohibition Order rests in the complete disregard for a process designed to protect the community from risk of harm from firearms offences. Such conduct has the practical effect of undermining the authority of the police.

  2. If the authority of the police in making these orders is simply ignored, as the offender did, the law is diminished. There was no justification here for the possession of the items. When an offender possesses such items knowing that it is illegal to do so, then that knowledge increases the objective seriousness of the offence:  Basedown v R [2010] NSWCCA 76 at [20]

  3. The possession of unauthorised ammunition and other prohibited items in connection with the offender’s other criminal activities increases the seriousness of the offence. It is axiomatic that that the offence was committed without regard for public safety. Here, however no firearms were found, only a relatively small quantity of ammunition was seized and a rifle sight. Without underestimating the potential of those items to be used to harm others, it is the blatant breach of the order that requires custodial punishment

Form 1

  1. Generally, an increased sentence is required to recognises the need for personal deterrence and retribution for the crime for sentence: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2013] NSWCCA 115; (2002) 56 NSWLR 146 at [39] – [42]. Care is required here. The crime for sentence is aggravated because it involved organised criminal activity: s21A(2)(n) C(SP) Act 1999. That crime covers all of Porter’s drug dealing. And Porter is being sentenced on the basis that he was controlling that organised criminal activity.

  2. It would be double counting to take into account that factor on a Form 1 as it has been taken into account when assessing the objective seriousness of the principal offence.

Maximum penalties and Standard non-parole period

  1. The seriousness of the drug supply offences before the Court is reflected in the maximum penalty of life imprisonment and the fact that Parliament has fixed a standard non parole period of 15 years for such offences. The standard non-parole period represents the non-parole period for an offence that taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.

  2. I am required to give content to the standard non-parole period. In doing so I am required to assess objective seriousness without reference to matters personal to the offender and wholly by reference to the nature of the offending: Muldrock v The Queen (2011) 244 CLR 120 at [27]; [2011] HCA 39; Tepania v R [20018] NSWCCA 247 [103] to [120]. However, as the High Court in Markarian v The Queen (2005) 228 CLR 357 and Muldrock v The Queen, made clear neither can I engage in a staged approach to sentencing: at [28]. A process of comparing and contrasting the actual offence with an abstract one is not necessary; nor is it necessary to identify features of the offence which were or were not taken into account when considering the role of the standard non-parole period: s.54B(6): Tepania v R [103] to [120]

  3. Other maximum penalties are:

  • Acquire ammunition subject to a Firearms Prohibition Order: s 74(3) Firearms Act 1996 – 5 years.

  • Do act with intent to pervert the course of justice: s 319 Crimes Act – 14 years.

  • Deal with property reasonably suspected of being proceeds of crime; s 193C(2) Crimes Act - 3 years.

  • Police pursuit: s 51B Crimes Act - 5 years. There is a mandatory driver’s licence disqualification. Given there are prior convictions for major offences the automatic disqualification period is 5 years. The minimum period is 2 years..

  1. Careful attention to the maximum penalties and standard non-parole periods is required. Here, both provide sentencing measures to be balanced with all other relevant factors. They also invite a comparison between the instant case and other cases. That said, it is not appropriate here to look first to a maximum penalty or if it applies a standard non-parole period and then proceed by way of making a proportional deduction from it: Markarian at [30] and [31].

COVID

  1. The offender has been in custody throughout the pandemic and has been subject to all the restrictions on programmes, work and visits brought in an attempt to reduce the spread of infection. He has been locked in cells on many occasions as gaols went into quarantine. Some lockdowns lasted weeks with only ½ hour per day out of cells for exercise. He has caught COVID twice, requiring he be locked in a cell for the quarantine period. He has not regained his sense of taste and still suffers headaches and other symptoms. He only receives Panadol for pain relief.

  2. All these hardships must be taken into account in mitigation of sentence. Judges do not ignore the lived experience of gaol particularly in these troubled times.

Record

  1. After spending time in juvenile detention, the offender went to gaol for the first time in 2010. He returned to gaol in 2011, after five months in the community. After release he spent 19 months in the community before returning to gaol in 2013 to 2014. He spent 17 months in the community before returning to gaol from 2015 to 2017. He was out of gaol for five months before returning to gaol in August 2017. He was released on the 17th of April 2018. He last entered custody on 22nd February 2019 and he's been in gaol ever since.

  2. Porter’ adult record includes, driving offences, assaults, possession of child abuse material, destruction of property, use of a prohibited weapon contrary to a prohibition order, larceny, break and enter, and the serious domestic violence offences, for which I sentenced him in 2019.

  3. His record indicates that this offending is not an uncharacteristic aberration. It demonstrates his continuing disobedience towards the law. While prior criminal history cannot result in a sentence which is disproportionate to the gravity of the offences for sentence, here a more severe penalty is warranted, with additional focus on retribution, deterrence and the protection of the community: Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 477.

Subjective case

  1. The offender was born in 1992. He gave evidence. He confirmed the history given to Professor Woods, see [85] – [89] below, and evidence that came from one of his sisters. He said he had, until recently, told no one else about what had occurred in juvenile detention. He said he still felt the humiliation and anger about what had been done to him. He said he escalated his drug use to block out what had occurred.

  2. He told me that that the courses he had done in custody had helped him focus on the matters that led to his longstanding drug addiction. He said that he had time to think about the charges and the impact on the community and he was embarrassed and ashamed by what he had done in distributing drugs. He acknowledged that he had ruined his family and other families. He intends on release to remove himself from contacts in criminal networks and an associate with his referees, who had known for a long time and from whom he had hidden is offending. He now has no gaol friends and is looking forward to parole and being able to prove himself.

  3. I received a report, and a supplementary report, from a psychologist Professor Stephen Woods, numerous character references and Gaol certificates. I also had reference to my earlier sentence judgment. On that occasion I was not optimistic the offender could turn his life around, although I did make a finding of special circumstances to allow for accumulation and extended supervision on release. He seems to have heeded what I said and is now doing much better.

  4. His many referees speak of a different person to the one depicted in the police facts and telephone intercepts. They speak of his desire to move forward and his regret for his crimes. While I cannot accept their uniform assessment that he is a “good person,” that pro-social members of the community are prepared to offer their support gives me some confidence that with that support he can turn his life around.

  5. He has also been doing all he can in custody so far as work and programmes are concerned. That he has been able to do so despite the pandemic shows a commendable level of initiative. He seems to have benefited from those programmes.

Professor Woods

  1. The Professor set out the offender’s deeply troubled history, including repeated instances of sexual assault while in juvenile detention. He notes a changing attitude during his time in custody toward appropriate behaviour and his need to rehabilitate himself and deal with his underlying problems.

  2. Professor Woods explains that the offender’s underlying sexual dysfunction may have contributed to problems with his former partners. Although I note that these matters were not raised in the previous proceedings and that there is an element of victim blaming in this reasoning.

  3. Professor Woods’ clinical interviews led him to the opinion that as a result of his history and trauma the offender has; a personality disorder with mixed features, a substance use disorder, a major depressive disorder and post-traumatic stress disorder. He provided me with information about those conditions. He concluded:

“[The offender] is an indigenous man who presents with a deeply disturbing history characterised by emotional and social deprivation, poor role models, educational disadvantage and early life exposure to drug use.”

  1. The Professor noted that following his release from juvenile detention the offender’s previously low-level drug use had increased. He said that in his clinical forensic opinion there was a causal nexus between the offender’s traumatic and psychosocially deprived history and his offending.

  2. He recommended that if the offender was to have any realistic chance of breaking the cycle of substance use leading to offending, it would be necessary for him to have the benefit of an integrated long-term rehabilitation and treatment regime. That regime should include individual psychological treatment to address symptoms of his underlying conditions, Cognitive Behaviour Therapy and intensive individual psychotherapy. He would require substance use relapse prevention treatment and considerable help improving his vocational and literacy skills.

Remorse

  1. There has been an acceptance of responsibility, and some limited remorse shown, gained from the offender’s increasing insight into the impact of his offending. This must be taken into account.

Trauma history

  1. A sexual assault can have profound and highly detrimental impact on the child so assaulted: R v MJB [2014] NSWCCA 195 at [49]; R v Gavel [2014] NSWCCA 56; and Stanton v R [2021] NSWCCA 123 at [67], Nasrallah v R [2021] NSWCCA 207 at [100]-[102]. Such impacts are here relevant, by way of mitigation. I do not devalue the impact of the particular traumatic events detailed the evidence before me, which was destructive of the adolescence of this offender and still has an impact on him. Such a background is always relevant in matters such as this; and should be given proper effect when synthesising an appropriate and just sentence. It can help explain why as a young person the offender took up or increase his illicit drug use.

Impact of his background

  1. The offender’s trauma and his early life experiences and background has left a mark and compromised his capacity to mature and learn from experience. His moral culpability is, I accept, less than the culpability of an offender whose formative years have not been marred in that way: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.

Parity

  1. This sentence must also be determined by having regard to the circumstances of the co-offenders and their respective degrees of culpability - like must be compared with like. However, different personal and criminal histories may justify a real difference in the time each will serve in prison: Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26. This principle is known as parity. It is the classic example of the need to, so far as possible, to ensure equal justice: Green v The Queen (2011) 244 CLR 462; [2011] HCA 49; Afu v R [2017] NSWCCA 246.

  2. Where direct comparisons are not possible the sentence imposed between co-offenders must still be proportionate; in the sense that each sentence properly reflects the personal circumstances of the particular offender and the particular conduct in which the offender engaged when those circumstances and that conduct are compared with other offenders and offending: Magaming v The Queen (2013) 252 CLR 381 at [51].

  3. Here there is no real comparison between the offender and his underlings other than Spinks, who was a trusted lieutenant and “H” the upline supplier. Spinks and “H” had different subjective circumstances and were less involved in the business side of the operation. Spinks plead guilty very late. He was also sentenced in the Supreme Court for another very serious offence.

  4. Criminal organisations rarely come with a corporate management structure chart. Although the already sentenced upline supplier was up line and had links with the main supplier, he acted primarily as a conduit between that supplier and the offender, taking his fee for each of each six transactions of 175 grams. While the quantity of drugs was (obviously) similar to that supplied by the offender their role, potential profit and personal circumstances were quite different. His sentence was also subject to statutory reductions.

  5. In my assessment the offender’s role in the supply operation and the manner and quantity of the drugs supplied make his crime the more objectively serious of those offenders dealt with to date. That said, the offender’s subjective case is compelling, as was the already sentenced upline suppliers, albeit for different reasons.

[Redacted]

  1. [Redacted].

  2. [Redacted].

  3. [Redacted].

  4. [Redacted].

  5. [Redacted].

  6. [Redacted].

  7. [Redacted].

  8. [Redacted].

Submissions

  1. The parties provided written submissions. There was no significant differences between them on matters of sentencing principle. Both counsel spoke to those submissions. There were some differences in their submissions about the level of objective seriousness of each offence. I have sought to address and determine those issues in this judgment.

  2. Mr Strickland took me to his assessment of the objective seriousness of the various offences, noting that the drug supply should not be compared with what are often more sophisticated operations. He noted that; the codes used were amateurish, no attempt was made to use encrypted devices and the drug was often of poor quality, there were often disputes about money and debts not being paid. If this was a normal business, he submitted, it would soon be in receivership. By comparison with many large commercial supply offences this one, he submitted, fell at the lower end.

  3. He asked that when I consider the offender’s moral culpability, I give full weight to material that showed what had formed the young man. Mr Strickland drew attention to evidence that showed that the impact on the offender had been “profound.” He said that despite his past offending the offender now realises, as he has begun to mature, that he can do something about his underlying problems, and that he must do something about them, if he does not want to spend the rest of his life in gaol.

  1. Mr Strickland took me to issues relating to parity and commencement dates and the accumulation of sentences.

  2. In response Mr Rollestone accepted that the supply operation was not sophisticated. But he noted that the agreed facts showed Porter was in charge of this operation and he in effect “herded” the others, ensuring that the operation continued to run. In relation to each matter for sentence he stressed the deliberateness of what was done on each occasion.

Structure

  1. I am required to impose an appropriate sentence for each offence and to structure the sentences such that the overall sentence is just and appropriate to the totality of the offender’s crimes: Mill v The Queen (1988) 166 CLR 59; [1998] HCA 70 at 62-63; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26; Cahyadi v R [2007] NSWCCA 1.

“When a custodial sentence is to be imposed which will be cumulative upon, or which would overlap with, an existing custodial sentence, the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of the criminality involved in all of the offences to which that total period is attributable”. R v Gordon (1994) 71 A Crim R 459 at 466; cited with approval in Postiglione.

  1. Here, I must sentence for a number of distinct offences with very different consequences and accumulate that sentence on other distinct offences with very different consequences. There are my earlier matters and the offender has also received sentences in the Local Court. There must be some accumulation of penalties.

  2. There is a significant practical consideration confronting a sentencing judge when sentencing for multiple offences, let alone when they must be accumulated on existing sentences of some length. The simple arithmetical addition of the sentences appropriate for each individual offence considered separately will often result in a total sentence that exceeds what is called for.

  3. A sentencing judge needs to evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so determine what, if any, downward adjustment is necessary in the aggregate sentence in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences: R v Holder; R v Johnston [1983] 3 NSWLR 245 Street CJ at 260.

  4. The totality principle also recognises that sometimes appropriate punishment for each offence can result in a sentence that is unduly harsh or crushing. The severity of a sentence is not simply linear. The severity of a sentence may increase at a greater rate than an increase in the length of a sentence, for example; a sentence of two years has greater impact than one, so far as the punitive aspects of a sentence is concerned: R v Clinch (1994) 72 A Crim R 301 at 306, approved in MAK v R [2006] NSWCCA 381.

  5. At the same time the need to ensure public confidence in the administration of criminal justice requires that the community not be left with a perception a person who commits a deliberate series of discrete offences can escape effective punishment for the offences which follow successively one upon another throughout the whole course of a deliberate course of criminal behaviour: Van Ryn v R [2016] NSWCCA 1 at [228] - [230]: Cahyadi at [27]: R v XX [2009] NSWCCA 115 at [52].

  6. What is a proportionate sentence or what might be seen as a “crushing” sentence can depend on the perspective of the observer; whether they are a victim, community, appeal court or the offender: Director ofPublic Prosecutions (Cth) v Beattie [2017] NSWCCA 301.

  7. The severity of a sentence should not operate to destroy prospects of rehabilitation and reform. An extremely long sentence may be 'crushing' upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform.

Start date

  1. Mr Strickland provided a helpful table setting out a chronology of the offender’s sentences of imprisonment and court dates. They reveal that these matters and his other offending all occurred in a discrete period from April 2018 and ended when he entered custody on 22 February 2019.

  2. He had previously been released on 8 December 2017, after serving a short sentence.

  3. My early sentences commenced on 21 August 2020, after he had served about 1 year six months for Local Court matters. My accumulated minimum period in custody was 2 years 3 months. He became eligible for parole on 21 November 2022. Those sentences expire on 21 August 2024. But on 25 March 2021, further fixed term sentences of 1 year were imposed for domestic violence offences that occurred in June 2018. They expire on 21 January 2023.

  4. The offender presently is eligible for release on 21 January 2023 after he been in continuous custody for very close to 4 years. He must serve more time.

  5. There has been considerable delay in bringing all the offender’s matters to a conclusion. That delay has meant that no one judicial officer has been able to formulate a single aggregate sentence. The delay has also allowed the offender to demonstrate some progress toward rehabilitation and, at last, reveal some underlying matters that had an impact on his offending and hopefully that rehabilitation. I do not wish to impede unduly that progress and destroy any expectation of a useful life after release.

  6. As Mr Strickland submitted, I have a broad discretion in determining when to start this sentence, even though the offender has not been custody solely referable to it: Refaieh v R [2108] NSWCCA 72 at [82]. The prosecution do not disagree. There was disagreement however about what that date should be That disagreement must be resolved by applying the principles noted above. I propose to start the aggregate sentence in this matter on 22 February 2022, to allow some discrete punishment for, and some concurrency with, my earlier sentences and the last Local Court sentences.

Special Circumstances

  1. The evidence relating to;

  • [redacted],

  • Efforts made to date to turn his life around,

  • Need for help adjusting to normal community life after a lengthy sentence and,

  • accumulation;

all provide a basis for a finding of special circumstances. However, in so finding I am mindful of a requirement that the minimum period for which the offender should be imprisoned must also properly reflect the gravity of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].

  1. It also important to note that studies reveal that offenders who received parole supervision upon release from custody take longer to commit a new offence, were less likely to commit a new indictable offence and committed fewer offences than offenders who were released unconditionally into the community: Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497, 2011, BOCSAR.

Synthesis

  1. A judge must make an objective assessment of the seriousness of each crime and the matters causally related to it. All factors which bear upon the seriousness of the offence should be taken into account.: Paterson v R [2021] NSWCCA 273 at [29]; Tepania v R at [112].

  2. A judge must also consider the “moral culpability” of the offender; that is, their moral blameworthiness for the offence. A determination of moral culpability can involve a consideration of a wider set of subjective factors affecting an offender than an assessment of objective seriousness: DS v R; DM v R [2022] NSWCCA 156 at [63] to [96].

  3. The sentencing exercise involves “a synthesis of competing features which attempts to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money”: Weininger v The Queen (2003) 212 CLR 629.

  4. Here a series of serious offences was committed by a man who had turned his back on our community and preyed on it. He did so for his advantage with little concern for others or himself. He must be punished for the harm he did, and other wrongdoers must learn the retribution which will fall upon them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203.

  5. On a superficial level the offender presents as irredeemable, but I am prepared to accept that that he is now making concerted efforts to change his life and earn the trust others still show in him.

  6. He must be properly punished but I will give him an opportunity by a finding of special circumstances to prove himself in the community. He will require considerable assistance and his prognosis must be guarded. He must also earn the right to release to parole the State Parole Authority will not make a parole order unless it is satisfied that it is in the interests of the safety of the community: s135 Crimes (Administration of Sentences) Act 1999.

Orders

Indicated sentences

  1. Each indicated sentences reflects statutory discounts:

Seq 10 – Supply large commercial quantity prohibited drugs, taking into account the Form 1, as it carries a standard non parole period, I indicate a sentence of 5 years 4 months with a non-parole period of 3 years.

Seq 2 – Acquire ammunition subject to Firearms Prohibition Order, I indicate a sentence of 1 year.

Seq 3 – Do act with intent to pervert the course of justice, I indicate a sentence of 6 months.

Seq 13 – Deal with property reasonably suspected of being proceeds of crime, I indicate a sentence of 1 year.

Seq 2 – Do act with intent to pervert the course of justice, I indicate a sentence of 6 months.

Seq 8 – Police pursuit, I indicate a sentence of 1 year. You are disqualified from driving for 2 years.

Aggregate sentence

  1. There will be an aggregate sentence of 6 years 6 months with a non-parole period of 3 years 3 months commencing on 22 February 2022 and expiring 21 May 2025. The balance of the sentence of 3 years 3 months is to commence upon the expiration of the non-parole period on 22 May 2025 and expiries on 21 August 2028.

Total sentence as accumulated 9 years 6 months.

Total non-parole period as accumulated is 6 years 3 months - earliest release date 21 May 2025.

  1. I direct that a copy of the report of Professor Woods dated 10/08/2022 (exhibit 1) be forwarded to Corrective Services with the warrant.

**********

Amendments

13 February 2023 - Amendment to Pseudonym

Decision last updated: 13 February 2023

Cases Citing This Decision

0

Cases Cited

48

Statutory Material Cited

7

Afu v R [2017] NSWCCA 246
Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
R v Barrientos [1999] NSWCCA 1