R v Powell

[2007] NSWDC 227

CITATION:	R v Powell [2007] NSWDC 227
HEARING DATE(S):	03/04/07 17/05/07
JUDGMENT DATE:	17 May 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Conlon SC DCJ
DECISION:	CONVICTED: Counts 4-7 Sentenced to fixed terms of 6 months imprisonment; Counts 1-3 Sentenced to non-parole period of 15 months with an additional 2 years and 6 months. Special Circumstances.
CATCHWORDS:	Supply prohibited drug - Receive proceeds of crime - Assistance to authorities
LEGISLATION CITED:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
CASES CITED:	Regina v Clarke (unreported NSWCCA 15 March 1990) Regina v PP [2005] NSWCCA 214
PARTIES:	Crown Haydn Powell (Accused)
FILE NUMBER(S):	07/41/0012
SOLICITORS:	Ms T Pawliw (Crown) Mr N Burke (Accused)

JUDGMENT

1 HIS HONOUR: The offender Haydn Isaac Powell appears for sentence following his pleas of guilty to the following charges:

2 Count 1: That between 5 May 2006 and 21 June 2006 at Fairy Meadow in the State of New South Wales he did supply a prohibited drug, namely cannabis, in the amount of 1.569 kilograms being an amount more than the indictable quantity but less than the commercial quantity. That is an actual supply and the maximum penalty is one of fifteen years imprisonment;

3 Count 2: That between 5 May 2006 and 21 June 2006 at Fairy Meadow in the State of New South Wales he did supply a prohibited drug, namely 3,4 methylenedioxymethamphetamine in the amount of 9.9 grams being an amount more than the indictable quantity but less than the commercial quantity. That is also an actual supply and the maximum penalty is one of fifteen years imprisonment;

4 Count 3: That between 5 May 2006 and 21 June 2006 at Fairy Meadow in the State of New South Wales did supply a prohibited drug, namely methamphetamine, in the amount of 9.05 grams being an amount more than the indictable quantity but less than a commercial quantity, (also an actual supply) and the maximum penalty being fifteen years imprisonment;

5 Count 4: That on 20 May 2006 at Wollongong in the State of New South Wales he did receive the proceeds of crime being an Apple computer in circumstances where he knew that the Apple computer was the proceeds of crime and where he was reckless as to whether the Apple computer was proceeds of crime. This carries a maximum penalty of ten years imprisonment.

6 Count 5: That on 21 June 2006 at Fairy Meadow in the State of New South Wales he did supply a prohibited drug, namely methamphetamine, in an amount of 8.78 grams being an amount more than the indictable quantity but less than the commercial quantity. This is a charge of deemed supply and the maximum penalty being fifteen years imprisonment.

7 Count 6: That on 21 June 2006 at Fairy Meadow in the State of New South Wales he did supply a prohibited drug, namely cocaine, in an amount of 3 grams being the trafficable amount. This is also a charge of deemed supply, the maximum penalty fifteen years imprisonment.

8 Count 7: That on 21 June 2006 at Fairy Meadow in the State of New South Wales did supply a prohibited drug, namely 3,4 methylenedioxymethamphetamine, in an amount of 3.62 grams being an amount more than the indictable quantity but less than the commercial quantity. This is also a count of deemed supply and carries a maximum sentence of fifteen years imprisonment.

9 The offender has also requested that three further matters be taken into account on a Form 1 schedule for count one on the indictment.

10 The crown tendered a bundle of documents, exhibit A, included in which was a statement of facts some sixteen pages in length. That statement details the facts and circumstances upon which the crown relies to support not only the charges on the indictment but also the matters to be taken into account on the Form 1 schedule. Whilst those detailed facts clearly demonstrate the objective seriousness of the present offences I will not repeat them here. However by way of brief summary, between 5 May and 21 June 2006 the offender was the subject of a covert investigation in relation to the supply of prohibited drugs in the Wollongong area. Police utilised telephone intercepts and physical surveillance to monitor the movements of the offender and identified coded telephone calls from a number of mobile phone services used by him.

11 Between 5 May 2006 and 7 June 2006 in excess of 2,300 calls were intercepted upon mobile telecommunication services 0431 535 968 which was confirmed as being used by the offender. Approximately eighty to ninety per cent of the intercepted calls related to drug supply.

12 The offender’s method of distributing drugs was to have persons call his mobile phone to set up a meeting. During those calls he asked persons to attend his residence or alternatively he delivered the prohibited drugs to an agreed location. The offender used coded conversation on the phone and constantly reminded others to be careful what they said when speaking on the phone. He regularly used phrases such as, “Do you want to call past?”, or, “Do you want to pick me up?”, to avoid mentioning specifics on the phone. Specific coded conversation was identified in relation to the prohibited drugs of cannabis, methylenedioxymethamphetamine (Ecstasy) and methamphetamine.

13 The first three counts on the indictment involve continuous actual supplies during the period stated (that is from 5 May 2006 to 21 June 2005). Count four refers to his receiving of the Apple computer.

14 On 21 June 2006 police executed a search warrant at the offender’s residence at unit 50, 214-220 Princes Highway, Fairy Meadow. During the search an assortment of drugs were located in resealable plastic satchels within a large container. The offender’s possession of those drugs forms the basis of counts five to seven on the indictment, being charges of deemed supply.

15 With regard to the objective seriousness of these matters I regard the element of deterrence, both specific and general, to be a significant factor on sentence.

16 The offender’s criminal record reveals that on 25 October 2005 at Wollongong Local Court in respect of a charge of malicious damage he was given a section 9 bond to be of good behaviour for twelve months.

17 On 18 March 2006 (a very short time prior to that time period stated in relation to the offences on the indictment) he was charged with two counts of possessing a prohibited drug. He was not dealt with on those offences until 18 August 2006 when he was fined and given another section 9 bond respectively.

SUBJECTIVE MATTERS

18 He is now twenty-two years of age. He resides with his grandparents and has done so since fifteen years of age. The offender informed Ms Kylie O’Neil, Probation and Parole Officer (report dated 27 March 2007, exhibit B) that he was born in Wollongong but when five years old his parents relocated to Bundaberg Queensland where he resided until he was fifteen. The offender’s grandmother informed the probation officer that his parents then sent him back to live with her as they were concerned he was associating with the wrong peers.

19 The offender is the youngest of three siblings, they live in Queensland and he has no contact with them. The offender informed the probation officer that he is unable to communicate with his parents and feels he has nothing in common with them. Whilst he gets along well with his grandmother the offender experienced ongoing conflict with his grandfather and was apparently “kicked out” of the home in early 2006 following an argument with his grandfather.

20 He then moved into a flat with mates where he slept on the lounge. The offender completed his school certificate at age sixteen, he then commenced a certificate course in real estate at TAFE. He was employed intermittently in various real estate positions but had his employment terminated owing to the instability in the housing industry. He is currently self employed and contracted as a personal trainer with a fitness club in the Sydney area.

21 Under the heading “Alcohol and Drug Issues” it is reported that the offender claimed he had been using illicit substances for twelve months prior to the commission of these offences although he has claimed his use to be occasional and did not feel his substance use was problematic.

22 In respect to these offences he forthrightly admitted to the probation officer that they were committed solely for financial gain. The probation officer stated that he displayed little insight into his offending behaviour and the impact it would have on the community. He stated he has now gained employment and he feels his life is “on track”. He was assessed as suitable for both a community service order and for periodic detention.

23 The defence tendered a report of Esme Nasser, Clinical Psychologist (dated 18 January 2007, exhibit 2). With regard to his parents the offender told Ms Nasser:

“I can’t stand my parents. I love them but I hate them, I can’t stand them. They are nothing like me at all”.

24 Ms Nasser commented:

“Mr Powell resents that his parents are educated professionals but are not employed due to their disabilities. He resentfully states, ‘They didn’t teach me work ethic. I only realise now that you have to work for things. It was something that I had to learn for myself, I was never taught’”.

25 In respect to his drug use he stated that he had resumed taking Ecstasy at the age of twenty years every weekend until he was apprehended in July 2006. He stated that at age twenty-one (that is March 2006) he added cocaine to his list of addictions using it on weekends and more often in the last two months prior to his arrest. The offender also informed Ms Nasser that his motivation to become involved in the supply of drugs was money.

26 Ms Nasser stated on page 7 of her report:

“Mr Powell is suffering from two personality disorders, being antisocial and narcissistic”.

27 With regard to the latter she commented:

“He did agree to having a grandiose sense of self importance and a preoccupation with fantasies of unlimited success, power, brilliance and beauty. He agreed that he believed that he is ‘special’ and can only be understood by or associated with other special or high status people”.

28 She continued:

“Mr Powell maintains that he has learned a great deal from having been apprehended by police. He states that this single life event has been the one thing that has taught him that he needs to work for what he earns. Unfortunately he maintains an attitude of entitlement and this continues to extend to his family. It appears to be less directed towards society at this time. He describes remorse in relation to the offences maintaining that he understands the impact of his behaviour on society. It would be of greatest benefit to Mr Powell that he receive therapy to address the personality disorders from which he is suffering and to help him develop an understanding of himself and his behaviours so that the remorse he expresses will be reflected in his future behaviour. Personality traits are often intractable but the potential for behavioural modification is greater given strong incentives.

Mr Powell requires insight orientated therapy and cognitive behavioural intervention to assist him to develop the appropriate skills to become a law abiding citizen. He is currently enjoying legitimate employment in a field which caters to his narcissistic needs in a traditionally narcissistic environment. Of course this is not to say that everybody in that environment suffers from this disorder. It is an ideal environment for Mr Powell to receive or perceive that he is receiving the admiration that he desires. This is most certainly one reason why he enjoys his work as much as he claims”.

29 In concluding Ms Nasser commented as follows:

“During the assessment he made claims that if he were to go to prison he would commit suicide because he cannot handle the thought of coming out of prison ‘without anything’. I believe his suicide risk is low however it is very likely that he will suffer depression in prison given that there will be nothing to admire about his achievements or even appearance in that environment”.

30 The offender’s grandmother, Mrs Mikali, gave evidence before me. She confirmed much of the history the offender provided to the probation officer and psychologist. She stated that the offender indeed moved out of her home following a clash with his grandfather. She said he was “squatting on a lounge in a flat with some mates” and she helped the offender get into his own place. She said he has now been back living with them for six months and he is making very effort to get on with his grandfather. She said he does everything for himself around the house and drives to Sydney every day for his work. Mrs Mikali confirmed that since his arrest he has turned away from all prior associates. He had bought a franchise of Fitness First so he runs his own business using their facilities. He travels to Sydney seven days a week. It was indicated that the offender is putting in place certain arrangements to cater for his present clients during his absence.

31 Exhibit 1 contains two testimonials/references. The first is by Mr Tony Wrightson, Personal Training Coordinator, Rockdale Fitness First. He states as follows:

“Over the past four months Haydn has shown himself to be a dedicated enthusiastic worker with a genuine passion to better the quality of life of our members. He has committed himself to his business and taken to the task of building a client base with professionalism and a can-do attitude. Consequently he has established a successful business and is well on his way to a prosperous career in the fitness industry.

Having recently learned of Haydn’s unfortunate past and his impending correctional sentencing I can honestly say that I’m very disappointed and unhappy to be losing such a vibrant and enthusiastic member of our team.

In view of his commitment and dedication to his career development in the fitness industry I feel his past offences are very out of character for the Haydn that I know and hope that he will resume his path as a fitness professional as soon as the opportunity arises”.

32 The second is from a Mr Justin Ashley, the club general manager of Fitness First. He states:

“I have worked with Haydn Powell at Fitness First, Rockdale since he began his personal training franchise in late November. In his time here I have found him to be a very skilled trainer who demonstrated a natural ability to communicate effectively and assist others in achieving their goals. I was incredibly impressed with the maturity that he presented when discussing his past misdemeanours. He demonstrated regret and a willingness to begin a new page in his life starting with a solid career and progressing into some impressive long term personal goals. He ran his business efficiently and responsibly for someone so young and I would have no hesitation in offering him a new role when he is ready to commence employment post detention”.

33 There is little doubt that the offender has very positive prospects for the future. He has applied himself well since his arrest and he has done much towards his own rehabilitation. He must be given credit for that.

34 In Regina v Clarke (unreported NSWCCA 15 March 1990) it affirmed the principle that the general policy in respect to drug traffickers is that only in exceptional circumstances will a non-custodial sentence be appropriate. Although a strong subjective case has been demonstrated in respect to the offender exceptional circumstances here are not present.

35 The offender is entitled to have his pleas of guilty reflected in mitigation on penalty. This is done on two bases, to reflect the utilitarian benefit to the criminal justice system and to reflect contrition. He pleaded guilty to the charges currently before the court on 24 January 2007 at the Wollongong Local Court. Consequently it is a plea at the earliest opportunity, a concession the crown has made. Accordingly the offender will receive a discount of about twenty-five per cent to reflect the utility of those pleas.

36 The offender has also provided assistance to law enforcement authorities as outlined in documents contained in an envelope marked Exhibit c. Consequently he is entitled to a discount under section 23 of the Crimes (Sentencing Procedure) Act. The court is required to consider all the matters listed under section 23(2) and must not reduce a sentence so that it becomes unreasonably disproportionate to the nature and circumstances of the offence (section 23(3)). Hence there must be a limit to the value provided by assistance to authorities.

37 In respect of what is contained in exhibit C it seems that the assistance provided to authorities was of “intelligence” value only and therefore not at the upper end of the scale (see Regina v PP [2005] NSWCCA 214).

38 In my view there is a degree of overlap between the factors entitling the offender to leniency and consequently it is appropriate to specify a global discount of about forty per cent (that is, it includes the discount of about twenty-five per cent for the early plea). This assessment pays due regard to the provisions of section 23(3) of the Crimes (Sentencing Procedure) Act.

39 I have taken into account the purposes of sentencing set out in section 3A and I have also had regard to section 5A of the Act.

40 Having considered all possible alternatives I am satisfied that given the objective seriousness of these offences no penalty other than imprisonment is appropriate.

41 I find special circumstances being that at age twenty-two this will be his first time serving a custodial sentence and he has good prospects for rehabilitation.

42 In respect of count four in the indictment you are convicted and I sentence you to a fixed term of imprisonment for six months to date from 17 May 2007 to date from 15 May 2007 and expire 14 May 2008.

43 In respect of counts five, six and seven on the indictment you are convicted and in respect of each offence I sentence you to fixed terms of imprisonment for twelve months, also to date from 15 May 2007. I do not set non parole periods in respect to these offences as any such periods will be subsumed in the non parole period to be imposed in respect of counts one, two and three.

44 In respect to those counts, one, two and three on the indictment, I sentence you to a non parole period of fifteen months to date from 15 August 2007 and to expire on 14 November 2008. I sentence you to an additional term of two years and six months to expire on 14 May 2011.

45 I have taken into account the Form 1 matters on the schedule in respect of the sentence imposed in relation to count one on the indictment. Those matters were previously those that appeared on the s 166 certificate. You will note that there has been some accumulation, there is a partial accumulation there and that will mean that he becomes eligible for release on parole, in fact I direct he be released to parole on 14 November 2008.

46 PAWLIW: Your Honour there were a number of orders just for the drugs to be destroyed and for any goods to be returned to the owner, that being the computer, and your Honour there are some forfeiture orders in respect of money that was found at the premises. I understand there is no objection to those orders.

47 HIS HONOUR: Yes. I make the order of forfeiture in respect of the moneys and the order for the drugs to be destroyed. I also order that any goods be returned to their rightful owner.

48 PAWLIW: Thank you, I have those orders to sign.

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