R v Rao

[2006] NSWDC 91

CITATION:	R v Rao [2006] NSWDC 91
HEARING DATE(S):	18/8/2006
JUDGMENT DATE:	5 October 2006
JUDGMENT OF:	Conlon SC DCJ at 1
DECISION:	See para 47
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985 s25A Crimes (Sentencing Procedure) Act 1999 ss 3A, 5, 21A, 22
CASES CITED:	R v Clarke (unreported NSWCCA 15 March 1990) R v Sharma (2002) 54 NSWLR 300 R v Thomsom and Houlton (2000) 49 NSWLR 383 R v Hoon and Pouoa [2000] NSWCCA 137 R v Smiroldo (2000) 112 A Crim R 47 R v Cheikh and Hoete [2004] NSWCCA 448 R v Petersen (unreported NSWCCA 6 August 1992) R v Way [2004] NSWCCA 131
PARTIES:	Regina Jason Baran Rao
FILE NUMBER(S):	06/41/0151
COUNSEL:	Mr M Coroneos (offender)
SOLICITORS:	Mr Y Astar, Mr D Wallace (DPP) Ms S O'Halloran (Allied Lawyers)

JUDGMENT

1 HIS HONOUR: The offender Jason Baran Rao appears for sentence consequent upon his pleading guilty to the following charge, that between 31 March 2005 and 1 May 2005 at Greenfield Park in the State of New South Wales did on three or more separate occasions supply a prohibited drug for financial reward, namely methylamphetamine, ketamine and 3,4-methylenedioxy-methylamphetamine.

2 The maximum penalty for the offence is twenty years imprisonment. The offender has asked the Court to take into account three further matters on a Form 1 schedule.

3 An agreed statement of facts of some fourteen pages in length details the facts and circumstances upon which the Crown relies to support not only the charge on the indictment but the matters to be taken into account on the Form 1 schedule. Whilst those detailed facts clearly demonstrate the objective seriousness of the present offence I will not repeat them here. However, by way of a brief summary on 18 February 2005 the Deputy Commissioner Madden granted police authority to conduct a controlled operation codenamed “Operation Welch”. The warrant was granted for the period 17 February to 17 May 2005.

4 Pursuant to the authority granted police conducted a number of undercover purchases. Listening device warrants were also obtained in respect of a number of telephones including telephone number 0415781232. This telephone was one that was repeatedly used during the course of this operation by the offender and also by a co-offender named Jason Haider.

5 Consequently a number of telephone conversations were lawfully intercepted and numerous of them are described in the agreed statement of facts. The facts clearly indicate that the offender was “a runner” in a drug syndicate. Four other runners including Jonathan Paul McPhillips have been arrested and charged although not all with the same offences. (This offender and McPhillips are the first to be sentenced.)

6 During the period the offender commenced supplying cannabis to undercover operatives Angela and Jessica and this led to the supply of methylamphetamine, ketamine and MDMA on three separate occasions.

7 The first of these supplies took place on 1 April 2005. It involved MDMA four tablets, weighing 1.22 grams. The second supply occurred on 21 April 2005 involving methylamphetamine three tablets, weighing 0.97 grams, and ketamine three tablets, weighing .9 gram. The third supply occurred on 30 April 2005, it was MDMA seventy tablets, weighing 14.4 grams.

8 The offender was arrested on 3 May 2005 and taken to Fairfield Police Station where he took part in a recorded interview. Despite the offender being shown video footage of some of the actual supplies taking place he remained largely unco-operative and non-committal during the first half of the interview. However in answer to question 246 and the following he indicated that he did not keep any of the money, that it “goes to the bosses”, (answer 248) - “the boys that employ me”, (answer 249).

9 When asked at question 250:

“Q. Okay, when you say they employ you what do you mean by that?

A. Mm, on the streets, what they call what I do is called a runner.”

10 At answer 256 he claimed his remuneration was, “A hundred and fifty bucks a day”.

11 At question 257 this appears:

“Q. Okay, and how many times a day would you say you met up with people?

A. Ten, fifteen, twenty times.”

12 In answer to questions 268-274 he stated that in a typical week he would earn, “About $300”. He said he had been involved for about five months.

13 At question 276 he was asked how he became involved. He stated that he, “Needed money for Christmas”.

14 The offender was not a drug user, he was not supporting a habit, his involvement was for monetary gain.

15 In R v Clarke (unreported NSWCCA 15 March 1990) it affirmed the principle that the general policy in respect of drug traffickers is that only in exceptional circumstances will a non custodial sentence be appropriate.

16 The offender is now twenty-two years of age. He has no prior criminal convictions. He was born in Australia of Fijian/Indian cultural heritage. The offender is the youngest of three siblings and lives with his parents and sisters in the family home. He appears to have been raised in a stable family environment. He apparently did well at school, both academically and on the sporting fields, however it seems that he felt some pressure living up to the high standards set by an older sister. He felt his father favoured that sister and this appears at least in part to form some of the reason for the falling out between he and his father whilst he was at high school.

17 Having successfully completed Year 12 and attaining the HSC the offender commenced an apprenticeship as an electrician with the State Rail Authority. He decided that he was not suited to such a career and resigned after the first year. He then obtained some casual work as a painter.

18 The offender gave evidence that after he left State Rail he could not get a job. He said when the opportunity arose (to deliver drugs) he could not say no as he saw this as a way to earn some money. He had informed Ms Murdock, Probation and Parole Officer, (report dated 7 June 2006, exhibit 3) that a co-offender known to him through school sport offered him a couple of days work per week to drive him around and deliver drugs.

19 The offender gave evidence that in respect of about thirteen transactions in which he was involved between 22 February 2006 and 3 May 2006 he had received about $1,000.

20 In respect of the $655 in cash found in his car at the time of his arrest he claimed in evidence that this was money that he had saved. Such an assertion was difficult to accept. I have no doubt it was money that he had been paid as a runner.

21 Reference was made on the last page (p 14 of the agreed facts) that police discovered $3,280 in cash in the offender’s bedside drawer. The offender gave evidence that 2,000 of that was from his father. His father, James Rao, gave evidence that he bought an air ticket to Canada for the offender’s twenty-first birthday and he also gave him $2,000 cash for accommodation and spending money. I accept that evidence given by his father.

22 His father also acknowledged that he had had a falling out with the offender and their relationship had not been good. He said the offender wanted to join the Air Force and was devastated when he did not make it. When he could not find a job after leaving State Rail Mr Rao Senior felt that the offender lost motivation.

23 Since being granted bail the offender secured work as a storeman with Coles/Myer. He gave evidence that this was a full time position. Since his arrest the relationship between father and son seems to have greatly improved. Mr Rao Senior stated that it was his belief that the offender had now, “totally turned things around”.

24 Since July 2005 the offender has been in a relationship with girlfriend Alana DeLuca, whom his parents regard as a positive influence.

25 The offender confirmed that he does not use drugs, however he said he had smoked marijuana for a short period in about July 2004. He again stated that he was in financial difficulty and this is what led him to accept the offer of being a runner, however he also stated that he was able to obtain work at about that time as a DJ at nightclubs and at private parties. Consequently, taken in conjunction with the evidence of his father, it is difficult to accept that his motivation was anything other than greed.

26 The offender also gave evidence that he was glad when he was arrested by the police. He stated that when working as a runner threats had been made against him and his family which prevented him from, “getting out”.

27 He said he was now suffering depression, he was moody and he was experiencing bad dreams. He said he was feeling a lot of guilt and was particularly concerned with the impact on his family.

28 A report of Mr Peter Kalogiannis, psychologist, dated 26 April 2006 and now exhibit B, contains the following on p 2:

“Mr Rao reported that he was, ‘happy the police caught me’. He reported that he tried to get out on several occasions, however this was not successful - ‘At the end of the day I was too scared’. Mr Rao also reported that before he got arrested, ‘I told them I did not want to do this. They then put a gun to my head. I was scared and I did not want anything to happen to me and my family’.”

29 The Crown submitted that this assertion would be difficult to accept when contrasted with the intercepted telephone conversations on 30 April 2005 as set out on pp 9-13 of the agreed statement of facts.

30 There is some force to this submission by the Crown. However, I make the observation that in a report tendered on behalf of the co-offender Jonathan McPhillips dated 20 July 2006 the following appears:

“Mr McPhillips (acknowledged he) was responsible in relation to his offending but claimed that he had felt ‘trapped’ and unable to separate himself from the offending without placing his family at risk.”

31 Consequently I am prepared to accept on the balance of probabilities that it was likely some pressure was brought to bear upon runners used by that syndicate in order to persuade them to remain on the job.

32 The offender has indicated to the psychologist that he regretted what he did, that he knew what he did was wrong and that he had no regret about being caught. Under the heading of “Opinion” the psychologist stated:

“Mr Rao is an immature man and is poorly equipped to cope with the demands and stresses of everyday life, however he is strongly motivated to change. In terms of formal psychiatric diagnosis this is not currently clear. Mr Rao does not suffer psychosis (no formal thought disorder, delusions or hallucinations). He does not appear to suffer a personality or character disorder although he is quite immature for his age and has not completed the transition from adolescence to adulthood. He is suffering significant depression and if he is imprisoned he will be at considerable risk of suicide: he should be monitored for suicide risk.”

33 He was of the opinion the offender will need ongoing psychological treatment.

34 Mr Coroneos, who appeared on behalf of the offender, submitted a number of matters that should be taken into account in mitigation; numerous of those matters he submitted should be taken into consideration under s 21A(3) of the Crimes (Sentencing Procedure) Act. Some of those matters I can accept as falling appropriately within that section, they being: under 21A(3)(e), the offender does not have any record of previous convictions; (f) , the offender was a person of good character; (g), the offender is unlikely to re-offend; (h), the offender has good prospects of rehabilitation; and (k), the plea of guilty by the offender as provided by s 22.

35 Mr Coroneos also submitted a mitigating feature fell within (j), that is, as Mr Coroneos put it, the medical condition of the offender. Section 21A(3)(j) refers to an offender not being fully aware of the consequences of his or her actions because of the offender’s age or disability. All that I have had placed before me in the psychologist’s report is the psychologist’s opinion that the offender is now suffering from depression, which I can accept, but this is not a matter which falls within (j).

36 The offender is entitled to have his plea of guilty reflected in mitigation of penalty. This is done on two bases: to reflect the utilitarian benefit to the criminal justice system and to reflect contrition: s 22 Crimes (Sentencing Procedure) Act; R v Sharma (2002) 54 NSWLR 300.

37 The plea was first entered before the magistrate in the Local Court and consequently it is a plea at the earliest opportunity and will receive a discount of about twenty-five per cent to reflect the utility of that plea of guilty. (See R v Thomson and Houlton (2000) 49 NSWLR 383.)

38 Despite having regard to all the subjective matters advanced on behalf of the offender there is nothing in my view that would amount to exceptional circumstances. I have also had regard to s 5 of the Crimes (Sentencing Procedure) Act and the Court is satisfied that no penalty other than imprisonment is appropriate.

39 The Court has also taken into account the purposes of sentencing set out in s 3A.

40 Section 25A of the Drug Misuse and Trafficking Act was introduced in 1998 with the intention of targeting dealers who had organised their affairs in such a way as to limit the full effect of the Act by dealing in only small quantities at a time. The gravamen of s 25A lies in the repeated acts of supplying the prohibited drug within a closed period.

41 In R v Hoon and Pouoa [2000] NSWCCA 137 Dunford J said of s 25A at para 39:

“The section is directed to the concepts of repetition, system and organisation, and the objective criminality of any offence under the section should be determined by reference to those features and not merely to the number and quantities of individual instances of supply.”

42 However it is relevant to consider whether an offender convicted of an offence under the section has sold three lots of one kilogram each or three lots of one gram. (See R v Smiroldo (2000) 112 A Crim R 47 and R v Cheikh and Hoete [2004] NSWCCA 448.)

43 It has been accepted by the Crown that the offender’s role was that of a runner. In R v Petersen (unreported NSWCCA 6 August 1992) Matthews J said at p 6:

“It is now a trite proposition that in all but rare and exceptional cases full time deterrent sentences must be given to people who involve themselves in the drug trade. Even middlemen who make no financial gains from the dealings fall within this category.”

44 On the question of the objective seriousness of the offence I have taken into account that MDMA (ecstasy), ketamine and methylamphetamine are what the Courts have determined as “middle range drugs”, R v Way [2004] NSWCCA 131.

45 I share the view of the psychologist that the offender is immature for his age however I accept that he has now come to a realisation of the wrongness of his behaviour and that he does appear intent on working to become a better person and a responsible member of the community.

46 I find special circumstances, being his age, the absence of any prior criminal convictions and my assessment of his good prospects of rehabilitation. He will require supervision to undertake appropriate psychological counselling upon his release.

47 Jason Baran Rao you are convicted and you are sentenced to imprisonment. I fix a non parole period of fourteen months to date from today and expiring on 4 December 2007. I fix an additional term of two years and seven months expiring on 4 July 2010. I recommend that he be accepted to the Young Offenders’ Program as soon as is possible.

48 That, Mr Rao, means that it is a total sentence of three years and nine months made up of a non parole period of fourteen months and an additional term of two years and seven months. You will become eligible for parole, as I have stated, on 4 December 2007.

49 I can say to you that this has been a difficult sentencing task. I hope that you can come to a realisation of why the law and indeed the community demands that persons who involve themselves with drug syndicates, even as runners, are required to be punished with custodial sentences. The Courts need to send a strong message to those who are involved in this type of criminality or those who are thinking about becoming involved that their behaviour will not be tolerated. The Court has set what it believes to be the minimum term that can appropriately be specified having regard to the objective seriousness of the crime.

50 Accept this punishment and take advantage of the Young Offenders’ Program. You are young, you have the potential to make something of your life so long as you never again stray into criminal activity.

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