R v Ray

[2014] NSWDC 279

District Court

New South Wales

Medium Neutral Citation:	R v Ray [2014] NSWDC 279
Hearing dates:	3 November 2014
Decision date:	04 November 2014
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	(1) The offender is convicted of the offences of supplying a prohibited drug on an ongoing basis, supplying a prohibited drug and two counts of dealing with property, suspected proceeds of crime.  (2) For the offences of supplying a prohibited drug on an ongoing basis and supplying a prohibited drug, an aggregate sentence of 4 years and 10 months is imposed to commence on 12 June 2013 and to expire on 11 April 2018.  The non-parole period of 3 years and 4 months is to commence on 12 June 2013 and expire on 11 October 2015. (3) The offender is convicted of the two offences of dealing with the proceeds of crime, with no further penalty imposed as per s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Catchwords:	CRIMINAL LAW – sentence - particular offences - drug offences - supply prohibited drug - ongoing basis - methylamphetamine – proceeds of crime - undercover operative- plea of guilty at earliest opportunity - 25% discount - some remorse and insight - assertion of some moral parameters to drug supplying - driven by addiction - prior convictions - aggravating factors - special circumstances for adjusting ratio between head sentence and non-parole period - general and specific deterrence - guarded prospects of rehabilitation - aggregate sentence
Legislation Cited:	Crimes Act 1900 (NSW), s 193C(1) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 21A(2) Drug (Misuse and Trafficking) Act 1985 (NSW), ss 25A(1), 25(1)
Category:	Sentence
Parties:	Regina (Crown) Glen Allan Ray (offender)
Representation:	Counsel: J Fitzgerald (offender) Solicitors: K Mulley (Director of Public Prosecutions)
File Number(s):	2013/00180026

Judgment

1. In this case I am sentencing a man who is both a drug addict and a drug supplier.

2. One passing aspect of the case is that the offender asserted some moral parameters to his behaviour. But those moral parameters were limited by his own addiction and restricted ability to see the wider impact of his behaviour. Nevertheless he represented his behaviour by reference to a limited moral compass. I will return to this.

3. I am sentencing Glen Ray for two serious offences. One is supplying prohibited drugs on an ongoing basis. The drug was methylamphetamine, commonly known as ice. The offence is against s 25A(1) of the Drug (Misuse and Trafficking) Act 1985 (NSW). Parliament has fixed a maximum of 20 years imprisonment to that crime. The second offence is supplying a prohibited drug. Again the drug was methylamphetamine. That is a crime against s 25(1) of the Drug (Misuse and Trafficking) Act. Parliament has fixed a maximum of 15 years imprisonment to that crime.

4. It is important for a judge to list briefly what happened to amount to the crime that the judge is sentencing an offender for, so that some assessment can be made of the relative seriousness of the crime committed.

5. In this case the police were monitoring the supply of the drug known as ice within the Newcastle area. Their attention fell on Glen Ray and they monitored his behaviour. In fact they sent in an undercover operative. Mr Ray sold ice to that undercover operative on five separate occasions. On each occasion he sold about half a gram and on each occasion he given $350 for the transaction. The earliest was 4 April 2013 and the most recent 3 May 2013. In other words, the transactions occurred over a month. The transactions occurred at various places around Newcastle.

6. A second activity of Mr Ray which the police were monitoring involved his buying the methyl amphetamine which he was in turn supplying to his customers. Police were monitoring his telephone use and the agreed facts - which are part of exhibit A - say that an “analysis of the intercepted telephone calls reveal that the offender was in the regular business of drug supply, servicing a regular customer base with street level deals on a daily basis”. Police monitored Mr Ray buying from what are described as “up-line suppliers”. The amounts negotiated for purchase were in excess of the commercial quantity but the prosecution concedes that some of those drugs were for Mr Ray’s own use, so that the final amount of nearly 250 grams was short of the commercial quantity. However that is to be seen in context that the indictable quantity is 5 grams.

7. Mr Ray was arrested on 12 June 2013. That was the last day of that surveillance which had occurred over two months since 12 April 2013. Police found on his arrest two amounts of cash, one about $1500 and the other nearly $5000. He was charged with two counts of dealing with the proceeds of crime which are offences against s 193C(1) of the Crimes Act 1900 (NSW). The police surveillance also disclosed that on a number of occasions Mr Ray was accompanied by his partner, Lynette Bean. She was in fact charged with knowingly taking part in the supply of prohibited drugs.

8. Mr Ray, to his credit, pleaded guilty at what Ms K. Mulley who appears for the Director of Public Prosecutions agrees was the earliest available opportunity. He is therefore entitled to a 25% discount on the sentence which he eventually receives. That is because the criminal justice system is overloaded and his early plea means that other cases were able to be accommodated and brought on sooner than they might otherwise have been.

9. It is also important for a judge to assess the personal circumstances of an offender. Mr Ray is now 56. He has a criminal record which extends back many years but most of the offences were dealt with in the Local Court and involved motor car offences or cultivating cannabis. However in 2007 he received a prison sentence of 12 months from the Newcastle Local Court (confirmed in the District Court - although the non-parole period was reduced) for supplying a prohibited drug. Then again in 2012 he was convicted of supplying a prohibited drug and this time he received an 18 month sentence from the Newcastle District Court. It is significant to note that this offending behaviour occurred only some weeks after the expiry of that 18 month sentence.

10. I should add here that Mr J. Fitzgerald of counsel who appeared for Mr Ray called his client to give evidence. He has been in custody since his arrest and has a trusted position of employment within prison. He has a daughter and four sons from two relationships. His life has been overshadowed by what he says was a sexual assault when he was a boy. It lacked resolution because the offender committed suicide. I should add that I place little weight on that aspect continuing to influence the behaviour of a 56 year old man in the sense that it ought to have been dealt with by now by him in a way which was consistent with him not offending. Nevertheless it is relevant to observe that that behaviour brought about, I expect, a drug addiction which Mr Ray developed to cannabis and amphetamines as well as a problem with alcohol. It also brought about an end to his second and longer marriage. In fact when the house was sold he spent the proceeds on drugs and alcohol and, as he said to Mr Fitzgerald, got himself then into the vicious circle of selling drugs in order to support his own habit.

11. Since he has been in prison he has not taken drugs and this is the longest period that he has been drug free for many years. He has been in gaol, bail refused, for some 16 months. He wants to pursue rehabilitation and that is influenced by the fact that Lynette Bean, his partner, has undertaken her own rehabilitation and is presently on remand but is in Dooralong Rehabilitation Centre, part way through a course. She communicates with Mr Ray regularly and is very positive about their future together as rehabilitated drug users.

12. Cross-examined by Ms Mulley, Mr Ray acknowledged that he had been part of the drug scene in Newcastle for some 20 years. This is where the issue of the moral compass becomes a factor. I say it as a matter of interest rather than relevance. When cross-examined about his supply of drugs he said that he had never robbed or stolen in order to finance his use of drugs. What he did was to sell drugs in order to finance his own habit. He also asserted that he had never introduced anyone to the use of drugs, nor had he sold to minors. He said he knew most of the people whom he sold to as regular users. There is a moral dimension to those assertions - whether they are true or not - but it is very circumscribed by the fact that the man was driven by his own addiction.

13. Mr Ray said to Ms Mulley that one of the previous convictions that he was sentenced for involved 22 individual sealed bags of drugs. Ms Mulley cross-examined him about his motivation for wanting to rehabilitate himself now at this late stage of life. He referred to his partner Lynette Bean and to the fact that he had the opportunity recently to look back on his life and see where it had put him at this stage.

14. Mr Fitzgerald pointed to his client being at some kind of cross roads driven by the impetus of his partner’s rehabilitation. Mr Fitzgerald acknowledged the significance of his client’s prior convictions. They are in my opinion relevant as aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The second offence of buying for up-line suppliers involved a good deal of planning and organisation - as Ms Mulley fairly indicated not sophisticated, but nevertheless some degree of planning and organisation. I do not regard that as a factor relevant to the other offence because by its nature it involved some organisation.

15. Mr Fitzgerald urged me to alter the usual relationship between a non-parole period and balance of the term of a sentence which I am able to do if I find that there are special circumstances for doing so. Mr Fitzgerald acknowledged that his client will be in custody for some years and will need some supervision on release if he is to follow the example of his partner. Ms Mulley on the other hand pointed to the realistic aspect that this was not the first time Mr Ray had committed these sorts of offences and that he had opportunities in the past to rehabilitate himself. I should not alter the usual balance, she argued. She pointed out that when Mr Ray was released he had returned not only to drug use but to the supply of drugs to support that habit.

16. There should be some minor accumulation of the sentences in respect of the two offences, both Ms Mulley and Mr Fitzgerald agree.

17. This is the most serious of Mr Ray’s drug supply convictions. He is facing two charges on this occasion, one of them carries a significant maximum penalty and is the most serious that he has committed so far. Ms Mulley emphasised the importance of general deterrence and particular deterrence in this case to incapacitate Mr Ray so that he does not return to distributing prohibited drugs to people in the community.

18. Ms Mulley argued that his remorse is limited. I think she has some point there but there was some remorse and insight. However the insight was blinkered because of the fact that he was driven at the time by his own addiction. I would regard his prospects of rehabilitation as quite guarded.

19. The sentence should date from Mr Ray’s arrest on 12 June 2013.

20. I should say that I accept Ms Mulley’s submissions about general and specific deterrence.

21. I will adjust the non-parole period to some extent but not very significantly. I put weight on Ms Mulley’s submissions there but I think that Mr Fitzgerald has a point about his client’s motivation from his partner’s own rehabilitation. That motivation may not have been present before.

22. I would regard an appropriate overall sentence for the first offence of supply prohibited drugs on an ongoing basis as one of five years imprisonment. I would regard an appropriate sentence for the second offence of supplying a prohibited drug as six years imprisonment. I fix that as higher because it is a serious example of that kind of offence and falls just short of the commercial quantity. I would accumulate those two sentences by some six months so that I would regard an overall sentence of six and a half years as appropriate for these two crimes. In due course I will fix an aggregate sentence.

23. However Mr Ray has pleaded guilty at the earliest available opportunity. I would therefore discount that six and a half year sentence by 25% and fix an aggregate sentence of four years and ten months as the appropriate sentence. It goes without saying that the form of the sentence must be full time custody given his involvement in trafficking.

24. For his sentence of four years and ten months a non-parole period of three years and seven months would normally be appropriate, being 75% of that sentence. I propose to reduce that to three years and four months to allow him a few months additional time during his parole for assistance with his rehabilitation. I take into account his age and the supervision he will require and the motivation he will have, given his partner’s apparent efforts at rehabilitation. The non-parole period will therefore be three years and four months. The balance of the term will be one year and six months. I will now formally sentence Mr Ray.

25. 25 In respect of both offences I impose an aggregate sentence of four years and ten months. It commenced on 12 June 2013 and will expire on 11 April 2018. I fix a non-parole period of three years and four months to commence on 12 June 2013 when you were arrested that non-parole period will expire on 11 October 2015. The balance of the term is one year and six months. That commences on 12 October 2016 and will expire on 11 April 2018.    

26. So far as the two matters of dealing with the proceeds of crime, in respect of each matter, under s 10A of the Crimes (Sentencing Procedure) Act 1999, I convict you and dispose of those proceedings without imposing any other penalty for both of those offences. Have a seat Mr Ray.

HIS HONOUR: Ms Mulley, Mr Fitzgerald, any factual or legal matters which I may deal with now and secondly, the mathematics please?

FITZGERALD: I’m satisfied with the mathematics, your Honour and I’m satisfied with the sentence, thank you, your Honour.

HIS HONOUR: Yes?

MULLEY: Likewise your Honour, there’s only the four remaining matters on the section 166 certificate which I will formally withdraw.

HIS HONOUR: Thank you.

MULLEY: Sequences 1, 2, 3 and 4.

HIS HONOUR: I note that the - where do I see them, where do I identify them?

MULLEY: Section 166 Certificate which was tendered in the Crown material at tab 4, no they’re under back up offences.

HIS HONOUR: No I don’t have a tab 4. I’ve got a tab 3, I don’t have a tab 4. Yes I do. So they’re the last - what did you say, 1, 2 3 and 4?

MULLEY: The 1, 2, 3 and 4 that are noted under back up offences. They are to be withdrawn.

27. I note that the matters referred to as sequences 1, 2, 3 and 4 at tab 4 of exhibit A are withdrawn by the Director of Public Prosecutions.

FITZGERALD: The Court pleases, thank you, your Honour.

HIS HONOUR: Is that correct?

MULLEY: Yes.

HIS HONOUR: Good.

MULLEY: Would your Honour also make an order for the transcript of yesterday’s proceedings and today’s remarks on sentence to be taken out?

HIS HONOUR: Yes, you want yesterday’s proceedings as well?

MULLEY: Yes, the cross-examination of the accused.

28. I direct that a transcript of yesterday’s proceedings.

HIS HONOUR: Ms Mulley I’m thinking just the evidence and today’s remarks.

MULLEY: Yes.

29. That direction is limited to the evidence of the offender. I direct that a transcript of my remarks on sentence today be taken out.

30. MULLEY: Thank you, your Honour.

HIS HONOUR: And just remind me they are for a matter which is--

MULLEY: A trial listed next week of Russell Morris. It is before your Honour, I think there is an application to vacate on Friday.

HIS HONOUR: Yes, there was. If that transcript can be available on Friday, 8 November 2014 that would be helpful and I add if possible that would be helpful.

HIS HONOUR: Now Mr Ray, do you understand you got five years and you got six years, I have got them running together except they overlap by six months so the overall is six and a half years. Then I took off your 25% because of your plea, so your overall sentence is four years and ten months. It started when you were arrested on 12 June last year. The sentence finishes on 11 April 18. I fixed three years and four months as your non-parole period and that ends on 11 October 2016. That is the first date on which you will be eligible for parole. You know better than I do, that is up to the Parole Authority. I do not make an order for parole, for that kind of sentence and after your parole your balance of your sentence finishes on 11 April 2018 and I have given you just a conviction for the two sums of money, proceeds of crime, and some of the others have been withdrawn. Do you understand that? Okay. Mr Ray can be taken down.

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Decision last updated: 19 February 2015