R v Rede

[2018] NSWDC 444

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Rede [2018] NSWDC 444
Hearing dates:	10, 23 May 2018
Date of orders:	14 September 2018
Decision date:	14 September 2018
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	See [56]
Catchwords:	CRIME – drug supply – intensive corrections order – failure to comply with assessment
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	R v McNaughton (2006) 66 NSWLR 566
Texts Cited:	None
Category:	Sentence
Parties:	Regina (ODPP) Frank Rede (Offender)
Representation:	Counsel: Mr B Green (Offender)   Solicitors: ODPP (Crown) McGirr Lawyers (Offender)
File Number(s):	2016/274638
Publication restriction:	None

REMARKS ON SENTENCE

Introduction

1. The offender appears before the Court today for sentencing, in unfortunate circumstances where, on the last occasion, he was referred for assessment as to his suitability for an ICO. I will come to that in a moment, but the effect of the assessment on its face was that he was deemed unsuitable to serve his sentence in the community by way of intensive corrections order.

2. The charge to which the offender is to be sentenced is that between 31 May 2016 and 9 June 2016, at Redfern, in the state of New South Wales, he did on three or more separate occasions, during a period of 30 consecutive days, supply a prohibited drug, namely methylamphetamine, for financial or material reward, in breach of s25A(1) of the Drug Misuse and Trafficking Act.

Guideposts

3. The maximum penalty applicable to that charge, of course, represents the legislature's guidepost as to the seriousness of the offending. I note the maximum penalty which can be imposed upon the offender is 20 years imprisonment and/or 3,500 penalty units. There is no applicable standard of non parole period.

Form 1 Matters

4. There are, in addition, matters on a Form 1 notice. Of course, the two charges on Form 1 are to be taken into account at the request of the offender, by me, with a view to increasing the penalty that would otherwise be appropriate for the principal offence to which the Form 1 attaches. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal or specific deterrence, and the second is the community entitlement to exact retribution for offences of this type.

5. I note that the matters appearing on the Form 1 relate to offences that occurred in February 2017, on the same date, namely 23 February 2017, where, on that occasion, the offender engaged in activities leading to a charge of goods in custody suspected of being stolen, and also engaged in activities leading to a charge of entering inclosed land, not prescribed premises, without lawful excuse.

6. I will date and sign the Form 1 certificate confirming that, as requested by the offender, the two charges appearing therein have been taken into account in determining an appropriate sentence in this matter. I note, again, for the purposes of making some assessment as to the legislature's intention of the seriousness of that offending, that the maximum penalty in relation to goods in custody is a period of imprisonment of six months, and/or 5 penalty units. And entering enclosed lands is a maximum sentence of 5 penalty units. In any event, the form 1 has been signed and certified. Those matters have been taken into account in respect of this sentence.

Procedural History

7. The offending, the subject of the principal charge, occurred, between 31 May 2016 and 9 June 2016. The offender was arrested and charged on 13 September 2016. He pleaded "guilty" to the charges on 23 March 2017 in the Downing Centre Local Court. The Crown has conceded that the offender is entitled to a discount of 25% for the plea of guilty, a submission which I accept.

8. The offender has been on bail since being charged on 13 September 2016, and spent a couple of days in prison, to which I will have regard in due course.

Evidence on Sentence

9. The evidence on sentence comprised the Crown Bundle (Exhibit A). The offender relied upon a letter from Robin Zella of the Wavelery Drug and Alcohol Centre, dated 9 May 2018 (Exhibit 1), together with a Pre-Sentence Report (Exhibit 2). In addition, the offender relied upon some medical records (Exhibit 3).

10. Since the matter was last before me, as I have indicated, the parties and the Court have received a report as to the suitability of the offender for an intensive corrections order. That report I will mark Exhibit B in the sentence hearing.

Agreed Facts

11. The facts agreed between the parties are as follows.

12. In relation to the supply matter, being H reference ending in 352, on 1 December 2015, Assistant Commissioner Fuller granted a control operation, to target the street supply of prohibited drugs originating within defined geographical areas of the Redfern Local Area Command. Surveillance warrants were issued on 11 February 2016, authorising the use of surveillance. On Wednesday 7 April 2016, the registered source met with Sergeant Muscat and Detective Senior Constable Stuart Webster, in relation to this matter, in which the registered source was an authorised participant. Detective Senior Constable Webster explained the authority, including the area in which the registered source, was authorised the purchase prohibited drugs, and a map of that area was shown.

13. The first matter of drug supply occurred on 31 May 2016. On that day, which was a Tuesday, the registered source met with Sergeant Muscat and another police officer, and was given the sum of $700 and recording equipment. He made contact with a person he knew as "Nicki" on a mobile phone number referred to in the agreed facts, paragraph 20. And arrangements were made, over a number of phone calls, for the registered source to purchase an eight ball of ice, for $650.

14. It was agreed that the registered source would meet at Nicki's residence, at McEvoy Street in Waterloo, and they would then go up the road to purchase the drugs. At about 2.25pm, the source attended the McEvoy Street address. Inside the unit, the source discussed the drug purchase further with Nicki, and they left together in a white four wheel drive. Nicki told the source they were going to an address on George Street in Redfern. When they were on a small street near this address, Nicki told the source the person supplying the drugs was coming out. The source counted the money and handed it to Nicki, who also counted it.

15. The offender came to the car and entered the back seat, behind the source. He was introduced to the source as "Frank" and the offender asked them what they wanted. Nicki told the offender she wanted $100, and that the registered source wanted $650. And Nicki handed the offender the money. The offender gave the registered source a resealable plastic bag containing the drugs. After this, the source was dropped near the railway station in Redfern, and the offender was dropped nearby. The offender was captured on a concealed video recording device during that meeting.

16. The source returned to the police offices previously referred to, and provided them with the recording equipment and the bag of drugs, which was weighed, photographed and placed into an exhibit bag. The contents of the bag were found to contain 3.46 grams of methylamphetamine, with a purity of 79%.

17. The second supply matter occurred on 3 June 2016, which is a Friday. On that day, the source met with police officers and was given $850 and recording equipment. At 12.25pm, the source returned to Nicki's unit on McEvoy Street at Waterloo. Once inside the unit, Nicki directed the registered source into a room, and the offender was inside sitting at a table, which had a bag of ice on it. While Nicki was out of the room, the offender suggested that the source could come to him directly. They also discussed the purchase of other drugs and the offender provided the source with his mobile number. The source called the offender's mobile number so that he would have his number.

18. The offender was smoking from a glass ice pipe and offered the source a smoke a couple of times, which the source declined. The offender then weighed and then handed to the source, two green resealable bags, containing the drugs. The $650 was initially left on the table by the source, and was then collected by the offender with the exception of $50, which he left on the table for Nicki. All of that was captured on a video recording device.

19. The source then returned to the police officers and provided them with the recording equipment, together with a bag of drugs, which was weighed and photographed. It was found to contain 3.39 grams of methylamphetamine with a purity of 79.5%.

20. The third drug supply occurred on 9 June 2016, a Thursday, at which time the registered source again met with the responsible police officers, and was given $650 and recording equipment. Earlier that day the source received a text message from the offender asking if he wanted to meet at a Forbes Street, Woolloomooloo address. While the registered source was with the police officers, the source called the offender to confirm the meeting at Woolloomooloo. The source arrived there at about 2.50pm and made contact with the offender by phone.

21. The offender met the registered source downstairs and they walked together, during which time, the source told the offender that it was "just the usual" required on that day. The offender handed the source a green and clear resealable bag, containing the drugs and the source gave the offender $650. That transaction was captured on a concealed video recording device. The source then returned to the police, presented the device together with the drug bag, which was found to contain 3.49 grams of methylamphetamine with a purity of 79%.

22. On Tuesday 13 September 2016, Detective Sergeant Walker and Detective Webster were driving north along Pittwater Road, Gladesville, when they saw the offender walking south along Pittwater Road. They stopped the car, got out and approached the offender. The offender was cautioned and placed under arrest for these offences. Arrangements were then made for a caged vehicle to attend and convey the offender to Ryde Police Station. The offender was offered the opportunity of an interview, and as is his right, he remained silent. He was photographed and fingerprinted.

Objective Seriousness

23. In considering an appropriate sentence in this case, it is necessary for the Court to have regard to the objective seriousness of the offending. It is not, however, necessary, nor in many cases achievable, to articulate a determination where placing the subject offending along a hypothetical range relating to the offence. It remains an essential task, however, to undertake an evaluative assessment of the objective seriousness of the offence. The starting point, of course, is the legislative guideposts to which I have previously referred. Next one has regard to the particular circumstances of the offending in assessing the overall criminality.

24. The Crown submitted that the objective seriousness of the offending fell within the mid range of the scale, due to the quantity of the drugs that was supplied during the offending, the offender's active role in providing the drugs to the registered source and the fact that the purity of the drugs was higher than the average level. I take that to mean that it was higher than the usual street level deal.

25. Counsel for the offender submitted that whilst it was not an insignificant amount of drugs that were supplied, with regards to the number of transactions, and the unsophisticated methodology used by the offender, the offending falls below the mid range.

26. Having regards to the fact that during a period of 30 consecutive days, the offender was found to have supplied drugs on three occasions, in my opinion, the offending falls just below the mid range, as submitted by counsel for the offender.

27. In considering the seriousness of the offending the Court has regard to any aggravating or mitigating circumstances. Both parties agreed there were no aggravating circumstances in the commission of this offending. The mitigating factors that exist here include remorse shown by the offender, and of course the plea of guilty, which would be favourably reflected in the sentence.

Subjective Case

28. The offender was born on 28 March 1970, and is now 48 years of age. A lot of the material relating to the subjective case has been extracted from a Pre- Sentence Report, authored by Ms Rudic, dated 8 May 2018. I have also had the benefit of further report by Ms Rudic, dated 12 September 2018, following the referral for an ICO.

29. I note that on the two occasions that the matter was before the Court for sentence hearing. The offender did not avail himself of those opportunities to give evidence, which may have provided sworn testimony in corroboration of the matters referred to as historical matters by the report providers. Accordingly, the Court is left in the situation where it approaches the subjective case with some caution and scrutiny, bearing in mind that it is based upon hearsay material not otherwise corroborated.

30. The offender told the reporter he commenced using methylamphetamines in 2008. The habit was reported to have escalated to a daily habit in 2012 as a result of a breakdown of his marriage. The offender reported that he had been abstinent from illicit drug use since July 2017 and that he attends drug and alcohol counselling at a hospital based rehabilitation centre as well as Narcotics Anonymous meetings. The offender at one stage also suggested that he was on the waiting list for residential rehabilitation at William Booth House, however, my recollection is that he instead indicated through his counsel that he has opted for a non residential based rehabilitation plan moving forward.

31. The standard of education of the offender is generally unremarkable; his family circumstances are that he currently resides with his partner and a housemate for whom he cares. The offender has three daughters from his previous marriage and his relationship with his former partner is described as being amicable.

32. His employment history is solid, being employed on a full time basis in a supervisory role. His employer revealed the offender has been employed for about 18 months at the time of the writing of the pre sentence report and was described as, "An efficient, organised employee."

Good Character

33. The offender’s character of course is relevant; it is a matter which is taken into account if it is good character, in mitigation of penalty. It is one of a number of matters to which the Court must have regard.

Previous Convictions

34. Similarly, previous convictions are matters to which the Court should have regard pursuant to s21A(2)(d) of the Crimes (Sentencing Procedure) Act in determining what is an appropriate sentence for the offender.

35. The Court of Criminal Appeal in the matter of R v McNaughton (2006) 66 NSWLR 566 sat as a bench of five to determine how a sentencing judge ought to deal with prior convictions and set out seven principles which bare upon questions of proportionality and the like to which I have had regard in considering this matter.

36. The previous offending concerning the present offender includes:

1. on 20 March 2008, assault occasioning actual bodily harm, domestic violence;

2. on 20 October 2012, drive while license suspended and possess prohibited drug;

3. on 21 December 2012, again drive whilst disqualified, and driving an uninsured, unregistered vehicle;

4. on 11 April 2013, a failure to appear;

5. on 23 May 2013, common assault;

6. on 6 July 2015, driving whilst license cancelled; and

7. on 10 July 2015, being in possession of prohibited drug.

37. In my view, the offender’s record is not of such significance that it ought to deprive him of any leniency to which he would otherwise be entitled.

Remorse

38. Evidence of contrition and remorse in respect of subject offending is also a relevant consideration for the Court. It must, of course, be assessed in context, bearing in mind that the offender appears before the Court for sentencing and one might expect an offender to appear remorseful and contrite. The primary evidence of remorse in this case, absent sworn evidence from the offender, is the plea of guilty at a relatively early opportunity as well as what is referred to in the Pre-Sentence Report as him appearing to take responsibility for his offending. I approach the evidence concerning remorse with the caution previously referred to.

History of Addiction

39. The history of addiction is also relevant. There is no evidence which permits any particular finding as to the reason for the offending, namely whether or not the offending was committed for the purpose of supporting his own habit or indeed whether his addiction to drugs and the consequence of that addiction in any way contributed to the offending. The evidence, however, does establish that from about 2012 to about 2017, there was an addiction to methamphetamines, said to be in response to the trauma of his marriage breakdown.

Rehabilitation

40. Having given careful consideration to the evidence which informs the matter, I find the prospects of successful rehabilitation are positive. That evidence includes, of course, the opinion of the author of the Pre-Sentence Report, who noted that the offender had participated in rehabilitation sessions as well as being housed in residential rehabilitation. It was the offender’s positive attitude to rehabilitation and the relatively low risk of re offending which caused the Court to entertain the idea of a service of the sentence in the community by way of an intensive corrections order.

41. In that regard I next refer to Exhibit B, which is the assessment report for an intensive corrections order. The report, as I have stated, was completed by Ms Rudic as dated 12 September 2018. The author of the report refers to contact being made with the offender, his partner, his employer, a former counsellor as well as examining toxicology reports and other documentary material. The offender's partner affirmed her support for him, and informed that both of them were working on maintaining abstinence from drug taking. He continues to be employed on a full time basis, again in a supervisory role and is referred to as having a good relationship with his employer, who is also a close friend.

42. Ms Rudic in the ICO assessment report refers to the history of previous community supervision involvement, together with the offender’s criminal record, she assessed the risk of re offending to be low to medium, and identified the needs as being companions and alcohol/drug problems. It is in that report that Ms Rudic referred to the fact that the offender appeared to take some responsibility for his offending. The reason for a qualified statement is unclear.

43. During the period of the preparation of the report, the offender changed his address three times and had been absent during the scheduled home visits which were critical for the assessment report to be completed. The offender claimed that he relocated to his current address in order to move away from drug using associates, which he expressed as being a helpful strategy to his recovery. The author of the report stated:

"During the preparation of this report, Mr Rede has displayed his reliability (I read as unreliability), turned up for the interviews unscheduled and was not present during scheduled home visits. In addition, he failed to provide reasonable explanation as to why he was not present for the scheduled home visits, knowing that his action could affect the outcome of the assessment."

44. The assessor found the offender to be unsuitable for an intensive corrections order due to Community Corrections being unable to verify the offender's proposed accommodation, and his unreliability. That is the cause of some considerable disappointment to the Court, and no doubt to the offender and his partner.

Approach to Sentencing

General Principles

45. The Court then turns to the purposes for sentencing, set out in s 3A of the Sentencing Act:

1. punishment which is alive in this case;

2. deterrence, in my opinion, the need for specific deterrence is mitigated to a large degree by the offender's voluntary participation in rehabilitation courses, with some considerable success, it would seem. There remains, however, a need for general deterrence for drug dealing and drug supply;

3. the third purpose is protection of the community. I do not consider the offender to be a threat to the community, which was the reason for entertaining the ICO in the first place.

4. next is rehabilitation. In my opinion, that does not necessarily serve any great purpose in this particular case, as the offender has shown great responsibility in rehabilitating himself, with the support of his partner; and

5. accountability always looms large as a purpose for sentencing, as it does in this case, together with denunciation and recognition of the harm done to the community by the conduct of the offender.

Proportionality

46. Notwithstanding, having regard to all of those matters, the Court must strive to achieve a sentence which is proportionate. A sentence should not be increased beyond what is proportionate to the crime, in order to extend the period of punishment or protection of society, from recidivism. The obligation of the Court is to ensure that an offender is adequately punished. The sentence should neither exceed nor be less than the gravity of the crime, having regards to the objective circumstances.

Imprisonment

47. Regrettably, imprisonment by way of full time custody arises for serious consideration in this case. Before making any determination in that regard, of course, the Court must be satisfied, having considered all possible alternatives, that no sentence, including non custodial sentences, other than imprisonment, is appropriate. In this case, the Crown has contended that the s5 threshold has been met, and the term of imprisonment is warranted.

48. Counsel for the offender conceded that the threshold had been met, and that no sentence other than imprisonment was appropriate. I have already referred to the fact that I form the opinion that, subject to a favourable ICO assessment, this particular offender could serve his sentence by way of an intensive corrections order in the community.

49. In view of the Community Corrections rejection of that as an available option, it leaves the Court with no real alternative. Counsel for the offender today submitted that perhaps a sentence could be imposed and then suspended, given that the sentence period is to be for less than two years.

50. In my opinion, a suspended sentence is not reflective of the overall objective seriousness of the offending in this case. Accordingly, in my opinion, and I so find, that the offender must serve his sentence by way of full time custodial imprisonment.

Guilty Plea

51. Section 22 of the Act requires the Court to take into account the guilty plea. I have done that. It was, of course, entered in the face of a strong Crown case, but nevertheless I agree that the sentence ought to be discounted by 25%, on account of the plea entered by the offender at a relatively early stage.

Special Circumstances

52. The question of special circumstances has been addressed upon. I find that special circumstances do exist. It will be the offender's first time in full time custody, and he has also demonstrated a favourable response to rehabilitation, such than an extended period in the community is warranted on parole.

Consistency

53. I have had regard to the statistics in relation to sentencing for this offence, and I am satisfied that the sentence to be imposed is consistent with sentences generally imposed for offending of this type. Of course, bearing in mind that the statistics regarding those matters have only relative bearing upon such matters.

Imposition of Sentence

Commencement Date

54. As mentioned, I understand the offender has spent two days in custody in relation to this offence, with the result that his sentence to be imposed will commence two days before today. That is, we deem it to have commenced on 12 September 2018.

Sentence

55. Mr Rede, you are convicted of the charge on the Crown Sentence Summary. That is, the supply of a prohibited drug on an ongoing basis, together with the matters which are set out in the Form 1.

56. In respect of that conviction, I impose a sentence consisting of a non parole period of eight months, commencing 12 September 2018, and expiring 11 May 2019, at which time you will be released on parole. I impose a head sentence of 12 months, which reflects a reduction of 25%, to reflect the value of your early guilty plea. So this means that you will be sentenced to a period of imprisonment of 12 months.

57. The non parole period is the minimum time that I have said that you must remain in prison. After that date, that is 11 May 2019, you will be released back into the community on parole. And of course, during that period, you must be of good behaviour.

**********

Amendments

11 February 2019 - Formatting error

Decision last updated: 11 February 2019