R v Redman

[2020] NSWDC 554

District Court

New South Wales

Medium Neutral Citation:

R v Redman [2020] NSWDC 554

Hearing dates:

22 July 2020

Decision date:

22 July 2020

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Sentenced to a term of imprisonment of 3 years 4 months. Non parole period of 2 years.

Catchwords:

CRIME - Drug offences - Supply prohibited drug - cannabis leaf - rolled up quantity.

SENTENCING – Relevant factors on sentencing – early guilty plea - sale for profit by addict – role - quantity supplied - nature of supply- pro-social support in community - COVID 19 restrictions on visits in gaol - application of parity principle – Intensive Correction in the community not appropriate - special circumstances – need for drug rehabilitation in the community

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Drug (Misuse and Trafficking) Act 1985

Cases Cited:

R v O’Dwyer [2020] NSWDC 151

Valentine v R [2020 NSWCCA116

Category:

Sentence

Parties:

Richard Stuart Redman (the offender)
Director of Public Prosecutions

Representation:

Counsel:
Mr H. White (for the offender)

Solicitors:
Johnson & Sendall (for the offender)
Ms S Foggo (for Director of Public Prosecutions)

File Number(s):

2019/00178418

SENTENCE – ex tempore revised

1. Richard Redman is for sentence today for one charge of supplying the prohibited drug, cannabis, in the indictable quantity: s 25(1) Drug (Misuse and Trafficking) Act 1985. That offence carries a maximum penalty of ten years imprisonment. The quantity of cannabis, which is one of many factors that must be taken into account, was arrived at by amalgamating a number of transactions. To roll up those transactions in the manner done here is not uncommon. It was done with the consent of the offender, and allows for a sentence appropriate to the totality of his offending to be imposed. The rolled up quantity of cannabis, subject of the count, brings the total closer to the commercial quantity but I sentence on the basis of the section and the maximum penalty that applies to this offence not some other.

2. There a matter on a Crimes (Sentencing Procedure) Act 1999 Form 1 to which Redman has admitted his guilt. Given the nature of that drug, the quantity of that drug and the rationale for possessing it given to his psychologist, this matter would not add one day to the sentence that I impose. A purpose fulfilled properly by the Form 1 procedure effectively clears the slates of outstanding matters.

3. Redman has been in custody since his arrest on 7 June 2019. He pleaded guilty at an early opportunity and he made admissions and cooperated with the police and prosecution in bringing this matter to finality; all maters I take into account.

4. I turn briefly to the agreed facts. In 2018 a police strike force was investigating the supply of cannabis in the Goulburn area. Redman’s telephone calls were lawfully intercepted from 13 November 2018. The transactions, the subject of this matter, occurred between November 2018 and May 2019.

5. The offender was sourcing cannabis from a man called Kyranakos prior to that period. When Kyranakos was arrested in September 2018 Redman arranged to obtain cannabis from another supplier. A pattern in this case is that Redman was aware that the police were arresting people close to him but he continued his activity despite the obvious signs that police were investigating all their activity.

6. An arrangement was made by the offender to purchase cannabis from a man who lived in Albion Park. That man arranged for another offender, Connor O’Dwyer, for a fee, to deliver the cannabis to Redman. O’Dwyer was arrested in June 2019 and was sentenced for his delivery of the same quantity of cannabis that is now being dealt with: R v O’Dwyer [2020] NSWDC 151.

7. The facts here indicate that the offender was selling cannabis to various customers in the Goulburn area. Typically he would sell his customers amounts between 28 to 56 grams (1 to 2 ounces) at a time. The cannabis would be stored with another man, Mr Lourdes. He was also working with another friend Damien James, for a while, until 11 December 2018 James was arrested in possession of cannabis.

8. When the police arrested this offender on 7 June 2019 they found about 160 grams of cannabis and he made these admissions:

“Q. If I was to say that you were a cannabis supplier am I going to be incorrect?

A. No I’m being honest, it’s all there, I can’t lie”.

9. Redman also accepted that he was getting six and seven phone calls a day from customers.

10. It is agreed that the offender purchased not less than 24 kilograms of cannabis between 28 September 2018 and 6 June 2019 and that the offender received that cannabis for the purpose of supply in the Goulburn area.

11. In the Drug (Misuse and Trafficking) Act 1985 the term “supply” carries an extended definition. I do not sentence solely on the basis that the offender received the cannabis. The agreed facts indicate that a significant quantity of the cannabis was actually supplied to those in Goulburn area.

12. The other material before me also indicates that Redman was himself a heavy cannabis user and I am sure consumed a quantity of his own product. That said, drug use, even drug addiction, can never mitigate the commission of a supply offence. Drug use, drug addiction is not an excuse for the commission of any crime. What it can do is give me some understanding of the person for sentence.

13. Redman has the support of his long term partner, Ms Fitzgibbon; who gave evidence today. She has known him a long time. She knew he was a cannabis user. She also accepted that she was aware that he was supplying cannabis for the latter part of the activities for which he is to be sentenced. She has and continues to provide pro‑social support to him and is keeping their home for him to return to when he is released from custody. She told me that she visited him in the Wellington Correction Centre and did so regularly until the COVID‑19 pandemic meant that contact visits were suspended. She has regular daily phone calls with him. Her continued support is one indicator that on release Redman will not reoffend and one protective factor in his life.

14. Although he was a user it is clear he was also unemployed and that he was receiving and supplying cannabis for commercial reasons. His use of the cannabis was described by his psychologist as “a maladaptive coping mechanism” for his depression, which has been longstanding. But he was the principal in his own small business. There is no evidence that he was leading a lavish lifestyle but clearly he was profiting from this activity and profiting to an extent well beyond that required to simply support his own heavy use of the drug.

15. While Redman was thinking clearly enough to obtain and supply the cannabis and carry out his trade he was not clear thinking clearly enough to realise that the police were arresting associates around him and would soon move on him. He did not stop his activity until arrested.

16. Redman has a criminal record, although it was some time ago. He has demonstrated a capacity to lead a law abiding life in the community and that is one protective factor for his future that I can take into account. However he is not entitled to leniency often given first offenders. It appears that the lesson meant to be taught by a short sharp gaol term many years ago was forgotten.

17. In gaol he is keeping himself to himself and avoiding trouble. He is working and there are no incidents reported on his custody record. I do not underestimate the lived experience of gaol, particularly for someone with a depressive condition. In that regard I also appreciate that the present pandemic places stresses on everyone in the community and that people in prison have no capacity to independently exercise controls over how they associate with other inmates.

18. I am aware from my review of the authorities, Valentine v R [2020 NSWCCA116 is one example, material on the Judicial Commission website and material put out by the Corrective Services Commission that although telephone calls, and in some cases video visits are increasing, the lack of personal contact with friends and loved ones is a significant detriment. While the pandemic risk continues prisoners are locked in their cells more often and not allowed to associate freely. I have seen the cells in many gaols in New South Wales; and being locked in them, is not a pleasant experience. The extra hours spent in cells is a matter I can and do take into account. I also note that should it be necessary to give persons early parole this offender would seem to qualify for such early release: s276 Crimes (Administration of Sentences) Act 1999.

19. The report of Ms Manoski, psychologist, was admitted without objection: exhibit 1. Every such report has to be viewed in a guarded fashion, but the material set out in here is the sort of material regularly accepted and relied on by sentencing courts. It is relatively uncontroversial and the product of Ms Manoski’s professional expertise being brought to bear on her own test results and the material provided to her.

20. Now 41 years old, Redman has difficulty understanding the causes of what Ms Manoski says is a depressive illness. He also appears to have little insight into his cannabis use; although abstinence during his period of custody is an important factor. He was born and raised in Goulburn and had what she described as a “difficult” relationship with his father: details were provided. He had no contact with his father since a teenager. He describes his mother as “warm, caring and supportive.” He reported a close relationship with an older sister who died tragically young in 2016; a matter which had and continues to have an impact on him.

21. Even before leaving school he was able to find work. Over his life, Ms Manoski opines, he has found it difficult to express himself and has suppressed negative emotions, notably by the use of cannabis and alcohol.

22. He has sold cannabis during periods of unemployment to support his cannabis use. It is also clear that during such periods he has used such sales to gain some income. He is a regular cannabis user and also reports daily alcohol use. He says, and I accept, that he has not been using drugs in gaol and he says, and I accept “that being in here has woken me up” and that he does not now need to resort to drug use.

23. Redman still has few goals in life and certainly no goals at the time he was offending. He expressed his regret for his partners he had let her down. That will be one further incentive for him not to offend in the future.

24. Ms Manoski reports symptoms synonymous with persistent depressive disorder. They include low self‑esteem and a sense of helplessness. She believes he meets the criteria for a persistent depressive disorder. His lack of insight into his cannabis use, his cannabis dealing, his own justifications and cognitive distortions of the matters that led to his offending are risk factors that she believes requires remediation. She suggests that he engage in long term drug rehabilitation, if possible, in custody through an Intensive Drug and Alcohol Treatment Program (IDATP) on his release perhaps with an organisation such as Odyssey House. She says that given his underlying depressive illness and his use of drugs and alcohol as a maladaptive coping mechanism he will need continuing help if he is to turn his back on drugs of addiction and avoid committing further offences.

25. Mr White, on Redman’s behalf, submits that there is a clear causal connection between his offending and the supply of drugs and his underlying depressive condition. I am prepared to accept that his depressive condition and underlying psychological problems made him more susceptible to the use of drugs and alcohol and that needing more cannabis and being unable to afford it provided him with a motivation for purchasing in bulk and then selling some of the cannabis. However, the extent of his operation, the time over which it occurred and the quantities supplied indicates that little weight can be given to that particular causal link. That does not mean that I do not take into account the person for sentence, the reasons why he commenced using cannabis and the need for appropriate treatment. That treatment should be proved, if possible, in custody but specifically in the community on release. It is a factor that applies generally when I consider all the purposes of sentencing and provides a justification for a finding of special circumstances and

26. If released to a residential rehabilitation facility is not possible then it is absolutely critical that on release he attend Narcotics Anonymous or SMART recovery groups or both. I am sure that Community Corrections can, if he is so motivated and has the motivation reinforced by his partner, help him engage in those programs when he is released.

27. I am prepared to accept that there are a number of important matters that led to him offending but at the same time Mr Redman well know that what he was doing was committing serious offences.

28. It has been submitted that in this individual case I could, as I did with O’Dwyer, allow for an extended period of supervision of the offender in the community and structure the sentence to enable the balance of the sentence served in the community subject to an Intensive Correction Order. Mr White submitted that Redman could be equated with O’Dwyer and that parity or equal justice principles applied to demand similar sentence dispositions. With respect, I cannot accept that submission. O’Dwyer was employed to deliver drugs from the Albion Park area to Goulburn; that was the extent of his involvement in this crime. He delivered a large quantity of drugs from a bulk supplier to a street dealer, Redman. Redman received and sold those drugs to a number of others, as his supply business. Redman well knew that the drugs were to be distributed for his profit. There is no fixed hierarchy in any drug supply system but as a matter of objective fact, I place Redman significantly higher in that hierarchy than the person who was delivering the drugs.

29. In matters such as this whatever people think about the use of cannabis by members of our community, judges are obliged to give specific consideration to general deterrence; that is, by the severity of the punishment inflicted, somehow trying to get it through to people like Redman that to make a profit from supplying drugs in our community is a serious crime. Whatever one thinks of the use of cannabis use it is the money that is obtained by the sale of cannabis and the crimes committed by those who need funds to purchase cannabis that is one of the particular evils that is addressed by the maximum penalty of ten years. I have to give some consideration to that maximum penalty and the quantity of drugs supplied as the one of many guides to the exercise of my sentencing discretion.

30. When I come to consider the appropriate sentence I have anxiously considered whether all of the purposes of sentencing could be met by structuring the sentence to enable its balance to be served by intensive correction in the community. I do not believe community protection would be an issue if I did so. But, here the penalty to be imposed, particularly the minimum gaol sentence required has not been met by the current period on remand. There must be a further period in custody to meet all the purposes for sentencing to which I have referred and otherwise set out in s 3A Crimes (Sentencing Procedure) Act 1999.

31. The otherwise appropriate sentence will be reduced by 25% for the utilitarian value of the early guilty plea. My starting point was four years and six months and I have rounded down to the prisoner’s advantage. I have made a finding of special circumstances.

Orders

32. The sentence of the Court is one of three years and four months imprisonment. The formal orders are: there will be a non‑parole period of two years which will date from 7 June 2019. You will be eligible for consideration for release to parole, and given your good gaol history I would expect, you will be released to parole on 6 June 2021. The balance of the term is one of one year and four months; it will expire on 6 October. You should be supervised in the community for as long as Community Corrections deem necessary.

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Decision last updated: 23 September 2020