R v Roach, Anthony

[2010] NSWDC 75

CITATION:	R v Roach, Anthony [2010] NSWDC 75
JUDGMENT DATE:	9 March 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted. Sentence to a minimum term of 12 months imprisonment to date form the 4th December 2008 and expiring on the 3rd December 2009. Balance of term of 6 months to expire on the 3rd June 2010. I order the offender’s release on the 3rd December 2009. Pursuant to Section 52 of the Crime (Sentencing Procedure) Act, I order the offender:
CATCHWORDS:	Criminal Law - Sentence - Drugs - Knowingly take part in supply of cannabis - offender offers safe storage site for principal drug supplier's stock - selling 10 ounces weekly for 4 month period - substatntial syndicate supply at behest of principal - money deliveries from sellers to principal made by offender - total offending period 13 months.
CASES CITED:	R v Gladue [1999] 1SCR 688 [80] R v Cuthbert [1967] 2 NSWR 329 R v Rushby [1977] NSWLR 597 R v Hayes [1984] 1 NSWLR 740
PARTIES:	Regina Anthony Wayne Roach
FILE NUMBER(S):	2009/10134
COUNSEL:	K. Robinson
SOLICITORS:	Crown: Mr N Tran-Dinh Office of DPP, Dubbo

JUDGMENT

1. A police Strike Force Monkman was initiated by the Dubbo based detectives to target cannabis suppliers in the Dubbo area. A syndicate of cannabis suppliers in a network managed by one Sue Peachey was discovered through the operations of Strike Force Monkman. Relevant use of modern police methods, including surveillance and telephone taps, uncovered a number of cannabis suppliers, including Anthony Roach. He was arrested on 4 December 2008 and charged in relation to his role in that syndicate. Today he is formally to be held accountable for knowingly taking part in supplying cannabis in the Dubbo region between 31 October 2007 and 5 December 2008.

2. As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for this offence before this Court committed by this offender potentially harming those in his Dubbo community (R v Gladue [1999] 1SCR 688 [80]). My initial task requires an assessment of the objective criminality of the offence before the Court. I will also need to have regard to matters personal to him, called subjective matters. The starting point for such assessments requires me to make findings of fact from the evidence before the Court relating to both the offence and the offender.

3. The offender’s rehabilitation prospects will have to be assessed, even if looking through a glass darkly. Before any sentence can be made there are technical questions relating to deterrence, discounts, whether special circumstances are to be found, parity, and finally of course the ultimate length of a term of imprisonment or other penalty to be imposed. None of these can be commenced until the primary facts are determined. What weight needs to be given to all of these matters against an imperative that all sentencing should have as its primary focus the protection of the community will also need to be determined; (see R v Cuthbert [1967] 2 NSWR 329, R v Rushby [1977] NSWLR 597 and R v Hayes [1984] 1 NSWLR 740).

Facts

4. Between October 2007 and December 2007 Peachey was in the habit of leaving two ounce lots of marijuana for short periods of a time at the premises of the offender while she did a trip “downtown”. A short period, it would seem, was as many as two days. The offender’s reward for allowing secure storage of supplies of marijuana was the supply of some marijuana for his own use. Those two ounce lots became quantities ranging from one to two and a half pounds. That practice ceased on 16 December 2007 when the offender stopped his association with Peachey. The supply of safe storage of marijuana for Peachey are acts relied upon as being knowingly concerned in the supply of cannabis in the Dubbo region. The evidence is silent as to the number of occasions which, nonetheless, the offender described in his record of interview as “quite regularly”.

5. In March 2008 the accused began purchasing his own supplies from Peachey for a second time. In August 2008 the offender began to purchase eight ounce lots for his own use and for sale to close friends. He would replenish his stock once a week to once every ten days. In respect of quantities sold to close friends the offender was rewarded with monetary commission. The accused estimates he was selling as much as ten ounces per week until 4 December when he was arrested. These dealings are further acts relied upon by the Crown as being knowingly concerned in the supply of cannabis in the Dubbo region.

6. The offender came to know a number of details of others involved in the Peachey syndicate and supplying quantities of cannabis (first) supplied by her. On “several occasions” the offender picked up sums of money from Peachey’s daughter-in-law and delivered it to Peachey. Sometimes that would include sums of money paid to the daughter-in-law by another supplier, Leanne Wilkinson. These deliveries were done two times weekly, over three or four weeks, he said. Further deliveries of the money from supplying cannabis also constitute acts of being knowingly concerned in the supply of cannabis. I have resisted the temptation to find that the accused was minimising in respect to the three to four weeks.

7. From 17 November 2008 until his arrest on 4 December, Peachey would split supplies brought from Sydney among at least three co-offenders, including this offender. He told police, “We were all asked to take a pound.” This second episode of storage constitutes acts the Crown relies upon as acts of being knowingly concerned with the supply of cannabis in the Dubbo region.

8. On the Crown case, and apparently not contested by the offender, for two shorts periods the offender was regularly doing acts that amounted to knowingly taking part in the supply of cannabis in the Dubbo region for a period of about thirteen months.

Objective Criminality

9. From the facts as he finds them to be a sentencing judge is required to assess what is called the objective criminality of an offence as an essential step in assessing its seriousness by comparison with other offences of a similar kind. It is in this way that the objective seriousness of the criminality of this offence is evaluated. Objective criminality has an important, indeed the most important, impact on the overall sentencing outcome.

10. The courts and legislature have made it clear that drug supplying is an unacceptable criminal activity. It is not difficult to understand why drug supplying is a criminal activity. Contrary to the impression this offender may well have entertained initially, it is not a social but rather an antisocial behaviour.

11. The courts have long recognised that in assessing the objective seriousness of a drug offence it is necessary to have regard to the drug’s potential for harm. Harm to others, when inflicted by someone else, is clearly antisocial behaviour.

12. Drug dealing is harmful to the community by its direct impact upon those who purchase drugs and its indirect impact upon the community at large. For some, if not most, drugs such as the one I am concerned with here, cannabis, can be addictive. Some, including cannabis, are otherwise destructive, causing or contributing to mental health problems and/or aggression. Cannabis is a classic example of a drug that does that.

13. Supplying drugs can lead to, create or sustain drug addicts. Drug addicts are human beings whose capacity to function and feel human is smothered to a greater or a lesser extent by addiction and other effects of drugs. That is the real essence of the criminal harm done by suppliers of drugs, that is that in a greater or a lesser way they are contributing to the disenabling of other human beings.

14. In that sense then, drug supplying undermines public health and to undermine public health is clearly an antisocial behaviour. In the greater western region and in the central western region one has only to look at the devastating effect that marijuana has on Aboriginal communities with their large incidence of mental health problems.

15. Associated with drug addiction are other forms of crime, such as armed robbery, break enter and steal, that is a loss of property to an owner, usually arising from that owner’s productive effort in the community. Associated with robbery and break and enter offences is trauma, emotional and psychological damage to victims caused by violence or intrusion into their homes by people who are drug addicts looking for money to purchase their next supply. The spending of money on drugs by drug addicts, without any corresponding productivity by them or by the drug supplier, sees a monumental transference of wealth, usually from the already poor, without any corresponding economic gain for the community. Cannabis is often a pathway to heavier drugs, such as cocaine, heroin and amphetamines. At every level, then, drug dealing is criminal conduct because of its corrosive effect upon individuals in society as a whole.

16. While the accused’s knowingly associating with the supply in Peachey’s syndicate covered thirteen months, his actual supply to others was of a more limited duration and among those who were already users. That has both a good side and a bad side. On the good side, at least, he was not recruiting new people to the use or abuse of drugs. On the bad side, though, cannabis as a cumulative effect and it is the supply to those who are already users where they would be the most vulnerable to its effects.

17. He must have known he was involved in a syndicate supplying very substantial quantity in the Dubbo region. His initial and end game involvement in holding quantities of cannabis for Peachey was to minimise her chances of detection or in the event of her detection to protect supplies so that the criminal activity could continue notwithstanding interference by the police. His participation in collection of funds was to save and protect her from exposure in carrying those sums of money and of course to minimise her chances of detection.

18. The evidence does not disclose whether this offender appreciated his part in protecting Peachey and therefore enabling her to conduct her extensive syndicate with less risk of detection and a greater sense of immunity.

19. The quantity alleged of cannabis he is said to have been knowingly involved in is an indictable quantity. The material that I have read has demonstrated that Peachey was supplying commercial quantities weekly.

20. The facts sought to quantify, with some specificity, the actual quantity of cannabis he was involved with, there is an artificiality and speculation about calculations based upon information supplied in answers to questions in an interview. Real life demonstrates that estimates of levels of dealing, as given in an interview, are rarely accurate. On occasions they are overstated by someone with a greater sense of his guilt or her guilt, on others they are minimised. Rarely are they precisely regular in a week in week out basis.

21. Part of the Crown case is concerned with collections of money. In all the circumstances, putting as estimates this quantity of cannabis, or that, is unsatisfactory. Clearly, his involvement in knowingly concerned must relate to tens of kilos but not as direct supply. It is his role in the syndicate, limited by the terms of the charge, as being at an indictable level that must be assessed. When arrested he had risen to the position of a sub-lieutenant in the network. He was being given responsibilities which apparently he was willing to accept that went beyond the actual supply to matters of greater use, in a sense, to Peachey.

22. Imprisonment is a sentence of last resort, but there can be no doubt that the criminality reflected in Anthony Roach’s involvement in being knowingly concerned is criminality that merits incarceration.

Subjective Matters

23. I turn now to the subjective factors. I am both entitled and required to do that. Not only am I sentencing for the criminal offence, but I am also sentencing this offender for it. Each offender coming before the Court varies from others who stand or who have stood for sentence. Circumstances, personal to an offender, may offer to a court some explanation and insight into the commission of this offence by him or her, or some reason why a more or less sentencing outcome is appropriate.

24. Roach is a forty-nine year old father of six, three from one relationship and three of another. His children range from nine to twenty-seven years. He moved to Dubbo from Gilgandra at the age of twenty-two. Gilgandra is where he grew up, the second youngest in a family of nine. His parents died when he was in his thirties. Two of his siblings are also now deceased. His upbringing occurred in a warm and supportive family environment. He expresses strong and fond memories of both parents.

25. At the commencement of the Dubbo sittings he sought bail to attend a funeral of his son-in-law. He has been acutely conscious that during the son-in-law’s illness his capacity to support and comfort and lead his family was curtailed by a gaol wall. He is embarrassed that his twenty-one year old son Nathan had to support his daughter during one of the greatest periods of trauma a young married woman could face because he, to whom the responsibility should have fallen, was not there because of criminal offending.

Education, Skills and Employment

26. He was educated in Gilgandra to Year 12. Thereafter he attended a TAFE where he obtained a Certificate IV in accounting, no mean feat. He seems to have started work as a driveway attendant and ultimately took on management of a service station in Gilgandra. That business was sold, a factor which no doubt prompted him to move to Dubbo at about the age of twenty-seven. He started there with Avis Rent-a-Car. From there to a BP Service Station, then set up a car dealing business which he sold when his first marriage collapsed. For ten years or more he has been employed in the Rose Garden Thai Restaurant, in more recent years as its chef. Its owner Tichgon Pintusen (Tish) is strongly supportive of him. It would seem they have moved beyond employer/employee to friendship within employment. He maintains the Rose Garden and grew vegetables for the business at his home. He is her general hand as well as her chef at the restaurant.

Physical Health

27. Anthony Roach enjoys good health. He did have a severe reaction to a swine flu injection but has since made a full recovery.

Mental Health

28. For twelve months he has been on antidepressant medications. His depression was a reactive depression in response to his brother’s passing. There were also other sadness’s in his life, particularly loss of full access, if I can put it that way, to his children after the separations. I do not rule out his cannabis use as also contributing to his depression. He is contemplating withdrawing from his medication. He must be careful to do so, only while accepting monitoring by his doctors.

Alcohol and Drugs

29. He does not report any alcohol issues. He claims he rarely drinks and when he does it is like drinking on social occasions. On the other hand he has an extensive history of cannabis use. He commenced aged eighteen, until his early twenties when he married. After the breakdown of his second marriage he started smoking to ease feelings of sadness. I am not entirely sure whether I accept that, because of his criminal history, which shows drug convictions at times, I think, when he was married. He came to depend upon it to get sleep. He reached a gram daily. During custody he has been drug free. He now sleeps without smoking. He has promised his children not to smoke again. I intend to have him urine screened during his parole period to ensure that he stays clean at least for that time.

Attitude to Offence

30. He told Anna Robilliard he was angry with himself for becoming involved. He told Probation and Parole his involvement was not a moneymaking exercise, but ease of access for personal use and to supply friends. He accepts his actions were founded in “stupidity”. He told the Court he felt ashamed and expressed his sorrow to the people of Dubbo for tarnishing the reputation in the town; to his family because he was not there when they needed him; to his employer because she had been good to him and he had tarnished her business. He expressed a willingness to undertake a rehabilitation program.

31. Until his release on bail he had been in custody since his arrest on 4 December 2008. Much of his time in custody had been on protection because of his agreement to give evidence in proceedings against Peachey. My understanding is that whilst on protection he was unable to complete drug related programs.

Character and Criminal Antecedents

32. In the personality profile undertaken by Anna Robilliard she found his scores gave a profile indicating he is someone who focuses on other people’s needs rather than his own. He presents as soundly intelligent, is capable of being frank and showed no signs of antisocial behaviour. He appears to be a committed father to his children and a good employee. I note that he seems well supported by his family whilst at court.

33. In 1986 he first came before the Gilgandra Local Court for possessing cannabis leaf.

34. In 1989 there was a second drug conviction for administering prohibited drugs and possessing equipment.

35. In 1992 he was before the Dubbo Local Court for driving whilst licensed cancelled. He was given a 556A discharge and a six month period of disqualification. He appealed the sentence, basically focusing upon the six month disqualification period. Judge Ward, of this court, confirmed the conviction which had not earlier been recorded. There are other disqualification orders recorded which do not make sense. It may be that is a matter that ought to be looked at.

36. In 1993 he was before the court for stealing for which he was fined four hundred and fifty dollars.

37. In 1994, which on my calculation is during the marriage period, he was before the court for possessing equipment for administering drugs.

38. In 1996 it was an assault, and in 1999 for possessing drugs.

39. Although to date all of his offending has been before the Local Court the bulk of it is to do with drugs.

40. The matter before me is by far and away the most serious drug offence to date.

Assistance to Authorities

41. Roach has undertaken to give evidence against Peachey. While I assume he has made a statement to police which has been served on her there is no copy of that before me. It may be the statement is little more than a formal adoption of his interview which I assume must have been served upon Ms Peachey because he agrees to give evidence in the terms of matters raised in it. Some of that material is before me. I am satisfied his assistance to investigators has resulted in their capacity to serve a stronger Crown brief against Peachey than otherwise would have been the case. I am prepared to allow a ten per cent discount for assistance given to police in furtherance of their investigation and a ten per cent discount for promised assistance to the prosecution. In the event there is a failure by him to honour the undertaking and its terms of giving truthful and frank evidence the prosecution is entitled to appeal to the Court of Criminal Appeal against the allowance of the second ten per cent discount that I am giving, that is the one for future assistance.

Setting the Sentence
Deterrence

42. Cannabis abuse is rife in Dubbo. It is the scourge of Aboriginal communities and impacts seriously upon their health in the western central west. Contrary to popular opinion it has a capacity for monumental harm in respect of mental health issues. Consequently, sentence is required to focus on deterrence generally, for those who would be willing to chance their arm as suppliers. Having heard Anthony Roach give evidence I do not believe personal deterrence need play any part in the sentencing outcome. I accept that may be seen as a bold call against his several convictions for drug related matters, but during his forty-eighth year he experienced gaol for something like fourteen months. He would understand what is in store for him should he re-offend. The maximum penalty for this offence is ten years imprisonment.

Parity

43. To date five members of the syndicate have been sentenced. Those sentences range from three years to twelve months. One member received a suspended eighteen month sentence. All others received full-time custody. it would appear that special circumstances were found in each case. Reading the case files at least three of the offenders played a greater role in the syndicate than this offender. Thus this offender would expect to receive a sentence less than two years and three months, being the sentences received by two of the co-offenders who rate greater in the involvement than he. So far as I am aware, none of the other offenders has agreed to give evidence or assisted police. This offender appears to have more drug convictions than the others, but all, including this offender, appear to have relatively minor criminal antecedents.

Special Circumstances

44. I have noted all other offenders have received special circumstances. As a matter of parity I also do so in this offender’s case. I would, in any event, have found special circumstances on the basis that this was this offender’s first time in custody. Much of his custody has been on protection and his rehabilitation is better achieved in a community setting rather than the artificial hothouse setting of a single sex gaol.

Sentencing

45. But for the plea of guilty and assistance I would have set an overall sentence of two years nine months imprisonment. That will be reduced by forty-five per cent. That is, twenty-five per cent for the early plea and twenty per cent for the assistance. Rounded out that amounts to a discount of fifteen months, leaving an overall sentence of eighteen months imprisonment.

46. Anthony Wayne Roach, you are convicted that you between 31 October 2007 and 5 December 2008 at Dubbo in the State of New South Wales knowingly took part in the supply of a prohibited drug, namely cannabis leaf, being an amount not less than the indictable quantity of that drug.

47. I set a minimum term of twelve months to commence on 4 December 2008 and to expire on 3 December 2009. It will be clear to you, you have served that minimum term. I set a balance of term to expire on 3 June 2010.

48. Pursuant to s 52 of the Crimes (Sentencing Procedure) Act I make the following orders in respect of your parole. I order that you be supervised by Probation and Parole, that you are to obey all directions of your case manager as to treatment, programs and counselling.

49. You are to submit to random urine screening no more than three times monthly for the purposes of detecting illicit drugs. I commend to Probation and Parole consideration of requiring you to undergo a relapse prevent course and other drugs rehabilitation programs.

50. For the record, I order your release to parole on 3 December 2009. This seems to me to be a case where the workload at the Dubbo Court has seen you incarcerated for a period longer than you needed to be incarcerated.

51. I order you to report to the Probation and Parole office at Dubbo by the end of this week, that is 4pm on Friday 12 March.

52. You are free to go.