R v Robert KAUTER

[2008] NSWDC 195

CITATION:	R v Robert KAUTER [2008] NSWDC 195
HEARING DATE(S):	14 August 2008
JUDGMENT DATE:	14 August 2008
JURISDICTION:	Crimiinal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Sentenced to imprisonment with a non-parole period of 3 years and a head sentence of 6 years. Drugs to be destroyed.
CATCHWORDS:	CRIMINAL LAW - Sentence - Supply commercial quantity of ecstasy - Trafficking to a substantial degree
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
PARTIES:	The Crown Robert Kauter
FILE NUMBER(S):	DC 08/11/0593
COUNSEL:	P. Hamill (Offender)
SOLICITORS:	NSW DPP Nyman Gibson Stewart

JUDGMENT

1 Robert Kauter appears for sentence today having pleaded guilty at the first opportunity to an offence of supplying a commercial quantity of ecstasy. When I sentence him for that matter he asks that I take into account three other matters, one relating to the supply of ketamine, one to the supply of cocaine and a third offence of possessing a restricted substance, namely Viagra.

2 The offender’s wrongdoing came to the attention of police when they were conducting one of their now familiar drug dog operations. This time it was police dog Chilli, which the police used. I know that the day of the offender’s arrest was shortly before the Mardi Gras and one suspects that police may have been rather active in their efforts because of the relationship between the Mardi Gras and drug use. The drug dog indicated a scent of prohibited drug around the offender when they were patrolling in the Mansions Hotel in Kings Cross at about 7.30pm on 1 March this year. The offender provided an excuse, saying that he had earlier had a smoke, but police took the offender to the male toilets where they began to search him. They there discovered a quantity of cocaine and some tablets which later proved to be ecstasy.

3 The offender was arrested and taken back to the police station and interviewed. The offender was less than truthful in that interview. However, during the course of it he consented to police going to the unit where he lived in order that they could conduct a further search. The offender, police and Chilli therefore, went to the offender’s unit in Kellett Street, Kings Cross. With the assistance of the dog, police discovered a large quantity of light green coloured pills. They turned out to be ecstasy on later examination. They were identical to the ones earlier located on the offender. Police also discovered more cocaine.

4 On this occasion, the offender admitted that he had a substantial quantity of ecstasy tablets. Police asked him to estimate how many tablets there were. He said that there were between three hundred and four hundred. The offender knew full well at that stage that there were more tablets but attempted to minimise his wrongdoing when he spoke to the police during the interview. In fact, as he told me during the course of his evidence in court today, there were five hundred tablets. A simple mathematical calculation suggests that that figure is much more likely to be correct than the three to four hundred figure which the offender earlier gave.

5 When he was asked about the cocaine he said that he did not intend to sell the cocaine. His admission of guilt in relation to that matter was explained on the basis that he intended to share it. A similar situation applies to the ketamine.

6 The offender told police about the ketamine when he volunteered that he had a Holden Commodore parked outside his home unit which he believed may contain further drugs. It was there that police discovered the Viagra, but also the ketamine to which I have made earlier reference. The fact that the offender volunteered to police information which led to them seizing the Viagra and the ketamine is a matter clearly to the offender’s credit.

7 The ecstasy tablets weighed, in total, one hundred and forty-three grams. The commercial quantity of ecstasy is one hundred and twenty-five grams, and the large commercial quantity is five hundred grams.

8 The offender explains that he had been dealing in ecstasy tablets for some time in order to fund his substantial addiction to cocaine. He says that he had more ecstasy tablets in his possession on 1 March than he would usually because of the Mardi Gras. He clearly saw that there was going to be increased demand and he was determined to satisfy that increased demand. He took advantage of the relationship between the Mardi Gras and ecstasy use to maximise the amount of money he would make, in turn so that he could maximise his cocaine use.

9 The legislature has comparatively recently turned its attention to sentences imposed for offences such as commercial drug supply. For many years the maximum penalty for that offence was twenty years imprisonment but the legislature introduced, in 2002 I think it was, the concept of a standard non-parole period for selected offences. This is one of those. The standard non-parole period for this offence is ten years. Thus one would expect, absent a plea of guilty, in cases where the objective criminality is in the middle of the range, a number of non-parole periods in the order of ten years would be imposed. I will return to that expectation later in these remarks. One thing is clear, however, and that is that the legislature intended that penalties for offences such as this should increase. The legislature clearly expected that judges would respond to the imposition of a standard non-parole period by increasing, and significantly so, sentences which had previously been imposed for commercial drug supply.

10 There is little to explain why the offender became involved in such a serious crime. He had a stable upbringing, has the support of family and friends, and was always in employment. Indeed, at the time of this offence he was earning good money. His employer at that time who gave evidence before me today, described him as a valuable employee and said that when he checked out his references when Mr Kauter applied for the job he discovered that he had been well regarded by previous employers as well. The only explanation as to why the offender became a drug supplier, and a significant one at that, is that he himself became a drug user and needed to fund his drug addiction. As is often the case, the offender’s drug use started out at a reasonable level but then progressed to the extent that he had a serious addiction, something he was not prepared to admit to himself, let alone to his friends and family.

11 The offender was a man of prior good character, subject to two qualifications. One is immaterial. He has an earlier conviction for driving whilst disqualified, but I propose to disregard that. The other qualification is that he, as a regular drug user, was a person who regularly committed criminal offences relating to his purchase and use of prohibited drugs. He progressed to the stage where his drug dealing became what I would call “large scale”. Five hundred tablets of ecstasy is a very significant quantity. In addition, there are other factors suggesting large scale drug dealing such as the fact that when police searched his home they found five mobile phones - one of those may well have been his then girlfriend’s - and numerous plastic bags. Even if, of course, the mobile phones and the plastic bags had an innocent explanation the number of tablets themselves is suggestive of large scale drug dealing. The offender also had scales and Glucodin. He gave evidence that they were related to his personal drug use and had nothing to do with him supplying for sale any drugs. Notwithstanding some hesitation I will accept what the offender says. I will accept that the offender is remorseful. He gave evidence about his experience in custody since 1 March this year and his somewhat belated recognition of the impact that drugs have upon the lives of almost every member of the community. He recognises, as do most of us with experience in the criminal law, that an enormous proportion of those in custody are there because they have committed drug related offences, whether they are directly related to drug supply and use, or indirectly, as addicts commit all manner of offences in order to obtain drugs to satisfy their own addiction. The offender was perhaps not in the best position to rationally think about his drug supply activities, being a significant drug user himself, but since he has given up drugs whilst in custody it appears that it has finally dawned on him that a blasé approach to these offences is no longer appropriate.

12 One of the matters I am required to consider is whether the offender has good prospects of rehabilitation and is unlikely to re-offend in the future. Frankly, I do not know whether he has good prospects of rehabilitation and is unlikely to re-offend in the future given the extent of his offending and the depth of his drug addiction, but that does not mean that I have entirely disregarded his prospects of rehabilitation and the chance that he will not re-offend. Just because a matter does not reach the level provided for in s 21A(3) Crimes (Sentencing Procedure) Act does not mean that it is irrelevant. Whether it reaches that standard or not it is a matter I am required to take into account and I have done so. He does have some prospects of rehabilitation. Certainly he gave evidence suggesting that he had a very strong desire to rehabilitate himself now that he realises many things he did not realise before. But, as I say, given the extent of his criminality and given the level to which he became addicted to drugs I cannot describe his prospects of rehabilitation as good.

13 One of the matters that I must identify is where in the objective range of seriousness this offence falls. Mr Hamill submitted that I would find that the offence was lower than the midrange. He relied in particular on the quantity involved. As I mentioned, commercial quantity offences extend from one hundred and twenty-five grams to five hundred grams, and the offender’s criminality was one hundred and forty-three grams.

14 Mr Hamill also relied on a submission that this was a one-off because of the Mardi Gras. I do not regard that as relevant to my assessment of the objective gravity of this offence. The fact that it was committed on perhaps one occasion, only does not make the offence itself objectively less grave.

15 Nevertheless, I am prepared to find that the offence is less than the midrange of offences of this type, because of the quantity involved. This is not to suggest some sort of mathematical approach, but bearing in mind that one of the most important factors in deciding the objective gravity of a drug supply crime is the quantity of drug supplied, the quantity on this occasion is what has primarily persuaded me to make the finding that the objective gravity is less than the midrange. Of course the standard non-parole period is not of direct application in any case because of the plea of guilty which was entered at the first opportunity thereby entitling the offender to a discount on the sentence he would otherwise have received of twenty-five per cent. Nevertheless, the standard non-parole period remains as a guidepost which I must bear firmly in mind.

16 Let me return now to the question of the sentencing statistics which I mentioned earlier in these remarks.

17 Notwithstanding that the sample size is relatively small I do regard it as significant that not one non-parole period more than six years has apparently been imposed since the imposition of standard non-parole periods. If the standard non-parole period is ten years one might have expected that at least one of the twenty-six cases got what the legislature described as the standard. Of course, the obvious explanation for this conundrum is that all of the twenty-six cases involved pleas of guilty. It may be that that is the case. But even given that consideration the relationship between the statistics and the standard non-parole period suggests that there must have been quite peculiar factors which have led to what, in the light of the standard non-parole period, are very lenient sentences. There must have been unusual factors which have led to sentences which, on their face, fail to reflect the legislature’s attitude towards sentences for offences of this type, as reflected in the standard non-parole period.

18 The Court of Criminal Appeal has, on many occasions, suggested that sentencing statistics are of limited utility because little information about such cases is provided by the statistics themselves. This puts me in something of a difficult position. The legislature say one thing, the sentencing statistics, on their face, suggest something else and the only way of resolving it is to assume that each of the twenty-six cases in the statistics had a very unusual feature.

19 In this case, there is one matter firmly in the offender’s favour and that is that absent his drug use and drug supply there is much to be said for him. He is clearly an intelligent man, valued by his current employer to the extent that a job remains open for him when he is eventually released from custody.

20 Perhaps this case demonstrates the evil which drug supply is, that a man with much to contribute to society, such as Mr Kauter, could, through people supplying him with drugs, turn into a person who is willing to inflict the same problems on others by supplying drugs to them. It demonstrates the real scourge that drug use and drug supply is in our community. For that reason offences such as this require sentences which provide a significant level of general deterrence. There is also a need for retribution in this case, heightened by the fact that there are Form 1 matters to be taken into account.

21 It is accepted that only a custodial sentence and a full time one is appropriate in this case. The offender was clearly trafficking to a substantial degree and there is nothing at all to suggest any exceptional circumstances which would justify other than a full time custodial sentence. It must be a sentence of some considerable length, too, for the reasons that I have earlier identified. In particular, there is a need to deter others who might be tempted to fund their drug addictions through large scale drug supply.

22 There are special circumstances in this case. This will be the offender’s first time in custody and a longer period of supervision on parole will aid in the offender’s rehabilitation which in turn will benefit not only him but the community. It is in the community’s interests, as well as the offender’s, that he commit no further offences in the future and an extended period of supervision on parole will assist that objective.

23 This case should serve as an example to others who may think that drug use is benign. The offender has demonstrated how easy it is to allow drug use to take over a part of a person’s life to the extent that they commit offences of such gravity that they are required to spend a lengthy time in custody. The offender’s drug use caused his life to spiral down out of control to the stage where he himself was prepared to supply drugs to others who in turn may have found their lives spiralling down out of control as well.

24 The offender is sentenced to imprisonment. I set a non-parole period of three years to date from 1 March 2008 and a head sentence of six years. The non-parole period will expire on 28 February 2011 on which day the offender is eligible to be released to parole.

25 Are there any other orders required, Madam Crown, Mr Hamill?

26 DODDS: Yes, your Honour, an order for the destruction of the drugs and the restricted substance.

27 HIS HONOUR: The drugs and the restricted substance, the Viagra tablets, are to be destroyed.

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