R v Robinson

[2016] NSWDC 400

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Robinson [2016] NSWDC 400
Hearing dates:	14 July 2016, 15 December 2016
Date of orders:	15 December 2016
Decision date:	15 December 2016
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	The offender is referred for assessment as to his suitability to serve his sentence by means of an Intensive Corrections Order
Catchwords:	CRIMINAL LAW – Sentence – Drug supply
Legislation Cited:	Crimes (Sentencing Procedure) Act
Cases Cited:	Chian v R [2016] NSWCCA 45
Category:	Sentence
Parties:	The Crown Miguel Robinson
Representation:	Counsel:     Solicitors Director of Public Prosecutions - Crown Nyman Gibson Miralis - Offender
File Number(s):	2015/289207

Judgment

1. HIS HONOUR: The circumstances of Miguel Robinson’s offending are distressingly common. Indeed, I alone have done many cases of this kind of recent times. What Mr Robinson did was to obtain a significant quantity of drugs, in this case, 39 tablets of MDMA and take them to a music festival intending to distribute them amongst his friends who, together with him, had pooled their money. Mr Robinson was the person who accepted the role of obtaining those drugs, taking them into the music festival and then sharing them out. This was certainly not a spur of the moment decision which Mr Robinson regretted, at least until he was stopped by a drug detection dog. Mr Robinson was at the time a user of drugs and indeed has a criminal history involving drug possession as well as driving matters.

2. It was on 3 October 2015 that the Listen Out Music Festival was being held at Centennial Park. Police know that many people attending such festivals will be using and possessing drugs, therefore, they target music festivals with drug detection dogs. At about 4 o'clock the offender entered the festival and a drug detection dog indicated on the offender. He was stopped by police and he told them that he had some drugs in his underpants. The statement of facts says that he said that he had four. Mr Robinson says that he probably said “40” and that the officer may have misheard him. Nothing really turns on the difference. Police took him to a designated searching area. He said to them, “Can I just take them out now?” He then reached into his underpants and removed a condom containing 39 separate capsules which on analysis proved to contain MDMA.

3. When the matter first came before me earlier this year, Mr Robinson said that he had given up drugs and that he was, in effect, in the process of undergoing a significant rehabilitation. Recognising that many people say they have stopped using drugs, but it is not always the case, I allowed Mr Robinson the opportunity to prove that what he was saying was true. I, therefore, adjourned the matter under s 11 of the Crimes (Sentencing Procedure) Act to today’s date.

4. I accept upon the evidence that has been tendered today that Mr Robinson is a very different man to the one he was when he was using and supplying drugs. He has, the evidence demonstrates, given up drugs. He has a full time job. He has the support of his parents and he recognises, perhaps belatedly but at least he does, the harm that his actions were capable of causing to the community. I accept that Mr Robinson is now rehabilitated. He pleaded guilty at the earliest opportunity and so the sentence I will impose will be 25% less than it would otherwise have been

5. The question becomes what sentence to impose upon him. Some people might think, well if Mr Robinson has rehabilitated what is the point of punishing him? The answer to the question is fairly easy to give. There needs to be a component and a significant one of general deterrence in the present case. As I began these remarks on sentence, offences of this kind are prevalent.

6. Although Mr Robinson recognises it, it is important that I too, emphasise the harm that such offences cause. Drugs are terrible things. People who supply drugs, even supplying to their friends, are engaged in an activity which leads to drug addiction which in turn leads to harm to the individual drug users and which often enough leads to harm to the community because those individual drug users fund their habits through illegal means.

7. Many people attending dance parties think nothing of taking drugs. It needs to be made very clear to people like Mr Robinson that drug supply is a serious crime. Indeed, it carries a maximum penalty of 15 years imprisonment which demonstrates what parliament says about the objective seriousness of such crimes.

8. Of course, all drug supplies are not of the same level of seriousness. There are a number of features that Mr Faro has pointed out which suggests that Mr Robinson’s offence does fall towards the lower end of the scale of drug supply matters. Certainly, I am unable to find that the offender was trafficking to a substantial degree. There is no evidence he has done anything in the past of this nature nor that he was planning anything of this kind in the future. This is to be contrasted with many other cases where there is evidence, usually on mobile phones, of a willingness to supply strangers for profit. The offender does have good prospects of rehabilitation, indeed, as I have tried to demonstrate he has achieved much already but he continues to attend the Salvation Army First Program. I am confident that this will be an isolated breach of the criminal law.

9. He has also been, if we put aside drug use, drug dealing and driving offences, a man of otherwise good character. His parents were missionaries and he seems to have adopted many of the values that his parents must have demonstrated to him. He has done good work for people in need on many occasions.

10. The question becomes what form of sentence needs to be imposed upon the offender? Mr Faro submitted that a s 9 bond would be appropriate. When I raised with him the obvious issue, well, how does that punish his client? He spoke about the fact that his client will be convicted and that he will be at risk of breaching the bond and finding himself back before me for re-sentence.

11. I am not satisfied that this is appropriate, particularly, as I have said, given the need to impose a sentence on the offender which will deter others who may be tempted to do precisely what the offender has done. Indeed, I am satisfied that a custodial sentence of some description is required. Offences of this type cannot be treated lightly and I do not propose to do so.    

12. The Crown has provided me with a couple of decisions of the Court of Criminal Appeal one in which an offender, Chiang v R [2016] NSWCCA 45 was broadly similar both in offending and offender to the present case where the Court of Criminal Appeal agreed with the sentencing judge that nothing less than full time custody was appropriate. I am certainly not going to send Mr Robinson to gaol full time, at least, not yet. But, in my view, a form of custody is appropriate to reflect the very serious nature of an offence involving supplying 39 tablets (maybe less a couple because he was going to use some himself), to a significant number of people, 10 to 15 friends.

13. I am also satisfied that a s 12 bond would be inappropriate for the same reasons I referred to when I discussed the possibility of a s 9 bond. In my view, there needs to be real punishment, significant punishment in the present case notwithstanding the very good work that the offender has done to rehabilitate himself.

14. I am satisfied that a sentence of two years or less is likely to be imposed. I am also satisfied that if appropriate the offender should serve that sentence by means of an Intensive Corrections Order. I, therefore, intend to adjourn the matter to 3 March 2017.

15. Mr Robinson, what is going to happen in the meantime between now and 3 March is someone from Corrective Services is going to speak to you again, you are not out of the woods yet. What you have got to do is to make sure that you get a positive assessment from the ICO people because if you do not there is a risk you will still go to gaol, do you understand that?

16. OFFENDER: Yes, your Honour.

17. ADJOURNED TO FRIDAY 3 MARCH 2017

**********

Amendments

24 February 2017 - Correct hearing date

Decision last updated: 24 February 2017