R v Ryan

[2019] NSWDC 877

District Court

New South Wales

Medium Neutral Citation:	R v Ryan [2019] NSWDC 877
Hearing dates:	13 December 2019
Decision date:	13 December 2019
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of three years with a non parole period of one year six months. See orders [34]- [38]
Catchwords:	SENTENCE- drug supply- criminal group   SENTENCE- relevant factors on sentence - guilty plea- member of criminal group - parity not a significant issue - subordinate role - first offender - drug addiction –gambling addiction– general deterrence considered - other purposes of sentencing apply here - special circumstances - strong prospects for rehabilitation
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Drug Misuse & Trafficking Act 1985
Cases Cited:	Blackman and Walters v R [2001] NSWCCA 121 R v Blair (2005) 152 A Crim R 462 R v Losco [2019] NSWDC 837 R v Shi [2004] NSWCCA 135
Category:	Sentence
Parties:	Peter Ryan (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr M Powell (for the offender)   Solicitors: Morrisons Law (for the offender) Ms A Bird (for Director of Public Prosecutions)
File Number(s):	2019/00008996

SENTENCE – ex tempore revised

1. Earlier today I sentenced Roberto Losco for a series of drug supply matters: R v Losco [2019] NSWDC 837. Peter Ryan was involved with Losco as part of his criminal group. Ryan is now to be sentenced for the crimes he committed while working with and for Losco.

2. Ryan is to be sentenced on the basis of agreed facts. Those facts differ slightly in their focus from those that applied to Losco. Their roles in the commission of these crimes and their antecedents justify a significant difference in penalty. No question of significant parity arises as between them. Although their sentencing proceedings were held together I thought it appropriate to impose the sentences independently and separately.

3. Peter Ryan was born in 1979. Until he came to the notice of police in relation to this matter in October 2018 he had never been before a court before, he had never offended before. He had been able to work and provide for his family. At times he did use illicit drugs. I am aware of statistics that show at least 50% of the population at some stage have used an illicit drug. I do not hold that fact against him. But it is clear that at some stage in 2018 he went from being an occasional user of illicit drugs to a regular user. And, as is sadly often a consequence, he then found himself engaged in quite serious criminality; so serious that it is accepted that only a custodial sentence can be imposed upon him.

4. The agreed facts before the Court are comprehensive and detailed. I read them yesterday and again today. I will not set out all the details - it is late on a Friday and there is a gaol truck waiting.

Facts

5. From 30 October 2018 Losco was being monitored by a police strike force who had been alerted to his drug dealing activity. Between 30 October 2018 and 9 January 2019 Losco used Ryan in his methylamphetamine supply enterprise in the Illawarra, primarily as his driver. Ryan was paid in cash and methylamphetamine. Ryan made himself available and when contacted by Losco would drive him to Sydney to collect methylamphetamine from his up-line suppliers. Ryan also delivered methylamphetamine to Losco’s clients; either with Losco or on his behalf.

6. It is also accepted at times Ryan independently supplied methylamphetamine to other users: These are some matters on a s 33 Crimes (Sentencing procedure) Act 1999 - Form 1,

7. There are three matters for sentence today. The first relates to Ryan’s general involvement as part of Losco’s criminal group: s 93T(1) Crimes Act 1900; maximum penalty five years. The second relates to a specific instance of knowingly take part in the supply of 91.44 grams of methylamphetamine: 25(1) Drug Misuse & Trafficking Act 1985. The third relates to knowingly take part in the supply of 2.6 grams of buprenorphine. It has been placed on a s 166 Criminal Procedure Act 1986 certificate.

8. On 9 January 2019, Ryan was contacted by text by Losco and arrangements were made to go first to the Headlands Hotel in Austinmer. When they did so, the car was intercepted by police. The car was searched and 91.44 grams of methylamphetamine was located in various parts of the car, including the passenger foot well. It is accepted that this particular incident and the not insubstantial quantity of drug found is an example of the sort of job that Mr Ryan was doing for Losco.

9. A search warrant was executed on Losco’s home. Police found the buprenorphine, the subject of the s 166 matter. Again, the telephone intercepts indicate that it was another example of the sort of job that he was doing for Losco.

10. The matters on the Form 1 contain examples of his own modest methylamphetamine distribution business.

11. Each of these offences for sentence are representative of Ryan’s activity but I have to sentence him for the specific offences and no others. It is accepted that that he was Losco’s “gofer” and a driver.

12. The principles of law which apply when sentencing anyone who involves themselves in the distribution of illicit drugs are clear: R v Shi [2004] NSWCCA 135; R v Blair (2005) 152 A Crim R 462. Absent the involvement of drivers, gofers and other helpers, drug distribution networks would simply collapse. Everyone involved in the distribution of drugs commit offences without regard to the safety of others in the community and, as is recognised by the guilty plea, play their individual part in organised criminal activity.

13. That said the offender’s role remains very relevant to my assessment of objective seriousness of his crimes, as does the quantities of drugs that he was prepared to assist Losco in obtaining and distributing. He was not simply a passive driver; he played an essential and important role. His role in the criminal group extended beyond 9 January, the dates of the other two offences.

14. I must and do take the matters on the Form 1 into account when I sentence for the principal offence. But I have in many respects already taken them into account because they inform the context for the offences for sentence, I have been careful not to double count such matters. While I sentence for that offence and they establish that event on 9 January was not a one-off.

15. Ryan pleaded guilty in the Local Court. He is entitled to the full benefit given for such pleas, here a 25% reduction in the otherwise appropriate sentence: s 25D Crimes (Sentencing Procedure) Act 1999.

16. Ryan’s subjective case is set out in a letter he wrote to the Court. He was not required for cross-examination. The letter reflects all of the material before the Court and I am prepared to accept it. He tells me, “I do accept full responsibility for my actions and do not wish to make any excuses. I can assure you that when I think about all that I am charged with I am filled with remorse and extremely ashamed”.

17. He sets out his personal history. For most of his life able to work and provide for his family. He was able to engage with others in the community. He thought occasional drug use and gambling would not cause him or anyone any harm. But, addictions by their very nature can take over people’s lives and that is what occurred here.

18. After a work injury he lost his job and he lost hope. He tells me that a period in 2018 was the lowest point in his life. Losco gave him an opportunity to at last earn some money and obtain drugs. It would appear that his use and abuse of drugs meant that his moral compass, his moral capacity, for thinking about himself and thinking about others was seriously compromised. And, as is often the case, he felt that his drug using friends offered more than his pro-social friends in the community.

19. Ryan told me about his reactions to gaol. It is repeated in the other material before me from his family and in a Report from a psychologist, Patrick Sheehan. While he is in gaol; he has no contact with his sons, he has limited contact with friends and family and he has limited contact with prosocial members of the community. Apart from prison officers, of course, the only people he gets to mix with are fellow criminals. He is engaged in programs in gaol. He is working in gaol. He is using his time to prove to himself, his friends and family, and to the Court, that his prior good character is how he should be measured for the future. I accept unreservedly the material set out in the references put before me to that effect.

20. Mr Sheehan details Ryan’s family background, which was been a good one. He grew up around well-adjusted and responsible people. Mr Sheehan indicates that Ryan is more than amenable to rehabilitation programs, both in custody and in the community.

21. When Ryan is abstinent from illicit substances he expresses a firm desire to avoid drug use. His prospects, says Mr Sheehan, would be enhanced by engagement in a structured alcohol and other drugs program that addresses factors relating to his gambling and his drug use. He will need intensive treatment after his release from custody to deal with what Mr Sheehan diagnoses as a substance use disorder.

22. Courts cannot allow drug use to become an excuse for the commission of crimes. Similarly gambling is not an excuse for the commission of crimes. Neither addiction can mitigate a sentence. But the offender’s drug use, his substance use disorder and his gambling addiction do provide an explanation for how an otherwise law-abiding man came to be in the predicament that he is now.

23. If those problems can be addressed, and the signs, at least so far as I can understand and appreciate them, are good, then so are his prospects for rehabilitation. He has detoxed. He seems to have learnt the lessons meant to be taught by custody, something unfortunately his co-offender failed to learn.

24. Ryan is being kept from ordinary family life but he has had time to reflect. He has strong prosocial supports. He is amenable to all treatment options and he now appreciates the harm drugs cause. He has hit rock bottom but the only way from here is up.

25. There are three matters for sentence, they all have common features and each can incorporate the criminality of the other. But the criminal group crime covers a broader timeframe and some accumulation is required. There is also a need to take into account the matters on the Form 1.

26. While I have to take into account the purposes of sentencing, and they apply to both portions of the sentence, there is room here for a significant finding of special circumstances. Reasons include; reward for, and recognition of, Ryan’s’ engagement in programs in gaol and the fact that he has sought out and is ready to engage in programs in the community, such has Narcotics Anonymous and SMART and other services. He has community and family support and accommodation available to him. He has been in custody since 9 January 2019 - 11 months.

Submissions

27. I am indebted to both Mr Powell and Ms Bird for their submissions. Ms Bird in her written submissions refers particularly to the seriousness of the offending and the quantity and the types of drugs supplied. She notes, particularly in this case, the broad customer base of Losco’s operation, indicating the scope or potential for harm to others.

28. If anyone could understand the harm that drugs cause to individuals it should be Mr Ryan. I am sure when drug free he does. If only he had thought about the harm he was causing himself and others before he participated with Losco in these serious crimes.

29. Mr Powell in his submissions suggests that time served would meet all the purposes of sentencing. With great respect I cannot agree. I am prepared to accept that Mr Ryan has done everything he can. I am also acutely conscious the protection of the community is contributed to by the successful rehabilitation of offenders. It is an aspect of sentencing that should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits: Blackman and Walters v R [2001] NSWCCA 121.

30. That point can be illustrated by reference to his co-offender’s sentence. Mr Losco first went to gaol instead of breaking his ties on release he kept up contact with the criminals he meet there. He continued his form association with criminals and accordingly went back to gaol. That is always a risk when someone goes to gaol for the first time, but I believe that with his support, and continuing support, and if he continues on the way he is going Ryan will be able to turn his life around.

31. There is a need to apply the guidance offered by the maximum penalty and the guidance of the superior courts. However it is also recognised that long sentences in harsh prison conditions do not discourage future offending and the experience of incarceration can break someone’s spirit. There have been significant criticisms by academic and other studies of the theory of general deterrence. The evidence is harsh sentence’s do not necessarily achieving the aim of preventing crime but there are other purposes of punishment. One is the courts obligation, particularly in drug supply matters, to impose an appropriate penalty.

32. The proper role of criminal law is not limited simply to general deterrence. Sentences by their severity have to express the community’s disapproval of the offending and offenders have to be adequately punished. Everyone in the community must understand that if someone seeks to engage, as Ryan did, the distribution of drugs, they will be, appropriately punished by a gaol sentence.

33. Ryan, you will have to serve further time in custody. I have structured the sentence to ensure that the time in custody is the minimum that the purposes of sentencing require reflecting all of your crimes. I will impose an aggregate sentence on you for the three matters, the other matter will be dismissed. I will take into account the matters on the Form 1.

Orders

34. I take into account the plea of guilty. The aggregate sentence and the indicated sentences will reflect that reduction. I have made findings in relation to totality, accumulation and special circumstances.

35. For the knowingly take part in the supply of methylamphetamine, taking into account the matters on the Form 1, I indicate a sentence of two years and nine months.

36. For the participate in a criminal group I indicate a sentence of one year and six months.

37. For the supply of the buprenorphine I indicate a sentence of three months.

38. The aggregate sentence in this matter will be three years’ imprisonment. There will be a non-parole period of one year and six months. The sentences will date from 9 January 2019. You will be released to parole on 8 July 2020. There will be a parole period of one year and six months reflecting special circumstances of 50%.

39. If you breach your parole you will go back to gaol. Do you understand? Your release date is 8 July 2020.

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Decision last updated: 29 April 2020