R v Scanes

[2022] NSWDC 102

District Court

New South Wales

Medium Neutral Citation:

R v Scanes [2022] NSWDC 102

Hearing dates:

4 April 2022

Date of orders:

7 April 2022

Decision date:

07 April 2022

Jurisdiction:

Criminal

Before:

Priestley SC, DCJ

Decision:

See [79 - 81]

Catchwords:

CRIME — Drug offences — Supply prohibited drug — Indictable quantity 

Legislation Cited:

Drugs Misuse and Trafficking Act 1985 (NSW) 

Crimes (Sentencing Procedure) Act 1999 (NSW)

Bail Act 2013 (NSW)

Cases Cited:

Redfern v R [2012] NSWCCA 178

Mandranis [2021] NSWCCA 97

Alferink [2021] NSWDC 473

Mill v The Queen (1988) 166 CLR 59

R v Todd [1982] 2 NSWLR 517

R v Holder [1983] 3 NSWLR 245

Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41

Texts Cited:

Nil

Category:

Sentence

Parties:

Crown (Regina)
Scanes (Offender)

Representation:

Counsel for the Accused

File Number(s):

2019/00164036

Publication restriction:

Unrestricted

Judgment

1. Jason Rodney Scanes appears for sentence on three charges of supplying a prohibited drug in breach of section 25(1) of the Drugs Misuse and Trafficking Act (DMTA) and two counts of dealing with proceeds of crime under section 193B(2) of the Crimes Act. Each of these offences has a 15 year maximum penalty. I take the maximum penalties into account as the legislative guidepost to assist in arriving at the appropriate sentence. There is no standard non-parole period in respect of any of the offences.

2. There are two charges to be dealt with on a Form 1. One is the offence of possession of a prohibited drug namely cannabis leaf in breach of section 10 DMTA which has a maximum term of two years and/or 20 penalty units, and the second is the offence of failing to appear in breach of section 79 of the Bail Act, the maximum penalty for which is relevantly three years imprisonment or 30 penalty units.

3. In regard to the Form 1 procedure it is important that the focus remains on the principal offence for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrents and the community’s entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ. The Form 1 matters are to be taken into account when sentencing for count 1 which is the first of the supply offences.

4. The Crown bundle includes two section 166 certificates. One is in respect of the possess offence and one in respect of the fail to appear offence. The certificate brings the matters into the District Court, and I take these matters into account by way of the Form 1 procedure and will not be sentencing them summarily.

The facts

5. Exhibit A includes an agreed statement of facts. There are some errors in it such as the age of the offender and some references to section 25(2) rather than section 25(1).

6. On 25 May 2019 the offender was stopped by highway patrol officers. He had come to their attention as his speed was detected to be 132 km/h in a 110 km zone. On issuing the speeding ticket the smell of cannabis was detected and so a search was carried out. The offender was wearing a Rebels outlaw motorcycle gang T-shirt and the facts are agreed that he was a member of that group. Although the offender stated he did not consent to be searched, he cooperated in the search which included pulling his shorts forward due to it being apparent that there was something in his underwear. The offender's cooperation did not extend to handing the bag to police, which he threw onto a dirt embankment. It was later analysed and found to contain 24.678 g of methyl amphetamine which is the basis of the first charge. The search also found 116 g of cannabis which is the Form 1 possession matter.

7. In terms of objective seriousness of this first matter I note that the quantity of the drug is not the sole nor the determinative factor. That said it is relevant and I note that 24.6 g of methyl amphetamine is well in excess of the indictable quantity, though far closer to that quantity than it is to the commercial quality of 250 g. The facts of the other offending suggest the offender had a role of some trust in the business of drug supply, extending beyond simply carrying 24.6g of methylamphetamine, however limiting the consideration of this matter to the facts of what occurred on this occasion all that is known is that he had in his possession that amount of drugs in the one bag. I would assess the matter in the low range of objective seriousness.

8. The next two offences are of supplying methylamphetamine and of dealing with proceeds of crime. The facts relied upon relate to text messages that took place between 9 July 2019 and 24 July 2019. In texts between the offender and a person known as Ashlei May it is clear that Ms May is the upstream supplier and that the offender delivers cash to her in return for the drugs. Other texts with a person known as Jessica McDonald show that that person is providing money to the offender. It was the supply to Ms McDonald on 16 July 2019 of 28 g of methamphetamine that is the basis of the second supply charge.

9. Text messages following on from that suggest that payment is made to May after the offender has supplied his customer. There is discussion about depositing what I infer is the price of the drug into a bank account. Ultimately $35,000 in three transactions was deposited into one bank account, and it is that money which is admitted to be money from the sale of drugs.

10. Two things emerge from this. The first is that all this is happening after having been charged with the first offence and being on bail for it. The second is that the offender is dealing with significant amounts of money. His role is that of a person not on the street level but further up. It can be inferred and I do infer from the facts that above the person Ms May is another person named “J” and I would not be satisfied that J is the top of this particular chain. I do find however the offender is a fairly trusted member of this organisation and not at its bottom rung. The facts satisfy me that the offender supplies people such as Ms McDonald, who is then supplying the end user, and there is then at least two levels above the offender, and probably more. Thus while he is not at the bottom of this particular “heirarchy”, he is far from the top.

11. In terms of objective seriousness of the second supply offence I note that it is an amount of 28 g or 1 ounce. The agreed facts show (par 25) Ms McDonald on supplied to others. It is again a section 25(1) charge so the same comments as above apply as to quantity but the level of involvement of the offender in this drug supply business is all the more evident here. This offending borders on the low to mid range.

12. The third offence was the deposit of $35,000 described above. That is a significant amount of money, though plainly the offence could involve much greater sums. It is also relevant in my view to approach the matter on the basis that inherent in the supply of drugs is the acquisition of the sale price for it. That can be dealt with when dealing with totality, but also it means that this is not an egregious example of this offence. I would assess the dealing proceeds of crime as being in the high end of the low range.

13. The fourth and fifth offences are again of dealing with proceeds of crime and supplying methylamphetamine and again arose from a highway stop. No reason is given for the offender being stopped and it must be likely that the police had the offender under some kind of observation though that is not in the agreed facts. I proceed on the basis he was simply stopped and found to have two bundles of cash ($2200 and $3800) totalling $6000 as well as eight plastic bags containing approximately 27 g in each bag and a ninth bag with approximately 11 g of methylamphetamine. The total is 230.63 g. Also in possession of the offender was a flick knife, an ice pipe, electronic scales, a number of mobile phones, a handwritten list and a toothbrush. The average weights of approximately 27 g suggest that these eight bags are divided into amounts of 1 ounce which is 28 g. As fairly conceded by the offender it is obvious that there is supply of these 1 ounce bags to people in a position akin to Ms McDonald. This amount is also almost at the level of a commercial quantity which is 250 g. I find that this is a significantly more serious offence than the other two supply charges. It is into the mid range given the quantity and the scale of the offender’s distributive function. As to the dealing with proceeds matter I find that to be in the low range given the small amount involved, which I note from the indictment is based on an amount of $3800, and not $6000.

14. On arrest on 24 August 2019 the offender denied knowledge of the drugs found in the vehicle and claimed he won the cash in poker machines. He now (and at an early stage) admits transporting methylamphetamine for the purposes of supply and also that the cash was obtained through previous drug supplies.

15. The offender was in custody from 24 August 2019 to 6 November 2019 and then granted bail, a period of 74 days. On 18 February whilst at Coffs Harbour police station, police went to arrest him but he absconded and on 3 March 2020 he failed to appear at Grafton Local Court. He was then located in Queensland having been arrested for firearm and drug possession charges and remained in custody in Queensland until 13 June 2021 according to the facts, though his record shows he was sentenced at Brisbane Supreme Court on 14 June, and then Southport Magistrates Court on 21 June, suggesting his custody ended on 21 June, consistent with the affidavit of Mr Jones. The period in custody in Queensland was 470 days.

16. In the offenders material which is not contested an affidavit by the offender’s solicitor describes the events at Southport Magistrates Court on 21 June 2021. That affidavit states the New South Wales police were aware of the sentencing date and were expected to be waiting to take the offender into custody. The police however did not attend. The offender through his solicitor organised an orderly surrender to New South Wales police on 1 July 2021, a date consistent with the affidavit of Ms Baker and which I accept in preference to 2 July stated on the front sheet of exhibit A.

17. The failure to appear will be taken into account the first supply charge.

18. In terms of aggravating matters there is the fact that the offending after the first offence occurred on conditional liberty. I also find in the above facts that this was a planned and organised criminal activity and take that into account, the moreso with counts 2 to 5. I do not think the matter is aggravated for being committed for financial gain because none of the monies referred to in the facts can be found to the level necessary to have gone to the offender and also because in any manner of drug supply, sale for money goes hand-in-hand. See in this regard Redfern v R [2012] NSWCCA 178 per Adams J at [17], with whom McClellan CJ at CL and Hoeben J (as he then was) agreed, where it was stated in relation to supply cocaine offences that the criminality in the charged offences is not increased by being in possession of the money paid to the offender for the supply of the drugs. This was described as “part and parcel” of the offences.

Subjective case

19. There was no dispute that the offender is entitled to a 25% discount on sentence based on the timing of his guilty plea.

20. The offender has a criminal history commencing in the children’s Court. The offender first appeared in an adult court at the age of 18 for common assault and larceny, again at age 21 for common assault and a driving matter. On 24 August 2015 he was sentenced in the Local Court to a 12 month term of imprisonment with a 9 month non parole period. That was an aggregate sentence for a range of some 13 offences including receiving stolen property, supplying prohibited drugs, dealing with proceeds of crime, numerous police pursuits and some driving matters. All but one of those offences occurred in the period 20 December 2014 to 16 January 2015.

21. This record denies the offender any leniency based on his record. I take into account that his offending, particularly in 2014 and 2015, occurs in clusters, consistent with his subjective case of having some periods free of anti-social behaviour and drug dependence.

22. As noted above there was offending in Queensland. That was what he was sentenced for on 14 and 21 June 2021, putting aside a nuisance charge in 2012. By the time of sentence and release from custody in Queensland the offender had spent 470 days in custody commencing on 8 March 2020. It will be remembered that he failed to appear on 3 March 2020 having absconded on 18 February 2020. In other words it was only five days after failing to appear that he actually was in custody and 18 days after having absconded. According to the Queensland criminal history he appeared before the Brisbane Supreme Court on 14 June 2021 and before the Southport magistrates Court on 21 June 2021. The matters dealt with by the Supreme Court were possessing dangerous drugs on two counts, unlawful possession of weapons and then other matters which were Magistrates court matters heard by the Supreme Court. They were possess utensils or pipes, an explosives charge and possessing tainted property and it would seem some traffic matter. Relevantly there was a three-year six-month sentence imposed which reflects the seriousness of the possession charges and weapons charge. The quantity of the drugs possessed is not stated. The presentence custody of 463 days (as at 13 June) was deemed to be time already served under the 3 ½ year sentence. Presumably that means it is suspended for the balance of the period remaining. The following week there was a further possession charge under the provision as had been dealt with the week before, what appears to be a variation of a possess utensils charge and a charge of possession of a knife. The possession charge was to suspended and concurrent d with the Supreme Court sentence. For the two other charges there was a conviction recorded and no further punishment.

23. I infer the Queensland offending occurred in the period 18 February 2020 (when the offender absconded) to 8 March 2020 (when the offender went into Queensland custody), which was the basis of the offender’s submissions and was not contradicted. The most recent New South Wales offence being sentenced for today had been in August 2019.

24. The argument for the offender is that the NSW and Queensland offending are all the one course of conduct.

25. In respect of the New South Wales offending only the offender has been in custody in New South Wales since 2 July 2021. Together with the time in custody after the second vehicle stop (74 days) the total time in custody New South Wales for the offences being sentenced for today is 355 days. There is no issue that the sentence should be backdated by that amount, or that period otherwise be taken into account. The issue of how to treat the 470 days in custody in Queensland is discussed below. For present purposes I note the the offender has been in custody for a total 825 days (or 2 years and 3 months) for drug-related offending occurring in the period May 2019 to March 2020.

26. The defendant relied on a psychologist report and various testimonials. The psychologist report sets out a history of the offender being the second of four children. He described his father as a drinker and cannabis user and always angry. His parents separated when he was 14, though the offender in fact left home the first time at age 13. He did not report being exposed to domestic violence. He had a close relationship with his mother. His father’s conduct included being involved in fights at the pub. The offender’s younger siblings were nine and 10 years younger than he and they received much attention to his deficit. He is not overly close to his older sibling but gets on well with the other two. He denied any form of abuse and had a good relationship with his grandmother. The offender was disruptive at school. He engaged with children who were similarly disruptive. His defiant behaviour worsened at high school. He left school in year 8, with a failed attempt at returning in year nine. He had no diagnoses of any conditions of note as a child.

27. When he left school he worked on a boat and later obtained a skippers certificate. He has worked when not in custody. There are no issues with his health.

28. So far this history paints a picture of a child who did not suffer any significant ailments or any form of abuse but who for whatever reason perhaps to do with family dynamics behaved badly at school. Then at age 14 he commenced drinking alcohol, and alcohol was particularly problematic just four years ago causing the breakdown of his relationship. Use of ecstasy and amphetamines began at the age of 18 and cannabis at 22.

29. The offender says he recognises the impact of substance abuse was having on his partner and their children and remained 12 months substance free after a rehabilitation program in 2012, which I note is consistent with his criminal history showing no offending between 2012 and 2014. They moved away from Coffs Harbour but when they returned he reconnected with bad influences and drug use recommenced. He used methamphetamines until his incarceration in 2015. On release (October 2015 was the expiration of the non parole period) he states he remained substance free until 2018 and was engaged in full-time work. Again I note this is consistent with his criminal record showing no offending in this time. In 2018 he again turned to using methylamphetamine to cope with his mother’s diagnosis of cancer.

30. His association with the Rebels motorcycle going commenced in custody in 2015 and he re engaged with them in the community to have access to methamphetamines. He accumulated a large drug debt and commenced supplying methamphetamines as a way to pay for his debt as well as to have a supply of the substance himself. This is the explanation of what was occurring up to his incarceration in Queensland in 2020; see [27] of the report.

31. It is suggested and I accept that intensive intervention is required and that further drug use is the most significant factor impacting on the likelihood of future reoffending.

32. The offender did express insight by acknowledging his problematic use and appreciating he needs assistance to which he said he was open. The report notes that he took responsibility for his offending.

33. The offender has been in a relationship with his current partner since the age of 18 and has two children aged 12 and 8. His partner Ms Baker is employed and does not and has not engaged in drug use. She supports him and attended court for this hearing along with other family members including the offender’s parents.

34. The psychologist's opinion was the offender does not have mental health issues that contributed to the offending. It was suggested his ability to cope with stress and emotionally regulate appropriately are difficulties for him and notes the use of substances as a coping mechanism.

35. The report speaks of the offending being understood in the context of the normalisation of antisocial attitude. The only antisocial influence appears to have been his father’s substance use and physical altercations. His mother appears to not suffer from any form of substance abuse and I infer was a caring and loving mother and the other three siblings were also people who do not have an antisocial attitude. I do not accept that this is a case where antisocial attitudes were normalised. Rather it is a case where for reasons difficult to state with precision the offender acted out from a young age and this extended to drug use which then became a crutch.

19. The offender was said to meet the criteria for stimulant use disorder severe amphetamine -type controlled environment. The report goes on at [28] to state that his substance use significantly impacted his decision-making and through disinhibition caused his lack of consequential thinking and engagement in the cluster of index offending.

20. I accept the history set out in this report and its conclusions, save for the point as to the normalisation of anti social attitudes. There is no submission seeking to lessen the offender’s moral culpability based on this history and drug addiction, but it is relied on to place the offending in context. The dynamics of the offending offered by the psychologist just referred to from [28] of the report could more bluntly be stated as being the regrettably common situation of the drug addict in pursuit of drugs was prepared to place great numbers of the community at risk, and damage his family and himself.

21. The report recommends high-intensity therapeutic intervention and identifies preferred programs. It also recognises the need for significant support upon release and if possible a long-term rehabilitation program such as Odyssey house. Non association with antisocial peers is also recommended.

22. The offender read an affidavit of his partner Ms Baker. Her evidence reflects the history of the psychologist report and of the shift of the offender in and out of the antisocial peer group. She says his time in custody has drastically reset his mindset. It is plain that she will offer him much support provided of course he remains drug free. In the period that he was between custody in June 2021 he painted the interior of the family’s new home and did other work to improve the house. She said this reflects the offender’s new attitude and priorities. Whilst this period of ten days is brief, I accept this evidence as showing that there is support for the offender in the community and it adds to his prospects. I also accept that along with other evidence as to insight, remorse and acceptance of wrongdoing, that the offender has had a “mind reset”. That this could be so is supported by his history showing periods where he has not abused substances, which were periods of non offending.

23. A sentencing assessment report was prepared dated 3 March 2022. This was prepared in respect of other offending but is no less relevant. It refers to the family support. It also notes his criminal record. In terms of attitudes it says he blamed his offending on stressors related to the breakdown in his relationship, unemployment, illicit substance use and not thinking about the consequences of his actions. The offender acknowledged his behaviour was unacceptable. He claimed to have been abstinent since entering custody and that he intended to stay that way. It states his behaviour was motivated by financial gain to support daily living and illicit substance use.

24. The offender displayed insight into the effect of his behaviour and was willing to undertake intervention and community service work. Overall his response to supervision is satisfactory. The report sets out that if a supervision order is made then the supervision plan will implement drug testing as well as referral to drug and alcohol intervention.

25. A letter from a former employer showed that employment would be available. That work was on a fishing trawler, and the letter speaks highly of the offender’s skills as a fisherman and worker. There was also a testimonial from the offender’s mother, which corroborates the evidence of Ms Baker.

Submissions and discussion

43. The Crown quite rightly pointed to the seriousness of count 5, of supply of some 230 g of methylamphetamine. Community safety is a significant concern. The offender frankly told the psychologist of this activity being done in coordination with an outlaw motorcycle gang. This offending is planned and organised and significant in quantity.

44. The Crown also noted there was no evidence of engagement with intervention within custody. There is no evidence of considering the options available. That said, there was no evidence of just what may have been available in either the NSW or Queensland facilities. Yet the offender did not have the appearance of presently abusing substances, and on my findings of insight and his attitude, and the evidence of his actions in 10 days out of custody, I accept there has been change in the way that it would be hoped intervention would bring.

45. The Crown appeared to argue that this case was not suitable for an ICO on the basis of the seriousness of the charge. With respect I do not consider the approach to determining the availability of an ICO to be solely determined by that criteria. At the same time the Crown very fairly allowed that if a sentence was arrived at which exceeded three years but which could be expressed to be less than three years taking into account time already served in custody then an ICO would be available, a view that could be argued against based on the dicta in Mandranis [2021] NSWCCA 97. The view I take is that the Crown position is the correct one; see Alferink [2021] NSWDC 473 from [59].

46. The fundamental submission for the offender is that the principle of totality needs to be given effect in connection with not only the New South Wales offences but also the Queensland offences.

47. In determining the appropriate sentence a number of mitigating factors need to be considered. As already noted I accept the offender has expressed remorse and accepted responsibility for his actions. I also accept that he has demonstrated insight and in particular in my view of the impact that it has had on those close to him and I infer he has a realisation of the damage that drug supply has on the broader community.

48. His prospects of rehabilitation and not reoffending must be a guarded assessment. This is because of his long-term use of drugs interspersed with periods of abstinence followed by relapse. In prison he has not undertaken any courses. Against that however I find he has been abstinent and he has acted in a responsible way by turning himself in the after being released from prison in Queensland. I am also persuaded by the way he conducted himself in that one week devoting himself to his family and working hard on the new home.

49. The reasons for this guarded assessment are the reasons why I agree with the assessment in the sentencing assessment report of a medium chance of reoffending.

50. I find that there is an intention of the offender to sincerely make efforts to remain drug free and lead a pro social life in keeping with his partner and other members of his family. Given his previous substance abuse and associations with organised crime in the form of the drug distribution network of an outlaw motorcycle going this may not be easy. Against that, there is the already noted periods of abstinence with which comes pro social behaviour. There is also the prospect of resuming work with a known employer. Despite the medium risk of reoffending, there also is a sound basis for considering the prospects of the offender of remaining pro social to be reasonable.

51. The offender argues for an outcome of an Intensive Correction Order (ICO). There is a well recognised three step process for considering whether or not to proceed by way of an ICO. It also should be noted that whilst an ICO outcome sees a person released to the community it does have its own traps in that a breach of it will very likely see the offender returned to custody with no non-parole period. The alternative put forward by the offender is to set a term of imprisonment with a non-parole period expiring not too far into the future. In either case the first step is to determine what the term of the sentence should be, it being common ground that the seriousness of this offending means that section 5 has been crossed.

52. I bear in mind the purposes of sentencing are set out in section 3A. They are:

52.1. To ensure the offender is adequately punished

52.2. To prevent crime by deterring the offender and others from committing similar offences

52.3. To protect the community from the offender

52.4. To promote the rehabilitation of the offender

52.5. To make the offender accountable for his actions

52.6. To denounce the conduct of the offender

52.7. To recognise the harm done to the victim of the crime and the community

53. In this case it is the purposes of deterrence denunciation and accountability as well as recognising the harm to the community that require recognition. At the same time the sentence should promote the rehabilitation of the offender.

54. I propose dealing with the matter by way of an aggregate sentence, and having arrived at the aggregate term, then consider, if section 68 CSPA permits, the suitability of an ICO.

55. Before doing so there are two matters that need to be further referred to. Firstly dealing with proceeds of crime in my view is part and parcel of the offending of supplying drugs. Those offences are almost but not entirely, and certainly in the great proportion of cases a necessary consequence of supplying drugs. To supply requires a recipient and almost inevitably in exchange for some quid pro quo in the form of cash. There are cases where the supplier is simply passing the drugs along the line with payment being made by some other means. On the facts of this case however with the offender supplying other down the line suppliers and collecting the price from them and then passing that price back up the chain I consider there is very little criminality in the offence of dealing with proceeds of crime that would not be caught by the supply charge. The dealing with the proceeds of crime is “part and parcel” of the offence of supply; see Redfern v R [2012] NSWCCA 178 per Adams J at [17], with whom McClellan CJ at CL and Hoeben J (as he then was) agreed, where it was stated in relation to supply cocaine offences that the criminality in the charged offences is not increased by being in possession of the money paid to the offender for the supply of the drugs. This was described as “part and parcel” of the offences. Viewed in that way particularly with the amount of $6000 there is a good argument section 5 is not crossed.

56. This however is more an argument for totality and concurrency in the sentencing, rather than minimising an offence which itself carries a 15 year maximum sentence. There was no argument that the proceeds of crime offences did not cross the section 5 threshold, and whilst I consider that there is an available argument to that end, moreso with the charge concerning $3800, I accept that both those offences do cross that threshold. There will be concurrency in the sentencing of the proceeds of crime matters to almost a complete but not total extent.

57. The second matter is to make plain how the Queensland offending is to be treated. I accept that the offending in Queensland was of a similar nature to that which occurred in New South Wales. Regrettably the facts do not disclose the amount of the drugs concerned in the Queensland offending. All that is really known is that the Queensland offending was largely drug matters of possession in respect of which the offender spent 471 days in Queensland custody, or approximately 15 ½ months.

58. The offender relied on the case of Mill v The Queen (1988) 166 CLR 59. Mill is authority for the proposition that where a person has committed offences in two jurisdictions closely related in time and nature the sentencing judge dealing with the matter at the later time should consider what effective head sentence would have been likely to have been imposed if the accused had committed all the offences in one jurisdiction and had been sentenced at the same time. At page 66 the High Court expressly stated that the principle operates on the fixing of a head sentence and is not confined in its operation to fixing a non-parole period. The court endorsed the principle set out in R v Todd [1982] 2 NSWLR 517 concerning the need to take into account the delay in sentencing due to imprisonment in another state due to the uncertainty of what will happen to the offender and the need to give weight to any progress with rehabilitation. I note that Todd also makes reference to the need for a measure of understanding and flexibility of approach. At the bottom of page 66 the opinion is given that “the proper approach which His Honour should have taken was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at one time”.

59. It is also interesting and relevant to note that at page 67 reference is made to the appropriate course being to lower a head sentence where statutory authority does not permit backdating the sentence. This is the position with an ICO. The fact that dating the sentence from the date of the court order will not adequately reflect the seriousness of the crime was said to be preferred to the injustice of a longer head sentence because of the inadequacy of the law to cope satisfactorily with the intervention of state boundaries.

60. Accordingly the approach that I will take will be to make an assessment of what the head sentence would have been had all the offending both New South Wales and Queensland been the subject of sentence at the one time.

Determination

61. The sentences before and after the 25% discount are as follows, and taking into account the Form 1 matters in connection with count 1:

61.1. Count 1 (supply 24.6g):    20 months before discount; 16 months after discount;

61.2. Count 2 (supply 28g):   24 months before discount, 18 months after discount;

61.3. Count 3 (deal with proceeds of crime $35,000): 16 months before discount; 12 months after discount;

61.4. Count 4 (deal with proceeds of crime $6000):   12 months before discount, 9 months after discount;

61.5. Count 5 (supply 230g); 4 years before discount, 3 years after discount.

62. On the approach discussed above based on Mills there is then to be taken, in effect as a further indicative sentence, the term of 3 ½ years for the Queensland offending.

63. The lack of detail of the facts of the Queensland offences is noted, and the determination of this matter overall needs to be decided simply on the description of the offending set out above and the sentence recorded in the Queensland records.

64. As noted above, the offender’s argument relies heavily on the principle of totality. There is no argument as to its applicability. As stated in R v Holder [1983] 3 NSWLR 245 the principle calls for an evaluation in a broad sense of the overall criminality involved in all of the offending and then determine what downward adjustment is necessary if any so as to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.

65. In Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27] it was said:

“[T]here is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

66. This case is a good example of the rationale of the principle of totality. To ensure the sentence fairly reflects the overall criminality involved, and not unduly exceed that level of criminality, there needs to be significant concurrency.

67. I also emphasise that in arriving at the aggregate sentence, almost total concurrency is given for the s193B offences.

68. I consider the likely head sentence that would have been imposed if all the offending was sentenced at the same time to be 5 years.

69. The offender has spent 2 years and 3 months in custody.

70. These findings mean that, so far as section 68 CSPA is concerned, there is no dispute that an ICO is the available outcome, as the sentence, if it is to date from today, will be less than 3 years, namely the remaining 2 years and 9 months.

71. The remaining step in considering whether to proceed by way of an ICO is to consider s66 CSPA. There are numerous cases discussing this section. One of those which I consider helpful is that of Blanch v R [2019] NSWCCA 304. Blanch itself was a case of drug supply, and where on appeal and resentence an ICO was imposed. One of the charges was under s 25(1) and an amount of not less than 140g of methylamphetamine.

72. At [51] Campbell J addresses section 66, noting it prescribed mandatory considerations to which the sentencing court must have regard in deciding whether or not to make an ICO. He noted that in the section’s limited sphere of operation, being when deciding whether to make an ICO, community safety is the paramount consideration ss(1). Section 66 (2) requires, when considering community safety, consideration or assessment of whether an ICO or serving a full-time custodial sentence is more likely to address the offender’s risk of reoffending. Subsection 3 then requires the court to also consider the purposes of sentencing set out in section 3A. As Campbell J put it “that is to say the paramount consideration of community safety must be weighed and assessed in the context of all facts matters and circumstances relevant to the particular sentencing task applying the instinctive synthesis approach” (references omitted); see at [51]. I adopt this approach.

73. In making his decision Campbell J expressly made reference to the Attorney General's second reading speech when introducing the 2018 amendments; see at [89] which he had in fact set out at [43]. The effect of that passage (at [43]) is to state that community safety is not just about incarceration.

74. The evidence here relevant to the assessment required by section 66(2) (whether an ICO or serving a full-time custodial sentence is more likely to address the offender’s risk of reoffending) is the evidence discussed above showing that despite the medium risk of reoffending, the offender has reasonable prospects (see the conclusions at [47] and [50] above). For reasons that cannot be determined adversely to the offender, he has not had available to him since July last year any in custody intervention. That will happen if the offender is in the community under the supervision of Community Corrections as set out in the Sentencing Assessment Report, and in accordance with any terms of an ICO.

75. Against that is the likelihood that any further time in custody before the expiration of a non parole period would be about 9 to 12 months. The options are that further term be served, with no evidence of any intervention, or a 2 year and 9 month period of supervision be put in place.

76. In my assessment, even with the guarded assessment as to continued abstinence and reoffending, the imposition of an ICO will more likely address the offender’s risk of reoffending. Further this result is supported by considering necessarily the paramount consideration of community safety. This approach will more likely see the offender becoming pro social, and if it was to fail, the community is protected by his return to custody for the balance of the term. The fact that this outcome remains a term of imprisonment, albeit in the community whilst compliant with terms, is relevant to bear in mind in assessing deterrence, improved chances of rehabilitation, and thus protection of the community.

66. Having carried out that assessment, it remains, by s66(3), to consider the provisions of s3A, and any other matters considered relevant. For the reasons just stated the purposes of sentencing earlier identified are achieved by the imposition of an ICO.

67. The structure of this sentence has emerged in circumstances where the offender has been in custody for a period of 2 years and 3 months prior to his sentencing for the NSW offences. That fact satisfies me that the purposes of deterrence and denunciation, and punishment, are well met by this sentence, and will be further met by the lengthy ICO. I note also that it is in accordance with Todd in adopting a flexible approach in circumstances such as these.

Orders

79. Of the 5 charges set out in the indictment, the offender is convicted.

80. Taking into account the Form 1 matter in relation to count 1, allowing for the 25% discount, and adopting the approach set out in Mill, and taking into account the 2 years and 3 months spent in custody to date, the offender is sentenced to a term of imprisonment of 2 years and 9 months.

81. In respect of that term of imprisonment an ICO is imposed with following terms:

1. The ICO is to date from today 7 April 2022, and expire on 6 January 2025;

2. The ICO is on the standard terms that the offender not commit any offence and be subject to supervision of an officer of Community Corrections; to this end the report of Ivanka Manoski psychologist, dated 4 February 2022 (2021 in error) is to be provided to Community Corrections and adopted so far as practicable.

3. That the offender attend at the Coffs Harbour office of Community Corrections by no later than 4pm 14 April 2022;

4. The ICO is on the additional conditions that the offender abstain from taking any illegal drugs or any prescription drugs not prescribed to him and that the offender abstain from drinking alcohol.

Decision last updated: 07 April 2022