R v Scott James McCulloch

[2009] NSWDC 371

CITATION:	R v Scott James McCULLOCH [2009] NSWDC 371
HEARING DATE(S):	27 August 2009
JUDGMENT DATE:	27 August 2009
JURISDICTION:	District Court Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Sentenced to a fixed term of imprisonment of three months periodic detention.
CATCHWORDS:	CRIMINAL LAW - Sentence - Drug supply - 1,4 - Butanediol - GHB - Fragile mental state of offender
PARTIES:	The Crown Scott James McCulloch
FILE NUMBER(S):	DC 09/11/0629
COUNSEL:	G Farmer - Offender
SOLICITORS:	Director of Public Prosecutions

SENTENCE

1 HIS HONOUR: Scott James McCulloch arrived in Australia from Scotland in late 2008 to have a look around and to experience life as a gay man. However within a relatively short time he found himself dealing in drugs for profit. He now recognises the wrongfulness of what he did but it remains the case that he must be punished for his serious criminal activity.

2 Police observed Mr McCulloch on the steps of Town Hall in March this year. They watched as he handed over a plastic bag to two people in a car and received something in return. Their suspicions obviously being aroused, they arrested the three men involved. When they searched the offender they found $1200 in cash. When they searched the other two men they found a significant quantity of a drug in liquid form, together with a number of small plastic fish, notoriously used for the distribution of drugs in liquid form. Immediately the offender admitted what he was doing, saying “I’m dealing in G”.

3 As I have mentioned, the drugs were handed over in liquid form. They were in a Powerade bottle. There were two hundred and ninety six grams of a drug called 1,4-butanediol. This is a drug which is metabolised in the body to become GHB, a drug with which the courts are more familiar.

4 The offender had significantly less than the commercial quantity, two hundred and ninety six grams whereas the commercial quantity is one kilogram. He explained to police that he was acting as a middle man. He obtained some drugs and diluted them with turpentine, coloured them and then was going to supply them to the two men in the car, whom he knew were then going to fill up the little plastic fish with the drug and distribute it, obviously for profit, at nightclubs around the Sydney area.

5 The offender’s conduct was serious indeed and it cannot be said that this was a one-off, although it is unclear how many times the offender had done it on earlier occasions. I will proceed on the basis that he did it on a singular occasion only. But in any case, as I have said this was not a one-off incident. The offender did what he did simply to make money. He was not a drug user desperate to satisfy his addiction. He was a person who had used drugs in the past for recreational purposes (albeit not the particular drug he supplied), but in no sense was he addicted to drugs. Of course this can work in the offender’s favour when his prospects of rehabilitation are considered, but the courts have traditionally regarded non user dealers as drug suppliers of the worst kind.

6 Consistent with the offender’s immediate admissions to police, he has expressed significant remorse. He pleaded guilty at the Local Court which has a utilitarian value of course which will lead to the sentence I impose upon him being twenty five percent less than it would otherwise be. The offender spent seven days in custody before he was released on bail. His time in custody was, and I know this is understating it significantly, hard. He was put on suicide watch, his mental state was regarded as fragile, so much so that an officer of Corrective Services contacted Mr McCulloch’s extended family. He was eventually released on bail. Initially, he was to live with a person in arrangements which were not ideal but since then he has lived with members of his extended family in Sydney, and the evidence establishes, he has responded very well. He has very good prospects of rehabilitation based upon what has happened to him since his release from custody and what he has done to rehabilitate himself.

7 It is not only he who expresses his remorse, but his family back in Scotland have written documents which were tendered today in which they expressed their remorse. It is clear also that the offender’s conduct is very much out of character. He has no prior history of criminal behaviour apart from the voluntary consumption of drugs that I referred to earlier, and he is well regarded by people both here and at home in Scotland. He suffers from depression, as does his mother and had a difficult time as he was growing up, at least partly because of his sexuality, being a gay man who reports that he had a father who found that difficult to accept.

8 The police who arrested Mr McCulloch clearly formed a favourable view of him. No doubt this was due to the way in which he conducted himself in the interview. Not only was he completely frank about what he had done, explaining in detail how it was that he came about to be supplying drugs for profit, but also because he did his best to assist them, telling them of the names of other people that he knew to be involved in criminal activity. There was no evidence regarding the accuracy of what he said but it seemed to be common ground that what he told police was accurate, albeit that it seems that the police already knew what he told them. Nevertheless his conduct during the interview is entirely consistent with immediate remorse upon his arrest.

9 The authorities are clear that trafficking to a substantial degree would ordinarily result in a full time custodial sentence unless there are exceptional circumstances. There is not a bright line dividing what is trafficking to a substantial degree and what is not. Nor is there a bright line describing what are exceptional circumstances and what are not. I take into account that the offender was supplying a significant quantity of drug to those who would deal with it at street level and that he had done something similar in the past.

10 I also take into account the matters that Mr Farmer relied on in his submission that the circumstances facing me were exceptional. The offender is a very young man. He suffers from depression. He found himself far away from home with no money. He has very good prospects of rehabilitation and was very clearly remorseful. Whether because the offender was not trafficking to a substantial degree or because, if he was, the circumstances are exceptional does not really matter. The result however is that I am not satisfied that a full time custodial sentence is required. However I am satisfied that a custodial sentence of some form is necessary. The offender’s conduct was serious and it was not isolated. Even given the very favourable subjective features on which he’s entitled to rely, it remains the case that the objective seriousness of his conduct requires a custodial sentence of some form. The question then becomes what form will that sentence take?

11 Mr Farmer submitted that it was appropriate that I impose a suspended term of imprisonment. Let me just discuss that option for a moment. The law is that a suspended sentence of imprisonment is a real sentence and can act as effective punishment. I have my suspicions that offenders receiving a suspended sentence do not quite see it that way but I am bound by the law. However in this case the offender intends to return to Scotland as soon as he is able and indeed his bridging visa expires in a few days. One of the things that the authorities say gives a suspended sentence the effect of punishing the offender, is that (as is almost invariably said,) the person serving the suspended sentence of imprisonment has the sword of Damocles hanging over his head. It would be ignoring reality and it would be indulging a legal fiction to say that the offender back in Scotland, subject to a suspended term of imprisonment imposed by a New South Wales court, has the sword of Damocles hanging over his head. The result would be that a suspended sentence of imprisonment would effectively leave the offender unpunished. I say that, even taking into account the circumstance that he must necessarily receive a conviction and he did spend seven days in custody. In my view those consequences are insufficient to punish the offender sufficiently for what he has done.

12 The primary purpose of sentencing is to protect the community. Sometimes, indeed fairly commonly, the various ways in which the court seeks to achieve that objective work in contradictory ways. What is best for this offender may not be best for the community. Mr Farmer said that sending his client to gaol is not going to help him. That may unfortunately be true but I am not only looking at what is best for Mr McCulloch, I am looking at what is best for the community. And the response of the criminal law to offences as serious as this has generally been that others who may be tempted to act as the offender has done should be deterred from doing so by the real threat of significant punishment if they are detected.

13 There are enormous temptations offered to those might be thinking about dealing in drugs. Primarily of course they are financial. The offender for a few minutes work was to receive either four hundred or eight hundred dollars depending on how one interprets what he told police. The easy money that can be made through supplying others with drugs is a powerful temptation to those who are short of money or are simply greedy. For that reason Mr McCulloch cannot escape further punishment.

14 I am satisfied that a sentence of periodic detention is required but the sentence that I will soon announce is a remarkably short sentence of periodic detention for this reason. The offender is unable to work on his bridging visa. He will, when he is not serving his sentence on the weekends, have little to do to occupy his time. It is counter productive to keep the offender away from the support of his family back in Scotland for more than is absolutely necessary and counter productive to make him effectively twiddle his thumbs for a lengthy period, interrupted occasionally by weekend custody.

15 What I am about to announce will satisfy no one. More than most it is a sentence which is going to leave both Mr McCulloch and his supporters and family unhappy and the prosecution unhappy. It is however I believe the least worst option of the many bad options which present themself in the present case. The offender is sentenced to imprisonment. I set a fixed term of imprisonment of three months. That sentence will be served by way of periodic detention. The offender is to attend the Parramatta or Silverwater Detention Centre at 8.30am on 12 September 2009 in order to commence serving his sentence.

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