R v Shae-Locke; R v Smith

[2009] NSWDC 438

CITATION:	R v SHAE-LOCKE; R v SMITH [2009] NSWDC 438
HEARING DATE(S):	28 August 2009
EX TEMPORE JUDGMENT DATE:	28 August 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Sentenced to imprisonment. Mr Smith's sentence is one of 3 years with a non parole period of 18 months Mr Shae-Locke's sentence is one of 3 years with a non parole period of 12 months
CATCHWORDS:	CRIMINAL LAW - Sentence - Ongoing supply of drugs
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985
PARTIES:	The Crown Caleb Shae-Locke; R v Alfred John SMITH
FILE NUMBER(S):	2009/11/0369; 2009/11/0374
SOLICITORS:	Director of Public Prosecutions Legal Aid Commission - Offenders

SENTENCE

1 HIS HONOUR: Caleb Shae-Locke and Alfred Smith live together in a relationship. They also committed together a serious criminal offence involving the ongoing supply of drugs. They appear to have been equally culpable as far as the offence was concerned, and no suggestion has been made to me by either lawyer appearing for them that one was more heavily involved in the offence than the other, and I will treat them accordingly.

2 They were both drug users, (although there is some suggestion that Mr Shae-Locke may have given up drugs shortly before the commission of this offence, he was certainly addicted to drugs at around the time that the offence was committed). The police went to their home on 19 November. The officer who went was in plain clothes and pretending not to be a police officer. He indicated a desire to buy some drugs. He gave a hundred dollars to Mr Smith, who then left the premises while the undercover officer remained with Mr Shae-Locke. Mr Smith returned and handed a small green plastic balloon to the police officer. He had earlier asked for ice, but what was supplied was heroin, Mr Smith explaining that there was no ice available. The contents of the balloon when analysed were found to be heroin with a net weight of .08 grams.

3 Two days later the undercover officer was back at the premises of the accused. A similar thing occurred. Mr Shae-Locke had agreed to supply the undercover officer with one hundred dollars worth of ice and three hundred dollars worth of heroin. This conversation occurred on the telephone before the police officer went to the premises. When he got there the officer handed over money and received in return two small plastic green balloons containing .17 grams of heroin and two resealable plastic bags which contained .07 grams of methylamphetamine.

4 Six days later another incident of supply took place. Once more there was a telephone conversation and the undercover officer spoke with the two accused. During the conversations it was agreed that he would purchase a hundred dollars worth of methylamphetamine in the form of ice and three hundred dollars worth of heroin. The undercover officer went to their home later that same day, where he was handed some small packages after giving Mr Smith and Mr Shae-Locke $400. When the drugs were tested it was discovered that the police officer had not got what he ordered. He received .27 grams of heroin, but the other substance proved not to be a prohibited drug at all.

5 The two men were arrested on 16 December 2008. During the course of dealing with Mr Shae-Locke he became agitated and managed to pull off a handle from a security door. He therefore asks that I take into account when sentencing him an offence of malicious damage to property on the basis that he was reckless at the time. I will take that matter into account, but given the severity and seriousness of their drug supply conduct it has little effect on the overall sentence. Mr Smith has been in custody since the day he was arrested on 17 December 2008. Mr Shae-Locke was in custody for fifty-seven days before being released to bail, so I will backdate the sentence I will impose upon him to take account of that pre-sentence custody.

6 The offences of course were serious. The quantities involved were relatively small; in fact in total the two men supplied only .59 grams of prohibited drugs. But it is the regularity with which they did so which makes the offence serious and requires that a custodial sentence be imposed on both men.

7 Both of them had less than ideal upbringings. Mr Shae-Locke suffered two sexual assaults performed upon him as a child. He was taken out of the custody of his mother due to her physical abuse of him at a young age, and has spent time working as a prostitute. Despite those challenges to his life, it wasn’t until he started a relationship with his co-offender Mr Smith that he began to use drugs and began to commit criminal offences. He has a prohibited drug matter on his criminal history, but that is all. The matters put before me also suggest that apart from his criminal activities he is a man of good character and is capable of being - if I can use this term without being condescending - a worthwhile citizen. He has worked in the past and has acquired qualifications in the hospitality industry, but such was the position that he found himself with his partner, both drug users, that he has not been able to gain work for some time.

8 Mr Smith’s upbringing was also less than ideal. In particular there was an incident where his father fell down some stairs and suffered some neurological damage. His mother blamed him, which caused him to move in with his grandmother. His father and his grandmother were supportive carers, but despite that the offender commenced committing criminal offences. He has a significant criminal history involving custodial matters for offences such as break enter and steal and drug use convictions as well. He has health problems, both through drug use and also accidents. He suffered a stroke in recent times. In Mr Smith’s case his drug use commenced at a fairly early age. He was associating with a number of other people who were drug users and also with a group of paedophiles who groomed children with alcohol and heroin before sexually assaulting them.

9 Both offenders expressed the desire to overcome their drug addictions. The offence was committed in the context of their being drug users in that I am told that they had accumulated drug debts which they intended to pay off by making money through drug supply. There is however no evidence that I can accept that they would have stopped their drug supply activities in the absence of being arrested by police. Both offenders pleaded guilty at the earliest opportunity and so I will discount the sentences that I would otherwise impose upon them by twenty-five per cent to reflect that circumstance.

10 As I mentioned at the outset of these remarks on sentence, the objective gravity of their conduct is identical. They were together conducting the drug supply activities with no one offender being more culpable than the other. On the other hand, it is of significance that Mr Shae-Locke has a criminal history of much less seriousness than his co-offender. He is entitled to be afforded leniency because of that, and so the sentence I impose upon him will be shorter than the sentence I will impose upon Mr Smith to reflect that circumstance.

11 Notwithstanding that the quantities involved are small, street level drug supply activity such as this are serious. Parliament responded to ongoing supplies of small drug quantities by creating s 25A of the Drug Misuse and Trafficking Act and providing that those who do what the offenders did are liable to the same maximum penalty as if they had supplied a commercial quantity of a prohibited drug. It is important to bear that in mind when I assess the appropriate sentence to impose upon these two men.

12 In Mr Smith’s case he is sentenced to imprisonment. That is to date from the day of his arrest, 17 December 2008. I set a non-parole period of eighteen months and a head sentence of three years. The non-parole period will expire on 16 June 2010, on which day he is to be released to parole.

13 In Mr Shae-Locke’s case he is sentenced to imprisonment that is to date from 2 July 2009 which I understand to be fifty-seven days prior to today. I set a non-parole period in his case of twelve months and a head sentence of two years. His non-parole period will expire on 1 July 2010 on which day he is to be released to parole. As is clear, I have found special circumstances in both cases and they relate to the need to assist both offenders to overcome their drug addictions.

**********