R v Snedden

[2021] NSWDC 630

District Court

New South Wales

Medium Neutral Citation:

R v Snedden [2021] NSWDC 630

Hearing dates:

1 April 2021

Date of orders:

20 April 2021 and 18 June 2021

Decision date:

20 April 2021

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

Impose an aggregate sentence of 3 years imprisonment, to be served by way of Intensive Correction Order

Catchwords:

CRIME — Drug offences — Ongoing supply

SENTENCING — Penalties — Intensive Correction Order

Legislation Cited:

Drug Misuse and Trafficking Act 1985 (NSW), s 25, Schedule 1

Crimes Act 1900 (NSW) s 193(2)

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A

Category:

Sentence

Parties:

Lee Andrew Snedden (Offender)
Director of Public Prosecutions (Crown)

Representation:

Counsel:
Ms Mayne (Offender)
Ms McKenzie (Crown)

File Number(s):

2020/0086222

Publication restriction:

Nil

SENTENCE

Introduction

1. The offender stands to be sentenced having pleaded guilty to two offences under s 25A of the Drug Misuse and Trafficking Act 1985, being the ongoing supply of heroin and methadone, the first offence having occurred between 6 February 2020 and 8 March 2020, and the second offence having occurred between 7 March 2020 and 7 April 2020. Each offence carries a maximum penalty of 20 years imprisonment and there is no applicable standard non‑parole period.

2. There are Form 1 offences the offender acknowledges his guilt in relation to and asks that I take into account four offences on two Form 1s. Three offences are on the Form 1 relating to the first offence of ongoing supply, being charge sequence 1. The first of those three offences are dealing with property reasonably suspected of being proceeds of crime, being $170 cash, being an offence under s 193(2) of the Crimes Act. The second offence is the supply of a small quantity of a prohibited drug, being in this instance 840 millilitres of methadone, under s 25(1) of the Drug Misuse and Trafficking Act. The third offence is the supply of a small quantity of prohibited drug, being in this instance 2.2 grams of heroin.

3. The fourth offence is on the second Form 1 and relates to the second offence of ongoing supply being charge sequence 2; that offence is the supply of a small quantity of a prohibited drug, being in this instance 0.6 grams of heroin.

The Facts

4. The facts are agreed and the following is taken from them. In January 2020 the police established a Strike Force Tongaboo to investigate drug supply activities in the North Shore area. Police surveillance identified the offender supplying heroin from his apartment in Barton Road, Artarmon. Regarding the ongoing supply of heroin, the offender would meet each of his customers at his unit in Artarmon or within the confines or the vicinity of 15 Barton Road, Artarmon, or other close by public areas. When the offender conversed about heroin, he would do so in a limited code.

5. Regarding the supply of methadone the offender was a patient at the New South Wales Opioid treatment program, where he was receiving treatment for an opioid addiction. The offender was entitled to five takeaway methadone bottles per week, each containing 140 millilitres of methadone. The offender would attend his methadone clinic every Tuesday and Friday to obtain his methadone and takeaway bottles. The offender would supply some of these bottles to a Heath Preston. Preston would meet the offender outside the unit in Artarmon or outside the methadone clinic located at St Leonards. Preston would ask for between one to three bottles of methadone.

6. Dealing firstly then with the first offence of ongoing supply, between 6 February 2020 and 8 March 2020 the offender supplied heroin or methadone on 12 separate occasions. The total heroin supplied was 1.4 grams over six separate individual supplies. The total methadone supplied was 1,820 millilitres during six separate individual supplies. The offender received a total of $1,665 for the 12 supplies. The facts suggest that there were five separate purchases of the drugs from the offender.

7. Of some significance, given the evidence the offender gave on sentence, is that in communicating with the purchaser involved in the tenth supply, the offender told the purchaser he was waiting for “Green” to wake up. At 10.33am that day the offender, having received a text message from Green, told the purchaser “He was all good” and the supply took place shortly thereafter.

8. The offender gave evidence that in 2019 he had started to share accommodation with Daryl Green about six months prior to being arrested. His evidence was that he knew Green was a drug user and that he began to assist Green to sell drugs. His evidence was that at that time he was using drugs heavily and would be paid in both drugs and money. The offender also gave evidence that Green was arrested before the offender was.

9. In terms of the offences on the Form 1 relating to charge sequence 1, the first supply offence involved three supplies to the one purchaser in total of 840 millilitres of methadone between 13 February and 4 March 2020. The second offence on that Form 1 concerned the supply of 2.2 grams of heroin on 12 occasions between 18 February and 8 March 2020 to eight different purchasers.

10. In terms of the second offence of ongoing supply, between 7 March 2020 and 7 April 2020 the offender supplied heroin or methadone on seven separate occasions. The total heroin supplied was 1.2 grams during four separate individual supplies. The heroin was supplied to three different purchasers. The total methadone supplied was 980 millilitres during three separate individual supplies, all of which were supplied to the one purchaser. The offender received a total of $890 for these seven supplies.

11. In terms of the offence on the Form 1 that relates to the ongoing supply offence being charge sequence 2, the supply offence involved the supply of 0.6 grams of heroin on four separate occasions to three different purchasers.

12. At about 6.45am on 18 March 2020 the offender was arrested as he walked along Hampden Road in Artarmon. The offender was cautioned and searched. Inside his wallet police located $170 in cash, being one of the offences on the Form 1 which relates to charge sequence 1.

13. At 6.50am on the same day police executed a search warrant at the offender’s residential address in Artarmon. No-one was home. Police located drug bags, scales and multiple SIM cards. Police also located what is referred to as a ‘drug tick sheet’ for methadone supplies. The offender was conveyed to Chatswood Police Station at 7.57am on 18 March last year. He participated in an electronically recorded interview with police, in which he made admissions to supplying heroin and methadone.

Objective seriousness

14. Turning then to my assessment of the objective seriousness of the offences. The offending here occurred over a two month period and it involved the supply of generally small amounts of two drugs to a number of persons for small amounts of money. On the evidence there is no doubt the offending occurred principally to fund the offender’s drug habit. The overall amount of heroin and methadone supplied was relatively modest, but that is not unusual in cases of ongoing supply.

15. Offences under s 25A of the Drug Misuse and Trafficking Act are generally considered to be more serious than supply offences under s 25. The amount of drugs supplied is still a relevant, although not a determinative factor when sentencing for this type of offence. Here the total amount of heroin supplied in relation to charge sequence 1 was 1.4 grams. This is only just over the small quantity and less than the trafficable quantity of heroin under sch 1 of the Drug Misuse and Trafficking Act. The total amount of methadone in liquid form supplied in relation to this charge was 1,820 millilitres. This is more than the indictable quantity for the drug in that form under sch 1, but less than a 50th of the commercial quantity.

16. The total amount of heroin supplied in relation to charge sequence 2 was 1.2 grams, so again only just over the small quantity under the schedule was involved. The total amount of liquid methadone supplied was 980 millilitres, which is less than the indictable quantity.

17. There were clearly a number of supplies and to different purchasers, some of whom might be described as repeat purchasers. The offender’s role is properly described as a street level supplier, and the organisation of the supplies cannot be described as sophisticated and it would seem involved little by way of planning.

18. Having regard to the very small amount of drugs involved and the role of the offender, which I consider is appropriately described as a street level supplier, who supplied to fund his own habit, and the relatively unsophisticated nature of the supplies, I consider that each of the two primary offences to be towards the lower end of objective seriousness.

19. It was not submitted by the Crown that there was any objective aggravating factor present here under s 21A of the Crimes (Sentencing Procedure) Act.

20. The offences on the Form 1 that relate to charge sequence 1 involve 15 additional supplies of prohibited drugs and therefore must have some impact upon the sentence to be imposed on that charge. The offence on the Form 1 that relates to charge sequence 2 involves four further supplies of very small amounts of heroin and in my opinion has a very limited impact upon the sentence to be imposed on that charge.

The offender’s subjective case

21. Turning then to the offender’s subjective case. His date of birth is 2 October 1961, so he is currently 59 years of age. The offender has a limited criminal record. His past offences have been towards the lower end of the range of criminal activity. Some of the offences have been drug related, however the offender has no prior record of ongoing supply of prohibited drug offences. The offender has never served a full-time custodial sentence, although has served time in custody for fine defaults. The offender also did serve a short period of periodic detention more than 20 years ago for driving offences. His most recent offence was in 2013. His record does not disentitle him to some leniency in this sentence.

Documentary material

22. In terms of documentary material there is before me the following: a Sentencing Assessment Report dated 22 March 2021; a report from the We Help Ourselves residential treatment for opioid dependence, otherwise known as WHOS, dated 30 March 2021; a reference from Linda Howlett of the Sydney Pharmacotherapy Clinic dated 1 April 2021; and a letter from Kirsten Lord, counsellor, at Community Drug and Alcohol Service dated 19 August 2021.

23. As I mentioned earlier, the offender also gave evidence at his sentencing hearing, as did his sister.

24. The Sentencing Assessment Report records that the offender currently resides in social housing, which the offender believes to be a high risk environment and unhelpful to his personal stability. This is supported by his sister, who hopes that the offender will be able to relocate closer to the family.

Family background

25. In terms of his family background, the offender gave evidence that he grew up in Leichhardt and his biological father had been Aboriginal and his mother Scottish, and that both parents are now deceased. His evidence was that he had no relationship really with his biological father, he having been eight years of age when the father left the family home.

26. The offender’s evidence was that his mother re-partnered when he was 12 years of age and that although his stepfather was a brewery truck driver and drank a great deal, he had a good relationship with him. The offender described having four children, although he has limited contact with them. He separated from their mother some 15 years ago because of his alcohol and drug abuse issues.

27. At some point the offender moved to Gulgong with his mother and stepfather and resided with them. His stepfather died in 2001 and his mother in 2004. The evidence of both the offender and his sister was that the offender’s drug use spiralled out of control upon the death of his mother.

28. In terms of his family background, the Sentencing Assessment Report records that he maintains a close relationship with his sister, her children and grandchildren. As I mentioned earlier, the offender’s sister gave evidence at the sentencing hearing and she essentially confirmed the offender’s evidence as to his family background.

Education and employment history

29. In terms of his education and employment history, the offender gave evidence that he left school at the beginning of year 10. He gave evidence that while at school he developed an alcohol and drug use problem. His evidence was that after school he worked with his stepfather as an offsider in relation to the driving of brewery trucks. He said that in terms of his recent employment history, he has been unemployed for a number of years due to his difficulties with alcohol and drug abuse. He is consequently in receipt of the disability support pension and, as I say, currently resides in public housing.

Substance use

30. In terms of his substance use, the offender has strong and persistent substance use issues. He told the author of the Sentencing Assessment Report that he had a history of drug and alcohol abuse dating back to his teenage years, which is consistent with the evidence the offender gave on sentence. The evidence before me shows that the offender commenced a methadone program in September 2004 to address his ongoing heroin abuse, however his issues with substance use continued and obviously play a large role in the offences I am sentencing him for today.

31. According to the Sentencing Assessment Report the offender disclosed that in the six months leading up to these offences he was spending $150 a day on his drug use. The offender believes that this type of expenditure was a major contributing factor to his current and indeed historic offending behaviour. The Sentencing Assessment Report records that the offender was admitted to residential rehabilitation in August 2020, however was removed from the group two weeks before completion of the program due to his lack of engagement with it according to that report.

32. There is a report before me from We Help Ourselves, WHOS, a drug rehabilitation service. That report shows the offender was admitted to the WHOS residential treatment for opioid dependence program on 21 September 2020, and was discharged from the program on 3 December last year. The report from WHOS noted that the offender was able to demonstrate that he was an active participant in the program, including after care and self-help meetings, and developed insight into drug dependence and associated issues. The report noted that the offender attended and participated in some civic groups such as gender specific groups including dealing with strong emotions.

33. The report from WHOS did not state why it was that the offender was discharged from the program. The offender gave evidence that he swore at a fellow participant in the program and had been asked to leave. While I am a little sceptical about that explanation, overall I found the offender to be an acceptable witness and cannot reject it.

34. The offender gave evidence that prior to entering WHOS he had not participated in a drug rehabilitation program previously.

35. After leaving WHOS the offender went to live with his sister for a period, saying that he did not feel comfortable about returning to live at his accommodation. His sister offered to allow him to stay longer, but the offender said it created difficulties in collecting his methadone from his methadone clinic.

36. The offender admitted to the author of the Sentencing Assessment Report, to his sister and in his evidence that he had lapsed and used prohibited drugs on one occasion since leaving WHOS. The Sentencing Assessment Report records that the offender is currently engaged in opioid treatment and has expressed a willingness to participate in further counselling to address his substance use.

37. The counsellor’s letter notes that the offender expressed a strong desire to become abstinent from drug use for the sake of his children and grandchildren.

38. The fact that the offences were committed as a consequence of drug addiction is of course not a mitigating factor on sentence, especially when committed by an offender approaching late middle age.

Psychological/psychiatric history

39. In relation to his psychological history, according to the counsellor’s letter the offender presented for assessment and counselling on 7 July 2020 regarding his heroin dependence disorder and related major depressive disorder and other psychological issues. The counsellor reported that the offender engaged well and attended five more sessions until 19 August 2020.

Response to supervision if relevant

40. The offender was last supervised by Community Corrections in 2004. He was compliant and due to his progress his order was terminated early. The author of the Sentencing Assessment Report notes that during the report process, “The offender has engaged well and willingly provided all necessary information to complete the report.”

Attitude to the offence

41. In terms of his attitude to the offences, the Sentencing Assessment Report records that the offender expressed some insight into the impact of his offending behaviour, he was able to identify the negative effect the offences have had on him, including the affect drug use has on his behaviour. The offender recognised generally that the supply of heroin and methadone was a “bad idea”, however the offender struggled to reflect upon the effect on the broader community, viewing the supply as an “easy out” for him to financially support his drug habit.

The future and risk of re-offending

42. The offender in his evidence before me appeared to show some insight into the adverse effects the supply of prohibited drugs is having on our community.

43. The Sentencing Assessment Report records the offender as being assessed as a medium risk of reoffending. It also notes the offender was suitable to undertake community service work.

Imposition of sentence

44. The pleas of guilty were entered in the Local Court and I will allow the offender a 25% discount for the utilitarian value of his pleas. Given the early pleas of guilty, the content of the Sentencing Assessment Report and the offender’s evidence, I am satisfied that the offender has some genuine remorse in relation to his offending. Given the offender’s limited criminal history, the fact that he has shown a real willingness and desire to do something about his drug issues, the support he has from his sister and having regard to the assessed risk of reoffending contained in the Sentencing Assessment Report, I consider that the offender has reasonable prospects of rehabilitation.

45. The offender has spent no time in custody in relation to the matters, however he has spent a little under three months in residential drug rehabilitation. I do not have before me the full details of the nature of the residential program, but I propose to allow him one month of quasi‑custody in relation to that time.

46. I will utilise the aggregate sentencing provisions. If I had not done so, my approach to accumulation and concurrency would have been that there must be some level of accumulation, although I have noted that the type of offending is similar and in effect continuing.

47. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act, which include the need to impose adequate punishment, general and specific deterrence, protection of the community, denouncing the offender’s conduct, recognising the harm done to the victim, which is the community here, and rehabilitation of the offender.

48. Those who repeatedly sell prohibited drugs for money must expect to receive significant sentences. Prohibited drugs are destroying lives, families and the very fabric of our society. The sentences to be imposed must be a deterrent both for this offender and for others in our community who may be tempted to engage in such offending.

44. The only appropriate sentence is one of imprisonment, having considered s 5 of the Crimes (Sentencing Procedure) Act. The maximum penalty has been taken into account as a legislative guidepost. As I said, I will utilise the aggregate sentencing provisions. I will firstly record the indicative sentences. In determining the indicative sentences and fixing the aggregate sentence, I have had regard to all of the objective and subjective factors I referred to earlier. It will shortly be seen that the aggregate sentence I will impose is one of three years imprisonment.

45. I propose in these circumstances to consider whether I should extend to the offender the leniency of serving the sentence in the community by way of an Intensive Correction Order.

46. The sentences Mr Snedden will first hear me announce are what are called indicative sentences. He will then hear me announce an aggregate sentence, which is the sentence that he will serve. It is not arrived at by simply adding up all of the indicative sentences.

47. On sequence 1, having regard to the offences on the Form 1, there is an indicative sentence of two years and two months. On sequence 2, having regard to the offence on the Form 1, there is an indicative sentence of one year and ten months. There is an aggregate sentence of three years imprisonment.

48. In considering whether to impose a sentence by way of an Intensive Correction Order I am to consider as the paramount consideration community safety. I am to assess whether the making of such an order or serving the sentence by way of full‑time detention is more likely to address the offender’s risk of reoffending.

49. On the material currently before me, given the offender’s limited record, his reasonable prospects for rehabilitation and the support of his sister, I consider that community safety will not be compromised if I allow the offender to serve the sentence in the community by way of an Intensive Correction Order. I also consider that allowing the offender to serve the sentence in that way is more likely to address his risk of reoffending, which is clearly linked to his taking of prohibited drugs.

50. Before finalising the sentence and the conditions to be imposed on the Intensive Correction Order however, I require an assessment to be made as to the suitability of the offender to have a home detention condition attached to an ICO for at least part of the period of the order. This will require the proceedings to be adjourned so that the assessment can be carried out by Community Corrections.

Sentence after Intensive Correction Order Report with Home Detention Condition

18 June 2021

56. When this matter was last before me on 20 April this year I effectively delivered remarks on sentence. I indicated that on sequence 1 there was an indicative sentence of two years and two months. On sequence 2 there was an indicative sentence of one year and ten months. I indicated that there was an aggregate sentence of three years.

57. On the material that was before me at that time I was of the view that if I was to impose a sentence by way of an Intensive Correction Order, community safety would not be compromised, which is the paramount consideration when giving consideration to imposing a sentence in that way. I called for an assessment to see whether Mr Snedden would be suitable to have as a condition of that order a condition of home detention.

58. I have received an assessment which indicates he is suitable and if I have not already said so, I will mark a copy of that report as the next exhibit on sentence.

59. Mr Snedden, you are sentenced to an aggregate term of imprisonment for the two offences for a period of three years. It commences today, 18 June 2021, it expires on 17 June 2024. It is to be served by way of an Intensive Correction Order. The standard conditions apply, that is you must not commit any offence, you must submit to Community Correction supervision.

60. The additional conditions are as follows:

1. You are to perform 250 hours of community service.

2. You are to be subject to the condition of home detention for the first two years of the order.

3. You are to abstain from prohibited drugs.

4. You are to contact St Leonards Community Corrections by telephone today so that the order can be implemented.

61. As I said to the last offender, you must understand that you have received a sentence of imprisonment today. You are not going to gaol today, but it is a sentence of imprisonment; it has a number of conditions which I have just announced to you. It is most important that you fully understand those conditions because if you breach them it is not like a good behaviour bond, you do not come back here. You get referred to the State Parole Authority and there would be a good chance they would revoke the order and you would go into full-time custody.

Orders

1. The offender is convicted of the offences to which he pleaded guilty

2. Impose an aggregate sentence of three years imprisonment. It commences today, 18 June 2021, it expires on 17 June 2024.

3. The sentence is to be served by way of Intensive Correction Order.

4. The standard conditions are attached:

1. The offender is not to commit any further offences

2. The offender is to be supervised by Community Corrections

5. The following additional conditions are attached:

1. The offender is to perform 250 hours of community service

2. The offender is to be subject to home detention for the first two years of the Order

3. The offender is to abstain from prohibited drugs.

4. The offender is to contact St Leonards Community Corrections by telephone today so that the order can be implemented.

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Decision last updated: 23 November 2021