R v Strickland

[2020] NSWDC 164

District Court

New South Wales

Medium Neutral Citation:	R v Strickland [2020] NSWDC 164
Hearing dates:	20 March 2020, 2 April 2020, 30 April 2020
Decision date:	30 April 2020
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentenced to a term of imprisonment of 5 years. Non parole period of 3 years.
Catchwords:	SENTENCE- Large commercial supply methylamphetamine.   SENTENCE - Relevant factors on sentence – rolled up drug quantity - Form 1 - role of offender – prior sentence for drug supply - on parole – parity - duress – remorse - COVID-19 - special circumstances - requirement for deterrent sentence - guilty plea not adhered to - guilty plea later adhered to - calculation of start date.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Drug (Misuse and Trafficking) Act 1985
Cases Cited:	Attorney General’s Application No. 1: (2002) 56 NSWLR 146 Bugmy v The Queen (2013) 249 CLR 571 Callaghan v R [2006] NSWCCA 58 CD v R [2013] VSCA 95 Hamzy v R (1994) 74 A Crim R 341 Hili v The Queen (2010) 242 CLR 520 Jadron v R [2015] NSWCCA 217 R v Owens [2019] NSWDC 705 R v Pobjoy, unreported 5 April 2019 R v Ceissman [2004] NSWCCA 466 R v Herring (1956) 73 WN (NSW) 203 R v JDX; JDX v R [2017] NSWCCA 9 R v Qutami [2001] NSWCCA 353 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 Rankin [2019] NSWDC 706 Tiknius v R (2011) 221 A Crim R 365 Veen v The Queen (No 2) (1988) 164 CLR 465
Texts Cited:	Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497. parolesupervisionandreoffending.pdf
Category:	Sentence
Parties:	James Strickland (the offender) Director of Public Prosecutions
Representation:	Counsel: Ms K Stares (for the offender)   Solicitors: Legal Aid NSW (for the offender) Ms N Olender (for Director of Public Prosecutions)
File Number(s):	2018/00055610

SENTENCE

Introduction

1. On 19 May 2016, James Strickland was released to parole after serving 2 years 9 months of a 5 year sentence for supplying a large commercial quantity of cannabis leaf. On 19 February 2018, he was arrested and charged with 3 counts of supplying methylamphetamine. He was still subject to parole.

2. In November 2018, Strickland agreed to be committed for sentence on a charge that he supplied a large commercial quantity of methylamphetamine: s25 (2) Drug (Misuse and Trafficking) Act 1985; maximum penalty life imprisonment with a standard non-parole period of 15 years. The amount supplied was not less than 560g. The large commercial quantity for the prohibited drug methylamphetamine is 500g. The accumulation of drug quantities from the 3 transactions was entirely appropriate and was accepted by the defence: see Hamzy v R (1994) 74 A Crim R 341; Jadron v R [2015] NSWCCA 217

3. The matter took some time to be resolved. The initial sentence date was vacated and for a time Strickland did not adhere to the plea entered in the Local Court. The delay led to further police investigations. It was only when Strickland appeared before me on 28 March 2020 that he formally adhered to the guilty plea entered in the Local Court. Strickland also asked that when I sentence him for the principal offence I take into account four other matters on an s 33 Crime (Sentencing Procedure) Act 1999, Form 1. He has admitted his guilt in relation to each of those matters. As should be clear from this judgement, it is appropriate in all the circumstances that I take those matters into account.

Agreed facts

4. There are agreed facts before the court. In short summary; a police investigation, utilising lawfully intercepted telephone calls revealed that Strickland was obtaining quantities of methylamphetamine from the up-line supplier (case pending). Strickland would arrange for Wayne Owens to collect the drugs from the up-line supplier at an address in Platypus Close, Figtree. Owens, a drug user, received drugs as payment for his services. Three specific instances of supply, on 2, 8 and 14 February 2018, are particularised. After Owens picked up the drugs, he delivered them to Strickland’s home in Oak Flats.

Form 1

5. The Form 1 matters reveal the extent of Strickland’s supply operation. From the drugs obtained from the up-line supplier, 329 grams were supplied to three men; Rankin 10.g grams for $1,700; Taylor 222 grams for $29,000 and “Brett” 97.4 grams. The police investigations reveal that Strickland was engaged with the other co-offenders and his defacto wife Belinda Pobjoy and that he directed this criminal group. On arrest he was found in possession of 5.17 grams of cocaine, some of which was for his and Pobjoy’s use and some held for the purpose of supply. He was also found with $122,000 which he accepts is the proceeds of crime; of which, about $44,000 cannot be related to the drug supplies the subject of the count for sentence.

6. I do not “in any sense” impose sentences for the matters on the Form 1 but they will be taken into account when I determine the appropriate penalty: Attorney General’s Application No. 1: (2002) 56 NSWLR 146: Attorney General’s Application No. 1 at [68]. Some Form 1 matters operate to increase the sentence - the cocaine supply and the unaccounted for $44,000. The increase recognises the need for personal deterrence and retribution for the crime for sentence: Attorney General’s Application No. 1 at [39] – [42]. Care needs to take in relation to the other Form 1 matters and the balance of the proceeds matter, as the nature of the supply operation and the money received have already been taken into account as part of my instinctive synthesis evaluation of the seriousness of the principal offence. Accordingly, I have taken care not to double count those matters.

Drug supply - Assessment of Role

7. The amount of drug supplied is always relevant. Further, the penalty range is determined by quantity of drug supplied. Strickland’s role is very relevant to my assessment of the objective seriousness of the offence for sentence. Here Strickland:

• set up his own supply operation;

• maintained and managed the operation at an intermediate level;

• employed and used others – Owen & Pobjoy;

• distanced himself from the day to day operation;

• stood to share in the profit; as the drugs were distributed for profit.

As a consequences Strickland can be characterised as the principal in his own relatively modest supply operation.

Parity

8. I have received sentencing details for Owens [2019] NSWDC 705 (Judge Haesler SC); Rankin [2019] NSWDC 706 (Judge Haesler SC); Pobjoy, unreported 5 April 2019 (Judge O’Brien AM); and Taylor (notes from DPP of Judge Hunt’s reasons of 21 August 2018).

9. This sentence must be determined by having regard to the circumstances of the co-offenders and their respective degrees of culpability; like must be compared with like. Here, while there must be some proportionality between each co-offender their different personal and criminal histories justify a real difference between the sentences imposed and how they are to be served. It is not in dispute that Strickland’s crime was far more serious and his criminal antecedent’s worse than any other co-offender.

Record

10. I have received details of Strickland’s criminal record and gaol history, in particular the judgement of Judge Conlon SC from 26 March 2015. After his arrest on 20 February 2018 Strickland served his balance of parole of 6 months and 1 day until 19 August 2018. Strickland spent 272 days in custody until released to Supreme Court bail on 28 November 2018. Some of that remand period was concurrent with his balance of parole.

11. On 4 June 2019 Strickland was returned to custody after having been convicted of perverting the course of justice. He was sentenced to 1 year and 6 months imprisonment with a 1 year non-parole. He becomes eligible for release to parole on 3 June 2020. That conviction and sentence were subject to appeal. These sentence proceedings were adjourned so that the appeal could be brought before me and all Strickland’s matters finalised. Today I dismissed the appeals against conviction and sentence, confirming the orders of the magistrate.

12. I take into account an offender’s antecedent criminal history. While that history can never lead to a sentence which is disproportionate to the gravity of the offence for sentence; “that an offender has an antecedent criminal history is relevant to show whether the instant offence is an uncharacteristic aberration or whether it demonstrates the offender’s continuing disobedience towards the law. If it is the latter then a more severe penalty may be warranted which focuses on retribution, deterrence and the protection of society;” Veen v The Queen (No 2) (1988) 164 CLR 465, joint judgement at 477. Those principles apply here.

On parole

13. The commission of the offence while on parole justifies a harsher punishment in order to recognise the breach of the promise made to secure early release: that is; be of good behaviour and obey the parole services directions. I must also take into account any time for which the offender has been held in custody in relation to the offence: s 24(1) Crimes (Sentencing Procedure) Act 1999. The circumstances that bring an offender before a court for sentence after parole has been revoked are far too varied to permit a single absolute rule about how a judge apportions harsher punishment and time spent serving balance of parole: Callaghan v R [2006] NSWCCA 58.

14. I have considerable discretion in fixing the starting date of the sentence. I have to consider all relevant circumstances, including the totality principle. I cannot double count matters that aggravate a sentence and thus unduly increase it. I must avoid unfairness; Strickland should not be disadvantaged simply because of the time it took to finalise this matter. In addition this matter is complicated by my having to take into account the period spent on bail and his serving the non-parole period of the sentence imposed in the Local Court for perverting the course of justice. Ultimately, I must determine a date that allows for appropriate punishment for the breach and the Local Court matter but also recognise that the overall time served be just and appropriate to the totality of the offender’s crimes.

15. Strickland’s arrest for these matters breached his parole. He served the balance of parole of 6 months and 1 day to 19 August 2018. He remained bail refused until he was given bail by the Supreme Court on 28 November 2018. He returned to prison on 4 June 2019 following his conviction in the Local Court. That sentences non-parole period expires on 3 June 2020.

16. To be a transparent as possible I note I have allowed 2 months to reflect what should be served solely referable to balance of parole for the earlier sentence and 6 months solely referable to the non-parole period for the Local Court matter. Working from the date Strickland went into custody on 4 June 2019: I start from 4 December 2019 and allow 226 days for time served (102+124) giving a start date of 22 April 2019.

The case for Strickland

17. While Strickland did not give evidence on sentence, portions of his affidavit of 20 June 2019 were read and not contested. He also wrote a letter to me expressing some understanding of his criminal behaviour and remorse. I also received a report from Ms Godbee, a forensic psychologist of 17 December 2019 and a letter from Strickland’s sister.

Duress

18. Strickland made an assertion to his psychologist that he only engaged in drug supply as he was under pressure to repay debts. A similar explanation was given to Judge Conlon in 2015. Judge Conlon accepted the explanation; I cannot. Where assertions made by an offender about his motivation for offending appears at odds with other material before me I could not and do not rely on it: R v Qutami [2001] NSWCCA 353. Judges must take care before accepting the evidence provided in such reports at face value, even if they come from respected psychologist like Ms Godbee: see R v JDX; JDX v R [2017] NSWCCA 9.

19. A court is entitled to approach claims of duress with a significant degree of circumspection as claims may be easily made: Tiknius v R (2011) 221 A Crim R 365 at [45]. Duress implies forcible restraint and compulsion. Duress of the type claimed here does not excuse the offending or exculpate Strickland. Economic duress and continued association with career criminals does not of itself does not mitigate an offender’s objective criminality: R v Ceissman [2004] NSWCCA 466 at [24]. There is nothing before me to support any claim about duress or debt. To the contrary, the nature of Strickland’s supply operation, what was recorded on the telephone intercepts, and the amount of cash found and transacted, indicates Strickland’s major motivation was personal profit.

Offender’s personal history

20. The focus of Ms Godbee’s report was not on the objective seriousness of Strickland’s crimes but on subjective matters. The background material and her opinions are not controversial. I can accept the personal history set out, as it accords with other material before me. It is relevant and allows for some understanding of how Strickland came to commit this and other crimes.

21. In brief summary: Strickland is 45 years old. He grew up in the Wollongong area. He did not have contact with his father. He and his brother were raised by their mother; “a beautiful woman.” She and he had a volatile relationship with his stepfather. He was exposed to poverty, domestic violence, drug use and was the victim of sexual abuse from a relative. He left school after year 10 and has worked most of his adult life, mainly as a floor sander. He has two teenage children but is long separated from their mother. He is still in a relationship with Ms Pobjoy.

22. He told Ms Godbee that he was only an occasional illicit drug user until his 30’s but then gambling, drug using peers, drug use and drug supply interspersed with prison terms have dominated his life. After his release in 2016 he started using methylamphetamine (“ice”). She reports he sees himself as “a victim of circumstances” and as a consequence finds it difficult to accept responsibility for his own actions. She reports he doesn’t yet have the personal resources to cope with the stresses and strains of normal community life and has over time developed unhelpful coping strategies. Ms Godbee recommends he engages in intense drug and alcohol treatment and individual psychological therapy.

23. Ms Stares, for Strickland, suggested that Strickland receive the full benefit of what are now commonly referred to as “Bugmy factors:” Bugmy v The Queen (2013) 249 CLR 571. The evidence before me about his childhood disadvantages does not put him into the ‘profoundly deprived’ category. The various hardships he suffered where not of the order of deprivation or of the gravity discussed in Bugmy; as such they do not reduce his moral culpability in the manner envisaged by the High Court. I cannot find that his background substantially compromise his capacity to mature and learn from experience; nevertheless a person’s background is always a relevant factor to be considered on sentence.

24. I accept that Strickland’s background has left a mark and I will take that background into account. In particular it helps explain his resort to drug use. That drug use and its genesis help explain his resort to drug supply and his consequent continued association with anti-social peers. These have led to what Ms Godbee describes as “mental health issues” that must be addressed both in custody and on parole. Although Strickland failed to meet his parole conditions the effort must be made again to assist him adjusting to normal community life. It is accepted that the will need post release management and supervision for as long as practicable.

Remorse

25. When a guilty plea is entered knowing that a reduction in sentence will be given (as his lawyers must now explained to him) the guilty plea of itself provides no evidence of remorse: s 22 Crimes (Sentencing Procedure) Act 1999, and although it did not apply at the time: 25D. No additional reduction in sentence beyond the mandated discount is required: CD v R [2013] VSCA 95 at [36]. Similar principles apply to his assistance. While what was said in his recent letter was not tested Strickland now appears to appreciate the harms illicit drug supply cause the community. I accept he now regrets the harm he has caused himself and his family. Such matters must be weighed in my sentencing calculus. Here, they operate to reinforce my decision to make a finding of special circumstances.

Submissions

26. I am indebted to Ms Olender, solicitor for the DPP, and Ms Stares, for their comprehensive submissions. I have considered them and sought to address them in this judgement. I hope I have done justice to them.

Guilty plea

27. The resolution of this matter took far too long and far too much court time. The level of reduction for the utilitarian value of a guilty plea is measured in most cases primarily by the timing of the plea. Although the plea came in the Local Court Strickland’s initial refusal to adhere to it, reduced its utilitarian value. In all the circumstances, as the matter was never listed for trial I will reduce the otherwise appropriate sentence by 22.5%.

COVID -19

28. The present crisis will increase apprehension about infections in gaols, as it does in the community in general. As a community we are being asked, urged and compelled to self-isolate. This cannot happen in a gaol. Social visits have been suspended for an indefinite period, although access to telephone calls has increased:

29. Ms Stares has tendered and advice prepared for Legal Aid NSW by the Kirby Institute at UNSW (16 April 202) and some World Health Organisation material on CV-19 and a Corrective Services (CSNSW memo - response to COVID - 19, 22 April 2020: exhibit 7.

30. Prisoners are personally unable to implement social distancing. They are completely reliant on the authorities who have complete control over their lives. These concerns and considerations apply to every prisoner sentenced and for sentence. I am however sentencing this offender today based on current knowledge of COVID -19 and the response to the crisis as advised by Corrective Services NSW

31. If/when COVID -19 enters gaols early parole may be given some but not all prisoners: s276 Crimes (Administration of Sentences) Act 1999. Strickland would appear to qualify as he has asthma and respiratory problems associated with his long term job as a floor sander.

32. I cannot predict what will happen to this offender but the lack of visits reducing any capacity to remain in contact with pro-social friends and family, and heightened anxiety and concerns, because of his respiratory problems are relevant factors that must be synthesised along with all other matters.

Special Circumstances

33. The evidence relating to; Strickland’s need for; drug rehabilitation in the community, help adjusting to normal community life, the need to ensure his and his family’s protection and the need to take into account the impact of accumulation on another sentence all provide a basis for a finding of special circumstances. However, in so finding I am mindful of a requirement that the minimum period for which Strickland should be imprisoned must also properly reflect the gravity of his offences and the other purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].

34. It also important to note that a 2011 BOCSAR study revealed that offenders who received parole supervision upon release from custody took longer to commit a new offence, were less likely to commit a new indictable offence and committed fewer offences than offenders who were released unconditionally into the community: Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497.

Guidance

35. While every offence and every offender requires individualised treatment courts must in the exercise of their undoubted discretion take guidance from a number of sources. They include: the maximum penalties and standard non-parole period prescribed; the decisions of other courts, particularly those designed to give guidance; and of course, the purposes of sentencing, which here importantly include the deterrence of this offender and others from committing similar crimes and proper recognition of the harm done by drug supply crimes to individual drug users and the community.

36. Both the maximum penalties and standard non-parole period provide penalties sentencing measures to be balanced with all other relevant factors. They also invite a comparison between this case and other cases. There are reasons here for variation from the standard non-parole period, which I trust are clear.

Synthesis

37. It bears repeating that the sale of illicit drugs causes considerable harm not just to those who purchase and ingest such drugs but to the community in general. The illicit trade in drugs is one of the principal sources for crime in the community. It is not just the sale of drugs; it is the crimes that are committed by those who seek to obtain funds for drugs and the destruction to family life and personal life that drugs cause. There is a community interest in appropriate and just punishment of such offences for a significant and telling period.

38. In order to reflect these considerations a retributive sentence is required. Retribution is the expectation that those who engage as Strickland did in commercial supplies for profit will be punished severely. A proper sentence marks the Court's view of the seriousness of the crime, and should let other wrongdoers know the retribution which will fall upon them if they commit similar crimes: R v Herring(1956) 73 WN (NSW) 203, at 205. There may come a time where we, as a community, may have to reassess the extent to which retribution and deterrence influence sentences and evidence that’s shows such concepts may not in fact protect society by reducing the incidence of future crimes. But for the moment they remain very relevant sentencing principles that must apply in most drug supply matters.

39. I have endeavoured a succinctly as possible to identify all the factors that are relevant to the sentence and discuss their significance. I must then makes a value judgment as to what is the appropriate sentence given all the factors relevant to the crime and the offender: Hili v The Queen (2010) 242 CLR 520.

40. James Strickland: Had it not been for the guilty plea and assistance a sentence of 8 years would have been imposed. After applying a discount of: 37.5% the sentence is 5 years. The sentence will commence on 22 August 2019 backdated by 226 days from 4 December 2019.

Orders

41. James Strickland: You are convicted – I take into account the guilty plea, assistance given, a finding of special circumstances and the matters on the Form 1.

42. There will be a non-parole period of 3 years commencing on 22 April 2019. You are eligible for consideration for release to parole on 21 April 2022. The balance of the sentence of   2 years commences on 22 April 2022, expiring on 21 April 2024. The total sentence therefore is 5 years.

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Decision last updated: 04 May 2020