R v Swift

[2023] NSWDC 486

District Court

New South Wales

Medium Neutral Citation:

R v Swift [2023] NSWDC 486

Hearing dates:

25 August 2023

Date of orders:

25 August 2023

Decision date:

25 August 2023

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence imprisonment for 3 years and 6 months with a non-parole period of 2 years 3 months

Catchwords:

CRIME — Drug offences — Supply prohibited drug — Not less than commercial quantity — Participate in criminal group

SENTENCING — Relevant factors on sentence — Form 1 offences — Plea of guilty — Objective seriousness

SENTENCING — Sentencing procedure — Instinctive synthesis

SENTENCING — Subjective considerations on sentence — Drug addiction — Childhood trauma — Mental health — Pro-social support — Special circumstances

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Procedure Act 1986 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Dungay v R [2020] NSWCCA 209

Hamzy v R (1994) 74 A Crim R 341

Jadron v R [2015] NSWCCA 217

Lloyd v R [2022] NSWCCA 18

Nasrallah v R [2021] NSWCCA 207

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57

R v Blair (2005) 152 A Crim R 462

R v Gavel [2014] NSWCCA 56

R v Millwood [2012] NSWCCA 2

R v MJB [2014] NSWCCA 195

R v Shi [2004] NSWCCA 135

R v Simpson [2001] NSWCCA 534; 53 NSWLR 704

R v Tuki (No. 4) [2013] NSWSC 1864

Stanton v R [2021] NSWCCA 123

Texts Cited:

W Wan, D Weatherburn, G Wardlaw, V Sarafidis and G Sara, “Supply-Side Reduction Policy and Drug-Related Harm” (2014) 486 Trends and Issues in Crime and Criminal Justice: Australian Government Institute of Criminology 1

W Wan, S Poynton and D Weatherburn, “Does Parole Supervision Reduce the Risk of Re-offending?” (2016) 49 Australian & New Zealand Journal of Criminology 497

Category:

Sentence

Parties:

Morgan Swift (the offender)
Director of Public Prosecutions (the Crown)

Representation:

Counsel:
S Fraser (for the offender)

Solicitors:
A Hughes for Public Prosecutions (NSW) (Crown)
Morrisons Law (for the offender)

File Number(s):

2021/254880

JUDGMENT – EX TEmpore revised

Introduction

1. Morgan Swift appeared in Court by video link, from the Mid North Coast Correctional Centre today. Through his counsel, Mr Fraser, he adhered to pleas that he had entered in the Local Court to offences of Participating in a Criminal Group pursuant to s 93T Crimes Act 1900 (NSW) and Supplying Not Less than the Commercial Quantity of cocaine pursuant to s 25(2) Drug Misuse and Trafficking Act 1985 (NSW).

2. He also asked that I take into account, when I sentence him for the supply offence, two matters on a Crimes (Sentencing Procedure) Act 1999 (NSW) Form 1, involving the Supply of 9.4 kilograms of cannabis pursuant to s 25(1) Drug Misuse and Trafficking Act and Knowingly Deal with the Proceeds of Crime being $20,000 cash, which was seized from him, pursuant to s 193C(2) Crimes Act. I ordered it be forfeited.

3. There is a related offence before the Court pursuant to a Criminal Procedure Act 1986 (NSW) s 166 certificate of Driving Using a Mobile Phone. That matter relates to the indictable matters but carries a fine as a maximum penalty. I indicated at the outset of the proceedings that it will be dealt with pursuant to s 10A Crimes (Sentencing Procedure) Act, it being inexpedient to impose any other penalty given the other penalties that must be imposed today.

Guilty plea

4. The guilty plea offered in the Local Court requires I reduce the otherwise appropriate sentences I will indicate by 25% to reflect the utilitarian value of the plea of guilty. I will take care when I accumulate, as I must, between the two offences, that that benefit not be eroded.

5. The plea of guilty also has other benefits; it shows an acceptance of responsibility and is indicative of remorse. Implicit in the early plea and acceptance of responsibility is a promise repeated in a letter I received from the offender that he has learnt something from the 2 years he has spent in custody. He has resolved to take any assistance he can in avoiding committing crime and returning to gaol. All matters I will take into account.

Standard non-parole period

6. It needs to be stressed from the outset that the offence of participating in a criminal group carries a maximum penalty of 5 years imprisonment: s 93T(1) Crimes Act 1900 (NSW). It needs to be stressed that the offence of supplying not less than the commercial quantity of prohibited drug, here 438.44 grams of cocaine, carries a maximum penalty of 20 years’ imprisonment. Parliament has said for an offence that falls, taking into account only objective factors, in the middle of the range, has a standard non-parole period, that is a standard minimum, of 10 years imprisonment.

7. While in no way prescriptive or determinative of my sentencing discretion those maximums are important guides to the exercise of my discretion and content must be given to the standard non-parole period.

Form 1

8. The matters on the Form 1 will be taken into account. I do not sentence for them, but they do lead to an increase in the sentence for the matter to which they relate; that is the supply. The increase recognises the need for personal deterrence and retribution for the crime for sentence: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 [39] to [42].

9. Whilst each is serious in their own right, the cash involves a proportion of the cash involved in the supply offence. The supply of the cannabis relates to the sort of business run by the criminal group. I have to take care when I take matters into account on a Form 1 that I do not then count them again when I come to assess the objective seriousness of the crime for sentence.

Agreed Facts

10. There are Agreed Facts before the Court. They are extensive. They reflect a police operation of some sophistication, which utilised a number of law enforcement intelligence techniques that I will not detail.

11. The material before me indicates that Daniel Bojlevski managed what is described as a sophisticated drug supply operation involving management of drug runners, the use of encrypted devices. The operation involved supplying a number of drugs of considerable quantity in the local area, drugs which he obtained from upline suppliers. He used Morgan Swift who was, it is accepted, addicted to cocaine, as one of his runners. At times Swift appears, from the material before me, to have seen himself as a willing apprentice. He was paid in cash and, one presumes, drugs, for his activities.

12. The expert evidence before the Court indicates that street level cocaine is typically sold in quantities which average from 0.1 to 0.2 grams, $50 to 1 gram, $200 to $600. Drug dealers, despite the fact that we moved to imperial measures last century still use ounces and pounds. An eighth of an ounce, or an 8-ball, being 3.5 grams, can sell for $1,200 to $1,400 and 1 ounce, $5,500 to $7,500. The average street price level – we now move to modern terms – for a kilo of cocaine being $180,000 to $280,000.

13. Those figures alone indicate the profits that can be made by those who engage in the sale and distribution of illicit drugs. The material before me indicates that, by comparison with the amounts that were made and the amounts in cash or drugs he received, Swift was at the bottom level of this operation. Although not a street-level dealer, he was engaged to take the risk; and the risks that he took led to him being arrested and imprisoned.

14. The community has to understand that involvement at any level in drug supply operations can result in gaol. To involve yourself in a criminal group of this nature, and supplies of the nature described here, will inevitably result in a custodial sentence of some length. No matter what excuses an offender can make and no matter what people think about the way drug laws are enforced, it is absolutely critical that the community understand that anyone who involves themselves, as Swift did, will lose their liberty unless exceptional circumstances prevail.

15. Effectively, Swift worked as a courier for his up-line supplier. The Agreed Facts detail quite a number of transactions. The cocaine transactions and the cannabis transactions (the Form 1 matter) were each rolled up. This accumulation was accepted by the defence, it has its advantages, but it also puts the offender into the commercial range of the penalty provisions which allows for a graded penalty and the range appropriate to commercial supplies. Cocaine weighing 438 grams is approximately midway between the large commercial quantity, 1 kilo, and the threshold commercial quantity, 250 grams.

16. Swift has the advantage of only one sentence rather than a number which could be accumulated, but it is an appropriate way of dealing with the matter: Hamzy v R(1994) 74 A Crim R 34; Jadron v R[2015] NSWCCA 217.

17. In such cases, were the aggravating circumstance in 21(2)(m) Crimes (Sentencing Procedure) Act to apply as an aggravating circumstance this would involve double-counting matters in aggravation, something I cannot do. That said, the number of transactions and the level of involvement in them is still a very relevant factor on sentencing.

18. The criminal group offence is particularised in the facts before me. In summary, it would appear that the offender was closely involved in it when police started their covert surveillance of Bojlevski in December 2020. He was monitored on numerous occasions during the course of the investigation and was detected supplying a prohibited drug either in company, with his co-offender, or at the direction of the co-offender. That participation included conveying large quantities of cash or prohibited drugs, handling proceeds of sales, arranging for safe houses and hire cars and dealing with the profits. At times he added additives to a prohibited drug before their supply.

19. The period of offending so far as that matter is concerned is important. It is from 1 January 2021 to 3 September 2021. That is the same period specified in the supply offence and it is intrinsic in the supply offence that he was doing so as part of a criminal group.

20. There were, however, separate transactions and separate things that were not captured in the supply events. I have to be, again, careful not to double-count matters that apply to each, but the separate criminality of the criminal group offence means that the supply matter does not totally encompass that offence, some modest independent punishment has to be imposed for activities involved with the group that are not covered by the facts relating to the supply offence.

21. Each of the transactions relied upon for both the Form 1 matter of supply cannabis and the cocaine matter are detailed in the Agreed Facts, which are extensive. I will not read them out. I will simply note that the Form 1 cannabis charge relates to a supply of 10 ounces of cannabis on 21 January 2021 and a Supply of 4.5 kilograms of cannabis leaf on 22 January 2021.

Chronology

• There was a supply of 3 grams of cocaine on 22 January 2021 and on 23 January 2021.

• There was a supply involving 85.02 grams of cocaine and some management of the proceeds, use of a safe house, and collection of cash.

• The facts reveal discussions with the principal about setting up a customer base; that is, plans for the future. As Mr Fraser points out, Swift is not to be punished for his future plans, but it shows his attitude and his involvement in the group.

• There was a supply of two packets, as I read it, of 113.36 grams of cocaine on 28 January 2021.

• There was evidence about large sums of cash being acquired by the principal and some of that cash being collected by Swift.

• On 12 February 2021 there is another recorded supply of 56.6 grams of cocaine; that is 2 ounces.

• On 27 February 2021 there was a further supply of 3.5 grams.

• On 28 February there was a supply of 6 ounces of cannabis at the direction of the principal.

• The next matter is a supply of 56.6 grams of cocaine at Bass Hill on 18 March 2021.

• A supply of 7 grams of cocaine on 31 March 2021.

• The next matter recorded is a supply of 4.5 kg of cannabis on 28 April 2021.

• I accept from the parties that it all adds up to the ‘rolled-up’ quantity.

• On 21 May 2021 Swift was stopped by police. He was searched and the sum of $20,000 was seized from him.

• The police operation obviously continued, but it is not suggested that he was detected offending from that date, 21 May 2021.

• He was arrested on 3 September 2021.

• At the time of his arrest a number of items consistent with supplying drugs were found. He has been in custody ever since.

22. The surveillance obviously revealed to police that in addition to his drug supply and criminal group activities he committed the driving offence of using a mobile phone. It is not at all surprising that people who flout the law in relation to crimes that carry maximum penalties of 20 years’ imprisonment show little compunction in breaking traffic laws where the fine is a maximum of $2,000.

Objective seriousness

23. The quantity of drugs is always important. It determines the penalty range, but it is not determinative of the actual penalty that must be imposed. Here, I have highlighted the number of transactions and the variation in amounts supplied at the direction of, or under, the guidance of the principal.

24. Swift was not himself, making significant profits from the business, the material before me indicates that he was paid cash amounts at various times. His role was subordinate, but he actively engaged in it for reward. At times he appeared to be a willing apprentice.

25. The drugs were being sold in wholesale quantities. It is clear from all the material before me, and accepted by the defence, that it was intended for eventual supply to the users of the drug. It is accepted, that this is a significant and serious example of a drug supply network. His involvement in it, while not high in the hierarchy, was regular and persistent. He well aware of the seriousness and significance of the operation and the nature of the group he chose to involve himself with.

26. There is no suggestion he was the principal or was making the huge profits many tend to make from such operations: R v Shi [2004] NSWCCA 135; R v Blair (2005) 152 A Crim R 462. But he was active, persistent, and willing.

27. The sentencing principles that require harsh, deterrent punishments apply to all those who engage in any level in such drug supply networks and criminal groups. Absent the involvement of people such as Swift, these distribution networks would collapse: R v Shi at [34].

28. As is common to most commercial supply offences, it was committed without regard to community safety, it was obviously part of an organised criminal activity, and he was doing so for personal profit. Again, while these factors are common and common to any assessment of such operation’s objective seriousness, care needs to be taken not to fall into the trap of double-counting matters that are part of a general assessment of objective seriousness, but which also might qualify as factors to be taken into account pursuant to s 21A(2): Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57.

29. As to the participation in the criminal group, he showed a high level of engagement and persistence, although under direction. He knew what was going on and why. He handled the drugs and the cash. He had actual knowledge of the acts being perpetrated by others and he took actions such as obtaining cars and safe houses to facilitate those actions: R v Tuki (No. 4) [2013] NSWSC 1864. Again, a serious example of an offence of this type.

30. As is obvious from; the Agreed Facts, the concessions of the defence and the submissions of counsel, each offence, whilst taking into account its objective features, is serious.

Record

31. The offender comes before the Court with no record of any moment, but the period of his offending is relevant. He has served nearly 2 years in custody, he was subject to restrictions and lockdowns during the pandemic, but there is no evidence before me that he suffered significantly beyond what was inflicted as a necessity on all prisoners. That said, I do not underestimate what prisoners had to endure by being locked in their cells and by restrictions to personal visits, programs, and education. Nevertheless, it appears during this time on remand he has taken every opportunity to engage in programs designed to better himself. These facts and his lack of criminal record requires some leniency be extended to him.

32. I note that he has been in custody since 6 September 2021. The sentence should date from that day.

Subjective case

33. The material in relation to Swift comes in a number of forms. I have received; references, certificates, statements from those who have been assisting him in the gaol, and a letter from his partner. She gives him prosocial support, which she says will continue. She has stood by him through problems that led to his arrest and subsequently during his time in custody. She is still there for him. He is a very lucky man; many others would abandon someone in such circumstances. She obviously sees the good in him.

34. Swift wrote a letter to me. It was not supported by evidence on oath, but it is relatively uncontroversial. He sets out some traumatic events that I will refer to obliquely during the course of these remarks; problems with domestic violence from a stepfather and sexual abuse. Those matters, he said, caused a lot of self-doubt, depression, and anger. The evidence before me indicates he took to drugs, at an age where he was too young to make rational choices, as a maladaptive coping mechanism for these feelings. He said:

“I don’t want this life. This life is not for me, being stuck in gaol. I have a beautiful partner who one day I want to make my wife and have a family together and give my kids everything and make sure they never go through what I went through as a kid.”

35. He speaks of the love of his mother and the grief he has caused her. He has sworn to his partner and mother that this will be the first and last time he goes to gaol; he wants to make things right.

36. Those are noble sentiments, but they will have to be tested in the community. Judges have to approach such remarks with a degree of cynicism because, sadly, we see the failures, we do not hear about the successes. But we know that there are people who, having spent time in gaol, never return, people with longstanding drug problems who can put those problems behind them with assistance.

37. I have the benefit, as always, of a report of Ms North, psychologist. She sets out his personal history, noting a history of exposure to domestic violence, physical abuse, and sexual abuse in the home, leaving him with a sense of abandonment. His father had no relationship with him, and his mother for a period was with a stepfather who committed offences.

38. Ms North notes the strong prosocial impact of his present partner. In relation to his mental health, she notes that he has experienced symptoms of depression and anxiety since very young. In her opinion, he has a Stimulant Use Disorder, currently in remission.

39. In relation to his history of childhood trauma she recommends that upon release he engages with a psychologist with a Mental Health Care Plan through a GP. It appears that he has not received any psychological treatment while he has been in custody, and it is unlikely he will get it in the period remaining on his sentence. He has, however, sought to utilise his time in gaol to his advantage and that fact is some guide to his level of remorse, and his prospects for the future.

35. He will need childhood trauma victim support. He will need psychological therapy. He will need help adjusting to normal community life. They are all matters that support an uncontroversial finding of special circumstances so that he has longer on parole subject to supervision and guidance.

Submissions

41. The submissions of the parties, both in writing and orally, do not differ significantly. Obviously, they leave it to me to formulate an appropriate sentence, but in terms of principle, after some discussion about what matters I should or should not take into account, they are similar. I sought to address those written and oral submissions in these remarks.

42. It is accepted that the offender’s moral culpability for these crimes can be reduced. He did not have a positive background that many in the community enjoy. Matters relevant to a reduction of an offender’s moral culpability, which then can reduce the sentence that must be imposed, include:

1. The effects of childhood deprivation: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37;

2. Childhood trauma such as being the victim of a sexual assault: Nasrallah v R [2021] NSWCCA 207; and

3. Mental health issues: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].

43. Often, they are interrelated sometimes; here, inextricably so.

44. Evidence of a deprived background is a relevant factor on sentencing: Bugmy v The Queen; R v Millwood [2012] NSWCCA 2 at [69]. The prevailing view is that it is not necessary to establish the existence of a causal connection with the offending before having regard to what are often called Bugmy factors: Dungay v R [2020] NSWCCA 209 at [136] to [153]; Lloyd v R [2022] NSWCCA 18. But, as the Court said in Dungay, while these matters must be given full weight that does not mean that moral culpability must be reduced.

45. Here however, full weight, can be given to these matters as part of the instinctive synthesis process. Again, I do not double count those matters but I do note that sexual assaults can have a profound and highly detrimental impact on a child so assaulted: R v MJB [2014] NSWCCA 195 at [49]; R v Gavel [2014] NSWCCA 56; Stanton v R [2021] NSWCCA 123 at [67]; Nasrallahv R at [100] to [102]. Such matters are relevantly taken into account when one is punishing child sex offenders and it is appropriate that the impact of child sexual assault on an offender be taken into account as relevant by way of mitigation of sentence.

46. While a court cannot take into account as a mitigating factor the fact that the crime was committed while the offender was affected by drugs or to obtain drugs for his own personal use or funds to purchase drugs drug use and addiction; the fact of an addiction, how it came about, when it came about, and the genesis for it, are very relevant. In particular such matters help explain why he did what he did and involved himself in what he did: R v Henry at [273]. And those matters are very important when it comes to assessing his progress towards rehabilitation. If appropriate, support can be given to him. It may be he can turn his life around.

47. It requires some reduction here in the need for a general deterrent sentence. But general deterrence is still, as I opened these remarks, an important principle. Others in the community have to understand the retributive sentences will be imposed if they commit such offences.

48. I am prepared to accept that Swift’s time in gaol to date is sufficient specific deterrence. His prospects, if he receives treatment and support, are reasonable.

49. There are two matters before the Court. Some accumulation is necessary, and the total sentence should be a just and appropriate measure of the criminality involved. It should also take into account the subjective factors.

50. There will be a finding of special circumstances for the reasons outlined. But the minimum term must still reflect and meet all the purposes of sentencing, including appropriate punishment: R v Simpson[2001] NSWCCA 534; 53 NSWLR 704 at [59]. The community should understand that offenders who receive supervision are less likely to reoffend in as serious a manner than those who are not: W Wan, S Poynton and D Weatherburn, “Does Parole Supervision Reduce the Risk of Re-offending?” (2016) 49 Australian & New Zealand Journal of Criminology 497

51. Any release will be subject to a decision by the State Parole Authority. They will require a positive report, so far as community safety is concerned. But if Swift continues the way I expect, he should be released to parole.

Synthesis

52. When I consider the quantity of drugs, the harm that drugs cause the community, the community interest in appropriate and just punishment, there must be a significant custodial sentence. But the community has to understand that the problems used by illicit drug use cannot simply be solved by arresting and gaoling our way to a solution: W Wan, D Weatherburn, G Wardlaw, V Sarafidis and G Sara, “Supply-Side Reduction Policy and Drug-Related Harm” (2014) 486 Trends and Issues in Crime and Criminal Justice: Australian Government Institute of Criminology 1.

53. When it comes to offenders such as Swift who took up the use and abuse of drugs following a series of traumas in their early lives, every effort has to be made in the interests of the community in ensuring that they are reintegrated into the community and given an opportunity to rehabilitate. I will give him that opportunity, by what many might regard as a lenient sentence.

54. His progress in custody is encouraging, his prosocial support is encouraging. He may, with assistance, turn his life around.

Orders

55. So far as the s 166 matter is concerned, it is inexpedient to impose any other penalty. There will be a s 10A disposition.

56. Each indicated sentence reflects a 25% reduction for the utilitarian value of the plea of guilty. There will be a finding of special circumstances.

57. In relation to the criminal group offence, I indicate a sentence of 1 year and 6 months. In relation to the supply, I indicate a sentence of 3 years, the non-parole period is 2 years.

58. The term of the sentence is 3 years and 6 months, the non-parole period is 2 years 3 months. The sentence will commence on 6 September 2021. Swift will be eligible for consideration for release to parole on 5 December 2023. The balance of term, reflecting a finding of special circumstances, is 1 year and 3 months commencing on 6 December 2023. The sentence expires on 5 March 2025.

59. I confirm the forfeiture order of $20,000.

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Decision last updated: 14 November 2023