R v Templeton

[2024] NSWDC 254

District Court

New South Wales

Medium Neutral Citation:

R v Templeton [2024] NSWDC 254

Hearing dates:

7 June 2024

Date of orders:

28 June 2024

Decision date:

28 June 2024

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Ian William Templeton is convicted.

2   I impose a term of imprisonment of 8 years with a non-parole period of 5 years to date from 31 May 2021. The non parole period will expire on 30 May 2026 and the head sentence will expire on the 30 May 2029.

3   The offender will be eligible to be released on parole on 30 May 2026.

Catchwords:

CRIME — Drug offences — Supply prohibited drug — Large commercial quantity

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Drug Misuse and Trafficking Act 1985

Weapons Prohibition Act 1998

Cases Cited:

Attorney General’s Application No 1 of 2002 (2002) 56 NSWLR 147

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Rex (Crown)
Ian Templeton (Offender)

Representation:

Counsel:
A Djemal SC (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Blaxland Law (Offender)

File Number(s):

2021/156016

Publication restriction:

None

Judgment

1. Ian William Templeton (the offender) appears for sentence after pleading guilty in the Local Court to one count of supplying a large commercial quantity of cocaine contrary to s 25(2) Drug Misuse and Trafficking Act 1985.

2. The maximum penalty for the offence is life imprisonment and/or a fine of 5,000 penalty units. Parliament has also prescribed a standard non-parole period of 15 years.

3. The offender also asks the Court to take into an account an offence of possess prohibited weapon contrary to s 7(1) Weapons Prohibition Act 1998, on a Form 1 when passing sentence for the drug supply offence.

Approach to Sentencing

4. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

5. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of the Act.

6. The offender entered a plea of guilty in the Local Court and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

7. I have taken into account the principles outlined in the guideline judgment relating to the Form 1 offences: Attorney General’s Application No 1 of 2002 (2002) 56 NSWLR 147.

Facts

8. The parties presented an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

9. The offender was detected through his use of an AN0M encrypted mobile telecommunication device. He subscribed to the platform with the username “Deadpool” on 11 February 2019 and maintained his subscription until he was arrested on 31 May 2021.

10. The offender supplied a total quantity of 7,697.7 grams of cocaine to various people on 23 separate occasions, in the period 13 May 2019 to 31 May 2021. The supplies were arranged through an exchange of text messages on the AN0M platform.

11. On 13 May 2019, the offender supplied 56 grams of cocaine to another AN0M user, “Motogpman” in exchange for $14,000 at his residence in Narrabeen.

12. On 20 May 2019, the offender supplied 42 grams of cocaine to Motogpman in exchange for $10,500 at his residence in Narrabeen.

13. On 25 May 2019, the offender supplied 14 grams of cocaine to Motogpman in exchange for $3,500 at his residence in Narrabeen.

14. On 6 September 2019, the offender purchased 280 grams of cocaine from another AN0M user, “Killaburger” at Mona Vale Hospital for an agreed sum of $59,000 of which the offender paid $35,000 at the exchange. In this transaction the offender was upsold to 10 ounces by Killaburger and offered him the opportunity to “take books” when Killaburger was gone. On 7 September 2019, the offender took another $8,000 in cash and left it in his garage for Killaburger to collect.

15. On 10 September 2019 Killaburger provided the offender with 22.5 grams of cocaine at his residence in Narrabeen in exchange for $4,741.

16. From 16 September 2019 to 30 September 2019 the offender attempted to source a kilogram of cocaine from Killaburger on behalf of a Queensland buyer. The offender engaged in multiple text message discussions on the platform with Killaburger about various “stamps”, quality of the product and the pricing of kilogram blocks available for supply to the Queensland buyer. This attempt however did not progress further than discussions and a price was never agreed on.

17. On 1 October 2019 Killaburger supplied the offender with 10 ounces of cocaine for $62,000 at the offender’s residence in Narrabeen.

18. On 13 October 2019 Killaburger supplied the offender with 5 ounces and 27.5 grams of cocaine near an entrance of Warriewood Square.

19. On 21 October 2019 Killaburger supplied the offender with 5 ounces and 24.5 grams of cocaine for an agreed sum of $6,000 at the offender’s residence in Narrabeen.

20. On 2 November 2019 Killaburger supplied the offender with 5 ounces of cocaine at Killaburger’s residence.

21. On 25 November 2019 Killaburger supplied the offender with 10 ounces of cocaine for an agreed sum of $64,000 at Officeworks Mona Vale. It was confirmed in a text message following the exchange that the offender paid Killaburger $35,000 at the time of delivery.

22. On 8 December 2019 Killaburger supplied the offender with 10 ounces of cocaine for an agreed sum of $64,000 at Mona Vale Road, Manly.

23. On 17 December 2019 Killaburger supplied the offender with 164.3 grams of cocaine for an agreed sum of $38,400 nearby the Post Office at Mona Vale. Following the supply, the offender confirmed via text message on the platform that he had paid Killaburger $32,000 and still owed $6,400 in respect of this supply of cocaine.

24. On 24 May 2020, the offender supplied 3 ounces of cocaine to Motogpman in exchange for $22,200 at his residence in Narrabeen.

25. On 12 June 2020, the offender supplied 5 ounces of cocaine to Motopgman at his residence in Narrabeen for $35,000 with 2 ounces on “tick”, meaning that Motopgman would pay for 3 ounces at the time of the exchange and pay the balance at a later date. The supply was arranged through the exchange of text messages on the platform, during which the offender upsold Motopgman to 5 ounces by offering him a “better price” if he took this amount.

26. On 4 November 2020 Killaburger text messaged the offender and another user of the platform “Dontstop”, stating that Dontstop will be the “guy to contact” after the supply of cocaine the following day. On 5 November 2020, a driver delivering on behalf of Dontstop supplied a “book”, namely 1 kilogram of cocaine to the offender at Checkers Resort Mona Vale. The supply, by way of a “bag swap”, was arranged by Killaburger through the exchange of text messages to the group chat on the platform.

27. On 7 December 2020, another user of the platform “91d8e5” supplied the offender with 1 kilogram of cocaine which was delivered to the offender’s residence in Narrabeen. The supply was arranged through the exchange of text messages in a group chat with 91d8e5, Dontstop and the offender on the platform. In a text message exchange with Dontstop on the platform following the delivery, the offender questioned the quality of the cocaine supplied, and the meaning of the “stamp” after receiving complaints from his buyer in Queensland. Dontstop assured the offender that the cocaine supplied was “A grade” and after numerous exchanges, the offender confirmed that the Queensland buyer was keeping the cocaine.

28. On 11 January 2021 a co-offender, Maxwell Myers, supplied 140 grams of cocaine to the offender for an agreed sum of $40,500 in the vicinity of Mactier Street, Narrabeen. The supply was negotiated and arranged through the exchange of text messages between 1:14pm on 8 January 2021 and 9:30am on 11 January 2021 on the platform.

29. On 29 January 2021, Mr Myers under AN0M username “Pool” purchased 1 kilogram of cocaine from Dontstop for $275,000 at Brookvale Oval. Between 27 January 2021 and 29 January 2021, the offender took part in discussions via text message and agreed to the splitting of the purchase price of 1 kilogram of cocaine three ways between himself, Mr Myers and another user of the platform “Hannibal”. During these discussions Mr Myers sent the offender images of the “disk” of cocaine to be purchased. At 10:30am on 29 January 2021 the offender dropped off $183,340, part of which he received from Hannibal earlier that day to Mr Myers at Brookvale Oval. At 7:30pm Mr Myers delivered to the offender’s residence in Narrabeen two thirds of the 1 kilogram “disk” of cocaine which was subsequently split between them. This supply was arranged through the exchange of text messages on the platform Ciphr.

30. On 9 February 2021 Mr Myers supplied the offender with 1 ounce of cocaine near Mactier Street, Narrabeen as a sample to “test”. This was followed by the offender’s decision not to source 1 kilogram of cocaine on behalf of his Queensland buyer from Dontstop on 2 February 2021 as the price had surged to $278,000. The supply from Mr Myers was negotiated and arranged through the exchange of text messages on the platform.

31. On 12 February 2021 Mr Myers supplied the offender 1 kilogram of cocaine for an agreed sum of $236,000 at his residence in Narrabeen. Payment to Mr Myers for this supply of cocaine was made by the offender the following day at Brookvale Oval. Arrangements for both the delivery of the cocaine and transfer of the money were made through the exchange of text messages on the platform.

32. On 2 March 2021, Mr Myers supplied the offender 252 grams of cocaine for an agreed sum of $70,000 at the offender’s residence in Narrabeen.

33. On 14 April 2021 Mr Myers supplied the offender with a clear plastic bag of cocaine, which was to be split between him and Hannibal, for an agreed sum of $180,000 (including $90,000 the offender was paid by Hannibal) behind Brookvale Oval. The offender retained 333 grams of the cocaine supplied. The offender arranged for Mr Myers to receive this delivery through the exchange of text messages with Dontstop on the platform. Following the delivery, Mr Myers confirmed via text message on the platform, that the offender owed an additional $200 as his payment was short.

34. On 12 May 2021 Mr Myers attended the offender’s residence in Narrabeen with a 1.5 kilogram bag of cocaine which was split between himself, the offender and Hannibal (each receiving 500g) for an agreed sum of $138,500 each. Hannibal subsequently attended the offender’s residence to pick up his share of the cocaine and provided payment of $135,000 to the offender to pass on to Mr Myers.

35. At about 8:40am on 31 May 2021, the offender was observed leaving his home address in Narrabeen in his motor vehicle. He met with co-offender, Glen Mason, in Terrey Hills and were observed in conversation for several minutes. The offender drove with Mr Mason to nearby Tepko Street in Terrey Hills where they parked directly behind Mr Mason’s motor vehicle. The offender returned to the passenger side of his own vehicle. Mr Mason then retrieved a red coloured shopping basket and a heavily loaded green coloured fabric shopping bag from his vehicle which he placed into the passenger side of the offender’s vehicle. Mr Mason and the offender then left in their respective motor vehicles. The offender was followed by police back to his residence in Narrabeen, with Mr Mason arriving shortly after the offender. At about 9:50am Mr Mason left the offender’s residence and proceeded alone to Austral. He was observed walking around retail areas and driving through side streets in Austral. At about 12:00pm, Mr Mason was observed on Twelfth Avenue, Austral. A short time later, he met a co-offender Mathew Canderle. Mr Canderle handed Mr Mason a Coles shopping bag before driving away. At about 12:15pm Mr Mason was stopped by police, his car was searched and he was subsequently conveyed to Liverpool Police Station. During the search of Mr Mason’s car, police located a Coles plastic bag inside the driver’s door frame containing 996.9 grams of cocaine with a purity of 80% and a satchel behind the driver’s seat containing $10,000 cash.

36. At about 1:00pm the offender was arrested leaving his residence in Narrabeen. At 2:10pm police executed a search warrant at the offender’s residence. They located the same green coloured fabric shopping bag, provided to the offender by Mr Mason, inside a laundry basket in the main bedroom. Inside the bag were three plastic bags containing a combined total of $283,000. Police located the offender’s AN0M encrypted device in the lounge room.

37. Inside a wall unit within the lounge room police located an Electric Controlled Device (taser), which investigators confirmed was active and capable of discharge.

38. The offender’s AN0M communications indicated he was relaying information to Mr Mason regarding the drug exchange with Mr Canderle. The additional $5,000 provided by Mr Mason to the offender was his payment for brokering the supply between Mr Mason and the supplier of the drugs. The offender was to hold the $278,000 until 1 June when he was expected to provide it to the upline supplier.

The Offender’s Case on Sentence

39. The offender relies on the following documents:

1. psychiatric report of Dr Sathish Dayalan dated 18 December 2023;

2. affidavit of David Long affirmed 6 June 2024;

3. signed character reference of Nina Lees dated 21 May 2024;

4. signed character reference of Sharon Avkian dated 29 May 2024;

5. signed character reference of David Avakian dated 30 May 2024;

6. signed character reference of Richard Travis dated 20 May 2024;

7. signed letter prepared by Dr Adelle Addison dated 29 May 2024;

8. signed letter prepared by Dwayne Billings dated 25 April 2024;

9. signed letter prepared by Lawrence Gresser dated 20 March 2024;

10. Department of Corrective Services Case Notes;

11. Certificates of completion awarded to the Offender;

12. positive COVID-19 test dated 28 February 2022;

13. document regarding lock-in days in custody; and

14. affidavit of Ryan Gregory affirmed 6 June 2024.

40. The following is a precis of the evidence relied upon by the offender.

41. The offender is a 58-year-old man with no dependants. He was born in the Northern Beaches, New South Wales. He is the only child to his parents, and he shares a close relationship with his mother. His father died 25 years ago. His father had been largely absent from home due to working long hours. There had been no exposure to domestic violence or substance use in the home during the offender’s childhood.

42. When the offender was 16 years old, his father suffered a stroke. As a result his father was transferred to Brisbane for work which necessitated in the relocation of the family. The offender was reluctant to move to Brisbane as he had an established circle of friends. Character references of his long-term high school friends, Nina Lees, Sharon Avakian and David Avakian, outline that the offender was very intelligent and good at school. At school in Brisbane, he felt out of place and uncomfortable.

43. At the age of 17 years the offender left school and moved back to Sydney. He lived in a bungalow at the back of a friend’s house. During this time the offender began to use cannabis and acknowledged during his psychiatric assessment that he quickly developed dependence on the substance. He continued to use cannabis until his arrest.

44. The offender’s use of substances progressed to amphetamines when he turned 20 and after a year, he started using cocaine. He continued to use cocaine intermittently until he started smoking crystal methamphetamine in his early 40s. He denied any problems with the use of alcohol. David Long in his affidavit, stated that he was aware that the offender used illicit substances since his teenage years and clearly noticed the effects of his substance use from around 2009 as he “lost weight, was on edge and always in a rush”.

45. After leaving school the offender attempted to complete a course in real estate but discontinued this course due to a back injury.

46. The offender’s employment history included working in construction for 15 years. He purchased a truck and worked in rubbish removal for eight years. He operated a labour hire company but had found it very stressful. He managed a tow truck company for three years, but the business failed. Subsequently he started working in IT. He had not undertaken any formal training in IT and his knowledge was largely gained through self-education and mentoring at work.

47. Richard Travis, bricklaying contractor in Sydney, stated in his letter to the Court that the offender had worked for him on numerous occasions and has always been reliable, honest, hardworking and respectful.

48. The offender reported to the psychiatrist that he has been single for the majority of his adult life and has not been in a romantic relationship for 12 years. The offender’s longest romantic relationship lasted seven years. His partner had also used crystal methamphetamine. He accepted that his substance use impacted his relationships.

49. The offender suffers from a gastrointestinal disorder that causes a dysfunction of the oesophageal muscle. He has difficulty swallowing. An endoscopy has been recommended but the offender worries this would result in him being transferred to another Correctional Centre and that he would not receive adequate follow up care after a medical procedure. He also suffers from hypertension and has received treatment for this condition.

50. The offender has also sustained head injuries with associated loss of consciousness whilst playing football. He was not aware of any long-term consequences from the head injuries when being assessed by the psychiatrist and has not had a brain scan.

51. The offender does not have a history of suicidal thoughts or behaviour but recalled to the psychiatrist instances when he wished he was dead. He had periods of low mood, especially in the context of stressful life events such as the ending of a romantic relationship in the 1990s and being forced to leave his home. The offender admitted to the psychiatrist that his use of substances increased when he felt low in mood.

52. When using substances, the offender had felt paranoid that people were going to rob him, or police would catch him. He denied experiencing hallucinations or having a history of panic attacks or manic episodes.

53. Around the time of the offences, the offender had smoked crystal methamphetamine most days, using around a couple of grams each week. He smoked cannabis daily. He reported to the psychiatrist that despite feeling energised and happy on the drug, he had difficulty concentrating and completing tasks. He recalled experiencing impaired sleep and increased irritability. His self-esteem had been low and he became socially isolated and withdrawn.

54. Mr Long in his affidavit and Ms Lees and Mr Avakian in their character references, stated that the offender’s drug use increased in the period prior to his arrest and that this changed his behaviour. Ms Lees also stated that the offender had “new” friends and did not interact in his long-standing social circles.

55. The offender expressed remorse to the psychiatrist and his character referees for his offending conduct and acknowledged that this conduct would have caused harm to others in the community.

56. Following his incarceration, the offender has abstained from using illicit drugs. He has undertaken a number of programs and courses whilst in custody including the EQUIPS Addiction program, the Salvation Army Positive Lifestyle Program (PLP) and courses in business, food handling, waste management and first aid. In his letter to the Court, Laurence Gresser, Chaplain, stated that the offender has engaged deeply with the PLP during sessions and has impressively shown insight into his life and behaviour.

40. The offender has also maintained employment while in custody, working as a kitchen clerk since August 2021. Dwayne Billings, overseer of the kitchen, stated in his letter to the Court that the offender has always displayed a good work ethic, working seven days a week and seeks to help other inmates by mentoring them to do the right thing.

41. While in custody, the offender has spent a total of 166 days “locked in” due to COVID-19 restrictions, including multiple days without access to hot water for showers. The offender tested positive for COVID-19 in late February 2022 and was isolated. He experienced COVID-19 symptoms including severe headaches, chest pains and vomiting.

42. The offender worries about the welfare of his mother who is 93 years of age and lives on her own. Dr Adelle Addison states that the offender’s mother has mild macular degeneration and hypertension. She has pain in her left hip region with severe osteoarthritis and a hernia in her lower abdomen. The offender’s mother lives alone and has reduced mobility. The offender reported to the psychiatrist that he is keen to support his mother after his release. The character references of Ms Lees, Ms Avakian and Mr Avakian state that the welfare of his mother is very important to the offender and that he maintains close contact with her.

43. The psychiatrist opines that the extent of the use of substances, unsuccessful efforts to cut down on use, persistent use despite being cognisant of adverse effects and prioritisation of drug seeking behaviour, indicate the offender suffers from cannabis and stimulant use disorder. He further states that the cessation of substance use following the offender’s incarceration has resulted in remission of these symptoms confirming the correlation between his symptoms and his substance use. The offender’s drug seeking behaviour probably impaired his capacity to appreciate the wider consequences of his offending behaviour around the time of the offences. The psychiatrist opines that there is not sufficient evidence to indicate that the offender had suffered from a major mood, anxiety or psychotic disorder. Provided that the offender engages in continued drug rehabilitation, the psychiatrist considers the offender to have favourable prospects of rehabilitation.

Consideration

Objective seriousness

61. The offence took place over a two year period with 23 separate supplies involving the exchange of significant amounts of cash. The supplies were arranged through encrypted communications mainly on the AN0M platform. The offender’s involvement was not sophisticated in that he arranged a number of the transactions to take place at his residence. There were steps taken to avoid detection with the offender mainly relying on the assumed security of the AN0M platform.

62. The offender supplied a total quantity of 7697.7 grams of cocaine. The amount of the cocaine supplied was about 7.7 times the large commercial quantity.

63. The offender supplied cocaine to support his own use of methylamphetamine. He obtained supplies of cocaine from a limited number of sources and in turn supplied that cocaine to a limited number of people. He traded in what could be described as wholesale amounts. As time went on, the amount involved in the transactions increased. The offender operated mainly as a sole trader and did not appear to be part of a larger drug supply organisation.

64. I have taken into account the maximum penalty for the offences and the standard non parole period as legislative guideposts to the appropriate sentence.

Deterrence

65. General deterrence is a fundamental consideration in serious drug offences. The sentence must be of such a severity to deter others from engaging in drug related activities. The sentence must signal to would be participants in the drug trade that financial and other rewards will be neutralised by the risk of severe punishment.

66. There is some need for specific deterrence but it is reduced for the reasons that follow. The offender has good insight into the circumstances that led to his offending, in particular, his long standing drug addiction. He has been abstinent in custody and has applied himself to courses with the intent to address his drug addiction and to rehabilitate himself. He is willing to accept intervention and has family and community support.

Aggravating factors

67. There are no relevant aggravating factors.

Mitigating factors

68. The offender did not have a significant record of prior convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The offender was 52 years of age at the time of the offending.

69. The offender was a person of good character: s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999. The offender had a good work history and was a respected member of the community.

70. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has completed a number of courses in custody and is prepared to accept intervention to assist him to deal with his drug addiction. He has applied himself to work offered to him in prison. He has been a model prisoner. The offender also has the support of his friends and his mother. I am satisfied that he is dedicated to change and that he has excellent prospects of rehabilitation.

71. The offender has demonstrated remorse: s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999. The offender has expressed remorse to the psychiatrist and to his character referees. He has accepted responsibility for his actions and I am satisfied that he is genuinely contrite.

72. I have taken into account the conditions imposed on prisoners in New South Wales in response to the COVID-19 pandemic, which I accept may continue to be imposed for some time into the future. I am satisfied that the offender’s time in custody has been made more onerous by the restrictions imposed to deal with the COVID-19 pandemic.

73. I will backdate the sentence imposed to 31 May 2021 to take into account the offender’s pre-sentence custody.

74. I have had regard to parity. Mr Myers pleaded guilty and was sentenced to an aggregate term of imprisonment of 7 years with a non-parole period of 4 years and 2 months by Noman SC DCJ. The offender sourced about 2.2 kilograms of cocaine from Mr Myers. Mr Myers had access to large amounts of cocaine and acted as a wholesaler who was higher up the chain than the offender. Mr Myers participated to obtain drugs for his own use. He was 31 years of age at the time of sentence and had had a drug addiction since his teenage years. The offender was involved in many more drug supplies involving a much higher quantity than Mr Myers.

Penalty

75. Ian William Templeton is convicted.

76. I have considered s 5 of the Crimes (Sentencing Procedure) Act 1999 and I am satisfied that having considered all possible alternatives that no penalty other than imprisonment is appropriate.

77. I make a finding of special circumstances. This is the offender’s first time in custody and he has drug addiction issues that justify a longer period on parole.

78. I impose a term of imprisonment of 8 years with a non-parole period of 5 years to date from 31 May 2021. The non parole period will expire on 30 May 2026 and the head sentence will expire on the 30 May 2029.

79. The offender will be eligible to be released on parole on 30 May 2026.

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Decision last updated: 01 July 2024