R v Thomson

[2020] NSWDC 577

District Court

New South Wales

Medium Neutral Citation:

R v Thomson [2020] NSWDC 577

Hearing dates:

21 August 2020

Date of orders:

21 August 2020

Decision date:

21 August 2020

Jurisdiction:

Criminal

Before:

M L Williams SC DCJ

Decision:

A term of imprisonment of 12 months to be served by way of an intensive corrections order pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999: at [11].

Catchwords:

SENTENCING — Mitigating factors — Rehabilitation — Remorse — Unlikely to re-offend — Plea of guilty

SENTENCING — Penalties — Intensive correction orders

SENTENCING — Relevant factors on sentence — Circumstances of offence — Multiple offences — Maximum penalty — Objective seriousness

SENTENCING — Subjective considerations on sentence — Drug addiction — Health issues

Legislation Cited:

Drug Misuse and Trafficking Act 1985

Crimes (Sentencing Procedure) Act 1999

Law Enforcement (Controlled Operations) Act 1997

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Sentence

Parties:

Regina (Crown)

James Thomson (Offender)

Representation:

Ms Tasneem (Solicitor Advocate for the Crown)

Ms Fernando (Counsel for the offender)

File Number(s):

2019/176835

Publication restriction:

Pursuant to s 7 of Court Suppression and Non-Publication Orders Act 2010, there is to be no publication of the assumed identity or of any document that identifies, or might facilitate the identification of the assumed identity of the witness known by the pseudonym “Ken”.

Judgment

1. James Thompson, born in 1962, and is now an invalid pensioner using two crutches for mobility, has pleaded guilty to five counts in relation to the supply of heroin in early 2019. The first three of the counts are contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985 of ongoing supply, each of which carries a maximum penalty of 20 years imprisonment, with no standard non parole period. The remaining two counts are offences contrary s 25(1) Drug Misuse and Trafficking Act 1985 of supply a prohibited drug attracting a maximum penalty of 15 years imprisonment, with no standard non parole period.

2. The maximum penalties, of course, have to be taken in to account as yard sticks in the sentencing process, as too are the purposes of the sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.

3. The pleas follow the accused being indicted on 15 counts arising out of his dealing of heroin between 20 January 2019 and 13 May 2019. The evidence in the case was subject to challenge on a voir dire which was determined earlier today. The accused came under notice because police set up a controlled operation under the Law Enforcement (Controlled Operations) Act 1997, using a former heroin addict known as Ken. They supplied him with money, fitted him with recording equipment and obtained recordings of Ken conducting purchases of heroin for cash with the accused on various dates. The challenge to the admissibility of the evidence was rejected, and following pleas of guilty no further evidence as to the facts of the case was tendered, but Ms Fernando relies upon some subjective material to which I will turn.

4. The first count (Count 1 on the indictment) covers three supplies on 23, 24 and 29 January 2019 in which $100 was paid on each occasion for 0.11 grams, 0.17 grams and 0.16 grams of heroin. The second count (Count 5 on the indictment) covers supplies of 0.96 grams for $350 on 31 January 2019, 0.93 grams for $350 on 1 February 2019 and 0.92 grams for $350 on 6 February 2019. The third ongoing supply count (Count 9 on the indictment) covers four supplies of between 0.17 and 0.21 grams of heroin between 7 February 2019 and 5 March 2019 for $100 on three occasions and an unspecified sum on the fourth. Count 14 on the indictment, the first individual supply count, covers $100 supply of 0.22 grams on 26 March 2019. And, the final count (Count 15 on the indictment) is a supply of 0.050 grams for $50 on 13 May 2019.

5. The submissions that Ms Fernando put on the voir dire and usefully be adopted in the sentence proceedings that each of the alleged offences of supply was to the same, well-known individual with a long standing addiction to heroin. All the alleged offences took place in the home of the accused. They were for less than the defined small quantity for heroin. In total all the heroin allegedly supplied was 4.33 grams, less than the indictable quantity for a single supply charge. Even taking in to account, the additional potential supply for the supposed debt of $125, the total quantity was less than the indictable quantity for a single supply charge.

6. There was no evidence of the accused having any apparent wealth; the evidence suggests that he had been having difficulties with his utility providers (presumably gas or electricity) who had cut off service. He had been in hospital and lost his Centrelink payment. There were no drugs found on him or in his home when he was arrested. Detective Senior Constable Webster said that street level dealers, presumably meaning this accused, were responsible for the supply of small amounts of prohibited drugs in order to fund a modest life style or to fund their own drug use and I accept that this accused fell into the latter category.

7. The accused had known Ken for many years and they had used heroin together in the past. His criminal record is unremarkable. He has had no offences of drug supply. He was in custody between 6 June and 14 June after being arrested on these charges and then, under some very difficult circumstances due to his mobility issues, he underwent daily reporting for several months and reporting three times per week for the last ten months. The only time in custody he spent was 12 months after a conviction for break enter and steal in 1996.

8. Detective Senior Constable Webster, who was very experienced in the investigation of low to mid-level drug supply in the relevant area, said that he had never heard of Thomson before. The evidence shows that he has been on the methadone program for three years and that the short period in custody after his arrest has led, in the view of his GP, to a very clear change in his life choices. He no longer wants to engage in recreational drug use. He wants to be a father to his son and remove the chaos from his life. His negative urinary drug screening since his release from custody supports the fact that he has a real conviction to change his direction. His health is not good. He has a number of conditions and takes a significant quantity of medication. He requires two walking sticks for walking up to 20 metres and a wheelchair for distances great than 20 metres.

9. There are no aggravating factors pointed to, or apparent in the evidence. I accept there is a clear inference from the expressions of his GP that there is remorse and a desire to continue rehabilitation. I take into account his pleas of guilty and his relatively good record. I also find that he is unlikely to re-offend, given the circumstances that I have outlined. It is clear that the objective seriousness of this offending was at the very low level.

10. It is appropriate, however, that the Court takes account of the seriousness of drug supply offences as indicated by the maximum penalties, to which I have referred. There is no dispute from Ms Fernando that a term of imprisonment is justified, but that such term of imprisonment, bearing in mind the period in custody and the reporting conditions to which I have referred, and the very low level of objective seriousness, should be well under three years and that it would therefore be appropriate to deal with the matter by way of term of imprisonment served by way of an intensive corrections order.

11. I make the following sentence orders:

1. The offender is convicted of each offence.

2. The indicative sentences are:

1. Count 1: 8 months;

2. Count 5: 8 months;

3. Count 9: 8 months;

4. Count 14: 2 months;

5. Count 15: 2 months.

3. There being no other appropriate penalty, I impose an aggregate sentence of imprisonment of 12 months.

4. Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999, the court directs the sentence to be served by way of an intensive corrections order commencing today.

5. The offender is to report to the OIC at the City office of CCS by 5pm Friday 28 August 2020.

6. The conditions to apply during the term of the order are as follows:

STANDARD CONDITIONS

1. You must not commit any offence.

2. The offender is to be placed under the supervision and guidance of the Community Corrective Services for as long as that Service deems necessary or desirable, but not exceeding the term of the order and the offender is to obey all reasonable directions of that Service (including any direction or instructions to undertake examination, assessment, therapy, treatment, counselling or urinalysis) whilst under supervision and guidance.

ADDITIONAL CONDITIONS

3. Abstain from the consumption of illicit drugs and continue to participate in the methadone program as prescribed by Clinic 36 or other treating medical practitioner.

7. Failure to comply with the conditions of this order may result in further sanctions may be imposed by the Commissioner of Corrective Services or State Parole. Those sanctions may include a formal warning, imposing more stringent conditions, or it may include revocation of this order.

8. The offender is to attend the Registry for finalisation of the intensive corrections order.

DRUG DESTRUCTION ORDER

9. I order the destruction of the drugs obtained during the investigation.

12. HIS HONOUR: So do you understand that, Mr Thomas?

13. OFFENDER: Yeah, I do, your Honour.

14. HIS HONOUR: So term of imprisonment to be served by way of intensive corrections order. I'm sure Ms Fernando has or will explain the onerous conditions that are attached to it. You've got to stay off drugs. You've got to keep on your methadone program and you've got to stay out of trouble. I hope you can do that. Because if you breach any of those conditions, they can just pick you up and take you straight to gaol. You don't come back before me and get another go. All right? Thank you both. Really, I am hugely impressed by the submissions from both of you.

15. TASNEEM: Thank you, your Honour.

16. FERNANDO: Thank you, your Honour.

Note – These extempore remarks were revised without access to the court file.

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Decision last updated: 01 October 2020