R v Timothy

[2019] NSWDC 177

District Court

New South Wales

Medium Neutral Citation:	R v Timothy [2019] NSWDC 177
Hearing dates:	28 March 2019
Date of orders:	18 April 2019
Decision date:	18 April 2019
Jurisdiction:	Criminal
Before:	Sweeney DCJ
Decision:	Sentenced to an aggregate sentence of 7 years imprisonment with a non-parole period of 3 years 6 months imprisonment
Catchwords:	Sentence - guilty pleas - drug supply offences - methylamphetamine - gammabutyrolactone - totality with previous sentence
Category:	Sentence
Parties:	Regina (Crown) Sam Timothy (Offender)
Representation:	Counsel: Mr B Ko (Crown) Mr P Naughtin (Offender)
File Number(s):	2016/00249758
Publication restriction:	Nil

SENTENCE

1. HER HONOUR: Sam Timothy pleaded guilty in this Court to three offences. The first was an offence that between 21 July 2016 and 18 August 2016 at Alexandra he did on three or more separate occasions during a period of 30 consecutive days supply a prohibited drug, namely methylamphetamine, for financial or material reward. That offence has a maximum penalty of 20 years imprisonment.

2. The second count on the indictment was between the same dates and at the same place he supplied 4,523.3 grams of gamma butyrolactone, being an amount not less than a large commercial quantity applicable to that prohibited drug. That offence has a maximum penalty of life imprisonment and a standard non-parole period of 15 years is prescribed and both those statutory guideposts must be borne in mind.

3. The third offence on the indictment was an offence that on 18 August 2016 at Yagoona he supplied a prohibited drug namely 219.4 grams of gamma butyrolactone.

4. Mr Timothy also asked that in sentencing him for the offence in count 2 I take into account a matter on a Form 1 which was possession of six Viagra tablets. The principle in taking that matter into account is that the sentence for the offence in count 2 on the indictment must be more than if I was dealing with that offence alone, although taking into account the seriousness and circumstances of the offence on the Form 1. The possession of six Viagra tablets is an offence of low seriousness.

5. The matter proceeded on the basis of facts which were described as a "factual summary". They were not signed by Mr Timothy and in fact during the sentence hearing he gave evidence contrary to the summary. But according to that statement of facts, in summary, Mr Timothy supplied methylamphetamine and the drug I will call GBL to an undercover police officer on four occasions from July 21st to 18 August 2016. On the last occasion, 18 August, he was arrested and his home was searched. There police found 219.4 grams of GBL in five glass bottles. That is the subject of the offence in count 3 on the indictment, a deemed supply of GBL.

6. The offence in count 1 on the indictment, the ongoing supply of methylamphetamine for material reward, is made up of the quantities of that drug supplied to the undercover officer on the four occasions, being 2.84 grams with a purity of 81.5% for $600 on 27 July 2016, 27.7 grams with a purity of 79.5% for $4,200 on 1 August 2016, 26.38 grams with a purity of 77% for the same price on 11 August 2016, and 25 grams with a purity of 78%. The total quantity of methylamphetamine supplied was 81.92 grams.

7. The offence in count 2 on the indictment, supply a large commercial quantity of GBL, consists of the total quantity of that drug supplied by the offender to the undercover officer on the same four occasions, being 527.4 grams for $1,500 on 21 July 2016, 1,019.4 grams for $2,800 on 1 August, 954.5 grams for the same price on 11 August, 2,022 grams on 18 August 2016, the total quantity being 4,523.3 grams.

8. It is necessary to recount the facts in some detail because Mr Timothy gave evidence in the sentence proceedings which was contrary to the facts and the evidence referred to therein, and it is necessary to refer to the detail in order to assess the evidence he gave.

9. Police were conducting an investigation of the supply of drugs by Mr Timothy and his associates and they authorised an undercover officer to negotiate and purchase drugs from him. They began also intercepting his telephone.

10. The first supply of both drugs which makes up the two offences began when on 19 July the undercover officer, who was using the name Crystal, exchanged a series of text messages with the phone number being used by Mr Timothy and negotiated to buy half an ounce of “ice”, methylamphetamine, for $2,400 and half a litre of liquid GBL on 21 July at Bunnings at Mascot. About 10.05am on 21 July Ms Fox attended an address at Busby in a Holden and about 18 minutes later she walked through the front door of that address. Just after 11am on the same day Ms Fox and Mr Timothy came out of that address and walked to the Holden. Ms Fox opened the boot of the Holden, Mr Timothy lent into the boot. Ms Fox sat in the driver’s seat of the Holden. Mr Timothy closed the boot and walked to the driver’s side and spoke to Ms Fox before leaving. About 2.05pm on the same day the undercover officer Crystal phoned Mr Timothy and asked where he was. He said he had no car but there was a car coming now and he intended to get a lift to meet Crystal. About 2.25pm on the same day Mr Timothy and an unknown man came out of the address at Busby. Mr Timothy was carrying a water bottle. Mr Timothy and the unknown man walked to and got into the Holden and Ms Fox drove them away. About 4.05pm on the same day Ms Fox drove the Holden into the car park of the Bunnings warehouse at Alexandria and parked. The unknown man got out of the Holden and found the undercover officer’s car. Mr Timothy got out of the Holden and got into the front passenger seat of the undercover officer’s car. He pulled out a 600 ml water bottle containing 527.4 grams of GBL and placed it next to the hand brake. A listening device recorded the undercover officer asking if it was half a litre and Mr Timothy confirmed it was. She asked how much it was and Mr Timothy replied it was $1,500. He then pulled out two small resealable bags containing 2.84 grams of crystalline methylamphetamine with a purity of 81.5% and handed them to the undercover officer. He told her there were 3 grams and it would cost $600. She handed Mr Timothy $2,100, being $600 for the methylamphetamine and $1,500 for the GBL. Mr Timothy got out of the undercover officer’s car and went to the Holden. There was some trouble starting the Holden and a short time later it drove away.

11. The second supply of each of the two drugs, which happened on 1 August, began on 31 July when the undercover officer contacted Mr Timothy by exchanging text messages with his phone number. She requested to buy a “full one of liquid”, which was a litre of GBL, and a “full one of food”, which was a reference to an ounce of methylamphetamine, “tomorrow at the same place as last time”. Mr Timothy said he would see the undercover officer tomorrow. On 1 August the undercover officer had a conversation with Mr Timothy via text messages sent to his phone number. She asked how much it would cost, and Mr Timothy replied it would be $2,800 for the water, the GBL, and $4,200 for the food, the methylamphetamine. Later on the same day Mr Timothy advised the undercover officer that “his girl driver Roxy” would be attending to supply her and he gave Roxy’s phone number.

12. About 2.45pm on the same day Ms Fox drove the Holden into the Bunnings warehouse car park at Alexandria and parked next to the undercover officer’s car. She tapped on the window of the car and introduced herself as Roxy. She pulled out a scarf that was folded up into a bundle and passed the bundle to the undercover officer, who unwrapped the bundle and saw that it contained a 2 litre sized juice bottle that contained 1,019.4 grams of GBL and a plastic freezer bag that contained 27.7 grams of crystalline methylamphetamine with a purity of 79.5%.

13. The undercover officer asked Ms Fox if the “G” was underweight because it looked a bit underweight. Ms Fox replied “no”. The undercover officer advised it was $2,800 for the water, the GBL, and Ms Fox said it was $4,200 for the methylamphetamine, so the total was $7,000. The undercover officer counted out $7,000 to Ms Fox before placing it inside the scarf and handing the scarf back to Ms Fox. Ms Fox then drove out of the car park.

14. The third supply of both drugs, which happened on 11 August, began on 9 August when the undercover officer contacted Mr Timothy by text messages to his phone number and requested to buy 1 ounce of food, a reference to methylamphetamine, and 1 litre of water, a reference to GBL, on Thursday at the same place.

15. On 11 August the undercover officer communicated with Mr Timothy by text messages exchanged with his phone number. Just after midday on that day Ms Fox drove the Holden to an address at Yagoona and entered the house with Mr Timothy. About 15 minutes later they left and drove away in the Holden. Ms Fox drove the Holden to a car park at Enfield and parked next to a black jeep. At 1.25pm on the same day Ms Fox arrived at the Bunnings warehouse car park at Alexandria driving the jeep. She parked opposite the undercover officer’s car. She got into the undercover officer’s car and supplied the undercover officer with a plastic bottle containing 954.5 grams of GBL and a clear plastic bag containing 26.38 grams of crystalline methylamphetamine with a purity of 77%. The undercover officer asked Ms Fox if it was 1 litre and if the other “stuff” was in there and she replied “yep”. The undercover officer counted out $7,000 to Ms Fox before putting it inside a bag and handing the bag to Ms Fox, who got into the jeep and drove away.

16. The fourth supply of the two drugs on 18 August began on 15 August when the undercover officer phoned Mr Timothy’s phone number and spoke to him and asked to see him on Thursday at the same place to get 2 litres of water and 1 ounce of food, being references to GBL and methylamphetamine. Mr Timothy told the undercover officer to message him.

17. On 17 August the undercover officer contacted Mr Timothy by exchanging text messages with his phone number and he requested she contact him on a new phone number he gave her. She did so and asked to meet him at Bunnings at Mascot tomorrow and asked to get 1 ounce of food, or methylamphetamine, and 2 litres of water, the GBL. Mr Timothy sent a text message to the undercover officer advising he could do 2 litres of GBL for $5,500. On 18 August the undercover officer had a text message conversation with Mr Timothy using the new number he had given her to confirm the arrangements. About 2.35pm on the same day a man named Christopher Lakeman drove a blue Subaru Liberty to the address at Yagoona and went into the house. Shortly thereafter Ms Fox drove the Holden to the address at Yagoona and went into the house. About 3 o’clock on the same day Ms Fox drove away from the Yagoona address in the Holden while Mr Lakeman drove away from the Yagoona address in the Subaru with Mr Timothy in the front passenger seat. They drove in a convoy to John Street, Mascot where Mr Timothy got out of the Subaru and walked to the driver’s side of the Holden. Ms Fox got out of the Holden and got into the passenger seat of the Subaru. Mr Timothy got into the driver’s seat of the Holden and drove it to the Bunnings warehouse car park at Alexandria.

18. Mr Timothy then got out of the Holden and got into the undercover officer’s car where they had a conversation about other things. A short time later the Subaru drove up, driven by Mr Lakeman, and parked next to the undercover officer’s car. Mr Timothy got out of the undercover officer’s car, and walked over to the Subaru where Ms Fox was standing. They had a conversation. Ms Fox opened the back door of the Subaru, Mr Timothy got something out of the Subaru and walked back to the undercover officer’s car with a black zip up case. He unzipped the case and pulled out a small plastic bag containing 25 grams of crystal methamphetamine with a purity of 78% which the undercover officer took hold of. He then pulled out a plastic bottle containing 2,022 grams of GBL and put it on the floor of the undercover officer’s car. At this time police came up and arrested Mr Timothy. Police also arrested Ms Fox. Mr Lakeman drove the Subaru out of the car park but was arrested a short time later. Police searched the Subaru and found Ms Fox’s handbag. It contained two mobile phones and $5,850 in cash.

19. Later that day police searched the address at Yagoona where Mr Timothy was living and in the second bedroom they saw numerous documents in his name and found five glass bottles containing a total of 219.4 grams of GBL in the drawer under the television.

20. Later that day Mr Timothy participated in an interview with police where, amongst other things, he said Ms Fox did not have any role and just came there to drive him.

21. In total the facts say Mr Timothy and Ms Fox supplied the undercover officer, Crystal, with 4,523.3 grams of GBL and 81.92 grams of methylamphetamine.

22. The facts of the Form 1 offence are that on an earlier day, the 15 February 2016, police were called to attend a car in Petersham in which Mr Timothy was, because of concerns by a nearby resident. They spoke to Mr Timothy and another man in a car. In a search of Mr Timothy they found $1,650 in $50 and $100 notes in his pocket and six capsules containing Viagra. Mr Timothy told police that that was what was contained in the capsules.

23. In the sentence proceedings Mr Timothy gave evidence in which he blamed Roxanne Fox as the person who was obtaining the drugs from a man she knew and supplying them to the undercover officer. He said he received small amounts of money from Roxanne Fox from the money she received from the undercover officer. In giving this account he contradicted the factual summary about him being in phone contact with the undercover officer arranging the supply of drugs on each occasion. I did not accept his evidence as truthful. It contradicted the factual summary, particularly the detail of him being in contact with the undercover officer, and his attempts to explain away the facts about his contact with the undercover officer such as that Ms Fox was using his phone were implausible.

24. The Crown’s position was that Roxanne Fox was simply the offender’s driver. On behalf of Mr Timothy counsel submitted that the facts, especially the second and third supplies, demonstrate that Ms Fox was more involved than driving.

25. I note that the facts of the second supply indicate that Mr Timothy negotiated the supplies with the undercover officer telling her the prices. He told her “his girl driver Roxy” would be attending to supply the undercover officer. Mr Timothy gave evidence he described Ms Fox in that way because she told him to do so. I find it implausible that a mature woman would tell Mr Timothy to describe her as his girl driver. Ms Fox did attend alone and supply the undercover officer with drugs and took money from the undercover officer on that day. Counsel for Mr Timothy relies on Ms Fox having said, in answer to a question from the undercover officer if the drug “G”, the GBL, was underweight. “No,” and having told the undercover officer that the price of the methylamphetamine was $4,200, as Mr Timothy had done before then, to submit that Ms Fox had a greater involvement than acting on behalf of or at the direction of Mr Timothy. Her conduct as described in the facts is in my view quite consistent with her delivering drugs to the undercover officer on behalf of, and at the direction of, Mr Timothy. Her conversation with the undercover officer was minimal and not indicative of any greater role than a delivery person.

26. I am of the same view about the facts of the third supply where Mr Timothy negotiated with the undercover officer the quantities of drugs and the prices and Ms Fox, after attending Mr Timothy’s home, met with the undercover officer alone and handed over the drugs, received money from the undercover officer and when asked by the undercover officer if there was 1 litre and if the other “stuff” was in there replied “yep”. Again that conversation was minimal and does not indicate any greater role than Ms Fox being the delivery person. I am satisfied Mr Timothy was the dominant person in the enterprise of supplying the drugs to the undercover officer and Ms Fox assisted him by either driving him to meet with the undercover officer or delivering drugs at his direction to the undercover officer.

27. In assessing the objective seriousness of the offences on the indictment, in each one the quantity of the drug is a relevant factor though not determinative of sentence. The quantity of methamphetamine the subject of the offence in count 1, supplied over the four occasions, at 81.92 grams, is a significant quantity of that drug. The supplies were not in street level quantities. On the first occasion of supply the offender used another person to find the undercover officer’s car before he approached it. On the second and third occasion he used Roxanne Fox to deliver the drug to distance himself from the transaction. On the occasion of the fourth supply he used two cars with drivers, inferentially to try to avoid police surveillance. So there was some sophistication about how he managed the supplies. I assess the first offence as moderately serious.

28. The quantity of GBL the subject of the second charge is just over the large commercial quantity of 4 kilograms. Otherwise there was little information about the drug to enable an assessment to be made of the objective seriousness of the offending, such as what an individual dose would be. Mr Timothy received $6,100 for the first three supplies of the drug, and had negotiated a price of $5,500 for the 2 litres of GBL he supplied on the fourth occasion, which amount of money Ms Fox was carrying after the meeting. So the total price paid by the undercover officer for the 4,523 grams of GBL was $11,600. That is one indicator, but does not indicate a great deal about the objective seriousness of the offence. The methodology of the four supplies was as I noted in respect of the previous offence. On the basis of the available information I assess this offence as below the mid-range of seriousness. Because of that assessment, and Mr Timothy’s plea of guilty, I will not impose the standard non-parole period for that offence.

29. The quantity of the GBL found at the offender’s home, available to supply, the subject of count 3 on the indictment, is by comparison with the indictable quantity of 50 grams and the commercial quantity of 1 kilogram, in the lower range though not at the lowest. Again in the absence of information about the value of that drug and individual doses of the drug it is difficult to assess the objective seriousness of the offence. I assess it as of low to moderate seriousness.

30. Mr Timothy committed those offences while on bail for the Form 1 offence. That does not increase the objective seriousness of these offences but is an aggravating factor to be taken into account in sentencing him.

31. The offence on the Form 1 relating to the six Viagra capsules is of low seriousness.

32. Dr Richard Furst, psychiatrist, prepared a report about Mr Timothy. He examined Mr Timothy’s previous Justice Health records, and records of Mr Timothy being admitted to psychiatric hospitals for treatment of a psychotic disorder and depression. His records indicated a history of schizophrenia and Dr Furst confirmed that diagnosis, although he said when he prepared his report in June 2018 that Mr Timothy’s illness was in remission and well controlled by anti-psychotic medication.

33. Mr Timothy gave Dr Furst a history of using “ice” since 2010, using 1 gram every two weeks in the years before his arrest, using ecstasy occasionally and cannabis since 2011 to 2012, which he said he became addicted to, smoking 1 to 2 grams per day over the years prior to his incarceration. Dr Furst said Mr Timothy is most likely dependent on the drugs cannabis and ice and diagnosed him with a substance use disorder. Mr Timothy gave evidence that at the time of his offences he had stopped his medication and was taking the drugs ice and liquid G, GBL, every day. He said he was stressed because he had been evicted. He said he committed the offences to obtain money for a bond for a place to live. He said he did not need the money for drugs because Ms Fox was getting drugs for him. That aspect of Mr Timothy’s evidence I did not believe. So his motivation for committing the offences is not clear because his evidence lacked credibility. Having regard to his evidence and Dr Furst’s report there is not evidence that his schizophrenia was affecting his behaviour at the time of these offences, and his behaviour as described in the facts appears purposeful and not consistent with him being affected by schizophrenia then.

1. Dr Furst thought Mr Timothy was dependent on ice and cannabis, although the quantities and frequency of his drug use as described to Dr Furst seemed lower than usually provides a basis for such a conclusion. But Mr Timothy disowned funding his own drug use as a motive for his offending, as he disowned his offending.

2. Mr Timothy is now 55. He was 52 at the time of his offences. He was born in Egypt. He came to Australia in 2003, he said fleeing religious harassment in Egypt. It seems he has not flourished in Australia. He told Dr Furst he had been on a disability support pension for the last several years. A letter from the Coptic Orthodox chaplain in Corrective Services says Mr Timothy intends to return to Egypt after he is released from custody, to live with his mother who is now aged about 80. The chaplain said Mr Timothy is reformed, drug free and intending to remain away from drugs and supplying drugs. The chaplain said he will support Mr Timothy on his release from custody until he returns to Egypt. Mr Timothy does not appear to have a lot of social support in the Sydney community.

3. Mr Timothy’s record includes prior offences of drug possession in 2010 and 2011 and possession of equipment for using drugs in 2011, consistent with his history of drug use. He also has convictions for possession of firearms in 2011 and 2012. His record is not long but the firearm offences appear serious and deprive him of leniency. He has been in custody since 18 August 2016. In 2018 he was sentenced to seven months imprisonment with a non-parole period of four months for assaulting a police officer. I have decided his sentence for these offences should commence three months after he went into custody on 18 August 2016 to be partially accumulated on the sentence for the offence of assaulting a police officer.

4. I find special circumstances in Mr Timothy’s age, his mental illness, although it is controlled at present, and his need for supervision in respect of his abuse of the drugs ice and cannabis, to reduce the non-parole period from the statutory ratio.

5. For his plea of guilty in this court on the day of his trial I have discounted his indicative sentences by 10%. I have then rounded it down to avoid odd months. I intend to sentence Mr Timothy by way of an aggregate sentence. I am required to indicate the sentences I would have imposed for the individual offences if I was not sentencing Mr Timothy by way of an aggregate sentence and I will do so shortly.

6. The aggregate sentence will involve some partial accumulation of the sentences because of the two drugs supplied to the undercover officer and the additional drug on hand for supply at Mr Timothy’s home.

7. Roxanne Fox was sentenced for supplying a commercial quantity of GBL, as distinct from a large commercial quantity as Mr Timothy is charged with, and supplying methylamphetamine on an ongoing basis. Each offence had an offence of supplying a prohibited drug on a Form 1 to be taken into account. She had pleaded guilty in the Local Court. She was sentenced on the basis that she was a user of the drug ice, that Mr Timothy shared his ice with her, that she had driven Mr Timothy to meet the undercover officer who she believed was a friend of Mr Timothy’s, and had delivered drugs to her, the money she received from the undercover officer she gave to Mr Timothy. She had completed a WHOS drug rehabilitation program. She had no prior convictions. She was sentenced to concurrent suspended sentences of two years and 20 months duration.

8. The sentences for Mr Timothy relative to those for Ms Fox must be relative to their roles and the offences they were sentenced for, as I have noted in Ms Fox’s case for a commercial quantity of GBL, not a large commercial quantity as in Mr Timothy’s case.

9. The indicative sentences are for count 1 on the indictment three years imprisonment; for count 2, and taking into account the matter on the Form 1, six years imprisonment with a non-parole period of three years imprisonment; for count 3 on the indictment 21 months imprisonment. The aggregate sentence is seven years imprisonment with a non-parole period of three years six months imprisonment.

10. I sentence you to a non-parole period of three years six months imprisonment to date from 18 November 2016 with an additional term of three years six months imprisonment. Your non‑parole period will expire on 17 May 2020.

11. I order that the drugs are to be destroyed.

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Decision last updated: 20 May 2019