R v Togo

[2024] NSWDC 229

District Court

New South Wales

Medium Neutral Citation:

R v Togo [2024] NSWDC 229

Hearing dates:

11 June 2024

Date of orders:

20 June 2024

Decision date:

20 June 2024

Jurisdiction:

Criminal

Before:

Priestley SC DCJ

Decision:

See [Orders]

Catchwords:

CRIME — Drug offences — Possess prohibited drug

CRIME — Drug offences — Supply prohibited drug - Commercial quantity

CRIME — Drug offences — Supply prohibited drug — Knowingly take part in supply

CRIME — Drug offences — Cultivate prohibited plant

CRIME — Firearms offences — Use/Possess prohibited pistol/firearm

Legislation Cited:

Crimes (Sentencing Procedure) Act

Cases Cited:

Muldrockv The Queen (2011) 244 CLR 120

Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146

Veen v R (No 2) [1988] HCA 14

Hall v The Queen [2021] NSWCCA 220

R v Holder [1983] 3 NSWLR 245

Mill v The Queen [1988] HCA 70

Cahyadi v R [2007] NSWCCA 1

Category:

Sentence

Parties:

Rex (The King)

Representation:

Ghabrial counsel for The Offender
Magni for the Director of the Office of Public Prosecutions

File Number(s):

2022/00232610

JUDGMENT

Introduction

1. Teague Romeo Togo is to be sentenced in respect of six charges on indictment and to be dealt with summarily in relation to one other offence. In relation to the first charge on the indictment of ongoing supply there are a further five matters to be taken into account by way of the Form 1 procedure. Those various charges and Form 1 matters are set out in the below table which indicates the relevant legislative provision, the maximum sentence, and the standard non-parole period if applicable.

Sec	Charge	Max	SNPP?
1	s25A(1) DMTA	Ongoing supply;	20	no
a	Plus Form 1 x 5	Supply > ind < comm prohibited drug	15	no
b	Poss prohibited drug; 2y	2	no
c	Poss / attempt to poss restricted subs contrary to poisons and therapeutic goods act; max 6 m	6m	no
d	Poss prohibited drug	2	no
e	Supply > small < ind amount of prohibited drug; max 10 y	10	no
2	s25(1)	Supply prohibited drug >ind < comm	15	no
3	s25(1)	Supply prohibited drug >ind < comm	15	no
4	s25(2)	KTPI supply prohibited drug >= comm	20	10
5	s25(1)	Supply prohibited drug >small < ind	10	No
6	36(1) FA	Poss unregistered firearm; max 14y	14	no
S166; s253C(4) Crimes (Admin of sentences)	Max 2 y; bring prohibited drug into place of detention	2	no

2. In relation to the maximum sentences and, in respect of the section 25(2) offence, the standard non-parole period, those matters are taken into account as legislative guideposts and indicate the legislature’s view of the seriousness of the offences so as to assist in arriving at the appropriate sentence. In relation to the standard non-parole period I note that in Muldrock (2011) 244 CLR 120 at [29] the High Court made clear that it has application even when the offending is not considered to be in the middle of the range of seriousness as that term is used in section 54A of the Crimes (Sentencing Procedure) Act (“CSPA”). The standard non-parole period is an indication of the legislative view of the seriousness of the offence.

3. In regards to the Form 1 procedure it is important that the focus remains on the principal offences for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community’s entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ.

4. The offending occurred in the period of June July and August 2022. The offender was arrested on 7 August 2022. At that time the defendant was in fact on parole for offences which included supplying prohibited drugs and possessing a prohibited weapon and for which he received a term of imprisonment of two years and six months to date from 19 June 2020 and with a 12 month non-parole period. He had been released on parole on 18 June 2021 and that parole period was 18 months. There was therefore at the time of his arrest still some four months of the parole period remaining. It also shows that after approximately 12 months of a parole period the offender had well and truly returned to what might be termed a drug lifestyle. It appears that the parole was not revoked and so has now expired.

5. On 22 August 2022, so whilst in custody following his arrest of 7 August 2022, the offender was sentenced by the Local Court in respect of an offence of possessing a prohibited weapon. That was a sentence of three months to commence on 7 August 2022. Consequently the offender has been in custody solely for the present offending since 7 November 2022. As there is no evidence of the parole period having been revoked it would seem that the latest start date for the sentence presently being considered would be 7 November 2022. Furthermore had the offender being sentenced for the present matters at the same time that he was sentenced for the prohibited weapon charge the great likelihood is that he would have received an aggregate sentence and that the further likelihood is by applying the principle of totality there should be a start date for the present sentence prior to 7 November 2022. In my view the appropriate start date for the sentence to be determined should be 7 October 2022.

The facts

6. There is nothing of great sophistication or complexity about the facts of this offending. In overview the offender has committed a series of offences relating to the possession and supply of prohibited drugs and there is one offence of possession of an unregistered firearm. The matters are fully set out in the evidence in the agreed facts that form part of exhibit A. Without in any sense intending to minimize the seriousness of the offending the offences can be set out fairly shortly as follows.

7. Count 1: section 25A(1): ongoing supply: in the period 21 July 2022 to 28 July 2022 the offender made five supplies of methylamphetamine. The amounts involved were .5g, 1.75g, .48g; 1.75g and 1.25g. The evidence relating to the first and third supplies extends to showing aggressive language and threats by the offender. The offending was uncovered by telephone intercept evidence of either phone calls or text messages. The facts show the price agreed for a total of 3.5g from supplies 2 and 4 was $950.

8. The submission was made that there was no evidence that these supplies actually took place. It is correct that there is no direct or express evidence to that effect but there is an inescapable inference that the drugs were in fact supplied. This is because on the first two occasions the evidence is that the offender had said to the purchaser that he was on his way and would be there in about 15 minutes in respect of this first supply and 5 minutes in respect of the second supply. In respect of the third occasion the purchaser was actually apprehended and found to be in possession of .48 g of methamphetamine, the precise amount that is the subject of the charge. In respect of the fourth occasion the case is of text messages arranging supply and goes no further. The same might be said for the fifth occasion. In the fifth occasion there is discussion of payment of a debt owed the purchaser and it is plain there is an ongoing relationship of drug supply between the offender and the purchaser supporting an inference that the supply did occur. In the circumstances I make the same inference for the fourth supply, that is, it did, along with the other occasions, occur.

9. Form 1 matters: it is in relation to this first count that there are five other matters to be taken into account by way of the Form 1 procedure. The first matter involved a supply of 7 g of methamphetamine, which has a 15 year maximum penalty and which I note is more than the total amount of drugs the subject of count 1. The offence was evidenced by a telephone intercept. The second Form 1 matter is of possessing 16 Bromazolam tablets weighing 8.23 g, which has a two year maximum penalty. The third Form 1 matter is of possessing or attempting to possess a restricted substance contrary to the Poisons and Therapeutic Goods Act, something which has a maximum term of six months in custody. Each of the second, third and fourth Form 1 matters were uncovered by a search of the offender’s car upon his apprehension on 7 August 2002, the occasion of count 2 dealt with below. Although the offender initially sought to conceal items when his car was searched he then made various admissions as to the second Form 1 matter and the third Form 1 matter which related to diazepam in the quantity of 4.65 g. The fourth Form 1 matter was of possessing 2.5 g of cannabis resin, which was found on the search of a storage shed on 8 August 2022, and again a two-year maximum term. The last of the Form 1 matters is a rolled up charge of supplying cannabis on five separate occasions in less than a week but being charged under section 25(1) rather than section 25A and with a maximum term of 10 years if dealt with by indictment. The amount of cannabis involved was some 62g, and based on the prices stated for two supplies, the total revenue would be little more than $500.

10. Count 2: this is a charge under section 25 (1) the Drug Misuse & Trafficking Act (DMTA) of supplying 80.96 g of methamphetamine. The offender had been to Sydney and was later that same day stopped in Brunswick Heads where his car was searched and the methamphetamine found.

11. Count 3: is a further section 25(1) charge relating to the fact that on 8 August 2022 upon being strip-searched further drugs were found upon the offender being 25.61 g of methamphetamine and .99 g of buprenorphine. It was these drugs that were the subject of the charge of bringing a prohibited drug into a place of detention which has a two year maximum sentence.

12. Count 4: this is a further charge of supplying a prohibited drug on this occasion under section 25(2). Through phone monitoring police knew of a storage shed; they got a warrant and conducted a search. They found 3.037g of butanediol in 4 containers but the plea was accepted on the basis of not less than commercial quantity. Notably the charge is of the offender knowingly taking part in the supply, that is, not of actually supplying the drug, in either a deemed or actual sense. I accept the submission that the sentence should be based on conduct that amounts to simply holding or storing a prohibited drug.

13. Count 5: Also on the search of the shed, cannabis in cryovac bags totalling 495.7g of cannabis was found, along with 26g in two resealable bags giving rise to a further supply charge.

14. Count 6: having searched this shed the police then got a warrant to search the residence of the offender’s sister. There, in the garage was found what is described as a gel blaster or BB pistol which is a gas operated air gun.

Objective seriousness

15. Again as a general comment each of these matters looked at individually tends towards the lower end of objective seriousness with perhaps an exception for count 2.

16. In respect of count 1 the total supplied was just 5.73 g with identified revenue of $950 with some other revenue perhaps unstated. There is no evidence suggesting that in relation to any of these offences the offender is directing others. It is obvious that he is a low level or street-level supplier of small amounts of methamphetamine and it would seem in respect of count 2 somebody who is able to source his product to satisfy his own addiction and also on supply small amounts. It is an indication of the low level he operates at that the amount of revenue for count 1 based on the $950 for two supplies totalling 3.5g, would be less than $2000.

17. I consider count 1 to be low in objective seriousness due to the low quantities and the obvious low-level role of the offender. The total amount of methamphetamine supplied by the Form 1 matters is in fact greater than for count 1. In my view the Form 1 matters in this case do add to the sentence to be imposed in respect of count 1 though it has to be borne in mind that the focus is on the principal offence so that the sentence needs to be within the range of the objective seriousness of that rather lower level section 25A offence. It should still be noted that the Form 1 matters, whilst not trivial, are themselves at best modest. The cannabis charge involves 62g and extrapolating from the prices stated would have realised total revenue of approximately $500.

18. I consider count 2 to also be in the low range, but more serious than count 1. That said it is hardly sophisticated as indicated by the fact that the offender himself was collecting the drug. I accept there should be some allowance that some of that drug would be for his own use. Even then, the reality of it is that there is as much perhaps as another 50 supplies to be made from that quantity and the risk to the community that poses must be recognized. The Crown queried whether the offender was a courier or a principal; my finding is that he had sourced his own product for on supply and self use. Terms such as principal seem to me to be inappropriate for this circumstance as he has nobody beneath him. I also accept for this count and for all counts that there is no suggestion of significant financial reward and it is quite clear that he is on selling for the purpose of funding his habit.

19. The offender’s counsel well explained count 3 which goes together with the summary matter. These were drugs found within the offender’s jacket and had not been found in the search of the day before. The drugs happened to be found because the search was more thorough when he was entering the correctional center. My view is that any sentence for the summary matter should be wholly concurrent with the count 3 for that reason. Furthermore the offence count 3 is in a sense a continuation of count 2. There needs to be significant concurrency for the sentences of counts 2, 3 and the summary matter.

20. Count 4 is assessed as also low in objective seriousness, given the scant facts known, and the arguably somewhat detached nature of the offender’s involvement; in short he was holding the prohibited drug, and little is known of the context of how that came to be or as to what was intended.

21. As to count 5, the quantity found was 521g. An indictable quantity is 1kg. Just what the offender’s role was cannot be determined, though the charge is of supply, not knowing involved in supply. Was he to pass it to someone else, or sell it piecemeal? The highest it gets is the use of cryovac bags, suggesting some degree of organisation. I would assess this as low in objective seriousness, but not at the bottom end of the low range.

22. In respect of count 6 the Crown argues this is in the mid range of objective seriousness; in contrast the offender says it is a toy, bought for his nephew. All that is known is that it was possessed by the offender, and was found at the home of his sister, allowing for an inference that it was found at the home of his nephew. No findings beyond the fact of possession can be made beyond reasonable doubt adverse to the offender. It is too speculative to say that it was connected to his drug dealing, though there may be suspicions about that, particularly given his conduct shown in the facts seeking to collect debts. The assessment must be low in objective seriousness.

23. The offending is aggravated by the offender being on conditional liberty. There is also the aggravating feature of his criminal history, and that matter is further addressed below.

Subjective case

24. It is accepted the offender is entitled to a 25% discount due to the time he entered a plea of guilty.

25. The criminal history of the offender commences in 2015 (the year he turned 20) with domestic violence matters. On a call up a six-month sentence was imposed. In 2016 there is more domestic violence, possession and assault occasioning. A 15 month sentence was imposed with a six month non-parole period. The sentences appear to be concurrent so that he was back in the community on 24 January 2017.

26. In 2017 there were drug offences, including for supply, resulting in an aggregate term of two years and three months. That sentence commenced on 19 March 2018 and he was released on parole on 18 June 2019.

27. The offender went back to custody on 19 June 2020 for supply and possession offences, sentenced to a term of 2 years 6 months, with a non parole period of 12 months, so that he was back in the community on 18 June 2021.

28. By no later than 12 months and 1 week after that he was offending again leading to his present period of incarceration, which commenced on 7 August 2022. From the age of 20 to 28 the offender has been incarcerated for a total of 45 months. He has spent approximately 50% of the period 2016 to the present in custody.

29. There was no Sentencing Assessment Report, but rather a number of reports were relied on. One is of a psychologist Ms Pal dated 10 May 2024, and another is by a psychiatrist, Dr Schelle, dated 31 October 2023, prepared in relation to a civil claim for alleged childhood sexual abuse, which the Crown does not dispute in these proceedings.

30. The offender read an affidavit of his mother Loretta Togo who is employed as a manager of a childcare centre. She confirms that the contents of the psychological report referred to below, which was compiled on the history given by the offender, is correct save for some slight errors. The corrections were to make the point that she and the offender’s sister remain supportive of the offender and will do so on his release, and to clarify that the offender’s father is of South Sea Islander descent and that she was of Aboriginal / Italian descent.

31. Mrs. Togo also provided a letter to the court. She confirms his traumatic childhood and what she describes as an alcoholic and abusive father. She expresses the view that the offender acknowledged his wrongdoing and would benefit from rehabilitation.

32. A letter from Matthew Schaefer who has known the offender for six years since the offending does not fully reflect his character or potential. He says the offender has expressed remorse and is committed to moving forward in a positive direction. He says he has sought counseling and support services.

33. There was also a letter from the offender’s brother Lincoln Togo. He says he has always been a loving and supportive brother and he is thankful for the protection he gave him and he sister and mother to the father’s abuse.. He says the offender has shown a willingness in custody to participate in rehabilitation and vouches for his potential to turn his life around and become pro social.

34. The report of Ms Pal recounts a history of the offender having a harsh father and a loving mother. The father worked but lost his job when the offender was 12 and the father’s alcohol use then increased. There was domestic violence both verbal and physical, and although not emphatically clear, it seems this extended to the offender, something which is made clear from the letter of Lincoln Togo. His father gambled and would come and go. The offender now communicates with his father who now lives in Perth and has worked there for the last 5 years.

35. The offender left home at 16; partly because he wanted to smoke cannabis which mother did not allow.

36. The offender’s first relationship failed due to his drug use. His present partner has now not used methamphetamine for 7 years. They have been together since 2021 and it is said the offender is a father figure to his partner’s son. The offender says his partner has issued an ultimatum for him to stay abstinent. On release the offender will stay with his partner or his mother.

24. The offender finished schooling at year 10. The offender has now disclosed childhood sex abuse which occurred when he was in kindergarten. The abuse was repeated and lasted some months. The offender is taking legal action as to this abuse.

25. The offender has no work history, but has worked in his present period of custody and has a job offer from his brother on release, provided he is not using drugs.

26. The offender’s history of drug use is cannabis at 12 and becoming daily by 15. Also at 15 he used oxycodone and other prescription drugs. The offender tried ICE at 14 and was taking it daily by 17 and only abstinent in 2021 in rehab, then relapsed on release. The offender has now been on the buprenorphine program for 3 months and has been abstinent. On his last release he resorted to heroin.

27. The offender attended Odyssey House for 13 months in 2019.

28. The offender reported an unverified diagnosis of PTSD, anxiety and depression. Testing carried out by Ms Pal was said to disclose extremely severe depression and anxiety and severe stress. It is said he is likely to be plagued by thoughts of worthlessness and personal failure. It is said he is likely to display a variety of maladaptive behaviour patterns, an example of which was taking heroin at a stressful time in his relationship in 2022.

29. For the purpose of this sentence it is accepted that there has been significant trauma by reason of the child sexual abuse and also that there was domestic violence in the family home to which the offender was also subject. These matters were further evidenced by the psychiatric report. It is accepted that these matters make the offender more vulnerable to drug use as has indeed transpired.

30. The report also finds that on the scores returned from the testing the offender is in a category of individual that may benefit from PTSD treatment. This also is addressed in the psychiatric report.

31. An LS I-R test showed him to be in the moderate risk/needs category.

32. At the same time as these findings are made, there is some part of the report that is less than convincing. The report states it is likely the offender has a history of involvement in intense and volatile relationships. Yet his first adult relationship with his first partner ended due to his involvement of drugs; his current adult relationship is with a prosocial and now abstinent former drug user; there is nothing volatile about his mother’s role in his life other than she not wanting him to smoke marijuana in the house at age 16; and his brother is also prosocial, employed and offering him a job. The one volatile relationship historically is with his father who presently has maintained employment for five years in Perth and appears to have overcome some of the difficulties he formerly had when unemployed. Furthermore whilst not suggesting an ideal relationship the father-son relationship likely became toxic at the age of 12 when the father became unemployed.

33. Nevertheless, as the Crown fairly observed in not arguing against a finding that Bugmy principles have application in this case, a background of disadvantage may arise in a great number of various ways.

34. The opinion expressed is that the circumstances of the abuse and his father’s behaviour created a lack of emotional safety so that the offender relied heavily on his peers and was easily influenced leading to drug experimentation which in turn became a maladaptive coping mechanism.

35. In a nutshell the view is expressed that the offender’s polysubstance misuse occurring secondary to PTSD led to the circumstance of engaging in drug supply and consequently periods of incarceration.

36. Reference is made to institutionalisation contributing to escalating drug use and with repeated reoffending compounding his shame and depression.

37. The admitted motivation for the offending was to fund his drug habit.

38. The positive part of this report is that it identifies a number of factors which suggest his prospects for rehabilitation are better now than previously. Those factors are that he has now disclosed his child abuse; he has maintained employment albeit in the custody environment; he has done some courses; has a stable relationship; and is on the buprenorphine program. In addition there are the pro social aspects of his family being his partner, his mother and his brother and the prospect of employment and a place to live.

39. To further his prospects psychotherapy is recommended but alarmingly the offender is presently ambivalent to this whilst in custody which I do not consider a good sign.

40. The offender relied on specific parts of the psychiatric report. Firstly, it better outlines the child abuse, and gives the basis for the finding which is made that the abuse was not one off, but continued over a period of months, and extended to forcing the offender to perform fellatio, and to attempted anal penetration of the offender.

41. When the nature of the abuse is more fully set out, the conclusions of Ms Pal, that it results in complex PTSD, in turn leading to maladaptive coping mechanisms, in the offender’s case, drug use, is readily understandable. In a broad sense a causal connection between the offender’s background, trauma of abuse, his drug use and offending can be seen as perhaps likely and if so results in a reduction in the moral culpability of the offender.

42. The psychiatrist expressed the opinion of the offender fulfilling the criteria for PTSD, substance use disorder and antisocial personality disorder. At page 13 at the paragraph numbered 4 the psychiatrist is expressly asked to provide his opinion as to whether the child sexual abuse materially contributed to his psychiatric state referred to as injuries and disabilities. The answer given was that the PTSD relates directly to the sexual assaults. As to the substance use disorder that was said to be likely to be due to mixing with the wrong crowd and using the sale of drugs to support his lifestyle. The psychiatrist continues that it is possible the drug use initially assisted to block out memories of the abuse but that the offender no longer uses drugs to do that but rather he uses other blocking techniques. The psychiatrist then notes the father’s abuse of alcohol and the offender witnessing addiction during his formative years. It notes there is a strong causal link between childhood sexual abuse and problematic drug use. The opinion expressed is that the offenders substance misuse was accelerated by the sexual assault and was useful to block out memories but ends with “though I do not believe that the abuse is the sole or even a major cause of his substance misuse”.

43. The psychiatrist then addresses antisocial personality disorder and says that it too is multifactorial in its origin. Again the violence of the father is referred to, as is mixing with a negative peer group in early adolescence.

44. The view of the psychiatrist appears to place less emphasis on the aspect of childhood sexual abuse. What is clear however is that there is more than one factor at play. Whilst the impact of the abuse may have lessened over time it was very much a factor at one point and it is that abuse together with the other factors predominantly the exposure to addictive behaviours and the violence of his father that has contributed to the substance use issues.

45. Viewed in that way the broad causal connections spoken of above can be seen with the result of a lesser moral culpability on the part of the offender.

46. In terms of matters set out in section 21A(3) the early plea of guilty has been recognized above. The offender relies on this further as a demonstration of remorse which it must be said is not otherwise clearly stated by the offender. I nevertheless accept that he has demonstrated remorse by his conduct in entering an early plea and by taking positive steps in custody.

47. The assessment of the likelihood of reoffending and of his prospects of rehabilitation must necessarily be guarded. Adverse to the offender’s case is that his regular offending in the past eight years does not support a view that he will be deterred from offending again. Nevertheless the offender does make a persuasive point that there are now factors or protections or supports now in place that have not previously been in place. These matters were set out at [48] above, in particular the fact that he has now disclosed the significant event of child abuse; that he has engaged in intervention in custody including carrying out some courses and maintaining employment whilst in custody. The fact of a stable relationship would appear to have been present prior to incarceration. Another advance for him however is to be on the buprenorphine program which if judicial notice can be taken of the effectiveness of that program the frequency it is submitted in sentencing hearing to have, has a significant benefit of better controlling the dosage of the drug received by the recipient leading to much better results than previously.

48. Upon release if he can remain abstinent he will be able to continue working through the offer of his brother and he will also have available to him further counselling to deal with his traumatic abuse as well as ease substance abuse. It is these factors that also are relied on for a finding of special circumstances. I accept that submission because it is plain that there will need to be an extended period of supervision to best allow the offender an opportunity to continue on what appears to be the beginning of a positive rehabilitation. I also accept there should be a finding of special circumstances due to the risk of institutionalisation given the offender’s custody record.

49. Any assessment however of the prospects of rehabilitation and also of his risk of reoffending must be guarded due to their clear relationship with remaining abstinent; that is a relapse to drug use will in my view almost inevitably result in reoffending.

Sentencing considerations

63. The purposes of sentencing provided for by s3A are as follows:

1. To ensure the offender is adequately punished

2. To prevent crime by deterring the offender and others from committing similar offences

3. To protect the community from the offender

4. To promote the rehabilitation of the offender

5. To make the offender accountable for his actions

6. To denounce the conduct of the offender

7. To recognise the harm done to the victim of the crime in the community

64. Drug supply within the community is recognised by the parliament as something that needs to be significantly deterred. The reason for that is obvious given the great damage it does to citizens who engage drug use, an example of which is the offender himself. Whilst there are aspects of the offender that indicate that he may not be the best vehicle for general deterrence and whilst his moral culpability is lessened by his personal circumstances as discussed above there remains a need for the sentence to reflect both general and specific deterrence albeit less than otherwise would be the case. Similarly there is a need to protect the community from the offender. At the same time this is clearly one of those cases where so far as is possible in line with principle and within reasonable bounds the emphasis should be on rehabilitation. Not only would that of course assist the offender in his own life but rehabilitation would remove the danger that he would otherwise pose to the community by the further supply of drugs.

65. The offender accepts that the section 5 threshold is crossed so that there must be a term of full-time imprisonment. That said a wholly exceptional sentence is argued for. It is said that the circumstances are suitably exceptional for such a sentence to be arrived at. Doubtless the basis for that submission is the combination of the rather low level style of offending that has been engaged in and the particular subjective factors of this offender in particular his disadvantaged background and experience of child sexual abuse.

66. In general terms it is regrettable to observe that a combination of those factors is commonly encountered by the courts in sentencing particularly in relation to matters relating to drug activity. Nevertheless the point remains that there is a need for individualised justice and the particular facts and circumstances of this case needs to be the basis of the outcome.

67. The position of the Crown was to assess count 1 as towards the lower end of the range, and the remaining counts in the mid range. On the basis discussed above I consider that apart from count 1 that assessment is excessive.

68. The Crown submits that this should be a full-time term of imprisonment which is accepted by the offender. The Crown argues that the record of previous convictions is an aggravating factor. That is in line with s21A(2). The criminal history is a matter to consider in the assessment of matters such as a real likelihood of reoffending and whether or not it can be said the offender by his record shows a “continuing attitude of disobedience to the law”; per Veen (No2). Whilst the repeat offending of this offender is a serious concern, in all the circumstances of this case and his history I do not find that point has yet been reached. The matter is aggravated by him being on parole at the time of the offending.

69. The Crown expresses a guarded view as to the prospects of rehabilitation and does allow that the principle of totality results in partial accumulation of the sentences.

70. I propose to proceed by way of an aggregate sentence. In the table set out below the earlier table is repeated but with my assessment of objective seriousness indicated for convenience and with the indicative sentences both before and after the 25% discount for each offence being indicated. Also for convenience there is a comment indicating the fact of the particular offence being referred to. The table shows that for count 6 there will be imposed a CCO, given the scant information about it that takes the offence no further than simply possession of a gel blaster, without any nefarious connection.

71. The Crown in mentioning totality referred to there being four discrete periods of the offending. I consider that to be an unrealistic view of the matter; whilst what he has been apprehended for can be identified to have occurred in different periods it should be recognized that he was engaged in one overall ongoing period of drug offending.

72. I note in the case of Hall v The Queen [2021] NSWCCA 220 Hulme J reviewed the principles of totality. He referred to R v Holder [1983] 3 NSWLR 245 which makes it plan that what is required for a sentencing judge to evaluate the overall criminality involved in all of the offences and to adjust the aggregate sentences, "To achieve an appropriate relativity between the totality of the criminality and the totality of the sentences." Put perhaps more simply his Honour referred to Mill v The Queen [1988] HCA 70 where it was said the Court, "Must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences."

73.    Hulme J also referred to Cahyadi [2007] NSWCCA 1. At [27] of Cahyadi it was said in considering whether the sentence for one can comprehend the criminality of another:

"This is so regardless of whether the offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course, it is more likely that where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will affect the criminality of both."

74. Before setting the aggregate sentence, and relevant to totality, the interconnection of a number of the offences should be recognised. Count 1 is the street supply of methamphetamine; count 2 is likely sourcing the methamphetamine for the conduct of offending which can be inferred to be similar to count 1; the Form 1 matters show the offender to have an involvement in drug activity extending beyond methamphetamine, and at the similar low level; count 3 is the uncovering of drugs that were not found on the occasion of count 2, and the s166 matter reflects where those drugs were ultimately found. Count 4 is on one view very serious as it is a commercial quantity, but the role of the offender cannot be seen to be significant, and really enforces the view of the Form 1 matters that his involvement in drugs is not limited to methamphetamine. Count 5 likely relates to the fifth Form 1 matter of cannabis supply in the same way that count 2 relates to count 1 for methamphetamine supply. And whilst suspicions may be aroused by count 6, it is really a matter where very little criminality can be found beyond a reasonable doubt.

75. The conclusion to draw from this is that the offending is low level, but widespread, although perhaps thinly spread. The object of the aggregate sentence is to capture the overall criminality of the offender, which should be viewed in this light, and in the context of his subjective case detailed above.

76. The conclusion reached is that the aggregate term should be 4 years imprisonment, with a 2 year non parole period, reflecting the finding of special circumstances.

77. The indicative non parole period for the section 25(2) offence is 7 months. It differs from the standard non parole period because it is of low objective seriousness, the 25% discount, and for the reasons that support the finding of special circumstances. The indicative non parole period approximates the ratio of the balance of term to the non parole period of the aggregate sentence.

Orders

1. Of the 6 counts on the indictment and the one summary offence the offender is convicted.

2. In respect of counts 1 to 5 inclusive and the summary matter the indicative sentences are set out in the below table, with the Form 1 matters taken into account for count 1, and with the terms indicated both before and after the application of the 25% discount.

3. In respect of counts 1 to 5 inclusive and the summary matter the offender is sentenced to a term of imprisonment to date from 7 October 2022 with a non parole period of 2 years expiring on 6 October 2024 and with a balance of term of 2 years, expiring on 6 October 2026.

4. In respect of count 6 a CCO is imposed for a period of 2 years which necessarily must commence on the day of the order, subject to the standard conditions of not committing any offence and to present to the court if called upon to do so.

TABLE

Sec	Charge	Max	SNPP?	Obj Ser	Before % disc	After % disc	Comment
1	s25A(1) DMTA	Ongoing supply;	20	no	Low	30m	22m	5.73g total for about $900;
a	Plus Form 1 x 5	Supply > ind < comm; unless cannabis?	15	no	7g meth
b	Poss proh drug; 2y; no snpp	2	no	16 tabs; 8.23g
c	Poss / attempt to poss restricted subs contrary to poisons and therapeutic goods act; max 6 m; no snpp	6m	no	Diazepam
d	Poss proh drug;	2	no	2.5g cannabis resin
e	Supply > small < ind; max 10 y; no snpp	10	no	62g of cannabis
2	s25(1)	Supply proh drug >ind < comm;	15	no	Low, but more serious than 1	24m	18m	80g of meth in car
3	s25(1)	Supply proh drug >ind < comm;	15	no	Low	8m	6m	25g meth on prison strip search
4	s25(2)	Supply proh drug >= comm;	20	10	Low	24m	18m	Butanediol
5	s25(1)	Supply proh drug >small < ind;	10	No	Low	18m	13m	531g cannabis
6	36(1) FA	Poss unregistered firearm; max 14y no snpp	14	no	Low	CCO	The gel blaster
S166; s253C(4) Crimes (Admin of sentences)	Max 2 y; bring proh plant into place of detention	2	no	Low	8m	6m	Summary; goes with count 3

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Decision last updated: 20 June 2024