R v Towers

[2024] NSWDC 494

District Court

New South Wales

Medium Neutral Citation:

R v Towers [2024] NSWDC 494

Hearing dates:

20 September 2024

Date of orders:

18 October 2024

Decision date:

18 October 2024

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1 Jonathan Towers is convicted.

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

3 I impose an aggregate term of imprisonment of 6 years and 6 months with a non-parole period of 4 years to date from 24 November 2022.

4 The non-parole period will expire on 23 November 2026 and the head sentence will expire on 23 May 2029.

5 The offender will be eligible to be released on parole on 23 November 2026.

Catchwords:

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

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Drug Misuse and Trafficking Act 1985

Cases Cited:

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Rex (Crown)
Jonathon Towers (Offender)

Representation:

Counsel:
M Ainsworth / M Kiriakos (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Carmody Lawyers (Offender)

File Number(s):

2022/354979

Publication restriction:

None

JUDGMENT

1. Jonathan Towers (the offender) appears for sentence after pleading guilty in the Local Court to the following offences:

Sequence H76203171	Offence	Maximum Penalty/ SNPP
1	Supply a large commercial quantity of prohibited drug (6915.47g of MDMA) contrary to s 25(2) Drug Misuse and Trafficking Act 1985	Life imprisonment SNPP 15 years
2	Supply a large commercial quantity of prohibited drug (1834.42g of cocaine) contrary to s 25(2) Drug Misuse and Trafficking Act 1985	Life imprisonment SNPP 15 years
18	Deal with property reasonably suspected to be the proceeds of crime (greater than $100,000) contrary to s 193C(1) Crimes Act 1900	5 years imprisonment
19	Possess a prohibited weapon without a permit (extendable baton) contrary to s 7(1) Weapons Prohibition Act 1998	14 years imprisonment SNPP 5 years

Approach to Sentencing

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

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

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).

Facts

5. 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.

Sequence 1

6. Between 2 September 2022 and 25 November 2022 the offender, in Caringbah and other places in New South Wales, supplied a total of 6,915.47 grams of MDMA in return for payment of $179,000, constituted by the following four supplies:

1. On 4 October 2022, Raphael Kenny was contacted on Wickr by a buyer seeking to purchase 5 ounces of MDMA and 2,300 pills. Mr Kenny responded that the price of 1000 pills was $19 per pill and $2,800 per ounce if the buyer purchased 5 ounces. On 13 October 2022 on a Wickr group chat comprised of Mr Kenny, Alberto Cobeta and Isileli Kirby, they agreed to supply 1000 MDMA tablets, 10 ounces of cocaine and 5 ounces of MDMA for $118,000. On 14 October 2022, Mr Kirby collected the drugs from the offender and Jemma Dann in a carpark in Caringbah. Mr Kirby supplied the drugs to the buyer in exchange for $118,000 in cash. Mr Kirby immediately gave the $118,000 to the offender. The drugs supplied included a plastic package, numerous pink spade shaped tablets and powder being 750.7 grams of MDMA with a purity of 19% and five plastic packages comprising a compressed powder containing 140.4 grams of MDMA with a purity of 10%.

2. On 7 November 2022 in a group chat on Threema comprised of Mr Kenny, Mr Cobeta and Mr Kirby, they agreed to supply 3,000 MDMA tablets for $60,000. On 8 November 2022, Mr Kenny and Mr Kirby drove to a carpark in Caringbah where they collected the drugs from the offender and Ms Dann’s vehicle. The offender’s infant child was seated in the rear child seat of the vehicle at this time. Mr Kirby then supplied the drugs to the buyer in exchange of $60,000 in cash. In a conversation with the buyer Mr Kenny described the offender as “the boss” and that he was “high up in the Commo’s” [Commanchero OMCG]. Mr Kenny told the buyer he was getting bulk orders for the pills to sell at a music festival and that he had been selling drugs for about three years. Immediately after the exchange Mr Kirby gave the cash to the offender, who in turn gave it to Ms Dann and they returned home. At about 12:05pm, an unknown male attended the offender and Ms Dann’s residence for a period of 10 minutes before driving away. The drugs were later analysed and were found to be light orange spade shaped tablets with 785.85 grams having 20% purity, 796.8 grams at 18.5% purity and 779.2 grams having 19% purity. The total quantity supplied was 2,361.5 grams of MDMA.

3. On 23 November 2022 on a group chat on Threema Mr Kenny, Mr Cobeta and Mr Kirby agreed to supply 5,000 MDMA tablets and 10 ounces of cocaine for $171,000. Mr Cobeta represented during the price negotiations that the pills were “double the strength of normal eccies”. On 23 November 2022 the offender was on a group chat to assist with arranging delivery. The offender sent a photograph to the group chat with the order along with a hand-written note in code as requested by the buyer and including the newspaper for that day. On 24 November 2022, Mr Kenny and Mr Kirby drove to Caringbah to meet Mr Cobeta. Mr Kirby handed a package to Mr Cobeta. Mr Cobeta attended the residence of the offender and Ms Dann and collected a black backpack containing the drugs. The buyer received an encrypted message directing him to an address in Caringbah South. At about 10.30am the buyer met with Mr Kenny and Mr Kirby at the meeting location. They confirmed that the drugs were nearby and requested that the buyer provide the $171,000 and then the drugs would be delivered. The drugs supplied included five packages containing numerous orange spade and green grenade shape tablets that were later examined to be 3,638 grams of MDMA. The orange tablets (3254.7 grams) had a purity of 22%. The green grenade shaped tablets (383.3 grams) had a purity of 14%.

4. This is a deemed supply relating to the total amount of MDMA seized from the offender and Ms Dann’s residence on 24 November 2022. The drugs seized were as follows:

1. in a knotted plastic bag, six peach coloured spade-shaped tablets being 4.16 grams of MDMA found in a cupboard above the fridge;

2. in a round plastic container, tablet fragments and powder being 14.25 grams of MDMA found in a bathroom cupboard; and

3. in four resealable plastic bags, nine blue-green spade shaped tablets being 6.46 grams of MDMA found in a bathroom cupboard.

Sequence 2

7. Between 2 September 2022 and 25 November 2022 the offender, in Caringbah and other places in New South Wales, supplied a total of 1,834.42 grams of cocaine in return for payment of $425,000, constituted by the following six supplies:

1. On 1 September 2022, Mr Kenny communicated with a buyer on Wickr who wanted to buy 10 ounces of cocaine. Mr Kenny offered “some better stuff” for $8,500 per ounce and sent images of the drugs to the buyer. Mr Kenny sent a screenshot of a conversation with his supplier to the buyer, requiring that the money be paid in eight $10,000 bundles and one $5,000 bundle. Mr Kenny then added the buyer to a group chat with Mr Cobeta and Mr Kirby. At about 9.30am on 2 September 2022, Mr Kirby placed three bags in the boot of the offender’s vehicle when it was parked in Mr Kenny’s driveway. Mr Kenny then drove to a service station in Sutton and supplied 279.3 grams of cocaine in exchange for $85,000 in cash. Mr Kenny immediately drove from Sutton to Caringbah where he met with the offender and Ms Dann. Mr Kenny handed $85,000 to the offender, before returning to Canberra. The drug was later analysed and found to have a purity of between 33-34%.

2. On 6 September 2022, the buyer requested to purchase another 10 ounces of cocaine for $85,0000 in the group chat. Mr Cobeta responded and agreed to the supply, informing the buyer that Mr Kenny would meet him to complete the transaction. On 8 September 2022, Mr Kenny confirmed the supply would take place on the group chat. At about 9.45am on 9 September 2022 Mr Kenny drove to a service station in Sutton with Mr Kirby. Mr Kenny supplied 279.9 grams of cocaine in 10 knotted bags in exchange for $85,000 in cash. Mr Kenny immediately drove from Sutton to Caringbah where he met the offender and Ms Dann. Mr Kenny handed the $85,000 to the offender, before returning to Canberra. The offender and Ms Dann returned to their residence. At about 3:06pm, the offender and Ms Dann drove to a street in Caringbah South, where Ms Dann handed an unknown item to the driver of another vehicle which had stopped beside them. The drug was later analysed and found to have a purity of about 30%.

3. On 24 September 2022, Mr Kenny received a request to buy 10 ounces of cocaine on Wickr. He created a group chat with Mr Cobeta and Mr Kirby relating to this supply. On 27 September 2022, Mr Kenny messaged the buyer in the group chat confirming that he would supply 10 ounces of cocaine for $85,000. At about 1.20pm on 28 September 2022 Mr Cobeta provided an address in Caringbah on the group chat. He was then seen leaving the residence of the offender and Ms Dann carrying a brown paper bag. At about 1.42pm, Mr Cobeta arrived at the address and spoke to the buyer telling him that “blob” (Mr Kirby) would be arriving shortly. Mr Kirby arrived and retrieved the brown paper bag from Mr Cobeta’s vehicle and entered the buyer’s vehicle. They had a discussion where Mr Kirby said he was a friend of Mr Kenny and Mr Cobeta, that they could supply MDMA and other drugs and that he would send the buyer a price list. Mr Kirby supplied 281.4 grams of cocaine in exchange for $85.000 in cash. Mr Kirby gave the cash to Mr Cobeta, who drove to the residence of the offender and Ms Dann and entered the residence carrying the bag containing the cash. A short time later Mr Kirby sent the buyer a price list for various drugs. The drugs were later analysed and found to have a purity of 28.5%. The offender’s fingerprints were identified on the front and back of the vacuum-sealed package containing the cocaine.

4. On 13 October 2022 on a Wickr group chat comprised of Mr Kenny, Mr Cobeta and Mr Kirby, they agreed to supply 1000 MDMA tablets, 10 ounces of cocaine and 5 ounces of MDMA for $118,000. The details of the exchange were the same as outlined relating to the first supply of MDMA, and I will not repeat them. The drugs supplied included 10 knotted plastic packages which were later analysed to contain a compressed substance being 280.3 grams of cocaine with a purity of 31.5%.

5. On 23 November 2022 on a group chat comprising of Mr Kenny, Mr Cobeta and Mr Kirby on the application “Threema”, they agreed to supply 5,000 MDMA tablets and 10 ounces of cocaine for $171,000. The details of the exchange are the same as those set out for the third supply of MDMA and I will not repeat them. The drugs seized were in a plastic package containing a compressed substance that was later analysed to be cocaine in an amount of 280.2 grams with a purity of 38%.

6. This is a deemed supply relating to the total amount of cocaine seized from the residence of the offender and Ms Dann on 24 November 2022. The drugs seized were as follows:

1. a brick of compressed substance being 427.5 grams of cocaine with a purity of 40.5% found in a cupboard above the fridge; and

2. a round plastic container of compressed substance and powder that was later analysed and found to contain 5.82 grams of cocaine found in a bathroom cupboard.

Sequences 18 and 19

8. Police executed a search warrant at the residential address of the offender and Ms Dann and seized a total of $142,285 in Australian currency, as follows:

1. $1,355 in cash in a handbag belonging to Ms Dann on the dining table;

2. 13 bundles of cash totalling $130,000 under the desk of the second bedroom;

3. bundles of cash totalling $12,060 in an envelope in the top draw of a wardrobe in the second bedroom; and

4. $225 in cash in the offender’s wallet in their child’s bedroom.

9. Police also seized an extendable baton which was found in the walk-in wardrobe of the master bedroom.

10. The offender participated in a recorded interview at Sutherland Police Station following his arrest in which he admitted to owning all of the items seized but denied knowledge of any other offences.

The Offender’s Case on Sentence

11. The offender relies on the following documents:

1. psychiatric report of Dr Richard Furst dated 10 September 2024;

2. affidavit of Timothy John Concannon sworn 4 July 2023;

3. affidavit of Timothy John Concannon sworn 27 September 2023;

4. affidavit of Timothy John Concannon sworn 18 September 2024;

5. letter of Timothy John Concannon dated 18 September 2024;

6. letter of Emily Gebus dated 16 September 2024;

7. letter of Stephen Towers dated 18 September 2024;

8. reference of Daniel Horan undated;

9. reference of Adrian Hay dated 15 September 2024;

10. reference of Jordan Dow dated 18 September 2024;

11. letter of apology of the offender dated 20 September 2024;

12. Corrective Services case notes

13. TAFE certificate of completion dated 2 June 2023; and

14. NSW Chaplaincy – Positive Lifestyle Program dated 19 August 2024.

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

13. The offender was born in St Leonards, being adopted in his infancy. He has one sister. His parents have since separated, and he remains in contact with his father.

14. The offender did fairly well in primary school, especially in mathematics. He did not know he was adopted until he was in Year 3 or Year 4, being emotionally disturbed by the news and becoming rebellious. He was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) around this time and was treated with Ritalin (Methylphenidate), which he discontinued in his early high school years due to weight loss. He also saw a psychologist and his grades fell. His parents separated when he was in Year 5 or Year 6, which caused him further stress.

15. The offender was a keen footballer, playing rugby league and rugby union.

16. He reported to the psychiatrist a history of anxiety dating back to his early childhood and continuing in his teenage years. He had particular difficulty talking in front the class and thought that people saw him and judged him negatively. The psychiatrist stated these symptoms are consistent with the early stages of social anxiety disorder.

17. The offender attended high school until six months into Year 7 when he was expelled for fighting with another student. He got into fights on a regular basis around this time. As a result, the offender was sent to BoysTown at Engadine for one year before he returned to mainstream schooling completing Year 10.

18. The offender is currently in the process of making a civil claim against BoysTown in relation to sexual abuse he experienced at the hands of another boy in the boarding facility and a female worker when he was 13 years of age. He has engaged a solicitor to make a claim in relation to his abuse. His solicitor states that the offender has expressed a willingness to receive treatment and mental health support for the trauma he has suffered. The offender also believes he may have been abused when he was 10 years of age when he was intoxicated and woke up in someone else’s house naked.

19. His adoptive grandfather was a harsh man and a war veteran who would “tie him up” in the garage and leave him on occasions.

20. The offender had low self-esteem and difficulty adjusting to the knowledge that he was adopted, reporting to the psychiatrist that he felt “uncared for and unwanted”. He said he had a particularly “dark stage” between the ages of 13 and 17 and that he took an overdose of sleeping pills when he was 17 years of age.

21. The offender made contact with his biological mother on one occasion when he was 18 years of age. The offender has not had contact with her or his biological father.

22. The offender initially worked at a takeaway shop in Sylvania Heights when he was 13 years of age. He then worked at fast food outlet in Year 9 and Year 10. He worked for four years as an apprentice chef but did not complete the TAFE requirements. He also worked as a roof tiler in his 20s. He then worked as an apprentice plumber when he was 25 to 29 years of age. He completed his apprenticeship and is now a journeyman plumber. He was running both a labour supply business and a protein supplement business until he was injured in a motorcycle accident in 2020.

23. Adrian Hay, director of Plumb Workz and a previous employer of the offender, stated in his letter of the Court that the offender was trustworthy, reliable and hardworking. Mr Hay further stated that he would be happy for the offender to recommence work in his company as a plumber once he is released from custody and is physically able to work.

24. The offender was involved in a motorcycle accident when a motor vehicle struck the side of his motorcycle on 11 November 2020 at Cronulla. The offender sustained extensive injuries particularly to his legs during this accident and as a result underwent seven surgeries between 13 November 2020 and 7 September 2022. He has been left with a range of disabilities and impairments including ongoing pain, problems with numbness and sensitivity, difficulty bending or lifting, difficulty standing or walking for lengthy periods and restriction of movement in his legs and feet.

25. The offender indicated to the psychiatrist that he was in pain, was anxious and suffered from severe insomnia after the accident. He tended to isolate himself, gained about 30kg in weight, felt very insecure and lost his businesses.

26. His anxiety and symptoms related to re-experiencing the accident persisted for a number of months and he was diagnosed with Post-traumatic Stress Disorder (PTSD) by Dr Cedomir Igniatovic, clinical psychologist. His general practitioner, Dr Omar Salem, prescribed Temazepam for his insomnia.

27. The offender was purchasing Valium and Xanax to help him to relax and sleep, in addition to prescribed painkillers of Endone and Targin. He was also purchasing Tramadol and Oxycodone. Although he was still suffering from physical pain, his use of Tramadol and Oxycodone become more of an “escape” and a maladaptive way of coping with his emotional distress and traumatic memories. He also used Valium, Xanax and cocaine for the same purpose. He used cocaine over the three to four year period prior to his arrest, including before the motorcycle accident in November 2020.

28. A civil claim for damages arising from the injuries the offender sustained in the motorcycle accident was commenced on 2 November 2022. This has been considerably delayed by the offender’s incarceration. His claim has been transferred to the Stood Over List in the Personal Injury Commission. He is due to have a joint medico-legal assessment with an orthopaedic surgeon on 21 November 2024.

29. The offender also has a history of drug use that dates back to his early teenage years. He reported initially drinking alcohol and smoking cannabis when he was around 13 years of age and using Valium and MDMA when he was in Year 8 or Year 9. His drug use increased especially around the age of 17 when he reported using ketamine, MDMA, gamma-hydroxybutyrate, amphetamines, methylamphetamine, cannabis and DMT. His drug use continued until he was about 24 years of age.

12. The offender was previously involved in a relationship of about nine years duration. He described this relationship to the psychiatrist as being volatile and “drug-fuelled”. This partner gave birth to a daughter, whom he thought was his child until his partner told the offender that she was not his child, three years later. This experience made it difficult for the offender to trust people.

13. He has been in a committed relationship with Ms Dann for almost five years, but it has been strained by his incarceration. Ms Dann is also one of his co-accused. He has one son who turns four in the coming months. He has been unable to speak with Ms Dann or his son because of her bail conditions.

14. The offender’s prior offending relates to traffic convictions with no history of serious offences.

15. In relation to the offences before the Court, the offender reported that he had lost his labour hire business and his online supplement store and was losing a lot of revenue. He was not going to the gym, as a result of the surgeries following his motorcycle accident and his other sources of work including plumbing and excavation also crumbled. He was having difficulty claiming on insurance because he was self-employed, only being offered $300 per week in the first instance, that allowance eventually being increased to $1,770 per week.

16. The offender reported to the psychiatrist that his involvement was through his friend, Mr Cobeta. He said that he did not know the other co-offenders apart from his partner, Ms Dann. He said he was paid $300 for delivering an ounce of cocaine and $1000 for delivering a pack of MDMA pills. This stated motive for the offender’s involvement in the offences was untested in cross-examination and otherwise uncorroborated. It is inconsistent with my reading of the agreed facts and I do not accept it. I am satisfied that the offender had a significant drug addiction at the time of the offences and that he became involved in the offences as a means of supporting his addiction but I do not accept that he received such a paltry amount of compensation for his involvement.

17. While in custody at the Mid North Coast the offender worked for about 13 months. He has been moved around more in 2024, including to MRRC, Clarence Correctional Centre and Wellington Correctional Centre. He has been working in the kitchen in recent months. He has also completed a TAFE course in Logistics and has engaged in the Positive Lifestyle Program while in custody.

18. In his letter to the Court, the offender stated that he has had difficulty obtaining anti-inflammatory medication for his ongoing pain and has only had access to this medication intermittently while in custody. He has also spent time locked in due to COVID-19 and violent incidents.

19. The offender’s character referees describe him as a good person and a loving father, who is often willing to go out of his way to be there for his close friends and family. Each of his character referees referred to the impact that his incarceration has had on the offender as a result of separation from his son.

20. The offender expressed remorse to the psychiatrist, in his letter to the Court and to his character referees in relation to his offending conduct. He acknowledged that he has “hurt himself, hurt his partner and also hurt his son” as well as people in the community. When he is released from custody, the offender intends to focus all his time on his family, pursue a career in fitness and pursue opportunities in youth work to try and influence young minds away from the idea of crime.

21. The psychiatrist opined that the offender meets the DSM-5 criteria for a diagnosis of PTSD, Social Anxiety Disorder, Chronic Pain Disorder, and Substance Use Disorder relating to his use of cocaine, cannabis, benzodiazepines and opiate analgesics.

22. The psychiatrist opined that although the offender’s PTSD and Chronic Pain Disorder, which existed at the time of his offending, did not cause his offending directly, the effect of his physical and psychological impairment on a background of low self-esteem and anxiety, predisposed the offender to high levels of physical, psychological and psychiatric impairment at the time of his offending. This impairment, in turn, contributed to his offending through an escalation of his illicit drug use and purchases of prescription pills, eventually leading to his drug supply offending to make money, including to support his own drug use.

23. The psychiatrist stated in his report that the offender would benefit from psychotherapy, antidepressant medication and anxiolytic medications and lifestyle modifications such as regular exercise and sleep in respect of treating his PTSD. He also recommended that the offender engage in drug and alcohol counselling.

24. The psychiatrist further opined that the offender appears to have a lower risk of reoffending than the average offender coming before the courts for this type of offence by virtue of the absence of any major criminal antecedents, a positive work history, a history of stable relationships and attitudes of remorse and regret in relation to his offending.

Consideration

Objective seriousness

43. The offences took place over a three month period with three actual supplies of MDMA and five actual supplies of cocaine. The offender was also in possession of amounts of each drug that amounted to deemed supplies. The drugs actually supplied were exchanged for large amounts of cash.

44. The offender held the drugs before they were supplied and was responsible for receiving the large amounts of money paid for them. He was also involved in group chats to arrange the supplies. The offender did not make exchanges of drugs or cash.

45. The offender supplied 6,915.47 grams of MDMA and 1,834.42 grams of cocaine. The large commercial quantity of the cocaine was 1 kg and for MDMA was 500 grams. The amount of the cocaine supplied was over 1.5 times the large commercial quantity. The amount of MDMA supplied was almost 14 times the large commercial quantity. There was a large degree of overlap between the offences. The drugs were exchanged for a total of $604,000.

46. The offender had a significant and integral role in the drug supply operation. He held the drugs before they were given to the individuals who undertook the exchange and took receipt of the large sums of cash paid for them. He conducted himself as being one removed from the transactions, and this decreased the chance that his involvement would be detected. His involvement in some of the group chats indicated that he was involved in supervising and arranging for the transactions to take place. The offender’s role was above the lower end of the hierarchy in the organisation.

47. The proceeds of crime offence relates to the possession of $142,285 in cash that was reasonably suspected to be the proceeds of crime. The amount of cash possessed was about $40,000 more than the lower threshold limit for the s 193C(1) offence, with the upper threshold being $5 million dollars.

48. The prohibited weapon offence related to the possession of an extendable baton that was located during the search. There is no evidence that the weapon was used or intended to be used.

49. The offender had a difficult upbringing. He found out that he was adopted and endured the breakdown of his adoptive parents’ marriage. He was exposed to violent treatment at the hands of his grandfather and suffered from ADHD, which was poorly controlled. He experienced behavioural problems and was put into institutional care where he experienced sexual abuse. He experienced significant abandonment and had no positive adult role models. He suffered significant psychological symptoms as a child and adolescent and he used drugs regularly and heavily from his teenage years until he was about 24 years of age. His drug use returned after he was in a serious motor vehicle accident and trying to deal with chronic pain and the addictive nature of the pain killers he was taking. In all of the circumstances, I am satisfied that his judgement was impaired by his complex mental health condition at the time of becoming involved in the offences and that his moral culpability for the offences is reduced to some extent.

50. I have taken into account the maximum penalty for the offences and the standard non parole periods as legislative guide posts as to the appropriate sentence.

Deterrence

51. 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 drug offences that the financial and other rewards will be neutralised by the risk of severe punishment.

52. General deterrence may be afforded less weight where an offender suffers from a mental condition, because they are not an appropriate person to be made an example of. This is such a case. The offender suffered from PTSD and Chronic Pain Disorder. I am satisfied that there was a causal link between his condition and his offending conduct and the resurgence of his addiction issues was caused by his medical need for prescription pain killers.

53. There is some need for specific deterrence but it is reduced to some extent. The offender has good insight into what led to his offending conduct and has tried to make the best of his circumstances in custody.

Aggravating factors

54. There are no relevant aggravating factors.

Mitigating factors

55. The offender did not have any significant record of convictions: s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999 (NSW). The offender was 32 years old at the time of the offending.

56. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has demonstrated that he is prepared to take the opportunities presented to him in custody to work and participate in courses. He has an offer of work on his release from custody. The offender has a young child and some support in the community. He is willing to accept interventions to deal with his past history of trauma. I am satisfied that he has good prospects of rehabilitation.

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

58. I have had regard to parity. I have already sentenced Mr Kenny and Mr Cobeta for their involvement in this organisation and I will pass sentence for Mr Kirby today. Mr Cobeta was charged with less serious offences and is not as relevant for the purposes of parity. The offender faces the same charges as those to which Mr Kenny and Mr Kirby pleaded guilty and they involve substantially the same quantity of drugs. I am satisfied that Mr Kenny’s and Mr Kirby’s involvement was at a lower level to that of the offender. The offender was a more important member of the organisation. He was entrusted with holding the drugs and dealing with the large sums of cash paid for them. The offender was added to group chats as an organiser of transactions. He clearly had contact with persons further up the chain in order for his to receive and store the quantities of drugs that he did and to pass on the cash paid for them. Each of the offenders had compelling subjective cases, but Mr Kenny’s was slightly superior.

59. 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, his mental condition and his inability to access some of his pain medication.

60. The offender has been in custody since the date of his arrest on 24 November 2022. I will backdate the sentence imposed to the date of his arrest to take into account the offender’s presentence custody.

Penalty

61. Jonathan Towers is convicted.

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

63. I make a finding of special circumstances. This is the offender’s first significant time in custody and he has mental health and substance use issues that justify a longer period on parole.

64. I will impose an aggregate sentence: s 53A Crimes (Sentencing Procedure) Act 1999. The sentences I would have imposed after allowing for the appropriate discount, had separate sentences been imposed are:

1. sequence 1 – 5 years with a non-parole period of 3 years;

2. sequence 2 – 4 years and 6 months with a non-parole period of 2 years and 6 months;

3. sequence 18 – 9 months.

4. sequence 19 – 6 months with a non-parole period of 3 months.

65. I impose an aggregate term of imprisonment of 6 years and 6 months with a non-parole period of 4 years to date from 24 November 2022.

66. The non-parole period will expire on 23 November 2026 and the head sentence will expire on 23 May 2029.

67. The offender will be eligible to be released on parole on 23 November 2026.

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Decision last updated: 22 October 2024