R v Traynor (a pseudonym)

[2023] NSWDC 612

District Court

New South Wales

Medium Neutral Citation:

R v Traynor (a pseudonym) [2023] NSWDC 612

Hearing dates:

1 December 2023

Date of orders:

1 December 2023

Decision date:

01 December 2023

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate imprisonment sentence of 3 years and 10 months with a non-parole period of 1 year and 11 months

Catchwords:

CRIME — Drug offences — Supply prohibited drug — Commercial quantity — Indictable quantity — Cocaine

SENTENCING — Mitigating factors — Plea of guilty — Remorse

SENTENCING — Penalties — Imprisonment —Intensive Correction Order not appropriate

SENTENCING — Relevant factors on sentence —Form 1 — Role of offender — Objective seriousness

SENTENCING — Sentencing procedure — Instinctive synthesis

SENTENCING — Subjective considerations on sentence — Drug addiction — Mental illness — Impact of multiple traumas — Family hardship —Mercy — Special circumstances

Legislation Cited:

Court Suppression and Non-Publications Orders Act 2010 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146

Devaney v R [2012] NSWCCA 285

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Donald (a pseudonym) v R [2021] NSWCCA 198

Hamzy v R (1994) 74 A Crim R 341

Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149

Jadron v R [2015] NSWCCA 217

Lloyd v R [2022] NSWCCA 18

Luque v R [2017] NSWCCA 226

Pym v R [2014] NSWCCA 182

R v Edwards (1996) 90 A Crim R 510

R v Kelly [1999] UKHL 4; [2000] 1 QB 198

R v R E [2023] NSWCCA 184

R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131

R v Wirth (1976) 14 SASR 291

Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3

Tootell v R [2012] QCA 273

Category:

Sentence

Parties:

Frank Traynor (a pseudonym) (offender)
Public Prosecutions (NSW) (Crown)

Representation:

Counsel:
S Howell (for the offender)

Solicitors:
Morrisons Law (for the offender)
K Reardon Solicitor for Public Prosecutions (NSW) (Crown)

File Number(s):

2022/69908

Publication restriction:

1. Order pursuant to s 7 Court Suppression and Non-publication Orders Act 2010 (NSW):

a. The offender be referred to by a pseudonym.

b. The publication of any of the following be prohibited:

i. information tending to reveal the identity of the offender, a party to these proceedings, in connection with these proceedings or in connection with the evidence given in these proceedings or in connection with information about evidence given in these proceedings; or

ii. information tending to reveal the identity of the offender’s father in connection with these proceedings or in connection with the evidence given in these proceedings or in connection with information about evidence given in these proceedings.

2. Order 1 shall apply:

a. To all media including but not limited to print, radio, television, internet and social media;

b. Anywhere in the Commonwealth;

c. For as long as the Court deems necessary.

JUDGMENT – ex tempore revised

Non Publication Order

1. There is a Non-Publication Order in this matter. For abundant caution, I have reformulated that Order in the terms set out in the Notice of Motion filed in the proceedings, which was attached to Exhibit 1, at Tab 16.

Introduction

2. When he was before the Local Court, Frank Traynor indicated he would plead guilty to three serious offences:

1. Supplying Greater than the Indictable Quantity of the Prohibited Drug, cocaine, pursuant to s 25(1) Drug Misuse and Trafficking Act 1985 (NSW), this matter has a maximum penalty of 15 years and/or a significant fine; and

2. Two counts of Supplying a Commercial Quantity of the Prohibited Drug, cocaine, pursuant to s 25(2) Drug Misuse and Trafficking Act 1985. This offence has a maximum penalty of 20 years imprisonment and/or a substantial fine. For an offence which falls in the middle of the range, taking into account only objective factors, there is a standard non-parole period of 10 years.

3. In any sentencing exercise, the maximum penalty and, where applicable, the standard non-parole period, are important guides to the exercise of the Court’s sentencing discretion, and content should be given to that standard non-parole period when it comes to consider an appropriate sentence.

4. When I deal with him for the commercial quantity supply matter, Sequence 11, I am asked to take into account an offence of dealing with proceeds of crime, and it is appropriate I do so. I do not sentence for that offence, but it is a matter relevant to sentence. I will refer to it shortly.

Agreed Facts

5. There are Agreed Facts before the Court. They are detailed and comprehensive. They were illustrated by tables of transactions or screenshots of text messages.

6. A police strike force investigating the distribution of illicit drugs in the local area led to an undercover operative or an undercover officer, UCO, engaging with Traynor. The details of the transactions are set in the Agreed Facts and relate to supplying of a commercial quantity of 377.15 grams of cocaine. Seven transactions took place. The money paid for the total drugs was just under $100,000.

7. Transactions with an undercover operative occurred on 5 August 2021, 12 August 2021, 20 August 2021, 2 September 2021, 30 September 2021 and with a second undercover operative on 29 October 2021. There was a further transaction on 13 October 2022. Attempts were made by an undercover operative officer to arrange a meeting with Traynor’s upline supplier, but that was not done as the upline supplier said no.

8. The drugs were recovered. Their purity was tested. The purity ranged from 11% to 83%. It is clear from the facts, that this offender was able to source quantities of the drug ranging from 14 grams/half an ounce up to 4 ounces/56 grams of the drug. A half ounce was sold for $3,600 and 4 ounces for up to $13,000. The price decreased as the quantity went up.

9. Simultaneously, between August 2021, police were also lawfully intercepting calls made to and from the offender’s phone. He used his mobile service to communicate with customers about the supply of cocaine.

10. Over 100 communications were intercepted. A table is included in the Agreed Facts noting the transactions. In total, Traynor is identified as agreeing to supply just under 360 grams of cocaine between August 2021 and January 2022. The amounts varied from a gram to 56 grams. Most of the transactions during the relevant period were in low gram weights, but towards the end of 2021 greater quantities were supplied.

11. On 10 March 2022, the offender was placed under arrest and a search warrant executed on his home – 190 grams quantity of cocaine and cash totalling $55,850 was seized.

12. Police surveillance devices records reveal that the offender was using cannabis and cocaine inside his garage on a regular basis. Unaware he was being monitored, he spoke about his drug problem and the fact that he smoked cannabis every day of the week.

Objective seriousness

13. The two commercial supplies relate to rolled up quantities of the drugs supplied, either to the undercover operatives or to other customers. The rolling up of this quantity was accepted by the defence: Hamzy v R(1994) 74 A Crim R 341; Jadron v R[2015] NSWCCA 217. It has some advantage to the offender in that it restricts the maximum penalty available as prescribed by the legislation for a single offence, rather than the total theoretically available maximum sentences for multiple charges.

14. The disadvantage is that the quantity of drug supplied sets the penalty range, and it now puts him in the commercial range with a standard non-parole period. That said, any sentencing exercise involves a review of the whole of the conduct of the offender, regardless of how the charge or charges come before the court for sentence. I am required to make an assessment of the objective seriousness or gravity of each offence, it is a critical component of the sentencing process, but I am not required to label the behaviour. What I have to do is adequately set out my appreciation of how serious the offending was, and the critical factors that apply in that assessment.

15. It should be obvious from the facts as agreed that a relatively large quantity of illicit drugs was either distributed or intercepted by police. The Sequence 11 matter involves the distribution of the drugs, both to individual users and in bulk, for later distribution to other users. The offender does not need a lecture from me about the impact of illicit drugs on himself and his life, but by his actions, and as he acknowledges in material before me, other people were damaged by what he did, their families were damaged by what he did, and the community as a whole were damaged by what he did.

16. It seems to me that it is clear that there was some initial dispute about whether he used others, but the material before me indicates that it was his own business. He was supplying from his own house, using his own phone. He was dependent on his upline supplier for the drugs supplied. He had no say about the purity of the drug, which varied from transaction to transaction, and, in fact, varied even in the bags contained in those transactions. But it is clear that he was able to source those drugs at relatively short notice, and he had on arrest, drugs available for supply, and the proceeds, the cash, to purchase more.

17. There were, in relation to both commercial quantity matters, a substantial number of transactions. Those matters occurred over many months. He had organised the business. It was not sophisticated. It was transactional. Rudimentary codes were used, but they were, as was the use of his own phone, unsophisticated. Meetings took place either in public, where he exposed himself to risk of discovery, or from his own home, where he risked discovery. By dealing from his own home where his family were present, or potentially present, exposed them to risk.

18. If people deal from their own home, they are not to know whether desperate people might turn up wanting drugs and money, and some are not customers, they are prepared to steal. He placed his own family at risk.

19. He acted as a conduit for his upline supplier. He took the risks which his upline supplier did not. Mr Howell, counsel for the offender, suggests that this matter falls in the low to midrange. Ms Reardon, for the Director, focuses more on the need for adequate punishment to appropriately recognise the seriousness of the crime.

20. I do not need to nominate at what point an offence lies on a hypothetical range, as such matters do not have any inherent meaning, but when I come to consider Sequence 12, the commercial supplies to the undercover operative, I do regard it as a matter of some seriousness relative to matters where there is perhaps a one-off supply involving the same quantity of drugs: R v R E [2023] NSWCCA 184 at [35].

21. Here, the commercial aspect, the persistence, as well as the amount, increase the seriousness of the matter. I am prepared to accept that the offender utilised some of the drugs for himself. There is no evidence that he gave the drugs away, but I suspect he probably gave some on what is called ‘tic’; that is credit.

22. All the material before me leads to only one conclusion, that he expected to make some profit from this activity beyond the amount of drugs that he himself consumed, and the same applies for the other commercial matter of a similar quantity. Each were serious examples of offences of their type, although not anywhere near the most serious.

23. The police did allow these transactions to continue for months. They were clearly aware of Traynor’s involvement and encouraged it. The Agreed Facts indicate, as is not surprising, that they were attempting to cultivate or, through the telephone intercepts, obtain intelligence which might have led to the upline supplier or suppliers. It does not mitigate the offence that it was not nipped in the bud earlier. There is nothing in the material before me to indicate that the offender was induced in any way to supply the drugs to the undercover operatives: R vWay (2004) 60 NSWLR 168; [2004] NSWCCA 131 at [181].

Maximum penalty and standard non-parole period

24. Each matter calls for significant punishment, not just to deter this offender but to deter others and to recognise the potential harm and give appropriate content to the non-parole period and the maximum penalty. The possession of the drugs and cash found on arrest, in a sense, help inform those earlier determinations about the commercial matters.

25. If someone is engaged in the business of supplying drugs, it is not at all surprising that they would have cash on hand and that they would have drugs on hand available for future supply. To the extent that I have to punish for the possession of the quantity for the purpose of supply, that is the 190 grams, while that is a separate offence and requires a separate punishment, I have to be careful not to double count matters that already informed the sentences for the other two offences.

Form 1

26. So far as the Form 1 is concerned, I did not sentence for that offence, but I must take it into account. In many cases, taking a matter into account on a Form 1 can and should lead to an increase in the sentence to recognise the need for personal deterrence and retribution for the crime for sentence: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [39]-[42].

27. Here however, because of the findings I have made, that there was some commercial element or business element to the commercial supplies and the fact that the cash is just one matter that I have taken into account in reaching that conclusion, it will be quite wrong if I increase the penalty for retribution. And, so far as specific deterrence is concerned, the offender’s arrest and potential imprisonment or actual imprisonment will be, in my view, sufficient specific deterrence for him.

Criminal record

28. I have mentioned the maximum penalties and the standard non-parole periods. They are, as I said, important measures to be taken into account.

29. This is the first time Traynor has faced the possibility of a custodial sentence. He came before the court once before in 2017. Had it not been for this offending, that would have been regarded as a one off. I will treat him as a person who, prior to his involvement in this offence, was effectively a first offender. That does not excuse what he did, but his record will not be held against him in any way.

30. It is clear that, at that time, it was a bit of a wakeup call, and he did engage with a psychologist, but that treatment was not successful. However, I take into account that he did engage and has the capacity to engage. I do not hold against him that it was not successful.

Subjective case

31. A comprehensive and detailed set of materials was put before me in Exhibit 1.

32. The offender did not give evidence. He wrote a letter to me. In it he expressed appropriate remorse and regret to family members and his psychologist.

33. So far as the general subjective material before me is concerned, I have no problem in accepting it. It is sad but uncontroversial. There is no reason here to lessen the effects of the opinion of those who provided affidavits to the Court or of the professionals who provided their reports: Lloyd v R [2022] NSWCCA 18; Devaney v R [2012] NSWCCA 285 at [88]; Luque v R [2017] NSWCCA 226 at [116]; Pym v R [2014] NSWCCA 182 at [79].

34. There were statements attributed to the offender that he was making no profit from these transactions. In the absence of sworn evidence, those assertions just do not bear up. Given the amount the money involved in the transactions.

35. I am prepared to accept that he was using some of his product, but I am not prepared to accept that he made no profit. The only conclusion I could reach beyond reasonable doubt is that some cash profit was intended, not just supply, it is not just feeding his own drug use. That was the point made by Ms Spatz at pars 55 and 56 of her report, Exhibit 1, Tab 1. Just on that point, I note that the need to acquire funds, even for a drug habit, even a severe habit, is no excuse to supply to others.

36. The extent of the offender’s drug use, his apparently successful attempts to overcome his drug problem, the genesis for his drug use, are all important matters that I can take into account on sentence. It seems clear to me from the material to which I will shortly refer, that this young man has reached the stage in his life where he can make a contribution to the community, and has done all that is possible, while subject to strict bail, in the community to demonstrate progress to rehabilitation: Henry v R [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149 at [273].

37. In her report, Ms Spatz indicates that Traynor meets the diagnostic criteria for several mental health disorders including; Alcohol Use Disorder, Attention Deficit Hyperactivity Disorder, Cannabis Use Disorder, Opiate Use Disorder, and Post-Traumatic Stress Disorder.

38. Traynor has, at times in his life, managed to stay abstinent. For the last 17 months, he has successfully done so, as the urine tests before me indicate. He had a number of challenges when he was young, not the least, his family experiences and ADHD.

39. Ms Spatz notes that the history before her indicates he has always struggled with impulsivity, lack of self-control, concentration difficulties, and trouble with authority, and that is borne out by all the material before me. At the same time, since he left school at a very young age, he has been able to be in almost continuous employment and be a productive member of the community.

40. There was a significant incident in 2005 when his then partner suffered a cardiac arrest in his presence. She died despite his attempts to revive her. Her death had a significant impact upon him. It is the genesis for the finding of Post-Traumatic Stress Disorder. It is not surprising, in those situations, that a person with his background and his ADHD, would turn to the use of illicit drugs. At various times in his life, he has done so.

41. He was, however, able to meet and then form a relationship with his current partner. They met in 2018. She has a child, and in 2019, their first child was born. A third child was born in 2022. The premature birth of the child corresponded with the development of a serious life-threatening medical condition in his current partner.

42. It is also important to note that the material, when I come to assess both the objective circumstances and his subjective case, that the material before me indicates that the period of offending also corresponded when he was in a relationship with that partner, and he was, and did have, obligations for two children, and was working, including working at the mines which he started in November 2021. So, although a regular drug user, it appears that he was able to ostensibly lead a normal working family life in the community.

43. His current partner’s problems in pregnancy were more serious than the word, ‘problem’. It really is an inadequate word to describe her problems.

44. Her treating specialist, indicates that the weeks following the birth were one of the most challenging that she has ever been involved in. The material before me indicates that his partner will live with a very severe cardiac problem for the rest of her life. It will have an impact on her long-term health outcomes, including her survival.

45. If the offender is imprisoned, as the Crown submit he must be, she will suffer considerable hardship. She will not have the offender present as a provider. She will have three children, one of whom has potential problems associated with premature birth. She has her own significant heart problems which may be managed, but which carry with it considerable risk to herself.

31. She is not confident that she will get support from family members. That lack of confidence is understandable given that her own mother, on the material before me, is facing significant health problems.

32. There will be additional financial problems for the family. If the offender is gaoled, if things get worse, as they may well do, he will not be around to help.

33. So far as the offender is concerned, I do not accept his assertions that he did not receive a big financial gain, as he says, in par 31 of Ms Spatz’s report. It is not suggested that he was making the huge profits that upline suppliers can make. I do not know what he means by ‘big’, but there is clearly some financial gain.

34. In terms of his treatment, Ms Spatz notes (what should be known to members of the community) that if incarcerated, Traynor will have limited access to treatment for his various mental health problems. There is material before me that he is actively engaged with a treating psychologist, and that, if he continues treatment, his prognosis is good.

35. It is unlikely, if gaoled, that he will get the treatment at a level he is presently engaged in. Ms Spatz also states that in gaol he will be the exposed to the risk of COVID-19. She notes that the measures that have been taken since 2020 in attempt to reduce the spread of the virus in the gaol, will restrict his capacity to engage in treatment or education or work programs; this must be recognised. She also suggests that a community based sentence will enhance his prospects and make him available to see to the welfare of his partner and children. It will also promote his recovery by maintaining distance from antisocial associates and drugs (commonly found in the gaol).

36. There are references before the Court. Those who know him from work speak of a hardworking, productive man. His family, including his mother, corroborate the material, the history, given to his psychologist. It is difficult for them to see him in the position he is in, and the position of his family. They all speak of a person who appears to have learnt a lesson.

37. In his letter to me, Traynor says he has had time to reflect. He said he was not thinking about the consequences of feeding other people’s addiction. He told me he has been unable to get an appointment to see a psychiatrist in the community. This will be even more difficult when he is serving a gaol sentence.

38. He speaks of his plans and his goals for his life. He wants to put the health of his family first. He concludes, “I deeply regret my actions and hope you can consider the efforts I have made to prove I am not the same [Frank] I was before, as well as consider the health of my family when sentencing me”.

39. They are I am sure, heartfelt sentiments, and I accept them as genuine. The problem the Court faces is that I am sentencing the Frank that was the man before.

40. That does not mean that I cannot consider the health of the family when sentencing him today. Mr Howell, on behalf of the offender, in comprehensive submissions put forward a submission that his partner’s illness and continuing underlying condition created a situation of quite exceptional circumstances; primarily because there is a significant risk that her condition will deteriorate. She has three children; one is very young with her own problems. The incarceration of the offender, will add to the stresses and strains on the family unit, therefore exacerbating the future risk.

41. A judge can, in an appropriate case, exercise mercy as “hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so:” R v Wirth (1976) 14 SASR 291 at [294].

42. Judges should not be too steely hearted. A judge should try to meet the situation of family hardship by suitably framed orders as to the penalty: R v Wirth.

43. Both parties took me to R v Edwards (1996) 90 A Crim R 510. The Court there made clear that imprisonment, if called for, should be imposed given how common it is for offenders’ families to suffer if they are in gaol. Such concerns should not deflect the courts from imposing an appropriate punishment unless the circumstances are ‘exceptional’.

44. The word ‘exceptional,’ in the statutory context is something “which is out of the ordinary course, or unusual, or special, or uncommon. [But it] need not be unique or unprecedented or even rare”: Tootell v R [2012] QCA 273 at [18]; R v Kelly [1999] UKHL 4; [2000] 1 QB 198 at [208].

45. Judges must apply principles consistently. I am bound by the restrictions and apparent inflexibility of the strict Edwards approach:

“That sending a person to prison will more often than not cause hardship, sometimes serious hardship, and sometimes extreme hardship, to another person. It requires no imagination to understand why this is so. Sentencing judges and magistrates are regularly obliged, in the course of their duties, to sentence offenders who may be breadwinners …, carers, … [and] protectors of persons who are weak or vulnerable … and many others … [to custody and] fulltime imprisonment.” (Gleeson CJ at [515]).

61. One reason for the general principle in Edwards is illustrated by this case. Traynor was offending despite his obligations to his wife, and his financial obligation to her and their two children. He continued to offend and continued to profit to some degree from illicit drug supply over many months.

62. I am however prepared to accept that a significant reduction of the otherwise appropriate sentence is called for to mitigate, to some degree, the impact of custody on the offender’s family, in particular his wife. The additional significant problems that arose during the course of his wife’s pregnancy and their continuing impact on her, are at such a level that even a steely-hearted judge could not ignore them. But hardship is only one of many factors that have to be balanced.

63. Another factor that has to be balanced is evidence personal to the offender that could make his time in custody more onerous. While the evidence is, in a sense, speculative, a judge can apply their own experience and the experience of other courts to appropriately anticipate there will greater hardship in custody for the offender, and I will take those matters into account.

Mental health

64. Obviously, the offender’s underlying mental conditions will also impact negatively on him while he is in custody, but sadly there are many people with similar underlying conditions in our gaols. I acknowledge treatment is hard to get while in custody.

65. A submission was made that the offender’s background and underlying mental conditions require a proper understanding of, not just how he came to offend, but reduce his moral culpability. There are many ways underlying mental problems can be treated by the courts in amelioration of penalty: Donald (a pseudonym) v R [2021] NSWCCA 198 at [116] citing Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].

66. Here, I put primary emphasis on the greater burden associated with a custodial sentence. I do not believe that it moderates, to any significant degree, the need for a general deterrent sentence. Specific deterrence can be properly met by any term in prison. I do not ignore the impact of his childhood on him it does reduce his moral culpability. I do not ignore his underlying conditions. Nor do I ignore the time he has spent on remand, and bail, and the obvious stress and anxiety that he would have suffered waiting determination of this matter today.

Submissions

67. I have the benefit of comprehensive submissions from Ms Reardon for the Director of Public Prosecutions and Mr Howell for the offender. We have had an opportunity this morning to discuss the evidence and principles that I have sought to synthesise today.

68. The prosecution position is stark. In their submission, when one considers; the objective seriousness of each offence, the length of time over which they were committed, the role of the offender, the quantity of drugs supplied, his motivation, even accepting that he was a drug user, significant penalties must be imposed. So significant are they, that there is no option other than full-time imprisonment, even after giving full weight to matters in mitigation raised by the defence.

69. Mr Howell submitted that when I synthesise all matters, notwithstanding the seriousness of the three offences, with appropriate weight given to all mitigating factors and the exceptional circumstances to which I have referred, a sentence of 3 years or less could be imposed. And, if a sentence of less than 3 years could be imposed, adopting the forward-looking approach set out by the High Court in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3, and the material before me, particularly his compliance with harsh bail conditions, and his progress towards rehabilitation, that there would be no community safety issues were the sentence to be served subject to conditional release and an Intensive Correction Order.

Synthesis

70. I have given the matter anxious consideration, particularly the potential impact of a custodial sentence on his partner and family. As the offender said in his letter to me, he is not the man he was, but as I remarked earlier today, I have to sentence the man he was for what he then did.

71. There is a need to reduce the otherwise appropriate sentence because of family hardship, the subjective case put forward, and his demonstrated progress towards rehabilitation. There is some need to reduce the sentence because of; his underlying mental health issues, his background, and the impact of his drug use on him and his capacity to think clearly.

72. I must however go back to the facts of the three matters for sentence, primarily the two commercial supply matters. These were not one-off offences. They were planned supplies, even though unsophisticated, of a relatively significant quantity of drugs over a regular period. Some profit was expected from each transaction. I must consider all the purposes of sentencing. I must give appropriate weight to the exceptional circumstances proved, and to the subjective case put forward by an offender. But they are not the only considerations in matters involving three offences of drug supply.

73. A sentence must indicate the community’s disapproval of the offending. A sentence should indicate a seriousness of the offence, individually and collectively. Here the need for appropriate punishment requires a custodial sentence of some length.

74. There are three offences before the Court. There must be some accumulation of penalty. While many of the purposes of sentencing and all of the subjective matters refer to each of them, the quantities and the transactions involved in the commercial supplies require some modest, albeit accumulation. The drugs that were found at the premises were obviously ready for future supplies. When I give full weight to all of the matters put before me, I simply could not come to a sentence of less than 3 years in aggregate. I have no option but to impose a custodial sentence and a full-time custodial sentence.

75. Traynor’s progress towards rehabilitation must be recognised. As must the need to reduce, but sadly not eliminate, the impact of his imprisonment on himself but more importantly his family. These matters will also be taken into account by a substantial finding of special circumstances in addition to the necessary reduction of the total sentence. But there must be a full time custodial sentence.

76. Each of the indicated sentences will be reduced by 25% to take into account the utilitarian value of the early plea of guilty. I have taken care when it comes to accumulating sentences not to erode the benefit of that reduction and I have rounded slightly to the offender’s advantage. The other aspects of the plea of guilty, acceptance of responsibility and remorse, have also been taken into account generally.

Orders

77. For the indictable supply I indicate a sentence of 1 year and 10 months. In relation to each of the commercial supplies, there will be an indicated sentence of 3 years with a non-parole period of 1 year and 6 months. The sentence will date from the 26 November 2023 to take account time served on remand.

78. The total aggregate sentence will be 3 years and 10 months, the non-parole period will be 1 year and 11 months. That sentence will date from the 26 November 2023. You will be eligible for consideration for release to parole of the expiry of 1 year and 11 months on the 25 October 2025. The balance of the term will commence on the 26 October 2025. The total sentence expires on the 25 September 2027.

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Decision last updated: 19 March 2024