R v Turk

[2020] NSWDC 400

District Court

New South Wales

Medium Neutral Citation:

R v Turk [2020] NSWDC 400

Hearing dates:

17 June 2020

Decision date:

17 June 2020

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Sentenced to a term of imprisonment of 2 years 3 months. Non parole period of 1 year 2 months.

Catchwords:

CRIME – Supply not less than commercial quantity prohibited drug - rolled up amount - multiple supplies to undercover operative - no direct harm to community as drugs intercepted.

SENTENCING – Relevant factors on sentencing -- early plea – acceptance of responsibility - drug addiction - gambling addiction - strong family support – remorse - solid prospects if assisted on parole - special circumstances.

Legislation Cited:

Confiscation of the Proceeds of Crime Act 1989

Crimes (Sentencing Procedure) Act 1999.

Drug Misuse and Trafficking Act 1985

Cases Cited:

Hamzy v R (1994) 74 A Crim R 341

Jadron v R [2015] NSWCCA 217

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

R v Chan [1999] NSWCCA 103

R v DW [2012] NSWCCA 66

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

Siwek v R [2017] NSWCCA 178

Texts Cited:

Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497. parolesupervisionandreoffending.pdf

Category:

Sentence

Parties:

Jarrod Turk (the offender)
Director of Public Prosecutions

Representation:

Solicitors:
Ms E Parkes, Solicitor Advocate, Legal Aid NSW (for the offender)
Mr M Rollestone (for the Director of Public Prosecutions)

File Number(s):

2019/00325981

SENTENCE – ex tempore revised

Drug supply

1. The sale of illicit drugs causes considerable harm, not just to those who purchase and ingest them but to the community in general. The trade in illicit drugs is one of the principal sources for crime in our community. It is not just the sale of drugs that causes harm; it is the crimes that are committed by those who seek to obtain funds for drugs; it is the destruction of personal and family life that is caused by the use of drugs, and frankly, by the imposition of harsh penalties on those caught supplying drugs.

2. The law of this State is clear; in most cases, those who engage in the sale of drugs for profit, if caught, will end up in gaol. Parliament on behalf of the community and the courts of criminal appeal have stated repeatedly that only a substantial full time custodial sentence could properly reflect objective seriousness of crimes involving commercial supply of illicit drugs, and only such sentences could meet the purposes of sentencing: s 3A Crimes (Sentencing Procedures) Act 1999.

3. In commercial drug supply matters courts are required to impose a sentence which by its severity must attempt to deter others. People who are tempted to supply drugs must ask themselves a simple question, is it worth it? The answer to that question is simple as the evidence in this case makes clear and as Mr Turk in his evidence indicates he now understands. The answer is “no, it is not worth it.” If you supply drugs and get caught you will end up in gaol.

4. That said, the community must understand that the problems caused by illicit drugs and created by addictions to readily available poker machines cannot be solved by arresting or gaoling our way to a solution. All the evidence I have read is that harsher prison sentences for users who supply drugs and conventional law enforcement methods such use of undercover operatives cannot cure of themselves what is a social problem, a health problem a personal problem, a community problem and ultimately a policy problem.

Facts

5. Jarrod Turk was caught in an undercover scheme supplying or attempting to arrange the supply of dioxymethamphetamine, MDMA. He did so using his criminal contacts; people who he knew had access to quantities of the drug. He did not think about what would happen if he was caught. He did not think of the consequences to himself or his family or to the users of the drugs or to his community. He has been in gaol since his arrest on 17 October 2019, during which time he has had ample opportunity to think about the consequences to the community of his criminal acts.

6. When he was before the Local Court Turk admitted his guilt to one rolled up count of commercial supply of MDMA; s25(2) Drug Misuse and Trafficking Act 1985. That offence carries a maximum penalty of 20 years’ imprisonment and for an offence taking into account only objective factors in the middle of the range of seriousness, a standard non‑parole period of 10 years has been fixed by Parliament.

7. The transactions are particularised in the agreed facts. In short summary:

1. On 15 August 2019 at Albion Park Rail Turk supplied an undercover operative with 27.7 grams, 1 ounce, of MDMA, 74% purity for $2,200.

2. On 5 September 2019 at Albion Park Rail he supplied an undercover operative with 28 grams of MDMA, 74% purity for $2,100.

3. On 12 September 2019 he agreed to supply the undercover operative with 56 grams of MDMA. He had trouble obtaining that amount and the purchase was declined by the undercover operative, because it was felt it was not safe to proceed.

4. On 24 September 2019 at Albion Park Rail a 87.7 grams, 3 ounces, of MDMA were supplied for $5,500. The agreed facts say only of 7% purity. That may be a typographical error.

5. On 17 October at Albion Park Rail he supplied a further 5 ounces, 139.9 grams of MDMA, 66% purity for $9,000. He was arrested soon after and the $9,000 was recovered.

8. All of the purchases had been arranged by the undercover operative. The operative made requests for the drugs which the offender was happy and able to meet as best he could. The undercover operative made requests for larger amounts of the drug, which requests the offender was happy to comply with. He told me, and I am prepared to accept, that his profit was $500 per 28 grams or ounce supplied. I note that while this country went to the metric system before Mr Turk was born, drug suppliers still use the Imperial measures for reasons, I can only suspect, of deep-seated tradition. Full admissions were made on arrest.

Seriousness

9. When the matter was in the Local Court it was agreed the various transactions should be rolled up into one count of supply commercial quantity of MDMA: S25(2) Drug Misuse and Trafficking Act. The commercial quantity for MDMA ranges from 125 grams to 499 grams. Here 339 grams was supplied or agreed to be supplied: 283 grams was actually supplied on four occasions over a period of months.

10. The accumulation of drug quantities was entirely appropriate and was accepted by the defence: see Hamzy v R (1994) 74 A Crim R 341; Jadron v R [2015] NSWCCA 217. As it is axiomatic that rolled up quantities involves a series of criminal acts I do not double count this sentencing measure by having reference to 21A(2)(m) Crimes (Sentencing Procedure) Act. That said, the number of occasions and the time over which the supplies occurs remain relevant considerations.

11. Turk received in total $9,800 and would have received more if other financial transactions had have been completed or he had not been arrested. His expect profit or received profit was $500 per ounce.

12. He operated at above the street level. He had access to dealers and those who could put him in contact with them. Although he himself used drugs and gambled, his motivation was financial gain.

13. The offender was not to know the buyer was an undercover operative and the drugs would be seized and destroyed. The Court of Criminal Appeal has said that this fact is of “limited relevance”: R v Chan [1999] NSWCCA 103, at [21]; R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131, at [172]. As the Court made clear in Way, what is more relevant to an assessment of the case is the offender’s moral culpability, that is his motivation or understanding. Here he expected a personal profit. Here he acted with the understanding that the drugs would be resold. He did so heedless to the consequences to those who he thought would be purchasing and consuming them. That the drugs were not distributed was not due to any act of the offender.

14. That said, R A Hulme J in R v DW [2012] NSWCCA 66 after a review of the authorities noted that the criminal law is always concerned with the consequences of offending. Justice Hulme noted that where the authorities have prevented drugs from being disseminated into the community this in no way mitigates the subjective criminality of the offender. His Honour went on to say however:

“If the involvement of the authorities prevents the transaction from resulting in harm it is illogical not to afford that fact appropriate weight, just as in the converse situation one would take into account any damage that was a consequence of the offending”, at [117]

15. I adopt that guidance.

Subjective case

16. Turk gave evidence this morning. He told me of his experience of gaol. The programs he has undertaken have had a positive impact on him. He has learnt coping strategies. He has worked in the gaol and kept himself busy. He confirmed the history given to his psychologist and expressed appropriate regret and shame, which he has felt since reflecting on his criminal activity on becoming drug-free. I am prepared to accept that he is genuinely regretful.

17. He has had a lot of growing up to do and gaol has enabled him to do so. I believe he was frank in cross-examination and in the evidence he gave to me.

18. I have the benefit of the Sentencing Assessment Report, references from his mother, who is present in court with this stepfather and friends, gaol certificates and the comprehensive report of Mr Borkowski, psychologist.

19. Born in 1998, Turk has never come to the notice of police before. He has been in custody since his arrest on 17 October 2019. He has strong family support; always a good sign of prospects for rehabilitation. His referees say the man described in the agreed facts is not the man they know.

20. His mother provides a detailed history of Turk’s development and problems derived from his father’s own problems, which she describes as having a toxic effect on the family. She has made considerable sacrifices for her son. She should not blame herself for the trouble he is in. She says her son has benefited from being drug free and is now fitter and more positive and purposeful than ever.

21. The offender’s custodial record notes, understandably given his youth, that he is anxious and depressed. The Sentencing Assessment Report from Ms Clark, dated 11 June 2020, exhibit B, reports some acceptance of responsibility and acknowledgment that his actions were foolish and selfish. Turk told Ms Clark he was playing poker machines every day and would spend all his money on them, something he affirmed in evidence before me.

22. The evidence before me establishes that at the time of the commission of the offence he was unemployed, anxious and depressed and using drugs to self‑medicate. That said, the law is clear: the fact a person is drug-affected can never be an excuse for the commission of crimes such as this. At best it helps explain how the offences came about.

23. Ms Clark assesses Turk as having a medium risk of reoffending and says a supervision plan can be put in place. That plan is designed to reduce the risk of reoffending. If followed it will put him in touch with local alcohol and other drug rehabilitation agencies, and gambling addiction services and can be tied in with a mental health care plan.

24. In a comprehensive report Mr Borkowski sets out; the personal history of the offender, the results of his testing, his conclusions and sound recommendations for future treatment. The report is professional and supported by evidence. It appears uncontroversial. Turk did not seek to minimise his criminality either in the reports or his evidence before me.

25. In short summary, Turk grew up locally. His parents separated when he was young and while he adores his mother, whose unconditional support continues, his father’s behaviour led to considerable instability in the family when he was a teenager. He left school in year 10 and has been in regular work since but his life was gradually consumed by; drug use, a gambling addiction to poker machines, a negative self-image and the impact of what Mr Borkowski diagnoses as a major depressive disorder with anxious distress. Turk’s drug use enabled him to “fit in.” At the time when he committed this offence he not stable enough to work, despite the efforts of his girlfriend’s father. His drug sales allowed him to get funds to continue to consume drugs and gamble.

26. Mr Borkowski makes a number of sensible suggestions – unfortunately some, such as the Compulsory Drug Treatment Program are unavailable in the Illawarra. To date while in custody, Turk has received no psychiatric or psychological assistance. He is unlikely to get any. He may benefit from a young offenders program such as that operating from Oberon or the Ngara Nura Program at Long Bay. On release a residential drug treatment program is recommended with a mental health care plan focused on psychotherapy and Cognitive Behaviour Therapy.

Gambling

27. While a gambling addiction may explain why an offender has committed an offence in the same way as a drug addiction, generally it does not warrant the extension leniency. Nevertheless, if it made to overcome the addiction it can be reflective of favourable prospects of rehabilitation: Siwek v R [2017] NSWCCA 178.

Guidance

28. While every offence and every offender requires individualised treatment, courts must in the exercise of their sentencing discretion take guidance from a number of sources. They include; the maximum penalties and the standard non‑parole period prescribed; the decisions of other courts, particularly those designed to give guidance; and of course, the purposes of sentencing which here importantly include the deterrence of this offender and others from committing similar crimes. It also includes the proper recognition of the harm done to the community by such crimes.

29. While not prescriptive, content should be given to the maximum penalty and the standard non-parole periods. However, as the High Court in Muldrock (2011) 244 CLR 120 made clear, I do not need to engage in any staged approach, and accordingly my findings about the objective seriousness of the offence do not compel any one result.

30. I am sentencing Mr Turk during the COVID pandemic and a significant shutdown of all aspects of our community. The pandemic has caused Corrective Services to make significant changes in the way they process prisoners. As I am presently advised this has meant that prisoners such as Mr Turk do not get personal visits, and there are more lockdowns and disturbances in the gaol. Should COVID enter the gaols there are procedures in place for early release of some prisoners to parole. I believe he would qualify if such measures are required. I accept that the pandemic will cause increased anxiety in gaols as in the community and I have taken those matters into account.

Submissions

31. Mr Rollestone, solicitor for the Director of Public Prosecution, and Ms Parkes, Solicitor Advocate for Legal Aid NSW, have provided comprehensive written submissions to which they have spoken. Their helpful submissions have been reflected in my judgment. I have taken them into account. One significant difference appears as while Mr Rollestone points to authorities which suggest full time custody is the only proper sentence here, Ms Parkes suggests, the sentence could be served subject to Intensive Corrections in the community.

32. I have given the matter close consideration. For the reasons I have set out giving proper content to the maximum penalty and standard non-parole period and the purposes of sentencing requires full time custody in this matter. Further, a sentence of less than two years or adjustment of a sentence taking into account time served to allow for intensive correction in the community is not justified. Such a disposition would not properly reflect the punishment necessary for a matter such as this. That said, there is room for a lenient disposition in this matter.

Synthesis

33. The otherwise appropriate sentence will be reduced by 25% to take into account the utilitarian value of the early guilty plea: s 25D Crimes (Sentencing Procedure) Act 1999. The plea has other value. It appears Turk may have learnt the lesson expected to be taught by a gaol sentence and has now some insight into the crime and the harm he has caused, particularly himself and his family and friends. He has positive prospects and I believe an important life lesson has been learned.

34. Turk’s need for supervision, therapeutic drug addiction treatment and an anticipated compliance with the Corrective Services supervision plan provide a reason for a reduction of the time that must be spent in full time custody. There will be a significant finding of special circumstances. In so finding I am mindful of the requirement that the minimum period for which he should be imprisoned must also reflect the gravity of his offence and any the other purposes of sentencing.

35. It is important to note that studies reveal that offenders who received parole supervision upon release take longer to commit a new offence and were less likely to commit a new indictable offence, and committed fewer offences than offenders who were released unconditionally into the community: Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497. parolesupervisionandreoffending.pdf.

36. Here, the cell door must remain closed. But that said, the protection of the community is also an important consideration. The community need no longer be protected from Turk by keeping him in custody longer than what is absolutely required to adequately take into account the seriousness of his crime. Community safety is contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of. It assumes particular importance in cases such as this where Turk is a first offender and does not appear to have developed settled criminal habits.

Orders

37. I enter a conviction. Had it not been for the utilitarian value of the plea of guilty there would have been a sentence of three years.

38. Taking into account a finding of special circumstances, I set a non-parole period of 1 year 2 months commencing 17 October 2019 and expiring 16 December 2020. There will be a parole period of 1 year 1 month to commence upon the expiration of the non-parole period on 17 December 2020 and expiring on 16 January 2022. The total sentence therefore is 2 years 3 months.

39. I will make a drug destruction order if that is necessary.

40. In the light of the evidence, pursuant to s 29 (1) Confiscation of the Proceeds of Crime Act 1989 the Defendant pay to the State of New South Wales a proceeds of crime order in the sum of $2,500.

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Decision last updated: 30 July 2020