R v Veidre

[2020] NSWDC 839

District Court

New South Wales

Medium Neutral Citation:

R v Veidre [2020] NSWDC 839

Hearing dates:

14/10/20, 16/10/20

Date of orders:

16/10/20

Decision date:

16 October 2020

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 5 years with a NPP of 3 years. (4/7/19-3/7/22). I find special circumstances.

The indicative sentences are:

Seq 1 Supply large commercial qty – 4 years 6 months with NPP 2 years 9 months (Form 1 taken into account).

Seq 2 Supply commercial qty – 3 years with NPP 1 year 10 months.

Re Seq 10 Possess unauthorised firearm – s 10A conviction with no other penalty.

Seq 4, 9 and 11 on the s166 certificate are withdrawn and dismissed.

Catchwords:

Crime – Sentence – Supply large commercial quantity methylamphetamine – Supply commercial quantity MDMA – unauthorised possession of a firearm

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act No 1 of 2002 (2002) 56 NSWLR 146

The Queen v Qi [2019] NSWCCA 73

Category:

Sentence

Parties:

NSW DPP – Crown
Buka Veidre - Offender

Representation:

Mr T Buckingham for Crown
Mr P Boulten SC for Offender

File Number(s):

2019/207552

sentence

1. Mr Buka Veidre is for sentence in relation to three offences being, firstly, sequence 1, an offence of supply not less than a large commercial quantity of methylamphetamine. In relation to that matter he asks that I take into account five further offences which are on a Form 1 document, namely, an offence of possessing ammunition, an offence of possessing a prohibited weapon, namely a silencer, an offence of possessing another prohibited weapon being a taser and an offence of possessing another prohibited weapon being a knuckle duster and a further offence of possessing a precursor, that is a drug precursor, namely iodine and safrole.

2. The second offence for which Mr Veidre is to be sentenced is an offence of supply not less than the commercial quantity of methylenedioxymethylamphetamine, also known as MDMA or ecstasy. The third offence is one of unauthorised possession of a firearm.

3. The maximum penalty for the sequence 1 offence is life imprisonment and it carries a standard non-parole period of 15 years. For the sequence 2, supply MDMA offence, the maximum penalty is 20 years imprisonment and it attracts a ten year standard non parole period. The offence of unauthorised possession of the airgun carries a maximum penalty of five years imprisonment and no standard non-parole period is specified. Of course the maximum penalties for those offences and the standard non-parole periods where applicable are important guideposts to which I must have regard in sentencing. Mr Veidre pleaded guilty at an early opportunity and he is entitled to, and I have made allowance for, a 25% discount on account of the utilitarian value of that plea of guilty.

FACTS

4. The facts are agreed and are in essence as follows: At the relevant time the offender lived at a house in Cornelia Road, Toongabbie with his father, mother, two sisters and brother. On Thursday, 20 June 2019, the day before the offences, the offender’s father arrived home at about 2.30pm and saw the offender in the driveway with five other men. A twin cab utility was parked in the driveway which the offender’s father had not seen before. The offender told his father he was unloading some things for work, although he was not wearing work clothes and nor were any of the other five males. The next day, Friday, 21 June 2019, at about 7.30pm, police attended the house in relation to an incident in which the offender was the victim. The offender was at home at that time. In the course of investigating the incident that brought them to the premises, police commenced searching the house. This included a search of the crawl space underneath the house. In the course of that search police located the following items: four large plastic white and clear storage containers containing liquid, some smaller sealed containers with screw tops containing a powder, and glassware capable of being used in the manufacture of prohibited drugs. Police were informed by the offender’s father that the storage area under the house was used only by the offender to store his belongings.

5. As a result of these findings a crime scene warrant was obtained and executed at the premises. Police conducted a search of the offender’s bedroom and located the following items: three quantities of methylamphetamine with a total weight of 1815.3 grams, found inside a backpack and a Woolworths shopping bag. These are the drugs that form the sequence 1 offence to which I have referred. Secondly, a quantity of MDMA, also known as ecstasy, with a total weight of 455.1 grams which was found in a Coles brand freezer bag in a set of drawers, that being the sequence 2 offence. And, also a 6 mil Airsoft brand airgun, that being the sequence 10 offence under the Firearms Act to which I earlier referred. Police also found a quantity of ammunition, a silencer device, a taser and a set of knuckle dusters. I note that with respect to the ammunition and the silencer that neither of them were in any way connected with or capable of being used with the airgun. Police also found an ice pipe in a shoe box under the bed. Subsequent testing of the liquids found under the house confirmed that they comprised 8907 grams, that is 8.9 kilograms approximately, of iodine and 18402 grams or just over 18 kilograms of safrole, those being drug precursors capable of being used to manufacture other drugs.

6. On 4 July 2019 the offender, who was aware that police were looking for him, attended Fairfield Police Station where he was arrested and charged. The Agreed Facts record that the offender was in possession of the drugs, that are the subject of sequence 1 and 2, for the purposes of supply. However, it is conceded by the Crown in the facts that there is no suggestion that the offender actually supplied any drugs to any person. It is also an agreed fact that the airgun was of a type designed to propel a plastic pellet by means of air, and is spring operated, but was found by police not to be in working order.

OBJECTIVE SERIOUSNESS

7. The maximum penalties and, where applicable, standard non-parole periods for the drug offences clearly show that they are serious, particularly the offence involving a large commercial quantity of methylamphetamine, for which the maximum penalty is life imprisonment. The objective seriousness of the two drug offences is increased by the substantial quantities involved. The sequence 1 offence involved the possession and deemed supply of just over 1.8 kilograms of methylamphetamine, which is more than three times the large commercial quantity. In the case of the sequence 2 offence involving the deemed supply of MDMA the quantity was 455 grams and thus was well in excess of the commercial quantity and only just short of the large commercial quantity.

8. The quantity of drugs involved is an important consideration when assessing the seriousness of the offences. However, it is not the only nor the dominant factor. It is also important that I make some assessment as to the role played or the position occupied by the offender in carrying out his offences. In this regard, and as the Crown has submitted, the facts are slightly unusual in that the drugs were discovered accidentally by police who were called to the defendant’s premises following an incident in which he was said to be a victim. There is no suggestion that the offender was being targeted by police for ongoing involvement in drug supply. Rather, it appears that the offender was using the family home for the purposes of warehousing the drugs and drug precursors. It was accepted by the Crown that the offender possessed the drugs and precursors in effect as a warehouser in that he was minding the substances for others. This is consistent with the submissions made for the offender and I accept those submissions. It was also submitted on behalf of the offender and, accepted by the Crown, that the Court could not be satisfied that the offender’s possession of the drugs and precursors was for a period beyond two days, namely 20 and 21 June 2019. I accept these submissions and I approach the offender’s possession of the drugs, precursors and glassware on the basis that he had been in possession of these items for a period of no more than two days. As to the remaining items, namely the airgun, ammunition, silencer, taser and knuckle dusters, I approach these on the basis that the offender had been in possession of those items for a longer period although not one that I can define with any certainty.

9. My conclusion that the offender was acting as a warehouseman on behalf of others, however, does not trivialise the seriousness of his role. He was after all more than a mere courier with momentary or brief contact with the drug. It is conceded in the agreed facts that the supply offences committed by this offender are made out by reason of the deemed supply provisions in the legislation and there is no suggestion that he was himself involved in any actual supply of drugs. While no doubt there were others more senior in the hierarchy who were involved more directly in the manufacturing and distribution of the drugs this offender played a crucial role in providing what was thought to be a safe hiding place for the drugs. It is true, as senior counsel for the offender submitted, that he was expendable and was put in the position of taking the risk, however, he still played an important role. He used the family home occupied by his parents and siblings, who were apparently law abiding and respected members of society, and in doing so the offender provided the enterprise with a very valuable cloak of anonymity, in other words an innocent front which would not ordinarily attract police attention. Also, given the large quantity of drugs and their obvious value, his role signifies that a significant amount of trust was held in him by those higher up in the syndicate.

10. As the Courts have observed, persons in intermediate positions such as warehousemen must expect substantial sentences because without them illegal drug enterprises could not operate. Hence the importance of both personal and general deterrence. It was submitted on behalf of the offender that his drug offences lie significantly below the middle range although not at the bottom of the range of objective seriousness. The Crown submitted that the offences lie below the midrange but are not in the lowest end of the range. In my view there is not a lot of difference between the two positions taken by the Crown and defence, and I find that the objective seriousness lies somewhat above the lowest range but below the middle range of objective seriousness.

11. Although the offence of possessing a firearm attracts a maximum penalty of five years imprisonment, marking it as potentially a serious offence, I accept that in this case the offence is approaching the lowest level of objective seriousness. It is not at the very lowest level because, as the Crown submitted, the offender’s possession of the weapon must be viewed in the context of the other items including knuckle dusters, ammunition, a silencer, a taser and drugs that were in his possession at the time. However, given the nature of the airgun being a weapon capable only of propelling a plastic projectile, and given that the gun was inoperative, this offence lies at a low level of objective seriousness.

12. I am also required in sentencing for the offence of deemed supply of a large commercial quantity of methylamphetamine to take into account the five matters on the Form 1 document. While I am only sentencing for the one offence and not these additional five offences it is appropriate that in determining the sentence on sequence 1 that I give greater weight to the need for personal deterrence and to the community’s entitlement to extract retribution: see Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act No 1 of 2002 (2002) 56 NSWLR 146.

SUBJECTIVE MATTERS

13. Turning to subjective matters. The offender is now 25 years of age and was almost 24 at the time of his offences. While not a youth he is entitled to some mitigation by reason of his relatively young age. However, given the seriousness of his drug offences, his criminal history and his possession of weapons, his relative youth is not a matter that can mitigate his offending to a large degree. In this regard I note that the offender’s youth was not a matter that featured strongly in the submissions made on his behalf.

14. The offender’s personal circumstances have been placed before the Court largely by means of the psychological report of Mr Sam Borenstein. The offender was born in Fiji and is the eldest of four children. His father works as an electrician and his mother as a registered nurse. He came to Australia when he was aged five and he told the psychologist that his parents were caring and attentive. He reported no history of trauma, abuse or domestic violence. He attended high school until about year 11 and was apparently a gifted rugby league player but his hopes for a professional career in that sport were ended when he suffered a significant shoulder injury at age 17.

15. His employment history has involved work in unskilled positions including unloading containers and concreting as well as some casual factory work.

16. Psychological testing and the history taken from the offender indicate no psychiatric or other disorder, although he has a mild potential for emotional and behavioural problems and a propensity towards impulsiveness. He reported a significant history of substance abuse involving cannabis, MDMA, ketamine and cocaine and told the psychologist that in the period leading up to the offences he was using considerable quantities of ice per week which he attributed to the breakdown of a relationship.

17. He told the psychologist that he had been asked to store the drugs at his parents’ house in return for an ongoing supply of ice. The psychologist diagnosed him as suffering substance use disorder which is currently in sustained remission due to his imprisonment. The psychologist also reached the conclusion that in the period leading up to the offences the offender was grappling with an adjustment disorder with depressed mood as well as his substance use disorder.

18. The offender told the psychologist repeatedly that “I want to go back to the person I was before I started using ice. I am the eldest of the family”. He also told the psychologist that prison had provided a necessary circuit breaker from which he intends to maintain abstinence and reconstruct his life as per his letter to the Court. In that letter the offender says that he takes responsibility for his actions although he maintains that he was holding onto the drugs for someone else. He tells the Court that now being sober he realises the effect that drugs have on people in the long run and is embarrassed and deeply ashamed, especially given his position as the eldest of the children. He also writes of deep remorse and claims that he is not the same person he was 15 months ago.

19. The Court also has a letter from the offender’s mother who says she was extremely shocked and initially could not believe that drugs had been found at the house. She says this is not consistent with the son that she knows. She says her son has changed and is now focused and has matured and expresses the view that he was a good boy but mixed with the wrong crowd. She believes that he is very remorseful and wants to settle down and start a family and continue working. Significantly, she and her husband still support him and he will be able to live with his parents again when he is released.

20. A Sentencing Assessment Report has been provided to the Court which is largely consistent with the history given to the psychologist. The report notes that the offender was able to reflect on the impact of his offending on his own family and especially his younger sisters and expressed some understanding of the potential impact of drug use on the wider community. He also told the author of that report that he not only had a daily drug habit but also a significant gambling problem. The report assesses him as being a medium risk of reoffending. I have taken into account the evidence about a drug habit and a gambling problem because it provides some degree of context for the commission of these offences, although of course it does not provide any excuse nor does it mitigate the offending in any way.

21. The offender did not give evidence on sentence. I therefore approach his self-report to the psychologist and his letter with some caution. Nonetheless I do accept, as did the Crown, that a reasonable degree of remorse has been expressed by means of the offender’s letter and his reports to the psychologist and the Community Corrections officer. The offender has no prior matters involving drugs on his record, and this is his first time in custody. Nonetheless he cannot be described as a first offender given his criminal history.

22. It is positive that since being in custody the offender has participated in a program operated by the Salvation Army and another operated by Prison Fellowship International. On the other hand there is the fact, as noted in the Sentencing Assessment Report, that since being in prison he has incurred a charge of assault which occurred in May 2020 and apparently involved another inmate being taken to hospital.

23. The offender’s prospects of rehabilitation and avoiding future offences are significantly improved by the support he enjoys from his family. However, the existence of that support evidently did not prevent him from committing these offences or any of the others on his record. While there are some prospects of the offender rehabilitating himself this will depend largely upon whether he can keep on top of his tendency to abuse drugs, to avoid gambling and maintain stable employment. At the moment his prospects of rehabilitation are uncertain and I cannot describe them as being more than fair.

24. In the course of submissions I was taken to some previous sentencing decisions by both parties. In particular, Mr Boulten of Senior Counsel took me to the decision in The Queen v Qi [2019] NSWCCA 73 in which the Court of Criminal Appeal resentenced Mr Qi to a head sentence of three years with a non-parole period of 18 months after overturning the original sentence of an ICO on the ground of manifest inadequacy. In that case the offender had been acting as a courier of nearly 2 kilograms of methylamphetamine. However, that case was of course subject to its own objective and subjective circumstances. In particular, I note that Mr Qi was being resentenced for only one offence, had no relevant criminal antecedents, had been on strict bail pending sentence, had served a small portion of the ICO, and had made significant progress in the period between sentencing and resentencing. By contrast the current offender, Mr Veidre, is to be sentenced for two drug offences with a further five offences on a Form 1 document, does not have the benefit of a good prior criminal history and does not have the benefit of a finding of good rehabilitation prospects.

25. I was also taken by Mr Boulten to the sentencing statistics for each offence and I have had regard to these subject to the limitations involved in the statistics given their lack of particulars about the particular circumstances of the offending.

26. I have had regard to a number of other sentencing decisions, in particular decisions of the Court of Criminal Appeal. I have also had regard to the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999. I am satisfied that the threshold referred to in s 5 of the Crimes (Sentencing Procedure) Act 1999 has been crossed with respect to the two drug offences, in other words that no penalty other than full-time imprisonment is appropriate for those two offences.

DETERMINATION

27. In relation to the firearms offence involving the airgun I am not satisfied that the s 5 threshold has been crossed and in that matter, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 I impose a conviction but no other penalty.

28. It was argued that I could impose an aggregate sentence for the two drug offences of three years of less, and that if I did so then it would be appropriate to order that the sentence be served by Intensive Correction Order. I have had regard to these submissions but, regrettably, in my view such an outcome would be inadequate. Most fundamentally I am not satisfied that an aggregate sentence of three years or less would be adequate to address all of the circumstances of this case and in particular the need for deterrence of this offender and others. I intend to impose an aggregate sentence.

29. The indicative sentences that I would have imposed if I had not imposed an aggregate sentence are as follows.

30. Mr Veidre, these are what are called indicative sentences they are not the actual sentence that I will impose and that will be explained shortly.

31. The indicative sentence are as follows: For sequence 1, taking into account the Form 1 matters, a head sentence of four years, six months with a non-parole period of two years, nine months. In relation to the sequence 2 offence a head sentence of three years with a non-parole period of one year, ten months.

32. I convict the offender of all three offences. Given that I am sentencing for more than one offence I have had regard to principles of totality and the fundamental importance of imposing a sentence that cannot be described as crushing on a man who is still relatively young. I have also had regard to the need for accumulation and as was conceded on behalf of the offender there is some need for accumulation between the two drug offences given that they are separate offences. However, in my view the degree of accumulation with respect to those two matters should be minimal.

33. I intend to make a finding of special circumstances based upon this being the offender’s first time in custody and the need for a significant period of supervision on parole. I will therefore adjust the ordinary ratio as between non-parole period and head sentence.

34. On the sequence 1 and sequence 2 offences, I impose an aggregate sentence of five years imprisonment with a non-parole period of three years. Those will both date from 4 July 2019. The head sentence will expire on 3 July 2024 and the non-parole period will expire on 3 July 2022.

35. With respect to those matters 4, 9 and 11 I note that they are withdrawn and they are accordingly dismissed.

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Decision last updated: 11 February 2021