R v Wayne John Hammond

[2010] NSWDC 309

CITATION:	R v Wayne John HAMMOND [2010] NSWDC 309
JUDGMENT DATE:	18 November 2010
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	For the firearm offence - fine of $100. For the resist police offence - fine of $250. For the supply prohibited drug offence - non parole period of 2 years, balance of term of 2 years.
CATCHWORDS:	CRIMINAL LAW - sentence - supply prohibited drug namely amphetamine - possess firearm without being authorised by a licence - resist police officer in the execution of duty - form 1 offence taken into account - plea of guilty - relevant criminal history including previous custodial sentence for similar offence - psychological report - co-offenders sentenced for more serious offences - no alternative to full-time custody for mid-level supplier with previous similar conviction
LEGISLATION CITED:	Crimes Act 1900 s 58 Drug Misuse and Trafficking Act 1985 s 25(1) Firearms Act 1996 s 7A(1)
PARTIES:	Regina Wayne John Hammond
FILE NUMBER(S):	2009/15681
COUNSEL:	Mr O'Sullivan for Mr Hammond
SOLICITORS:	Mr Thompson for the ODPP

JUDGMENT

SENTENCE

1. I am sentencing a man - Wayne Hammond - who is a mid level supplier of amphetamines in the Dubbo area. He supplied those dangerous and prohibited drugs to a woman, who supplied to a man who distributed the drugs. Although a drug addict himself, he was fairly well removed from the lives of the ultimate consumers of the product which he sourced. He nor I know how many were affected by the drugs which he put on to the market, how young those lives were or what damage may have been caused to those lives. Nor do we know whether some of those too may become - when they reach their fifties, as Mr Hammond is - drug addicts as a result of the availability of the drugs which he facilitated.

2. As a result of his involvement in this activity Mr Hammond was charged with an offence of supplying a prohibited drug, namely amphetamine. That is a crime against s 25(1) of the Drug Misuse and Trafficking Act 1985. It carries a maximum of fifteen years imprisonment. In addition, for reasons which I will explain, he was charged with possessing a firearm without being authorised by a licence and resisting a police officer in the execution of the officer’s duty.

3. If I have not done so already, I convict Wayne Hammond of those three offences.

4. When I come to sentence him for the crime to do with the firearm I will take into account, at his request, an offence of not keeping a firearm safely and I sign a certificate to that effect. The firearm offence is an offence against s 7A(1) of the Firearms Act 1996 and the resist arrest is an offence against s 58 of the Crimes Act 1900.

5. It is important for a judge in sentencing an offender to set out briefly what happened to result in the charges, so that the offender and the community know the basis upon which the judge has imposed the sentence. Police in 2008 were investigating the supply of drugs in the Dubbo area. They focused on a man named Heath Collison. They arranged for an undercover operative to buy amphetamine from Heath Collison. They found that his supplier was mainly a woman named Meaghan Finn. Their investigations led to Wayne Hammond as being her supplier for methylamphetamine. Accordingly police monitored Mr Hammond’s movements in his dealings with Ms Finn.

6. Between 11 November 2008 and 13 February 2009 police detected five separate supplies of methylamphetamine from Mr Hammond to Ms Finn. The total involved was some 120 grams. Briefly the five occasions were these. The first was on 11 November 2008 in Dubbo, where Mr Hammond provided Ms Finn with 8 grams of methylamphetamine in exchange for $2,800. About a month later on 13 December 2008 he supplied Ms Finn with 28 grams of methylamphetamine for effectively $2,800. A few weeks later on 29 December 2008 Ms Finn came to where Mr Hammond was in Glossodia and again purchased 28 grams of methylamphetamine. The agreed facts sheet, which is part of exhibit A from which I am taking this description, does not include an amount for that transaction. Again a month later on 30 January 2009 Ms Finn went to Glossodia, where she met Mr Hammond and bought another 28 grams of methylamphetamine for $2,800. Finally on 13 February 2009 Ms Finn again came to Glossodia and again purchased 28 grams for $2,800.

7. On that day police went to a house where Mr Hammond was staying in Dubbo in order to arrest him. He saw them coming and jumped over the back fence. He was pursued by Detective Sergeant Bamford, who caught up with him and tried to put handcuffs on him but Mr Hammond continued to try to escape. Eventually he was secured by Sergeant Bamford.

8. A search warrant was issued regarding his residence in Glossodia and police found on the mantel piece of the lounge room a rifle. It was not in working order. Indeed from a few months after finding it no licence was required for that particular weapon. Mr Hammond made admissions about his providing drugs to Meaghan Finn. He was charged with the three offences that I am now sentencing him for.

9. One of the other important factors which a judge has to take into account is whether a particular offender has a criminal record. In this case Mr Hammond has a criminal record. As far back as 1979 he was convicted of supplying a dangerous drug. He was fined for each of thirteen charges. In 1980 he was convicted in Queensland of possession of a prohibited plant. At that stage he was a relatively young man, having been born in 1958. The same year, that is 1980, he was convicted in Fairfield Petty Sessions of using heroin. His record does not show any offences relating to drugs then for many years. He has various driving offences and other incidental offences but then in 2004 he was convicted in the District Court of supplying a prohibited drug. He received a full-time custodial sentence of sixteen months, with a non-parole period of eight months.

10. It is important also of course for a judge to take into account the personal circumstances of an offender. In this case Mr O’Sullivan of counsel, who appeared for Mr Hammond, called his client to give evidence. Mr Hammond is about to turn fifty-two and came from a supportive, stable background. His mother was in fact in court during the proceedings, as well as a number of his sisters and a daughter. He has had various relationships, including marriages, and has ten children. He acknowledged having a drug habit in his teenage years, starting at about the age of sixteen with marihuana and graduating to heroin at the age of twenty. He acknowledged having troubles in the late seventies and the early eighties. He then had a period of many years drug free, living interstate. By the time he came to be arrested for this offence he had commenced using amphetamines. The amphetamines usage was in some way connected with a diagnosis of cancer which occurred some years ago. He said that the amphetamines helped him with his work.

11. Mr Hammond said that the amphetamine that he was putting on to the market he did not receive a profit for. He said that he always has had secure work as a tiler and did not need to make additional money. As a middle man, so to speak, between his source and those who provided the drug further down the line he was able to help himself to an amount of the drug as it passed through his hands, a process which he called taxing. He was able to skim off a certain amount of the drug to meet his own need and addiction and replace it with glucose.

12. He said that he has been drug free since he has been in custody and has engaged in physical activity such as football and the gym in custody, which has been since his arrest on 13 March 2009.

13. He has always been employed as a tiler and has a good business in which one of his sons is also employed.

14. He expresses regret for what he has done and says he realises the damage and indeed adds that it has happened to him and some of his own children. He acknowledged that he did not know what happened to the drugs after they were passed on to Ms Finn.

15. He explained regarding the firearm that it was not loaded and it was sitting next to a buffalo head in the lounge room and said that he would not keep a working firearm in his house.

16. Cross-examined by Mr Thompson his account of not taking a profit was challenged. I should say that I am not satisfied beyond reasonable doubt that he gained any financial reward for his sale of the drugs. I have my suspicions but deriving financial benefit must be seen as an aggravating factor and one that I need to be satisfied about beyond reasonable doubt. He claimed under cross-examination to have learnt his lesson this time.

17. There was also tendered in evidence a very comprehensive psychological report about Mr Hammond from a psychologist named Steve Henkelman. He recounted the stable family history and Mr Hammond’s involvement in drugs as a young man and an effort at drug rehabilitation, which was unsuccessful when he was in his twenties. I should add at this stage that Mr Hammond said in his evidence that everything he told Mr Henkelman was true. He has had some health problems with an aneurism and symptoms of cancer in his spleen and some hepatitis C and his solid employment history is confirmed. Mr Henkelman was of the view that Mr Hammond displayed a number of symptoms related to the condition of attention deficit hyperactivity disorder or ADHD. He also thought that Mr Hammond’s symptoms were consistent with a major depressive episode.

18. The psychologist noted that Mr Hammond has not participated in any treatment or seen a psychologist or a psychiatrist “despite major psychological difficulties and instabilities in his life”. He thought that Mr Hammond “demonstrated virtually no insight with respect to any of his psychological difficulties”. Mr Henkelman referred to two diagnosable conditions, namely the ADHD and depression, which have a compounding effect. Although, the psychologist said “there is no evidence to suggest that Mr Hammond has learned from past mistakes”, he added that it is “also true that Mr Hammond has never really entered into a long term and comprehensive treatment, both from a pharmacological and counselling point of view, which might provide him with the tools to be able to learn from his mistakes in the future.” The psychologist thought it was of “utmost importance” to gain an understanding from Mr Hammond about completely refraining from drugs and alcohol.

19. Mr Henkelman proposed a treatment regime which would involve Mr Hammond seeing him and a psychiatrist whom he recommended. Mr Henkelman concluded that if Mr Hammond were to attend on that treatment regime “his risk of recidivism will be greatly reduced. I believe that Mr Hammond is a prime candidate to benefit from rehabilitation.”

20. Mr Henkelman has experience as a Probation and Parole Officer and with the Department of Corrective Services for a number of years and accordingly I place some weight on his opinion.

21. One other thing which it is important for a judge to take into account in sentencing a person are sentences which have been imposed on the other people involved in the same criminal activity. That is so in this case. Mr Collison and Ms Finn have both been sentenced.

22. Mr Collison was sentenced by his Honour Judge Walmsley SC on 16 June 2010. Mr Collison was sentenced for four crimes. Two of those crimes were for offences under s 25A of the Drug Misuse and Trafficking Act, each of which carried a maximum of twenty years imprisonment. Two of the crimes were the same offences as were committed by Mr Hammond, namely against s 25(1) of the same Act and each carried a maximum of fifteen years imprisonment. Mr Collison also had a criminal record, which included one conviction of supplying a prohibited drug in 1993 and quite extensive convictions for generally bad behaviour.

23. Ms Finn was sentenced by his Honour Judge Nicholson SC on 5 March 2010.

24. Mr Collison, returning to him for a moment, for the first of the s 25A offences received a fixed term of fifteen months and for the second of that offence a non-parole period of one year and a parole period of one year. For the first offence against s 25 he was sentenced to a fixed term of one year and for the other s 25 offence also a fixed term of one year. The total effective sentence on Mr Collison was a non-parole period of two years, with a parole period of one year.

25. His Honour Judge Nicholson, returning to Ms Finn’s sentence, regarded her as operating as a lower mid level supplier for financial reward. She too was facing an offence under s 25A of the Drug Misuse and Trafficking Act and had two supply offences taken into account by Judge Nicholson. She was a beneficiary of a forty-five per cent discount in her sentence because of assistance and a plea of guilty. His Honour thought that an overall sentence for her would be in the region of five and a half years imprisonment but his Honour reduced that after the discount to three years imprisonment. He set a non-parole period of twenty-one months and a balance of the term of fifteen months. Ms Finn also had a criminal record including supplying a prohibited drug.

26. So both Ms Finn and Mr Collison received sentences of three years imprisonment with a non-parole period in Mr Collison’s case of two years and a non-parole period in Ms Finn’s case of twenty-one months. I need to take this into account by way of fairness to Mr Hammond in the sort of sentence I impose upon him.

27. I was assisted both by Mr O’Sullivan and by Mr Thompson in their submissions. I accept Mr O’Sullivan’s submissions that the reward which his client obtained was to supply his own habit rather than for direct financial gain. However I also accept Mr Thompson’s submission that the effect of that arrangement, although not involving cash, was cash savings so that Mr Hammond did not have to expend any of his personal cash on supplying his drug habit.

28. Mr O’Sullivan submitted that the plea of guilty, which I take into account, was not at the first opportunity. He recommended a discount of some ten to fifteen per cent and Mr Thompson did not cavil at that suggestion.

29. There has been some degree of remorse shown both in his psychologist’s report and in Mr Hammond giving evidence: I accept that.

30. Mr O’Sullivan dwelt on the diagnosis of depression and ADHD and, based upon that, submitted that his client’s chances of re-offending would be greatly reduced and his prospects of rehabilitation greatly improved. That of course depends upon whether his client undertakes that course of rehabilitation, which is entirely a matter for his client but any judge in my position would be realistically careful about assessing those prospects as good, given Mr Hammond’s history. It is to be hoped that he will take this opportunity to put an end to the drug habit which has dogged him for all his life but he is not to be compared with someone who has undertaken successfully drug rehabilitation and demonstrated steps which have occurred already. I am guarded about his prospects of rehabilitation and I hope that he undertakes them.

31. Mr O’Sullivan emphasised the fact that the co-offenders were sentenced for more serious crimes, namely the offences against s 25A of the Drug Misuse and Trafficking Act and I must take that into account.

32. Mr O’Sullivan realistically and correctly acknowledged that his client must face a full-time prison sentence and that there were special circumstances which would justify me adjusting the normal ratio between the non-parole period and the parole period, namely his need for extensive assistance with the conditions which the psychologist has diagnosed.

33. I note that Mr Thompson expressed reservations about Mr Hammond’s rehabilitation prospects and I have already indicated that I too have such reservations.

34. Mr Thompson argued that although the co-offenders faced more serious charges, the behaviour engaged in was essentially part of the same enterprise but he realistically and properly acknowledged that those two co-offenders were facing more serious charges.

35. I regard the offence concerning the firearm as not at all serious and in due course I will impose a fine of $100. The resist arrest offence I will also impose a fine of $250 for.

36. So far as the drug supply offence is concerned, it is significant that Mr Hammond has a conviction for a similar offence on his criminal record and that he was a mid level supplier of amphetamines. I would regard an appropriate overall sentence of five years imprisonment as being appropriate. I take into account his plea of guilty and I propose to apply a discount of roughly fifteen per cent to reduce that sentence to four years imprisonment because of his plea of guilty.

37. I accept Mr O’Sullivan’s submission that a period longer than the normal parole period is required. The normal ratio, the standard ratio between a non-parole period and a parole period is three-quarters, so that for a sentence of four years the normal non-parole period would be three years imprisonment. I propose to reduce that non-parole period to two years imprisonment in order to allow two years for Mr Hammond to take advantage of the proposed treatment that the psychologist suggests. Accordingly the sentence which I will in a moment impose will be a sentence of four years imprisonment with a non-parole period of two years backdated to Mr Hammond’s arrest. Would you stand up Mr Hammond?

38. In respect of the offence of supplying a prohibited drug I fix a non-parole period of two years to commence on 13 March 2009 and to expire on 12 March 2011. The balance of the term will be two years from 13 March 2011, concluding on 12 March 2013. The total term is four years from 13 March 2009 to 12 March 2013. The earliest date on which you will be eligible for release is 12 March 2011.

39. In respect of the offence of possessing a firearm without a licence, I fine you $100. In respect of the offence of resisting arrest I fine you $250. Would you have a seat Mr Hammond?

HIS HONOUR: Now Mr O’Sullivan and Mr Diong in a moment I will discharge my statutory responsibility of explaining that to Mr Hammond but are there any orders that I have overlooked or that I should make? Mr O’Sullivan.

O’SULLIVAN: Your Honour it may be a technicality but because the non-parole period is less than three years I think the appropriate order for your Honour is to direct his release rather than he become--

HIS HONOUR: I don’t think so, I think because the sentence is over three years - if the sentence was three years or less then I direct but if the sentence is over three years it is a matter for the Parole authority.

O’SULLIVAN: Thank you your Honour. There’s no other orders that I’d be seeking.

HIS HONOUR: Mr Diong?

DIONG: No.

40. Mr Hammond you have heard that you have got two fines, your firearms $100 and resisting arrest $250. But the main thing is your drug offence of supplying, you have got four years imprisonment for that. I have backdated it to when you were arrested on 13 March last year. That expires on 12 March 2013. I have fixed a non-parole period which is less than the usual non-parole period. I have fixed it as two years, so that you become eligible for parole next March, on 12 March next. Getting parole as you probably know is a matter for the Parole Authority not for me.

OFFENDER: Yeah.

41. Then you have got two years where you are still under sentence. You are released but you are under sentence and what you do then is up to you. If you want to stop what has been going on in your life, most of it til now, then you will take up Mr Henkelman’s very sensible suggestions and look at those two issues and use those two years to see whether you can fix things up. You know as well as I do that if you breach your parole then you go back in but I have listened to what Mr O’Sullivan said and I have erred on the generous side so far as your parole period is concerned to see whether you can have a chance, all right.

OFFENDER: Thank you.

HIS HONOUR: Good luck.

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