R v Zerner

[2010] NSWDC 157

CITATION:	R v ZERNER [2010] NSWDC 157
HEARING DATE(S):	18 February 2010 9 April 2010
JUDGMENT DATE:	9 April 2010
JURISDICTION:	District Court Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	On each of the related s 166 matters I impose a sentence of imprisonment of four months fixed term to be served by way of periodic detention. For the offence of supplying a prohibited drug, the offender is sentenced to imprisonment for two and a half years. I set a non-parole period of eighteen months, and order that that sentence also be served by way of periodic detention. All of those sentences are to be served concurrently. I dismiss the backup charge on the 166 certificate.
CATCHWORDS:	CRIMINAL LAW - Sentence - Supply prohibited drug - Possess prohibited weapon without a permit - Ecstasy - Anabolic Steroid
PARTIES:	The Crown Timothy Frank Zerner
FILE NUMBER(S):	DC 2009/00006166
COUNSEL:	Mr M Johnston - Offender
SOLICITORS:	The Director of Public Prosecutions Nyman Gibson Stuart - Offender

SENTENCE

1 HIS HONOUR: The law in relation to those who supply prohibited drugs is clear: those who traffic to a substantial degree must receive a full-time custodial sentence unless exceptional circumstances can be demonstrated. In this case Mr Johnston, who now appears for the accused, concedes the first of those matters but seeks to persuade me that there are exceptional circumstances which would justify a sentence other than a full-time imprisonment. He suggests one of periodic detention. However, the matters that Mr Johnston relies on are, with one possible exception which I will deal with later, not exceptional at all but common place.

2 These offences matters came to the attention of police after witnesses described seeing something suspicious involving a car driven by the accused. There is no suggestion that the accused was involved in earlier criminality, but because of what the police had been told, they went to the Wollongong Central Business District, found the accused’s car and waited. When the accused arrived at his car, he acted suspiciously, police therefore stopped him and told him that they wished to search him. The police told the offender that he should keep his hands where they could see him, but despite that he continued to attempt to reach for his front jeans pockets. The reason that he was doing this was soon made clear, because when they did search the offender, they found two small resealable plastic bags in his front jeans pocket. Each of those bags contained ten tablets. The police asked him what they were and he told them that they were Ecstasy. He was therefore arrested and cautioned.

3 The search continued. Police located two further plastic resealable satchels within his front right pocket. There were about ten tablets in each of those. Police then looked in his wallet and discovered $195, the subject of a goods in custody charge. Once more the offender told police the tablets were Ecstasy. Police then decided that they should search the accused’s car. They found an extendable baton (which is now the subject of possess prohibited weapon without a permit charge, which appears on a 166 certificate) and perhaps more importantly they found even more drugs, this time thirty-three tablets in a resealable plastic bag. They also found a different looking tablet. The accused said that the thirty-three tables were Ecstasy but the other one was an anabolic steroid.

4 The accused was then taken back to the police station. He was interviewed and he made admissions, telling police that he supplied the drugs to his friends. After the interview was completed the accused informed police that he had further tablets at his home. He therefore gave them permission to search his home without a warrant. The police then went there and found a further seventy-nine tablets. It is important to realise that those tablets were contained within a locked box. Also in that locked box were a number of other items, most importantly ledgers. When this matter was last before me there was some submission made by the offender’s solicitor that whilst they were ledgers, there was no evidence that they were drug ledgers. However, that issue has fallen away with the offender now conceding that those documents recorded the results of supplies of drugs.

5 It has therefore been conceded that the offender was supplying drugs to a substantial degree. That concession was appropriately made. Although there are some names in the ledgers which appear more than once, it appears that the ledgers related to about nineteen or twenty people, recording drugs supplied and money owing. This was therefore not a simple case of the offender occasionally passing on drugs to his friends. This was a case where the offender supplied substantial numbers of drugs to many other people. Although of course he is only to be sentenced for the offence to which he has pleaded guilty, in determining the extent to which he was trafficking, namely, whether that was a substantial degree or not, it is appropriate to look at things such as the drug ledgers.

6 The offender later on told his now girlfriend, Alena White, that at the time he was using drugs it was causing him significant problems, in particular it was causing him to become depressed. That he would continue to supply drugs for money when he himself was experiencing problems with drugs, demonstrates the extent of his criminality.

7 The offender has no prior history. He is twenty-three years of age. He comes from a stable and loving family in the Wollongong area. He is, from all evidence, ashamed at the position that he now finds himself in. He told a psychologist, and the author of the pre-sentence report, that during 2008 both his parents’ health deteriorated. His father was diagnosed with cancer and he to this day regularly undergoes tests which cause the offender stress. His mother has also been hospitalised due to mental health issues.

8 The offender says in those circumstances he began to both use elicit substances and then supply them. The offender says that he is now remorseful and ashamed at what he has done. It seems that he is fully aware that he has only added to the problems that his parents face. He is now soon to become a father. He and his partner Ms White have bought a home. It of course has a mortgage and they are paying that off. In the event that the offender is sent to gaol arrangements have been made for Ms White’s father to care for the child whilst she returns to work much earlier than she would otherwise in order that the mortgage can be paid.

9 Mr Johnston did not suggest that I could take those circumstances into account in any significant way. The law is clear that unless there are exceptional circumstances, hardship to others is not to be taken into account, apart from as part of the general mix of subjective factors. Mr Johnston did not suggest that the circumstances faced by the offender’s partner and the rest of his family were exceptional in any way.

10 It is now the case that the offender has rehabilitated himself as much as he can. He is regularly seeing a psychologist. He is ashamed for what he has done and he remains in full-time employment. He is working for a JB Hi Fi store in Wollongong and he is apparently considered management material, although he declines to accept such a promotion because it would involve a loss of income.

11 Mr Johnston relies on the circumstance that the offender himself told police about the drugs back in his home after the interview was completed as justifying an “Ellis like” discount. Of course this is not an Ellis situation at all but I will take into account that it is possible, I will not say it is probable, but it is possible that if the offender had not spoken to police about the drugs back in his home, they may not have been discovered. Of course Mr Johnston points out that that would also have meant that the ledgers were not discovered either.

12 I take into account the delay that has been occasioned in this matter and that is related to a circumstance that I will eventually get to concerning the history of this matter in the District Court. But it is to be recognised that it has now been sometime since the offender was arrested for this matter and that in the meantime he has committed no further offences and done what he can to rehabilitate himself. He entered a plea at the earliest opportunity in the Local Court which of course has significant utilitarian value, it means that I will impose a sentence upon him which is twenty-five percent less than would otherwise have been the case.

13 I now eventually turn to the matter which I said at the outset may possibly justify a finding that there are exceptional circumstances when taken in combination of course with the other matters to which Mr Johnston referred. That matter is this. The appellant first appeared in the Wollongong District Court before his Honour the late Judge Goldring. His Honour, it has to be said without reading all the material before him, formed the view that it was appropriate that the offender be placed on a s 11 remand for three months. The submission from Mr Johnston is that this led his client to understand that if he complied with the conditions of the s 11 remand he would not get a full-time custodial sentence. I am satisfied that that is a fair understanding of what his Honour said. His Honour said to the offender directly,

“normally as the Crown Prosecutor has pointed out and as I am sure Mr Miralis has pointed out to you, the normal sentence in this case is full-time gaol. I think there are some circumstances operating in your favour, I am not absolutely certain of them yet but I need to be satisfied on the balance of probabilities of those matters and I am going to give you a chance to show me”.

14 I think the only fair understanding of those words is that if the offender continued his rehabilitation he would not get a full-time custodial sentence.

15 In those circumstances Mr Johnston relies heavily on this as being a matter which takes this case out of the ordinary. There are the favourable subjective features to which I referred and on top of that there is the promise held out to the offender by a District Court judge that he would avoid full-time custody if he continued his rehabilitation as he had been. I have given some anxious considerations to whether that in combination with the favourable subjective features does amount to exceptional circumstances justifying a sentence other than full-time custody.

16 On the one hand it is clear that the offender was indeed trafficking to not only a substantial degree but a level even above that. The offender was engaged in very serious criminal activity which to his knowledge was causing harm to those to whom he supplied drugs. This was serious offending and I do have to say that it was a remarkable decision by his Honour to grant the offender the benefit of a s 11 remand without reading all the material tendered before him. However, I am satisfied by Mr Johnston that the circumstances of this case do not require a full-time custodial sentence. The offender was entitled to proceed on the basis that if he did what was required of him, he would not go to gaol full time. Whether that was a wrong decision or not, it was what he was told by a District Court judge. However, as I think I have made clear, a lengthy custodial sentence is nevertheless required. The offender has been found to be suitable for periodic detention and that is the sentence that I will now impose.

17 On each of the related s 166 matters I impose a sentence of imprisonment of four months fixed term to be served by way of periodic detention. For the offence of supplying a prohibited drug, the offender is sentenced to imprisonment for two and a half years. I set a non-parole period of eighteen months, and order that that sentence also be served by way of periodic detention. All of those sentences are to be served concurrently. The offender is to attend the Wollongong Periodic Detention Centre at Unanderra on Saturday 17 April at 8.30am in order to commence serving his sentence.

18 I dismiss the backup charge on the 166 certificate.

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