Regina v Brian Edward Roberts

[2007] NSWDC 191

CITATION:	Regina v Brian Edward Roberts [2007] NSWDC 191
HEARING DATE(S):	19 July 2007
JUDGMENT DATE:	17 August 2007
EX TEMPORE JUDGMENT DATE:	10 November 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Granted s.11 Crimes (Sentencing Procedure) Act bail conditional upon supervision, full time drug rehabilitation, reporting progress to Court and other conditions.
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v v Cuthbert (1967) 2NSWR329 R v Rushby (1977) NSWLR 597 The Queen v Hayes(1984) 1 NSWLR 740 Lovelock v The Queen (1988) 19 ALR 327
PARTIES:	Regina Brian Edward Roberts
FILE NUMBER(S):	06/31/0429
COUNSEL:	Accused: Mr K Roser
SOLICITORS:	Crown: Mr D O’Neill

JUDGMENT

1 HIS HONOUR: Brian Edward Roberts is a thirty-four year old recidivous offender. His first appearance before the courts was as a fifteen year old facing the Children’s Court Magistrate in 1987 for break enter and steal. His first appearance as an adult occurred in 1990 before the Maitland Local Court for drink driving and other driving offences. This, on my counting is the tenth time he has faced a court where a prison sentence must be a consequence of his criminal conduct. His offences of choice are driving offences, usually driving whilst disqualified. He has also been sent to gaol for break enter and steal, three times on my count and for drug offences, interestingly, only on two occasions. Significantly, he has not previously been convicted of supplying drugs. It is a matter for which he is to be held accountable today.

2 He is before this Court having pleaded guilty to a charge of ongoing supply of methylamphetamine between 25 August and 14 September 2006. The Drug Misuse and Trafficking Act 1985 provides a maximum penalty for this offence of twenty years. In this sense the offence, as measured in that way, is the most serious committed by this offender. On the other hand, through his counsel, he mounts a strong case for giving him an opportunity to focus on rehabilitation.

3 A co-offender, in fact two as I now find, in the same network, were sentenced for offences of a similar nature committed in similar circumstances to eighteen months non-parole. There are other co-offenders to be sentenced by me.

4 As a sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentencing outcome for this offence, before this Court, committed by this offender, in this community. My initial task requires an assessment of the objective criminality of the offence before the Court. I will also need to have regard to matters personal to the offender. The starting point for such assessment requires a sentencing judge to make findings of fact from the evidence before the Court relating to both the offence and to the offender.

5 Importantly in this case, the offender’s rehabilitation prospects will have to be assessed even if looking through a glass darkly. Before any sentence can be made there are likely to be technical questions relating to deterrence, discounts and in the event of a prison sentence being imposed, whether special circumstances are to be found.

6 Issues of parity in a case such as this, are of importance. The ultimate length of the term of imprisonment or other penalty that is to be imposed will need to be determined. Whatever the sentencing outcome, what weight needs to be given to all of the matters I have referred to against an imperative that all sentencing should have as its primary focus the protection of a community, particularly in terms of protection against drug suppliers, will also need to be determined (see R v v Cuthbert (1967) 2NSWR329 , R v Rushby (1977) NSWLR 597 and R v Hayes(1984) 1 NSWLR 740 ).

FACTS

7 In May 2006, New South Wales Police launched an investigation targeting the supply of drugs in the Manning - Great Lakes area by one Terry Diggs and his associates. This case deals with three purchases of methylamphetamines by an undercover police operative.

8 The first purchase occurred on Friday 25 August 2006. The New South Wales police undercover operative was supplied with $1,000 of pre-recorded currency. The undercover operative drove to premises occupied by Terry Diggs in Taree. In the course of the conversation there the undercover operative agreed to purchase two weights of methylamphetamine.

9 During that conversation, Diggs made a telephone call on his mobile to another person. It is likely that that person was the accused but of that I cannot be satisfied beyond reasonable doubt. The undercover operative and Diggs then drove to Forster. There was conversation in the car which in my view cannot be evidence against this offender. But as the journey proceeded, it seems that Diggs received a phone call on his mobile from this offender. He told the offender that he would see him in half an hour. The two in the car then drove to a Fairway Take-away shop in Forster; parked outside the shop. Diggs left the vehicle. Walked to a street corner and spoke to the offender. Roberts then walked back inside the take-away shop for a short time then walked over to a vehicle in which the undercover operative was waiting.

10 Diggs, the undercover operative and Roberts had a short conversation. The undercover operative passed $850 over to Diggs. That money was in turn handed on to Roberts. Roberts then arranged for them to come back in five minutes. They left the scene at 5.53.

11 Half an hour later Diggs received a telephone text message which I have inferred came from Roberts. They drove back to the take-away shop. Diggs then received a telephone call and directed the undercover operative to drive a short distance away. When they had reached that spot the two men in the vehicle saw this offender walking south. The undercover operative stopped his vehicle and this offender walked over to the driver’s window, handed the undercover operative a plastic resealable bag containing two weights of methylamphetamine. The offender then walked from that vehicle and the undercover operative and Diggs returned to Taree.

12 The methylamphetamine handed over was found to have a weight of 1.92 grams of 63 percent purity.

13 I pause in the recitation of the facts to point out the following. That this is clearly a sophisticated operation designed to prevent and/or minimise chances of detection of the offenders and also designed to keep the drug stock secure. In order to achieve those objectives there was use of mobile phones, use of public meeting places, securing of cash before delivery of drugs, enforced absence of the purchaser while drugs were being retrieved from some hidden source and the firm decision not to reveal the location of the drug stock to others in the chain.

14 I come now to the second purchase. On Friday 1 September 2006 the undercover operative contacted Diggs by mobile phone. In the course of a conversation with Diggs he was provided with the telephone number of this offender.

15 Some four days later on 5 September the undercover operative contacted Roberts on that mobile phone number. There was a conversation between them in which the undercover operative arranged to purchase two weights at a later time.

16 Two days later, the undercover operative again was provided with $900 by those in authority in pre-recorded currency notes. At 2.23p.m. the undercover operative contacted Roberts by mobile phone and confirmed an order for two weights of methylamphetamine. Roberts said to the undercover operative, “Cheap J”, (I take ‘J’ being a name used by the undercover operative) “I charge $450 a gram mate”. That price works out at twenty-five dollars more per weight or fifty dollars more per deal than had been previously charged.

17 The undercover operative agreed to pay $900 for the deal. Roberts then advised the undercover operative that he would call him back in five minutes. Again, time passed and it was some twenty-five minutes later, that the undercover operative called Roberts mobile phone where he was directed to another location. At that other location the offender entered the passenger seat of the under cover’s operative vehicle. The offender placed a small resealable plastic bag in the middle of the dash and the undercover operative handed him $900 in notes. Roberts, the offender, said “I will give you a G and a half now”, (‘G’ being a gram) “drop me off and I will go and see an old mate”.

18 The undercover operative agreed and drove Roberts to Boundary Street at Forster. There, the offender vacated the vehicle and told the undercover operative to call him in five minutes. At 3.05, the undercover operative called Roberts on the mobile phone and was directed to Boundary Street. There, the offender entered the vehicle and handed over a small resealable plastic bag containing methylamphetamine. The first plastic bag of methylamphetamine was 1.46 grams of seventy-six percent purity. The second was 0.46 grams of sixty-four and a half purity. One can conclude from that that the second lot would appear to have come from a different batch to the first.

19 The third buy occurred on 14 September 2006. On this occasion, the undercover operative had been given $1500 in pre-recorded bank notes. At 2.46pm he telephoned Roberts. They made an arrangement to meet. At 2.49p.m. the undercover operative drove to Head Street in Forster. Roberts entered the vehicle. He had two weights with him. The undercover operative asked for a third. Each weight was being sold at $450 dollars. During the conversation the offender handed the undercover operative two small resealable plastic bags containing the two weights and the undercover operative handed $1350 over in bank notes, that is, the money for three. The offender left the vehicle and arranged for the undercover operative to phone him in fifteen minutes.

20 At 3.14 the undercover operative did phone and they met again when Roberts passed the undercover operative a small resealable plastic bag containing methylamphetamine. There was some writing on the bag that is of no relevance in the sentencing proceeding. The three bags that the undercover operative had contained a total weight of 2.92 grams of 66.5 percent purity. Over those three deals the total amount of methylamphetamine supplied constituted seven weights or 6.76 grams. A trafficable quantity of methylamphetamine is 3 grams. An indictable quantity is 5 grams and a commercial quantity is 250 grams. Those figures are of importance to assess the seriousness of this offence.

21 I note in submissions, the quantity of supply is said to be 6.94 grams. On my addition of the figures and the analyst certificate, I make the weight 6.76 grams. I indicate if I be wrong that I have approached the sentencing of this matter on the basis of my figures not the submissions. Roberts' role in the first buy was less than his role in the second and the third. In the first he did not set the price and was merely facilitating a deal that Diggs was negotiating. In the second and third buys Roberts set the price, secured and delivered the drugs. Of course, he had secured and delivered the drugs in the first deal. I am satisfied he made some profit from the second and third purchases. He concedes that he had made fifty dollars on the first transaction. He says he made fifty on the second, I can follow that and he made $150 on the third.

OBJECTIVE CRIMINALITY

22 From the facts as he finds them to be the sentencing judge is required to assess the objective criminality of the offences before him as an essential step in assessing the seriousness of the criminal behaviour. That is done by comparing objectively the criminality exhibited in what is called the instant offence, that is the one that I am dealing with, with criminality of offences of a similar kind. It is in this way that the seriousness of the criminality of this offence can be evaluated. It should not surprise anyone that the objective criminality of an offence has an important impact upon the outcome of sentences.

23 The objective criminality of drugs is that it is an anti-social act. It is anti-social because as Mr Roberts would well know from his own experience, the taking of drugs takes away from people their capacity to function. It takes away from people their capacity to operate sensibly and sanely in a community. True it is, that small quantities of drugs do not have that effect but what effect they have is that in many people they create an addiction and it is once that addiction takes place that a person’s capacity to function as a human being is seriously compromised.

24 S 25A of the Drug Misuse and Trafficking Act is designed to emphasise the criminality of the ongoing supply of small quantities of drugs, lifting what in this case were three supplies, which would normally have been dealt with in the summary jurisdiction where the maximum penalty would have been two years, to an indictable jurisdiction where the maximum penalty is twenty years.

25 Nonetheless, the Court must still have regard to the total quantity of drugs supplied, in this case 6.76 grams, or 1.76 grams over an indictable quantity. In value, the drugs supplied were worth $3,100. The quantity supplied was in each case less than the trafficable amount. That being so, I cannot infer the suppliers contemplated the drugs would be on-supplied to others. Had they been over 3 grams, that being the trafficable quantity, I can and would have inferred that they were held in custody by the purchaser for the purpose of on-supplying to others.

26 In terms of quantity and value the drugs supplied come towards the lower end of the indictable range. That, I note, was an observation also made by Judge Murrell who sentenced Terry Diggs. However, it is obvious Roberts was playing a role in a very sophisticated drug distribution network. While I am satisfied he was not the source of the drugs he delivered, he was the first contact in the second and third purchases and the intermediate contact in the first. He was using the sophistication of the network to his advantage, that is, minimising his risk of detection. He delivered the buyer’s funds to his sources. In the second and third purchases, he shaved off fifty dollars and one hundred and fifty dollars respectively for himself. He would then return with the contraband drugs. By virtue of the sophistication of the operation, I am satisfied this was not a one off supply by this offender. While other supplies are not before me and he cannot be punished for them, nor can he claim the benefit that this was an isolated incident. I am satisfied the larger supply in the third supply was at the urging of the undercover operative and not as a consequence of any inveigling by him.

27 Roberts, himself, was a user of methylamphetamine. At the time of his supplying he was using once or twice daily. I am satisfied he was not supplying to support his habit. His partner Rachel Lloyd believes his motivation was to assist her and his newfound family through their money problems. It is clear the family was living “close to the bone”. I accept that some of the money may well have been used to ease the family money crisis. I am also satisfied other money was spent on drugs for himself and quite possibly for Ms Lloyd. This is not however, a case of dealing in drugs to reduce or avoid withdrawal symptoms.

28 At the time of this offence Roberts was on parole for break enter and steal. The eighteen month parole was due to expire on 16 September 2006. That is two days after the last deal. This offence occurred within the last two to three weeks of the parole period. The commission of an offence whilst on parole aggravates the criminality of the offence because it is a breach of a fundamental term of his conditional liberty that he would be of good behaviour. This is clearly a matter where a substantial period of incarceration is called for.

SUBJECTIVE MATTERS: FAMILY BACKGROUND AND SOCIAL DYNAMICS

29 Brian Roberts is a thirty-five year old single man. His parents separated when he was nine. He continued to live with his father. When he was seventeen his father died leaving the family home to him. His mother however, successfully contested the will and the house was passed to her. She bought him a motor vehicle. Nonetheless, the relationship with his mother was not as close as that with his father. The final disposition of the house may have played some part in that. In more recent times, I understand, the relationship with his mother has improved. He has two children from a prior relationship. He has had no contact with them for about ten years.

30 In 2004, he commenced a relationship with Rachel Lloyd. She was a destitute mother of two children, five years old and six years old, a boy and a girl. He helped them move to the Forster area. Initially, they stayed with him in his unit and thereafter, lived in holiday accommodation, that being the only kind of accommodation they could get. The children’s father had been killed in a motor vehicle accident in 2003 or perhaps 2004. The offender responded to family life. It would seem Ms Lloyd and her children also responded to the offender. Their initial concern centred on finding long term accommodation. To get by, they rented holiday accommodation. The higher rentals put a strain on their family budget.

31 During his time in custody since his arrest Ms Lloyd has been journeying from Forster to Kempsey to visit. Her visits are by public transport. She says the journey overwhelms her with bus and train and bus connections needing to be made and orchestrated.

EDUCATION TRAINING AND SKILLS

32 Brian Roberts left school in year seven. He has had little or no employment history and work skills, for me that is a serious worry. Some attention will need to be paid by those oversighting his rehabilitation to help him find positions needing few skills but where he could develop skills such as, and I am not suggesting that these be the ones but, landscaping or garden and lawn maintenance and the like where little skills are needed to start but clearly there is a scope for skill development.

HEALTH

33 He does not complain of any physical or general health problems, he presents as a healthy thirty-five year old man.

MENTAL HEALTH ISSUES

34 Except for substance use there are no significant mental health problems diagnosed. He may be suffering stress from unresolved issues relating to sexual advantage being taken of him as a youth by an adult male. He should be seeking counselling in respect of these matters. Matters of stress are important to resolve and if possible dissolve. They are matters that can contribute to self-medicating. Taking un-prescribed and illegal drugs is a form of self-medication.

35 Dr Delaforce, a well-known forensic psychiatrist, practising on the North Coast who reviewed him for the defence, has diagnosed amphetamine and cannabis dependence.

DRUG ISSUES

36 He has abused cannabis since the age of sixteen. Dr Delaforce reports that between eighteen and twenty-four years he had his maximum use of amphetamines with, up to ten times daily, intravenous use. At the time of his imprisonment and before his current imprisonment he used amphetamines only two to three times daily. However, when released from prison he used only once or twice a week until the last four months before his imprisonment, when he was back up to once or twice daily.

37 He referred to his years of robotic amphetamine use as “my life” and his only priority then was to get and use more amphetamines. He now regards methylamphetamine as a “horrible drug” that “plays games with your mind”. When he leaves prison he and Ms Lloyd intend only to use cannabis (sic). They also plan to sell their motor vehicle and move out of town, far enough to be away from the local drug scene, but close enough for their children to get to school.

“When I, (that is Dr Delaforce) inquired about Mr Roberts’ drug use contributing to the family financial difficulties, he referred to that being much reduced amphetamine and cannabis use since he had been with Miss Lloyd. Since age sixteen years there was a virtual constant use of cannabis throughout the day, however when he met Miss Lloyd he reduced that to two to three times weekly.

There has been no drug or alcohol treatment such as counselling, detoxification, or rehabilitation. However he was now very keen to attend a ten month live-in rehabilitation drug program prior to returning to the community. His relationship with Miss Lloyd and the two children now meant to him that he wanted a future because he had something to look forward to. Therefore he wanted to deal with his substance abuse problem and stop the drug use and related crime and imprisonment”.

38 In his evidence he told the Court that what he told Dr Delaforce was true and correct and I accept that is so.

CHARACTER AND ANTECEDENTS

39 This offender’s offending is by and large reflected in summary convictions and penalties. As earlier remarked most of his offending is related to driving criminality, such as PCA offences and driving whilst disqualified. When he is not in prison he seems to be unlawfully behind the wheel of a car. There are three occasions when he was before the Court, as an adult, on drug offences. There are break, enter and steal offences and related type offences such as goods in custody and housebreaking implements. There appears to be only one offence of personal violence in his record. He recognises he has spent too much of his adult life in prison.

40 The pattern of prison sentences is such that he has little chance to settle down in the community when he is out. His last release though survived seventeen months without charge, a fact that he says is a matter of some pride, in the sense that it was the longest period for him in the community, on my count, since 1993.

REHABILITATION PROSPECTS

41 One cannot describe his rehabilitation prospects as strong but the time may well be appropriate to give him a chance by focussing on them. A number of factors have aligned to suggest his best chance of responding to rehabilitation is now. The case for advancing his rehabilitation has been well put forward by Dr Delaforce. Dr Delaforce points to the offender’s spontaneous admission that his criminal record is horrible. Secondly Dr Delaforce notes that he, Dr Delaforce, had been encouraged by the contents of Miss Lloyd’s statement (which I have read) and Dr Delaforce became more encouraged about the prospects of the offender's rehabilitation at interview.

42 Lloyd and Roberts both have had significant stressors in their life, but they were now providing mutual support. Dr Delaforce recognised that the relationship and the parenting of her children was motivating this offender to continue in a family role. Dr Delaforce noted that the family was now in stable rental accommodation and at a financial cost less than the holiday accommodation. Miss Lloyd had agreed with the plan for them to avoid the local drug scene, that should increase the prospects of rehabilitation.

43 Dr Delaforce says “there are certainly advantages of Mr Roberts attending as soon as possible a live-in drug rehabilitation program for about ten months prior to returning to the community”. Unfortunately he has never previously attended such a centre. There is no guaranteed successful outcome from such rehabilitation, however there is a very reasonable chance of improvement now that he has so much to motivate himself to overcome his drug and criminal behaviour and focus on family life.

44 The offender’s evidence is also encouraging that this is an appropriate time. His initial application for a rehabilitation berth was rejected. Rather than quit, he pursued the matter by asking his solicitor to help him. It is to be remembered that Mr Roberts had left school at Year Seven. That seems a sensible approach by him and insight into how things should be managed. He was accepted in May but was not released then. Nonetheless he renewed his application. He has been persistent, it would appear, in his desire to pursue a rehabilitation program. Miss Lloyd has been a positive influence on his drug use contributing to the reduction that he told to Dr Delaforce. Another factor that I take into account is that he says he has remained drug free in custody, and I have accepted that evidence.

45 On the other hand there are negative indicators; it is important that they be faced and overcome. Firstly there is a long history of entrenched drug use. Secondly, he claims he intends to continue using cannabis. That has been of concern to me, not just because it is further criminal offending, but also because cannabis is one of the most dangerous drugs available. There are misconceptions about it; it is harmful and can contribute to mental illness in those who are susceptible or vulnerable to mental illness issues. He has little work history and skills. It is my view, whether correct or not, but certainly from my own experience, that drug use is much more prevalent among the unemployed than among those who work. That does not mean that those who work do not use drugs, it is a question of prevalence.

46 I have determined that rather than finalise this matter today I can give the offender one opportunity to demonstrate that he can rehabilitate not only from drugs but also to advance his working career. His choice of the Bridge Program is, from my point of view, a sensible choice for this reason, that it is a ten month full-time rehabilitation program. While it will focus generally on his drug rehabilitation, in the later months, I understand, attention is given to needs to find employment and career advancement and indeed work within his capacity.

47 He will be subject to drug testing during the drug rehabilitation program. Drug use is not tolerated at the Bridge Program. In the event that there is any sign of drug use he will be discharged. He will be supervised for the duration by Probation and Parole. Those managing the drug program work well with Probation and Parole. He will need to comply with all reasonable directions of both those managing him with drugs and the Probation and Parole Service. Because he is supervised by Probation and Parole I will be informed if he were to be discharged or vacate the premises contrary to his bail conditions, and of course, would issue a warrant for his arrest immediately.

48 He will be released on strict bail conditions, one being continued residence in the program. Any breach of bail as I say will result in a warrant being issued for his arrest.

49 There are some outstanding matters that will need to be addressed in the final sentencing proceedings. They will include what is the appropriate outcome for this offender, matters such as parity will need to be addressed. See Lovelock v The Queen (1988) 19 ALR 327 .

50 The need for deterrence, some recognition of his early plea of guilty, whether special circumstances is appropriate, the time he has already spent in custody will all need to be addressed. What is significant though, and needs to be understood, is that he has been given an opportunity to demonstrate he can rehabilitate. His progress, or absence of progress will be crucial in determining the final outcome of these proceedings. Or, if I can put that in language that you might better understand, the question of whether you will return to gaol or be released into the community will be determined by how you succeed. Do we understand each other?

OFFENDER: Yes your Honour.

HIS HONOUR: Pursuant to s 11 of The Crimes (Sentencing Procedure) Act 1999 these proceedings will be adjourned for a period of twelve months from today. The offender will be given bail for the purpose of determining whether he can, and if he can, what progress he can make in rehabilitating.

51 The Conditions of the bail are:

(1) that he be of good behaviour for the duration of the bail,

(2) that he reside at the Bridge Program at Morisset or such other premises as the general manager of the Bridge Program shall determine,

(3) that he obey all reasonable directions of his case manager with the Bridge Program,

(4) that he submit to all drug testing required of him,

(5) that any dirty drug test is deemed a breach of bail, any refusal to participate in drug tests is deemed breach of bail,

(6) he submit to supervision by Probation and Parole and obey all reasonable directions of his case manager with Probation and Parole,

(7) he report to my court, at four monthly intervals, the progress he has made in rehabilitation, do you understand that?

OFFENDER: Yes your Honour.

(8) That I be notified of any breach of bail within forty-eight hours. It is not really a condition of bail but it is in there so that those who are administering your bail will know what is required. It is not a condition binding on you. It is a condition that just lets everybody know what I want to know.

(9) This bail will take effect on and from 20 August 2007.

(10) Bail may be entered before the Governor of the Parramatta Correctional Centre or his or her delegate in circumstances where the Governor is satisfied an acceptable person will deliver the offender to the Admission Centre, the Bridge Program at Morisset.

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