Regina v David Allan Rollason

[2007] NSWDC 222

CITATION:	Regina v David Allan Rollason [2007] NSWDC 222
HEARING DATE(S):	25 October 2007
JUDGMENT DATE:	30 October 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted. Taking into Account Form 1 Matters.; Sentence 18 months N.P.P. 10 August 2006 expire 9 February 2008.; Balance of term 12 months expire 9 February 2009. (See Para[87]- [88] ); That the drugs seized by police, both Methylamphetamine and Cannabis, in connection with the offences on 4 July 2006, 20 July 2006 and 10 August 2006, be destroyed in accordance with NSW Police Procedures.
CATCHWORDS:	Criminal Law - Sentencing - Knowingly take part in supply - commercial quanty - methelamphetamine - 333 grams - Form 1 - supplies of cannabis leaf - value of drugs supplied $30K+ - guilty plea. - Statutory Interpretation - Knowingly take part in supply not an offence included in Item 18 of S.54A Crimes (Sentencing Procedure) Act 1999.
LEGISLATION CITED:	s54A Crimes (Sentencing Procedure) Act 1999 s.25(2) Drug Misuse and Trafficking Act 1985
CASES CITED:	Gladue v The Queen [1999] 1SCR 688 at [80] R v Cuthbert [1967] 2 NSW 329 R v Rushby [1977] 1 NSWLR 594 R v Hayes [1984] 1 NSWLR 740 Walden v Hensler (1987) 163 CLR pp 569-570 Lisa Deng (1996) 91 A Crim R 80 R v Thompson, R v Houlton (2000) 49 NSWLR 383 R v Way (2004) 60 NSWLR 168 The Attorney-General's Application under s37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2004) 61 NSWLR 305
PARTIES:	Regina David Allan Rollason
FILE NUMBER(S):	07/31/0100
SOLICITORS:	Crown: Mr Stanhope Defence: Mr Warwick

SENTENCE

1 HIS HONOUR: Maitland police, investigating the supply of drugs in 2005 and 2006, were targeting a man, Randell Charles Barker. In the course of these investigations they identified Brett Gary Crosdale as the source of at least some drugs distributed by Barker. Crosdale in turn became a target. Undercover police operatives purchased quantities of methylamphetamine from him. Police also tapped his telephone, intercepting and recording phone conversations. Those investigations revealed Crosdale’s associate, David Allan Rollason, was knowingly concerned with Crosdale in supplying methylamphetamine.

2 Today David Rollason is to be held accountable for his criminal conduct in being knowingly concerned with supplying not less than the commercial quantity of methylamphetamine, a prohibited drug.

3 The Crown case is the offender was knowingly concerned with the actual supply of 233.12 grams and knowingly concerned with possession of 110 grams for the purpose of supply to undercover police operatives, making a total of 333.62 grams of prohibited drugs. The offender asks that when sentencing for this offence, I take into account two further offences of being knowingly concerned in the supply of prohibited drugs, namely a total in excess of 1800 grams of cannabis leaf. These supplies occurred simultaneously with the first and third delivery of methylamphetamine.

4 As sentencing judge, it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for this offence before this Court, committed by this offender, harming this community in the way in which he has (Gladue v The Queen [1999] 1SCR 688 at [80]). 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 and subjective matters. The starting point for such assessments requires a sentencing judge to make findings of fact from evidence before the Court relating to the offence and to the offender.

5 My fact-finding task has been circumscribed, to some extent, in that the parties have tendered what I understand to be an agreed set of facts. Before any sentence can be made, there are likely to be technical questions relating to deterrence, discounts, whether special circumstances are to be found, parity, Form 1 matters, and whether this offence attracts a standard non-parole period and, if so, the length of the non-parole period, and finally, of course, the ultimate length of the term of imprisonment or other penalty to be imposed.

6 None of these can be commenced until the primary facts are determined. What weight needs to be given to all of these matters against the imperative that all sentencing should have as its primary focus the protection of the community will also need to be determined (see R v Cuthbert [1967] 2 NSW 329, R v Rushby [1977] 1 NSWLR 594 and R v Hayes [1984] 1 NSWLR 740).

FACTS

7 The Crown case is that there were three discrete supplies undertaken by Crosdale between 28 June 2006 and 10 August 2006. The offender was knowingly concerned with each. While they each constitute an offence of supply, the Crown is entitled to accumulate them into one charge, as it has done in this case.

8 On 28 June 2006 agreement was reached between Crosdale and an undercover police operative “Jack” for the purchase of four ounces of methylamphetamine on 4 July 2006. The following day Crosdale purchased a pound of cannabis leaf to supply to a man known as “Chris”, also an undercover police operative.

9 Early in the afternoon on 4 July 2006 Crosdale rang the offender. In that conversation Crosdale said “You are supposed to be here”. The offender replied “I’ll be there in five seconds”, or words to this effect. Crosdale was expressing concern that he may have been under police surveillance. It may be those concerns caused him to hesitate before entering the rendezvous location, a car park area at Williamtown. Having been satisfied by both his clients, Chris and Jack, it was safe to do so, he met each.

The First Delivery

10 At the car park Crosdale alighted from the blue Ford and spoke to the undercover police. Rollason remained in his own vehicle, in which they had arrived. He was introduced to undercover police at the time of arrival at the car park. Crosdale sat in the undercover police officer’s car and, after some discussion, there were two separate exchanges. “Jack” gave Crosdale $9,000 for four ounces of methylamphetamine, which Crosdale had in containers secreted in his clothing. That methylamphetamine was analysed and found to be an amount of 111.12 grams of methylamphetamine at nine percent purity.

11 Later Crosdale went back to Rollason’s car, opened the rear door and produced a white plastic bag containing a pound of cannabis leaf, which he gave to the undercover operative “Chris” in exchange for $3,200. The offender’s involvement in that transaction constitutes the first item on the Form 1.

12 After the physical exchange of drugs had occurred, Crosdale asked Rollason for his mobile telephone number. Apparently Rollason did not have the phone or its number with him. Crosdale, “Chris” and “Jack” got out of the car when there was further conversation between all four of them. Rollason and Crosdale talked about a trip to South Australia, and the drug laws in that State. Toward the end of that conversation Crosdale again told the undercover operatives that they should call “Dave” if they wanted “this one”, meaning methylamphetamine, but if they “want the green, just tell him to bring old matey along and I’ll bring one with me”.

13 The reference to “Dave” must be a reference to the offender. It was the purpose of Crosdale’s request for the offender’s mobile phone number. It explains conversations the offender and Crosdale had later, to which I shall now come.

The Second Delivery

14 On 17 July 2006 the undercover operatives rang Crosdale to arrange a meeting three days later. Crosdale assured his purchaser there had been an improvement in the quality of methylamphetamine. The undercover operatives signed up to purchase another four ounces. The following day Crosdale spoke to the offender by phone. Rollason said he did not know what was going on with Jack. Crosdale said “No, but you got him on Thursday”. Rollason asked if he (Crosdale) would be there and Crosdale teased him, saying “What’s up? The apprentice having trouble?”.

15 Later, on 18 July, Rollason rang Crosdale and told him there was “nothing wrong with it...it’s different than what we had...it’s better”. On 19 July Crosdale informed the undercover operatives the price would be “increased by one”.

16 At 9.10am on 20 July, in a phone call between Crosdale and the offender, the offender confirmed the meeting with “Jack”. Later the offender rang to tell Rollason he was there to pick him up, meaning outside the house as I understand it. About 1pm Crosdale and the offender arrived at the undercover operative’s motor vehicle. Crosdale was driving his vehicle, the offender was his front seat passenger. Crosdale alighted from his vehicle and placed himself in the front passenger seat of the undercover police operative’s car. He produced a paper bag from beneath his shirt and handed it to “Jack”. That bag had two plastic containers with yellow substance. Jack gave Crosdale $10,000. The yellow substance was later analysed and identified as 112 grams of methylamphetamine at 4.5 percent purity. The price increase referred to by Crosdale earlier it would seem amounted to $1,000.

THE THIRD DELIVERY:

17 The undercover operative arranged to purchase four ounces of methylamphetamine from Crosdale. On the morning of 10 August 2006 Rollason drove his blue Ford vehicle from an address in Medowie to the address of Crosdale. Rollason went into the premises. Police kept the vehicle under observation. Rollason and Crosdale came out together and entered the vehicle. Initially Rollason was in the driver’s seat but then swapped positions with Crosdale. Crosdale drove towards the car park near the Williamtown RAAF base with Rollason in the front passenger seat.

18 Upon the arrival of Crosdale and Rollason at the car park they were arrested by police. The vehicle, that is Rollason’s car, was searched and an amount of 110.5 grams of methylamphetamine of 17.5 percent purity was located in the console of that vehicle. The Crown case is that further 110 grams was intended for supply to “Chris” and “Jack”. An amount of cannabis leaf, 1368 grams, was located on the floor of the car behind the front passenger seat. That was also intended to be supplied to the undercover police. That 1368 grams constitutes the second offence in the Form 1. When arrested, Rollason was in possession of a mobile phone that was connected in the name of David Danvers.

A SEARCH WARRANT IS EXECUTED:

19 Following the arrests of Crosdale and Rollason on 10 August, police conducted a search warrant at the premises of Rollason, 9 Silver Wattle Drive, Medowie. In a shed at the property were items including a red Holden Commodore, which was Crosdale’s motor vehicle. Contained in that vehicle was a sum of $7,000 located in the console; 113 grams of methylamphetamine of 20 percent purity was found in a plastic resealable bag secreted inside a tin, wrapped in a towel, on the shed floor; a further 4.78 grams of methylamphetamine, 21.5 percent purity was also found in resealable plastic bags secreted in a black plastic container beneath the sink.

20 The Crown case is that the offender was aware Brett Crosdale’s car that was in the shed was used for the storage of prohibited drugs. But the Crown concedes it is unable to prove his knowledge extended to the quantity of methylamphetamine stored in the shed and, it seems to me, that it was Crosdale's intent to use it for supply.

21 Other indicia of supply was also located at the accused’s premises. In the kitchen area of the house police located a small set of electronic scales on top of the microwave and a plastic container holding some white powder, a steel knife with traces of methylamphetamine on the blade and a set of arctic scales in a cupboard under the sink. There were also a number of plastic “zip” bags in a drawer.

OBJECTIVE CRIMINALITY:

22 From the facts as he finds them to be, the sentencing judge is required to assess the objective criminality of the offence as an essential step in assessing the seriousness of the criminal behaviour of the offender. That is done by comparing objectively the criminality exhibited in the instant offence 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. Not surprisingly, the objective criminality has an important impact upon the overall sentencing outcome.

23 The courts and legislature have made it clear that drug supplying is an unacceptable criminal activity. It is not difficult to understand why drug supplying is a criminal activity. The courts have long recognised that in assessing the objective seriousness of a drug offence it is necessary to have regard to the drug’s potential for harm. Drug dealing is harmful to the community by its direct impact upon those who purchase drugs and its indirect impact upon the community at large.

24 For some, if not most drugs, but drugs such as I am concerned with here, cannabis and methylamphetamine, can be addictive. They are also capable of being destructive, causing, or contributing to mental health problems and/or aggression. Supplying drugs can lead to, create, or sustain drug addicts. Drug addicts are human beings whose capacity to function and feel human is smothered to a greater or to a lesser extent by addiction and other effects of drugs. This is the real essence of the criminal harm done by those who supply drugs, that is, in a greater or a lesser way they are contributing to the disenabling of other human beings.

25 Associated with drug addiction are other forms of crime, such as armed robbery, break/enter and steal, that is, a loss of property usually purchased by an owner’s own productive efforts. Associated with robbery and break and enter offences are trauma, emotional and psychological damage to the victims of those offences.

26 The spending of money on drugs by addicts, without corresponding productivity to the community, amounts to a monumental transference of wealth, usually from those who are already poor, without any corresponding economic gain for the community and enrichment to those who really have no right to be so enriched.

27 At every level then drug dealing is antisocial conduct and criminal conduct because of its corrosive effect upon individuals and society as a whole.

28 The evidence discloses both methylamphetamine and cannabis were supplied in quantities that would normally tell one crucial thing about the purchaser. Normally such a purchaser would be an on-supplier for commercial purposes. In this case, however, there was no on-supply. The nature of the criminality of the supplier was that he was reckless as to whether there would be any on-supplying or not. In the circumstances of this case there was no danger to the public or potential for danger to the public. Indeed, a public good would come from these supplies in that the drugs would be used for forensic purposes to catch the criminals. The administration of criminal justice, of course, is not so topsy-turvy as to allow any mitigation to the offender on that account.

29 As demonstrating the nature of the offender’s complicity in Crosdale’s criminality, that is, his being knowingly concerned with the supply of drugs, in respect of the first delivery the Crown relies upon the fact that the offender lent his vehicle to Crosdale for the purpose of the transaction, accompanied Crosdale to this location as an escort and was present during the transaction to assist Crosdale if required.

30 An analysis of the transactions conducted by Crosdale with the undercover operatives shows that between 8 May and 14 June there were five transactions of 27 grams-odd each, but between 22 June and 10 April there were four transactions of a much larger quantity and in respect of the last three, of 110 grams plus. Those transactions involved transfers of cash in excess of $9,000.

31 It may well be, particularly as Crosdale was concerned about police, that he was using this offender not just as an escort but as muscle. That is to say, that the offender was present during the transaction to assist Crosdale protect himself if required. That finding goes beyond the agreed facts.

32 In respect of the second delivery the acts relied upon by the Crown as demonstrating the nature of the offender’s complicity in Crosdale’s supply, that is, the way in which he knowingly took part, is that he confirmed the quality of methylamphetamine had improved, hence the higher price changed, again he accompanied Crosdale to the location as an escort and was present during the transaction to assist Crosdale if required.

33 On the third occasion the Crown relies upon lending his vehicle to Crosdale for the purpose of the transaction, accompanying Crosdale to the location as an escort. That delivery was untimely terminated, or perhaps timely terminated more accurately, by the arrest of each of the offenders. It was on this third occasion the offender was observed to enter the premises at Medowie for some time. The purpose and nature of the visit has not been proved in evidence. In those circumstances I have not associated it with any criminality by this offender.

34 The offender’s motive in the involvement I link to his co-offender’s description of him as “the apprentice”, and Crosdale’s instructions to the undercover operative to “ring Dave” for methylamphetamine. I have not excluded the possibility that Crosdale was contemplating time in Queensland. While I am not punishing for potential future involvement, I am fortified that Crosdale was grooming this offender to take a greater role in the distribution of at least methylamphetamine. The offender’s participation in this knowingly involved in supply was motivated by his prospects of advancement within what I have loosely termed the organisation. In that sense, then, this offender was motivated by commercial gain. That is not to say that there is any evidence pointing in respect of these matters to his obtaining any personal financial gain.

35 As to the actual deliveries of prohibited drugs constituting the offence of being knowingly concerned, each was, from Crosdale’s perspective, a commercial enterprise pursued for financial gain. $19,000 worth of methylamphetamine was sold, $3,200 worth of cannabis was sold on the first occasion and something nearing $10,000, on my count, was sold on the second occasion.

36 The offender’s possession of a mobile phone in a false name was a step taken consistent with his intending to use it when involved in unlawful activity. His role in the criminal activity undertaken with his co-offender is of a lesser degree of criminality than Crosdale. The objective facts are such as to call for a term of imprisonment.

SUBJECTIVE FACTS:

37 The offender did not give evidence. A report from John W Taylor, a well-known forensic psychologist, was tendered. Approaches of the Court of Criminal Appeal as to how judges might deal with such report, appears to me to require some caution in approaching them. I note no request was made by the Crown to cross-examine its author. He, that is the author, has taken a history, administered tests and made observations. His interpretation of the tests and his observations are formulated upon his skill and training, but are also reliant, to some extent, upon the history given, hence the need for caution.

PERSONAL CIRCUMSTANCES, FAMILY DYNAMICS AND BACKGROUND:

38 The offender is a 41 year old male. He told Mr Taylor he had separated from his de-facto partner of some 17 years some six to eight weeks prior to his arrest. He claimed subsequent reconciliation with her on the basis he was drug-free since arrest and was being given a second chance.

39 He was raised in Bega as the fourth eldest child in the family. He is said to have five half brothers and one half sister. It was not until he was 16 that he became aware his stepfather was not in fact his father. He told Mr Taylor that his stepfather had treated him as he would expect a father to treat a son. His mother and stepfather had separated approximately two years before he came to know this truth about his stepfather. He has ongoing contact with the stepfather.

40 The offender left home aged 16 or 17, shared accommodation with three friends in Bega for a while. Aged 18 or 19 he moved to Newcastle to be closer to his mother. He claims a wide network of friends.

EDUCATION SKILLS AND EMPLOYMENT:

41 His schooling was in Bega. He claimed to John Taylor that he was an average student who left school at 15 rather than be expelled. He had discipline problems, including smoking and using bad language towards teachers. He has secured unskilled labouring jobs through his work career, initially on a dairy farm, later for an equipment operator, later yet again on a winery bottling line and finally as a brickie’s labourer. Indeed, he became a bricklayer, which is, of course, usually a tradesman job.

42 Aged 26 he was involved in a motorcycle accident. Since that time he says he has only worked on a part-time basis. In respect of his part-time work, however, he gave no details to John Taylor.

HEALTH:
General health:

43 He claims to have been involved in a motorcycle accident when the cycle he was riding struck a cow. He suffered a fractured right hip, fractured ribs, injury to his right wrist and a closed head injury. He tells John Taylor he lost consciousness for an hour and spent seven weeks in hospital. He claimed to have recovered from the injuries, however, as I noted above, he claims to only work part-time because of the ongoing sequelae of the motorcycle accident.

Mental health:

44 He claims to John Taylor that he has no significant psychological or psychiatric problems. John Taylor’s testing disclosed no personality disorder or emotional disturbances. It was Mr Taylor’s opinion that the offender essentially had pro-social attitudes. John Taylor did diagnose, however, a Substance Abuse Disorder.

Drug and alcohol issues

45 From ages 18 to 24 the offender was involved in drinking Friday and Saturday nights to a point of intoxication. He claims to have curbed that habit and to have reduced his alcohol consumption. He claims that he does not now become intoxicated. He has abused cannabis since 16, smoking several times daily since 18 until his arrest. Aged in his late thirties he began to inject amphetamines. He gives no longitudinal history of his amphetamine abuse. From my experience in dealing with drug-related matters, I note the injection of amphetamines is usually reached after some prolonged use. It is usually a sign of serious and entrenched use of amphetamines. I have no reason to doubt that this would also be so in this case.

CHARACTER AND CRIMINAL HISTORY:

46 There is little evidence from which any character assessment can be made. As best I can tell, the offender is a 41 year old male who left school rather than be expelled, who fathered a child when he was aged 17 but claimed not to have knowledge of its existence until 20 years later. He appeared to have a reasonable work ethic when younger but appears to have lost it as a consequence of the motorcycle accident.

47 His antecedents disclose numerous criminal offending. All of his prior offending has been dealt with summarily. He has not previously been to gaol full-time, although it shall be seen he has been previously sentenced to imprisonment.

48 His first entry relates to a break/enter and steal, which was dealt with in the Bega Children’s Court in 1978. He did not re-offend thereafter until 1984, when he was before the Raymond Terrace Petty Sessions for driving and cannabis related offences. There was further serious driving offending late in 1984, when, on my calculation, he was, at that time, 18 or 19 years of age. There are cannabis offences in 1985, an assault in 1986, drink driving offences in 1989 and 1991, alcohol related offences in 1992. Late in 1992 there is a further driving offence. In 2004 he was fine $300 for possessing a prohibited drug and sentenced to three months’ periodic detention for supplying a prohibited drug. There were goods in custody charges before the court also at that time. For these he was given a s 9 bond, which he appears to have kept.

ATTITUDE TO OFFENCE:

49 The offender told John Taylor that at the time the offences were being committed he was heavily involved in drug abuse due to the separation from his wife some five or six weeks earlier. He told John Taylor “I went off the rails a bit when I separated from my wife...it was easier to be off your face and to not think about the consequences”. The problem with this account is that it is otherwise unsupported by evidence. He appeared capable of driving his co-offender when required; he appeared capable of making enquiries as to the strength of the methylamphetamine and recognising the importance of improving the quality of the delivered drugs; he apparently expressed some level of anxiety as to whether his co-offender would be with him when he was involved with the delivery of those drugs. The 5-6 week period of separation is, of course, different from his earlier estimate of six to eight weeks.

50 The period from 4 July to 10 August, that is the period of his being knowingly concerned, is just over five weeks, suggesting the separation and involvement coincide, or almost coincide with each other. I remain unconvinced that there is any causal effect in the claimed separation and the offender’s criminal conduct. Indeed, it is equally open to find his wife left him because of his involvement, rather than as being the cause of it. The nature of the length between his claimed separation and his involvement in this offending is a matter the defence must prove on the balance of probabilities. It has failed to do so.

ATTITUDE TO OFFENDING:

51 The offender told John Taylor he had significant remorse and regret for his behaviour. John Taylor’s opinion was that he was accepting responsibility for his offending behaviour. The offender knew, when speaking to John Taylor, that the psychologist had been retained to prepare a report for the Court. He told Mr Taylor “I am a lowlife, my kids have copped heaps...in a small town of Medowie everybody knows...my son had to take the year off school, my wife is embarrassed, I have shamed myself...I am not worthy of much, other people get hurt from drugs and I have probably hurt other families and especially the kids...I hope what I did hasn’t affected other people’s children”. John Taylor’s opinion was Mr Rollason accepts responsibility for his offending behaviour. With regard to this he said “It was my fault for going there...I knew what he (his co-offender) was doing”.

52 A judge must treat cautiously claims of remorse or regret and acceptance of responsibility where the offender has not offered himself for testing by cross-examination upon these claims. This much can be said, he has pleaded guilty to the offence. That plea appears to have been entered on 28 August 2007. It was a late entered plea. The report of John Taylor, and the expressions of remorse, occur on 19 September 2007. The plea had been entered during a voir dire hearing. The plea constitutes an acceptance of an offer earlier made by the Crown at committal hearing. It was entered before Judge Taylor had dealt with his co-offender and others involved in this drug dealing distribution network.

53 The plea of guilty is to be understood, and I do so, as an acknowledgment of his offending and a preparedness to be held accountable for it. But, given the late circumstances of the plea, I do not intend to otherwise give great weight to expressions of contrition, although they do suggest insight into the criminality of his offending conduct.

PLEA OF GUILTY:

54 When dealing with the issue of contrition and the offender’s attitude to the offence immediately above, I have reviewed the circumstances and timing of his plea of guilty. The Crown concedes the resolution of the matter, had it gone to trial, may have taken as much as two weeks, playing numerous phone intercepts to advance the Crown case. The Crown witness list constituted only police officers and forensic experts. Nonetheless, the plea, even though late entered, has valuable utilitarian value.

55 The guilty plea must be recognised as a significant contribution by this offender to advancing the administration of criminal justice, first and foremost because the interests of the administration of criminal justice are served through public acknowledgment by an offender of his guilt. Pleas of guilt by offenders sustain the community’s confidence in the administration of criminal justice by maintaining the confidence of the community in the investigation of crime and the community expectation that those guilty of crime will be held accountable for it.

56 The administration of criminal justice is also served because court time, witnesses’ time, legal expenses and the like are freed so that they can be devoted to other cases. A guilty plea reduces considerably the likelihood of contest in appeal on the issue of guilt. All of these are important utilitarian factors in so far as the administration of criminal justice is concerned. Thus, as I say, this plea contributes in a positive way toward confidence in the administration of criminal justice and in the court’s ability to complete its work schedules.

57 In the circumstances of this case, even though the plea is late entered, I intend to allow a 15 percent discount for it.

REHABILITATION PROSPECTS:

58 The material upon which the Court can assess rehabilitation prospects of this offender is limited. Evidence from testimonials, character evidence, reports from prison that might have given some insight into rehabilitation prospects were not available in this offender’s case. Mr Taylor, on the untested history and psychological testing he was involved in, came to a view the offender had a low likelihood of recidivism. His assessment appears to me to ignore a significant piece of history that the offender relies upon as accounting for his involvement in this criminal conduct, “I went off the rails a bit when I separated from my wife, ­­­­­it was easier to be off your face and not think about the consequences...it was stupid” (my emphasis).

59 What the psychologist was being told was that, when emotionally distressed, this offender was prepared to resort to “being off [his] face”, rather than “think about the consequences”. Moreover, my view is that Mr Taylor knew little about the offender’s longitudinal history with amphetamines. This appears to be a matter not factored into his assessment. Future behaviour is notoriously difficult to predict, however, recent past behaviour is always an important ingredient to weigh into the equation. It would appear to me that Mr Taylor has failed to do that.

60 If one accepts the offender’s account to John Taylor that he and his wife have reconciled, then her support of him, if she is willing to support him on release, is an important positive rehabilitation issue.

61 The self-appraisal questionnaire used by John Taylor appears to have one score favourable to the offender, “criminal tendencies”. Again I come to the quote of “being off your face”. His continual use of illegal drugs also suggests criminal tendencies. Likewise, his anti-social associates appears to have a favourable score, yet, considering his close involvement with the co-offender in three separate supplies, it may not have merited that score. The offender also believed that the undercover police operatives were anti-social or criminal persons with whom he was prepared to deal.

62 As the evidence stands, it is difficult to make a reliable prognosis of the offender’s rehabilitation prospects. I decline to do so.

63 There are however some positive indicators:

· relative stable upbringing

· stable relationship at least until recent times

· potential support from his de-facto and children

· potential accommodation upon release

· no mental health issues suggesting anti-social behaviour

· no prior incarceration history (excepting three months’ periodic detention).

On the other hand there are negatives:

· entrenched past history of disregard for rule of law

· poor work ethic in recent years

· entrenched drug history, especially with amphetamines and cannabis

· limited physical capacity as a consequence of the motorcycle accident

· recent relationship issues that may still need resolving post-release.

SETTING THE SENTENCE:
Deterrence:

64 In modern Australian society there is a very extensive raft of criminal laws passed by both Federal and State parliaments. The chief purpose of the criminal law put in place by the parliaments is to deter those who are tempted to breach the provisions of the criminal law (see Walden v Hensler (1987) 163 CLR pp 569-570). Parliament does that by prescribing penalties for those who engage in conduct prohibited by the criminal law. Consequently, when a person is sentenced for a breach of the criminal law, he is exposed to the possible maximum penalty provided by the statute breached. In this case the maximum penalty is 20 years’ imprisonment.

65 Sentencing for breaches of the criminal law requires the sentencing judge to keep in mind those general deterrence aims of the criminal law for the community at large by keeping in mind the maximum penalties available and their deterrent purpose. There is also a specific deterrence aimed at individuals like-minded to the offender, who, but for such deterrence, would be willing to commit crimes similar to those for which this offender is being sentenced. Finally, there is a component of deterrence to be considered personal to the offender with a view to deterring him or her from re-offending.

66 Section 54A of the Crimes (Sentencing Procedure) Act 1999 provides as follows:

“ 54A What is the standard non-parole period?

(1) For the purposes of this Division the standard non-parole period of an offence is the non-parole period set out opposite the offence in the Table to this Division.

(2) For the purposes of sentencing an offender, the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness for offences in the table to this division”.

67 Section 54 D of the Crimes (Sentencing Procedure) Act creates a table comprised of three columns, the first being ‘Item Number’, the second headed ‘Offence’, and the third ‘Standard non-parole period’. Matters appearing below Item Number are a series of numbers from one to 20. Matters appearing in the third column, ‘Standard non-parole period’, are expressed as numbers such 25, 10, 7, 3 and the like, with the word ‘years’ them, obviously comprising the standard non-parole period. In the middle column, under the name ‘Offence’, are descriptions, the meaning of which have been the subject of some discussion between myself and the parties.

Item 18 is in these terms:

“Section 25(2) of the Drug Misuse and Trafficking Act 1985 (supplying commercial quantity of prohibited drug), being an offence that
(a) does not relate to cannabis leaf, and

(b) if a large commercial quantity as specified for the prohibited drug concerned under that Act involves less than the large commercial quantity of that prohibited drug.”

Item 18 appears to pick up supply offences falling within s 25(2) of the Drug Misuse and Trafficking Act. The standard non-parole period said to apply is ten years.

68 What is to be noted about Item 18 is that s 25(2)(a) and (b) is that it is quite clearly prescriptive, excluding matters that would be greater than, or above, the large commercial quantity and those that involved cannabis leaf.

69 The Drug Misuse and Trafficking Act, so far as is relevant, s 25 appears in the following form:

“25 Supply of prohibited drugs

(1) A person who supplies or who knowingly takes part in the supply of a prohibited drug is guilty of an offence.

(1A) ...

(2) A person who supplies or who knowingly takes part in the supply of an amount of prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence”.

What is important to note about item 18 is that it appears to be limited to “supplying” a commercial quantity being less than a large commercial quantity of the prohibited drug. It makes no reference to an offence of knowingly taking part in supply.

70 The Crown although not conceding that my interpretation of the Table is correct does concede that subs (2) of s 25 creates two offences, one of supplying and the other of knowingly take part in supplying. That concession would appear to be well-founded.

71 Mr Warwick, appearing for the accused, relies upon a judgment of Hunt CJ at CL in the matter of Lisa Deng (1996) 91 A Crim R 80. For my purposes it is sufficient simply to note from the headnote the following:

“There is a distinct difference between the offences of supply and knowingly take part in supply. Knowingly take part in supply has a degree of remoteness in point of time or place from the actual transaction amounting to supply. It was intended to cover the cases in which the accused has not or cannot be shown to be guilty of the offence of supply, and it applies even though the contemplated supply does not take place”.

His Honour appears to have relied upon DPP reference (Number 2 of 1995); (1995) 65 SASR 508.

72 This morning the Court has looked at, and indeed last night I looked at, hopefully with some care, the other items listed in the Table. I have come to a view that the principles of statutory interpretation require a strict interpretation of s 54A of the Crimes (Sentencing Procedure) Act and the Table. I have come to a view that an offence of being knowingly concerned with supply of drugs does not attract a standard non-parole period. If that be so, cases and principles built upon the jurisprudence created in Way’s case (see R v Way (2004) 60 NSWLR 168) do not apply.

73 Given that this offender pleaded guilty, on any view of ss 54A and the Table the standard non-parole period would not have applied in this case. However, the significant difference is, as Howie J said, if, absent a plea of guilty, the offence was one attracting a standard non-parole period and, if it fell within a mid range of seriousness, then ss 54A and 54D “would have had work to do” in a case such as this.

74 My view is that ss 54A and the Table have no work to do in this case because the charge of being knowingly concerned in supply of a commercial quantity does not attract the standard non-parole period.

75 In the event that I am wrong, and an appeal should occur, I should indicate that I would regard this offence as below the mid range of seriousness. While it is true that it is aggravated by the fact that there are three deliveries, and hence three discrete episodes of contributing criminality, each episode standing alone involved less than a commercial quantity of methylamphetamine supplied. Indeed, it was only when all three episodes were connected that the quantity measured up to a commercial quantity. The commercial quantity range is between 250 grams and 1000 grams or one kilo. The total quantity of methylamphetamine here is well below the one kilo mark. It is towards the lower, rather than the upper threshold of commercial quantity. It is 92 grams over the bottom threshold and 600-odd grams below the upper threshold.

76 The offender has no prior history of being associated with supplying but for an offence in 2004, for which he received three months’ periodic detention from a court of summary jurisdiction. This offence obviously is far more serious than that. But his prior history does not aggravate his criminality on this occasion. The offender was not the supplier but rather in an accessorial role to the supply. I accept that in respect of the offence with which he has been charged and to which he has pleaded, he is a principal in the first degree, but any examination of the nature of his criminal offending, as relied upon by the Crown in this case, casts him in an accessorial role to Crosdale.

77 His criminality in assessing whether it falls within the mid range for the purposes of s 54A is not aggravated by my requirement to consider the Form 1 matters when I come to sentence. For those reasons I would have held this offence well below a mid-range offence. In so saying, I am not suggesting it falls into the low range, I simply seek to put a distance between it and the mid range.

78 The two Form 1 matters must drive the sentence that I impose for this offence upwards. The Chief Justice, speaking for the Court of Criminal Appeal in a guideline judgment on the proper approach to Form 1 matters, made clear the rationale for the increase in penalty. He said:

“The court does so by giving weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community’s entitlement to extract retribution for serious offences which...are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence”. (The Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2004) 61 NSWLR 305.

ISSUES OF PARITY:

79 His Honour Judge Taylor sentenced a number of offenders involved in this network. Of particular relevance is the sentence imposed on Brett Crosdale, this offender’s co-offender. Crosdale pleaded guilty to three counts, one of supplying a commercial quantity of methylamphetamine and two of supply cannabis leaf, which are reflected in this offender’s case by way of the Form 1. His Honour set an overall sentence of five years’ non-parole with a balance of term of three years. The relevant offence I have been invited by the Crown to focus upon is the supply commercial quantity of methylamphetamine. The sentence set for that offence by Judge Taylor was one of four and a half years’ non-parole and three years’ balance of term.

80 In the case before his Honour Judge Taylor, Crosdale had made five deliveries of 27 plus grams and four deliveries of 110 plus grams for a total of 718.5 grams. The period of deliveries stretched from 8 May to 10 August. He was the principal. He was the actual supplier. His Honour held that while the offender had a criminal record, it was not significant. His Honour held that he was a middle order supplier. His Honour found he was an abuser of drugs. His Honour held that even though there was a plea of guilty, he was bound by the principles in Way; that is, he had to recognise the effect of the legislation creating a standard non-parole period was to drive upwards the sentence and non-parole period he should impose, even though he was not imposing a standard non-parole period.

81 Crosdale’s criminality is clearly greater. There are five bases for distinguishing Crosdale’s case. The period of criminality is three months, as distinct from five plus weeks; the episodes of criminality are nine, as against three for this offender; the quantity of methylamphetamine supplied by Crosdale is 718 grams, against 314 grams of being knowingly concerned, that is, less than half; the role of each offender differs, one is, in effect, a supplier, the other an accessorial co-offender; and, finally, accepting the validity of my decision that the standard non-parole period does not apply, which I must, having made it, his Honour held that he was bound by Way, I have held I am not bound by Way.

82 While I accept that some sense of proportion must be maintained in the sentence I set, measured against the sentence imposed by his Honour, there are those five matters I must take into account. The concept of true parity must be substantially diluted because of those matters I have just referred to.

IMPACT OF GUIDELINE JUDGMENTS:

83 There are two guideline judgments that have played a role in these sentencing proceedings. The Attorney-General’s Reference in the Form 1 matters to which I have just referred, and Thompson v Haulton (2000) 49 NSWLR 383 in respect of allowing a discount for the plea of guilty.

CUSTODIAL HISTORY SINCE ARREST:

84 This offender was arrested on 10 August 2006. He has been in custody since his arrest. The non-parole period will be backdated to take effect from that date.

APPLYING THE PLEA DISCOUNT:

85 But for the plea of guilty, I would have set an overall sentence for this offending of three years. I discount that figure by 15 percent. That amounts to 5.4 months. I have rounded it up to six months. Thus the overall sentence to be imposed is one of two and a half years.

86 This is a case in which special circumstances should be found. My reasons for so doing are:

• This offender is 41 years of age, this is his first period of full-time incarceration. At his age he will be well above the age of the prison population, who fall between 18 and 26. To that extent his age tends to be an isolating factor for him.
• His co-offender received a finding of special circumstances. While, as I said, strict parity does not apply, his criminality was less than that of the co-offender. In those circumstances there could be a justifiable sense of grievance if a similar favourable finding was refused to him.
• His rehabilitation is better achieved in the community rather than in custody.

Formal Orders

87 Mr Rollason, I convict you of the offence that you, between 3 July and 11 August 2006, at Williamtown and Medowie, did knowingly take part in the supply of an amount of prohibited drug, methylamphetamine, that was not less than the commercial quantity. I also take into account the two matters on the Form 1, namely that you knowingly took part in supply by Brett Crosdale of 454 grams of cannabis leaf and also that you knowingly took part in the supply by Brett Crosdale of 1368 grams of cannabis leaf on 4 July and 10 August 2006 respectively.

88 I sentence you to eighteen months’ imprisonment, to date from 10 August 2006 and to expire on 9 February 2008. I set a balance of term of twelve months, to expire on 9 February 2009.

89 Is there any other matter that I need to attend to Mr Crown? I will order a copy of the judgment so that those who instruct you and others may review it.

STANHOPE: Yes, I would be grateful if your Honour would do that. Not directly related to sentence, could I also ask your Honour to make an order in relation to the destruction of the drugs seized by the police in respect to this matter. I have a short form of the order if your Honour would see fit to--

HIS HONOUR: Thank you. I take it none of the parties would have any objection?

WARWICK: No your Honour.

HIS HONOUR: I order that the drugs seized by police, both methylamphetamine and cannabis, in connection with the offences on 4 July, 20 July and 10 August, involving this offender, be destroyed in accordance with New South Wales Police procedures.

STANHOPE: Thank you your Honour.

HIS HONOUR: Mr Warwick, any matter?

WARWICK: Nothing from my perspective your Honour.

HIS HONOUR: All right, the offender may be returned to custody. I order a draft copy of the judgment to be made available as and when convenient, but it should be relatively quickly so that those advising the Director can see what was held.

*********