R v Lane [2020] NSWDC 643

District Court New South Wales

Medium Neutral Citation: R v Lane [2020] NSWDC 643 Hearing dates: 14 August 2020 Decision date: 14 August 2020 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Aggregate sentence of 3 years 9 months with a non parole period of 2 years. Catchwords: CRIME – Supply prohibited drug commercial quantity; two rolled up offences - MDMA- Cocaine – supply and agreement to supply - use of undercover operative SENTENCING — Relevant factors on sentence — early guilty plea - part of criminal group- Form 1 matters - drug user - strong family support - lessons learned in custody - release plan in place - special circumstances – COVID 19 considered Legislation Cited: Confiscation of Proceeds of Crime Act 1989 Criminal Procedure Act 1986 Drug (Misuse and Trafficking) Act 1985 Cases Cited: Abas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 Attorney General's Application No. 1: (2002) 56 NSWLR 146 DW v R [2012] NSWCCA 66 Category: Sentence Parties: Shaun Terry Lane (the offender) Director of Public Prosecutions Representation: Counsel: Mr D McCallum (for the offender)

Solicitors: Morrisons Law (for the offender) Ms A Bird (for Director of Public Prosecutions) File Number(s): 2019/00255934

SENTENCE – EX TEMPORE REVISED

Introduction 1. Shaun Lane is still a young man. He was born in June 1999. All the material before me indicates that when very young he and his family suffered what his psychologist, Ms North, refers to as "childhood trauma," because of the domestic violence and other problems generated by his father's behaviour. That trauma has had a continuing influence on him. 2. It is not at all surprising that a dysfunctional family environment, poverty and early exposure to drug use and violence can normalise both violence and drug use in a young person. Lane took up the use and abuse of illicit drugs from a relatively early age. It would appear that by 2019 that drug use was the most important thing in his life. He no longer cared about his own health, or his family or his work. He was an apprentice carpenter and studying at TAFE. That sort of work and that sort of study is inconsistent with heavy drug use and it would appear gambling. 3. That accepted, the law is very, very clear: A drug addiction or an associated gambling addiction, cannot mitigate the penalty that must be imposed following the commission of a serious crime. Neither can they excuse in any way the supply of drugs to others. If they did it would only perpetuate the very problem that the community faces from the illicit distribution of drugs. 4. Many, including retired Police Commissioners, have said we cannot gaol our way out of the problem of illicit drug use. But courts must apply the law. Parliament has set heavy maximum penalties and standard non‑parole periods for drug supply offences. The punishment demanded by reference to those maximums is, for the moment, our community's major response to the harm illicit drug use causes individual users, their families and others in the community; as Lane now knows, as his family now knows. The additional crimes generated by the huge profits that some can make from the sale of illicit drugs in our community causes even more problems. The number of crimes are committed as a result of that illicit cash circulating in our community can sometimes beggar belief. 5. Whatever his initial motivation, Lane chose to involve himself in a criminal group that was distributing 3,4-Methyl​enedioxy​methamphetamine (MDMA) and cocaine in the local community. His familiarity with both dealers and other users made Lane an important part of that criminal group. It would appear from all the material before me that he was being paid in drugs by the principals in the group, which he would then sell to others. It is clear from all the facts before me that he used his access to customers to arrange sales in quantities of 28 grams or 1 ounce units, sometimes in multiples of them. He expected a reward. By the time he chose to engage in the matters that bring him before the Court he had left TAFE and left work. His only means of support were the consequent profits that he could make from the sale of drugs for this criminal group. 6. There are agreed facts before the Court. They are detailed. The defence and prosecution have appropriately and properly accepted that the drug quantities be "rolled up" into two separate offences. Those offences are: supply prohibited drug commercial quantity MDMA and supply prohibited drug commercial quantity cocaine: s 25(2) of the Drug (Misuse and Trafficking) Act 1985. They carry maximum penalties of 20 years imprisonment and/or a significant fine. For an offence which taking into account only objective factors falls in the middle of the range, Parliament have said that a standard non‑parole period of ten years applies. 7. That maximum penalty and the standard non‑parole period are guides to the exercise of my sentencing discretion. Content must be given to the standard non‑parole period. However, I do not simply start at a maximum penalty or a standard non‑parole period and make proportional deductions from it, nor do I oscillate around any particular nominated point. Rather, a Court has to formulate a sentence taking into account all relevant factors; including what occurred, the objective seriousness of the offence and any subjective matters put before the Court on behalf of the offender. 8. I am also asked to take into account when I sentence for both matters a number of matters which have been placed on a Criminal Procedure Act 1986 Form 1. I will not and cannot sentence for those offences, but they do have a role to play when I come to formulate the appropriate sentence for the two matters for sentence. I take guidance from the Court of Criminal Appeal's guideline judgment and the decision of the present Chief Justice in Abbas: Attorney General's Application No. 1: (2002) 56 NSWLR 146 at [39] – [42] and Abas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 at [22]. They do mean here that a heavier sentence be imposed for both matters. I take into account, as the Court of Criminal Appeal direct, the need for a greater emphasis on community protection and specific deterrence. 9. In this case, for the reasons that I outline below, specific deterrence has been met by the time already served in gaol on remand. But community protection remains as one of the fundamental reasons for any sentence, particularly a sentence of imprisonment, and a sentence of imprisonment involving further custody must be imposed.