District Court New South Wales Medium Neutral Citation: R v Daniels [2020] NSWDC 792 Hearing dates: 1 October 2020 Decision date: 01 October 2020 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Sentenced to a term of imprisonment of two years. Non parole period of one year two months. Catchwords: CRIME — Drug offences — Supply prohibited drug — Commercial quantity MDMA SENTENCING — Relevant factors on sentence – early plea – limited participation - parity - special circumstances - progress toward rehabilitation – strong prosocial support Legislation Cited: Crimes (Sentencing Procedure) Act 1999, Cases Cited: Bugmy v The Queen (2013) 249 CLR 571 Lau v R [2010] NSWCCA 43 R v DW [2012] NSWCCA 66 R v Millwood [2012] NSWCCA 2 R v Turk [2020] NSWDC 400 Taysavang v R; Lee v R [2017] NSWCCA 146 Category: Sentence Parties: Keiran Scott Daniels (the offender) Director of Public Prosecutions Representation: Counsel: Mr A Williams (for the offender) Solicitors: Ly Lawyers (for the offender) Mr M Rollestone (for the Director of Public Prosecutions) File Number(s): 2019/00326017 Judgment – ex tempore revised 1. As Keiran Daniels has come to learn, any involvement in the supply of illicit drugs for profit, can, and usually does, result in the offender, if caught, going to gaol; and going to gaol for a substantial period of time. The sale and distribution of illicit drugs in our community causes harm on a number of levels; not just harm for the users of the drugs but also harm to the community in general. The illicit profits that can be made, because drugs are illegal and can only be obtained illicitly mean there is more crime in our community. People are prepared to take risks in order to make the profits that are available. Often the people who take the greatest risk are those most vulnerable to being caught while the people who make the greatest profit remain undetected. 2. I have already sentenced Mr Turk who was caught in the same police operation that netted Daniels: R v Turk [2020] NSWDC 400. Acting Judge Woods QC has already sentenced Mr Kemper and Mr Bridges. All were involved with Daniels to some degree. I have yet to be told whether anyone who was supplying down the line to them has been detected let alone arrested and brought for sentence before the Court. 3. This morning Daniels pleaded guilty to an indictment indicating that he had supplied 139.9 grams of 3, 4-methylenedioxymethamphetamine (MDMA). That is not less than the commercial quantity applicable to that drug. The plea to the indictment came about only because of a need to cure some technical defects in the committal for sentence documents. 4. When he was arrested on 17 October 2019 Daniels made full and frank admissions to his role in this commercial supply operation. He has cooperated with police and has cooperated with the authorities in bringing his sentence matter to the Court. The otherwise appropriate sentence will be reduced by 25% to reflect the utilitarian value of that plea as required by s 25D Crimes (Sentencing Procedure) Act 1999. His cooperation with the authorities is also relevant to my assessment of his prospects for rehabilitation and gives some credence to the genuineness of his expressions of remorse in his letter to me. I say that notwithstanding the fact that he was caught red-handed. 5. The facts for sentence are not in dispute. Daniels, by his own admission, was involved both in the use and sale of illicit drugs. He was in debt to an up chain supplier. In order to work off some of his debt he agreed to convey the MDMA, with the assistance of Kemper, to Turk; ultimately intending that the drugs be supplied to Turk's customer. Turk was supplying MDMA to an undercover operative involved in a controlled operation targeting drug supply in the Shellharbour area. 6. Daniels was in possession of cocaine for the purpose of supply when he was arrested. He was not to know that the customer was an undercover operative and that the drugs would be intercepted. That the police intercepted the drugs and prevented their supply to users does not diminish in any way his moral culpability for his offence. But harm caused is one measure of objective seriousness of a crime and as RA Hulme J explained in R v DW [2012] NSWCCA 66 it does mean that the ultimate harm of this offence was mitigated by the police action. 7. Other measures of seriousness are the quantity of the drugs supplied: here close to the cut‑off point for a commercial supply, and the role of the offender. Daniels was effectively acting as a courier or conduit between his supplier and Turk. 8. Principles requiring harsh deterrent punishment apply to all who engage at any level in drug supply networks. Absent involvement of people such as Daniels drug distribution networks would simply collapse. He played his role in organised criminal activity and he did so without any serious regard to harm to the public that drug supply causes. That said his role remains relevant. His limited role and his subjective circumstances provide solid reasons for a substantial departure from the standard non‑parole period that applies to this offence. 9. That standard non‑parole period is ten years imprisonment, for an offence that falls in the middle of the range taking into account only objective factors. The maximum penalty for the offence is 20 years imprisonment. Both the maximum and the standard non‑parole are guides to the exercise of my discretion. Content should be given to a standard non‑parole period. That said, neither the maximum nor the standard non‑parole period can determine the sentence that I must impose as every offence and every offender are individual. 10. I must also take into account the sentences imposed on Turk and Kemper and the way those sentences were structured. Equal justice requires that like offenders are treated alike. There are however differences between each of the offenders. Is it accepted by both Mr Williams, who appears for the offender and Mr Rollestone, Solicitor Advocate for the Director of Public Prosecutions, that taking into account all factors this offender falls somewhere between Turk and Kemper. I agree. 11. The offender's record has to be taken into account. He is not entitled to the leniency often given to first offenders. This is however his first time in custody. I take into account he has endured his period in custody during the present COVID-19 pandemic. He has used his time in gaol productively to his advantage. If he did have a drug addiction and the evidence before me establishes that he was certainly abusing cocaine to an excessive degree, he has dealt with it in custody. He has proved that he can live a pro‑social life in the community. He has strong pro‑social support. His drug use almost destroyed the relationship he has with his wife and young child. She is here today to support the man she married; he is not the man who offended against her and offended against the community. She sees some worth in him. Strong pro‑social support is one measure of a person's capacity to lead a lawful life in the community. So too is supervision on parole as is the availability of work. 12. I will take into account his letter to me and his acceptance of responsibility for his offending. His letter appears heartfelt and genuine and although not supported by evidence on oath it is relatively uncontroversial. 13. Similarly uncontroversial are the opinions of his psychologist Mr Ballardie. Mr Ballardie notes a family history in the United Kingdom where his life and the lives of his sibling and his mother, were blighted by crime and violence in the home. Such a background unfortunately often leads to a person's moral compass being distorted and their moral culpability lowered. Mr Williams referred me to Bugmy v The Queen (2013) 249 CLR 571 and R v Millwood [2012] NSWCCA 146. Mr Rollestone took me to Taysavang v R; Lee v R [2017] NSWCCA. 14. This is not strictly a Bugmy case. I do not believe that the full Bugmy principles apply to him. Care needs to be taken in expanding principles which were designed to explain the impact of childhood disadvantage on violent offenders. That said it is clear that Daniels' background made him more vulnerable both to the uptake and use of illicit drugs. When faced with the clear choice of supplying the MDMA or not, he took the criminal course. His background was relevant and helps explain why that choice was made but it was his choice and his choice was a criminal one. He and others tempted to make such choices have to understand and think about the consequences. 15. His co‑offenders each received a relevantly lenient disposition. He is entitled, because of his background and his progress towards rehabilitation, to similar leniency. My finding of special circumstances is also subject to parity principles: Lau v R [2010] NSWCCA 43. 16. I accept that prior to the commission of this offence he was depressed and anxious. Those that conditions made him more vulnerable to the uptake of illicit drugs. His use of illicit drugs damaged his relationship. His wife was quite within her rights to show him the door. I accept that when he committed this offence he had effectively reached rock bottom. Everything he has done since that point, as evidenced by his gaol record, has been to pick himself up so that he can be restored to his family and the community. Those matters justify a finding of special circumstances. 17. A plan is in place for his treatment in the community. Community Corrections, while guarded about to his prospects, have a supervision plan in place for him. As I remarked when sentencing Mr Turk, supervision on parole for as long as possible is an important factor in preventing the commission of further offences; and prevention of further offending is a primary goal of any sentencing exercise. 18. I have referred to COVID-19. If COVID-19 gets into the gaols he would qualify for early release. 19. Synthesising all relevant factors an overall sentence of two years is appropriate. In so doing I have taken into account the matter on the Form 1. It was of itself a serious offence. I do not sentence for that offence but it does mean that greater weight has to be given to specific deterrence and community protection when I sentence for this matter. The Form 1 facts did help inform the facts of this matter because it indicates that prior to the commissions of this offence that Daniels was involved in the supply of illicit drugs, something he admitted. . Orders 1. There will be a non‑parole period in this matter of one year and two months. That sentence will commence on 17 October 2019 which means you will be released to parole on 16 December 2020. There will be a parole period of ten months to commence upon the expiration of the non-parole period, and expiring on 16 October 2021. 2. I note the matter on the s 166 certificate as a backup offence is to be withdrawn and will be dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 December 2020