R v Newton [2020] NSWDC 806

District Court New South Wales

Medium Neutral Citation: R v Newton [2020] NSWDC 806 Hearing dates: 31 March 2020 Date of orders: 31 March 2020 Decision date: 31 March 2020 Jurisdiction: Criminal Before: Judge W Hunt Decision: Taking into account matters on a Form 1 the offender is sentenced to imprisonment for a period of 2 years to be served by means of an ICO. As well as the standard conditions of the ICO there will be an additional condition that the offender perform 300 hours community service Catchwords: CRIMINAL LAW – Sentence – Supply commercial quantity of prohibited drug – MDMA – Form 1- Limited role of offender Legislation Cited: Drug (Misuse and Trafficking) Act, 1995 Category: Sentence Parties: Office of the Director of Public Prosecutions Darcy Newton Representation: Ms A Bowens – The Crown Mr Thomson – The Offender File Number(s): 2018/393366

SENTENCE 1. HIS HONOUR: Darcy Newton is before the Court for sentence in relation to one principal count; being a supply commercial quantity of a prohibited drug; being MDMA in breach of s 25(2) of the Drug (Misuse and Trafficking) Act, 1995. That matter has a maximum penalty of 20 years imprisonment and a standard non-parole period of ten years. Additionally, the parties asked me to take into account two other supply commercial quantity offences which would carry the same penalty on indictment. It is inevitable that taking those two matters into account will place upward pressure on the penalty otherwise to be imposed on the principal count. 2. The facts are agreed in relation to both the principal count and the two matters on the Form 1. On 14 August 2018 a witness asked Shannon Wylie to supply with him "another 500" by the evening of 17 August 2018. Wylie told the witness he would know if he could do that by the next day. On 15 August 2018 Mr Potter, who is also a co-offender and somebody known to this offender, and Wylie had a conversation during which they organised for Wylie to attend Potter's residence the next day. Immediately after this conversation Wylie rang the witness and said, "You're guaranteed the same things as last time", and they agreed to meet the next day at 4pm on 16 August 2018. 3. At 1.30pm on 16 August 2018 the witness sent Wylie a Snapchat that confirmed being available for 4.30, "with papers" - which I take to be a reference to having cash to undertake the transaction. Wylie confirmed that arrangement. 4. At around 5pm that day the witness met with Wylie at the Matilda Service Station in Armidale. He provided him with $7,500 worth of pre‑recorded money in a brown paper bag for the purpose of purchasing MDMA. 5. At 8.40 on 16 August 2108 this offender and Wylie parked their separate vehicles across the road from Potter's residence in Neath. They were standing outside the vehicle with Potter shortly afterwards. The offender drove away and police lost track of him until later in the evening when he parked outside the offender's residence again. The offender and Potter supplied the MDMA to Wylie. The offender and Wylie departed almost immediately in their separate vehicles and surveillance was ceased. 6. On 17 August 2018 Wylie organised to meet the witness at the Matilda Service Station again. Around 3 o'clock that day Wylie provided him with a canister which contained Tom and Jerry printed resealable plastic bags, including a number of blue, grey triangle-shaped pills which were seized and found to be 118.89 grams of MDMA with a purity of 18%. They are the facts in relation to the principal count which continue as follows. 7. On 30 August 2018 the witness sent a Snapchat to Wylie effectively seeking a further 230 pills. Wylie agreed to meet him at the Matilda Service Station at 2.30 pm. Around 3 o'clock the witness arrived at the service station with another witness. They provided Wylie with $7,500 of pre-recorded money to purchase MDMA. The other witness provided Wylie with $1,000 to purchase cocaine. Later that day Potter and Wylie had a recorded telephone conversation, discussing when Wylie would arrive. Wylie told Potter he would be there about 8.30 pm. 8. Shortly afterwards Potter rang the offender and passed this information on. The offender said he would be at Potter's residence at 7.50 pm. The offender attended and provided the MDMA to Wylie. Around 3.30 pm on 31 August 2018, the witness attended an address where he met Wylie who provided him with a resealable plastic bag containing many light grey coloured triangular pills. Wylie returned $1,000 to Potter and told him he had been unable to obtain cocaine for the other witness. The pills were seized and found to contain 121.21 grams of MDMA with a purity of 16.5%. They are the facts in relation to the principal offence, the first matter on the Form 1 which relate to MDMA supply in the amount of 360 grams. 9. On 24 September 2018 the witness had a Snapchat conversation with Wylie arranging the purchase of 1,500 MDMA pills for $14 each. On 25 September 2018 the witness met Wylie at the Matilda Service Station and provided him with $21,000 to make the purchase. Wylie told him that he would drive to Newcastle the next day with his cousin, James Faulkner, to make the purchase. Potter organised the obtaining of the pills by the offender. 10. On 26 September 2018 Wylie and Faulkner were driving to Potter's house when Potter rang, they had just gone through Gloucester when they had the following telephone conversation. Potter: "Me mate who was getting you that shit just got done." Wylie: "Fuck off bro." Potter: "Yeah he got pulled up and shit eh." Wylie asked for this offender's number so that he could discuss things with him directly. Wylie and Faulkner returned to Armidale and explained to the witness that the person supplying had been stopped by police between Sydney and Newcastle. 11. The other matter on a Form 1 is also an agreement to supply prohibited drug. On 15 October 2018 the offender Wylie agreed to supply the witness with 2,000 MDMA pills. He planned to obtain the prohibited from Newcastle on 25 October 2018. The offender and Potter were captured on telephone intercept discussing the obtaining of two boxes or 2,000 MDMA pills for Wylie. Wylie and Faulkner had a telephone conversation later that day on 25th of October where Wylie told Faulkner, "Don't even worry about this arvie, she's no good, and we'll try and find another carton somewhere else but I don't know." Faulkner, in making reference to the offender and Potter, referred to them as "queer cunts." On 25 October 2018 the witness and Wylie met at the Matilda Service Station where Wylie explained to the witness that he had been contacted by the offender who had been contacted by his supplier who had told the offender he is not willing to supply the pills because the amount was too risky. This concludes the facts. 12. I am prepared to accept on the balance of probabilities the evidence given by the offender under cross-examination by the Crown that his financial benefit was limited to $900 across the range of transactions. I accept his evidence that he had savings and had paid off his car and did not have any financial need. I further accept his evidence that he was principally doing this to assist his friend, the co-offender Cameron Potter, because of his financial difficulties. 13. It would seem on all of the material exhibited in the facts that the offender was what might be described as a low level conduit - he had a very limited role. He did not have any planning or negotiating ability. I would characterise the offending as being towards the lower end of the range for offences of these kinds, notwithstanding the significant weight of drugs that is caught by this particular charge. 14. The offender gave evidence before me which largely supported the impression gained of him, both by the author of the Sentencing Assessment Report, Ronald Donaldson, who assesses him as being suitable for community service work and having a low risk of reoffending. I find the following in terms of the offender. He is a person with no prior record. He has very good prospects for rehabilitation. He is a less suitable vehicle for specific deterrence because his morale culpability in relation to this matter is reduced. It is reduced for this reason, that although he ultimately ended up living with his father who had separated from his mother when he was about six years of age and his father was a successful businessman, during his tender years he had to assume largely some parental responsibility for his sister, although she was only two years younger than him, because his mother had serious mental health difficulties and was an alcoholic. Her ability to care for the children ultimately terminated when this offender was about 11 years old and he went to live with his father. Having said that, until she died when he was about 16 years of age, he continued to try and support her, calling her regularly on the telephone and attempting to visit her most weekends. He had to witness his mother's slow physical and mental decline until the time that she died of alcoholic related symptoms, as I have said, at the time that he was 16. 15. Whilst it is a variant on the dysfunctional upbringings that are largely seen by this Court in Aboriginal communities, the level of deprivation and difficulty that this offender suffered has had a couple of effects. It meant, in relation to this matter it would seem, that he really did not turn his mind to the seriousness of his offending and I accept his evidence in that regard. 16. His family friend, Helen Hayne, whom he describes as his second mother, his long term soccer coach and his employer who saw him through an apprenticeship straight after he finished the HSC and maintaining his employment now as a qualified tradesperson - all of those three people speak very highly of the offender and find his offending entirely out of character with the ordered young man that he has become, against that difficult backdrop. 17. Mr Thompson put to me that his end-point submission was to seek an intensive corrections order for his client and the Crown having appeared in a range of matters both more serious and less serious than Mr Newton's, very fairly in my view conceded that that was a sentencing disposition that was within range given the objective and subjective case mounted by Mr Newton. 18. The formal orders will be that Mr Newton, taking into account the Form 1, Mr Newton is in prison for a period of two years commencing today on 31 March 2020 and expiring on 30 March 2022. That sentence of imprisonment is to be served in the community by way of an intensive corrections order. There will be the standard conditions which mean that he will have to attend to the Lake Macquarie Community Corrections office within seven days of today, and there will be an additional condition that he undertake 300 hours of community service work. 19. Thanks for the care that you both took with it. 20. Mr Newton, you have heard what I had to say, you know that this is well outside the range of behaviour that you normally expect of yourself and those people who value you assess as your general way of behaving. I found that you have very good prospects of rehabilitation and are unlikely to reoffend. I hope very much in your interests that that is right. 21. You are going to have to sign some paperwork but my Associate will communicate, I am just not sure what the registry arrangements are about signing things like that. But you are just going to have to wait outside for the moment.