District Court New South Wales Medium Neutral Citation: R v Taylor & Rafferty [2021] NSWDC 11 Hearing dates: 1 February 2021 Date of orders: 8 February 2021 Decision date: 08 February 2021 Jurisdiction: Criminal Before: Priestley SC DCJ Decision: Taylor See [125] Rafferty See [52] Catchwords: CRIME — Drug offences — Ongoing supply CRIME — Drug offences — Supply prohibited drug — Large commercial quantity Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Parente [2017] NSWCCA 284 Wong (2001) 207 CLR 584 Millwood [2012] NSWCCA Muldrock v The Queen [2011] HCA 39 Redfern v R [2012] NSWCCA 178 Wong (2001) 207 CLR 584 Grabovac v R [2018] NSWCCA 100 Tamer v R [2020] NSWCCA 333 R v Qi [2019] NSWCCA 73 Dogan [2019] NSWDC 385 Khaddam [2019] NSWDC 732 R v MA [2004] NSWCCA 92 Texts Cited: Nil Category: Sentence Parties: Regina (Crown) Taylor (Offender) Rafferty (Offender) Representation: Hannah Crown Prosecutor for the NSW DPP Bell Solicitor for Mr Taylor Webb Solicitor for Mr Rafferty File Number(s): 2019/00358256 & 2019/00381957 Publication restriction: Unrestricted Judgment Introduction 1. On 1 February 2021 the Court heard two sentence hearings together. The offenders were Michael John Rafferty and Aaron Taylor. In each case a Crown bundle was tendered and became exhibit A. In each case, the exhibit A referred to certain co-offenders. It was made clear by both the Crown and on behalf of the offenders that parity was not an issue in either case. Whilst there are factual connections between each of the offenders named, the offences the subject of these sentences are sufficiently distinct that this approach should be taken. 2. I propose dealing with both sentences in this one judgment. There is some efficiency in this for the principles relating to sentencing for drug supply are common to both matters. The facts of each case and the subjective matters are of course necessarily different and will be clearly set out. Michael John Rafferty 1. Michael John Rafferty appears for sentence on two charges under section 25A(1) of the Drug Misuse and Trafficking Act ("DMTA"). Each offence has a maximum penalty of 20 years imprisonment. There is no standard non-parole period. The maximum term serves as a legislative guidepost to the appropriate sentence and is one of a range of considerations to take into account in arriving at the ultimate sentence. I note there are no matters to be taken into account by way of the form 1 procedure. 2. The offender was born on 29 December 1986. The offending constituting count one occurred between 16 September 2019 and 15 October 2019, a period of 29 days. I note the element of the offence that more than three supplies occur within a 30 day period. The offending constituting count 2 occurred between 16 October 2019 and 12 November 2019, a period of 27 days. The offender was therefore 32 at the time of the offending and at the date of sentence is 34. 3. The offender was arrested on 4 December 2019 and has remained in custody since that date so that he has spent a total time in custody to the date of this sentence (8 February 2021) of 14 months and 4 days. Facts 1. In the period of 29 August 2019 to 14 November 2019 about 1.5 kg of methylamphetamine was shipped from Sydney to major suppliers of methylamphetamine in Grafton. Those major suppliers were a Peter Cole and his associates, James Jattan and Aaron Taylor (though it is noted in the facts of the matter of Taylor, dealt with below, Taylor's involvement is expressed in a lesser way). Police recorded Cole and Jattan regularly supplying their downline street level user / dealers with methylamphetamine, one of whom was the offender Rafferty. The offender was a heavy user of methylamphetamine, using up to 1.75 g per day and the offender also actively on-supplied methylamphetamine to others to support his substantial addiction. Count one 1. The agreed facts set out a table of 23 transactions between 16 September and 15 October, a period of 29 days and therefore within the period set by section 25A of 30 consecutive days. Not all the transactions are caught by the section as the section relates to supply and not purchase. In fact none of the transactions in the table expressly record a supply of the drug by the offender to his purchaser/s. The transactions are evidenced by telephone intercepts from the phones of Cole and Jattan, not the offender's phone. Thus what is recorded is the supply to the offender, and with the conversations allowing an inference beyond reasonable doubt that on some occasions, and agreed to be more than 3, the offender supplied the drug to some other person. For example on 22 September the offender says he "has people chasing it"; and on 8 October the offender says he has only accumulated $500 from supply. Of note about the transactions is their modest nature. The largest amount of money referred to is $900. Objective seriousness 1. In terms of the objective seriousness of this offending it must be described as low. Neither party suggested the offending reached the mid level of objective seriousness. The agreed facts describe the offender as a "street level user / dealer". There is little if any detail in the facts as to the manner of the actual supplies by the offender. The amounts of the individual supplies are not detailed, but can be inferred to be modest, and as acknowledged by the facts (par 2) are consistent with the offender being a street level dealer / user. The amounts of money involved are small. A significant amount of the drug obtained by the offender is for his own use, and not for supply. Count 2 1. The second count picks up the day after the end of the period of the first count and extends from 16 October to 14 November 2019, a period of 28 days and thus within the legislative requirement. Again a table is set out showing the transactions at different dates. On each occasion the offender purchased between 1.75 g to 3.5 g with his own funds or funds received later from other users (so that the initial purchase was on credit), the same practice as with count one. On more than three occasions the offender on supplied a portion to other users in this series of transactions. The largest sum of money involved is $1200, and this is on the purchase, not on the sale of the drug. The largest quantity of methylamphetamine involved is 3.5 g. 2. The offender was arrested on 4 December 2019. A search of his premises found the paraphernalia of drug supply namely clear plastic resealable bags, some containing a clear crystal substance later shown to be a cutting agent, and two sets of electronic scales. 3. The same comments as to objective seriousness apply to this matter as to count one, and I assess the objective seriousness to be the same, that is, in the low range. 4. The overall seriousness of the matter takes on perhaps a greater complexion when it is considered that in summary this offending was occurring over a two-month period on an almost daily basis and resulted in a total amount of methylamphetamine being purchased of 119g and the average price was $228 per gram so that the total amount of money involved is $27,000, though I again note that is the purchase and not the supply. It is important also that the two offences are considered separately in assessing their objective seriousness, though it can fairly be noted that it is obvious the offender is well enmeshed in a drug milieu, and this was not some one off offending. At the same time this is low level offending, albeit very serious, with minimal profit to the offender, being largely funding of his own substance needs. Section 21A 1. This offending is part of organised criminal activity. The offender also has a significant criminal history. Yet neither of these matters meaningfully aggravates the offending as offending of this type necessarily has some degree of organisation, and the earlier offending does not include drug supply. 2. I consider any mitigating factors below. Subjective case 1. There is no dispute that the offender is entitled to a 25% discount on his sentence having entered his guilty plea in the Local Court. 2. The offender's criminal history does not assist him and denies him any leniency in that regard. His criminal history starts at the age of 17 with assault in 2004 and there is regular offending from that time to the present. I note however that the present offences are significantly more serious than the earlier offending and that the only previous drug charges have been for possession. The earlier type of offending such as resisting an officer, destroying property and shoplifting is consistent with somebody who has had long-term drug abuse issues. 3. A sentencing assessment report was prepared and dated 13 October 2020. It says the offender plans to return to the Grafton area once released. He is currently single with limited family support though two ex partners indicate they will support him on his release from prison. 4. His plan on release is to apply for the disability pension. The basis of the disability is not clear in this part of the report. 5. His history of antisocial behaviour relates to his methamphetamine dependency. He referred to his tough upbringing in foster care. He also referred to a connection between the loss of a newborn child and illicit drug use as a consequence. He also said his drug use was encouraged by his peer group. 6. He said his main focus was to acquire the drug for personal use which is consistent with the facts. 7. The report records an insight into the offending and also that the offender articulated a level of exhaustion from participating in an antisocial lifestyle and referred to steps to attempt successful reintegration by active fatherhood and abstinence from drug use. The offender indicated a willingness to adhere to interventions if supervision is imposed including substance abuse treatment via the suboxone program and cognitive therapy sessions. He is willing to do community service work. 8. The offenders last period of supervision was from November 2018 to June 2019 and was deemed unsatisfactory. The report notes mental health instability due to the death of his son and that illicit drug issues and poor mental health remain unresolved. 9. He is assessed as being a medium-high risk of reoffending by the level of service inventory-revised. 10. The report sets out a supervision plan should a supervised order be made which would require contact with a community corrections officer each week and completion of EQUIPS foundations and addiction programs, and involvement with health professionals. Additional conditions of abstinence are recommended and the offender is considered suitable for community service work. 11. From this report I glean some glimmer of optimism that the offender is sincere in wanting to change his ways. His criminal history and previous non compliance with supervision tend to the opposite conclusion, yet he has the motivation to fulfil his role as a father in the aftermath of the death of his baby son, and he does have some support in the community. 12. The offender relied upon a psychology report dated 25 January 2021 of Naomi Cameron. It refers to a letter of instructions dated 23 December which was not in evidence however no point was taken about this. There was an 80 minute video conference. The psychologist had the sentencing assessment report, the criminal history and the agreed facts and carried out psychometric testing. 13. It notes that the offender's five-month-old son died in April 2019 whilst the offender was in custody for other offending. He had not met his son prior to his son's death. This is a tragic circumstance. Following the funeral the offender experienced panic attacks and was admitted to hospital. He connects his methamphetamine use at this time to this grief which he says was as much as 3.5 g daily. In terms of the offending he says the money earned by selling drugs helped fund his own increased drug dependence. This is consistent with the facts. 14. His childhood he said was scary with both parents being heroin addicts. His father was always in and out of gaol and they had no relationship. When he was 3 his brothers and he were removed by family services and at age 5 or 6 moved to Grafton to live with their grandmother. He identifies as belonging to the Bundjalung tribe. His grandmother drank alcohol and smoked cannabis heavily and he often had to fend for himself. 15. He disclosed a history of sexual abuse at the age of 10 by a school priest on two occasions. He moved out of his grandmother's home at about age 15 and was essentially homeless or couch surfing. 16. He left school in year 10 with schooling being impacted by substance abuse. He denied any learning disabilities. 17. He reported no history of employment and has never had a job or held any type of casual work. He said he had always been in and out of custody or on parole orders which made obtaining employment difficult. His main source of income has been government support since age 15. 18. In terms of relationships he admits to domestic violence and says his first relationship had substance use issues. That relationship resulted in a son Michael now aged 12 but who had been in the care of family services since he was 2 due to the violent relationship and substance use. The mother, Bianca, was granted an AVO though the offender refers to this as "our fighting", suggesting a lack of insight. 19. A second relationship with Lisa saw two daughters aged nine and eight and another AVO to protect the mother. 20. A third relationship with Taylor ended upon him being remanded into custody and they have a daughter aged four and a son who as noted above tragically died. 21. The offender says the important people in his life are his grandmother and twin brother. 22. The offender first drank at the age of 13 becoming problematic as binge drinking at 18 until 25 years old and then starting methamphetamine. Cannabis use started at 12 and has continued only interrupted by custody until 25. He says he has not used methamphetamine since going into custody. 23. Despite the violent relationships with Lisa and Taylor he remained in touch with them and before custody saw his daughters monthly with his eldest son remaining in foster care. He says there are no AVO's presently in place and says Taylor has offered him accommodation on release. He said he wanted to get work and was unsure how to do it, an unsurprising observation given his history in my view. He expressed hopes of being a "normal" person aspiring to owning his own home and leaving something to the kids and to set an example. He said he would do some courses and would need to focus on government support and cash in hand jobs. 24. The report records what is described as partial insight at paragraph 68. The offender accepted full responsibility for his offences and said it was his fault. Although what weight to give what was then said needs to be determined I note he said that when he was younger he "thought jail was cool… That I have nothing to prove to no one anymore… Doesn't make you tough, waste of life… I feel like a dick head for my kids, I feel stupid" and "this is the best thing that's happened to me… It's a wake-up call… Before I didn't give a shit about nothing" and further "usually I don't see eye to eye with parole but this time I want to use them to my advantage" and "life's too short I want to make some changes and do some stuff". At face value this does give some basis for optimism as to the future of the offender, and is consistent with the favourable view I formed from the SAR. 25. A depression anxiety and stress test was administered which shows the offender at normal levels for such symptoms. 26. The opinion expressed by the psychologist was: 40.1. He met the criteria for adjustment disorder with mixed anxiety and depressed mood. Given that he did not register outside normal on the DAS scale I find this somewhat odd. I accept that he would have experienced significant distress upon the death of his son and that he sought to manage his symptoms through substance abuse. 40.2. He met the criteria for stimulant use disorder amphetamine type substance severe. On the agreed facts that is with respect self-evident and as noted by the psychologist characterised by the 3.5 g of daily use (at least at times). I note the ongoing use in custody of Suboxone and buprenorphine. 40.3. His history is consistent with a diagnosis of antisocial personality disorder characterised by childhood conduct problems and failing to conform to social norms, irresponsibility and a lack of remorse. This had an onset before age 15. 40.4. The psychologist notes the offender shows partial insight and notes the full acceptance of responsibility and the expressed desire to change his criminal lifestyle. I note the SAR referred to an improvement in insight and an acknowledgement of wrongdoing. I accept this to be so. 40.5. The risk of reoffending is considered to be high. Factors that may ameliorate this are his current insight and his motivation to change his lifestyle such as to be a better father to his children and motivation to gain employment and engage in treatment opportunities. 40.6. The psychologist recommends referral to the custodial drug and alcohol service equips programs, psychological sessions and aboriginal liaison support and referral to work programs. In the community what I infer is similar support is recommended as are the recommendations of being abstinent, referral to a GP and referral to a drug treatment program 1. From this evidence I conclude that the offender does show remorse and some insight, and recognises his wrongdoing. In the face of his record, and his background, the high likelihood of reoffending is soundly based. Yet that is also linked to substance abuse. Should he continue not to use methylamphetamine, and adhere to his expressed good intentions, the likelihood of reoffending markedly decreases. In light of the offender's comments set out at [38] above, although untested, I am prepared to accept the prospects of rehabilitation are better now than previously. There is in my view a need for an extended period of supervision to promote the rehabilitation of the offender. Sentencing considerations 1. Since Parente [2017] NSWCCA 284 it is well-established that in determining the appropriate sentence for serious drug offending there is no "starting point" that the sentence will be a term of imprisonment. Rather as noted at [94] of Parente in citing Wong (2001) 207 CLR 584 "the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an instinctive synthesis". 2. I accept the submission made by the Crown as to the seriousness of this offending as reflected by the maximum sentence. I also accept that in considering the purposes of sentencing under section 3A general deterrence must be given appropriate weight. To perhaps overly simplify the Crown's submission the Crown says that regardless of the motivation for the offending and regardless of the background of the offender, by servicing the market for illegal drugs economic incentive is provided for drug manufacture and distribution and in some cases importation. Hence the need for much weight to deterrence. 3. Whilst I consider the Crown's submission to have substance it does have the defect of not recognising sufficiently the subjective features of the individual case being considered. 4. In this case there are some strong subjective features not the least of which is the plainly significantly disadvantaged childhood of the offender. The offender had significant hurdles placed in his path at a very young age and has been on an antisocial path his entire adult life. His long-term abuse of substances and the fact that he has never had a job reflect this. This of course does not mean that he does not bear responsibility for his wrongdoing. The case of Millwood [2012] NSWCCA 2 relied upon by the offender is to the point so that there is a lesser moral responsibility borne by this offender than somebody benefiting from more advantageous circumstances. It should be noted however that Simpson J in the very passage cited by the offender went on to make it plain that whilst the background of the offender afforded some mitigation her Honour qualified that by saying "although limited". 5. In addition to the factor of deterrence relied upon by the Crown there is also the need for denunciation, and the need to protect the community, but as also prescribed by section 3A there is the purpose of promoting rehabilitation. The findings I have made based on the evidence of the psychologist report and a sentencing assessment report give a basis for a finding which I make that there is some prospect of that in this case in all of the circumstances. I also accept the submission of the offender that there is a risk of institutionalisation of the offender which should be taken into account. I therefore make a finding of special circumstances 6. By section 5 of the CSPA a term of imprisonment can only be imposed where no other penalty is appropriate. In this case the argument for the offender was not that there should be an intensive corrections order but rather that given the now some 14 months that the offender has been in prison that the time served must be close to the appropriate non-parole period. 7. For the Crown it was submitted that there must be a significant custodial sentence. 8. The question therefore resolves down to just what is the appropriate custodial sentence. To assist the court in this regard the Crown provided a number of authorities in respect of the section 25(2) charge being faced by Mr Taylor. It was not suggested that these were directly on point given the different charge. I did however understand that the Crown was suggesting those cases were reflective of the heavy sentences that serious drug offending should attract. The cases relied upon by the Crown which are detailed below in connection with Mr Taylor and which can be taken as being repeated here certainly bear that out. Yet as the other cases referred to in that discussion show there are cases of the more serious section 25 (2) offence where the non-parole period is not significantly greater than what is presently argued for the offender for this lesser offending albeit I note there are two counts. 9. In that regard the principle of totality has a role to play. There is very little to distinguish the two offences other than there is obviously a greater degree of criminality in the carrying out of the two offences than there would be by merely the one. That said it is plainly conduct at a similar period of time and as the Crown fairly acknowledged it is the one course of conduct that continued over that time. 10. I propose proceeding by way of an aggregate sentence. In my view the appropriate indicative sentence for each offence before the application of the 25% discount is 3 years imprisonment so that the indicative sentence for each offence is 27 months. Applying the principle of totality as discussed above there will be an aggregate sentence of 33 months. The non-parole period which I consider to be the minimum period necessary to reflect the seriousness of this offending in all the circumstances of this case is 17 months. This will allow a period of 16 months under supervision to assist the offender in his rehabilitation. Orders 1. The offender is convicted of the two counts under section 25A(1) of the Drug Misuse and Trafficking Act. 2. The offender is sentenced to a non-parole period of 17 months to date from 4 December 2019 and expiring on 3 May 2021. 3. The balance of term is 16 months expiring 3 September 2022. 4. The offender will be first eligible for release on 3 May 2021. Aaron Taylor 1. The offender, Aaron Taylor, is charged with one count of supplying not less than a large commercial quantity of methylamphetamine in contravention of section 25(2) of the DMTA. The offence carries a maximum sentence of life imprisonment and there is a 15 year standard non-parole period. 2. The offender was born on 5 February 1987. The offending occurred in the period 29 August 2019 to 14 November 2019, so that the offender was 32 years of age at the time of the offending. At the date of the making of the below orders, 8 February 2021 the offender will be 34. 3. The offender was arrested on 14 November 2019 and has been in custody since that date. He has therefore spent 14 months and 25 days in custody. 4. In addition to the section 25(2) offence there is one charge to be taken into account by way of the form one procedure. That charge is of participating in criminal group in contravention of section 93T(1) of the Crimes Act. The maximum penalty for that offence is five years. In regards to the Form 1 procedure it is important that the focus remains on the principle offence for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community's entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ. 5. I note the standard non-parole period. The standard non-parole period is to be considered a guidepost in the same way as the maximum sentence may be considered a guidepost and I take it into consideration in that way. Further at [29] of Muldrock v The Queen [2011] HCA 39 it was said that Division 1A requires sentencing judges to state fully the reasons for arriving at the sentence imposed. In discussing what was required by section 54B(4) which was to the same effect as the current section 54B(3), the Court said that "the obligation applies in sentencing for all division 1A offences regardless of whether the offender has been convicted after trial or whether the offence might be characterised as falling in the low middle or high range of objective seriousness for such offences". The obligation being referred to was the central purpose of division 1A, to require sentencing judges to state fully the reasons for arriving at the sentence imposed. The facts 1. Since December 2018 police had been monitoring certain people involved in drug supply. A person named Peter Cole was identified as being in charge of a distribution network in the Grafton and Coffs Harbour region. Mr Cole and another co-offender Mr Jattan are described as "up line suppliers". 2. Between September and November 2019 albeit to a lesser degree than Mr Cole and Mr Jattan, the offender was monitored as supplying methamphetamine to a number of street level suppliers in Grafton. Yet this is not part of the offending behaviour that is to be sentenced, and beyond the fact that his supplying was to a "lesser degree" than the others mentioned, there are no particulars of this offending. Other than providing some very general context I do not consider any significant weight can be put on this fact. 3. The offending conduct is made up by six trips made by the offender from Grafton to Sydney to purchase on 5 occasions 196 g of methamphetamine and on one occasion 170 g was purchased; nothing turns on this being 1.148kg and not the 1.150kg stated in the facts. 4. For each occasion this occurred involving the offender the instructions were given by Cole as to money, what vehicle to drive, and who they could supply drugs to. Mr Cole arranged the purchases from the upline supplier, a Mr Grant. It is on these facts, and the types of things referred to at [70] below that the offender did not do, that is founded the submission of the offender's role being that of a "mere lackey". 5. Upon arrest on 14 November 2019 a search of the vehicle in which the offender travelled discovered two plastic freezer bags containing approximately 175 g of a substance subsequently confirmed to be methamphetamine. 6. Communication had been conducted by telephone calls and SMS messages. The degree of sophistication was modest at best. 7. The Crown accepts the role of the offender in terms of the sourcing and transport of the drugs was primarily that of a driver and at the lower end of responsibility compared to the other two offenders (presumably Cole and Jattan). Some recordings of Taylor's mobile phone establish some involvement in downline supply but not to the same degree as those others. I would again note here, as with the other comments above, that the offender is not being sentenced for any supply other than that which constitutes the s25(2) charge, and the facts stated as to other supply are very non particular. It at best provides some context as showing involvement by the offender in drug trade, but to no significant degree greater than borne out by the actual offending. 8. Taylor did not receive any financial reward for his involvement save as to the extent of receiving payment in kind and saving the cost thereof. The facts do not identify any other reward, though there must be a strong inference to be drawn that some benefit of payment in kind to an unknown degree was made, and I am satisfied of that. Objective seriousness 1. The offender is heavily involved in the supply of a significant amount of illicit drugs. His conduct was not one-off. It is more than double the amount required to make out the charge. He was not at the lowest end of what might be called the hierarchy of this drug activity. 2. At the same time he was very clearly as is acknowledged by the facts acting entirely at the direction of somebody else higher up the chain. The offender made no decisions, did no organising, and he did not receive any direct financial reward. Rather, at best, his reward was some of the drugs. That fact reflects his low standing in the hierarchy. I accept the submission made for the offender that the offender's standing or role in the hierarchy of this drug activity was that of a lackey. In assessing the objective seriousness I note that the offending was not impulsive, and that to reach the quantity to make out this serious charge the total of the drugs from the 6 trips are taken into account. I bear in mind he is being sentenced for one count and not 6. 3. Both the offender and the Crown submitted that the objective seriousness of the offending should be assessed below the mid range, with the Crown placing it higher to the mid than the offender. In my view the offending is in that range and is certainly not at the lowest level of offending. I would assess it as below the mid range. The Crown emphasised its view that the offending was more serious than that described in the case of Qi. I address that below. Section 21A 1. The offender does have a criminal history in so far as he received 2 Conditional Release Orders in respect of two offences which did not proceed to conviction. In my view that record does not deny the offender leniency. Those two matters arose from the one date within one month of the commencement of this offending. Those matters were possess or use a prohibited weapon and possessing a prohibited drug and seem to me to be offending that arises from the same decline into greater drug dependency as has been integral in the committing of the present offending. I hasten to add that in saying that I recognise section 21A(5AA), and note there is no suggestion the offender was intoxicated at the time of the offending. The fact is that the offender reached the age of 32 before committing any offences. Furthermore this current offending is of a far more serious type so that I give this factor not only little weight as an aggravating feature but I take his good record into account in his favour. 2. There is the concern that the offence was committed without regard for public safety given the well-recognised harm that the illegal supply of methamphetamine has in the broader community though that too is something that could be said of every offence of this type and so adds little by way of aggravation. 3. I note also that the offender was subject to the two CRO's just mentioned from 30 September 2019, so that they were in force for most of the period of the offending, and I take that into account. 4. I consider the mitigating factors provided for by this section in conjunction with the subjective case considered below. Subjective case 1. There is a sentencing assessment report dated 14 October 2020. It notes the offender is single with no dependents and has a pro social family in the Grafton area who are supportive of him. At the time of the offending he was unemployed. He completed a trade apprenticeship and worked until 2015 when increased drug use derailed him. He is described as always polite and respectful whilst in prison and has been employed as a cleaner there since 20 March 2020. 2. He was on a conditional release order at the time of the offending. 3. He acknowledges his addiction leading to his downfall and the offending. He accepted full responsibility for his actions and did not seek to deflect blame. 4. He says he was driving the co-offenders around and was being paid with ice and then became their full-time driver. 5. He has a network of prosocial associations through sport but became ostracised from them due to his behaviour. 6. His drug use increased in 2014 with the breakdown of a relationship. He believed he was suffering from depression and did not have coping strategies leading to self-medication with ice. 7. The report records he feels he needs to learn how to tackle issues head on and not take the easy way out and not resort to drugs as a means of coping. He realises the consequences of his actions have far-reaching effects. He is willing to engage in residential rehabilitation and other interventions and is willing to undertake community service work. 8. He is assessed as medium to low risk of reoffending. 9. Based on the SAR I find that the offender has good insight into his situation, his need to overcome his substance abuse, the connection it has to his offending, and the wrongfulness of the offending behaviour. I also find that he is remorseful. 10. The offender relied upon a psychological report of Patrick Sheehan dated 1 December 2020. It records that he does not know his father and that his mother was a heavy drinker who would be absent from the home from Thursday to Sunday. His maternal grandparents offered support and he lived with them from the age of eight. The report states he was diagnosed with ADHD in year three. 11. The report states that there were periods of estrangement from family for periods up to 9 months due to heavy drug use or at least associated with that suggesting drugs have been a problem since before his offending in 2019, which is consistent with the SAR which indicates significant problems from 2015. He has a supportive cousin who can provide a residence on release. 12. He was disruptive at school but completed year 12 with a pass grade. He then did a lines worker apprenticeship and was employed for eight years. He lost employment about 2014/2015 and methamphetamine use undermined employment thereafter. He last worked in 2018. He expressed a strong desire to rejoin the workforce and has a job available at a cousin's shop. 13. According to the report he seems to have good social and sporting connections and whilst he was associated with recreational drugs that did not become antisocial in a problematic way until 2015 as methamphetamine use increased. The offender was able to articulate an understanding of the need to remain vigilant in his social choices in the future and stated he would re engage with organised sports and bolster family connections and employment. 14. The offender commenced alcohol at age 15 and amphetamine use at 18. He had periods of abstinence with one such period ending with the end of his relationship in 2017/18 and he then continued using until his arrest. 15. He acknowledged the need for some alcohol and other drug (AOD) rehabilitation. The Eclipse addictions program is recommended which is available in custody. 16. His health history is unremarkable. The ADHD symptoms have attenuated in early adulthood and there is no personal history of acute mental illness. He meets the criteria of stimulant use disorder--amphetamine type substance-moderate in sustained remission in a controlled environment. 17. He ascribes his offending to having the blinkers on and not caring about anything but his habit and acknowledged the role it plays in damaging the community. 18. In summary the opinion expressed is a man with several barriers to early development but with compensations resulting in positive community adjustment. His substance abuse was manageable for a time but escalated with the relationship collapse, I infer leading to a worsening substance abuse. 19. The offender acknowledges his offending, and is now abstinent. I find that he has expressed genuine remorse based on the SAR and this report. The offender should engage in AOD programming and would be suitable for community service work 20. The offender also relies on a number of testimonials. They are in evidence and were marked as part of Exhibit 1. There was a total of six testimonials. They were all to the same effect and spoke in very favourable terms of the offender in both the spheres of his employment and his sporting activities. It also reveals that the offender was an active member of the local aboriginal land Council and has been assisting in his community. The testimonials go to to support a finding which I make that the offender has a history of employment and of being active in sports and also active within his own community resulting in significant support for him in those areas. I find that he has good prospects subject as always in circumstances such as this to him remaining abstinent from drugs. 21. Based on the unchallenged views expressed in the sentencing assessment report and the psychological report identified above and these testimonials and the criminal history my view is that the offender has shown remorse, and has acknowledged his wrongdoing. These are factors which point towards lessening the likelihood of reeoffending but the key to that is the degree to which the substance abuse can be minimised and ideally eradicated. Without being too circular about it the prospects of that occurring are also greater due to the very facts I have just outlined. I accept the assessment in the sentencing assessment report of medium to low risk of reoffending. Sentencing considerations 1. The purposes of sentencing are set out in section 3A of the CSPA. They are as follows: 97.1. To ensure the offender is adequately punished; 97.2. Deterrence both specific and general; 97.3. To protect the community from the offender; 97.4. To promote the rehabilitation of the offender; 97.5. To make the offender accountable; 97.6. To denounce the conduct; 97.7. To recognise the harm done to the victim of the crime and the community. 1. I accept the submission of the Crown, which is not challenged by the offender, that for drug offences of this nature the purposes of general deterrence and denunciation are emphasised. This does not mean that other purposes of sentencing have no role to play. In my view in this case on its particular facts there is a significant role to be played by the need to promote the rehabilitation of the offender. 2. In terms of the approach to sentencing for drug matters I would also repeat paragraph 42 set out above and the reference to Parente and the need to ensure that no general rule or starting point is adopted and that the circumstances of the particular case are focused upon. 3. There is no getting away from the seriousness of the conduct of the offender in this case. To drive from Grafton to Sydney and return six times takes considerable time. Those six trips occurred over a 2 ½ month period. At the time of the offending the offender was well immersed in the world of drug supply which causes so much harm to the community. This is an offence which carries a maximum sentence of life imprisonment. That is a significant guidepost as to the seriousness with which the legislature treats this offending. Although this matter is not assessed as being in the mid range of objective seriousness, the fact that the standard non-parole period is 15 years is also a very sobering guidepost from the offender's point of view in determining the outcome of this matter . 4. There is no suggestion that there is any sentence more appropriate than a full-time custodial sentence. In determining the sentence I take into account the form 1 matter in the manner outlined above, though to be clear in my view participating in a criminal group adds no additional criminality to the conduct involved because that activity is "part and parcel" of the section 25(2) charge, to quote Adams J from Redfern v R [2012] NSWCCA 178 at [17] when dealing with offending of being in possession of proceeds of crime and of supplying cocaine. 5. The unsurprising ultimate issue therefore is twofold. How long should that custodial sentence be and what is the appropriate non-parole period. Relevant to that consideration is just what is the minimum period of incarceration required to reflect the seriousness of this offending yet also taking into account all other relevant considerations. And reflecting the ever present tension between sentencing principles to what extent if any should that period reflect special circumstances? 6. The written submissions of the Crown make no mention of special circumstances and the thrust of the Crown's oral submissions was to emphasise deterrence and denunciation seemingly to the exclusion of all else. In terms of the points made by the offender concerning his disadvantaged background it was submitted by the Crown that once this level of offending was reached such considerations become less significant and there is greater emphasis on general deterrence. As discussed above I accept that greater emphasis is placed on deterrence. However I reject this submission if it was intended to convey that a disadvantaged background is to be disregarded. The further submission was put that as the offender had managed to live a pro social life until almost this offending it was not a case of never really having had a chance. In my view there is an inherent inequity in that submission; rather than disentitling an offender to some benefit for the well recognised consequences of social disadvantage, the fact that he has managed to conduct himself despite those disadvantages pro-socially should be to his benefit, not to his detriment. Put another way the fact that he has acted pro-socially in the past despite the disadvantages of his early life is a fact in support of a lesser likelihood of reoffending into the future and a point in favour of any consideration of his future prospects as being more favourable than may otherwise have been thought. I have formed a favourable view of the offender, who from his subjective material seems to have been a positive, constructive and engaged member of his community up until his substance use became unmanageable. 7. In my view there is a strong basis for a significant finding of special circumstances. The background of the offender and the supports he has in the community lead me to conclude that a lengthy period of supervision will assist him in avoiding a return to a drug lifestyle. I note also that this is his first time in custody. 8. The offender in his submissions did not shirk the inevitability of a full-time term of imprisonment and the high need for general deterrence and the fact that sentences for this type of offending are significant. Reference was made to the fact that the quantity involved was more than double what was needed to constitute the offence. Yet it was also submitted that that is just one consideration and as is well recognised by cases such as Wong (2001) 207 CLR 584, is not the sole nor even the determinant consideration. It was submitted, and in the circumstances of this case I accept, that the question of the role of the offender is of more significance. As noted above there was no real benefit to this offender other than to feed in kind his drug addiction. 9. Both parties took me to so-called comparable cases. The difficulty with that of course is that none of the cases are wholly comparable and can be distinguished in various ways. 10. The Crown referred to Grabovac v R [2018] NSWCCA 100. This was a case of supplying a large commercial quantity of ecstasy under section 25(2), being 816.47 g. It is therefore the same charge as is being faced by Mr Taylor. At first instance Mr Grabovac was sentenced to 12 years imprisonment with a non-parole period of seven years and six months and having received the benefit of a 25% discount for his plea. On appeal that term was reduced to 10 years and six months and a non-parole period of six years nine months, so a 14 year sentence before the discount for the guilty plea. There was only one ground of appeal, that the disparity with sentences of co-offenders left the appellant with a justifiable sense of grievance. 11. Mr Grabovac was also dealt with for three offences under the form 1 procedure, two of which were supplying prohibited drugs in breach of section 25(1) and the third being a charge of possession. Those I would note are significantly more serious matters with additional degrees of criminality than the form one charge relating to Mr Taylor which I find is a charge that does not add any further criminality to the conduct of Mr Taylor. 12. At [25] of the Court of Criminal Appeal decision the description of the transactions constituting the offending is set out. It is plain on those facts that Mr Grabovac was the person who was supplying significant amounts of ecstasy tablets to downstream suppliers. This included co-offenders as well as undercover operatives. This is a marked point of distinction between the facts of Mr Taylor's case who was simply acting as directed in driving a motor vehicle albeit knowing about the criminality with which he was involved. There is little comparison between he and Mr Grabovac; Mr Grabovac plainly had some managerial and administrative role to his conduct none of which is present for Mr Taylor, and the sentence also reflects the different form 1 matters. I note subjectively the two cases are similar. 13. Another offender in Grabovac was a Mr Elsaj, who was charged with two counts of supplying a commercial quantity (not a large commercial quantity) of prohibited drugs, one of ecstasy and the other of cocaine. There were also three form 1 offences in respect of one count for possession of various drugs, again adding to the criminality of the offending in a way greater than the present case. There were three further form 1 matters for the second count, being two more of possession and another count of supply albeit of cannabis leaf. There was a third supply count for an indictable amount of a prohibited drug and then two further charges relating to proceeds of crime. Mr Elsaj was aged 40 and found in possession of $113,000 in cash. A further $52,000 was found in his garage and cocaine was found both at his home and buried in his garden. Again these facts show this to be a far more significant matter than the present. Mr Elsaj was considered to be higher up the hierarchy than either Mr Grabovac or a third offender, Mr Grant. Mr Elsaj received a sentence of 16 years and 6 months with a non parole period of 11 years and 6 months. The indicative sentence for supplying a commercial quantity of ecstasy (489g) was 9 years and 9 months, with an indicated non parole period of 6 years and 6 months. The significant point of distinction to the present case is the far more significant role played in the operation of drug supply by Mr Elsaj. Mr Elsaj had a difficult background, and a history of offending, though not for drug supply. 14. As for Mr Grant he was charged with supplying a large commercial quantity of ecstasy and supplying another drug and with three further supply charges on a form 1. The sentencing judge found the pills received by Mr Grant were wholesale transactions and based on Mr Grant's own admissions to a psychologist, the sentencing judge found the on supply was on the wholesale basis. The number of pills in question was more than 2000. Mr Grant received a sentence of six years and nine months with a non-parole period of four years. He had a difficult childhood and was 20 at the time of the offending and had a history of substance abuse. Mr Grant's role was considered to be less than that of the other two offenders. 15. Again, the facts show Mr Grant to have a role of greater significance than Mr Taylor in all respects. The function he served, his involvement in arrangements for both buying (or receiving) and then selling the drugs puts him well above the role played by Mr Taylor. That both Mr Grabovac and Mr Elsaj were considered above Mr Grant in the hierarchy bears out how markedly different those cases are to Mr Taylor's. 16. In terms of sentencing principle I note that at [100] reference is made to taking proper account of the maximum penalty which is life imprisonment and a standard non parole period of 15 years, the nature and seriousness of the offending, the amount of drug involved, the offender's moral culpability, the subjective circumstances and the aggravating and mitigating factors and also form one matters. These are all matters that I have considered above. As to moral culpability the approach I take given the difficulties of the offender's childhood is to consider it allows for some limited mitigation in that regard, as per the view of Simpson J in Millwood. 17. The Crown also referred to Tamer v R [2020] NSWCCA 333 where the severity appeal saw a 7 year and 10 months term with a non-parole period of four years and nine months reduced to 7 years and 6 months and a non-parole period of 4 years and 6 months. The found error was to think that the offender was on bail at the time of the offending when he was not. The facts of the offending were that the offender was supplying methylamphetamine to a co-offender and other persons. The charges were that contrary to section 25(2) a large commercial quantity of methamphetamine was supplied. On 22 different occasions a total of 1.06 kg was supplied for a total financial benefit of $137,000. This role was described as pivotal to a planned and well organised system of drug supply. Mr Grant was 21 at the time of the offending and was educated to year 12. He started drug use at the age of 15 and seems to have progressively worsened. A 25% discount was given for the plea of guilty. He had a criminal history disentitling him to leniency. Again the marked difference in the role of this offender compared to Mr Taylor is apparent. 18. R v Qi [2019] NSWCCA 73 was a Crown appeal on sentence where an ICO had been ordered in respect of one charge under section 25(2). The offender was also sentenced for a related matter under the section 166 procedure. In this case the offender was transporting drugs. Police sought to pull his vehicle over for a random breath test leading to the offender accelerating away and throwing a black garbage bag out the driver's window. He then resisted arrest. The bag was recovered and contained 1.983 g of methamphetamine at a purity of 57.5%. A further amount of 1.13 g was found on his person, which led to a possession count dealt with by way of a form one. The offender was almost 24 at the time of sentence. He had a history of working and was working at the time of sentence. He had family support. He had long-standing depression and anxiety and self-esteem issues. He had been using illegal drugs as a 21 year old and also binged on alcohol. The evidence supported the view that he had got himself together since arrest. The offenders reward for the offending was the forgiveness of a debt of $30,000. 19. At sentence the Crown had accepted the offender was not substantially involved in drug trafficking but submitted the section 5 threshold had been reached. 20. The Court of Criminal Appeal held that the sentence was outside the available discretion for the following reasons; see from [71]: 117.1. The view of Parliament of the seriousness of the offending as reflected in the maximum penalty of life imprisonment without possibility of parole. 117.2. It follows that as a matter of common sense it would only be in very exceptional circumstances that a sentence other than full-time imprisonment would be imposed. It was said that this was not a prescriptive or mechanistic approach. The point was made by referring to other offences with a maximum sentence of life imprisonment and noting it would be inconceivable that murder or sex with a child under 10 could result in an ICO. As an observation I note that of the three offences cited at [74], the CSPA expressly prohibits two of them being dealt with by way of an ICO, suggesting the same prohibition does not apply to other offences of comparable penalties. 117.3. The quantity of the drug of nearly 2 kg so that the matter could no way be said to be borderline between commercial and large commercial quantities. 117.4. The fact that in 2015 that borderline had been reduced by Parliament from 1 kg to 500 g which was taken to indicate the gravity of this kind of offending. The purity was also taken into account. 117.5. The point was made that whilst the role was basic it nevertheless was a task that someone had to do. The forgiveness of a debt of $30,000 was held to be equated with a payment in that sum. The case was far from exceptional. 117.6. In essence however as stated at [83] the view of the Court was that an ICO was not an appropriate response and a full-time term of imprisonment was required. At [83] that term was determined to be a head sentence of three years and a non-parole period of 18 months based on the findings of the sentencing judge. 1. This was a markedly lesser sentence than what had been imposed in the above discussed cases emphasised by the Crown. Significantly in my view the role of the offender Mr Taylor is far more comparable with that of Mr Qi, and the quantity involved (noting the way that is to be taken into account as discussed above) in Mr Taylor's matter is almost half of that in the case of Mr Qi. I am guided by the reasoning of the Court of Criminal Appeal as just outlined. 2. The offender referred to two cases as well as Qi. They were decisions of Judge Williams of this Court, of Dogan [2019] NSWDC 385 and Khaddam [2019] NSWDC 732. Those sentences were more in keeping with Qi. In Dogan the charge was under section 25(2) DMTA together with a form one offence under section 193C(2) Crimes Act of dealing with $18,400 being reasonably suspected of being proceeds of crime. The offender had delivered money and later collected the drugs, and took no part in the financing, planning or organisation of the offence. In that case police had substituted the substance so that it was not actually cocaine that was supplied and the offender was at a low level in the hierarchy and had no knowledge of the quantity he was involved with. The offender was essentially a person of good character having only a low range PCA and two other minor driving matters on his record. He had a very glowing report from the prison as to his attitude and conduct. There was a wealth of subjective material and the sentencing judge described the offending consequences as a salutary lesson for the offender. The offender was unlikely to reoffend. Judge Williams took into account that the drugs could not have harmed the community with the result that overall there was a moderation of the need for general and specific deterrence. A sentence of four years and two months with a two-year one-month non-parole period was imposed. 3. In Khaddam [2019] NSWDC 732 the charge again was under section 25(2). There was a 25% discount. There was no argument for anything other than a term of full-time imprisonment. Again there was an inert substance used. The offender was 24 with no criminal history. The offender maintained he knew nothing of what was going on and appears to have performed the role of a deliveryman without knowing precisely what or how much he was delivering. What he was delivering was $195,000, and he was collecting blocks of cocaine. That said when he was shown the blocks of cocaine he was collecting he said "alright sweet". He later took photos of the blocks and sent them to a person. These facts show a greater involvement than that of Mr Taylor. 4. In a sentencing assessment report Mr Khaddam said he needed to support his substance dependence but did take responsibility for his actions. The report was optimistic as to his future. Ultimately the sentence proceeded not on the basis of purchasing 10 kg but knowing it was more than 1 kg. Similarly it was not proven that he knew of the $195,000 but that it was a lot of money. It was accepted that the offender was acting on the direction of others. The offender was young (24) and had a favourable subjective case. Ultimately with an allowance for special circumstances there was a four-year two month sentence with a two-year one-month non-parole period. 5. In addition to those cases a table was provided in respect of large commercial quantity sentences. That table is interesting but the cases are not very analogous to the present. 6. In my view the most comparable of all these cases is the matter of Qi, followed by the case of Dogan. I consider the involvement of Mr Khaddam to be greater than the offender in the present case. Qi has the characteristic of the offender's role being in the nature of being a courier, and also the characteristic of the offender being new to serious crime or put another way had prior to his offending been predominantly pro social in his lifestyle. In my view Qi is demonstrative of the weight that should be placed on the need for punishment and deterrence in supply cases of large commercial quantity, but at the same time, although not borne out on the facts of that case, recognises that there is no blanket rule. One feature of the authorities considered above is that in broad terms their subjective cases are not dissimilar to that of the present case, so that their outcomes illustrate the weight given to deterrence, but at the same time allowance is clearly made for promoting rehabilitation and other subjective matters. 7. Taking into account the various matters and authorities discussed above and giving due weight to the need for deterrence and the offender's knowing and willing involvement, and taking into account the form 1 matter, I consider the appropriate sentence to be 5 years. 8. Allowing for a 25% discount means a sentence of 3 years and 9 months and allowing for special circumstances I consider the non-parole period should be 22 months. In my view this result is within the range and in keeping with the authorities discussed above. I consider this to be the "minimum period the offender must spend in gaol, having regard to all the elements of punishment, including the objective seriousness of the crime, deterrence and subjective circumstances", as per R v MA [2004] NSWCCA 92 at [33]. 9. The non parole period is at variance from the standard non parole period. This is because the offending is assessed as below the mid range of objective seriousness and because of the favourable findings as to the offender's subjective case. Orders 1. The offender is convicted of the offence under s25(2) of the DMTA. 2. The offender is sentenced to a term of imprisonment with a non parole period of 22 months, to date from 14 November 2019 and expiring on 13 September 2021, with a balance of term of 23 months expiring on 13 August 2023. ********** 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: 19 February 2021