R v Campbell [2021] NSWDC 122

District Court New South Wales

Medium Neutral Citation: R v Campbell [2021] NSWDC 122 Hearing dates: 12 March 2021 Decision date: 12 March 2021 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Sentenced to a term of imprisonment of 5 years, 7 months. Non parole period of 3 years, 1 month. Catchwords: CRIME – Supply prohibited drug >= large commercial quantity SENTENCING — Relevant factors on sentence — solid family and work background- drug user commences to supply- Legislation Cited: Drug (Misuse and Trafficking) Act 1985 Crimes Act 1900 Cases Cited: Attorney General's Application No. 1: (2002) 56 NSWLR 146 R v Lane [2020] NSWDC 643 Category: Sentence Parties: Colby Campbell (the offender) Director of Public Prosecutions Representation: Counsel: Ms C Doosey (for the offender)

Solicitors: Ms A Bird (for Director of Public Prosecutions) File Number(s): 2019/00256359

sentence – ex tempore revised 1. I am sentencing Colby Campbell today for an offence of supplying a large commercial quantity of the prohibited drug methylenedioxyamphetamine, (MDMA); s 25(2) Drug (Misuse and Trafficking) Act 1985. That offence carries a maximum penalty of life imprisonment and for an offence which taking into account only objective factors falls in the middle of the range. Parliament has said there is a standard non‑parole period of 15 years. When I sentence him for that matter he asks that I take into account, three further crimes; participating in a criminal group, s 93T1 of the Crimes Act 1900, knowingly take part in the supply of a prohibited drug; s 25(1) Drug (Misuse and Trafficking) Act, that is 27.8 grams of cocaine, and another knowingly take part offence involving 98 grams of MDMA. It is appropriate that I do so. 2. While I sentence only for the supply large commercial quantity matter, it is appropriate in the circumstances that the sentence for that matter be increased to allow for his involvement in those other offences in the manner set out by the Court of Criminal Appeal in the 2002 guideline judgment: Attorney General's Application No. 1: (2002) 56 NSWLR 146 at [39] – [42]. So far as the drug supply matters are concerned, they will lead to an increase in the sentence. So far as the participate in the criminal group, as I will be taking into account his participation in organised criminal activity as an aggravating feature for the principal offence, I will take care not to double count that matter. A judge's role is to take into account all relevant matters and synthesise them. That does not involve doubly punishing an offender. 3. The offence was committed in breach of a promise to be of good behaviour. The breach of that promise is another factor I take into account in aggravation of sentence. Accordingly, I will take no action on the breach of the bond that is before me. There would be no utility in doing so, in any event, given that Campbell must spend longer in custody than the term of the bond. 4. Campbell has a criminal record. He is not entitled to the leniency often given first offenders. There are a number of drug matters on his record, but nothing of the nature of the matters before me. He has, from the material before me, solid family support. He had, and has, the support of his parents. His mother has been active in providing support to him throughout his time in custody, as have other family members. Members of his family and his partner are here today. He grew up in Australia and New Zealand. His parents' separation when he was a teenager had an impact upon him; as can be expected. He had a difficult relationship with his father, but it appears that that has improved to some extent. 5. He left school when he was a teenager. Although he had some problems as a teen, he was able to obtain work in the demolition and construction area. He, as is obvious from the many references before me, was able to excel in that field and for a number of years had his own business. It is clear that he has opportunities to return to full time employment as soon as he is released, notwithstanding this offence and his time in custody. 6. Although he took up the use of cannabis while quite young, it is his use of drugs such as methylamphetamine and MDMA that appeared to be his undoing. I am prepared to accept he went from being a recreational user, to a heavy user of those drugs. He blames another person for the situation that caused him to take those drugs to excess. I put no weight on that particular excuse. It is not suggested that his drug use should mitigate this offence, for as a matter of law it cannot. However his drug use, and his efforts to deal with prior drug use, and efforts in custody, should be taken into account when I formulate the structure of the sentence to be imposed. 7. A report from Mr Jones, psychologist, indicates that in his opinion Campbell is suffering from drug misuse or drug use disorders. He suggests that drug relapse prevention counselling, abstinence, regular monitoring and perhaps cognitive behaviour therapy and counselling with psychological support would help him overcome that problem. 8. That said, this was not simply a drug user who was involved in the supply of drugs to secure his own supply. Although he may have been in debt to his suppliers, and although he was paid primarily in drugs, the facts before me indicate that Campbell was involved in the business side of a significant drug distribution enterprise, and it is to the facts that I now turn. They are agreed. They are comprehensive. I will not set them out in full given its late on a Friday afternoon, but I have read through them before commencing this matter. I have also dealt with his sister whose matter came to this court on appeal and others connected to the enterprise. 9. Campbell came to know Joel and Flynn Westman, who are described in the facts as principals of a large scale drug distribution network in the local area. The Westmans are for sentence before me in April 2021. That group included Lane, who I have already sentenced: R v Lane [2020] NSWDC 643. While Campbell was part of the same criminal group as Lane, he is being sentenced for a more serious offence. I note that some of the matters related to Lane's matters are on Campbell's Form 1. 10. The police were aware of some of the Westmans' activities. They obtained a warrant to install an optical surveillance device in their home in Coniston. That device and other police enquiries captured a number of aspects of the Westmans' drug dealing operation. 11. It is accepted that during the period of surveillance the Westmans used a number of runners and associates, including the offender, who would supply drugs to customers and return cash to them. That is one of the matters taken into account as part of the criminal group matter on the Form 1. Other facts describe the type of operation that was engaged in by that criminal group, including the use of a stolen BMW. Two other matters on the Form 1 involve this offender's working with Lane to supply 2.78 grams of cocaine and 98 grams of MDMA. 12. The large commercial supply matter facts reveal that on 31 July 2019 surveillance devices captured the offender entering the premises in Coniston with a large bag. He pulled another object out of the bag. He said, "So there's some missing, but there's more than four and they're good, they're Euros". He was referring to more than 4,000 pills of MDMA which had a Euro stamp on them. The offender and the Westmans are then captured discussing the product, whether some of the pills were "dodgy" or "half cut." The offender, and the Westmans, then weigh and package the product into smaller bags. The pills were later found to weigh 0.29 of a gram each. The pills were packaged into smaller bags of 100 pills. At least 4,200 pills were counted out in this way. 13. The group discussed where the pills were to go. Joel Westman said "I might keep that 42 and you have 300". The offender threw Joel Westman a small bag of pills and said, "Here's 42". Flynn Westman said, "I'll take 300, we're going to make $35,000 from this. $30 individual pills, got $300,000 worth of shit. I hope they're cracking bro". 14. Two weeks later 354 of the pills, all bearing a Euro stamp, were seized at the house of Daniel Westman. It is accepted that they were part of the quantity delivered by Campbell. Forensic testing confirmed the pills were 3, 4‑methylenedioxymethylamphetamine, MDMA or ecstasy. The offender was arrested on 17 August 2019. 15. Although the sentencing was delayed this was not the offender's fault. He is to have the full benefit of 25% reduction in the otherwise appropriate sentence for the utilitarian value of his early plea of guilty. The plea has other values. It indicates as is revealed in all the material before me an acceptance of responsibility by Mr Campbell. 16. The quantity of the drugs is obviously important, it is significantly more than the 500 grams which would bring it into the large commercial quantity. The particular offence for sentence however has an unlimited upper amount. It is not unusual for significantly more weight of illicit drugs to form the basis of a large commercial quantity offence. Quantity is one factor I must consider, so too is the reward expected by the criminal group of which he was a part. I must also consider his own reward. 17. It would appear that he was acting as a trusted intermediary. He was not just someone who was using the drugs and selling them to maintain a habit. Selling was part of his role, but on this occasion it was his job obviously to go and collect the drugs. It was also his job to package the drugs and he was intimately involved with his principals in that process. 18. There is no evidence that he contributed to the financial cost of the operation. It appears he was receiving payment in drugs in exchange for debt to the Westmans and so that he could have drugs for his own use. It is an inevitable conclusion of the nature of the operation set out in the agreed facts that he was to sell the drugs for his own benefit. There is nothing, however, to indicate that he was making the sort of money he was making when he was legitimately employed. 19. I sentence on the basis that he was a trusted intermediary. He had some decision making role, and while that puts him below the Westmans in the hierarchy of offending, it does not excuse what he did. Absent people such as Campbell we would not have drug supply networks. He was taking more of the risk than his principals, but he was receiving some reward for taking those risks. As was common with offences such as this, it was committed without any regard for public safety and was part of organised criminal activity. 20. It bears repeating that the sale and distribution of illicit drugs causes considerable harm, not just to those who purchase and ingest the drugs, as this offender well knows, but the community in general. The trade in illicit drugs is a principal source of many crimes in our community. It is the crimes not just from the sale of the drugs but the crimes that are committed by those who seek to obtain funds for drugs, the destruction of family life and personal life that illicit drugs cause. In such cases there is a community interest in appropriate and just punishment, and punishment for a significant and telling period. 21. The material before me including the letter from the offender, which although unsworn is validated by all the other material before me. It indicates that he has some insight into his offending behaviour. He has had time to think about the impact of drugs on him and on others. He expresses appropriate regret for the harm he has caused his family and the users of his product. That could also be regarded as showing a degree of remorse. He notes; his early introduction to drugs such as cannabis, his debt and drug dependency to which I have already referred. 22. He has a limited criminal history, although he has breached a bond. He has a solid work history and a demonstrated capacity to work. It is impressive, and I say this as someone who has heard many complaints that of prisoner's difficulties while in custody getting appropriate assistance, that this offender took a proactive role in the introduction of the EQUIPS program into a remand facility. 23. The references speak highly, more highly than the vast majority of those who appear for sentence, about Campbell's capacity to work and work hard and take on responsibilities within the gaol system. In his letter he speaks of this offence and his arrest as being life changing, and the contrast between the person described in the agreed facts and the person set out in the references is stark. He has done everything he could while in custody to demonstrate that he is committed to leading a law abiding life in the community. 24. Mitigating factors will be given as much weight as possible. They justify here a significant degree of trust being extended to him. In the structure of the sentence I will make a significant finding of special circumstances to indicate that trust. If he breaches that trust he will be returned to custody. 25. But mitigating factors can go only so far. I return now to the serious of what he did, the maximum penalty, the guidance offered by that maximum penalty and the standard non‑parole period. While I do not simply oscillate around or deduct from the standard non‑parole period, it still is one sentencing guide and it still has to be given some content in any sentencing exercise. But given the quantities involved and given the role involved, this non-parole period in this matter will fall very significantly below that in the standard non-parole period. 26. I have had guidance from my own sentencing history, but more importantly the decisions of the Court of Criminal Appeal and other sentences designed to give guidance. He will have, as I said earlier, the full benefit of the plea of guilty. There will however have to be an additional period in custody as the minimum term in custody must reflect what he did and the other purposes of sentencing. Had it not been for the utilitarian value of your plea of guilty, I would have imposed a sentence of seven and a half years.