District Court New South Wales Medium Neutral Citation: R v Cole; R v Jattan [2021] NSWDC 714 Hearing dates: 19 August 2021 Date of orders: 19 August 2021 Decision date: 19 August 2021 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: Cole: I impose an aggregate term of imprisonment of 5 years, 10 months with an non-parole period of 3 years, 4 months: at [88]. Jattan: I impose an aggregate term of imprisonment of 5 years, 10 months with an non-parole period of 3 years, 4 months: at [90]. Catchwords: SENTENCING — Aggravating factors — In company — Planned or organised criminal activity — Record of previous convictions — Breach of conditional liberty SENTENCING — Mitigating factors — Plea of guilty — Rehabilitation — Remorse SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Co-offenders e — Deterrence — Factual basis for sentence — Form 1 offences — General principles — Maximum penalty — Purposes of sentencing — Sentencing statistics SENTENCING — Subjective considerations on sentence — Aboriginal offenders — Drug addiction — Special circumstances Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Drug Misuse and Trafficking Act 1985 Firearms Act 1996 Weapons Prohibition Act 1998 Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 Bugmy v The Queen (2013) 249 CLR 571 Grabovac v R [2018] NSWCCA 100 Hoskins v R [2021] NSWCCA 169 Imbornone v R [2017] NSWCCA 144 Nye v The Queen [2018] NSWCCA 244 R v Dogan [2019] NSWDC 385 R v Khaddam [2019] NSWDC 732 R v Millwood [2012] NSWCCA 2 R v Qi [2019] NSWCCA 73 R v Qui [2019] NSWCCA 73 R v Qutami (2001) 127 A Crim R 369 R v Taylor & Rafferty [2021] NSWDC 11 R v Yiu; R v Yau [2018] NSWCCA 155 Rakielbakhour v DPP [2020] NSWSC 323 Tamer v R [2020] NSWCCA 333 Taysavang v R; Lee v R [2017] NSWCCA 146 Category: Sentence Parties: Regina (Office of the Director of Public Prosecutions) Peter Cole (Co-offender) James Jattan (Co-offender) Representation: Mr J Hanna (Crown Prosecutor, Office of the Director of Public Prosecutions) Mr G Kumarashinhe (Counsel for Mr Cole) Mr B Cochrane (Counsel for Mr Jattan) File Number(s): 2019/358808; 2019/358264 Judgment 1. Peter Cole, aged 40 and James Jattan, aged 38 years, appear for sentence in relation to serious drug and firearm offences. The facts and the charges arise out of a common episode of criminality but I need to distinguish the particular cases in some respects. 2. Cole is was charged with the following offences: 1. One count of supply of a prohibited drug not less than the commercial quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum penalty of life imprisonment with a standard non-parole period of 15 years. 2. Once count of acquire a firearm without permit to acquire contrary to s 50(b) of the Firearms Act 1996. The offence carries a maximum penalty of five years imprisonment with no standard non-parole period. 1. To be taken into account on Form 1, in the way suggested by the Chief Justice in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146, are five matters, namely 1. Sequence 2: Knowingly direct activities of criminal group (s 93T(4A) Crimes Act 1900) 2. Sequence 4: Deal with the proceeds of crime (s 193C(2) Crimes Act 1900) 3. Sequence 6: Possess prohibited weapon (s 7(1) Weapons Prohibition Act 1998) 4. Sequence 7: Possess prohibited weapon (s 7(1) Weapons Prohibition Act 1998) 5. Sequence 8: Possess prohibited drug (s 10(1) Drug Misuse and Trafficking Act 1985) 1. Jattan is charged with the following offences: 1. One count of supply of a prohibited drug not less than the commercial quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum penalty of life imprisonment with a standard non-parole period of 15 years. 2. One count of possess shortened firearm (not pistol) without authority) contrary to s 62(1)(b) of the Firearms Act 1996. The offence carries a maximum penalty and no standard no-parole period. 1. To be taken into account on Form 1, in the same way as with Cole are three matters: 1. Sequence 2: Participate in criminal group (s 93T Crimes Act 1900) 2. Sequence 6: Not keep a firearms safely (s 39(1) Firearms Act 1996) 3. Sequence 7: Possess ammunition without a permit (s 65(3) Firearms Act 1996) 1. In both cases, the maximum penalties and, where applicable, the standard non-parole period, are yardsticks in the sentencing process to be carried out bearing in mind the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. 2. Cole has been in custody since 14 November 2019 and it is conceded that a term of full-time imprisonment is the only appropriate outcome in this case and the term of imprisonment is to commence on that date. 3. The facts in Cole assert that he was part of a drug supply distribution network in the Grafton/Coffs Harbour region. Between 29 August and 14 November, along with his co-accused, Jattan and Taylor, sourced and bought substantial quantities of methylamphetamine from an upline supplier (Grant) in Sydney and moved those quantities to Grafton area to sell them down to downline street-level suppliers. 4. Cole had been released from custody to parole on 5 June 2019 for drug supply and proceeds of crime charges. The period of parole was to expire on 13 June 2020. 5. Jattan was serving an intensive corrections order for drug supply and firearm offences during this period. 6. Between 16 September and 14 November 2019, police used covert techniques to monitor and record Cole, Jattan and Taylor supplying methamphetamine in the Grafton area. 7. Police recorded calls and SMS messages in relation to a number of trips to Sydney on eight occasions. Most of the occasions involved Cole sending Jattan and Taylor to Sydney. The first seven trips involved a purchase of 196 grams on each trip for a total of $18,900 (or $2,700/ounce) from Grant. On the eighth trip they only purchased 170 grams for $16,800 (or $2800/ounce). 8. The evidence establishes that the buying round trips on eight occasions between Wednesday 25 September and Thursday 14 November 2019. 9. In total they have purchased 1.542 kilograms of methylamphetamine from Grant, at a cost of $149,100.The large commercial quantity of methylamphetamine is 0.5 kilos. 10. The trio predominantly used a black Lexus, registered in the name of Cole's sister, to travel to Sydney. 11. On 25 September, Jattan was recorded agreeing to sell 3.5 grams to Calton for $750. Jattan also made attempts to source firearms. He was recorded saying, "I need to get armed up, though. I'm vulnerable as fuck. I only got machete and throwing knives. I need weaponry, baseball bats, axe handles but, more than all, firearms." 1. On 6 October, Cole went to Narrabri and purchased a car, a 2010 Holden HSV GTS sedan for $30,000. 2. On the 30 October, a woman in Evans Head offered to sell Cole some "toys". Images depicting tasers were sent to Cole. Cole purchased those items, which were located by police during a search of his residence on 14 November. 3. On 7 November Jattan purchased a .22 calibre rifle from Calton. Calton is not a licensed firearms holder. Jattan reported to Cole that he had purchased a rifle, to which Cole said, "I just got the one we really wanted." 4. On 13 November, at 7.30pm, Jattan and Taylor left Grafton, bound for Sydney, on the eighth and final drug run. 5. At about 7.40am on the 14 November at Heatherbrae, Jattan and Taylor were arrested. Their vehicle was searched and they found $2,100 in a sealed sunglass compartment. A further systematic searh of the vehicle lead to the loaction 175 grams of methylamphetamine. 6. Cole was arrested at lunchtime on the same day. 7. A search warrant was issued for the premises at South Grafton. In Jattan's bedroom they found a shortened .22 calibre rifle and eight rounds of ammunition. The rifle and the ammunition were not safely secured. Jattan was not licensed to possess any type of firearm. Police also located two Tasers, five MDMA tablets. Police also located 50g of methylamphetamine, 112 mls of GHL and a Taser identical to the one found at Cole's address six days earlier. This was all found in the search on 20 November 2019. 8. The crown's submission, based on the agreed facts, is that Cole was the head of the syndicate, and he sourced quantities of methylamphetamine from his upline supplier and he made arrangements with Grant for the buying trips. That submission is based on a 37-page document being an addendum to the agreed facts that I will turn to shortly. 9. In so far as there is any relevant difference, the agreed facts for Jattan will be dealt with. 10. The agreed facts for both offenders cover the drug supply activities before the period covered by the indictment of the charges to which they pleaded guilty. 11. The agreed facts for Jattan cover the eight trips between 25 September 2019 and 14 November 2019 and the purchase of a total of 1.542 kilograms purchased for $149,100. The agreed facts set out the circumstances of the arrest and the search of the premises to which I have already referred. 12. It is agreed in conclusion that the quantity of 1.542 kilograms of methylamphetamine referrable to the principal count incorporates the totality of the methylamphetamine sourced from the upline supplier for the purposes of supply and then sold to downline street suppliers and other customers in the Grafton area. 13. As to the others involved, Mr Grant has matters listed for trial on 18 October in Grafton District Court. Taylor and Rafferty were sentenced by Judge Priestley on 8 February 2021 with Taylor sentenced to 45 months imprisonment with a 23-month non-parole period and Rafferty sentenced to 17 months imprisonment. 14. It is agreed that no real parity questions arise and that both Taylor and Rafferty are much lower in the hierarchy of criminality than the offender before me today. However, I have taken into account Judge Priestley's detailed remarks in those cases. 15. As to the 37-page document described as an addendum to the statement of facts, it is a detailed summary of the most relevant communications relating to the purchase of methylamphetamine from Grant in Sydney. The Crown asserts that they demonstrate the relationship and hierarchy within the syndicate and show that Cole was directing the actions of Jattan and Taylor, and that Cole was financing the purchases of drugs from Grant. 16. Those propositions, which of course would have to be established beyond reasonable doubt as far as Cole was concerned, are not accepted by counsel for both offenders, who put the proposition that they are about the same level. 17. While there is no dispute as to the transcripts of the conversations that are set out, both counsel take issue with the conclusions that the crown seems to draw from those communications. In short, while they show in some respects a more active role by Cole than Grant, the overall picture that I gain from the agreed facts is of Cole and Jattan being, as submitted by Mr Cochrane and Mr Kumarasinhe, of roughly equivalent levels of activity. In any event, position in the hierarchy is only one of the matters to be taken into account in assessing objective seriousness and moral culpability. Evidence and Subjective Material – Cole 1. Cole has a very lengthy criminal history extending over some 23 pages. He has served several periods of imprisonment commencing as far back as 1998 for driving offences, break and entering in 2000, further driving offences in 2004, 2008 and 2014, sentences for assault in 2015 and domestic violence. He served further sentences in 2015 for using a carriage service to menace and harass; a sentence, to which I have referred, for driving and drug offences from 2016 to 2019 and offences of dishonesty in 2017 2. The sentence assessment report and other subjective material has not been tested or adopted in evidence but bearing in mind the cautions set out in R v Qutami (2001) 127 A Crim R 369 and Imbornone v R [2017] NSWCCA 144, I still regard them as a reasonable basis on which to proceed to sentence, given the consistency with the material referred to by the author in the sentence assessment report and the independent checking of some of the sources with other people. 3. He is the father of six children. He has been receiving government allowance for about 20 years. He said that he knew what he was doing was illegal but he justified his offending behaviour, citing he had no other non‑criminal options to repay drug debt and protect himself from a drug network. He offers no excuse for his offending behaviour and blames his childhood exposure to violence, illicit substance use, and a lack of pro-social influences. 4. He has a lengthy drug abuse history since being introduced to heroin by his mother at age of 13. He used methamphetamines and buprenorphine on a daily basis at the time of the offending and heroin sporadically. 5. He has been diagnosed with PTSD, depression, and anxiety. 6. He showed some insight into the offending recognising it as being destructive to the lives of community members, and his family, and himself. He is willing to participate in rehabilitation, but he has been assessed as being medium to high risk of reoffending. 7. He has a letter of support from Damien Saltor, who has known him for a long time. 8. His history is set out in a lengthy, detailed document prepared by a psychologist, Ms Carla Rann. He said he was aged ten when he first learned that he had a different biological father to his maternal half-siblings. 9. He said his heroin use followed his release from juvenile detention centres, where he used it as an attempt to block out memories of sexual abuse in boys' homes. His mother's boyfriend brought heroin into their house and he indicated and started using it. 10. He had some periods drug-free during relationships, but he has never engaged in any drug or alcohol rehabilitation. 11. He identifies as of Aboriginal origin. 12. He was seen by the psychologist to be emotional and tearful during his discussion of family affairs. His sister confirmed that he and his siblings were exposed to a lot of domestic violence in the house growing up. She said that she is the only one who knows about his sexual assault as a juvenile, which took place repeatedly while he was at the Reiby Training School. 13. The offender acknowledged that he wanted to be a better dad for his kids. He said he is over it all. He does not want to touch drugs anymore. 14. The psychologist accepts the diagnoses of post-traumatic stress disorder, major depressive disorder, methamphetamine and cannabis use disorder with a direct link between his substance abuse, mental conditions, and offending misconduct, such that, in the absence of those, his offending conduct would likely not have transpired. 15. That history is also set out in a letter from the offender himself. 16. The weight of his expressions of remorse are of course as I have said treated with some caution, but they are still matters to be taken into account in determining his prospects. He says that he believes he can be a better person, and he promises this is the last time he will be back in court. Evidence and subjective Material - Jattan 1. Turning to the evidence in Mr Jattan's case. he was also arrested, as I said, on the 14 November. His offending was committed while he was on an ICO, which was revoked on 17 December 2019. 2. His record is not extensive. He was dealt with by fines and bonds for goods in custody and possess prohibited drug in 2015. The intensive corrections order was for firearms and drug offences in 2016. Also in 2016 there was an offence of possess prohibited drug dealt with by fine. He spent a significant amount of time in custody between October 2016 and December 2017 before being released on the ICO. 3. His subjective case is also set out in sentence assessment reports and psychologist reports and will be dealt with in the same way as in Mr Cole's case. 4. The sentence assessment report from 2017 demonstrates that he had a transient upbringing, being raised by his grandmother until he was about five and then by his aunt. The family unit moved around. There was domestic violence from his aunt's partners as well as in the communities in which he was raised. He did not have stable accommodation for many years although he did have family support at that time. 5. He completed school until year 10 and has done various labouring and demolition jobs. He had a history of illicit substance use, starting with cannabis at age 13, methylamphetamines by age 16, and he had progressed to regular and consistent use. During his period in custody in 2017, he had he opportunity to abstain and develop some clarity about drug use. 6. He has never been married and he has no children. 7. To the psychologist in 2017, he was remarkably frank in his appraisal of the likelihood of using drugs again, saying, "I'd been lying if I said I won't use it again." Even though he did not wish to return to prison. 8. A more recent sentence assessment report of October 2020 shows that he was employed on a casual basis at a takeaway store doing cleaning and maintenance but he left due to problematic illicit substance use. 9. He has a large number of well-established anti-social peers in the local region. 10. He is not an Australian citizen and he cannot receive any government benefits. 11. He says that he was institutionalized for a period of nine months with a diagnosis of paranoid schizophrenia and prescribed medication for some time. 12. He was aware of the impact of his offending but he says that he was drug-affected and unable to regulate his behaviour. He was assessed as being at a high risk of reoffending. 13. There is a Justice Health report prepared by Dr Gordon Elliot, psychiatrist, which concluded that he was not suffering from any mental health impairment. He was taking prescribed medication at the time of the consultation with Dr Elliot and he was unconvinced that Mr Jattan had a conclusive diagnosis of any chronic psychotic illness, notwithstanding the reports of a prolonged admission. Submissions 1. The Crown's concise written submissions in both cases point out that the supply of addictive drugs is a very serious offence, whether or not motivated by financial gain. While these offenders may have been partly motivated by a desire to obtain drugs for personal use, rather than substantial financial reward, the seriousness of the distribution lays in the offenders servicing and maintaining the market for illegal drugs, which in turn provides the economic incentive for manufacture, importation and distribution. 2. It is clear that the offending was part of a planned or organised criminal activity, it was a that a syndicate having an established regular supply chain, obtaining drugs in regular quantities from a supplier in Sydney and selling to regular customers, including people who were themselves suppliers. 3. The offenders' involvement was not fleeting or short-lived. They deliberately involved themselves in serious offending over a period of months, and which only ceased when they were arrested. 4. As I have indicated, both Cole and Jattan are, as the Crown submits, offenders at a significantly higher level of criminality than Taylor. 5. The firearms offences were committed by each offender in the course of the drug offending. Even though they are different offences with different maximum penalties, they involve the same firearm and the plea by Cole is on the basis of the joint criminal enterprise involving the acquisition and possession of the firearm. 6. The Crown acknowledges the disadvantage of both offenders in early life but submits that that had little impact upon their offending, referring to what was said in the case of Taysavang v R; Lee v R [2017] NSWCCA 146 at [40] –[43], but, as Mr Cochrane points out, that passage in the judgment of the court is dependent upon the particular evidence in that case. 7. Both offenders have pleaded guilty in circumstances justifying 25% discount on the term of imprisonment. 8. The crown refers to Tamer v R [2020] NSWCCA 333 and Grabovac v R [2018] NSWCCA 100 as comparable cases which may provide some assistance. They were cases which were dealt with at length by Judge Priestley in sentencing R v Taylor & Rafferty [2021] NSWDC 11, as was the case of R v Qi [2019] NSWCCA 73 and two decisions of mine in matters of R v Dogan [2019] NSWDC 385 and R v Khaddam [2019] NSWDC 732. 9. I have taken into account the circumstances and the sentences imposed in all of the cases to which counsel have referred. 10. Mr Cochrane for the offender Jattan, refers to R v Qui [2019] NSWCCA 73, R v Yiu; R v Yau [2018] NSWCCA 155, Nye v The Queen [2018] NSWCCA 244 and Tamer v The Queen [2020] NSWCCA 333. 11. I have also taken into account the statistics for both the drug offence and the firearms offence which have been provided by counsel. They are a blunt tool but they are of some assistance in establishing a range of sentences which have been imposed without of course providing any detail as to the subjective or objective features of each case. It is necessary, of course, to go to the detail of some of the comparable cases which have been referred to to obtain a useful or meaningful assistance. 12. The weight of the drugs involved is of course one of the significant matters to be taken into account. In urging parity with Jattan, Mr Kumarasinhe refers to the parity principle set out by the High Court in Green v The Queen (2011) 244 CLR 462. 13. I accept his submission that the objective seriousness of the drug supply offence is around the midrange. 14. I accept that Bugmy (Bugmy v The Queen (2013) 249 CLR 571) considerations in light of his background, are matters to be taken into account in assessing moral culpability. I note the recent detailed consideration of the need to bear in mind Bugmy considerations in the decision of the Court of Criminal Appeal in Hoskins v R [2021] NSWCCA 169. 15. In terms of mitigating factors, I acknowledge the pleas of guilty; he has guarded prospects of rehabilitation. 16. Counsel acknowledges there are aggravating factors namely the offender's previous record, the fact that the offending was committed in company while Cole was on parole and that it was part of a plan to organise criminal activity. 17. I accept that there is a slight reduction in the need for specific deterrence given the evidence of the mental health conditions to which I have referred. 18. I take account of the expressions of remorse by Mr Cole. 19. I accept the submission that special circumstances should be found, given that he has for the first time acknowledged the need for engagement in a drug treatment program and there is a need for an extended period of supervision while on parole to attempt to ensure that he continues to be drug-free. 20. Counsel puts a detailed submission as to the effects of the current COVID pandemic on people in custody and sets out what was said by Justice Hamill in Rakielbakhour v DPP [2020] NSWSC 323 which shows that the pandemic does create a challenge for the criminal justice and penal system and, to a limited extent, that has to be taken into account in the sentencing process given the uncertainty as to the duration of the pandemic and the effect that the time during which the effects of the pandemic will impact upon people serving custodial sentences. 21. As to Mr Jattan, it was put on his behalf by Mr Cochrane, that his role is probably characterised as being above a street-level dealer but not nearly a courier. He was able with his associates to maintain a relationship with an upstream supplier or suppliers and regularly sourced methamphetamine for them for sale to a local Grafton network. He was clearly a user dealer with a long-entrenched pattern of uncontrolled drug use. Aggravating factors acknowledged by Mr Cole are also present here, namely; a record of prior convictions, offending being in company, some planning, and some financial gain and being on conditional liberty. In terms of mitigating factors, the guilty plea is relied upon. 22. Although possession of firearms does not aggravate the assessment of objective seriousness of drug offences, it is acknowledged by Mr Cochrane that Mr Jattan's purpose in acquiring the firearms was to protect himself from a perceived vulnerability. The maximum penalty of 14 years for possession of the firearm indicates the very serious nature of this offending. 23. Turning to his subjective case, he has a childhood disrupted in various ways, including early cessation of education, poor family care and poverty and an early commencement of drug use. The principles set out by Simpson J in R v Millwood [2012] NSWCCA 2 are applicable. 24. As Basten JA noted in Hoskins v R [2021] NSWCCA 169 (at [1]-[2]) recently, the effects of profound deprivation in Bugmy terms do not diminish over time and should be given the full weight in determining the sentence in each case, and the solution to social problems does not lie in the criminal courts, whose best course may be to err on the side of leniency. 25. I also accept that his need for treatment for drug addiction indicates the need for an extended period of supervision on parole and justifies a finding of special circumstances. 26. The sentence orders that I make in relation to Mr Cole are as follows: 1. The offender is convicted of each offence. 2. Taking account into a discount of 25% the plea(s) of guilty, the indicative sentences are: 1. Count 1, taking into account the Form 1 matters (sequences 2, 4, 6, 7 & 8): 5 years, 6 months; 2. Count 2: 12 months. 1. I impose an aggregate sentence of imprisonment of 5 years, 10 months, to commence on 14 November 2019. 2. I impose a non-parole period of 3 years, 4 months expiring on 13 March 2023. 3. I find special circumstances. 1. I note that confiscation orders are to be made, by consent in Chambers. 2. The orders that I make in relation to Mr Jattan are as follows: 1. The offender is convicted of each offence. 2. Taking account into a discount of 25% the plea(s) of guilty, the indicative sentences are: 1. Count 1, taking into account the Form 1 matters (sequences 2, 6 & 7): 5 years, 6 months; 2. Count 2: 12 months. 1. I impose an aggregate sentence of imprisonment of 5 years, 10 months, to commence on 14 November 2019. 2. I impose a non-parole period of 3 years, 4 months expiring on 13 March 2023. 3. I find special circumstances. 4. I make confiscation orders pursuant to the consent orders dated 19 August 2021. Note – These extempore remarks were revised without access to the court file. ********** 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: 10 January 2022