District Court New South Wales Medium Neutral Citation: R v Winikerei [2023] NSWDC 363 Hearing dates: 3 August 2023 Date of orders: 8 September 2023 Decision date: 08 September 2023 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Full-time custodial sentence. For orders see [97] Catchwords: Crime – Sentence – Supply prohibited drug – Multiple offences – Delay. Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985 Cases Cited: Bichar v R [2006] NSWCCA 1 Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Jodeh v R [2011] NSWCCA 194 Parris v R [2013] NSWCCA 5 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 R v Quinlin [2021] NSWCCA 284 Turner v R [2011] NSWCCA 189 Category: Sentence Parties: Raiwhara Winikerei (Offender) Director of Public Prosecutions (Crown) Representation: Counsel: Mr F Santisi (Offender) Solicitors: Mr S Croner (Crown) File Number(s): 2018/239867 & 2019/241077 Publication restriction: Nil. REMARKS ON SENTENCE 1. The offender is to be sentenced in respect of two series of offending conduct to which he has entered pleas of guilty. The first are the following two offences:- 1. Count 1 – Supply prohibited drug greater than indictable quantity and less than commercial quantity, namely 931.3 grams of gamma butyrolactone ("GBL"). 2. Count 2 – Supply prohibited drug greater than indictable quantity and less than commercial quantity, namely 5.94 grams of methylamphetamine. 1. Both offences occurred on 4 August 2018 and both are offences of deemed drug supply pursuant to s 25(1) and s 29 of the Drug Misuse and Trafficking Act 1985 ("DMTA"). Both carry maximum penalties of 15 years imprisonment. These are to be referred to as "the 2018 offences". There is a related charge on a s166 certificate, namely Sequence 3 possess prohibited drug, namely cannabis, pursuant to s 10(1) of the DMTA. 2. The second series of offences occurred on 3 August 2019 and comprise the following:- 1. Count 1 – Supply prohibited drug greater than or equal to commercial quantity, namely 1,204.7 grams of GBL. This is an offence pursuant to s 25(2) of the DMTA and carries a maximum penalty of 20 years imprisonment. 1. Count 2 – Supply prohibited drug greater than small and less than indictable quantity, namely 4.56 grams of methylamphetamine. 2. Count 3 – Supply prohibited drug greater than small and less than indictable quantity, namely 1.03 grams of 3,4-methylenedioxymethamphetamine. 3. Count 4 – Supply prohibited drug less than or equal to small quantity, namely 1.2 grams of cannabis leaf. Counts 2 and 3 are each offences pursuant to s 25(1) of the DMTA and carry a maximum penalty of 15 years imprisonment. The maximum penalty for Count 4 is 10 years imprisonment (see s32(1)(h) of the DMTA). 1. These four offences are to be referred to as "the 2019 offences". There are two related charges on a s166 certificate:- 1. Sequence 5 – possession of equipment for administering prohibited drugs (ice pipes and syringes), an offence pursuant to s11(1) of the DMTA. 2. Sequence 12 – deal with property proceeds of crime less than $100,000, namely $760, an offence pursuant to s 193C(2) of the Crimes Act 1900. 1. The 2019 offences were committed whilst the offender was on bail in respect of the 2018 offences. He has spent a total of 709 days in custody until the sentence hearing on 3 August 2023, and 273 of those days are referrable to both the 2018 and 2019 offences. 2. The matter has had a chequered procedural history. Following his arrest on 4 August 2018, the offender was granted bail. On 10 June 2019 he was committed for trial in respect of the 2018 offences and a trial was listed for 9 June 2020. On 3 August 2019 he committed the 2019 offences and on 16 April 2020 he was committed for trial in respect of those matters and a trial was listed for 1 March 2021. On 19 May 2020 the offender entered pleas of guilty in relation to the 2018 matters and on 26 February 2021 he entered pleas of guilty to the 2019 offences. On 3 June 2021 both matters were listed for sentence, however his then defence solicitors withdrew and both matters were adjourned. 3. On 29 November 2021 the matters were listed for a plea traversal hearing which was listed on 28 March 2022. On that date the Court ordered that the pleas of guilty be set aside in both the 2018 and 2019 matters and the matters were eventually listed for trial to commence on 8 May 2023. After the resolution of a number of pre-trial applications on 11 May 2023, the offender was re-arraigned and entered pleas of guilty to the 2018 and 2019 offences on amended Indictments. The sentence hearing 1. The sentence hearing took place on 3 August 2023. The Crown Sentence Summary became Exhibit A and it included statements of agreed facts in relation to both series of offending. In relation to the 2018 offences the agreed facts are that on 4 August 2018, police searched a vehicle that had been driven by the offender which had been left unattended following him being taken to hospital as a result of a suspected drug overdose. Police seized the following items from the vehicle:- 1. Resealable bags in a bum bag containing 5.28 grams and 0.66 grams (a total of 5.94 grams) of methylamphetamine. 2. A large glass bottle containing 799.6 grams of GBL. 3. A smaller metal container containing 123.5 grams of GBL. 4. A glass jar with black lid containing 8.2 grams of GBL. 5. A resealable plastic bag in the centre console containing 7.1 grams of cannabis leaf. 1. The total amount of GBL was 931.3 grams (Count 1) and the total amount of methylamphetamine was 5.94 grams (Count 2). A review of the offender's mobile phone revealed communications between him and multiple people discussing the supply of prohibited drugs. 2. A summary of the agreed facts on which the offender is to be sentenced for the 2019 offences is as follows. On 4 August 2019 at around 12am the offender was stopped by police after failing to use an indicator when making a turn out of a carpark. He was driving a hire car at the time with his wife and 7 year old son present in the vehicle. Police found the following items in the vehicle:- 1. $760 cash. 2. 2 x pipes. 3. A number of syringes in plastic bags in the centre console. 4. 4 x clear bottles with various labels containing a total of 27.8 grams of GBL. 5. A 1.125 litre Johnny Walker Red Label bottle containing 1,176.9 grams of GBL. 6. A "Glad" wrap bag containing light brown powder containing 1.03 grams of 3,4-methylenedioxymethylamphetamine (Count 3). 7. A plastic container containing 0.16 grams of methylamphetamine. 8. A plastic container containing 3.69 grams of methylamphetamine. 9. A plastic container containing 0.28 grams of methamphetamine. 10. A plastic container containing 0.52 grams of methylamphetamine. 11. A cylindrical container containing green leaf matter being 1.2 grams of cannabis leaf (Count 4). 12. A resealable plastic bag containing 0.52 grams of methylamphetamine. 1. The total amount of methylamphetamine found was 4.65 grams (Count 2) and the total amount of GBL was 1,204.7 grams (Count 1). The offender was cautioned and interviewed by police. He said the following:- "a. The glass vials were used by his wife in her business. b. He was going to use some of the vials to put "G" in them. c. The bottle of Johnny Walker contained water which he was going to put essential oils into; d. He found the container of green leaf matter in Woolloomooloo today and believed it contained "weed". He was going to confirm it was "weed" and then intended to give it to other people to smoke. e. The crystal substance inside the cylinder containers was "ice" which he bought from a person he does not know. f. The substance in the "Glad" wrap was MDMA which was his and he had paid $50 for it; and g. He bought the "G" from a bar on Oxford Street." 1. Exhibit A included the offender's criminal antecedents. He had come to police attention in 2003 for two offences for which he had been sentenced by way of a Community Service Order for 100 hours and a s 9 bond for 12 months. There were however no relevant prior offences. 2. Exhibit A also included the offender's custodial history which recorded no infractions. 3. Also in Exhibit A was a Sentencing Assessment Report ("SAR") under the hand of the J McKenna which set out in brief his family and social circumstances. He is married with four children and expressed his humiliation at having let them down. He advised that his wife had her own previous battles with illicit substances but will soon be qualified as a drug and alcohol counsellor and was highly supportive of the offender. The author reported that the offender completed Year 6 but did not attend High School. Shortly after his family relocated to Australia from New Zealand his parents separated. The author noted that he was a qualified carpenter and that his most recent employment history had been as a crane driver for various construction companies. He described crane driving as "his passion and eventual career path". 4. The author also noted that in 2013 the offender suffered two injuries in workplace accidents and that these incidents were the genesis of his antisocial lifestyle. 5. The offender admitted to having anger issues that led to violence related offending in 2003, however he had completed anger management counselling to address those issues. He had led a prosocial lifestyle from 2003 until 2018 when his substance abuse led to his "life spiralling out of control". Under the heading "Attitudes" the author noted that the offender took full responsibility for his offending. He had initially commenced taking illicit substances to self-medicate the pain from his physical injuries. However as his drug use resulted in him being unable to sustain employment and provide for his family, he increased that drug abuse to cope with his humiliation and it soon turned into an addiction. With respect to the selling of drugs, the author noted the offender told him "the drugs he had were just like cash and he needed to sell drugs he had left over to fund the next purchase. He insisted it was never about financial gain or attempting to fund a lavish lifestyle." 6. The author noted that the offender's partner had withdrawn from all antisocial associates since the offender's incarceration. The author noted that the offender attributed the blame for his addiction solely to his poor choices and that he had been surprised at how quickly he became addicted to illicit substances, which he commenced using to self-medicate. 7. The offender reported that he had been previously treated for severe depression and anxiety. Since being in custody he claimed that Justice Health had advised of the likelihood that he is suffering from Post-Traumatic Stress Disorder as a result of his traumatic childhood. He had previously been prescribed antidepressant medication but had found it difficult to treat his mental health issues whilst in custody. 8. Under the heading "Insight into impact of offending" the author noted that at no stage did the offender minimise the risk his behaviour posed to the community or the harm his offending had done to his family. The offender provided clear insight into his decision making and appeared honest throughout his interview. The offender also expressed a willingness to commit to Community Corrections supervision and to undertake Community Service Work if so sentenced. 9. The author assessed the offender as being at a medium risk of reoffending and set out a supervision plan for his supervised return to the community which involved monitoring his engagement with AOD and mental health services, regular drug testing to monitor his abstinence and making referrals to assist in him gaining employment if required. The offender's evidence 1. The offender tendered a bundle of documents which became Exhibit 1A to 1Z. Exhibit 1A was a letter of apology by the offender to the court in which he acknowledged and took full responsibility for his offending and expressed his remorse for it. He set out the history of two accidents he suffered at work in 2013 in which he suffered severe injuries, and which led him to self-medicate for chronic pain. He began self-medicating in 2016 when he was continuing to work to provide for his family but was moved to night shifts which were financially beneficial as it doubled his income, however he stated that he needed pain relief to help him cope with the work and stay awake. His life had spiralled out of control and he was ashamed of the decisions he had made which had led him to hurt those people who were closest to him. He had slowly managed to repair his family ties whilst he was in custody. 2. The offender stated that having spent two years in custody he had gone through "the best healing process". He had become physically stronger and now recognised that he needed to address his mental health issues. He recognised the need for DOA counselling and therapy for his extensive mental health issues. 3. Exhibit 1B was a letter from the offender's wife who stated that his reason for taking illicit substances was the result of the two severe injuries he suffered in 2013 and ongoing chronic pain. He had been advised that to alleviate this pain required surgery which would cost over $100,000 and had potential for further difficulties. That lead to his self-medication. 4. The offender's wife stated that he had never been a man to engage in such reckless behaviour prior to this. He had grown up in a tumultuous environment subjected to major domestic violence and heavy drinking from a very young age. He was uprooted from New Zealand and brought to Australia at the age of 8, following which his parents separated and his family was broken up. He developed major anger issues and the domestic violence to which he had been subjected as a child continued in Australia. 5. Mrs Winikerei outlined that as an adult, the offender had worked very hard and had achieved well in becoming a successful crane operator. In addition to his successful work history he had been a volunteer coach at a local football club and together they had been active members in their community helping disadvantaged families and the homeless. The offender had also become the only person in his family to purchase his own home, followed by a second property. She regarded him as "truly our provider and our protector". Whilst in custody he had engaged in a fitness program and had progressed his rehabilitation. He understood that he still needed to go to rehabilitation following his release. However, he now realised he doesn't need drugs and is no longer a threat to the community. 6. Mrs Winikerei then set out the hardship that she and her family had suffered as a result of the offender's incarceration. She expressed her confidence that he will come home a changed man for the better, that he will ensure that there is nothing that could jeopardise his freedom in the future and the court should have no concerns based around his release. 7. Exhibit 1C was a letter from Dr D Rowe dated 28 May 2021. Dr Rowe is a clinical psychologist and neurophysiologist who assessed the offender on 25 May 2021 for approximately 1.5 hours and administered him with a number of psychological questionnaires. 8. Dr Rowe took a family history which established that the offender's childhood was marred by drugs, alcohol and domestic violence. He stopped going to school in Year 7 but got into rugby league which he played from Under 11's to Under 17's. 9. Dr Rowe recorded the fact of the offender's workplace injuries in 2013. The offender suffered an injury to his right knee and lower back with significant L5/S1 disc pathology affecting the S1 nerve route as well as a hip injury. 10. Dr Rowe opined that the offender's exposure to violence during his youth most likely contributed to his own aggression-related problems and left him vulnerable to succumbing to similar antisocial activities in 2018 and 2019, having been brought up in such a dysfunctional environment. 11. The offender was assessed as suffering from a chronic pain disorder ("CPD"), a substance use disorder ("SUD") and a major depressive disorder ("MDD"). Dr Rowe opined that due to the cognitive impairing effects of the offender's MDD and CPD disorders, particularly relating to executive functions, he would have had difficulty inhibiting any behaviours relating to the use of illicit substances and he would not have adequately considered the consequences of his offending behaviour. Therefore, in Dr Rowe's opinion, there was a causal connection between the offender's offending behaviour and his mental health condition at the time of the offences. 12. Dr Rowe opined that the offender's arrest and incarceration had had a positive effect in providing him with a reality check and diverting his attention from drugs. He had demonstrated a capacity to rehabilitate in respect of his anger management and previous cannabis use. He set out a treatment plan for the offender to follow upon his release to the community. 13. Exhibit 1D was a letter from Ms H El-Hassan of Guiding Light Psychology dated 24 July 2023 confirming that the offender had attended a number sessions for ongoing psychological treatment in 2023 but unfortunately five sessions had to be cancelled due to the offender's corrective facility not providing the AVL facilities. 14. Exhibit 1E was a letter from Ms S Ngo, Team Leader Odyssey House, dated 26 July 2023 advising that the offender had been assessed and has engaged in the non-residential treatment program at Odyssey House. That occurred in 2021, however he would be welcome back to the program subject to further assessment. 15. Exhibit 1F is a copy of the SAR that was contained in Exhibit A. Exhibits 1G to 1Z comprise medical and treatment records concerning the injuries suffered by the offender in 2013 which are not in issue, together with some documentation relating to the offender's worker's compensation claims relating to those injuries. The offender's oral evidence 1. The offender gave evidence that he had been truthful and accurate in what he told Dr Rowe and that he had found his intervention with Odyssey House helpful in that it had given him an insight into the harmful effect of drugs. His intervention with Guiding Light Psychology had also helped him to cope. He described his letter of apology as being sincere, true and correct and gave evidence of the two work injuries he suffered in 2013, both of which arose from falls through a roof. Following the first incident he suffered a massive tear in his quad muscle and injury to his back and he couldn't walk for a couple of days. The second injury meant that he couldn't walk or work for a period of 6 months. 2. The offender gave evidence that he had purchased, with his wife, the family home, however the bank had foreclosed, and the property had been sold in December 2022. Another property they owned had been sold at the start of 2018 because they couldn't afford the payments. 3. When asked why he was using GBL the offender gave evidence that he was using it for pain relief and muscle repair. He was using methylamphetamines for the same reasons. By his pleas of guilty he did not dispute that at times he sold illicit drugs, but the reason was for him to buy more. 4. When asked why he was still using drugs in 2019 after his arrest, the offender gave evidence that by that stage the drugs had taken over and he had a "fully big habit and was 100% addicted". 5. His use of these drugs took his pain away and he was able to do things he otherwise could not do. 6. The offender gave evidence that when he started using GBL in 2018 he "didn't think there was anything bad about it". He had no memory of the events on 4 August 2018 which led to him losing consciousness and spending a couple of days in hospital. Since being in custody he had learnt to cope with the pain by physical exercise and had worked on training his mind and body. He was now fit and well and suffering no pain. He gave evidence that he now thought he could cope without illicit drugs. 7. The offender gave evidence about his employment history and said he obtained a Certificate III in construction when employed by RailCorp. He was a qualified carpenter and over time gained experience in crane work, becoming qualified in 2008. Whilst on bail following the 2018 offences, he had been employed by Summit Cranes. 8. The offender gave evidence that he received a lump sum compensation payment for his first workers compensation claim which was spent on living expenses and renovations to the family home. 9. When asked about his background and a childhood in which he was exposed to alcohol, drugs and domestic violence, he said that he had not come to grips with it, but was coping. He acknowledged that he had prior offending involving violence but that his anger management courses had helped a lot. He gave evidence that his family were now living with his wife's parents, and he would be able to join them upon his release. 10. The offender gave evidence that he had found custody very difficult, that he did not want to return and that he understood the implications of any future drug abuse or supply, saying he did not want to return "so much its not funny". 11. In cross-examination the offender gave evidence that he did not enjoy school and didn't turn up for Year 10. He left when he was 14 years and 9 months old and was able to work. He had worked for 7 years in the construction industry and acknowledged that up until 2013 he was using cannabis but still working. He had commenced as a crane operator in 2008/9 and used cannabis off and on as it had been a childhood habit. The offender gave evidence that following his two injuries in 2013 he returned to work towards the end of 2014 and worked until 2017. He gave evidence that his injuries took a toll on him and in 2018 he did not work at all. 12. When asked how long he had been using GBL for prior to his offending in August 2018 the offender gave evidence that it was one of the first times he had used that drug. He had seen doctors in 2017 regarding pain management and had entered a chronic pain management plan at Westmead Hospital which had just started when he was arrested. He gave evidence that he had been seeking help the whole time up until August 2018 and had been prescribed Endone and treated with physiotherapy and a chiropractor. He said he "tried all types of things". 13. The offender gave evidence that he had commenced using GBL after looking it up on the internet. At the time he was living with his wife and three children and had a close relationship with his extended family, including his wife's family. He had accumulated sufficient leave which carried him through 2018. By the end of 2017 he gave evidence that he needed to get his back, hip and knee injuries fixed however the fusion surgery to his back was going to cost $190,000. He said that he had to find other ways to get physically better as there were times when he couldn't get out of bed. 14. The offender gave evidence that he had planned to return to work towards the end of 2018 but in August of that year he had first used GBL. He agreed that 931.3 grams of GBL was a large volume and notwithstanding that he pleaded guilty to possession of the drug for the purpose of supply, he gave evidence that over a period one person could have used that amount. At that time he didn't know what he was doing and had overdosed on the drug. After his arrest he had continued to use GBL daily, consuming 2-3ml every 3-4 hours, which was 20-40ml per day. 15. The offender gave evidence that he had never returned to work and had lost everything as a result of his abuse of drugs and subsequent arrest. He had however, throughout 2018 and 2019 received moral support from his wife and stated that "she saved me". He had not however, at that time, received support from his extended family, but now over the last year they have become his biggest support. During his time in custody he has now become fit and healthy, and his focus has been on his physical fitness. He had received no mental health support in custody. He acknowledged that he had not returned to work between his two arrests and that during that time he had not only used GBL but other drugs, particularly methamphetamines. The Crown's submissions 1. The Crown relied on a detailed written outline of submissions which outlined the offences and referred to general principles of sentencing relating to drug supply offences, which are not in issue. In respect of the 2018 offences, the Crown submitted that the following matters are relevant to the assessment of the objective seriousness of the offences:- 1. The GBL seized (Count 1) was found in three separate containers in varying amounts; 2. The total amount of GBL seized being 931.3 grams is over 18 times the indictable quantity for that particular drug; and 3. The methylamphetamine seized (Count 2) was found in two separate resealable bags. 1. The Crown submitted that Count 1 falls below the mid-range of objective seriousness for offences of its type and that the balance of offences fall within the lower range of objective seriousness. 2. In respect of the objective seriousness of the 2019 offences, the Crown relied on the following matters as relevant to the Court's assessment:- 1. The GBL seized (Count 1) was found in five separate containers in varying amounts, including smaller amounts in glass vials; 2. The total amount of GBL seized was 204.7 grams above the commercial threshold for that particular drug; and 3. The methylamphetamine seized (Count 2) was found in five separate containers/bags in varying amounts. 1. The Crown submitted that an aggravating factor to the 2019 offences was the fact that they were committed whilst the offender was on conditional liberty having been released on bail for the 2018 offences, pursuant to s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"). 2. The Crown submitted that general deterrence and denunciation will generally outweigh subjective circumstances in drug supply offences, relying on Parris v R [2013] NSWCCA 5 at [35]. The Crown noted the offender was between 38 and 39 years of age at the time of the offending and had a limited criminal history and was entitled to a degree of leniency, having had no relevant criminal convictions. 3. The Crown challenged the offender's explanation for his supply of drugs, namely to fund his next purchase, as there was no information reported as to the frequency or quantity of drugs the offender was using. The charges involved supplying large quantities of GBL over and above what could be considered as "left overs from a purchase made for personal use", moreover the offender had pleaded guilty to supplying four different types of drugs, thus the Crown submitted there was an inherent implausibility of the offender's account of why he engaged in his offending conduct. 4. The Crown submitted that the Court would view the offender's reports of suffering severe depression and anxiety and possibly PTSD with circumspection. Also notwithstanding Mr McKenna reporting that he had displayed insight into his offending, he was assessed as posing a medium risk of reoffending. 5. The Crown submitted that an aggregate sentence was appropriate, but it must be "just and appropriate" to the totality of the offending behaviour. Applying principles of totality, the Crown submitted a significant degree of accumulation was warranted in respect of the two instances of offending. The Crown concluded by submitting that the s 5 threshold had been crossed. 6. In his oral submissions the solicitor for the Crown noted that the offender's plea of guilty to the 2018 offences was entered after pretrial issues had been resolved, adverse to him, and that he was entitled to a 5% utilitarian discount on sentence. 7. In relation to the offender's subjective case the Crown submitted the Court would take into account the principles set out in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 in relation to the principles applicable where offences were committed due to drug addiction. The Crown also relied on Turner v R [2011] NSWCCA 189 in relation to self-medication. 8. The Crown submitted that the evidence demonstrated that the offender had endured a difficult childhood exposed to domestic violence, drugs and alcohol, however despite that level of social disadvantage, he had been able to engage in prosocial activities following leaving school at a young age and had worked consistently in the construction industry, obtaining a Certificate III in construction and ultimately becoming a successful crane operator. This was meaningful and rewarding work which he intends to re-engage in following his release from custody. 9. In relation to the causal nexus of the offender's work injuries and chronic pain leading to him self-medicating, the Crown relied on Bichar v R [2006] NSWCCA 1 and Jodeh v R [2011] NSWCCA 194 to submit that it would be a rare category of case that the court would take into account the offender's drug addiction as a mitigating factor. Generally it was a matter of choice rather than a mitigating factor. 10. The Crown submitted that Dr Rowe's opinion that there was a connection between the offender's disadvantaged background and his earlier criminal history drew a long bow. For the most part, it was submitted that the offender had built a good life without drugs except for some cannabis use to the extent that he had provided for his family and purchased a home and a second property. 11. It was not in dispute that he had suffered injuries in 2013 which had changed the scope of his life. He had suffered chronic pain and took some steps to ameliorate that pain. Whilst the Crown acknowledged that the offender was a generally truthful witness, he had not given detailed evidence as to his use of GBL and the court would treat the evidence of his drug abuse with some circumspection. The fact that he had reoffended in 2019 demonstrated that he had no insight into his offending conduct and had not advanced his rehabilitation. 12. In relation to the related offences, in respect of both the 2018 and 2019 offending, the Crown submitted the Court should note that pleas of guilty had been entered to each of the relevant charges which could be taken into account on any aggregate sentence imposed. The offender's submissions 1. Learned counsel for the offender also relied on a detailed written outline of submissions. Those submissions outlined the delay in the plea and the procedural history contending that the early pleas of guilty which had been subject to an application for plea traversal were caused by incomplete legal advice being given to the offender. The offender's application to withdraw his pleas was ultimately successful and was held to be brought about by a failure to receive proper and complete legal advice at the time of each plea. The pre-trial arguments had been listed to commence with the trial, although the offender had been prepared to have the legal argument listed well before any trial date. The accused had made it known that if the evidence was allowed to be tendered then the trial would likely be short. On 10 May 2020 the trial Judge ruled the evidence subject of the argument was admissible and the following day the offender entered pleas of guilty, consistent with prior disclosures to all charges set out in the Crown Sentence Bundle. It was submitted that notwithstanding the timing of the pleas, the offender is entitled to a discount as provided and otherwise should have been taken into account, that had it not been for a failing in the legal advice he had received when the first pleas were entered, such an exercise would not have been undertaken and the delay would not have occurred. 2. In assessing the objective seriousness of the 2018 offences, counsel submitted the offending was a deemed supply, having regard to the quantity of drugs involved. It was submitted that there was nothing about the agreed facts which would contradict the reported account of the offender, that the offending occurred in the context of his reported daily consumption of illicit drugs to manage his pain and the compounding effect that had on his "person and mental state". The factors relied on by the Crown, relevant to the objective seriousness of the offences did not detract from the subjective material, which suggested a high level of personal use at the time. It was submitted there were no statutory aggravating factors applicable to the 2018 offences. 3. The same issues arose with respect to the assessment of the objective seriousness of the 2019 offences. The offending came to police attention due to a random stop and search and there is nothing about the agreed facts which would contradict the reported account of the accused in the context of a history of the use of the type of drugs in fact found and at the levels of his reported daily consumption to manage his pain. It was submitted that the matters fall within the lower range of objective seriousness. 4. Counsel submitted that the offender's subjective case is such that general deterrence and the need for punishment ought not to outweigh subjective circumstances. The offending was not motivated by financial gain, but rather the genesis was in the life changing events that affected the offender following his work injuries in 2013, which led him to resort to the use of such drugs to manage his pain, which in turn had adverse effects on his employment and life generally. 5. The offender was aged between 38 and 39 years at the time of the offending and had a limited criminal history and was entitled to a degree of leniency. He had demonstrated his remorse and contrition in his letter of apology consistent with his self-reporting to Mr McKenna and Dr Rowe. The Court would take into account Dr Rowe's opinions that he suffered a CPD, dating back to 2013, an SUD brought on by the CPD, a co-existing MDD that compounded the circumstances and that affected the accused's cognitive functioning before and at the time of the offending. The Court would also take into account the letters of support from his wife, his own attending a psychologist for treatment before his return to custody, from the Team Leader at Odyssey House, an impressive SAR and the historical material supporting his work history and workplace injuries. 6. In his oral submissions counsel highlighted the childhood disadvantage suffered by this offender and noted the Crown submission that despite that, he had got his life back on track. It was submitted that following his injuries he had persisted, continuing to work until the end of 2017, demonstrating a strong work ethic until the pain was too much for him to cope with. He had progressed his rehabilitation whilst in custody. With respect to a discount for his late plea of guilty, it was submitted that in respect of the 2018 offences, if he had been given comprehensive advice, the delay could have been avoided and therefore he was entitled to a 10% utilitarian discount on sentence. It was agreed that in respect of the 2019 offences, he was entitled to a 5% utilitarian discount. 7. It was further submitted that the court would make a finding of special circumstances based on the financial suffering of his family, which lead to the loss of their home, and the fact that he had endured onerous conditions whilst in custody on remand due to the COVID-19 pandemic. Determination 1. Section 3A of the CSPA sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community." 1. In assessing the objective seriousness of the 2018 offences I take into account the matters submitted by the Crown to be relevant, namely that the GBL seized in Count 1 was found in three separate containers in varying amounts and the total of 931.3 grams was over 18 times the indictable quantity for that particular drug. Secondly the methylamphetamine seized in Count 2 was found in two separate resealable bags. 2. The indictable quantity of GBL is 50 grams and the commercial quantity is 1kg. It was therefore a long way above the indictable quantity and not far below the commercial quantity. 3. The indictable quantity of methylamphetamine is 5 grams and the commercial quantity is 0.25 kilograms. The amount the subject of Count 2 therefore was only slightly above the indictable quantity. 4. I also note that the agreed facts outlined that a review of the offender's mobile phone revealed communications between him and multiple people discussing the supply of prohibited drugs. 5. I accept the evidence of the offender that he commenced consuming GBL and methylamphetamine to assist him to complete his night shift duties and substantially for pain relief. I do however accept the Crown's submission that his explanation that he was using illicit drugs for personal use only must be viewed with some circumspection given the quantity of GBL involved. I therefore find that the objective seriousness of the offending in Count 1 fell below the mid-range of objective seriousness for a deemed supply offence pursuant to s 25(1) of the DMTA and in the upper part of the low range for such an offence. Whilst the quantity of prohibited drugs is not, of itself, determinative, the objective seriousness of the offending in Count 2 fell within the lower range of objective seriousness for such an offence given the quantity of methylamphetamine involved. 6. I note that there are no aggravating factors in respect of the 2018 offences and it is not a mitigating factor that the offender was addicted to drugs at the time of the offending but rather that provides an explanation and context for his offending. 7. In relation to the 2019 offences, Count 1 involved the supply of 1,204.7 grams of GBL which is greater than the commercial quantity, as outlined above. I further note that when his vehicle was searched there were indicia of personal use but other than $760 in cash none of the typical indicia of a supply operation. I take into account that the GBL was contained in five separate containers in various amounts and was 204.7 grams above the commercial threshold. The objective seriousness of the offending in Count 1 was just below the mid-range for an offence pursuant to s 25(2) of the DMTA and within the upper part of the low range for an offence pursuant to that section. 8. Count 2 involved a deemed supply of 4.65 grams of methylamphetamine which was found in five separate containers or resealable bags in varying amounts. It was therefore just under the indictable quantity of 5 grams. The objective seriousness of the offending was in the low range for an offence pursuant to s 25(1) of the DMTA. 9. Count 3 involved the supply of 1.03 grams of 3-4-methylenedioxymethylamphetamine which was just under the indictable quantity of 1.25 grams for that drug. The objective seriousness of the offending in respect of Count 3 fell in the low range for an offence pursuant to s 25(1) of the DMTA. 10. Count 4 involved the supply of less than a small quantity of cannabis leaf being 1.2 grams, the objective seriousness of the offending fell at the lowest end of the range for an offence pursuant to s 25(1) of the DMTA. 11. The charge on the s 166 certificate relating to the 2018 offences, being Sequence 3, possess prohibited drug, an offence pursuant to s 10(1) of the DMTA does not add to the objective seriousness of the offending in respect of the 2018 offences. Similarly the two charges on the s 166 certificate relating to the 2019 offences, being Sequences 5 and 12, again add nothing to the objective seriousness of the offending. 12. I find that it is an aggravating factor to the 2019 offences that they were committed whilst the offender was on conditional liberty, having been released on bail for the 2018 offences, pursuant to s 21A(2)(j) of the CSPA. 13. As referred to above, I accept that the offending conduct arose out of the offender's abuse of illicit drugs for pain relief following the 2013 accidents at work in which he suffered severe injuries leaving him with a chronic pain condition. As the authorities demonstrate, this is not a mitigating factor giving rise to leniency in sentencing for drug supply offences but rather provides some explanation for the offending conduct by the offender who had otherwise led a prosocial life between 2003 and 2018, during which time he was married with four children, in constant employment in skilled work and had acquired several properties whilst also providing for his family. I accept the opinion of Dr Rowe however that the disadvantaged childhood suffered by the offender, in which he was exposed to domestic violence, drug and alcohol abuse made him vulnerable once he faced adversity in his life following his work injuries and led to his poor decision making. The impact of childhood deprivation has been held to not evaporate during periods of prosocial lifestyle and may impact a person at any time during their life - see, for example, R v Quinlin [2021] NSWCCA 284 at [62]. 14. General deterrence is important in sentencing for drug supply offences and a clear message must be sent to likeminded members of the community that Parliament has prescribed lengthy maximum terms of imprisonment for such offences and that the courts will impose condign punishment in appropriate cases. Specific deterrence is also important in that the offender must also understand that if he were to reoffend he would face increasingly lengthy terms of imprisonment. 15. I accept the opinions of Dr Rowe that the offender has suffered CPD, SUD and a MDD which had an impact on his cognitive functioning so as to impair his decision making process. 16. In DPP (Cth) v De La Rosa (2010); 79 NSWLR 1; [2010] NSWCCA 194, McClellan CJ at CL set out at [177] the following principles to be applied when sentencing an offender suffering from a mental illness, intellectual handicap or other mental health problems as follows:- * "Where the state of person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28]. * It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50-51; Israil at [22]; Pearson at [42]; Henry at [28]. * It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28]. * It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192]. * Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] – [24]." 1. Here, I accept that the offender is remorseful for his offending conduct and has been genuine in his expressions of remorse and contrition to Dr Rowe and to the Court. He also has no relevant criminal history and is therefore entitled to some leniency in the sentencing process. I was impressed with the evidence of the offender, and the candour involved in outlining his life history and adversities. This Court recognises that it is no small thing to overcome and rehabilitate from an addiction to such highly addictive illicit drugs, particularly in this case where that addiction arose through a perceived desire for pain relief for serious work injuries suffered by the offender. 2. I find that the offender has reasonable prospects of rehabilitation given that during a lengthy incarceration on remand he has had no infractions and has been abstinent from drug abuse. He now has insight into his offending and his need for ongoing rehabilitation so as to promote relapse prevention. Whilst the offender has been assessed as a medium risk of recidivism, that is entirely dependent upon him undergoing successful relapse prevention. Given his evidence to the court and the support expressed by his wife, the Court has some reassurance that his risk of reoffending will be lower than that assessed by Community Corrections. 3. I note the maximum penalties set out above, namely, 15 years imprisonment in respect of Counts 1 and 2 of the 2018 offences, 20 years imprisonment in respect of Count 1, 15 years imprisonment of Counts 2 and 3, and 10 years imprisonment in respect of Count 4 of the 2019 offences. There is no standard non-parole period prescribed for any of the offences. The maximum penalties are a guideline in the sentencing process and an indication of the seriousness with which Parliament regards drug supply offences. The supply of illicit drugs in our community is an insidious practice that leads to inestimable suffering, hardship, and further criminal activities. 4. I am satisfied that the threshold in s 5 of the CSPA has been crossed and no punishment other than fulltime imprisonment is appropriate in all of the circumstances. I propose to impose an aggregate sentence pursuant to s 53A of the CSPA, and to provide transparency in the sentencing process I provide the following indicative sentences, taking into account the objective seriousness of the offending as outlined above, the aggravating and mitigating circumstances and the fact that the offender is entitled to a 10% utilitarian discount on sentence in respect of the 2018 offences and a 5% discount in respect of 2019 offences. The indicative sentences are as follows:- The 2018 offences * Count 1 - 4 years imprisonment * Count 2 – 12 months imprisonment The 2019 offences * Count 1 – 4 years and 6 months imprisonment * Count 2 – 2 years imprisonment * Count 3 – 12 months imprisonment * Count 4 – 6 months imprisonment 1. In arriving at an aggregate sentence, principles of proportionality and totality must be applied. As outlined above, the related charges on the two s 166 certificates do not add to the objective seriousness of the offending and warrant no accumulation on sentence. The principle of totality was described by Howie J in Cahyadi v R (2007)168 A Crim R 41; [2007] NSWCCA 1 at [27] as follows:- "There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both." 1. Clearly, there needs to be some accumulation between the 2018 and 2019 offences, particularly given that the offender was on conditional liberty at the time of the 2019 offences and his offending on that occasion demonstrated a complete disregard for lawful authority. I propose therefore to impose an aggregate sentence of 6 years imprisonment which will be backdated by 745 days. 2. I find special circumstances pursuant to s 44(2B) of the CSPA based on the offender's need for a lengthy period of supervision and rehabilitation upon his return to the community and based on the onerous conditions of his incarceration whilst on remand due to the COVID-19 pandemic and the impact that has had on the whole of the prison population. I therefore intend to impose a non-parole period of 3 years, to commence on 24 August 2021. Orders 1. I hereby order as follows:- 1. You are convicted of: 2018 offences 1. Count 1 – Supply prohibited drug greater than indictable quantity and less than commercial quantity, namely 931.3 grams of gamma butyrolactone ("GBL"). 2. Count 2 – Supply prohibited drug greater than indictable quantity and less than commercial quantity, namely 5.94 grams of methylamphetamine. 2019 offences 1. Count 1 – Supply prohibited drugs greater than or equal to commercial quantity, namely 1,204.7 grams of GBL. 2. Count 2 – Supply prohibited drug greater than small and less than indictable quantity, namely 4.56 grams of methylamphetamine. 3. Count 3 – Supply prohibited drug greater than small and less than indictable quantity, namely 1.03 grams of 3,4-methylenedioxymethamphetamine. 4. Count 4 – Supply prohibited drug less than or equal to small quantity, namely 1.2 grams of cannabis leaf. 1. I sentence you to an aggregate sentence of 6 years commencing on 24 August 2021. The non-parole period of 3 years will terminate on 23 August 2024. The balance of sentence will be for a period of 3 years and will terminate on 23 August 2027. 2. In relation to the charges subject to certificates pursuant to s 166 of the Criminal Procedure Act 1986 I make the following orders:- 1. Sequence 3 – possess prohibited drug – you are convicted without imposition of any other penalty pursuant to s 10A of the CSPA. 2. Sequence 5 – possession of equipment for administering prohibited drugs – you are convicted without imposition of any other penalty pursuant to s 10A of the CSPA. 3. Sequence 12 – deal with the property proceeds of crime less than $100,000 – you are convicted without imposition of any other penalty pursuant to s 10A of the CSPA. 1. I make a confiscation order in respect of the sum of $760. 2. Your parole eligibility date will be 23 August 2024. You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence. 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: 21 September 2023