New South Wales District Court CITATION: R v STACEY [2010] NSWDC 151 HEARING DATE(S): 2 June 2010 EX TEMPORE JUDGMENT DATE : 2 June 2010 JURISDICTION: Criminal JUDGMENT OF: Berman SC DCJ DECISION: Effective sentence consisting of a non-parole period of two years with a total sentence of four years. CATCHWORDS: CRIMINAL LAW - Sentence - Supply - Ongoing supply - MDMA - Proceeds of Crime LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 PARTIES: The Crown Jon Christopher Stacey FILE NUMBER(S): DC 2009/00061036 SOLICITORS: Director of Public Prosecutions Michael Bowe - Offender JUDGMENT 1 HIS HONOUR: Jon Christopher Stacey appears for sentence today having pleaded guilty at the local court to a number of serious offences, all involved the supply of drugs. There was one offence of supply, one offence of ongoing supply, a further offence of supply relating to drugs found in his possession on his arrest, as well as the related matters of dealing with the proceeds of crime and possessing prohibited drug. The supply matters and the dealing with the proceeds of crime matter all relate to the offender's large scale supplying of the drug ecstasy. The possess prohibited drug matter relates to a single tab of LSD. 2 The offender was a user of cocaine. In order to fund that drug use he began supplying drugs. He clearly came to the attention of police who put an undercover officer in contact with him. On 25 June 2009 that officer telephoned the offender and organised to purchase 100 MDMA tablets for $2,200. They met later that day and the purchase took place. That relates to the single act of supply, the subject of the first count that I mentioned. Then on four occasion between 2 July and 29 July, the offender supplied that undercover officer with a large number of other tablets of ecstasy, 600 in total: 200 on 2 July, 100 on 7 July, 100 on 16 July and 200 on 28 July. He was arrested on 6 August. Police found a large quantity of cash in his possession which clearly came to him from drug supply activities. They then executed a search warrant on premises where he was living and found a quantity of MDMA tablets and some powder weighing total of 65.77 grams. The facts do not detail the number of tablets that involves but some basic mathematics allows me to say that there must have been at least the equivalent of 200 tablets given the weights and quantities involved in the offender's other misconduct. This was, as I said, large scale drug dealing. There are at least 900 tablets either supplied or held by the offender for the purposes of supplying them. The total weight was something in the order of 240 grams, almost twice the commercial quantity applicable to MDMA. 3 It is a fundamental rule in sentencing that the sentence must reflect the objective gravity of an offender's conduct. Despite all the positive things that can be said about the offender, and there are many, it remains the case that the sentence that I ultimately impose upon him has to reflect the gravity of his conduct. To supply 900 tablets in quantities approaching twice the commercial quantity is very serious conduct indeed. It alone demonstrates the inability to accept the submission put on his behalf that ten months in custody is enough. As I mentioned, the offender pleaded guilty at the local court. The sentence I will ultimately impose upon him therefore is twenty-five per cent less than what otherwise have been. 4 The offender is now twenty-one years of age. He has no priors in his criminal history. Apart from drug use and drug supply, he appear to have been a man of prior good character. He had a positive upbringing with the one qualification to that perhaps being the fact that when his parents separated when he was about ten his father moved to Queensland and the offender has had little contact with him thereafter. He was educated to year 10, left school and then has had periods of unemployment, periods of study and periods of work. His behaviour at home deteriorated to the extent that his mother asked him to leave and he did so, and away from the supervision and influence of his mother he began using drugs to a greater extent than he had earlier been. At least in part that may have been because the offender has been diagnosed as suffering from ADD. It is important to distinguish between attention deficit disorder and attention deficit hyperactivity disorder, or ADHD. The symptoms displayed by those who have those two conditions are different. The "H" in ADHD indicates hyperactivity; a person with ADD does not jump around, or find it difficult to sit still and so it is much easier to miss a person suffering from ADD than it is to miss a person suffering from ADHD. It appears that that is what has happened in this case. The offender's teacher did not realise that he was having difficulty studying, difficulty learning and difficulties at school which may well have related to his ADD condition. 5 The psychiatrist's report indicates that it is common for those with ADD to find drug use particularly attractive as a means of self medicating for their condition. The offender in those circumstances found himself as a user of cocaine. Since being arrested of course he has ceased drug use and, as is common with cocaine users, did not find that terribly difficult. It remains the case that the offender's decision to commence and continue drug use was probably related to his attention deficit disorder. That condition, however, has much less to say about the seriously criminal decision the offender took to supply drugs in the quantities he ultimately ended up supplying. 6 The offender was arrested on 6 August 2009 and has been in custody since that date. He has been spending his time in protection because his father used to be a prison officer. It used to be the law that there was almost an automatic reduction when a person served their sentence on protection but that is no longer the case. There is a possibility that the offender will serve the entirety of his sentence on protection and there is a possibility that that will involve harsher conditions of custody than would otherwise be the case. I will take those two possibilities into account in formulating the appropriate sentence. 7 The period of the offender's criminality was relatively short but there is nothing to indicate that he was other than an enthusiastic supplier of the large quantity of drugs that he did supply. There is nothing of which I have been made aware which suggested that the offender ever paused to consider at the time he was supplying the drugs whether he should do what the undercover officer asked him to do. There was nothing to suggest that he was reluctant in any way. 8 Having been arrested, having been put in gaol, the offender has given up drugs and reflected on what he has done. He has plans for the future, they involve him moving away from the area where he committed these offences, to stay with his grandmother in Newcastle, where he has employment lined up. He has agreed that he will see a psychiatrist and will trial some medication for his ADD. There are thus good prospects for the offender's future. If he does what he says he will do then he is unlikely to re-offend and he would most likely be able to put this period of his life behind him. 9 There are special circumstances in this case, they relate to the offender's youth and the fact that this is his first time in custody because it is his first series of offences. Ultimately, however, it remains the case that the offender must be punished, and significantly so, for his high level of drug supply. The offender is sentenced as follows. 10 For the offences of supply on 25 June 2009 and the supply on 6 August 2009, the offender is sentenced to imprisonment, I set a fixed term of eighteen months in each case to have commenced on 6 August 2009. For the offence of ongoing supply, the offender is sentenced to imprisonment, I set a non-parole period of one year to commence on 6 August 2010 and expire on 5 August 2011 and a head sentence of three years. For the offence of dealing with proceeds of crime I set a fixed term of imprisonment of two years to commence on 6 August 2009, and for the possessing the single tab of LSD the offender is dealt with under s 10A of the Crimes (Sentencing Procedure) Act. I dismiss the backup charge of possessing a prohibited drug. The result is that the offender is to serve a non-parole period of two years with a total sentence of four years. He is eligible to be released to parole on 5 August 2011. I order that the drugs are to be destroyed. ********** 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.