New South Wales District Court CITATION: R v Whitmore, Mattew [2009] NSWDC 45 HEARING DATE(S): 15/01/2009 JUDGMENT DATE: 23 January 2009 JURISDICTION: Criminal JUDGMENT OF: Nicholson SC DCJ DECISION: Convicted. s. 9 2 year good behaviour bond with conditions. CATCHWORDS: Criminal Law - Sentencing - supply prohibited drugs - ecstacy - 1.02gms - Form 1 matters - agreed facts - concession by Crown that other drugs in possession for purpose other than supply - self use - supply one off event - supply to end user - strong subjective features including compelling rehabilitation LEGISLATION CITED: Crimes (Sentencing Procedure) Act PARTIES: Regina Mattew James Whitmore FILE NUMBER(S): 2008/11/0212 COUNSEL: Crown: B Hughes Defence: M Grogan SOLICITORS: JUDGMENT 1. Matthew Whitmore started his adult life, having reached an elite level in swimming, competent in tennis and talented in music. He is described as having obvious ability, the potential to succeed in any of a number of different areas should he choose to do so. He is physically imposing and no doubt can be socially engaging. 2. At 4.20am on 27 September 2007, police observed him standing on a balcony dressed only in underwear, howling like a wolf. At the beginning of that month, police had found him naked, rambling on a roof, screaming incoherently. On 16 June he had been found in the lobby of his apartment building in an agitated, aggressive, screaming state. On 11 June he was found agitated, aggressive and hitting his head on the footpath. These are two pictures of Matthew Whitmore. One when he is drug-free, the other when illicit drugs have taken possession of his body and his mind. 3. On 27 September Matthew Whitmore admitted to having illicit drugs in his premises. He was arrested, placed in custody and granted conditional bail. Today he is to be held accountable for his criminal conduct in possessing prohibited drugs for the purpose of supplying them to his friend or friends. He has pleaded guilty on arraignment to a charge of supplying ecstasy. He asked that his possession of further ecstasy and other drugs be taken into account when he is being sentenced. 4. As sentencing judge then, it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for this offence, before this Court, committed by this offender, in this community. My initial task requires an assessment of the objective criminality of the offence before the court. I also need to have regard to matters personal to the offender. The starting point for such assessment requires me to make findings of fact from evidence before the Court relating to both the offence and the offender. My fact-finding task has been circumscribed in that the parties have tendered an agreed set of facts to which I shall shortly return. It is sufficient at this point that I remind the Court, a judge is not a party to the agreed set of facts. The tender of the agreed facts does not relieve the judge from his or her fact-finding responsibility, it simply limits the material from which the facts may be found. To the extent, if it be the case that the facts, as agreed, do not reflect the actual events that occurred, it must be remembered the Court can only find the facts from the evidence before it. 5. The offender's rehabilitation prospects will have to be assessed, even if looking through a glass darkly. Before any sentence can be made there are other questions that need to be asked, particularly in respect of deterrence, discounts, if a sentence of imprisonment is to be imposed, its length and the non-parole period. None of these can be commenced until the primary facts are found. What weight needs to be given in all of these matters against the imperative that sentencing should have as its primary focus the protection of the community, will also need to be determined. Facts 6. Police arrived in the early hours of the morning to the offender's Chalmers Street, Surry Hills flat. Whitmore was the sole occupant. They entered the building, knocked on the offender's door, he opened the door and invited the police inside. Concerned for his welfare, police entered the unit and immediately observed a quantity of drugs on the kitchen table and on the floor by the kitchen table, in plain sight. An ambulance was called, he was conveyed to St Vincent's Hospital for treatment in relation to an apparent drug-induced psychotic state. Police then left the unit, securing it, making an application for a search warrant shortly thereafter. 7. At about 8.45am, Matthew Whitmore returned to his unit, having left the hospital. He was arrested in relation to the drugs. He was cautioned, asked a number of questions, which were recorded. He admitted to having illicit drugs including about twenty ecstasy tablets having a Chinese symbol, costing him $600. He admitted to possession of about a gram of crystal methamphetamine [ICE] which he told police cost him $550. He was conveyed to Surry Hills charge room where he was introduced to the custody manager and informed of his rights. 8. The search warrant, earlier applied for, was granted and executed at about 11.15. During the search police located thirty-two tablets, subsequently analysed as being 3-4 methylenedioxymethylamphetamine, more commonly known as ecstasy. These were divided into four separate clear resealable plastic bags, eight in a bag with "M-A-T-T" written on a piece of paper in the bag; four in a bag with "W-A-D-E" written on a piece of paper within the bag. Both of those bags were located on the table. Ten tablets located also in another bag on the table and a further ten in a bag located on the floor near the table leg. All were pink in colour with the same Chinese marking. 9. The basis of the supplying of prohibited drug alleged by the Crown is that the offender had four ecstasy tablets in his possession for supply to a person named Wade. In an interview with the police, he admitted he had drugs for his personal use and had bought a couple for friends. While police are highly suspicious about the remaining twenty-eight tablets, apart from the quantity (4.62 grams), the fact that they were bagged separately, and the offender's previously stated admissions relating to his intent to supply friends, there is no other evidence available pointing to an intention to supply those tablets. I note that that is sufficient, in my view, to have established that the other tablets were intended for supply but, as will be seen later, I pay some regard to the concession made by the Crown. The appropriate weight of the four tablets is 1.02 grams which is a trafficable quantity, but if my memory serves me, less than an indictable quantity. Form 1 10. During the search of the apartment police located two small bags containing methamphetamine weighing 1.15 grams. He was charged with that and that constitutes the first matter on the Form 1. Police located three plastic resealable bags containing a total of twenty-eight tablets of ecstasy with a combined weight of 4.62 grams, that is the second matter on the Form 1 and I have already referred to them. Police located a plastic resealable bag containing one piece of paper with perforated sections of ten Discrete Dosage Units, which upon analysis was found to be lysergy (LSD) in the amount of ten Discrete Dosage Units. That constitutes the third matter on the Form 1. 11. Police located a number of items used in connection with illicit drug administration including a homemade water pipe, one glass smoking pipe, a bowl and scissors covered with green dry substance. 12. To understand the concession made by the Crown in respect of Wade, it is important to remember eight tablets were in a bag marked "Matt", the offender's given name is Matthew. Given the psychotic episodes I have earlier referred to experienced by the offender, I cannot rule out that the other unlabelled drugs were not for the offender's own use. It is in this sense that I can only be satisfied beyond reasonable doubt, that the drugs marked "Wade" were in his possession for supply. That appears to be the concession made by the Crown in any event, because all the other material is on the Form 1. 13. Plus, while the law deemed the quantity of drugs in his possession as being in his possession for supply, and therefore amounting to supply for the purposes of the law, upon analysis those drugs held for supply must be, given the concession of the Crown, the drug taking history of the offender and the items found associated with personal drug use, restricted to the packet marked Wade. In other words, both the indictment and the facts seem to support the four tablets only being related to the indictment. The balance of the material is to be taken into account when sentencing for that matter. Objective Criminality 14. From the facts as he finds them to be, the sentencing judge is required to assess the objective criminality of the offence as an essential step in assessing the seriousness of the criminal behaviour of the offender. That is done by comparing objectively the criminality exhibited in this case with criminality of offences of a similar kind. It is in this way that the objective seriousness of the criminality of these offences can be evaluated. The objective criminality has an important impact as one might imagine, on the overall sentencing outcome. 15. The courts and legislature have made it clear that drug supplying is an unacceptable criminal activity. It is not difficult to understand why drug supplying is a criminal activity. Contrary to the impression many offenders may well have, it is not a social, but rather an antisocial activity. The courts have long recognised that in assessing the objective seriousness of drug offences, it is necessary to have regard to the drug's potential for harm. Harm to others when inflicted by someone else is antisocial. Drug dealing is harmful to the community by its direct impact on those who purchase drugs, and its indirect impact on the community at large. Matthew Whitmore of all people, would have to recognise the damage that drugs can do to the fit, healthy and vibrant young men, let alone to others less fit, healthy or vibrant. For some, if not most, drugs such as those that I am concerned with can be addictive. Some are otherwise destructive, causing or contributing to mental health problems and/or aggression. 16. Supplying of drugs can lead to, create or sustain drug addicts. Drug addicts are human beings whose capacity to function and feel human is smothered to a greater or lesser extent by addiction and the other effects of drugs. The real essence of the criminal harm done by suppliers of drugs, is that in a greater or a lesser way, the disenabling of other human beings is accomplished by those who deal in drugs. In that sense then, drug supplying undermines public health. As I said, it also has an indirect impact on the community. 17. Associated with drug addiction are other forms of crimes such as armed robbery, break and enters, that is, loss of property to an owner, usually arising from that owner's productive efforts in the community. Associated with robbery and break and enter offences is the trauma, emotional and psychological damage to victims caused by intrusion into their homes and sometimes violence. The spending of money on drugs by addicts without any corresponding productivity by the drug dealers amounts to a monumental transference of wealth, usually from the already poor without any corresponding economic gain for the community. 18. Finally, drug addiction is a significant factor in so many young men and women being incarcerated in our prisons. While their youth slips away, unspent in places of joy, learning and beneficial experience, the prison culture becomes a factor in shaping their attitudes and devalues their future. 19. In this case, the quantity of drugs intended for supply measured on the potential for harm scale, must be at the very bottom of the range. Indeed the drugs for this offender's personal use, were capable of continuing the great harm he was doing to himself. They were, as I say, larger in quantity than the ones set aside for supply. Apart from the fact that the courts care about the well-being of each person including this offender, the costs of his drug abuse to the community is real. Significant police and healthcare costs have been spent on him as a consequence of his over-indulgence. 20. The supply was limited in its scope to a person known to Whitmore and, I infer, known to him as a user of drugs. There is no suggestion of any recruiting a non-user to drug use. The supply had not been accomplished. There was no financial gain. It was not a one-off event. The quantity of supply points to the supply being to an end user rather than to an on-supplier. This is one of those rare cases where the criminality is so far towards the lower end, that it does not call for a custodial sentence. The defence, in submissions on sentence, made clear it was seeking a section 9 bond. The Crown conceded a section 9 bond was not outside the range of options available to me. As will be seen, there is nothing in the subjective facts that disentitles to, and much that points to the appropriateness of a section 9 bond. Subjective matters 20. I turn now to the subjective matters. I am both entitled and required to do that. Not only am I sentencing for the criminal offence, but also I am sentencing this offender for it. Each offender coming before the court varies from other offenders who stand or who have stood for sentence. Circumstances personal to an offender may offer to the court some explanation and insight into the commission of this offence by this offender or some reason why a more or a less sentencing outcome is appropriate. 21. Matthew Whitmore is a single man aged thirty, sharing accommodation at Newtown. He is the elder of two siblings. At aged five his family moved to the Kempsey area where his father managed the local swimming pool for many years. Whitmore is described as having a very good relationship with both parents although he said they hold fairly conventional views and found it difficult to accept their son was homosexual. Mr Whitmore senior died in August of 2008. The offender's mother has experienced breast cancer although, reportedly, under control. The offender's relationship with his sister is not particularly close and was further strained when he disclosed his homosexuality. That he did when he was about twenty-one. 22. Given his family circumstances, his being raised in country New South Wales and his sports background, disclosing his homosexuality required personal courage. Not only did it require confronting personally his sexual orientation but he must have understood his coming out would be difficult for his family. His mother is suffering breast cancer, he says he contacts her almost daily. Education, Employment and Skills 23. Whitmore completed Year 12 at Kempsey High School. He was academically astute, being placed in the top five or six of his year. He was active in tennis and swimming, rating nationally in the four hundred metres, one of the glamour events. As I mentioned, talented in music. Post high school he attended Newcastle University studying Medical Radiation Therapy. Although scoring well, he abandoned his study after a year for a change of direction. At the UTS he studied Applied Chemistry and Forensic Science for eighteen months and then discontinued. He spent time working at a call-centre until made redundant in 2002. He returned to uni doing an Arts Degree in Media Communication but stopped two subjects short of his degree. His academic history suggests two things. He has an enquiring, active and versatile mind, but he appears to lack self-discipline and persistence. Currently he is working as a caption-writer on films, as I understand it, for the hearing impaired. He is looking for promotion. I am satisfied he has a good work ethic. General Health 24. He appears to be in good general physical health with a physique representing years of swimming training. Mental Health Issues 25. Whitmore has been under the clinical care of Dr Samuel Roberts, a clinical psychologist since November 2007. He presented with a history of anxiety, depression, low self esteem and drug induced psychosis. Dr Roberts' current diagnosis is major depressive episode, substance abuse in full remission and substance induced psychotic disorder which I also understand is in full remission. He is currently medicated for his depression on Efexor which he says is working well. Recent stressors identified by Dr Roberts include his mother's diagnosis of breast cancer, his father's diagnosis of cancer affecting the spine and subsequent death. Although not diagnosed, it is likely the present criminal proceedings is also a significant stressor. Dr Roberts notes Mr Whitmore has confronted these stressors, his mood has remained stable and he has managed these circumstances appropriately. Drugs 26. Matthew Whitmore has a history of serious poly-drug abuse. Since 1998 when he first came to Sydney, he commenced with cannabis, reaching a point of smoking fifty or sixty cones daily. That amounts to a monumental consumption. While the immediate impact may have been one of euphoria, its accumulative impact is menacing indeed. In some, its accumulated effect is paranoia, aggression and/or serious mental health problems. I note that this offender appears to have at least two of the three and I would not be surprised if it was a three out of three. 27. He told Probation and Parole his use of other drugs had largely been confined to "party-type drugs" although on the earlier occasions of psychosis I note he was not at a party. He said that the party-type drugs were used by some members of the inner city-gay community. I accept that there are some members of the inner city-gay community using drugs, but I note that overwhelmingly most of the gay community do not find it necessary so to do. In the "party set" this offender's drug of choice appears to have been GHB, a drug that sedates the central nervous system followed by a methamphetamine which stimulates the contrary effects of GHB. 28. Somewhat unaccounted for on the review of drugs by Dr Roberts was the LSD. There is no mention of the use of that drug. That either suggests non-full disclosure, an oversight by Dr Roberts or that the drug was being held for some purpose other than personal use. It seems to me to be the options there. Character and Criminal History 29. Matthew Whitmore is a thirty year old intelligent man with great potential, I have already made reference to a passage in the pre-sentence report of him having the obvious ability and potential to succeed at a high level in any one of a number of different areas. To date he has displayed poor self-discipline in several aspects of his life. That lack of self-discipline became problematic and criminal in his approach to drugs. In more recent times however, there has been a change, he appears to have made substantial changes for good in his life. He has been seeking psychiatric assistance as I say since November of 2007. He ceased drug use using the "cold turkey" method, one requiring determination, courage and self-discipline. He has no prior criminal conduct recorded against him, he is entitled to leniency on that account. His being charged with this offence may well mark an important turning point in his life. He is gainfully employed in an activity that must be fulfilling for him and valuable for the hearing impaired. 30. His plea was entered at an early time but was entered before this Court. He was committed for trial. Nonetheless the utilitarian value of the plea is noted. Of course had the plea not been entered, the case of deemed supply was strong. The benefit given for the plea is reflected in the overall result. Attitude to Offence 31. I am satisfied he is profoundly remorseful. He looks upon his criminal conduct as a low point in his life. He has worked hard to rehabilitate. I note that section 9 is a penalty provided by the Crimes (Sentencing Procedure) Act. The section 9 bond that I am giving will be one of two years. Given the criminality in this offence, it seems to me that I can point to a two year section 9 bond as having a deterrent effect because for two years the question of his liberty is still, in a sense, unresolved. By that I mean that in the event that he should re-offend, my view as to his rehabilitation prospects will have altered by virtue of the re-offence and a more severe penalty may well then be appropriate. 32. Just before I get to the more formal part, I have these conditions. Continue treatment with Dr Roberts until Dr Roberts says that a treatment regime is no longer required. Supervision by Probation and Parole for the first six months for the purpose of demonstrating to them that he has maintained treatment with Dr Roberts, no other reason. That will be done by simply producing a receipt or something and it is only for that purpose. They are my eyes and ears, in other words, I have no way otherwise of knowing. Remain alcohol free for six months. Drug free I do not have to make an order because it would be a breach of the bond anyway. Will you stand up please. 33. Matthew James Whitmore, you are convicted of the offence that you on 27 September 2007 at Surry Hills supplied a prohibited drug, namely 3-4 methylenedioxymethylamphetamine or more commonly known as ecstasy. I take into account the three matters on the Form 1. Instead of imposing a sentence of imprisonment upon you, I make an order directing you to enter into a good behaviour bond for two years from today. The terms of the bond are these: * That you will be of good behaviour * That you will continue with treatment from Dr Roberts until such time as he says a treatment regime is no longer required. In the event that you and Dr Roberts need to part company, a psychiatrist of equivalent qualification is required. * You are to accept supervision by Probation and Parole for a period of not less than six months and thereafter at the discretion of Probation and Parole, solely for the purpose of reporting to them your attendance at Dr Roberts and establishing as a fact, that that attendance has occurred. * You are to remain alcohol free for six months from today. 34. That bond can be entered on the fourth floor I think it is. Thank you, I will get the papers up there as quickly as I can. Good luck Mr Whitmore, you can make a great thing of your life I think if you can stay off the drugs, all right, and a bit of self-discipline. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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