New South Wales District Court CITATION: Regina v Justin James Martin [2007] NSWDC 358 JUDGMENT DATE: 9 October 2007 JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ at 1 DECISION: Sentenced to three years and four months imprisonment with a non-parole period of one year and eight months. CATCHWORDS: Criminal law - Sentence - Supply prohibited drugs ongoing basis - Small scale enterprise - Assistance to authorities - Addiction to methamphetamine - No previous convictions - Good prospects of rehabilitation - Special circumstances LEGISLATION CITED: s25A Drug Misuse and Trafficking Act 1985 s23 Crimes (Sentencing Procedure) Act 1999 CASES CITED: Regina v Smiroldo (2000) 112 A Crim R 47 PARTIES: Regina Justin James Martin FILE NUMBER(S): 07/51/0067 COUNSEL: Mr McPherson for the Crown SOLICITORS: Mr Falcomata for the offender SENTENCE 1. I am sentencing Justin James Martin for the offence of supplying prohibited drugs on an ongoing basis. That is an offence under s25A of the Drug Misuse and Trafficking Act 1985 and carries a maximum of twenty years imprisonment. The drugs to which that particular section apply do not include cannabis and in this case the drugs which were being supplied on an ongoing basis were methylamphetamine. Mr Martin pleaded guilty, it is accepted, at the earliest opportunity. 2. Briefly this is what happened. Mr Martin was identified by the police intelligence as a supplier of amphetamines in the Armidale area. Police set up an operation involving undercover operatives. Those undercover operatives made contact with Mr Martin over a period of some days and he supplied them with drugs on each of the days. 3. On 11 September 2006 he supplied them with .2 grams of methylamphetamine in exchange for $80. On 12 September 2006 he supplied the same amount of drugs for the same amount of money. On the same day the undercover operative received a text message from Mr Martin indicating that he, Mr Martin, could organise the supply of further methylamphetamine from another source. This time the undercover operatives were supplied with .4 grams of methylamphetamine in exchange for $100. The next day, 13 September 2006, the amount was increased again. This time the undercover operatives were supplied with 31/2 grams of methylamphetamine in exchange for $750. The final supply was on 19 September 2006, once again the quantity was increased. The undercover operatives handed Mr Martin $1,300 and in return he supplied them with 7 grams of methylamphetamine. 4. On the same day they indicated that they would pay $2,400 for 14 grams. Some days later a transaction occurred in which that amount of methylamphetamine was supplied in exchange for $2,400. On the day of that supply, which was 26 September 2006, the police terminated the operation and arrested Mr Martin. He made full admissions in his record of interview after his arrest. 5. The offences, I have said, carry a maximum of twenty years. In Regina v Smiroldo (2000) 112 A Crim R 47, Hulme J, with whom Sheller JA and Dowd J agreed, discussed s 25A of the Drug Misuse and Trafficking Act , " It was introduced ", his Honour said, " to target dealers who had organised their affairs in such a way as to limit the full effect of the drug legislation by dealing only in small quantities at a time ." His Honour observed that the Minister said that the quantity of drugs supplied was, so far as s 25A was concerned, immaterial. On the other hand Hulme J pointed out that obviously, in accordance with sentencing principle, the amount or the quantity of the drug should be a relevant factor for sentencing. " It would be relevant to consider ", his Honour said at [14], " whether an offender, convicted of an offence under the section had sold three lots of 1 kilogram each or three lots of 1 gram. " His Honour went on to say in the following paragraph " The persons at whom s 25A is directed are those who appear to be indulging in a practice or business of supplying prohibited drugs. It must, it seems to me, be relevant to consider the magnitude of such an operation ." 6. In this case the magnitude of the operation was relatively modest. As Mr Falcomata, who appears for Mr Martin, pointed out, the overall quantity of the drugs involved were some 10 grams, that is twice the indictable amount. It was, he pointed out, significantly below the commercial quantity, which is 250 grams. It was, it seems, a relatively small scale street enterprise. In addition it is to be noted that in accordance with the evidence of Mr Martin, whom Mr Falcomata called to give evidence, the remuneration he received for his drug supplying activities was in the form of helping himself to the drug which was supplied, a process referred to as taxing. On the other hand it is clear that Mr Martin was prepared to increase the amounts which he sold in response to the demand of those to whom he was selling it. He did not appear to baulk at the opportunity of increasing the amount sold. 7. Mr Martin, so far as his personal factors are concerned, has pleaded guilty, as I have indicated. Not only that but he has told the police that he is prepared to give evidence against the person supplying him, a man named Shane Young. That person is facing trial and there is, amongst the exhibits, an undertaking by Mr Martin that he will give evidence against Mr Young. He confirmed that, at least in skeletal outline, in cross-examination by the Crown Prosecutor. 8. Mr Martin has no record of previous offending for this type of behaviour. His record contains only a couple of traffic matters. He is therefore not in need of a particularly strong degree of personal deterrence, which would be the case for someone with a criminal record which was relevant. 9. There was also tendered in the proceedings a pre-sentence report. It refers to Mr Martin's history of drug taking, which was confirmed by Mr Martin in his own evidence. In his own evidence he indicated that he had used alcohol and cannabis from a young age. He stopped drinking alcohol after his second traffic conviction. He smoked cannabis for about five years. He was drug free for some years from 2002, but in 2005 commenced to use amphetamines. He became addicted fairly quickly. 10. Whilst I am referring to his evidence, he has a child, a boy named Corey, born on 16 April 2005. The mother of his son has moved to Western Australia. She moved some five months ago because Mr Martin was in prison. It is clear that Mr Martin is attached to his son emotionally and misses the opportunity to see him. Mr Martin assures me that he will remain drug free and will not commit this sort of offence again. Whilst he has been in remand he has seen a counsellor concerning his drug activity and he is going to be or has been assessed for a residential drug rehabilitation facility called The Glen. 11. Returning to the pre-sentence report, it says that he, Mr Martin, " recognises that he will encounter different pressures upon his return to the community, and the environment of a residential rehabilitation facility may allow him to develop strategies which will assist him to remain drug free ." It noted that he appeared genuine in his expressions of remorse. It offered an opportunity to supervise Mr Martin and to monitor his progress and performance. It assessed him as suitable for both Community Service and Periodic Detention. He has demonstrated his interest in rehabilitation by the courses which he has undertaken in prison, as well as by a previous course which he undertook concerning persons who drive with the prescribed concentration of alcohol in their blood. I note that he ceased drinking alcohol after one of those offences. 12. Mr Falcomata called Ms Cheryl Jones, Mr Martin's mother. She noticed an improvement in her son since he has been in custody and made it clear that on his release, she will provide a home for him and support his rehabilitation. 13. So the question is what sentence I should impose upon Mr Martin. Mr Falcomata submits that a non parole period in the order of eighteen months would be appropriate, and the Crown Prosecutor does not add anything by way of submissions apart from reminding me to bear in mind the discount and the appropriate stage at which to apply it. 14. This is a serious offence created, as I said, by Parliament to target those who make it a business to sell drugs in the community. That is exactly the business that Mr Martin was engaged in. The fact that he did not derive a benefit in the form of money but instead in the form of drugs for his own use, does not reduce the fact that he was engaged in a business. The fact that he was being paid small amounts in the form of supporting his own drug addiction does reduce the criminality of the behaviour, nevertheless he was prepared to increase the amounts in accordance with demand. 15. Parliament, as I said, has fixed a maximum penalty of some twenty years imprisonment for this sort of offending. Taking into account that the overall amounts supplied by Mr Martin were relatively small and that the business enterprise was relatively small in its scale. In my opinion an appropriate commencing place before discounts for an offence such as this, is less than the halfway figure of ten years, and it seems to me that a figure of eight years overall imprisonment would be an appropriate starting place. 16. However Mr Martin has pleaded guilty and demonstrated remorse and has also indicated that he is prepared to assist the authorities. Mr Falcomata has referred me to s 23 of the Crimes (Sentencing Procedure) Act 1999 and I have taken into account the relevant factors there. In accordance with the authorities it seems to me that an appropriate discount is in the region of forty percent for his combined assistance and the plea of guilty, including remorse. This reduces the overall sentence to something over four and a half years. 17. However I also take into account that his prospects of rehabilitation appear to be quite good. He has demonstrated in the past his capacity for rehabilitation and his prospects on being released from prison are good because of his close and supporting relationship with his mother. In addition he is serving, so far, his custody in protection. That is because of his size, he is a relatively small stature, and his lack of confidence. He will therefore serve his term of imprisonment in somewhat harsher conditions or more deprived conditions than might otherwise have been the case. 18. Taking these various factors into account, I am prepared to further reduce the sentence to just over three years. I have in mind, as the overall penalty, a sentence of forty months. Mr Falcomata invited me to set a parole period which is longer than the normal statutory ratio. There are, I am satisfied, special circumstances which warrant this. In this case his need for supervised rehabilitation would be assisted or promoted by a longer than normal parole period. I am therefore going to set a non parole period of twenty months. The sentences will all date from the date of his arrest, 26 September 2006. 19. So Mr Martin I am going to sentence you to an overall period of three years and four months, that is forty months, commencing 26 September 2006 and concluding on 25 January 2010. I set a non parole period for the sentence, which is the minimum period that you have to be kept in detention, of one year and eight months, that is twenty months, to commence on 26 September 2006 and to expire on 25 May 2010. The balance of the term is also to be one year and eight months, that is twenty months, it will commence on 26 May 2008 and expire on 25 January 2010. The earliest date at which it appears that you will be eligible for release to parole is therefore 25 May 2008. So I do not make a parole order, do I gentlemen, because it is over three years. MCPHERSON: Yes that's right. FALCOMATA: Yes your Honour. HIS HONOUR: Nor do I fix conditions. I think that is probably all Mr Crown-- MCPHERSON: Yes your Honour. HIS HONOUR: --and Mr Falcomata. FALCOMATA: Yes. HIS HONOUR: There's no other orders I need to make. FALCOMATA: No your Honour. HIS HONOUR: Mr Martin do you understand you have been sentenced to three years and four months, do you understand that. OFFENDER: Yeah. HIS HONOUR: That is forty months, it all dates from when you were arrested on 26 September last year, half you must serve, the other half on parole, and that is provided the Parole Board releases you. I cannot order that, it is a matter for the Parole Board or the Parole Authority, but you will become eligible to be considered for release on parole on 25 May 2008 and your overall sentence after parole expires 25 January 2010, do you understand that. OFFENDER: Yeah. oOo 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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