New South Wales District Court CITATION: R v Gaddie, Justyn [2007] NSWDC 374 JUDGMENT DATE: 6 December 2007 JURISDICTION: Criminal JUDGMENT OF: Nicholson SC DCJ DECISION: Convicted. Adjourned 9 months S.11 conditional bail. Report to court on progress at 3 monthly intervals and other conditions. CATCHWORDS: Criminal Law - Sentencing - On-going supply prohibited drug - ecstasy - 2 Form 1 drug matters - 3 supplies within 2hour period - total 9 tablets - 1.70 grams - not an isolated incident - young offender - six year working history - family and girl fried support - alcohol issues. PARTIES: Regina Justyn Gaddie FILE NUMBER(S): 2007/9902 SOLICITORS: Crown: Mr L Crepaldi Accused: Mr P Linegar JUDGMENT 1. Justyn Gaddie is a relatively unsophisticated 20 year old. Prior to this offending conduct which brought him before the Court, he is what is known as "a cleanskin", that is, he has never been previously charged with or convicted of any offence. He is before the Court having been charged with and pleading guilty to an ongoing supply of ecstasy. There are two further offences which he admits pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1989 and asks that they be taken into account on a Form 1, namely, supplying three tablets of ecstasy at Castle Hill on 16 September and having in his possession a prohibited drug, namely, cannabis seeds totalling 21 grams on 16 February 2007. 2. Today begins the process by which he is to be held accountable for his criminal conduct. In this case there is a real question of whether his level of and reasons for dealing in drugs is such that a full time sentence may be called for. S.5 (1) of the Crimes (Sentencing Procedure) Act seeks to make imprisonment a sentence of last resort. In the spirit of that sub section, I am satisfied full time custody should be a sentence of last resort. 3. The issue for me is whether the claimed intentions of the offender to rehabilitate can materialise. If they could, then a sentence of full time imprisonment, in my view, would not be called for. If, on the other hand, he cannot succeed in rehabilitating, that is a significant factor I would need to take in account in my final task, or my primary task, rather, of ensuring the protection of the community, hence a full time period of custody may well be called for. His capacity to rehabilitate must be an issue when one considers the lifestyle the offender was leading at the time of his offending conduct. His evidence was that he was out at hotels Thursday, Friday and Saturday nights and that whilst out at hotels was consuming ecstasy and one can infer therefore, partying along. 4. It is necessary to set out the offending conduct, make some assessment of its objective criminality, examine the personal circumstances of the offender, and set out in detail the proposed resolution of this matter. Facts 5. The facts have been agreed and I will simply recite them as they are contained in exhibit A. On 5 April 2006, Deputy Commissioner Collins authorised a controlled operation authority authorising police to conduct the control purchases of prohibited drugs at Castle Hill Tavern. A special task force was set up for that purpose. One of the suspects identified was this offender. There were four other suspects also identified who, it would appear, were close associates of his also operating at the tavern. 6. On 16 September 2006, an undercover police operative for the purposes of these facts identified as UCO "A" attended the Castle Hill Tavern and engaged in a conversation with all of those suspects, or some of them, including this offender. This conversation took place: UCO "A", "I need some pills". One suspect, "How many do you need?" UCO "A", "How many do you have?" This offender, "I only have three left", UCO "A" "Is that all, oh well, that will have to do for now, how much?" Suspect "$30 each". UCO "A" "$30 each, that's a bit steep", This offender, "Don't worry, we will look after you at the next one". 7. The offender then got up and motioned for the undercover operative to follow him. The offender headed towards the car park entrance and shortly thereafter supplied the undercover operative with three cream coloured tablets with the "Hi 5" insignia contained in three clear resealable glad bags for $90. They were of course methylenedioxymethamphetamine of eighteen percent, weighing a total of 0.77 grams. That is the offence, as I understand it, which is the first offence on the Form 1. 8. The indicted offence or the offence to which the offender has pleaded guilty, is one of during a thirty day period between 6 December 2006 and 4 January 2007, the offender supplied amphetamine based drugs to an undercover police operative on a total of three separate occasions, all of them occurring on the evening of 7 December 2006. 9. At intervals of about 45 minutes, three undercover police operatives were the purchasers of those various deliveries. When questioned later in an electronic interview, (in fairness, it should be said some four months later), the offender stated that the money he received from the undercover operatives was used by him to purchase drinks throughout that night. The undercover operative B contacted the offender by phone, negotiated a supply of methylamphetamine tablets. There had been previous contact between B and the offender at the Castle Hill Tavern, but there is no suggestion in the evidence before me of any prior dealing. 10. During the telephone conversation, the offender directed undercover operative B to the Castle Hill Tavern. At 8 o'clock, undercover operative B attended the Castle Hill Tavern. Contact was made. The offender supplied undercover operative B with two white coloured tablets, with a Chanel insignia contained in two clear resealable bags. The sale price for the two was $50. They were methylamphetamine of five percent purity weighing 0.58 grams. At 9.32 the same night, undercover operative C attended the Castle Hill Tavern, there was renewed contact by undercover operative B, undercover operative B and C then negotiated a supply of methylamphetamine tablets. They were supplied by this offender, that is two were supplied by this offender for $50, again it was it seems from the same source, it had a Chanel insignia. That sale constituted 0.59 grams. 11. The third supply was at about 10.45 and contact on this occasion was made through undercover operative C, but the purchaser was undercover operative D. Much the same mechanisms appears to have been used, and again, two small resealable glad bags each containing a white cream tablet with the Chanel insignia were exchanged for $50. The subsequent analysis and weight of those was methylamphetamine weighing 0.57 grams. Those three transactions constitute the indicted offence. 12. Pursuant to a search warrant executed on 16 February 2007, police located in a bedside table drawer, a small resealable plastic bag containing a number of small seeds with a weight of 0.21 grams. The offender conceded after caution that the seeds belonged to him and that they were cannabis. He was arrested, cautioned and later participated in an electronically recorded interview at the Mount Druitt police station. He was taken back the four months to the supply on 16 September and he claimed that the tablets he had supplied had been earlier handed to him by one of the suspects. The offender claimed that he did not pay for them and used the proceeds of the sale to purchase drinks during the night. 13. In relation to the supplies on 7 December, he accepted that he had been approached by two females and a male and had sold tablets two for $50, at a price of two for $50. He agreed to the circumstances of the transactions as I have described them earlier. 14. In relation to those six tablets. he stated that he had been given a total of seven tablets by the suspect and he had taken one himself and supplied the other six on request at a price of $50 for the two. He stated that used the proceeds of the sale of the drugs to purchase drinks during the night and also stated that he did not pay the suspect for the drugs. He agreed that he and that suspect were fairly good friends. That concludes the agreed facts. 15. There was a medical report tendered from Doctor Pickering and a psychological report tendered from Doctor Alex Galandris, both of which sought to make a case for the use of drugs by way of self medication for conditions of post traumatic stress and of depression. What is clear from the evidence before me is that at the time this offender was describing symptoms to Doctor Galandris and Doctor Pickering, If one has regard to the lifestyle that he was living in September when the primary offence I am dealing with occurred, there seemed to be some inconsistencies with the account that he gave to the doctors and the lifestyle that he was living. I say that because I am not comfortable in finding that he was self medicating. Many young men his age use ecstasy as a party drug, as a recreational drug, and I cannot accept the proposition that all of them are in one way or another self-medicating, and I do not accept the proposition that this offender was self-medicating. My view is that he was out there to enjoy himself and was using the ecstasy for that purpose. 16. There was evidence in the interview, with which he agreed, that whilst he was using ecstasy, he was partying to such an extent that he needed to take breaks, go downstairs to the car park to cool off, and to re-hydrate by taking water with him. They do not appear to me to be the actions of a person who is seeking to hide from life, but rather, one who is seeking to enjoy it to the fullest. 17. I am satisfied he had been going to and involved with at some level, the distribution of drugs for a period prior to police targeting him as a suspect at the Castle Hill Tavern. The significance of that will be seen shortly, this was not a one-off offence. I should also indicate that I have some real difficulty accepting the proposition of the remarkable coincidence that he claims he was given tablets by one of the suspects on each occasion that a police officer encountered him, particularly in the absence of any explanation for the giving to him of those tablets by the other suspect, and in circumstances where I am satisfied that other suspect was dealing in drugs for profit. It would follow from that, as will be seen a little later on, that I am not entirely confident he has been frank with me whilst giving evidence in the witness box. Objective criminality 18. Many dealing in drugs fail to understand why their conduct should be classified as criminal. Firstly, many drugs are addictive. There are many in the community who are psychologically addicted to ecstasy. Drugs, including ecstasy, can also be biologically addictive. Addicts are people whose capacity to function in a community to a greater or lesser extent is impeded by virtue of their addiction. There are other health issues associated with the consumption of drugs, including ecstasy. 19. Money paid for drugs constitutes a huge transfer of wealth without any corresponding valuable, economic productivity. The money so transferred comes in the main from working persons and the unemployed, that is, from people who can least afford to lose their money in this way. Addiction is also associated with crimes such as break and enter, fraud and robbery. 20. Each one of these outcomes is an anti social consequence of drug dealing. It is for that reason that dealing in drugs is regarded by the community, and rightly regarded by this court, as criminal conduct of a serious kind. Dealing in drugs for financial gain requires, other than in exceptional cases, an offender to be incarcerated. 21. In this case, I am satisfied the offender had previously been dealing in drugs. The evidence before me establishes he was attending Castle Hill Tavern for some time before and that people were coming up to him and asking him for ecstasy. My own experience which some might say is not inconsiderable in terms of attending clubs, is that nobody has ever approached me when I was young or when I was old, asking whether I had any ecstasy on me. I can only conclude that this offender's reputation in the pub was that he would be prepared to supply or deal with ecstasy. 22. The evidence does disclose some prior dealing, such as the evidence is I cannot be satisfied he was other than a low level dealer. I am satisfied he dealt for modest or very modest profit. He claims to have received ten tablets from an associate, my own view is that that is probably unlikely, but if the tablets were given to him contrary to my own view, they were given to him as some reward associated with his drug dealing or co-operation with somebody who was drug dealing. Thus, the starting point is to recognise the ongoing dealing before me was not isolated incident. 23. The total drugs on the indicted charge is about 1.70 grams, and constitutes nine tablets. In those circumstances, even though it was for a modest financial gain, it does constitute trading for financial purposes and at least, unless it is an exceptional case, does require full time incarceration. But on any view, it would be towards the very lowest range on the scale of offending, that is to say, if there was to be incarceration, a sentence of nine months imprisonment with a finding of special circumstances would seem to me to be appropriate. Custodial History 24. After his arrest, the offender was bail refused for a period of three and a half weeks. He said that he shared a cell with a full on drug addict. He found the experience very bad, he was scared. He noticed what I might call bizarre behaviour in that the drug addict that he was sharing with was rocking back and forth. From my own experience I know that drug consumption and drug history is a very prominent topic of conversation and focus within the prison system. 25. Subsequently he was given bail with strict reporting and curfew conditions and his evidence was that he adhered to them rigidly. Subjective Matters 26. To his credit, he has been with Big W for a period now of I think about six years. His work puts him outside probably meeting and handling the trucks, unloading produce, is what I am imagining. He says that he has not taken any drugs. He does though still continue to consume alcohol, but acknowledges that as a problem. He is willing to abide by alcohol counselling, he is willing to abide by any conditions that are set in respect of s 11 bail. The other significant important factor is that he has formed a relationship with Alana Walton who also came and gave evidence. I am satisfied a genuine, fruitful and from this offender's point of view, healthy relationship exists, a relationship that would have, I imagine, a good impact on him, a positive impact on him. 27. He sees a career path in his present position that could lead to managerial status and perhaps even the manager. He says that there have been others who have pursued such a path with some success. He has support from one of the assistant managers there, Miss Winfield, who says that she has observed Justyn at work during her time at Big W, has particularly noticed a positive attitude to both his employer and the store customers. Her view is that he is keen and dedicated as an employee, is always prepared to take on extra hours, when offered, is friendly and helpful to his workmates and customers, and her experience is he is very trustworthy, not, you might think, one that I have come to at this point in time. He has taken on extra work that comes with Christmas, and she says, "gives you a hundred percent to get all his jobs finalised". I am satisfied in the workplace he is committed, and is fulfilled, enjoys his work, he says he does and I accept that he does. 28. His general background is that he is single, resides with his mother, and a younger half sister and half brother. He has not known his biological father and so far as I can see is the only man within the household. His mother believes that the absence of stable parental discipline and role modelling tended to attract the wrong type to him because he was not a leader but a follower. 29. He obtained his School Certificate in Year 10 but when he was 15 he left school because he was seeking full time employment. He probably does suffer, and I accept that he does, from ADHD, or one of those disorders, which may have made schooling more difficult for him than it would have for others. I noted in the psychological testing that he was assessed as above average intelligence. Watching him in the witness box, I am satisfied that is so. 30. As to drugs and alcohol, he was consuming alcohol when he was 16 and that perhaps is his primary addiction problem, if it be an addiction. There are occasions, I understand, frequent occasions, when he goes on binge drinking. At 17 he was smoking cannabis, his accounting for that was to ease the pain from a prior accident. At 19 he turned to amphetamines, dropping his interest in cannabis, he says, in which case I assume the pain must have abated because his consumption of ecstasy saw him on the dance floor dancing to a point where, as I say, he had to go and seek quiet time, coolness and a drink. He says that other than at work, he stays home most of the time and that he had severed all contacts to other than his family. Rehabilitation Issues 31. I suppose now is an appropriate time to deal with one of my concerns having heard his evidence. He said that he left his former associates and strictly adhered to his curfew and had not taken drugs whilst on bail. The evidence from his girlfriend Alana Walton was that she met him at the Castle Hill Tavern, a place where he had been associating with drug dealers, where he had been drinking and where he had been taking drugs. While it was not explored in evidence, the two propositions appear to me contradictory in respect of leaving his former associates, in respect of strict adherence to the curfew, and possibly in respect of his claim to be abstaining from drugs. 32. Doctor Galandris' report, as I say, puts him in above average intelligence. There is a diagnosis by him and by Doctor Pickering of post traumatic stress disorder. A symptom of post traumatic stress disorder can be forgetfulness. In his ERISP (Electronically Recorded Interview with Suspected Person), and before me, he has claimed a lack of recall frequently, but his lack of recall, whenever it occurs on analysis, appears selective in the sense that it claims a failure to recall when it suits his case to do so. Consequently, I do not have the degree of confidence in his evidence, including his claimed motivation for reform, that I otherwise might have had had his failure to recall been universal rather than specifically directed to unfavourable evidence. 33. It is for that reason that I have decided I need to observe him closely for the next nine months to give him a chance, even though he is in a category towards the lower end of the range of criminality, to demonstrate that his rehabilitation is to the extent that it can be assured. I have determined to stand these sentencing proceedings over for a period of nine months from today. I will set that date when I have got my diary. S.11 Bail Given 34. The first thing I will need to do in a minute is to convict him of this offence in order to give him the bail, but it will be conditional upon him entering into bail to be of good behaviour for nine months from today and to agree to the further conditions pursuant to s 11 of the Crimes (Sentencing Procedure) Act. Firstly, be of good behaviour; supply present address to the registry; notify the registry of the intended change in address; accept supervision by Probation and Parole and report to the Probation and Parole Office at Mount Druitt by 4.30 tomorrow afternoon; he will comply with all reasonable directions of the Probation and Parole; he would attend courses, treatment and programmes as directed by his case manager, they should be focused on drug and alcohol abuse and counselling. He is to refrain from the consumption of all alcoholic beverages for the period of the bail and he is further to refrain from the consumption of any illicit drug not prescribed. At his own expense or if he can get it on Medibank or whatever, but certainly if there is no other resource, at his own expense, the offender will attend random urinalysis, no more than four times monthly, that works out at least once a week, but it may be four times in the last week, he is not necessarily to know, random, no more than four a month. 35. If that random urinalysis is not oversighted by Probation and Parole, he is to provide proof of random urinalysis otherwise arranged to Probation and Parole on or by 28th day of each month. He will have to set up his own system, work it out with the local doctor's receptionist, or something like that, but it has got to be outside the family, does it not? LINEGAR: Yes. HIS HONOUR: It should be understood that the purpose of the random urinalysis is to provide urine for screening to analyse the presence of illicit drugs and/or alcohol. Any dirty urine or any failure to provide urine when requested is deemed a breach of the bail, and Probation and Parole is requested to notify me within 48 hours of such a breach coming to their attention, it may end up on 28th day of the month. He is to maintain employment with his present employer and do all he can to advance himself in that employment; he is to demonstrate a commitment to an interest, hobby or recreational pastime of his own choosing at each progress assessment. 36. Mr Gaddie, I convict you of the offence that you between 11.30pm on 6 December 2006 and 12.40am on 4 January 07 at Plumpton, in the State of New South Wales, did on three or more separate occasions during that period of 30 consecutive days, supply a prohibited drug other than cannabis, to wit, amphetamine for financial or material reward. Your bail is part of the sentencing proceedings, and for that purpose I acknowledge that I am taking into account in granting the bail also the two matters on the Form 1. 37. The bail will be on the conditions that I have just described and you will be required at three monthly intervals to come back to me and to demonstrate with evidence what you have done. Do not go out of the court and forget it. February 22 is a Friday, I am at Parramatta Court at that time, so that will be the first progress report. The next one June 6, I am still at Parramatta, so June 6. The final one will be September 5. The matter will be finalised on that day, assuming it is not finalised earlier. 38. In the event that there is a breach of bail, it would be finalised earlier. 39. I should have recorded in the reasons, and I will just have this added to them, that the way in which I see this finalising, assuming that the offender can establish the requisite essential circumstances by the quality of his rehabilitation is that a period of nine months of imprisonment will be imposed, special circumstances will be found, and the sentence will be suspended, probably without declaring a particular distribution between parole and non parole. CREPALDI: Your Honour, that final date of 5 September, where are we going to be sitting on that date? HIS HONOUR: The court to be advised. CREPALDI: Your Honour, I have a difficulty at this stage on 6 June, your Honour would be amenable to someone else from my office attending? HIS HONOUR: Yes, as long as you retain coverage of the brief. CREPALDI: Yes certainly your Honour. HIS HONOUR: Your bail will be given to you down in the office downstairs, you will get a copy of it, take that copy of it the Probation and Parole office tomorrow, and they will see what I want. They may ultimately get the judgment, but at least they will get some idea of what I want from that. Do you understand that? Anything else? CREPALDI: Yes your Honour, the matters on the 166 could be dealt with today, could be finalised today, couldn't they? HIS HONOUR: If you wish. CREPALDI: It's counts 2, 3 and 6 on the 166 certificate, they're the individual supplies that go to make up the ongoing supply. HIS HONOUR: You want them withdrawn? CREPALDI: They can be formally withdrawn today, your Honour. HIS HONOUR: Pursuant to s 166 of the Crimes Trial Procedure Act, leave is given to withdraw counts 2, 3 and 4. 40. The formal order I make is I stand this over for finalising on 5 September next, I grant s 11 bail pursuant to conditions. I list for progress reports 22 February 2008 and 6 June 2008. The onus will be on the offender to convince me of rehabilitation. Onus means your task to persuade me, and I am hoping you see that I am a difficult man to persuade. 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.