District Court New South Wales Medium Neutral Citation: R v French [2011] NSWDC 68 Hearing dates: 5 May 2011 Decision date: 05 May 2011 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The offender is convicted and referred for assessment as to his suitability for an Intensive Correction Order Catchwords: CRIMINAL LAW - Sentence hearing - drug supply - possession of drugs - 1-benzyl piperazine - suitability for Intensive Correction Order Cases Cited: Clarke v R [2009] NSWCCA 49 - R v Hemsley [2004] NSWCCA 228 Category: Sentence Parties: The Crown Jonathan French Representation: Director of Public Prosecutions Legal Aid Commission File Number(s): 2010/00064362 Judgment 1HIS HONOUR: Jonathan French was picked up by police with a substantial quantity of drugs in his possession on 12 March 2010. Mr French gave evidence as to the circumstances which led to him being in possession of those drugs. He had two friends, one of whom wanted to sell drugs and another of whom wanted to buy drugs. Mr French did not want to be involved but the purchaser insisted that he become involved because he did not trust anyone he did not know. At first Mr French said that he would not become involved. Eventually he reluctantly did so. 2He went to Chatswood where he was given a bag of drugs containing about 785 tablets. He thought they were ecstasy but in fact they contained a broadly similar drug, 1-benzyl piperazine. He took possession of the drugs and went to meet the purchaser. As he and the purchaser were walking to where the money was, police, who were conducting patrols in the area, noticed them. The two men appeared to be acting suspiciously, one of them, the friend, was also known to be involved in drug supply activities. Accordingly, the police approached the two men then Mr French, the offender, made a very slight effort to get away before giving up; the friend made a more substantial effort but he was ultimately arrested as well. 3Police then searched the offender and discovered the bag that I have mentioned. He told police that he had been asked to sell the drugs for $12 or $12.50 each. He was arrested and taken to the police station and remained in custody for 109 days until he was granted bail by the Supreme Court. 4There is no suggestion that Mr French was involved in any other form of drug supply activity at any other time in his life. He gave evidence that he was a drug user, and I will return to that evidence later, but I need to emphasise that the evidence suggests that this was an isolated occasion on which the offender reluctantly became involved as an intermediary and courier in a significant drug supply transaction. 5Of course this raises the issue as to whether the offender was trafficking to a substantial degree. For many years the law has been that those who traffic in drugs to a substantial degree should expect to receive a fulltime custodial sentence unless there are exceptional circumstances. Of course that principle was first stated at a time when some forms of alternative to fulltime custody which now exist were not available, I have in mind the recently introduced Intensive Corrections Order option. Another thing I want to say about the principle, to be found in Clarke v R [2009] NSWCCA 49, is this. The law, for obvious reasons, likes bright lines, but, in truth, sentencing is a very discretionary activity. I am encouraged by the authorities to decide whether the offender was trafficking to a substantial degree and, if so, whether there are exceptional circumstances justifying the imposition of a sentence of other than full-time custody. Expressed that way there is the temptation to think that what is involved are two separate decisions. But in truth, the ultimate decision as to the form of sentence which should be imposed upon an offender involves a discretionary consideration involving both questions. 6With that qualification I am able to find that the offender was not trafficking to a substantial degree. It is not the law that, simply because this was an isolated act of supply, the offender cannot be said to have been trafficking in a substantial degree and, indeed, the quantity involved - a commercial quantity of the relevant drug - would tend to suggest a substantial trafficking. But in this case, taking into account the offender's role and the reluctance with which he performed that role, I am able to find that he was not trafficking to a substantial degree. This means that I do not need to find that there are exceptional circumstances justifying a sentence of other than full-time custody. But I can say that even if I am wrong and the offender was trafficking to a substantial degree, such exceptional circumstances exist, as I will shortly demonstrate. 7Of course this matter is a very serious one. The supply of a commercial quantity of drugs carries a maximum penalty of twenty years and a standard non-parole period of ten years. In this case the standard non-parole period is not of direct application because of the plea of guilty but it remains as a guidepost to the sentence I should impose. 8Objectively, the matter involves an offence which is significantly below the middle of the range of objective seriousness. The quantity involved was just over the 250 gram cut off which takes the matter into the commercial quantity area and the role played by the offender, reluctantly as I have emphasised, both suggest the finding that I have made, that is that objectively the offence is significantly below the middle of the range of offences of this type. 9The offender is a relatively young man. Another bright line in the law involves what happens after an offender turns eighteen. Once that happens the offender is to be treated, in broad terms, as an adult, but that does not mean that he has the maturity that later develops. The offender was in his very early twenties when he committed this offence. He had been brought up by loving and law abiding parents. He reported he had a happy childhood. He has three siblings, none of whom have been in breach of the law. He has a girlfriend with whom he has been in a committed relationship for a number of years. It is most unusual therefore to see a person with that background before the courts for offences such as this. It appears, however, that the genesis for this offence arose out of the offender's involvement in drugs and his friendship with people who were drug suppliers and drug purchasers. 10As the offender was growing up his parents noticed behaviour which was of concern to them. The offender was thus diagnosed with attention deficit hyperactivity disorder. He has also been diagnosed as suffering from bipolar disorder and at times, substance abuse disorder. That combination of factors has led to the offender being much less able than someone who does not suffer from those conditions to reason rationally about the consequences of his actions. 11In the lead up to this offence the offender, who is a keen and talented musician, was working on a particular recording project. He was anxious to see it completed as efficiently as possible. He was sleeping much less than he ordinarily would. He was using his ADHD medication, Dexamphetamine, to excess to assist him to stay awake and using a substantial quantity of recreational drugs at the same time. In those circumstances, the psychiatrist, who has been treating the offender, Dr Nicholas Cassimatis, formed the conclusion that: " it would appear that he was in a hypermanic episode with grandiose ideas, need for less sleep, distractible, tangential in his thinking, gullible and adventurous. His judgment would have been impulsive and poor. The abuse of medication and other drugs would have made his decision making and behaviour more obvious, incompetent and risky. In my view that at the time he would have been experiencing a hypermanic episode bipolar disorder where his judgment was impaired, his behaviour was disinhibited and reckless ". 12It is to be noted that that report was tendered by Ms Coultas-Roberts for the offender and the Crown did not require Dr Cassimatis for cross-examination. In those circumstances I will accept what the doctor says which is a significant matter in assessing the moral culpability of the offender. I repeat, his judgment would have been impulsive and poor and his behaviour was disinhibited and reckless at the time. 13The way in which mental illness affects a sentence on an offender are well known. Of course the mental illness may affect the offender's moral culpability where it contributed to the commission of the offence. As I hope I have explained, I find that to be the case in the present matter. Secondly, the mental illness may render the offender an inappropriate person on whom a sentence reflecting a large component of general deterrence should be imposed. Of course personal deterrence remains important. Thirdly, a custodial sentence may weigh more heavily on a mentally ill person. Each of the factors identified by Sperling J in R v Hemsley [2004] NSWCCA 228 is applicable in the present case. 14I mentioned before that the offender spent time in custody before being released on bail. Not only did the offender spend about three and a half months at Silverwater prison, where he was exposed as a young vulnerable man to prison life with all its terrors and fears, but upon release from custody the offender was subject to bail conditions which were reasonably stringent. In particular he had to report daily to the police and was subject to a curfew from 7pm to 7am. That curfew has recently been eased on Thursday nights because the offender has been able to obtain some work performing as a musician at a city hotel. But for many months he had to be home every night from 7 o'clock in the evening to 7 o'clock in the morning. Police did their job appropriately and checked every now and then that he was obeying the curfew and found that he was. So in assessing the sentence to be imposed upon the offender, I am able to take into account that he has already spent some time in custody giving him what used to be described as a "short, sharp shock" and has been subject to some form of quasi custody because of the daily reporting and more importantly, the curfew conditions to which he was subjected. 15The offender has displayed his remorse for what he has done in Court, to his psychiatrist and to his family. I accept that he is remorseful. I accept that he has put behind him his use of illicit drugs. Whether that will remain the case is difficult to determine, after all being at home with his parents every night has not given him much opportunity to use illicit drugs and when he is ultimately able to go out at night, he will find temptations - especially working in the music industry - which he must resist. But he, I am satisfied, desires not to use illegal drugs in the future. 16The offender does have a criminal history and, in fact, he was on a bond for an offence of obtaining benefit by deception at the time of this offence. He explained the circumstances in which he committed that offence which flowed from other offending involving him driving without a licence. The offender's mother suggested that the offender had learnt a particular lesson through being arrested in this case. He was starting to commit offences fairly regularly without much thought of the consequences. Perhaps those offences are also related to the mental disorders from which he suffers. But now that he has seen for himself in a very concrete way what happens to those who commit criminal offences of a serious kind, I would expect that the offender will be personally deterred from committing further offences of a serious kind in the future. 17Ms Coultas-Roberts' submission ultimately is that whilst this matter clearly requires a custodial sentence, it should be one where I refer the offender for assessment for an Intensive Corrections Order. The Crown challenges that on two bases; firstly the principle that requires a full-time custodial sentence in this matter, whether that is because the trafficking was to a substantial degree or because, even if it was not, there are no exceptional circumstances. I have already dealt with that issue. And the Crown also says that in any case I could not impose a custodial sentence of less than two years, which would make the offender ineligible for any alternative to full-time custody. However, in this case I am satisfied that a sentence of no more than two years is appropriate. This would not be the case were it not for the offender having already served some time in custody and then a lengthy period on bail during which his movement and liberty was restricted. But I am able to take those matters into account and determine that any remaining period of custody for which the offender is required is likely to be no more than two years. 18An ICO would provide considerable benefit to the offender's rehabilitation. It would also punish him in a significant way. True, this would not be as much as sending him back to full-time custody, but an ICO is far from a 'walk in the park'. An ICO has one significant advantage over full-time custody as far as the offender and the community are concerned. It does much more than a custodial sentence to promote the offender's rehabilitation. That is not only of benefit to the offender but of benefit to the community as a whole. If the offender can be rehabilitated so that he does not commit further offences in the future, then the offender benefits of course, but so does the community. 19For those reasons the order I make is this: The offender is convicted. I am satisfied that no form of sentence other than imprisonment is appropriate and that the sentence will be no more than two years. The offender is therefore referred for assessment as to his suitability for an Intensive Correction Order as a means of serving the sentence. His bail is continued for that purpose and I will list the matter on a date suitable to the parties for review of the ICO assessment report. ********** 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: 25 July 2011