R v BRANNIGAN [2012] NSWDC 23

District Court New South Wales

Medium Neutral Citation: R v BRANNIGAN [2012] NSWDC 23 Hearing dates: 17 February 2012 Decision date: 17 February 2012 Before: Berman SC DCJ Decision: Convicted and ordered to perform 400 hours community service. Catchwords: CRIMINAL LAW - Sentence - Knowingly take part in a supply - Cocaine - Immediate admissions Category: Sentence Parties: The Crown Bradley James Brannigan Representation: Mr Di Francesco - Offender Director of Public Prosecutions File Number(s): 2011/314891

SENTENCE 1HIS HONOUR: Bradley James Brannigan became involved in drugs. He started using them socially, but then began to use them more and more often as a means of relaxing. He developed a bit of a habit. He was able to give it up at some stage but began using again. He had a friend called Spalaviero. Although when he first met him he did not realise that Brad Spalaviero was a drug dealer, he worked that out. He nevertheless remains friends with him. One evening he discussed with Mr Spalaviero and another man called Zachary Russell a drug deal that was going to take place the following day in Warriewood. He agreed to participate in that drug deal. One of his functions was to attest to the purity of the drugs to the purchaser. He was to say to the purchaser that the cocaine was eighty per cent pure. 2Many references have been tendered by family, friends, and work colleagues of the offender. They all seem to be based on the assumption that that was the limit of the offender's involvement, that is his involvement was limited to attesting to the purity of the drugs. Those references are all based on a false premise. The offender did more than that. He became more involved in the drug transaction than the referees seem to believe. 3The offender provided transport to Mr Spalaviero. They went to the location where the drug supply was to take place in the offender's ute. He well knew that a significant quantity of cocaine was involved. He saw the cocaine in a wrapped form. He was able to work out how much was involved from the size of the package. He accompanied Mr Spalaviero throughout the drug supply transaction which occurred the following day. Mr Russell hid the drugs in the toilet. This offender and Spalaviero were told that that had been done and then went into the café where they met a man known to Spalaviero. The supply of six ounces of cocaine was discussed for an agreed value of $51,000. It was at that stage that the offender told the male the cocaine was about eighty per cent pure, but the offender's involvement did not cease. After this discussion the purchaser told the offender and Spalaviero that the money was in his car. Spalaviero asked the purchaser to give the money to Russell. The purchaser got the cocaine from the toilet and it was at this stage that the offender and Spalaviero left the café and approached Russell. It was the offender who told him that the money would be coming from the purchaser. So, the offender got much more involved in this transaction than his referees understood to be the case. 4A short time later they were all arrested. The offender was taken back to the police station where he made immediate admissions as to what he had done. The drugs were seized. It was discovered that there was 167.4 grams of cocaine in a package. It has a purity of about forty-two per cent. The estimated street value I am told is about $72,000, not too far different from the purchase price that had apparently been agreed. 5The offender has no prior criminal history, although of course one qualification to that is his regular use of an illegal drug in the years leading up to this offence. 6The question becomes at first, whether the offender was trafficking to a substantial degree. If he was, then the authorities require that a full time custodial sentence must be imposed unless there are exceptional circumstances. I will say immediately that I do not see any exceptional circumstances here, but I also do not accept that the offender's conduct can be categorised as trafficking to a substantial degree. He was the junior partner in the transaction, acted on this single occasion at the direction of Mr Spalaviero and the nature of his involvement can be perhaps best illustrated by the fact that he was charged and pleaded guilty to an offence of knowingly taking part in a supply rather than supply itself. So that conclusion means that a full time custodial sentence is not required. It may, nevertheless, be appropriate, which is something which remains for consideration. 7The offender was born in 1988 and brought up in a close and loving family on Sydney's northern beaches. He lived at home at the time of this offence and continues to live there with his family. The family spend a great deal of time together, sharing a common interest in water-skiing. The family spend most weekends at Wiseman's Ferry. The offender has a relationship of recent origin. The Probation and Parole Service contacted the offender's partner who expressed disdain for Mr Brannigan's former lifestyle and reported significant positive changes which have persuaded her to remain with the offender. 8He left school at Year 10. After that he qualified as a carpenter and has been primarily self-employed. The evidence would suggest that the offender is a hard worker and has a positive attitude towards his career choice. 9Since the offence it is undeniable that there have been significant changes in the offender and his conduct. People that know him report that he is much more subdued as he understands, I accept, the weight of the burden that is now placed upon him and which he has placed upon his family. He understands, I trust, the real risk that he would go to full time custody and, indeed, I trust he has heard the Crown submission that that is the only possible outcome of today's sentencing proceedings. 10The evidence would suggest that since being charged with this matter he has given up his drug use. His parents have, to some extent anyway, taken a bit more control over the offender's life than ordinarily people of his age would expect. Of course, that is entirely appropriate given the circumstances faced by the offender today. Amongst many things that his parents have done, they have required him to undergo regular urinalysis tests. Those which have been provided to me, and there is no suggestion that there are others I have not seen, reveal that he has abstained from drug use. That, of course, is an important matter as regards the offender's future. 11The offender is said to be remorseful, although his remorse seems to be focussed on the effect of his criminality on himself and his family. He recognises the effect of what he has done on his family and is sorry for that. There seems to be less of an understanding of just how bad his decision to assist in the supply of a large quantity of cocaine really is. 12The offender's predicament today is a very good illustration of one of the dangers involved in cocaine use. Not to put too fine a point on it, it is addictive, it is expensive and often drug addicts will commit crimes in order to supply their addiction. Sometimes, like this offender, they supply and become involved in supply for free drugs. Other drug users break into peoples' homes. Other drug users rob innocent members of society, all so that they can obtain money to satisfy an addiction. I do not believe the offender really understands how serious his conduct was and the effect that drug supply has on the community in general. 13It is a matter of good fortune in this case that the drugs themselves did not actually reach the ultimate end users, having been seized by police upon the offender's arrest. 14The offender, consistent with his immediate admission of guilt to the police, pleaded guilty at an early stage and so the sentence I will impose upon him is twenty-five per cent less than it would otherwise have been. 15The offender has good prospects of rehabilitation. His positive work ethic and his family support are important matters in making that finding. He has ceased to associate with people he was associating with before and his friends and socialising are of a much more positive nature. 16The question becomes what sentence to impose upon the offender? As I said, had I found that he was trafficking to a substantial degree, I would have imposed a full time custodial sentence consistent with the authorities because I do not believe that there are exceptional circumstances in this case. As I also said earlier, just because I find that he was not trafficking to a substantial degree does not mean that a full time custodial sentence is inappropriate. 17I take into account that the offender was certainly not the prime mover in this offence and that this appears to have been an isolated involvement in an act of supply. I take into account that this was the offender's first offence and that he appears to be a different person today from the person he was on 27 September last year. 18One of the most basic questions regarding the choice of sentence to impose upon an offender is this, is a custodial sentence required? If the answer to that question is yes, then other questions arise, the length of the sentence and then, if relevant, what form a sentence should take. I am back at the first question. Is a custodial sentence required? I do not believe that it is. The offender's subjective circumstances, which I have outlined, and the nature of the offender's objective criminality are such that the Crown has not persuaded me that a custodial sentence is required. 19I note that the offender was assessed as being suitable to perform community service. I therefore sentence him as follows: The offender is convicted. He is ordered to perform 400 hours community service. He is to attend the Dee Why District Office of the Probation and Parole Service within seven days. 20Now Mr Brannigan please stand up. I am required to explain the sentence to you. You are required to perform 400 hours service to the community. I do not know what form that will take but it will be of assistance to someone in the community that you are doing that. Let me tell you what happens if you do not do what you are required. The Probation and Parole Service will contact me and you will be back here in a courtroom in this building looking at me, not another judge, you will be looking at me. I can guarantee that if you have not taken advantage of what the Crown is no doubt thinking is a very lenient sentence, (and I suspect your lawyer might think that too), if you do not take advantage of this lenient sentence, then that is going to say to me quite a bit about your character and not in a positive way at all. If you do not complete this community service order without any trouble at all, I think it is quite likely you will be going to gaol, do you understand that? 21OFFENDER: Yes.