District Court New South Wales Medium Neutral Citation: R v Roland [2012] NSWDC 200 Hearing dates: 7 September 2012 Decision date: 07 September 2012 Before: Berman SC DCJ Decision: Referred for assessment as to his suitability to serve his sentence by way of an ICO Catchwords: CRIMINAL LAW - Sentence - Supply prohibited drug Category: Sentence Parties: The Crown Bradley Charles Roland Representation: Mr K Dailly - The offender Director of Public Prosecutions File Number(s): 2012/5777 SENTENCE 1HIS HONOUR: A concert was held on 1 January this year. It was the type of concert where young people attend. The type of concert where drugs, in particular ecstasy, are often consumed by concert goers. Not surprisingly, police are aware of that circumstance. They were patrolling the entrance to the Field Day Music Festival on New Year's Day this year when they saw the offender, Bradley Roland, coming towards them. 2Mr Roland stands out in the crowd. He is six foot seven, and weighs, he says, 130 kilos. He was also making his appearance obvious by pushing past a number of people. Police watched as he stopped and picked up a packet of cigarettes, conducted a U-turn, and headed away from them. Police decided to speak to Mr Roland. 3It soon became obvious that he was under the influence of a prohibited drug. His pupils were constricted, and he had a small amount of white substance in the corner of his mouth. 4Police told the accused he was going to be searched. They took hold of the cigarette packet they had just seen Mr Roland pick up from the ground. They looked in it and they found twenty-three tablets which proved to be ecstasy. The offender was arrested. 5They also found a black Nokia mobile phone on him. They looked at the text messages. They found text messages clearly relating to the offender's supply of ecstasy tablets. 6He was charged with supplying a prohibited drug and was granted bail. He spent no time in custody. He pleaded guilty to that charge at the earliest opportunity, so the sentence I impose upon him will be twenty-five per cent less than it would otherwise have been. 7Although not in the facts it has been agreed by the Crown and Mr Dailly, who appears for Mr Roland, that the text messages commenced on 20 December and were from three different mobile telephones. 8The offender says that some of the drugs in his possession on his arrest were for his own use. He says that because of his size he needs to have more drugs than a smaller person to get the same effect, but he acknowledges that he intended to supply at least some of the drugs in his possession on arrest to friends and associates. He acknowledged of course also that the text messages relate to earlier acts of supply by him. 9So for a period commencing around late December and ending on 1 January the offender would supply ecstasy to his friends, and associates, he says, about six of them. He says that this was because he had developed a drug habit, and one way of funding that was to become involved in drug supply. 10The immediate question which arises is whether the offender was trafficking to a substantial degree. If he was, then a full time custodial sentence is required unless there are exceptional circumstances. There are no exceptional circumstances so if the offender was trafficking to a substantial degree it would necessarily be the case that I would send him to prison, but I am not satisfied that he was trafficking to a substantial degree. Although there were supplies on earlier occasions it is clear that they were for relatively small amounts, a relatively small number of people, over a relatively short period of time. Were any one of those three factors not present the outcome for Mr Roland would definitely be a full time custodial sentence. 11Of course the finding that I have just made does not mean that he should not go to gaol anyway. Whether he does or not depends on other matters which I will now mention. 12The offender was brought up in the Eastern Suburbs of Sydney. His parents separated for a time, but are now back together. They have a Polish background. The offender's father has struggled with mental illness for a number of years, and his mother has struggled with fitting into Australian society and is unhappy as a result. 13The offender had a lot of opportunities which were denied other members of society. His grandparents were able to fund his attendance at various private schools. I say various private schools because a feature of the offender's upbringing is that his misbehaviour led to him moving from school to school, sometimes involuntarily when he was asked to leave. 14He was, at least partly because of his size, successful in sport, and he had an ambition to play college basketball in the United States of America. 15He wanted a scholarship but did not get one even though another Australian basketballer of his age, whom the offender considers was an inferior player, managed to get such a scholarship. It is fair to say that the offender has been affected by his failure to get such a scholarship. 16He told me that it was out of character for him to be involved in drugs. The offender probably believes that, but the objective evidence would suggest what he says is simply not the case. There have been many periods in his life when he has been a user of drugs and if we include alcohol there have been even more. 17He is described by others, not in these terms but in words I will use, as a fitness freak and so the offender probably believes that drug use is out of character because he looks after himself and his health. But he has a conviction in New South Wales for drug possession. He was found guilty of an offence in Queensland for drug possession, although it did not result in a conviction and he has told others there have been times in his life where he has used drugs, including alcohol as well. 18The offender is the sort of person who, absent assistance, will probably relapse into drug use regularly throughout his life. There is of course the associated risk, as was present in this case, that if he starts using drugs, he will start dealing them as well. 19The evidence would suggest the accuracy of what the offender said, that he was only selling drugs in order to fund his own drug use. There is no evidence of a lavish lifestyle. Indeed, the mobile telephone used by the offender seems to have been a rather cheap one. 20The most important subjective feature regarding the offender concerns an aspect of the psychologist's report. It is obvious that the depression has been a constant feature of the offender's life for many years. Sources of that illness are probably varied, including his father's mental illness, his physical size, making him stand out from the crowd, problems caused by his behaviour as a student and failure to achieve what he had hoped to achieve. Whatever the causes of the offender's depression, it seems undeniable that he has suffered from depression for many years. In those circumstances the offender's resort to drug use can be seen as a way of elevating his mood. The offender's decision to supply drugs has to be looked at in light of that circumstance. 21Mr Dailly, who appears for the offender, concedes that imprisonment is required. The issues for determination by me therefore are the length of the sentence and, if the sentence is low enough, should that sentence be served other than in full-time custody. Mr Dailly's primary submission is that I should suspend the sentence of imprisonment to be imposed upon his client. It is part of that submission, unstated but nevertheless obvious, that the sentence of imprisonment should be less than two years. Whilst I agree with Mr Dailly that the sentence should be one of two years or less, I cannot accept his submission that the sentence of imprisonment should thus be suspended. 22It is clear that the offender's prospects of rehabilitation can only be described as guarded. It is clear that there needs to be a significant component of personal deterrence. I do not believe that a suspended sentence of imprisonment adequately achieves the aim of personally deterring the offender from future conduct of this kind. He needs to be punished for what he has done and a suspended sentence would also be inadequate punishment in these circumstances. 23Other alternatives to full-time imprisonment present themselves. I am satisfied in this case that should the offender be suitable for an intensive corrections order that would be an appropriate sentence to impose upon him. An intensive corrections order achieves both punishment by constraining the offender's freedom for a significant period of time and also rehabilitation through requiring him to be supervised and counselled as appropriate. His rehabilitation was also promoted by the need for regular urinalysis which will take place pursuant to an intensive corrections order. Of course he first has to be assessed as being suitable before I can impose such a sentence. 24The order I make is this, the offender's bail is continued until 10 o'clock on 2 November. I will also dismiss the s 166 certificate matter and make the orders, realting to the confiscation of the mobile telephone. 25And I will refer Mr Roland for assessment as to his suitability to serve his sentence by way of an intensive corrections order. 26I will order that the drugs are to be destroyed. ********** 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: 02 November 2012