District Court New South Wales Medium Neutral Citation: R v Gray [2011] NSWDC 247 Hearing dates: 18 March 2011 Decision date: 18 March 2011 Before: Nicholson SC DCJ Decision: Sentenced to imprisonment - see paragraphs [34] and [35] Catchwords: CRIMINAL LAW - Sentence - Ongoing supply (x2) - Methylamphetamine - Good subjective circumstances Legislation Cited: Crimes (Sentencing Procedure) Act Category: Sentence Parties: The Crown Brendan Lee Gray File Number(s): 2010/143630 SENTENCE 1On 8 December 2010 Brendan Lee Gray pleaded guilty before the Local Court in Dubbo to two charges of ongoing supply of methylamphetamine. The first of those offences occurs between 16 January 2010 and 16 February 2010, the second between 17 February 2010 and 20 March 2010. A maximum of twenty years imprisonment is an available penalty for each charge. Statement of Facts 2An agreed statement of facts has been tendered. Brendan Lee Gray was born on 5 March 1985, is an unmarried man with no children. Throughout the periods referred to below he was an employee at a car parts and accessories retail store in Dubbo on a full-time basis where he earned about $600 each week. He was residing in Dubbo together with his girlfriend at his mother's premises. 3Strikeforce Granchester was established by the Orana Local Area Command to investigate the ongoing supply of prohibited drugs by Manuel John Delila and any of his associates. On 15 October 2009 Assistant Commissioner Bradshaw approved a controlled operation authority allowing covert investigation techniques to be employed to gather evidence against Manuel Delila. 4On 8 February 2010 the Assistant Commissioner approved a further controlled operation authority, listing additional persons Kylie Thompson and Tara Follett of Wellington. Police identified a drug supplying criminal enterprise, working between Sydney, Wellington and Dubbo. Kylie Thompson was identified as assisting Manuel Delila in the supply prohibited drugs in the township of Wellington predominantly from his home address at 108 Gisborne Street, Wellington. The offender was found to be in contact with Manuel Delila in relation to prohibited drugs. He was also monitored on occasions speaking with Kylie Thompson regarding the same. The first offence of supply prohibited drugs on an ongoing basis between 16 January and 16 February 2010 5On 19 January 2010 the offender was monitored and recorded speaking to Manuel Delila. During this conversation the offender agreed to "take two over" (two bags of methylamphetamine, each of 0.25 grams) to another male person and collect $400 from that person. 6On 21 January 2010 the offender was monitored and recorded speaking to Manuel Delila. During this conversation the offender was advised by Manuel Delila to the effect that there were eleven bags of methylamphetamine with him. Manuel Delila was at that time referring to bags that were each to contain 0.25 grams of that prohibited drug, representing a total quantity of 2.75 grams on this occasion. The offender was instructed to take one bag for himself and to disperse the other ten. He agreed to do so. He received a small amount of methylamphetamine, being one bag weighing 0.25 grams for his own personal use as well as a small financial reward from this transaction. On 3 February 2010 he was monitored and recorded speaking to a female person. He agreed to supply that person with $50 worth, being 0.1 gram of methylamphetamine. Offence two supply prohibited drug on an ongoing basis between 17 Febraury and 20 March 2010 7On 18 February 2010 the offender was monitored and recorded speaking to Manuel Delila. During this conversation the offender confirms that he had one bag of methylamphetamine left, being 0.25 grams. He also confirmed with Delila that he had sold one bag of methylamphetamine, being 0.25 grams. Delila then tells the offender to take $50 out for himself. Delila also tells the offender to go to an address in Dubbo and obtain $70 from a person at that address. 8On 26 February 2010 the offender is monitored and recorded agreeing to supply a female with $50 worth of methylamphetamine 0.0625 grams. 9On 11 March 2010 the offender was monitored and recorded agreeing that he had supplied a female with 0.063 grams of methylamphetamine for a price of $50. 10During the operational period of the investigation, being from 4 December 2009 until 25 March 2010 the offender was obtaining methylamphetamine from Manuel Delila for both his own personal use and for the supply of others. 11On 8 June 2010 the offender was arrested in relation to these offences. He was taken to the Dubbo police station where he was introduced to a custody manager who explained the offender's rights to him. He then participated in an electronically recorded interview with police, during which he admitted an association with Manuel Delila of being a user of amphetamine but he denied being involved in the supply of methylamphetamine. He has remained in custody since 8 June 2010. 12During the periods detailed above the offender was engaged in supplying methylamphetamine for material reward. The six transactions nominated above are examples of transactions engaged in by him. The prosecution alleges that the total number of transactions engaged by the offender during the sixty day period was not less than thirty. These transactions include purchases by the offender from Delila for his own personal use. The prosecution also alleges that the quantities of drugs supplied by the offender during that sixty day period were in the range of ten grams to twenty-five grams as a total. The specific quantity of methylamphetamine supplied during the period of the first charge amounts to 3.1 grams. During the second period it amounts to 0.6255 grams. These figures need to be placed in the context of the agreed background to the offences, namely not less than thirty transactions during a two month period and a range of ten to twenty-five grams. 13In respect of the range the Crown must prove beyond reasonable doubt any matter adverse to the offender. While the range may be accepted as being so proved because it is agreed the only finite figure I may act upon can only be the bottom of that range because that is the most certain figure. Objective Criminality 14I repeat and rely upon the general remarks I made in Tara Follett's sentencing remarks as to the dissemination of drugs being a crime against public health. Because Mr Gray was not present then, let me make it clear. I said in that case the dissemination of illicit drugs into the community is a crime against public health. Drugs such as methylamphetamine can be addictive. Side effects of drugs can be destructive of or cause mental health problems, including paranoia, depression and aggression. Drug addicts are human beings whose capacity to function is smothered to a greater or lesser extent depending upon their drug of choice and dosage. The disenabling of human beings by destruction of their health through sale of drugs is antisocial conduct of a high order and an offence against public health. I also repeat and rely upon what I said in those remarks, that the degree of harm is an important measure of criminality. 15In this case the background circumstances in which these offences occurred is spelt out with more specificity than in the other two cases. That is the case of both Tara and Danielle Follett. That is these offences occur in an ongoing situation of multiple supplies, averaging at least one every couple of days. Accepting that any deal can be as small as 0.5 grams and that fifteen deals account for 4.855 grams, the remaining fifteen or more deals must have accounted for at least 5.145 grams. I am unable to determine the value of the transactions charged, 0.25 grams appears to sell for $200, 0.06 grams appears to sell for $50. On those prices the value will be between $3,800 and $4,000. 16The offender operated at a higher level within the drug supply network than either of the Follett sisters. The sales I am concerned with were sponsored by Delila. The agreed facts make plain the offender also interacted with Kylie Thompson in his drug dealing activities. The more serious offence is the first offence because it embraces 3.1 grams of methylamphetamine supplied in twelve expected transactions. By contrast the second offence sees dissemination of 0.6255 grams in three transactions. Subjective Matters 17Brendan Gray is a twenty-six year old single man currently in a relationship with Kylie. He is the second of four children. His siblings appear to be achievers in various endeavours. His parents are supportive and were in court during the hearing of the matter. From nineteen to twenty-one Gray was in a relationship with Elsie. She was killed in a motor vehicle impact, the circumstances of her driving were, in all the circumstances, unusual and she was at the very least agitated and probably unfit to drive. Questions remain whether she was fit to drive and whether the impact was inadvertent or intentional. For her parents there are also issues, it would seem, as to whether Gray played any role in the circumstances which led to her agitation or her being able to get behind the wheel of the car she was driving. Her parents, he claims, blame him for her death. That would of course make resolution of his grief arising from her death the more difficult to resolve and accomplish. Education 18He was raised in Coonamble, New South Wales where he did his primary and secondary schooling. Some of his high school was spent at Redbank in Forbes which I understand to be a private school. Halfway through Year 11 he was offered an apprenticeship as a mechanic, an occupation as I understand it, his father had followed. He achieved his trade certificate by age twenty. He spent his apprenticeship years working on cars then graduated or moved to a wholesale company. After the demise of his fiancée he travelled to Mackay in Queensland looking for work, none was found, came back to Dubbo and worked in a bottle shop. 19There he was accused of selling drugs by another staff member, he lost his job. The offender claims it was a malicious act of fabrication by the informant. Given his subsequent history I would not be prepared to make a finding one way or the other without first hearing from his accuser. The matter so far as it is before me rests as a contested matter unable to be resolved in these proceedings. 20He worked at Autobahn for twelve months until his arrest. He told Ms Robilliard he had an offer of employment with them upon his release. His father gave evidence. The father manages two properties, one of which, Greystanes, is in Coonamble I assume. My understanding is the father intends for the son to be engaged seven days weekly on one of the properties, five full working days and two half days spread across the weekend. The father sees this with some justification as an important, secure starting point for his son's reintegration into the community. 21I am satisfied Brendan Gray has a strong work ethic and avenues of employment open to him on his release from custody. Mental Health 22Likewise there appear to be no mental health issues that would trouble him on release. His IQ test placed him above average with an IQ greater than 120. Drug and Alcohol Usage a Health Issue 23He claims to be a light user of alcohol. I would not expect that should trouble him in rehabilitation. Gray started his drug career, if that be the right word, smoking cannabis at aged sixteen. He claims to have tried it two or three times only. It was not until his fiancée was killed he discovered amphetamine. He was associating with "mates" interested in performance cars. After consumption of amphetamines his negative mood lifted temporarily. It was not long before he was using "a lot". His entire salary was spent buying amphetamine. He was given some by "mates" and obtained some on credit, at least I have assumed as much. He claims Delila settled a drug debt for him. He must have been getting it on credit somewhere. For this he felt indebted to Delila; sold for him in exchange for small amounts for personal use and money which was just enough to cover petrol costs. 24He claims he was a low level user during the period of his new relationship with Kylie and was able to appear "normal" and maintain relatively well organised appetite and sleep routines. Frankly these claims do not work well with his detoxification history. Four days in detox and very ill suggests something more than a low level user. He now claims he is drug free, healthy and well. 25He is reluctant to commit to full-time rehab. He claims he would continue to attend Narcotics Anonymous regularly as he has done in custody. Again there is a huge difference - I say again because I referred to it in the last case - a huge difference between the prison environment and the helter skelter of community involvement. What is easily possible in custody does not transplant as easily or even remotely likely on the outside. I am cautious accepting his claimed history and aspirations in relation to his drug abuse. One cannot be too prescriptive as to his choices once he leaves custody. 26My preference would be for the structural employment of the living regime his father intends he should pursue, at least for the first twelve months following release but it is not something I can order. Character 27He is a twenty-six year old single man with a good work ethic and loads of ability. He came to illicit drugs later than many that this Court deals with. But for these offences he has not previously been in trouble with the law. He presents with a four to five year history of amphetamine abuse which does not appear to have crossed over into polysubstance abuse. In that four to five year history it is only in the twelve months prior to arrest that he became more deeply entrenched or embedded with the illicit drug and its distribution. Rehabilitation Prospects 28His rehabilitation prospects depend upon the success he can achieve transporting a non-using regime from the custodial environment into the community lifestyle. But for that reservation all other rehabilitation indicators, health, mental health, employment prospects, accommodation, family and community support are all strong. Attitude to Offence 29His evidence was that the effect of his being caught had had a big effect upon him. He also understands the difficulties he put his family through and especially his now girlfriend. He acknowledges he was on the road to nowhere. He acknowledges he was doing the wrong thing. He is ashamed of the grief his family and girlfriend are suffering and regrets it deeply. He is aware of the effects the drug has on him as he was using it to "desensitise" It is appropriate to accept his pleas were motivated by remorse, they were early entered before the Local Court. Setting the Sentence 30I have already spoken about the importance placed upon deterrence. As I say initially I thought it would be in circumstances where all three offenders were not being dealt with seriatim, but together. What I said in one of the earlier cases was general deterrence is regarded by both the appellate courts and the legislature as an important component in sentencing for drug offences. Research shows the more effective general deterrence comes from detection, arrest and involvement in the various stages and aspects of the criminal justice process than it does in terms of the length of a term of imprisonment or the varying lengths of terms of imprisonment I should say. Both offences represent a continuous course of offending. I propose to set concurrent sentences. 31The Crown argued the offences (I suspect he meant the first) fell into a mid range. With respect a supply of 3.1 grams, even though twelve deals does not fall in the mid range on the criteria I have set out under the heading of Objective Criminality and particularly having regard to harm done. He has powerful subjective circumstances which also mitigate a stern approach. Parity 32Although this offender was involved in the same syndicate as his co-offenders who have been present earlier today and like them has no prior criminal history and like them is in his twenties, the objective criminality reflected by his offending is greater than either of the other two. That must be reflected in the sentencing outcome. 33But for the plea of guilty I would have set a sentence of two years for the first offence and fifteen months for the second offence. Each must be discounted by twenty-five per cent for the early plea. Thus the sentence for the more serious offence becomes an overall sentence of eighteen months and the lesser sentence, the other sentence for the lesser offence becomes one of eleven months and one week which I shall round down to a fixed term of eleven months. I intend to make a finding of special circumstances. The reasons for my so doing are these: (1)He is still relatively young and should focus on rehabilitation in the community. (2)It appears with his father that they have plans that may result in his rehabilitation through work on one or both of two farms. (3)A six month probation period coupled with random urinalysis works as a strong personal deterrent for him staying off drugs. 34Brendan Lee Gray in respect of the offence that you between 16 January and 16 February 2010 at Dubbo did on three separate occasions during a thirty day period supply prohibited drug other than cannabis, namely methylamphetamine for financial or material award you are convicted. I sentence you to a non-parole period of twelve months, to commence from 8 June 2010 and to expire on 7 June next. I set a balance of term of 6 months to expire on 7 December 2011. 35In respect of the second offence, that you between 17 February and 20 March at Dubbo on three separate occasions during that thirty day period supplied a prohibited drug other than cannabis, namely methylamphetamine you are sentenced to a fixed term of eleven months to date from 8 June 2010 and to expire on 7 May 2011. I order your release to parole on 7 June next. 36Pursuant to s 51 of the Crimes (Sentencing) Procedure Act 1999 I am empowered to fix conditions to your parole and they will be these: * that you will be of good behaviour; * you will supply Probation and Parole with your address; * you will submit to supervision by them for the period of your parole; * you will obey all reasonable directions of Probation and Parole; and * you will submit to random urinalysis as required up to no more than six times monthly. Failure to attend any scheduled random urinalysis, the supply of dirty urine or the supply of third party urine should in my view be deemed a breach of your parole and I so recommend to the Parole Board but it will be for them to determine. 37HIS HONOUR: Do you understand you will be released in June this year? 38OFFENDER: On the 7th? 39HIS HONOUR: On the 7th. 40OFFENDER: Yes your Honour all right. ********** 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: 07 March 2013