District Court New South Wales Medium Neutral Citation: R v Palmieri [2012] NSWDC 279 Hearing dates: 23 March 2012. Decision date: 23 March 2012 Before: Berman SC DCJ Decision: Sentenced to imprisonment for a period of 2 years. Suspended under s 12 Crimes (Sentencing Procedure) Act Catchwords: CRIMINAL LAW - Sentence - supply prohibited drug - methylamphetamine Legislation Cited: Crimes (Sentencing Procedure) Act Category: Sentence Parties: The Crown Warren Palmieri Representation: Mr G Jauncey - for the offender Director of Public Prosecutions File Number(s): 2011/88270 SENTENCE 1HIS HONOUR: Warren Palmieri pleaded guilty, at a somewhat late stage, to an offence of supplying a prohibited drug. Despite living up near Newcastle he was found at 3 o'clock in the morning at Artarmon. He drew attention to himself through his manner of driving. Police stopped the vehicle and when Mr Palmieri passed a roadside breath test police formed the not unnatural opinion that he may have been influenced by drugs. His behaviour was suspicious so they searched the car and discovered a bag containing white crystals. They also discovered a number of smaller resealable bags with a residue of crystal, some notebooks, and more than one mobile phone, with the notebooks containing what were later admitted to be drug ledgers. The white crystal powder was weighed and its purity assessed. There was 6.89 grams of methylamphetamine with a purity of seventy-three per cent. 2For a while the accused maintained that the drugs were all for his own use. Indeed, he told the Probation and Parole Service that as they were preparing a pre-sentence report. But the accused now admits that some of those drugs were to be sold. 3The offender was born in 1964, so he is getting a bit old for this. He has had a problem with drugs for many years, although he does not really, I think, recognise it. He in fact was on bail for driving whilst under the influence of drugs at the time of this offence and he committed another offence of a similar kind in more recent times. The offender seems to think that because he can work at the same time as using drugs then things are okay. I doubt very much that he recognises the danger he represents to the community, his family and himself. Indeed, the evidence would suggest that his partner developed psychosis through her amphetamine use. This has led to her losing the custody of her own children. Yet still the offender does not seem to understand how dangerous these drugs are. I am satisfied that there is in this case a significant component of personal deterrence required. 4The offender, as I said, was born in 1964. He went into his father's business of concreting and has constantly been employed over the years. References from employers were tendered in Court today and they speak highly of him. I mentioned before that the offender's partner has lost custody of her children. They are cared for by either her parents or his parents. She is not allowed to have the children stay overnight with her unless the offender is present. Although Mr Jauncey, who appeared for the offender, sensibly did not suggest that this was exceptional hardship, he did ask me to take into account that if the offender was returned to custody his partner would suffer and her children would as well. I will take that into account as part of the general mix of subjective features. 5The offender has spent two months and eight days in custody and after being released on bail has been reporting daily and subject to a curfew. The curfew meant that he could not go to family functions such as weddings and twenty-first. 6The starting point for the sentence in this case is, the authorities would suggest, that in the case of trafficking to a substantial degree, a full-time custodial sentence is required. One significant impediment to making a finding that the offender was trafficking to that level has been the lack of evidence regarding what was contained in the drug ledgers, what the amounts of money were, whether there were quantities referred to, how many names were in the drug ledgers and so on. All I know is that there were ledgers and the offender had a relatively small amount of quite a pure drug. In deciding whether it has been demonstrated that he was trafficking to a substantial degree, I of course take into account his age and the lack of any other offences involving drug supply. I am not satisfied that he was trafficking to a substantial degree and so the offender need not demonstrate exceptional circumstances before a sentence of other than full-time custody maybe imposed. 7Mr Jauncey concedes, however, that a custodial sentence of some description is required. Once more that is an appropriate concession. The circumstance that the offender has spent slightly more than two months presentence custody and has been on bail with reasonable restrictions on his liberty thereafter, have meant that the length of the sentence I have decided to impose is such that some alternatives to full-time custody are available. Mr Jauncey suggests that I should impose upon his client a suspended sentence. The Crown says that such a sentencing option is just, I emphasise the word "just", within the range. I agree. I fully recognise that a suspended sentence can in many cases say very little by way of punishment. However, I hope that the offender will understand that if, having received a very lenient sentencing outcome on this occasion, he commits any further offence at all, I will have no hesitation in sending him back to gaol full time, no ICO, no home detention, but full time back into custody. 8I should have mentioned the relatively late plea of guilty as another matter which has led to me imposing a sentence on the offender which is of a duration which enables a suspended sentence to be imposed. 9The offender is sentenced to imprisonment for a period of two years. Under s 12 of the Crimes (Sentencing Procedure) Act the execution of that sentence is suspended on condition that the offender enter into a bond to be of good behaviour for the period of the sentence. Conditions of that bond are that the offender is to commit no further offences at all. He is to not use any illicit drugs. He is to be supervised by the Probation and Parole Service and he is to undergo regular and frequent testing to detect whether he has complied with other conditions of this bond regarding drug use. He is to attend and satisfactorily complete the SMART program. He is to advise the registrar of this Court of any change in his residential address and he is to appear before this Court if called upon to do so at any time. 10Mr Palmieri, it is important that I explain to you what I have done. I have decided that your case requires that you be sentenced to imprisonment for two years. But if you are of good behaviour and comply with the conditions of the bond, you will escape having to go back to gaol. I can quite frankly say to you that my initial impression, Mr Palmieri, was that I would send you back to gaol. It is only the submissions of Mr Jauncey and the concession by the Crown that is seeing you walking out that door rather than the door behind you. 11That means that if you breach this bond I will not have the slightest hesitation in putting you in custody; that is something I do fairly regularly. And if you come back before me, it will not be another judge it will be me, and if you have breached the bond you will go to gaol I promise you. It will not be a question of Mr Jauncey saying "can he have an intensive corrections order, can he have home detention?" Mr Jauncey might ask but I can tell you now he is not going to be successful. 12So if you commit the slightest offence, and that involves even using drugs, and you are detected, you are going to gaol. I should tell you one more thing just in case you think I might forget. When you are brought back before me, if you are, what I have just said to you is printed out on a piece of paper and it is put in front of me and I read it and I remind myself of the promise I made to you that you would go to gaol. So your future is in your hands. 13I note that the s166 charge is withdrawn. ********** 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: 04 April 2013