District Court New South Wales Medium Neutral Citation: R v Daley [2013] NSWDC 76 Hearing dates: 18 April 2013 Decision date: 18 April 2013 Before: Berman SC DCJ Decision: Referred for assessment for suitability to serve sentence by way of an Intensive Correction Order Catchwords: CRIMINAL LAW - Sentence - Supply prohibited drug - Escaping lawful custody - Finding of fact made after consideration of text messages Category: Sentence Parties: The Crown Christopher Daley Representation: Director of Public Prosecutions - The Crown Frontier Law Group - The offender File Number(s): 2012/135227 Judgment 1HIS HONOUR: Appearing for sentence today is Christopher Daley. Proceedings have been a bit disjointed, but the matter is now in a position where I can now impose sentence upon him. 2He has pleaded guilty to an offence of supplying a prohibited drug and escaping lawful custody. One of the reasons for the matter being disjointed was that I asked Mr Ferrick, who appears for Mr Daley, and the Crown to conduct some research as to whether a common law offence for escape needed to be imposed cumulatively on any other sentence. It was the joint position of the parties after doing that research that there was no such obligation. 3The escape lawful custody matter has another curiosity which I should mention. It is on a s 166 certificate. Mr Daley was not committed for sentence on that charge to this Court. In those circumstances there is a jurisdictional maximum of two years for that sentence. Another reason for the matter being disjointed concerned some difficulty in initially at least ascertaining the factual basis on which I would sentence Mr Daley. I will explain what I mean as I set out the facts on which he is to be sentenced. 4At about 1am on Sunday 29 April, police were conducting a drug dog operation involving drug detection dog Asta. Police watched the offender. They saw him look directly at police and the drug detection dog before separating from the male he was with and walking rapidly away. Having alerted police to his presence and acting suspiciously in that way, police formed the opinion, accurately as it turned out, that Mr Daley was in possession of prohibited drugs. They therefore stopped him. 5They discovered $965 in his possession. He told police that it was a friend's twenty-first and he was holding the money for a number of different friends. As it turns out he asks that I take into account an offence of dealing with $965 suspected to be the proceeds of crime when I sentence him for the drug supply offence. 6Police also found an Apple iPhone in his pocket. At their request he provided police with the pass code to open the phone. Police then searched through the phone and in particular looked at text messages sent from the phone and received by it. Some of them clearly relate to drug supply either to Mr Daley or by him. He was therefore arrested and was taken back to Kings Cross police station. 7On reaching the police station the attitude of Mr Daley, which until then had been cooperative, changed. He ran away. He was chased and apprehended a short distance away. He was then taken back to the police station, in handcuffs this time, where he was searched. Police discovered a plastic bag containing thirty-two pink-coloured tablets which proved to be ecstasy and a small, resealable plastic bag which was found to contain amphetamine, not methylamphetamine. The possession of that drug is also on a Form 1. 8Mr Daley then told police that the drugs were for this own use although he did say that on an earlier occasion he had supplied one pill each to two of his friends but not in exchange for any money. 9When the matter was first before me this morning it was on that basis that I was asked to sentence Mr Daley, that is, that his acts of supply were limited to giving one pill each to two of his friends, those transactions not involving any payment. However, I was concerned because the statement of facts prepared by police suggested that that relative exculpatory version was inconsistent with the contents of the text messages on Mr Daley's iPhone. I raised the matter with the Crown and in response she, after a short adjournment, tendered a series of screenshots of an Apple iPhone in which drug supply activities are clearly discussed. 10It is obvious that Mr Daley has supplied drugs to a person known in the iPhone as Kiwi Michael. Kiwi Michael has travelled some distance to Kings Cross police station in order to receive drugs from the offender. Somewhat ironically one of the messages sent by the offender to Kiwi Michael reads "Just be careful bro, dog at station". The text messages go on with the offender making it clear to Kiwi Michael that he wanted to make sure that he, that is Kiwi Michael, was not heading back with drugs in his possession to the station while the dog was there. 11There are also other text messages, this time involving a person known as Ben Stephens. It is apparent from those messages that Mr Daley has purchased 120 ecstasy tablets. When Mr Daley was in the witness box he was asked what happened to those. He said that he had taken them to a hotel room which was one of three that was occupied by him and a number of his mates and that the thirty-two he was found in possession of by the police represented a portion of the drugs purchased from Ben Stephens. Some of the remainder he said he supplied to some of his mates in the hotel rooms and he is not sure what happened to the rest. 12So this is quite a different matter from the way it was initially presented to me. I am not going to sentence Mr Daley on the basis that his drug activities were limited to giving one pill to each of his two friends. The text messages are important in making it clear what Mr Daley was going to do with the thirty-two pills. And his evidence was clear that he had supplied to his friends pills other than the ones he mentioned to police. 13Mr Daley clearly supplied a significant quantity of drugs to his friends. Precisely how much of course I cannot determine but given that he bought 120 and that there were a large number of mates it is obvious that he supplied a large number as well. 14Nor can I find that that act of supply was isolated. Indeed, I find that the offender supplied Kiwi Michael a quantity of drugs such as to make it worthwhile for Kiwi Michael to travel for forty minutes to meet up with the offender. And I am satisfied also that that was a supply in which the offender was paid money. This was not simply handing over a small quantity of drugs to his cousin's friend at all. I do not think that Mr Daley realises quite how involved in the drug scene he was and how involved in drug supply activities he was as well. 15One matter I will say in the offender's favour is that there is no evidence that he received payment for the particular drugs that he handed over to his mates. The $965 in his possession, which was the subject of the matter on the Form 1, at least all or part of it was related to an earlier supply, perhaps the one to Kiwi Michael. 16There was nothing in the offender's background which would suggest that he had a particularly hard upbringing. Although his parents separated, he has been cared for by one or both of his parents as he grew up. There was a period where his relationship broke down with his mother and he went to live with his father and his father's partner. He now lives with his grandmother in the Campbelltown area. He completed year 12 and has been employed since then. At the time of his arrest he was a furniture removalist earning $700 a week. 17He said that he commenced using drugs when he was about nineteen and would take, he told the Parole Service, up to four pills (but he told me five to six pills) a night as part of the nightclub scene with which he was involved. 18It is clear that the author of the pre-sentence report was impressed with Mr Daley. Unfortunately, I am not as impressed. It is clear Mr Daley was less than frank with me about some of his activities, in particular the suggestion that he had supplied Kiwi Michael with a very small number of pills and no money was involved. Mr Daley was also less than frank with police. 19The Court of Criminal Appeal tells all judges, that where an offender is trafficking to a substantial degree full-time imprisonment is the only possible sentence unless there are exceptional circumstances. Although the matter is close, I cannot find that he was trafficking to a substantial degree. He did supply Kiwi Michael on an earlier occasion but, as I have said, I am not going to make a finding that his supplies to his mates was for money. That means that Mr Daley does not have to demonstrate exceptional circumstances before a sentence of other than full-time custody being imposed. 20But I am satisfied that a custodial sentence of some form is required. I am satisfied that is likely to be less than two years. It would be appropriate that the offender be assessed by the Department of Corrective Services as to his suitability to serve that sentence by way of an intensive corrections order. 21The offender's involvement in what I will call the drug scene was significant. His supply activities although limited to giving them to his mates were also significant. This was a large quantity of tablets that Mr Daley was involved with. 22There are suggestions that he has not used illicit drugs in the past six months. That is an encouraging sign. But given Mr Daley's less than frank evidence, I am not at all sure that he is telling the truth when he told the Probation and Parole Service as he did, that he had given up drugs. There needs to be an element of personal deterrence in the sentence I impose upon Mr Daley. There needs to be an element of general deterrence so that others who might be tempted to get involved in drug supply in the same way Mr Daley has might think whether it is such a good idea given the consequences for them if they are detected. Those are the reasons that a custodial sentence is required and also the reasons that if qualified Mr Daley should serve his sentence by way of a intensive corrections order. 23Let me set a date. 31 May at 2 o'clock. The order I make is this. I confirm he's to do an assessment as to his suitability for an intensive corrections order. I grant him bail for that purpose and adjourn the matter until 31 May in order to determine whether he is suitable to serve his sentence by that means. I'll order a transcript of my remarks so far. 24Mr Daley, what's going to happen is that you'll have to make arrangements to speak to Corrective Services. They'll assess you for an intensive corrections order. Have you heard what they are? 25OFFENDER: No. 26HIS HONOUR: They're not easy but they're much easier than going back to gaol. Given that I've decided a custodial sentence is required if you're not suitable for one of these orders, there's a real risk that you will be going to gaol. So it's important that you cooperate as you have done with Corrective Services in the assessment process. It's also important you tell them the truth because if things come out later you might find yourself much worse off. Do you understand? 27Thank you, Madam Crown, thank you Mr Ferrick. ********** 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: 29 May 2013