R v Jesse POLOCK [2012] NSWDC 293

District Court New South Wales

Medium Neutral Citation: R v Jesse POLOCK [2012] NSWDC 293 Decision date: 29 June 2012 Before: Cogswell SC DCJ Decision: 18 months imprisonment suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999 for 18 months. Catchwords: CRIMINAL LAW - Particular offence - supply prohibited drug - offender had business selling cocaine. Sentence - gaol sentence appropriate in trafficking in drugs cases - evidence led justifying suspended sentence: delay, youth, immaturity at time of offending, rehabilitation - demonstrated rehabilitation - contributing to community (surf and sea rescuer and inspirational speaker to young offenders) - ceased drug use - strong work ethic - response to charges - severely remorseful - genuine expression of contrition - plea of guilty - 10 per cent discount - relevant factors - criminal record. Legislation Cited: Crimes (Sentencing Procedure) Act 1999, s 12. Drug Misuse and Trafficking Act 1985, s 25(1). Cases Cited: R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451. Category: Sentence Parties: Regina (Crown) Jesse Polock (Offender) Representation: Counsel: D Patch (Crown) R Jankowski / J Levick (Offender) File Number(s): DC 2010/400323

REMARKS ON SENTENCE 1Mr D Patch, the Crown Prosecutor, referred to cases where an offender is at a crossroads. He acknowledged that, in this case, the offender has gone beyond the crossroads. This is a case which a judge in my position all too rarely comes across. The offender reached a crossroads in his young life some years ago and has clearly taken the path of rehabilitation and is getting his life back into order. That is very clearly demonstrated over the last few years. 2The reason that he is before the Court for sentence is that he has been charged with supplying a prohibited drug. That is an offence against s 25(1) of the Drug Misuse and Trafficking Act 1985. Parliament regards the offence so seriously that it has fixed a maximum of 15 years imprisonment to it. 3I will say something briefly about what happened to bring about this charge and then make some remarks about the personal circumstances of the offender Jesse Ernest Polock before sentencing him. 4The circumstances to the offence are set out in exhibit B. Put simply, Mr Polock, over a period of a couple of months in 2008, was selling cocaine. Police had obviously intercepted his mobile phone service and they picked up a number of transactions between him and others where he was negotiating and selling cocaine. There are references to seven grams or a quarter of an ounce of cocaine. At one stage, he was asked how much he had and he said, "I've got a fair bit." 5At one stage, he was talking about being underpaid for a supply of cocaine. He should have been paid $2,100 for seven grams but was paid only about half that. There were discussions about adulterating or cutting the cocaine and more than once he referred to having a good supply. At one stage, one of his customers asked about his supply and Mr Polock answered "I got twenty eight of the fuckers" and the agreed facts indicate that that is a reference to an ounce or 28 grams of cocaine. He in fact sold that amount. 6Police searched his home on 20 September 2009 and he was arrested and charged. 7Mr Polock does not have a clear criminal record. After the events which I have described, he faced this Court on another charge of supplying a prohibited drug which had occurred in 2007. He received a 3 year good behaviour bond which expired a few months ago. Apart from a driving offence, another offence was dealing with the proceeds of crime and he was given a suspended sentence by Zahra SC DCJ in this Court. 8There is included amongst exhibit A a pre-sentence report from the Probation and Parole Service and this is where one begins to see what this young man has done since his offending behaviour. The report says amongst other things this - "Mr Polock appears to be a young man who has achieved a degree of local celebrity through his surfing skills and has secured a traineeship as life saver, combining his interests with obtaining a profession and secure employment. He presented as somewhat immature and apparently had been affected by adverse peer influences. However, he has turned his life around, ceased using drugs and has been educating young offenders in describing his life story and the possibility of change. The insight he has gained is additionally supported by his positive family, girlfriend and community ties, as well as his demonstrated work ethic. In consideration of his current positive circumstances, lifestyle, community supports and his assessed low risk and needs, supervision or intervention programs are not indicated." 9Mr R Jankowski who appears for Mr Polock with Ms J Levick also tendered a report from the forensic psychologist Tim Watson-Munro. Mr Munro acknowledged "that the protracted nature of these proceedings has taken a significant toll" on Mr Polock but he "appears to have matured a great deal in the intervening period." He comes from a stable family background in Maroubra and was educated to Year 10 and left school during Year 11 to commence work and following his interests. 10Apparently, he consistently expressed deep regret for his actions to the psychologist, who noted the positive steps he has taken towards his own rehabilitation. The psychologist did not detect what he described as "any major psychopathology", although he thought he was understandably suffering a reactive depression and anticipatory anxiety and showed some features of post traumatic stress linked mostly to the experiences he has in his employment. 11He has a number of very favourable references from people who know him well and to whom he has disclosed his offending. He has impressed all those people who speak very highly of him. He makes a significant contribution to the community in many ways, both as a surf and sea rescuer and in speaking to younger people about his own offending. They refer to him as being ashamed and regretful for his actions and as breaking away from his previous bad influences. One referee spoke of him speaking to an audience of "teenagers aged from 14-18" which he described as "most inspirational coming from a voice of Jesse's background." 12He is employed by Waverley Council in a traineeship and I heard evidence from Mr Scott Field who is his supervisor and who spoke very highly of him as an individual; not only as an individual but as an outstanding trainee who has not yet reached his potential. 13Mr Jankowski called his client. Jesse Polock is now 23 and drifted into a drug scene when he achieved some notoriety because of his considerable skills as a surfer, particularly in rough conditions. He started taking ecstasy and cocaine and marijuana and drifted into the drug scene. He has done some work over the years including for his father as a brickies labourer. He acknowledged the damage he did in the community particularly to those to whom he was selling drugs. He regarded his own behaviour as disgusting. His mother's health has been seriously affected by his behaviour and criminal activity. However, he has indeed turned his life around and has made considerable efforts in his employment and in all sorts of community activities. He is obviously severely remorseful for his own criminal behaviour and I accept that as a genuine expression of contrition. 14Mr Glenn Polock, his father, was called to give evidence. He has travelled in the past with his son and has noticed a significant change of attitude from his son's drug taking days which he had noticed coincided with a change in his son's behaviour. He is now very proud of his son and very proud of what he has achieved and how he has turned his life around. 15Mr D Patch who appeared as the Crown Prosecutor acknowledged, as did Mr Jankowski, the Court of Criminal Appeal's appropriate insistence that those engaged in trafficking in drugs (as Jesse Polock has) must face a gaol sentence. As Mr Patch said, it was a serious offence and Mr Polock had an ongoing business of selling cocaine but he said that there are quite unusual circumstances. 16One circumstance of course is that I am sentencing him for offending behaviour which occurred some 4 years ago. He was charged some 2 years ago. He has had the charge hanging over his head for that period of time whilst he has been on conditional liberty. He has used that time to turn his life around in an extraordinary way. As Mr Patch said "We are not talking about a young man who we hope will rehabilitate himself but a young man who has proven his rehabilitation." He accepted Mr Polock's expression of remorse and acceptance of responsibility. He has, as I observed in my opening comments, gone beyond the crossroads. Mr Patch said that whilst a custodial sentence was the only choice I had, it would not be erroneous to suspend that sentence. 17One factor would be to take into account not only the delay, the rehabilitation which Mr Polock has undertaken but also his youth and relative immaturity at the time of his offending. He referred me to what the Court of Criminal Appeal had said in R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451 at 458 ([25]) about that. I did not call upon Mr Jankowski because he had led evidence which to my mind justified an order suspending the sentence. 18Mr Patch suggested that a discount for the plea of guilty of about 10 per cent was in order and Mr Jankowski agreed. I would regard an appropriate sentence for the crime committed by Mr Polock as 1 year and 8 months, namely 20 months imprisonment but because of his plea of guilty, I propose to discount that by 10 per cent and fix a sentence of 18 months imprisonment. In due course I will make an order suspending that sentence. 19I convict you of the offence of supplying a prohibited drug. I sentence you to 18 months imprisonment. Under s 12(1) of the Crimes (Sentencing Procedure) Act 1999, I make an order suspending execution of the whole of the sentence for the whole of the period and I direct that you be released from custody on condition that you enter into a good behaviour bond for 18 months. HIS HONOUR: Mr Patch, Mr Jankowski, I do not think any other conditions are needed apart from good behaviour apart from the standard ones of turning up to court and change of address but the probation officer thought that he didn't need any supervision for example. PATCH: That's right your Honour. The Crown will be guided by what's in the probation officer's report. HIS HONOUR: That's what I thought. Thanks Mr Patch. Mr Jankowski, do you agree? JANKOWSKI: Yes I will. 20The conditions of the bond are these. (1)That you be of good behaviour. (2)That you attend court if called upon to do so. (3)That you notify the Registrar of this Court of any change in your residential address. HIS HONOUR: Mr Polock, as I said at the start, it's most gratifying for a judge to have a case like this where somebody like you has turned their life around and you've done that. I get a lot of cases where the opposite has happened or, as Mr Patch the Crown Prosecutor said who has taken a very fair approach to your case, that where people are promising to do this or promising to do that and you never know. But you've actually demonstrated it and you've turned your life around. You are now contributing to the community instead of taking from the community and instead of in fact contributing to the community a substance that is deadly, you've stopped doing that. I've given you a prison sentence of 18 months. So you've got a prison sentence. You don't have to serve it because I have suspended it and I've suspended it for the whole 18 months. Travelling along with that 18 months is a good behaviour bond which you'll have to go downstairs and sign up for it and by that you've got to promise to be of good behaviour, stay out of trouble, no trouble at all, no pub brawls, no fights or anything like that at all. If you get a notice in the mail, you've got to come to court rather than have the sheriffs out chasing you, finding out where you are. If you change your address from where you're living now with your parents then you've got to write to the Registrar and let them know where you live. OFFENDER: Yes your Honour. HIS HONOUR: So they're the 3 conditions. Now something very important to explain because you've had a good behaviour bond before and you've just finished it. I have some confidence that you'll comply with this. I do because you've complied with a bond before. This bond is different and I'll tell you how it's different. If you breach this bond, it is very hard for me not to send you to gaol because these bonds come not just by themselves but with a gaol sentence: it's attached. When you come before the Court with a breach of this bond, even though it's minor, the legislation makes it very difficult for a judge not to send the offender to gaol. OFFENDER: Yes your Honour. HIS HONOUR: It's very hard, there's no wiggle room, very little wiggle room or wriggle room. So you've got to remember that. Mr Jankowski will explain it to you as well to emphasise it and so you've got to stay out of trouble for 18 months, all right. I have confidence that you will, that you'll get on with your life now and continue with the good work that you've been doing. Do you understand all of that? OFFENDER: Yes your Honour, and I'd also like to keep continuing if there's any chance of talking to kids that have offended and I can maybe say in a way that look at the trouble that I've been in and like where I'm working now, you know you do get a second chance if you truly have a go at it. HIS HONOUR: I think that's a good idea. I think young people - and I've read in the references - are obviously impressed by that and those who might otherwise come before me might be influenced by seeing somebody like you who has actually been there and done it. Not only a sporting hero in your past, that you fell off your perch and then you got yourself back together again, you can tell the whole story. OFFENDER: Yes. HIS HONOUR: So they can look up to you in more ways than one and I think you telling a story like that can contribute a lot and make up for some of the damage that you brought to the community some years ago in a very positive way and I agree with that, I'm glad you have that in mind. OFFENDER: Yes your Honour. HIS HONOUR: All right, good luck. OFFENDER: Thank you your Honour. HIS HONOUR: I'll now adjourn. Thank you gentlemen for your help.