R v Lee [2014] NSWDC 52

District Court New South Wales

Medium Neutral Citation: R v Lee [2014] NSWDC 52 Decision date: 21 March 2014 Before: Berman SC DCJ Decision: Sentenced to imprisonment consisting of an effective overall non-parole period of 6 years and a head sentence of 9 years. The money seized by police to be forfeited to the Crown. Drugs, drug paraphernalia, firearms and ammunition seized by police to be forfeited and destroyed. Catchwords: CRIMINAL LAW - Sentence - Form 1 - S166 certificate - Supply prohibited drug - Cannabis - Methylamphetamine - Significant drug dealer - Conducting drug premises -Receiving - Shortening firearm - Not keep firearm safely - Possess unauthorised firearm - Knowingly deal with the proceeds of crime - Children present Category: Sentence Parties: The Crown Matthew Robert Lee File Number(s): 2012/395801

SENTENCE 1HIS HONOUR: Drug dealers come in all shapes and sizes, some are small scale, some are large scale. Some do it out of desperation, some do it for the substantial financial rewards it brings. Some keep their drug dealing activities from their families and some involve their families in it. 2Matthew Lee appears for sentence having been a significant drug dealer, motivated to a large extent by money, who not only got his wife involved in his drug dealing activities but conducted them in his home where his two very young children lived. That is enough to indicate the seriousness of his conduct and to explain why he must go to gaol for a very long time. 3In October 2012 police became aware of a drug supply operation being run from the offender's home in Tamworth. They installed video surveillance equipment so that they could record the frequent customer traffic, with purchasers of drugs regularly attending the offender's home so they could buy drugs from him. A little later they installed further surveillance equipment in the offender's home which enabled them to record what was said within it. 4The evidence established that the offender was supplying both cannabis and methylamphetamine to a large number of clients who would park their vehicles outside his premises and go inside on a frequent and regular basis, throughout the day and night, to buy cannabis and methylamphetamine, often when the offender's children were present in the home. 5A statement of facts was tendered this morning which records in great detail things that were said by the offender and others within his home and observations of purchases arriving at the offender's premises. I have of course read those, but I will summarise them very succinctly with the aid of a summary that the Crown prepared at my request. 6From 29 October 2012 until 20 December 2012 the offender supplied drugs on 140 separate occasions. There were other supplies that cannot be specified as well. One of the recorded conversations has the offender speaking about past supplies of methylamphetamine totalling half a pound or 227 grams as well as ten pounds of cannabis. 7I mentioned that the number of people attending his premises was substantial and frequent. On one day during the period where police were observing what was going on, he had 18 customers. He supplied on multiple occasions to truck driver named Warrick Smith, with his sales of methylamphetamine being for quantities between 1 gram and 7 grams and his supplies of cannabis being from 1 gram to half a pound. 8The recordings also enabled police to learn about other offences committed by the offender. An offence of receiving where, through methods that were not terribly clear, the offender received $4,000 worth of clothes which had been stolen, and more importantly the offender was heard to shorten a shotgun and then to describe what he intended to do with it, namely to use it as a deterrent to protect him and his family and to protect his drugs as well. 9Ultimately police arrested the offender and his wife. He was found on arrest to have $7,250 in cash in his pocket with a further $150 cash in his car. He also had two mobile phones. 10Police executed a search warrant at the offender's home. They found, amongst other things, a number of plastic bags and containers containing what was later found to be 58.46 grams of methylamphetamine, most of it in the fridge in the premises in various containers and clip seal bags. It is apparent that the offender had divided bulk quantity of methylamphetamine up into smaller quantities of various sizes to satisfy his customer's various demands. Police found CCTV cameras installed in the premises so that the goings on outside the house could be observed from within the house. There was a police radio scanner which was operating at the time, enabling those within the house to listen to police radio transmissions. Also found during the search were a number of other items clearly related to drug supply as well as drug use. They found the shortened 12 gauge shotgun in an unlocked cupboard in the kitchen as well as the sawn off lengths of barrels no longer attached to the rest of the firearm. 11I mentioned before the presence of children, it is significant to note that on the baby's change table in the main bedroom police found syringes, alcohol swabs and, in a black bag on the change table, six shotgun shells, one of them a hollow point solid slug. 12The facts tendered by the Crown bear out the impression which I trust was given at the beginning of these remarks on sentence, that the offender's misconduct is serious indeed. He now faces sentence for the following matters, an offence of ongoing supply of methylamphetamine. When I sentence him for that matter he asks that I take into account two other matters. The charge of receiving that I mentioned earlier and a charge of not keeping the firearm, the 12 gauge shotgun safely, that of course relating to it being found in an unlocked kitchen cupboard. I am also to sentence him for supplying a prohibited drug namely methylamphetamine which relates to the quantity of that drug found in the offender's premises when they were searched by police. Clearly as I mentioned, those drugs were packaged up ready for sale. He faces a charge of supplying cannabis relating to the supplies to those customers who sought that drug which occurred during the period of police observation and earlier. He faces a charge of possessing an unauthorised prohibited firearm - that of course is the shortened shotgun. That offence, I should mention has as well as a maximum penalty of 14 years imprisonment, a standard non-parole period of three years. I have taken into account both the maximum penalty and the standard non-parole period in deciding the appropriate sentence for that matter. My reasons for not imposing the standard non-parole period appear in these remarks on sentence. The offender is also to be sentenced for an offence of knowingly dealing with the proceeds of crime, relating to the cash found on him on his arrest, and then on a 166 certificate are other matters for which I must impose sentence, namely conducting drug premises and shortening the firearm. 13There is little in the offender's background to explain why it was that he would decide to conduct such a large scale drug supply operation. He was a drug user, I will get to why he was in a little while, but unlike a lot of drug dealers who wish to supply only to support their habit, the offender's motivation went far beyond that. The evidence is overwhelming that a large part of what motivated this offender were the large financial rewards that large scale drug dealing can bring. 14The offender is now 29 years of age. His father was an alcoholic who died in 2007. His father's death affected Mr Lee for obvious reasons. The offender was raised in country New South Wales and whilst he has told a psychologist that he was frequently in conflict with his teachers he had never been suspended or expelled from school. After leaving school he had a good work history until 2010; he has not worked since. Whilst working in abattoirs he suffered an injury. At the time of his arrest he was undergoing various investigations as to some symptoms of lower back pain and pins and needles that he had reported. Those investigations could not be completed because of his arrest. 15The offender started using drugs at the age of 15, first cannabis and then amphetamines. He stopped using for a while but then relapsed again later. When his father died at the age of 22 he began using more drugs, the psychologist says as a means of coping under stress and in relation to grief issues. Since his arrest and his placement in custody he has been able to reflect on the effect that drug use has had upon his life. He expressed relief that he is now drug free and whilst in custody has been undergoing alcohol and other drug education. It cannot be said that there are good prospects for his rehabilitation given the nature of his addiction in the past, but there is hope for the future. 16Ms Hall who appears for the offender argued that the offender's operations were not sophisticated. I suppose they could have been more sophisticated, but they really were as sophisticated as they needed to be. He was able to attract large numbers of customers, he was able to make significant sums of money, he was able to source significant quantities of drugs so that he could on supply them and where appropriate he cut those drugs down to maximise his profits. He shortened a 12 gauge shotgun and was prepared to use it if necessary to protect himself, and his family, and his drugs and he installed closed circuit television with cameras viewing the front and back of his house. Perhaps the only thing that was unsophisticated was that he conducted his drug supply operations in a way which would inevitably come to the attention of police. 17From the description of his activities and the magnitude of them, even a casual passer by would have observed suspicious activity. In that sense this operation was always doomed to fail but as far as the offender was concerned he was prepared to continue on making money supplying drug users with drugs, causing them harm as he did so. It was only the intervention of police that led to this harmful operation being shut down. 18The offender's criminal history is remarkably insignificant for a person facing sentence for such serious offences as this. He has some matters for drug possession but his decision that in his late twenties he would set up this drug dealing business can only really be explained by considering the money that could be made from it. 19The offences are all of course closely interrelated and so there will be a significant overlap in the sentences that I will shortly announce. I have applied the principle of totality. In one sense that means that the offender gets much less than he really does deserve, but I have to be careful not to impose a sentence which is crushing given the offender's age and hope that he will be able to rehabilitate himself. 20I suppose I should make this clear in case anyone wants to review what I've said: it is an element of the offence of ongoing drug supply that there is financial gain. It is not an aggravating circumstance therefore of that offence that he did that for money. I have also taken into account that at times he supplied drugs when his wife and children were home. I regard it as an aggravating circumstance that his two young children would inevitably be exposed to some aspects of what he was doing. It is simply not possible to lock children away when drug users come to the door, certainly not when 140 separate transactions take place over the period of police observation. The fact that the offender would do what he did with his two children in the house says a lot about his attitude towards drug supply. It says a lot about his moral culpability for the sentence which I must sentence him. 21I will make a finding of special circumstances. It is no longer the case, if it ever was, that the mere fact that this is the offenders first time in custody amounts to special circumstances justifying a variation from the prescribed ratio between non-parole period and the sentence, but in this case, where the offender does profess to have a different attitude towards drugs from that which he displayed leading up to his arrest, and where things such as his work history show that there are prospects for rehabilitation, I am prepared to make a finding in the offender's favour enlarging the period of eligibility for parole. However it has to be said that the variation is but modest. There are two reasons for this, firstly the very length of the sentence I am about to announce provides a substantial period of parole even without such a variation and secondly the effective non-parole period must reflect the objective gravity of what the offender did. I announce sentences as follows: 22For the offence of conducting drug premises, that offence appearing on the s 166 certificate, I impose a fixed term of imprisonment of six months to date from the date of the offender's arrest 20 December 2012. For the offence of shortening the firearm also appearing on the s 166 certificate I impose a fixed term of imprisonment of one year also to date from 20 December 2012. For offence of supplying methylamphetamine I impose a fixed term of two years imprisonment to date from 20 June 2013. For the offence of supplying cannabis I impose a fixed term of imprisonment of two years to date from 20 June 2014. For the offence of knowingly dealing with the proceeds of crime I impose a fixed term of imprisonment of one year to date from 20 June 2014. For the offence of possessing an unauthorised prohibited firearm I impose a term of imprisonment consisting of a non-parole of two years with a head sentence of four years to date from 20 June 2015. For the offence of ongoing supply of methylamphetamine taking into account the Form 1 matters I impose a sentence of imprisonment consisting of a non-parole period of two and a half years with a head sentence of five and a half years to date from 20 June 2016. 23The overall sentence is thus one consisting of an effective non-parole period of six years with a head sentence of nine years. The offender will be eligible to be released to parole on 20 December 2018. 24I note that the offence of supplying cannabis leaf sequence 3 on the 166 certificate now appears on the indictment. I will dismiss the offence of participating in a criminal group sequence 5 on the 166 certificate. I have sentenced the offender for the offence of conducting drug premises sequence 6 on the 166 certificate. I dismiss the offence of conducting drug premises knowing that a child has access to the premises, sequence 7 on the 166 certificate. I have sentenced the offender for shortening the firearm sequence 8 on the 166 certificate. I dismiss the offence of possessing an unauthorised firearm sequence 9 on the 166 certificate and note that sequence 10 and 13 on the 166 certificate have been taken into account on the Form 1 and I dismiss sequence 14, the offence of possessing a 22 calibre bolt action rifle. 25The money seized by police, $7,400, be forfeited to the Crown. 26If they have not been destroyed, the drugs are to be destroyed. And the final order that I make is that all drug paraphernalia, firearms and ammunition seized by police be forfeited and destroyed.