R v Wortley [2014] NSWDC 212

District Court New South Wales

Medium Neutral Citation: R v Wortley [2014] NSWDC 212 Hearing dates: 6 November 2014 Decision date: 06 November 2014 Before: Berman SC DCJ Decision: The offender is referred for assessment as to his suitability to serve his sentence by way of an Intensive Corrections Order Catchwords: CRIMINAL LAW - Sentence - Drug supply - Amphetamines Category: Sentence Parties: The Crown Mark Lee Wortley Representation: Counsel: Mr J Hale - Offender Solicitors: Director of Public Prosecutions Aboriginal Legal Service - Offender File Number(s): 2013/234410; 2013/374308

SENTENCE 1HIS HONOUR: The law is clear! those who are supplying prohibited drugs to a substantial degree must expect a sentence of full time custody unless there are exceptional circumstances. 2In this case the offender was arrested in possession of a significant quantity of amphetamines when he was on a train at Broadmeadow. 3He spent eight days in custody before being granted bail. One might have expected that being arrested in possession of drugs and charged with supplying drugs was a salutary experience but apparently not to Mr Wortley because a few months later he was arrested and found in possession of drugs which he intended to supply. Although it was a relatively small quantity on that second occasion, the fact is that Mr Wortley intended to sell them. 4The first offence came to light when police boarded a Country Link train that Mr Wortley was on. Police had with them a drug detection dog, "Yorkie". "Yorkie" indicated an area of interest near Mr Wortley. He was searched and police found three separate bags of amphetamines. They totalled 47.3 grams of drugs. That was in August 2013. Evidence given today establishes that the offender had purchased those drugs in the Newcastle area intending to supply them. 5In December 2013 police at Gunnedah, where the offender lives, received some information that he was selling drugs in the dart's room of the Gunnedah Services and Bowling Club. They approached the dart's room. As they did so, they saw the offender leaving, they called out to him, and he ran off throwing a small resealable plastic bag away as he did so. That bag was found to contain 5.19 grams of methylamphetamine. 6The offender pleaded guilty to supplying the drugs found at Broadmeadow at the earliest opportunity and guilty to supplying the drugs in his possession at Gunnedah after being committed for trial to the District Court. Although he is entitled to more of a discount for the utilitarian value of his plea regarding the first matter and less of a discount for the utilitarian value of the plea regarding the second matter given the circumstance I am just about to mention, it becomes unnecessarily precise to specify different discounts for the utilitarian value of the two pleas. 7The offender has also to be granted the benefit of another discount. Exhibit B is an envelope and its contents, that envelope is to be sealed at the conclusion of today's proceedings and is not to be opened unless there is a further order of a judge of this Court or a superior court. For obvious reasons I will be circumspect about what I say. I have noted its contents. The offender is deserving of a significant discount for what he has done. Accordingly, the combined discount for plea and assistance would be something in the order of 40%. However, discounts are not always applied on a strictly numerical basis. I have reflected those discounts, not only in determining the length of the sentence I will shortly announce but also the manner in which it is to be served. 8The offender has a criminal history including, perhaps most relevantly, a conviction for supplying prohibited drugs. For that matter he received a suspended sentence of imprisonment. Really that did nothing to deter his drug dealing activities. 9The offender is now 32 years of age. He lives with his partner, Ms Eason, he is her carer. She in turn is the carer of those of her children who are currently living with them. When she met the offender she had three children and together the offender and Ms Eason have had two children. The two youngest, their children, do not live with them, having been taken away by DoCS. The oldest child does not live with them either, she lives independently with her own two children. One of the remaining two children lives with them but parental responsibility was the subject of orders made at the request of DoCS. Ms Eason has been diagnosed as suffering from bipolar disorder. When the offender was in custody bail refused for a two month period earlier this year she said she fell apart, she apparently relies on the offender. 10The offender left school in year 9 and has worked for some periods of time although for the last four years he has been in receipt of Centrelink benefits. He has plans for the future. He hopes to get a job with a friend of his mowing lawns although why he has not done that to date was not explained in evidence. He tells me that he has not used drugs for some time. 11I take into account of course the presentence custody and there were two separate periods totally two months and eight days. I do not take into account, because it is not exceptional, the hardship to any third parties which would be occasioned through the offender being sent to full time custody. As I said earlier, those who are trafficking to a substantial degree must expect to go to gaol unless there are exceptional circumstances. With one exception, the circumstances of case are depressingly ordinary. That exception concerns exhibit B. Not only is the offender entitled to be rewarded for what he has done but the circumstances in which he would serve a sentence of full time custody cannot be ignored. 12When I look at all of the matters that I must take into account in deciding what sentence to impose, I have concluded that a custodial sentence is required. I have decided on the length of that sentence and primarily because of the contents of exhibit B, I have determined that if appropriate and if suitable it may well be the case that I order that the offender serve that sentence by means of an Intensive Corrections Order. 13Accordingly, I will grant bail to the offender and order that a report as to his suitability to serve a sentence of imprisonment by means of an Intensive Corrections Order be prepared. It will be a condition of that bail, and I expect that this will be done as part of the assessment procedure anyway, that Mr Wortley be subject to urinalysis as often as Probation and Parole require it in order to determine whether he has, as he told me, truly given up using drugs.