R v Polley [2014] NSWDC 323

District Court New South Wales

Medium Neutral Citation: R v Polley [2014] NSWDC 323 Hearing dates: 17 October 2014; 31 October 2014 Date of orders: 31 October 2014 Decision date: 31 October 2014 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Impose concurrent sentences of imprisonment consisting of a non-parole period one year and 3 months with a head sentence of 2 years and 6 months. The matter on s166 certificate is dismissed. Drugs to be destroyed Catchwords: CRIMINAL LAW – Sentence – Drug supply – MDMA – Methylamphetamine – Trafficking to a substantial degree Legislation Cited: Crimes Mental Health (Forensic Provisions) Act Category: Sentence Parties: The Crown Christopher Polley Representation: Counsel: Mr R Webb & Mr J Gaitanis – The Offender

Solicitors: The Director of Public Prosecutions CBD Criminal Defence Lawyers - Offender File Number(s): 2013/300629

SENTENCE 1. Early one morning in October last year, the day after Christopher Polley turned 20, he was sitting in a white Toyota utility with two of his mates. A fourth man was outside. Police saw that the fourth man was urinating in the street so they approached. This act of stupidity on the part of one of Mr Polley's friends has led to him being detected as a drug dealer who now faces a significant term of fulltime imprisonment. 2. While police were speaking to the four men they saw a number of clear plastic resealable bags in the driver's footwell. Accordingly, they decided they would search the vehicle. They found money, further clear plastic resealable bags and drugs. In particular they found 109 MDMA tablets and 65 methylamphetamine tablets secreted in various parts of the utility. Police also found that the offender was in possession of two mobile phones, one of which was a Samsung Galaxy mobile phone which, helpfully for police, the offender had used as part of his drug dealing activities by exchanging text messages with his customers and, perhaps even more helpfully, doing nothing to erase any of those messages. 3. He now faces two charges of drug supply, one relating to the MDMA tablets and one relating to the methylamphetamine tablets. Together with what was found by police on 6 October 2013, the contents of the messages found on the phone reveal the significance of the offender's drug dealing activates. 4. When this matter was first before me the Crown tendered an annexure, annexure E, setting out relevant text messages found on the offender's mobile phone. The Crown submitted that there were something in the order of 15 separate customers who had sent text messages to the offender as revealed by those text messages. 5. The offender gave evidence. In the course of this - although not explicitly saying so - he did not cavil with the proposition that in quite a short time he had managed to accumulate at least 15 customers. However, in the course of submissions from the offender's counsel, it was submitted that there were fewer customers than that to be found on the mobile phone. Accordingly the matter was adjourned so that proper analysis could be undertaken. I received written submissions, and further oral submissions today, regarding the significance of various entries. 6. I am satisfied as a result , and of course satisfied beyond reasonable doubt, that a proper analysis reveals that the offender had something in the order of 12 to 14 customers and was willing to obtain more. The reasons for that are to be found in the transcript of submissions. I will return to the significance of that finding in due course. 7. Also on the phone were three photographs of the offender; two were selfies and one was taken by another person. Those photographs show the offender in possession of an enormous amount of cash. A great deal of evidence was adduced as to the source of the cash. Ultimately the evidence established that the cash was not the offender's, but belonged to others who had obtained in through legitimate means. 8. As I mentioned, the offender had just turned 20 when he was arrested. He was described as an immature 20 year-old. The law of course deals with people over the age of 18 as adults but there is no bright line by which those who turn 18 suddenly reach adult maturity. I am prepared to accept that the offender was, although he just turned 20, very immature for his age. 9. He was brought up in a caring and supportive family by parents who clearly loved him. He was well provided for and effectively wanted for nothing, either materially or emotionally. But there were nevertheless a number of things which deeply affected him in adverse way as he was growing up. 10. The first of those was the sudden death of a school friend of his when they were both in about Year 9. Whilst his friend had been receiving regular blood transfusions because of a condition from which he suffered, his sudden death was a complete shock. 11. The next challenge the offender had to face involved a threat to his own life. He began experiencing episodes of collapse which were eventually found to be due to a problem with his heart. Medication was unsuccessful in remedying the problem and he required an operation. The risks to his life from the condition, and the operation, were significant and the effect of the real possibility of death upon this young man must have been substantial. 12. At this stage he had fallen behind in his school work, both from the psychological effects of the two events which are described and also the fact that he had been off school for some time as his physical condition was treated. Rather than repeat Year 11 at a school where he feared he would be teased because of this, he changed schools, but then found it difficult to fit in. He finally left school completely, began work for a builder, and eventually obtained a carpentry apprenticeship. 13. Unfortunately fate was not finished with him. Another significant event occurred in his life. A friend of his was killed when struck by a train whilst engaged in an act of vandalism. The offender's psychological wellbeing went downhill. He gave up work because of reduced motivation and, tragically given what this led to, he was introduced to ecstasy by his peers. 14. I have no difficulty at all in accepting that a contribution to Mr Polley's offending was an underlying recurrent depressive disorder to which he was made vulnerable by the deaths of two friends and the very real fear that he had for his own life. This disorder led him to engage in substance abuse in an attempt to alleviate his depressive symptoms, which in turn lead to a substance abuse and dependence disorder. But it is one thing to use drugs, another to supply them, and another to supply them as enthusiastically as the offender did. 15. He had a friend who was a drug dealer. The offender said that this person was always cashed up while he himself was short of money. In those circumstances the offender began dealing in drugs well beyond low-level dealing of the type usually engaged in by drug users to support their own habits. 16. The offender has a criminal history but nothing approaching the seriousness of these offences. He got a s 10 bond after writing his dead friend's name on a wall and was also dealt with for a low range PCA matter. 17. Given the severity of the offending for which I must sentence him those earlier matters can effectively be ignored. He was also dealt with under the Crimes Mental Health (Forensic Provisions) Act for a domestic violence matter involving his girlfriend. Reports prepared for those proceedings were tendered in these proceedings. In particular the report of Dr Allnutt, which I accept, speaks eloquently of the mental state of the offender at the time of this offending. 18. Gradually, after his arrest for these matters, his mental state has improved. Although he had suffered from a major depression for some time the evidence would indicate that when he was seen by psychiatrists in May and September of this year he was no longer mentally ill. 19. He no longer uses drugs and has now commenced work in a real estate agency run by his godfather. That man, Sebastian Bonaccorso, gave very impressive evidence about what he described as the incredible transformation in the offender, which he had observed from March 2014 when he started working for him. Whilst in the past he was very immature, there has apparently been a substantial and pleasing turnaround in the offender's attitudes and behaviours. 20. The offender gave evidence saying that he was disgusted by himself,. Primarily because of the effect that his offending has had on his family, but also because he now realised the effects of drugs on people; drugs like those he supplied to others. Consistent with his remorse he has pleaded guilty at the earliest opportunity and so the sentences I will impose upon him will be 25% less than they would otherwise have been. 21. The law is clear; if the offender was trafficking to a substantial degree then the offender must go to gaol fulltime unless there are exceptional circumstances. I am satisfied that he was trafficking to a substantial degree. There were 174 pills in the car, together with resealable bags, and only relatively small number of those were for his own use. There were 12 to 14 instances of a relationship of customer and drug supplier found on his phone. One message refers to the supply of "100 eccy wangs " sold. He was trafficking for financial profit and his motivation went well beyond an intention to supply only to fund his own drug habit. 22. Further, in my view, there are no exceptional circumstances justifying a sentence of other than fulltime custody. Certainly there are matters on which the offender is entitled to rely, in particular his major depression at around the time he committed these offences and the substantial rehabilitation he has achieved, but these are not circumstances which in any way can be described as exceptional, even in combination. 23. Many people begin to use drugs because of significantly unhappy events such as those to which this offender was subject. Many begin to use drugs because of trauma in their lives, and many are able to give up drugs once there is a real possibility that they will be sent to gaol having been detected by police as being a drug dealer. 24. If a reason for using drugs, then rehabilitation, were enough to demonstrate exceptional circumstances then the law would soon cease to have an adequate deterrent effect. More importantly, the word and I know I am not interpreting a statute here, does not mean commonplace. It is terribly sad to send a young man to gaol for the first time. It is even sadder when the man who appears for sentence is in a real respect a different person to the person who committed these serious offences. 25. In all cases prison is very much a sentence of last resort but on the other hand it is important not to lose sight of the fundamental purpose of sentencing; to protect the community. On occasions that is achieved by imposing significant, even harsh sentences, in an effort to deter the offender and others from committing offences in the future. On occasions the fundamental purpose of sentencing is best achieved by focussing on an offender's rehabilitation. If that offender can be assisted to avoid committing offences in the future then the community benefits. 26. In this case I have decided that, consistent with the authority which binds me, nothing less than a sentence of fulltime custody is necessary to reflect the objective gravity of the offender's conduct. Many, many immature young men are seduced by the opportunities to make money which drug dealing presents. Their conduct is of great harm to their individual customers and society generally. 27. While I appreciate that there is some risk to this offender's already achieved rehabilitation, the requirements of general deterrence, moderated of course because of the offender's underlying depressive order, requires the sentences I have decided to impose. In any case, the length of the sentences I will shortly announce precludes any consideration of an alternative to fulltime custody. 28. I have decided to impose concurrent sentences. This matter could have been dealt with as a single charge and it is unlikely that offender appreciated that he was in possession for the purpose of supply of two different drugs. On both counts on the indictment the offender is sentenced to imprisonment. I set a non parole period of one year and three months to commence today, 31 October 2014. 29. There is to be a head sentence of two years and six months on each count. He is to be released to parole on 30 January 2016. I dismiss the matter on the s 166 certificate and order that the drugs are to be destroyed.