R v Gaiter [2015] NSWDC 305

District Court New South Wales

Medium Neutral Citation: R v Gaiter [2015] NSWDC 305 Hearing dates: 15/05/2015 Decision date: 15 May 2015 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Sentenced to a term of imprisonment of 2 years and 7 months with a non-parole period of 15 months. Catchwords: Criminal – Sentence, supply prohibited drug methylamphetamine, early plea, mental disability and brain injury, matters on a Form 1. Legislation Cited: Crimes Act 1900. Drug Misuse and Trafficking Act 1985 Cases Cited: Attorney General's Application Number 1 (2002) 56 NSWLR 147 R v Bloomfield (1998) 44 NSWLR 734 DPP v De La Rosa [2010] NSWCCA 194 Fayd'herbe v R [2007] NSWCCA 20 R v Poon [2003] NSWCCA 42 R v Thomson and Houlton [2000] NSWCCA 309 Category: Sentence Parties: Director of Public Prosecutions Leigh Dean Gaiter - Offender Representation: Counsel: Director of Public Prosecutions Mr R Wilkinson File Number(s): 2014/106329

sentence 1. HIS HONOUR: Mr Gaiter my practice is to tell people in advance what sentence is to be imposed. In your case the starting point of the sentence to be imposed is three years, six months imprisonment. I am giving you a 25% discount for the utilitarian value of the plea of guilty in accordance with the guideline judgement of Thomson and Houlton, the total sentence therefore taking into account the matters on the Form 1 will be two years and seven months. The non-parole period will be 15 months, that is one year and three months dated from 7 May. That balance of the sentence will be one year and four months. The total sentence will expire on my calculation on 6 December 2017. What I have just said to the prisoner will be incorporated into the remarks on sentence. 2. The prisoner Leigh Dean Gaiter appears today for sentence in relation to an offence to which he pleaded guilty at the Local Court and continues his plea of guilty in this court. 3. The particulars of that offence are that he between 10 August 2013 and 20 February 2014 at Broken Hill did supply a prohibited drug to wit 25.3 grams of methylamphetamine. I pause for a moment to point out that firstly when the prisoner was first charged in relation to the criminal investigation that was undertaken in respect of his activities, he was charged with well over one hundred charges for reasons that escape me. He was quite amenable to being charged with at least two or three charges pursuant to s 25A Drug Misuse and Trafficking Act which of course attract a greater sentence than the ultimate charge to which he has pleaded guilty. Also, the particular concerning the total number grams of methylamphetamine may not be correct, although it is not a matter that requires any ex officio indictment being as I point out a particular. 4. That statement of facts that have been tendered which is very lengthy runs to over 20 pages, points to the offender's supply of either 25.3 or 25 grams of methylamphetamine over the time particularised in the Court Attendance Notice. I will sentence the offender without having had the opportunity of counting up every transaction, although every transaction is particularised in the facts on the basis that he was involved over the relevant period of time in supplying at least 25 grams of the prohibited drug. 5. There are matters to be taken into account on a Form 1, these are offences of supplying the drug cannabis between 18 October and 20 February 2014. A second charge of supplying prescribed restricted substance contrary the Poison's and Therapeutic Goods Act 1966, that is supplying Mogadon, a type of barbiturate or sedative and a third charge arising out of the prisoner's arrest on 20 February 2014 dealing with the proceeds of crime contrary to s 193C Crimes Act 1900. That offence relates to the prisoner's possession of $1,000 in cash and an intercepted telephone call related to the circumstances of his arrest, in which it is clear in its terms the prisoner was referring to the cash in his possession as being partly his and partly belonging to another person. 6. The prisoner is entitled to a discount of 25% upon the otherwise appropriate sentences I have foreshadowed, in accordance with the guideline judgment of Thomson and Houlton. The guideline judgment set out a range of discount that may be given to recognise the utilitarian benefit of the plea of guilty. I appreciate in the context of the character of the investigation and the process of charging the prisoner that the matter of settling upon an appropriate charge for which the accused could be committed for sentence was a complicated one. Whilst there was some delay in the Local Court the accused, having been on bail it would seem since late February early March 2014, the delay would seem to arise from the character of the proceedings, rather than any attitude of the prisoner. It was agreed as I understand it at the bar table that the prisoner was entitled to the discount that I have accorded him. 7. In relation to the matters on the Form 1 I take them into account, in accordance with the guideline judgment, Attorney General's Application Number 1, (2002) 56 NSWLR 147 and particularly the observations of then Chief Justice Spigelman at [18] -[43]. The fact that matters are to be taken into account on a Form 1 will mean that there will usually be a need for greater emphasis to be placed upon retribution and deterrence and the entire point of the process will be usually to impose a longer sentence, or to alter the nature of the sentence that would have been imposed if the principal offence had stood alone, although there is no need to identify the extent to which there would be any adjustment to the appropriate sentence for the principal offence. Sometimes with matters on a Form 1 may provide more evidence of context than anything else. If a person is convicted of an armed robbery and there are four or five armed robberies on a Form 1 well the sentence to be imposed in respect of the principal offence would be substantially greater taking into account those matters than if the principal offence had stood alone. In this case this is not the situation the possession of the cash is intimately bound up of the circumstances of the prisoner's trading in methylamphetamine. The supply of the cannabis I am satisfied was sporadic and incidental to the prisoner's main business of supplying methylamphetamine. The supplying of the Mogadon was a minor matter in context and really each of the three matters on the Form 1 circulate around and provide some background or context to the principal offending. 8. With regard to the principal offending, as I said, there is a statement of facts that extends to 21 pages and obviously I do not propose to read that onto the record. It can be shortly stated that the police in their usual efficient way in these matters undertook an operation intercepting a particular telephone service that whilst it was subscribed to a person living somewhere in the Gilgandra area was under the authority or the use of the prisoner and this telephone intercept operation is the essence of the evidence that is produced against the prisoner that commenced on 18 October 2013 and continued right up until the arrest of the prisoner, in the circumstances I earlier outlined, on 20 February 2014. 9. The police monitored all the calls, there are a very significant number of voice calls and text messages some 8,900 voice calls and 13,800 text messages but in that context there were identified just over 100 transactions which the police are satisfied, and the prisoner admits, were concerned with the supply of methylamphetamine and the facts set out the code words that were used or slang terms used by the prisoner and others to identify the methylamphetamine. There was some conversation about the provision of cannabis. The prisoner in his evidence before me denied that he ever supplied as much as a 'pound' but it is on his own evidence the case that on at least four occasions he supplied some relatively small quantities of cannabis to other people. As I say incidental to his primary business. 10. The various individual supplies occurred almost on a daily basis but not always so. Then again there were a number of days when there were multiple supplies on the one day. Some examples of that can be found that on 14 January there were four supplies by the prisoner on the one day. There were four supplies by the prisoner on 17 January 2014. With regard to the quantities that were supplied on each individual occasion on my careful reading of the facts there was one supply of 1.5 grams, there were at least two supplies of 1 gram, but the rest of the supplies were primarily of supplies of methylamphetamine of a quantity identified from the telephone conversations of between .2 of a gram and .5 of a gram. There were of course some supplies between .5 of a gram and a gram and there were a number of supplies I appreciate of what in the parlance of drug suppliers amounted to a 'point'. A 'point' being .1 of a gram. 11. The prices paid varied depending upon the quantity and I assume the relationship of the prisoner with the purchaser as is often the case. I have noted for example that one supply of .5 of a gram was for a figure around about $383.70 but on occasions the prisoner supplied a point of a gram for $100 which is a sort of a standard rate or even less for .5 of a gram. It would seem that when there were multiple points involved there was some discount. I have not, again done the maths, nobody has assisted me in this regard but it seems to me on my rough calculation from the available facts that the prisoner negotiated the sale of methylamphetamine over the period of time in the quantities identified in the facts for a sum of money roughly, just very roughly between about $17,000 and $20,000. Certainly there was in total a substantial sum of money involved and the transactions as I said were regular and on occasions occurring on multiple occasions on the one day. 4 January is another day where the prisoner supplied four different people, or maybe the same person, with different quantities of methylamphetamine. 12. The prisoner's arrest of course brought an end to the supplies. He was in custody for seven days I am informed he was granted bail and has been on bail, I accept that he has been on strict bail conditions as one would expect. He is fortunate to have bail, particularly given the strength of the Crown case and the inevitability that he would be sentenced to a term of imprisonment. Having regard to the maximum penalty of s 25(1) of the Act and of course having regard to the long standing authority which makes it clear that those involved substantially in the supply, or trafficking, of prohibited drugs must expect fulltime custodial sentences unless there are exceptional circumstances. 13. In this regard, in an earlier matter, although the statistics were not tendered in this case, the Crown tendered statistics in relation to sentencing of matters pursuant to s 25 of the Act in the District Court over, as I remember it, a seven year period. There was a very large sample of cases, something in excess of 700. Those statistics were tendered in the context of a discussion I had had with the Crown concerning a supplier of MDMA and the availability of an order under s 10. The range of penalties where terms of imprisonment were imposed were between six months imprisonment the bare minimum one would expect of a term of imprisonment and something in the order of seven or eight years. The vast majority of sentences falling in a range between 18 months and three to four years. Of course, statistics have limited value they provide a court with a range of what has happened before, in courts of first instance, they do not provide the court with information as to, for example which particular sentences were subject of appeal. They do not provide details about the quantity of the drug. They do not provide details of the role of the particular person and the particular subjective circumstances, and there are of course to be borne in mind the fact that some people appear for sentence from custody and end up with a non-custodial order because their time in custody has been taken into account. 14. There are the matters identified in the decision of Bloomfield, a decision of the Court of Criminal Appeal from 1998 of Chief Justice Spigelman, concerning the value of statistics, particularly in the context of dealing with matters on appeal and I have taken that into account, although to be fair to Mr Wilkinson who appears for the prisoner and the Crown the statistics which were referred to in submission were not actually produced in this case. 15. I have also had regard to the authorities to which I referred setting out the general principle if it could be described as that concerning those who are substantially involved in trafficking in prohibited drugs. I point out in the context of the submissions that were made very skilfully by Mr Wilkinson on behalf of his client and the submissions of the Crown it was conceded, bearing in mind the terms of s 5 Crime (Sentencing Procedure) Act 1999, that a term of imprisonment had to be imposed and the prisoner was expecting that in any event. 16. There were no exceptional circumstances identified and it must be said, notwithstanding the prisoner's evidence, that there was an element of profitable commercial exploitation by the prisoner which was referred to by Justice Hunt in the decision of Clark, an unreported decision from 1990, which has been the subject of a discussion in a range of authorities including the 2006 decisions of Gip and Gu in the Court of Criminal Appeal and of course the decision of Justice Adams in Fayd'herbe v R [2007] NSWCCA 20 where Adams J surveyed a number of those earlier authorities. 17. The sentencing of the prisoner of course requires consideration of the quantity involved, but this is not a case it should be said, self-evidently so of someone being found driving along the Silver City Highway with 25 grams of methylamphetamine in their car in circumstances where, in the context of this prisoner is being a drug user, some might be used for personal purposes and some may be supplied, sometimes for profit. The quantity here is clearly the quantity that the prisoner himself actually sold. I bear in mind of course that as the prisoner explained it, he would be 'ripping off', customers from time to time to ensure he had drugs for himself. He did not go into any great detail as to whether he cut drugs to provide himself with more quantity than was otherwise available. 18. Ultimately, in sentencing the prisoner by reference to the maximum penalty and the facts of the case, it is clear, as Mr Wilkinson pointed out from the judgment of Poon a NSWCCA judgment in 2003 of Justice Ipp: "a primary factor in determining the appropriate sentence will be the relevant statutory scheme and the sentencing tribunal will have due regard to the maximum penalty prescribed for the particular drug in question." With the quantity of the drug being a relevant but not determinative factor. 19. Having regard to the quantity of the drug whilst there was extensive trafficking by the prisoner as I said over a hundred transactions, it was within the scheme of quantities contemplated by the legislation a modest quantity. Of course that is not, as I say, the determinative factor. But it needs to be borne in mind the quantities that were supplied on each individual occasion were by and large relatively small quantities many of them of the lowest level of quantity. Although in that regard I should point in fairness to the prisoner that at least one supply was for actually .05 of a gram, that is half a point. But this is not a case of a person dealing in wholesale with drugs for the purposes of providing drugs to dealers further down the line, selling on the street so to speak. The prisoner was more or less at the end of the food chain but as I say substantially involved in trafficking. I do not have any evidence available to me as to the purity of the drugs and the prisoner has not provided much assistance, in fact no assistance to anybody as to the source of the drugs that were provided to him. Of course, he does not get penalised for that but to be brutally frank there is complete absence of cooperation on his part in the investigation of the matter with police. Whoever was providing the prisoner with the drugs is no doubt still continuing to do so unless he or she is in gaol. 20. The prisoner's criminal history indicates that he was on a bond at the time of the commission of this offence pursuant to s 10 Crime (Sentencing Procedure) Act 1999, which I will herein after refer to as the Act. The prisoner in fact does not have a significant criminal history as his counsel pointed out and I am prepared to accept that as a 'mitigating factor', to the extent that it can so operate. But committing an offence while subject to conditional liberty is a countervailing aggravating factor, there are varying degrees of severity of aggravation of course and certainly an offence committed whilst on parole is a greater aggravating factor than that involving an offence committed whilst on a bond, depending upon of course the circumstances. The bond, the prisoner was on was for a drink, driving matter of a different character of course than the matter with which I am concerned, but the matter still stands as an aggravating factor. In fact the prisoner's criminal history shows that on three occasions he has appeared in court, prior to the current matter, twice in relation to low range PCA matters. On two occasions receiving s 10 bonds, which shows that he has been given the benefit of leniency before in the courts and on the first occasion he appeared in court in 2003 he committed a street offence for which he got a dismissal pursuant to s 10. Now of course those dismissals in their various forms may have reflected the status of his subjective circumstances at the time of the offending, some of which is still present today. They may also reflect the character of the offending. But it is as I say a matter where the prisoner has received leniency from the courts in the past. 21. As I understand the matter he was born on 30 December 1983 at the time of the offending with which I am concerned he would have turned 30. He now appears before me aged 31. He would have been 29 when he started supplying the drugs. 22. He gave evidence before me about a range of topics which deal with his background, his health, the circumstances of the offending, the reasons for the offending and what has happened since being charged and what his hopes are for the future. In relation to that evidence there is, if I can call it, "quite supporting" evidence in various forms, including a letter from a neurosurgeon dated 27 September 2008 and progress reports and other reports from medical practitioners relating to treatment and counselling he had received, it would appear, since the time of his arrest in relation to the current matter. 23. The prisoner was born in Broken Hill. His stepfather, as he is described in some of the material, or his father and his mother, apparently live at Spencer's Creek just outside of Broken Hill. I understand his stepfather was a miner, or is a miner. The prisoner is not a person with any background of antisocial attitudes or conduct. He had an unexceptional upbringing. There was obviously some tensions in the family for various reasons but they are of no moment here. He obtained various trade certificates and qualifications as I understood his evidence. He undertook a boiler making apprenticeship for some period of time in South Australia. He has qualifications as a crane driver, amongst other skills that make employable in the mining industry and elsewhere and it would seem, by and large up until 2012, he has been in reasonably regular employment. Certainly he has a number of trade or trade based skills that provide opportunity for him to find employment on his release from custody. I do not have any doubt about his evidence in that respect. However, the evidence he gave so far as his subjective background is concerned did raise important matters to be taken into account in this sentencing exercise that seemed to me to have some bearing upon the current situation in which he finds himself. I accept his evidence that up until 2008 he was not a regular user of amphetamine. He was not a person who was a 'lout' or a person adversely known by the police as a man involved in the drug culture and the like. 24. On 23 February 2008 when, with a friend after leaving what I understand to be the Mulga Hill Tavern, which I understand is on William Street in Broken Hill, he was beaten up by a group of people. Nobody was charged in relation to that matter but I draw no conclusion one way or the other about that. He suffered a depressed skull fracture in the right parietal region with an overlying laceration. He had to be transferred to Royal Adelaide Hospital for treatment and he went into theatre for an elevation of the depressed fracture and stayed in hospital for four days; he was discharged to a brain rehabilitation clinic and remained as an outpatient until July 2008. After that he took up a job in metal fabrication it appears, on the history obtained by the neurosurgeon at Port Lincoln, doing crane rigging, welding and grinding. 25. I point out of course, with those matters I earlier mentioned, he has welding qualifications. He had occasional headaches and scalp tenderness at that time but has not had any seizures. The surgeon thought, in the context for preparing a letter for the Australian Defence Forces, with a view to the prisoner taking up a position there, that there were no continuing neurological issues. The prisoner gave evidence before me that, in fact, he has continued to have neurological issues to the extent to which they are primarily connected to this injury or from other reasons, I cannot conclude. But he talks about headaches, lack of concentration, some memory lapses and the like. He found himself, he said, after he was discharged from treatment, having trouble staying awake and he started to use amphetamines sporadically in his work environment to try and stay awake which is a dangerous thing, of course, to do. He did, in fairness, through his counsel produce an exhibit showing that he had been randomly drug tested at his place of employment in 2010 and no positive findings were made in relation to illicit or prescribed drugs but he said from time to time he continued to use amphetamines. 26. He returned to Broken Hill in 2012 on a more or less permanent basis, but without employment. As best I can understand it he has been unemployed since then. He had, he said, some savings and he lived off his savings for a period of time but being unemployed with little interest it would seem he started using amphetamines again. He also, it is clear from the pre-sentence report which was, at the heel of the hunt, produced to these proceedings, to have become involved in heavy gambling. It would seem that problematic gambling has been a contributing factor to his offending in one sense because he needed money not only for drugs, which I accept, he also needed money for his gambling habits and I am satisfied too that given the sums of money involved he was using money for his own personal lifestyle. On his own version of events he was on the dole and he had no savings left and that is what he said drove him into the circumstances that give rise to these charges. He was a willing participant in this activity, of course. The telephone intercepts which I have not heard, would indicate that that is so and he was pretty well organised within the context of drug supply matters of this character. Obviously there were people who knew that he could provide prohibited drugs as the police identified from the intercept operation. 27. After he was arrested he went to obtain some assistance but I think the state of the evidence could be fairly summarised as that, whilst not as dependent upon amphetamines as he was at the time of his arrest, he has still used prohibited drugs up until the present time, admittedly on a diminished scale. He had problems with alcohol before his arrest. That is diminished to some extent. He said, as I understood his evidence, that he had primarily given up on alcohol and had largely stopped using drugs but had not stopped using drugs altogether. He tried to address his gambling problem as well. He has been in a relationship for the last couple of years but his partner has gone to Cairns to get away from the stress of the current proceedings and it seems as though that there have been tensions in their relationship for a range of reasons that really, ultimately, are of no moment. 28. I should point out another event that was the subject of evidence and it is referred to in the medical histories. That is the almost fatal injury suffered by his younger brother. According to the history given to a psychiatrist, in 2012 the prisoner was drinking alcohol with his brother, his brother fell backwards and got struck by broken glass in a broken coffee table which sliced open his back and punctured his lung. The history states that the prisoner "rescued his brother" from this situation and got him to hospital where his life was saved and the prisoner was greatly distressed by this. The history also refers to an event that I do not remember the prisoner giving evidence about, but that may be an oversight on his part, and that is approximately six months before March 2015 he ran into a meat hook and sustained an eye injury which caused him continuing difficulty. The assessment of the psychiatrist, which admittedly is not a report for court but is a report sent to another doctor to give the doctor an understanding of what needed to be done for the patient, was that the prisoner had a history of severe traumatic events and had symptoms of Post-Traumatic Stress Disorder, anxiety and "panics" as it is described. He had antisocial personality problems with the control of his anger and had a very significant poly-drug and alcohol habit with significant family conflicts. The prisoner also has continuing concerns about his skull which I have taken into account. 29. To my mind it will be relevant to the circumstances of his custody. He has a metal plate in his skull and he feels, at least, that it is loose which is a very disconcerting feeling to have, I am sure. Apparently he has continuing ophthalmic and dental issues and the psychiatrist thought that he needed 'Post Traumatic Stress Disorder' and drug and alcohol counselling and needed assistance in relation to dealing with panic attacks, as well as other interventions that were appropriate. There are some notes attached to that report, reflecting upon the matters identified in that report. 30. The medical practitioner to whom that report was directed is apparently a general practitioner, or was a general practitioner, here in Broken Hill at what is called the "GP Super Clinic". He is aware of the prisoner's background of traumatic brain injury and his use of prohibited drugs and the way in which he became dependent upon them. He noted what the prisoner told me about in his evidence, which I accept, that he tried to get into drug rehabilitation, particularly after his arrest but had been rejected. He had a lot of symptoms consistent with conditions reactive to his current situation, as well as underlying issues that predate his involvement in this offending. He has slow mood, poor sleep, hopelessness, recurrent suicidal thoughts but no plan to suicide. He is thought to act recklessly on occasions in ways that are identified in that report. The latest progress note of 21 April 2015 that has been provided reflects upon the fact that he was still using drugs at that time, although he aimed to stop drinking and using drugs once in prison and was hoping, as he said in his evidence, to start again when he was released from custody. 31. In that respect I accept the evidence he gave that when he was in custody and beyond he was hoping to try and break the nexus with his dependency on amphetamines and he was hoping to start his life afresh, hopefully reunite with his partner. He certainly has the basic wherewithal to do this. He has trade and other skills that would make him attractive as an employment proposition but it is quite clear as the facts of this case reveal that the prisoner's current circumstances are very much driven by his continuing dependency upon methyl amphetamine, the pernicious character of that drug and drugs like it, or closely allied drugs is a matter of some considerable discussion in the community and rightly so. 32. The problem is, of course, in sentencing the prisoner, as far as it works adversely to him, is that he is aware of the pernicious character of the drug. Notwithstanding his need for it and the fact that I accept that, in part, he sold the drug to obtain the drug for himself where he was dependent upon the drug, he was subjecting other people or exposing other people to the effects of the pernicious effects of the drug. It is a self-defeating cycle of despair, I understand that. I appreciate people in these circumstances do not act altogether rationally. But one would have thought the prisoner might have had greater insight into the effect of what he was doing, bearing in mind what he claims to be the effect upon him of the very drugs that he was supplying and this is a point taken up in the pre-sentence report. It sets out a history that is in accord with the evidence that the prisoner gave before me. I was dubious about the prisoner's explanation of his involvement in the supply of cannabis. Ultimately I think it is a matter of no moment. I am not entirely satisfied, in fact I do not accept, that the only purposes of obtaining money for the supply of drugs was to obtain drugs for himself. It is clear, as I said earlier, that he was using drug sales to obtain money for gambling which is a lifestyle choice and of course clearly, on his own version, he did not have the independent sources of income to maintain his lifestyle. 33. In relation to the pre-sentence report, having reflected upon these matters of history which I need not repeat, and noting of course the attempts by the prisoner to obtain counselling and the absence of relevant services or incapacity to provide services to the prisoner, the reporter for Community Corrections observed that: "The prisoner appeared to have little insight into the serious of his offences as he minimised his behaviour and was unable to recognise the risk he posed to the community." 1. That observation is, as I said, hard to understand. Whilst I accept it in the sense that the prisoner surely understood the effect of the drug that he was providing to others, the report noted the prisoner attempted to excuse his offending by claiming that he did not benefit financially from the offences. That is a matter that I have already commented upon and a claim which I do not accept. The Community Corrections Service Officer observes that: "He was not able to appreciate that his lack of financial stability may have been linked to his drug use and gambling." 1. To be fair to his evidence before me, I did understand him to say that he had an understanding that when he ran out of his savings that forced him into the position he described of getting involved in the supply of drugs because he had little access to money. But the general observation made by Community Corrections, to my view, is sound. I accept during the remand period, as I earlier pointed out, that whilst subject to strict bail conditions the prisoner has made endeavours to try and address some of the issues that have brought him to the current situation. I accept, of course, it is difficult in Broken Hill to get a 'Rolls Royce' service and I accept, of course, given the character of addiction, that he would have great difficulty giving up the use of drugs altogether. Although the truth of the matter is that for his reformation giving up prohibited drugs altogether and particularly methyl amphetamine is a start. But it is a start he has not quite yet reached. 2. I have had regard to all the evidence that has been provided to the Court and I have done my best to do justice to it in the summary I have now provided. One last matter relating to his evidence and I have already referred to it in passing, is I accept his evidence that he is genuinely desirous to get away from the use of drugs and he is genuinely desirous of re-establishing his life in the community and he is capable of doing that in the context of considering some mitigating factors under s 21A(3). Those are the issues relating to the likelihood of reoffending and the prospects of rehabilitation, but only if he is able to remain drug free on his entry to the community. 3. His counsel has referred to some matters that I have already cited, particularly the reference to Poon, made acknowledgements of the importance of deterrence, both personal and general in sentencing for offences of this type and that is self-evident from the authorities to which I earlier referred. He noted in his submissions the significance of the events of 2008 that almost irreversibly changed his life. I accept that is so and I am prepared to accept that that change to his life was something beyond his control and it is a relevant matter to take into account in sentencing him. This is not a man who has gone into drug dealing as I see it, solely on a cynical commercial basis. It is the culmination of a series of events. 4. With regard to s 3A matters his counsel readily conceded that all the purposes of sentencing applied in various ways as they are identified in that section. In fact as I noted it, having a transcript of the proceedings his counsel made the submission that s 3A was "written for him". I would have thought s 3A was probably more pertinently written for Robert Vincent Veen, but there are some truths in the fact that each of the purposes of sentencing are relevant in this matter. 5. His counsel took me to s 21(2) and specifically conceded that aggravating factors were that the offence, that is the offence to which he pleaded guilty, involved a series or multiplicity of criminal acts and that is self- evidently so. That leads to the conclusion that the prisoner was substantially involved in trafficking of drugs. The offence was committed for financial gain; that is self-evidently so and one would have thought that was the sole purpose of drug dealing. Even if one was obtaining money to obtain drugs for one's self, it is still a form of financial gain. But still, whilst it is intimately involved in the offending, it remains as an "aggravating factor". 6. I should point out, in passing, Howie J, on a number of occasions some years ago, in the run of the mill, if I might call it, or ordinary drug supply case, was unpersuaded that planning was an aggravating factor in those offences because of the character of the offending recognised by the legislature. I believe by and large that is true in relation to the issue of financial gain in a case such as this. Certainly there is no submission made that I should find that planning was an aggravating factor, beyond the planning that is self-evident in the facts. Whilst clearly drug dealing has a connection with organised crime, the manufacture and the dissemination of the prohibited drugs is a characteristic of organised crime. This prisoner could not be said to be a member of an organised crime network as such. 7. Further, the offence was committed whilst on conditional liberty, a matter pointed out by the Crown. It was further submitted with regard to mitigating factors under s 21A(3) that the prisoner did not have a significant record, I have already dealt with that matter. It was submitted that the prisoner was a person of good character. I accept that before offending in this manner the prisoner was a person of good character to the extent that he had not been previously involved in drug dealing, but he had prior findings of guilt for criminal offences, not of great moment. I accept that he was, until he became dependent upon prohibited drugs and perhaps before he was seriously injured in 2008, a person able to make a contribution to his community. 8. I have already dealt with the issues of likelihood of offending and the prospects of rehabilitation. The Community Corrections Service noted his lack of insight into his offending. The prisoner expressed regret for his conduct. I am prepared to find, on balance, that there is evidence of remorse. It is not a matter of great significance in this case. Remorse really does not come into it. By and large the facts self-evidently show what can the prisoner say other than, "I am guilty and I regret what I did", but I do not believe the prisoner is cavalier about his circumstances, albeit that I do not believe he fully appreciates the seriousness of his conduct. His plea of guilty, of course, is a mitigating factor as his counsel points out. For that he gets a discreet discount. 9. The Crown's submissions late in the day, in fairness to her and under a great deal of difficulty, given her health at the time, were straightforward; they dealt with the discount which I have already dealt with, her time in custody. The Crown properly points out that only a term of fulltime custody can be imposed in this matter. 10. There is just one outstanding issue arising from the evidence and the submissions. A case cited earlier in these proceedings, De La Rosa [2010] NSWCCA 194, particularly some observations of McClellan CJ at CL, at [177]-[178]. It must be said, firstly, this is not a case of mental illness or intellectual handicap. It may be categorised, given the physical injury to the prisoner as a case involving an offender with "mental problems" arising from that injury and its sequelae. The causal connection between the injury, its sequelae and the offending with which I am concerned is perhaps indirect, but there is a connection there and it is a matter that I have taken into account. I do not know whether the prisoner's physical condition presents some difficulty for him in custody. I would imagine, to be frank, that a blow to the head, if that were to happen, it would be a significant danger to the well-being of the prisoner. But from what I read of the psychiatric evidence and the report of the medical practitioner, whilst the prisoner displays various symptoms, including symptoms of Post-Traumatic Stress Disorder and I factor them into account, the conditions from which he suffers and their relationship to the offending do not to any substantial degree ameliorate the need for general deterrence. I do not believe that there is anything in the prisoner's condition that warrants greater significance being put upon specific deterrence because he presents a danger to the community. 11. As it ultimately pans out there was must be a term of imprisonment imposed. But for his physical injuries and the effect upon him of his physical injuries and its ultimate course to the point where we are now I would have fixed a greater sentence upon him than I have concluded is an appropriate starting point. But in considering the sentence I imposed upon him, noting his activities, I have had regard of course to the quantity of the drug and the scheme of quantities that warrant prosecution under s 25(1). As I earlier pointed out, just by reference to quantity alone the quantity is certainly not in the mid to high level of quantities that the section contemplates. Thus, I have concluded that the starting point of any sentence to be imposed is three years six months imprisonment and the sentence thus will be, as I have identified, I have made a finding of 'special circumstances' pursuant to s 44 of the Act. Clearly this prisoner needs professional assistance, he has needed professional assistance for some years and has tried to obtain it whilst on bail. He needs an extended period of supervision, he needs assistance to adjust to community living, bearing in mind this will be his first gaol sentence. Although he did, of course, spend seven days in custody before, he will need to my mind direction and assistance, not only in relation to drug and alcohol counselling but also in relation to gambling dependency and also in respect of anger management as it affects his relationship. 12. In sentencing the prisoner, as I have concluded I have, as I said, taken into account the circumstances of his bail conditions as I understand them to be. 13. Could you stand up please sir. In respect of the offence to which you have pleaded guilty you are convicted. In sentencing you I take into account the matters on the Form 1. I sentence you to a term of imprisonment by way of non-parole period of one year three months, that is to commence on 7 May 2015 and will expire on 6 August 2016. In respect of that sentence I fix a balance of sentence of one year four months. That sentence will expire, on my calculation, on 6 December 2017. The sentence I have imposed permits me to direct that you be released to parole at the expiry of your non-parole period. The Parole Authority will read my remarks on sentence, subject of course to the appeal rights of the Crown and the defence. Whatever is the final situation as far as you are concerned, your release to parole will be undertaken under the supervision of the Parole Authority and I will leave it for the Parole Authority to fix the appropriate conditions. You can take a seat. 14. HIS HONOUR: Anything else from you Madam Crown? 15. BROWN: The matter should now be adjourned in order for the drug proceeds order application to be made. 16. HIS HONOUR: That application is noted and is stood over to a date to be fixed. 17. BROWN: Thank you your Honour. 18. HIS HONOUR: Anything more from you Mr Wilkinson? 19. WILKINSON: No your Honour. 20. HIS HONOUR: Mr Gaiter you will be eligible for release to parole, as the orders currently stand, in one year and three months' time, 15 months and you will be subject to parole supervision for a period of one year and four months when you are released to parole.