District Court New South Wales Medium Neutral Citation: R v Wortley [2015] NSWDC 365 Hearing dates: 6 November 2014 Date of orders: 06 February 2015 Decision date: 06 February 2015 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to imprisonment to an effective overall sentence consisting of a non-parole period of 14 months and a head sentence of 2 years Catchwords: CRIMINAL LAW – Sentence – Supply prohibited drug – Drugs destroyed - s166 matters dismissed Category: Sentence Parties: The Crown Mark Lee Wortley Representation: Counsel Mr J Hale - Offender Solicitors: The Director of Public Prosecutions Aboriginal Legal Service - Offender File Number(s): 2013/2344102013/374308 SENTENCE 1. HIS HONOUR: When Mr Mark Wortley appeared before me on the last occasion last November, things were looking up for him. For reasons which I then expressed, I was persuaded that it was at least possible that I would impose upon Mr Wortley a sentence of imprisonment to be served by means of an intensive corrections order. The matter was adjourned until today for the consideration of a report as to his suitability. 2. Up until fairly recently it appears that he was doing well. Indeed, the report says initially things such as the accommodation was assessed as being suitable, there was a clean urinalysis test on 20 January 2014, but just a few days ago things went dramatically downhill. 3. Mr Wortley is now in custody, bail refused, on fresh charges. He is now not suitable to serve his sentence by means of an intensive corrections order, and he wishes to be sentenced today for the matters for which he appeared before me last November. 4. In those circumstances, it is accepted that the only sentence I can impose is one of full time custody. 5. In my remarks last November I set out in very brief detail the circumstances of Mr Wortley's offending and his subjective circumstances. 6. The new evidence adduced today suggests that Mr Wortley's prospects of rehabilitation are not as good as I had thought they were. 7. Despite that, I do not propose to impose upon Mr Wortley a sentence longer than that I was contemplating. The circumstance that the sentence will be served by way of full time imprisonment rather than an ICO is enough to reflect the changed circumstances. 8. I should specifically state this. I note that Mr Wortley has spent some two months and eight days in pre-sentence custody. I have taken that into account. I took it into account in considering the likelihood that the sentence I imposed was going to be two years or less. I will not back date the sentence I am about to impose by two months and eight days, but I do specifically state that I have taken it into account in determining the length of the sentence to impose upon Mr Wortley. 9. I will back date the sentence to 3 February 2015, that is the day on which Mr Wortley was re-arrested on those fresh charges. That is to ensure that, if ultimately he is acquitted of those fresh charges, this custody he is currently serving is taken into account. 10. For the offence committed on 11 December 2013, I impose a sentence of imprisonment of nine months. That is to be served by way of a fixed term. I have selected a fixed term because of the sentence I will impose upon the other matter. 11. For the offence of 1 August 2013, I impose a non-parole period of 14 months and a head sentence of two years. 12. The sentences are to have commenced on 3 February 2015. 13. Mr Wortley's non-parole period will expire on 2 April 2016, on which day he is to be released to parole. 14. As is clear, I have made a finding of special circumstances in Mr Wortley's favour. They primarily relate to the circumstance that he was doing well until recently, and there would thus be a benefit to both Mr Wortley and the community that he be supervised for an extended period on parole. 15. The drugs are to be destroyed and the matter on the s166 certificate is withdrawn and dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 February 2016