R v Anthony Daniel McIver [2016] NSWDC 95

District Court New South Wales

Medium Neutral Citation: R v Anthony Daniel McIver [2016] NSWDC 95 Hearing dates: 24 May 2016 Decision date: 27 May 2016 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Full time custodial sentence. For orders see [34] and [35]. Catchwords: Supply prohibited drug; possession; custody of knife in a public place Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985 Cases Cited: Veen v R No. 2 (1998) Vol 164 CLR 465 at 477 Category: Sentence Parties: Director of Public Prosecutions (Crown) Anthony Daniel McIver (Offender) Representation: Solicitors: G Gaynor (Crown) R Bennett (Offender) File Number(s): 15/323300 Publication restriction: Nil

REMARKS ON SENTENCE 1. The offender was committed for sentence on 8 March 2016 from Queanbeyan Local Court, having pleaded guilty to one charge of supply prohibited drug (methylamphetamine 7.15 grams) pursuant to s 25(1) of the Drug Misuse and Trafficking Act 1985 ("DMTA"). The maximum penalty for the offence is 15 years imprisonment and/or a fine of $220,000.00. 2. In addition, there are three charges the subject of a Certificate pursuant to s 166 of the Criminal Procedure Act 1986 The are: Sequence 2 – Possess prohibited drug. Sequence 3 – Custody of a knife in a public place. Sequence 4 – Possess proscribed restricted substance

The sentence hearing 1. The sentence hearing took place on 24 May 2016. The Crown bundle became Exhibit A. It included Agreed Facts which may be summarised as follows. The offence occurred on 3 November 2015. The offender was born on 1 June 1989 and was therefore 26 years at the time of the offence. He was at that time both on parole in respect of a previous sentence, and on bail, which he obtained on 19 August 2015 in respect of unrelated matters. 2. The circumstances of the offending and the offender's arrest are somewhat extraordinary. On 3 November 2015 he attended Queanbeyan Police station to report, in compliance with his bail conditions. The police had received information that led them then to believe that the offender was in possession of prohibited drugs. He was therefore questioned about that at the police station and searched, whereupon police located a set of electronic scales and a capped syringe inside his shoulder bag. He was immediately cautioned and a further search revealed a large knife, approximately 30cms in length. During the search a bag fell from the offender's waistband, and inside that bag police located four clear clip-seal bags containing 7.15 grams of methylamphetamine, which is the subject of this sentence. 3. The police also found a sealed bag containing a number of different coloured pills, which were analysed as Diazepam, and a further green tablet, which was analysed as MDMA. 4. The contents of both those bags and the custody of the knife referred to above, comprise the three matters referred to in the S 166 Certificate. 5. The offender was arrested and has been in custody since his arrest. Therefore, he has now been in custody from 3 November 2015 to 27 May 2016, a total of 206 days. 6. The Crown seeks following sentence, an order to destroy all illicit drugs and other drug related exhibits, including drug paraphernalia and an order for the accused's phone to be forfeited as it was used in commission of drug related offences. Those orders are not opposed. 7. Exhibit A included the offender's criminal history. In New South Wales he had been convicted on 17 February 2010 of the following offences which occurred on 16 February 2010: 1. Resist officer in execution of duty – Fined $200.00. 2. Receive stolen property – Imprisonment 18 months with non-parole period of 12 months. 3. Drive with high range PCA – Imprisonment 18 months with non-parole period of 12 months. 4. Drive whilst disqualified – Imprisonment 12 months with non-parole period of 9 months. 5. Drive vehicle recklessly/furiously or speed/manner dangerous – Imprisonment 12 months with a non-parole period of 9 months. 1. On 4 May 2011 he was convicted of an offence of resist officer in the execution of his duty and fined $700.00. 2. On 13 August 2014 he was convicted of the following offences: 1. Assault occasioning actual bodily harm – imprisonment 15 months with a non-parole period of 10 months. 2. Armed with intent to commit indictable offence – imprisonment 15 months with a non-parole period of 10 months. 3. Take and drive conveyance without consent of owner – imprisonment 9 months with non-parole period of 6 months. 4. Break and enter house and steal – imprisonment 12 months with non-parole period of 9 months. 1. On 5 January 2016 the offender had been convicted of the following offences: 1. Drive motor vehicle during disqualification period – 2nd offence – imprisonment 7 months with non-parole period of 4 months. 2. Take and drive conveyance without consent of owner – imprisonment 7 months with non-parole period of 4 months. 3. Goods in personal custody suspected of being stolen – imprisonment 4 months. 1. It was the offences to which he was sentenced on 13 August 2014 which related to his conditional liberty, namely, for which he was on parole, which expired on 12 November 2015, some nine days following the subject offence. Further, he was granted bail on 19 August 2015 in relation to unrelated matters. 2. In addition to the above criminal history, the offender had a history of criminal convictions in the ACT. There were numerous offences in the ACT Children's Court between 2003 and 2008, and thereafter in 2009, a conviction for possession of methylamphetamine, and convictions for various matters including theft, driving whilst disqualified, driving under the influence of alcohol, taking motor vehicles without consent, together with a number of other minor misdemeanours. In 2013, the offender had been convicted and sentenced to a term of imprisonment by the ACT Supreme Court on charges of theft, burglary and breach of previous Bonds, and in 2014, he had been convicted and sentenced to a term of imprisonment in respect of a charge of drive a motor vehicle without consent. 3. Exhibit B was a pre-sentence report under the hand of Gavin McDonald dated 11 May 2016. The author noted that the offender had been in foster care since age five, and had manifested behavioural and learning difficulties until the termination of his education at age 15. He maintained contact with his foster parents, however, he had experienced substance abuse and dependence issues from early adolescence. He commenced using cannabis at the age of 14 and progressed to heroin and methylamphetamine use from the age of 20 years. He has been on a methadone treatment program in recent years. The author of the report stated that the offender showed a tendency to increase his dependence on illicit substances when undergoing interpersonal or emotionally disruptive events. The offender therefore needed to become more resilient in dealing with unexpected events in his life. It was the opinion of the author that the offender would benefit from a period of supervision by Community Corrections, and case management strategies would include regular urinalysis and referral for substance abuse and emotional management programs. He was assessed as being unsuitable for Community Service.