District Court New South Wales Medium Neutral Citation: R v Jackson [2016] NSWDC 134 Hearing dates: 12 February 2016 Date of orders: 12 February 2016 Decision date: 12 February 2016 Jurisdiction: Criminal 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 Category: Sentence Parties: The Crown Ike Brett Jackson Representation: Solicitors: The Director of Public Prosecutions John Byrne & Associates File Number(s): 2015/138085 Sentence 1. HIS HONOUR: For many years the Court of Criminal Appeal has made one thing very clear as far as drug dealers are concerned: those who are trafficking to a substantial degree must go to gaol full-time unless there are exceptional circumstances. The Court has also emphasised how limited findings of exceptional circumstances should be. 2. I have no doubt that Mr Jackson, who appears for sentence today, was trafficking to a substantial degree despite his false protestations in evidence before me. He told a lie to the author of the pre-sentence report, he says, because he wanted the best outcome for himself. I am satisfied that he lied to me in his evidence today as to the extent of his drug dealing activities. I have no doubt at all that he was intending to make a substantial profit out of selling the pills that he was found in possession of. 3. Matters came to the attention of police when he was stopped at a random breath testing operation. Things did not start well for him that night because he had been drinking despite being on his Ps. He told police he would be over zero. That proved to be correct. Police discovered some unrestrained passengers in his vehicle too. He was dealt with in the Local Court for his drink driving matter and carrying those two unrestrained passengers at a later date. But having been stopped by police, he was then searched before he was put into the caged police vehicle. 4. This is where things went rapidly downhill for Mr Jackson because in his right pants pocket police found six small zip-lock bags of the type that drug dealers use. They also found a substantial amount of money in his wallet, $735. Police asked him whether there were any illegal substances in the vehicle. He said, "Yeah, you'll find some pills on the floor of the car." Police then did search the car. They found an M&Ms lolly container between the driver's seat and the centre console which contained within it 42 small green tablets. These proved to be ecstasy. Police also found a brown paper bag which contained several more re-sealable bags, alcohol wipes and 15 syringes in the same location. 5. It is apparent that the offender, as well as being in possession of drugs for the purpose of supply, was also planning to take steroids, something he said to me in evidence today. I will get back to this later, but for a person who gets such glowing reports and references from friends and family, to be drink driving, carrying unrestrained passengers, intending to illegally take steroids and to sell drugs for the purposes of profit really calls into question whether Mr Jackson is of the character that his family and friends say that he is. 6. Police asked him what the pills were. He said "ecstasy" and he told them that he had sold them for $20 each. He said he was unable to tell police how many pills he had sold throughout the evening. In evidence today he admitted that was not true. This was a bit of a consistent feature of Mr Jackson's behaviour; telling lies because he wants to make things better for himself. 7. Up until his arrest, on 9 May 2015, Mr Jackson was of otherwise good character. He had no criminal offences and was at that stage working as an apprentice formwork carpenter. He has now completed his apprenticeship and works six days a week. He is supported by family and friends despite the obvious distress that he has caused to them through his seriously illegal behaviour. His working history is good, a matter for which he is to be commended. He has completed his apprenticeship and works six days a week. He did have a break when he broke his ankle, but has now returned to full-time work. 8. Perhaps not surprisingly, after his arrest he has become anxious and depressed. He is concerned about what will happen to him today. I gather that he has a realistic expectation that he will go to gaol. It is not at all unusual for people who have done the wrong thing to become depressed at the prospect of them being punished appropriately for what they have done. 9. He has expressed his remorse in evidence today, but it is notable that he did not express remorse for having done the wrong thing, because it was against the law and caused serious harm to others. The only remorse he expressed was because his family had been affected and so had he. Remorse involves taking responsibility for a person's misconduct. Mr Jackson did not do that. 10. I will explain why I have made a finding of fact that it was Mr Jackson's intention to make a substantial profit out of selling these pills. He had at least seven or perhaps eight re-sealable plastic bags. It is a shame that we do not know how many re-sealable plastic bags there were in the brown bag found by police, but that is entirely consistent with Mr Jackson being the sort of person who was intending to sell, on multiple occasions, the ecstasy pills he had in his possession. 11. He gave evidence before me that he had bought 60 pills for $1,000. At first he said it was on the spur of the moment, but we later learnt that having had the offer made to him, he actually had to go to the ATM and withdraw $1,000 and then go back to the supplier to buy the pills. I have no hesitation at all in rejecting the idea that he was going to take a substantial part of those pills personally himself. Sixty pills are a lot of pills. As well as that there was the cash with which he was found in possession. So he was trafficking to a substantial degree. He supplied that night. He intended to supply in the future. 12. This was far from a single incident of supply which, and this is one thing he did tell the pre-sentence report author which was accurate, he did for financial gain. So I have to sentence a man who was prepared to sell drugs to make money out of it. He was prepared to risk the harm - risk harming people who consume drugs just so he could make money. That is why I have begun to question whether Mr Jackson really is of the character that other people say he is. 13. As I began these remarks on sentence, the Court of Criminal Appeal has said that those trafficking to a substantial degree must go to gaol full-time. One matter which the Court has not yet addressed concerns the impact on that rule of the introduction of intensive corrections orders as an alternative to full-time imprisonment. Many judges, including appellate judges, have recognised that the Court of Criminal Appeal may need to say one way or the other whether that rule needs to be modified now that ICOs are an available sentencing option. Certainly at the time the rule was first formulated and then repeatedly recognised, no ICOs were available. ICOs represent a significant impediment to a person's liberty, but to say that they are in any way a form of punishment approaching the seriousness of full-time imprisonment is completely wrong. 14. Mr Byrnes, who appears for the offender, submits that I would impose either an ICO or suspended sentence of imprisonment. That, of course, carries with it the concession that imprisonment is required and the implication that I would be considering a sentence of two years' imprisonment or less. If, of course, I am considering imprisonment for a greater period, then there is no alternative to full-time imprisonment and Mr Jackson must go to gaol today. 15. I have considered Mr Jackson's behaviour since his arrest. He does appear to have become rather anxious at the prospect of being sent to gaol and as a result seems to have made efforts to minimise the chances of that happening. I suspect his motivation is, as he has said before, to get the best outcome for himself, but it has to be recognised that by seeking counselling and by, as he says, giving up drug use including the drug cannabis, he has set himself up well to rehabilitate himself and so it is to be hoped and it may well prove to be the case that this offence and the other offences he committed that night might be isolated breaches of the criminal law as far as Mr Jackson is concerned. 16. It would, of course, have been better had Mr Jackson been frank with people who have dealt with this matter. It would have been better if he was frank with police about how many pills he had sold that night. It would have been better if he had been frank with the author of the pre-sentence report and, perhaps most importantly, it would have been better if he had been completely honest when he gave evidence today. Mr Jackson's intention to misrepresent the situation because he just wanted the best outcome for himself may well have seriously backfired for him. 17. The question becomes whether Mr Jackson needs to go to gaol full-time. I have given anxious consideration to that case. I am satisfied that a sentence of two years or less is appropriate and so sentencing options such as an ICO and a suspended sentence are available. The matter is finely balanced. No-one would criticise me for sending Mr Jackson to gaol immediately. The harm that drugs cause to the community is immeasurable and the harm that drug dealers profit from needs to be reflected in a sentence imposed on a drug dealer like Mr Jackson. 18. On the other hand, as I said, his rehabilitation looks promising. I am satisfied that I will give consideration to imposing a sentence of imprisonment on Mr Jackson which he can serve by means of an intensive corrections order. I will therefore continue his bail, refer him for assessment as to his suitability to serve a sentence of imprisonment by means of an ICO and list the matter before me in Sydney on a date that I will discuss with the lawyers. 19. DISCUSSION AS TO SUITABLE DATE 20. ADJOURNED PART HEARD TO FRIDAY 29 JULY 2016 IN SYDNEY ********** 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: 13 July 2016