District Court New South Wales Medium Neutral Citation: R v Smith [2016] NSWDC 135 Hearing dates: 6 May 2016 Date of orders: 06 May 2016 Decision date: 06 May 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 –Supply large commercial quantity - 25C-NBOMe – Offender believed drugs to be similar to MDMA where large commercial quantity much higher. Category: Sentence Parties: The Crown Jason Lee Smith Representation: Counsel: D Randle - Offender Solicitors: The Director of Public Prosecutions Armstrong Legal - Offender File Number(s): 2015/138176 Judgment 1. HIS HONOUR: I have an unusual case for sentence today. Jason Smith has pleaded guilty to supplying a large commercial quantity of drugs. Ordinarily, people who commit such an offence know that they have a significant quantity of drugs which they are supplying. There will be many kilos of cocaine. There will be large numbers of pills. There will be blocks of heroin. But the case before me today is somewhat unusual. 2. Mr Smith is to be sentenced on the basis that he had in his possession for the purposes of supply, something in the order of 40 pills. These were not ecstasy, but Mr Smith apparently treated them as though they were its equivalent and that they would have the same effects. In fact, they were a different form of drug. They were not methylenedioxymethylamphetamine at all, but instead were a drug known in shorthand as 25C-NBOMe. The large commercial quantity of that drug is two grams. Mr Smith had more than nine grams of that drug in his possession. 3. In assessing the objective gravity of the offender's conduct, one has to look at the decisions that the offender made. He was completely unaware that the drug he was supplying was unlike ecstasy. That is an important matter in determining the sentence to impose upon him. Supplying a large commercial quantity of a drug carries with it a maximum penalty of life imprisonment with a standard non-parole period of 15 years. Because of the circumstance that I have just described, this offending was very much at the lower end of the range covered by offences of a large commercial supply. I have, of course, taken into account the maximum penalty and the standard non-parole period and my reasons for not imposing the standard non-parole period are to be found in these remarks on sentence. 4. Matters came to light after the offender took some of the drug for the first time. It apparently has an effect unlike that of ecstasy. Rather than making someone calm and relaxed and happy and loving, the drug that the offender took on 8 May 2015 had significant hallucinogenic effects. These became obvious to many people who dealt with Mr Smith on the morning of 9 May 2015. 5. A woman by the name of Donna Bissett was driving to work. As she was driving along the road she saw two people standing there. One of them was this offender. The offender ran towards her car. She tried to brake, but he kept running towards the car and ended up on top of her bonnet. He fell off the car and Ms Bissett lost sight of him. Very kindly, she turned around and drove back to check on him. She found him lying on the road, parked her vehicle and called police. 6. Continuing on with her very kind behaviour, she actually got out of her car to check on him. She asked if he was okay. His response was to get up and run towards her. Not surprisingly, she got scared at this, so she went back to her vehicle and locked herself inside. She contacted her boss, a woman by the name of Fiona Morris, and advised her what was happening. The offender then jumped onto the bonnet of Ms Bissett's car and began screaming at her. Again not surprisingly, Ms Bissett suspected that he was under the influence of drugs. 7. The offender began thumping on the windscreen. His friend, Mr Nickerson, pulled him off. The offender then kicked the front of the vehicle a number of times. He moved to the driver's side window and started to punch it and attempted to pull the side mirror off. Ms Bissett contacted police again. Mr Smith clearly damaged Ms Bissett's car and he has asked me to take into account when I sentence him for the drug supply matter an offence of damaging Ms Bissett's property on a Form 1. 8. Mr Nickerson pulled the offender away. At this stage Ms Bissett's boss, Ms Morris, arrived. She got into Ms Bissett's vehicle and waited with her. Despite the offender's behaviour, both women, again acting incredibly kindly and out of concern for Mr Smith's welfare, got out of their car and went to check on him. The offender's response was to jump up and kick Ms Morris and Ms Bissett in their legs. He was grunting and ranting. Those assaults also appear on the Form 1. 9. The offender followed them as they went back to Ms Bissett's car and began running around it, screaming ,and kicking the back of the car. 10. Eventually police arrived and handcuffed Mr Smith. Although he was initially compliant, as they were attempting to get him into the caged vehicle, he spat at one of the officers. That assault also appears on the Form 1. Clearly suspicious as to what was causing Mr Smith's bizarre behaviour, they searched his car. They found the drugs to which I have referred. They also found one MDMA tablet. Possession of that drug is also on the Form 1. 11. They then searched Mr Smith's mobile phone. They reveal that he was not only a drug user, but a drug supplier. There were numerous text messages to and from the offender during the month before his arrest indicating that he was involved in the supply of prohibited drugs. On the night before his arrest he sent a text message to Mr Nickerson indicating that he had "45" to sell. In evidence today Mr Smith admitted that he had been supplying drugs for about four months before his arrest. He had no memory of his bizarre behaviour which led to his arrest. 12. The offender has no real excuse for being a drug supplier. He was brought up in a caring and loving family, a family which supports him even today. There was no suggestion that any of his family members were drug users or had criminal records, and no suggestion that they were distant or provided poor role models. Many people appearing for sentence have had terrible upbringings. They have chosen to commit criminal offences in circumstances where the choice whether to do what they did or not was based on behaviour they had witnessed as they were growing up. Many drug suppliers are introduced to drugs at an early age by their parents. Mr Smith has no such excuse at all. His decision to commence the act of supplying drugs was his and his alone. He told the author of the pre-sentence report that he did it to make quick money. He had lost his job and in fact had only recently got a new job very shortly before his arrest. He told me in evidence that he had got involved with the wrong crowd and so in order to fit in with them he began supplying drugs. 13. Often when people say that they got mixed up with the wrong crowd, upon investigation it turns out that the offender himself was the wrong crowd, but there is some support for what the offender has said. After his arrest his family were threatened by anonymous telephone calls. That does tend to suggest that Mr Smith was involved with people who were poor influences on him rather than him being a poor influence on them. 14. The offender, I am satisfied, was trafficking to a substantial degree. That ordinarily means that he must receive a full-time custodial sentence unless there are exceptional circumstances. In assessing whether he needs to go to gaol full-time I take into account a number of factors, in particular, his rehabilitation. I also take into account the availability of a sentencing option which was not available at the time the Court of Criminal Appeal laid down its rule that those trafficking to a substantial degree should expect to go to gaol full-time unless there are exceptional circumstances. 15. Let me speak about Mr Smith's rehabilitation. He has been subject to urinalysis since his arrest. That confirms his claims to those who have interviewed him - a psychiatrist, a psychologist and someone from the Probation and Parole Service - that he has not used drugs since his arrest. His mother gave evidence today and described a significant change in his behaviour. At the time of his offending he was going out and was acting in a very closed way towards her, but he is now a different sort of young man. He has a steady job, he has a steady girlfriend and he spends a lot of time with his family, a thing which, as I have noted earlier, is a positive matter in the offender's case. A reference from his employer was tendered today. It is clear that his employer now knows about his offending and yet he will keep his job. 16. I should also mention that Mr Smith is a person who has had his troubles with depression over the years. Indeed at an earlier time after he broke up with a girlfriend he attempted suicide. The relationship between this and his offending is not easy to determine, but it is certainly the case that were a full-time custodial sentence to be imposed on Mr Smith, it would weigh very heavily on him indeed. 17. There is no doubt that drugs are terrible things. The offender's behaviour in attacking two women who had only his welfare in mind shows how terrible they are. Families are destroyed by drugs. Drug users often become awful people, committing offences as they seek to satisfy their need to obtain money to satisfy their addictions, and for that reason those who supply drugs are regarded by the criminal law as serious criminals. 18. Mr Smith did a seriously bad thing and were it not for his age at the time of his offending and the rehabilitation that he has achieved, I would have no hesitation in sending him to gaol full-time even given the circumstance that his history of depression will mean that that would be a significant punishment for him. 19. Mr Randle submits that I should deal with the matter by imposing upon his client an intensive corrections order. Implicit in that submission is that I will impose a sentence of two years' imprisonment or less. The Crown did not speak in opposition to such an outcome. I am satisfied that that would appropriately deal with the need to both punish Mr Smith and to assist him in his rehabilitation. I believe that a sentence of two years' imprisonment or less is likely and that, if suitable, an intensive corrections order may well be imposed. 20. I will order that there is to be an assessment as to the suitability of Mr Smith to serve a sentence of imprisonment by means of an intensive corrections order. 21. ADJOURNED PART HEARD TO TUESDAY 2 AUGUST 2016 AT 9.30AM ********** 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