R v Dampf, R vTao [2016] NSWDC 323

District Court New South Wales

Medium Neutral Citation: R v Dampf, R vTao [2016] NSWDC 323 Hearing dates: 25 August 2016 Date of orders: 25 August 2016 Decision date: 25 August 2016 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Each offender is referred for assessment as to his suitability to serve his sentence by way of an Intensive Corrections Order Catchwords: CRIMINAL LAW – Sentence – attempt to gain possession of prohibited drug Category: Sentence Parties: The Crown Stephen Dampf Gerald Tao Representation: Counsel: Ms P David – Offender Tao

Solicitors: Director of Public Prosecutions Gregory J Goold Solicitor – Offender Dampf File Number(s): 2014/3725792014/374724

SENTENCE 1. HIS HONOUR: Before me today are two mature men who have had difficulties with drugs and crime in the past, and who were apparently doing reasonably well until out of a sense of misguided loyalty they decided to help a drug importer avoid some of the consequences of his wrongdoing. 2. The drug importer, Michael Green, flew into Sydney on 10 July 2014. He was carrying a bottle, apparently of alcohol, but it was discovered that there was more than three-quarters of a kilogram of pure heroin in the bottle. He was thus arrested and charged with importing a marketable quantity of border-controlled drug. He was put into custody. 3. When he was arrested he was found to have a document which connected him with a Kennard self-storage unit at Waterloo, a unit which he had leased for ten years leading up to his arrest. Police, therefore, went to that unit, conducted a search and discovered a quantity of drugs. The drugs were in three paper bags inside a microwave oven. A total of 242.6 grams of pure heroin was in the microwave, with the total gross weight of the powder about half a kilogram. It was found to originate from either Southeast Asia or Southwest Asia. 4. Although police had found these drugs they did not tell Mr Green or his lawyer what they had found. Mr Green, sitting in gaol, aware of the risk that police would discover the heroin in his storage unit, needed it to be dealt with. Here is where the two offenders come in. He contacted them and they agreed to go into Mr Green's storage unit and remove what needed to be removed, but there were some difficulties getting this done. 5. On 22 July 2014 he signed a letter authorising the two offenders to go into his storage unit and remove items from it. On 24 July, from prison, Mr Green telephoned Mr Tao, one of the offenders. Mr Green asked Mr Tao whether he had "done the task that I asked?" Mr Tao told him that he had not, to which Mr Green replied by asking him to do it before the weekend. He asked Mr Tao for him and the other offender, Mr Dampf, to "Do it together and just get it done all right". 6. So it was that on Saturday 26 July the two offenders, Mr Dampf and Mr Tao, went to the Kennard self-storage facility at Waterloo. They went there for the purpose of collecting drugs. Although Mr Dampf presented the letter of authority Kennard staff refused them access to the storage unit. 7. A couple of days later on 28 July 2014, a Monday, Mr Green again made a telephone call from gaol, this was to Mr Dampf. Amongst other things Mr Green said, the quicker the better, "because eventually they're going to come across it". Mr Dampf said "Greg will be out there tomorrow" which meant that Mr Green's solicitor, Mr Greg Goold, would visit him at gaol. It was understood that at the time Mr Goold would get Mr Green to sign an authority, one on letter head, rather than the earlier authority which had not been enough for the two offenders to gain access to the storage unit. It was clear from what Mr Green said that time was of the essence, he said "It's pretty critical that it gets done" to which Mr Dampf replied "I understand that mate". When Mr Dampf expressed sympathy saying "I feel so sorry for you," Mr Green said "I just got greedy mate. I just greedy". 8. So it was that Mr Goold arranged for an authority on his firm's letterhead to be signed by Mr Green. That authority authorised the two offenders to assist Mr Green by undertaking the removal of some property. So that was done on the Monday. 9. On the Wednesday Mr Green made another telephone call to Mr Dampf. He said "Did you get anything done yesterday?" Mr Dampf said that he had not done so as he had only seen Mr Goold that morning. Mr Dampf expressed the likelihood that they would do what was required on Saturday, some days hence. Mr Green asked Mr Dampf to do it sooner than Saturday, because he was "worried about the time". The following day Mr Green telephoned Mr Dampf and asked if there was news? Mr Dampf told him "No it looks like Saturday". 10. It is apparent that the two offenders never actually returned to the storage unit facility. This appears to be because they learnt on Friday 1 August that police had been to the premises and that the drugs had been found. 11. Mr Green said to Mr Dampf in the telephone call on Monday 4 August "You should have done it quicker". Mr Green also said "That's probably going to put another two or three years on my sentence and that would have come in so handy helping me financially". 12. One thing which was found in the premises, which I have not yet mentioned, was a fingerprint. The fingerprint was of Mr Tao and it was found on the insider of the container which contained the majority of the heroin found within the self-storage unit. 13. On 22 October 2014 both Mr Dampf and Mr Tao's premises were searched. At Mr Dampf's premises police found some small scales and spoon, both containing traces of heroin. At Mr Tao's premises the police found another spoon which also had traces of heroin on it. It will surprise no one to learn that the heroin found in the self-storage unit was valuable. The wholesale price was of between 140 and $150,000 and a street value of somewhere up to $700,000. 14. It is specifically stated in the agreed statement of facts before me that neither Mr Dampf or Mr Tao knew the quantity of the drugs in the self-storage unit. Although both Mr Goold, who appears for Mr Dampf, and Ms David, who appears for Mr Tao, attempted to take advantage of that lack of knowledge, on proper analysis it does not assist the offenders. It seems that they were prepared to go in and take possession of the drugs no matter what the quantity was, whether it was two grams or two kilograms. Their moral culpability is not reduced by the circumstance that they did not know that there was, in fact, about three quarters of a kilogram of pure heroin in the storage unit. 15. The Crown does say, and the offenders each admit, that they were reckless as to whether the drugs would later be sold. 16. As I mentioned, both of these offenders are mature men. Mr Dampf is either 60 or approaching it. He prepared a lengthy affidavit in which he set out his personal history, in particular how he became addicted to the drug heroin at the age of 15 and the effects that his addiction to this drug and the related criminal offences he has committed over the years had had on him. He has a significant criminal history. On it there are many drug related offences, including offences of supplying drugs and most notably an offence of supplying a commercial quantity of a drug. Indeed, Mr Dampf was on parole for that offence at the time he committed this offence. Of course, it is an aggravating feature of an offender's conduct that they were on conditional liberty at the time they committed their crime. However, I have to be careful not to double count. As a result of the offender being charged with this offence his parole was revoked and he spent five months in custody until his sentence expired. In that sense the offender has spent some time in custody referrable to this offence. 17. Mr Dampf has a good work history and a good relationship with his daughter. This motivates him to remain free of drugs. He has some significant health issues which are set out in his affidavit. In particular he has problems with his spine, with his heart and there is a mental component to his difficulties as well. Those health issues would make any time in custody harder than would ordinarily be the case. 18. Mr Tao is a bit younger, he is 57. He lives with his son, now 16, his sister and her husband. His background is set out in detail in a psychological report prepared for the purposes of today's sentencing proceedings. He became addicted to drugs when he was around 20 years of age and has had troubles with drugs ever since. He said that the birth of his son caused him to reassess his life and his use of drugs, but as is obvious he has relapsed from time to time. He was stable on methadone at the time of this offence and has now been for three or four years. He too has significant health issues, in particular he suffered from a disease called cellulitis, a flesh eating disease which he contracted whilst he was working. He is on a Disability Pension, and although he hopes to return to work it has been hard to contemplate with this matter hanging over him. 19. He too has a criminal history involving many drug related offences, including supply, but there was sometime between his last offence and the present. 20. The finding of his fingerprint on the container does raise suspicions of the offender's, that is Mr Tao's involvement in heroin before Mr Green's arrest, but. the evidence did not allow me to make a finding of that matter beyond reasonable doubt. 21. Mr Tao is clearly concerned about the effect of his imprisonment on his son's education. His son is due to commence his HSC shortly. If Mr Tao could not look after him his son would go to live with his mother. For reasons Mr Tao gave that would involve a situation where his son's education would suffer. Ms David does not pretend to suggest that those consequences for Mr Tao's son were exceptional, but asked me to take them into account as part of the general mix of subjective factors involving her client. 22. Both offenders pleaded guilty at what is a comparatively late stage of proceedings, but this was apparently very shortly after the opportunity to plead guilty to these offences was introduced by the Crown. Their willingness to facilitate the course of justice should be recognised by a reduction of the sentence which would otherwise be imposed. In this case I am not going to state any percentage discount. I will state that their pleas of guilty in each case are one of the number of factors which has led me to impose a different form of sentence from that I would otherwise have imposed. 23. It is important to understand in assessing the offenders' moral culpability what they intended to do and why they intended to do it. In one sense this was thrust upon them. It was Mr Green who contacted them and asked them to do something which would assist him. Certainly they should have refused, but it is important to understand that they did not go looking for trouble, trouble came to them in the form of Mr Green and his request. They were motivated, not so that the drugs would be supplied, (although they were clearly reckless as to whether they would be), not because they intended to use the drugs, but to gain possession of the drugs so the police did not. This makes this case somewhat unusual and so the comparative cases, those which the Crown was able to find, are of less use than is normally the case. 24. The maximum penalty for each offence is two years imprisonment, a maximum penalty which comes as some surprise given the nature of the offence. The maximum penalty - and this is not a jurisdictional limit, but a maximum penalty, is reserved for the worst case. This is far from the worst case, because of the reason that the offenders attempted to gain possession of the drugs. Neither Mr Goold or Ms David really spoke in opposition to the idea that a custodial sentence of some description was required. Clearly, both men require sentences which reflect personal deterrence. General deterrence is, of course, important too, but in this case more than most. The offenders need to be personally deterred from getting involved in drugs again in the future. 25. Mr Goold submitted that a suspended sentence of imprisonment would be appropriate. In my view it is not, because especially in his client's case, a man who was on parole at the time he committed this offence, a suspended sentence would be insufficient to reflect the need to personally deter him from further offences in the future. Given that the maximum penalty is only two years imprisonment all alternatives to fulltime custody arise. I have determined that a custodial sentence is required in each case. I have determined that those sentences will be less than two years imprisonment and I am satisfied that it is appropriate that each offender be referred for assessment as to his suitability to serve the sentence I would impose upon him by means of an Intensive Corrections Order.