R v Battersby [2016] NSWDC 403

District Court New South Wales

Medium Neutral Citation: R v Battersby [2016] NSWDC 403 Hearing dates: 10 November 2016 Date of orders: 10 November 2016 Decision date: 10 November 2016 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to an aggregate term of imprisonment consisting of a non-parole period of 2 years and a head sentence of 3½ years. For the 2 offences on s 166 certificate impose concurrent sentences of 6 months fixed terms of imprisonment. Catchwords: CRIMINAL LAW – Sentence – Supply prohibited drug – Knowingly deal with the proceeds of crime Category: Sentence Parties: The Crown Richard Nikolay Battersby Representation: Counsel: Mr P Mansfield – Offender

Solicitors: Director of Public Prosecutions File Number(s): 2016/59779

Judgment 1. HIS HONOUR: This is another case of the type that these Courts deal with with depressing regularity. A person of otherwise good character who comes from a supportive and loving family begins to use drugs and then supply them. 2. Drugs have a number of features which often lead directly to offences of the type for which I must sentence Mr Battersby. They are addictive. A person having used drugs wants to use more. As the body begins to tolerate the effects of the drugs, higher and higher doses are required to achieve the same result. The other problem is that drugs are expensive. Few people can pay for their drugs, certainly a significant drug addiction, with income from lawful sources. That is exactly what has happened in this case. 3. The offender at 25 years of age committed his first criminal offences, offences of great seriousness. 4. He pleaded guilty in the Local Court to an offence of supplying a prohibited drug, that relating to 223.4 grams of methylamphetamine and knowingly dealing with the proceeds of crime, that relating to almost $90,000. The maximum penalties for both of those offences are 15 years imprisonment. In order to reflect the utilitarian value of his early pleas of guilty the sentences I will ultimately impose upon the offender are 25% less than they otherwise would have been. 5. Matters came to the attention of the authorities in a most unusual way. On 24 February 2016 the offender went to a service station. He then went to the toilet where he remained for some time. Eventually he came out, bought two cigarette lighters and went back to the toilet. The console operator had been concerned about this behaviour for some time. He noticed two police officers getting fuel and spoke to them about the offender's behaviour. Police then went to the toilet and knocked on the door intending to check on his welfare. Eventually the offender came out. He was clearly drug affected. Police searched him and discovered a whole lot of things. There was slightly more than $2,000 found in a bag that the offender was carrying. He had a Kenwood brand stereo case which contained a small quantity of methylamphetamine, 2.13 grams and items used for consuming that drug. He had four mobile telephones. Police, as a result of finding what they had found, arrested him and then began to search the utility in which he had arrived at the service station. There they found more drugs and more money. There was a total of 223.4 grams of methylamphetamine divided up into a number of separate resealable plastic bags in a knotted plastic bag, and in a shoebox there was the almost $90,000 cash that I referred to earlier. 6. The offender participated in an electronically recorded interview with police. He told a lot of lies to them, denying his involvement in what was clearly a significant drug supply endeavour. Police were able to get some CCTV footage from the day before. That footage showed the offender picking up the shoebox and counting the cash inside. Also, visible in the footage was the blue insulated bag which contained a significant quantity of the methylamphetamine found in the offender's ute. 7. He was charged with the two offences and has been in custody bail refused ever since. 8. I mentioned before the offender's supportive and loving upbringing in a caring family. Indeed, he was living with his parents at the time of this offending. No other member of his family has ever appeared before the Courts in circumstances such as these. His father was a prison officer and now works for what is now called Border Force. His mother works as well. He has a sister with whom he is close. All of them are supportive of the offender, visiting him in custody regularly. 9. His parents noticed that leading up to this offence he was acting strangely and likely to have been using drugs, but in common with many, many, other parents they were at a loss to know what to do about it. Ultimately, a person's decision as to whether they are going to use drugs or begin to supply them is that person's decision alone. Even kind and loving parents are unable to overcome the problems that drugs cause to their children. 10. Since going into custody the offender has been working well. That is consistent with his work behaviour before going into custody, even managing to hold down jobs whilst using drugs. 11. The offender left school at the end of Year 12. He joined the Air Force for a short time but that was not a happy experience for him and so he left to recommence working in the building industry. It was there that he was working when he committed these offences. He has told others, but it is important to note not given sworn evidence to this effect, that he was persuaded to commit these offences because he had racked up a drug debt of some $4,000. 12. I was asked by Mr Mansfield, who appears for the offender today, to sentence the offender on the basis that he was a mere courier. I am not going to do that. As I have noted, there is no sworn evidence from the offender or indeed anyone else as to the nature of the offender's role in this drug dealing enterprise. 13. There are also suggestions in the evidence which are inconsistent with the offender being a mere courier. The fact that the drugs were packaged into resealable bags ready for on supply and that he had with him a number of other empty resealable bags is significant . The fact that he had four mobile telephones with him is also significant. Couriers usually collect the drugs from point A and take them to point B without delay but that is not what this accused did. 14. In these circumstances I will not sentence him as a mere courier. I will sentence him for what he did. He had 223.4 grams of methylamphetamine in his possession for the purposes of supply. Clearly, he was trafficking to a substantial degree and there are no exceptional circumstances justifying a sentence of other than full-time imprisonment. 15. The offender has some difficulties in prison. His father, who shares his name, was a fairly high up in Corrective Services for some time. Other prisoners recognised the name. As a result the offender is currently in protective custody. It is of course impossible to know whether he will serve the entirety of his sentence in such circumstances and whether the entirety of his sentence will be served in conditions of custody which are worse than that of the general prison population, but in deciding the appropriate sentence to impose upon the offender I have taken into account the risk that both of those things will come about. 16. I mentioned the offender's good behaviour in prison, it extends, apparently, beyond simply working well. At one stage the offender intervened to assist a prison officer who was being attacked by an inmate. He is to be congratulated for doing what he did. His behaviour tends to suggest what is apparent from other material as well, that the offender is a good person who has led himself astray through, firstly, using drugs and then deciding to supply them. 17. The offender says he is remorseful, again, not to me but to others who have prepared written documents for today's proceedings. Not without some hesitation, I will accept that he is remorseful. Clearly, he deeply regrets the effects of his serious crimes on his family but his remorse appears to go beyond that. 18. I am satisfied that he does have good prospects of rehabilitation. That is finding that is often difficult to make in cases of offenders who are drug addicted when they commit their offences. Drug addiction is a difficult thing to deal with, and as this case demonstrates, even having a caring family and loving parents does not prevent a person using drugs if they are determined to do so. But I accept as genuine the offender's remorse at what he has done to his family and his desire to put his life back on track. 19. The psychological report tendered before me today suggests that the offender genuinely wants to change his life. I accept that that is the case. The psychological report also speaks about the offender's severe depression and anxiety. Without wishing to make light of those circumstances, I do have to say that that is not unusual in people facing sentence for serious criminal acts where they must understand that a significant period of custody is required. 20. There needs to be a significant component of general deterrence built into the sentence which I will ultimately impose upon the offender, that is because of, as I began these remarks on sentence, the awful things that drugs do to people. Courts need to do what they can to protect other people who may be tempted to begin using drugs and then tempted to commit serious crimes in order to pay for them. 21. There are special circumstances in this case. Not only is this the offender's first time in custody but he will need, and benefit from, an extended period of supervision on parole as he re-establishes himself in the community, takes up job offers which have been made to him, and deals with life outside of gaol, in particular, dealing with the obvious temptations which will come his way as far as further drug use is concerned. 22. I will impose an aggregate sentence of imprisonment, were I not to have done that I would have imposed the following sentences: 23. On the offence of knowingly dealing with the proceeds of crime, 18 months' imprisonment. 24. On the offence of supplying methylamphetamine, three years imprisonment. 25. Instead, I impose an aggregate sentence consisting of a non-parole period of two years with a head sentence of three and a half years. They are, of course, to date from 24 February 2016 which means that the offender is eligible to be released to parole on 23 February 2018. 26. For the two matters on the s 166 certificate I impose six months imprisonment to date from 24 February 2016..