District Court New South Wales Medium Neutral Citation: R v Collins- Hanlon [2017] NSWDC 35 Hearing dates: 10 February 2017 Date of orders: 10 February 2017 Decision date: 10 February 2017 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The offender is referred for assessment as to his suitability to serve his sentence by means of an Intensive Corrections Order Catchwords: CRIMINAL LAW – Sentence – Drug supply Category: Sentence Parties: The Crown Buddy Collins-Hanlon Representation: Counsel: Mr P Harper - Offender Solicitors: Director of Public Prosecutions - Crown File Number(s): 2016/2017757 SENTENCE 1. HIS HONOUR: Judges are sometimes accused of living in "ivory towers" being divorced from the realities of life. Whether that is true or not, one thing that judges do get constant exposure to is crimes committed by those who are addicted to drugs. We see a side to life few members of the public see. On many occasions I have said that the harm caused by drug use and thus drug supply is enormous. If only members of the public and people like the offender, Mr Collins-Hanlon, could spend a few days in a district court, they would realise the true level of the harm that drugs cause to the community and making of it. 2. Yesterday, I sent a woman to gaol. She, under the influence of drugs, had crashed her car. Her children were travelling with her and, one of those was significantly injured. Another man I sent to gaol yesterday was a drug addict. He broke into business premises and stole things to fund his drug habit. 3. Yesterday, was not at all unusual for me. I often send people to gaol because they have committed crimes under the influence of drugs or in order to obtain funds for their drugs. More direct harm is often caused when drug users suffer the harmful effects of the drugs themselves. As the Crown accurately points out, there is no guarantee that when a person buys drugs there is nothing harmful mixed in with the narcotic substance. 4. I have begun these remarks on sentence with that lengthy introduction because I want to make it clear that the offender's criminal behaviour was serious indeed. He was a drug supplier. He is the sort of person who causes the harms that I have just mentioned. He is the sort of person who causes other people to go to gaol. Drug supply is not an insignificant offence in any sense at all. 5. What the offender did was go to a night club in possession a significant number of MDMA tablets. He was discovered when a security guard went into the men's toilets because of some behaviour that he saw. He looked over the top of the door into the cubicle where the offender was and found the offender acting suspiciously. He was found to be in possession of 52 tablets, one capsule as well as a further four loose tablets. The 52 tablets and the capsule were packaged in seven individual resealable bags. It goes without saying that this was a significant number of tablets, and thus a significant quantity of drugs. 6. The question becomes what the offender was going to do with them. Was he going to supply them to people at the nightclub for money? Or was he, as he has maintained, going to share the tablets amongst his friends, he having earlier been the person nominated to make a bulk purchase of drugs which he would then distribute to his friends at the nightclub? 7. The offender gave evidence today that that is what he was going to do, and that he was not going to supply drugs to anyone other than his friends and certainly not going to make money out of his drug supply activities. Of course such things are easy to say. Anyone whose desire was to supply drugs for money, arrested in the circumstance in Mr Collins-Hanlon was arrested, can easily say, "Oh I was just going to supply them to my friends". It is to be noted that no evidence was called from these friends, if they exist, and all we have really is the offender's evidence as to what he was going to do. For obvious reasons I have to look at what the offender says with a bit of scepticism. 8. Mr Harper presses upon me that I should sentence his client on the basis of what he has said. Mr Harper points to the immediate explanation to the security guard and repeated to police. Although it was not put in evidence directly there was in the written submissions of Mr Harper, without objection from the Crown, an extract from the security officer's statement to police. When the security officer asked the offender, "What are you doing with this many here?" The response recorded is, "I'm no drug dealer, I've only got these for a couple of friends. I've never done this before and the one time I do this, this is what happens". That explanation was repeated to police. It is certainly a factor that I take into account that that explanation was offered soon after the offender was detected but again it is an easy thing for drug suppliers to say such matters. 9. I do also take into account the lack of indicia of commercial supply, that is supply for reward. There is no suggestion that found on the offender was a mobile phone with text messages in which potential customers request drugs for themselves. No doubt the offender was searched and there's no suggestion that he had large sums of cash upon him. Certainly the fact that the drugs were in individual bags is consistent with supplying others but it is not only consistent with supplying for profit. 10. The result is that I will sentence the offender on the basis that he was only going to supply these drugs to his friends, he having been the one nominated because he volunteered to obtain the drugs in bulk. 11. The offender is a man of otherwise good character. Indeed there is a substantial number of people in court to support him and a large number of references were tendered to me today. They include a reference from his employer. The offender is employed as a plumber and his employer has provided the Court with a reference in which he indicates his awareness of the charges to which Mr Collins-Hanlon has pleaded guilty and speaks highly of his work ethic. There is also in evidence a document from the Salvation Army concerning the offender's involvement in counselling sessions. The offender claims, and again I only have his word for it, that he has not used drugs since his arrest. It may or may not be the case but it is likely to be true given the underlying good character of the offender. In any case if he is continuing to use drugs this will be made known to me fairly shortly. 12. I should mention that the plea of guilty to the charge was at an early stage, consistent with the offender's early admissions to the security guard and to the police. I will discount the sentence I would otherwise impose by 25 per cent to reflect the utilitarian value of the plea. 13. I now move to a principle of law which binds me. It is a principle of law which was stated by the Court of Criminal Appeal many years ago and has been restated on many occasions. The principle of law is this: Those who are trafficking to a substantial degree should go to gaol full time unless there are exceptional circumstances. 14. Notwithstanding my finding that the supplies were not for profit, I am still satisfied that the offender was trafficking to a substantial degree. There is no need for an offender to supply on multiple occasions before he or she is regarded as trafficking to a substantial degree. In this case there were a large number of pills and a large number of people to whom the drugs were going to be supplied. 15. The question then becomes whether there are exceptional circumstances justifying a sentence of other than full time custody. There is also a related question as to whether the rule which the Court of Criminal Appeal laid down many years ago needs modification given the comparatively recent sentencing option of an Intensive Corrections Order being introduced. At the time the Court of Criminal Appeal first laid down the rule of which I have been speaking, no such sentencing option was available. Periodic detention was available but that has now gone and ICOs are in place. 16. No one factor in the present case is exceptional. The question is whether in combination they are. The offender was only 20 at the time of his offending. There is no bright line of maturity which a person crosses once he or she reaches his or her 18th birthday. The offender was still very much a young man at the time he was offending, he is indeed only 21 today. He has no priors at all, not even a traffic conviction. He has the substantial support of family, friends and perhaps most importantly his employer. The offender showed immediate remorse, although not surprisingly he seemed to be most concerned about what would happen to him when first discovered as a drug supplier. The offender has been participating in a Salvation Army counselling program. I am satisfied that he does have excellent prospects of rehabilitation and is unlikely to reoffend in the future. 17. As I have said I will sentence him on the basis that this was not a commercial supply and I will sentence him on the basis that this was an isolated action of an offender who was a significant drug user at the time. 18. In combination I am satisfied that such circumstances are exceptional such that full time custody is not required. I have, nevertheless being satisfied that a form of custodial sentence is required. 19. Mr Harper suggested a s 9 bond might be imposed. With all due respect to him I have no hesitation in rejecting that as a proper sentencing outcome. As I began these remarks on sentence drug supply activities, particularly a supplier who traffics to a substantial degree, are serious criminal offences indeed and a s 9 bond would simply fail to reflect the objective gravity of the offender's conduct. 20. I have decided the length of the sentence which should be imposed. It is such that, if suitable, the offender should be given the option of serving that sentence by means of an Intensive Corrections Order. Accordingly, I will adjourn the matter until a date to be discussed and request that an assessment be made as to the suitability of the offender to serve a sentence of imprisonment by means of an Intensive Corrections Order. 21. DISCUSSION AS TO SUITABLE DATE 22. HIS HONOUR: If the ICO assessment is favourable, it may not be necessary for Mr Collins-Hanlon to have the same level of representation if the ICO assessment is unfavourable. 23. HARPER: May it please, thank you I appreciate that. 24. HIS HONOUR: Now Mr Collins-Hanlon, do you know the expression, "You are not out of the woods yet?" Well that is what's happening in your case. I've decided a custodial sentence should be imposed. I've decided it's going to be less than two years. If suitable, you will serve that not by going to gaol but by means of an Intensive Corrections Order, the nature of which I am sure Mr Harper will explain to you soon but if you are not suitable then really, given what you did, it is kind of likely that you will to gaol, so it is important that you co-operate fully with the people who will now come and interview you and determine your suitability, do you understand that? Thank you, your bail is continued until then. 25. ADJOURNED TO 20 APRIL 2017 IN SYDNEY. BAIL CONTINUED. ********** Amendments 20 April 2017 - Correction to cover sheet spelling of offender's name 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: 20 April 2017