District Court New South Wales Medium Neutral Citation: R v Jordan Betts [2017] NSWDC 124 Hearing dates: 16 May 2017 Decision date: 25 May 2017 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Term of imprisonment, suspended sentence. For orders see [55] Catchwords: Supply of prohibited drugs; firearms offences; aggregate sentence. Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985 Firearms Act 1996 Cases Cited: Le v R [2017] NSWCCA 26 Category: Sentence Parties: Director of Public Prosecutions (Crown) Jordan Betts (Offender) Representation: Solicitors: L Hanshaw (Crown) D Barron (Offender) File Number(s): 16/219039 Publication restriction: Nil REMARKS ON SENTENCE 1. The offender is to be sentenced in respect of the following five charges: 1. Sequence 1 – Supply prohibited drug, namely, 100 3, 4‑methylenedioxymethylamphetamine ("MDMA") tablets with a weight of 26.2 grams, pursuant to s 25(1) of the Drug Misuse and Trafficking Act 1985 ("DMTA"). The maximum penalty for the offence is a term of imprisonment of 15 years. 1. Sequence 4 – Supply unregistered firearm (not prohibited or pistol), namely, an unregistered .22 Sterling rifle with serial number 217700, pursuant to s 36(1) of the Firearms Act 1996. The maximum penalty for this offence is a term of imprisonment of 5 years. 1. Sequence 5 – Supply unregistered firearm (not prohibited or pistol), namely, an unregistered 22-250 Zavodi Crevena Zastovo rifle with serial number 35793, pursuant to s 36(1) of the Firearms Act 1996. The maximum penalty for this offence is 5 years imprisonment. 1. Sequence 6 – Supply prohibited firearm to unauthorised person, namely, a shortened shotgun to a person not being authorised to possess the prohibited firearm by a licence or permit, pursuant to s 51(1A)(a) of the Firearms Act 1996. The maximum penalty for this offence is a term of 20 years imprisonment. There is a Standard Non-Parole Period of 10 years. 1. Sequence 8 – Supply prohibited drug, namely, did agree to supply MDMA in a quantity of 53 pills, pursuant to s 25(1) of the DMTA. The maximum penalty for this offence is 15 years imprisonment. 1. There is a further offence subject to a certificate pursuant to s 166 of the Criminal Procedure Act 1986 as a related offence: Sequence 3 – Supply ammunition without holding a licence, permit or authority to do so, namely, did supply 20 shotgun shells without being authorised to possess that ammunition by licence or permit, pursuant to s 65(3) of the Firearms Act 1996. The maximum penalty for this offence is a fine of $5,500. The sentence hearing 1. The sentence hearing took place on 16 May 2017, following upon the sentence hearing in relation to a co-offender, the offender's brother, Jarrod Betts. The Crown Sentence Summary became Ex A on the sentence hearing. It included a Statement of Agreed Facts, which may be summarised as follows. 2. In July 2015, a Strike Force was established to investigate the supply of prohibited drugs and firearms in the Wagga Wagga area by Jarrod Betts and associates. The co-offender resided at premises in Beale Street, Ashmont. At the rear of those premises was a large shed where the co-offender stored items and supplied prohibited drugs from. The offender lived in different premises in Tobruk Street, Ashmont. 3. On 30 July 2015, an undercover officer attempted to contact the co‑offender to arrange the supply of firearms and prohibited drugs. Soon after, the officer received a text message from the co-offender informing him to contact the offender to arrange the sale. At approximately 6.30pm on 30 July 2015, the officer drove to Tobruk Street, Ashmont, and picked up the offender. He then drove to Beale Street, Ashmont, and the offender took the officer to the shed located at the rear of the house. In that shed was located an unloaded shortened 12 guage "Boito Brazil" shotgun, and a belt containing 20 shotgun rounds. Also located was a sunglasses case which contained three resealable bags of pills. One of those bags contained 100 pills, the two other bags each contained 50 pills. 4. A sale of 100 pills and the shortened shotgun, together with the ammunition, was then negotiated for a total of $2,100. At no stage was the officer asked to provide paperwork showing he was entitled to possess the prohibited firearm or ammunition. The pills were later analysed and found to weigh 26.2 grams, and consisted of MDMA, with a purity of 18%. 5. The shortened Boito shotgun was a single-shot 12 guage shotgun with serial number 519538. It was not in working order due to a broken firing pin. Portions of the barrel and butt-stock had been removed and it had an overall length of approximately 562 millimetres. This was less than the minimum proscribed by legislation. The shotgun shells were examined and found to be suitable to be used with the Boito shotgun. The shotgun was not registered. Two offences of supply unregistered firearms (not prohibited or pistol) 1. On 29 September 2015, an undercover officer contacted the co-offender on his mobile phone. The call was terminated and the officer then contacted the offender, who informed the officer that he would get in touch with the co‑offender and have him return the phone call. A number of telephone conversations between the co-offenders were then lawfully intercepted as follows. At 3.27pm the co-offender told the offender that he was out of town and would be back in about half an hour. The offender said: "They don't want to be fucked around they have money, they're not going to fuck you around Jarrod." At 3.30pm the offender sent a text message to the co-offender stating: "Ring him. U won't get fucked around trust me I talk to these guys all the time they're alright make some money for yourself." At 3.30pm the offender contacted the officer informing him that he had contacted the co-offender who would be back in town in half an hour. At 3.34pm the offender sent a text message to the co-offender stating: "Just got off the phone to old mate, he's 100% getting them bro, because the blokes you're meeting up with are getting them for him so they have his money man. Come get me if you want." A further phone call at 4.22pm took place in which the offender said: "Come get me and I'll go with you." At 5pm the offender called the co-offender and said: "What have you got there and how much do you want for everything?" The co-offender informed him that: "There's a 22-250 and a 22." 1. Further telephone calls took place as to the transport of the co-offenders and the prohibited weapons. The co-offender then arranged a place to meet the undercover officer and at 5.47pm on 29 September 2015, the co-offender met the officer at the car park of Barbecues Galore in Edward Street, Wagga Wagga. The co-offender was carrying a black guitar case which he opened in the officer's vehicle. They then negotiated the price of $1,600 for the supply of two rifles, and the money was handed to the co-offender. The two rifles supplied by the co-offender were a .22 Sterling rifle serial number 217700, and a 22-250 Zavodi Crevena Zastovo rifle serial number 35793. The firearms were examined and found to be in working order. The offender assisted in the transaction by his phone calls and text messages to both the co-offender and to the undercover officer, and was active in encouraging his co‑offender/brother to sell firearms to the officer. Supply prohibited drug, namely, 5 tablets of MDMA 1. During the course of monitoring the phone of the offender, it became apparent that he agreed to sell MDMA on a number of occasions. Between 18 September 2015 and 16 October 2015, eight agreements to supply MDMA pills took place. In total, the offender agreed to supply 53 tablets of MDMA. That is the offence contained in sequence 8. It is an offence with which the offender is alone charged. The other offences involve the co-offender. 2. The offender spent 72 days in custody following his arrest on 20 July 2016, until 29 September 2016, when he was granted bail. 3. Exhibit A also contained a pre-sentence report under the hand of Ms Di Brooks dated 4 May 2017. That report sets out the family and social circumstances of the offender. It records that the offender admitted abuse of cannabis and methylamphetamine since the age of 17 years, but that he advised that he had not used illicit drugs since July 2016. The offender had suffered undiagnosed anxiety and depression during his early childhood and adolescence, however, he now had a mental health treatment plan. 4. Under the heading "Attitude to Offending", the offender had acknowledged his guilt of the offences. He had insight into the emotional turmoil he had caused his family, and expressed shame, guilt and remorse for the impact of his offending behaviour on the community. He was assessed as a medium/low risk of re-offending and his identified criminogenic needs are: * Alcohol/drug problems * Emotional/personal 1. The offender was assessed as someone who was influenced by others, however, he took responsibility for his offending behaviour. It was considered that he would benefit from a period of supervision by Community Corrections, with case management strategies that would include: * Monitoring and engagement with psychologist * Monitoring and engagement with mental health treatment plan * Monitoring and engagement with drug counselling service for prevention of substance abuse relapse. 1. He was assessed as suitable for a Community Service Order. The offender's evidence 1. The offender tendered a letter dated 28 April 2017 (Ex 1) apologising for his criminal conduct, and explaining that he was easily influenced by inappropriate activities and people at the time of the offending. He had since obtained reliable, consistent work, and had not re-offended. He was also in a relationship and was expecting his first child in July 2017. The offender had also attended numerous drug and alcohol rehabilitation sessions. He requested consideration that prison time be avoided if possible. 2. Exhibit 2 was a letter from the offender's employer which speaks highly of his work ethic. It also included two testimonials which are testament to his good character, his desire to improve his position in life and to remedy his past mistakes. 3. Exhibit 3 comprised evidence relating to the medical condition of the offender's father, who suffers from a heart condition. 4. The offender gave evidence. Since granted Supreme Court Bail, he had worked in three jobs and was now employed full time as a labourer. He was still seeking counselling by way of rehabilitation, and attended NA meetings at Calvary Hospital twice per week. He had not offended whilst on bail. At the time of the offending he was addicted to ice and marijuana. He was using 1 gram of ice per week, and 1 ounce of marijuana. He was financing his habit by his work, stealing and selling drugs and firearms. When his co‑offender/brother had been arrested, he was very hurt. This led to him getting off ice, which he had not used since. However, he had still continued to use marijuana to a significant extent, but had stopped selling drugs. 5. Following his arrest and being charged, he had spent 72 days in custody, which he found a terrifying experience. He did not want to be there, however, it was comforting for him to be in the same prison pod as his brother Jarrod. 6. Whilst in custody, the offender, who is now 22 years of age, had time to think. He now understood how drugs had affected his life and how selling drugs had effected the lives of others. He felt really guilty and very bad about that. 7. He also agreed that selling firearms involved very dangerous behaviour. 8. The offender now was in a relationship and living in a unit at Lake Albert with his fiancée. Their first child is due to be born on 1 July 2017. He has also restored his relationship with his family. The offender gave evidence that he had discussed with his legal representatives the alternatives to full time custody and realised that if he offended whilst on conditional liberty, he would be placed straight back into custody. He would not do that because he now had a family to support. 9. The offender also realised the effect of his criminal conduct on his father, given his heart condition. He felt ashamed of himself for doing so. 10. In cross-examination, the offender acknowledged that he had not spent any time in a residential rehabilitation program. He had, however, done the day program at Calvary. In respect of the sequences 1 and 4, he believed that all the proceeds from the sales went to his co-offender/brother. 11. The Agreed Facts in respect of sequence 5 involved him encouraging his brother to offend. He only did this because his friend was wanting them to do this deal. The offender's submissions 1. The offender submitted that he had nil prior offences. The offence pursuant to s 51(1A)(a) of the Firearms Act 1996, had been conceded by the Crown to be offending with objective seriousness at the lower end of the range. It was submitted that sequences 4 and 5 fell below mid-range and towards the lower end. In respect of sequence 8 and sequence 1, it was submitted that because the quantity in respect of each transaction was not large, the objective seriousness of each offence fell below the mid-range. 2. The offender was entitled to a 25% discount on sentence following his early plea of guilty. He had also spent 72 days in custody which should be taken into account. Since his discharge from custody, he had been reporting three times per week and had not offended whilst on bail. It was submitted that on that basis his prospects for rehabilitation were good. 3. It was submitted on behalf of the offender that his offending conduct was borne of his ice and cannabis abuse. Following his brother's arrest, he had given ice away and had been drug free since 20 July 2016, when he went into custody. 4. It was submitted that the offender had a good work ethic and had built bridges with his partner and family. The prospect of having a child gave him added responsibility. He was assessed as a low risk of re-offending and had a strong sense of remorse for his offending. It was submitted that in respect of specific deterrence, his 72 days in custody for his first offence had had a huge effect on him and he had learnt a salutary lesson. Notwithstanding the need for general deterrence, and having regard to the 25% utilitarian discount on sentence, it was submitted that a sentence other than full time custody could be available to him. Otherwise, a head sentence of 2 years or less was warranted, which would lead to the court considering non-custodial options. 5. In the event that a sentence was imposed of greater than 2 years, a finding of special circumstances should be made pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"). It was submitted that the non‑parole period should comprise time served and a lengthy parole period. It was important not to undo the benefit that he had enjoyed from his rehabilitation to date. He was in full time employment and was about to start a family. 6. It was further submitted that principles of parity apply so that given his lesser role and involvement in the criminal offending, by comparison to his co‑offender, he should receive a lesser sentence. He also had no prior convictions. 7. Finally, it was submitted that the offender had expressed genuine contrition for his criminal conduct and he was unlikely to re-offend. Crown submissions 1. The Crown submitted that it did not take issue with much of the submissions made on behalf of the offender, however, the offending involved drug trafficking to a substantial degree and therefore only a full time custodial sentence was appropriate. It was submitted that the offending took place over a period of time. The principle of parity should also apply with respect to the co-offender Jarrod. The offender's role was less that of his brother, however, the offending was still serious. Submissions in reply 1. The offender submitted that he had not been trafficking to a substantial degree. There were not a large number of conversations, let alone transactions involved. Further, there had been voluntary cessation of his offending after the arrest of his brother, which was relevant in the sentencing process. Determination 1. Section 3A of the C(SP)A sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community." 1. The objective seriousness of the offending in sequence 1, which involved the supply of MDMA of 26.2 grams, by way of 100 tablets, fell at the lower end of the range of objective seriousness as conceded by the Crown. 2. I find the objective seriousness of the offending in sequences 4 and 5, for offences pursuant to s 36(1) of the Firearms Act 1996, also fell below the mid-range and within the middle of the lower range for an offence pursuant to that section. 3. In respect to sequence 6, the offence of supply prohibited firearm by way of a shortened shotgun, pursuant to s 51(1A)(a) was just below the mid-range for an offence pursuant to that section. 4. The objective seriousness of sequence 8, supply prohibited drug, namely agree to supply 53 pills of MDMA, was also towards the lower end of the range for an offence pursuant to s 25(1) of the DMTA. 5. The offender is entitled to a 25% discount on sentence for his early plea of guilty. I have taken into account that he spent 72 days in custody following his arrest, and that he has not breached his Supreme Court Bail since his release on bail. 6. I also accept the submission that the offending conduct was borne of his addiction to ice and cannabis. He stopped using ice following his brother's arrest in July 2016, and has made progress with his rehabilitation, albeit on a non‑residential basis, since then. It is no small thing to overcome a drug addiction, particularly to the drug ice, and I find that there is a positive prospect that he will be rehabilitated with help in due course. That help will involve referral for drug and alcohol counselling and relapse prevention. 7. General deterrence is important in respect of both drug supply and firearms offences. A clear message must be sent to like-minded persons in the community that Parliament has set severe penalties for such offences and that the courts impose lengthy custodial sentences in relation to them. Specific deterrence is also important here, although the 72 days spent in custody have had a salutary effect on the offender. 8. I have taken into account the maximum penalties proscribed by Parliament for each of the offences as set out above. The maximum penalties are guideposts in the sentencing process. I have also taken into account the maximum penalty for the related matter on the s 166 certificate, as set out above. 9. I propose to proceed by way of an aggregate sentence, having regard to the number of offences here. However, before I do so, I am required to provide the indicative sentences that I would otherwise have sentenced the offender to. This provides transparency in the sentencing process. Where there is no standard non-parole period proscribed for an offence, I am not required to indicate what non-parole period would be imposed for that purpose. 10. I have had regard to the principle of parity in sentencing here, with regard to the sentencing of the offender's brother Jarrod. 11. Recently, in Le v R [2017] NSWCCA 26, the Court of Criminal Appeal set out the following statements of principle per Hoeben CJ at CL (Walton and Latham JJ agreeing) at [35]: "The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them (see Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 610-611, per Mason J). In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error: Lowe v The Queen at 617-618 per Brennan J. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance': (fLowe v The Queen esp. at 610 per Gibbs CJ; at 613 per Mason J; and at 623 per Dawson J.). If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality." (Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 301-302 per Dawson and Gaudron JJ). 1. I have had regard to the roles played in the offending, and find the offender's role was less than that of his brother Jarrod. In respect of four of the offences, however, (sequences 1, 4, 5 and 6), they were involved in a joint criminal enterprise. I have also had regard to principles of totality and proportionality. 2. The indicative sentences that I would have imposed for the offences are as follows: Sequence 1 – offence of supply 26.2 grams of MDMA pursuant to s 25(1) of the DMTA – 9 months imprisonment. Sequence 4 – Supply unregistered firearm, namely, .22 Sterling rifle serial number 217700, pursuant to s 36(1) of the Firearms Act 1996 – 12 months imprisonment. Sequence 5 – Supply unregistered firearm, namely, 22-250 Zavodi Crevena Zastovo rifle serial number 35793 – 12 months imprisonment. Sequence 6 – Supply prohibited firearm, namely, shortened shotgun, pursuant to s 51(1A)(a) of the Firearms Act 1996 – 12 months imprisonment with a non-parole period of 6 months. Sequence 8 – Supply prohibited drug, namely 53 pills of MDMA pursuant to s 25(1) of the DMTA – 9 months imprisonment. 1. With respect to the offence on the certificate pursuant to s 166 of the Criminal Procedure Act 1986, the indicative sentence is a conviction without imposing any other penalty pursuant to s 10A of the CSPA. 2. There must be some accumulation demonstrated in an aggregate sentence, having regard to the indicative sentences. It is also necessary that the sentence be just and appropriate for the offending conduct. I have, however, taken into account that you have spent 72 days in custody. 3. Having regard to the objective seriousness of the offending, and the subjective matters outlined above, I propose to sentence you to an aggregate sentence of 2 years imprisonment. However, I propose to suspend that sentence pursuant to s 12 of the CSPA, on condition that you accept the supervision of Community Corrections as to your drug and alcohol rehabilitation and relapse prevention Orders 1. You are convicted of the following offences: Sequence 1 – that you supplied a prohibited drug, namely 100 MDMA tablets with a total weight of 26.2 grams pursuant to s 25(1) of the DMTA. Sequence 4 – that you supplied an unregistered firearm, namely, .22 Sterling rifle with serial number 217700, pursuant to s 36(1) of the Firearms Act 1996. Sequence 5 – that you supplied an unregistered firearm, namely, 22-250 Zavodi Crevena Zastovo rifle with serial number 35793, pursuant to s 36(1) of the Firearms Act 1996. Sequence 6 – that you supplied a prohibited firearm, namely, a shortened shotgun, to a person not being authorised to possess the said prohibited firearm by licence or permit, pursuant to s 51(1A)(a) of the Firearms Act 1996. Sequence 8 – that you supplied a prohibited drug, namely, that you agreed to supply 53 pills of MDMA, pursuant to s 25(1) of the DMTA. You are also convicted of the offence subject to the certificate pursuant to s 166 of the Criminal Procedure Act 1986, of supply ammunition, namely, 20 shotgun shells, without being authorised to possess that ammunition by licence or permit, pursuant to 65(3) of the Firearms Act 1996. 1. You are sentenced on all of the above offences to an aggregate sentence pursuant to s 53A of the CSPA. 2. I make the following orders: 1. I sentence you to a term of 2 years imprisonment. 2. I suspend that sentence pursuant to s 12 of the CSPA, on condition that you enter into a bond to be of good behaviour for the period of 2 years on the following conditions: 1. That you accept the supervision of Community Corrections as to your drug and alcohol rehabilitation, including relapse prevention. 2. That you accept all other reasonable directions by Community Corrections. 1. I order that the firearms and prohibited drugs which are the subject of these charges be destroyed. ********** 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: 26 May 2017