District Court New South Wales Medium Neutral Citation: R v Troy Rhodes [2017] NSWDC 125 Hearing dates: 17 May 2017 Decision date: 26 May 2017 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Full time custodial sentence. For orders see [59]. Catchwords: Two offences of supply prohibited drugs; aggregate sentence Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985 Summary Offences Act 1988 Cases Cited: Close v R (1991) 31 NSWLR 743 JM v R [2014] NSWCCA 297 McIntosh v R [2015] NSWCCA 184 Pearce v R (1998) 194 CLR 610 R v Carter [2003] NSWCCA 243 R v Rae [2013] NSWCCA 9 R v Tuuta [2014] NSWCCA 40 Category: Sentence Parties: Director of Public Prosecutions (Crown) Troy Rhodes (Offender) Representation: Solicitors: L Hanshaw (Crown) D Barron (Offender) File Number(s): 16/15226 Publication restriction: Nil remarks on sentence 1. The offender was committed for trial on 27 April 2016 from the Wagga Wagga Local Court. A plea of guilty was notified to the Crown by the defence on 17 February 2017 to the following two charges on an Indictment: 1. Count 1 – On 15 January 2016 at Wagga Wagga, in the State of New South Wales, supplied a prohibited drug, namely, methylamphetamine, in an amount of 54.21 grams, pursuant to ss 25(1) and s 29 of the Drug Misuse and Trafficking Act 1985 ("DMTA"). 2. Count 2 – On 15 January 2016 at Wagga Wagga, in the State of New South Wales, supplied a prohibited drug, namely, amphetamine in an amount of 7.78 grams, pursuant to ss 25(1) and s 29 of the DMTA. 1. In addition, there are five related offences set out in a certificate pursuant to s 166 of the Criminal Procedure Act 1986, which are related matters. They are as follows: Sequence 6 – Possess prohibited drug, namely, 0.40 grams of 3, 4-methylenedioxymethylamphetamine ("MDMA"), pursuant to s 10(1) of the DMTA. Sequence 8 – Have custody of a laser pointed in a public place, pursuant to s 11FA(1)(a) of the Summary Offences Act 1988. Sequence 9 – Deal with property suspected proceeds of crime, namely, $16,455.00 pursuant to s 193C(1) of the Crimes Act 1900. Sequence 10 – Possess prohibited drug, namely, 3.33 grams of oxymetholone pursuant to s 10(1) of the DMTA. Sequence 11 – Possess prohibited drug, namely, 0.62 grams of cocaine, pursuant to s 10(1) of the DMTA. The sentence hearing 1. The sentence hearing took place on 17 May 2017. The Crown bundle (Ex A) included a statement of Agreed Facts which may be summarised as follows. 2. On Thursday 14 January 2016, the offender checked into a motel in Wagga Wagga in his Ford Falcon sedan motor vehicle, registration number CIN 93M. On the following morning, 15 January 2016, the police sighted the accused's vehicle in the car park at the motel and attended his room there for the purpose of arresting the accused in respect of domestic violence related incidents. Following his arrest, police conducted a search of the accused's vehicle in which a number of items were found. 3. Count 1 arose from the police locating the following: - a clear resealable bag containing a crystalline substance which was analysed as methylamphetamine and weighed 33.8 grams. - a further bag analysed as 17 grams of methylamphetamine. - three clear bags containing a total of 12.5 tablets, 11 of which were later analysed as methylamphetamine with a total weight of 3.41 grams. 1. The total amount of methylamphetamine located in the accused's vehicle was 54.21 grams, which is over 10 times the indictable quantity for that prohibited substance. 2. Also located in the vehicle were 1.5 tablets of MDMA ecstasy, with a total weight of 0.40 grams. This was the subject of sequence 6 on the s 166 certificate. 3. Count 2 arose from the following items being located in the accused's vehicle: - two clear resealable bags containing a brown crystalline substance totalling 6.97 grams of amphetamine. - two resealable plastic bags containing a crystalline substance analysed as 0.81 grams of amphetamine. 1. The total amount of amphetamine located in the accused's vehicle was 7.78 grams, which is almost twice the indictable quantity for that particular substance. 2. Also located in the accused's vehicle were six brown tablets analysed as 3.3 grams of oxymetholone, a known steroid (sequence 10 on the s 166 certificate); and two resealable plastic bags containing a total weight of 0.62 grams of cocaine (sequence 11 on the s 166 certificate). 3. Also found in the offender's car, and within his motel room, was a total of $15,330.00 in cash, reasonably suspected to be proceeds of supply of prohibited drugs (sequence 9 on the s 166 certificate). Later, the sum of $1,125 was located in the offender's hotel room. The total amount of currency seized was the sum of $16,455.00. 4. Also located in a bag on the back seat of the vehicle was a black laser pointer, rated well above the restriction for such a pointer (sequence 8 on the s 166 certificate). 5. The search of the accused's vehicle also contained various indicia of drug supply including scales, records and mobile phone, together with a Blackberry mobile phone concealed within the lining of the boot of the car. The model of the Blackberry was known by investigators to be used by members of organised crime and drug dealers, as it is able to be heavily encrypted. Police believe that the accused is a mid-level drug supplier. He had concealed the prohibited items inside the vehicle such that they would not have been found without removing several panels and facades inside the vehicle. 6. The offending occurred when the offender was on conditional liberty, being on bail for domestic violence charges, and on a s 9 Bond imposed on 25 November 2015 in the Local Court in respect of an offence of contravening a prohibition or restriction in an apprehended violence order. 7. The offender was arrested on 15 January 2016 and subsequently sentenced in respect of the domestic violence offences for which he was on bail on 1 April 2016, to two terms of imprisonment for 10 months, with a non-parole period with conditions of 4 months, commencing on 15 January 2016 and expiring on 14 May 2016, with a balance of term of 6 months, expiring on 14 November 2016. On 23 May 2016, he was sentenced in respect of a further contravention of a domestic violence order to a s 9 Bond to be of good behaviour for 2 years. 8. On 6 September 2016, the offender was sentenced in respect of further domestic violence offences to two terms of imprisonment for 18 months, with non-parole periods of 9 months, to be served concurrently, commencing on 18 January 2016 and concluding on 17 October 2016, with a balance of term concluding on 17 July 2017. 9. Exhibit A contained the criminal history of the offender in New South Wales and Queensland. It included an offence of assault occasioning actual bodily harm for which he was sentenced in October 2006, numerous domestic violence offences from 2011, culminating in the custodial sentences referred to above, one driving offence and two convictions for possessing prohibited drugs, one in Queensland in 2012, and one in New South Wales in 2013. There was no conviction recorded in respect of either of those charges. Relevantly, however, on 12 April 2013, the offender had been sentenced in the District Court at Sydney on a charge of supply prohibited drugs greater than an indictable quantity to an Intensive Correction Order for 1 year 10 months and 2 weeks, to commence on 19 April 2013. 10. Exhibit A also contained the offender's custodial record which showed no disciplinary matters. It also contained the Statement of Facts concerning the supply prohibited drug charge in 2013 for which he was sentenced to an Intensive Correction Order ("ICO"). 11. Exhibit A also contained a Pre-Sentence Report ("PSR") under the hand of Mr Paul Willis, dated 5 May 2017. The offender had first had contact with Community Corrections on 25 October 2006 as a result of the two year s 9 Bond referred to above. His supervision was terminated as a result of his favourable response to that supervision. He again had contact with Community Corrections as a result of the Intensive Correction Order referred to above, which he completed on 11 April 2015, despite receiving an official warning from the State Parole Authority on 10 December 2014 regarding illicit substance use and non-compliance to scheduled work hours. 12. The PSR set out the offender's family and social circumstances. He had had two serious long-term relationships and was the father of two children with his first partner. His most recent relationship lasted approximately 12 months, although it had ceased upon his entering into custody. 13. The offender had completed school in year 10, and had done unskilled farm work between the ages of 16 and 18. He had worked for a dairy service thereafter for 10 years and had most recently worked as an interstate truck driver for a period of 6 years. He had been unemployed for three months prior to his incarceration. 14. The author of the report noted that the offender claimed he had commenced amphetamine use from the age of 36 years after his second marriage ended. He amended that in evidence to age 35 years. He had commenced dealing as a way to fund his own use of illicit drugs, namely, amphetamines. He acknowledged and accepted responsibility for his criminal conduct, acknowledging that his personal drug use led to him dealing to fund that use. 15. The offender was assessed as a medium risk of re-offending and his identified criminogenic needs are: * Family/marital * Alcohol/drug problems 1. It was considered that the offender would benefit from a period of supervision by Community Corrections, with case management strategies including: * Alcohol and other drug interventions * Assessment for domestic abuse counselling 1. The reporter assessed the offender as being unsuitable for a Community Service Order. The offender's evidence 1. The offender tendered a letter written by him outlining his experience in custody. He had made progress with his own rehabilitation and was on a waiting list for rehabilitation programs. The offender had abstained from using drugs since he commenced in custody and had developed a huge "dislike for drugs". He had lost his partner and damaged family relationships as a result of his drug use. He also understood the damage caused to family, friends and the community generally. His two children were aged 9 and 8, and upon release from gaol he wanted to make sure he was a positive role model for them. 2. Exhibit 2 was a certificate for his completion of a Positive Lifestyle Program dated 16 March 2017. 3. Exhibit 3 comprised a number of references from family and friends, and a potential employer, which spoke of the offender's character and work ethic. They also spoke to his commitment to rehabilitation and his motivation to building a nurturing environment for his two children. 4. The offender also gave evidence. He had been in custody since 15 January 2016, which was his first time in custody. He gave evidence that he never wanted to experience gaol again. He accepted responsibility for his criminal offending and would complete as many courses as he could for his rehabilitation. The offender gave evidence that he had been unemployed for three months prior to his arrest because of his drug use. It had made him unreliable and he was not in the right frame of mind because of that use. He also developed issues with his girlfriend. 5. The offender gave evidence that he commenced the use of illicit drugs at age 35 because of the break-up of his marriage. He commenced using amphetamines and that progressed to daily use of ice. He was using at the time of his arrest 0.5 grams per day of ice, and selling drugs to feed his habit. The $16,455.00, the subject of the s 166 certificate charge, was proceeds from the sale of drugs. 6. The offender confirmed that he disliked drugs and did not want to have anything more to do with them. Whilst his drug use had affected his relationship with family and friends, he now had the support of both family and friends. He had a place to reside upon his release, and an offer of work. 7. The offender emphasised how disappointed he was in himself for his offending, as a result of his inability now to have access to his two sons. Prior to his offending he had regular access to them. 8. In cross-examination, the offender gave evidence that, although he had been sentenced by way of an ICO in 2012 for a drug supply charge, he had resumed abusing drugs because he was not in the right frame of mind. Now that he had experienced gaol first hand, he wanted to abstain from drugs and rebuild his life. He gave evidence that the ICO did have some deterrent effect on him "for a while". However, he relapsed. The offender's submissions 1. The offender submitted that the biggest hurdle for him on sentence was that he had been sentenced by way of an ICO for a similar drug supply matter. Whilst he had completed that period of supervision, he had problems with drug use towards the end of it. It was accepted that his criminal history would disentitle him from leniency, however, it was emphasised that the offender needed assistance to help him with relapse prevention, his relationships and his employment. 2. The offender had been of good behaviour for the whole period of 16 months whilst he has been in custody, which spoke well for his prospects of rehabilitation. 3. It was submitted that the court should find special circumstances here pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"), as he would benefit from an extended period of supervision on parole. 4. The offender was entitled to a discount for his plea of guilty. Whilst it had not been made at the earliest opportunity, a plea of guilty had been indicated to the Crown as early as mid-January 2017, and following some negotiations, was finalised on 17 February 2017, so there was no need for any witnesses to be arranged for the trial, which was set down in April 2017. In those circumstances, a discount of 20% was warranted. 5. It was submitted that the principle of totality meant that there should be some partial accumulation of sentence with the domestic violence offences for which he had been in custody since 15 January 2016. Crown submissions 1. The Crown submitted that the maximum penalty on each charge was 15 years imprisonment, which was a guidepost in the sentencing process. Each of the related summary offences on the s 166 certificate carried maximum terms of imprisonment of 2 years. 2. The Crown submitted that a discount of 15% for the utilitarian value of the plea was appropriate. 3. The Crown submitted that it was an aggravating factor that the offender was on two types of conditional liberty at the time of the commission of the offences, namely, bail and a s 9 Bond. It was submitted that the offender's prior criminal record did not entitle him to any leniency on sentence and that the two counts on the Indictment reflected that the offender was substantially involved in the trafficking of illicit drugs. 4. The Crown did not oppose concurrent sentences being imposed as between the counts on the Indictment and related summary matters on the s 166 certificate. However, the Crown submitted that there should be a degree of accumulation on the existing sentences of imprisonment relating to his domestic violence offences, given that the current offences represent a completely separate and discrete course of criminal conduct to that of his domestic violence offences. The Crown submitted that a moderate degree of accumulation was warranted. 5. It was conceded by the Crown that the fact of accumulation can appropriately lead to a finding of special circumstances, "in order to preserve the statutory relationship between the overall head sentence and the overall minimum term to be served prior to release", referring to Close v R (1991) 31 NSWLR 743. It was submitted, however, that special circumstances should not be found unless there are significant positive signs which show that if allowed a longer than usual period of parole, rehabilitation is likely to be successful (R v Carter [2003] NSWCCA 243), and further, that rehabilitation is likely to be successful involves more than a finding that there are signs indicative of 'some capacity for rehabilitation" (R v Tuuta [2014] NSWCCA 40). The Crown submitted that there was no evidence to support a positive finding by the court that the offender will be successfully rehabilitated if granted a longer than normal period on parole. 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. In respect of Count 1 on the Indictment, although the amount of methylamphetamine involved was more than 10 times the indictable quantity, it was a long way below the traffickable quantity for that prohibited drug. In the circumstances, whilst the offending was clearly very serious, it is below the mid-range of objective seriousness for an offence pursuant to s 25(1) and s 29 of the DMTA, but towards the higher end of the low range for that offence. 2. Count 2, being a deemed supply offence of 7.78 grams of amphetamine, is well below the traffickable quantity of the prohibited drug and falls below the mid-range for an offence pursuant to those two sections. It is in the middle of the low range for an offence of deemed supply. 3. The maximum penalty of 15 years imprisonment for each offence is a guidepost in the sentencing process that I have taken into account. I have also taken into account the maximum penalty for the five matters referred to on the certificate pursuant to s 166 of the Criminal Procedure Act 1986, and I refer to those matters below. 4. The offender's criminal history clearly disentitles him to leniency. It is a lamentable record relevant to domestic violence offences, for which he has now served terms of imprisonment. It also included a sentence of imprisonment by way of an ICO pursuant to s 7 of the CSPA of 1 year, 10 months and 2 weeks imposed on 12 April 2013 in respect of a similar matter. Further, an aggravating factor is that the offender was on conditional liberty by way of both bail and a s 9 Bond at the time of his arrest. The Agreed Facts clearly establish that the offender was involved in drug trafficking to a substantial degree. Such a finding is supported by the quantity of drugs the subject of the offences and related matters, the indicia of drug supply found in the motor vehicle, and the amount of money, which the offender admitted were proceeds of crime. It is clear that a full time custodial sentence is warranted and it was not submitted that there were exceptional circumstances. Rather, the focus of the offender's submissions was on the progress he had made in rehabilitation in custody to date, his prospects of rehabilitation in the event of having an extended period on parole following a finding of special circumstances, and a utilitarian discount on sentence of 20%. Further, applying principles of totality, there should be some partial accumulation with the sentence he has been serving in respect of the domestic violence offences from 15 January 2016. 5. The offender is entitled to a discount of 15% for his plea of guilty in respect of each charge. It came following the offender being committed for trial, and at a relatively late stage. However, I note that no witnesses were required to attend court. 6. I was impressed with the evidence given by the offender, and in particular, as to his recognition of the need for rehabilitation and relapse prevention. Unusually, he commenced using illicit drugs at a fairly late stage in life at age 35. It was undoubtedly related to his employment as an interstate truck driver that he first used amphetamines, and later progressed to ice. It is to his credit that he has been drug free for the last 16 months whilst he has been in custody. It is no small thing to overcome a drug addiction and I find here that there are positive prospects of the offender continuing his rehabilitation with appropriate help, both whilst in custody and whilst under parole supervision. I therefore find special circumstances pursuant to s 44 of the CSPA on the basis of his need for rehabilitation, both in relation to relapse prevention for illicit use, and for domestic violence and anger management issues. 7. General deterrence is important in sentencing for drug supply offences. A strong message must be sent to like-minded members of the community that Parliament has set severe penalties for such offences, and that the courts are by well-established authority, required to impose full time custodial sentences in respect of them. 8. Specific deterrence is also important here, given that the offender had previously been sentenced by way of an ICO and had lapsed into illicit drug use during that order. He is now at a point in his life where he has to realise that continued drug use will inevitably lead him to further custodial sentences. I accept that he has expressed remorse and contrition for his offending by expressing his disappointment in himself, and his need to now be a positive role model for his two sons. 9. I am satisfied, having considered all possible alternatives, no penalty other than imprisonment is appropriate pursuant to s 5 of the CSPA. I am further satisfied that this is an appropriate matter for an aggregate sentence pursuant to s 53A of the CSPA, and that the matters contained on the s 166 certificate may be dealt with by way of an aggregate sentence. 10. The Court is required to indicate the sentence that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence. This provides transparency in the sentencing process – see McIntosh v R [2015] NSWCCA 184 at [135]. It is clear that in indicating the sentences, there is no requirement to specify non-parole periods unless the offence is one for which a standard non-parole period is proscribed – see McIntosh v R, supra at [142], JM v R [2014] NSWCCA 297 at [8]. In any aggregate sentence there must be some accumulation of sentence reflecting the seriousness of the offending – see R v Rae [2013] NSWCCA 9. 11. The indicative sentences that I would have imposed in respect of each of the two counts on the Indictment, having regard to the objective seriousness of the offending, the strong subjective matters that I have referred to, and the 15% utilitarian discount on sentence, are as follows: 1. Count 1 – that on 15 January 2016 supplied a prohibited drug, namely, methylamphetamine, pursuant to s 25(1) and s 29 of the DMTA – 2 years and 6 months imprisonment. 2. Count 2 – that on 15 January 2016 supplied a prohibited drug, namely, amphetamine, in amount of 7.78 grams, pursuant to s 25(1) and s 29 of the DMTA – 1 year and 9 months imprisonment. 1. As to the four matters referred to in the s 166 certificate, the indicative sentences that I would have imposed, having regard to the maximum penalty of 2 years in respect of each matter, are as follows: 1. Sequence 6 – possess prohibited drug, namely, 0.40 grams of MDMA pursuant to s 10(1) of the DMTA – 1 month imprisonment 2. Sequence 8 – custody of laser pointer, pursuant to s 11FA(1)(a) of the Summary Offences Act – 3 months imprisonment. 3. Sequence 9 – deal with property suspected proceeds of crime, s 193C(1) of the Crimes Act 1900 – 3 months imprisonment 4. Sequence 10 – possess prohibited drug, namely, 3.3 grams oxymetholone, pursuant to s 10(1) of the DMTA – 1 month imprisonment. 5. Sequence 11 – possess prohibited drug, namely, 0.62 grams cocaine pursuant to s 10(1) of the DMTA – 1 month imprisonment. 1. I have had regard to the principles of totality and proportionality in sentencing as set out by the High Court in Pearce v R (1998) 194 CLR 610 at [45]. 2. Having applied a discount of 15% for the offender's early pleas of guilty, and having found special circumstances pursuant to s 44(2B) of the CSPA, I intend to sentence the offender to an aggregate term of 3 years imprisonment, with a non-parole period of 1 year and 9 months. I accept the Crown submission that a moderate degree of accumulation only should be allowed on the existing sentences relating to his domestic violence offences, as the subject offences represent a separate and discrete course of criminal conduct. The non-parole period will commence on 1 September 2016, and expire on 31 May 2018, with a balance of term of 1 year and 3 months commencing on 1 June 2018 and expiring on 31 August 2019. The total term will be 3 years imprisonment. Orders 1. I make the following orders: 1. You are convicted of the following offences: Count 1 – on 15 January 2016 at Wagga Wagga, in the State of New South Wales, supplied a prohibited drug, namely, methylamphetamine, in amount of 54.21 grams, pursuant to s 25(1) and s 29 of the DMTA. Count 2 – on 15 January 2016 at Wagga Wagga, in the State of New South Wales, supplied a prohibited drug, namely, amphetamine, in amount of 7.78 grams, pursuant to s 25(1) and s 29 of the DMTA. 1. You are also convicted of the related offences set out on the s 166 certificate of the Criminal Procedure Act, namely: Sequence 6 – possess prohibited drug Sequence 8 – have custody of a laser pointer in a public place Sequence 9 – deal with property suspected proceeds of crime Sequence 10 – possess prohibited drug Sequence 11 – possess prohibited drug 1. I sentence you to an aggregate non-parole period of 1 year and 9 months imprisonment commencing on 1 September 2016 and expiring on 31 May 2018. 2. I sentence you to a balance of term of imprisonment of 1 year and 3 months, commencing on 1 June 2018 and expiring on 31 August 2019. 3. The total term will be 3 years imprisonment. 4. Your parole eligibility date will be 31 May 2018. 5. I further order, pursuant to s 18(1) of the Confiscation of Proceeds of Crime Act 1989, that cash in the sum of $16,455.00, found at Wagga Wagga on 14 January 2016, be forfeited to the State. 6. I further order that all prohibited drugs the subject of these offences 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