R v Robertson, R v Fisher [2017] NSWDC 377

District Court New South Wales

Medium Neutral Citation: R v Robertson, R v Fisher [2017] NSWDC 377 Hearing dates: 13 December 201615 December 2017 Date of orders: 15 December 2017 Decision date: 15 December 2017 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The offenders are referred for assessment as to their suitability to serve their sentences by means of an Intensive Corrections Order Catchwords: CRIMINAL LAW – Sentence – Form 1 – s11 remand – Trafficking to a substantial degree – Cocaine – Dealing with property suspected to be proceeds of crime. Category: Sentence Parties: The Crown Wayne Robertson Craig Fisher Representation: Counsel: B Barrack – Offender Robertson K Earl – Offender Fisher

Solicitors: Director of Public Prosecutions – The Crown File Number(s): 2016/23223 & 2016/23231

Judgment 1. HIS HONOUR: The two offenders for sentence today first came before me almost exactly a year ago on 13 December 2016. On that occasion for reasons I indicated on that date, I decided that it was appropriate to give the offenders the benefit of a s 11 remand, the idea being I would give them a chance to prove to me that they were very different people from the people they were when they were supplying drugs. 2. On two occasions due to matters involving my availability we have had to postpone the resumption of the hearing. This has in many ways been further to the benefit of the accused because they have been able to demonstrate their change in behaviour for a longer period than would have otherwise been the case. They now come to court, especially in the case of Mr Fisher, as people who have demonstrated, rather than just promised, rehabilitation. 3. It remains of course however that they are to be sentenced for serious criminal activity involving drug trafficking, which as I explained on the last occasion was trafficking to a substantial degree. They were arrested as long ago as January 2016, almost two years ago. They were in a car. Police observed suspicious behaviour and approached the car. Robertson was in the driver's seat with Fisher in the passenger seat. They and the car they were in were searched. Four small grey coloured plastic bags were located in the crotch area of Mr Robertson's pants, he told police that it was crack, MDMA. Mr Fisher was searched and a substantial sum of money in cash was found in his front left pocket. In the front passenger footwell, it being recalled that Mr Fisher was seated in the passenger's seat, was a small black satchel which contained Mr Fisher's identification along with two further quantities of cash, $230 in one section of the bag and $920 in another. A black Nokia mobile phone was also found. 4. Police also found, in the boot of the car, nine bags identical to the ones found in the crotch area of Robertson. They were both arrested, taken back to the police station where a further more extensive search was conducted. This revealed another small clear resealable bag holding a white powder located in Robertson's crotch area. When Fisher was searched a bag identical to what was found on Robertson and in the boot of the car was located in his underwear. In all police located and seized 14 small resealable bags of white powder and $2,950 in cash. When those 14 bags of powders were submitted for analysis it was found that the white powder was not in fact crack or MDMA but was cocaine, 7.28 grams of that drug. 5. The offenders pleaded guilty to that offence of supplying that quantity of cocaine. They each asked, when I sentenced them for those matters, that I take into account a matter on a Form 1, dealing with property suspected to be the proceeds of crime, that relating to the $2,950 that was found by police. 6. As I explained on the last occasion this is not the extent of their drug dealing activities. It certainly cannot be said that their possession of that quantity of cocaine for the purposes of supply was isolated. The Nokia mobile phone to which I referred earlier, was used only for the purpose of drug supply activities and it was obvious that the phone was used on many occasions to arrange drug supplies. More than 64 calls between relevant numbers were recorded when police examined the phone. They were, as I said on the last occasion, street level dealers but enthusiastic drug suppliers who had been doing what they had been doing for some time. 7. It is no longer the law that those trafficking to a substantial degree need to demonstrate exceptional circumstances before a sentence of other than fulltime custody is imposed. That two stage process has been held by the Court of Criminal Appeal, recently, to be inappropriate. I decide the length of the sentence and where appropriate the form of the sentence without engaging in that stepped process. 8. The offenders pleaded guilty at the earliest opportunity and so the sentences I impose upon both of them will be 25% less than that would have otherwise have been. In addition, the pleas of guilty have been one a number of factors which have persuaded me to consider imposing a sentence of other than fulltime custody. 9. There is nothing much in the background of either offender which would explain why they were drug dealers, apart of course from one significant matter, they were drug users. The connection between drug use and drug supply, is a notorious one. For that reason it is often the case that if a person gives up their drug using activities they will not then engage in drug dealing activities. That is part of the reason that I adjourned these matters in the first place, to see whether it was possible for the offenders to give up drugs. In Mr Fisher's case he has demonstrated that beyond question. One of the conditions of bail applying to both him and Mr Robertson concerned urinalysis. I required that they undergo regular urinalysis and that they supply the results of such urinalysis to me when they came back before me. It is pleasing to note that Mr Fisher has done exactly what I asked him to do, he has provided fortnightly urinalysis, all of which has been negative. On top of that he has done everything that community corrections asked of him. He has reported on every occasion. He has gained fulltime employment and has held that for some time. He has engaged in counselling. The community corrections officer spoke to the facilitator of one particular program who described Mr Fisher as: "a valued group member who has gained insight and was able to reflect on the choices he made that led him to his criminal behaviour." 1. The officer of community corrections assesses Mr Fisher as "an insightful individual who appeared to be determined in altering his life for the better." Mr Fisher has what I would describe as an 'A' grade pass, he has demonstrated to me that he is capable of giving up drugs, that he has given up drugs and that it is most unlikely that he will offend again in the future. 2. Mr Robertson has not got an 'A' grade pass. Mr Robertson has failed to fully comply with his bail conditions in undertaking fortnightly urinalysis. As the updated pre‑sentence report notes, he failed to provide urinalysis on eight occasions, 7 April 2017, 5 May 2017, 2 June 2017, the whole of July 2017, 1st and 15th September 2017 and 13 October 2017. 3. He claimed that his employment obligations prevented him from doing what was required of him. As I pointed out to his barrister in the course of submissions today, what I wanted Mr Robertson to do was not the subject of a request or a hint, it was a condition of his bail. Indeed had I been told that he was not complying with bail conditions and had the Crown made a detention application, it is quite likely that I would have revoked Mr Robertson's bail. 4. Bail is an opportunity for an offender to be at liberty but the person the subject of bail conditions is required to comply with those conditions if he or she wants to stay out of gaol. Such a failure as Mr Robertson demonstrated of course raises the suspicion that Mr Robertson only got tested when he knew he would pass and did not attend for testing when he thought there was a risk that he would fail. 5. I have considered whether I am able to make a finding on balance of probabilities that Mr Robertson has given up drugs. Notwithstanding my obvious suspicions I will make that finding. I will accept on the balance of probabilities that his failure to attend for urinalysis on every occasion as I required, is as a result of what he claimed, employment obligations. But that is not the end of the matter, Mr Robertson's demonstrated failure to comply strictly with his conditions of bail is a factor that I will take into account in determining the length of the sentence to impose upon him. 6. The principles of parity apply, neither Mr Fisher nor Mr Robertson should have a justifiable sense of grievance when he compares his sentence with that imposed upon his co-offender, I will ultimately impose identical sentences upon them. Mr Robertson's failure to comply strictly with his bail conditions is balanced by the fact that Mr Fisher was on two s 9 bonds at the time of his offending. 7. Apart from the problems with Mr Robertson undergoing urinalysis, he has done very well in the remand period. He has maintained consistent employment, he is now employed as a scaffolder/leading hand on a permanent fulltime basis. He has engaged in psychological therapy to address his gambling issues. He commenced treatment in August and has attended treatment on three occasions. The corrective services officer who looked at him said that he could see progress which could be interpreted as both the offender's willingness to embrace change as much as his resolve to work with community corrections. 8. I note that both offenders have been in custody bail refused for some periods, not in relation to the matters which I am to sentence them but in relation to other matters. I am sure that the taste of custody that they have both had will act as a personal deterrent to them doing anything which will see them return to custody. I have determined the length of the sentence to be imposed and I have decided to accept the submission made on behalf of both offenders, that I should refer for assessment as to their suitability to serve those sentences by means of an intensive corrections order. 9. I want to emphasise something however, I am aware that they are each facing sentence in this Court next year. I do not know precisely what it is for beyond it being offending involving drug dealing unrelated to the matters which are before me today. 10. If I ultimately impose an intensive corrections order on the offenders (and given what they have done to date, I would see that as highly likely) that is not in any way intended to bind the sentencing judge who deals with these offenders for their offences involving unrelated drug supply matters next year. I will adjourn the matter until 9 March 2018 and request that they each be assessed as to their suitability to serve their sentences of imprisonment by means of an intensive correction order. ADJOURNED TO FRIDAY 9 MARCH 2018