District Court New South Wales Medium Neutral Citation: R v LAMB, Brandon [2017] NSWDC 380 Hearing dates: 17 August 2017 Date of orders: 17 August 2017 Decision date: 17 August 2017 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Full-time custodial sentence. For orders see [85] Catchwords: CRIMINAL – SENTENCE – two counts of supply prohibited drugs – 28 grams of MDMA – Form 1 matters of supply prohibited drugs and dealing with proceeds of crime – offences concerned the – full discount for early plea of guilty – 21 years old – no prior criminal history – offender used and supplied small quantities of prohibited drugs – connection between drug addiction and the offender's upbringing and the need to promote rehabilitation – no financial benefit obtained from the supply of the drugs – currently in a stable relationship with permanent employment – full discount for early plea of guilty plus an additional discount for assistance to police – 'special circumstances' determined. Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: Attorney General's Application (Number 1) of 2002 (2002) 56 NSWLR 147 R v Cacciola (1998) 104 A Crim R 178 R v Carrion (2000) 49 NSWLR 149 R v Clark (NSWCCA, 15 March 1990, unreported) EF v R [2015] NSWCCA 36 R v Ejefekaire [2016] NSWCCA 308 R v Fayd'herbe [2007] NSWCCA 20 Forti v R [2016] NSWCCA 126 R v Gip (2006) 161 A Crim R 173 R v Gu [2006] NSWCCA 104 Hili v The Queen [2010] NSWCCA 45 R v Lattouf (NSWCCA, 12 December 1996, unreported) R v Polley [2014] NSWDC 323 R v Blackman and Walters [2001] NSWCCA 121 R v Henry (Ors) (1999) 46 NSWLR 346 Smaragdis v R [2010] NSWCCA 276 Thomson v Houlton [2000] NSWCCA 309 Yardley v Betts (1979) 22 SASR 108 Category: Sentence Parties: Regina (Crown) Brandon Lamb (Offender) Representation: Solicitors: Mr Curran (Solicitor) Ms Cooney (Solicitor) File Number(s): 2016/00293785 Publication restriction: Nil SENTENCE 1. HIS HONOUR: Brandon Lamb appears today for sentence in relation to two offences contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. Each of these offences carries a maximum penalty of fifteen years imprisonment and/or 2,000 penalty units. There is no standard non-parole period in relation to each offence. 2. There are three matters on a Form 1, two of supplying a prohibited drug and one offence of dealing with proceeds of crime in the sum of $920 related to the activities arising from either the principal offences and/or the matters on the Form 1, probably a combination of both. The 'deal with proceeds of crime' offence is one that carries a maximum penalty of three years imprisonment contrary to s 93C(2) Crimes Act 1900. There is no standard non-parole period for that maximum penalty. 3. The two matters on the Form 1 of supply carry the same maximum penalty but having said that they are of such small quantities one would have thought if they were dealt with separately, without regard to other offending, they more likely would be dealt with summarily given the quantity of prohibited drug involved. The relevant prohibited drug in each instance is the prohibited drug MDMA, or 3-4 methylenedioxymethylamphetamine, otherwise referred to from time to time as "ecstasy". The two principal offences are, firstly, one described as Sequence 3 being an offence of supply on 1 October 2016 committed by the offender in the vicinity of some form of music festival in the Moore Park Centennial Park area. 4. Sequence 1, 2 and 3 offences arise out of the prisoner's detection on that date. The Sequence 5 offence is an earlier offence which was detected in the course of the investigation of the offender for the offences on 1 October when he was in rightful police custody. Police investigations were able to detect through an examination of his iPhone record of a transaction that occurred between 26 and 27 September 2016 leading to the supply of an "ounce" of MDMA. The description of "an ounce" reflects in scientific parlance 28.34 grams. 5. At the time of the first offending, that is the offending in late September, the offender had committed no prior criminal offences. In the context of the principles I must apply in sentencing him for the matters before me, I have taken that matter into account in assessing the appropriate penalty for that offence in the context, or in consideration of, the appropriate penalty for the second offence in time on 1 October which requires consideration of matters on a Form 1. One might have thought given the quantities involved that the first offence in time, involving a greater quantity of MDMA, would ordinarily attract a greater penalty. However there are two issues as I have earlier pointed out. 6. One issue is of course that the first offence in time occurred when the offender had not committed earlier offences, although there are considerable suspicions about that aspect, and the second offence in time requires the Court to have regard to matters on a Form 1. In that regard I obviously pay heed to the various decisions of the Court of Criminal Appeal on this topic, particularly the guideline judgment of Attorney General's Application (Number 1) of 2002 (2002) 56 NSWLR 147 and the various observations of the Court between [18] - [44]. Of course when taking into account matters on a Form 1 in consideration of the principal offence one needs to obviously have regard to the character of the offending on the Form 1 by comparison to the character of the offending in the principal offence. 7. The Court is only concerned with fixing an appropriate sentence for the principal offence and having said that when matters on a Form 1 are so intimately bound up with the facts of the case as I find in relation to this matter, they do not have the same "salience" as might otherwise arise, if for example one were sentencing for a principal offence committed on one day and having to take into account similar offending having been committed on other days. Such as, for example, sentencing a person for an armed robbery and having to take into account other armed robberies or robberies committed on other days. 8. I am very mindful of what was said about the entire point of the process in taking into account matters on a Form 1 may lead to a greater sentence than otherwise would be appropriate for the principal sentence and depending upon the various facts of the matters sometimes retribution, denunciation and increased punishment are important aspects of that process. In any event I pay due regard to the principles that apply as reflected in the guideline judgment and other judgments. 9. The offender has spent no time in custody in relation to these matters. The facts are that the offender pleaded guilty to the principal offence in the other committal for sentence offence at the earliest reasonable opportunity and is entitled to a discount of 25% upon the otherwise appropriate sentence for the utilitarian benefit of the pleas of guilty that were entered. There is, of course, some administrative convenience for him in the matters being placed on a Form 1, but as I said, they are matters that I would have thought would have been dealt with summarily if they had stood alone. In any event it is clear from a reading of the facts and other material which I refer to at the moment whilst nobody else is in Court relating to the prisoner's co-operation with the authorities subsequently, from the time of his arrest the prisoner was, it would seem to me, immediately apologetic, co-operative with the police and contrite for his involvement in this offending. 10. The background of the offender is provided to me in histories given to Community Corrections, to a psychologist and in part in the note written by the prisoner addressed to the Court. Although it is not tested by the Crown shows a young man who at the time of this offending had been a user of prohibited drugs for some period of time beforehand. It would seem to me on the facts that the offender's involvement in this offending that I am concerned with is consistent with a person who was both a user and a supplier, albeit in relatively small amounts usually in circumstances where his knowledge of the network of supply derived from his use of prohibited drugs. 11. He has had a most unfortunate life. Not that that of itself attracts any particular discount, or necessarily any leniency. But it is very much concerned with the circumstances in which it can be said that he has become a drug user earlier in his teenage years. 12. To summarise the matter from all the various histories, the prisoner's mother and father have been separated many, many years. His mother had to struggle working two jobs to care for him but at the point in his teenage years his mother found another partner, a purported "stepfather" who has shown no interest in the prisoner, leaving the prisoner by and large to fend for himself. I do not suggest for a moment that his mother has no interest in him but it is clear, as one of the reports stated, that his mother's economic survival now is very much dependent upon her relationship with his stepfather. The stepfather has other children from a relationship who have received preference over a number of years and this has impacted greatly upon the prisoner and his development. 13. Looking at, with no disrespect to his family, the somewhat "dysfunctional" background he has, it is somewhat surprising that he has not previously come under adverse notice of the law. I am not suggesting that he should have, or he would have, but it is not uncommon with people of the prisoner's background that antisocial activity and the like commences at a relatively young age and I believe it is to the credit of the prisoner that up until the present time or at least until the time the offending with which I am concerned late last year, the offender was not a person who could be regarded as "antisocial". 14. In fact, as I understand the matter as presently is the situation, he is three years into an apprenticeship he has managed to acquire himself and has applied himself to and there is a lengthy reference from his "employer". Although the reference is in fact from the training scheme that provides him opportunities to find internships and temporary employment to further his knowledge of the plumbing trade. The trade that he has undertaken can provide him with a comfortable living in the future, but I appreciate that one of the features of his offending that I am concerned with is that he has tried to survive without parental support for a number of years in circumstances where he has a partnership with a young woman which is stable. She has not been in regular employment and there have been many financial stressors. I hasten to say that having financial stressors is not an excuse for committing crime, particularly drug supply. 15. MATTER INTERPOSED 16. HIS HONOUR: I was delivering my remarks on sentence some minutes ago when a trial which have been involved in came to an end and I had to interrupt what I was saying. To pick up, however, at the point I was at that time, I was reflecting upon the prisoner's background and its relation in part to the circumstances of this offending and the circumstances of the prisoner having an involvement with the use of prohibited drugs. Certainly it could not be said whatever "profit" the prisoner made out of any of the transactions that the prisoner's involvement in the supply of drugs on any particular occasion was simply for cynical exploitation or "personal advantage". 17. That aspect of the matter brings into play an aspect of the judgment of R v Henry (Ors) (1999) 46 NSWLR 346, particularly in the judgment of Wood J, who at that point in 1998/1999 was the CJ at CL. Wood J, quite famously at [237] in that guideline judgment, the second guideline judgment handed down by the Court of Criminal Appeal, reflected upon the principles relevant to sentencing a person in an armed robbery matter where there was evidence that the offender was a "drug addict" committing the offence to obtain money for his or her drug "addiction". I do not need to go through many of the principles that he outlined. Many of them have no relevance to the offence of supplying drugs. However, he did make the important point that is often forgotten, in relation to the relevance of drug dependency to the subjective circumstances of an offender. In my view his observations about that matter could be seen and have been seen, I hasten to say, not just relevant to armed robbery sentencing, but to other offending, including on some occasions drug supply matters. He reflected upon the fact that the prospects of rehabilitation of an offender, which may be a two-edged sword, will come to sharp focus as a subjective consideration. 18. He also dealt with a point that had been made by the Chief Justice, about which Simpson J was in dispute, concerning the issue of whether drug addiction or drug dependency or drug use was a matter of "personal choice". The Chief Justice thought it was, Simpson J, coherently, argued that it was not in many instances. What I understand Wood J to say, and as I understand it the majority of the Court essentially agreed with this amongst other points that he made, was that addiction or drug dependency, to use my words, or drug usage as it is relevant to the offending, may be an important, or at least a relevant subjective circumstance favourable to the offender, if the dependency or addiction was attributable to some other event other than personal choice for which the prisoner was not primarily responsible. 19. He gave examples of addiction arising out of medical prescription of potentially addictive drugs or following illness or surgery. But he also said "or where it occurred at a very young age". Reflecting upon a matter that was pointed out in the very helpful written submissions of the prisoner in this matter, young people do not acquire maturity or full maturity necessarily at the age of 18. This offender, who was born on 9 December 1994, was, when arrested in relation to the current matters, 21 years of age. Thus, in the context of not being an experienced criminal a relatively young man. The offender, as I said earlier, had been dependent or a user of prohibited for some years before, arising out of his domestic circumstances that I have outlined before. 20. So far as the facts of the matters with which I am concerned I need to briefly go over those. 21. The prisoner was detected on Saturday 1 October 2016 in the Centennial Park area attending or about to attend a music festival, where it is well-known the police are vigilant and many people are involved in the ingestion or the provision of ecstasy. The prisoner who was seen to be handing pills or capsules to another person and receiving money immediately attracted attention. The other person was arrested and found in possession of five capsules which were provided by the prisoner, and that offence constitutes sequence 1 and one of the matters on the Form 1. 22. The prisoner was carrying a small black bag with a shoulder strap and inside that bag was found a "Tic-tac" container with 40 capsules identical to the five capsules located on the other male at the scene. These were later analysed and found to contain 2.5 grams of MDMA with a purity of 74.5%. Also found was a small resealable bag containing three blue tablets marked with a skull and some further tablet fragment. These were analysed and contained 1.86 grams of MDMA. The $920 in Australian currency, forming the offence on the Form 1 'dealing with the proceeds of crime', was located and the wallet of the prisoner with his personal identification cards and the like were found. In his pocket were found a further 14 capsules, which were later found to contain MDMA, weighing 0.5 grams and one Apple phone. The total amount of MDMA located on his person was 4.86 grams, giving rise to the sequence 3 offence, which is the principal offence taking into account the matters on the Form 1. 23. In the course of a subsequent interview with the police he made "full and frank admissions" to being in possession of MDMA for the purposes of supply. Amongst other things he admitted the supply of two capsules in exchange for $60 at an earlier time, giving rise to the second supply matter on the Form 1. He admitted the transaction observed by police and he said he had participated in two or three supplies earlier inside the festival prior to being apprehended by police. Overall he had participated in about five supplies outside the festival prior to being apprehended by police. 24. As I earlier outlined, the other matter involving a committal for sentence charge relates to what is described as "an ounce" or approximately 23.4 grams of MDMA, supplied on about 28 September 2016. The facts set out the conversation which is recorded within the mobile phone of the offender under the "Facebook Messenger" application. I have read that conversation, and the offender agrees to the provision of MDMA to a person that he knows. 25. The offender was interviewed again, and again made "full and frank admissions" to sending and receiving the messages and providing the MDMA at about 10pm on Wednesday 28 September 2016 in exchange for $2,500. Although the facts say "he made no profit on the transaction", The supply took place at Wynyard Train Station and essentially he was doing a favour for a friend. That same person had been supplied by him at nightclubs, but in very small quantities, for personal use. He admitted to being involved in supply for about three months before. He told the police he earned $600 as an apprentice plumber and made about $400 every two to three weeks from drug supply. He supplied only to people that he described "friends" and there were about "ten" friends. 26. That is the offending with which I am concerned. However, the prisoner's immediate cooperation and willingness to expose his own criminality beyond what the police could possibly have found out from their own enquiries is not the only matter that I have to consider in this case. 27. I have evidence in the form of an affidavit from the police. The detail I will not read onto the record. But it commences that here the prisoner immediately upon his arrest was willing to cooperate with police in order for them to identify persons who were involved in the supply of drugs of whom the police were not aware. Not only did he provide relevant information, but at personal risk he provided the opportunity for a particular person to be introduced to an undercover officer in his own presence and the undercover officer was able to conduct negotiations with this other person, who was obviously capable of supplying greater quantities of prohibited drug than this prisoner could provide and that has led to an arrest and charges being brought, some of a more serious character than the ones with which I am concerned. 28. In the context of s 23 Crimes (Sentencing Procedure) Act 1999 I am satisfied that the co-operation with the police could not be more timely, it could not have been, in context, more effective. It was complete, it was truthful, and the prisoner, in providing that co-operation, had placed himself at some personal risk. In my view a personal risk that does not go away simply by him appearing at court today. I have taken that matter into account. 29. I have received submissions from the learned Crown and learned counsel for the prisoner, who provided very detailed written submissions on a range of topics which I have taken into account, I have concluded that I should provide the prisoner in respect of this co-operation, which does not involve any future co-operation as I understand on the part of the prisoner, a combined discount of 45%, noting the discount for the utilitarian benefit of the plea of guilty is 25%, in accordance with the guideline judgment of Thomson v Houlton. 30. The co-operation with the authorities not only entitles him to a discount but it is also a relevant consideration in the disposal of the matter in ways I will outline shortly. 31. I have referred to the absence of any criminal history on the part of the prisoner. I have received from his counsel a body of material not objected to by the Crown. I take the point that is not expressly taken by the Crown, but always is to be observed and noted that none of the history provided by the prisoner is tested in cross-examination. But it seems to me, in the context of the other material available to the Court, that I have no reason to doubt the material that the prisoner's counsel has presented through the psychological report in the letter from the prisoner, and other matters that reflect upon his history. 32. One of the reasons for that is that I have a pre-sentence report tendered by the Crown from Community Corrections which confirms the fact that the prisoner is in a stable relationship, has permanent employment in the context of what I outlined earlier, has had a very unfortunate upbringing through no fault of himself, has been somewhat the victim of the dynamics of blended families, and seems to be the person who has missed out on relevant love and affection that one might expect a child to receive. 33. His mother obviously has tried to her best but, as I said earlier. She has tighter allegiances largely with her new partner, who does not have much interest in the prisoner. Sadly the prisoner's own father has absolutely no interest in him at all, and the prisoner's connection with his natural father is, as I understand it, sporadic. His natural father appears to have other children from other relationships, and appears more interested in those. 34. The prisoner has been in regular employment in circumstances I earlier outlined and he expects to complete his apprenticeship in July 2018. The opportunity for him to complete his apprenticeship, which I foreshadow at least with the orders I propose, is a relevant matter for me to consider. Because it seems to me with respect that if this young man in his future life for many years to come is going to have any hope of avoiding offending in the future then the acquisition of trade skills, and the ability to obtain a trade licence, will be a very valuable tool for him, if I may be excused an unintended pun. 35. I am reminded of what the very learned Chief Justice King said in a decision of Yardley v Betts (1979) 22 SASR 108, at 112-3: "The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of, and it assumes particular importance in the case of first offenders, and others who have not developed settled criminal habits. If a sentence had the effect of turning an offender towards a criminal way of life the protection of the community is to that extent impaired. If the sentence induces or assists an order (sic) to avoid offending in future the protection of the community is to that extent enhanced. To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm." 1. These wise observations, if I be so bold and presumptuous to say so, have particular pertinence in this particular sentencing exercise in the context of principles I will refer to briefly in a moment that relate to the sentencing of offenders who might be seen as substantially involved in drug trafficking. 2. The observations of Chief Justice King were adopted with approval in a number of decisions in New South Wales, but one decision I need cite and that is R v Blackman and Walters [2001] NSWCCA 121. In the judgment of learned Justice Wood, to whom I previously referred. In that regard I note Blackman and Walters was a Crown appeal about totally different offending, in fact far more serious offending than I am concerned with here, I hasten to say, but offending that had been dealt with by suspended sentences in circumstances where it was one of the first cases where the Court of Criminal Appeal considered a sentence that involved the suspension of a term of imprisonment pursuant to the Crimes (Sentencing Procedure) Act 1999 which had come into effect very early in 2001. Suspended sentences had existed in New South Wales up until the 1970's but were re-introduced by that Act, which I will hereinafter refer to as "the Act". 3. The prisoner referred to his social use of MDMA to the Community Corrections Service. Since his arrest however, as is verified by Community Corrections, he has been undertaking alcohol and other drug treatment through a community counsellor, and he has attended for a number of sessions, which are verified not just by Community Corrections but in a very brief report from the South-West Sydney Local Health Network of the Health Department, dated 6 July 2017, which confirms eight attendances up until 6 July, reporting no drug use since the date of his arrest, and since his attendance he has reported no thoughts, no craving, no lapses, no associating with drug using cohorts. 4. It was the opinion of the counsellor, in the separate letter to that information contained within the Community Corrections report, that the offender was no longer "physically nor psychologically dependent upon psycho-active substances" and therefore requires no further treatment. 5. His financial situation is discussed by Community Corrections. The Community Corrections Officer reflected upon aspects of his immaturity, particularly in his relationships, and the difficulties he had in being independent, his determination to avoid using drugs, and the impact upon his partner, which is mentioned in his letter to the Court, bearing in mind she has had to bear the burden of assisting him in paying for legal representation and standing by him through this very difficult period when he and she have been under considerable stress. 6. She is dependent upon him. He is dependent upon her. He being delivered up to full time custody will have a significant impact upon her life and his life, not just for the time the two of them would be separated but I would expect beyond that time. 7. I know of course that although being in prison can have this impact upon people it is ultimately an inevitable consequence of taking someone out of the community and placing them in custody. But it is a matter that I have taken into account in this matter. 8. The Community Corrections Service noted that he had demonstrated "some insight to his offending behaviour". He was able to identify the impact upon his partner, however not on the community at large. He accepted that his immaturity had affected his judgment. 9. He had ceased associating with negative peers and engaged in counselling to address the causes of his behaviour, and it was thought by Community Corrections that his relevant needs in any supervision, bearing in mind he was at low risk of re-offending, were in respect of his associations and alcohol matters. 10. He is thought to be unlikely to benefit from a period of supervision by Community Corrections due to his low risk of re-offending, and the fact that he is addressing his illicit drug use, but in my view some supervision continuing onwards would be of some benefit. 11. Counsel for the prisoner has produced a report from Mr Borenstein, a psychologist from Kogarah. It sets out a number of matters of history which I have already dealt with in summary, I need not reflect further upon what Mr Borenstein says about those mattes of history. He undertook some psychological testing of the prisoner and came to the conclusion that the prisoner's personality assessment indicated a mild potential for emotional and/or behavioural problems, which is greater than is typical for community adults. 12. He had elevated scores in relation to apprehension and personal distress. He said, in his report, "this element is highly correlated with measures of depression and anxiety". But, with respect, there is nothing in the report that would lead me to the conclusion the prisoner was suffering a mental illness, or mental abnormality, at the time of the offending that was causally connected to the offending. 13. I appreciate of course that people that are using drugs, and dependent on drugs, can get into a situation where there is a self-fulfilling desire, or need, for the drugs, obviating or adding a band-aid over symptoms of depression and anxiety. But this does not appear to be the case. Although currently he is assessed by Mr Borenstein as having moderate symptoms of depression, mild symptoms of anxiety, and moderate symptoms of stress. These are all matters, I would have thought, given the date of the testing, reactive to his forensic circumstances. 14. Mr Borenstein reflects upon the fact that the prisoner rarely in his life, apart from his partner, had no one he can turn to. He has what is described as an "unsuccessful attachments history", he is very sensitive to abandonment, and also to loss. His relationship with his mother is not great, and almost non-existent with his father. This loss and abandonment has "defined his childhood". He has a great deal of emotional vulnerability which makes him more susceptible to drug dependency. 15. He has expressed considerable guilt and remorse in relation to his actions giving rise to the charges and it is said that losing his current partner, and losing what he has gained, without assistance from his parents, would create the conditions for further feelings of depression and anxiety. 16. As I said earlier I have a report from his "employer". This group that I have never heard of is called 'Master Plumbers' Apprentices Limited', which is an organisation that calls itself the "employer" of the apprentice. Basically it supervises his training and ensures that he undertakes the relevant courses and then contracts him out to "host trainers", and he has had a number of host trainers. 17. It is a totally different concept in apprenticeships from my time as a teenager and knowing people undertaking apprenticeships. The usual practice in my time was if you undertook an apprenticeship you were employed by an employer, and you undertook your training in a technical college and the like. This seems to be a system to ensure that people can enter apprenticeships without necessarily having to find a single employer. It is to be commended. 18. He is highly regarded by his "employer", and is well respected by people that have taken him on on a short term basis. His inappropriate behaviour in relation to this matter has been brought to the attention of his employer. It in fact has advised me that when he was first charged he was, for a period as I can calculate it up to three months, suspended from his studies, which must have created considerable difficulty for the prisoner. He was, on the basis of his past performance, taken back into the fold. 19. It is said that the prisoner in recent times has "demonstrated a very respectful attitude", and there has been a "very significant change in attitude and behaviour" which reflects his contrition for his offending. 20. He had told this organisation way back in March 2014 when it first employed him that he would "work hard, not disappoint, looked forward to new skills and (be) the best tradesperson" that he could. He said, "I really want this opportunity", which really reflects, in many respects, the desperation of young people to be properly trained and to be given opportunities later in life, another matter I have taken into account relevant to the final disposal of this particular matter, but of course not determinative. 21. I should point out in the letter that the prisoner wrote to the Court the prisoner has set out many details which are confirmed by the other material I have. The offender reflects upon the stress upon his relationship, the apology is made for his conduct and his desire to avoid offending in the future is emphasised. He has also produced to the Court a number of results from testing by a laboratory over a period of time between 19 June and 9 August, and each of those tests - assuming that they were properly administered and it was the accused's urine and the like that was tested - reveal no drugs being detected in his system, consistent with the observations of the Community Corrections Service. 22. The sentencing of offenders in relation to offences of the type with which I am concerned has been the subject of a great deal of discussion over an extended period of time, and there is no point in my reiterating the various authorities in particular detail, except to point out that for courts sentencing offenders, subject of course to proper application of Markarian principles and proper exercise of discretion, a general rule has developed that in the case of offenders guilty of substantial involvement in the trafficking of prohibited drugs, a term of full-time custody will usually be imposed unless there are found to be "exceptional circumstances". 23. I am paraphrasing of course words more eloquently articulated from time-to-time by the Court of Criminal Appeal. But I am reflecting authorities such as the judgment of Hunt J in the decision of Clark, the decision of Cacciola (1998) 104 A Crim R 178, the decision of Carrion (2000) 49 NSWSLR 149, the decision of Gip & Ly (2006) 161 A Crim R 173, Gu [2006] NSWCCA 104 and Fayd'herbe [2007] NSWCCA 20. I am mindful of the judgment of McClellan J in Gip, for example, that substantial trafficking in prohibited drugs can on occasion be established just by one transaction, and as the matter has been conducted before me, there appears little dispute that this is such a case. 24. Of course all these matters are matters of degree and it might be fairly said that the degree may be such of the character of the offending that even in exceptional circumstances terms of full-time imprisonment must be imposed because they are the inevitable consequence of the objective seriousness of the offending. I fully appreciate that at the heart of the so-called "rule", as it has been described in some authorities, is the great weight that must be placed upon general deterrence and personal deterrence in respect of such offending. One such case is Polley [2014] NSWDC 323, that judgment of Judge Berman being approved by the Court of Criminal Appeal. 25. In recent times there has been some discussion about this matter in a number of judgments. I will just cite three of them to acknowledge the fact that I have read these judgments in the brief time I have had available to me since I last heard the submissions and I was dealing with the trial just finished a moment ago. Those judgments include the decision of EF v R [2015] NSWCCA 36, particularly the observations of Simpson J at [10]-[13], the judgment of Fullerton J in Smaragdis v R [2010] NSWCCA 276 at [30]-[31] and the discussion of both these judgment in a relatively recent judgment of Ejefekaire [2016] NSWCCA 308, particularly at [49]-[62]. 26. It would not be productive for me to go back and repeat all that falls from those various judgments and particularly the analysis of them in the most recent judgment. I particularly identify what the last case discussed about Fullerton J's judgment, to which I referred, at [49] and its observations about the failure or the unwillingness of courts to attempt to "define the expression"…"exceptional circumstances" in the context of the principles to be applied. 27. I must point out that Fullerton J's observations in the decision I have referred to were also the subject of discussion in a slightly earlier decision to Ejefekaire. That is the decision of Forti v R [2016] NSWCCA 126 at [19]. I am mindful, for example, in the context of what I am discussing are the observations of Priestley JA in Cacciola, approved in the most recent decision to which I earlier referred, of the care that must be taken between drawing a distinction between a strong subjective case and exceptional circumstances. The analysis of this matter by Grove J in Carrion is helpful, as usual, where his Honour pointed out that a constellation of circumstances was not "exceptional" because in combination and individually the matters were not out of the ordinary so to speak. 28. So far as the issues that arose in relation to this subject matter in EF that were discussed in Ejefekaire at [60]-[61], their Honours in the last decision in time said: "We have had regard to the decision in EF v Regina. The issue for determination however is not whether a sentence other than full-time custody can ever be imposed for drug trafficking offences. Clearly such a course is possible if exceptional circumstances have been established. Rather, the question is whether the sentencing judge erred in the exercise of her sentencing discretion in this case in the material that was before her." 1. Of course, EF was an unusual case because of what was said to be a failure at first instance to have regard to the alternatives that may have been available, given what the judge otherwise found as being an appropriate sentence given the threshold as it is described under s 5 of the Act had been passed. It is conceded in this matter that the threshold in relation to s 5 of the Act has been passed when one looks at the totality of the conduct of the prisoner. 2. In the context of that learned discussion, particularly in the two cases that I have referred to, EF and Ejefekaire, it is worthwhile pointing out of course, as their Honours at least impliedly acknowledge, that each sentencing exercise is an individual exercise in endeavouring to reach a just decision for the offender, the community and other people who have an interest in the offending, particularly victims of particular crimes. In that regard, it is to be borne in mind that whatever one says about a relevant 'policy' or 'rule' of sentencing, individual judicial discretion remains. Because it falls to the particular judicial officer sentencing an offender to have regard to all relevant matters pertinent to the case at bar, and every case may be different from others. 3. It may be fairly said of course although it was not expressly stated in submission, that there are aspects of EF and Polley, which was decided on appeal at [2015] NSWCCA 257, to a limited extent, given what the High Court said in Hili, provide some comparative sentencing assistance. As does the decision of Fayd'Herbe where Adams J went through a large number of cases, including the cases of Gipp and Gu, reflecting upon the principles to be applied. I appreciate the limitations of comparable cases. In the context of, as I said, considering the relevant principles, there are in the background, or in the foreground depending upon one's view it, overarching principles that will need to be considered in the individual case. One of those principles in my view is the principle I have cited from Yardley v Betts. Another principle is one expressly adopted in the decision of Henry by Spigelman SCJ, in his leading judgment for the Court, when his Honour adopted what had been said by Acting Chief Justice Mahoney, in an unreported decision of Lattouf, cited at [10] of the decision in Henry. In Lattouf, the Acting Chief Justice had pointed out: "The general sentencing principles must be established so that the community may know the sentences which will be imposed and so that sentencing judges will know the kind and order of sentence which it is appropriate that they impose." 1. His Honour went on to say: "But there are other interests to which the sentencing process must have regard. These are other objectives which the sentencing process must seek to achieve. Paramount amongst these is achievement of justice in the individual case." 1. Pointedly, the learned Chief Justice said in the context of laying down a guideline for the sentencing of offenders for armed robbery: "There is no conflict between the system of guideline judgments established by Jurisic (the first guideline judgement) and reasoning of Mahoney, A‑CJ, in R v Lattouf." 1. One might have thought those observations were equally apposite in considering the application of the principles that are sometimes described as the, "Clark" principle, the subject of so much discussion over the years in the various cases I have cited and many others. 2. In any event, in sentencing the prisoner, I am required to have regard to s 3A of Crimes (Sentencing Procedure) Act. It seems to me that by and large, most of the purposes of sentencing therein set out have roles to play in the sentencing exercise. Hence, amongst other things, the passing through the threshold provided by s 5 of the Act. There must be general deterrence in the sentencing. There must be personal deterrence of the offender although I accept his detection has been a salutary experience for him. In my view, reflected by his willingness to co‑operate with the authorities. There must be adequate punishment but I must also promote his rehabilitation and make him accountable - denounce his conduct. I do not believe there is a need to protect the community from him. I do not believe he forms a risk to the community. 3. I am required to assess the objective seriousness of the offending with which I am concerned. Obviously, the principal offences, the two offences for sentence are not the lowest of offences in seriousness of those contemplated by s 25(1). But in my view, they are at the lower end of objective seriousness. For example, as the facts state, it is not a matter of me having to work out whether it is true or not, the prisoner obtained no profit from his supply of the 28 grams of MDMA. He was more less, "doing a favour", for a person who he knew to be a user of the drug. 4. The offending, in the principal offence, taking into account the matters in the Form 1, involved a low level of dealing, in the scheme of offences with which the Court is concerned from time to time. One sees these matters in proper scale when one, for example, has had the opportunity as I have had, to preside over trials such as the trial of Joseph Sukkar, where he, admittedly in breach of Commonwealth law not State Law, endeavoured to import into the country, one million MDMA tablets. But having said that, the offending is not as I said, at the lowest level of offending of its type and it is to be categorised in the context of a person who was a supplier and a user of the drugs. 5. His counsel has submitted it was not sophisticated offending. There was no record found by the offence in the nature of a ledger. Whilst he had cash in his possession consistent with sales, he naively or foolishly left on his mobile phone to which the police gained access, a record of the transaction that gives rise to one of the matters for sentence. 6. In relation to aggravating factors, I cannot find any, pursuant to s 21A(2) beyond the matters I have identified from the facts themselves. There are no additional, "aggravating factors". The offending was not planned nor could it be described as, "organised criminal activity". 7. With regard to mitigating factors arising under s 21A(3), I am prepared to accept on balance, the offending was not part of planned or organised criminal activity. The prisoner did not have any previous convictions. He was of previous good character. I accept, given the steps he has taken and his rehabilitation, and his past history, he is unlikely to re‑offend. He has good prospects of rehabilitation and I accept that he has shown remorse in a range of ways, by his pleas of guilty, by his co‑operation at an early time that the police - although that has to be considered also pursuant to s 23 of the Act - by his expressions of remorse and by his demonstration of remorse in the character of his co‑operation after the event with the police I believe his remorse is genuine. 8. I have already dealt with the issue of his co‑operation with the police and his entitlement to a discrete discount. This case has a similar connection to some extent, with the decision of Polley to which I referred although that offender was ultimately sentenced to more than two years' imprisonment. This offender, like Mr Polley, had a connection with drugs as a reaction to the death of a friend when he was relatively young and I have taken that into account. 9. With regard to the other matters that are identified in the written submissions, I believe that I essentially referred to them in my earlier remarks. In Counsel's useful oral submissions, encapsulating what is more extensively set out in her written submissions, she accepted that it was difficult, to use her words, to put a, "label on exceptional circumstances". One might have thought, that is putting a label on a label because the words, "exceptional circumstances", might themselves be seen as something of a label without any criticism of that concept. But she pointed to a number of matters and to run through them again in summary of what I have already said: a young adult, a lack of maturity, no prior criminal convictions, a very difficult and deprived upbringing, significant steps in rehabilitation and counselling, no longer psychologically dependent, taking active steps on his rehabilitation without the assistance of court orders, immediate remorse, genuine remorse. 10. Lower moral culpability, which is essentially the point that Wood J makes in that passage from Henry that I referred to, in the context of the prisoner being a drug user, being co‑operative as he could be, being prosecuted now in some offences before me directly from admissions that he made that if not made would not have led to his prosecution even if the matters were on a Form 1, making amends for his conduct, taking risks in his co‑operation. All are matters which may be taken into account in determining whether, "exceptional circumstances" arise. 11. I am mindful of course of Grove J's very useful analysis in Carrion, he identified five matters favourable subjective to the offender which in combination and individually were not exceptional circumstances. I appreciate that a constellation of simply favourable subjective circumstances may not constitute, I emphasise the words 'may not constitute' exceptional circumstances. But for all the favourable circumstances that might be seen as subjective there is to be added into this mix the matters that I have tried to emphasise. The importance of his cooperation with the authorities in a range of ways, the risk to him arising out of his cooperation which will continue for some time in the future, and of course the opportunity for him to set a course which will not bring him back before the Court and save the state a great deal of time and money spent on punishment and perhaps rehabilitation which might be avoided if the prisoner is given a proper opportunity to make amends. 12. The learned Crown Prosecutor, to be fair, was kindly in his response to the submissions of counsel for the offender. He made the point, and I do not wish to misrepresent what he said, in the context of making the submission that the offender was clearly involved in substantial trafficking, the offence of supplying 1 ounce of MDMA being an offence of "some seriousness", that without the cooperation extensive as it was to the offender's this was a case which would probably tilt to the side or the position of requiring the imposition of a full‑time custodial sentence. But the Crown fairly identified a number of favourable matters emerging from the evidence. Accepting submissions made about the prospects of rehabilitation, the good character of the offender, the capacity he has for making a contribution to the community. I have taken all those matters into account. 13. Thus, as best I can do in the circumstances of trying to run the trial and with little time to reflect upon the matter, I have concluded that I should dispose of the matter as I foreshadowed to the offender earlier. 14. Could you stand up please, Mr Lamb. 15. In relation to sequence 3 offence, which is the matter requires taking into account the matters on the Form 1 - is that right, Mr Crown? 16. CURRAN: Yes, your Honour. 17. HIS HONOUR: You are convicted. Taking into account the matters on the Form 1 you are sentenced to a term of imprisonment of one year and four months suspended, pursuant to s 12 Crimes (Sentencing Procedure) Act 1999, conditions applying during the term of the bond are as follows: 18. (1) You are to be of good behaviour; 19. (2) You are to appear before Court if called to do so at any time; 20. (3) You are to advise the registrar of the criminal listing director of the District Court at the Downing Centre of any change of residential address. 21. (4) You are to accept the supervision and guidance of the Community Corrections Service for such time as the Service deems necessary; and 22. (5) You are to report to the Community Corrections Service at Campbelltown - is that right, Mr Crown? It is Campbelltown? 23. CURRAN: I believe so - I believe he lives in that area 24. HIS HONOUR: You are to report to the Campbelltown Community Corrections Service within seven days of today. I require people to report to get supervision underway but I will leave it to the good sense of the Community Corrections Service as to how long you require supervision. 25. In relation to sequence 5 you are convicted. You are sentenced to a term of imprisonment of one year and three months, suspended pursuant to s 12 of the Act. The conditions apply during the term of that bond are the same as for the previous bond that I have ordered. I do not propose to repeat those. 26. In fixing the terms of imprisonment and concluding I can suspend them as I foreshadowed, I have had regard to the issue of "totality of criminality". I have concluded that given the discount you are to be accorded, combined discount of 45%. Should I have accumulated as I would have been required to do, one sentence upon another, at least partially, the total sentence imposed would not have exceeded two years imprisonment. 27. I also have given consideration, I hasten to say, to the issue of whether you should serve these terms of imprisonment via Intensive Correction Order. I appreciate there is an inherent leniency in a suspended sentence beyond obviously full‑time custody but particularly beyond the requirements of an intensive correction order which will involve monthly community service and the like but it seems to me with your working obligations particularly and the importance of you completing your apprenticeship, that if you are able to successfully negotiate these good behaviour bonds you and the community would be far better served with you completing your apprenticeship and not having that interfered with or interrupted by the requirement for you to attend upon the Community Corrections Service for the performance of the additional conditions required in respect of an intensive correction order. You can leave the dock, thanks very much, sir. 28. CURRAN: Your Honour I would seek a drug destruction order and also by consent there is a short minutes of order concerning the $920 I understand-- 29. HIS HONOUR: That is to be forfeited to the State, is it? 30. CURRAN: Yes I would seek forfeiture your Honour. 31. HIS HONOUR: Could I have that order and I will sign that. What is the Act? Confiscation of Proceeds of Crime 1989, $920, seized from prisoner to be forfeited to the State, as to short minutes of order of 17 August. We haven't got your signature ma'am. 32. COONEY: I can attend to that. 33. HIS HONOUR: It is a consent order? 34. COONEY: Certainly it is by consent. 35. HIS HONOUR: Could you sign where you are required to sign and then I will sign and seal them and give you a sealed copy Mr Crown, I'll give counsel for the prisoner a sealed copy and then I will place the sealed copy on the file and then everybody will be relatively happy. 36. Now this envelope exhibit B as I said will be placed in another envelope and it will be sealed and only opened by order of a District Court or a Supreme Court Judge. 37. Mr Lamb you are up at the back of the Court now but I just want to make the point, just sit down, I have made my orders, whether you appeal or the Crown appeals is entirely a matter for the respective parties. Each party has its rights, we accept this. All Judges accept this. That we are all susceptible to review and correction and I understand that completely and I respect that, our system is dependent upon the opportunity for parties to have decisions of courts reviewed. 38. The decision I have made only stands for such time as the matter is not subject of successful appeal. But as things stand at the moment and I make this point, the order I make require you to be of good behaviour and to obey the directions of the Community Corrections Service. If you fail to be of good behaviour, or if you want to go back to using or dealing in drugs, you will end up in gaol, you will lose your apprenticeship, you will lose your partnership with your partner at least temporarily and you will be back probably to where you were when you were 17 or 18 and you have got more to lose than I have certainly but I can certainly assure you that if you come back before me charged with further drug offences I will have no compunction in revoking the bonds and I also warn you that I would be required, as I have already pointed out, if I was fixing terms of imprisonment to make the sentences partially cumulative one upon the other to a certain extent but no greater than two years. 39. It is a shame that the Court does not have power to make suspended sentences cumulative partially, or fully, or else one thing Parliament should do is permit us to do what we can do under Commonwealth sentencing. If we suspend a term of imprisonment for 15 months we can only place you on a bond for the term of that term of imprisonment. But under Commonwealth law if I was sentencing you to 15 months imprisonment suspended I can actually put you on a bond for at least up to three years, so that means you are required to be of good behaviour for longer than the time you would otherwise be required to be in custody, which is a further restraint upon liberty. 40. I understand that and I am not advocating law reform as such. That is a matter for the legislature, but I am simply saying that with suspended sentences I can only date them from today, they can only commence from today, I can understand the sense of that but one way around that would be to permit us to place people on bonds for periods longer than the terms of imprisonment that are suspended. 41. Your counsel will explain that to you if you do not understand it, but I want you to understand and I emphasise the fact if you are not of good behaviour, if you do not want to comply with the directions of the Community Corrections Service it will not take long to find you, it will not take long to bring you back to Court and you will only have yourself to blame if you do not honour the opportunity or you pass up the opportunity given to you today, at least in the short term. Thank you. Amendments 31 January 2018 - Amendment to the Counsel appearing on behalf of the parties. Initially entered incorrectly. 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: 31 January 2018