District Court New South Wales Medium Neutral Citation: R v LESLIE, Michael [2017] NSWDC 381 Hearing dates: 20 October 2017 Date of orders: 27 October 2017 Decision date: 27 October 2017 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Full-time custodial sentence. For orders see [54] Catchwords: CRIMINAL – SENTENCE – supply prohibited drug – 70.73 grams of methylamphetamine – subject to two good behaviour bonds from the Adelaide Magistrate's Court at the time of the offence – three offenders involved in transporting the prohibited drugs from Adelaide and apprehended in Broken Hill – role of the offender – obtained the drugs from someone else – drove the car from Adelaide and booked the accommodation in Broken Hill in his name – no evidence of what profit the offender stood to gain – diagnosed with ADHD as a child – user of prohibited drugs – character of offence was no consistent with a "user dealer" situation – 'special circumstances' found – the offender has never previously been in custody Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: Robertson v R [2017] NSWCCA 205 R v Gu [2006] NSWCCA 104 R v Gip (2006) 161 A Crim R 173 R v Fayd'herbe [2007] NSWCCA 20 R v Carrion (2000) 49 NSWLR 149 R v Clark (NSWCCA, 15 March 1990, unreported) R v Bardo (NSWCCA, 14 July 1992, unreported) R v Ozer (NSWCCA, 9 November 1993, unreported) Category: Sentence Parties: Regina (Crown) Michael Leslie (Offender) Representation: Counsel: Mr. Bullard (Counsel) Mr. Watts (Counsel) File Number(s): 2016/000242083 Publication restriction: Nil SENTENCE 1. HIS HONOUR: Michael Leslie appears today for sentence in relation to a charge for which he was found guilty by a jury in Broken Hill that alleged that he on 27 May 2016 at Broken Hill in the State of New South Wales, did supply a prohibited drug, namely methylamphetamine. 2. The trial at Broken Hill commenced on 29 August 2017 and a guilty verdict was returned by the jury on 1 September 2017. 3. The offence for which he was tried carries a maximum penalty of 15 years imprisonment. The offender did not give evidence at the trial. 4. The case was conducted as one of "deemed" supply in that the Crown alleged against the offender that he and others possessed and/or jointly possessed a quantity of methylamphetamine that exceeded the trafficable quantities and indictable quantities for that particular prohibited drug. In New South Wales a trafficable quantity of methylamphetamine is 3 grams, an indictable quantity is 5 grams. A commercial quantity of that particular drug, attracting thus a greater maximum penalty, is .25 kilograms or 250 grams. The total quantity alleged to be in the possession of the offender, or jointly possessed by him with others, was 70.73 grams. On the basis of the verdict of the jury I must sentence the offender on facts consistent with the verdict. The evidence satisfies me relevantly that the offender travelled with two other men to Broken Hill from Adelaide in South Australia. The offender drove to Broken Hill in a hire car that he had arranged for a woman to hire on his behalf, paying her a sum of money for that to be done. On route to Broken Hill, in fact shortly before he arrived in Broken Hill, he arranged to stay at a motel in Argent Street, Broken Hill and arrived at that motel in the early hours of the morning of the date upon which the offence was committed, which was 27 May 2016. 5. He was in company with two other men. In arranging the accommodation he wanted a room with three beds and he and his colleagues arrived, as I said, in the early hours of the morning of 27 May 2016. He paid for the room and he came and went from the motel room over the ensuing hours. He attracted the suspicion of the manager of the motel, firstly because he had arrived in a hire car from South Australia which usually in Western New South Wales is sometimes a giveaway that there may be prohibited drugs within the vehicle and in the context of his dealings with the manager. The manager contacted police. 6. The offender in coming and going from the motel sometime around about 9.00am was spoken to by police at a street some blocks away from where the motel was located. He was in company of a person who was adversely known to New South Wales police. He told police that he was in Broken Hill on private business and a search of the vehicle revealed nothing suspicious was found. However the police obtained a search warrant to search the motel room that the offender had secured and that search warrant was executed in the absence of the offender, but in the presence of the two men with whom the offender had travelled from Adelaide. Within the room was found a quantity of methylamphetamine, 54.4 grams of the prohibited drug were packaged separately from another package which contained 14.29 grams of the prohibited drug. However the relevant packages, if I might call them that, were in close proximity to one another when located within the room. 7. There was a small amount of prohibited drug, something in the order of 0.69 grams, found in other containers consistent with use of the drug by one or other of the occupants. Subsequently investigations revealed the offender's DNA profile found on the seal of the smaller of the bags containing the quantity 14.29 grams. When the police were in the motel room the offender made telephone inquiries it would seem and obviously became aware of the fact that the police had attended upon the motel. The offender then effectively disappeared and was not arrested for some time later. The two men who travelled with him were arrested. One of those men appeared before me but his prosecution was 'no billed' by the prosecution. The other absconded on bail, an arrest warrant has been issued and eventually he will be arrested and brought back to New South Wales to face the Courts. 8. It is clear on the evidence at trial that the offender had sought to disassociate himself from the people within the room. He did have, however, within the room searched by police, personal possessions including clothing and business records. One of the matters that was raised in the course of the trial was that the offender was in fact in Broken Hill on private business. That is some interest in purchasing a bowling club or being involved in some negotiations relating to a bowling club in relation to business interest I will speak about in a moment. There was no attempt at his trial to produce any witness who might have provided evidence, even though the prisoner did not give evidence, of the fact that arrangements had been made by the prisoner to attend at Broken Hill to discuss some private business. I say it seems to me that the offender's cause, in the course of this particular day of his arrest, was not helped by the disrespectful way in which he spoke to the New South Wales police officers when they spoke to him. 9. In any event the jury's verdict shows that the jury were quite satisfied beyond reasonable doubt of the offender's possession of the prohibited drug in the room. Having regard to the evidence and the verdict I am satisfied beyond reasonable doubt that the offender was in possession of the total amount of the methylamphetamine, having regard to the packaging of it and the relationship of the various quantities of methylamphetamine to one another within the room. Of course I accept that he could have been in joint possession with at least one of the other people in the room. There is evidence that was available to the jury and relied upon by the offender that one of the other men had photographed himself with the drugs or some of the drugs whilst the offender was away from the room driving around Broken Hill. 10. However there was a body of evidence to show the offender had control of the circumstances of the travel to Broken Hill. He paid somebody a sum of money to hire the vehicle on his behalf. Why that was done I do not know. It could have been to disguise the fact that he had an association with the car. He drove the car from Adelaide. He paid for the room in which the three men were staying, booked a room in his name and he was the person who was driving around Broken Hill, obviously meeting at least one other person. As I said of course he may have had other business within the city but that was ultimately, in the context of the jury's verdict, beside the point. He had travelled from Broken Hill for the purposes of supplying the drug that was found in the room and packaged in the manner I have described to somebody in Broken Hill for further supply. 11. There is evidence available to me that the prisoner for a period of time has been a user of methylamphetamine type drugs, which I am prepared to accept, and probably so too the other men. But the quantity of methylamphetamine found in the room and the packaging of the quantity that exceeded just over 70 grams was quite inconsistent with that drug being within the room, even in part, for personal use. Its packaging was entirely consistent with bulk supply, either by the offender on his own or jointly with one or other of the other people that were in the room. 12. It was submitted to me that I should find as a fact, bearing in mind I have to be satisfied of the particular facts beyond reasonable doubt, that the offender was only in possession of the smaller quantity, that is just over 14 grams. That was packaged in a container upon which was found the DNA profile of the offender. However I could not conclude that, bearing in mind the relationship of the packaged drugs one to the other and the fact that the offender's possessions within the room showed his connection to the place where the drugs were found. However I could not exclude the reasonable possibility that the offender was to jointly supply the drugs to people in Broken Hill, jointly with one or other of the men in the room. Of course being involved in a joint criminal enterprise does not necessarily diminish the objective seriousness of the offending. 13. It is, of course, the case I cannot be satisfied as to whether the offender was the person who solely financed this particular operation. Obviously he must have obtained the prohibited drugs from somebody else. He did not manufacture them himself as I would understand it. What he was to receive by way of profit, or financial benefit I do not know. He has not assisted me in that regard and the evidence is silent on that matter. It maybe that whatever financial benefit he was to receive was consistent with that of an employee, not a profit sharer and that any money that he was to receive was to be shared with the other two men or one or other of the other two men in the room. However as I say the direct evidence is silent upon those matters. 14. I make the point in the context of the subject case that has been conducted for the offender that it may well be that he had private business associated with some inventions of his that have been referred to in references provided to the Court, but it is clear on the evidence that he was, if so, concurrently involved in this particular drug supply. Whether he was trying to kill two birds with the one stone, that is by travelling to Adelaide to do private business and to supply the drugs that he has been convicted of supplying, I cannot say. 15. The offender has some findings of guilt in Tasmania which are of no moment but does have what could be called a reasonably lengthy history in South Australia. When I say it is a reasonably lengthy criminal history in South Australia, he has findings in the Children's Court that go back to 1995 which I will set aside as being irrelevant to this exercise. But then findings in the Magistrate's Court from 1995 as well through to 2016. His Counsel, by reference to the criminal history, drew to my attention the fact that the offender was, at the time of the commission of this offence, subject to a good behaviour bond which had been ordered for a period of six months, as I understand it, on 20 April 2016 at the Adelaide Magistrate's Court. This was for an offence of 'unlawfully on premises'. He was also, as I understand it, according to this record, on a good behaviour bond for a period of one year that had been ordered on 8 July 2015 in the Adelaide Magistrate's Court in respect of an offence of assault. But it is conceded by his counsel one way or the other that he is subject to conditional liberty at the time of the offending with which I am now concerned. 16. Whilst he has a large number of appearances in Court his criminal history is largely confined to the Magistrate's Court. I note he has a conviction in 2004 for "taking part in the production of a controlled substance". For that he was fined $450. An offence I point out committed in 2002 for which apparently he had in 2003 been committed for trial. It must have been a minor matter. He has a number of traffic convictions. He has a number of drug use findings of guilt, his more recent criminal history is largely concerned with failing to comply with intervention orders. I understand one such order relating to his mother. 17. However there is a pattern, in various ways, of relatively consistent offending over a period of time, but nothing of the seriousness with which I am now concerned. His criminal history does not entitle him to any particular leniency. 18. I have no pre-sentence report, none was requested. I have a letter addressed to the Court by the offender and he sets out some history which he has also given to a psychologist who has prepared a report. None of the history is subject to any test by the prosecution, if the prosecution chose to do so, and thus one would need to approach what the offender says about himself with some circumspection. However I am prepared to accept, arising out of the histories that he has given, that the offender was born and raised in Adelaide, that he was a person who was a talented musician and has played with commercial bands. 19. He was diagnosed as a child with AAHD, or ADHD and according to the psychologist's report was prescribed substances with amphetamine type base. He has three children from two relationships, however his latest relationship would appear to have finished in September 2015. The children of his second relationship are now aged 7 and 3 and he has a daughter who, on my best calculation would be 13 or 14 years of age. What responsibility he has for the children I do not know. He has been a user of amphetamines over a period of time but this particular case, the objective seriousness of it, having regard to the quantity is not consistent with the prisoner being, what could be strictly called, "a user dealer". 20. We see in our Court many "user dealers" plying the trade of dealing in prohibited drugs in Darlinghurst and Kings Cross who quite clearly are working at street level, supplying small amounts of drug in order to obtain some money to obtain drugs for themselves. The quantity involved here and the characteristics of the packaging of the drug are not consistent with a "user dealer" situation. Although as I said earlier it may well be that the offender's use of amphetamines, or methylamphetamine, in the past has some connection with the circumstances of his offending on this occasion. Again I have nothing from the offender to assist me in that regard. 21. In respect of the sentencing of the offender for this offending I bear in mind the maximum penalty of 15 years imprisonment. I bear in mind that a commercial quantity of the drug methylamphetamine is 250 grams. Thus, the quantity in itself is approximately one third of the quantity required to establish a more serious offence. Of course the matter is not purely judged on the question of quantity. The role of an offender and the like is to be considered and the only thing I can be satisfied of beyond reasonable doubt is that the offender whilst in company of two other men came to Broken Hill with a quantity of pre-packaged methylamphetamine for the purposes of it being on-supplied to people who no doubt would supply it to other people within Broken Hill. 22. I am not here to make moral judgment or to make commentary upon the social circumstances of our community but it is the fact, as Judges throughout the Commonwealth of Australia know, that the widespread use of methylamphetamine is very damaging to people in Australia and particular it seems to people in regional and rural areas of Australia. It is particularly damaging I hasten to say to the Aboriginal communities within regional and rural Australia and there is quite a significant Aboriginal population in Broken Hill. 23. I am not suggesting for one moment that this offender has targeted a vulnerable group of people. But he, as a user of methylamphetamine, should well know, if he wishes to raise that as something I should take into account in his favour, the damage that is done by this particular drug. It is a damage that not only is done to personal health but it is done to the community because other people will commit crimes in order to obtain money to supply drugs or to obtain drugs to which they are addicted and methylamphetamine is a strongly addictive drug. 24. For a long time in New South Wales it has been accepted as a general rule that a person who has been found to be involved in substantial drug trafficking should receive a sentence of fulltime imprisonment unless there are exceptional circumstances. There are a range of authorities that date back to the decision of Clarke in 1990. These include decisions such as Carrion from 2000, Gip from 2006, Gu from 2006, Young from 2007, Fayd'herbe from 2007 and Mitchell from 2008. There was within these cases a debate as to what constituted substantial involvement in trafficking, what constituted trafficking and what were "exceptional circumstances". 25. In relation to these later matters there are judgments such as again from Hunt J, who was the lead Judge in Clarke, commenting upon this aspect of the matter in the decision of Bardo. There is the decision of Ozer from 1993 and of course McClellan J, then the Chief Judge of the Common Law Division, in Gip at [12] as well as Rothman J, in the same judgement as [42]. In assessing the matter in Gip, at [13], McClellan CJ at CL now the Royal Commissioner into Institutional Child Abuse, pointed out that from the various judgments before the decision in Gip a finding could be made that a person was involved substantially in trafficking even if only one offence was proved, depending upon the circumstances surrounding that offence that might indicate that it was a result of a "sophisticated commercial arrangement". 26. Since the authorities that I have identified, the Court of Criminal Appeal recently in the decision of Robertson [2017] NSWCCA 205 noted that what was stated earlier to be "principle" was to be seen more as a judicially imposed constraint on the exercise of the sentencing discretion. Particular in that judgment I note the judgment of Simpson J and the observations that her Honour made at various points particular at [50] [71] [89] [105]. The point that her Honour made is that the idea that the notion that substantial involvement in trafficking of drugs must lead to a fulltime custodial sentence, unless there are exceptional circumstances, placed an unnecessary constraint upon judicial discretion and of course she noted the issues that arose in relation to expressions such as "substantial degree" and "exceptional circumstances" and the like. 27. I have had close regard to the judgment of her Honour and sequaeli of that judgment, but in this particular matter in all the circumstances, noting both the objective facts and the subjective circumstances of the offender, I have concluded, bearing in mind I can give him no discount for a plea of guilty he having pleaded not guilty, that the appropriate sentence is one of three years imprisonment and thus the appropriate sentence being in excess of two years there are no other options other than the imposition of fulltime custody. I am mindful of course of the discussion, where the sentence should be two years or less, about appropriate regard being had to the availability of exceptions to fulltime custody, such as intensive correction orders and suspended sentences. But those matters do not arise for practical consideration here. 28. I have had regard as I have said to the offender's statement to me although it is untested by cross-examination. He observed that he travelled to Broken Hill to assess the possibility of purchasing a bowling club as I have earlier referred to but claimed that his intentions were "clouded by my heavy use of ice". With respect to him he drove to Broken Hill from Adelaide and, although he may have been affected by methylamphetamine, he could not have been so affected as to not be able to control a motor vehicle. 29. Before I get to the psychologist's report, in support of the offender's business interests, I have noted a reference from a man called Pagnon who says he is the CEO of Freelance Robotics Pty Limited. This document, which on my reading of it is undated and addressed "to whom it may concern". I am prepared to accept, for Court purposes, he tells me that he has known the offender since 2014 and that the offender is the inventor of two inventions described as "Kitty Hawk" and "Shot Keeper", to quote from his reference: "These inventions aim to revolutionise and update the sport (of lawn bowls) in a range of areas. For example automatic referee systems save time and physical stress assisting elderly competitors and simplifying the system for new players. Game and individual player statistics become available on line working with the community and the new technology to develop the game at local, national and international levels. The facility to televise matches reduce costs for broadcasting, example TV camera crews in the competitive area, also the level of feedback and accuracy can optimise training for professional players." 1. Mr Pagnon states that the offender is an inventor with "strong potential" and it was thought that these inventions may be introduced at the 2018 Commonwealth Games on the Gold Coast where lawn bowls will be one of the sports played in that particular competition. He states that the finalisation of the concepts of Kitty Hawk and Shot Keeper is in motion and the offender would be important in the final development of these matters. I have, I must say, a reference from the Enoggera Bowls Sports and Community Club in Queensland where the Treasurer notes the use of the Kitty Hawk bowling system at that club and an agreement for the offender to install that equipment. 2. I understand from this material, untested as it is I hasten to say, but accepting it for the purposes of these proceedings at this level, that the offender has developed these inventions and has the patents for them. Therefore he must, by definition, whether he is in gaol or out of gaol, control the intellectual property that attaches to the creation of these inventions. My reading of the letter of Mr Pagnon, although it would have been much better for him to come down here and tell me this himself so we could find out more about it, is that the development of the inventions falls to others with the assistance of the offender. 3. I have had to weigh up very seriously, as was advanced by his counsel, the desire of the offender to be at liberty to develop these inventions. However at the same time I am required to ensure that there is appropriate punishment and recognition of the purposes of sentencing pursuant to section 3A Crime (Sentencing Procedure) Act 1999 in the sentence I impose for the offence for which the offender has been found guilty. It seems to me on the basis of the material available to me, unsatisfactory though some of it is, that much of the development of this matter is not solely dependent upon the offender being at large. But I have taken into account, as a relevant factor in sentencing the desire that he be at large to assist in the development of these inventions. The fact that a person is a creative person in the offender's case, creative both musically and in the making of new technologies, does not necessarily stop that person from committing other crimes, as history has well shown us. 4. It is on the basis of the material contained within the references that I have received, and the statement of the offender of his interest in these inventions, that I have concluded that I should adjust the relationship of the non-parole period to the balance of sentence and make a finding of special circumstances pursuant to section 44 of the Crime (Sentencing Procedure) Act 1999. I must say that without this material I would have been inclined to fix a non-parole period of 75% upon the otherwise appropriate sentence. Although I bear in mind this is the first time the offender has been in custody and he would need some professional assistance to adjust to community living. 5. I am a little intrigued I must say, and it is not explained to me in any way, why this technology is being developed in Queensland when the offender appears to have associations with South Australia. I have been told from the bar table as far as it can be taken that the offender's mother is a successful business person. The offender's mother has in fact invested a considerable amount of money in the offender's inventions, or the work associated with the inventions. I was told from the bar table so far as I can take it that in fact the mother has underwritten the payment of the legal fees of the offender in relation to this trial. These things may all be true and for the purposes of this sentencing I am prepared to accept them. The mother has a financial interest in the matter. Her financial interest would, I accept, be better protected if the offender was at large. The offender would be at large if he was not committing serious offences in New South Wales. But as I have said I am prepared to take into account those matters as being relevant to consideration of the appropriate non-parole period. 6. I have a report from Mr Watson-Munro which sets out matters of history, most of which I have already dealt with including the offender's attachment to his systems of invention. This report from the psychologist claims that the offender has symptoms consistent with a recurrent depressive disorder. He notes some turmoil in the offender's upbringing which has affected his life, particularly he draws a relationship between the offender's ADHD and being prescribed dexamphetamine to treat his condition. He apparently, on the basis of the history given to the psychologist and some history given by a person that he believed to be the mother of the offender when he rang her, that the offender was a talented student at school, but more interested in sport than academic pursuits. He has had loss in his life in a range of ways, including losing his maternal uncle, who was his God-father, to suicide when he was aged 12. He has had various employment in the history he gave to the psychologist and details of his drug and alcohol history are set out in the report. 7. The formulation of the psychologist is that he believes that the: "Confluence of his untreated psychological problems and drug use had a dramatic impact upon his judgment inclusive of impulse control and consequential thinking." 1. He had no treatment during this time and it notes a reconciliation with his mother in recent times, presumably evidenced by the fact that she has underwritten his legal fees, despite the fact that last year the offender was subject to a restraint order in respect of some misconduct towards his mother. 2. Whilst I am prepared to accept the history given by the offender about the use of prescribed and unprescribed or prohibited drugs over a period of time and accept as a general proposition that the offender's use of prohibited drugs would affect his judgment from time to time I note two things. One is his use of prohibited drugs has not prevented him to develop the inventions that have been referred to in the material available to me. Secondly, I have not got any basis for concluding, because there is no evidence on the matter, that any aspect of his drug use in any way has affected his judgment in relation to the commission of the offending with which I am concerned. So in other words apart from the fact that he was a drug user and that might be a reason for him to be introduced to people who can provide him with drugs that he can supply there is no basis upon which I can conclude that there is any direct causal connection between supposed lack of judgment or lack of impulse control in his offending on this occasion. 3. In any event let us look at the reality of the situation. This is not a case of a man standing outside a club at Darlinghurst and having a quantity of drugs pressed into his hand when he is affected by drugs and being told to sell them pretty quick to make a profit. The facts of the matter are that it is a case of a man who drove interstate with a substantial quantity of drugs for the purposes of them being, it would seem, provided to other people in Broken Hill on financial terms, I do not know, for those drugs to be disseminated amongst the community of Broken Hill. Other than that I cannot draw any conclusions adverse to the offender, or even favourable to the offender one way or the other. As I said, what financial benefit he was to receive I do not know. 4. I had able written and oral submissions from the learned Crown Prosecutor as I did from his learned Counsel. His Counsel surveyed the facts of the matter. I have already dealt with the central aspect of his submissions in relation to the objective facts. I cannot accept his submission that I could not be satisfied beyond reasonable doubt of the offender's possession in one way or the other of the total amount of the prohibited drugs. It does not even make sense that he should only possess one part of the total amount of drugs that were packaged. 5. I have taken into account all the various matters that were raised so far as the subjective circumstances of the offender. I have dealt with many of those matters in my summary of the evidence. I am not criticising his Counsel, or the offender for that matter, but it seems to me as I said earlier the offender would have been in a far better position to argue some aspects of the issues with which I am now concerned if appropriate evidence had been adduced to the jury back at Broken Hill. His counsel properly acknowledges by reference to the criminal history the breach of conditional liberty. He acknowledged that the threshold provided for in section 5 of the Act had been crossed, but he submitted that I should impose a sentence that would permit consideration of an intensive correction order or a suspended sentence. 6. He submitted also that I should take into account all pre-sentence custody. The offender was in custody for four months after his arrest as I understand it or at one point after his arrest and then released to bail and then I remanded him in custody when he was found guilty by the jury. That was meant as no disrespect for the offender but the truth of the matter is I could not allow a man found guilty by a jury to be allowed bail in circumstances where I was told that he came from South Australia that he had business interests in Queensland and I knew as a fact that when he was in Broken Hill and he knew that his mates were in trouble, the first thing he did was leave the State or flee Broken Hill. At least to get away from the police. There was too great a risk of him failing to attend if granted bail and that is precisely what his colleague did who was arrested at the motel room. I have taken into account the support of his mother, I have taken into account the history of drug use and I have already commented upon that. 7. The Crown's written submissions were largely directed at what I would call 'technical issues'. The general principles relating to sentencing in relation to drug supply which I have already surveyed. The Crown referred to the offender's record of criminal convictions but that is not an aggravating factor under section 21A(2) of the Act in fact I am prepared to find in one sense that the offender's criminal history is not "significant" criminal history in the context of this type of offending. I do not conclude that as an aggravating factor that this offending was part of planned or organised criminal activity. Of course, the circumstances of drug supply may speak of organised criminal activity. But I do not have any evidence that this offender is part of any particular organisation. 8. As to the issue of financial gain, it seems to me, although it is capable of being an independent aggravating factor, that it is intimately bound up in the character of the offending and in any event I am not able to say what financial gain was available to the offender. I know he paid $300 to have the car hired. I know presumably that he was going to either pay for or reimburse the actual hiring of the car, although that was very cheap. $26 a day or something like that, plus petrol I assume. I know that he paid for the room. All these expenses would have had to be met in some way but what profit he was supposed to make I do not know. 9. Ultimately the most significant aggravating factor under section 21A(2) was that he was in breach of conditional liberty, albeit it was conditional liberty fixed in South Australia. I acknowledge it was for criminal activity quite different than the criminal activity with which I am concerned. If this offender was on parole for drug supply or on a bond for drug supply, clearly that type of breach of conditional liberty would be a much more serious "aggravating factor". 10. The Crown by reference to section 21A(3) matters acknowledge the plea of guilty was a mitigating factor, some of the issues that arise under section 21A(3) were touched upon, if not directly by Counsel for the offender. I am prepared to find that the offender did not have a significant record of previous convictions, although he has a number of them. I am prepared also to find that the offender has good prospects of rehabilitation because of his interest in these business matters to which I have referred. Certainly he was not a person of good character and I could not conclude he is unlikely to reoffend. For whatever reason, it seems to me that even though he has tremendous, it would seem, potential, he is not a person, despite this potential, who is above offending. 11. The chronology of events in the material he has presented proves that to be true. He is involved in the invention of these matters concerned with lawn bowls from 2014. Yet in 2016 he is up at Broken Hill supplying a substantial quantity of prohibited drugs. I would assume that he was involved in the development of the patents and the like at the very time that he was bringing a substantial quantity of methylamphetamine into Broken Hill. 12. That having been said the available opportunities from those inventions speak of advantages for him when he is released to custody. I am prepared to accept, albeit the evidence is fairly silent it is a matter of inference or is implicitly to be determined, that he has the support of his mother. Obviously there is no issue of remorse. There is obviously no discount to be given for the plea of guilty. 13. In the context of the terms of section 3A of the Act of course, I have got to ensure that there is adequate punishment, I have got to ensure there is elements of general and personal deterrence. I do not think the community needs to be protected from the offender but I am required to promote his rehabilitation even if he is going to live interstate when he is released from custody. I have got to make him accountable for his actions and to denounce his conduct and recognise the potential for harm done to the community by being involved in the supply of drugs. As I said earlier if he truly is a user of drugs and if it has an adverse effect upon him then he should think about the people that are using the drugs, or the people that could have used the drugs that he took to Broken Hill who may not have the skills and talents and support that he has. Because we see them in our Courts all the time, damaged and damaging others. People such as this offender must take responsibility for this conduct. 14. I have determined as I have said there are special circumstances pursuant to section 44 of the Act. I accept, in terms of the range of offending contemplated by section 25, in relation to the supply of methylamphetamine that subject to the amount being less than a commercial quantity there are more serious offences for sentence involving offenders more appropriately to be regarded as warranting condign punishment. The absence of significant convictions in relation to drug supply is a matter that works to the offender's favour. But be that as it may, in the context of the quantity and in the context of the circumstances of the offending and the arrangements that had to be made for this offending to occur, a term of imprisonment must be imposed of the type that I have foreshadowed. 15. Yes thank you Mr Leslie if you could stand now thank you. 16. In relation to the offence for which you were found guilty by the jury you are convicted. You are sentenced to a term of one year and six months imprisonment by way of non-parole period to commence from 1 May 2017 expiring on 31 October 2018. I fix a balance of sentence of one year and six months imprisonment expiring on 30 April 2020. I direct that you be released to parole on 31 October 2018. 17. You can take a seat. There is one particular matter in the learned Crown Prosecutor's submissions I should advert to it is not meant to any criticism of him but his written submission said that I should date the sentence from the date that I remanded the offender in custody and he said this in relation to the matter that I should then consider in fixing the sentence the other period of time in custody served beforehand, it's described as the "broken period in custody". I am not suggesting there is anything malevolent in that submission but it is completely misguided. It's quite appropriate when one is dealing with an extended period of custody, whether it be broken, or not, referable to a particular offence, to start the sentence, taking into account all the period. So that of course in this matter, by definition involved me, based on the figures given to me by the Crown which suggested last Friday that the broken period of custody amounted to five months, 20 days, backdating that custody to the 1 May and not dating the sentence from 1 September and then doing some adjustment to the sentence that leads to confusion and disguises the true effect of the penalty imposed. Again that is not meant as a criticism of the learned Crown's helpful submissions. It is just, with respect to the learned Crown, misguided. 18. Do you understand the sentence I have imposed Mr Leslie, it's a total sentence of three years imprisonment it's a non-parole period of 18 months in New South Wales if I or other Judges sentence someone to three years or less I may direct that the person may be released to parole at the end of the non-parole period. If I sentenced you to more than three years imprisonment your release to parole would be a matter for the Parole Authority. I haven't fashioned the sentence I hasten to say simply so that I can direct that you be released to parole I think in the scheme of things, that's the appropriate sentence. I should point out in relation to the matter that looking at a number of the authorities that deal with matters of principle, although they are not binding or necessarily determinative I have noted the terms of imprisonment that were the submission of appeal to the Court of Criminal Appeal and the range of sentences that have been imposed for similar or even more serious offending and I believe that the sentence I have imposed, not that I have got any self-satisfaction on the matter, is within the range of sentence which is appropriate for this particular type of offending. Thank you you are excused thank you, I wish you well with your inventions. 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: 25 January 2018