R v Burns [2018] NSWDC 200

District Court New South Wales

Medium Neutral Citation: R v Burns [2018] NSWDC 200 Hearing dates: 6 July 2018 Date of orders: 06 July 2018 Decision date: 06 July 2018 Jurisdiction: Criminal Before: Berman SC DCJ Decision: For the offence of supply prohibited drug the offender is referred for assessment as to his suitability to serve his sentence by means of an Intensive Corrections Order. Make forfeiture order by consent Catchwords: CRIMINAL LAW – Sentence – Supply prohibited drugs – Drug possession for purpose of supply to a limited number of people – A series of unfortunate events. Category: Sentence Parties: The Crown James Alexander Burns Representation: Counsel: Mr E Anderson – The offender

Solicitors: Director of Public Prosecutions – The Crown File Number(s): 2016/1320942016/354358

Judgment 1. HIS HONOUR: The tale that the offender James Alexander Burns tells about how he was picked up by police and identified as a drug supplier is either untruthful or shows a somewhat unlikely series of very unfortunate events. Frankly I do not know whether Mr Burns is telling the truth or not. It may be that this coincidence of unlucky happenings did take place or it may not. 2. Police arrested Mr Burns in the very early hours of Saturday 26 November. He came to their attention as he stopped on Ward Avenue Potts Point, an area, so the facts in this case record, which is well known to police for the sale and procurement of prohibited drugs. Police watched as a man by the name of Levis Ashton approached the car and entered the front passenger seat. What happened inside the car was that he gave Mr Burns $250 and Mr Burns gave him a small plastic resealable bag containing cocaine in return. Mr Ashton got out of the vehicle and Mr Burns drove away. 3. When they stopped Mr Ashton police searched him and found the cocaine which he had just purchased from Mr Burns. Police also stopped Mr Burns himself. They searched him. They found a small plastic resealable bag containing MDMA and they also found a number of other bags, 11 I think, containing cocaine. Mr Burns participated in an interview with police. He admitted supplying Mr Ashton with the cocaine and he admitted possession of the cocaine found by police in his car as well as the bag of MDMA. 4. In evidence Mr Burns explained, and this is something he told police soon after he was arrested, that he had bought 20 bags of cocaine for $4,400 primarily because he intended to go to a party hosted by a friend of his, Mr Matt Wilson, where he would supply his friends, without making a profit, with cocaine. He said that he had given away some of the drugs, that someone had asked him whether he could supply Mr Ashton with the bag he supplied him and that he had used some with his partner, leaving behind the bags discovered by police. 5. There are a few things which were difficult to accept about Mr Burns' explanation. Firstly as I have already noted this supply took place in an area that police know is used by drug dealers for supplying drugs. Secondly Mr Burns was in a hire care. It is notorious that drug dealers often will not use their own cars as they go about their business, and thirdly, we only had Mr Burns say so that there was any party at all at which he was going to supply his friends with the cocaine. 6. The matter was therefore adjourned to allow Mr Burns to see if he could improve his position as regards to findings of fact which I would make as to the extent of his involvement in drug supply. Things have improved a little bit but not a great deal. Efforts to obtain evidence that his car had broken down (and thus he needed a hire car) have failed. The mechanic cannot be contacted and the person who was driving Mr Burns' car on the day he said it broke down and who took it to the mechanic has unfortunately died. 7. Mr Burns was found with a substantial sum of money in the car. He says that he won it at the casino in Melbourne the night before. It is just an unlucky coincidence that he is picked up by police the very day after winning some money on the poker machines. It is also an unlucky coincidence that he decides to sell drugs to Mr Ashton in an area that is well known to police for drug sales and it is very unfortunate that the person who could have given evidence about his car breaking down is now unable to do so. So frankly I do not know whether Mr Burns is telling the truth or not. He might be or he might just be very unlucky. 8. As well as giving Mr Burns the opportunity of obtaining evidentiary material I also gave him the opportunity of proving to me that he was no longer using drugs. Indeed I made him go and get tested the day after he appeared before me. He has been tested regularly in the period of the remand and no drugs have ever been detected in his urine. 9. Things are not all rosy however, because on 27 February he was picked up in possession of a prohibited drug. That is, whilst he was on remand facing a custodial sentence for drug supply and a condition of his bail on remand being that he not use any drugs, he nevertheless went out and used some. He explains the distressing circumstance which led him getting upset and making the decision to use drugs and he is supported in that by an affidavit from his partner. The Crown does not wish to cross-examine her nor did the Crown suggest to Mr Burns when he was giving evidence that he was not telling the truth about what happened on 27 February, so I will accept it. 10. The Crown as well did not wish to cross-examine Mr Wilson, a person who was hosting the party the day after Mr Burns was arrested. In Mr Wilson's affidavit he confirms aspects of the offender's evidence, namely that he was aware that Mr Burns was to supply drugs to people at the party, indeed Mr Wilson frankly admits that he was going to buy some from him. Of course this is important because if, as Mr Wilson suggests and I accept, the cocaine discovered in Mr Burns' possession was to be supplied to a limited number of friends the offence for which I must sentence Mr Burns is much less serious than would otherwise be the case, that is that Mr Burns was a drug dealer willing to supply to anyone who wanted to buy drugs from him. 11. To make it clear, I will sentence Mr Burns on the basis that what he said about what he was going to do with the cocaine and what Mr Wilson said was going to happen at the party is the truth. That does not make this offence one that is not serious. It clearly is. Time without number I have commented on the harm that drug use and drug dealing does to the community. I trust that Mr Burns is telling the truth when he gave evidence that he now understands what such harm is, having been receiving the benefit of counselling from an organisation called The Cabin. 12. Mr Burns has no real excuse for his criminal behaviour. His upbringing was not a deprived one. It was not one where drug use was all around him. That is not to say Mr Burns' upbringing was ideal, his mother passed away when he was quite young. But his father re-married. He has a number of half-brothers and half-sisters and the all get on very well supporting each other and holidaying together. So he has no excuse for what he did. 13. He is supported at present by his employer who has provided a reference today, by his partner and by his family. I suspect that it is likely that Mr Burns is not going to use drugs again. But he still needs to be punished for what he did. I should mention that he pleaded guilty at the earliest opportunity so he is entitled to a discount for the utilitarian value of his plea. I will not quantify it. His plea of guilty is one of a number of factors which have led to me deciding to impose, if Mr Burns is suitable, a different form of sentence I would otherwise have imposed. 14. I should have mentioned also that Mr Burns was on a s 10 bond for driving while suspended at the time he committed this offence. I have been asked to deal with that and I will impose a fine on Mr Burns at the end of these remarks on sentence. 15. I should have also mentioned that there are a number of matters on a Form 1 which Mr Burns asks that I take into account. He has admitted his guilt of those matters and so of course I will take them into account. 16. For the offence of driving while suspended which was originally dealt with by way of a s 10 bond I will convict and fine Mr Burns $1,000. For the offence of supplying a prohibited drug I am satisfied that a custodial sentence is required and satisfied that a sentence of two years or less is likely. I refer Mr Burns for assessment as to his suitability to serve that sentence by means of an Intensive Corrections Order. The matter is adjourned to 31 August 2018 and I make the forfeiture order by consent.