R v Kirk [2018] NSWDC 217

District Court New South Wales

Medium Neutral Citation: R v Kirk [2018] NSWDC 217 Hearing dates: 3 July 2018 Date of orders: 03 July 2018 Decision date: 03 July 2018 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The offender is sentenced to an aggregate term of imprisonment consisting of a head sentence of 7 years with a non-parole period of 3½ years. Catchwords: CRIMINAL LAW – Sentence – Forms 1 – s166 certificate – Drug supply – On conditional liberty at time of offending – Cocaine - Methylamphetamine Forfeiture order Category: Sentence Parties: The Crown Alex Rennie Kirk Representation: Counsel: Mr E James - Offender

Solicitors: Director of Public Prosecutions – Crown Havas & Dib Legal - Offender File Number(s): 2016/2128882016/349193

Judgment 1. HIS HONOUR: The authorities which bind me make it clear that where an offender commits offences whilst on conditional liberty, that factor must be reflected in the sentence imposed on the offender, because it is a very serious thing to fail to take advantage of, and indeed to abuse, opportunities which are provided to an offender such as Mr Kirk. 2. The offences I am about to describe were committed whilst he was on conditional liberty, somewhat remarkably, on both bail and parole. Mr Kirk has demonstrated a continuing attitude of disobedience to the law. For that reason not only is general deterrence of substantial importance in the sentences I will eventually announce, so is personal deterrence. It needs to be brought home to Mr Kirk in a fundamental and obvious way that if he gives in to the temptations to use drugs upon his release from custody and reverts to his old ways of being a drug supplier, he is going to spend longer and longer and longer in custody. 3. On 13 July 2016 Mr Kirk was driving a car in Glebe. Police stopped him, saw that he was with a passenger sitting in the passenger seat and told him that they were going to conduct a random breath test upon him. It proved negative, but Mr Kirk's behaviour during the process caused the police to have a suspicion, a suspicion which turned out to be accurate, that Mr Kirk was up to no good. They therefore searched him. At one stage he put some property on a brick fence, but he attempted to conceal that property by flicking what he had put on the fence into a garden bed. When that was retrieved it was found to contain 3.52 grams of cocaine and 0.13 grams of methylamphetamine. Police also found $890 on the offender. 4. The 3.52 grams of cocaine is the subject of a specific charge of supplying that drug. The smaller quantity of methylamphetamine is on a Form 1 as a possession offence. The $890 is, the offender concedes, the proceeds of crime that also appear on a Form 1. 5. Other police arrived. They continued to search. Inside a laptop bag was found some money which the Crown accepts was not the proceeds of crime, as well as two sets of electronic scales. I interpolate here that in submissions Mr James, who appears for Mr Kirk, said that scales can be used by drug users to make sure they are getting the right amount of drugs. Why two sets of scales were needed was not explained. Certainly two sets of scales are much more consistent with the offender being a dealer in drugs, indeed more than a street level dealer in drugs than the alternative which Mr James would ask me to accept. 6. Eventually police began to search the boot of the car. They found a shopping bag from a shop known as "Topshop". Falsely, as it turned out, Mr Kirk denied any relationship with the shopping bag. He did this because he knew what was inside. There was a small bottle containing a liquid, being 31.5 grams of methylamphetamine. The supply of that drug is the most serious of the offences that the offender faces today. Further inquiries revealed in various and now undeniable ways the offender's connection with the Topshop bag. 7. Those two offences, together with the matters on the Form 1, were bad enough, but then whilst on bail and on parole the offender was at it again. On 17 November 2017 again he was driving a car and again there was someone in the passenger seat with him. Police stopped him, conducted another random breath test and again, as a result of the behaviour of Mr Kirk, they decided to search both him and the vehicle. They found more drugs, this time 5.41 grams of methylamphetamine, and another quantity of 14.72 grams of methylamphetamine. The offender is to be sentenced for supplying that latter amount. When I do so he asks that I take into account the offence of supplying 5.41 grams of methylamphetamine, together with an offence relating to the currency found in his possession. 8. What that reveals of course is that the offender was a person who was at least on those two occasions a somewhat committed drug dealer. It was submitted by Mr James that, as I mentioned earlier, his client was a street level supplier. I have already mentioned the relevance of two sets of scales in making that assessment. Certainly the offender was not a Mr Big of the drug world or even a Mr Big Enough, but Mr James has not satisfied me on the balance of probabilities that the offender's dealing was at the lowest end of the scale as Mr James would have me find. 9. Mr James referred to the fact that these were unsophisticated offences; for example, the offender did not have an encrypted BlackBerry. The Crown quite fairly in response points out that he had a phone which was protected by a password. The Crown also refers to the quantities involved, in particular the 31.5 grams of methylamphetamine, which do suggest substantial dealing whether at street level or otherwise. In any case Mr James conceded that whilst part of the offender's motivation was to fund his own drug habit, it was not the only reason that he was supplying drugs on the occasions that I have mentioned. 10. I know a bit about the offender's background. A psychological report from Mr Tim Watson-Munro was tendered and Mr James read an affidavit of the offender's mother, Michelle Kirk. It is undeniable that Mr Kirk has faced a number of challenges in his life. One has to look at those challenges in looking at the decision that Mr Kirk made to begin using drugs and then ultimately to become a drug supplier. 11. Mr Kirk suffers from ADHD. The connection between that condition and drug use is reasonably well‑known. Often people with ADHD self-medicate with amphetamine type drugs and they have troubles with impulse control. Certainly there is a significant connection between Mr Kirk's addiction to drugs, his decision to continue using drugs despite occasionally being able to cease use of them for some periods, and his ADHD. Another challenge that Mr Kirk faced, and he is certainly not alone in this, is that his parents separated and the process of separation was stressful. 12. Ms Kirk, the offender's mother, speaks about friction and family conflict which greatly impacted the offender. Ms Kirk considers that the family breakdown had a long standing impact on Mr Kirk's mental state and contributed to him leaving school during year 10. At first he got a job with an events company which he enjoyed, but lost his driver's licence and could not continue in that job. He then enrolled in an audio‑visual course in Surry Hills, but he and his family lived in Bowral and classes were occasionally at night so this was a difficult commitment for him to maintain. 13. It was at this time, as a relatively young man, that Mr Kirk found himself away from parental supervision. He was also forming relationships with peers who work in the music and entertainment industry. I trust I will be forgiven for blackening the name of that industry by suggesting that drug use there is not at all unknown. So as a relatively young man, having seen his parents separate, suffering from ADHD, and becoming exposed to drugs, he developed an addiction. That addiction has continued for many years, he now being a 35 year old man who recognises that upon his release from custody he will need to do a great deal to overcome his desire to use drugs. 14. At times Mr Kirk has undergone rehabilitation and at times he has been able to put his drug use behind him, but as his presence in the dock today facing sentence for serious drug dealing and facing lengthy periods of imprisonment reveals, those rehabilitation attempts have had only short term results. Mr Kirk is using his time in custody wisely, volunteering for the EQUIPS program in gaol and successfully completing it. 15. Mr Kirk pleaded guilty to the offences for which I must sentence him. His plea of guilty to the most serious offence came relatively late, only a few days before trial. The sentence I impose upon him for that matter will be about 10% less than it would otherwise have been, whilst the sentences for the other two matters will be about 25% less than they would otherwise have been. 16. The question of remorse needs to be addressed. Mr Watson-Munro's report said most unhelpfully, "He expressed appropriate remorse for his behaviour," without assisting me to understand what it was that Mr Kirk had actually said to enable Mr Watson-Munro to draw that conclusion. In response to me pointing this out to Mr James, he called evidence from his client. Certainly it appears that Mr Kirk's remorse was focussed primarily on the effects of his offending on himself, his family and those people close to him. That he, through drug dealing, was prepared to harm many others was not something which was at the forefront of his mind. The offender has expressed his remorse in a very conditional way. 17. Mr James conceded quite appropriately that the offender's prospects of rehabilitation are guarded. One only has to remember the history that brought Mr Kirk here, a 35 year old man who was sentenced for drug dealing and then whilst on bail and parole committed three offences of drug dealing on two separate occasions, to realise that the path for Mr Kirk to put his criminal activities behind him is not going to be an easy one for him to take. 18. I was impressed by Mr Kirk's evidence in the sense that he has expressed what I am satisfied is a genuine desire to overcome his addiction, coupled with a realistic assessment of what he needs to do to achieve that. Ultimately it is Mr Kirk who will decide when he is released from custody whether he uses drugs or not. I can personally deter him from making the wrong decision and I can make a finding of special circumstances in his favour because of the need for substantial support and lengthy support in Mr Kirk's case, but Mr Kirk needs to understand that upon his release from custody, should he use drugs, given his history, he will probably end up supplying them, and given again his history of offending, if he does so on parole, it will be breached and he will be back in custody facing a very lengthy period of imprisonment. 19. I am sure Mr Kirk understands this well, but prisons are not places for men in their 40s and older. Upon his release from custody Mr Kirk will have the opportunity to avoid returning to gaol, but as I mentioned, it is only he who can make that decision. 20. I will impose an aggregate sentence. Were I not to have done so, I would have imposed the following sentences taking into account Form 1s where appropriate. The offence involving 31.5 grams of methylamphetamine, imprisonment for five years. For the offence involving 3.52 grams of cocaine, imprisonment for two and a half years. For the offence involving 14.72 grams of methylamphetamine, imprisonment for four and a half years. 21. I have decided to backdate the sentence that I will announce to 3 January 2018. This is to ensure that I do not double count both by regarding the circumstance that the offender was on bail and parole as serious matters indicating a longer period of imprisonment is required and also by failing to take account of the fact that Mr Kirk has been in custody after serving the balance of his parole. 22. The aggregate sentence I impose is seven years imprisonment with a non‑parole period of three and a half years. That is to date from 3 January 2018, which means that he is eligible to be released to parole on 2 July 2021. 23. All matters on the 166 certificate are to be withdrawn and are dismissed. 24. I make for the forfeiture of $890.