R v Brittain [2018] NSWDC 390

District Court New South Wales

Medium Neutral Citation: R v Brittain [2018] NSWDC 390 Hearing dates: 03 August 2018 Date of orders: 06 August 2018 Decision date: 06 August 2018 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: At [29]. Catchwords: SENTENCING — Multiple drug offences – Ongoing drug supply – supply prohibited drug – Posses firearm without licence – Multiple Form 1 matters – objective seriousness – mid range Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 (NSW). Drug Misuse and Trafficking Act 1985 Firearms Act 1996 Cases Cited: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Krivosic v R [2017] NSWCCA 167 Parente v R [2017] NSWCCA 284 Pearce v The Queen (1998) 194 CLR 610 Texts Cited: None Category: Sentence Parties: Regina (Crown)

Matthew Brittain (Offender) Representation: Crown: Ms Lumsden

Offender: Mr Gelbert File Number(s): 2016/64993

Judgment 1. Matthew Brittain, who was born in 1983, appears for sentence having pleaded guilty to a number of charges at a relatively late stage. Count 1, an ongoing supply of a prohibited drug being heroin, namely 14.9 grams, contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985, carries a maximum penalty of 20 years imprisonment with no standard non-parole period. To be taken into account on a Form 1 in relation to count 1 are four other charges and they will be dealt with in the way suggested by the Chief Justice in the guideline judgment on Form 1 matters. They are first, supply prohibited drug being gamma butyrolactone contrary to s 25(1), namely 149 grams of that substance which carries a maximum penalty of 15 years. Secondly possess a prohibited drug being 51.7 grams of cannabis leaf which carries a maximum penalty of two years under s 10(1) of the Act. Thirdly, dealing with property suspected of being the proceeds of crime, or money laundering under s 193C of the Crimes Act 1900 (NSW), which carries a maximum penalty of three years imprisonment. The amount involved was $46,395. The final matter to be dealt with on a Form 1 is possess ammunition without a permit, contrary to s 65(3) of the Firearms Act 1996 which carries a maximum penalty of 50 units. 2. Count 2 is a charge of supply 23.37 grams of heroin contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 which carries a maximum penalty of 15 years imprisonment. 3. Count 3 is a count of supply not less than the commercial quantity of methylamphetamine namely 349 grams, contrary to s 25(2) Drug Misuse and Trafficking Act 1985 which carries a maximum penalty of 20 years with a standard non-parole period of ten years. 4. Count 4 is possess firearm without a licence contrary to s 7A of the Firearms Act 1996 which carries a maximum penalty of five years imprisonment. 5. The maximum penalties and where applicable the standard non-parole periods are yardsticks to be used in the sentencing process and the sentencing process of course must take into account the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 which relevantly include punishment, denunciation, protection of the community and the victims and the promotion of rehabilitation. Mr Gelbert of counsel, who appears for the offender, concedes that a term of fulltime custody is mandated by the subjective and objective circumstances of this case and it is unnecessary for me to consider any alternative forms of punishment. It is common ground a 10% discount on the term of imprisonment for the utilitarian value of the plea of guilty should be applied. It is also common ground that Mr Brittain has been in custody for more than two years and six months since his arrest on 29 February 2016 and the term of imprisonment will commence on that date. 6. The agreed facts demonstrate that in February 2016 the police commenced an investigation targeting the ongoing supply of prohibited drugs namely crystal methamphetamine or ice and heroin in the Redfern area. On 1 February 2016 an authorised person met with a man named Matthew Hall in Redfern. Hall directed the authorised person to drive to Annandale where he was introduced to the offender Mr Brittain. Following that introduction, Police commenced investigation into the ongoing supply of heroin and ice by Mr Brittain. 7. As to count 1 there are five separate occasions on which he supplied a total of 14.9 grams of heroin for a total reward of $6,350 over a period of less than 30 consecutive days. It is unnecessary to set out the detailed facts in relation to each of those five supplies which all occurred at Annandale between 19 February and 29 February 2016. 8. On 29 February, as the last transaction under count 1 was occurring, police attended the location and arrested the offender. They searched him and seized a set of keys, a pair of glasses and a mobile phone. He gave them his address at Annandale. He was taken to Newtown Police Station where he denied the allegation of supply prohibited drugs and declined to answer any further questions. Police executed a search warrant at his residence. His girlfriend was there. A number of physical modifications had been made to the property including the addition of several locks and sound proofing to the front door. An unsophisticated barricading mechanism utilising large wooden blocks had also been added to the door to prevent entrance by intruders and police. While executing the search warrant police located a large amount of prohibited drugs, cash and drug paraphernalia within the premises and that led to count 2 being 24.3 grams of heroin that was found in three separate bags located in or on a desk. There were a set of scales and a small number of resealable plastic bags in close proximity and the agreed facts show that those drugs were in the possession of the offender for the purposes of supply. 9. As to count 3, involving the 349 grams of methylamphetamine was discovered at various locations in 16 separate quantities distributed throughout the property, some were secreted within the lining of an office chair, secured in metal lock boxes or hidden in boxes and containers and it is also agreed that these were in his possession for the purposes of supply. 10. As to count 4, police located a loaded .22 Marlin model self-loading rifle inside a wardrobe, in working order. It was a prohibited firearm as defined in the Firearms Act 1996. DNA relating to the offender was located from a swab taken of the trigger and the trigger guard of the rifle and 12 rounds of .22 calibre ammunition inside a white box were located on a filing shelf in the desk and a fingerprint matching the offender was located on the exterior of the box. A total of $46,395 in Australian currency being the proceeds from the supply of prohibited drugs was discovered at various locations throughout the premises and a total of 51.7 grams of cannabis leaf was located within the premises, and that is the subject of sequences 11 and 7, being two of the Form 1 matters. Two bottles containing a clear liquid wrapped in a plastic bag were located on the desk and that was found to contain 149 grams of GBL, which is the subject of sequence 8 and another Form 1 matter. A total of 11 mobile phones were located in the premises and documents were located which police purport to be drug supply information along with names and amounts of drugs supplied. There were a large number of SMS text messages on the white Samsung mobile phone seized from the offender upon his arrest. 11. Mr Brittain has a lengthy criminal record extending over some 18 pages which, as the authorities demonstrate, does not entitle him to any leniency in his treatment on these charges. It commences with assault occasioning actual bodily harm in 2001, dealt with in the juvenile court and a goods in custody charge in 2007 on which he was called up for breach of bond, or breach of community service order. He served his first term of imprisonment in 2009 for various offences of possessing prescribed substances, possessing prohibited drugs and custody of a knife. Goods in custody and driving while disqualified led to a term of imprisonment in 2009. Another goods in custody in 2010 with a five month term of imprisonment. Further drug offences and goods in custody charges in 2011. A further term of imprisonment for driving under the influence of drugs in 2012 and driving while disqualified. A supply prohibited drug being an indictable quantity in 2013 leading to a two year term with a 12 month non-parole period. These offences were not committed while he was on any bond or conditional liberty. 12. The Crown bundle contains the remarks of Blackmore DCJ when sentencing Matthew Hall, but as Mr Gelbert correctly submits, there is no question of parity involved here and the Crown does not submit that the remarks are anything other than background information. 13. The evidence provided for the offender contains a lengthy report of a psychologist Mr Bradley Jones following a consultation with the offender on 29 June 2018. The history contained in the report and the opinions in the report are subject to the customary caution that the history was not adopted or subject to challenge in cross-examination but, as Mr Gelbert points out, it contains admissions against his interest, including his candid admission that selling drugs was what he did in order to finance his drug usage. The history itself seems unremarkable for a person in these circumstances and there is a reasonable basis upon which to assess his subjective case in those circumstances. 14. He told the psychologist that he was the eldest of two children, his parents were both in employment and he had good relationships with his mother, but his biological father was someone he did not find out about until he was 13 years of age, his parents having separated. He has a good relationship with his adoptive father. Mr Brittain himself has had two long-term relationships. He went to school at Asquith and left in year 10. He has had various manual labour jobs. He began abusing drugs at age 19. He was taught how to sell drugs by age 22, and at that stage he was no longer gainfully employed. Again he has a not surprising history of cannabis drug and alcohol use together with MDMA from a relatively early age. There is a history of a violent assault when he was five years of age, but Mr Gelbert does not put that that is a matter of any causative or DPP (Cth) v De La Rosa (2010) 79 NSWLR 1considerations relevant to this case. 15. Surprisingly he said that he had never completed a drug rehabilitation treatment program while in gaol. He has, however, been in the Methadone program for some time while in custody and is no longer using illicit substances and intends continuing the Methadone program when released. 16. Mr Jones diagnosed an amphetamine type substance use disorder, opioid use disorder and post-traumatic stress disorder and notes that by his own admissions he had engaged in the offending behaviour to support his substance abuse. His criminal history is evidence of a significant anti-social type pattern of behaviour. It is likely associated with his substance dependency and underlying unresolved symptoms of child abuse. He is encouraged by Mr Brittain's abstinence from illicit substances for the better part of a year, and he believes it would be in his interests and in the interests of the community to obtain treatment that includes cognitive behaviour therapy, continuing participation in Methadone treatment programs and drug relapse prevention counselling and monitoring, vocational skills which would be important for a man of a relatively young age. He also recommends continuing psychological treatment. 17. Those findings and the other material in the case would satisfy me that a finding of special circumstances should be made, which is not challenged by the Crown, it being apparent that a man with his background would require an extended period of supervision on release to parole. 18. I have regard also to the report from Stuart McNorton, the manager of the offender services programs at Long Bay Hospital, which determines that he met the criteria for a residential rehabilitation service to conduct suitability assessment for their program. This was done in June 2018 and he is currently calling weekly to remain on the waiting list. I have regard to a reference from Mr Dundas, a member of the Prison Fellowship Australia, who notes that Mr Brittain has been attending church and his behaviour and demeanour are always to his credit. He is quiet and polite. He has confided in him regarding his long-term heavy drug use and supplying to support his habit, he now has clarity, and he is aware that his mortality is at stake. He understands that he has been provisionally accepted into a rehabilitation centre with Way Back or Calvary at Wagga which is referred to in the Long Bay Hospital notes. 19. The refined statistics in relation to the various counts have been provided by Mr Gelbert, and they are, as the courts often say, a blunt tool but of some assistance in illustrating the range of sentences that have been imposed without of course indicating anything substantial about the objective or subjective circumstances of each particular matter. 20. The Crown provided a very comprehensive outline of written submissions with which Mr Gelbert had very little contest. The Crown noted recent developments following the Court of Criminal Appeal's judgment in Parente v R [2017] NSWCCA 284, but in the light of my earlier comments it is unnecessary to go any further into that debate. The Crown reminds me of the general principles in relation to sentencing for firearms offences, the legislative intention being to remove firearms from the community unless possession is expressly authorised and to deter and punish those who would seek to possess firearms without excuse. 21. As to the objective seriousness of the counts, the maximum penalties of 20 years for counts 1 and 3 and 15 years for count 2, demonstrates that the community regards supplying prohibited drugs as objectively serious. They are generally committed with a disregard for public safety, notwithstanding that they may have been unwittingly supplying to an undercover police officer. The relevant factor was the offender's motivation or understanding in committing the offence. Section 25A offences are generally more serious than s 25 as indicated by the increase in the maximum penalty. The factors to be taken into account assessing the seriousness of the conduct, which here include the role of the offender, given that he was the supplier, contacted by the authorised buyer and he nominated the location of the exchange on each occasion. There was no evidence that he did not fully appreciate the consequences of his conduct, the offending was premeditated, and he must have appreciated that he was enmeshing himself in organised criminal activity. The mobile phone contained a number of text messages to which I have referred. A significant amount of cash was exchanged for each amount of heroin, namely about $1400 for each three grams. There was a level of sophistication and planning, in that the offender nominated similar places in Annandale for the exchanges, suggesting a familiarity with the general area and the usual place of business and also the consistency in sales, price and amount. 22. The purity of the heroin on supply occasions 1 and 2 were 72% and 70.5% respectively, the total amount of heroin supplied was 14.9 grams which is nearly five times the indictable quantity. The total financial reward in relation to count 1 was $6,350 there was an unrecovered profit of $4,950. In the light of all those circumstances, I find that the objective seriousness is around mid-range as submitted by Mr Gelbert, whereas the Crown submitted it was just above middle range. 23. As to count 2 I have indicated the facts which show that the total weight of the heroin was 24.3 grams, there was a set of scales, a number of small bags, a significant amount of cash secreted in various places around the house and the 11 mobile phones with names and amounts pertaining to the supply of prohibited drugs. Again, given the multiple quantities of drugs, the scales, the bags and the cash located in the premises and the facts that have been recounted in relation to count 2, my view is that this is around mid-range, as submitted by Mr Gelbert, although of course for offences without a standard non-parole period it is unnecessary to make any precise finding. 24. I make a similar finding as to count 3 in relation to the supply of methylamphetamine. As to the firearms offence it is common ground that characterisation of objective seriousness as being in the mid-range is appropriate. Noting that it is of relevance to the objective seriousness of the offence of possessing firearms, that the firearms are possessed in the context of drug supply, as the court said in Krivosic v R [2017] NSWCCA 167. 25. As I have said the Form 1 matters are to be taken into account by the court by imposing a sentence for the totality of the criminality reflected in both the offence for which the offender is to be sentenced, and the Form 1 matters. A greater weight for specific deterrence and retribution should be borne in mind so that the overall result is that the matters on the Form 1 would lead to a more severe sentence than would ordinarily impose for count 1 itself. 26. As to aggravating factors there is, as the Crown points out, a record of prior convictions. In terms of mitigating factors the Crown acknowledges the plea of guilty for each count. 27. Mr Gelbert pointed to the offender's ready cooperation with Police at the time of his arrest by providing the keys and the address, and characterised him as someone who is just above a street level dealer. As the courts often say, attaching a label to a person is neither necessary nor always helpful, and it is more important to look at the role performed by the offender when assessing the objective seriousness as I attempted to do so earlier in these remarks. It is pointed out that purity for counts 2 and 3 was not included in the agreed facts, and that apart from the $46,000 located in the premises there were no other assets or indicia of an extravagant lifestyle. 28. Mr Gelbert said that there should be a significant degree of concurrency given that most of the offending occurred within one relatively confined period, but he would acknowledge that questions of totality as dictated by the High Court judgement in Pearce v The Queen (1998) 194 CLR 610 requires some degree of accumulation given the separate, serious offending. He acknowledged that his prospects for rehabilitation were understandably guarded, given his long history, and that is an appropriate way in which to characterise his prospects of rehabilitation in my view. The offender has made a step forward by engaging in the services to which I have referred and the Crown noted that his custodial records indicate that his behaviour in prison has been good since December last year, but that even if the offender was doing no more than funding his own habit, to put it shortly this is still a serious episode of offending and the general deterrence is a very significant matter to be taken into account in the sentencing process as indeed it is. 29. It is appropriate to impose an aggregate sentence of imprisonment. The orders that I make are: 1. The offender is convicted of each offence. 2. I impose an aggregate sentence of imprisonment of 6 years to commence on 29 February 2016 and expiring on 28 February 2022. 3. I impose a non-parole period of 3 years and 7 months, expiring on 28 September 2019. The offender is eligible for release to parole on that date. 4. The indicative sentences are: 1. Count 1 taking into the Form 1 matters: 4 years, 6 months; 2. Count 2: 2 years, 8 months; 3. Count 3: 5 years; NPP: 3 years; 4. Count 4: 1 year, 10 months. 1. I find special circumstances. 2. The back-up charges (H60557554/014 & H60557554/015) are withdrawn and dismissed. 3. I make a drug destruction order and firearm destruction order. 4. I make orders pursuant to the two short minutes of consent orders dated 3 August 2018. Note – This is an ex-tempore judgment revised without access to the court file.