District Court New South Wales Medium Neutral Citation: R v Garland [2018] NSWDC 437 Hearing dates: 19 November 2018 Date of orders: 19 November 2018 Decision date: 19 November 2018 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to a period of imprisonment consisting of a non-parole period of 2½ years with a head sentence of 5 years Catchwords: CRIMINAL LAW – Sentence – Relevance of circumstance that offender will not be supervised to finding of special circumstances – Supply large commercial quantity - MDMA Cases Cited: . Category: Sentence Parties: The Crown Stephen John Garland File Number(s): 2016/277663 Judgment 1. HIS HONOUR: All offences of suppling a large commercial quantity of drugs are serious, but that is not to say they are all of equal seriousness. The case before me is one very much at the lower end of the scale in terms of its objective gravity. Then there are the subjective features. Stephen Garland appears for sentence at the age of 61, having on his criminal history a couple of driving matters and one offence of possessing cocaine, having otherwise led a blameless and industrious life. 2. Police were monitoring Mr Garland's phone. They heard conversations between him and a Mr Noor. The effect of those conversations was that Mr Garland was to send from the Northern Territory, where he was living, to Sydney, where Mr Noor was, a package which Mr Noor had previously sent to the Northern Territory. This package contained, it was later discovered, a significant quantity of MDMA. 3. The reason it was being sent back whence it came was because of apparent concerns about the quality of the drugs. It is important to understand in assessing the objective gravity of Mr Garland's conduct that he is charged with suppling the large commercial quantity of MDMA in New South Wales, the act of supply being him sending that package from the Northern Territory to New South Wales so that Mr Noor could regain possession of it. 4. There is no evidence that Mr Garland ever came into possession of the drugs in the Northern Territory for the purposes of supplying the drugs there and, even if there were, that would be a matter for charges being laid in the Northern Territory. As I said, all offences of large commercial drug supply are serious but the circumstances of this offence are part of the reason that I have decided not to impose the standard non‑parole period of 15 years. 5. I have taken both that standard non‑parole period and the maximum penalty of life imprisonment into account in determining the sentence to impose upon Mr Garland. My reasons for not imposing the standard non‑parole period appear in these remarks on sentence. 6. Mr Garland's history is in many respects a sad one. He was doing well in life. He grew up in Singleton, has been married for 35 years with he and his wife having three adult children. He has two grandchildren as well. I mentioned before that he had an industrious life too. At the age of 16 he left school to work in the mining industry but in about the year 2000 after 25 years working in that industry he lost his job. He suspects it was because he was a union organiser that he was selected for retrenchment when the mine he was working at was reorganised. 7. However he got another job at a horse stud and then something quite remarkable happened. He believes that he was poisoned by someone at work. He was taken to hospital and was lucky not to have died. Investigations were carried out both by the police and by private investigators as to the circumstances which led to Mr Garland being taken to hospital but no‑one was ever charged, despite Mr Garland being not the only person working there who was believed to have been poisoned. 8. It goes without saying that a near death experience as a result of being poisoned by a workmate is likely to have a significant impact upon anyone and so it did. At about the same time Mr Garland's father died. Mr Garland identifies this as a turning point in his life where things started to go downhill for him. He did work, after working at the horse stud, as a security guard but then became involved with the Nomads in Newcastle, an outlaw motorcycle group which notoriously has significant involvement in drug supply. 9. Mr Garland told a psychologist who provided a report for the benefit of the Court that he enjoyed the camaraderie of being involved in the club. Because of his involvement with the Nomads he could not work as a security guard anymore, losing his licence. So he decided to start his own business. In fact he had two business opportunities which he became involved in, selling the family home to obtain funds. 10. The first business was selling houseboats, a particular model, and the second was selling a water purifying device which turned the waste water on boats into drinking water. One could imagine that this was not an easy thing to sell. In any case the business was not a success. Having sold the family home, he began living on the houseboat, which was in effect living separately from his wife. 11. Mr Garland tried to start another business, a waterslide park up in Port Stephens but that too did not go well. What caused Mr Garland to move to the Northern Territory was that he met another man named Scott and they decided to develop a tourist park on Scott's property in Darwin. By this stage Mr Garland was the national treasurer of the Nomads. The business in the Northern Territory also did not do well, it seems that Scott had scammed Mr Garland. 12. The history that I have described shows a person who was a hardworking family man who, through a series of unfortunate events, became involved with those who supply drugs and who was isolated from his family, having been involved in a number of failed business ventures. 13. Mr Garland has pleaded guilty to the offence of supplying a large commercial quantity of MDMA. It has to be said that this plea did not come early which is consistent with Mr Garland not admitting early the nature of his involvement in the offence. The first sentencing assessment report obtained shows Mr Garland telling the author that the telephone calls on which the Crown case is based had been misinterpreted, but the most recent one prepared for today's court date shows that he has accepted responsibility for his behaviour, acknowledging that he made the telephone calls to facilitate drug movements. The sentence I impose upon Mr Garland will be about 15% less than it would otherwise have been to reflect the utilitarian benefits of his plea of guilty. 14. Despite Mr Garland acknowledging what he had done only belatedly, I am nevertheless able to make a finding that the prospects of him being rehabilitated are good. Indeed the Probation and Parole Service have assessed him as a low to medium risk such that, should I make an order that he be supervised, they will simply not do that, I will return to the impact that has on a finding of special circumstances later but I accept the assessment made by Probation and Parole as to his risk of reoffending and I take into account that personal deterrence is likely to help in this regard as well. The sentence I impose upon Mr Garland will act as a disincentive to him becoming involved in further criminality in the future. 15. I should also mention as regards the objective gravity of Mr Garland's conduct, that the drugs were apparently of a low level of purity, indeed that was what led to them being returned to Sydney in the first place. I note also that the drugs were not disseminated into the community because they were seized by police, although of course Mr Garland was not to know that when he sent them as Mr Noor asked him to. 16. Mr Noor is being sentenced by a different judge. Appropriately the parties did make enquiries as to whether Yehia SC DCJ was able to sentence Mr Garland but she is on circuit and so I will sentence him. Mr Noor pleaded guilty at the earliest opportunity. On the other hand he had a worse criminal history, including an armed robbery offence, and appears to have been more involved in this offence than Mr Garland. He gave instructions to Mr Garland and his fingerprint was found on the packages, indicating that he had an involvement in sending them to Darwin in the first place. 17. I assess the objective gravity of this offender as being below that of Mr Noor. I must ensure that Mr Garland does not have a justifiable sense of grievance when he compares the sentence I impose upon him with the sentence imposed upon Mr Noor by Yehia SC DCJ. 18. Mr Garland has now spent more than two years in custody awaiting sentence. In that time his depression has worsened, something which is not unusual given the conditions of custody. Ms Mikhaiel who appears for Mr Garland asked me to take into account that his time in custody would have been harder because he was a former member of the Nomads Motorcycle Club. There is no evidence at all as to his time in custody having been harder because of that circumstance and so I will not accept Ms Mikhaiel's submission in that regard. 19. I said I would return to the question of whether there are special circumstances in this case. Quite often sentencing judges make a finding of special circumstances on the basis that an offender will benefit from an extended period of supervision on parole. That finding is not made as a favour for the individual offender but in order to reduce the risk of that offender reoffending, because if an offender can be assisted to put their illegal ways behind them, the community benefits as a result. 20. But, as I have already mentioned, the Probation and Parole Service will not supervise Mr Garland even if I were to make an order that that happen. Presumably a similar decision would be made if Mr Garland was granted parole on the basis that he be supervised. On one view that should make it less likely that offenders such as Mr Garland have a finding of special circumstances made in their favour. If there is not to be any supervision then what justification is there for extending the period of eligibility for parole at the expense of the non‑parole period. No doubt these issues will be analysed by the Court of Criminal Appeal one day. Until then I say that it does make it less likely that people in Mr Garland's position will have a finding of special circumstances made in their favour, but that is not to say that I have decided that there will be no special circumstances in this case. 21. This is Mr Garland's first time in custody and as I mentioned his mental health has deteriorated since his arrest. I will make a finding of special circumstances in the present case. Ms Mikhaiel submitted that, when all matters are considered, I should formulate a sentence such that Mr Garland would be released, if not immediately, then in a matter of months. I accept that submission, taking into account the principles of parity, the unusual circumstances of Mr Garland's offending and his strong subjective case. The sentence I impose is as follows. 22. Mr Garland is sentenced to imprisonment, I set a non‑parole period of two and a half years and a head sentence of five years to date from 15 September 2016, the day on which Mr Garland was arrested. This means that his non‑parole period will expire on 14 March 2019. ********** 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 2019