R v Jones [2018] NSWDC 439

District Court New South Wales

Medium Neutral Citation: R v Jones [2018] NSWDC 439 Hearing dates: 7 December 2018 Date of orders: 07 December 2018 Decision date: 07 December 2018 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Bailed under s11 Crimes (Sentencing Procedure) Act Catchwords: CRIMINAL LAW – Sentence – Supply prohibited drug – MDMA – Neglected childhood – Whether ICO continues to be "a sentence of considerable severity". Cases Cited: Robertson v R [2017] NSWCCA 205, Category: Sentence Parties: The Crown Jade Jones Representation: Counsel: J Hale - Offender Solicitors: Director of Public Prosecutions File Number(s): 2017/165806 & 2018/71653

Judgment 1. HIS HONOUR: It is the Crown submission in this case that the offences committed by Mr Jones demonstrated a significant involvement in drug dealing activities. I accept that submission. But it is the submission of Mr Hale, who appears for Mr Jones, that when all the circumstances of the case are looked at, the matter can be dealt with by means of an intensive corrections order, especially given that in this case that ICO could be imposed for a period of three years. 2. On 2 June 2017, police were in Warners Bay. They saw a man approaching a parked car. This car turned out to be driven by the offender, Jade Jones. Police watched as the man leant in through a passenger's side window and then stand up, holding a brown paper bag. Police considered this to be suspicious activity. They, therefore, searched the car after asking Mr Jones what he was doing there. They discovered a silver lock box in the boot of the car and, when the police opened that box using a key given to them by Mr Jones, they discovered four mobile phones, multiple clear resealable bags and a clear resealable bag containing powder and pills. Later, when analysed, that last item proved to be 45.62 grams of MDMA. 3. Somewhat ironically, it turned out that the brown paper bag that police saw being handed over to the man who leant in through the passenger's side window of Mr Jones' vehicle did not actually contain any drugs. It was a bag of McDonald's food. 4. The offender was charged with an offence of supplying a prohibited drug. He pleaded guilty to that offence, being committed for sentenced on 31 January 2018. He was thus on bail when police went to his premises on 1 March and executed a search warrant. The offender was not home, so police rang him on his mobile and asked if he wished to attend. He said he would, but he did not. 5. Police searched his premises and discovered a pill press, some chemicals, some metal dyes, and other chemical equipment. Eventually, indeed only a few days later, Mr Jones turned himself into the police station. 6. It is apparent that what Mr Jones was doing was manufacturing MDMA pills. He said that there were some pills of poor quality which he would grind down to a powder form and then, using the pill press, remake them into pills again. He could not explain to me why this was done or how that process caused the pills to become better quality pills. 7. Mr Jones thus admitted offences in two separate time periods, 2 June 2017 and then in February 2018. He has spent 73 days in custody before he was granted bail. 8. Mr Jones has no previous convictions. He had what he described to a psychologist as a somewhat difficult childhood. He grew up in a single parent family with two siblings, having never known his father. His mother suffered from bipolar affective disorder and, during her low periods, when she would go to bed for days, Mr Jones was effectively unsupervised and neglected. Although there was no physical or sexual abuse in the household, he did experience periods of instability and neglect due to his mother's mental illness. As he grew up, he experienced bouts of depression and anxiety and had fleeting thoughts of suicide as a teenager. 9. When he was at school he was diagnosed with ADHD but his mother would not allow him to take Ritalin which was prescribed for him. He started using drugs at the age of 18. They were offered to him at a club that he attended and, as is regularly the case, he began to use more and more drugs over the years. He said he did not use drugs in gaol and last used drugs about two months ago, when the stress of these court proceedings got to him. Mr Jones was using drugs at the time of his offending but has now engaged with a drug counsellor in Narrabri, the closest town to where he lives. 10. Mr Jones pleaded guilty to his offending at the earliest opportunity, so when I ultimately sentence him he will be entitled to a discount of 25 per cent to reflect the utilitarian value of his plea. 11. Although it may not have come early, I am satisfied that Mr Jones is now remorseful for his misconduct. In a pre-sentence report prepared on 2 July, this appears: "Mr Jones does not agree with the police facts and denies supplying illegal drugs to any other person. He admits to the ownership of the drugs found and is adamant they were for personal use only. Mr Jones sees himself as the only victim of his behaviour." 1. Mr Jones claims that what is written there is the result of some misunderstanding. I have my doubts about whether such a fundamental misunderstanding is possible. But, in any case, in evidence today Mr Jones said that, having spent time in John Morony Correction Centre, he now knows that there are other victims of his drug dealing, including his family and the community in general. 2. He has plans for the future. He has a job offer which would require him to move from where he is living near Narrabri to near Helensburgh. He wants to be a good father to the three young children whose mother he is in a relationship with. He recognises the need for him to be assisted to give up drugs, having seen a drug and alcohol counsellor recently. No other appointment was made because of the uncertainty as to whether he would be able to make the appointment. He certainly would not be able to make the appointment if I sent him to gaol today. 3. As I told Mr Hale and Madam Crown, if I was to sentence Mr Jones today it is almost certain that he would go to gaol fulltime. But if he is able to demonstrate, rather than just promise, rehabilitation, then that will be a factor in his favour. Whether he ultimately goes to gaol or not will depend very much on how he performs over the period of the s 11 remand which I propose to impose upon Mr Jones. 4. It is Mr Hale's ultimate submission, as I mentioned at the beginning of these remarks on sentence, that an intensive corrections order could be imposed upon him. Mr Hale, in his written submissions, referred to the way in which intensive corrections orders have been described by the Court of Criminal Appeal in the past. He acknowledges, and it does have to be acknowledged, that ICO's are now served in a different way to the way they were served when those comments were made by the Court of Criminal Appeal. In particular, while it was clearly correct for Simpson J to say in Robertson v R [2017] NSWCCA 205, "An ICO is a sentence of considerable severity," it is not necessarily the case, given the way in which ICO's may now be served. 5. Mr Hale emphasises that the ultimate purpose of sentencing is the safety of the community. This, of course, has been the case for some time, even before legislative amendment saying exactly that. In some cases, the safety of the community can be promoted by imposing condign punishment on offenders, to deter both them and others who may be tempted to act in the same way. But, in other cases, a sentence can focus on a particular offender's rehabilitation. If that offender can be helped and encouraged to give up a life involving criminal behaviour, then not only does the offender benefit but so does the community. 6. Which form of sentence I will impose upon the offender, and how I will promote community safety is a matter that I can determine on another occasion, taking into account Mr Jones' performance during the s 11 remand. 7. The conditions of that remand are, he is to use no illegal drugs whatsoever. He is to be supervised by the Probation and Parole Service. In order to ensure that he is complying with the condition that he use no illegal drugs, he is to undergo regular urinalysis. If the Probation and Parole Service do not arrange at least fortnightly testing, he is to arrange, at his own expense, at least fortnightly testing. The results of all urinalysis tests are to be provided to the court on the next occasion. 8. In the event that, after some time, he has had only clean urinalysis reports and he finds the cost and frequency of testing to be prohibitive, he is granted leave to approach the court and seek a relaxation of the frequency of testing. 9. Given that there may be difficulty in the matter being put before me, the matter can be put before any judge. He is to take up the job offer made to him by Jason French from Perry's Roofing, or, if he does not take up tht job offer, he is to provide the Court with a satisfactory explanation as to why he has not done so. 10. Adjourned to 6 March 2019 in Sydney for the purpose of seeing how Mr Jones is going and to 10 October 2019 for sentence. 11. Now, Mr Jones, you have heard me say, more than once, if I were sentencing you today you would not be going home. Whether you ultimately get a prison sentence or not is going to largely depend on you over the next few months. If you use drugs, I am going to find out about it. And if you use drugs, I am going to say to myself, "Well, the chances of Mr Jones committing offences in the future are good because drugs got him into this in the first place." If you do not use drugs, I am going to say, "There are good prospects of Mr Jones not offending again in the future". So, it all depends on you, do you understand that? 12. OFFENDER: Yeah. 13. HIS HONOUR: So let me make it very clear to you: If you use drugs, you will be going to gaol. So, there will be times in the future when you feel depressed, you feel like using drugs. If you give into that temptation, you should know that you will be going to gaol. 14. I will get an updated sentencing assessment report for 6 March too.