District Court New South Wales Medium Neutral Citation: R v Thompson [2019] NSWDC 19 Hearing dates: 12 February 2019 Decision date: 14 February 2019 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Three year Intensive Correction Order. For orders see [75] Catchwords: Deemed supply of prohibited drugs Legislation Cited: Criminal Procedure Act 1986 Drug Misuse and Trafficking Act 1985 Cases Cited: Bugmy v R (2013) 249 CLR 571 Kennedy v R [2010] NSWCCA 260 Parente v R [2017] NSWCCA 284 R v Fernando (1992) 76 A CrimR 58 R v Pullen [2018] NSWCCA 264 R v Van Ryn [2016] NSWCCA 1 Veen v R (No 2) (1988) 164 CLR 465 Category: Sentence Parties: Regina (Crown) Craig Thompson (aka Craig Varty) (Offender) Representation: Ms L Burgoyne, Solicitor, ODPP (Crown) Mr H White, Counsel instructed by Mr E Renard of Legal Aid (Offender) File Number(s): 2017/270753 Publication restriction: Nil Remarks on Sentence 1. The offender, who was born in 1980, is to be sentenced in respect of three offences: 1. Sequence 1 - Supply prohibited drug (103.27g methylamphetamine). 2. Sequence 7 - Supply prohibited drug (81.85g MDMA). 3. Sequence 14 - Supply prohibited drug (9.95g MDA). 1. Each of the charges is brought pursuant to s.25(1) of the Drug Misuse and Trafficking Act 1985 ("DMTA"). The maximum penalty for each offence is 15 years imprisonment and/or a fine of 2,000 penalty units. There is no Standard Non-Parole Period proscribed. 2. The offender has asked that in respect of the offence in sequence 7, supply prohibited drug (81.85 grams MDMA) that the following matters be taken into account on a Form 1 namely: 1. Sequence 2 - Goods in personal custody, being $2,174.50 cash. This offence is pursuant to s.527C(1)(a) of the Crimes Act. The maximum penalty is six months imprisonment and/or a fine of 5 penalty units. 2. Sequence 5 - Resist officer in execution of duty. This offence is pursuant to s.58 Crimes Act and the maximum penalty is five years at law (two years summary jurisdiction) and/or a fine of 50 penalty units. 3. Sequence 8 - Possess prohibited drug, namely 40.1 g of cannabis. The offence is pursuant to s.10(1) of the DMTA and has a maximum penalty of two years imprisonment and/or 20 penalty units 4. Sequence 9 - Possess tablet press of drug encapsulator. The offence is pursuant to s.11B(1) of the DMTA. The maximum penalty is two years imprisonment and/or 20 penalty units. 5. Sequence 10 - Goods in personal custody being $5,350 cash. The offence is pursuant to s.527C(1)(a) of the Crimes Act. The maximum penalty is six months imprisonment and/or a fine of five penalty units. 1. The following backup offences have been set out in a Certificate Pursuant to Section 166 of the Criminal Procedure Act 1986:- 1. Sequence 2 goods in personal custody suspected of being stolen. 2. Sequence 3 carry cutting weapon upon apprehension 3. Sequence 4 assault officer in execution of duty 4. Sequence 5 resist officer in execution of duty. 5. Sequence 8 possess prohibited drug 6. Sequence 9 possess tablet press or drug incapsulator. 7. Sequence 10 goods in personal custody suspected of being stolen. 8. Sequence 11 possess or use prohibited weapon without permit. 9. Of those offences, sequences 2, 5, 8. 9 and 10 are already subject of the Form 1 as outlined above. 1. The offences occurred on 6 September 2017 and the offender was arrested on that day. He was in custody between 6 September 2017 and 18 January 2018, when he was released on Supreme Court bail, and served that time in respect of two matters, namely:- 1. 6 September 2017 to 18 January 2018 for drive whilst disqualified (second offence). 2. Balance of parole between 6 September 2017 and 22 October 2017 in relation to supply prohibited drug greater than indictable quantity (not cannabis). 1. The present offences were not committed during the parole period and were not a reason for revocation of his parole. The offences were committed whilst the offender was subject to a bail undertaking on a possess prohibited drug charge. The sentence hearing 1. The sentence hearing took place on 12 February 2019. The offender adhered to his pleas of guilty to the principal offences and admitted his guilt in respect of the five offences on the Form 1. 2. The Crown Sentence Summary became Exhibit A. It contained an Agreed Statement of Facts, which may be summarised as follows. At about 7.35 am on Wednesday 6 September 2017 police stopped a vehicle, in which the offender was travelling as a front seat passenger, on Park Street Tuncurry. The offender exited the vehicle and ran towards premises in Park Street where he was known to reside on occasions. He ignored calls from police to stop and a chase ensued over 200 metres during which the offender continued to ignore calls from the police to stop and threatened to assault them if they came near him. He was eventually apprehended during which he kicked one of the police officers (sequence 4 – assault officer in execution of duty). The offender continued to resist the police, during which he threw a mobile telephone into a nearby drain (sequence 5 – resist officer in execution of duty). Following a search of the offender, the following were located:- 1. Cash totalling $2,174.50 (sequence 2 – goods in personal custody suspected of being stolen) 2. Two folding knives located in the offender's right hand pocket (sequence 3 – carrying cutting weapon upon apprehension (related offence)). 3. A keyring containing a set of keys to a Toyota Tarago van, parked in the subject premises. 1. The offender had been observed during the chase to dispose of a blue and white coloured item. It was retrieved from nearby premises and found to be a sock which contained six resealable plastic bags, containing various quantities of methylamphetamine totalling 102.56 grams (part of sequence 1 – supply prohibited drug). 2. Later that morning, a Search Warrant was executed at the subject premises which were occupied by the owner and her partner. The offender was known to stay there on occasion, about once per week. Inside the premises were located numerous indicia of a drug supply together with the following:- 1. A taser designed to look like a mobile telephone phone (sequence 11 – possess prohibited weapon). 2. 14 brown tablets tested as 3.93g of 3,4 methylenedioxyamphetamine (forms part of sequence 14 – supply prohibited drug). 3. 4.04g of MDMA (forms part of sequence 7) 4. 26g of cannabis leaf (forms part of sequence 8 – possess prohibited drug). 5. 0.77g of methylamphetamine (forms part of sequence 1). 6. A steel pill press with a star-shaped dye (sequence 9 – possess tablet press or drug encapsulator). 1. In a search of a Toyota Tarago van, police located the following:- 1. Cash totalling $350 (forms part of sequence 10 – goods in custody) 2. 14.1g cannabis leaf (forms part of sequence 8 – possess prohibited drug) 3. $5,000 in cash (forms part of sequence 10) 4. 5.66g of MDA (forms part of sequence 14) 5. 21.79g of MDMA (forms part of sequence 7 – supply prohibited drug) 6. 55.16g of MDMA (forms part of sequence 7 – supply prohibited drug) 7. 0.86g of MDMA (forms part of sequence 7 – supply prohibited drug). 1. Exhibit A also contained the offender's criminal antecedents, which were extensive. Ignoring Childrens' Court matters, in 2005 he had been convicted of offences of unlicensed driver, common assault, destroy or damage property, resist officer in execution of duty and behave in offensive manner near public place or school for which he had been sentenced by way of fines, Community Service orders and s.9 Bond for two years. 2. In 2006 he was convicted of supply prohibited drug, greater than indictable quantity and resist officer in execution of duty for which he was sentenced to two years with a non-parole period of 14 months, suspended on entering a s.12 bond for two years and a sentence of six months imprisonment respectively. 3. Thereafter, the offender had no convictions recorded until 2013 when he was convicted of two traffic offences and resist officer in execution of duty, for which he was fined. In 2014 he was convicted of possessing prohibited drug and sentenced by way of a s.9 bond for 15 months. He was subsequently dealt with by way of call-up for breach to a period of imprisonment for two months in respect of that offence on 28 July 2015. 4. On 6 May 2014 he was fined for the offence of resist officer in execution of duty and for an offence of drive motor vehicle during disqualification period (second offence) was sentenced by way of an Intensive Correction Order for 12 months commencing on 20 May 2014 and terminating on 19 May 2015. 5. In 2015 he was also convicted of an offence of possess prohibited drug, for which he was sentenced to two months imprisonment. 6. In November 2015 the offender was sentenced on a charge of supply prohibited drug greater than indictable quantity (not cannabis) to a sentence of imprisonment of one year and nine months, with a non-parole period of 9 months commencing on 18 June 2015. At the same time he was sentenced in respect of seven other charges either by way of s.10A conviction with no other penalty, or short periods of imprisonment to be served concurrently or matters taken into account on a Form 1. 7. On 21 December 2017 the offender was sentenced to six months imprisonment on a charge of drive motor vehicle during disqualification period 2nd + offence. That sentence was varied on appeal to a period of 4 months and 13 days, taking into account time he had spent attending the Adele House program up to 8 May 2018. The Offender's Evidence 1. The offender relied on a report of Mr D Awit, Psychologist, dated 24 January 2019. That report set out the offender's family history. His father was a drug addict and his parents separated when he was one year old. When he was aged 5 his mother remarried, however his stepfather was an abusive and violent drug addict. The offender was subjected to significant domestic violence during that marriage and his mother eventually left his stepfather when he was approximately 10 years of age. He reconnected with his biological father and spent sometime living with him when he was aged 12. The history recorded that the offender struggled significantly at school and left in year 10. 2. The author noted that the offender had commenced smoking cannabis at age 10 and was addicted by age 14. At age 17 he commenced the use of speed and thereafter had a significant history of illicit substance abuse, with pockets of abstinence. He noted that the offender had been free of illicit substance abuse since his arrest in 2017. 3. Significantly, the offender had completed a nine month residential rehabilitation program with Adele House and a further three months of after-care outreach with that service. He continued to attend meetings there and had regular clear urinalysis samples throughout his rehabilitation. He was also attending four Narcotics Anonymous meetings a week. 4. The author also recorded the offender's employment history. He had worked in unskilled jobs only. Following being in custody for six months in 2006, he ceased all illicit substance use and commenced working as a labourer. He continued that work until his employer went into liquidation in 2013, when he returned to Forster. Upon his return he fell in with the wrong crowd and before long he had relapsed into abusing illicit substances. 5. Recently, the offender had found employment as an excavator driver during his rehabilitation period at Adele House. 6. The author noted that the offender was in a relationship with Ms Alice Bolt, that she had three children from a previous relationship and that he had a positive relationship with those children. 7. The author noted the offender's criminal antecedents. He had no further offences since his arrest on 6 September 2017 and expressed deep remorse and regret in relation to the offences before the court. 8. The report then recorded symptoms of depression and anxiety suffered by the offender over his life, together with symptoms of a diagnosis of substance use disorder that he was suffering at the time of the offences, due to his addiction to illicit substances. Psychometric testing supported that he met the diagnostic criteria for major depressive disorder with anxious distress, together with a substance use disorder. 9. The author was of the opinion that there was a psychological nexus between the offender's condition and the offences before the court which stemmed from the offender's impaired decision-making ability. The author also opined that the offender was at a low risk of reoffending, given the significant rehabilitation treatment he had received over the last year. Further, he was now in full-time employment and was working towards proactive life goals. 10. Mr Awit then recommended the following treatment plan: * The offender to continue to receive fortnightly psychological sessions for at least a period of six months. * The offender to continue to receive cognitive behaviour therapy aimed at anxiety reducing and emotional regulation. * The offender to continue to receive drug counselling. * The offender to continue to attend Narcotics Anonymous meetings. * The offender to continue to receive skills to help cope with stress. * The offender to continue to receive problem-solving skills. 1. Mr Awit agreed to conduct the treatment plan, and further to report any non-compliance in relation to the treatment plan. 2. Exhibit 2 contained a bundle of documents from a friend, his employer, Adele House and another rehabilitation provider, together with payslips evidencing the progress the offender had made with his rehabilitation over the last 12 months. 3. Exhibit 3 comprised a bundle of TAFE transcripts of academic record for courses successfully completed in vocational and community engagement by the offender in 2018. 4. The offender also gave evidence. He accepts responsibility for supplying the three different drugs, the subject of the principal offences. He gave evidence that he had accumulated drug debts and that he was supplying the drugs only to support his on-going drug addiction. In other words, he was paid with drugs and made no profit himself from supplying the drugs for others. 5. The offender gave evidence that he was not living in the premises subject of the execution of the search warrant, but did attend there from time to time for the purpose of obtaining drugs for supply to others. At the time of the offences he was consuming methylamphetamine daily and had been awake for a number of days. He had however been trying to change his life and had been attempting to enter a rehabilitation program for some months prior to his arrest on 6 September 2017. 6. The offender acknowledged that he had previous convictions for supply of prohibited drugs, and this was the third occasion for which he was to be sentenced for the same type of offences. He had been in gaol for the same thing, and upon his release he got back in with the "wrong crowd". 7. Following the offender's release on Supreme Court bail on 18 January 2018 to attend Adele House, he had successfully completed the three stage program over a period of nine months. In the first six months he was not allowed to leave the program except when he found work. The offender gave evidence of the restrictions that were placed upon him during each of the three stages of the rehabilitation program. He described it as harder than gaol to comply with the program and any breach would have led to instant discharge from it. Notwithstanding that he had completed the program, he still attended on Wednesdays and Saturdays for meetings. He now had rented premises in Sydney and was working full-time with Boral. He intended to continue with his rehabilitation and gave evidence that he had consumed no illicit drugs at all since his arrest on 6 September 2017. He described himself as "half way on the mend" and had the support of his partner of two years, who is now pregnant, expecting their child in July 2019. 8. The offender also had the support of his mother who lived on a farming property at Nabiac. His goal was "just to get back to normal life and build a future for my family". If sentenced to a custodial sentence he would lose his job and his place of residence. 9. The offender gave evidence that whilst he was aware during his life that he suffered depression and anxiety, he had never received treatment for those conditions and was not on medication for them. He was now prepared and willing to undertake any treatment recommended for him, and would comply with any conditions placed on him by the court. 10. In cross-examination the offender gave evidence of the restrictions placed on him during the period of rehabilitation at Adele House. He conceded that, whilst he believed he was forced by bikie associates to supply the drugs the subject to the principal charges, no actual threat was ever made to him. 11. The offender's partner, Alice Bolt, also gave evidence. She had been in a relationship with the offender for two years, but was not aware he was supplying drugs at the time of his arrest. If she had known, she gave evidence that she probably would not have been with him. She was however aware that he had a drug problem ie that he was a user and she was trying to get him into rehabilitation at the time. They had been trying for three months and were waiting for call backs or acceptance from rehabilitation providers at the time he was arrested. 12. Ms Bolt gave evidence that she was committed to the relationship and had seen him every weekend during his rehabilitation. She was planning to move her family to Sydney to reside with the offender, once his position became clear following sentence. 13. Mrs Roslyn Thompson, the mother of the offender, also gave evidence. She agreed that the family background reported by Mr Awit was true and accurate. It was true that her relationship with the offender's stepfather had exposed him to domestic violence and drugs and had had an impact on the offender. She was first aware that the offender was using drugs when he was around 15 to 16 years of age. She had however always been there for him, and would provide a residence for him if he needed one. 14. Mrs Thompson had seen the offender regularly during his rehabilitation program. She had noticed considerable improvement in him. He was now very hopeful and positive for the future. She said that he had "progressed enormously", was working full-time and enjoying doing well. 15. Mrs Thompson gave evidence that she was aware of the attempts that the offender was making before his arrest to enter rehabilitation. In fact, she became aware that he had been accepted into two programs however he was by then ineligible because of his arrest. 16. Mrs Thompson gave evidence that she had a good relationship with the offender's partner who was very supportive of him and a positive influence in his life. The Offender's Submissions 1. Counsel for the offender submitted that the offender had entered pleas of guilty at the earliest opportunity and was therefore entitled to a 25% discount on sentence. This was not opposed by the Crown. 2. It was submitted on behalf of the offender that the three supply prohibited drugs offences amounted to serious offending. Further, the offender had prior convictions for the same offence. However, it was clear from Exhibit 1 he had psychological issues at the time of the offending and a drug dependence, neither of which had been addressed at all during his life. 3. Since his release on Supreme Court bail in January 2018, the offender had made significant progress with his rehabilitation. He was now also in full-time employment. Whilst ordinarily a full-time custodial sentence would be appropriate, it was submitted that the circumstances here warranted consideration of the offender being sentenced by way of an Intensive Correction Order. The court should take into account the fact that he had a deprived background in which he was exposed to domestic violence and drug-taking from an early age in accordance with Bugmy v R (2013) 249 CLR 571. Further there were psychological factors including his substance use disorder, which gave rise to the offending. His progress in rehabilitation had been extremely impressive and it was submitted that it would be regressive to impose a full-time custodial sentence on him now. Counsel referred to the Court of Criminal Appeal judgment in Parente v R [2017] NSWCCA 284 to submit that an aggregate sentence of three years could be imposed, to be served by way of an Intensive Correction Order. Counsel also referred to the Court of Criminal Appeal's decision in R v Pullen [2018] NSWCCA 264 where the court held that community safety was a paramount consideration in determining whether an ICO should be imposed. Notwithstanding his prior offending, given the substantial progress he had made with his rehabilitation, together with the fact that he was abstinent from illicit drugs, was still pursuing his rehabilitation and in full-time employment, the court would not, in this case, impose a custodial sentence. 4. The court would also take into account the fact that the offender had served time in custody from 6 September 2017 to 18 January 2018, notwithstanding that time was served in respect of other offences, and also give a discount in respect of his quasi-custody by reason of the rehabilitation program he had completed at Adele House. The Crown Submissions 1. The Crown relied on a detailed written outline of submissions which set out sentencing principles applying to drug supply charges following the Court of Criminal Appeal's decision in Parente. 2. In assessing the object seriousness of the offending, the Crown submitted that the following factors should be taken into account:- 1. The quantity of the drugs subject of the charges. Sequence 1 involved 103.27g of methylamphetamine. The indictable quantity for this drug is 5g and the commercial quantity 250g. 2. Sequence 7 involved 81.85g of MDMA. The indictable quantity for that drug is 1.25g and the commercial quantity is 125g. 3. Sequence 14 involved 9.59g of MDA. The indictable quantity for this prohibited drug is 1.25g and the commercial quantity is 125g. 1. The Crown submitted that as the charges involved a deemed supply, evidence of the offender's role in the heirachy and whether he was motivated by financial reward was limited. The Crown relied on the numerous indicia of supply discovered by police upon execution of the search warrant and the fact that the offender had sourced three different types of drugs for supply. The offender also had in his possession or control a number of weapons. 2. In assessing objective seriousness, the court would have regard to the significant quantities of methylampetamine (sequence 1) and MDMA (sequence 7). Further, the facts pointed to a degree of planning and some level of sophistication warranting a finding that both sequences 1 and 7 fell within the mid range of objective seriousness for offences pursuant to s.25(1) of the DMTA. Further the sentence for a s.7 must be accumulated to reflect the five matters contained on the Form 1. 3. The Crown also referred to the offender's lengthy criminal history and in particular the fact that he had twice received custodial sentences for supplying prohibited drugs. On 23 June 2006 he was sentenced to imprisonment for two years, suspended pursuant to s.12. It was a condition of that bond that the offender undertake rehabilitation or counselling as directed. On 24 November 2015 he was sentenced to one year and nine months imprisonment, with a non-parole period of nine months. His release to parole was subject to supervision. Further the offender was dealt with at the same time for a number of related matters, including possession of a prohibited weapon and resisting an officer in the execution of his duty. The Crown submitted that the offender's criminal history disentitled him to leniency. Further, as he had been twice previously convicted on identical offences, considerations of personal deterrence and retribution should be given more weight in the sentencing exercise. 4. The Crown submitted that it was an aggravating factor that the offender was subject to a bail undertaking at the time of the offending. The offender had spent no time in custody solely referrable to the present offences, and in May 2018 his time in rehabilitation at Adele House had been taken into account on sentence in respect of a previous matter. This would impact on any discount given to him in respect of quasi custody arising from his rehabilitation. 5. The Crown submitted that no sentence other than a full-time custodial sentence was appropriate for the offences. The Crown accepted that a finding of special circumstances could be made, varying the statutory ratio between head sentence and non-parole period. The Crown submitted that there should be a degree of partial accumulation between each of the three supply counts, reflecting the separate criminality of each. A further small period of accumulation should be allowed for the related offences, however the degree of accumulation was subject to principles of totality in sentence. Determination 1. Section 3A of the CSPA sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community." 1. The objective seriousness of the offending is to be assessed by reference to all of the circumstances outline above. Each of the three principal offences are deemed supply offences reliant upon the amount of prohibited drug subject of each charge. In respect of both methylampetamine (sequence 1) and MDMA (sequence 7), the amounts were significant, particularly by comparison to the indictable quantity for each prohibited drug. The quantity of MDA (sequence 14) was substantially less significant. I accept the Crown's submission that the fact that the offending concerned three different kinds of prohibited drugs cannot be regarded as one episode of criminality (relying on Ninness v R [2014] NSWCCA 288). The role of the offender must also be taken into account and he was clearly a street level supplier, supplying to feed his own addiction to illicit drugs. I therefore find that in respect of sequence 1, the objective seriousness of the offending fell just below the mid range for an offence pursuant to s.25(1) of the DMTA, as did the offending pursuant to sequence 7. The objective seriousness of the offending for sequence 14 was within the lower range for an offence pursuant to s.25(1) of the DMTA but towards the middle of that range. It is clear that all three offences constituted serious offending. 2. It was an aggravating factor that at the time of the offending the offender was subject to a bail undertaking for possess prohibited drug. 3. It is common ground that the offender is entitled to a 25% discount on sentence in respect of his early pleas of guilty. I accept the offender's evidence that he acknowledges responsibility for his criminal conduct, and is remorseful for it. I was impressed with the offender's evidence, and find that he has made impressive progress with his rehabilitation since being released to Supreme Court bail on 18 January 2018. He has demonstrated that he has been abstinent from illicit drug taking since his arrest on 6 September 2017, and has largely turned his life around by applying himself to his rehabilitation. It is no small thing to overcome an addiction to prohibited drugs, particularly highly addictive drugs such as methylamphetamine. 4. I was also impressed with the evidence by both the offender's partner and his mother. They are both supportive of him, and their evidence leant weight to an assessment that he has good prospects of rehabilitation. 5. I take into account the maximum penalty proscribed in respect of each offence pursuant to s.25(1) of the DMTA of 15 years imprisonment and/or a fine of 2000 penalty units as a guidepost in the sentencing process. I also take into account that there must be some accumulation on sentence in respect of sequence 7 in respect of the five matters the subject of the Form 1, which the offender has asked to be taken into account. 6. I also take into account the offender's background, and the extent to which he was subject to deprivation in terms of his exposure to both domestic violence and drug abuse. These are significant matters to take into account, have been recognised as matters which may mark a person throughout life and compromise a person's capacity to mature and learn from experience – see Bugmy v R, supra, R v Fernando (1992) 76 ACrimR 58 and Kennedy v R [2010] NSWCCA 260. A further matter to take into account is the fact of the offender's mental health issues, namely his undiagnosed and untreated depression and anxiety symptoms. I find that there is no causal connection between those conditions and his offending. Rather, his offending was borne of his illicit substance abuse and addiction. They are still relevant to sentencing in that they diminish the importance, to a certain extent, of general deterrence in sentencing this offender. 7. General deterrence is important in sentencing drug supply offenders. A clear message must be sent to the community that Parliament has proscribed lengthy prison sentences for such offences and the court will impose long custodial sentences in appropriate cases. Specific deterrence is also important here, given the offender's criminal antecedents. 8. Whilst the offender's criminal history has to be taken into account in determining the sentence to be imposed, it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the subject offences. In Veen v R (No 2) (1998) 164 CLR 465, the High Court said at p 477: "The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. The antecedent criminal history is relevant, however, to show that the incident offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience to the law. In that case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take into account the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind." 1. This is an appropriate matter for an aggregate sentence to be imposed pursuant to s.53A of the CSPA. However, before imposing such sentence, I am required to set out the indicative sentences I would have imposed in respect of each offence, having regard to the objective seriousness of the offending, the subjective matters I have referred to above and the utilitarian discount on sentences that I have applied. 2. The indicative sentences are as follows:- 1. For the offence of supply prohibited drug (103.27g methylamphetamine) 18 months imprisonment. 2. For the offence of supply prohibited drug (81.85g MDMA) 2 years imprisonment. 3. For the offence of supply prohibited drug (9.59g MDA) 6 months imprisonment. 1. It is clear that in aggregating the sentence, the principle of totality applies, and there must be some accumulation of sentences. Any aggregate sentence must be "just and appropriate" to the totality of the offending behaviour. In R v Van Ryn [2016] NSWCCA 1, the Court of Criminal Appeal had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with proper regard to the totality of the criminality involved: "[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows: The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently, a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation, a sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences." 1. The Court went on to emphasise the need to maintain public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 at [27]: "There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both." 1. In JM v R [2014] NSWCCA 297 the Court of Criminal Appeal set out the relevant principles to be applied in arriving at an aggregate sentence – see also Berryman v R [2017] NSWCCA 297. It is important that the aggregate sentence arrived at reflects the totality of the criminality involved. 2. In arriving at the aggregate sentence here, I have taken into account the objective seriousness of the offending, the subjective matters set out above, the offender's acknowledgement of guilt in respect of the offences on the Form 1 and a discount of 3 months in respect of the quasi-custody occasioned by the offender's attendance from May 2018 at the residential program at Adele House whilst on Supreme Court bail. Clearly, the threshold contained in s.5 of the CSPA has been crossed and I am satisfied there is no alternative to imposing a sentence of imprisonment in this matter. In applying the principles of totality and proportionality to the offending conduct here, given the serious nature of the criminality involved, I intend to sentence the offender to a term of imprisonment of 3 years. In doing so, I acknowledge that he has already spent some time in custody referrable to other matters. 3. Following the introduction of a new scheme for sentencing introduced by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017, pursuant to s.68(2) of the CSPA the only relevant limitation on the on the imposition of an ICO is that the aggregate sentence must not exceed 3 years imprisonment, In determining whether an ICO should be imposed, community safety is the paramount consideration. The scheme was considered by the Court of Criminal Appeal in R v Pullen [2018] NSWCCA 264, Harrison J (with whom Johnson and Schmidt JJ agreed) stated that s.66(2) makes plain that community safety is not achieved simply by incarcerating someone. His Honour went on to say: "It recognises that in many cases, incarceration may have the opposite effect. It requires the court to consider whether an ICO or a full-time custodial sentence is more likely to address the offender's risk of reoffending. The concept of community safety as used in the Act is therefore inextricably linked with considerations of rehabilitation. It is of course best achieved by positive behavioural change and the amendments recognise and give effect to the fact that, in most cases, this is more likely to occur with supervision and access to treatment programs in the community." 1. His Honour went on to consider the purposes of sentencing as set out above in s.3A of the Act and held that "the prioritisation of the consideration of community safety as the "paramount consideration" necessarily means, however, that other considerations, including those enunciated in s.3A of the Act, becomes subordinate." (See [86]) 2. I am mindful that the offender has previously been convicted and sentenced in respect of similar drug supply offences, which entitle him to no leniency at all from the Court, The first however was in 2006, following which he did not offend for some seven years. I am satisfied given the impressive progress made by this offender with his rehabilitation, and the support available to him from his family and rehabilitation provider, that his sentence should be served by way of an ICO. Notwithstanding there is no Sentencing Assessment Report available, there is ample material provided on the sentence hearing for me to come to that conclusion without the need for such a report. 3. I therefore intend to sentence the offender by way of an ICO for a period of 3 years to date from today. That ICO will be subject to conditions which are set out below. Orders 1. I hereby make the following orders: 1. You are convicted of the following offences Sequence 1 supply prohibited drug (103.27g methylamphetamine) pursuant to s.25(1) of the DMTA. Sequence 7 supply prohibited drug (81.85g MDMA) pursuant to s.25(1) of the DMTA Sequence 14 supply prohibited drug (9.59g MDA) pursuant to s.25(1) of the DMTA 1. I have certified that I have taken into account, in respect of sequence 7 the five offences on the Form 1. 2. I sentence you to an aggregate term of imprisonment of 3 years for the offences. 3. Pursuant to s.7(1) of the CSPA 1999, the sentence imposed on you is to be served by way of an Intensive Correction Order. The sentence will commence today, ie 14 February 2019. 4. You must report to Community Corrections Office at Sydney as soon as practicable but not later than 7 days from today. 5. The standard conditions of the order will apply:- 1. You must not commit any offence; and 2. You must submit to supervision by a Community Corrections Officer. 1. The following additional conditions will apply: 1. A rehabilitation or treatment condition requiring the offender to undergo the treatment plan outlined in the report of Mr Awit dated 24 January 2019 (Exhibit 1). 2. That you abstain from use of prohibited drugs. 1. If you fail to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions, or it may include revocation of this order. 2. If the order is revoked, you may be required to serve all or some of the period of your sentence in full-time custody. 3. The three related charges subject to the s.166 Certificate are to be dealt with pursuant to s.10A CSPA, by way of conviction without imposition of any other penalty. 4. I note that I have made a further order by consent pursuant to s.18(1) of the Confiscation of Proceeds of Crime Act 1989 that $7524.50 is to be forfeited to the State. ********** 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: 20 February 2019