R v Hill [2017] NSWDC 464

District Court New South Wales

Medium Neutral Citation: R v Hill [2017] NSWDC 464 Hearing dates: 3 November 2016, 25 January 2017 Date of orders: 25 January 2017 Decision date: 25 January 2017 Jurisdiction: Criminal Before: Tupman DCJ Decision: Imprisonment 18 months suspended per s 12 Crimes (Sentencing Procedure) Act 1999. Catchwords: CRIMINAL LAW – Sentence – Supply prohibited drugs – 9.3 grams methylamphetamine worth $4,000 – Not isolated offence – Mid-range objective seriousness – Early plea of Guilty – 25% discount – Drug addiction – Limited prior criminal record – Excellent prospects of rehabilitation. Legislation Cited: Drug Misuse and Trafficking Act, 1985, ss 25(1). Crimes (Sentencing Procedure) Act 1999, ss 5, 11, 12, 10A. Confiscation of Proceeds of Crime Act, 1989, ss 18(1). Cases Cited: R v Thomson and Houlton (2000) 49 NSWLR 383. Category: Sentence Parties: Nathan Thomas Hill

The Crown Representation: Counsel: F/W Mr Nematalla Cr: Ms T Collison File Number(s): 2016/00043088

judgment 1. HER HONOUR: The offender is before the Court for sentence following his plea of guilty in the Local Court to one charge contrary to s 25(1) of the Drug Misuse and Trafficking Act, 1985. On 12 May 2016 he was committed for sentence to this Court having pleaded guilty to a charge that on 10 February 2016 at Cromer he supplied a prohibited drug, namely methylamphetamine. This offence carries a maximum penalty of 15 years imprisonment. 2. The relevant facts are that police were making observations at an address in Penrith Street Wheeler Heights just after 8am on Wednesday 10 February 2016. That was in relation to some break and enter offences. Police were also aware of the involvement of occupants of that residence in drug supply. They saw a car parked outside just after 8.30 and a woman get out of the car and go into the premises. The car then left and drove a little further to Cromer and was stopped by police. The offender was the driver of that vehicle. He appeared to be nervous to police and they asked him a number of questions. He told police he had used drugs the night before. They decided to search him and the car because they suspected that he was in possession of prohibited drugs. 3. When they searched the offender's wallet they found two plastic resealable bags containing what was methylamphetamine and also $865. He told police that that was money connected with his work. They placed him under arrest and then searched the rest of the motor vehicle. They located a set of digital scales, a plastic bag which contained 50 empty plastic resealable bags, two mobile phones and the offender also had another mobile phone in his right pocket. 4. When they searched the offender, they found a plastic resealable bag secreted in his underwear which contained methylamphetamine. He told police that this was an eight ball. He made no further comment. He was arrested and taken into custody. He did not engage in a record of interview. When examining the mobile phone located in his actual possession, police located text messages relating to drug supply. There were also a large number of text messages on one of the other mobile phones relating to drug supply. The total amount of methylamphetamine located in the possession of the offender was 9.3 grams with an estimated value of $4,000. 5. The offender was released on bail after arrest and has been on bail ever since. From material to which I will refer soon, I accept that at the time the offender was a significant user of this drug, namely the drug known as ice. Again for reasons that emerged from other evidence tendered, I accept that he was on this occasion in possession of these drugs for the purpose of supplying them. He has admitted to a psychologist that he was supplying this drug to friends and acquaintances at their request in order to fund his then significant addiction to the drug ice. 6. In the circumstances it is clear that this was an ongoing offence on his part and not an isolated act. Whether or not this amounts to significant trafficking in illegal drugs it seems to me is an arguable proposition. It is clear that this was not isolated and it is also clear that he was found in possession of some of the indicia of drug supply, including resealable bags, scales and having a number of text messages on phones. He was also in possession of $4,000 worth of drugs. 7. Whether or not this in fact amounts to significant involvement in the trafficking of drugs it seems to me is not clear. I am not, on that evidence, inclined to make a positive finding to the effect. He was, however, involved in supplying drugs and this was more than a one off incident. 8. Objectively this is around the middle or a little below the middle of the range for offences capable of being charged under this section. The quantity, 9.3 grams, is relatively low, albeit three times more than the indictable quantity. The presence of plastic bags, scales and text messages elevates the objective seriousness, however he was supplying as a person himself addicted in order to fund that addiction. Further, on the evidence he was consciously only supplying to those people who he knew were already users of this drug and not seeking new markets for that drug. Overall, that combination of factors, in my view, places it just below the mid-range in terms of objective seriousness for offences capable of being charged under this section. 9. However it seems to me that it is a case in which the threshold referred to in s 5 of the Crimes (Sentencing Procedure) Act, 1999, is crossed, albeit perhaps only just and that the Court would be looking at a term of imprisonment as the appropriate penalty. 10. The offender initially came to Court in October 2016, presenting to the Court a case of rehabilitation that was still very much a work in progress. For that reason the matter was adjourned to today with bail conditions pursuant to s 11. Already by October 2016 the offender had taken many steps towards his own rehabilitation. 11. He is now 35. He lives with his parents and grandmother. He has strong family support from his parents and grandmother and siblings. He has qualifications from TAFE and is in full time employment as an IT technician. There are very positive references from clients of his company. I accept that he started using drugs when he was about 22, including ecstasy and amphetamines, but graduated to ice and I accept was smoking that drug daily at the time he committed this offence. I accept that he used about a gram a day, spending between $500 and $600 a week. He was addicted to it at that stage. His income did not support that level of expenditure and thus I accept he engaged in the supply to fund that addiction. 12. Following his arrest he sought treatment. He was admitted to a day program on 2 August 2016, discharged shortly afterwards, but went back on 15 September 2016 and completed that program on 21 October 2016. As a person who had been using and addicted to drug for over ten years at that stage, it took some time for him to engage, but he did. 13. Following the adjournment in October 2016, and in accordance with the conditions imposed, he continued his weekly appointments with the psychologist and continued to undertake the SMART program in the community. That involved his seeking out an alternative program during the December/January period when the original program was on vacation. He was in a relationship with a woman at the time he committed this offence and it would appear to be the case that that relationship was not only volatile but also was with a person who herself used drugs, which made it difficult for him engage in proper rehabilitation. That has now come to an end. I accept that he has remained free of drugs since, at the latest, September 2016. I accept from the Community Corrections officer, that he is regarded as being committed to his drug recovery. He continues to be in fulltime employment. His employer speaks highly of him. He has taken all the steps necessary towards his own rehabilitation. He comes to Court as a person with almost no prior criminal record. The only entry is an unconnected offence in October 2000 involving an attempt larceny motor vehicle dealt with by way of a s 9 bond. I infer from those circumstances that it was of relatively minor nature. 14. I accept that he is genuinely remorseful for having committed this offence, and whilst it has been a hard lesson, I accept that his being arrested for this serious charge, has been a very significant wake up call for him and he has then decided to take his life in hand in a positive way and appears to have emerged at the other end as a person who is no longer addicted to drugs and his prospects of rehabilitation are excellent. 15. He also entered the plea of guilty early in the Local Court and thus is entitled to the maximum discount referred to by the Court of Criminal Appeal in R v Thomson and Houlton (2000) 49 NSWLR 383. I will be discounting his sentence by 25% to take into account the utilitarian value of that plea. 16. All drug supply cases are serious. The community is only too aware of the impact of drugs on us all and this particular drug, ice, would appear to be one that has a significantly adverse effects on those who use it and therefore on the remainder of the community. That is amongst the reasons why a term of imprisonment is called for here. It seems to me that, absent the plea of guilty, a term of 2 years would be called for. That gives rise then to an 18 month overall term. 17. For all of the subjective circumstances to which I have referred, and also taking into account where this sits on the spectrum of cases capable of being charged under this section, I have determined that it is appropriate that this sentence be suspended pursuant to s 12. No additional conditions are required. The offender has taken steps of his own volition to deal with his rehabilitation and it appears likely that he will do so in the future. Supervision is not required from Probation and Parole. 18. In effect, this offender now becomes his own gaoler. If he complies with the conditions of the bond, particularly to remain of good behaviour over 18 months from today, he will serve this term of imprisonment in the community. If he does not comply with the conditions of the bond, it will be called up. It will probably be revoked if it is anything other than a trivial breach, and then this Court has no option but to impose a sentence of 18 months and to consider what the non-parole period ought be. So to that extent, whether he serves this term of imprisonment in gaol or in the community, is a matter for him. 19. For those reasons then I make the following formal orders. He is convicted. He is sentenced to a term of imprisonment of 18 months, suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act, 1999, on his entering a good behaviour bond to come up for sentence at any time if called on for any breach committed during the term of the bond. No additional conditions imposed. 20. Re s 166 certificate: Goods in custody, convicted, no further order pursuant to s 10A of the Crimes (Sentencing Procedure) Act, 1999. So s 166 certificate sequence 2, possess prohibited drug, backup, withdrawn and dismissed. Pursuant to s 18(1) of the Confiscation of Proceeds of Crime Act, 1989, by consent per order 1 in short minutes of Order - $865 in cash is forfeited. Well, your client is to be congratulated for complying as he has done with not only the letter of but the spirit of the orders that were made on the last occasion. 21. He has to go and sign that s 12 bond now. You no doubt will reinforce what I have said, but I know people don't always listen when they're in Court. If he breaches it, it gets revoked. It comes to me or if I'm not here somebody else. I don't always call people up. Other Judges do. It depends if I'm here or not and if it's a serious breach of course he has to be called up. If he breaches it, it will be revoked, the 18 months stands, the non-parole period will have to be set and that's really it. He needs to understand that. But he seems to be going the right way to make sure that his file is not going to cross my desk over the next 18 months, and I certainly hope it does not.