R v Barnett [2019] NSWDC 296

District Court New South Wales

Medium Neutral Citation: R v Barnett [2019] NSWDC 296 Hearing dates: 3 May 2019 Decision date: 03 May 2019 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Aggregate sentence of three years with a non parole period of two years. Catchwords: SENTENCE – factor – supply methylamphetamine – guilty plea – long history of drug related offending – deprived background – failed attempts at rehabilitation – guarded prospects – special circumstances. Legislation Cited: Drug Misuse and Trafficking Act 1986 Category: Sentence Parties: Reece William Barnett (the offender) Director of Public Prosecutions Representation: Counsel: Ms M Humphreys (for the offender)

Solicitors: Maguire McInerney Lawyers (for the offender) Ms E Costigan (for the Director of Public Prosecutions) File Number(s): 2017/00278894; 2018/00212437; 2018/00279473

SENTENCE – EX TEMPORE REVISED 1. This is not the first time that Reece William Barnett has been before the Court for drug supply matters. I am sure that every time he has come before a Court he has promised himself, as he has promised his family, it will be the last. He has been able to demonstrate that he can lead a law‑abiding life in the community but, it would seem that his default position, when things go wrong in his life, is to resort to the use of illicit drugs. Once he starts using illicit drugs he uses more of them and then loses touch with the good things life in the community has to offer. He has been given opportunities by the Court in the past. 2. He has a number of children. He has not been able to be an active father to them for long periods, apart from a few years in Tenterfield. He has had relationships, but those relationships have not lasted. He has some support from his family, and he has had, I mean no disrespect, the opportunity to see both that life can be tough, but also that there can be a better future. 3. He had, as a child, few of the advantages that many in the community expect. His dad was in gaol. His mother had problems. He was raised by his grandparents. He never really engaged in school and despite the efforts of his grandparents did not adopt a pro‑social attitude to life. As a young person, he was often homeless and a drug user. He took up the use and abuse of illicit drugs when he was still too young to make rational choices. He has been able to form relationships. 4. Most of his life has passed, it would appear, in a blur of selling and using drugs such as methylamphetamine. He has twice attended rehabilitation centres and gained some insights, but that was not enough to stop him, after a period of stability in his life and the break-up of the relationship with his partner in 2016, from resorting to the use and abuse of illicit drugs. 5. There are consequences from living a disorganised, criminal, drug using lifestyle. To put it simply the evidence before me indicates he suffered a number of serious injuries. He jumped from a third storey balcony, crushing the heel bones of his feet. He spent time in a wheel chair and had to wear special boots to help him walk. While in a wheelchair and vulnerable he was stabbed. He has been "accidentally" shot. 6. It is also clear, from the facts before me, that he was prepared to sell and distribute illicit drugs even while suffering from those injuries and the fact that he had been seriously hurt did not stop him engaging in that lifestyle. The only thing that has stopped him has been going to gaol, sobering up, and at obtaining work. The report of Ms North, psychologist, now before me, indicates that he has a high risk of reoffending because of his history, his antisocial associations and because in times of stress he resorts to drug use. 7. Ms North notes some protective factors, as Barnett is prepared to accept responsibility for his crimes and appears motivated to engage in treatment. A prior period of stability is the one bright light that I can draw on. She suggests, and urges, that he engage with programs such as EQUIPS - Addiction and SMART - Recovery. He will need help to deal with his pain management because, frankly, there is a danger that he will again manage his pain by illicit substances. If that starts again, he will be back in custody and the only hospital treatment he will get will be at Long Bay. 8. I am as sympathetic as a judge is possible to be to his predicament. So too was Judge Phelan many years ago, as is clear from the His Honour's sentencing remarks provided to me. It is also clear, however, as he and his counsel acknowledge, that he committed more series of serious crimes and must again be punished. These crimes may have been disorganised but they were involved drug supply in our community, and he, more than any other, should know the impact of drug supply on members of the community. 9. The fact that he was himself a drug user is no excuse; it does not mitigate. It means that there is an absence of aggravating features, and helps me understand how he came to the predicament he is in, and what possible remedies can be made to ensure it does not happen in the future. 10. The agreed facts indicate that a car he was in was seen and stopped by police on 28 August 2017. Police suspicions were alerted, justifiably so. When spoken to by police Barnett had not just a small quantity of cannabis in the moon boots he was using because of his earlier injury, but had recently dropped from his pocket, a container with six plastic bundles in it. They were eventually found to be 6.16 grams of methylamphetamine: The first supply count s 25(1) Drug Misuse and Trafficking Act 1986. 11. He sought to defend that matter. He eventually saw sense and entered a plea of guilty. The plea came late, but early enough for the court to replace his matter with another trial. I will allow a reduction of approximately 12.5% for that matter to reflect the utilitarian value of the plea of guilty. 12. The other matter, possession of 16.5 grams of methylamphetamine occurred when he dropped a tin containing the drug while he was at the Coniston Hotel on 4 July 2018: s 10(1) Drug Misuse and Trafficking Act. This action was picked up by the pub's CCTV cameras. The tin was handed in and his female companion tried to get it back. 13. That same day, he was driving while disqualified. He was chased by police and was a subject of a police pursuit. He was subsequently arrested for that matter and the drug supply and the drug possession matter on 10 July 2018. He has been in custody ever since. 14. On 9 July police attended the Mantra Hotel in Wollongong about a report of suspicious behaviour by a man called Wayne Grant, and others. It is clear from the facts that Mr Grant was running his apartment at the Mantra Hotel as a "drug house." Grant was associated with the same woman who was with the offender at the Coniston Hotel on 4 July 2018. It is not entirely clear from the material before me the nature of the relationship between this offender, Grant, and the other woman, but what is clear, is that in the apartment was a bag containing 10.6 grams of methylamphetamine, which had been clearly handled by this offender, because his fingerprints were all over the bags. 15. There is also a fingerprint found on a drug ledger. It indicates that he was involved with Grant and the woman, in the supply of methylamphetamine. The agreed facts indicate that he was assisting in the conduct of that drug house, or room: Count 3 -s 25(1) Drug Misuse and Trafficking Act. 16. Barnett does not need a lecture from me about the problems caused by use and abuse of illicit drugs. The Courts have to have proper regard to the maximum penalties, and the policy of our parliament that such matters, particularly sale of drugs, be treated harshly, and as a deterrent for this offender and others. 17. It is clear that harsh punishment has not deterred him in the past. His need for drugs has trumped any sensible thinking about his future. But the Courts have a duty to the legislature, to apply the law, and to seek by the severity of the sentence to cause others, and perhaps in the future Barnett, to stop and think and say "no" before they engage in the sale and abuse of illicit drugs. 18. His background, his history, requires the Courts extend him a degree of leniency because his capacity for moral judgment has been impaired by that background and his history. But, such factors can only go so far. 19. The pleas of guilty will be taken into account. That fact that there are three matters for sentence must involve some additional punishment. I do not know the facts of the police pursuit matter, but I do not believe it is expedient to commence this sentence at the expiry of it or the other matter. I have to consider the totality of his offending and how long he should spend in custody. 20. There will be a period where he will need to be supervised on parole. I have assessed that period as a minimum of 12 months. I do so because it is clear that when he has taken up the assistance offered to him, the community has benefit by him not offending. As Ms North concludes in her report, he would benefit from treatment and supervision in the community. It may be that at some stage introduction to the community via a rehabilitation centre might benefit him and the community. I leave that to him to discuss with parole officers prior to his release. 21. I have considered the matters raised in the Crown's submission and by Ms Humphreys who appears on his behalf. It is important the community understand that anyone who involves themselves in the sale and distribution of illicit drugs to any serious extent will go to gaol. 22. I take into account his prior antecedents, which do not entitle him to leniency. He has been given the benefit of bonds, which he has turned his back on. He gave promises to be of good behaviour; he was not. His prospects are guarded. He has proved he can live in a community, but he has proved he can offend against the community. I cannot predict what he will do the future. His future life for him to decide. I will give him the opportunity of a relatively lenient sentence to enable him to prove himself to himself and to his family and to the community. 23. I take into account the matter on the Form 1, but it does not add to anything in terms of a sentence. What I focus upon is the crimes committed and for sentence. I take into account your pleas of guilty. I find there is special circumstances to enable you to be treated in the community. These sentences will commence from 10 December 2018. That is five months after you went into custody