R v McBride [2019] NSWDC 371

District Court New South Wales

Medium Neutral Citation: R v McBride [2019] NSWDC 371 Hearing dates: 6 June 2019, 21 June 2019 Date of orders: 21 June 2019 Decision date: 21 June 2019 Jurisdiction: Criminal Before: Hock DCJ Decision: Non-parole period of 2 years 3 months. Total term of 4 years 6 months – see [33] Catchwords: SENTENCING — Drug offences — Supply prohibited drug — Commercial quantity Legislation Cited: Drug Misuse and Trafficking Act 1985 Category: Sentence Parties: The Queen Gregory Alan McBride Representation: Counsel: Ms Sheridan Goodwin (Crown) Mr Jason Curtis (McBride)

Solicitors: Mr Arnold Raymundo (Crown) Ms Yvonne Phillipos (McBride) File Number(s): 2015/00072885 Publication restriction: None

Judgment 1. In about July of 2014 police officers, part of Strike Force Mewburn, were investigating the sale of prohibited drugs in the Tamworth area. One of the people identified was the offender, Mr Gregory McBride. 2. Between 21 November 2014 and 6 March 2015 various telephones were legally intercepted and surveillance was also carried out. As a result of the investigations a number of people were arrested including this offender and also, relevantly, Mr Mark Hicks. 3. Mr Hicks pleaded guilty and gave evidence in the trial about this offender's involvement in supplying him with quantities of methylamphetamine which he in turn on-supplied. A civilian participant also gave evidence about obtaining methylamphetamine from Mr Hicks. Telephone intercepts and surveillance was tendered before the jury. 4. After a trial lasting 19 days, including four days of jury deliberation, the offender was found guilty of supplying a commercial quantity of methylamphetamine between 1 November 2014 and 10 March 2015. The commercial quantity was reached by adding together the weights of a total of 20 transactions plus methylamphetamine located during the search warrant at the offender's home, which gave a largest possible total of 340.63 grams (a schedule is attached to these reasons). The threshold for the commercial quantity of methylamphetamine is 250 grams. 5. Mr McBride gave evidence in the trial and put forward an innocent explanation for the evidence on which the Crown relied, the telephone intercept material in particular. By its verdict the jury must have rejected his account as a reasonable possibility. That is unsurprising as, in my view, the Crown case was compelling. 6. That completes my summary of the facts. 7. This offence is under s 25(2) of the Drug Misuse and Trafficking Act for which the maximum penalty is imprisonment for 20 years. There is a standard non-parole period of ten years. 8. Relevant factors to the assessment of the objective gravity of the offence are the quantity of drug supplied, the period of time the offender was involved and of course his role. 9. The jury verdict reveals only that they were satisfied beyond reasonable doubt that the quantity of methylamphetamine supplied was greater than 250 grams. However, I am satisfied beyond reasonable doubt that the quantity supplied was 340 grams as alleged by the Crown. Both parties submitted that this finding was open as there was nothing to distinguish any particular supply. This quantity is only 90 grams more than the threshold and well below the large commercial quantity threshold of one kilogram (as it was at that time). 10. The offender was involved for just under a three month period and there were 20 actual supplies and one supply based on 7.91 grams found in his garage. The largest individual supplies were 54.98 grams on 28 January 2015 and 54.60 grams on 11 February 2015, both to Mr Hicks. In turn Mr Hicks supplied in total 246.47 grams to Mark Bradbury, a civilian participant working with the police. Therefore fortunately a significant quantity of the methylamphetamine did not ultimately find its way into the community. 11. As to the offender's role, he was not at the lowest level given the quantities he was dealing. The evidence established that Mr Hicks and the offender split profits made. The offender's motive appears to have been to make money but there is no evidence of substantial wealth. The offender was an air brusher and spray painter and the evidence in the trial established that he was certainly underemployed. 12. I find the offence is significantly below the mid-range of objective seriousness for an offence under this section of the Drug Misuse and Trafficking Act. That said, clearly no penalty other than full time custody is appropriate. 13. I come now to consider matters personal to the offender who gave evidence on sentence. In addition a psychological report and three references were tendered. 14. Drawing on that material the offender is now 36 years of age. He was 32 at the date of the offence. He had no prior convictions at the time of his arrest which entitles him to leniency. 15. He has been in a long term relationship with his partner and they have two children together and his partner has another child, who is the offender's stepson. All three children lived with the offender and his partner at the time of the offence. 16. The offender's parents are supportive of him and attended the trial. Sadly his father has been diagnosed with cancer and was unable to attend the sentence proceedings. 17. The offender was educated to Year 10 level and generally has been in employment, although at the time of his offending it would seem that work in his chosen field, air brushing or spray painting, was not particularly prevalent. He is working in custody and is a trusted inmate. 18. He has a long history of substance abuse, namely drugs and alcohol. Although he no longer drinks to excess as he did in his early twenties, the offender was using cannabis at the time of the offending. He told the psychologist he stopped when he was arrested in 2015. The two convictions that he has now relate to that arrest and confirm his use of cannabis. 19. The psychologist identified that Mr McBride meets the criteria for cannabis use disorder in sustained remission. A treatment plan has been prepared and the offender is willing to undertake it on his release from custody. Although he maintains his innocence Mr McBride would appear to have good prospects for rehabilitation given the support he has from his family and in the community and the relatively lengthy period he has been drug free. 20. There is an issue of parity in respect of co-offenders. Mark Hicks is the offender whose relevant factors most closely align with this offender. He was sentenced for two offences of supplying more than the commercial quantity of methylamphetamine. The first is not relevant. The second charge between the period November 2014 and March 2015 captures the supplies he was engaged in with Mr McBride and others. He was sentenced on the basis that the total weight was 439.06 grams. 21. The indicative sentence for that offence was three years and four months after a discount of 45% for the plea and assistance. There were some Form 1 matters taken into account, dealing with the proceeds of crime and recruiting another to assist in criminal activity. They would have added little to the sentence indicated in my view as they are part and parcel of the principal offence. 22. At the time he was sentenced Mr Hicks only had one matter on his criminal history, a mid-range PCA in 1999 for which he was fined and disqualified for six months which in my view is of little or no relevance to the very serious matter for which he was sentenced in July 2016. The starting point for his sentence on the second charge, the one that mirrors Mr McBride's, must have been six years imprisonment, which provides some guidance for the present offender. However, Mr McBride is to be sentenced on the basis of a total weight of 340.63 grams, significantly less than Mr Hicks. 23. There are three other factors which are also important when coming to the appropriate sentence to be imposed today. 24. First, there has been an extraordinary delay in the matter being finalised. The trial was listed twice in Tamworth District Court but did not proceed either in 2017 or 2018 for reasons not attributable to the offender. 25. Secondly, for a period of more than three years the offender was subject to stringent bail conditions which required him to live at his parents' home. His partner and the three children remained in the home at Westdale where he lived previously. He also had to report to police daily for more than three years which was then varied to twice a week and he was only to leave the house in the company of one of his parents. 26. The sentence will of course be back-dated to reflect the 18 days he spent in custody following his arrest. 27. Thirdly, the Crown concedes that there was significant co-operation from the defence representatives which reduced the length of the trial. Only four witnesses were required to be called in the Crown case from a potential list of 30. 28. I have taken all those factors into account when considering the appropriate sentence and having regard to Mr Hicks' notional starting point. 29. I find special circumstances, namely that this is the offender's first and inevitably lengthy period in custody and he will benefit from a longer period of supervision on parole to assist him on his release. 30. I have had regard to both the maximum penalty and the standard non-parole period for this offence. My reasons for not imposing the standard non-parole period are my finding in respect of the objective gravity of the offence and the offender's subjective circumstances. 31. The non-parole period to be fixed represents the minimum period that the offender should spend in custody having regard to all the elements of punishment, including the objective seriousness of the offence, specific and general deterrence, denunciation and his subjective circumstances. 32. The offender is convicted of the Count on the indictment. 33. I set a non-parole period of 2 years and 3 months and a total term of 4 years and 6 months imprisonment, both to date from 7 March 2019 the day the offender went into custody following the jury verdict, but back-dating by 18 days. 34. The non-parole period will expire on 6 June 2021, the day the offender will be eligible for release on parole. 35. The total term will expire on 6 September 2023.