R v Morrish [2018] NSWDC 535

District Court New South Wales

Medium Neutral Citation: R v Morrish [2018] NSWDC 535 Hearing dates: 14 November 2018 Date of orders: 14 November 2018 Decision date: 14 November 2018 Jurisdiction: Criminal Before: Judge W Hunt Decision: Convicted and taking into account matter on a Form 1 the offender is sentenced to imprisonment for a period of 15 months with a non-parole period of 10 months.. Matter on s166 certificate is withdrawn and dismissed. Catchwords: CRIMINAL LAW – Sentence – Form 1 – Knowingly take part in supply of prohibited drug – Resist an officer in the execution of duty – Indicia of drug supply – Offender on conditional liberty at time of offending Legislation Cited: Drug Misuse and Trafficking Act, Crimes (Sentencing Procedure) Act Cases Cited: Bugmy v R [2013] HCA 37. Jinnette v R [2012] NSWCCA 217 Category: Sentence Parties: The Crown Tyler James Morrish Representation: Solicitors: Director of Public Prosecutions – The Crown File Number(s): 2017/380688

Judgment 1. HIS HONOUR: Tyler James Morrish is before the Court for sentence in relation to one principal offence of knowingly take part in the supply of a prohibited drug in breach of s 25 subs (1) of the Drug Misuse and Trafficking Act, 1999. The matter has a maximum penalty provided of 15 years and there is no standard non-parole period. I have regard to the maximum penalty in the way contemplated by the authorities and will use it as a guidepost and a bench mark both in terms of the seriousness with which this offence is viewed by the legislature and for comparison with this matter objectively against the worst possible case. I am invited by the parties and will take into account one offence on a Form 1 which is a resist officer in the execution of duty, when sentencing for the principal offence. 2. The facts are agreed as part of the Crown bundle. The facts go first to the resist arrest. In short, the offender on 15 December 2017 attended Miranda police station to report in relation to his then existing bail condition. Police had become aware that there was an outstanding warrant for breach of bond that had been issued the day before by Sutherland Local Court. Police spoke to Mr Morrish about the fresh warrant in circumstances in which he had been arrested on a different warrant and granted bail the day before. Perhaps explicably, he became agitated because, at that stage, he perceived that the police were wanting to arrest him for a warrant that had already been dealt with. That was not the actual situation. 3. In any event, the offender started to use his mobile phone, a police officer told him to get off the mobile phone and stepped towards him, he put his left arm towards the chest of that officer who took hold of the offender's arm. The offender then fell to the ground, various police officers tried to arrest him and he resisted while he was on the ground. I agree with the characterisation of Mr Hopley that the objective seriousness of that particular offence is towards the lowest end of the range given the circumstances and the short duration of the resistance. Indeed when the police officer said to him, "what did you do that for?", he said "I don't know I was stupid" and in answer to a question "what were you doing?" he said "I don't know, I just don't know how there is another warrant", which perhaps explains the emotional background to that offence. It is inevitable that that offence will place just a small upward pressure on the penalty for the principal offence. 4. In any event the offender was then strip searched. He had arrived at the police station in a taxi and police went out to tell the taxi driver that he would not be returning. The taxi driver provided to the police some bags that had been in the offender's possession when he got into the taxi and remained in the taxi. Apparently CCTV footage showed the offender entering the taxi with those materials and there were no other passengers in the taxi. A video search of the bag located three zip lock bags containing a total of 14.79 grams of methyl amphetamine. There was also the offender's wallet which had a variety of legitimate types of identification in the offender's name, $200 in cash and a set of ATM withdrawal receipts. The bag also contained three mobile phones. Initially the offender stated that the bag was not his and then said that he had the bag but it was just given to him. The offender relied on his right to silence when he was interviewed. 5. In terms of the objective seriousness of the matter the facts concede that the offender was a drug user and at least some of the methyl amphetamine was for his personal use. Although there were 100 small re-sealable bags found and three mobile phones, there is no other indicia of actual supply that reveal a sophisticated or commercial operation. I would characterise the offender as the user/street level dealer. The matter is aggravated because he was on several types of conditional liberty being on bail and s 9 bonds at the commission of the offence. Although the weight was three times the indictable quantity, at less than 15 grams, in a range between 5 grams and 250 grams, as to weight this matter falls towards the lower end of the range. Although it was not the prevailing legislation at the time of the offence the legislature has since made amendments that would capture this matter as being a Table 1 offence and so highly likely to be dealt with in the Local Court. That demonstrates some change as to the perceived seriousness of matters of this type and I do take into account that it is likely under the new regime that the offender would have been dealt with in the Local Court. I have some regard to the jurisdictional limit that would have then been appropriate. Mr Hopley concedes that the s 5 threshold has been crossed. 6. I would characterise the objective seriousness for the reasons that I have described as at the top end of the low range but does not indicate drug trafficking to a substantial degree. The offender has a record that denies him leniency. Some of his matters relate to driving matters that there is an increasing trend from 2017 on, a number of counts of possess prohibited drug and other drug related driving matters. 7. In terms of mitigating factors I accept that a deemed supply is marginally less serious than actual supply when it is established that drugs have physically moved into the community. As to applicable mitigating factors I accept that there is no evidence of substantial harm in fact being caused nor that the offence could not be described as planned or organised criminal activity and there was a plea of guilty and some remorse. I do not find that the offender is unlikely to re-offend or that he has good prospects of rehabilitation, he has guarded prospects of rehabilitation, depending on the approach that he ultimately wants to take to more intensive drug and alcohol assistance. 8. He has the benefit of some detailed and insightful references, one from his mother who supports him and described some of the difficulties of his early upbringing, one from his former employer who is prepared to again offer employment to him and two from other friends who speak to his strengths of character in various regards. Additionally Delphine Bostock, forensic psychologist has provided a detailed assessment in circumstances in which she has assessed him forensically in the past. 9. The offender's family circumstances started off badly in circumstances where his father effectively took custody of him and he was only returned to his maternal grandparents when he was seven months of age. There is a fair bit of literature that indicates that damage to early attachment can have lasting implications for those affected. On top of that, his mother had a short period as a drug user and was subject to a lengthy period of domestic violence with her next partner that the offender witnessed and he was affected by it. His upbringing while not as dysfunctional as some that the Court sees can capture some of the life circumstances that the High Court addressed in Bugmy v R [2013] HCA 37. 10. The offender has some psychological issues including severe depression and severe anxiety. It is ironic, in a way, that somebody with severe anxiety chooses to use methylamphetamine which is an anxiety creating drug. It might be that in due course Mr Morrish works out that taking that particular drug is only going to make him feel worse rather than better. 11. I am persuaded in this case to find special circumstances. Although Mr Morrish has done some short sentences in custody, this will represent the lengthiest sentence that he has been subjected to. It is also clear to my mind that he needs some kind of serious intervention in relation to his drug use, if he is going to have the life that he deserves to have and I recommend that the State Parole Authority give some consideration when the time is right to him being released to some kind of residential drug rehabilitation. That would certainly improve his prospects for rehabilitation if he is able to stay the course. I am invited to find special circumstances and do so partly as a result of totality and partly as a result for an extended need of time when released into the community. 12. His custodial situation is slightly complex. He was bail refused for five months and 12 days and has been again in custody for three days, his breach of bail having been established and bail being revoked on 12 November 2018. Across those five months and 15 days of custody, which arguably relates to this matter, there is ten days for which he is entitled to a direct credit, that is because he served a range of short sentences imposed on him for breach of various bonds at a time that he was bail refused in relation to this matter. I accept he was far more likely to receive custodial outcomes but those matters given that he was at that time bail refused for this offence. Additionally his parole has been revoked and it seems likely that it has been revoked because of difficulties that Mr Morrish had in the community in adapting to a lawful life. It would seem that it was not breached purely as a result of this matter but I take into account that he would, but for what is to happen today, be entitled for the Parole Authority to consider readmitting him to parole. Given his record is growing, he has spent a significant portion of the last few months in custody. While I do not take the view that he is yet institutionalised that becoming a risk is apparent. 13. The way that Johnston J dealt with this in Jinnette v R [2012] NSWCCA 217 was that although the Court found it was available for the sentencing judge at first instance to take into account the risk of institutionalisation as a special circumstance, Johnson J preferred to see it, when dealing with that matter, as being protective of the community. That is, if somebody can be persuaded to find ways to stay lawfully in the community, that can be a protective factor for the community and I employ that thinking in terms of the structure of the sentence for Mr Morrish today. 14. The back-dated sentence is calculated to give him credit for about three months of the time that he served on parole. 15. Just stand up would you, Mr Morrish. It is common ground between the parties that the offender is entitled to a 25% utilitarian discount because of his early plea of guilty. I have taken into account the Form 1. I have taken into account all the purposes of sentencing pursuant to s 3A of the Crimes (Sentencing Procedure) Act, 1999. In relation to the principal offence you are convicted, you are sentenced to a period of imprisonment of 15 months to date from 14 August 2019 which means that that total sentence expires on 13 November 2019. There is a non-parole period of ten months which means that the earliest date of release to parole is 13 June 2019. I find special circumstances on the basis of the need for rehabilitation on the basis of totality and to avoid the risk of institutionalisation. Just take a seat, Mr Morrish. 16. In relation to matter on the 166 certificate, the possess prohibited drug charge as a back-up to the supply charge is withdrawn and dismissed.