Self-Represented Individual Sentenced to Intensive Correction Order for Drug Offenses and Firearm Possession

The court sentenced a self-represented individual to a term of imprisonment to be served via an Intensive Correction Order due to drug offenses and firearm possession, considering the individual's age, health, and lack of prior criminal record.

District Court New South Wales

Medium Neutral Citation: R v [NAME] [2023] NSWDC 214 Hearing dates: 15 June 2023 Date of orders: 23 June 2023 Decision date: 23 June 2023 Jurisdiction: Criminal Before: Newlinds DCJ Decision: Term of imprisonment of 7 months to be served by way of an Intensive Correction Order Legislation Cited: Crimes (Sentencing Procedure) Act 1999; s 3A, s 5(1), s 17(1), s 21A(1), s 66 Drug Misuse & Trafficking Act (1985); s 10(1), s (251), s 25(2) Firearms Act 1996; s 4(1), s7(15), s 65(3) Category: Sentence Parties: [NAME] (Crown) [NAME] ([NAME]) Representation: Counsel: [redacted] Self-represented ([NAME])

Solicitors: [redacted] File Number(s): 2021/27230 Publication restriction: None

Judgment

Introduction 1. HIS HONOUR: The facts of this case are a stark and salutary reminder to us all of how a good man who had been for 70 years a constructive and law-abiding member of the community, when confronted with a catastrophic change in circumstances can make poor decisions leading to a total fall from grace into the criminal justice system.

The offences 1. [NAME] ([NAME]) appears for sentence after pleading guilty in the [ADDRESS] to the following offences:

1. Sequence 1: Supply of prohibitive drug – commercial quantity – s 25(2) Drug Misuse and Trafficking Act (1985).

1. Sequence 9: Possess unauthorised pistol – s 7(15) Firearms Act 1996.

1. Sequence 3: Possessing a prohibitive drug – s 10(1) Drug Misuse and Trafficking Act (1985). 1. [NAME] also asked the Court to take into account on a Form 1 the following:

1. Sequence 2 - supply prohibited drug indictable and commercial quantity - s 25(1) Drug Misuse and Trafficking Act (1985), and 2. Sequence 8 – possess ammunition without holding licence / permit / authority – s 65(3) Firearms Act 1996.

1. The sequence 1 offence carries a maximum term of imprisonment of 20 years with a standard non-parole period of 10 years. The sequence 9 offence carries a maximum term of imprisonment of 14 years with a standard non-parole period of 4 years. The sequence 3 offence carries a maximum term of imprisonment of 2 years and a fine of $2,000. The sequence 2 matter carries a maximum term of imprisonment of 15 years with no non-parole period and the sequence 8 offence carries a fine of 15 penalty units.

The Hearing 1. At the hearing before me on 15 June 2023, [NAME] represented himself. He gave unchallenged evidence (and effectively made submissions on oath from the witness box). A body of written material was tendered by the [NAME]. Where necessary I will refer to that material.

Facts 1. There is a statement of agreed facts which forms part of Exhibit A (page 15) which can be summarised as follows:

2. On 17 September 2022 two persons (the Co-Offenders) were arrested in a car with a coca cola bottle containing 1995 g of gamma butyrolactone ("GBL").

3. On the same day a text exchange took place between one of the Co-[NAME], in which [NAME] arranged to purchase one litre of GBL for $3,500.00.

4. The supply of the GBL to [NAME] never took place as he was arrested prior to the transaction, being completed.

5. On 23 September 2021 at 2.48 pm police executed a search warrant at [NAME]'s residence at Darling Point. During the execution of the search warrant police located a further 25 g of GBL in two small glass bottles on the kitchen bench, and another "Living Water" plastic water bottle containing 224.1 grams of GBL in the fridge (sequence 2 on Form 1).

6. On the shelf of the bedroom wardrobe, police located a wooden box containing a black pistol along with ammunition. Preliminary analysis of the firearm confirmed it to be a 8mm HS (German) Model 5 self-loading blank fire pistol and is a pistol as defined by s 4(1) of the Firearms Act. There was also a detachable box magazine that was deemed to be suitable for use in the pistol (sequence 9).

7. The ammunition seized was also analysed. There were four 8mm calibre blank fire cartridges and 57.22 Long Rifle calibre cartridges. Both types of cartridges meet the definition of ammunition in s 4(1) of the Firearms Act. The 8mm cartridges were deemed to be suitable for use in the pistol (sequence 8 on Form 1).

8. At 4.10pm [NAME] returned to his premises. He was placed under arrest and searched. A Tupperware container was inside a plastic bag the accused was carrying. Inside the container were two clear resealable plastic bags containing white crystals. The contents of the bag were later analysed and found to be a total of 3.06g of methylamphetamine (sequence 3 – s 166 Certificate). 9. [NAME] was then asked about the bottles and vials containing various liquid located his unit. He was asked about the two glass bottles and what the liquid was inside them. He said "that'll be G". When asked about the Living Water bottle, he said "that'll be water".

Objective seriousness (s 21A(1) Crimes Sentencing and Procedure Act)

1. As to objective seriousness, [NAME] made no submissions but the Crown submitted as follows.

2. The offending subject to sequence 1 was well below the mid-range of objective seriousness because of the small quantity of GBL, the fact that [NAME] arranged to purchase the prohibited drugs, indicating that there was some degree of organisation although there is no basis to conclude that [NAME] was any part of any ongoing larger organisation and [NAME] paid the co-[NAME] $3,500 for the prohibited drugs, however, he never received the drugs as he was arrested prior to completing the transaction.

3. As to the sequence 9 offence, again the Crown submitted it was below the mid-range of objective seriousness for the following reasons. The firearm was a blank fire pistol, the pistol was located on a shelf in the bedroom and there was no evidence that it was accessible to any other persons or created any danger to the public.

4. As to the sequence 3 offence, the Crown submitted it fell towards the bottom of the range but not at the lowest level given the quantity involved.

5. I generally accept the Crown's submissions although I do think that the objective seriousness is a little below that contended for by the Crown. In my judgment the objective seriousness of the crimes is substantially below what might be described as the mid-range approaching what might be said to be the bottom of the range. There is nothing to suggest [NAME] purchased the drugs for financial gain, nor is there any suggestion that the series of drug offences were anything other than part of a short term pattern of behaviour caused by [NAME]'s physical and mental situation. I conclude the firearms offences are well below the mid-range of objective seriousness.

Aggravating factors on sentence (s 21A(2) Crimes Sentencing and Procedure Act) 1. There was no suggestion that there are any aggravating factors in relation to the matters.

Subjective matters / Mitigating factors (s 21A(3) Crimes Sentencing and Procedure Act) 1. [NAME] presents with an unusually strong subjective case.

2. He is 73 years old (he was 71 years old at the time of the offending). His physical and mental health can be best described as frail. More accurately his physical health is very poor. He pleaded guilty at the first opportunity which is consistent with his expressions of remorse and contrition and for which he is entitled to a 25% discount.

3. Until some time in 2020, he led a blame free life. He has no criminal record. He had for many years a wife and family including children and grandchildren. He was either employed full-time or ran what appears to have been a reasonably successful business during the whole of his working life. For all intents and purposes he was a constructive law abiding member of the community for the first 70 years of his life.

4. His life took a significant turn for the worse in August 2020 when he was diagnosed with prostate cancer. He received some treatment in September 2020 which left him in what he described, and I have no reason to doubt, excruciating pain with debilitating symptoms which I do not find it necessary to describe in detail. Suffice to say he has suffered terribly as a result of his cancer and its ongoing treatment, which, to say the least, has not been successful and has left him with significant ongoing disability. He will require constant medical care, including regular surgeries for the rest of his life.

5. He has had a series of further operations to treat what appears to be side effects of his original radiation therapy. By late 2021, he found himself feeling acutely depressed, unable to sleep because of pain and a persistent need to go to the toilet. He was taking prescribed opioid based pain killers, could not go out and socialise, due no doubt in part to the COVID-19 lockdowns but also because of his physical and mental state His business which had previously been successful, collapsed, so too had his marriage.

6. He became addicted to opioids and unwisely became interested in crystal meth and GBH for the purpose of easing his pain (both physical and mental) and because, and this reflects very badly on the medical system, he found it easier to obtain than prescribed medication. He therefore met some people involved in the distribution of illicit drugs.

7. In May 2021, he had a further operation for a fistula caused by the radiotherapy and after that operation until September 2021, when he was arrested and charged with the matters the subject of these reasons, his illicit drug use built up as his mental and physical health deteriorated.

8. Since his arrest, he has been on strict bail conditions and has continued to seek treatment and undergo a series of operations in relation to his prostate issues. His current medical situation is dire in that he is required to make use of both a catheter and colostomy bag which are causing frequent problems and require at this time and, it seems, into the future ongoing regular minor operations. He continues to suffer from chronic pain.

9. His marriage has collapsed, he has no job and little money. He lives with a friend but that situation is unstable and from time to time he has found himself homeless for short periods of time. He is now on the aged pension but this seems to have taken an inordinate period of time to be approved, during which time he survived only because of the support of his friend.

Sentence assessment report 1. There is a sentence assessment report dated 28 September 2002 (Exhibit A, p 20) in the material before me which has been updated as at 16 May 2023 (Exhibit B). Because of his physical condition, he has not been deemed suitable for community services work.

2. The report is largely consistent with the history which I have recounted. He has been assessed at a T1/median – low risk of reoffending according to the level of service inventory and has been deemed suitable for Community Corrections to monitor him for any indications of increased risk if the Court makes a supervision order. A supervision plan has been proposed.

Treatment 1. [NAME] has been receiving ongoing treatment for his mental health issues and his addiction to drugs from [NAME], psychologist, who in a report dated 23 March 2023 (Exhibit 1) opines that [NAME] is suffering significant depression and anxiety, and PTSD as a result of his experience with his cancer and its ongoing treatment. 2. [NAME] concludes: "In my opinion his drug use arose as a means of dealing with both his physical pain and the trauma that has occurred in his life due to his ongoing health issues. Unfortunately for him his choices have exacerbated his trauma. He has been evicted from his long term apartment and moved in with [NAME] where his ongoing issues place pressure on the relationship. … [NAME] has been attending appointments regularly and seems to be benefiting from having a consistence support and a forum for examining his feelings and thoughts. He recognises that drug use – either illegal or prescribed – is not the best approach to his issues, and has begun addressing a number of his other issues eg the possibility that he will not make a full recovery from his medical problems, that he will require a catheter likely for the rest of his life, that his life is now more limited by these problems and that he must look for more support from those close to him. My opinion is that [NAME] will require fortnightly sessions reducing frequency as appropriate, with myself for at least 12 months to achieve significant improvement in his functioning. The focus of counselling will be about support, pain management and developing cognitive strategies to assess and work calmly through the various issues he has with his health and the impact on his life. [NAME] understands and is in agreement with my treatment recommendations." 1. [NAME]'s opinion is confirmed by a report of [NAME], clinical and forensic psychologist, dated 21 November 2022 (Exhibit 2). In her comprehensive report, Dr [NAME] confirms the history to which I have referred, and largely agrees with [NAME]'s assessment and comments with approval on [NAME]'s proposed treatment plan.

2. Dr [NAME] concludes as follows: "In general [NAME] has functioned well as an adult. He has been consistently employed and self-sufficient, he has been involved in long-term partnerships and raised a family and his mental health has generally been stable and resilient. [NAME] has some vulnerabilities however associated with limited emotional coping resources and some difficulties interpersonally but there has not been any significant impairment until recent years although I note that [NAME] does have a history of some drug use and abuse and a patterned and regular consumption of alcohol. [NAME] has experienced a catastrophic loss of coping in recent years following the cancer diagnosis, subsequent alleged medical mismanagement and the onset of chronic debilitating and impairment health concerns. He struggled to come to terms with this and in particular the notable impact that his poor health will have on his life, including a loss of sexual function a likely permanent catheter and colostomy bag. Associated with this [NAME] suffered with the onset of depressed mood and became suicidal and this rendered him vulnerable to negative peer influenced that encouraged his use of heavy illicit drugs and self-medication, which set the scene for [NAME]'s offending behaviour."

1. Dr [NAME] under the heading "[NAME]'s attitude to the offences and his prospect of rehabilitation" says: "[NAME]'s position in relation to his offending is rather minimising. However he is a man in his 70's who has offended for the first time, who has reportedly managed to abstain from drug use since his arrest, who has led a genuinely positive and prosocial routine in the community through adulthood and has reportedly benefitted from psychological treatment in recent times."

1. Dr [NAME] concludes that in her opinion [NAME]'s prognosis is a positive one. Dr [NAME] recommends and approves the treatment plan proposed by [NAME] as an appropriate way forward for [NAME].

Parity 1. The two other Offenders involved in the drug aspects of the matters have both been sentenced. [NAME] was sentenced by [NAME] on 3 November 2022 ([2022 NSWDC 569]) and [NAME] was sentenced again by [NAME] on 17 March 2023 (2021/0026639).

2. As to the objective seriousness of the drug aspects of the matters, in my opinion his Co-Offenders' involvement in the criminal action was significantly more serious than that of [NAME]. Moreover, [NAME] presents with a much more compelling subjective case than either of his Co-Offenders. 3. [NAME] was subjected to a term of imprisonment of 18 months to be served pursuant to an Intensive Corrections Order and [NAME] was subjected to a term of imprisonment of 1 year and 7 months again to be served by an Intensive Corrections Order.

Consideration 1. I am required to take into account the matters identified in section 3A of the Crimes Sentencing and Procedure Act 2. Those matters include general deterrence, specific deterrence, protection of the community and prospects of rehabilitation, adequate punishment to make [NAME] accountable for his actions, to denounce the conduct and to recognise the harm done by the crime to the community.

3. As to general deterrence, this is a weighty matter. Notwithstanding the extreme circumstances that [NAME] found himself in, he still committed crimes which the community through parliament considers extremely serious. The community as a whole needs to understand that anyone who involves themselves in such crimes will be subject to significant penalties.

4. As to subjective deterrence I do not think that there is any need for [NAME] to be deterred from further criminal conduct in relation to the drug offences. He has already been subject to quite considerable restraints on his personal liberty by the strict bail conditions he is under. Not only has he expressed on his oath significant contrition and remorse for the drug related offences, he has taken positive steps to try and improve his position both physically and mentally. I have no reason to doubt it when he says that he is presently drug-free and intends to remain so.

5. As to the firearms offences, again, these are serious matters, however [NAME] has told me, and I accept, that the firearm was not in any way related to his drug use, that he had in the past been a collector of firearms and he did not either appreciate or think about the need to obtain a relevant licence. Moreover, it cannot be overlooked that the firearm itself was not a direct threat to anyone.

6. As to protection of the community and rehabilitation, as I have said, [NAME] has proposed a treatment plan for his ongoing rehabilitation in terms of his drug use. He is under constant medical care in relation to his physical conditions which include the treatment of his pain. Neither of which could be promoted within a level of satisfaction if he was to be incarcerated. 7. [NAME]'s conduct is obviously linked to his own addiction which in turn is a direct result of his prostate cancer. I think this significantly reduces his moral culpability.

8. I take into account and give significant weight to the serious nature of the crimes (even if assessed toward the bottom of the range of seriousness) but balance against that [NAME]'s otherwise blame free and constructed life for the first 70 years of it, what I consider the extraordinary suffering he has undergone as a result of his prostate cancer and its subsequent treatment, his expressions of contrition and remorse, his plea of guilty, his reduced moral culpability, what I consider his low risk of reoffending together with his good prospects of rehabilitation, together with the fact, which I consider exceptional that his need for regular ongoing medical treatment and surgery, not to mention the requirement for use of a colostomy bag and catheter would cause him significant and cruel hardship if he was to be the subject of a lengthy term of imprisonment. Finally, I take into account [NAME]'s otherwise good character. The character references included a reference from [NAME]'s former wife, who concludes: "I have known [NAME] for more than 60 years as his wife and more lately a confidante and he is not a criminal … I trust that the Court will deal with him compassionately and with care".

1. I am required under s 5(1) of the Crimes (Sentencing Procedure) Act 1999 to not sentence [NAME] to imprisonment unless I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

2. The Crown has submitted that the threshold for s 5 has been crossed and I should be so satisfied.

3. I found this aspect of the matter very difficult. I considered whether it might be open to me to impose a Community Correction Order in light of [NAME]'s otherwise excellent character, his lack of any criminal record, his age, health and mental conditions and what I consider his reduced moral culpability. All of that, together with the circumstances concerning his health and mental condition which I consider extenuating circumstances which very much reduce the moral culpability of the offence. Quite frankly, I am concerned that [NAME] might not survive any time in gaol.

4. However, the offences cannot be described as "anything other than serious". Whilst the matters to be taken into account under s 5 are not prescriptive in the sense that it would be open to me to make such an order notwithstanding my view of the offences, with some considerable hesitation I accept the Crown's submission that the only appropriate penalty is a term of imprisonment.

5. I have concluded that while the s 5 threshold has been crossed and that a term of imprisonment is appropriate, that term of imprisonment should be lenient taking into account all the matters that I have referred to and the fact that [NAME] is entitled to a 25% discount from what would otherwise be his sentence because of his plea of guilty.

6. I have given particular weight to [NAME]'s otherwise unblemished character and the mental and physical health issues which he is grappling with. I am sorry to say that I suspect that it seems probable to me that he will continue to have to grapple with those health issues for the rest of his life.

7. I have also taken into account the considerable restriction on his liberty during the period of 20 months where [NAME] has been on bail but subject to very strict reporting and curfew obligations.

8. I have considered the totality of the criminality involved in the offences the subject of this sentence but also the Form 1 matters I have identified. The indicative sentences for each offence are to my mind:

1. For the sequence 1 offence 7 months' imprisonment;

2. For the sequence 9 offence a Conditional Release Order with conviction on the standard conditions prescribed by s 98 of the Crimes (Sentencing Procedure) Act 1999.

1. I consider in all the circumstances the appropriate aggregate sentence to be 7 months' imprisonment.

Should the term of imprisonment be served in the community? 1. The Crown's position as to an Intensive Corrections Order (ICO) was that it did not wish to be heard in opposition to such an order. I regard that as relevant but not determinative.

2. I have considered s 66 of the Crimes (Sentencing Procedure) Act 1999 and am satisfied that it is appropriate in all the circumstances to order that the sentence be served by way of an ICO. My reasons include those I have already referred to but also that I am satisfied that [NAME] presents little or no risk to community safety and that his offending was as a result of his extraordinarily difficult circumstances resulting from his prostate cancer and its subsequent treatment. I think in all the circumstances his moral culpability is significantly reduced and accordingly general deterrence, denunciation and retribution ought be afforded limited weight.

3. Most importantly, an order that the sentence be served by an ICO would promote the rehabilitation of [NAME] and make him accountable for his actions. If he is rehabilitated there is little prospect of him reoffending. The paramount matter I must consider is protection of the community. I am satisfied that the community will be well protected if [NAME] does not serve his term of imprisonment. An ICO is a sentence of imprisonment that will significantly impact on [NAME]'s freedom and will reflect the objective seriousness of the offending conduc and the harm drug use in general does to the community generally.

4. The conditions I propose to apply to the ICO are firstly the standard conditions, ie, [NAME] must not commit any offence and [NAME] must submit to supervision by a Community Corrections officer, together with the following additional conditions: 1. [NAME] must abstain from taking all restricted or prohibited drugs, except for those prescribed by a medical practitioner; 2. [NAME] must submit to and undertake the treatment plan proposed by [NAME] in his report of 23 March 2023 or as varied from time to time by [NAME].

1. If [NAME] fails to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or the State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions or revocation of this order. If the order is revoked [NAME] may be required to serve all or some of the period of his sentence in full time custody (s 17(1)).

2. In conclusion, I have decided to make the following orders: 1. [NAME], you are convicted of the offences for which you have pleaded guilty and I have taken into account the matters the subject of the Form 1.

2. Taking into account the discount for the plea of guilty (25%) and the matters in the Form 1, I impose a term of imprisonment for 7 months.

3. I order that that sentence be served by way of an Intensive Corrections Order commencing today upon the following conditions:

1. That [NAME] not commit any offence;

2. That [NAME] submit to supervision by a Community Corrections Officer as outlined in the report dated 28 September 2022 by [NAME], Community Corrections Officer, City Community Corrections Office;

3. That [NAME] contact the City Community Corrections Office within 7 days of today by telephone to receive instructions about his obligations;

4. That [NAME] refrain from taking any restricted or prohibited drugs other than those prescribed by a medical practitioner, and 5. That [NAME] undertakes and cooperates with the treatment plan proposed by [NAME] in his report of 23 March 2023 and/or as otherwise advised by [NAME] from time to time.

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