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Supreme Court 11 June 2004

R v Roberts

[2004] NSWSC 514

DrugsTheft & property
CRIMINAL LAW SENTENCE NO QUESTION OF PRINCIPLE.

Citation: R v Roberts [2004] NSWSC 514
Court: Supreme Court of New South Wales
Date: 11 June 2004
Judge(s): Howie J

Background

The offender, Barry Kenneth Roberts, was a member of the Nomads Outlaw Motorcycle Club in Newcastle and an employee of a man named Walsh, who operated both a legitimate excavation business and a significant amphetamine distribution network. Roberts stood trial alongside a co-offender on a charge of supplying a large commercial quantity of methylamphetamine between 1997 and 2001. He also faced two separate charges of stealing motor vehicles connected to Walsh's earthmoving business.

The Crown's case on the major drug charge relied on two indemnified witnesses, including Walsh's wife, who alleged that Roberts and his co-offender had supplied approximately 96 pounds of amphetamine over several years. The jury acquitted Roberts of the large commercial quantity charge but convicted him of the statutory alternative of supply under the Drug Misuse and Trafficking Act 1985. Roberts had also pleaded guilty to both motor vehicle theft charges on a second indictment.

The matter came before Howie J for sentencing on all three offences.

  • What weight should be given to the jury's acquittal on the large commercial quantity charge when determining the facts for sentencing on the lesser supply offence?
  • What was the appropriate sentence for the supply offence, having regard to the offender's role, background, and the extent of his involvement as disclosed by the evidence?
  • How should cumulation and totality principles apply across three separate but related offences?
  • Whether special circumstances existed to justify departing from the standard ratio between the non-parole period and the total term of imprisonment?

Decision

Howie J rejected the proposition that the jury's not-guilty verdict on the large commercial quantity charge meant the offender's own account of limited involvement was accepted. His Honour found that the verdict reflected only that the jury was not satisfied beyond reasonable doubt of the prosecution witnesses' evidence, and did not amount to an endorsement of the offender's version. The offender's explanations for recorded telephone conversations were described as implausible and in some instances "bordering on the absurd."

On sentencing, his Honour acknowledged that the offences arose from the offender's association with Walsh, both as an employee and a club member. However, Roberts was not simply a courier or minor participant, and the supply offence was treated as a serious instance of drug trafficking. The motor vehicle offences were treated as distinct criminal acts that could not be made wholly concurrent with the drug sentence.

His Honour applied the totality principle by imposing fixed terms for the vehicle theft offences and moderating their length to reflect the cumulative effect of the overall sentence. A modest adjustment was also made to recognise that a co-offender had received periodic detention. No special circumstances were found to justify departing from the statutory ratio in respect of the individual sentences, though special circumstances were noted in relation to the supply offence specifically to preserve the correct ratio across the aggregate sentence.

Orders Made

  • First count (second indictment, vehicle theft): fixed term of 14 months' imprisonment commencing 10 May 2004, expiring 9 July 2005.
  • Second count (second indictment, vehicle theft): fixed term of 14 months' imprisonment commencing 10 September 2004, expiring 9 November 2005.
  • Supply offence: 2 years' imprisonment commencing 10 November 2005, with a non-parole period of 13 months expiring 9 December 2006.
  • Total effective sentence: 3 years and 6 months from 10 May 2004, with a total non-parole period of 2 years and 7 months, with release to parole on 9 December 2006.

Key Takeaways

  • A jury's acquittal on a more serious charge does not require a sentencing court to accept the offender's version of events as true; it reflects only that the prosecution failed to prove the higher charge beyond reasonable doubt.
  • Where multiple offences arise from a common factual context, cumulation rather than concurrency may still be required when the acts of criminality are sufficiently distinct.
  • Applying the totality principle, the Supreme Court reduced the individual sentences for the motor vehicle offences below what they would otherwise have attracted, to avoid an unjust aggregate outcome.
  • Fixed terms of imprisonment may be appropriate for individual offences within a cumulative structure, particularly where the overall sentence includes a parole component on the most serious count.
  • Parity with a co-offender's sentence (periodic detention in this instance) is a relevant but not determinative factor in calibrating the length of a custodial sentence.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes Act 1900 (NSW), s 154AA(1)

Cases:
- R v Clark (NSWCCA, unreported, 15 March 1990)
- R v Cacciola (1998) 194 A Crim R 178
- Johnson v The Queen (2004) 78 ALJR 616