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District Court 15 March 2007

R v Wilkins

[2007] NSWDC 65

Drugs
CRIMINAL LAW SENTENCE SUPPLY METHAMPHETAMINE ON GOING SUPPLY METHAMPHETAMINE COOPERATION WITH AUTHORITIES EARLY PLEA

Citation: R v Wilkins [2007] NSWDC 65
Court: District Court of New South Wales
Date: 15 March 2007
Judge(s): Norrish QC DCJ

Background

The offender appeared for sentencing on four charges to which he had pleaded guilty in the Local Court. The charges arose from a police undercover operation conducted in Wagga Wagga between late 2005 and April 2006, targeting drug supply activity.

The charges included two counts of ongoing supply of methamphetamine (each alleging supply on three or more occasions within a 30-day period), one count of agreeing to supply a commercial quantity of ecstasy (2,000 tablets), and one count of supplying approximately four ounces of amphetamine. Three additional supply matters were placed on a Form 1 (a procedure by which offences not formally charged are acknowledged and taken into account at sentencing).

The offender had been in custody since his arrest on 19 April 2006 and had separately been sentenced by a magistrate to 12 months imprisonment with a six-month non-parole period for driving while disqualified, an offence connected to the same police operation.

  • How the sentence for the current drug offences should interact with the earlier sentence imposed by the magistrate, including whether to make the sentences concurrent or cumulative
  • Whether strict parity principles applied given two co-offenders had already been sentenced by a different judge
  • What weight to give to cooperation with authorities and an early guilty plea
  • Whether special circumstances existed to justify adjusting the standard ratio between non-parole period and head sentence
  • How Form 1 matters should be factored into the principal offence sentence

Decision

The court declined to apply strict parity with the sentences imposed on the co-offenders, Norton and Stockton. The offender's criminality was broader: his charges included two ongoing supply counts that the co-offenders did not face, and his criminal history was significantly more serious. Both co-offenders were younger and had no prior custodial experience, whereas the offender had served several prior gaol terms.

The court determined that the new sentences should accumulate on the non-parole period fixed by the magistrate rather than run entirely concurrently. This meant the custodial sentences commenced from 19 October 2006, the date the magistrate's non-parole period expired. The court acknowledged this arrangement distorted the ordinary non-parole period to head sentence ratio, treating that distortion as a special circumstance warranting adjustment under s 44 of the Crimes (Sentencing Procedure) Act 1999.

The court applied a 50 per cent discount to reflect the offender's cooperation with authorities and his early guilty plea. The three Form 1 matters were taken into account in relation to the principal offence (the second ongoing supply charge).

The resulting structure produced sentences running from 19 October 2006 and expiring on 18 April 2011, a span of four and a half years. When combined with the magistrate's earlier sentence, the total effective sentence was five years with a non-parole period of three years and three months. The offender became eligible for parole board consideration on 18 July 2009, with a subsequent supervision period of one year and nine months.

Orders Made

  • Sentences imposed with partial accumulation on the magistrate's non-parole period, commencing 19 October 2006 and expiring 18 April 2011
  • Non-parole period of two years and nine months fixed on the sentences imposed by the District Court
  • Total effective sentence (including the magistrate's sentence) of five years with a non-parole period of three years and three months
  • Backup charges dismissed pursuant to s 167 of the Criminal Procedure Act
  • Drugs seized from the offender ordered to be destroyed

Key Takeaways

  • Strict parity does not automatically apply where co-offenders face materially different charges or have significantly different criminal histories; the District Court here declined to impose equivalent sentences to those received by co-offenders given the broader scope of the offending and the more serious prior record.
  • Where a new sentence must accumulate on a non-parole period already fixed by a lower court, the resulting distortion of the non-parole period to head sentence ratio can constitute a special circumstance under s 44 of the Crimes (Sentencing Procedure) Act 1999, justifying a departure from the standard proportion.
  • A 50 per cent sentencing discount was applied in recognition of both substantial cooperation with authorities and an early guilty plea, reflecting the significant weight courts can place on these factors in combination.
  • Form 1 matters are taken into account on a nominated principal offence rather than sentenced separately, but they contribute to the overall assessment of the offender's criminality across the sentencing exercise.
  • Partial accumulation rather than full concurrency is available where running sentences entirely concurrently with an earlier term would inadequately reflect the totality of the offending.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2), 25A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Criminal Procedure Act (NSW), s 167

Cases
- R v Tisalandis (1982) 2 NSWLR 430
- Thomson and Houlton (2000) 49 NSWLR 309
- SZ v Regina [2007] NSWCCA 19
- R v Sukkar [2006] NSWCCA 92
- R v El Hani [2004] NSWCA 162
- Pearce v The Queen (1998) 194 CLR 610