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District Court 25 July 2008

R v Waters, Codie; Waters, Grant and Waters, Shannon

[2008] NSWDC 287

Drugs
CRIMINAL LAW SENTENCING OFFENDERS SUPPLY PROHIBITED DRUG COMMERCIAL QUANTITY STANDARD NON PAROL PERIOD OFFENCE

Citation: R v Waters, Codie; Waters, Grant and Waters, Shannon [2008] NSWDC 287
Court: District Court of New South Wales
Date: 25 July 2008
Judge(s): Nicholson SC DCJ

Background

Three members of the same family faced sentencing for their roles in the supply of amphetamine on the NSW South Coast, centred on the Moruya area. The principal offender, an adult male, had sourced amphetamine from a Canberra-based supplier on five separate occasions between February and July 2006, receiving a total of approximately 252 grams, a commercial quantity. Police established a dedicated strike force and monitored his mobile phone throughout this period.

His father and younger brother, who lived with him at a rural property in Moruya, were knowingly involved in the distribution of the drugs at the principal offender's direction. All three were amphetamine users. The offending continued despite the principal offender having been made aware in February 2006 that police were investigating him, a factor the court treated as significantly aggravating.

Each offender also asked the court to take additional admitted criminal conduct into account under s 32 of the Crimes (Sentencing Procedure) Act 1999. That further conduct included cultivating 10 cannabis plants and receiving stolen property.

  • What were the appropriate sentences for each offender, having regard to their respective roles and levels of culpability?
  • Whether the standard non-parole period applied to these offences, and if so, whether it was an appropriate sentencing guidepost in the circumstances.
  • Whether special circumstances existed justifying a variation in the ratio between the non-parole period and the overall sentence.
  • How to reflect the guilty pleas, the Form 1 matters, and the personal circumstances of each offender in the final sentences.

Decision

The court assessed the objective seriousness of the offending as significant, though it noted the quantity of 252 grams was close to the lower threshold for a commercial quantity. The principal offender was identified as the driving force: he sourced the drugs, managed the distribution network, and continued supplying after learning of the police investigation. His father and brother played supporting roles, assisting with delivery and collection at his direction.

On the question of the standard non-parole period, the court determined it was not an appropriate benchmark in these circumstances. The quantity was near the lower end of the commercial range, and the individual circumstances of each offender warranted a tailored approach rather than mechanistic application of the standard.

Each offender received a discount of 20 per cent for the guilty plea. The court also found special circumstances in each case, justifying a longer parole period than the statutory norm. The court based this finding on the need for extended supervision upon release, given the offenders' histories of drug dependency and the importance of rehabilitation.

The principal offender received a head sentence of four years, nine months and fifteen days with a non-parole period of two years, nine months and fifteen days. His father received two years and nine months with a two-year non-parole period, and his brother received three years with a two-year non-parole period. Because the principal offender's sentence exceeded three years, his release on parole was a matter for the Parole Board rather than a direct court order; the court recommended he be seriously considered for parole.

Orders Made

  • Principal offender: sentenced to 4 years, 9 months and 15 days imprisonment; non-parole period of 2 years, 9 months and 15 days commencing 31 July 2006.
  • Younger brother: sentenced to 3 years imprisonment; non-parole period of 2 years.
  • Father: sentenced to 2 years and 9 months imprisonment; non-parole period of 2 years.
  • The father and younger brother were directed to be released from custody on 30 July 2008, at the expiration of their non-parole periods.
  • The court recommended the principal offender be seriously considered for parole by the Parole Board.
  • Drug destruction order made by consent.

Key Takeaways

  • The District Court declined to apply the standard non-parole period as a sentencing guidepost where the quantity of drug involved was near the lower threshold for a commercial quantity and the circumstances did not reflect offending of mid-range objective seriousness.
  • Continuing to supply drugs in the face of a known, reasonable risk of police surveillance was treated as a material aggravating factor.
  • Where multiple co-offenders are sentenced together, culpability is assessed individually: the court distinguished between the organising principal and those who participated at his direction, producing materially different sentences across the three offenders.
  • A finding of special circumstances permits a court to extend the parole period beyond the statutory default, particularly where rehabilitation prospects and the need for post-release supervision justify closer oversight.
  • Under the Crimes (Sentencing Procedure) Act, a judge who receives an agreed statement of facts remains responsible for independent fact-finding; the agreed facts define the available material but do not bind the court's conclusions.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 32 and 52
- Drug Misuse and Trafficking Act (NSW)

Cases:
- R v Cuthbert (1967) 2 NSWR 329
- R v Rushby (1977) NSWLR 597
- R v Hayes [1984] 1 NSWLR 740
- R v Smiroldo [2000] NSWCCA 120
- R v Kalache [2007] NSWCCA 2
- R v Way (2004) 60 NSWLR 168