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District Court 27 May 2009

R v Baker

[2009] NSWDC 105

Drugs

Citation: R v Baker [2009] NSWDC 105
Court: District Court of New South Wales
Date: 27 May 2009
Judge(s): Toner SC DCJ

Background

The offender pleaded guilty to one count of conspiracy to manufacture not less than a large commercial quantity of MDMA, contrary to the Drug Misuse and Trafficking Act 1985. The conspiracy was carried out between September 2005 and August 2006 in Sydney, involving three co-conspirators. The offender's primary role was sourcing and importing the glassware, chemicals, and equipment needed for the proposed manufacturing operation through his importation companies.

The offender was 33 years old at the time of the offence and had been a quadriplegic since 1995. His criminal history was minimal and carried no weight in sentencing. He had been on conditional bail from the date of his arrest in August 2006 through to the sentencing hearing.

The prosecution accepted that the plea was entered at the earliest opportunity, entitling the offender to a 25% discount for its utilitarian value. The central issue at the sentencing hearing was not whether a custodial sentence was appropriate, but whether the prison system could accommodate a quadriplegic, and what effect the offender's disability should have on the sentence imposed.

  • Whether the NSW prison system could adequately accommodate an offender who is quadriplegic, and whether that capacity bore on the appropriateness of a full-time custodial sentence.
  • Whether the significant additional cost to the State of incarcerating a quadriplegic offender was a relevant sentencing factor.
  • Whether the extraordinary degree of social and physical isolation experienced by a quadriplegic prisoner warranted a reduction in sentence.
  • What parity considerations applied given that a co-conspirator had already been sentenced.

Decision

The court found that full-time imprisonment was the only appropriate sentence, provided the prison system could accommodate the offender. The Department of Corrective Services provided detailed evidence, including reports from Ms Anne Langford, demonstrating that accommodation arrangements could be made. That finding resolved the threshold question in favour of a custodial sentence.

On the question of the additional cost to the State, the court considered whether that cost was a proper sentencing factor, noting the unusual nature of the question. The court's treatment of this issue was embedded in the broader analysis of the offender's circumstances rather than resolved as a standalone principle reducing the sentence.

The court accepted that imprisonment for a quadriplegic carries a substantially harsher impact than for an able-bodied person. The extraordinary social and physical isolation experienced by a quadriplegic in custody constituted a relevant mitigating factor that justified reducing the sentence below what would otherwise have been imposed. The court also drew a comparison with the sentence imposed on co-conspirator CR, treating that as a parity benchmark, with any difference in sentence reflecting the differing subjective circumstances of each offender.

The court accepted the offender's remorse and contrition as genuine. His evidence demonstrated that he had developed a real understanding of the dangers of MDMA and the serious nature of his involvement, notwithstanding his earlier belief that the drug was relatively harmless.

Orders Made

  • Convicted of conspiracy to manufacture not less than a large commercial quantity of MDMA.
  • Non-parole period of 3 years and 6 months, commencing 27 May 2009 and expiring 26 November 2012.
  • Total term of imprisonment of 10 years and 6 months, commencing 27 May 2009 and expiring 26 November 2019.
  • Eligible for release on parole on 26 November 2012.

Key Takeaways

  • The District Court confirmed that a quadriplegic offender is not exempt from full-time imprisonment for a serious drug offence, provided the prison system has the capacity to accommodate that person's needs.
  • Where imprisonment imposes a materially harsher burden on an offender due to a severe physical disability, including profound social and physical isolation, that increased hardship is a legitimate mitigating factor at sentencing.
  • A 25% discount for an early guilty plea was applied without Crown opposition, consistent with the utilitarian value of pleas entered at the earliest opportunity.
  • Parity with a co-offender's sentence remained a relevant consideration; differences in the sentence imposed were attributable to differences in the subjective circumstances of each individual rather than any divergence in the objective seriousness of their respective roles.
  • Genuine remorse and an informed acknowledgment of the harm caused by the offending drug were accepted as mitigating factors, even where the offender had initially misunderstood the drug's dangers.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2), 26, 33(1)(a), 33(3)

Cases:
- R v Barci & Asling (1994) 76 ACrimR 103
- R v Burchell (1987) 34 ACrimR 148
- R v Cartwright (1989) 17 NSWLR 243
- R v Daetz (2003) 139 ACrimR 398
- R v Genz [1999] NSWCCA 285
- R v Nomchong (NSWCCA, 10 April 1997, unreported)
- R v Thomson and Houlton (2000) 49 NSWLR 285