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District Court 28 August 2009

R v SHAE-LOCKE; R v SMITH

[2009] NSWDC 438

Drugs
CRIMINAL LAW SENTENCE ONGOING SUPPLY OF DRUGS

Citation: R v Shae-Locke; R v Smith [2009] NSWDC 438
Court: District Court of New South Wales
Date: 28 August 2009
Judge(s): Berman SC DCJ

Background

Two co-offenders, who were in a domestic relationship and shared a home, were sentenced for ongoing supply of prohibited drugs following three separate transactions with an undercover police officer over a six-day period in November 2008. The transactions involved small quantities of heroin and methylamphetamine, with a total of 0.59 grams of prohibited drugs supplied across the three occasions. Both offenders were drug users who had accumulated drug debts and had turned to drug supply to pay them off.

The undercover officer attended the offenders' home on each occasion, with prior telephone arrangements made for two of the three transactions. Both offenders participated in each supply, with one typically receiving the money and the other present at the premises. They were arrested on 16 December 2008 and both pleaded guilty at the earliest opportunity.

The two men had significantly different criminal histories. One had a minor prior drug-related matter, while the other had a more substantial criminal record including custodial sentences for break, enter and steal and drug use offences, as well as health problems including a recent stroke.

  • What was the appropriate head sentence and non-parole period for each offender given their individual circumstances?
  • How should the court weigh the small quantities of drugs against the regularity of the supply conduct?
  • To what extent should differences in criminal history affect parity between co-offenders of equal objective culpability?
  • Whether special circumstances existed to justify a longer-than-standard ratio between the non-parole period and head sentence.

Decision

The court found both offenders equally culpable in an objective sense, as neither was identified as playing a dominant role in the drug supply arrangement. Despite the small total quantity of drugs involved, the court treated the offences as serious because of their regularity and the fact that Parliament had specifically legislated to treat ongoing small-quantity supply as equivalent to commercial quantity supply under section 25A of the Drug Misuse and Trafficking Act 1985.

Both men received a 25 per cent discount on their sentences to reflect their early guilty pleas. The court also considered each offender's personal background, including histories of disadvantage, abuse, and drug addiction, and acknowledged their expressed desire to overcome their addictions.

Notwithstanding equal objective culpability, the court imposed a longer sentence on the offender with the more significant criminal history. The difference in sentences reflected that criminal history rather than any difference in the gravity of their individual conduct.

The court found special circumstances in both cases, primarily the need to provide adequate time on parole to assist each offender in overcoming drug addiction. This resulted in a greater-than-standard proportion of the sentence being served on parole.

Orders Made

  • Smith sentenced to imprisonment with a head sentence of 3 years and a non-parole period of 18 months, commencing 17 December 2008, with release to parole on 16 June 2010.
  • Shae-Locke sentenced to imprisonment with a head sentence of 2 years and a non-parole period of 12 months, commencing 2 July 2009 (backdated to account for 57 days of pre-sentence custody), with release to parole on 1 July 2010.
  • A secondary offence of malicious damage to property (reckless) was taken into account in Shae-Locke's sentencing.

Key Takeaways

  • Under section 25A of the Drug Misuse and Trafficking Act 1985, ongoing supply of small quantities of prohibited drugs attracts the same maximum penalty as supply of a commercial quantity, making the regularity of supply a central consideration even where individual quantities are minimal.
  • Equal objective culpability between co-offenders does not necessarily produce identical sentences where their criminal histories differ materially; the District Court imposed a longer sentence on the offender with the more serious prior record.
  • A 25 per cent sentencing discount applied where both offenders entered guilty pleas at the earliest opportunity.
  • Special circumstances were found in both cases on the basis that extended parole supervision was necessary to address entrenched drug addiction, resulting in non-parole periods that represented a greater proportion of the head sentence than the standard ratio.
  • Difficult personal backgrounds, including childhood abuse, sexual assault, and addiction, were taken into account as mitigating factors, though they did not displace the need for full-time custodial sentences given the seriousness of ongoing drug supply conduct.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), particularly section 25A (ongoing drug supply)

Cases cited: None identified in the provided text.