Citation: R v Finn, Megan [2010] NSWDC 104
Court: District Court of New South Wales
Date: 5 March 2010
Judge(s): Nicholson SC DCJ
Background
A strike force established by the Orana Local Area Command investigated ongoing drug supply in the Dubbo region. Between 22 January and 14 February 2009, the offender supplied a total of 83.7 grams of methylamphetamine to undercover police operatives across three discrete transactions, receiving $10,500 in total. Each transaction involved the supply of approximately one ounce, negotiated at the offender's home and completed days later.
On 5 March and 13 March 2009, the offender entered into two further agreements to supply a combined 56.8 grams of methylamphetamine, receiving $8,400 in total. Although no drug was ultimately delivered in either case, an agreement to supply constitutes supply as a matter of law. The offender asked the court to take these two additional agreements into account on a Form 1 (a procedural mechanism allowing related offences to be considered at sentencing without separate conviction).
The offender had a prior relevant history: she had been sentenced in 2005 to three years' imprisonment for supplying prohibited drugs. She was arrested in March 2009 and subsequently agreed to assist police in their investigation of three other members of the syndicate.
Legal Issues
- How should the objective criminality of the offending be assessed and weighed for the purpose of determining sentence?
- What discount, if any, should apply for the guilty plea and claimed contrition?
- Whether special circumstances existed justifying a departure from the standard non-parole ratio.
- What weight should be given to the offender's assistance to authorities, her subjective circumstances, and the prospects of rehabilitation?
- How should the Form 1 matters (the two agreements to supply) affect the overall sentencing outcome?
Decision
The court characterised the offender as a lower-to-mid-level supplier operating within a drug syndicate for financial reward. The offending was not isolated: it involved three actual supply transactions across 30 days, each independently sufficient for an indictable charge, plus two further agreements to supply. The offender had skimmed proceeds for her own drug use but the court found there was an overall financial gain. The use of coded language in dealings with her own supplier was noted as a further indicator of the commercial and deliberate nature of the conduct.
The court identified significant objective seriousness, placing this offending above small-time regular dealers. Both general and personal deterrence were considered necessary, given the substantial harm that drug supply causes to individual users and the broader community. The maximum penalty for the offence was noted as 20 years' imprisonment. The court also observed that the offender's prior incarceration for similar conduct had not deterred re-offending, and expressed broader concern about whether incarceration alone is the most effective response to recidivist drug offending.
A 25 percent discount was allowed for the guilty plea and contrition. The court noted some reservation about the genuineness of the contrition given the offender's prior behaviour in similar circumstances, but in the absence of any Crown challenge, a finding in the offender's favour was made. A further reduction was applied to reflect the offender's assistance to authorities. The court expressed caution about the offender's prospects of rehabilitation, noting she had only recently commenced a 12-week drug and alcohol programme.
Special circumstances were found, primarily to mitigate the consequences of the offender's assistance to authorities during incarceration. This finding adjusted the ratio between the non-parole period and the balance of term away from the standard proportion. The court indicated that but for the plea of guilty, an overall sentence of five and a half years would have been imposed, reduced by 45 percent to arrive at a total sentence of three years.
Orders Made
- The offender was convicted of supplying a prohibited drug (methylamphetamine) on three or more separate occasions within 30 consecutive days, for financial reward, at Dubbo between 22 January and 14 February 2009.
- The two further agreements to supply (Form 1 matters) were taken into account.
- A non-parole period of 21 months was imposed, commencing 14 March 2009 and expiring 13 December 2010.
- A balance of term of 15 months was set, expiring 13 March 2012.
- The offender was ordered to be released to parole on 13 December 2010.
- The drugs were ordered to be destroyed.
Key Takeaways
- The District Court confirmed that an agreement to supply a prohibited drug constitutes supply as a matter of law, even where no drug is ultimately delivered.
- Objective criminality for drug supply offences is assessed by comparing the conduct against similar offences, with particular weight given to quantity, commerciality, the drug's harm potential, and the offender's role within a supply network.
- A 25 percent discount for a guilty plea and contrition was applied even where the court held some reservations, because the Crown did not challenge the contrition claim.
- Special circumstances can be established where the offender's assistance to authorities is likely to have ongoing adverse consequences during incarceration, justifying a reduced non-parole period relative to the total term.
- Prior incarceration for equivalent offending was treated as a significant aggravating factor and heightened the need for personal deterrence, while the court noted broader policy questions about the effectiveness of incarceration for recidivist drug offenders.
Legislation and Cases Referenced
Legislation:
- Section 25A of the relevant drug supply legislation (ongoing supply offence, referenced in the judgment without naming the Act)
Cases:
- R v Finn (unreported, 30 September 2005, Hock DCJ)
- Gladue v The Queen [1999] 1 SCR 688
- R v Cuthbert [1967] 2 NSWR 329
- R v Rushby [1977] 1 NSWLR 597
- R v Hayes [1984] 1 NSWLR 740