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District Court 23 September 2010

R v XY

[2010] NSWDC 217

Drugs
CRIME SENTENCE COOPERATION.

Citation: R v XY [2010] NSWDC 217
Court: District Court of New South Wales
Date: 23 September 2010
Judge(s): Norrish QC DCJ

Background

The offender, identified by initials only, pleaded guilty at the Local Court to supplying a large commercial quantity of a prohibited drug, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The charge related to a series of supplies of 1,4-Butanediol (a precursor to GHB) totalling at least 307 litres, occurring between late December 2008 and late March 2009 in Victoria, with the drug then transported to New South Wales.

The offender was arrested in Victoria in 2009 and later extradited to New South Wales without objection. The charges arose out of an Australian Crime Commission investigation into the activities of a group known as the Hells Angels, which commenced in August 2008.

The offence involved multiple distinct supplies, ranging from two litres to 100 litres at a time. The offender's involvement was facilitated through a long-standing friendship with a co-accused, and the court accepted that he was relevantly addicted to the prohibited drug at the time of the offending.

  • What was the appropriate starting point sentence, having regard to the maximum penalty (life imprisonment) and the standard non-parole period of 15 years?
  • What discount, if any, should be applied for the offender's guilty plea, cooperation with authorities, and other subjective factors?
  • How should the court structure the non-parole period relative to the total term of imprisonment?

Decision

His Honour fixed a starting point of 10 years imprisonment, reflecting the objective seriousness of the offence. The charge carried a maximum penalty of life imprisonment and a standard non-parole period of 15 years under Part 4, Division 1A of the Crimes (Sentencing Procedure) Act 1999.

The court granted a 50% discount on the starting point, reducing the total sentence to five years. This substantial discount reflected a combination of factors including the early guilty plea and, significantly, the offender's cooperation with authorities. The judgment notes that the circumstances of that cooperation were of considerable importance to the sentencing exercise, and the identities of co-accused and the offender himself were suppressed given forthcoming proceedings.

The court also took into account the offender's addiction to the prohibited drug as a relevant subjective factor, accepting that the drug had been used by the offender for pain relief and that dependence existed at the time of the offending.

The resulting sentence comprised a non-parole period of two years and six months, commencing 17 March 2010, with a balance of sentence of a further two years and six months. Because the total sentence exceeded three years, the court noted it had no power to direct release to parole at the end of the non-parole period, leaving that matter to the Parole Board.

Orders Made

  • The offender was convicted of supplying a large commercial quantity of a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985.
  • Sentenced to a total term of imprisonment of five years.
  • Non-parole period of two years and six months, commencing 17 March 2010 and expiring 16 September 2012.
  • Balance of sentence of two years and six months, expiring 16 March 2015.
  • No conditions fixed for parole; the matter was left to the Parole Board.
  • Suppression of the offender's name (replaced with initials), the names of co-accused, and identifying location details in the published judgment.

Key Takeaways

  • The District Court applied a 50% discount to the starting point sentence of 10 years, producing a total term of five years, where the offender had entered an early guilty plea and provided significant cooperation with authorities.
  • A standard non-parole period of 15 years applies to offences of supplying a large commercial quantity of a prohibited drug under the Crimes (Sentencing Procedure) Act 1999, though this figure operates as a reference point rather than a mandatory outcome.
  • Addiction to the prohibited drug at the time of offending was treated as a relevant subjective mitigating factor, accepted on the facts as reducing the offender's moral culpability to a degree.
  • Where a total sentence exceeds three years, the sentencing court has no power to direct release to parole at the expiry of the non-parole period; the Parole Board retains that discretion.
  • Suppression of identifying details, including the offender's name, co-accused identities, and the custodial facility, was ordered to protect the integrity of forthcoming related proceedings.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Drugs, Poisons and Controlled Substances Act 1981 (Vic)

Cases
- R v Fahs [2007] NSWCCA 26
- R v Thomson and Houlton (2000) 49 NSWLR 383
- SZ v The Queen (2007) 168 A Crim R 249
- R v Sukkar (2006) 172 A Crim R 151
- The Queen v El Hani [2004] NSWCCA 162
- Davidson v The Queen [2009] NSWCCA 150
- Califano [2002] SASC 320
- R v Corbett [2008] NSWCCA 42
- House v The King (1936) 55 CLR 499
- R v Poon [2003] NSWCCA 42
- Adams v The Queen [2008] HCA 15
- R v Way (2004) 60 NSWLR 168
- Ibbs v The Queen (1987) 163 CLR 447
- Anderson v The Queen [2008] NSWCCA 211
- R v MLP [2006] NSWCCA 271
- Lovell & Anor v The Queen [2006] NSWCCA 222
- Markarian v The Queen (2005) HCA 25
- Wong v The Queen [2001] HCA 64