Citation: R v Wayne John Hammond [2010] NSWDC 309
Court: District Court of New South Wales
Date: 18 November 2010
Judge(s): Cogswell SC DCJ
Background
The offender was a man in his early fifties living in the Dubbo and Glossodia areas of New South Wales. Police investigating drug supply in Dubbo identified him as a mid-level supplier of methylamphetamine, sitting one step above a woman who in turn sold to a street-level distributor. Between November 2008 and February 2009, police detected five separate occasions on which the offender supplied methylamphetamine to that woman, totalling approximately 120 grams, with transactions ranging from 8 to 28 grams and prices generally around $2,800 per supply.
On the day of his arrest in March 2009, the offender fled over a back fence when he saw police approaching and physically resisted a detective sergeant before being restrained. A subsequent search of his Glossodia residence uncovered a rifle, which was not in working order, displayed openly in the lounge room. He made admissions about his role in the supply chain.
The offender had a relevant prior record, including supply of a dangerous drug charges dating to 1979 and a 2004 District Court conviction for supplying a prohibited drug for which he received a full-time custodial sentence of 16 months with an 8-month non-parole period.
Legal Issues
- What sentence was appropriate for supply of a prohibited drug (methylamphetamine) under section 25(1) of the Drug Misuse and Trafficking Act 1985, having regard to the quantity involved, the offender's role in the supply chain, his prior record, and his personal circumstances?
- What weight, if any, should be given to the offender's claim that he derived no financial profit from the supply, instead receiving a portion of the drug as payment for his own addiction?
- How should the sentences for possessing an unlicensed firearm (s 7A(1), Firearms Act 1996) and resisting a police officer (s 58, Crimes Act 1900) be structured alongside the principal drug offence?
- Was full-time custody the only available sentencing option given the offender's criminal history and the nature of the offending?
Decision
The court characterised the offender as a mid-level supplier operating in a distribution chain that was meaningfully removed from end users, but noted that the harm caused was real and unknown in its full extent. The offender's claim that he took no financial profit, instead "taxing" a portion of the drugs for his personal use, was not disproved beyond reasonable doubt. Accordingly, financial gain was not treated as an aggravating factor.
The court accepted that there were genuine mitigating features: a plea of guilty, a stable family background with continued family support, a long drug-free period in his adult years, demonstrated employment history as a tiler, expressions of remorse, and a comprehensive psychological report. The offender had also remained drug-free during pre-sentence custody since March 2009 and had engaged constructively with rehabilitation activities.
Despite those mitigating factors, the court concluded that a full-time custodial sentence was unavoidable. The combination of the offender's prior 2004 conviction for a similar offence, the fact that he had received a custodial sentence on that occasion and reoffended, and his role as a supplier of significant quantities of methylamphetamine made non-custodial options inappropriate. The non-parole period was set below the standard ratio, described by the judge as erring on the generous side, to give the offender a realistic opportunity to demonstrate rehabilitation.
The co-offenders (the woman who distributed the drug and the man who sold to the undercover operative) had been sentenced for what the court characterised as more serious offending in the supply chain. The court took that into account in calibrating the sentence, ensuring it was proportionate to the offender's relative culpability.
Orders Made
- Supply of a prohibited drug (methylamphetamine), s 25(1) Drug Misuse and Trafficking Act 1985: imprisonment for 4 years, comprising a non-parole period of 2 years commencing 13 March 2009 (expiring 12 March 2011), with a balance of term of 2 years (expiring 12 March 2013).
- Possess firearm without licence, s 7A(1) Firearms Act 1996: fine of $100. A Form 1 offence (failing to keep a firearm safely) was taken into account on this count.
- Resist police officer in execution of duty, s 58 Crimes Act 1900: fine of $250.
Key Takeaways
- The District Court confirmed that full-time custody was the only appropriate sentencing response for a mid-level drug supplier who had a prior custodial sentence for equivalent offending and had reoffended after release.
- Where financial gain is alleged as an aggravating factor in a drug supply matter, the sentencing court must be satisfied of that fact beyond reasonable doubt before treating it adversely to the offender.
- A court may fix a non-parole period below the standard ratio where genuine mitigating factors, including rehabilitation efforts in custody, family support, and expressed remorse, justify a more generous parole eligibility date.
- Personal circumstances such as stable employment history, long-term drug-free periods, and supportive family connections carry mitigating weight but do not displace the need for full-time custody where the seriousness of the offending and criminal history demand it.
- Co-offenders' sentences formed part of the proportionality assessment: the court used those sentences as a reference point to ensure the sentence imposed reflected the offender's relative position in the supply chain.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) (supply of prohibited drug; maximum 15 years imprisonment)
- Firearms Act 1996 (NSW), s 7A(1) (possess firearm without licence)
- Crimes Act 1900 (NSW), s 58 (resist police officer in execution of duty)
Cases cited: No cases were cited in the portions of the judgment provided.