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District Court 28 January 2010

R v CV

[2010] NSWDC 36

Drugs
CRIMINAL LAW SENTENCING SUPPLY PROHIBITED DRUGS (X3) METHAMPHETAMINES COMMERCIAL QUANTITY FORM 1

Citation: R v CV [2010] NSWDC 36
Court: District Court of New South Wales
Date: 28 January 2010
Judge(s): Nicholson SC DCJ

Background

The offender, CV, was a repeat drug offender with a history dating back to 1998 that included prior convictions for supply and importation offences and multiple terms of imprisonment. At the time of the conduct in question, he was partway through a parole period following his third term of imprisonment.

Police obtained a warrant to intercept his mobile phone communications over an 88-day period. One hundred intercepted calls were transcribed and relied upon by the Crown, revealing an ongoing pattern of drug supply to associates.

The offending conduct spanned 22 December 2008 to 16 January 2009. CV was charged with three counts of supplying methamphetamine (including one involving a commercial quantity), with seven additional matters taken into account on a Form 1. Those Form 1 matters included dealing with proceeds of crime on two occasions, possessing a prohibited weapon (a knuckleduster), and possession of cocaine, heroin, alprazolam, and cannabis.

  • How to assess the objective seriousness of each supply offence, including whether the principal supply charge fell at, above, or below the mid-range of seriousness
  • Whether the standard non-parole period applied to the commercial quantity supply charge
  • Whether special circumstances existed justifying a departure from the standard ratio between the non-parole period and the balance of term
  • The appropriate discount for a plea of guilty
  • How to structure multiple sentences, including the Form 1 matters and forfeiture of proceeds

Decision

The court assessed the objective criminality of the three supply charges separately. The first two charges were deemed supply charges arising from methamphetamine found on CV's person and at his home on 16 January 2009, involving 13.8 grams and 156.3 grams respectively. The third and principal charge involved actual supply of methamphetamine in a commercial quantity over a period of weeks, established primarily through the intercepted telephone calls.

On the question of the standard non-parole period, the court found that the commercial quantity supply fell below the mid-range of seriousness for that category of offence. As a result, the standard non-parole period prescribed under the Crimes (Sentencing Procedure) Act 1999 did not apply as a reference point in the ordinary way. The court emphasised that the sentencing task required an individuated assessment of the offence and the offender, with community protection identified as the primary sentencing purpose.

The court made a finding of special circumstances. This was linked in part to the additional stresses and arduousness of custody arising from assistance CV had provided, noting explicitly that this finding did not constitute double counting alongside the discount already given for that assistance in respect of the administration of justice.

The court opened its remarks with a candid observation that the case illustrated the limits of punitive and deterrence-based sentencing when dealing with drug-addicted offenders, noting that research and Parole Board revocation statistics demonstrated the relative ineffectiveness of that paradigm in reforming offenders. The court nonetheless applied the relevant sentencing principles as binding authority required. It recommended (without ordering) that CV attend a full-time rehabilitation centre in New South Wales for at least the first six months of his parole period.

Orders Made

  • CV convicted and sentenced on the first supply charge (13.8 g methamphetamine): fixed term of 1 year, 4 months and 15 days, commencing 16 January 2009 and expiring 30 May 2010
  • CV convicted and sentenced on the second supply charge (156.3 g methamphetamine): fixed term of 1 year, 9 months and 15 days, commencing 16 January 2009 and expiring 30 October 2010
  • CV convicted and sentenced on the third supply charge (commercial quantity methamphetamine): non-parole period of 1 year, 11 months and 15 days from 16 July 2009, expiring 1 July 2011; balance of term of 1 year and 8 months, expiring 28 February 2013
  • Seven Form 1 matters taken into account
  • Release to parole ordered on 1 July 2011
  • Cash of $1,200.00 found in CV's vehicle forfeited to the State under s 18(1) of the Confiscation of Proceeds of Crime Act 1989
  • Cash of $14,950.00 found at CV's rented premises forfeited to the State under the same provision
  • All drugs ordered destroyed
  • Recommendation (not an order) that CV attend a full-time rehabilitation centre in New South Wales for at least the first six months of parole

Key Takeaways

  • Where a commercial quantity drug supply charge falls below the mid-range of objective seriousness, the standard non-parole period does not operate as a fixed benchmark and the sentencing court retains full discretion in structuring the sentence.
  • A finding of special circumstances can be grounded in the particular hardships of custody caused by an offender's assistance to authorities, provided this is kept analytically separate from any discount already applied for that assistance.
  • Financial gain from drug supply that exceeds the cost of maintaining a personal drug habit is a relevant aggravating feature in assessing objective seriousness, and the court treated the poly-drug dealing and proceeds of crime conduct as relevant context even where addressed through Form 1.
  • Nicholson SC DCJ's remarks reflect a recognised judicial tension: binding sentencing principles require emphasis on punishment and deterrence, yet the court acknowledged openly that recidivism data suggests those purposes have limited rehabilitative effect for drug-dependent offenders.
  • Sentencing courts retain the ability to make rehabilitation recommendations to the Parole Board, even where they lack the power to impose rehabilitation as a condition of the sentence itself.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 18(1)

Cases:
- Gladue v The Queen [1999] 1 SCR 688
- R v Cuthbert (1967) 2 NSWR 329
- R v Rushby [1977] NSWLR 597
- R v Hayes [1984] 1 NSWLR 740
- R v Way (2004) 60 NSWLR 168