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District Court 12 August 2011

R v Francis Orchard

[2011] NSWDC 151

Drugs

Citation: R v Francis Orchard [2011] NSWDC 151
Court: District Court of New South Wales
Date: 12 August 2011
Judge: Judge Norrish QC

Background

The offender was found guilty after a judge-alone trial of supplying not less than the commercial quantity of methylamphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The offending occurred between 10 January 2008 and 10 May 2008 in and around Belmont, New South Wales. The trial ran over a period of approximately seven months (with a seven-week Christmas recess), concluding with a verdict delivered on 13 May 2011. The offender was acquitted of the more serious alternative charge of supplying not less than a large commercial quantity of amphetamine.

The prosecution case was substantially built on telephone intercept evidence, which revealed the offender operating a structured drug supply business with a regular client base. Many of those clients purchased methylamphetamine for on-supply to others. The offender provided $110,000 to an associate to purchase methylamphetamine, and a further $48,820 in cash was located secreted at his parents-in-law's residence. Judge Norrish QC found that both sums represented the proceeds of past drug dealing.

Although the offender gave evidence at trial, the court found him to be an unimpressive witness who gave untruthful and self-serving testimony on central issues. He admitted to an ongoing course of supply but sought to minimise his role in the specific transactions at the heart of the Crown case.

  • What sentence was appropriate for supply of not less than the commercial quantity of methylamphetamine under s 25(2) of the Drug Misuse and Trafficking Act 1985?
  • What weight should be given to the standard non-parole period prescribed by the Crimes (Sentencing Procedure) Act 1999?
  • Whether special circumstances existed justifying a departure from the statutory ratio between the non-parole period and the balance of sentence.
  • What effect, if any, the offender's claimed mental health condition had on the appropriate sentence.
  • How the court should treat the offender's admissions of broader criminal conduct made during evidence, including conduct charged on a Form 1.

Decision

Judge Norrish QC assessed the objective seriousness of the offence as substantial. The offending involved a sustained, commercially organised operation of daily methylamphetamine supply over several months, with quantities recovered on arrest totalling approximately 612 to 620 grams. The court was satisfied that the recovered quantity did not represent the full extent of the offender's supply activity over the indictment period.

The court rejected the offender's claims regarding mental illness as a mitigating factor. Judge Norrish QC observed that the offender had, throughout the period covered by the telephone intercepts, acted in a cold, calculated, and purposeful manner. The court found no credible evidence of any thought disorder or mental incapacity that diminished moral culpability.

The court took into account the matters set out on the Form 1, which captured additional supply-related conduct admitted during the offender's evidence. The sentencing also reflected the absence of a guilty plea and the lack of remorse, balanced against the relevant sentencing purposes of punishment, general deterrence, and specific deterrence.

The court found special circumstances existed to justify a modest departure from the standard non-parole period ratio, resulting in a non-parole period of ten years and five months and a balance of sentence of five years and one month. The total head sentence was fifteen years and six months. The non-parole period was back-dated to commence on 8 May 2008, the date the offender was taken into custody.

Orders Made

  • The offender was convicted and sentenced to a non-parole period of ten years and five months, commencing 8 May 2008 and expiring 7 October 2018.
  • The balance of sentence was fixed at five years and one month, expiring 7 November 2023.
  • Confiscation orders were made under the Confiscation and Proceeds of Crime Act 1989, including forfeiture to the State of:
  • Cash of $48,820 found at 48 Tudor Street on 9 May 2008
  • Cash of approximately $1,210 found on the offender on 10 April 2008
  • Cash of approximately $435 found on the offender on 9 May 2008
  • Proceeds of the sale of a VT Holden motor vehicle (together with all accrued interest)
  • All seized drugs were ordered to be destroyed (if not already done).
  • Matters on any s 166 Certificate were remitted to Newcastle Local Court on 24 August 2011.

Key Takeaways

  • The District Court treated a sustained, commercially organised methylamphetamine supply operation as a matter of significant objective seriousness, particularly where telephone intercept evidence demonstrated deliberate, calculated conduct over an extended period.
  • A finding of special circumstances permitted a departure from the standard non-parole period ratio under the Crimes (Sentencing Procedure) Act 1999, resulting in a longer balance of sentence to accommodate the offender's rehabilitation and reintegration needs on eventual release.
  • Where an offender gives evidence at trial admitting to conduct broader than the charge on the indictment, that admitted conduct may be taken into account via a Form 1 at sentencing.
  • Claims of mental illness as a mitigating factor were assessed against the totality of the evidence, including the offender's own conduct as revealed by intercepts; unsupported assertions of incapacity carried little weight where the evidence demonstrated purposeful and organised criminal behaviour.
  • Confiscation orders under the Confiscation and Proceeds of Crime Act 1989 were made in respect of cash and other assets connected to the drug supply operation, reflecting the court's findings about the source of those funds.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2), 25A
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Confiscation and Proceeds of Crime Act 1989 (NSW), s 18(1)

Cases:
- R v Fahda [1999] NSWCCA 297
- R v Scognamiglio (1991) 56 A Crim R 81
- R v Letteri (unrep, 18/03/92, NSWCCA)
- R v Engert (1995) 84 A Crim R 67
- R v Hemsley [2004] NSWCCA 228
- R v Wright (1997) 93 A Crim R 48
- R v Smith (1987) 44 SASR 587
- R v Bailey (1988) 35 A Crim R 458
- R v Vachilec (1981) 1 NSWLR 351
- R v Burrell (2000) 14 A Crim R 207
- R v Todd (1982) 2 NSWLR 517
- R v Mill (1988) 166 CLR 69
- R v Postiglioni (1997) 198 CLR 295
- Lowe v The Queen (1984) 154 CLR 606
- R v Hamieh [2007] NSWCCA 277
- R v Jimmy [2010] NSWCCA 60
- R v De La Rosa [2010] NSWCCA 194
- R v Way [2004] NSWCCA 131
- R v Sellers [2010] NSWCCA 133
- R v Knight (2007) 176 A Crim R 338