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Local Court 11 August 2011

Director of Public Prosecutions v Matthew Alan REYNOLDS

[2011] NSWLC 25

Drugs
SENTENCE SUPPLY DRUG POLICE OFFICER ASSISTANCE TO AUTHORITIES APPLICATION OF DISCOUNT

Citation: Director of Public Prosecutions v Matthew Alan Reynolds [2011] NSWLC 25
Court: NSW Local Court
Date: 11 August 2011
Judge(s): Henson DCJ, Chief Magistrate

Background

The offender was a serving NSW Police Force officer who was charged with three counts of supplying a prohibited drug under the Drugs Misuse and Trafficking Act 1985. The charges arose from a controlled police operation on 4 and 5 November 2010, during which the offender supplied small quantities of a prohibited drug to undercover operatives on three separate occasions in quick succession.

At the time of the offending, the offender had already been suspended from active duty and was facing two separate charges relating to unauthorised access to the police computer. Those earlier charges were subsequently dealt with under section 32 of the Mental Health (Forensic Provisions) Act 1990, which allowed the magistrate to dismiss them without a finding of guilt beyond reasonable doubt, meaning the offender came before the court for sentencing without prior criminal convictions.

The offender entered guilty pleas following participation in a criminal case conference under the Criminal Case Conferencing Trial Act 2008. He also provided some assistance to authorities, which the Director of Public Prosecutions acknowledged by tender of a supporting document.

  • Whether the offender's diagnosed mental health conditions reduced his moral culpability for the offending
  • How general deterrence should be weighted where the offender is a police officer
  • The appropriate discounts to apply for the early guilty plea (arising from the criminal case conference) and for assistance to authorities
  • Whether the combined effect of those discounts and subjective factors justified a sentence to be served by home detention rather than full-time custody

Decision

The Chief Magistrate assessed the objective seriousness of the offending as below the middle range for drug supply offences. Although each charge carried a maximum of 15 years imprisonment on indictment, the Director's choice to proceed in the Local Court was treated as an implicit concession that the offending fell within that court's jurisdictional parameters.

On mental illness, the court accepted that the offender more likely than not suffered from diagnosed depression and related conditions at the time of the offending. However, the court rejected medical opinion that emotional vulnerabilities led the offender to supply drugs without appreciating the consequences, finding that a police officer of his experience would have known both the illegality of the conduct and the potential harm from drug supply in the community. The mental health conditions were taken into account to a limited extent in assessing moral culpability, but general deterrence remained a paramount consideration given the offender's position of trust and authority.

The court applied a mandatory 25% discount on sentence for the guilty plea entered following the criminal case conference, as required by section 17 of the Criminal Case Conferencing Trial Act 2008. An additional discount was applied for assistance to authorities under section 23 of the Crimes (Sentencing Procedure) Act 1999, subject to the constraint in section 23(3) that no discount should make the resulting sentence unreasonably disproportionate to the nature and circumstances of the offence.

Applying both discounts together with the relevant subjective considerations, including the need for ongoing psychiatric treatment, the court reduced the base sentences and determined that the sentences should be served by way of home detention rather than full-time custody. The court noted that home detention would still serve the principles of general deterrence and denunciation while accommodating the offender's continued medical and psychiatric needs. It also observed that entry into full-time custody as a former police officer was a relevant consideration.

Orders Made

  • Convicted on all three charges
  • Count 3 (offence of 4 November 2010): sentenced to 6 months imprisonment
  • Counts 1 and 2 (offences of 5 November 2010): sentenced to 7 months and 15 days imprisonment on each count
  • All three sentences to be served concurrently
  • No non-parole period set, in exercise of the court's discretion under section 45(1) of the Crimes (Sentencing Procedure) Act 1999
  • Proceedings adjourned to 22 September 2011 for assessment of suitability to serve the sentences by way of home detention

Key Takeaways

  • A police officer's position of trust and oath to protect the public is a significant aggravating feature in drug supply offending, and general deterrence carries particular weight in such cases, even where mental illness is established.
  • Where mental illness is found to have contributed to an offence only in a limited way, and where the offender's knowledge of the law and consequences was clear, the mitigating effect on moral culpability will be correspondingly reduced.
  • Under section 17 of the Criminal Case Conferencing Trial Act 2008, a 25% discount on sentence is mandatory where a guilty plea follows a criminal case conference, overriding the common law approach to plea discounts established in Thomson and Houlton.
  • Section 23(3) of the Crimes (Sentencing Procedure) Act 1999 constrains the assistance discount: no reduction for cooperation is available to the point where the resulting sentence becomes unreasonably disproportionate to the offence.
  • The combined effect of plea and assistance discounts, together with subjective factors, can affect not only the length of a custodial sentence but also the manner in which it is served, potentially supporting a home detention order over full-time imprisonment.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (ss 21A, 23, 45)
- Criminal Case Conferencing Trial Act 2008 (s 17)
- Criminal Procedure Act 1986
- Drugs Misuse and Trafficking Act 1985 (s 25(1))
- Mental Health (Forensic Provisions) Act 1990 (s 32)

Cases
- Han v R [2009] NSWCCA 300
- Hili v R; Jones v R [2010] HCA 45
- R v Borkowski [2009] NSWCCA 102
- R v Cartwright (1989) 17 NSWLR 243
- R v Chapman (Unreported, NSWCCA, 21 May 1998)
- R v Doan (2000) 50 NSWLR 115
- R v Engert (1995) 84 A Crim R 67
- R v Gallagher (1991) 23 NSWLR 220
- R v Gip (2006) 161 A Crim R 173
- R v Hamid [2006] NSWCCA 302
- R v Kennedy [2000] NSWCCA 527
- R v M [2005] NSWCCA 224
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- R v Wright (1997) 93 A Crim R 48
- R v Zamagias [2002] NSWCCA 17
- SZ v R [2007] NSWCCA 19