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District Court 26 April 2012

R v CA

[2012] NSWDC 154

DrugsFirearms & weapons
CRIMINAL LAW: SENTENCE SUPPLY PROHIBITED DRUG, HEROIN POSSESS PROHIBITED WEAPON, TASER EARLY PLEA COOPERATION SPECIAL CIRCUMSTANCES.

Citation: R v CA [2012] NSWDC 154
Court: District Court of New South Wales
Date: 26 April 2012
Judge: S Norrish QC DCJ

Background

The offender, referred to as CA, appeared for sentence on two principal charges arising from events on 1 March 2011, the date he was taken into custody. The first charge was supply of a prohibited drug (heroin, 7.1 grams) at Surry Hills, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The second charge was possession of a prohibited weapon (a taser) without a permit at Darlinghurst, contrary to s 7(1) of the Weapons Prohibition Act 1998.

CA had pleaded guilty in the Local Court and maintained those pleas in the District Court on 20 April 2012. He also asked the court to take into account four further matters on a Form 1, including knowingly allowing his apartment to be used as drug premises, two goods-in-custody charges, and possession of a prescribed restricted substance.

The sentencing hearing proceeded on the basis of a social history, a psychological report, a cooperation certificate, and submissions on matters including the offender's personal circumstances, the relevance of the Form 1 matters, and the applicable discounts.

  • What were the appropriate starting-point sentences for each offence, having regard to the standard non-parole period for the weapons offence and the maximum penalties applicable?
  • What combined discount should apply to reflect the utilitarian value of the early guilty pleas and the offender's cooperation with authorities?
  • How should the Form 1 matters affect the sentence for the principal drug supply offence?
  • Whether special circumstances existed to justify a non-parole period shorter than the statutory default ratio.
  • How the two sentences should be structured (concurrently or cumulatively) consistent with the totality principle.

Decision

Starting points and discounts. His Honour set a starting point of four and a half years for the drug supply offence and three years for the weapons offence. A combined discount of 40 per cent was applied to both sentences to reflect the utilitarian benefit of the early guilty pleas and the offender's cooperation with police. The 40 per cent figure incorporated the 25 per cent discount the offender was separately entitled to under the now-repealed Trial Case Conferencing Act, so the arithmetic remained consistent.

Form 1 matters. His Honour considered the Form 1 charges carefully, particularly the offence of knowingly allowing his apartment to be used as drug premises. Citing the Court of Criminal Appeal's guideline judgment, the court noted that Form 1 matters can place the principal offence in a broader context, potentially warranting greater weight on personal deterrence and retribution. Although the individual Form 1 offences were relatively minor by reference to maximum penalties, the drug-premises charge reinforced that CA had been engaged in supply activity for a period of time and was doing so from his own residence. This influenced the overall assessment of the drug supply offence.

Totality and structure. The two sentences were structured cumulatively, with the non-parole period for the drug supply offence commencing on expiry of the non-parole period for the weapons offence. His Honour found special circumstances in both matters, justifying non-parole periods shorter than the default statutory ratio, primarily to allow adequate supervision on parole given the offender's circumstances.

Cooperation certificate. The court noted the existence of a cooperation certificate. While the certificate was factored into the overall 40 per cent discount rather than treated as a separate discrete reduction, his Honour acknowledged it as a genuine mitigating factor alongside the pleas.

Orders Made

  • Possess prohibited weapon (s 7(1), Weapons Prohibition Act 1998): Convicted. Sentenced to imprisonment comprising a non-parole period of 9 months (1 March 2011 to 30 November 2011) and a balance of term of 12 months and 2 weeks (expiring 14 December 2012). Total sentence: 1 year, 9 months and 2 weeks. Special circumstances found.
  • Supply prohibited drug (s 25(1), Drug Misuse and Trafficking Act 1985), taking into account Form 1 matters: Convicted. Sentenced to imprisonment comprising a non-parole period of 1 year and 1 month (1 December 2011 to 31 December 2012) and a balance of term of 1 year, 7 months and 2 weeks (expiring 14 August 2014). Total sentence: 2 years, 8 months and 2 weeks. Special circumstances found.
  • Eligible for release to parole on 31 December 2012.

Key Takeaways

  • A combined discount of 40 per cent for an early guilty plea and cooperation is available where both factors are present, provided the discount for cooperation subsumes (rather than duplicates) any statutory entitlement arising from a trial case conferencing certificate.
  • Form 1 matters need not produce a separately identifiable or necessarily small increase in the sentence for the principal offence. Where they contextualise the principal offending, the court may properly give greater weight to personal deterrence and retribution, subject to the maximum penalty and the totality principle.
  • Under the Weapons Prohibition Act 1998, possession of a prohibited weapon without a permit carries a standard non-parole period of three years, requiring the sentencing court to fix a non-parole period even where that sentence will largely be absorbed by a longer concurrent or cumulative term.
  • Special circumstances findings permit courts to depart from the default non-parole period ratio, and are particularly relevant where an offender will require meaningful supervision and support upon release.
  • The totality principle operates as a constraint on cumulative sentences: the overall sentence must reflect the totality of the offending without becoming crushing, particularly where multiple offences arise from closely related facts and a single period of custody.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 12, 21A(1)-(2), 23

Cases:
- Markarian v The Queen (2005) 79 ALJR 1048
- R v Thomson and Houlton (2000) 49 NSWLR 383
- SZ v The Queen [2007] NSWCCA 19
- R v El Hani [2004] NSWCCA 162
- R v Z [2006] NSWCCA 342
- R v Sukkar [2006] NSWCCA 92
- Muldrock v The Queen [2011] HCA 39
- Pearce v R (1998) 194 CLR 610