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District Court 28 June 2012

R v Brett STAAS

[2012] NSWDC 287

Drugs
CRIMINAL LAW PARTICULAR OFFENCES DRUG OFFENCES SENTENCE PARITY ROLE EQUAL TO CO

Citation: R v Brett STAAS [2012] NSWDC 287
Court: District Court of New South Wales
Date: 28 June 2012
Judge: Cogswell SC DCJ

Background

The offender, a 47-year-old man with no significant prior criminal history, was sentenced for three serious drug offences arising from a period of heavy methylamphetamine addiction. His personal circumstances had deteriorated significantly following the breakdown of his first marriage and the failure of his business, leading to homelessness and drug dependence. He sourced chemicals for a co-conspirator's methamphetamine manufacturing operation and sold the drug to an undercover police operative on multiple occasions.

The offences spanned roughly December 2008 to April 2009. The offender was arrested on 30 April 2009 and spent over 19 months in pre-sentence custody before being bailed. During that period in custody, he detoxified from methylamphetamine.

By the time of sentencing, the offender had returned to employment in the family printing business, remarried, and demonstrated considerable rehabilitation. His 13-year-old daughter was living with his elderly mother, whose chronic health conditions raised concerns about her continued capacity as the child's primary carer.

  • The appropriate head sentences and non-parole periods for three offences under the Drug Misuse and Trafficking Act 1985: conspiracy to manufacture methylamphetamine (s 24(1)), solicit to manufacture methylamphetamine at a commercial quantity (s 24(2)), and supply methylamphetamine (s 25(1))
  • Whether special circumstances existed under the Crimes (Sentencing Procedure) Act 1999 s 53A justifying a non-parole period that represents a lesser proportion of the head sentence than the statutory default
  • Parity with the sentence imposed on co-conspirator McGregor, given their respective roles in the conspiracy

Decision

The District Court found that the offender was an original and primary participant in the conspiracy, equal in culpability to co-conspirator McGregor. His role was to source the precursor chemicals that McGregor, the "cook," required. The court noted that although co-conspirator Burrow had a lesser role as a runner, the offender and McGregor were substantially equivalent in their contribution to the criminal enterprise, and the parity principle required their sentences to reflect that equivalence.

On the supply and solicit-to-manufacture charges, the court acknowledged the serious nature of these offences, particularly the solicitation involving a commercial quantity of methylamphetamine. The court noted, however, that none of the methylamphetamine reached the community, as all transactions were with an undercover operative. General deterrence was identified as an important consideration in relation to the supply offence, while specific deterrence was assessed as less significant given the offender's good prospects of rehabilitation and the low likelihood of reoffending.

The court found special circumstances existed for the purposes of s 53A of the Crimes (Sentencing Procedure) Act 1999, warranting a departure from the standard ratio between the non-parole period and the head sentence. The factors supporting that finding included the precarious psychological health of the offender's teenage daughter, the chronic health conditions of her sole guardian (the offender's elderly mother), the offender's need to continue his rehabilitation in the community, the absence of significant prior convictions, and his strong prospects of reintegration. The sentence was backdated to 11 November 2010 to account for the period of pre-sentence custody.

Orders Made

• Application adjourned to Friday 19 October 2012
• Direction that the court's associate be notified by Friday 12 October 2012 of whether the matter has been settled
• Direction that the Crown indicate how many witnesses it proposes to call and what documents it proposes to tender (if matter not settled by 12 October 2012)
• Direction that the defence indicate how many witnesses it proposes to call and what documents it proposes to tender (if matter not settled by 12 October 2012)

Key Takeaways

  • The District Court applied the parity principle by treating the offender and his co-conspirator McGregor as equally culpable, given both were original and primary participants in the conspiracy, with the offender's chemical-sourcing role matching the significance of McGregor's role as the cook.
  • Special circumstances under s 53A of the Crimes (Sentencing Procedure) Act 1999 were established on the combined basis of a dependent child's psychological vulnerability, the fragile health of that child's sole carer, the offender's need for continued supervised rehabilitation, and strong prospects of reintegration.
  • General deterrence retains importance in sentencing for commercial-quantity drug supply offences, even where no prohibited substance actually reached the community because the transactions involved an undercover operative.
  • A period of pre-sentence custody can constitute a significant element of the overall sentence, and the court is required to backdate the commencement of a sentence to account for time already served.
  • The involvement of an undercover operative, while rendering the manufacturing or supply arrangement incapable of completion, does not remove the criminality of the offending or diminish the seriousness of the charges as a matter of sentencing principle.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(1), 24(2), 25(1), 39P
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A

Cases cited: No cases were cited in the provided text.