Citation: R v Clarissa BURROW [2012] NSWDC 61
Court: District Court of New South Wales
Date: 20 February 2012
Judge(s): Cogswell SC DCJ
Background
The offender, a woman in her early thirties, pleaded guilty to conspiracy to manufacture a prohibited drug (methylamphetamine) in an amount not less than the commercial quantity, contrary to ss 24(2) and 26 of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum penalty of 20 years imprisonment. The offender had joined an existing arrangement between two men, one of whom was manufacturing the drug from his residential unit.
Her role was described by the court as that of an "essentially a gofer." She sourced and obtained materials for the primary manufacturer, participated in a break-in at an abandoned technical college to steal laboratory equipment, and acted as a communications conduit between the two co-conspirators. She did not participate in the actual manufacturing process and lacked the skills or capacity to do so. She joined the conspiracy in exchange for a personal supply of the drug.
The offender had a history of drug-related and associated offences, accumulated after the breakdown of a long-term relationship in her mid to late twenties. She had been in custody on this matter for approximately one year, six months, two weeks and six days by the date of sentencing.
Legal Issues
- What sentence was appropriate given the offender's limited role in the conspiracy?
- What discount should apply for the guilty plea, having regard to its timing and the partially contested committal?
- How should parity be maintained with the co-conspirator McGregor, who was sentenced three days earlier to a lesser charge carrying a lower maximum penalty?
- Whether special circumstances existed to justify reducing the non-parole period below the standard 75 per cent of the head sentence.
- Whether a direction for release on parole was available given the head sentence was less than three years.
Decision
Cogswell SC DCJ accepted that the offender's role was at the lower end of the spectrum among the conspirators. The conspiracy was not sophisticated, and the manufacturing attempts produced little actual methylamphetamine due to the use of incorrect chemicals and the absence of any qualified chemist. The court took into account that the offender was vulnerable and drug-addicted when she became involved, and accepted that she was remorseful, as evidenced by the extensive statement she provided to police approximately a year after her arrest.
The court identified an appropriate starting point of four years imprisonment. A discount of 28 per cent was applied, reflecting both the guilty plea and the contents of a confidential exhibit. This was slightly above the 25 per cent typically allowed for a plea at the earliest opportunity, acknowledging the additional matter addressed in the confidential exhibit, while also recognising that the plea was not entered at the first available opportunity and the committal had been partially contested.
On the question of parity, the court noted a tension: the co-conspirator McGregor was more extensively involved in the manufacturing process, yet had been convicted of a less serious offence carrying a lower maximum penalty than that to which the offender pleaded guilty. The court treated this asymmetry as a relevant consideration in calibrating the final sentence.
The court found insufficient basis to establish extensive special circumstances warranting a substantial reduction in the non-parole period below 75 per cent of the head sentence, but made a modest reduction from approximately 25 months to 22 months. Because the total sentence was less than three years, the court made a direction for release on parole under s 50(1) of the Crimes (Sentencing Procedure) Act 1999.
Orders Made
- Head sentence of 34 months (2 years and 10 months) imprisonment, backdated to commence 1 October 2010 and expiring 1 August 2013.
- Non-parole period of 1 year and 10 months, commencing 1 October 2010 and expiring 1 August 2012.
- Balance of sentence of 12 months, commencing 2 August 2012 and expiring 1 August 2013.
- Direction for release on parole on 1 August 2012 under s 50(1) of the Crimes (Sentencing Procedure) Act 1999.
- Parole conditions imposed: good behaviour; attendance at court if called upon; notification of change of address to the Parole Authority; supervision by the Probation and Parole Service and compliance with reasonable recommendations and directions, particularly regarding drug rehabilitation.
Key Takeaways
- A conspiracy to manufacture a prohibited drug in a commercial quantity carries a maximum of 20 years imprisonment under the Drug Misuse and Trafficking Act 1985, even where the actual manufacturing was unsuccessful or produced minimal output.
- The District Court treated the offender's limited, facilitative role (sourcing materials and acting as a communications conduit, without participation in the manufacturing process itself) as a significant mitigating factor, placing her at the lower end of the spectrum of culpability.
- Where a co-offender was convicted of a related but less serious charge with a lower maximum penalty, parity considerations do not operate in a simple linear fashion. The court weighed both the difference in roles and the difference in the gravity of the respective offences.
- A guilty plea discount above the standard 25 per cent can be applied where additional mitigating factors exist beyond the plea itself, such as substantial cooperation evidenced in a confidential exhibit.
- Under s 50(1) of the Crimes (Sentencing Procedure) Act 1999, where the total sentence imposed is less than three years, the court may direct the offender's release on parole rather than leaving release to the discretion of the Parole Authority.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(2) and 26
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 50(1)
Cases cited: None cited in the judgment text.