Citation: R v Peter Kokla [2013] NSWDC 209
Court: District Court of New South Wales
Date: 3 June 2013
Judge: Cogswell SC DCJ
Background
Police on patrol in Waterloo in March 2012 observed a man sitting in a parked vehicle behaving suspiciously. After approaching the vehicle and conducting a search, they found a backpack and waist bag containing a significant variety of drugs and drug paraphernalia, including a commercial quantity of a substance known colloquially as "nexus" or "bromo" (a prohibited drug), GBL (a prohibited drug), MDA tablets, prescription medications, cash, and two mobile phones.
The offender, a 43-year-old man, had no significant criminal history until approximately a year before sentencing. His recent record consisted of drug offences that, in the court's view, reflected a life spiralling out of control due to a serious drug addiction. The offences the subject of this sentencing were committed while he was on bail for prior drug offences and while participating in the MERIT program (a drug intervention program).
The prosecution and defence agreed that a custodial sentence was the only available option. The court had also refused bail at the most recent hearing.
Legal Issues
- What sentence was appropriate for the supply of a commercial quantity of a prohibited drug under s 25(2) of the Drug Misuse and Trafficking Act 1985, given the statutory standard non-parole period of 10 years and the objective seriousness of the offending?
- How should the court treat the supply of a prohibited drug (GBL) under s 25(1) and the possession of MDA under s 10(1) of the same Act?
- What discount applied to each guilty plea, including early and late pleas?
- Whether special circumstances existed to justify a non-parole period shorter than the statutory norm, given the offender's addiction and rehabilitation needs.
- How should the court weigh the offender's personal circumstances, including his addiction, late criminal history, and prospects of rehabilitation?
Decision
The court assessed the commercial supply offence (supply of a commercial quantity of nexus/bromo) as falling at the lower end of the range of objective seriousness, given the relatively low street value and quantity involved, and the very low purity of the drug at approximately 3%. The offender was characterised as a low-level user/dealer rather than a sophisticated commercial operator. Despite these mitigating factors on the objective seriousness scale, the court noted that the standard non-parole period of 10 years remained the statutory benchmark for this offence.
The court applied a 25% discount to the commercial supply charge, reflecting a guilty plea entered at the earliest available opportunity. A much smaller discount of approximately 5% was applied to the supply of GBL charge, because the guilty plea was entered only on the day of trial. The MDA possession charge was resolved by the recording of a conviction only, given its relatively minor nature compared to the other matters.
On the question of personal circumstances, the court acknowledged that the offender had no significant criminal history until recently, but found that his prospects of rehabilitation were moderated by an untreated and serious drug addiction. The aggravating features included the commission of the offences while on bail for drug offences and while participating in the MERIT program. The court found that special circumstances existed, justifying a departure from the standard ratio between the non-parole period and the total sentence, on the basis that the offender would need additional supervised time in the community to address his addiction and reintegrate.
For the commercial supply charge, the court imposed a head sentence of 4 years, with a non-parole period of 2 years and 3 months (27 months), reduced from the otherwise applicable 3-year non-parole period due to the special circumstances finding. The supply of GBL attracted an 18-month sentence, which was ordered to run concurrently. All sentences were backdated to 28 May 2013.
Orders Made
- Offender sentenced to 4 years imprisonment for supply of a commercial quantity of a prohibited drug (nexus/bromo), with a non-parole period of 27 months, backdated to 28 May 2013; parole eligibility date of 27 August 2015; sentence to expire 27 May 2017.
- Sentence of 18 months imprisonment for supply of a prohibited drug (GBL), to be served concurrently.
- Conviction recorded only for possession of MDA (9 tablets).
- Drugs ordered to be destroyed under s 39P of the Drug Misuse and Trafficking Act 1985.
- Sequence 18 charge dismissed under s 167 of the Criminal Procedure Act 1986.
Key Takeaways
- The District Court treated the commercial supply offence as falling at the lower end of objective seriousness, citing low drug quantity, low street value, and very low purity (3%), and characterised the offender as a low-level user/dealer rather than a commercial supplier.
- A 25% sentencing discount was available for a guilty plea entered at the earliest opportunity; a late plea entered on the day of trial attracted only approximately 5%.
- Special circumstances justifying a reduced non-parole period can arise where an offender has a serious, untreated drug addiction requiring extended post-release supervision to support rehabilitation and community reintegration.
- Committing offences while on bail for drug offences and while participating in a drug diversion program (MERIT) are aggravating factors that bear on the assessment of the appropriate sentence.
- Prospects of rehabilitation were considered, but were moderated by the absence of treatment for a serious addiction at the time of sentencing.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 25(2), 39P
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 32
- Criminal Procedure Act 1986 (NSW), ss 166, 167(1)
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1)
Cases cited: No cases were cited in the judgment.