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District Court 17 July 2014

R v Pincham

[2014] NSWDC 363

Drugs
CRIMINAL

Citation: R v Pincham [2014] NSWDC 363
Court: District Court of New South Wales
Date: 17 July 2014
Judge: Judge S Norrish QC

Background

The offender, a man in his mid-forties and a member of the Lone Wolves Outlaw Motorcycle Gang based in Coffs Harbour, appeared for sentencing on two offences arising from a police investigation involving telephone intercepts and listening devices. The principal offence was supply of not less than the commercial quantity of methylamphetamine, totalling 271 grams, committed between July 2011 and April 2012. A related offence involved dealing with $3,520 in cash reasonably suspected to be proceeds of crime.

The drug supply occurred within a broader joint criminal enterprise directed by a senior figure who arranged for gang members, including the offender, to sell methylamphetamine to others. The offender was found to have supplied approximately seven grams per week over 31 weeks, plus a discrete supply of 54.66 grams on 21 March 2012.

The offender was one of 12 co-accused. Ten of the 12 ultimately pleaded guilty to various offences. The offender entered his guilty plea after the matter had been listed for trial, though before it was allocated to a trial judge.

  • What discount should be applied for the utilitarian value of the guilty plea under the guideline judgment in R v Thomson and Houlton?
  • What was the appropriate starting point for sentence, having regard to the objective seriousness of the offending and all relevant personal factors?
  • Whether special circumstances existed to justify a departure from the standard ratio between the non-parole period and the balance of sentence?
  • How the sentence on the related proceeds of crime offence should be structured in relation to the principal sentence?

Decision

The District Court assessed the objective seriousness of the supply offence as substantial. The commercial quantity threshold for methylamphetamine was well exceeded, the offending occurred over an extended period, it was conducted within an organised criminal enterprise under direction, and the offender was on bail for other matters at the time of some of the offending.

On the question of the guilty plea discount, the court fixed the discount at 15%. Although the plea was entered after the trial date had been set, the court accepted that the offender had been facing multiple counts and that there was genuine complexity around the quantity of drug attributable to him. The negotiation process involving ten of twelve co-accused produced a significant saving to the court system and community, including the avoidance of numerous weeks of trial and the playing of extensive telephone intercept material. The court found these factors justified the full 15% discount, rather than a lesser figure.

The court identified a pre-discount starting point of six years imprisonment. Applying the 15% discount produced a head sentence of 61 months, which was rounded down to 61 months (five years and one month). The court found special circumstances existed, justifying a non-parole period shorter than the statutory default, and set the non-parole period at two years and four months. The 12-month sentence for the proceeds of crime offence was ordered to run wholly concurrently, given the close connection between the two offences.

Orders Made

  • Principal offence (supply commercial quantity of methylamphetamine, contrary to s 25(2) Drug Misuse and Trafficking Act 1985): convicted and sentenced to imprisonment with a non-parole period of two years and four months, commencing 21 January 2014 and expiring 11 May 2016; balance of sentence of two years and nine months, expiring 11 February 2019.
  • Related offence (dealing with suspected proceeds of crime, contrary to s 94C(1) Crimes Act 1900): convicted and sentenced to 12 months imprisonment, commencing 12 January 2014 and expiring 11 January 2015, wholly concurrent with the principal sentence.

Key Takeaways

  • A guilty plea entered after a trial date has been set may still attract a 15% discount where the plea resolves genuine complexity, eliminates multiple contested counts, and produces a material saving to the court and the community.
  • Under the Thomson and Houlton guideline, the utilitarian value of a plea is assessed in context: the court here weighed the late timing of the plea against the substantial saving generated across a large multi-accused prosecution.
  • Where an offender is one of numerous co-accused in an organised drug supply operation, the court will assess individual criminality by reference to the specific quantity and role attributable to that offender, not the broader enterprise figures.
  • Special circumstances can justify reducing the non-parole period below the statutory default ratio, producing a longer parole period to assist with rehabilitation and reintegration.
  • Sentences for closely related offences arising from the same criminal conduct may properly be ordered to run concurrently rather than cumulatively, reflecting the principle of totality.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1900 (NSW), s 94C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), ss 166, 167

Cases:
- R v Thomson and Houlton [2000] NSWCCA 309 (guideline judgment on guilty plea discounts)
- Markarian v R (2005) 228 CLR 357
- Muldrock v The Queen (2011) 244 CLR 120
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- R v Henry (1999) 46 NSWLR 346
- R v Hemsley [2004] NSWCCA 228
- R v Buttrose [2011] NSWCCA 35
- The Queen v Pincham [2000] NSWCCA 478
- R v Lim, R v Tan [2013] NSWDC 327