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Local Court 14 May 2014

NSW Police v Hardman

[2014] NSWLC 11

DrugsTraffic & driving
SENTENCING SALE OF DRUGS RELEVANCE OF SALE TO UNDERCOVER OFFICER TIME CUSTODY PARTIAL CUMULATION SPECIAL CIRCUMSTANCES

Citation: NSW Police v Hardman [2014] NSWLC 11
Court: Local Court of New South Wales
Date: 14 May 2014
Judge: Magistrate P.S. Dare SC

Background

Between September and October 2013, the offender supplied amphetamine on multiple occasions to an undercover police operative as part of a police operation targeting drug supply in Young, NSW. The offender acted as an associate of a more central figure in the supply network, arranging and delivering small quantities of amphetamine ranging from approximately 1.7 to 3.5 grams per transaction. She was recorded in phone conversations agreeing to and offering to supply the drug.

The offender also tested positive to methamphetamine and cannabis in an oral fluid test during a random roadside drug test in December 2013. She was arrested and charged with four counts of supply of a prohibited drug under the Drug Misuse and Trafficking Act 1985 and one count of driving with a prescribed illicit drug present in oral fluid under the Road Transport Act 2013.

The offender pleaded guilty at the first available opportunity to all charges. She was 47 years old, a single parent of three children living in private rental accommodation, and had a prior criminal history that included alcohol-related driving offences and assault-related matters, but no prior drug supply convictions.

  • What weight should be given to the offender's role in the drug supply network compared to the quantities involved?
  • What is the relevance, for sentencing purposes, of the fact that drugs were supplied to an undercover police operative rather than to a member of the public?
  • Whether "exceptional circumstances" existed to justify a non-custodial sentence.
  • Whether hardship to the offender's dependent children constituted a sufficient basis to avoid full-time custody.
  • How sentences for multiple offences should be structured, including questions of cumulation and special circumstances.

Decision

Magistrate Dare found that the offender's role in the supply network was the most significant sentencing consideration, outweighing the relatively modest quantities involved. The offender was an active participant who sourced drugs, arranged transactions, and delivered the product. Although she was not the central figure, she was a willing and integral associate.

The Magistrate addressed the submission that supply to an undercover operative was less serious than supply to a member of the public. Consistent with the Court of Criminal Appeal's approach in cases such as Nguyen v R and R v Gip, the Magistrate held that selling drugs to an undercover officer is not a mitigating factor. The harm to the community remains the same, and the nature of the offending is not diminished by the identity of the purchaser.

On the question of whether a non-custodial sentence was appropriate, the Magistrate found that exceptional circumstances were not established. Hardship to third parties, specifically the offender's children, was considered but was not found to reach the threshold required to displace full-time custody. The Magistrate acknowledged the impact on the children but noted that financial and personal hardship to a family is an ordinary consequence of imprisonment, not an exceptional circumstance in itself.

The Magistrate applied a 25% discount for the early guilty plea and found special circumstances justifying a reduction in the statutory ratio between the non-parole period and the balance of term. Reasons included the offender's age, the need for rehabilitation, this being her first period of full-time custody, partial cumulation of sentences, and the impact on her children.

Orders Made

  • Offender convicted on all four supply charges (H54202866, Sequences 1 to 4) and sentenced to original terms of 12 months each, reduced to 9 months after the 25% guilty plea discount.
  • Non-parole period of 2 months commencing 28 May 2014, expiring 27 July 2014; balance of term of 7 months expiring 27 February 2015.
  • Sentences for Sequences 1, 2 and 3 to run concurrently; Sequence 4 to be partially cumulated (commencing 14 May 2014 for a fixed term of 1 month).
  • Release to parole directed at the end of the non-parole period, subject to supervision by the Probation and Parole Service and any recommended programmes.
  • Drug exhibits from Sequence 1 forfeited to the Crown and ordered to be destroyed.
  • Convicted of the drug-driving offence (H54118228, Sequence 1) and fined $200.
  • Disqualified from holding any driver or rider licence for three months from 14 May 2014.

Note: On appeal to the District Court on 29 August 2014, the sentences for the supply offences were varied. Sequences 1, 2 and 3 became concurrent suspended sentences of 6 months and 1 day under s 12 of the Crimes (Sentencing Procedure) Act 1999, and Sequence 4 became a 12-month good behaviour bond under s 9.

Key Takeaways

  • In drug supply sentencing, the role played by an offender carries greater weight than the quantity of drugs supplied, particularly where the offender actively arranged, sourced and delivered prohibited drugs.
  • Supplying drugs to an undercover police operative is not a mitigating circumstance. The community harm underlying drug supply offences does not diminish because the buyer turned out to be a law enforcement officer.
  • Hardship to dependent children is a recognised sentencing consideration, but the courts require it to reach a genuinely exceptional level before it will displace an otherwise appropriate term of full-time custody. Ordinary family disruption caused by imprisonment does not meet that threshold.
  • Special circumstances justifying a departure from the statutory non-parole period ratio may be found where factors such as first-time custody, rehabilitation needs, partial cumulation, and the offender's age combine, even where no single factor would alone suffice.
  • Under s 30 of the Drug Misuse and Trafficking Act 1985, supply charges are dealt with summarily unless the prosecution elects otherwise, capping the Local Court's maximum at 2 years imprisonment, well below the 15-year maximum available on indictment.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 25(1), 30
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 12, 50, 51
- Road Transport Act 2013 (NSW), ss 111(1)(a), 204

Cases
- Markarian v The Queen (2005) 228 CLR 357
- Pearce v The Queen (1998) 194 CLR 610
- Nguyen v R [2007] NSWCCA 14
- R v Gip (2006) 161 A Crim R 173
- Hillier v Director of Public Prosecutions [2009] NSWCCA 312
- R v Borkowski [2009] NSWCCA 102
- Blundell v R [2008] NSWCCA 92
- Cahyadi v R [2007] NSWCCA 1
- Ma v R [2007] NSWCCA 240
- Melikian v R [2008] NSWCCA 156
- Mitchell v R [2008] NSWCCA 192
- R v Gao [2007] NSWCCA 343
- R v Gu [2006] NSWCCA 104
- R v Harmouche [2005] NSWCCA 398
- R v Byrne (1998) 104 A Crim R 456
- R v Cacciola (1998) 104 A Crim R 178
- R v Carrion (2000) 49 NSWLR 149
- R v Chan [1999] NSWCCA 103
- R v Dodd (1991) 57 A Crim R 349
- Roberts v R [2007] NSWCCA 112