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District Court 20 March 2015

R v WOODS

[2015] NSWDC 228

Drugs
CRIMINAL

Citation: R v Woods [2015] NSWDC 228
Court: District Court of NSW
Date: 20 March 2015
Judge: Judge S Norrish QC

Background

The offender, a man in his mid-twenties with no meaningful criminal history, was sentenced on five counts of supplying prohibited drugs, principally MDMA (3,4-methylenedioxyamphetamine). The offending occurred between February and May 2014 in the Sydney area and was uncovered through a dedicated police strike force using undercover operatives.

The offender had previously worked in the mining industry before suffering a back injury at age 26. He subsequently worked as a DJ on the Central Coast, became involved in the party lifestyle, developed a dependency on MDMA, and accumulated a drug debt of approximately $1,700. He gave evidence that associates of the Rebels motorcycle gang pressured him to sell drugs to repay the debt. His drug supplier throughout the relevant period was a person referred to as "Ilich."

The offender entered pleas of guilty at the first reasonable opportunity in the Local Court and was committed for sentence. He had been in custody since 8 May 2014, the date of his arrest on the most serious charge.

  • What sentence was appropriate for five counts of drug supply, including one count of supplying not less than a commercial quantity of MDMA carrying a standard non-parole period of ten years?
  • What discount applied for early pleas of guilty entered at the first reasonable opportunity?
  • How should five additional matters listed on a Form 1 affect the sentence on the principal offence?
  • How should a related proceeds of crime offence (charged on a s 166 certificate under the Commonwealth Criminal Code) be dealt with alongside the state offences?
  • What weight should be given to the offender's personal circumstances, including his drug dependency, the pressure applied by motorcycle gang associates, and the role played by police operatives in escalating the offending?

Decision

Judge Norrish accepted the offender's evidence that he was effectively a middleman, supplied drugs by Ilich and drawn into increasingly serious transactions by undercover police operatives. His Honour characterised the offending as involving escalating criminality over nearly three months, noting that the operatives cultivated the relationship with the offender and encouraged progressively larger supplies.

The offender's personal background attracted meaningful mitigation. His Honour accepted that he had no genuine criminal disposition, had been in legitimate employment until his injury, developed drug dependency, and was under pressure from motorcycle gang associates. The drug debt was modest and the offender's frankness in giving evidence (including correcting an inflated figure in the Community Corrections report) was noted favourably.

Each plea of guilty was entered at the first reasonable opportunity. Applying the guideline judgment in R v Thomson and Houlton, a 25% utilitarian discount was applied to each offence. The five Form 1 matters were taken into account on the principal offence (count 5) in accordance with Attorney-General's Application No 1 of 2002, with the court acknowledging those matters provided context for ongoing criminality but did not greatly aggravate the already substantial principal offence.

The proceeds of crime offence, charged under s 400.8(1) of the Commonwealth Criminal Code, concerned $460 found with what were believed to be MDMA tablets. His Honour sentenced the offender for that matter separately but ordered it to run concurrently with the non-parole period on the principal offence.

Orders Made

  • Count 1 (supply prohibited drug): convicted; 12 months imprisonment, commencing 8 May 2014, expiring 7 May 2015.
  • Count 2 (supply prohibited drug): convicted; 18 months imprisonment, commencing 8 May 2014, expiring 7 November 2015.
  • Count 3 (supply prohibited drug): convicted; 2 years imprisonment, commencing 8 May 2014, expiring 7 May 2016.
  • Count 4 (knowingly take part in supply of prohibited drug): convicted; 2 years imprisonment, commencing 8 May 2014, expiring 7 May 2016.
  • Count 5 (supply not less than commercial quantity of MDMA, incorporating Form 1 matters): convicted; non-parole period of 2 years commencing 8 May 2015 (expiring 7 May 2017), balance of sentence of 2 years and 6 months (expiring 7 November 2019). Total sentence of 5 years and 6 months with an effective non-parole period of 3 years from 8 May 2014.
  • s 166 certificate matter (proceeds of crime, Commonwealth): convicted; 6 months imprisonment commencing 8 May 2015, expiring 7 November 2015, concurrent with the non-parole period on count 5.

Key Takeaways

  • The District Court applied a 25% discount across all counts for pleas entered at the first reasonable opportunity, consistent with the guideline in R v Thomson and Houlton.
  • Under the Form 1 procedure as explained in Attorney-General's Application No 1 of 2002, a sentencing court imposes a sentence only for the principal offence. Additional Form 1 matters inform context and may increase the sentence, but the court does not determine discrete penalties for each listed offence.
  • Where a person charged with serious drug supply was cultivated by undercover police operatives and encouraged to escalate the quantity and frequency of supply, those circumstances can bear on the assessment of the offender's overall culpability and criminality.
  • A genuine drug dependency, combined with external pressure to offend and an absence of prior criminal disposition, can carry meaningful mitigating weight even in cases involving commercial quantities of prohibited drugs.
  • A related Commonwealth proceeds of crime offence dealt with on a s 166 certificate is sentenced discretely, but a sentencing court may order it to run concurrently with the non-parole period imposed on the principal state offence.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 166
- Criminal Code Act 1995 (Cth), s 400.8(1)

Cases
- R v Thomson and Houlton [2000] NSWCCA 309 (guideline judgment on guilty plea discounts)
- Attorney-General's Application No 1 of 2002 (2002) 56 NSWLR 147 (Form 1 procedure)
- Muldrock v R (2011) 244 CLR 120
- Markarian v R (2005) 228 CLR 357
- Pearce v R (1998) 194 CLR 610
- R v Bloomfield (1998) 44 NSWLR 734
- R v Chan [1999] NSWCCA 103
- R v Ellis [2010] NSWCCA 298
- LMN v R [2012] NSWCCA 52
- McBeth v R [2009] NSWCCA 235
- RCW v R (No 2) [2014] NSWCCA 190