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District Court 31 July 2015

R v SALEH

[2015] NSWDC 319

DrugsFraud & dishonesty
CRIMINAL

Citation: R v Saleh [2015] NSWDC 319
Court: District Court of New South Wales
Date: 31 July 2015
Judge: Judge S Norrish QC

Background

The offender, a man aged 23 at the time of sentencing, was stopped by police on the Sturt Highway near Yarragundry (outside Wagga Wagga) on 15 October 2014. Highway patrol officers pulled over the vehicle after noticing it was displaying South Australian plates and that the driver was on a provisional licence without P plates displayed. A search of the car revealed $20,000 in cash in the glove box and, concealed in the spare tyre well, a bag containing two plastic containers of amphetamine totalling 856.6 grams. Fingerprints consistent with the offender's were found on the packaging.

The offender faced two charges: supplying not less than a commercial quantity of amphetamine, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985, and dealing with $2,000 in cash on reasonable grounds to suspect it was the proceeds of crime, contrary to s 193C of the Crimes Act 1900. The drug quantity (856.6 grams) exceeded the commercial threshold of 250 grams but fell below the large commercial threshold of one kilogram.

The offender had pleaded guilty to the indictable matter at the Local Court and was committed to the District Court for sentence. He had been in continuous custody since the date of arrest.

  • What sentence was appropriate for supply of a commercial quantity of amphetamine, having regard to the quantity involved, the offender's criminal history, his plea of guilty, and his personal circumstances?
  • What discount applied to the sentence by reason of the early guilty plea?
  • How should the sentence for the proceeds of crime offence be structured relative to the principal drug supply sentence?
  • Was partial accumulation of the two sentences appropriate under the totality principle?

Decision

The court accepted that the offending fell squarely within the commercial quantity range, with the drug quantity significantly exceeding the commercial threshold. The amphetamine was of relatively low purity (13.5% and 12% respectively), a factor relevant to objective seriousness, but the court noted the offender's role appeared to be as a courier transporting the drugs and cash on behalf of others. The presence of $20,000 in cash indicated a degree of trust placed in the offender by those higher in the supply chain.

The offender received a 25% discount on the sentence for the utilitarian value of his early guilty plea. His criminal history, while not described as extensive, included prior terms of imprisonment for assault, intimidation, and an offence of threatening to prevent a person from providing information to police. The court did not treat his history as a significant aggravating factor but noted it precluded the most favourable assessment of his prospects.

The court sentenced the offender on the summary proceeds of crime matter separately and then partially accumulated the principal drug supply sentence upon it, consistent with the principles in Pearce v The Queen (1998) 194 CLR 610 and relevant Court of Criminal Appeal authority. The partial accumulation reflected the fact that, while the offences arose from the same episode, they constituted distinct criminal acts.

Orders Made

  • For the principal offence (supplying not less than a commercial quantity of amphetamine): imprisonment of five years nine months, with a non-parole period of three years commencing 15 April 2015 and expiring 14 October 2017; balance of sentence expiring 14 July 2020.
  • Time in pre-sentence custody (from 15 October 2014) taken into account.
  • Confiscation order made by consent.
  • Partial accumulation of the drug supply sentence upon the sentence for the proceeds of crime matter.

Key Takeaways

  • The District Court applied a 25% sentence discount for an early guilty plea entered at the Local Court, consistent with the utilitarian value principle from cases such as R v Bloomfield (1998) 44 NSWLR 734.
  • Where an offender's role is that of a courier transporting drugs and cash for others, this does not remove the offending from the commercial range but remains relevant to the assessment of objective seriousness.
  • Partial accumulation of sentences for separate offences arising from the same episode is appropriate under Pearce principles where the offences are legally and factually distinct, even if closely connected in time and place.
  • Low drug purity is a relevant consideration in sentencing for supply offences, as it bears on the actual quantity of pure drug involved and thus on the harm potential of the supply.
  • A prior criminal history that includes custodial sentences, though not described as extensive, limits the weight available to be given to prospects of rehabilitation and good character in mitigation.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1900 (NSW), s 193C
- Criminal Procedure Act 1986 (NSW), ss 166, 167
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Cases
- Pearce v The Queen (1998) 194 CLR 610
- Muldrock v The Queen [2011] HCA 39
- DPP v De La Rosa [2010] NSWCCA 194
- R v Bloomfield (1998) 44 NSWLR 734
- R v Blackman and Walters [2001] NSWCCA 121
- R v Heard [2000] NSWCCA 107
- R v Morres George [2002] NSWCCA 419
- RCW v R (No 2) [2013] NSWCCA 190
- R v Shi [2004] NSWCCA 135