Citation: R v Tebbutt aka Karkoe [2015] NSWDC 323
Court: District Court of New South Wales
Date: 24 July 2015
Judge: Judge S Norrish QC
Background
The offender was convicted after a judge-alone trial of supplying amphetamine in a traffickable quantity (97.4 grams) at Broken Hill on 1 August 2013. Judge Norrish had delivered the guilty verdict on 22 May 2015, and the matter returned on 24 July 2015 for sentencing.
The offender appeared unrepresented at both the trial and sentencing proceedings, despite the court repeatedly urging him to obtain legal advice. He eventually consulted a solicitor the day before sentencing, though the court noted this was too late to make any material difference.
A second, summary offence of dealing with proceeds of crime (possession of $2,950 in cash) was also before the court via a section 166 Certificate under the Criminal Procedure Act 1986, allowing the District Court to deal with the related summary matter alongside the principal indictable offence.
Legal Issues
- What sentence was appropriate for supply of amphetamine in a traffickable quantity under the Drug Misuse and Trafficking Act 1985?
- What weight should be given to the offender's criminal history, personal circumstances, and expressed contrition?
- How should the proceeds of crime charge be sentenced in relation to the principal offence?
- What was the correct approach to concurrency or accumulation across the two offences?
Decision
Judge Norrish identified the supply of amphetamine as the principal and far more serious offence, carrying a maximum penalty of 15 years imprisonment. The court accepted that the offender's drug use had its origins in self-medication following a home invasion approximately four years earlier, and that his role in supply was connected in part to his own addiction. The court also accepted his expressed contrition, though noted that his conduct throughout the proceedings had not assisted him.
The offender's prior criminal history (findings of guilt in Victoria and New South Wales from 1996) was treated as irrelevant, given both the minor character of the earlier offending and the substantial time elapsed. The presentence report was accepted as accurate, and the offender's personal circumstances, including the absence of any mental illness and his background in regional communities, were taken into account.
For the proceeds of crime offence, the court imposed 12 months imprisonment, made entirely concurrent with the principal sentence. The court reasoned that the cash was so intimately connected to the drug supply conduct that separate cumulative punishment would not be appropriate.
The principal sentence resulted in a non-parole period expiring on 23 January 2017, with the balance of sentence extending a further two years and three months. The court explained the parole regime in detail to the unrepresented offender, including the consequences of breaching parole conditions.
Orders Made
- The drugs the subject of the supply charge were ordered to be destroyed.
(Note: The full sentencing orders, including the head sentence and non-parole period for the principal offence, appear from the judgment text to have been formally pronounced but were not reproduced in the portion of the decision provided.)
Key Takeaways
- The District Court treated a summary proceeds of crime charge, brought up via a section 166 Certificate, as warranting a fully concurrent sentence where the underlying conduct was inseparable from the principal drug supply offending.
- Where an offender is unrepresented, the sentencing court has a responsibility to ensure relevant personal circumstances are placed before it, including by ordering a presentence report.
- Admissions made from the bar table by an unrepresented offender (including acknowledgment of prior drug supply and the criminal origin of cash) can be taken into account in sentencing, even without formal examination by the Crown.
- Distant and minor prior convictions, separated from current offending by nearly two decades, may carry no weight in a sentencing exercise.
- Expressed contrition can be a mitigating factor, but a court may note when an offender's broader conduct during proceedings has diminished the practical force of that contrition.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 29
- Crimes Act 1900 (NSW), s 193C
- Criminal Procedure Act 1986 (NSW), ss 166, 167
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- R v Carrion (2000) 49 NSWLR 149
- Fayd'Herbe v R [2007] NSWCCA 20
- R v Gip (2006) 161 A Crim R 173
- R v Gu [2006] NSWCCA 104
- Pearce v R (1998) 194 CLR 610
- Veen v R (No 2) (1988) 164 CLR 465