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District Court 2 October 2015

R v Daves

[2015] NSWDC 356

DrugsFraud & dishonesty
CRIMINAL LAW SENTENCE PARTICULAR OFFENCES DRUG OFFENCES SUPPLY PROHIBITED DRUG KNOWINGLY DEAL WITH PROCEEDS OF CRIME

Citation: R v Daves [2015] NSWDC 356
Court: District Court of New South Wales
Date: 2 October 2015
Judge(s): Cogswell SC DCJ

Background

Police stopped the offender on the Oxley Highway after observing him travelling at between 140 and 150 kilometres per hour. Officers noted visible signs of intoxication and searched the vehicle, finding glass crack pipes, digital scales, resealable bags, cocaine, cannabis, and five containers holding just over 45 grams of methylamphetamine at 74% purity. A further $65,000 in cash was located in the tyre well of the car.

The offender, a 55-year-old man, was charged with two principal offences: supplying a prohibited drug (methylamphetamine) in a quantity less than the commercial quantity, and knowingly dealing with the proceeds of crime. He also asked the court to take into account, on a Form 1, two further offences of supplying cocaine and possessing cannabis.

The offender had a criminal history including drug-related convictions in Queensland in 2007, though no prior convictions for drug supply. He had developed chronic back pain over approximately ten years, was receiving a disability support pension, and had commenced a methadone program. A clinical psychologist provided a report identifying an anxiety disorder, depressed mood, an addictive personality trait, and impaired decision-making linked to both mental health and drug use.

  • What was the appropriate objective seriousness of the two principal offences?
  • What weight should be given to the offender's physical disability, mental health condition, and addiction history in mitigation?
  • What discount applied to the sentences given that guilty pleas were not entered at the earliest opportunity?
  • Whether special circumstances existed justifying a longer-than-standard ratio of parole to non-parole period.

Decision

Cogswell SC DCJ assessed both offences as falling in the middle range of objective seriousness. The quantity of methylamphetamine was significant (15 times the trafficable amount, nine times the indictable quantity), and the cash found indicated involvement in drug dealing rather than mere personal use. Each offence carried a maximum of 15 years imprisonment, which the court noted Parliament intended sentencing judges to treat as a meaningful reference point.

The court accepted genuine remorse, efforts at rehabilitation while on bail, and the hardship the offender's physical disability would cause during imprisonment. However, the court rejected the submission that the physical disability was so exceptional as to warrant a non-custodial sentence, and placed limited weight on the psychologist's opinion that mental health issues impaired the offender's decision-making, noting that anxiety and depression commonly accompany drug addiction and that significant weight on such grounds would substantially reduce sentences across many comparable cases.

A discount of 10% was applied to reflect the guilty pleas, which had not been entered at the earliest opportunity. The court found special circumstances existed, given the offender's need for ongoing rehabilitation in the community and the additional hardship he would face in custody because of his disabilities. This finding supported a non-parole period proportionally lower than the statutory default of three-quarters of the head sentence.

The court aggregated the two sentences into a single term of five and a half years imprisonment, with a non-parole period of two and a half years. His Honour expressly noted that the non-parole period could have been as high as approximately four years and one month, but reduced it significantly in light of the offender's disabilities and rehabilitation progress.

Orders Made

  • Aggregate sentence of five and a half years imprisonment, backdated to commence 6 July 2015, expiring 5 January 2021.
  • Non-parole period of two and a half years, commencing 6 July 2015, expiring 5 January 2018.
  • Form 1 offences (supply of cocaine and possession of cannabis) taken into account in sentencing for the principal drug supply offence.
  • Conviction formally recorded for both principal offences.

Key Takeaways

  • The District Court confirmed that a serious physical disability, while relevant to the hardship of imprisonment and the appropriate length of the non-parole period, does not automatically warrant a non-custodial sentence where the offending is objectively serious.
  • A finding of special circumstances under the sentencing framework can rest on the combined effect of an offender's rehabilitation progress and the additional difficulties they will face in custody, producing a non-parole period materially shorter than the statutory default ratio.
  • Limited weight attaches to evidence that drug-related anxiety and depression impaired an offender's decision-making where such conditions are commonly associated with drug addiction generally; treating them as significant mitigation would risk systematically discounting sentences in the same cohort of cases.
  • Guilty pleas entered after the earliest opportunity attracted only a 10% discount rather than the maximum available, reflecting the timing of the plea.
  • Middle-range objective seriousness for a supply offence involving quantities well above the indictable threshold, combined with indicators of dealing (scales, packaging, and cash), does not place the offending at the lower end of the sentencing range merely because the quantity falls short of a commercial quantity.

Legislation and Cases Referenced

Legislation:
- Drugs Misuse and Trafficking Act 1985 (NSW), s 25
- Crimes Act 1900 (NSW), s 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32

Cases:
- R v Clark (Court of Criminal Appeal (NSW), 15 March 1990, unreported)