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District Court 19 June 2015

R v Glen Michael Rootsey

[2015] NSWDC 98

Drugs
ONGOING SUPPLY PROHIBITED DRUGS SUPPLY PROHIBITED DRUGS SENTENCING

Citation: R v Glen Michael Rootsey [2015] NSWDC 98
Court: District Court of New South Wales
Date: 19 June 2015
Judge: Mahony SC DCJ

Background

The offender, a 41-year-old man from Cooma, was charged with two offences under the Drug Misuse and Trafficking Act 1985: ongoing supply of a prohibited drug (heroin) under s 25A(1), and a discrete supply of 2.78 grams of heroin under s 25(1). Three additional supply charges were listed on a Form 1 to be taken into account at sentencing.

The offending arose from a controlled police operation by the Monaro Drug Unit (Strike Force Babyl) between May and July 2014. Over a series of transactions, the offender travelled between Cooma and Canberra to supply heroin to a person known to police. On each occasion he retained a small portion of the drug for his own use. The final transaction, in July 2014, involved a supply of 12.19 grams of heroin for $4,000 deposited into his bank account.

The offender had a history of intermittent heroin use since age 23, periods on a methadone program, and limited prior criminal history. He pleaded guilty and had already served 148 days in custody before being granted Supreme Court bail in February 2015.

  • What sentence was appropriate for the s 25A(1) ongoing supply offence, having regard to the maximum penalty of 20 years imprisonment and the absence of a standard non-parole period?
  • What weight should be given to the offender's personal circumstances, including his addiction history, remorse, rehabilitation steps, and limited prior history?
  • How should the two principal offences be structured to reflect the principles of proportionality and parity under Pearce v R (1998) 194 CLR 610?
  • Whether a suspended sentence was available and appropriate for the s 25A(1) offence under s 12 of the Crimes (Sentencing Procedure) Act 1999.
  • What order should be made under the Confiscation of Proceeds of Crime Act 1989 in respect of $11,050 seized from the offender?

Decision

His Honour accepted that the offending was serious. The offender had participated in a sustained series of heroin supply transactions facilitated by a police-controlled operation, retaining a portion of each supply for his personal use. Three additional Form 1 matters were taken into account incrementally to reflect the full scope of the criminal conduct.

However, the court identified significant mitigating factors. The offender pleaded guilty, had limited prior relevant history, had taken concrete steps toward rehabilitation (including attendance at drug and alcohol counselling and Alcoholics and Narcotics Anonymous meetings), and had the support of family and his employer. His Honour found that his motivation was connected to his own addiction rather than commercial gain, though this did not diminish the objective seriousness of the conduct.

For the s 25(1) offence, the court was satisfied that imprisonment was the only appropriate penalty but sentenced the offender to time already served (148 days). For the more serious s 25A(1) ongoing supply offence, His Honour imposed a term of 18 months imprisonment but suspended it under s 12 of the Crimes (Sentencing Procedure) Act 1999, given the combined weight of the mitigating factors. Release was subject to a good behaviour bond with community corrections supervision and a requirement to engage with drug and alcohol rehabilitation.

The Crown's application for a drug proceeds order of $11,050 under the Confiscation of Proceeds of Crime Act 1989 was not opposed, and the order was made. The three charges on the s 166 Certificate were dismissed following sentence, with the Crown's consent.

Orders Made

  • Convicted of ongoing supply of a prohibited drug (heroin) contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985.
  • Sentenced to 18 months imprisonment, suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999, with release on a good behaviour bond subject to: standard conditions under s 95(a) and (b); compliance with any Community Corrections direction as to drug and alcohol rehabilitation; and reporting to Community Corrections at Cooma within 7 days.
  • Form 1 matters certified as taken into account in sentencing.
  • Convicted of supply of a prohibited drug (heroin) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985; sentenced to a fixed term of 148 days, being time already served.
  • Three offences on the s 166 Certificate dismissed.
  • Drug proceeds order of $11,050 payable to the State of New South Wales under s 29(1) of the Confiscation of Proceeds of Crime Act 1989.

Key Takeaways

  • A suspended sentence under s 12 of the Crimes (Sentencing Procedure) Act 1999 remained available for a s 25A(1) ongoing supply offence where the combination of mitigating factors was sufficiently compelling, even where imprisonment was the only appropriate nominal penalty.
  • Addiction-driven motivation for supply does not negate the objective seriousness of ongoing heroin supply but can properly inform the weight given to personal circumstances at the sentencing stage.
  • Form 1 charges were taken into account incrementally, consistent with the principle that they must genuinely increase the sentence for the principal offence to reflect the totality of offending.
  • Under Pearce v R, sentencing across multiple offences requires attention to proportionality and parity; here, the s 25(1) charge was resolved by time served to avoid a disproportionate cumulative outcome.
  • A drug proceeds order under the Confiscation of Proceeds of Crime Act 1989 was made in respect of the full amount of cash seized, reflecting the court's power to strip proceeds of drug supply even where a custodial sentence is suspended.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 95
- Criminal Procedure Act 1986 (NSW), s 166
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 29(1)

Cases
- Pearce v R (1998) 194 CLR 610
- Veen v R (No. 2) (1998) 164 CLR 465
- R v Carrion (2000) 49 NSWLR 149
- R v Wong [1999] NSWCCA 420
- R v Farah [2005] NSWCCA 67
- Braithwaite v R [2005] NSWCCA 451
- R v Giang [2005] NSWCCA 387
- R v MRN [2006] NSWCCA 155
- R v Burns [2007] NSWCCA 228