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District Court 10 June 2016

R v Benjamin Adam Miles

[2016] NSWDC 105

Drugs
ONGOING DRUG SUPPLY MULTIPLE DRUG SUPPLY OFFENCES AGGREGATE SENTENCE

Citation: R v Benjamin Adam Miles [2016] NSWDC 105
Court: District Court of New South Wales
Date: 10 June 2016
Judge: Mahony SC DCJ

Background

NSW Police established Strikeforce Hiems in June 2015 to investigate drug supply in Jindabyne during the snow season. Following an authorised controlled operation, a 25-year-old offender was identified as a significant drug supplier operating in the area. Police conducted multiple controlled purchases using an undercover operative over the course of nearly two months.

Between 2 July and 27 August 2015, the offender supplied large quantities of MDMA, cocaine, and methylamphetamine across a series of transactions. The amounts involved were substantial: the MDMA supplied across the charged counts exceeded one kilogram in total, the cocaine exceeded 280 grams, and the methylamphetamine exceeded 56 grams. The offender was arrested on 27 August 2015 and remained in custody from that date.

The offender pleaded guilty on 10 December 2015 to five counts under the Drug Misuse and Trafficking Act 1985 (DMTA), and asked the court to take five additional matters into account on a Form 1. A co-offender, charged in relation to the events of 27 August 2015 only, was sentenced at the same time.

  • What aggregate sentence was appropriate for five drug supply offences of varying seriousness, including two counts of supplying a large commercial quantity of MDMA (each attracting a maximum of life imprisonment and a 15-year standard non-parole period)?
  • How should the principle of totality be applied when imposing an aggregate sentence across multiple serious drug offences?
  • What discount was appropriate for an early guilty plea?
  • Whether special circumstances under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 existed, warranting a non-parole period less than the standard three-quarters of the total term.

Decision

The court sentenced the offender on an aggregate basis across all five counts, a sentencing approach that required careful attention to the totality principle to ensure the combined sentence was not crushing or disproportionate to the overall criminality. The offending was characterised as serious commercial drug supply, reflecting an organised operation with a wide customer base, high-purity drugs, and the offender's active encouragement of further purchases by the operative.

The court applied a 25% discount to reflect the offender's early guilty plea. The judge found special circumstances warranted a longer-than-standard balance of term, given the extent of the offender's rehabilitation needs and his time spent in custody. This resulted in a non-parole period that was proportionally shorter than the default ratio under the Crimes (Sentencing Procedure) Act.

The court also made a drug proceeds order under the Confiscation of Proceeds of Crime Act 1989, requiring the offender to pay $103,040.00 to the State of New South Wales, reflecting the proceeds derived from the supply offences.

Orders Made

  • Convicted on all five counts (Counts 1 to 5) under the DMTA.
  • Aggregate non-parole period of 4 years and 6 months, commencing 27 August 2015 and expiring 26 February 2020.
  • Balance of term of 3 years and 6 months, commencing 27 February 2020 and expiring 26 August 2023.
  • Total term of imprisonment: 8 years.
  • Ten matters referred to in the s 166 Certificate withdrawn and dismissed.
  • Drug proceeds order of $103,040.00 payable to the State of New South Wales under s 29 of the Confiscation of Proceeds of Crime Act 1989.
  • All prohibited drugs the subject of the offences to be destroyed.

Key Takeaways

  • The District Court applied the totality principle when constructing an aggregate sentence across multiple serious drug supply offences, ensuring the combined sentence reflected the overall criminality without being disproportionately severe.
  • A 25% sentencing discount was available for an early guilty plea entered in December 2015, consistent with established principles under the Crimes (Sentencing Procedure) Act 1999.
  • Special circumstances under s 44(2B) of the Crimes (Sentencing Procedure) Act were found to exist, permitting a non-parole period that represented less than three-quarters of the total term. This reflects that rehabilitation considerations and custodial history can justify departure from the standard ratio.
  • Under s 29 of the Confiscation of Proceeds of Crime Act 1989, a drug proceeds order was made alongside the custodial sentence, demonstrating that financial orders are available in addition to imprisonment for serious supply offences.
  • Supply offences involving large commercial quantities of MDMA carry a maximum penalty of life imprisonment and a 15-year standard non-parole period, placing them among the most serious drug offences on the NSW sentencing spectrum.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2), 25A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2B)
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 29

Cases:
- Briouzguine v R [2014] NSWCCA 264
- JM v R [2014] NSWCCA 297
- McIntosh v R [2015] NSWCCA 184
- Mill v The Queen (1988) 166 CLR 59
- R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41
- R v Cacciola (1998) 104 ACrimR 178
- R v Caldwell [2016] NSWCCA 55
- R v Dang [2005] NSWCCA 430
- R v Harmouche (2005) 158 ACrimR 357
- R v Rae [2013] NSWCCA 9
- R v Ramos (2000) 112 ACrimR 339
- R v Thompson (unreported, 4 April 1991, NSWCCA)
- R v Van Ryn [2016] NSWCCA 1
- R v Wong [1999] NSWCCA 420