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District Court 10 June 2016

R v Julian Edward Abraham

[2016] NSWDC 106

Drugs
OFFENDER AGGREGATE SENTENCE.

Citation: R v Julian Edward Abraham [2016] NSWDC 106
Court: District Court of NSW
Date: 10 June 2016
Judge(s): Mahony SC DCJ

Background

A 25-year-old offender pleaded guilty in Queanbeyan Local Court to three charges of supplying prohibited drugs, arising from a single operation on 27 August 2015. The charges covered a large commercial quantity of MDMA (681.5 grams), a commercial quantity of cocaine (284 grams), and a quantity of methylamphetamine (56.8 grams). The offender was committed to the District Court for sentencing.

The offences occurred during a controlled police operation targeting a co-offender, Benjamin Miles. The offender's role was to transport the drugs from Canberra to the Snowy Mountains region and assist in the transactions. He was arrested at a car park near the Bullocks Flat Ski Tube Station while the actual drug exchanges were carried out by the co-offender.

The offender had no prior criminal history. He reported that a substantial drug debt had led him to participate in the supply operation, and he claimed he received no financial reward beyond obtaining drugs for his own use. Expert and pre-sentence report evidence before the court addressed his personal history, drug dependency, mental health, and prospects for rehabilitation.

  • What aggregate sentence was appropriate for three offences of drug supply, including one attracting a standard non-parole period of 15 years and a maximum of life imprisonment?
  • Whether special circumstances existed under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 to justify a longer-than-usual balance of term.
  • What weight to give to the offender's subjective circumstances, including drug dependency, the absence of prior convictions, a guilty plea, and prospects for rehabilitation.
  • Whether parity with the co-offender's sentence was a relevant consideration.

Decision

Mahony SC DCJ accepted that, while the offences were objectively serious given the quantities involved and the commercial context, the offender's role was considerably less culpable than that of the co-offender, Benjamin Miles. The offender was a participant in the transactions rather than the principal operator, and the court took account of the guilty plea, the absence of any prior criminal record, and the evidence of genuine remorse.

The court gave significant weight to the offender's personal circumstances. Expert evidence from Professor Ogloff and the pre-sentence report documented a history of problematic drug use, mental health difficulties, and a degree of pressure from a drug supplier, though the court did not treat those pressures as amounting to a complete excuse. The offender's expressed commitment to rehabilitation and his abstinence since entering custody were noted as genuine positives.

On the question of parity, the court accepted the defence submission that meaningful comparison with the co-offender's sentence had limited utility. The co-offender's objective culpability was considerably greater, and the subjective circumstances of the two men differed materially.

The court found special circumstances, justifying a non-parole period that was proportionately shorter than the statutory norm, to allow for a meaningful period of supervised parole to support the offender's rehabilitation. Individual sentences were imposed for each count, with the aggregate sentence reflecting the totality of the conduct.

Orders Made

  • Convicted on Count 1: supply prohibited drug, large commercial quantity of MDMA, 27 August 2015 (s 25(2), Drug Misuse and Trafficking Act 1985) -- 5 years imprisonment with a non-parole period of 2 years and 6 months.
  • Convicted on Count 2: supply prohibited drug, commercial quantity of cocaine, 27 August 2015 (s 25(2), DMTA) -- 2 years imprisonment with a non-parole period of 12 months.
  • Convicted on Count 3: supply prohibited drug, methylamphetamine, 27 August 2015 (s 25(1), DMTA) -- 12 months imprisonment.
  • Aggregate non-parole period of 2 years and 6 months, commencing 27 August 2015 and expiring 26 February 2018.
  • Balance of term of 2 years, commencing 27 February 2018 and expiring 26 February 2020.
  • Total term of imprisonment: 4 years and 6 months.
  • All prohibited drugs the subject of the offences to be destroyed.

Key Takeaways

  • The District Court confirmed that a lesser role in a co-offending arrangement can significantly reduce objective culpability, even where the quantities of drugs involved are at a serious level.
  • Special circumstances under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 were established where evidence of genuine rehabilitation needs and a lack of prior offending supported a longer supervised release period.
  • Parity with a co-offender's sentence carries limited weight where the respective roles and subjective circumstances differ materially; the sentencing court treated each offender's position on its own merits.
  • Drug dependency and financial pressure from a supplier may inform the sentencing assessment of an offender's circumstances, without operating as a complete mitigating factor where participation in large-scale commercial supply is established.
  • An early guilty plea, the absence of prior convictions, expert evidence of rehabilitation prospects, and demonstrated abstinence in custody were all treated as relevant to the construction of an appropriate aggregate sentence.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1) and 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2B)

Cases:
- Briouzguine v R [2014] NSWCCA 264
- JM v R [2014] NSWCCA 297
- McIntosh v R [2015] NSWCCA 184
- R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41
- R v Caldwell [2016] NSWCCA 55
- R v Van Ryn [2016] NSWCCA 1