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District Court 19 August 2016

Regina v Lee Clark

[2016] NSWDC 174

DrugsFraud & dishonesty
CRIMINAL LAW PROCEEDS OF CRIME DRUGS POSSESSION SUPPLY ONGOING SUPPLY

Citation: Regina v Lee Clark [2016] NSWDC 174
Court: District Court of New South Wales
Date: 19 August 2016
Judge: Judge AC Scotting

Background

The offender was a personal trainer working at a gym in Bondi Junction who, between February and March 2014, engaged in large-scale drug supply from his home in Randwick and a rented garage in Paddington. Police surveillance, including listening devices and telephone intercepts, captured him supplying cocaine, MDMA, and anabolic steroids to a network of buyers. He also had approximately five people working beneath him, distributing cocaine they obtained from him to end-users.

On 26 March 2014, police executed search warrants on the offender's home, a safety deposit box at a Camperdown storage facility, and the Paddington garage. They recovered $120,100 in cash from the safety deposit box and $23,880 at the offender's home. The garage contained a hydraulic pill press, cutting agents, and commercial quantities of cocaine, MDMA, and steroids. The offender had also discussed using third parties to purchase vehicles with cash in instalments below $10,000 to avoid detection by the Australian Taxation Office.

The offender had been declared bankrupt in January 2014, shortly before the surveillance period began. He pleaded guilty in the Local Court and appeared in the District Court for sentencing. He also offered assistance to authorities, which was a factor taken into account at sentence.

  • What sentences were appropriate for five drug and proceeds of crime offences, including three counts of supply of a commercial quantity, one count of ongoing supply, and one count of dealing with proceeds of crime exceeding $100,000?
  • What discount should apply to reflect the guilty pleas?
  • Whether special circumstances existed to justify reducing the non-parole period below the statutory ratio.
  • How the totality principle should apply across multiple concurrent and cumulative sentences.
  • What weight to give the offender's offer of assistance, subjective circumstances (including first time in custody, addiction, remorse, and rehabilitation prospects), and the need for general and specific deterrence.

Decision

Judge Scotting found that the offending was serious and sustained. The drug supply operation was commercial in scale, involved multiple substances at or above commercial quantities, and featured an organised distribution network. The proceeds of crime offence reflected deliberate steps to conceal the source of drug funds, including plans to structure cash payments to avoid regulatory scrutiny.

The court applied a 25% discount to the head sentences on each count to reflect the early guilty pleas, consistent with the principles in R v Thomson and Houlton. The court also gave some weight to the offender's offer of assistance to authorities, though the judgment does not elaborate on the extent of that assistance or its ultimate utility.

In assessing the subjective case, the court accepted that the offender was a first-time custodial offender, had genuine remorse, suffered from drug and gambling addictions and depression, and held good prospects of rehabilitation. These factors were treated as persuasive but subsidiary to the court's primary duty to impose punishment of appropriate severity. The need for general deterrence and denunciation of large-scale commercial drug supply weighed heavily in the sentence.

The court found special circumstances under the sentencing legislation, which allowed it to reduce the non-parole period below the standard one-third ratio. The sentences were structured cumulatively and concurrently to produce an overall effective sentence of eight years imprisonment with a five-year non-parole period, applying the totality principle to ensure the aggregate was not disproportionate to the overall criminality.

Orders Made

  • Count 1 (dealing with proceeds of crime, s 400.4(1) Criminal Code 1995 (Cth)): 2 years and 6 months imprisonment. No recognizance release order made.
  • Count 2 (supply commercial quantity cocaine, s 25(2) DMTA): 4 years imprisonment, non-parole period of 2 years and 8 months, commencing 26 March 2015.
  • Count 3 (supply commercial quantity MDMA, s 25(2) DMTA): 4 years imprisonment, non-parole period of 2 years and 8 months, commencing 26 September 2015.
  • Count 5 (ongoing supply, s 25A DMTA): 3 years imprisonment, non-parole period of 2 years, commencing 26 September 2016.
  • Count 4 (supply commercial quantity steroids, s 25(2) DMTA): 4 years and 6 months imprisonment, non-parole period of 1 year and 6 months, commencing 26 September 2017.
  • Three Form 1 matters (supply indictable quantity) taken into account.
  • Overall effective sentence: 8 years imprisonment with a non-parole period of 5 years from 26 March 2014; eligible for parole on 25 March 2019.

Key Takeaways

  • Sentencing for commercial-scale drug supply must give primary weight to general deterrence and denunciation, even where the offender presents strong subjective circumstances including remorse, first-time custody status, and genuine rehabilitation prospects.
  • A 25% guilty plea discount applied across all counts, consistent with the established NSW approach requiring sentencing courts to identify the discount and apply it to a notional head sentence before arriving at the final term.
  • Special circumstances were established where a first-time custodial offender required treatment for addiction and depression, justifying a reduction in the non-parole period below the standard statutory ratio.
  • Under the totality principle, structuring multiple cumulative sentences requires the court to step back and ensure the aggregate sentence is proportionate to the offender's overall criminality, not merely the sum of individual offences.
  • The proceeds of crime count under the Commonwealth Criminal Code attracted a separate federal sentence; the District Court declined to make a recognizance release order for that count because the offender would be serving concurrent State sentences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 16A, 17A(1), 19AH, 19AHA
- Criminal Code Act 1995 (Cth), s 400.4(1)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2), 25A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 3A, 5, 21A

Cases:
- Veen v R (No 2) (1988) 164 CLR 465
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v McNaughton (2006) 66 NSWLR 566
- Baumer v R (1988) 166 CLR 51
- Hili v The Queen (2010) 242 CLR 520
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Wong v The Queen (2001) 207 CLR 584
- Muldrock v R (2011) 244 CLR 120
- Cameron v The Queen (2002) 209 CLR 339
- R v Borkowski (2009) 195 A Crim R 1
- R v Ly [2014] NSWCCA 78
- BW v R [2011] NSWCCA 176
- R v Wilkinson (No 5) [2009] NSWSC 432
- Palijan v R [2010] NSWCCA 142
- DPP (Cth) v El Karhani (1990) 21 NSWLR 370
- R v Paull (1990) 20 NSWLR 427
- R v Scognamiglio (1991) 56 A Crim R 81
- R v Wright (1997) 93 A Crim R 48
- R v Lawrence [2005] NSWCCA 91
- Putland v The Queen (2004) 218 CLR 174