AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 11 February 2016

R v LOWE, Cole Andrew

[2016] NSWDC 386

Drugs
CRIMINAL SUPPLY PROHIBITED DRUG METHYLAMPHETAMINE METHORPHAN MULTIPLE FORM 1 OFFENCES SENTENCE

Citation: R v LOWE, Cole Andrew [2016] NSWDC 386
Court: District Court of New South Wales
Date: 11 February 2016
Judge: Judge S Norrish QC

Background

The offender, Cole Andrew Lowe, appeared for sentence on three charges of supplying a prohibited drug, contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), each carrying a maximum of 15 years imprisonment. The charges arose from police executing search warrants in September 2014 at two addresses, including the home of his mother. The searches uncovered significant quantities of methylamphetamine and methorphan, a large amount of cash, and various other items.

The first charge related to the ongoing supply of methylamphetamine over a period the offender conceded was at least 12 months. The second arose from the deemed supply of 46.2 grams of methylamphetamine found at the search. The third related to 147.84 grams of methorphan, a substance the court noted was reportedly sold as "ecstasy," though limited evidence was available about its effects.

Linked to the principal offence were three Form 1 matters: possession of goods reasonably suspected of being stolen, dealing with proceeds of crime (in excess of $95,000 in cash), and possession of a further prohibited drug (25C-NBOME, 166 grams). The offender had pleaded guilty at an early stage and gave evidence before the court, including about attempts at rehabilitation undertaken in a residential facility.

  • The appropriate head sentence and non-parole period for three charges of supplying prohibited drugs, taking into account the Form 1 matters
  • The weight to be given to an early guilty plea in reducing sentence
  • Whether time spent in a quasi-custodial rehabilitation setting warranted a reduction in the sentence beyond the standard 50% non-parole period
  • The relevance of the offender's ADHD diagnosis to sentencing, including its effect on culpability and the weight to be given to personal deterrence
  • The application of the totality principle across the multiple offences and Form 1 matters

Decision

Judge Norrish imposed a total sentence of five years imprisonment with a non-parole period of two years and six months. The sentence was backdated by six months to credit time already served in custody. The court also gave credit beyond the standard 50% reduction for time spent in a residential rehabilitation centre, treating that setting as quasi-custodial.

On the Form 1 matters, the court applied the Court of Criminal Appeal's guideline judgment, which requires greater weight to be given to personal deterrence and retributive considerations where Form 1 offences are present. The court noted that the additional weight attributable to Form 1 matters need not be small and can be substantial, particularly where, as here, the dealing with proceeds of crime offence reflected the scale of the offending.

Regarding ADHD, the court accepted the diagnosis as a form of mental disability and acknowledged it may have contributed indirectly to the offender's drug use and offending. However, the court found no direct causal connection between the ADHD and the offending, and noted that the condition in fact warranted greater weight on personal deterrence given the risk of impulsive conduct. The court did not treat it as a significant mitigating factor in the overall assessment.

The court expressly declined to accept the defence submission that a sentence of two years or less was appropriate, explaining that the volume of drugs, the sustained nature of the supply, the cash proceeds, and the Form 1 offences collectively required a more substantial term.

Orders Made

  • Sentence of five years imprisonment imposed, backdated six months
  • Non-parole period fixed at two years and six months, calculated to expire on 10 February 2018
  • Credit given for time in custody and additional credit for quasi-custodial rehabilitation period
  • Backup charges under section 166 (Sequences 7 and 8) withdrawn and dismissed
  • Drug destruction order made

Key Takeaways

  • The District Court confirmed that Form 1 matters, particularly dealing with proceeds of crime on a substantial scale, can justify a significant uplift from the sentence that would otherwise apply to the principal offence alone, not merely a token addition.
  • Where an offender's mental condition lacks a direct causal connection to the offending, a sentencing court may give it only limited mitigating weight, and may in fact treat it as a basis for increasing the emphasis on personal deterrence.
  • A diagnosis of ADHD was accepted as a form of mental disability within the meaning discussed in DPP (Cth) v De La Rosa, but the court distinguished that case by observing that a "relevant mental illness or disability" does not automatically translate into significant mitigation without evidence of a causal link to the offending.
  • Time spent in a residential rehabilitation facility can attract quasi-custodial credit that goes beyond the standard 50% non-parole period benchmark, recognising the coercive and rehabilitative constraints of such settings.
  • Sustained drug supply over an extended period, combined with large cash proceeds and multiple co-offences, will generally attract a sentence well above the two-year threshold even where an early guilty plea and rehabilitation efforts are present.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Fayd'herbe v R [2007] NSWCCA 20
- Pearce v R (1998) 194 CLR 610
- Polley v R [2015] NSWCCA 247
- R v Blackman and Walters [2001] NSWCCA 121
- R v Carrion [2000] NSWCCA 191
- R v Gipp [2006] NSWCCA 115
- R v Gu [2006] NSWCCA 104
- Veen v The Queen (No 2) [1988] HCA 14