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District Court 12 February 2016

R v HONEYSETT, Mitchell Leonard

[2016] NSWDC 387

Drugs
CRIMINAL KNOWINGLY TAKE PART IN SUPPLY OF MDMA ONGOING SUPPLY OF PROHIBITED DRUGS SUPPLY CANNABIS SENTENCE OPPORTUNISTIC ROLE

Citation: R v Honeysett, Mitchell Leonard [2016] NSWDC 387
Court: District Court of NSW
Date: 12 February 2016
Judge: Judge S Norrish QC

Background

The offender, a young Aboriginal man residing in a public housing area of Wagga Wagga, was caught in an undercover police operation after being introduced to undercover officers through an associate. He initially supplied small quantities of cannabis to the officers, and the relationship escalated at their request to include the supply of MDMA and a further prohibited drug, 25B-NBOMe.

Across the relevant period (approximately March to June 2015), the offender was involved in ten individual cannabis supplies totalling nearly 400 grams, two supplies of MDMA (each around 6.2 grams), two further supplies on a separate certificate relating to cannabis, and ongoing supply of prohibited drugs on three or more occasions for financial reward. He received approximately $8,540 in total across the various transactions.

The offender pleaded guilty at an early stage to all five offences. The court was asked to impose a sentence that properly reflected the objective seriousness of the conduct while accounting for his personal circumstances, including evidence concerning his intellectual functioning.

  • What was the appropriate head sentence and non-parole period for each offence, taking into account the offender's opportunistic and reactive role?
  • How should the principles of totality and concurrency apply across five related drug supply offences arising from the same undercover operation?
  • What weight should general deterrence receive given evidence about the offender's intellectual functioning?
  • What discount applied for early pleas of guilty, consistent with R v Thomson; R v Houlton?
  • Whether a drug proceeds order in the amount of $8,540 was properly supported by the evidence and legislation.

Decision

Judge Norrish accepted that the offender occupied an opportunistic, mid-to-low level role in a chain of supply. The court found that he did not initiate the move to MDMA supply; he responded to escalating requests from undercover officers. While no issue of entrapment was raised, the court noted that the officer-initiated escalation was a relevant consideration going to the offender's moral culpability, without diminishing the objective seriousness of the offences.

The court took into account the offender's background, including his upbringing and the environment of Ashmont where prohibited drug use was, on the court's extensive local experience, widespread in certain segments of the community. His intellectual functioning was also raised. The court observed that reduced intellectual functioning can affect the weight given to general deterrence as a sentencing purpose, consistent with established authority, though it does not eliminate it entirely.

An early guilty plea discount of 25% was applied to all offences, consistent with R v Thomson; R v Houlton. Given that all offences arose from the same course of conduct with the same undercover officers, the court applied substantial concurrency across the sentences, reflecting the totality principle and the interconnected nature of the offending.

The court reserved judgment on the drug proceeds order of $8,540, noting that it was not sufficient that the parties consented to the order; the court needed to be independently satisfied that the legal requirements under the relevant legislation were met, including that the offender had in fact received and retained the benefit of the funds.

Orders Made

• Convicted on Sequence 9; sentenced to 12 months imprisonment from 16 October 2015 to 15 October 2016
• Convicted on Sequence 11; sentenced to 12 months imprisonment from 16 October 2015 to 15 October 2016
• Convicted on Sequence 18; sentenced to a non-parole period of 10 months from 16 December 2015 to 15 October 2016
• Released to parole on 15 October 2016
• Fixed balance of sentence of 1 year 4 months expiring 15 February 2018
• Effective non-parole period of 1 year 4 months
• Effective balance of sentence of 1 year 4 months
• Total sentence of 2 years 8 months with 25% discount for guilty pleas
• Leave granted for summons to be filed regarding drug proceeds order under section 29 (decision on $8,540 order reserved)

The judgment records the following sentencing details:

  • Total effective sentence of two years and eight months imprisonment
  • Eligibility for release on parole in October 2016
  • A 25% discount applied to all sentences for early guilty pleas
  • The drug proceeds order of $8,540 was reserved for further consideration by the court

Key Takeaways

  • An offender's reactive, request-driven role in an undercover drug operation is a relevant mitigating factor going to moral culpability, even where no entrapment argument is available.
  • Where multiple drug supply offences arise from the same ongoing course of conduct with the same undercover officers, substantial concurrency in sentencing is appropriate to reflect the totality principle.
  • Reduced intellectual functioning in an offender can diminish the weight given to general deterrence as a sentencing purpose, consistent with the approach in R v Engert and related authorities, though the sentencing court retains discretion.
  • Under R v Thomson; R v Houlton, a 25% discount for an early guilty plea remains a well-established benchmark in NSW sentencing.
  • The District Court declined to make a drug proceeds order on the parties' consent alone, emphasising that judicial satisfaction with the legislative requirements is independently necessary regardless of agreement between the Crown and the offender.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), ss 166, 167
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)

Cases:
- R v Thomson; R v Houlton [2000] 49 NSWCCA 309
- Pearce v R (1998) 194 CLR 610
- DPP (Cth) v De La Rosa [2010] HCA 194
- Scognamiglio (1991) 56 A Crim R 81
- R v Engert (1995) 84 Crim R 67
- R v Israil [2002] NSWCCA 255
- R v Hemsley [2004] NSWCCA 228
- R v Bloomfield [1998] 44 NSWSC 342
- R v Clark (NSWCCA, unreported, 5 March 1990)
- R v Mirza [2007] NSWCCA 257
- Fayd'Herbe v R [2007] NSWCCA 20
- Regina v Hoon; Regina v Pouoa [2000] NSWCCA 137
- R v Giang [2001] NSWCCA 276
- Polley v R [2015] NSWCCA 247