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District Court 15 April 2016

R v SINGH, Patrick

[2016] NSWDC 390

DrugsFirearms & weapons
CRIMINAL COCAINE SUPPLY PROHIBITED DRUG MDMA POSSESS PROHIBITED WEAPON SENTENCE

Citation: R v Singh, Patrick [2016] NSWDC 390
Court: District Court of New South Wales
Date: 15 April 2016
Judge: Judge S Norrish QC

Background

The offender, Patrick Kishor Singh, appeared for sentence on seven offences committed between May and December 2007. The offences spanned drug supply, drug manufacture, and possession of unauthorised firearms and prohibited weapons. By the time of sentencing in 2016, nearly nine years had elapsed since the offending occurred.

The charges included supplying a large commercial quantity of methylamphetamine, supplying commercial and indictable quantities of cocaine on multiple occasions, taking part in or attempting to manufacture a prohibited drug, offering to supply a large commercial quantity of a prohibited drug, and possessing an unauthorised pistol. The offender also faced four separate Forms 1, which are lists of additional charges taken into account at sentencing without separate convictions being recorded.

A notable feature of the matter was that some of the offending occurred while the offender was on home detention bail for prior interstate offences. One associated person, Igor Polikov, had been sentenced in 2011 to a comparatively short term for a single deemed-supply charge, a circumstance the court noted without being able to explain the discrepancy in prosecutorial approach.

  • What discount was appropriate for guilty pleas, given the complexity and delay in the proceedings?
  • How should the court treat the substantial passage of time between the offending (2007) and sentencing (2016)?
  • How should the Form 1 matters be assessed in the context of the principal offences?
  • How should the principle of totality apply across seven principal offences with four Forms 1?
  • What weight should be given to evidence of rehabilitation that postdated the historical offending?
  • How should the aggravating circumstance of offending while on home detention bail affect the sentences?

Decision

Judge Norrish accepted that the offender had pleaded guilty at the first reasonable opportunity, having regard to the complexity of the charges and the significant delays in the New South Wales proceedings. A 25% discount was applied to each sentence, consistent with the guideline judgment in R v Thomson and Houlton (2000) 49 NSWLR 383, which established the framework for assessing the utilitarian value of guilty pleas.

The court was required to grapple with the interplay between serious historical drug offending and evidence of notable rehabilitation in the intervening period. The delay of approximately nine years between offending and sentencing was a significant factor in the exercise. The court nonetheless was required to reflect the objective seriousness of offences at the higher end of the drug supply spectrum, including a principal charge carrying a maximum of life imprisonment.

The Form 1 matters were assessed in context. Some were directly and intimately connected to the principal offences (particularly those relating to the manufacture charge), while others, such as those attached to the large commercial supply charge, were more loosely related. This distinction informed how the court weighed the additional criminality disclosed by the Form 1 matters against the sentences imposed on the principal offences.

The fact that some of the offending was committed while the offender was on home detention bail for prior interstate offences was treated as an aggravating feature. The court applied the principle of totality across all offences to ensure the overall sentence was proportionate and not crushing, particularly given the historical nature of the conduct.

Orders Made

• Matter of Singh to be listed for relevant proceeds of crime orders on Friday 17 June
• No section 77 order for Mr Singh unless requested at a later time
• Confiscation issues to be dealt with in the absence of the offender, with counsel and solicitor to be sufficiently instructed

The following sentencing details were confirmed on the record:

  • A 25% guilty plea discount was applied to each principal offence.
  • The non-parole period for the Sequence 1 offence (supply large commercial quantity of methylamphetamine) commenced on 14 February 2016.
  • Two non-parole periods, including that for the firearms offence, were confirmed to expire on 13 February 2020.
  • The matter was listed for 17 June 2016 for formal orders and proceeds of crime matters.
  • No order was made under s 77 of the Crimes (Sentencing Procedure) Act for the offender's attendance at the proceeds of crime hearing.

Key Takeaways

  • A 25% sentencing discount for guilty pleas was appropriate where pleas were entered at the first reasonable opportunity, even in a case of considerable complexity and significant delay since the offending.
  • Historical offending does not automatically reduce the objective seriousness of the conduct: the court was required to sentence by reference to the gravity of the offences at the time they were committed, even where the offender had undergone notable rehabilitation in the intervening years.
  • Form 1 matters are not all treated equally: where additional charges are directly and intimately connected to a principal offence, they carry greater weight in the sentencing exercise than Form 1 matters more loosely related to the principal charge.
  • Committing offences while subject to home detention bail constitutes an aggravating factor, reflecting a serious breach of the conditions under which the offender was at liberty.
  • The totality principle requires a court to step back and assess whether the overall sentence, across multiple serious offences spanning different episodes of criminality, remains proportionate and not disproportionately crushing.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act (NSW) 1999
- Drug Misuse and Trafficking Act (NSW) 1985, ss 24(1), 25(1), 25(2)
- Firearms Act (NSW) 1996, ss 7(1), 65(3)
- Weapons Prohibition Act (NSW) 1998, s 7

Cases:
- R v Thomson and Houlton (2000) 49 NSWLR 383
- Muldrock v R (2011) 244 CLR 120
- Markarian v R [2005] HCA 25
- Pearce v The Queen (1998) 194 CLR 610
- Mill v The Queen (1998) 166 CLR 59
- Todd v Regina (1982) 2 NSWLR 517
- Attorney General's Application No 1 of 2002 (2002) 56 NSWLR 147
- Abbas & Ors [2013] NSWCCA 115
- Polley v R [2015] NSWCCA 247
- Raniga v The Queen [2016] NSWCCA 36
- Fayd'herbe v R [2007] NSWCCA 20
- R v Gip [2006] NSWCCA 115
- Regina v Gu [2006] NSWCCA 104
- R v Hammoud [2000] NSWCCA 540
- Clark (unrep, 15/3/90, NSWCCA)