Citation: R v Michael Corbett [2016] NSWDC 61
Court: District Court of New South Wales
Date: 29 April 2016
Judge: Mahony SC DCJ
Background
The offender was committed for sentence to the District Court at Wagga Wagga after being charged with ongoing supply of a prohibited drug, namely methylamphetamine, under s 25A of the Drugs (Misuse and Trafficking) Act 1985. The charge arose from a police undercover operation (Strikeforce CALYX) in which the offender supplied methylamphetamine to undercover officers on 11 separate occasions between 18 May and 15 June 2015. The total quantity supplied across those 11 transactions was 7.24 grams, and $4,800 was paid to the offender.
Two additional supply offences (involving 0.14 grams and 0.11 grams of methylamphetamine supplied on 23 and 24 April 2015) were placed before the court on a Form 1, meaning they were taken into account in sentencing without separate conviction. The offender had been in custody from his arrest on 17 June 2015 until 3 October 2015, a period of approximately three months and seventeen days.
The offender was a single man in his mid-life, the primary carer of an eight-year-old daughter, and the supporter of an adult son with serious mental illness. He had a lengthy history of illicit drug use, including a 20-year addiction to methylamphetamine, and had engaged in rehabilitation programs following his arrest.
Legal Issues
- Whether the objective seriousness of the offending under s 25A warranted full-time imprisonment
- Whether any mitigating factors, including addiction, rehabilitation efforts, remorse, and personal circumstances, justified a lesser sentence
- Whether special circumstances existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 to vary the standard non-parole period ratio
- How the principles of proportionality and totality applied across the primary charge and the Form 1 matters
Decision
The District Court found the offending objectively serious. There were 11 discrete transactions, the total quantity of 7.24 grams exceeded both the trafficable quantity (3 grams) and the indictable quantity (5 grams) thresholds, and $4,800 passed hands. The Crown's submission, relying on R v Elfar, was accepted on the point that the offender's stated motivations (supplying to help friends in withdrawal rather than for profit) could not diminish the objective gravity of a s 25A offence.
On subjective matters, the court acknowledged the offender's lengthy drug addiction, his steps toward rehabilitation, the support of character witnesses, and the significance of his role in caring for his young daughter. However, his expression of remorse was qualified. The court noted that he did not truly regard himself as a dealer and appeared to minimise the seriousness of his conduct, which somewhat undermined the weight given to remorse.
The court was satisfied that no penalty other than full-time imprisonment was appropriate given the number of occasions and the total quantity supplied. A total term of 2 years and 6 months was imposed. The court found special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, based on the offender's need for ongoing rehabilitation and supervision to remain drug-free, justifying an equal non-parole period and balance of term (each 1 year and 3 months) rather than the standard ratio.
The sentence was backdated to 10 January 2016, accounting for the pre-sentence period spent in custody.
Orders Made
- Conviction entered for the offence under s 25A of the Drugs (Misuse and Trafficking) Act 1985
- Non-parole period of 1 year and 3 months, commencing 10 January 2016 and expiring 9 April 2017
- Balance of term of 1 year and 3 months, commencing 10 April 2017 and expiring 9 July 2018 (total sentence: 2 years and 6 months)
- Parole eligibility date: 9 April 2017
- On release to parole, the offender to be supervised by Community Corrections Wagga Wagga, to report within 7 days of release and comply with recommendations to participate in drug rehabilitation
- Drug proceeds order of $5,100 payable to the State of New South Wales under s 29(1) of the Confiscation of Proceeds of Crime Act 1989
- All seized drugs to be destroyed
- Corrective Services ordered to allow the offender access to his insulin medication as required
- Form 1 matters certified as taken into account
Key Takeaways
- Under s 25A of the Drugs (Misuse and Trafficking) Act 1985, an offender's personal motivations for supplying drugs (such as a belief that he was assisting friends in withdrawal) do not reduce the objective seriousness of the offending, consistent with the Court of Criminal Appeal's approach in R v Elfar.
- A total quantity of 7.24 grams of methylamphetamine supplied across 11 transactions, exceeding both the trafficable and indictable quantity thresholds, warranted full-time imprisonment notwithstanding significant subjective mitigating factors.
- Special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 can be established where an offender has a serious, long-standing drug addiction and a demonstrated need for ongoing rehabilitation and supervision after release.
- The District Court applied the totality and proportionality principles from Pearce v R and R v Cahyadi in calibrating the sentence across the primary charge and the Form 1 matters.
- Rehabilitation efforts undertaken between arrest and sentencing, including completion of a structured drug and alcohol program, carried weight in the subjective assessment, even where subsequent participation in a further program ended in discharge for a rule infraction.
Legislation and Cases Referenced
Legislation:
- Drugs (Misuse and Trafficking) Act 1985 (NSW), s 25A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 29, 44(2)
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 29(1)
Cases:
- EF v R [2015] NSWCCA 36
- Jadron v R [2015] NSWCCA 217
- Knight v R [2015] NSWCCA 222
- Lam v R [2014] NSWCCA 50
- Pearce v R (1998) 194 CLR 610
- R v Cahyadi (2007) 168 A Crim R 41
- R v Caldwell [2016] NSWCCA 55
- R v Elfar [2003] NSWCA 358
- R v Hide [2003] NSWCCA 371
- R v Wong [1999] NSWCCA 420