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District Court 28 April 2016

R v Leslie Lloyd

[2016] NSWDC 62

DrugsTheft & property
SENTENCING AGGREGATE SENTENCES

Citation: R v Leslie Lloyd [2016] NSWDC 62
Court: District Court of New South Wales
Date: 28 April 2016
Judge(s): Mahony SC DCJ

Background

The offender pleaded guilty to ongoing supply of a prohibited drug under s 25A(1) of the Drug Misuse and Trafficking Act 1985 and seven counts of aggravated break, enter and steal under ss 112(2) and 113(2) of the Crimes Act 1900. The drug supply offences involved six transactions between March and April 2015 in which the offender supplied small quantities of methylamphetamine to undercover police in Wagga Wagga. The break and enter offences arose from a single early-morning incursion on 6 January 2015 into commercial premises containing several businesses, committed in company with an unidentified co-offender.

The drug transactions totalled 2.28 grams of methylamphetamine across six sales, below the trafficable quantity of 3 grams under the Act, and yielded the offender approximately $34 and some razors. The break and enter offences resulted in less than $600 in cash being stolen from four businesses. A safe was also taken from one premises but was later abandoned and recovered with its contents intact.

The offender was arrested on 16 June 2015 and remained in custody from that date. He had entered guilty pleas at the earliest opportunity in the Local Court and was entitled to the maximum sentencing discount for that plea.

  • Whether the objective seriousness of the ongoing drug supply and break and enter offences placed them at the lower end of the sentencing range.
  • Whether the subjective circumstances, including substance use disorder, role as a carer, and rehabilitation prospects, warranted leniency.
  • How the principle of totality should be applied when sentencing for multiple offences arising from different courses of criminal conduct.
  • Whether special circumstances existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 to justify a variation in the ratio of non-parole period to balance of term.
  • Whether an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 was appropriate.

Decision

Mahony SC DCJ accepted that the drug supply offending was at the lower end of the objective seriousness range. The offender acted essentially as a conduit, had no drugs of his own in the first three transactions, received minimal financial benefit, and the total quantity supplied remained below the trafficable threshold. The Crown conceded the conduct was consistent with street-level dealing.

The break and enter offences were also assessed as relatively low in objective seriousness. They occurred at commercial premises in the early hours of the morning with no risk of encountering any person. The offending was a single incursion, minimal property was permanently lost, and the offender had no prior adult convictions relevant to this type of offending. The circumstance of aggravation, being the presence of a co-offender, was itself at the lower end of the range.

The court identified significant subjective factors in the offender's favour: a long history of substance abuse linked to daily ice use, the death of his father as a contributing factor to increased drug use, his role as his ill mother's carer prior to custody, genuine remorse, and signs of rehabilitation while in custody. His early guilty plea attracted the maximum discount available.

The court imposed an aggregate sentence under s 53A, applying a high degree of concurrency across the break and enter charges given they arose from the same course of criminal conduct, while allowing partial accumulation to reflect the separate victims and the distinct drug supply offences. A finding of special circumstances was made, with the balance of term extended beyond the standard ratio to support supervised rehabilitation upon release.

Orders Made

  • Aggregate sentence of 2 years and 6 months imprisonment imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999, comprising a non-parole period of 18 months (from 16 June 2015, expiring 15 December 2016) and a further term of 12 months (expiring 15 December 2017).
  • Parole eligibility date set at 15 December 2016.
  • All drugs seized in respect of the offences ordered to be destroyed.
  • Six backup charges under the s 166 Certificate (sequences 8 to 13) withdrawn following conviction on the ongoing supply charge.
  • The offender ordered to pay $1,520.00 to the State pursuant to s 29(1) of the Confiscation of Proceeds of Crime Act 1989.
  • Upon release to parole, the offender directed to accept supervision by Community Corrections and attend rehabilitative services for drug and alcohol problems.

Key Takeaways

  • Under s 25A(1) of the Drug Misuse and Trafficking Act 1985, ongoing supply below the trafficable quantity and limited to a conduit role can still attract a full-time custodial sentence, but the court may place such offending at the lower end of the objective seriousness range.
  • A single overnight incursion into commercial premises, committed in company, with minimal permanent loss and no confrontation of any person, may be assessed as lower-range aggravated break and enter despite the presence of statutory circumstances of aggravation.
  • The District Court applied the totality principle (drawing on R v Merrin and Mill v The Queen) to require partial accumulation where offences involved different victims, while allowing a high degree of concurrency for offences arising from the same course of criminal conduct.
  • Special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 were found on the basis of the offender's need for supervised rehabilitative support upon first release from custody, resulting in an extended parole period.
  • An aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 was used to reflect the totality of the criminal conduct across eight separate convictions without mechanically accumulating individual terms.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A(1)
- Crimes Act 1900 (NSW), ss 112(2), 113(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23A, 44(2), 53A
- Criminal Procedure Act 1986 (NSW), s 166
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 29(1)

Cases
- JM v R [2014] NSWCCA 297
- McIntosh v R [2015] NSWCCA 184
- Mill v The Queen (1988) 166 CLR 59
- R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41
- R v Giang [2005] NSWCCA 387
- R v Harris [2007] NSWCCA 130
- R v Merrin [2007] NSWCCA 255
- R v MRN [2006] NSWCCA 155
- R v Ponfield (1999) 48 NSWLR 327
- R v Van Ryn [2016] NSWCCA 1
- R v Wong [1999] NSWCCA 420