Citation: R v Anthony Daniel McIver [2016] NSWDC 95
Court: District Court of New South Wales
Date: 27 May 2016
Judge(s): Mahony SC DCJ
Background
The offender pleaded guilty to one count of supplying a prohibited drug, specifically 7.15 grams of methylamphetamine, contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985. The offence came to light in unusual circumstances: the offender attended Queanbeyan Police Station to report as required by his bail conditions, whereupon police searched him and found the drugs in bags that fell from his waistband, along with a large knife and drug paraphernalia.
At the time of the offence, the offender was 26 years old, on parole with nine days remaining, and on bail in respect of unrelated matters. He had an extensive criminal history in both New South Wales and the ACT, and had experienced substance abuse issues since early adolescence.
Three additional matters were dealt with by way of a section 166 certificate, covering possession of diazepam and MDMA, custody of a knife in a public place, and possession of a restricted substance.
Legal Issues
- What was the appropriate sentence for supply of methylamphetamine under section 25(1) of the Drug Misuse and Trafficking Act 1985, having regard to the objective seriousness of the offending?
- What weight should be given to the aggravating factors of offending while on parole and on bail?
- Whether a finding of special circumstances under section 44(2) of the Crimes (Sentencing Procedure) Act 1999 was warranted, justifying a longer parole period relative to the non-parole period?
- What were the appropriate penalties for the three offences dealt with on the section 166 certificate?
Decision
Objective seriousness: The court characterised the offending as unsophisticated and placed it towards the lower end of the range for offences under section 25(1) of the Drug Misuse and Trafficking Act 1985, notwithstanding that the circumstances of the arrest were described as "almost comedic" (at [26]). The maximum penalty of 15 years imprisonment and a $220,000 fine served as the guidepost for the sentencing exercise (at [29]).
Criminal history and aggravating factors: Applying the principle in Veen v R No. 2, the court found the offender fell into the category of repeat offenders who are disentitled to leniency on account of their prior record (at [28]). His criminal history was described as "appalling." Offending while on bail imposed less than three months before the offence, and while on parole with nine days remaining, were both identified as clear aggravating factors (at [30]).
Subjective factors and plea discount: The offender received a 25% utilitarian discount for his early plea of guilty (at [29]). Subjective factors, including his deprived upbringing, time in foster care, the death of his mother at age 13, and his ongoing drug dependency, were considered but were characterised as not strong (at [31]). The court took into account the 206 days he had already spent in custody (at [29]).
Special circumstances: The court made a finding of special circumstances under section 44(2) of the Crimes (Sentencing Procedure) Act 1999, having regard to the offender's need for drug and alcohol rehabilitation (at [32]). This resulted in a non-parole period of 15 months against a total term of 2 years and 3 months, producing a longer than usual parole period to allow for community supervision and rehabilitation support (at [33]).
Orders Made
- Convicted of supply prohibited drug under section 25(1) of the Drug Misuse and Trafficking Act 1985.
- Sentenced to a non-parole period of 15 months, commencing 2 March 2016 and expiring 1 June 2017, followed by a further term of 12 months from 2 June 2017 to 1 March 2018 (total: 2 years and 3 months imprisonment).
- Sequence 2 (possess prohibited drug): 3 months imprisonment from 27 May 2016 to 26 August 2016.
- Sequence 3 (custody of a knife in a public place): fixed term of 3 months imprisonment from 27 May 2016 to 26 August 2016, concurrent with Sequence 2.
- Sequence 4 (possess restricted substance): charge dismissed pursuant to section 10A(1) of the Crimes (Sentencing Procedure) Act 1999.
- Drugs and drug paraphernalia ordered to be destroyed.
- Offender's phone ordered to be forfeited.
- Parole eligibility date noted as 1 June 2018.
Key Takeaways
- Offending while on parole and on bail simultaneously constitutes a significant aggravating feature at sentencing, even where only a short period of parole remained at the time of the offence (at [30]).
- A 25% utilitarian discount for an early plea of guilty applied in the ordinary way, consistent with established sentencing practice under the Crimes (Sentencing Procedure) Act 1999 (at [29]).
- Under the principle in Veen v R No. 2, an offender with an extensive prior criminal record is disentitled to leniency on the basis of that record, though the sentence must not exceed what is proportionate to the instant offence (at [28]).
- A finding of special circumstances under section 44(2) of the Crimes (Sentencing Procedure) Act 1999 was available where the offender's entrenched drug dependency and need for structured rehabilitation upon release justified an extended parole period beyond the statutory norm (at [32]).
- Where objective seriousness is assessed as towards the lower end of the range for a given offence, that assessment remains relevant to the overall sentencing exercise even when aggravating factors are present (at [26]).
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999
- Criminal Procedure Act 1986
- Drug Misuse and Trafficking Act 1985
Cases
- Veen v R No. 2 (1998) Vol 164 CLR 465 at 477