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District Court 24 May 2017

R v Louis Foster

[2017] NSWDC 120

Drugs
SUPPLY PROHIBITED DRUGS, TWO OFFENCES TAKE PART IN SUPPLY OF PROHIBITED DRUGS

Citation: R v Louis Foster [2017] NSWDC 120
Court: District Court of New South Wales
Date: 24 May 2017
Judge: Mahony SC DCJ

Background

The offender, a young Aboriginal man from Wagga Wagga, was convicted of three drug supply offences arising from a police investigation between late 2015 and early 2016. He operated as a middle-man supplier, sourcing cannabis from a supplier in Yass and distributing it from his home at Lake Albert, Wagga Wagga. His half-sister assisted him by travelling to Yass to collect cannabis and delivering it to customers in Forbes, for which she was paid.

In total, the offender purchased 31.5 kilograms of cannabis, exceeding the commercial quantity threshold of 25 kilograms, and supplied 6.605 kilograms directly. He also took part in supplying 28 grams of cocaine on one occasion. Police gathered evidence through lawfully intercepted phone calls and data downloaded from his mobile phone.

The offender had a difficult personal history. He grew up in circumstances involving family violence, neglect, drug use, and instability. He was diagnosed with Cannabis Use Disorder and Persistent Depressive Disorder, both traced to his traumatic childhood. At the time of sentencing, he had been on strict bail conditions for over a year, was employed, and had engaged in counselling and mental health treatment.

Legal Issues

  • How to assess the objective seriousness of commercial cannabis supply where the quantity exceeds the commercial threshold but falls well short of the large commercial quantity
  • The weight to give the offender's deprived Aboriginal background in reducing his moral culpability, by reference to Bugmy v R and R v Fernando
  • Whether the offender's youth further reduced his moral culpability
  • Whether strict bail conditions warranted a backdated sentencing credit
  • How parity principles applied given co-offenders received different sentences
  • Whether special circumstances existed to justify a longer parole period
  • The appropriate structure of an aggregate sentence under s 53A of the Crime (Sentencing Procedure) Act 1999

Decision

Objective seriousness of the principal offence

His Honour found that the commercial cannabis supply offence (Sequence 1) fell towards the upper end of the lower range of objective seriousness (at [68]). The 31.5 kilograms supplied was just above the commercial quantity threshold of 25 kilograms and well below the large commercial quantity of 100 kilograms. However, the offender was not a street-level dealer. He operated as an up-line supplier and middle-man, disseminating drugs across more than one community, motivated by both financial gain and his own cannabis addiction, and the operation required significant planning (at [68]). The cocaine supply (Sequence 3) was assessed as falling towards the middle of the lower range for a s 25(1) offence, being a one-off transaction involving 28 grams against a commercial quantity threshold of 250 grams (at [69]).

Moral culpability and the Bugmy principle

His Honour accepted that the offender's deprived background substantially reduced his moral culpability (at [76]). The evidence established exposure from an early age to extreme violence, drug use, and neglect. The Crown accepted these findings. Applying Bugmy v R (2013) HCA 37, the court recognised that Aboriginal Australians may be subject to grave social disadvantages of the kind discussed in R v Fernando and Kennedy v R, and that this history of deprivation was directly relevant to the sentencing assessment (at [75]-[76]).

Youth as a separate mitigating factor

His Honour rejected the submission that the offender's youth independently reduced his moral culpability by reference to BP v R (at [79]). That case concerned a 16-year-old child. The offender here was in his early twenties at the time of offending, and the court declined to extend that principle to him on those facts (at [79]).

Bail conditions and parity

His Honour declined to apply a backdated sentencing adjustment for the period spent on strict bail conditions, noting that the court has a discretion but no obligation to do so under Hoskins v R (at [79]). The parity argument based on the sentences imposed on co-offenders was also rejected, as those offenders were sentenced on materially different facts and no remarks on sentence were made available (at [80]).

Special circumstances and aggregate sentence

His Honour found special circumstances under s 44 of the Crime (Sentencing Procedure) Act 1999, based on the offender's young age, the need for drug and alcohol counselling and relapse prevention, and the fact that this was his first time in custody (at [83]). An aggregate sentence was imposed under s 53A, with indicative sentences set for each individual offence to ensure transparency in the process (at [81]-[82]). A 25% utilitarian discount was applied for the early guilty plea (at [74]).

Orders Made

  • Convicted on Sequence 1: taking part in the supply of 31.5 kilograms of cannabis, being not less than the commercial quantity, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985
  • Convicted on Sequence 3: taking part in the supply of 28 grams of cocaine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985
  • Convicted on Sequence 8: supply of 6.605 kilograms of cannabis, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985
  • Aggregate sentence imposed under s 53A of the Crime (Sentencing Procedure) Act 1999: total term of 2 years and 9 months imprisonment
  • Non-parole period of 1 year and 5 months, commencing 6 April 2017 and expiring 5 September 2018
  • Balance of term of 1 year and 4 months, commencing 6 September 2018 and expiring 5 January 2020
  • Eligible for parole on 5 September 2018
  • Form 1 matters certified
  • Drugs the subject of the offences ordered to be destroyed

Key Takeaways

  • Under the Bugmy principle, a sentencing court may substantially reduce an offender's moral culpability where the evidence establishes a childhood marked by violence, neglect, and drug use. The District Court applied this squarely, accepting that the offender's deprived Aboriginal background warranted meaningful mitigation even in the context of serious commercial drug supply (at [75]-[76]).

  • The age-related reduction in moral culpability recognised in BP v R does not automatically extend to offenders in their early twenties. The District Court distinguished that line of authority on the basis that it concerned a 16-year-old, and declined to apply it here (at [79]).

  • A sentencing court has a discretion, not an obligation, to apply a backdated credit for time spent on strict bail conditions. The court here declined to do so, consistent with Hoskins v R (at [79]).

  • Parity arguments carry limited weight where co-offenders were sentenced on materially different facts and no sentencing remarks were available for comparison (at [80]).

  • Where an offender is a mid-level distributor operating above street level but below the apex of a supply chain, the court will not treat the enterprise as small merely because it involved a limited number of participants. The role, geographic reach, and financial motivation of the offender all inform the objective seriousness assessment (at [68]).

Legislation and Cases Referenced

Legislation
- Crime (Sentencing Procedure) Act 1999
- Drug Misuse and Trafficking Act 1985

Cases
- BP v R [2010] NSWCCA 159
- Bugmy v R [2013] HCA 37
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- EF v R [2015] NSWCCA 36
- Hoskins v R [2016] NSWCCA 157
- Kennedy v R [2010] NSWCCA 260
- Mill v R (1988) 166 CLR 59
- R v Fernando (1992) 76 A Crim R 58
- R v Nguyen [2015] NSWCCA 268