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District Court 26 May 2017

R v Troy Rhodes

[2017] NSWDC 125

DrugsDomestic & family violence
TWO OFFENCES OF SUPPLY PROHIBITED DRUGS AGGREGATE SENTENCE

Citation: R v Troy Rhodes [2017] NSWDC 125
Court: District Court of New South Wales
Date: 26 May 2017
Judge: Mahony SC DCJ

Background

Police attended a Wagga Wagga motel on 15 January 2016 to arrest the offender on domestic violence charges. A search of his vehicle uncovered significant quantities of methylamphetamine (54.21 grams), amphetamine (7.78 grams), MDMA, cocaine, oxymetholone, a high-powered laser pointer, and $16,455 in cash reasonably suspected to be proceeds of drug supply. The drugs had been concealed behind vehicle panels and facades, requiring investigators to dismantle parts of the car to locate them.

The offender was charged on indictment with two counts of supply of a prohibited drug under the Drug Misuse and Trafficking Act 1985. Five related summary and Table offences were also dealt with under a section 166 certificate, covering possession of various drugs, possession of suspected proceeds of crime, and custody of the laser pointer.

Police assessed the offender as a mid-level drug supplier. The offending occurred while he was on bail for domestic violence charges and subject to a section 9 good behaviour bond imposed in November 2015.

  • What aggregate sentence was appropriate for two counts of supply of prohibited drugs, taking into account the quantity of drugs, the circumstances of the offending, and the offender's personal history?
  • What discount, if any, was warranted for the offender's pleas of guilty?
  • Whether special circumstances existed to justify a departure from the standard ratio between the non-parole period and the balance of term under the Crimes (Sentencing Procedure) Act 1999.
  • How the sentence should interact with existing custodial sentences already being served for domestic violence offences, having regard to the principles of totality and proportionality from Pearce v R (1998) 194 CLR 610.

Decision

The court identified several aggravating features of the offending. The quantity of methylamphetamine (54.21 grams) was more than ten times the indictable quantity, while the amphetamine (7.78 grams) was nearly twice the indictable quantity. The drugs were deliberately concealed in a sophisticated manner. The offending occurred while the offender was on conditional liberty, specifically on bail and subject to a good behaviour bond. The court accepted the police assessment that the offender was a mid-level supplier and noted the presence of drug supply indicia, including scales, records, encrypted mobile phones, and significant cash.

The court applied a discount of 15% to reflect the early pleas of guilty, which were notified to the Crown in February 2017 following committal in April 2016. The court also found special circumstances under section 44(2B) of the Crimes (Sentencing Procedure) Act 1999, justifying an extended balance of term relative to the non-parole period. This finding acknowledged the offender's identified needs, including drug dependency and domestic abuse counselling, which would require support during the supervision period following release.

On the question of accumulation, the court accepted the Crown's submission that a moderate degree of accumulation on the existing domestic violence sentences was appropriate. The drug supply offences constituted a separate and discrete course of criminal conduct from the domestic violence offending, warranting some additional term rather than full concurrence.

Applying the principles of totality and proportionality, the court imposed an aggregate sentence of 3 years imprisonment, with a non-parole period of 1 year and 9 months commencing 1 September 2016.

Orders Made

  • Conviction entered on Count 1: supply of methylamphetamine (54.21 grams) on 15 January 2016 at Wagga Wagga.
  • Conviction entered on Count 2: supply of amphetamine (7.78 grams) on 15 January 2016 at Wagga Wagga.
  • Convictions entered on five related offences under the section 166 certificate: possession of MDMA, custody of a laser pointer in a public place, dealing with property suspected to be proceeds of crime, possession of oxymetholone, and possession of cocaine.
  • Aggregate non-parole period of 1 year and 9 months, commencing 1 September 2016 and expiring 31 May 2018.
  • Balance of term of 1 year and 3 months, commencing 1 June 2018 and expiring 31 August 2019.
  • Total aggregate term: 3 years imprisonment.
  • Parole eligibility date: 31 May 2018.
  • Forfeiture of $16,455 in cash to the State under section 18(1) of the Confiscation of Proceeds of Crime Act 1989.
  • Destruction of all prohibited drugs the subject of the offences.

Key Takeaways

  • A 15% discount for guilty pleas was applied where pleas were notified to the Crown approximately ten months after committal, reflecting the utilitarian value of the pleas without treating them as maximally early.
  • Offending while on bail and subject to a good behaviour bond constituted a significant aggravating factor, reinforcing the court's view of the seriousness of the conduct.
  • Where drug supply offences are found to be a separate and discrete course of conduct from other offences already being served, the District Court confirmed that a moderate degree of accumulation on existing sentences is appropriate, rather than full concurrence.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 can be established where an offender has identified rehabilitation needs, including substance dependency and behavioural counselling, that require an extended supervised period on parole.
  • The principles of totality and proportionality from Pearce v R require a court to consider the overall effect of accumulated sentences to ensure the final sentence remains proportionate to the totality of the offending.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 29
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2B)
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes Act 1900 (NSW), s 193C(1)
- Summary Offences Act 1988 (NSW), s 11FA(1)(a)
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 18(1)

Cases:
- Pearce v R (1998) 194 CLR 610
- Close v R (1991) 31 NSWLR 743
- JM v R [2014] NSWCCA 297
- McIntosh v R [2015] NSWCCA 184
- R v Carter [2003] NSWCCA 243
- R v Rae [2013] NSWCCA 9
- R v Tuuta [2014] NSWCCA 40