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District Court 1 June 2017

R v Daniel Lico

[2017] NSWDC 133

Drugs
SUBSTANTIAL DRUG TRAFFICKING OFFENCES EXCEPTIONAL CIRCUMSTANCES NOT MADE OUT

Citation: R v Daniel Lico [2017] NSWDC 133
Court: District Court of New South Wales
Date: 1 June 2017
Judge: Mahony SC DCJ

Background

The offender, a young man aged 21 at the time of the offending, pleaded guilty to three counts on an indictment arising from a police controlled operation in the Griffith area between May and June 2016. The operation involved an undercover officer who was supplied with cannabis, MDMA, and methylamphetamine on multiple occasions at various locations including the offender's home.

The offending spanned several weeks and involved repeated, organised drug supply for financial reward. The most serious conduct included an offer to supply 1,000 MDMA tablets (approximately 250 grams, double the commercial quantity threshold), though the offender was arrested before that transaction could occur. Two additional matters were dealt with on a Form 1, and four related offences were addressed pursuant to a section 166 certificate.

At the time of the offending, the offender was living unsupervised for the first time, was not compliant with his medication for anxiety and depression, and was on a section 10 good behaviour bond from earlier proceedings. By the time of sentencing, he had moved to Dubbo to live with his parents, was in full-time employment, had completed a drug and alcohol counselling program, and was assessed as a low risk of re-offending.

Legal Issues

  • Whether the subjective circumstances, including youth, rehabilitation, remorse, and good prospects, individually or cumulatively amounted to "exceptional circumstances" justifying a non-custodial sentence for substantial drug trafficking
  • Whether special circumstances existed under section 44 of the Crimes (Sentencing Procedure) Act 1999 (CSPA) to vary the statutory ratio between non-parole period and total term
  • What aggregate sentence was appropriate under section 53A of the CSPA, having regard to totality, proportionality, and the indicative sentences for each count and related offence

Decision

Objective Seriousness

All three counts were assessed as falling just below the mid-range of objective seriousness for their respective offences, but each still constituted serious offending (at [48]-[50]). The offer to supply 1,000 MDMA tablets amounted to substantial drug trafficking notwithstanding that no drugs were physically disseminated into the community, because the offender had a genuine intention to complete the transaction and was only stopped by his arrest (at [50]).

Exceptional Circumstances Not Established

The court rejected the submission that an accumulation of subjective factors, including the offender's youth, absence of relevant prior convictions, early plea, remorse, and demonstrated rehabilitation, constituted exceptional circumstances warranting a non-custodial sentence (at [67]-[69]). Mahony SC DCJ found those subjective matters were "somewhat typical of cases of this kind" and not, either individually or in combination, sufficiently exceptional to displace the well-established requirement for full time custody in cases of substantial drug trafficking (at [69]). The court also rejected the proposition that achieving rehabilitation while awaiting sentence constitutes an exceptional circumstance (at [59]-[60]).

Mental Health and Causation

The court declined to treat the offender's diagnosed anxiety and depression as a contributing cause of the offending (at [56]). He had voluntarily ceased his medication, and the court found the offending arose from his early involvement with drugs and his unsupervised living situation, not his mental health condition (at [55]-[56]).

Special Circumstances and Sentence

Special circumstances were found under section 44 of the CSPA, based on the offender's young age, the fact this would be his first period of full time custody, his demonstrated need for relapse prevention, and progress already made with rehabilitation (at [65]). A 25 percent utilitarian discount applied for the early guilty plea (at [54]). The court imposed an aggregate sentence of 2 years and 6 months, with a non-parole period of 1 year and 3 months, reflecting the variation of the statutory ratio (at [74]).

Orders Made

  • Convicted on all three counts on the indictment and the related matters on the Form 1 and section 166 certificate
  • Aggregate non-parole period of 1 year and 3 months, commencing 1 June 2017 and expiring 31 August 2018
  • Balance of term of 1 year and 3 months, commencing 1 September 2018 and expiring 30 November 2019 (total sentence: 2 years and 6 months imprisonment)
  • Parole eligibility date: 31 August 2018
  • Forfeiture of $3,200 cash to the State pursuant to section 18(1) of the Confiscation of Proceeds of Crimes Act 1999
  • Drug proceeds order of $19,370 to be paid to the State of New South Wales pursuant to section 29 of that Act
  • All prohibited drugs the subject of the offences to be destroyed

Key Takeaways

  • Rehabilitation achieved while awaiting sentence does not, of itself, constitute an exceptional circumstance sufficient to displace the full time custody requirement for substantial drug trafficking, consistent with the Court of Criminal Appeal's approach in R v Harmouche and R v Ejefekaire (at [59]-[60], [67]).

  • Where subjective factors such as youth, remorse, an early plea, and good rehabilitation prospects are present but are "somewhat typical" of drug trafficking cases, they will not, individually or cumulatively, satisfy the exceptional circumstances threshold (at [69]).

  • A genuine, uncompleted offer to supply a commercial quantity of prohibited drugs constitutes serious offending amounting to substantial drug trafficking, even where no drugs were actually disseminated into the community (at [50]).

  • Voluntary non-compliance with prescribed medication for a mental health condition diminishes the weight that condition carries as a mitigating factor in sentencing, particularly where the offending is more directly attributed to drug use and lifestyle circumstances (at [56]).

  • Under section 53A of the CSPA, related offences the subject of a section 166 certificate may be included in an aggregate sentence, following R v Price [2016] NSWCCA 50, with the court required to indicate the sentence it would have imposed for each offence separately to maintain transparency in the sentencing process (at [64]-[66]).

Legislation and Cases Referenced

Legislation
- Confiscation of Proceeds of Crimes Act 1999
- Criminal Procedure Act 1986
- Drugs (Misuse and Trafficking) Act 1985

Cases
- JM v R [2014] NSWCCA 297
- McIntosh v R [2015] NSWCCA 184
- Pearce v R (1998) 194 CLR 610
- R v Cacciola (1998) 104 ACrimR 178
- R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41
- R v Ejefekaire [2016] NSWCCA 308
- R v Harmouche (2005) 158 A Crim R 357
- R v Price [2016] NSWCCA 50
- R v Rae [2013] NSWCCA 9
- R v Van Ryn [2016] NSWCCA 1
- R v Wong [1999] NSWCCA 420