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District Court 15 June 2017

R v Mella

[2017] NSWDC 193

Drugs
CRIME SUPPLYING OF COCAINE PLEAS OF GUILTY

Citation: R v Mella [2017] NSWDC 193
Court: District Court of New South Wales
Date: 15 June 2017
Judge(s): Neilson DCJ

Background

The offender, a 29-year-old apprentice electrician at the time of the offences, operated a mobile cocaine delivery service across the Sydney CBD, inner suburbs, and Eastern Suburbs between March and April 2015. He supplied cocaine from his own vehicles to a customer base exceeding 900 people, receiving orders by text and phone call on a dedicated mobile service, and was known to customers by the name "Sam" or "Mikey." Police conducted an authorised controlled operation and lawfully intercepted over 11,000 phone calls and text messages during the period.

The offender pleaded guilty to four counts: two offences of supplying drugs on an ongoing basis under section 25A(1) of the Drug Misuse and Trafficking Act 1985 (the Drug Act), one offence of offering to supply a commercial quantity of cocaine under section 25(2), and one offence of supplying a prohibited drug under section 25(1). The section 25(2) count arose from a discounted "Easter special" offer sent to the offender's contact list of 935 people.

Sentencing proceeded on agreed facts. The central contested question was the offender's role within the supply hierarchy and the appropriate weight to give to his guilty pleas, subjective circumstances, and over two years of compliance with onerous bail conditions.

Legal Issues

  • What was the offender's role in the drug supply operation, and how did that role affect the objective seriousness of each offence?
  • How should the court assess objective seriousness under section 25A(1) for ongoing supply offences, and where did the present offences fall within the range?
  • What discount applied to each count for the guilty pleas?
  • Did special circumstances exist to justify departing from the standard statutory nexus between head sentence and non-parole period?
  • Should the non-parole period be further reduced to account for onerous bail conditions observed over more than two years?
  • Was an aggregate sentence appropriate given the overlapping nature of the offences?

Decision

Issue 1: The offender's role in the supply operation

Neilson DCJ found that the offender was not a principal but was properly characterised as a retailer acting under the direction of a supplier known as "Mikey." The offender did not bag the drugs, had no control over their quality or pricing discounts, kept no supply infrastructure at his home, and had been given the dedicated mobile phone with its existing customer contacts by Mikey (at [18]). The absence of any indicia of supply at his residence, including bags, scales, customer lists, or large quantities of cash, supported this conclusion (at [17]). While not a mere courier, the offender exercised little independent discretion in the operation (at [18]).

Issue 2: Objective seriousness of the section 25A offences (counts 1 and 2)

The court assessed the counts 1 and 2 offences as toward the mid-range of seriousness for section 25A offences. Repetition, system, and organisation were clearly present, but the saving feature was that the offender was not the principal or organiser (at [21]). The court noted that the system of supply had been established by Mikey and passed to the offender. The court also confirmed that cocaine is not treated as less serious than other prohibited drugs, and that supply to undercover police operatives provides at most a minor diminution of culpability (at [9]).

Issue 3: Objective seriousness of the section 25(2) offence (count 3)

The court accepted that the Easter special offer to supply cocaine fell toward the bottom of the range of seriousness for section 25(2) offences. Only eleven people responded positively, and any actual supply made pursuant to the offer was likely small in quantity (at [24]-[25]). The offender was unlikely to have been the principal behind the discounted offer, given that discounting price would ordinarily require the consent of the drugs' supplier (at [25]).

Issue 4: Discount for guilty pleas

A 25 per cent discount applied to counts 1 and 2 because of early guilty pleas in the Local Court. A 10 per cent discount applied to counts 3 and 4 because those pleas were entered after the matter had been listed for hearing (at [32]).

Issue 5: Special circumstances

The court found special circumstances warranting a departure from the standard statutory nexus between the head sentence and the non-parole period. This was the offender's first experience of custody, and a shorter non-parole period would allow him to return to the workforce and maintain the electrical trade skills he had built over more than five years (at [41]). A longer period on parole would also allow Corrective Services to support the offender's rehabilitation (at [41]).

Issue 6: Reduction for onerous bail conditions

The court reduced the non-parole period further to account for the offender's strict compliance with onerous bail conditions for over two years from 30 April 2015. Those conditions included a residential requirement to live with his sisters and a curfew between 8pm and 5am unless accompanied by both sisters (at [44]). Consistent with the principles in R v Cartwright, R v Khamas, and R v Jajou, the continuance of such conditions for that duration warranted amelioration of the otherwise appropriate penalty (at [45]-[47]).

Issue 7: Aggregate sentence

The court imposed an aggregate sentence rather than four separate sentences, given that all offences formed part of a single continuing cocaine supply operation over approximately 37 days (at [42]).

Orders Made

  • Aggregate sentence of six years imprisonment imposed, commencing 2 June 2017.
  • Non-parole period of three years and nine months, commencing 2 June 2017 and expiring 1 March 2021.
  • Balance of sentence of two years and three months, expiring 1 June 2023.
  • Special circumstances found; the offender is eligible for parole consideration at the expiration of the non-parole period.
  • Indicative sentences: count 1, three years; count 2, two years and three months; count 3, four years and six months (with an indicative non-parole period of three years); count 4, one year and ten months.
  • Form 1 matters (possession of proceeds of crime and anabolic steroid offences) taken into account.
  • Back-up offences on the section 166 certificate withdrawn and dismissed.
  • Related offences bearing sequence numbers 34, 37, 39 and 41 withdrawn by the Crown.

Key Takeaways

  • A sentencing court assessing offences under section 25A(1) of the Drug Misuse and Trafficking Act 1985 must consider repetition, system, and organisation alongside the quantity and number of individual supplies; these features take their place alongside one another rather than any one being paramount (at [20]).

  • Where an offender acts as a retailer under the direction of a principal, without responsibility for packaging, pricing, or the supply infrastructure, that role is a saving feature that may bring objective seriousness below the higher range, even where the operation involved hundreds of customers and thousands of intercepted communications (at [18], [21]).

  • The District Court confirmed that cocaine is not treated as less serious than other prohibited drugs, and that supply to undercover police operatives provides at most a minor diminution of culpability rather than a significant reduction in objective seriousness (at [9]).

  • Onerous bail conditions observed consistently over an extended period, such as residential requirements and a nightly curfew lasting more than two years, constitute a recognised basis for reducing an otherwise appropriate non-parole period, following R v Cartwright, R v Khamas, and R v Jajou (at [44]-[47]).

  • Special circumstances for departing from the standard nexus between head sentence and non-parole period may be established where the offender's first custodial experience, combined with a pressing need to preserve trade skills and facilitate rehabilitation through supervised parole, warrants a longer parole period than the standard formula produces (at [41]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999
- Criminal Procedure Act 1986
- Drug Misuse and Trafficking Act 1985

Cases
- Botero (unreported, NSWCCA, 24 June 1998)
- EF v Regina [2015] NSWCCA 36
- McKibben v R [2007] NSWCCA 89
- Mirza v R [2007] NSWCCA 248
- Nguyen v Regina (2011) 208 A Crim R 432
- Paxton v R (2011) 219 A Crim R 104
- R v Cartwright (1989) 17 NSWLR 243
- R v Chan [1999] NSWCCA 103
- R v Dang [2005] NSWCCA 430
- R v Des Rosiers (2006) 159 A Crim R 549
- R v Gao [2007] NSWCCA 343
- R v Giang [2005] NSWCCA 387
- R v Hoon [2000] NSWCCA 137
- R v Jajou [2009] NSWCCA 167: (2009) 196 A Crim R 370
- R v Khamas [1999] NSWCCA 436; (1999) 108 A Crim R 499
- R v MRN [2006] NSWCCA 155
- R v Naipoon (2003) 56 NSWLR 284
- R v Shi [2004] NSWCCA 135
- R v Way (2004) 60 NSWLR 168
- The Queen v Olbrich (1999) 199 CLR 270
- Vu v R [2006] NSWCCA 188