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District Court 22 November 2017

Graeme McGilvray

[2017] NSWDC 345

Drugs

Citation: [2017] NSWDC 345
Court: District Court of New South Wales
Date: 22 November 2017 (orders made 23 October 2017)
Judge: Haesler SC DCJ

Background

The offender acted as a bodyguard to a drug supplier on three occasions between May and June 2013, when that supplier sold methamphetamine to an undercover police operative. The offender was not directly involved in any transaction but was present with knowledge of what was occurring. His reward was modest: the supplier paid for him to visit prostitutes. The total quantity of methamphetamine involved across the three occasions was 167.65 grams.

The offender was arrested but discharged at committal. An ex-officio indictment was presented in September 2015, an initial not-guilty plea was entered, and a guilty plea was eventually entered in May 2016 following a fresh indictment. The three separate supply transactions were "rolled up" into a single charge under s 25(1) of the Drug Misuse and Trafficking Act 1985, which carries a maximum penalty of 15 years imprisonment.

The co-offender, the principal supplier, had been sentenced separately by Judge Conlon SC in August 2016 to an aggregate term of four years and six months. For the transactions corresponding to the offender's conduct, Judge Conlon indicated a sentence of two years would have applied before reductions for early plea and cooperation.

  • Whether rolling up three separate drug supply transactions into one charge was appropriate, and what weight to give the cumulative quantity.
  • How to assess the objective seriousness of the offence given the offender's peripheral role as a bodyguard.
  • What discount to apply for the guilty plea, having regard to the timing and the procedural history involving an ex-officio indictment.
  • How delay between offending and sentencing affected the approach to sentence.
  • Whether parity with the co-offender's sentence required a particular outcome.
  • Whether an Intensive Corrections Order (ICO) was an appropriate alternative to full-time custody, given the offender's demonstrated rehabilitation.

Decision

Objective seriousness and role. Haesler SC DCJ confirmed that those who assist drug distribution networks, including couriers, drivers, and bodyguards, attract serious penalties because without such assistance those networks would collapse. However, the offender's role was limited: he acted for a minimal reward, was not directly involved in any transaction, and was unaware of the precise quantities involved. The court also noted that the fact the drugs were seized by police and never reached the community was of limited, though not entirely irrelevant, weight: actual harm to the community remained a legitimate consideration.

Guilty plea and delay. The court allowed a 20% reduction for the guilty plea's utilitarian value, rather than the more common 15% applied at the District Court stage. This reflected the procedural history: applying only 15% would have undervalued the utilitarian benefit flowing from events between arraignment and trial, given the ex-officio indictment. The substantial delay between the 2013 offending and sentencing was also treated as a significant mitigating factor. That delay allowed the offender to establish a new life, leave the criminal environment, and demonstrate genuine rehabilitation.

Parity. The court considered the co-offender's sentence carefully. Judge Conlon had found that a two-year sentence would have applied to the corresponding conduct before the co-offender's significant discounts for plea and cooperation. The court was satisfied that a somewhat lower sentence for the current offender was consistent with parity principles, given his more peripheral role.

Intensive Corrections Order. After accounting for the guilty plea discount and 137 days of pre-sentence custody, the court arrived at a sentence of one year and ten months. The court then asked whether an ICO would meet the purposes of sentencing. It concluded that, in this case, the community interest in the offender's successful reintegration was decisive. The offender had walked away from the drug environment under the influence of his partner, demonstrated genuine rehabilitation, and harsh custodial penalties risked undermining that progress. An ICO was found to be appropriate.

Orders Made

  • The offender was sentenced to a term of imprisonment of 1 year and 10 months, to be served by way of Intensive Correction Order (ICO) in the community under the Crimes (Administration of Sentences) Act 1999, commencing 23 October 2017.
  • The offender was required to report to the Nowra office of Community Corrections NSW within 7 days.
  • The Registrar was directed to give written notice of the order to the offender and the Commissioner of Community Corrections as soon as practicable.

Key Takeaways

  • Rolling up multiple drug supply transactions into a single charge is permissible where those acts form part of the same criminal enterprise, though the accumulated quantity is a factor that may (not must) be weighed at sentencing, as confirmed in R v Hamzy.
  • Peripheral participants in drug supply networks, including bodyguards, are not treated as insignificant: the District Court reaffirmed that without those who facilitate distribution, drug networks could not function.
  • A guilty plea entered after an ex-officio indictment may attract a higher utilitarian discount than the standard 15% applied in the District Court, where a lower reduction would undervalue the benefit of events between arraignment and trial.
  • Sentencing for stale offences requires flexibility and understanding, particularly where delay has enabled an offender to demonstrate genuine rehabilitation over a substantial period.
  • An ICO can satisfy the purposes of sentencing in a drug supply matter where the offender's demonstrated rehabilitation means the community interest in successful reintegration outweighs the case for full-time custody, even though such cases will ordinarily attract heavy custodial sentences.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 24, 53A
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A
- Crimes (Administration of Sentences) Act 1999 (NSW), s 73
- Crimes (Administration of Sentences) Regulation 2008 (NSW), reg 175

Cases:
- EF v R [2015] NSWCCA 36
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 52
- Markarian v The Queen (2005) 228 CLR 357
- Mill v The Queen (1988) 166 CLR 59
- Mooney v R [2016] NSWCCA 231
- Postiglione v The Queen (1997) 189 CLR 295
- R v Blanco (1999) 106 A Crim R 303
- R v Chan [1999] NSWCCA 103
- R v DW [2012] NSWCCA 66
- R v Hamzy (1994) 74 A Crim R 341
- R v Shi [2004] NSWCCA 135
- R v Todd [1982] 2 NSWLR 517
- R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131
- Thompson v R (2000) 49 NSWLR 383
- Whelan v R [2012] NSWCCA 147