Citation: R v Robertson, R v Fisher [2017] NSWDC 377
Court: District Court of New South Wales
Date: 15 December 2017
Judge: Berman SC DCJ
Background
Two co-offenders appeared for sentence following guilty pleas to supplying cocaine and a Form 1 matter of dealing with property suspected to be proceeds of crime. Police had stopped their vehicle and, following searches, found 14 small bags containing 7.28 grams of cocaine (distributed between the car's boot, one offender's clothing, and the other's underwear) along with $2,950 in cash. A Nokia mobile phone examined by police revealed more than 64 calls connected to drug supply, confirming that neither offender was engaged in isolated conduct.
The sentencing had been adjourned approximately a year earlier under a section 11 remand, a procedure that allowed the court to defer sentence to assess whether the offenders could demonstrate genuine rehabilitation. Both offenders were on bail subject to conditions including regular urinalysis, with results to be provided to the court.
At the time of sentencing, the court also noted that both offenders were facing separate, unrelated drug supply charges to be dealt with in the following year.
Legal Issues
- Whether the offenders had demonstrated sufficient rehabilitation during the section 11 remand period to warrant a non-custodial sentence
- What sentence length was appropriate for trafficking cocaine to a substantial degree, accounting for early guilty pleas and Form 1 matters
- Whether parity principles required identical sentences for both co-offenders despite differences in their conduct during the remand period
- Whether the offenders were suitable candidates for an intensive corrections order (ICO) in lieu of full-time custody
Decision
His Honour found that both offenders had engaged in street-level drug dealing that was neither isolated nor casual, characterising them as "enthusiastic drug suppliers" operating over an extended period. The offending was serious, and the judge confirmed that trafficking to a substantial degree was established. Both offenders received a 25% discount on sentence for their early guilty pleas.
Fisher's conduct during the remand period was described as exemplary. He had provided fortnightly urinalysis results (all negative), reported consistently to community corrections, secured full-time employment, and engaged meaningfully in counselling. The court accepted without reservation that he had ceased drug use and was unlikely to reoffend.
Robertson's compliance was less consistent. He failed to attend for urinalysis on eight separate occasions, and the court noted the obvious inference that he may have avoided testing on occasions when he expected to fail. His Honour declined to make that adverse finding outright, accepting on the balance of probabilities that employment obligations explained the absences, but treated the non-compliance as an aggravating factor in fixing his sentence.
Despite this distinction, the court applied the parity principle and imposed identical sentences on both offenders. Robertson's bail non-compliance was balanced against the fact that Fisher had been subject to two section 9 bonds at the time of the offending. The court referred both offenders for assessment as to suitability for an intensive corrections order, adjourning to 9 March 2018 for that purpose. His Honour expressly noted that any ICO imposed would not bind the judge sentencing the offenders for their separate, unrelated drug supply matters.
Orders Made
• Matter adjourned to Friday 9 March 2018
• Offenders to be assessed as to their suitability to serve sentences of imprisonment by means of an intensive corrections order
Key Takeaways
- The District Court confirmed that, following recent Court of Criminal Appeal authority, offenders convicted of trafficking to a substantial degree are no longer required to demonstrate exceptional circumstances before receiving a sentence other than full-time custody. The two-stage process previously applied has been rejected.
- A section 11 remand can extend beyond its originally contemplated period due to court availability issues, and the court treated that extended period as further opportunity for offenders to demonstrate rehabilitation.
- Under the parity principle, co-offenders should not have a justifiable sense of grievance when comparing sentences. Here, differences in conduct during the remand period were weighed against differences in criminal history to arrive at identical sentences.
- Bail conditions imposed by a sentencing court carry real consequences: Robertson's failure to comply with urinalysis requirements was treated as an aggravating factor, and the court noted that a detention application could have succeeded had the non-compliance been brought to its attention earlier.
- An intensive corrections order imposed at one sentencing occasion does not constrain a different judge sentencing the same offender for unrelated offending on a later occasion.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11 (remand for rehabilitation assessment)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9 (good behaviour bonds)
Cases:
- No specific cases were cited in the text provided. His Honour referred generally to a recent Court of Criminal Appeal decision rejecting the two-stage "exceptional circumstances" test for trafficking to a substantial degree, but that decision was not named in the judgment extract.