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District Court 17 August 2017

R v LAMB, Brandon

[2017] NSWDC 380

Drugs
CRIMINAL SENTENCE TWO COUNTS OF SUPPLY PROHIBITED DRUGS 28 GRAMS OF MDMA OFFENCES CONCERNED THE FULL DISCOUNT FOR EARLY PLEA OF GUILTY

Citation: R v LAMB, Brandon [2017] NSWDC 380
Court: District Court of New South Wales
Date: 17 August 2017
Judge: Judge S Norrish QC

Background

The offender, a 21-year-old plumbing apprentice, appeared for sentence on two counts of supplying a prohibited drug (MDMA, commonly known as ecstasy) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The first principal offence involved the supply of approximately 28 grams (one ounce) of MDMA, detected through examination of the offender's iPhone records and found to have occurred between 26 and 27 September 2016. The second principal offence arose from his detection near a music festival in the Moore Park and Centennial Park area on 1 October 2016.

Three additional matters were placed on a Form 1 (a procedural mechanism by which related offences are taken into account when sentencing for the principal offences without imposing separate penalties): two further supply offences and one dealing-with-proceeds-of-crime offence involving $920. The offender had no prior criminal history. He pleaded guilty at the earliest reasonable opportunity and cooperated with police from the time of his arrest.

The offender came from a difficult background. His parents had separated many years earlier, his mother relied on a new partner for financial support, and the offender had largely fended for himself through his teenage years. The court accepted that these circumstances contributed to his drug use, which preceded and underpinned his involvement in supply.

  • What was the appropriate head sentence and non-parole period for two principal supply offences, taking into account the Form 1 matters?
  • What discount applied for the early plea of guilty and for assistance provided to police?
  • Whether "special circumstances" existed to justify adjusting the statutory ratio between the non-parole period and the total sentence.
  • What weight to give to the offender's youth, lack of prior criminal history, dysfunctional upbringing, drug dependency, rehabilitation prospects, and current stable employment and relationship.
  • The proper approach to taking Form 1 matters into account when they are closely connected to the facts of the principal offences.

Decision

Judge Norrish QC accepted that the offending was characteristic of a person who was both a user and a small-scale supplier, with knowledge of supply networks derived from personal drug use rather than commercial enterprise. The court found no financial benefit had been obtained from the supply. The offender's difficult upbringing, while not itself a mitigating factor warranting a direct discount, was relevant to understanding how he came to use and then supply drugs, and to assessing the importance of rehabilitation.

On the Form 1 matters, the court observed that the additional supply offences were so closely connected to the facts of the principal offences that they did not carry the same "salience" as Form 1 matters typically would. Consistent with the guideline judgment in Attorney General's Application (Number 1) of 2002, the court was required to take those matters into account in fixing the appropriate sentence for the principal offence, but their intimacy with the principal facts reduced their independent weight.

The court applied a 25% discount for the early guilty plea and a further reduction for the offender's assistance to police from the time of arrest. The court found that "special circumstances" existed, warranting a departure from the standard statutory ratio between the non-parole period and the balance of the sentence, principally due to the offender's youth, the need to promote rehabilitation, and the absence of any prior custodial experience.

Ultimately, the court suspended the sentences, placing the offender on good behaviour bonds, reflecting his youth, the rehabilitative prospects, his stable employment and relationship, and his contrition. The court noted that any future breach, or return to drug use or supply, would result in revocation and likely imprisonment, with any future sentences required to be at least partially cumulative.

Orders Made

• Be of good behaviour
• Obey the directions of the Community Corrections Service
• Suspended sentence of imprisonment (specific term not stated in extract)
• Bond for the term of the suspended sentence of imprisonment

Key Takeaways

  • Where Form 1 matters are intimately bound up with the facts of the principal offence, they carry reduced independent weight in the sentencing exercise compared with unrelated prior or subsequent offending.
  • A full 25% discount for an early guilty plea was available where the plea was entered at the earliest reasonable opportunity, with a further reduction available for demonstrated cooperation with police.
  • "Special circumstances" under the Crimes (Sentencing Procedure) Act 1999 (NSW) can be established by a combination of factors including the offender's youth, lack of prior custodial experience, and the rehabilitative imperative, permitting adjustment of the standard non-parole period ratio.
  • A difficult or dysfunctional upbringing does not automatically attract a sentencing discount, but it is relevant to explaining the pathway into drug use and to weighing the prospects of rehabilitation.
  • The District Court observed, in passing, that the inability to impose a good behaviour bond for a period exceeding the suspended term of imprisonment creates a structural limitation that does not exist under Commonwealth sentencing law, though the court expressly noted this was a matter for the legislature.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes Act 1900 (NSW), s 93C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Attorney General's Application (Number 1) of 2002 (2002) 56 NSWLR 147 (guideline judgment on Form 1 matters)
- R v Henry (Ors) (1999) 46 NSWLR 346
- Thomson v Houlton [2000] NSWCCA 309
- R v Carrion (2000) 49 NSWLR 149
- R v Cacciola (1998) 104 A Crim R 178
- R v Clark (NSWCCA, 15 March 1990, unreported)
- EF v R [2015] NSWCCA 36
- R v Ejefekaire [2016] NSWCCA 308
- R v Fayd'herbe [2007] NSWCCA 20
- Forti v R [2016] NSWCCA 126
- R v Gip (2006) 161 A Crim R 173
- R v Gu [2006] NSWCCA 104
- Hili v The Queen [2010] NSWCCA 45
- R v Lattouf (NSWCCA, 12 December 1996, unreported)
- R v Polley [2014] NSWDC 323
- R v Blackman and Walters [2001] NSWCCA 121
- Smaragdis v R [2010] NSWCCA 276
- Yardley v Betts (1979) 22 SASR 108