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District Court 10 November 2017

R v Hunter

[2017] NSWDC 385

Drugs
CRIMINAL LAW SENTENCE FORM 1 STREET LEVEL DRUG DEALER PARTICIPATION IN A CRIMINAL GROUP

Citation: R v Hunter [2017] NSWDC 385
Court: District Court of New South Wales
Date: 10 November 2017
Judge: Berman SC DCJ

Background

The offender, a 41-year-old woman, appeared for sentencing on two counts of supplying prohibited drugs on an ongoing basis. The offences occurred over separate periods in June and July 2016, during which she operated as a street-level heroin dealer, supplying small quantities to individual customers using connections formed through the sex industry.

The offender obtained heroin in bulk from a supplier further up the chain and had others transport the drugs to her. Over the two charged periods, she carried out 30 separate acts of supply involving a total of approximately 53.5 grams of heroin. Her activities continued even after one courier was arrested, and part of the second offence was committed while she was on bail.

The court took a number of additional matters into account on a Form 1 (a procedure that allows related offences to be considered at sentencing without separate convictions being recorded). Those matters included supply of cocaine, participation in a criminal group and contributing to criminal activity, and three counts of possessing heroin, methylamphetamine, and cocaine.

  • What weight should be given to the offender's profoundly disadvantaged background, including childhood homelessness, exploitation, and long-term coercive control, in determining the appropriate sentence?
  • How should the court assess the offender's prospects for rehabilitation given her longstanding heroin addiction and criminal history?
  • Was a finding of special circumstances justified so as to extend the proportion of the sentence spent on parole?
  • What aggregate sentence was appropriate, given the need for partial accumulation across two ongoing supply offences?

Decision

His Honour opened by setting out the offender's background in unusual detail, treating it as directly explanatory of her offending. She had left home at age 12, lived on the streets, spent time in juvenile detention, and from age 16 was in a relationship with a man 25 years her senior who, the court accepted, "bought" her, subjected her to rape, controlled her, and directed her into prostitution and ultimately drug supply. His Honour found that the offender had moved from drug user to drug supplier under that man's influence and control.

On the question of rehabilitation, His Honour accepted the offender's evidence that she had been abstinent since entering custody, despite an entry on her custodial record for drug possession. The court was satisfied on the balance of probabilities that those drugs did not belong to her, noting the absence of any failed or refused urinalysis tests. The offender's reconnection with her father and sister, her stated intention to live with them on release, and her severance of contact with co-offenders were each treated as positive indicators, though her counsel appropriately conceded that rehabilitation prospects remained guarded given the length and severity of her addiction.

His Honour made a finding of special circumstances, extending the parole period beyond the standard ratio. The reasons given were the offender's first experience of adult custody, her severely disadvantaged background, and her long-term drug addiction. The court noted that extended supervision on parole served the community's interests as much as the offender's own.

Orders Made

  • Aggregate sentence of imprisonment imposed comprising:
  • Non-parole period of 2 years, commencing 18 July 2016 (expiring 17 July 2018)
  • Head sentence of 4 years
  • Finding of special circumstances made
  • Matter adjourned to 15 December 2017 for consideration of a drug proceeds order

Key Takeaways

  • The District Court treated the offender's background of childhood abandonment, homelessness, sexual exploitation, and coercive control as central mitigating factors, not merely peripheral matters of sympathy.
  • A finding of special circumstances under the sentencing framework can be grounded in a combination of factors including first-time adult custody, a severely deprived background, and entrenched addiction, particularly where extended parole supervision is seen as benefiting the community.
  • Where a custodial record contains an offence of drug possession, the sentencing court may nonetheless accept, on the balance of probabilities, that the drugs did not belong to the offender, provided the evidence supports that conclusion.
  • Participation in a criminal group as a street-level drug dealer, obtaining supply from those higher up the chain, substantially overlaps with ongoing supply offences for Form 1 purposes.
  • Rehabilitation prospects were assessed as guarded rather than strong, reflecting the court's recognition that longstanding drug addiction carries a well-established connection to reoffending, and that any improvement in those prospects was contingent on sustained abstinence.

Legislation and Cases Referenced

Legislation
- No specific legislation was cited in the provided text. The offences relate to supply of prohibited drugs on an ongoing basis and participation in a criminal group under New South Wales drug and criminal law.

Cases
- No cases were cited in the provided text.