Citation: R v Christie-Gilbert [2017] NSWDC 453
Court: District Court of New South Wales
Date: 16 October 2017
Judge(s): King SC DCJ
Background
The offender was stopped by police on the Sturt Highway at Buronga, New South Wales, while driving a vehicle belonging to his co-offender, Joel Matzanke. A search of the vehicle uncovered 210.58 grams of MDA (3,4-methylenedioxyamphetamine) in resealable bags, a further 183.56 grams of MDA concealed in a torch (which the offender was found not to have known about), approximately 10.5 kilograms of cannabis leaf, and 32 Diazepam tablets. Drug testing confirmed the offender was driving under the influence of cannabis.
The offender initially told police he and Matzanke had been on a camping trip to the Adelaide Hills. He later provided a statement describing himself as an unwilling participant who had been directed and pressured by Matzanke throughout the trip. The agreed facts accepted that the offender's role was lesser than Matzanke's, though the basis for that agreement was not set out in the material before the court.
The offender pleaded guilty and appeared for sentence on the principal charge of supplying MDA in greater than a commercial quantity, together with two further matters on a Form 1 (possession of Diazepam without a prescription, and supply of cannabis in less than a commercial quantity) and a certificate offence of driving under the influence of drugs.
Legal Issues
- What was the appropriate sentence for supply of MDA in greater than a commercial quantity, having regard to the offender's lesser role compared to the co-offender?
- How should the court treat the offender's initial lies to police in the sentencing exercise?
- What weight should be given to the offender's subjective circumstances, including drug dependency, employment history, and first-time custody?
- Whether parity with the sentence imposed on the co-offender, Matzanke, was relevant and required adjustment?
- Whether special circumstances existed to justify departing from the standard statutory relationship between non-parole period and balance of term?
Decision
The court accepted that the offender's role was subordinate to Matzanke's, though the absence of detailed reasons for that concession in the agreed facts meant the court relied substantially on the offender's evidence at the sentencing hearing. The court noted that Matzanke's DNA was located on drug packaging whereas the offender's was not, and that the offender was unaware of the MDA concealed in the torch. The court also took into account a prior encounter on 25 April 2016 in Newcastle, where the offender was found driving Matzanke's vehicle at 2.45am with cash and drugs present, which bore on the context of the enterprise.
The court treated the offender's initial lies to police as an aggravating factor. His story about a camping trip to the Blue Mountains, which then shifted to the Adelaide Hills when challenged, demonstrated a consciousness of guilt and undermined any suggestion of full candour. The court balanced this against the offender's genuine drug dependency, his history of self-medicating following a workplace injury, and his subsequent cooperation with police.
On the question of parity, the court referred to the sentencing of Matzanke by Lakatos SC DCJ in March 2017 and was mindful that the sentences should reflect the relative culpability of each offender. The court was satisfied that a lesser sentence than Matzanke's was appropriate given the accepted difference in roles.
The court found special circumstances warranting a departure from the statutory non-parole period to balance of term ratio. Two factors supported this: the offender was serving his first period of custody, and the court considered an extended parole period would assist his rehabilitation, particularly given ongoing concerns about drug use and his prospects of returning to lawful employment.
Orders Made
- Principal offence (supply MDA, greater than commercial quantity): imprisonment with a non-parole period of 3 years and 6 months, backdated to 12 June 2017, with a balance of term of 2 years, giving a total sentence of 5 years and 6 months; total term to expire 11 December 2022; first eligible for parole 11 December 2020.
- Offence of drive vehicle under the influence of drugs: fined $300 and disqualified from driving for 6 months (disqualification to commence upon release on parole).
- Back-up charges of possess prohibited plant and possess prohibited drug: withdrawn and dismissed.
Key Takeaways
- Where co-offenders are sentenced separately, a court will assess parity by reference to the earlier sentence and calibrate the later sentence to reflect relative culpability, consistent with the principles in Thomson and Houlton.
- The District Court treated the offender's deliberate lies to police at the roadside as an aggravating matter going to consciousness of guilt, notwithstanding that his subsequent cooperation was taken into account in his favour.
- A finding that an offender was unaware of a particular quantity of drugs meant that quantity could not be taken into account in sentencing, even where it was found in the same vehicle.
- Special circumstances justified a longer than usual parole period where an offender was serving his first custodial sentence and where an extended supervisory period on parole was likely to assist rehabilitation from drug dependency.
- Under the applicable legislation, a disqualification period imposed alongside a term of imprisonment commences upon the offender's release on parole, not from the date of sentencing.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1) and 25(2)
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1)
- Road Transport Act 2013 (NSW), s 112(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- Thomson and Houlton (2000) 49 NSWLR 383 (parity in sentencing)