Citation: R v Errington; R v Pantea [2017] NSWDC 85
Court: District Court of New South Wales
Date: 24 February 2017
Judge: Berman SC DCJ
Background
Two co-offenders appeared for sentence after pleading guilty to serious drug supply offences. The male offender had been operating a street-level heroin supply business, confirmed through physical and electronic police surveillance. At the time of his arrest, heroin was found across multiple locations: in two vehicles, in the home unit he shared with his co-offender, and most significantly, 120.38 grams in a storage unit.
The female offender pleaded guilty to supply based on her possession of the 30.85 grams of heroin found in the home unit she shared with the male offender. Both asked the court to take into account, on a Form 1 (a mechanism allowing related offences to be considered at sentencing without a separate conviction), an offence of dealing with property suspected to be proceeds of crime. The total sum involved was almost $80,000.
What distinguished these offenders from typical drug supply cases was their relative financial comfort. They maintained a child in private school and drove a BMW convertible. The court noted this was not drug dealing driven purely by financial desperation.
Legal Issues
- What sentences were appropriate for the male offender's ongoing supply of heroin and possession of a large quantity for supply?
- What sentence was appropriate for the female offender's possession of heroin for supply?
- What weight should be given to rehabilitation, pre-sentence custody, personal hardship, and the particular risks faced by the male offender (a former prison officer) in custody?
- Whether the female offender was a suitable candidate to serve her sentence by way of an Intensive Corrections Order (ICO), rather than full-time imprisonment.
Decision
On the male offender, the court imposed a head sentence of five years with a non-parole period of three years, commencing from 18 November 2015 to account for 15 months of pre-sentence custody already served. The court found that the objective gravity of the conduct meant that anything less than a substantial non-parole period would fail to reflect the seriousness of the offending. The defence submission that the pre-sentence custody alone could satisfy any custodial term was rejected.
The court acknowledged several mitigating factors for the male offender: his lack of any comparable prior criminal history, expressed remorse, significant rehabilitation achieved since arrest, and the particular hardship of serving a prison sentence as a former prison officer (with the attendant risk of identification and consequent need to serve time in protection). A finding of special circumstances was made, justifying a longer parole period relative to the non-parole period, to support continued rehabilitation on release.
For the female offender, the court found that a custodial sentence was required but that it was likely to be two years or less. The court was satisfied that, if she were found suitable, an Intensive Corrections Order was an appropriate mechanism. Relevant factors included her lack of prior record, her significant post-arrest rehabilitation, her role as the primary carer of children, and the risk that full-time imprisonment could displace her housing situation. The court adjourned sentencing to allow preparation of a suitability assessment report for an ICO.
The court was candid that, while hardship to children is a recognised sentencing consideration, it carries reduced weight where an offender has used the family home to store drugs, where a child knew of the dealing activities, and where the offender must have appreciated the risk of imprisonment before committing the offences.
Orders Made
- Male offender: head sentence of five years imprisonment, with a non-parole period of three years, commencing 18 November 2015. Non-parole period to expire 17 November 2018. Backup charges on the section 166 certificate withdrawn. Special circumstances found.
- Female offender: matter adjourned to 28 April 2017 for preparation of an ICO suitability report. No final sentence pronounced at this hearing.
Key Takeaways
- The District Court rejected the proposition that substantial rehabilitation and pre-sentence custody alone could reduce a sentence to the point where no further imprisonment was required, where the objective gravity of the conduct was high.
- A former prison officer facing a real risk of identification in custody, and the consequent prospect of serving time under harsher protection conditions, is a recognised factor capable of modulating the weight given to general deterrence at sentencing.
- Where a custodial sentence is assessed as likely to be two years or less and the offender is potentially suitable, an Intensive Corrections Order remains available as an alternative to full-time imprisonment.
- Hardship to children is a legitimate sentencing consideration, but the court signalled that its weight is diminished where the offender conducted drug activity from the family home and could reasonably have anticipated the consequences of detection.
- General deterrence carries particular force for offenders who deal drugs from a position of relative financial comfort rather than out of acute necessity, as the court found the lifestyle context here aggravated rather than mitigated the offending.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW): Form 1 procedure; special circumstances provisions; section 166 certificate
- Drug Misuse and Trafficking Act 1985 (NSW): offences of supplying a prohibited drug on an ongoing basis; possession of a prohibited drug for supply
- Crimes Act 1900 (NSW): dealing with property suspected of being proceeds of crime
Cases cited: No cases were cited in the judgment.