Citation: [2018] NSWDC 194
Court: District Court of New South Wales
Date: 25 January 2018
Judge: Tupman DCJ
Background
Four co-offenders appeared before the District Court for sentencing following guilty pleas entered in the Local Court to charges arising from a connected series of drug supply operations in late 2015. The charges related to the supply of methamphetamine in commercial and large commercial quantities, uncovered during a police operation known as a Strikeforce. All four offenders had been refused bail from the time of arrest.
The quantities involved were significant. Two offenders faced charges relating to a 491-gram supply on 7 December 2015 and a 1.276-kilogram supply on 22 December 2015. The other two each faced a single charge relating to the 22 December supply. One offender also asked the court to take into account additional offences on Form 1 schedules (a procedure allowing a court to consider further charges without imposing a separate sentence), including cannabis supply and participation in cannabis cultivation.
The offending was characterised as organised criminal activity. Sentences ranged across offenders depending on their roles, prior criminal history, and the number and seriousness of the charges each faced.
Legal Issues
- What sentences were appropriate for each offender, taking into account the objective seriousness of commercial and large commercial drug supply?
- What discount should be applied to reflect the utilitarian value of early guilty pleas entered in the Local Court?
- How should Form 1 offences be taken into account in a meaningful way when sentencing for the substantive charges?
- Where two offences carried standard non-parole periods, was an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act appropriate?
- What weight should be given to individual mitigating factors, including rehabilitation in custody, absence of prior criminal record, and prospects of rehabilitation?
Decision
Guilty pleas and discount applied
Tupman DCJ accepted that all pleas were entered early, at the Local Court stage, and applied a 25% discount at the top of the range for utilitarian value, consistent with the Court of Criminal Appeal's guidance in R v Thomson & Houlton. Her Honour noted that a joint trial involving multiple accused, interpreters, surveillance evidence, and telephone intercept evidence would have consumed weeks of court time and resources.
Criticisms of the agreed facts documents
Her Honour was notably critical of the quality of the agreed facts documents tendered by the parties. She observed that the documents were, in substance, summaries of circumstantial evidence rather than genuine statements of what each offender did. For two offenders, significant portions of their respective documents were irrelevant to their charges. Her Honour described this as an example of "laziness" and limited assistance to the Court, noting she had considered adjourning the proceedings to compel proper agreed facts to be prepared.
Form 1 offences
In relation to the one offender who asked the court to take Form 1 offences into account, her Honour noted a near-complete absence of information about those offences beyond the signed form and a two-paragraph agreed statement. She observed that, absent exceptional circumstances, taking a Form 1 offence into account in a meaningful way must result in a longer sentence for the substantive offence than would otherwise be imposed. Her Honour also noted that the offender had been observed attending cannabis cultivation premises by police in November 2015 and queried whether the more serious methamphetamine supply offences might never have occurred had he been removed from the situation at that point.
Individual sentences
For the offender Do, an aggregate sentence of 8 years was imposed, with a non-parole period of 5 years. For the offender Nguyen, whose criminality was more extensive given two substantive charges and two Form 1 offences, an aggregate sentence of 10 years was imposed with a non-parole period of 6 years. Both aggregate sentences were structured under s 53A of the Crimes (Sentencing Procedure) Act, with indicative sentences set for each individual charge. The sentences for Duong and Tran are referred to in the judgment but the full terms are not reproduced in the available text.
Orders Made
- Do: aggregate sentence of 8 years, non-parole period of 5 years commencing 22 December 2015, expiring 21 December 2020; parole period of 3 years expiring 21 December 2023.
- Nguyen: aggregate sentence of 10 years, non-parole period of 6 years commencing 22 December 2015, expiring 21 December 2021; parole period of 4 years expiring 21 December 2025.
- Do ordered to pay a drug proceeds order of $3,000.
- Nguyen ordered to pay a drug proceeds order of $25,000.
- Nguyen ordered to pay compensation of $9,030 pursuant to s 97 of the Victims Rights and Support Act 2013, to be paid to the Registrar of the Downing Centre Local Court for disbursement to the property owner.
- Other orders as per short minutes of consent order.
Key Takeaways
- Early guilty pleas entered in the Local Court attract a discount at the top of the range (25%) for utilitarian value, particularly where a joint trial would have been lengthy and resource-intensive, consistent with R v Thomson & Houlton.
- Taking a Form 1 offence into account in a meaningful way requires sufficient information about the offence; where that information is lacking and no exceptional circumstances exist, the practical effect must be a longer sentence for the substantive charge.
- Agreed facts documents that are merely summaries of Crown evidence, rather than clear accounts of what each offender specifically did, provide inadequate assistance to a sentencing court and may delay proceedings.
- An aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act is an available mechanism where two offences each carry standard non-parole periods, resolving the technical difficulty of structuring consecutive or concurrent non-parole periods across such charges.
- Organised criminal activity involving large commercial quantities of methamphetamine attracts substantial custodial sentences, with the structure of individual sentences calibrated to each offender's role, criminal history, and the number of charges, including any Form 1 matters.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23, 25(1), 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Victims Rights and Support Act 2013 (NSW), s 97
Cases
- R v Thomson & Houlton (2000) 49 NSWLR 383 (Court of Criminal Appeal) — discount for utilitarian value of guilty plea