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District Court 3 July 2018

R v Kirk

[2018] NSWDC 217

Drugs
CRIMINAL LAW SENTENCE FORMS 1 S166 CERTIFICATE DRUG SUPPLY COCAINE

Citation: R v Kirk [2018] NSWDC 217
Court: District Court of New South Wales
Date: 3 July 2018
Judge: Berman SC DCJ

Background

The offender, a 35-year-old man with a significant drug-related criminal history, appeared for sentencing on multiple charges of drug supply involving cocaine and methylamphetamine. The offending occurred across two separate incidents in 2016 and 2017. At the time of both incidents, the offender was on conditional liberty, specifically on both bail and parole simultaneously.

In July 2016, police stopped the offender while he was driving in Glebe and, following a search, found 3.52 grams of cocaine and 0.13 grams of methylamphetamine on his person, together with $890 in cash. A shopping bag in the boot of his car was found to contain a further 31.5 grams of methylamphetamine, which the court identified as the most serious charge. The offender initially denied any connection to that bag.

In November 2017, while still on bail and parole in connection with the 2016 matters, police again stopped the offender driving a vehicle and found two further quantities of methylamphetamine: 5.41 grams and 14.72 grams. The offender pleaded guilty to the supply offences, with the plea for the most serious charge entered only days before the scheduled trial.

  • What sentence was appropriate having regard to the offender's drug supply offences, his prior history, and the circumstances of each incident?
  • What weight should be given to the aggravating circumstance that the offending occurred while the offender was on conditional liberty (bail and parole)?
  • What discount applied to the sentences for the offender's guilty pleas, given the timing of those pleas differed across charges?
  • Whether special circumstances existed to justify a non-parole period that departs from the standard ratio, to allow for an extended period of supervised parole?
  • What forfeiture orders were appropriate?

Decision

Berman SC DCJ treated the offending while on both bail and parole as a serious aggravating factor requiring specific reflection in the sentence. His Honour emphasised that both general deterrence and personal deterrence were significant considerations, given the offender's continuing pattern of drug supply despite prior convictions and prior periods on conditional liberty.

The court found that the offender was not merely a street-level dealer, particularly given the quantity of methylamphetamine found (notably the 31.5-gram quantity), the presence of two sets of electronic scales, and a password-protected phone. His Honour was not satisfied on the balance of probabilities that the offending fell at the lowest end of the dealing scale, although the offender was not characterised as a major trafficker.

Mitigating factors considered included the offender's ADHD diagnosis, the impact of his parents' separation during his formative years, his history of drug dependency (which contributed to, though did not solely explain, his supply offending), and his engagement in the EQUIPS program while in custody. His Honour also acknowledged a genuine, if guarded, desire to overcome addiction. The guilty pleas attracted discounts of approximately 10% for the most serious charge (entered late) and approximately 25% for the remaining charges. The court found the offender's remorse to be expressed in conditional terms, focused largely on the effects of his conduct on himself and his family rather than on the broader harm caused by drug supply.

Special circumstances were found to exist, justifying a non-parole period set at half of the aggregate term rather than the standard two-thirds ratio. This reflected the court's assessment that the offender would require substantial and lengthy supervisory support upon release.

Orders Made

  • Aggregate sentence of seven years imprisonment, backdated to 3 January 2018
  • Non-parole period of three and a half years, with eligibility for parole from 2 July 2021
  • All matters on the section 166 certificate withdrawn and dismissed
  • Forfeiture order made in respect of $890

Key Takeaways

  • Offending while on both bail and parole simultaneously was treated as a serious aggravating factor requiring explicit reflection in the sentence, with both general and personal deterrence elevated in importance.
  • The District Court declined to accept a characterisation of the offender as a street-level dealer only, relying on the quantities of drugs found, the presence of two sets of scales, and other circumstantial indicators of dealing above the lowest tier.
  • A guilty plea entered only days before trial attracted a discount of approximately 10%, while earlier pleas to lesser charges attracted a discount of approximately 25%, illustrating the relationship between plea timing and the quantum of discount.
  • Special circumstances were found on the basis of the offender's need for extended post-release supervision and support, resulting in a non-parole period set at half rather than two-thirds of the aggregate term.
  • Remorse that focused primarily on the impact of offending on the offender and his immediate family, rather than on the wider harm caused to others, was treated as conditional and given limited weight.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 166 (certificate procedure for matters taken into account on a Form 1)

Cases:
- No specific cases were cited in the text provided. His Honour referred generally to binding authorities on the treatment of offending while on conditional liberty, but those cases were not named in the judgment extract.