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District Court 23 August 2018

R v Deha Kelekci

[2018] NSWDC 227

Drugs
AGGREGATE SENTENCE

Citation: R v Deha Kelekci [2018] NSWDC 227
Court: District Court of New South Wales
Date: 23 August 2018
Judge: Mahony SC DCJ

Background

The offender was charged with three counts of supply of a prohibited drug under s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), following a covert police operation known as Strikeforce Rockface. The offending occurred between 6 April and 1 June 2016 and involved multiple transactions in methylamphetamine and GHB, conducted across various locations in inner Sydney. The offender was arrested on 2 June 2016 and had been in custody from that date.

The three counts covered supply of 4.18 grams of methylamphetamine (Count 1), 668 millilitres of GHB (Count 2), and 27.8 grams of a substance sold to an undercover operative as methylamphetamine but which on analysis contained no prohibited drug (Count 3). A further charge of supplying 2.25 grams of cocaine was included on a Form 1 for the court's consideration on sentence. At the time of the offending, the offender was subject to a s 10 bond for a driving offence, which had already been called up and revoked.

The offender entered guilty pleas on arraignment on 13 July 2018. A separate related matter had also been dealt with in the Supreme Court: R v Kelekci [2018] NSWSC 1209.

  • What aggregate sentence was appropriate given the nature, number, and circumstances of the supply offences?
  • How should the court apply the totality principle when imposing an aggregate sentence across multiple counts?
  • What weight should be given to the guilty plea, the offender's personal circumstances, and the time already spent in custody?
  • What was the appropriate commencement date for the sentence, given the period already served on remand?

Decision

His Honour sentenced the offender to an aggregate term of 3 years and 9 months imprisonment, with a non-parole period of 2 years and 6 months. The sentence was backdated to commence on 1 January 2017, reflecting the period already spent in custody since the arrest on 2 June 2016.

In arriving at the aggregate sentence, his Honour applied the principles set out in JM v R [2014] NSWCCA 297 and Berryman v R [2017] NSWCCA 297, which require the aggregate sentence to reflect the totality of the criminality involved. Where offences share common factors or form part of a single episode of criminality, the sentencing court must ensure the overall sentence is proportionate rather than merely the sum of its parts.

His Honour took into account the guilty pleas, the Form 1 cocaine supply charge, the offending conduct across multiple transactions over approximately two months, and the operation of the totality principle. The offences each carried a maximum penalty of 15 years imprisonment and/or 2000 penalty units.

Orders Made

  • The offender was convicted on all three counts of supply of a prohibited drug under s 25(1) of the Drug Misuse and Trafficking Act 1985.
  • An aggregate sentence of 3 years and 9 months imprisonment was imposed, comprising a non-parole period of 2 years and 6 months (commencing 1 January 2017, terminating 30 June 2019) and a balance of term of 1 year and 3 months (commencing 1 July 2019, terminating 30 September 2020).
  • The court certified that it took into account the Form 1 charge of supply of cocaine (2.25 grams).
  • The drugs the subject of each offence were ordered to be destroyed under s 39P of the Drug Misuse and Trafficking Act 1985.
  • The possession charge the subject of the s 166(1)(b) Certificate under the Criminal Procedure Act 1986 was dismissed.

Key Takeaways

  • An aggregate sentence for multiple drug supply counts must reflect the totality of the offender's criminality, not simply be calculated by adding individual sentences together, as confirmed by reference to JM v R and Berryman v R.
  • Where offences share common features or arise from a single episode of criminal conduct, the sentencing court is more likely to structure concurrent rather than cumulative terms to avoid a disproportionate result.
  • Backdating of a sentence to a date earlier than arraignment is available where an offender has spent a substantial period on remand, and the sentencing court considered the period from arrest in June 2016 when fixing the commencement date of 1 January 2017.
  • Under s 25(1) of the Drug Misuse and Trafficking Act 1985, supply of a prohibited drug carries a maximum penalty of 15 years imprisonment and/or 2000 penalty units, with each transaction capable of constituting a separate count on an indictment.
  • A Form 1 charge (here, supply of cocaine) does not result in a separate conviction but is taken into account when imposing the sentence for the principal offences, as the court certified in this case.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 39P
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10
- Criminal Procedure Act 1986 (NSW), ss 166(1)(b)
- Crimes Act 1900 (NSW)

Cases
- Berryman v R [2017] NSWCCA 297
- JM v R [2014] NSWCCA 297
- Parente v R [2017] NSWCCA 203
- R v Cahyadi [2007] NSWCCA 1
- R v Kelekci [2018] NSWSC 1209
- R v Van Ryn [2016] NSWCCA 1