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District Court 7 September 2018

R v McNab; R v O’Brien

[2018] NSWDC 289

Drugs
SENTENCING RELEVANT FACTORS ON SENTENCE

Citation: R v McNab; R v O'Brien [2018] NSWDC 289
Court: District Court of New South Wales
Date: 7 September 2018
Judge: Hatzistergos DCJ

Background

Two co-offenders, McNab and O'Brien, appeared for sentencing after each pleaded guilty to multiple drug supply offences committed in mid-2016 in the Sydney area. The principal charges involved supply of commercial quantities of MDMA (ecstasy) and supply of an indictable quantity of cocaine, contrary to the Drug Misuse and Trafficking Act 1985 (NSW).

Police had intercepted mobile telephone communications over a period of approximately two months, from June to August 2016. The intercepted calls and messages revealed a coordinated distribution operation, with both offenders arranging and completing a series of drug sales to various individuals across Sydney.

In addition to the principal charges, the court also took into account two further matters on a Form 1: a second cocaine supply charge and a charge of dealing with proceeds of crime (specifically $1,500 in cash). Both offenders were to be sentenced together, and the court was required to assess their individual culpability, personal circumstances, and prospects of rehabilitation separately.

  • What was the objective seriousness of the offending, including the quantity and nature of the drugs supplied?
  • What weight should be given to the guilty pleas entered by each offender?
  • What were the relevant subjective factors for each offender, including personal history, mental health, and prospects of rehabilitation?
  • How should the totality principle apply when sentencing for multiple charges, including Form 1 matters?
  • Whether the sentences for each co-offender should differ, and if so, to what degree?

Decision

The court assessed the offending as serious. The supply of commercial quantities of MDMA on two separate occasions, combined with the ongoing cocaine supply and the proceeds of crime dealing, demonstrated sustained criminal conduct over a meaningful period. Both offenders operated as equal partners in the enterprise, though the court gave separate consideration to the individual circumstances of each.

The court gave weight to the guilty pleas as evidence of genuine remorse and for their utilitarian value in saving court time and resources. For each offender, the court examined psychological reports, letters of support, personal background, and evidence of rehabilitation steps taken since arrest. O'Brien's subjective case included evidence of significant personal difficulties, including mental health matters addressed in expert reports. McNab's case similarly drew on character references and evidence of community ties, including support from a religious figure.

In applying the totality principle, the court structured the sentences as aggregate terms to reflect the overall criminality while avoiding a crushing outcome. The court was satisfied that full-time imprisonment was the only appropriate sentencing option given the nature and scale of the drug supply activity.

Orders Made

Darren O'Brien:
- Convicted and sentenced to an aggregate term of 5 years and 6 months imprisonment, commencing 3 August 2016 and expiring 2 February 2022
- Non-parole period (minimum term) of 3 years and 3 months, expiring 2 November 2019
- Additional term of 2 years and 3 months from 3 November 2019 to 2 February 2022, during which eligible for parole

Henry McNab:
- Convicted and sentenced to an aggregate term of 5 years and 6 months imprisonment, commencing 3 August 2016 and expiring 2 February 2022
- Non-parole period (minimum term) of 3 years and 3 months, expiring 2 November 2019
- Additional term of 2 years and 2 months from 3 November 2019 to 2 February 2022, during which eligible for parole

Both offenders' earliest release date was 2 November 2019.

Key Takeaways

  • The District Court treated sustained, coordinated supply of commercial quantities of MDMA over two months as seriously aggravating the objective gravity of the offending, even where the co-offenders were not operating at the highest level of a supply chain.

  • Guilty pleas were recognised as carrying both utilitarian value and as some evidence of remorse, but they did not displace the need for full-time custodial sentences given the scale of the drug distribution.

  • Where two co-offenders share substantially equal roles, individual sentencing outcomes may still differ at the margin once the court separately weighs each offender's subjective circumstances, including mental health, personal history, and rehabilitation prospects.

  • Under the totality principle, sentencing courts constructing aggregate sentences for multiple drug supply charges and Form 1 matters must ensure the overall sentence reflects the total criminality without producing a disproportionate or crushing result.

  • Proceeds of crime charges taken into account on a Form 1, even involving relatively modest sums, form part of the overall picture of criminality the court weighs when fixing the head sentence.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1) and 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 24, 32

Cases:
- R v Henry (1999) 46 NSWLR 346
- R v Thompson; R v Houlton (2000) 49 NSWLR 383
- R v Huang (2000) 113 A Crim R 386
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002 (2002) 56 NSWLR 146
- Lowe v R (2004) 154 CLR 606
- Vu v R [2006] NSWCCA 188
- Gedeon and Dow v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120
- R v Borkowski [2009] NSWCCA 102
- R v XX (2009) 195 A Crim R 38
- Scott v R [2010] NSWCCA 103
- R v DW [2012] NSWCCA 66
- Ho v R [2013] NSWCCA 174
- Subramanian v R [2013] NSWCCA 158
- Lamb v R [2014] NSWCCA 50
- Jadron v R [2015] NSWCCA 217
- Sabra v R [2015] NSWCCA 38
- R v Blare [2015] NSWCCA 78
- Jaafar v R [2017] NSWCCA 223
- R v Schwabegger (1998) 4 VR 649
- R v Shrestha (1991) 173 CLR 48