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District Court 16 August 2018

R v Dante Cantro De La CRUZ

[2018] NSWDC 292

Drugs
CRIMINAL LAW SENTENCE SUPPLY PROHIBITED DRUGS METHYLAMPHETAMINE 18.64 GRAMS FORM 1

Citation: R v Dante Cantro De La CRUZ [2018] NSWDC 292
Court: District Court of New South Wales
Date: 16 August 2018
Judge(s): Tupman DCJ

Background

The offender pleaded guilty in the Local Court to one count of supplying a prohibited drug, namely 18.64 grams of methylamphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum penalty of 15 years' imprisonment. He also asked the sentencing court to take into account, on a Form 1, a charge of knowingly dealing with proceeds of crime totalling $9,350.

Police observed the offender in the Sydney CBD in May 2017, behaving in a manner consistent with street-level drug supply. He used a swipe key to grant others access to a Haymarket apartment building and appeared to conduct exchanges with individuals who approached him. When police identified themselves, the offender fled and was apprehended after a short chase.

On arrest, police located two separate quantities of crystal methylamphetamine concealed on his person, seven resealable bags in his pants pocket and a larger bag hidden in his underpants, totalling 18.64 grams. Cash of $9,350 in separate bundles and two mobile phones containing drug supply-related messages were also found.

  • What was the appropriate objective seriousness of the supply offence given the quantity, the offender's role, and the surrounding circumstances?
  • What discount applied for the early guilty plea, and how should the Form 1 offence affect the overall sentence?
  • What weight should be given to the offender's significant criminal history for similar offending?
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio, and if so, to what extent.

Decision

Tupman DCJ assessed the objective seriousness of the offending as below mid-range. While the 18.64 grams was almost four times the indictable quantity and six times the trafficable quantity for methylamphetamine, it was well short of the commercial quantity of 250 grams. The court found the offender was more than a mere courier but was towards the lower end of any drug supply hierarchy, and that his addiction to methylamphetamine was a partial motivator alongside financial gain.

The offender received the maximum 25% discount for his early guilty plea in the Local Court, consistent with the Court of Criminal Appeal's guidance in R v Thomson and Houlton. His significant criminal history, including prior convictions for drug supply and dealing with proceeds of crime dating back to 1993 and including a period of imprisonment in 2008 for similar conduct, was treated as an aggravating factor.

The court accepted that the offender had genuine prospects of rehabilitation, supported by evidence of his addiction and steps taken towards addressing it. This constituted special circumstances justifying a longer than standard parole period, adjusted to 15 months, to accommodate supervision, relapse prevention, and vocational guidance following release.

The Form 1 proceeds of crime offence was treated as an integral indicator of the offender's involvement in drug trafficking, but did not substantially increase the overall sentence. A pre-discount sentence of four years was set, reduced to three years after applying the guilty plea discount.

Orders Made

  • The offender was convicted and sentenced to a total term of imprisonment of three years, commencing 24 May 2017 and expiring 23 May 2020.
  • Non-parole period of one year and nine months, commencing 24 May 2017 and expiring 23 February 2019.
  • Parole period of one year and three months, commencing 24 February 2019 and expiring 23 May 2020.
  • The Form 1 offence (dealing with proceeds of crime) was taken into account.
  • The sum of $9,350 was forfeited to the State.
  • Release to parole directed, subject to referral (if possible) to the Red Cross post-release mentor program and psychological intervention for relapse prevention.
  • Backup offences (sequences 3, 4, 5) dismissed.

Key Takeaways

  • The District Court confirmed that a deemed supply charge does not preclude a finding that the offender was genuinely involved in active drug trafficking, particularly where surrounding circumstances, text messages, and cash in bundles support that inference.
  • A quantity of methylamphetamine well below the commercial threshold, combined with a lower-level role in the supply chain and a drug addiction that partly motivated the offending, can place an offence below mid-range objective seriousness even where the indictable quantity is significantly exceeded.
  • Under R v Thomson and Houlton, a plea entered at the first available opportunity in the Local Court attracts the maximum 25% discount, which the court applied directly to reduce the pre-discount sentence of four years.
  • Significant criminal history for similar offences, including prior imprisonment for drug supply and dealing with proceeds of crime, remains a weighty aggravating factor even where rehabilitation prospects are acknowledged.
  • Special circumstances were established on the basis of the offender's addiction and rehabilitation needs, resulting in a parole period of 15 months and a non-parole period representing approximately 60% of the total sentence, rather than the standard statutory ratio.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)

Cases
- R v Thomson and Houlton (2000) 49 NSWLR 483 (Court of Criminal Appeal, on guilty plea discounts)