Citation: R v Neal, R v Small & R v Williams [2018] NSWDC 30
Court: District Court of New South Wales
Date: 27 February 2018
Judge(s): Berman SC DCJ
Background
In the second half of 2015, three offenders operated a heroin supply network centred in Bathurst. Two of the offenders, a couple who lived together, would travel to Sydney to purchase heroin and then arrange for their neighbour to distribute it from his home. The neighbour received a share of the heroin for his own use as payment, selling the remainder and accounting for the proceeds.
Over approximately four months, the distributing offender received around 30 visitors per day and completed 292 separate drug supplies, amounting to roughly 160 grams of heroin. Police conducted significant surveillance of the operation and arrested all three offenders. During the investigation, a firearm, ammunition, and substantial cash were also located in connection with the primary organiser.
All three pleaded guilty at the earliest opportunity. Each had a criminal history, though their involvement in drug supply appeared to be a first for each of them. Their personal histories involved difficult upbringings, long-standing drug dependency, and, at the time of sentencing, varying degrees of engagement with rehabilitation programs.
Legal Issues
- What sentences were appropriate for each offender given the differing gravity of their individual roles in the supply operation?
- How should the parity principle be applied to ensure no offender had a justifiable sense of grievance when comparing sentences across co-offenders?
- What weight should be given to each offender's subjective circumstances, including their backgrounds, rehabilitation efforts, and prospects?
- Whether the circumstances of one offender warranted deferring sentencing to allow further demonstration of rehabilitation.
Decision
The court sentenced all three offenders to terms of imprisonment, differentiating on the basis of role, culpability, and subjective circumstances. The primary organiser received the longest sentence, reflecting his admitted status as the main driver of the operation, his extensive 36-page criminal history, and the additional aggravating factor of committing the offence while on an Intensive Corrections Order. His non-parole period was set at three years with a head sentence of five years, backdated to November 2016.
The co-organiser, who had a less dominant role than her partner but whose culpability the court found was not greatly different from his, received a non-parole period of two years with a head sentence of four years, dating from August 2017. The court drew on evidence from the distributing offender, who had observed the couple daily, to assess the respective roles of the two organisers.
The distributing offender occupied a lower rung in the supply hierarchy and was motivated less by financial gain than by access to drugs for personal use. The court noted he had spent more time in actual and quasi-custody than the co-organiser prior to bail. Given his strong rehabilitation progress, including residence at Odyssey House and a sustained period of drug-free living, the court deferred his sentencing until December 2018 under section 11 of the Crimes (Sentencing Procedure) Act. This allowed the court to assess how he managed life after leaving the residential rehabilitation facility.
Across all three offenders, the 25 per cent discount for early guilty pleas was applied. The court also addressed the two charges against the distributing offender and determined that no additional punishment was warranted for the ongoing supply offence, as its criminality was subsumed within the more serious supply simpliciter charge involving 292 individual transactions.
Orders Made
- The primary organiser sentenced to imprisonment with a non-parole period of 3 years and a head sentence of 5 years, commencing 2 November 2016; eligible for parole from 1 November 2019.
- The co-organiser sentenced to imprisonment with a non-parole period of 2 years and a head sentence of 4 years, commencing 3 August 2017; eligible for parole from 2 August 2019.
- The distributing offender granted bail under section 11 of the Crimes (Sentencing Procedure) Act; sentencing adjourned to 14 December 2018, subject to conditions including: no use of illegal drugs; supervision by the Probation and Parole Service; fortnightly urinalysis with results provided to the court; persistent efforts to gain employment; and residence with his brother.
Key Takeaways
- The District Court applied the parity principle carefully by distinguishing both the objective gravity of each offender's role and their individual subjective circumstances, ensuring sentences across co-offenders could withstand comparison.
- Where an offender occupies a subordinate role in a drug supply arrangement and is motivated primarily by personal drug dependency rather than financial gain, those factors bear on both culpability and the structure of the sentence imposed.
- A conviction for supplying a prohibited drug on an ongoing basis does not automatically attract greater punishment than a supply simpliciter charge; where the objective criminality of the ongoing supply offence is lesser, the court may treat its criminality as encompassed by the other charge.
- Deferral of sentencing under section 11 of the Crimes (Sentencing Procedure) Act may be appropriate where a rehabilitating offender requires further time to demonstrate sustained drug-free living and stable post-release arrangements.
- Sufficient evidence of genuine rehabilitation progress, including completion of structured residential programs and extended clean urinalysis results, can influence both the structure of a sentence and the timing of its imposition.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 11 (adjournment for rehabilitation assessment before sentencing)
Cases:
No cases were cited in the judgment.