Citation: R v Barnes [2018] NSWDC 329
Court: District Court of New South Wales
Date: 5 July 2018
Judge(s): Berman SC DCJ
Background
The offender, a 49-year-old man with a long history of drug dependency, appeared for sentence after pleading guilty at the earliest opportunity to supplying prohibited drugs on an ongoing basis. He also sought to have a related offence of dealing with property suspected of being proceeds of crime taken into account on a Form 1 (a procedural mechanism allowing additional offences to be considered without separate conviction).
The drug supply involved four transactions in June 2017 in which the offender supplied methylamphetamine and heroin to police-registered sources, receiving between $400 and $900 per transaction. When arrested, police found $1,600 in cash, which the offender admitted were proceeds of crime.
Two earlier matters also came before the court. The offender had previously received bonds for offences of assault occasioning actual bodily harm and criminal damage. Those bonds were breached by the present offending, and the court was asked to deal with the bond breaches as well.
Legal Issues
- What sentence was appropriate for the principal offence of supplying prohibited drugs on an ongoing basis, having regard to the offender's personal circumstances, mental health, and drug dependency?
- What discount, if any, should apply to reflect the utilitarian value of the early guilty plea?
- How should the court deal with the breached bonds for the assault occasioning actual bodily harm and criminal damage offences, and to what extent should those sentences be cumulative?
Decision
The court assessed the objective seriousness of the supply offence as significant, noting that even though the drugs were supplied to police-registered sources and did not reach end users, that outcome was incidental rather than intentional. As a user-dealer, the offender funded his own drug habit through supply, and the court observed he would have been acutely aware of the harm drugs cause given his own experience.
His Honour found that the offender's mental health diagnoses (borderline personality disorder and paranoid schizophrenia) and his Hepatitis C condition were relevant background factors, noting a suggested link between lethargy from Hepatitis C, self-medication with methylamphetamine, and eventual dependency. However, the court treated some of the offender's self-reporting with caution, noting inconsistencies between his account to the psychologist and what was established by the evidence.
A 25% reduction was applied to the sentence to reflect the utilitarian value of the early guilty plea. The court also noted as a mitigating factor the offender's sustained employment history of 24 years and his continued family support, with his elderly parents present in court and willing to have him live with them on release.
For the breached bonds, the court had little hesitation in imposing custodial sentences. Both the assault and criminal damage offences were described as serious, with the criminal damage arising from a sustained period of abusive and violent behaviour. Partially cumulative sentences were imposed across all matters to reflect the distinct criminality involved.
Orders Made
- Assault occasioning actual bodily harm: fixed term of imprisonment of 12 months, commencing 2 August 2017
- Criminal damage: fixed term of imprisonment of 6 months, commencing 2 August 2017
- Supplying prohibited drugs on an ongoing basis (with Form 1 offence taken into account): non-parole period of 12 months and head sentence of 2 years, commencing 2 May 2018
- Release to parole upon expiry of non-parole period on 1 May 2019
Key Takeaways
- A 25% sentencing discount was applied for an early guilty plea to reflect its utilitarian value, consistent with established sentencing principle.
- Where an offender has breached bonds by committing further serious offences, the District Court confirmed it will readily impose custodial sentences for the underlying bond matters, particularly where those offences were themselves serious.
- Partially cumulative sentences were required across the bond breach matters and the principal offence to reflect the separate criminality involved, even where the offender's personal circumstances were sympathetic.
- Mental health conditions and drug dependency were treated as relevant background factors going to the offender's history and circumstances, rather than as grounds for substantial mitigation, particularly where drug use appeared to contribute to the conditions.
- The fact that drugs were supplied to police-registered sources, and therefore did not reach end users, was treated as an incidental outcome rather than a mitigating factor, given the offender's clear intention to supply.
Legislation and Cases Referenced
No specific legislation or cases were cited in the judgment text or metadata.
The offences addressed include: supply prohibited drugs on an ongoing basis; dealing with property suspected of being proceeds of crime; assault occasioning actual bodily harm; and criminal damage.