Citation: R v Brittain [2018] NSWDC 390
Court: District Court of New South Wales
Date: 6 August 2018
Judge: M L Williams SC DCJ
Background
The offender, born in 1983, was arrested on 29 February 2016 following a police undercover operation targeting drug supply in the Redfern and Annandale areas. Over a period of less than 30 consecutive days, he supplied heroin on five separate occasions to an authorised police operative. When arrested during the final transaction, police executed a search warrant at his Annandale residence and uncovered a substantial drug operation.
The search revealed heroin, methylamphetamine (ice) totalling 349 grams (above the commercial quantity threshold), cannabis, gamma-butyrolactone (GBL), approximately $46,395 in cash assessed as drug proceeds, eleven mobile phones, drug supply records, and a loaded .22 Marlin self-loading rifle in a wardrobe. The offender's DNA was found on the rifle's trigger, and his fingerprint was on a box of ammunition. The residence had been modified with additional locks, soundproofing, and a barricading mechanism.
The offender pleaded guilty at a relatively late stage to four counts, with a further four matters listed on a Form 1 (a procedure allowing the court to take additional offences into account when sentencing on the principal charges, without imposing separate penalties for each). He had an extensive criminal record spanning 18 pages, including a prior conviction for supply of a prohibited drug in 2013.
Legal Issues
- What aggregate sentence was appropriate across four counts of varying seriousness, including ongoing drug supply, commercial quantity supply of methylamphetamine, a separate heroin supply, and unlicensed firearm possession?
- How should the Form 1 matters (supply GBL, possess cannabis, money laundering, and possess ammunition) be weighed in sentencing on the principal counts?
- What discount applied for the utilitarian value of the guilty pleas?
- Whether special circumstances existed to justify a non-parole period that departs from the standard ratio of parole to total sentence.
- How should the principles of totality from Pearce v The Queen (1998) 194 CLR 610 apply, given that much of the offending occurred within a confined time period?
Decision
Williams SC DCJ assessed the objective seriousness of the offending as mid-range. The ongoing supply of heroin across five transactions, the commercial quantity of methylamphetamine, and the presence of a loaded prohibited firearm together reflected a sustained and organised drug operation. The court noted that even on the offender's own account, he was supplying drugs to fund his own habit, but emphasised that general deterrence remained a very significant sentencing consideration regardless of that motive.
A 10% discount was applied to reflect the utilitarian value of the guilty pleas, which were entered at a relatively late stage. The court applied the approach from the guideline judgment on Form 1 matters, treating those additional offences as aggravating the principal counts rather than as sources of separate penalties. The offender's lengthy criminal record, including a prior drug supply conviction, did not entitle him to leniency but was taken into account in assessing his prospects for rehabilitation, which the court characterised as "understandably guarded."
The court found special circumstances, justifying a non-parole period that represents a greater proportion of the sentence than the standard one-third available for parole. This finding recognised the offender's rehabilitation needs. The court applied the totality principle from Pearce v The Queen, imposing an aggregate sentence with some accumulation to reflect the distinct and serious nature of the separate offences, while ensuring the overall sentence was not crushing.
Orders Made
- The offender was convicted of each offence.
- An aggregate sentence of 6 years' imprisonment was imposed, commencing 29 February 2016 and expiring 28 February 2022.
- A non-parole period of 3 years and 7 months was set, expiring 28 September 2019.
- Indicative sentences: Count 1 (including Form 1 matters): 4 years 6 months; Count 2: 2 years 8 months; Count 3: 5 years (NPP 3 years); Count 4: 1 year 10 months.
- Special circumstances found.
- Two back-up charges were withdrawn and dismissed.
- A drug destruction order and firearm destruction order were made.
- Orders were made pursuant to two consent orders dated 3 August 2018.
Key Takeaways
- The District Court treated the presence of a loaded prohibited firearm in the same premises as a substantial drug operation as a significant aggravating feature when assessing overall objective seriousness.
- Under the Form 1 procedure, additional offences (including money laundering and possessing ammunition) were not sentenced separately but were folded into the sentence on the principal counts, increasing their weight rather than generating independent penalties.
- General deterrence carries considerable weight in drug supply sentencing, even where the offender supplies primarily to fund personal drug use rather than for commercial profit.
- A finding of special circumstances can justify a non-parole period representing a larger proportion of parole time than the statutory norm, particularly where rehabilitation needs are significant despite a poor prognosis.
- Applying Pearce v The Queen, the totality principle required some accumulation of sentences for separate, serious offences even when the offending occurred within a relatively short and confined period.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 25(2), 25A(1)
- Crimes Act 1900 (NSW), s 193C
- Firearms Act 1996 (NSW), ss 7A, 65(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
Cases
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Krivosic v R [2017] NSWCCA 167
- Parente v R [2017] NSWCCA 284
- Pearce v The Queen (1998) 194 CLR 610