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District Court 14 December 2018

R v Rispen

[2018] NSWDC 403

Drugs
SENTENCING MULTIPLE FORM 1 OFFENCES PLEA OF GUILTY UTILITARIAN VALUE OF THE PLEA QUESTION OF REMORSE

Citation: R v Rispen [2018] NSWDC 403
Court: District Court of New South Wales
Date: 14 December 2018
Judge: Hatzistergos DCJ

Background

The offender was a central figure in a large drug supply network operating in south-western Sydney between approximately 2001 and 2014. Together with two co-offenders, he was involved in the supply and cultivation of significant quantities of prohibited drugs, including methylamphetamine, MDMA, and methorphan. The operation included a purpose-built truck concealing a hidden compartment used to transport drugs, a rented warehouse in Minto registered under a false identity created by the offender, and substantial sums of cash.

Police executed search warrants in June and July 2014, locating large commercial quantities of drugs at the Minto warehouse and cash (including $55,000 behind a false wall) at the offender's Sydney apartment. Upon learning that police were searching his truck, the offender immediately travelled to Bali, and remained at large for more than two years before returning to face proceedings.

The offender ultimately pleaded guilty to five counts of supplying a prohibited drug in a large commercial quantity under section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), one count of cultivating a prohibited plant in a large commercial quantity, and a number of additional offences taken into account on Form 1 (a procedural mechanism allowing the court to consider further charges without separate conviction).

  • What utilitarian discount, if any, should be applied to the guilty plea given the offender had absconded for more than two years in breach of conditional bail before ultimately pleading guilty?
  • Whether the offender's plea and other circumstances demonstrated genuine remorse, and how remorse should be weighed in sentencing.
  • How to apply the totality principle and the principle of concurrency to multiple serious drug supply offences attracting very heavy maximum penalties.
  • The appropriate weight to give mitigating factors, including the offender's personal circumstances, health, and background.

Decision

Hatzistergos DCJ found that the offending was serious and sustained. The quantities involved were well above the large commercial quantity thresholds, and the offender played a significant organisational role, including creating a false identity, modifying a truck to conceal drugs, and coordinating associates. The judge noted that the co-offenders had already been sentenced, and took care to ensure consistency across those sentencing outcomes while reflecting the offender's own level of culpability.

On the question of the guilty plea discount, the court applied the principles from R v Thomson; R v Houlton (2000) 49 NSWLR 383. Under those principles, a plea of guilty ordinarily attracts a utilitarian discount reflecting the benefit to the justice system of avoided proceedings. However, the court significantly reduced the available discount because the offender had absconded for over two years, causing considerable delay and expense before proceedings could continue. The court found this conduct substantially diminished the utilitarian value of the eventual plea.

On remorse, the court was not satisfied that the offender had demonstrated genuine contrition. The decision to flee to Bali immediately after becoming aware of police involvement, and the extended period of non-attendance, weighed against any finding of genuine remorse. The court acknowledged the offender's personal circumstances, including health issues and background, but found these did not substantially alter the sentencing outcome given the gravity of the offending.

Applying the totality principle, the court structured non-parole periods and head sentences to reflect the overall criminality without producing a crushing cumulative sentence. Several sentences were ordered to be served concurrently or partly concurrently to achieve this result.

Orders Made

  • The offender was convicted on five counts of supplying a prohibited drug not less than a large commercial quantity (section 25(2), Drug Misuse and Trafficking Act 1985) and one count of cultivating a prohibited plant not less than a large commercial quantity.
  • Additional Form 1 charges were taken into account.
  • An aggregate non-parole period of 10 years was imposed, commencing 21 May 2017 and expiring 20 May 2027.
  • The offender's earliest release date was set at 20 May 2027, subject to a decision of the State Parole Authority.

Key Takeaways

  • A guilty plea entered after an offender has absconded for a significant period in breach of bail will attract a substantially reduced utilitarian discount, reflecting the diminished benefit to the justice system from the delayed plea.
  • Absconding upon becoming aware of police investigation is a significant factor cutting against a finding of genuine remorse, even where a plea of guilty is ultimately entered.
  • Under section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), supply of a large commercial quantity of methylamphetamine carries a maximum penalty of life imprisonment, underscoring the legislature's intent that such offending be treated as among the most serious criminal conduct.
  • The totality principle requires a sentencing court to structure cumulative sentences so that the overall penalty is not disproportionate to the totality of the criminal conduct, even where multiple serious charges are established.
  • Consistency with sentences imposed on co-offenders is a relevant consideration, though differences in culpability, criminal history, and individual circumstances justify variation in outcome.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(2)(a), 25(1), 25(2)
- Crimes Act 1900 (NSW), ss 192E(1)(b), 193C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2), s 37

Cases
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- Markarian v R (2005) 228 CLR 357
- Melikian v R [2008] NSWCCA 156
- R v MacDonnell (2002) 128 A Crim R 44
- R v Trad [2003] NSWCCA 213
- Samuel v R [2017] NSWCCA 239
- Imbornone v The Queen [2017] NSWCCA 144
- Wat v R [2017] NSWCCA 62
- Wu v R [2018] NSWCCA 74
- Alvares v R (2011) 209 A Crim R 297
- Mun v R [2015] NSWCCA 234
- R v Harris [2001] NSWCCA 322
- R v Johnson [2005] NSWCCA 80
- Collier v R [2012] NSWCCA 213
- Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1) (2002) 56 NSWLR 137