Citation: R v Markee [2018] NSWDC 429
Court: District Court of New South Wales
Date: 28 November 2018
Judge(s): ML Williams SC DCJ
Background
The offender, a woman born in August 1992, appeared for sentencing after pleading guilty at an early opportunity to two counts of supply of a prohibited drug (methylamphetamine) under the Drug Misuse and Trafficking Act 1985. A related charge of knowingly participating in a criminal group under the Crimes Act 1900 was placed on a Form 1 to be taken into account on the first count.
The offending arose from a drug supply operation in which the offender participated alongside her then-husband and a third alleged co-offender. In March 2017, her husband directed an undercover police officer to meet her in Parramatta, where she supplied 14 grams of methylamphetamine in exchange for $2,000. On 14 June 2017, police arrested her alone in a hotel room booked in her name, where they found 439 grams of methylamphetamine, drug paraphernalia, and over $10,000 in cash. A further 1,255 grams of methylamphetamine was concealed inside a teddy bear in the room, though the Crown accepted she was unaware of that quantity.
The offender had been in custody since her arrest on 14 June 2017. It was common ground between the parties that a term of imprisonment was required. The sentencing proceeded alongside that of her co-accused husband.
Legal Issues
- What aggregate term of imprisonment was appropriate given the objective seriousness of the offending and the offender's comparatively minor role?
- Whether a 25% discount applied for the utilitarian value of an early guilty plea
- Whether special circumstances existed justifying a non-parole period that departed from the standard statutory ratio
- How the Form 1 criminal group participation charge should be reflected in the indicative sentence for Count 1
Decision
The District Court assessed the objective seriousness of the offending as very low, though not the lowest possible. The Crown conceded that the offender's role was the least significant of the three participants: she acted at her husband's direction, was not aware of the full quantity of drugs in the hotel room, and had only one prior matter on her record (a property damage fine from 2014), leaving her effectively a person of good character.
The court accepted psychological and pre-sentence report material prepared by Dr Mark Milic indicating a disadvantaged background, including childhood trauma, ADHD, post-traumatic stress disorder, a submissive personality type, and a history of self-medicating with prescription drugs. The court noted the guidance in R v Qatami that untested psychological material should be approached with some caution, but accepted it in the absence of any contrary indication and given the strong family support described. The offender was assessed as a medium risk of re-offending.
The court found special circumstances existed, principally because Community Corrections recommended supervision upon release to support the offender's rehabilitation. This finding justified reducing the non-parole period below the standard one-third ratio. The court accepted the offender's expressions of remorse in a letter to the court and noted her engagement in drug addiction programs and educational courses while in custody.
A 25% discount was applied to the total sentence to reflect the utilitarian value of the early guilty plea, as conceded by the Crown.
Orders Made
- The offender was convicted of each offence
- An aggregate sentence of imprisonment of 3 years was imposed, commencing 14 June 2017 and expiring 13 June 2020
- A non-parole period of 1 year and 6 months was set, expiring 13 December 2018, with the offender eligible for release to parole on that date
- Indicative sentence for Count 1 (including the Form 1 matter): 2 years and 3 months, with a non-parole period of 14 months
- Indicative sentence for Count 2: 14 months
- Special circumstances were formally found
Key Takeaways
- A participant's relative role within a co-offending group is a material consideration in sentencing for drug supply, and the District Court here expressly distinguished the offender's culpability from that of the directing co-accused
- Where an offender acts at the direction of another, is unaware of the full extent of the drugs involved, and has minimal prior criminal history, these factors can collectively support a finding of very low objective seriousness even where the quantities of prohibited drug involved are substantial
- Untested psychological and pre-sentence report material may still be relied upon in sentencing, consistent with R v Qatami, where there is no contrary indication and the material is supported by other evidence such as family corroboration
- A recommendation from Community Corrections that an offender would benefit from post-release supervision can support a finding of special circumstances, reducing the non-parole period below the standard ratio to allow adequate time on parole for rehabilitation
- Early guilty pleas attracted a 25% utilitarian discount, applied to the aggregate sentence
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1) and 25(2)
- Crimes Act 1900 (NSW), s 93T
Cases:
- R v Qatami (2001) 127 A Crim R 369