Citation: R v Garland [2018] NSWDC 437
Court: District Court of New South Wales
Date: 19 November 2018
Judge: Berman SC DCJ
Background
The offender, a 61-year-old man with a minimal criminal history, pleaded guilty to supplying a large commercial quantity of MDMA in New South Wales. The act of supply consisted of sending a package from the Northern Territory to Sydney at the direction of a co-offender, Mr Noor, so that Mr Noor could regain possession of drugs he had originally sent north. The drugs were being returned because of concerns about their quality.
The offender had led a largely industrious life before a series of adverse events, including a near-fatal poisoning at work, a series of failed business ventures, and involvement with an outlaw motorcycle club, led to his involvement in drug-related activity. At the time of sentencing he had been in custody for over two years, during which his depression had worsened.
The co-offender, Mr Noor, was being sentenced separately. He had pleaded guilty at the earliest opportunity but had a more serious criminal history and appeared to have been more centrally involved in the offending. Parity between the two sentences was a relevant consideration.
Legal Issues
- Whether the standard non-parole period of 15 years should be imposed, having regard to the objective gravity of this particular instance of large commercial drug supply.
- How to assess the objective gravity of an act of supply consisting of returning drugs to their original sender.
- Whether a late guilty plea, coupled with initial denials of involvement, still warranted a discount for utilitarian value.
- Whether a finding of special circumstances was appropriate where the Probation and Parole Service indicated it would not supervise the offender even if an order to that effect were made.
- How to apply the parity principle given the co-offender's separate sentencing before a different judge.
Decision
Berman SC DCJ determined that the offence, while serious as a matter of law, sat at the lower end of the objective gravity scale for large commercial drug supply. The act of supply was facilitating the return of drugs to the person who had originally dispatched them, rather than distributing them into the community. The drugs were also of low purity, and were ultimately seized by police before reaching the market.
The standard non-parole period of 15 years was not imposed. His Honour took both the standard non-parole period and the maximum penalty of life imprisonment into account but departed downward, citing the limited role of the offender, the drug's low purity, and the strong subjective case including good prospects of rehabilitation.
The guilty plea, though late and preceded by denials, still attracted a 15 per cent utilitarian discount. The offender had only belatedly accepted responsibility, as reflected in his initial claim that the intercepted telephone calls had been misinterpreted. Despite this, the court accepted his rehabilitation prospects as good, supported by the Probation and Parole Service's assessment of him as a low-to-medium reoffending risk.
On special circumstances, His Honour identified a significant sentencing question: where the Probation and Parole Service will not supervise an offender regardless of any court order, the usual justification for extending the parole period at the expense of the non-parole period is weakened. The court noted this issue remains unresolved at the appellate level and indicated that such a circumstance makes a finding of special circumstances less likely, though not impossible. On the particular facts, the offender's first time in custody and deteriorating mental health supported a finding of special circumstances, and the sentence was structured to permit near-immediate release.
Orders Made
- Non-parole period of two years and six months, commencing 15 September 2016.
- Head sentence of five years, commencing 15 September 2016.
- Non-parole period expiring 14 March 2019.
- Special circumstances found, resulting in a ratio of non-parole to total sentence of 50 per cent (below the standard two-thirds ratio).
Key Takeaways
- Not all offences of supplying a large commercial quantity of drugs carry the same objective gravity; the specific circumstances of the act of supply, including the offender's role and the nature of the transaction, are relevant to whether the standard non-parole period should be imposed.
- A late guilty plea, entered after the offender initially disputed the Crown's interpretation of the evidence, can still attract a utilitarian discount, though the court will take the timing and circumstances of the plea into account in calibrating that discount.
- Where the Probation and Parole Service indicates it will not supervise an offender even if a supervision order is made, the conventional rationale for a special circumstances finding (community benefit through structured reintegration) is materially undermined. The District Court flagged that this issue warrants appellate consideration.
- A finding of special circumstances remains available notwithstanding the absence of prospective supervision, where other factors, such as a first period of custody and deteriorating mental health, independently support extending the parole period.
- The parity principle required the court to structure the sentence so that the offender, assessed as less culpable than the co-offender, would not have a justifiable sense of grievance when comparing the two sentences.
Legislation and Cases Referenced
Legislation:
- No specific legislation was cited in the judgment text, though the offence is an offence of supplying a large commercial quantity of a prohibited drug under New South Wales law, carrying a maximum penalty of life imprisonment and a standard non-parole period of 15 years.
Cases:
- No cases were cited in the judgment text.