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District Court 28 September 2018

R v Duong

[2018] NSWDC 447

Drugs
CRIME SENTENCE GUILTY PLEA DRUG SUPPLY FORM 1 MATTERS HISTORY OF DRUG USE

Citation: R v Duong [2018] NSWDC 447
Court: District Court of New South Wales
Date: 28 September 2018
Judge: Wilson SC DCJ

Background

Police observed suspicious activity in a shopping centre car park in December 2017 and followed a vehicle driven by the offender. A search of the vehicle uncovered 37.17 grams of heroin packaged in multiple ways, 0.87 grams of methylamphetamine, and $3,275 in cash. A mobile phone found in the vehicle contained photographs of what appeared to be drug dealing records.

A subsequent search of the offender's home located small quantities of Oxycontin, Diazepam, and cannabis. The offender was charged with supply of a prohibited drug as the principal offence, with five additional matters placed on a Form 1 (a procedural mechanism that allows related charges to be taken into account in sentencing without separate conviction).

The offender, aged 40, had a history of drug use beginning in adolescence and a prior criminal record. He pleaded guilty at an early stage of the District Court proceedings and provided evidence of steps taken toward rehabilitation, including attendance at Odyssey House and a detoxification program.

  • What was the appropriate objective seriousness of the supply offence, given the quantity of heroin involved?
  • What aggravating and mitigating factors were relevant to the sentence?
  • Whether the guilty plea warranted the maximum 25% utilitarian discount on sentence
  • Whether special circumstances existed under s 44 of the Crimes (Sentencing Procedure) Act 1999 to justify departing from the standard ratio between the non-parole period and the head sentence
  • What head sentence and non-parole period were appropriate in all the circumstances

Decision

Wilson SC DCJ assessed the objective seriousness of the supply offence as falling just below the mid-range. The quantity of heroin, 37.17 grams, was more than seven times the indictable quantity, but the court did not find it open to characterise the offending as supply on a substantial scale.

Two aggravating factors were identified: the offender's prior criminal record, and the dual purpose of the offending, which was both for financial gain and to fund his own drug habit. Mitigating factors included genuine remorse and the early guilty plea. The court accepted that the guilty plea, entered at a relatively early stage after committal, warranted the maximum 25% discount on sentence.

The court found that special circumstances existed under s 44, primarily due to the offender's need for rehabilitation. This justified adjusting the standard statutory ratio between the non-parole period and the head sentence in favour of a longer parole period, providing more time for supervised re-entry into the community. Sentencing statistics were consulted to check consistency, though the court noted they provide only a broad guide and cannot substitute for a case-by-case assessment.

A pre-discount head sentence of four years was reduced to three years after the 25% guilty plea discount was applied. The non-parole period was set at two years, reflecting the finding of special circumstances.

Orders Made

  • The offender was convicted of supply prohibited drug (37.17 grams of heroin) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985
  • Non-parole period of two years, commencing 17 February 2018 and expiring 16 February 2020
  • Head sentence of three years
  • Release on parole at the expiry of the non-parole period

Key Takeaways

  • The District Court assessed objective seriousness as just below mid-range where the quantity of heroin was over seven times the indictable quantity but the evidence did not support a finding of large-scale commercial supply.
  • A guilty plea entered at an early stage of District Court proceedings, following committal, attracted the maximum 25% utilitarian discount on sentence.
  • Under s 44 of the Crimes (Sentencing Procedure) Act 1999, special circumstances can be established where a genuine rehabilitative need warrants a longer parole period relative to the non-parole period, allowing the court to depart from the standard statutory ratio.
  • Dual purpose offending, committed both for financial gain and to fund personal drug dependency, was treated as an aggravating factor.
  • Sentencing statistics were considered for consistency purposes but were not treated as determinative, consistent with the principle that statistical ranges offer only a broad guide and cannot account for the particular circumstances of individual cases.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Crimes Act 1900 (NSW), s 193C(2)
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1)

Cases
- R v Henry (1999) 46 NSWLR 346
- R v McNaughton (2006) 66 NSWLR 566