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District Court 2 October 2018

R v BENNET

[2018] NSWDC 454

Drugs
CRIMINAL SENTENCE SUPPLY PROHIBITED DRUG ON ONGOING BASIS METHYLAMPHETAMINE SUBJECTIVE MATTERS MENTAL HEALTH ISSUES

Citation: R v Bennet [2018] NSWDC 454
Court: District Court of New South Wales
Date: 2 October 2018
Judge: King SC DCJ

Background

The offender, a woman with a significant history of drug addiction, mental health problems, and a deprived background, appeared for sentence on a single charge of supplying a prohibited drug on an ongoing basis under s 25A(1) of the Drug Misuse and Trafficking Act 1985. She also asked the court to take into account four further supply offences on a Form 1. All offences involved methylamphetamine (and some heroin) supplied across inner Sydney suburbs including Kings Cross, Darlinghurst, Surry Hills, and Newtown between July and September 2017.

Police identified the offender through a controlled operation involving phone intercepts, surveillance, and undercover operatives. The evidence showed she ran a structured street-level drug business, using coded language, two mobile phones, and "runners" to deliver drugs to customers. She was purchasing approximately half an ounce each of methylamphetamine and heroin every two to three days, consuming part herself and selling the rest to fund a habit she estimated cost $1,000 per day.

On arrest, the offender cooperated fully, participated in a recorded interview, made complete admissions, and confirmed her involvement when shown surveillance footage and intercepts. Police also located drug scales, packaging materials, and $3,290 cash at her address.

  • What was the appropriate sentence for ongoing drug supply of methylamphetamine, taking into account the Form 1 offences?
  • What weight should be given to the offender's mental health issues, deprived background, and history of disadvantage in mitigation?
  • Whether any causal or contributory relationship existed between the offender's mental health and her offending, relevant to moral culpability?
  • Whether special circumstances existed justifying a departure from the standard statutory relationship between the non-parole period and the additional term, in light of the offender's institutionalisation?

Decision

The court assessed the objective seriousness of the principal offence as falling below the mid-range. The offending involved 16 separate supplies over approximately four weeks, across multiple Sydney suburbs, with the offender operating as a street-level dealer using runners and two phones. While organised, the operation was not at the upper end of commercial drug supply, and the quantities involved were relatively modest. The Form 1 offences, though taken into account, did not result in cumulative sentences.

On subjective matters, the court accepted that the offender had experienced a severely deprived background, had longstanding and serious mental health issues, and was significantly drug-dependent. Consistent with the principles in R v Fernando and R v Bugmy, the court acknowledged the relevance of deep social disadvantage and the residual impact of childhood deprivation. However, the court was required to assess whether any connection existed between the mental health issues and the actual offending, and on the evidence available, that connection was limited. The primary driver of the offending was funding her drug habit rather than a direct product of her psychiatric conditions.

The court gave significant weight to the offender's guilty plea, her full cooperation with police, and her remorse. These factors attracted a discount from the sentence that would otherwise have been imposed. The court also noted that general and specific deterrence remained important sentencing considerations for drug supply offences of this nature, consistent with Court of Criminal Appeal authority.

On the question of special circumstances, the court found that the offender had become institutionalised through the accumulation of time in custody as an adult, with only brief periods in the community. The court found special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, extending the additional term beyond the standard ratio. The court noted, however, that the benefit of a longer parole period would only be realised if the offender actively addressed her drug dependence and mental health issues during the non-parole period; the opportunity, as the court observed, remained entirely in her hands.

Orders Made

• Non-parole period reduced from the statutory relationship by nine months
• Special circumstances found
• Additional term increased to facilitate offender's supervision on parole

Key Takeaways

  • Under s 25A(1) of the Drug Misuse and Trafficking Act 1985, the maximum penalty for ongoing drug supply is 20 years imprisonment, with no standard non-parole period applying; the sentencing court must calibrate the sentence to the objective seriousness of the specific conduct.

  • A deprived background and mental health history are recognised mitigating factors, but their weight in reducing moral culpability depends on whether a sufficient nexus exists between those circumstances and the offending itself; the District Court found that nexus to be limited where the primary motivation was funding drug dependency.

  • Consistent with R v Bugmy [2013] HCA 37 and R v Fernando (1992) 76 A Crim R 58, the residual effects of childhood deprivation do not diminish with the passage of time and remain relevant throughout an offender's life.

  • Special circumstances justifying a reduced non-parole period and extended parole term may be found where an offender has become institutionalised, but the mere fact of institutionalisation does not compel such a finding; there must be some prospect that rehabilitation can be achieved through a longer supervised period in the community.

  • Full cooperation with police, participation in a recorded interview with complete admissions, and a guilty plea each attracted sentencing discounts, reinforcing the significance courts place on early and genuine cooperation in drug supply matters.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 44(2)

Cases
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518
- R v Beale [2015] NSWCCA 120
- DPP (Cth) v De La Rosa (2010) 205 ACrimR 1
- R v Bugmy [2013] HCA 37
- R v Fernando (1992) 76 A Crim R 58
- R v Hoskins [2016] NSWCCA 157
- R v McIlwraith [2017] NSWCCA 13
- R v Thomson; R v Houlton (2000) 115 ACrimR 104
- R v Wasson [2014] NSWCCA 95