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District Court 3 August 2018

R v Trimarchi

[2018] NSWDC 479

DrugsFirearms & weapons
CRIMINAL SENTENCE MULTIPLE CHARGES & FORM 1 MATTERS SUPPLY PROHIBITED DRUG POSSESS PROHIBITED DRUG POSSESS UNAUTHORISED PISTOL

Citation: R v Trimarchi [2018] NSWDC 479
Court: District Court of New South Wales
Date: 3 August 2018
Judge: King SC DCJ

Background

The offender was charged with five offences arising from a police investigation, Strike Force Strehlow, into cocaine supply from his unit in Redfern. Police obtained telephone intercept and surveillance device warrants, and gathered evidence of coded communications and in-person meetings used to supply drugs to an associate.

On 13 June 2017, police arrested the offender and executed a search warrant on his unit. The search uncovered a range of drugs hidden in modified everyday containers (spray cans, a candle, and a cosmetic bag) in the laundry and bedroom, along with a BB air pistol and ammunition in the bedroom wardrobe.

The offender faced four supply charges involving cocaine, methorphan, MDMA, and a further cocaine quantity supplied directly to his associate. The weapons charge concerned possession of an unauthorised pistol. He also asked the court to take into account five additional offences listed on a Form 1 (a procedural mechanism allowing related offences to be considered at sentencing without separate conviction), covering further quantities of MDMA, ketamine, cocaine, and 1,4-Butanediol.

  • What aggregate sentence was appropriate across five principal offences and six Form 1 matters involving multiple prohibited drugs and a firearm?
  • What discount applied for the early guilty plea entered at the committal stage?
  • How should the non-parole period and balance of term be structured given the offender's personal circumstances and apparent rehabilitation prospects?

Decision

The offender was committed for sentence from the Downing Centre Local Court on 9 November 2017 and was entitled to a 25% discount on each sentence for his early guilty plea, consistent with the principles in Thomson and Houlton (2000) 49 NSWLR 383. The discount was applied to each indicative sentence before the aggregate was determined.

King SC DCJ set indicative sentences for each principal offence: six months for supplying 1.75 grams of cocaine (Offence 1); 18 months for supplying 15.64 grams of methorphan (Offence 2); two and a half years for supplying 48.84 grams of MDMA inclusive of the five Form 1 matters (Offence 3); two years for supplying 33.98 grams of cocaine (Offence 4); and a fixed term of three months for possessing the unauthorised pistol inclusive of the ammunition Form 1 matter (Offence 5).

The aggregate sentence was set at three years, with a non-parole period of two years. His Honour backdated the sentence by nine days to account for time already spent in custody between 13 June 2017 and 22 June 2017. The non-parole period was calculated to expire on 24 July 2020, with the full term expiring on 24 July 2021.

His Honour made a minor adjustment to extend the balance of term to a full year of parole. The rationale was not that the offender required assistance with drug, alcohol, or other rehabilitation needs, but rather that a longer supervised period would assist his reintegration into the community given his stable employment history.

Orders Made

  • Non-parole period of two years, commencing 3 August 2018 (backdated nine days to account for time served), expiring 24 July 2020.
  • Balance of term of one year, with total sentence expiring 24 July 2021.
  • Order that the offender be released on parole on the expiry of the non-parole period on such terms and conditions as custodial authorities consider appropriate.
  • Fixed term of three months imposed for Offence 5 (possess unauthorised pistol), inclusive of Form 1 ammunition matter.

Key Takeaways

  • A 25% discount for an early guilty plea entered at committal applied consistently across all charges, in accordance with Thomson and Houlton.
  • Where multiple charges and Form 1 matters are sentenced together, the court sets indicative sentences for each offence before arriving at a single aggregate term under the Crimes (Sentencing and Procedure) Act 1999.
  • Form 1 matters, including indictable-quantity drug supply charges, are taken into account when sentencing for the nominated principal offence, increasing its weight without resulting in separate convictions or penalties.
  • The District Court adjusted the ratio between the non-parole period and balance of term to provide a full year of parole supervision, even in the absence of identified rehabilitation needs, to facilitate community reintegration.
  • Supply of prohibited drugs contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 carries a maximum of 15 years imprisonment, while possession of an unauthorised pistol under s 7(1) of the Firearms Act 1996 carries a maximum of 14 years and a four-year standard non-parole period.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1)
- Firearms Act 1996 (NSW), s 7(1)
- Crimes (Sentencing and Procedure) Act 1999 (NSW)

Cases
- Thomson and Houlton (2000) 49 NSWLR 383 (discount for early guilty plea)