Citation: R v Kramer [2018] NSWDC 491
Court: District Court of New South Wales
Date: 11 May 2018
Judge: King SC DCJ
Background
The offender appeared for sentencing on a range of serious criminal offences, including multiple counts of agreeing to supply prohibited drugs, possession of a shortened firearm, dangerous driving to avoid police pursuit, and driving while disqualified. The offences were committed across several incidents in 2016 in the Albury-Lavington area of regional New South Wales.
The drug offences involved methylamphetamine, cannabis leaf, and 1,4-Butanediol (a prohibited drug). Quantities in each case exceeded the relevant indictable threshold under the Drugs Misuse and Trafficking Act 1985, though none reached the commercial quantity threshold. Two further drug possession offences and two driving offences were placed before the court on a Form 1 and a section 166 certificate respectively, to be taken into account on sentence.
The offender was 24 years old at the time of sentencing, and the proceedings involved consideration of his background, including personal history and drug dependency, in mitigation.
Legal Issues
- What aggregate sentence was appropriate across the principal offences, having regard to objective seriousness and the totality principle?
- How should the Form 1 matters (proceeds of crime dealing, drug possession) and section 166 certificate matters (dangerous driving, disqualified driving) be treated in the overall sentencing exercise?
- Whether a sentencing discount was warranted for the offender's assistance to authorities in disclosing the location of the firearm.
- Whether special circumstances existed to justify a longer than usual parole period relative to the non-parole period.
- Whether an error in the charge citation for the proceeds of crime offence (referencing the wrong subsection of section 193C of the Crimes Act 1900) required correction.
Decision
His Honour identified an error in both the Form 1 and the Court Attendance Notice, which incorrectly cited section 193C(1) of the Crimes Act 1900 (carrying a maximum of five years) for the proceeds of crime offence. The amount involved was $12,500, which fell within subsection (2), attracting a maximum of three years. With the agreement of both parties, the court amended the relevant documents accordingly.
In assessing objective seriousness across the drug supply charges, His Honour noted that the quantities, while each substantially below the commercial threshold, were significantly above the relevant indictable quantities. The methylamphetamine the subject of the principal supply charge was more than ten times the indictable quantity. The cannabis leaf was 4.5 times the indictable quantity, and the 1,4-Butanediol was ten times the indictable quantity.
The dangerous driving offence was characterised as objectively serious. The offender had accelerated to 90 km/h in a 60 km/h zone, crossed onto the wrong side of the road, and failed to stop for police. His Honour accepted the absence of detail in the agreed facts about traffic conditions but found that travelling at that speed on the wrong side of an urban road posed a substantial risk to others.
His Honour declined to award a formal sentencing discount for the offender disclosing the firearm's location to police, although the court acknowledged the practical benefit of removing the weapon from the community. Special circumstances were found, based on the offender's youth (24 years), this being his first substantial period of custody, and the need for an extended period on parole to address his drug dependency in the community.
Orders Made
- Aggregate custodial sentence imposed across the principal offences (precise non-parole and parole periods not reproduced in the provided text).
- Special circumstances found, resulting in a modified ratio between the non-parole period and the total sentence.
- Forfeiture order made under section 18(1) of the relevant Act, directing that approximately $12,500 in cash seized from a leased storage premises on 17 June 2016 be forfeited to the State, with the current value assessed at $12,500 under section 18(3).
- No separate discount applied for assistance to authorities in relation to the firearm.
Key Takeaways
- An error in citing the subsection of a proceeds of crime offence on a Form 1 and Court Attendance Notice can be corrected on sentence with the agreement of both parties, including correction of the applicable maximum penalty.
- Where drug quantities exceed the indictable threshold but fall well short of the commercial threshold, the sentencing court places significant weight on the ratio between the quantity charged and the relevant statutory benchmarks when assessing objective seriousness.
- The District Court declined to treat an offender's disclosure of a firearm's location as warranting a formal discount for assistance to authorities, while still acknowledging it as a relevant consideration in the overall sentencing exercise.
- Special circumstances under the Crimes (Sentencing Procedure) Act 1999 were established where the offender was young, had not previously served a substantial custodial sentence, and had significant drug dependency requiring structured community supervision.
- Under the principles in Fernando v R (1992) and Bugmy v The Queen [2013] HCA 37, an offender's background and personal history remain relevant to the sentencing exercise, particularly where drug dependency is connected to the offending.
Legislation and Cases Referenced
Legislation:
- Drugs Misuse and Trafficking Act 1985 (NSW), ss 10(1), 23(1)(b), 25(1)
- Crimes Act 1900 (NSW), s 193C(1) and (2)
- Firearms Act 1996 (NSW), s 62(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 166, 18(1), 18(3)
Cases:
- Bugmy v The Queen [2013] HCA 37
- Fernando v R (1992) 76 A Crim R 58