Citation: R v Afrifa [2018] NSWDC 507
Court: District Court of New South Wales
Date: 8 May 2018
Judge: Syme DCJ
Background
The offender pleaded guilty to two charges: supply of a prohibited drug on an ongoing basis (maximum 20 years imprisonment) and dealing with property that was the proceeds of crime (maximum 3 years imprisonment). Several related charges involving small quantities of heroin and cannabis were placed on a Form 1 to be taken into account on the primary count.
The supply charges arose from a police undercover operation in 2017. After initial small purchases, an undercover officer progressively sought larger quantities from the offender. Between 13 July and 11 August 2017, the offender supplied heroin on six occasions in quantities ranging from 13.5 to 27.5 grams, receiving between $3,000 and $6,000 per transaction. When arrested on 11 August 2017, the offender was found carrying $18,755 in cash.
The offender had a lengthy history of heroin addiction spanning approximately 20 years and had made some contact with a methadone clinic prior to the offending period. At sentencing, his prospects of rehabilitation and the appropriate weight of general deterrence were central considerations.
Legal Issues
- What was the objective seriousness of the ongoing supply offence, having regard to quantity, purity, role, and financial reward?
- Whether drug addiction constituted a mitigating factor in the circumstances of this case
- Whether the offender's attempts at rehabilitation were genuine and what weight to give his prospects of rehabilitation
- Whether a non-custodial alternative was available, or whether fulltime imprisonment was required by general deterrence and community protection
- Whether special circumstances existed justifying a departure from the standard non-parole period ratio
Decision
Objective seriousness of the drug supply:
The court assessed the offence as below mid-range, but only just. Over approximately one month, the offender supplied around 122 grams of heroin in total, representing roughly half the commercial quantity of 250 grams, across six transactions at amounts three to five times the indictable quantity each time (at [8]-[9]). The offender cut his supply with glucose before on-selling it, and forensic analysis confirmed purity between approximately 17% and 40% (at [7]). The expected profit over the period was approximately $18,000 (at [17]). The court accepted the Crown's characterisation of the offender as part of the distribution arm of a well-organised drug supply operation (at [11]).
Financial gain as an aggravating factor:
The court declined to treat financial gain as a separate aggravating circumstance. Because financial or material reward is an element of the offence of ongoing supply, the court held it could not also be counted in aggravation (at [11]). The scale of financial involvement was nonetheless taken into account in assessing general objective seriousness.
Drug addiction and rehabilitation:
The court accepted that long-term heroin addiction had affected the offender's judgment to some degree, but did not treat addiction as a mitigating factor in the conventional sense, consistent with R v Henry (at [13]). The court found the offender's evidence to be unreliable in material respects, with inconsistencies between his court testimony and statements made to the pre-sentence report writer and the methadone clinic (at [15]-[16]). His attendance at the methadone clinic was found not to represent a genuine commitment to rehabilitation: he attended only three or four times and stopped attending before the undercover operation commenced (at [14], [22]). The court nevertheless found that the offender had guarded prospects of rehabilitation, noting that he had ceased illicit drug use in custody, that a 12-month residential program had been assessed as suitable, and that completing such a program would substantially increase those prospects (at [23]-[25]).
Sentence structure:
The court held that nothing short of fulltime custody could adequately address general and specific deterrence and community protection (at [30]). A 25% discount was applied for the guilty plea entered at the first available opportunity in the Local Court (at [26]). The court made a substantial finding of special circumstances, significantly reducing the non-parole period below the standard 75% ratio, to promote rehabilitation through a long-term residential program as a condition of parole (at [30], [33]). The two sentences were made wholly concurrent, given the factual overlap between the proceeds of crime charge and the drug supply (at [31]).
Orders Made
- 12 months imprisonment (fixed term) for dealing with property the proceeds of crime, commencing 11 August 2017
- 4 years imprisonment with a 2-year non-parole period for supply of prohibited drugs on an ongoing basis, commencing 11 August 2017, with a further term on parole of 2 years
- Both sentences to be served concurrently
- Special circumstances found; recommendation made that the offender be assessed for and released to long-term residential rehabilitation (such as Odyssey House) as a condition of parole
Key Takeaways
- The District Court confirmed that financial gain, while relevant to overall seriousness, cannot be treated as a separate aggravating circumstance for the offence of ongoing supply because it is an element of that offence (at [11]).
- Drug addiction will not generally constitute a mitigating factor in its own right, consistent with the Court of Criminal Appeal's position in R v Henry, though a court may accept that severe long-term addiction affected an offender's capacity for judgment to some degree (at [13]).
- General deterrence remains a significant sentencing consideration for ongoing drug supply, and fulltime custody will ordinarily be required unless the circumstances of the individual case justify an alternative (at [20], [30]).
- A substantial finding of special circumstances can be made to allow a materially extended parole period where long-term residential rehabilitation is both available and assessed as capable of substantially improving the offender's prospects (at [23]-[24], [33]).
- Inconsistencies between an offender's evidence in court and statements made to pre-sentence report writers and treating clinicians are capable of affecting the weight a sentencing court gives to claimed rehabilitation efforts and personal history (at [15]-[16], [22]).
Legislation and Cases Referenced
Legislation
- Not stated
Cases
- Parente v R [2017] NSW CCA 284
- R v Clark (unrep, 15/3/90, NSWCCA)
- R v Henry (1999) 46 NSWLR
- R v Shi [2004] NSWCCA 135
- Robertson v R [2017] NSWCCA 2015