Citation: R v Sheffield [2018] NSWDC 514
Court: District Court of New South Wales
Date: 8 June 2018
Judge: Judge W Hunt
Background
The offender pleaded guilty to one count of supply a prohibited drug (methylamphetamine) under s 25(1) of the Drug Misuse and Trafficking Act, which carries a maximum penalty of 15 years' imprisonment. Police found 60.68 grams of methylamphetamine in a Turkish Airlines tin inside a vehicle belonging to a co-accused. DNA and fingerprint evidence connected the co-accused to the tin, and no forensic evidence linked the offender to the drugs at all.
The offender came forward voluntarily. He swore an affidavit in support of a Supreme Court bail application by his co-accused, claiming ownership of the tin and the drugs. Police then interviewed him, and he made admissions consistent with his affidavit account: he had left his drugs in the co-accused's car and felt morally obliged to prevent his friend from being wrongly convicted.
The offender was 27 years old at sentence. He had a lengthy criminal record, a history of heavy methamphetamine use spanning 13 to 14 years, and a significantly dysfunctional upbringing marked by parental substance abuse, domestic violence, and early removal from the family home. A forensic psychological assessment was tendered, and both his father and sister attended court in support.
Legal Issues
- What was the appropriate objective seriousness of the supply offence, including the relevance of the quantity of drug and the aggravating factor of offending on conditional liberty?
- What weight should be given to the offender's prior criminal record, including the risk of institutionalisation?
- Whether the offender was entitled to both a full utilitarian discount for an early guilty plea and an additional "Ellis-type" discount, given there was no forensic link between him and the drugs?
- What was the appropriate head sentence and non-parole period, accounting for totality with sentences already being served?
Decision
Objective seriousness: The District Court placed the offence between the low and middle range of objective seriousness. The quantity of methylamphetamine (60.68 grams) was 12 times the indictable quantity but well below the commercial quantity threshold. There were no indicia of street-level supply. However, the offence was aggravated by the fact it was committed while the offender was on two forms of conditional liberty: a s 9 bond and a s 12 bond.
Prior record and institutionalisation: The offender's criminal history was not treated as an aggravating factor, but it denied him leniency. Judge Hunt accepted both the prosecution submission that the record reflected a disregard for court-imposed sanctions and the defence submission that it reflected the behaviour of someone at risk of institutionalisation. The court observed that the offender's pattern of conduct appeared almost designed to return him to custody, a setting in which he appeared to feel more secure than in the community.
Dual discount: The court accepted that the offender was entitled to a full utilitarian discount for his early guilty plea. Additionally, because there was no forensic evidence connecting him to the drugs, the court applied an Ellis-type discount, reflecting the principle that an offender who volunteers a confession against their own forensic interest is entitled to additional recognition. The court accepted the offender's explanation as morally credible and not merely self-serving. His conduct in coming forward was described as highly responsible and morally commendable.
Sentence: Without any discount, the court indicated a head sentence of two years would have been appropriate. After applying both discounts, the court imposed a total sentence of 18 months with a non-parole period of nine months. The sentence was made partially concurrent and partially cumulative with sentences already being served, commencing from 14 February 2018 (the date of bail refusal for this matter).
Orders Made
- Total sentence of 18 months' imprisonment
- Non-parole period of nine months
- Sentence to commence 14 February 2018
- Full sentence expires 13 August 2019
- Earliest eligible parole date: 13 November 2018
Key Takeaways
- An Ellis-type discount applies where an offender volunteers a confession in circumstances where no forensic evidence links them to the offence, provided the plea is genuine. The District Court confirmed that such a discount can be applied alongside a full utilitarian discount for an early guilty plea.
- A criminal record can simultaneously be treated as denying leniency (for consistent disregard of court sanctions) and as supporting a finding that the offender is at risk of institutionalisation, rather than as a straightforward aggravating factor.
- Where an offender's breach of conditional liberty (such as a bond) is committed at the time of the offence, that breach aggravates the objective seriousness of the offending, even if the breach itself has already been separately dealt with.
- Totality requires that sentences imposed for separate matters be structured so that the combined effect is not disproportionate to the overall criminality. Here, the court made the new sentence partially concurrent and partially cumulative.
- Forensic psychological evidence addressing an offender's background and institutionalisation risk can carry significant weight in sentencing even without sworn evidence, where the history given is consistent with the criminal and custodial record and is corroborated through the defence solicitor's inquiries of family members.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act (NSW), s 25(1)
- Criminal Proceedings Act (NSW), s 166
Cases:
- R v Ellis (1986) 6 NSWLR 603 (Ellis-type discount for confession without forensic link)
- Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 (relevance of background disadvantage in sentencing)
- R v Quatami [2001] NSWCCA 353; (2001) 127 A Crim R 369 (caution regarding unsworn self-serving statements in psychological reports)
- Jinnette v R [2012] NSWCCA 217
- Parente v R [2017] NSWCCA 284