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District Court 23 February 2018

R v HERMANSSON, Brock Dean

[2018] NSWDC 95

DrugsFirearms & weapons
CRIMINAL SENTENCE PLEAS OF GUILTY SUPPLY PROHIBITED DRUG MDMA POSSESSION OF A PROHIBITED WEAPON

Citation: R v Hermansson [2018] NSWDC 95
Court: District Court of New South Wales
Date: 23 February 2018
Judge: Judge S Norrish QC

Background

The offender, a 28-year-old man with no prior criminal history, pleaded guilty to two offences arising from a single day, 25 August 2016. The principal offence was supplying a prohibited drug (MDMA), which carries a maximum penalty of 15 years imprisonment. The second offence was possessing a prohibited weapon without a permit, specifically a Taser, under the Weapons Prohibition Act 1998, which carries a maximum penalty of 14 years and a standard non-parole period of five years. Two additional drug possession matters (testosterone and trenbolone) were placed on a Form 1, meaning they were taken into account at sentencing without separate conviction.

The offender had spent 71 days in pre-sentence custody following his arrest before being released on bail in November 2016. From late 2016, he resided at Odyssey House near Campbelltown, undertaking a residential drug rehabilitation program. Reports before the court were positive, reflecting genuine insight, remorse, and progress. No mental health condition was identified as present at the time of the offending.

The central tension at sentencing was whether the offender's rehabilitation progress could be given meaningful weight when, by concession, the seriousness of the offending required a term of actual imprisonment exceeding two years, with a non-parole period.

  • Whether the threshold in section 5 of the Crimes (Sentencing Procedure) Act 1999 was crossed, requiring a term of imprisonment rather than an alternative sentence
  • Whether the non-parole period could be fixed to expire on the date of sentencing, effectively allowing the offender's immediate release to parole
  • How to balance the statutory purposes of sentencing, including deterrence, adequate punishment, and rehabilitation, in the context of a first offender who had made substantial rehabilitative progress
  • What credit, if any, was appropriate for time spent as a resident at Odyssey House (quasi-custody)
  • Whether special circumstances existed to justify departing from the standard ratio between non-parole period and balance of term

Decision

Judge Norrish accepted that the section 5 threshold had been crossed: the nature of the offending required a term of actual imprisonment, and no alternative sentence was available. The offending involved active drug supply, and the possession of a Taser was a serious aggravating feature. The court noted that heavy and deterrent sentences are ordinarily imposed for drug supply offences because of the well-recognised harm drugs cause to the community broadly, even where no specific victim can be identified.

The court gave careful consideration to the submission that the non-parole period should be fixed to expire on the sentencing date, which would have allowed the offender to return immediately to the community. Relying on principles adopted by the Court of Criminal Appeal in Blackman and Walters [2001] NSWCCA 121, and drawing on the observations of King CJ in Yardley v Betts (1979), Norrish J acknowledged that rehabilitation is a genuine purpose of sentencing and that a sentence which undermines rehabilitative progress can itself harm community protection. However, the court concluded that the seriousness of the objective offending meant no non-parole period shorter than 12 months would adequately reflect punishment and deterrence.

Credit was given for 71 days of pre-sentence custody. The court also applied a 50 per cent credit for the time spent as a residential patient at Odyssey House, consistent with the approach in The Queen v Sullivan [2004] NSWCCA 99 and Truss v The Queen [2008] NSWCCA 325. This resulted in the sentence being backdated to commence on 6 May 2017. A full discount was applied for the early guilty plea. Special circumstances were found to exist, justifying a non-parole period that was shorter than the standard one-third proportion, given the offender's rehabilitative trajectory and the need to support his reintegration.

Orders Made

  • For the principal supply offence: three years imprisonment with a non-parole period of 12 months, commencing 6 May 2017 and expiring 5 May 2018; balance of sentence of two years to follow
  • For the prohibited weapon (Taser) offence: six months imprisonment with a non-parole period of six months, commencing 6 May 2017 and expiring 5 November 2017, to be served concurrently with the principal sentence
  • The offender was not to be released to parole at the expiry of the weapon offence non-parole period, as that sentence ran concurrently with the longer supply sentence

Key Takeaways

  • Residential drug rehabilitation at a facility such as Odyssey House can attract a sentencing credit, with the District Court applying a 50 per cent reduction for time spent in that quasi-custodial setting, consistent with Sullivan and Truss.
  • Where the section 5 threshold under the Crimes (Sentencing Procedure) Act 1999 is crossed and the required term exceeds two years, a non-parole period must be set: the court has no power to dispense with one, regardless of the offender's rehabilitative progress.
  • Rehabilitation is a recognised statutory purpose of sentencing under the Act, and courts must weigh the risk of undermining genuine rehabilitative gains against the requirements of adequate punishment and deterrence, particularly in drug supply matters.
  • A submission that a non-parole period should expire on the date of sentencing, enabling immediate release, may be considered but will not succeed where the gravity of the objective offending demands that a meaningful period of actual custody remain to be served.
  • Special circumstances permitting a departure from the standard non-parole ratio can be established where an offender demonstrates substantial rehabilitative progress and requires a longer period on parole supervision to consolidate that progress.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases
- Attorney General's Application No 1 of 2002 (2002) 56 NSWLR 147
- Blackman and Walters [2001] NSWCCA 121
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Kovacevic (2000) 111 A Crim R 131
- Parente v The Queen [2017] NSWCCA 284
- Pearce v The Queen (1998) 194 CLR 610
- R v Palu [2002] NSWCCA 381
- Robertson v R [2017] NSWCCA 205
- The Queen v Sullivan [2004] NSWCCA 99
- Truss v The Queen [2008] NSWCCA 325
- Yardley v Betts (1979) 22 SASR 108