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Supreme Court 19 July 2018

R v Parker (No 3)

[2018] NSWSC 1132

Drugs

Citation: R v Parker (No 3) [2018] NSWSC 1132
Court: Supreme Court of New South Wales
Date: 19 July 2018
Judge: Adamson J

Background

The offender, a 52-year-old man with a lengthy drug-related criminal history, was sentenced for supplying a small quantity of heroin (less than 1 gram, likely around 0.3 grams) to another person on 23 June 2016. The recipient of that heroin injected it intravenously and died of an overdose on 26 June 2016. This death led to the offender being charged with manslaughter alongside the supply and related possession offences.

The offender pleaded guilty to the supply, possession, and goods in custody charges, but contested the manslaughter charge. The jury returned a not guilty verdict on the manslaughter charge on 18 July 2018, the day before sentencing. The offender had spent approximately 15 months on remand between his arrest on the supply and manslaughter charges (19 April 2017) and his release on bail following the acquittal (18 July 2018).

A critical background factor was that the supply offence was dealt with on indictment in the Supreme Court solely because it was joined with the strictly indictable manslaughter charge. The Crown accepted that, had the supply offence been charged independently, it would have been dealt with in the Local Court, where the maximum sentence a magistrate can impose is two years.

  • What weight should be given to the 15-year statutory maximum for the supply offence under the Drug Misuse and Trafficking Act 1985 (NSW) when the offence would ordinarily have been dealt with in the Local Court?
  • How should the court apply the principle of proportionality given the time already spent on remand?
  • Whether to impose a good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a conviction without further penalty under s 10A, or a suspended sentence under s 12.

Decision

Adamson J found that the 15-year statutory maximum for the supply offence, while technically applicable, had limited practical relevance. Because the offence was only on indictment due to the associated manslaughter charge, and the offender was acquitted of that charge, he should not be prejudiced by being sentenced as though the Supreme Court's jurisdiction reflected the true gravity of the supply charge. The Local Court's two-year jurisdictional limit was the more appropriate reference point.

Her Honour found that 15 months in custody already exceeded the upper range of appropriate sentences for this offence, given the very small quantity of heroin supplied and the circumstances of the case. Any further penalty, including a good behaviour bond, would therefore be disproportionate to the objective seriousness of the offence, which her Honour characterised as relatively low.

The Crown submitted that a bond under s 9 would assist rehabilitation and protect the public by providing supervision. However, drawing on the High Court's statement in Veen (No 2) v The Queen (1988) 164 CLR 465, her Honour held that community protection cannot justify a sentence disproportionate to the seriousness of the offence. While a s 9 bond is less onerous than imprisonment, it still constitutes an additional restriction on liberty and, in the context of the time already served on remand, would be disproportionate.

Accordingly, her Honour exercised the discretion under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) to record a conviction but dispose of the proceedings without imposing any further penalty.

Orders Made

  • The offender was convicted of supplying a prohibited drug (heroin) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW).
  • Pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the proceedings were disposed of without imposing any other penalty.

Key Takeaways

  • Where a summary offence is dealt with on indictment solely because it is joined with a strictly indictable charge, the court held that the higher statutory maximum for the indictable jurisdiction has limited relevance to sentencing, and the offender should not be prejudiced by that procedural circumstance.
  • Under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court may record a conviction but impose no further penalty, and this decision illustrates its application where time already spent on remand exceeds the appropriate sentencing range.
  • The proportionality principle confirmed in Veen (No 2) v The Queen operates as a ceiling on sentencing: community protection and rehabilitation goals cannot justify a penalty that exceeds what the seriousness of the offence warrants.
  • A good behaviour bond under s 9, though less serious than a custodial sentence, remains an additional imposition on liberty and can itself be disproportionate where significant remand time has already been served.
  • Sufficient evidence of the offender's rehabilitation prospects, including abstention from drugs in custody and concrete plans for resettlement, informed the sentencing court's exercise of discretion, though proportionality to the offence remained the decisive consideration.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10A, 12, 24
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 32

Cases:
- Veen (No 2) v The Queen (1988) 164 CLR 465; [1988] HCA 14