Citation: R v Farmani [2019] NSWDC 144
Court: District Court of New South Wales
Date: 28 February 2019
Judge: M L Williams SC DCJ
Background
The offender, a man born in August 1992 who had arrived in Australia from Iran, appeared for sentencing after pleading guilty on the first day of trial in December 2018 to two counts of supplying a prohibited drug (methylamphetamine) under the Drug Misuse and Trafficking Act 1995. Both offences arose from a single day of conduct on 14 June 2017, connected to a broader undercover police operation targeting a drug supply network. Two co-offenders, a married couple, had already been sentenced in separate proceedings in late 2018.
The principal offence involved the offender acting as a bag carrier during the supply of approximately 1,992 grams of methylamphetamine to an undercover operative at a hotel in Rosehill. The second count related to 439 grams of methylamphetamine found at a separate apartment where one of the co-offenders had been staying. The offender had been in custody since his arrest on 14 June 2017.
The agreed facts described the offender as occupying a low-level role within the supply arrangement, taking direction from a co-offender and never holding exclusive possession of the drugs. The court was asked to determine an appropriate sentence having regard to parity with the co-offenders, the offender's personal circumstances, and the application of sentencing principles under the Crimes (Sentencing Procedure) Act 1999.
Legal Issues
- What aggregate sentence was appropriate for two counts of commercial drug supply, committed on the same day, by a low-level participant with no prior convictions in Australia?
- How should the sentence relate to those imposed on co-offenders (parity principle)?
- Whether a discount applied for late guilty pleas entered on the first day of trial, and at what rate?
- Whether special circumstances existed justifying a non-parole period shorter than the statutory ratio?
- What weight to give mitigating factors including the offender's personal history, drug addiction, expressions of remorse, and absence of prior convictions?
Decision
Williams SC DCJ allowed a 10% discount for the utilitarian value of the guilty pleas, entered as they were on the first day of trial. The parties agreed a custodial sentence was required, with the sentence backdated to commence on the date of arrest, 14 June 2017.
On parity, the court accepted that the offender's objective criminality sat somewhere between that of the two co-offenders but closer to the lower end of the range. The offender was characterised as a low-level bag carrier who acted on the instructions of a co-offender, was involved only on a single date, and was motivated by his drug addiction rather than commercial gain. The court noted, however, that the submission that a sentence equivalent to time served would be appropriate was rejected as unduly lenient.
The court accepted a number of mitigating factors: the offender's prior good character, his difficult personal history including physical abuse and trauma in Iran, significant drug dependency at the time of offending, his expressions of remorse, and the absence of drugs being disseminated into the community. The court noted that the last factor carries limited weight in law. The court also acknowledged three disciplinary matters on the offender's custodial record but found an overall demonstrated improvement, including willingness to engage with drug addiction treatment, supporting the finding of special circumstances.
Special circumstances were found on the basis that the offender required an extended period of supervision and treatment following release, that the sentences involved some accumulation, and that this was his first period of custody. The finding justified a non-parole period shorter than would otherwise apply under the standard ratio.
Orders Made
- The offender was convicted of the offences.
- An aggregate sentence of 5 years and 6 months imprisonment was imposed, commencing 14 June 2017 and expiring 13 December 2022.
- A non-parole period of 3 years was set, expiring 13 June 2020, with eligibility for parole on that date.
- Indicative sentences: Count 1 (1,992 grams) 5 years and 2 months; Count 2 (439 grams) 2 years and 5 months.
- Special circumstances were found.
- Orders were made pursuant to a Notice of Motion filed by the Commissioner of NSW Police Force.
Key Takeaways
- A late guilty plea entered on the first day of trial attracted a discount of 10% for utilitarian value, within the agreed range of 5 to 10%.
- Where multiple offences arise from a single episode of conduct, sentencing courts applying the parity principle will assess an offender's overall criminality relative to co-offenders by reference to role, level of trust placed in the offender, and degree of participation.
- Acting as a "bag carrier" or mule, taking direction from a more senior participant and never holding exclusive access to the drugs, is a relevant mitigating factor but does not alone determine the outcome, particularly where the quantities involved far exceed the large commercial threshold.
- Special circumstances under the Crimes (Sentencing Procedure) Act 1999 were established by the combination of a first period of custody, accumulation of sentences, and the offender's need for extended post-release supervision and addiction treatment.
- The District Court declined to treat the absence of drug dissemination into the community as a significant mitigating factor, consistent with existing authority.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1995 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
Cases:
- R v Markee [2018] NSWDC 429
- R v Daniali [2018] NSWDC 440
- R v Reddie; R v Linnen [2017] NSWDC 228