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District Court 7 May 2019

R v Ayres

[2019] NSWDC 193

Drugs

Citation: R v Ayres [2019] NSWDC 193
Court: District Court of New South Wales
Date: 7 May 2019
Judge: Grant DCJ

Background

The offender pleaded guilty to two counts of supplying a prohibited drug under s 25(1) of the Drugs Misuse and Trafficking Act 1985 (NSW). The first count related to 84.08 grams of methylamphetamine found in his satchel when police arrested him outside his rented unit. The second arose from a controlled police operation in which he supplied 27.09 grams of methylamphetamine (at 80% purity) to an undercover operative for $3,600.

Two additional matters were placed before the court on a Form 1 (a mechanism allowing a court to take related offences into account without recording separate convictions): supplying 55.3 grams of gamma butyrolactone (GBL) and dealing with $4,900 in proceeds of crime found in a locked safe at his unit.

The offender was 36 years old, with a history of drug dependency tracing back to his father's death when he was 17. He had a prior conviction in Victoria for trafficking a commercial quantity of a prohibited drug, and six drug possession matters in New South Wales since 2017.

  • What was the appropriate level of objective seriousness for each supply offence?
  • To what extent did the offender's drug addiction reduce his moral culpability?
  • Was a full 25% discount warranted for the early guilty plea?
  • Did special circumstances exist to justify varying the standard non-parole period ratio?
  • What aggregate sentence, including accumulation, was appropriate under the principle of totality?

Decision

Grant DCJ assessed the objective seriousness of both offences as below the mid-range. For the sequence 1 offence (84.08 grams), the quantity was close to 17 times the indictable threshold, and the surrounding circumstances (packaging materials, scales, multiple drugs, and cash) pointed to an organised supply operation rather than an isolated act. For the sequence 3 offence (27.09 grams), the high purity and financial reward elevated seriousness, though the offender's role was assessed as below mid-range and towards the lower end.

On moral culpability, the court accepted that the offender was in the grip of severe substance use disorder at the time of the offences. Drawing on R v Day (1998) and Dang v R [2013] NSWCCA 246, Grant DCJ held that trafficking to fund a drug habit carries somewhat lesser culpability than trafficking for pure greed. The offender had initially exhausted his savings to fund his habit before turning to drug dealing, and his psychologist rated his substance use disorder as severe during the relevant period.

The early guilty plea, indicated and entered in the Local Court at the earliest reasonable opportunity, attracted the full 25% discount. The court also found special circumstances justifying a longer than usual parole period: this was the offender's first immediate term of imprisonment in New South Wales, and his severe addiction history made extended post-release supervision appropriate to minimise the risk of relapse.

Because the two supply offences were temporally distinct, some accumulation was required. Applying the totality principle, the court imposed an aggregate sentence of three years with a non-parole period of 18 months.

Orders Made

  • The offender was convicted on both supply counts.
  • An aggregate sentence of three years imprisonment was imposed, commencing 31 May 2018 and expiring 30 May 2021.
  • A non-parole period of 18 months was set, commencing 31 May 2018 and expiring 30 November 2019.
  • The offender became eligible for parole on 30 November 2019.

Key Takeaways

  • A drug trafficker who deals to fund a personal addiction attracts reduced moral culpability compared to one motivated purely by financial gain, consistent with the principles in R v Day and Dang v R.
  • Where a guilty plea is entered at the earliest reasonable opportunity, the full 25% sentencing discount under the Crimes (Sentencing Procedure) Act 1999 applies.
  • Special circumstances justifying a longer parole period can arise where the offender faces an immediate custodial term for the first time and has a severe, documented addiction requiring extended post-release supervision.
  • Under the totality principle, temporal disconnection between separate supply offences requires at least some degree of accumulation when fixing an aggregate sentence.
  • Leniency remained available despite the offender's prior trafficking conviction, consistent with the principle in R v Osenkowski (1982) that a sentencing court may extend clemency where there is genuine prospect of rehabilitation.

Legislation and Cases Referenced

Legislation
- Drugs Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(k), 22, 53A
- Crimes Act 1900 (NSW), s 193C(2)

Cases
- Dang v R [2013] NSWCCA 246
- R v Day (1998) 100 A Crim R 275
- R v Osenkowski (1982) 5 A Crim R 394
- R v Pham [2001] NSWCCA 307