AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 12 July 2019

R v Lynch

[2019] NSWDC 320

DrugsFirearms & weapons
SUPPLY PROHIBITED DRUGS AGGREGATE SENTENCE

Citation: R v Lynch [2019] NSWDC 320
Court: District Court of NSW
Date: 12 July 2019
Judge(s): Mahony SC DCJ

Background

In May 2017, police observed the offender sitting in a parked vehicle near a known drug house in Sutherland. He appeared nervous and was visibly shaking. A search of his person and vehicle uncovered MDMA, cocaine, ketamine, alprazolam (Xanax), a set of scales, empty capsules, resealable bags, $1,100 in cash concealed in his underwear, and a working taser.

The offender was committed for sentence in the District Court after pleading guilty in the Local Court to two principal offences: supply of a prohibited drug in a quantity greater than the indictable quantity (6.13 grams of MDMA), and possession of a prohibited weapon without a permit (the taser). He also asked the court to take into account four additional matters on a Form 1, including possession of cocaine, ketamine, and alprazolam, and dealing with property that were proceeds of crime.

Complicating the sentencing was a further development: while on bail for the index charges in January 2019, the offender was charged with dangerous driving occasioning death and remanded in custody. He had been in custody from that date, and was in hospital at the time of sentencing due to injuries sustained in that accident.

  • Whether a sentence of full-time imprisonment was required or whether an Intensive Correction Order (ICO) was appropriate
  • Whether special circumstances existed justifying a departure from the standard ratio between non-parole period and head sentence
  • How the offender's background, drug and gambling addictions, criminal history, and subsequent offending should be weighed in the sentencing exercise
  • The relevance of community safety to the choice between a custodial sentence and an ICO

Decision

The court found that an aggregate sentence of imprisonment was warranted. The offender's subsequent charge of dangerous driving occasioning death while on bail was itself drug-related, and his criminal history, which included prior drug offences and driving offences, disentitled him to leniency. His admission during the Sentencing Assessment Report that he had sold drugs to friends for extra money to fund drug-taking and gambling was also noted, as was his description of that conduct as something he "rejected as drug dealing."

On the question of an ICO, the court applied the framework under the Crimes (Sentencing Procedure) Act 1999, which requires a court to consider whether an ICO or full-time custody is more likely to address the risk of reoffending. The court concluded that the threshold in s 5 of that Act had been crossed, and that community safety required full-time imprisonment. The offender's poor record of treatment compliance, including breaching a MERIT program and underperforming on community service, supported that conclusion.

The court did, however, find special circumstances within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. The offender's drug and gambling addictions, relative youth, and the need for structured support on his return to the community together justified a departure from the standard non-parole to balance-of-sentence ratio. The court set a non-parole period of 15 months, shorter than the balance of sentence, to allow for an extended period of supervised release.

Orders Made

  • Conviction recorded for supply of a prohibited drug in a quantity greater than the indictable quantity (6.13 grams MDMA), contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (Sequence 6)
  • Conviction recorded for possession of a prohibited weapon without a permit (taser), contrary to s 7(1) of the Weapons Prohibition Act 1998 (Sequence 7)
  • Form 1 matters taken into account
  • Special circumstances found under s 44(2) of the Crimes (Sentencing Procedure) Act 1999
  • Non-parole period of 15 months commencing 12 January 2019, expiring 11 April 2020
  • Balance of sentence of 15 months commencing 12 April 2020, expiring 11 July 2021
  • Sequence 3 (possession of 6.13 grams MDMA) withdrawn and dismissed
  • Drugs the subject of the charges ordered to be destroyed

Key Takeaways

  • The District Court confirmed that, in assessing whether an ICO is appropriate, community safety is directly linked to rehabilitation prospects, and a poor history of treatment compliance can weigh against a community-based order.
  • Subsequent offending while on bail is a relevant factor in the sentencing exercise, particularly where that later conduct is connected to the same patterns of behaviour that underlie the index charges.
  • A finding of special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 does not preclude full-time custody; it affects only the ratio between the non-parole period and the balance of sentence, allowing for greater supervised support on release.
  • Criminal antecedents that demonstrate a pattern of drug-related offending can disentitle an offender to leniency, even where personal circumstances such as addiction and relative youth are accepted as genuine mitigating factors.
  • Under the Drug Misuse and Trafficking Act 1985, the supply charge here carried a maximum of 15 years imprisonment with no Standard Non-Parole Period, while the taser offence under the Weapons Prohibition Act 1998 carried a maximum of 14 years and a Standard Non-Parole Period of 5 years.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 44(2), 66(3)
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Weapons Prohibition Act 1998 (NSW), s 7(1), Schedule 1 cl 2(18)

Cases
- Berryman v R [2017] NSWCCA 297
- JM v R [2014] NSWCCA 297
- R v Cahyadi [2007] NSWCCA 1; 168 A Crim R 41
- R v Van Ryn [2016] NSWCCA 1