Citation: R v Mulligan [2019] NSWDC 325
Court: District Court of New South Wales
Date: 27 June 2019
Judge(s): Weinstein SC DCJ
Background
The offender, born in 1988, was sentenced after pleading guilty on the first day of trial to knowingly taking part in the supply of 28.21 grams of cocaine, contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985. A further offence of knowingly taking part in the supply of 6 grams of MDMA was taken into account on a Form 1.
The offending occurred on the evening of 11 August 2017 in Surry Hills. Plainclothes police observed a street drug transaction and, following the arrest of the offender and a co-offender named Stefanovic, discovered substantial quantities of cocaine and MDMA concealed in the front passenger door panel and centre console of the offender's vehicle, along with over $8,600 in cash. The offender was the vehicle's registered owner and was seated in the driver's seat during the transaction conducted by Stefanovic.
The court noted that the offender's involvement was less significant than that of his co-offender, Stefanovic, who was observed conducting the street transaction and whose DNA was found on the drug packaging. The offender had no prior criminal history.
Legal Issues
- What weight should be given to the offender's subjective circumstances, including background, mental health, and lack of prior criminal history, in determining the appropriate sentence?
- Whether a full-time custodial sentence was necessary or whether a Community Correction Order would suffice, having regard to the sentencing purposes under section 3A of the Crimes (Sentencing Procedure) Act 1999 and the general sentencing principle in section 5 that imprisonment is a last resort
- Whether the sentence imposed was consistent with the parity principle, given that a co-offender had already been sentenced for more serious involvement in the same events
Decision
Weinstein SC DCJ identified a range of significant mitigating factors that, taken together, justified departing from a custodial sentence. The offender had no prior criminal record, pleaded guilty (though there was some dispute as to its precise timing and effect), expressed genuine remorse in a written apology, and demonstrated meaningful insight into the harm caused by drug supply. A forensic psychologist assessed him as being at very low risk of reoffending and attributed his involvement in the offending to vulnerability arising from a history of bullying and a tendency to submit to the will of others to preserve relationships.
The offender's personal background also weighed in his favour. He was raised largely by his grandparents due to his parents' mental health issues, experienced sustained bullying throughout school, and suffered ongoing anxiety and poor sleep. At the time of sentencing, he lived with and financially supported his mother and younger half-sister, who required frequent hospital care. The court noted the importance of this family support role when considering the impact of any custodial sentence.
On the question of parity, the court considered the differences in the roles played by the offender and Stefanovic. The offender's involvement was assessed as objectively less serious, and the sentence imposed was found to be consistent with the differential treatment warranted by those differences, in accordance with the principles in Green v R; Quinn v R (2011) 244 CLR 462.
Weighing all these factors, the court concluded that a Community Correction Order was the appropriate outcome. The court was satisfied that the purposes of sentencing could be met without imposing a term of full-time imprisonment.
Orders Made
- The offender was convicted of knowingly taking part in the supply of 28.21 grams of cocaine, contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985
- A Community Correction Order was imposed, running from 27 June 2019 for 18 months, expiring 26 December 2020
- Charges on the section 166 Certificate were dismissed
- Conditions of the order included: no further offences; appearance before the court if called upon; arrangement of a Mental Health Care Plan with a general practitioner to access 10 sessions of psychological therapy under the Better Access to Health Initiative; and completion of 150 hours of community service work, with reporting to the Burwood Community Corrections Office within seven days
Key Takeaways
- A conviction for drug supply under section 25(1) of the Drug Misuse and Trafficking Act 1985 carries a maximum of 15 years' imprisonment, but there is no standard non-parole period for the relevant quantity involved here, leaving the sentencing court with broad discretion
- Where a defendant demonstrates very low reoffending risk, genuine remorse, significant family responsibilities, and a history of psychological vulnerability, those factors can collectively support a non-custodial outcome even for a drug supply offence of this nature
- The parity principle, as affirmed in Green v R; Quinn v R, requires that sentencing courts reflect genuine differences in the roles and culpability of co-offenders, rather than imposing identical sentences regardless of those differences
- Psychological evidence explaining the circumstances in which an offender came to participate in criminal conduct, particularly where vulnerability and social pressure are identified, can carry meaningful weight in the sentencing exercise
- Section 5 of the Crimes (Sentencing Procedure) Act 1999 establishes that imprisonment must not be imposed unless the court is satisfied that no other sentence is appropriate, a principle the court applied expressly in declining to impose a custodial sentence here
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1), s 10(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5
Cases
- Carter v R [2018] NSWCCA 138
- Green v R; Quinn v R (2011) 244 CLR 462
- Muldrock v The Queen (2011) 244 CLR 120
- R v Millwood [2012] NSWCCA 2
- Veen v The Queen (No 2)