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District Court 17 June 2019

R v Hooker

[2019] NSWDC 351

Drugs

Citation: R v Hooker [2019] NSWDC 351
Court: District Court of New South Wales
Date: 17 June 2019
Judge: Bennett SC DCJ

Background

The offender, a 47-year-old woman, appeared for sentence on two separate charges of supplying methylamphetamine under the Drug Misuse and Trafficking Act 1985. The first offence arose from an arrest in April 2018 at Villawood, where police found 8.61 grams of methylamphetamine, cash, and drug paraphernalia in her handbag. The second arose from an arrest in December 2018 at Cessnock, where police found 6.77 grams of methylamphetamine concealed in a hidden compartment in her car dashboard.

Critically, the second offence was committed while the offender was on bail awaiting the continuation of proceedings for the first. Additional minor drug and property offences were included on Form 1 documents for both matters and taken into account in sentencing.

The offender pleaded guilty to both principal charges, though at different stages of proceedings: her plea to the first charge came shortly before trial (attracting a 15% discount), while her plea to the second was entered in the Local Court (attracting a 25% discount).

  • What indicative sentences were appropriate for each supply offence, having regard to the objective seriousness of each and the Form 1 offences?
  • How should the fact that the second offence was committed while the offender was on bail affect the sentence?
  • Whether special circumstances existed justifying a departure from the standard ratio between non-parole period and head sentence under the Crimes (Sentencing Procedure) Act 1999
  • How pre-sentence custody should be accounted for in an aggregate sentence

Decision

Bennett SC DCJ sentenced the offender on both matters together using an aggregate sentence under the Crimes (Sentencing Procedure) Act 1999. For the first offence (April 2018), the court arrived at an indicative sentence of 2 years 6 months and 18 days after applying a 15% guilty plea discount and factoring in the Form 1 offences. For the second offence (December 2018), an indicative sentence of 2 years 7 months and 15 days was reached after applying a 25% discount and accounting for the additional Form 1 matters.

On the question of bail status, the court noted that committing the second offence while on bail did not increase the objective gravity of that offence or the proportionate sentence for it in isolation. However, it did bear on the weight to be given to specific deterrence, because the conduct demonstrated a willingness to continue drug supply activity despite already facing comparable charges.

The court found special circumstances existed. The offender had a significant drug dependency, and the sentencing judge accepted that she would need additional time under supervision in the community upon release. A finding of special circumstances allows the parole period to be extended beyond what the standard ratio between non-parole period and head sentence would ordinarily produce.

The aggregate head sentence was set at 3 years and 4 months, commencing on 21 September 2018 (accounting for pre-sentence custody of 74 days from the first arrest). A non-parole period of 2 years was imposed, expiring on 20 September 2020.

Orders Made

  • Aggregate head sentence of 3 years and 4 months imposed, commencing 21 September 2018 and expiring 20 January 2022
  • Non-parole period of 2 years, expiring 20 September 2020
  • Form 1 offences certified and taken into account
  • Destruction of all drugs ordered
  • Cash of approximately $4,076.35 (found at Villawood on 6 April 2018) forfeited to the State pursuant to s 18(1) of the Confiscation of Proceeds of Crime Act 1989, with disposal authorised forthwith under s 19(3)(a)
  • Cash of approximately $1,750 (found at Cessnock on 4 December 2018) forfeited to the State pursuant to s 18(1) of the Confiscation of Proceeds of Crime Act 1989, with disposal authorised forthwith under s 19(3)(a)
  • No fine imposed
  • Exhibits left on file

Key Takeaways

  • A guilty plea entered shortly before trial attracted only a 15% discount, while a plea entered in the Local Court on committal for sentence attracted a 25% discount, illustrating how the timing and stage of a plea directly shapes the utilitarian discount applied.
  • Under the approach confirmed in Attorney General's Application No 1 of 2002, Form 1 offences do not result in separate punishment but do increase the sentence for the principal offence to reflect the full spectrum of misconduct and to give appropriate weight to personal deterrence and retribution.
  • Committing a further supply offence while on bail for a comparable charge does not automatically increase the objective gravity of the second offence, but the District Court treated it as a significant factor in assessing the role of specific deterrence.
  • Special circumstances were established on the basis of the offender's drug dependency and the court's assessment that extended post-release supervision was necessary, justifying a non-parole period proportionally shorter than the standard statutory ratio.
  • Pre-sentence custody across both episodes was absorbed into the commencement date of the aggregate sentence rather than treated as a separate deduction, with the head sentence commencing on 21 September 2018.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 29
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 37, Div 1A, Schedule 1
- Crimes Act 1900 (NSW), s 193(2)
- Confiscation of Proceeds of Crime Act 1989 (NSW), ss 18(1), 19(3)(a)

Cases:
- Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
- Qutami [2001] NSWCCA 353