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District Court 21 June 2019

R v McBride

[2019] NSWDC 371

Drugs

Citation: R v McBride [2019] NSWDC 371
Court: District Court of New South Wales
Date: 21 June 2019
Judge: Hock DCJ

Background

Between November 2014 and March 2015, police conducting Strike Force Mewburn in the Tamworth area intercepted telephone calls and conducted surveillance targeting drug supply networks. The investigation identified the offender, a 32-year-old air brusher and spray painter, as a supplier of methylamphetamine to a co-offender, Mark Hicks, who in turn on-supplied the drug to others including a civilian participant working with police.

Following a 19-day jury trial, the offender was convicted of supplying a commercial quantity of methylamphetamine. The quantity was established by aggregating 20 individual transactions and methylamphetamine found at the offender's home during a search warrant, totalling 340.63 grams. The offender had given evidence at trial offering an innocent explanation for the telephone intercept material, which the jury rejected.

The matter before Hock DCJ at this stage was sentencing. The offender had no prior convictions at the time of his arrest, had been subject to strict bail conditions for over three years, and maintained his innocence throughout.

  • What was the appropriate finding of the quantity of drug supplied, for sentencing purposes, beyond the jury's verdict?
  • Where did the offence sit on the range of objective seriousness for commercial drug supply under s 25(2) of the Drug Misuse and Trafficking Act 1985?
  • How should parity with the sentence imposed on co-offender Mark Hicks inform the sentence?
  • What weight should be given to the offender's subjective circumstances, including the absence of prior convictions, family ties, substance abuse history, and prospects for rehabilitation?
  • How should extraordinary pre-trial delay and the burden of stringent bail conditions affect the sentence?
  • Did special circumstances exist to justify departing from the standard non-parole period ratio?

Decision

Hock DCJ was satisfied beyond reasonable doubt that the total quantity supplied was 340.63 grams as alleged by the Crown, noting this was only 90 grams above the commercial quantity threshold of 250 grams and well below the large commercial quantity threshold of one kilogram (as it then stood). The offence was assessed as significantly below the mid-range of objective seriousness for an offence under s 25(2), though full-time custody was plainly required.

On parity, the court used co-offender Hicks's sentence as a reference point. Hicks had received a notional starting point of six years' imprisonment for a supply charge covering the same period, on the basis of a larger quantity (439.06 grams) and after a 45% discount for his plea and assistance. Because the offender was sentenced on a lesser quantity and after a contested trial, the starting point for Hicks provided only general guidance rather than a direct comparison.

The court gave significant weight to three factors that moderated the sentence. First, there had been extraordinary delay in finalising the matter, with two listed trials failing to proceed in 2017 and 2018 for reasons not attributable to the offender. Second, the offender had endured stringent bail conditions for more than three years, including being required to live separately from his partner and three children and to report daily to police. Third, the Crown conceded that cooperation from the defence reduced the trial from a potential 30-witness hearing to four witnesses.

Special circumstances were found on the basis that this was the offender's first and inevitably lengthy period of custody, and that a longer period of supervised parole would assist his rehabilitation. His good prospects for rehabilitation were supported by family ties, sustained abstinence from drugs since his arrest, and a willingness to undertake psychological treatment. The court declined to impose the standard non-parole period, citing both the below-mid-range objective seriousness and the offender's subjective circumstances.

Orders Made

  • The offender was convicted of the count on the indictment.
  • A total term of 4 years and 6 months' imprisonment was imposed, commencing 7 March 2019 (back-dated by 18 days to account for time spent in custody following arrest).
  • A non-parole period of 2 years and 3 months was set, expiring 6 June 2021.
  • The total term expires 6 September 2023.

Key Takeaways

  • The District Court confirmed that, at sentencing, a judge may make findings as to drug quantity beyond what the jury verdict strictly establishes, provided those findings are made to the criminal standard (beyond reasonable doubt).
  • A below-mid-range finding on objective seriousness, combined with significant subjective factors, can justify departing from the standard non-parole period under s 25(2) of the Drug Misuse and Trafficking Act 1985.
  • Parity with a co-offender's sentence functions as a reference point rather than a ceiling, particularly where the co-offender was sentenced on a greater quantity and received a substantial discount for plea and assistance that the present offender did not.
  • Prolonged and onerous pre-sentence bail conditions, especially where their severity is comparable to a form of custody, are a legitimate mitigating factor in the sentencing exercise.
  • Maintained innocence does not necessarily foreclose a finding of good rehabilitation prospects: the court assessed those prospects favourably on the basis of family support, sustained drug abstinence, and engagement with a treatment plan.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) (supply of commercial quantity of prohibited drug; maximum 20 years' imprisonment; standard non-parole period of 10 years)

Cases cited: No cases were cited in the judgment as provided.