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District Court 17 June 2019

R v Woods

[2019] NSWDC 401

Drugs

Citation: R v Woods [2019] NSWDC 401
Court: District Court of New South Wales
Date: 17 June 2019
Judge(s): Buscombe DCJ

Background

The offender pleaded guilty to a series of Commonwealth and State drug offences spanning several years. The offences involved importing marketable quantities of MDMA and cocaine through the "dark net" (an encrypted part of the internet used anonymously), with packages arriving via the international mail centre at Clyde addressed to post office boxes and a residential address leased or nominated by the offender.

The Commonwealth charges covered two importation periods. The first involved five separate packages received between November 2014 and March 2017, containing a combined net weight of approximately 24.7 grams of MDMA and 14 grams of cocaine. The second involved two packages intercepted in July and August 2017 containing a combined net weight of approximately 257 grams of MDMA, one of which was concealed in a protein powder satchel.

The State charges arose from a police investigation, Strike Force Kirby, which used undercover operatives to conduct controlled purchases. The offender and a co-offender supplied MDMA to undercover officers on multiple occasions between April and June 2017. Upon arrest in July 2017, police also found approximately 34.67 grams of cocaine in a locked safe under the offender's bed, along with psilocin, producing additional supply charges.

  • What sentences were appropriate for two Commonwealth importation offences under s 307.2(1) of the Criminal Code Act, each carrying a maximum of 25 years imprisonment?
  • What sentences were appropriate for the State offences of ongoing supply and single-occasion supply under ss 25A and 25(1) of the Drug Misuse and Trafficking Act, carrying maximums of 20 and 15 years respectively?
  • How should the court structure the sentences across Commonwealth and State jurisdictions, including the application of the aggregate sentencing provisions for the State offences?
  • What weight should be given to mitigating factors, including the offender's early guilty pleas, good character, absence of prior convictions, and age?

Decision

Buscombe DCJ sentenced the offender on all five matters (two Commonwealth, three State, with one additional matter taken into account on a Form 1). His Honour considered the objective seriousness of the offences alongside a range of subjective factors. The mitigating factors included the offender's early guilty pleas entered in the Local Court, his good character, his lack of any prior criminal record, and his age at the time of the offences.

For the Commonwealth offences, His Honour imposed cumulative but partially concurrent sentences, fixing a single non-parole period of four years across both. The first Commonwealth offence attracted three years imprisonment commencing 27 July 2017. The second, which involved a substantially larger quantity of drugs, attracted five years and three months, commencing 27 April 2018.

For the State offences, His Honour applied the aggregate sentencing regime under the Crimes (Sentencing Procedure) Act, setting out indicative sentences for each charge before imposing a global State sentence. The ongoing supply charge (charge sequence 12, with sequence 11 on the Form 1) received an indicative three and a half years. The single cocaine supply and psilocin supply charges received indicative sentences of two and a half years and two years and eight months respectively.

The State aggregate sentence of four and a half years with a two and a half year non-parole period was ordered to commence on 27 January 2020, creating a degree of accumulation on the Commonwealth sentences. The overall result was a global sentence of seven years imprisonment with a global non-parole period of five years, with the earliest possible release date being 26 July 2022.

Orders Made

  • 1st Commonwealth Offence: 3 years imprisonment, commencing 27 July 2017, expiring 26 July 2020.
  • 2nd Commonwealth Offence: 5 years and 3 months imprisonment, commencing 27 April 2018, expiring 26 July 2023.
  • Commonwealth non-parole period: Single non-parole period of 4 years, commencing 27 July 2017, expiring 26 July 2021.
  • State Offences (aggregate): 4 years 6 months imprisonment with an aggregate non-parole period of 2 years 6 months, commencing 27 January 2020, expiring 26 July 2024; non-parole period expiring 26 July 2022.
  • Global result: 7 years imprisonment with a global non-parole period of 5 years; earliest possible release to parole 26 July 2022.

Key Takeaways

  • The District Court imposed cumulative but partially overlapping Commonwealth and State sentences, reflecting both the distinct nature of each offence and the totality principle, which requires that an aggregate sentence not be disproportionately crushing.
  • Where an offender faces charges under both Commonwealth and State drug legislation, the court must apply distinct sentencing frameworks: a single non-parole period may be fixed across Commonwealth offences under the Criminal Code Act, while the aggregate sentencing regime under the Crimes (Sentencing Procedure) Act governs State offences.
  • Significant mitigating weight was given to the combination of early guilty pleas, first-time offending, and good character, factors that operated to moderate what would otherwise have been substantially heavier sentences given the quantities of drugs involved.
  • Importation of drugs via the dark net, using anonymised post office boxes to receive international mail parcels, did not prevent the court from treating the offender as the person who ordered and received the packages, particularly where he admitted to the relevant conduct.
  • Under s 25A of the Drug Misuse and Trafficking Act, ongoing supply requires proof of supply on three or more occasions within 30 consecutive days for financial or material reward; here, the controlled purchase evidence from undercover operatives directly supported the charge.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 307.2(1) (importing a marketable quantity of a border-controlled drug)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) (supply prohibited drug) and s 25A (ongoing supply)
- Crimes (Sentencing Procedure) Act 1999 (NSW) (aggregate sentencing provisions)

Cases:
- Muldrock v The Queen (2011) 244 CLR 120
- Xiao v The Queen [2018] NSWCCA 4