Citation: R v Lee; R v Ooi [2019] NSWDC 476
Court: District Court of New South Wales
Date: 26 April 2019
Judge: M L Williams SC DCJ
Background
Two offenders, who were also partners in a personal relationship, pleaded guilty to supplying a prohibited drug on an ongoing basis under s 25A(1) of the Drug Misuse and Trafficking Act 1985. The charge carries a maximum penalty of 20 years imprisonment with no standard non-parole period. The first offender, a 29-year-old male, and the second offender, a 34-year-old female, operated as part of a joint criminal enterprise supplying methylamphetamine (ice) in the Redfern and Waterloo area of Sydney.
A police strike force established in September 2017 conducted the investigation. Between 7 and 24 May 2018, there were 11 recorded supply incidents involving an authorised police operative. The male offender carried out seven of those supplies, and the female offender four, with the first supply also implicating the female offender by her provision of a phone number. Supply amounts ranged from 0.15 grams to 3.41 grams, with prices between $100 and $750. Both offenders were arrested on 24 May 2018 and remained in custody.
The female offender was also to be sentenced in respect of a separate offence of knowingly taking part in the supply of a prohibited drug under s 25(1), placed on Form 1 (that is, taken into account at sentencing without a separate conviction being recorded). Both offenders declined to participate in police interviews following arrest.
Legal Issues
- What sentence was appropriate for each offender, having regard to the objective seriousness of the joint enterprise and their individual levels of involvement?
- What weight should be given to each offender's subjective circumstances, including drug dependency, mental health, remorse, and rehabilitation efforts?
- Whether special circumstances existed for either offender justifying a departure from the standard ratio between the non-parole period and the total sentence?
- How the commencement date of the male offender's sentence should be fixed, given that he had been serving a balance of parole at the time of arrest?
- Whether the female offender's sentence could appropriately be served by way of an intensive corrections order?
Decision
The District Court characterised the offending as a serious episode of drug dealing conducted over a relatively confined period. The male offender was able to source methylamphetamine of high purity on request, and while the operation was not highly sophisticated, it was accessible and consistent. The court acknowledged that his objective seriousness was somewhat greater than that of his co-offender, given the number of supplies he personally conducted and his capacity to source the drug.
On the male offender's subjective case, the court accepted that a difficult upbringing, including a violent home environment and a stint in a youth refuge from age 14, left him ill-equipped to resist exposure to drug culture. He had been using up to a gram of ice daily at the time of the offending, and had since engaged in multiple rehabilitation programs while on remand, including Breaking the Cycle, the RUSH program, and Crystal Meth Anonymous. The court accepted his expressions of remorse and found his prospects of rehabilitation to be reasonable. A diagnosis of major depressive disorder and amphetamine-type substance use disorder, together with those rehabilitation efforts, supported a finding of special circumstances.
On the female offender's subjective case, the court noted her more limited criminal history, a stable mental health condition, and expressed remorse. Her involvement in the enterprise, while part of the same joint criminal venture, was objectively less extensive than that of her co-offender. The court declined to impose an intensive corrections order, partly because her own psychologist's report identified the need for a period of formal assessment of her release plan and substance testing before reintegration, and the defence did not address how those needs could be met in the community. The court was satisfied that a further period in custody was appropriate to facilitate that process, avoiding the risk of premature release without adequate support.
A 25% discount was applied to both sentences in recognition of the utilitarian value of the early guilty pleas. The court exercised its discretion to commence the male offender's sentence from 24 May 2018, the date of his arrest, notwithstanding that he had been serving a balance of parole at that time, on the basis that the parole revocation had effectively been triggered by the current offending.
Orders Made
John Lee:
- Convicted of supplying a prohibited drug on an ongoing basis
- Sentenced to 2 years and 3 months imprisonment, commencing 24 May 2018
- Non-parole period of 18 months, expiring 23 November 2019
- Special circumstances found
- Drug destruction order made
Huey Li Ooi:
- Convicted of supplying a prohibited drug on an ongoing basis (Form 1 offence taken into account)
- Sentenced to 18 months imprisonment, commencing 24 May 2018
- Non-parole period of 13 months, expiring 23 June 2019
- Special circumstances found
- Drug destruction order made
Key Takeaways
- In a joint criminal enterprise, the court assessed each participant's sentence by reference to their individual level of involvement, even where the agreed facts were substantially the same for both offenders.
- Special circumstances, justifying a longer parole period relative to the non-parole period, were established in both cases on the basis of diagnosed mental health conditions, substance use disorders, and the need for structured post-release supervision and treatment.
- Where a psychologist's report recommended formal assessment of a proposed release plan before an offender re-entered the community, the District Court treated that as a relevant consideration weighing against an intensive corrections order.
- A 25% discount for the utilitarian value of a guilty plea entered at the earliest opportunity was uncontested and applied to both offenders.
- The commencement date of a custodial sentence remains a matter of judicial discretion; here, the court backdated the sentence to the date of arrest rather than the date the balance of parole was completed, treating the parole revocation as a product of the current offending.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 9, 10, 12
Cases:
- McDowall v R [2019] NSWCCA 29
- Parente v R [2017] NSWCCA 284