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District Court 18 April 2019

R v Berry

[2019] NSWDC 522

DrugsFirearms & weapons

Citation: R v Berry [2019] NSWDC 522
Court: District Court of New South Wales
Date: 18 April 2019
Judge: Buscombe DCJ

Background

The offender was a 45-year-old man identified by police during a Blue Mountains strike force investigation into drug supply. Between November 2017 and early 2018, he regularly travelled to Yagoona to obtain heroin before supplying it to purchasers throughout the upper Blue Mountains area, using coded language over an intercepted mobile phone service and sometimes using accomplices to complete transactions.

When police executed a search warrant at his Leura residence in December 2017, they found heroin concealed in his clothing and bedside drawer, as well as a slingshot on a bedroom shelf. The offender was ultimately arrested in March 2018.

He pleaded guilty in the Local Court and maintained those pleas in the District Court to two counts of ongoing supply of a prohibited drug (heroin) under s 25A(1) of the Drug Misuse and Trafficking Act, and one count of possessing a prohibited weapon (the slingshot) without a permit under s 7(1) of the Weapons Prohibition Act. Three further drug-related offences were taken into account on a Form 1 (a procedural mechanism by which additional offences are acknowledged and factored into the sentence without being separately convicted).

  • What was the appropriate objective seriousness of two ongoing heroin supply offences, each covering a period of approximately one month?
  • How should the Form 1 offences (a single supply, a possession of heroin, and a further ongoing supply) affect the sentence on the principal counts?
  • What weight should be given to the offender's role as a user/dealer, his limited criminal history, personal circumstances, and guilty pleas?
  • What was the appropriate aggregate sentence, including the non-parole period?

Decision

Buscombe DCJ assessed both ongoing supply offences as falling below the notional mid-range of objective seriousness, while acknowledging they remained serious examples of supplying heroin for financial reward. The total quantities involved (5.6 grams for the first count and 4.1 grams for the second) were noted as not particularly large, but the judge observed that repetition and organisation are at the heart of this type of offending under s 25A(1). The offender was classified as a user/dealer operating above a simple street-level dealer, given the frequency of supply and his method of operation. The court accepted that any financial gain was primarily directed toward funding the offender's own heroin habit, which he used two to three times a day.

The prohibited weapon, a slingshot, was assessed as sitting towards the bottom of the range for such implements. The court noted it was not concealed and had no apparent connection to the drug supply operation. The Form 1 offences were taken into account on the first ongoing supply count, with the court applying the relevant guideline principles requiring that they have some measurable impact on the sentence.

Subjective factors considered in the offender's favour included his limited criminal history (his last relevant conviction dated to 1994), his guilty pleas (which attracted a discount), and his personal circumstances including his drug dependency. The court also noted the standard aggravating feature that the offending was committed while the offender was on bail. General deterrence was identified as a significant sentencing objective, given the serious harm that prohibited drug supply causes to individuals and the community. The court concluded that imprisonment was the only appropriate disposition.

Orders Made

  • Convicted on all three offences to which guilty pleas were entered.
  • Indicative sentence on sequence 1 (ongoing supply, 23 November to 14 December 2017, including Form 1 matters): 2 years and 4 months imprisonment.
  • Indicative sentence on sequence 2 (ongoing supply, 15 December 2017 to 14 January 2018): 2 years imprisonment.
  • Indicative sentence on the prohibited weapon offence: 6 months imprisonment.
  • Aggregate sentence of 3 years and 4 months imprisonment, with a non-parole period of 1 year and 8 months.
  • Sentence commences 22 March 2018; expires 21 July 2021; non-parole period expires 21 November 2019.
  • Drugs to be destroyed.

Key Takeaways

  • Ongoing supply offences under s 25A(1) of the Drug Misuse and Trafficking Act carry a maximum of 20 years imprisonment; the District Court confirmed that such offences are generally regarded as more serious than straightforward supply because of their repetitive and organised nature.
  • Classification of an offender's role matters in sentencing: the court distinguished a user/dealer who operates with some organisation and frequency from a simple street-level user/dealer, treating the former as warranting greater weight in the sentencing calculus.
  • Where drug supply is motivated primarily by funding a personal addiction, that finding may inform the assessment of moral culpability without being treated as a complete mitigating factor, particularly where the offending remained sustained and organised.
  • Committing offences while on bail is a statutory aggravating factor under the Crimes (Sentencing Procedure) Act, and the court treated it as such here.
  • Possession of a prohibited weapon at the bottom of the severity range, with no apparent link to other offending, attracted a relatively modest indicative sentence of 6 months within an aggregate term.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act (NSW), s 25A(1) (ongoing supply of a prohibited drug)
- Weapons Prohibition Act (NSW), s 7(1) (possession of a prohibited weapon without a permit)
- Crimes (Sentencing Procedure) Act (NSW), s 3A (objects of sentencing)

Cases:
- Hayek v The Queen [2016] NSWCCA 126