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District Court 2 August 2019

R v Walker

[2019] NSWDC 554

Drugs
SENTENCING RELEVANT FACTORS ON SENTENCE MULTIPLE OFFENCES DRUG SUPPLY SUPPLY FOR PROFIT AND OWN USE LONG TERM DRUG USER

Citation: R v Walker [2019] NSWDC 554
Court: District Court of New South Wales
Date: 2 August 2019
Judge: Haesler SC DCJ

Background

The offender was sentenced for two counts of supplying methylamphetamine, contrary to s 25(1) of the Drug (Misuse and Trafficking) Act 1985. Both offences involved retail-level drug distribution, and each carried a maximum penalty of 15 years imprisonment. The offender had been in custody since 29 April 2018, initially in relation to separate Local Court matters.

The first offence, committed in March 2017, involved the offender sourcing 186 grams of methylamphetamine, packaging it, and arranging for two associates to transport it to Wagga Wagga while he flew there separately. The second offence, occurring approximately six months later, involved the offender directing others to supply small quantities of methylamphetamine, ranging from 0.5 grams to 3.5 grams, with pricing structures consistent with a retail drug operation.

The offender had a lengthy criminal history dating from 1988 and had served multiple terms of imprisonment. He had also made prior attempts at drug rehabilitation with limited lasting success. Psychological evidence before the court identified both protective factors, including family support and motivation to engage in treatment, and significant risk factors, including substance abuse, mental health problems, and a history of unstable employment.

  • Whether the objective seriousness of the offences required a substantial term of full-time custody, or whether an Intensive Corrections Order (ICO) was appropriate given time already served.
  • How to weigh the competing sentencing purposes of deterrence (both general and specific) against rehabilitation and the offender's prospects of reintegration.
  • Whether special circumstances existed justifying a departure from the standard ratio between the non-parole period and the head sentence.
  • What mitigating factors, including the guilty plea and the offender's personal circumstances, should reduce the otherwise appropriate sentences.

Decision

Haesler SC DCJ rejected the submission that an ICO would adequately serve the purposes of sentencing. While acknowledging that EF v R [2015] NSWCCA 36 and Robertson v R [2017] NSWCCA 205 confirm that an ICO cannot be categorically excluded, his Honour held that general sentencing principles nonetheless apply. Those principles, he found, require that persons who engage in drug supply for profit can expect a significant period of full-time imprisonment.

The court found that the offender had, on both occasions, operated a retail drug distribution enterprise. Although the offender claimed to the psychologist that he was distributing drugs solely to fund his own use and not for financial gain, his Honour declined to accept that characterisation. The evidence indicated that profits from the operation also supported the offender's general living expenses, and his conduct throughout demonstrated rational, clandestine, and organised management of a drug trade.

His Honour identified the seriousness of retail drug supply as lying, in part, in its contribution to sustaining a market for methamphetamine in the community. Only a substantial full-time custodial sentence, he concluded, could properly reflect the objective seriousness of the two offences. The court accepted, however, several mitigating factors: the guilty plea (attracting a 25% reduction), the offender's family support, and his expressed motivation to engage in treatment and vocational activity upon release.

Special circumstances were found, resulting in a parole period of one year against a total sentence of three years. This extended parole period was intended to support the offender's engagement with drug treatment programs, supervision by probation and parole, and his mental health needs, including a past head injury requiring neuropsychological investigation. The sentence was backdated to 29 April 2018 as an act of leniency, in recognition of the strong prosocial support evident from character evidence.

Orders Made

  • Count 1 (supply of 186 grams of methylamphetamine, taking into account Form 1 matters): sentence of 2 years and 6 months.
  • Count 2 (supply of 12.7 grams of methylamphetamine): sentence of 2 years.
  • Aggregate sentence of 3 years imprisonment, with a non-parole period of 2 years backdated to 29 April 2018, making the offender eligible for release to parole on 28 April 2020.
  • Parole period of 1 year, reflecting a finding of special circumstances.
  • Drug destruction order made.
  • Forfeiture order previously made.
  • Backup offences (Sequences 3 to 5 and 7 to 10) withdrawn and dismissed.

Key Takeaways

  • The District Court confirmed that while an ICO cannot be automatically excluded as a sentencing option for drug supply offences (following EF v R and Robertson v R), general sentencing principles mean that those who supply drugs for profit will ordinarily face a significant term of full-time imprisonment.
  • A sentencing court may decline to accept favourable characterisations of an offender's conduct where those characterisations appear in unsworn material to a psychologist and are inconsistent with the broader evidence before the court.
  • Retail-level drug supply carries significant objective seriousness because of its role in sustaining demand for illicit drugs in the community, regardless of the quantities involved in individual transactions.
  • Special circumstances justifying an extended parole period can be found where an offender has complex, intersecting needs, including substance dependence, mental health difficulties, and a history of rehabilitation failure that require structured post-release supervision.
  • A sentencing court may backdate a sentence beyond the strict commencement date as a matter of discretion, where doing so reflects leniency and encourages demonstrated prosocial motivation.

Legislation and Cases Referenced

Legislation:
- Drug (Misuse and Trafficking) Act 1985 (NSW), s 25(1)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15

Cases:
- EF v R [2015] NSWCCA 36
- Robertson v R [2017] NSWCCA 205