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District Court 16 July 2019

R v Tesoriero

[2019] NSWDC 617

DrugsFirearms & weapons
CRIME SENTENCING MULTIPLE DRUG OFFENCES FIREARMS OFFENCE REMORSE SHOWN SPECIAL CIRCUMSTANCES

Citation: R v Tesoriero [2019] NSWDC 617
Court: District Court of New South Wales
Date: 16 July 2019
Judge: Wilson SC DCJ

Background

The offender, a man born in 1985, appeared for sentencing on multiple drug supply and firearms offences committed between July and December 2015, when he was 29 and 30 years old. Investigators from Gosford Detectives established Strike Force Aylesbury and used an undercover operative, surveillance, and telephone intercepts to gather evidence against him. The operation captured the offender purchasing and supplying methylamphetamine and supplying a prohibited firearm.

The offending spanned several transactions. The most serious involved the supply of 295 grams of methylamphetamine, exceeding the commercial quantity under the Drug Misuse and Trafficking Act 1985. The offender also supplied smaller quantities of methylamphetamine across four separate charges, supplied a prohibited firearm to an unauthorised person, possessed various prohibited drugs, and dealt with proceeds of crime (taken into account on a Form 1). He had been in custody since his arrest on 17 December 2015.

The offender pleaded guilty, though not without some procedural complexity: he was originally committed for sentence, later traversed his plea, was committed for trial, and ultimately pleaded guilty to an amended indictment in December 2018.

  • What aggregate sentence and non-parole period were appropriate for a course of serious drug supply and firearms offending?
  • Whether standard non-parole periods justified departure given the offender's personal circumstances, including demonstrated remorse and strong family support
  • How to apply the totality principle when sentencing for multiple offences of varying seriousness
  • Whether special circumstances existed to warrant reducing the non-parole period below the statutory default ratio

Decision

Wilson SC DCJ sentenced the offender by reference to the standard non-parole periods and maximum penalties applicable to each offence, treating these as guideposts rather than fixed outcomes. The principal offence, supply of more than the commercial quantity of methylamphetamine (295 grams on the ex-officio count), carried a maximum of 20 years imprisonment and a standard non-parole period of 10 years. The proceeds of crime charge was taken into account via a Form 1, increasing the weight given to personal deterrence and retributive considerations.

The court accepted psychological evidence going to the offender's remorse and his decision to cease drug use. The offender's strong family and social support network was also treated as a meaningful factor in assessing the risk of reoffending, which the court found to be low.

Applying the totality principle, the court imposed an aggregate sentence rather than cumulative individual terms. The non-parole period was reduced substantially, from the 75 per cent default ratio to approximately 56 per cent, on the basis that an earlier return to the community with existing support structures would best serve rehabilitation. The court expressly found special circumstances justifying that departure.

Orders Made

  • The offender was convicted of: supply more than a commercial quantity of methylamphetamine (295 grams, ex-officio count); supply more than an indictable quantity of methylamphetamine across four charges (5.13 g, 13.98 g, 80.08 g, and 223.8 g); supply a prohibited firearm to an unauthorised person; possession of prohibited drugs (testosterone, methylamphetamine, and methorfhan); and supply between the small and indictable quantity of methylamphetamine on two further charges.
  • The proceeds of crime charge (sequence 46) was taken into account on a Form 1.
  • The backup possession charge (sequence 2) was withdrawn and dismissed.
  • An aggregate sentence of eight years was imposed, commencing 17 December 2015 and expiring 18 December 2023.
  • A non-parole period of four years and six months was imposed, commencing 19 December 2015 and expiring 18 June 2020.

Key Takeaways

  • Demonstrated remorse and a credible decision to cease drug use can weigh meaningfully in favour of a reduced non-parole period, provided the sentencing court accepts the evidence supporting those findings.
  • Special circumstances were established here on the basis that an earlier release into a strong family and community support network would reduce the risk of reoffending, justifying a non-parole period of approximately 56 per cent rather than the 75 per cent default.
  • Where multiple serious offences are sentenced together, the totality principle requires the court to assess the overall criminality rather than simply accumulating penalties, and an aggregate sentence may be the appropriate vehicle for that exercise.
  • A Form 1 charge does not result in a separate conviction but is taken into account to increase the penalty on the principal offence, with particular weight given to personal deterrence and retribution.
  • Under the Drug Misuse and Trafficking Act 1985, supply of more than a commercial quantity of methylamphetamine attracts a maximum of 20 years imprisonment and a standard non-parole period of 10 years, which serves as a guidepost that may be departed from where circumstances justify it.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 25(2)
- Firearms Act 1996 (NSW), s 51(1A)(a)
- Crimes Act 1900 (NSW), s 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Hewitt v R (2007) 180 A Crim R 306
- Lowe v R (1984) 154 CLR 606
- Pearce v R (1998) 194 CLR 610
- The Queen v Pham (2015) 256 CLR 550