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District Court 8 August 2019

R v Micah

[2019] NSWDC 626

Drugs
CRIME SENTENCE SUPPLY PROHIBITED DRUG METHYLENEDIOXYMETHAMPHETAMINE NOT LESS THAN COMMERCIAL QUANTITY ISSUE OF PARITY

Citation: R v Micah [2019] NSWDC 626
Court: District Court of New South Wales
Date: 8 August 2019
Judge(s): Norrish QC DCJ

Background

The offender pleaded guilty to supplying a not less than commercial quantity of MDMA (194.08 grams) between December 2017 and February 2018 in Surry Hills. He operated as a street-level supplier or "runner" within a broader criminal group that distributed drugs across Sydney's city and eastern suburbs during that period.

The criminal group was dominated by French nationals and included several co-offenders at varying levels of the organisation. The offender's role was that of a messenger or runner, working intermittently over approximately two months. He was not in possession of substantial sums of cash, drugs, or drug-related paraphernalia, and he received only modest financial reward for his participation.

The court had already sentenced two directly related co-offenders, Hannachi and Chamon, and a third connected offender, Bianchi. A fourth co-offender, Watchou, was yet to be sentenced. The principal organisers of the group, including a man known as Coulaud, were identified as the dominant figures; Coulaud had fled Australia before the police operation concluded.

  • What was the appropriate sentence for a street-level supplier of a not less than commercial quantity of MDMA, taking into account his limited role in a larger criminal organisation?
  • How did the parity principle apply when sentencing this offender relative to Hannachi, a co-offender with a significantly greater organisational role, a worse criminal record, and a more sustained involvement in the supply?
  • What weight should be given to the offender's assistance to police as a mitigating factor?
  • How should the Form 1 offences (participating in a criminal group, contributing to criminal activity, and knowingly dealing with proceeds of crime) affect the overall sentence?

Decision

The court conducted a close parity analysis, comparing the offender's circumstances with those of Hannachi. Hannachi had been sentenced to four years' imprisonment with a non-parole period of two years and five months for a directly related offence, but he was a director of the criminal group, responsible for sourcing drugs and directing runners. He also had a relevant criminal history and was in breach of conditional liberty at the time of the offending. The current offender had none of those aggravating features.

Applying the principle from Postiglione v R and Jimmy v R, the court treated equal justice as requiring that alike be treated alike and unalike treated unalike, in proportion to their differences. The offender's role was materially less culpable than Hannachi's: he was a runner, not an organiser, his involvement was intermittent over two months, and his financial reward was minimal.

The court identified the supply for financial reward as an aggravating factor under the sentencing legislation, but noted the offender was not found in possession of substantial cash, drugs, or paraphernalia. The court also took into account the offender's assistance provided to police as a mitigating factor. A starting figure for the term of imprisonment of two and a half years was rounded down before further adjustment.

The court determined that the sentence could be served by way of an Intensive Correction Order. A term of one year and ten months' imprisonment was imposed, to be served in that manner.

Orders Made

  • Imprisonment for one year and ten months, to be served by way of an Intensive Correction Order
  • Proceeds of crime forfeiture order in the amount of $900 (by consent, reflecting the amount the offender admitted receiving from the relevant transaction)

Key Takeaways

  • The District Court applied the parity principle to impose a materially lesser sentence on a street-level runner than on a co-offender who held a directing role in the same criminal enterprise, reflecting the Aristotelian equality principle endorsed in Postiglione and Jimmy: alike treated alike, unalike treated unalike.
  • A conviction for supply of a not less than commercial quantity of a prohibited drug under s 25(2) of the Drug Misuse and Trafficking Act 1985 carries a maximum of 20 years' imprisonment and a standard non-parole period of 10 years, but these benchmarks do not preclude a non-custodial or community-based term where an offender's role and personal circumstances sufficiently distinguish them from more culpable co-offenders.
  • Supply for financial reward constituted a statutory aggravating factor, but the court declined to treat that factor at its highest where the offender was not in possession of substantial cash, drugs, or drug-related paraphernalia and had received only a modest personal benefit.
  • Assistance provided to police operated as a mitigating factor in the overall sentencing calculus.
  • Where multiple co-offenders in the same criminal group are sentenced separately over time, the sentencing court must keep close track of each prior sentence and the factual basis on which it was imposed, in order to apply the parity principle accurately across the group.

Legislation and Cases Referenced

Legislation

  • Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
  • Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 7(1), 21A, 54A(2), 54B(2), 98(3), Pt 4 Div 1A

Cases

  • Postiglione v R (1997) 198 CLR 395
  • Jimmy v R [2010] NSWCCA 60
  • R v Olbrich [1999] HCA 54
  • Hili and Jones v R [2010] HCA 45
  • DPP (Cth) v Gow [2015] NSWCCA 208
  • R v Mostapha Ali [2016] NSWDC 173