Citation: R v Corey David Edward Magee; R v Jesse Marijonas Vilkelis-Curas [2019] NSWDC 670
Court: District Court of New South Wales
Date: 30 October 2019
Judge: Yehia SC DCJ
Background
Two co-offenders were sentenced following guilty pleas to serious drug supply offences connected to a 2018 police undercover operation, Strike Force Trevalsa. The first offender (referred to here as the principal offender) held an organising role in a cocaine supply network and faced six substantive counts, including supplying a large commercial quantity of cocaine and multiple counts of supplying Buprenorphine. The second offender (the driver) acted as the delivery agent for the principal offender and pleaded guilty to one count of knowingly taking part in the supply of a large commercial quantity of cocaine.
The operation involved an undercover operative who made arrangements to purchase one kilogram of cocaine. The principal offender communicated via encrypted messaging applications and directed the driver to facilitate physical delivery of the drugs. Police intercepted cash connected to the principal offender during the operation, and the actual quantity of cocaine ultimately involved was 995.1 grams, though the pleas were entered on the basis that the offer to supply was for one full kilogram.
Both offenders pleaded guilty at the first opportunity in the Local Court and were committed for sentence. The court accepted that a 25 percent reduction was warranted in each case to reflect the utilitarian value of those early pleas.
Legal Issues
- Whether the driver's sentence could be served by way of an Intensive Corrections Order (ICO) rather than full-time imprisonment, given the offence carried a standard non-parole period of 15 years
- Whether "very exceptional circumstances" must be established before a sentence other than full-time custody can be imposed for a large commercial drug supply offence
- The relevance and weight of childhood deprivation and disadvantage to an offender's moral culpability
- How the aggregate sentencing principles under the Crimes (Sentencing Procedure) Act 1999 applied across the multiple counts facing the principal offender, including the treatment of Form 1 offences and special circumstances
Decision
The "very exceptional circumstances" question. The court examined whether the driver was required to demonstrate "very exceptional circumstances" before a non-custodial or alternative custodial order could be made for a large commercial supply offence. The court concluded that no such threshold test applies as a matter of law. While the extreme objective seriousness of large commercial drug supply means that full-time imprisonment will almost always follow, the sentencing court retains a discretion and must consider all relevant circumstances. The standard non-parole period serves as a statutory guidepost rather than a rigid barrier to an ICO.
Childhood deprivation and moral culpability. Drawing on the High Court's decision in Bugmy v The Queen (2013) 249 CLR 571, the court accepted that profound childhood disadvantage and deprivation can reduce an offender's moral culpability and must be given full and genuine weight in sentencing, even for serious offences. The driver's background, which included significant childhood trauma and disadvantage, was treated as a meaningful mitigating consideration.
The driver's sentence. The court imposed an aggregate sentence of 2 years and 6 months to be served by way of an Intensive Corrections Order, supported by the driver's early plea, limited criminal history, reduced role as a courier, his youth, genuine prospects of rehabilitation, and the significant weight given to his background of disadvantage. The court also noted his engagement with psychological counselling through Headspace as a positive indicator.
The principal offender's sentence. The principal offender's considerably more serious role, including directing the supply network, using encrypted communications, and facing multiple counts across different drugs, resulted in an aggregate sentence of 6 years and 6 months imprisonment with a non-parole period of 3 years and 6 months. The court found special circumstances justifying a departure from the standard non-parole period ratio, given the principal offender's need for an extended period of supervision upon release.
Orders Made
Jesse Vilkelis-Curas (the driver):
- Convicted of each offence
- Indicative sentences noted: 2 years imprisonment for the cocaine supply count (including Form 1 cannabis supply offence); 8 months imprisonment for participating in a criminal group
- Aggregate sentence of 2 years and 6 months imprisonment, served by way of an Intensive Corrections Order, commencing 30 October 2019
- Standard ICO conditions: no further offending; supervision by Community Corrections
- Additional conditions: 150 hours of community service work; continuation of psychological counselling at Headspace Lismore or an eligible facility
- Required to report to Community Corrections Office at Lismore within seven days
- Drug proceeds order of $5,000 payable to the State of New South Wales
Corey Magee (the principal offender):
- Convicted of all counts
- Indicative sentences: Count 1 (cocaine, large commercial quantity, including s 93T Form 1 offence): 5 years, NPP 3 years; Count 2 (MDMA, large commercial quantity): 4 years, NPP 2 years 3 months; Count 3 (Buprenorphine, including Form 1 offences): 9 months; Counts 4, 5, and 6 (Buprenorphine): 6 months each
- Aggregate sentence of 6 years and 6 months imprisonment, commencing 29 May 2018, expiring 28 November 2024
- Non-parole period of 3 years and 6 months, commencing 29 May 2018, expiring 28 November 2021
- Drug proceeds order of $15,000 payable to the State of New South Wales
Key Takeaways
- The District Court confirmed that there is no legal requirement to establish "very exceptional circumstances" before imposing an alternative to full-time imprisonment for a large commercial drug supply offence, though the objective gravity of such offences means full-time custody will ordinarily result.
- Profound childhood disadvantage and deprivation remain relevant and weighty mitigating factors even for serious drug offences, consistent with the High Court's approach in Bugmy v The Queen.
- An Intensive Corrections Order was available on facts involving a large commercial cocaine supply where the offender's role was limited to that of a courier, the plea was entered at the first opportunity, and there was credible evidence of rehabilitation prospects and personal disadvantage.
- Where co-offenders played significantly different roles in the same drug supply enterprise, the court applied markedly different sentences to reflect those differences in objective seriousness and individual circumstances.
- Special circumstances under s 53A of the Crimes (Sentencing Procedure) Act 1999 can justify extending the parole period beyond the standard ratio where an offender requires a longer period of post-release supervision to support rehabilitation.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1) and 25(2)
- Crimes Act 1900 (NSW), s 93T
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 53A and 68
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 29(1)
Cases:
- Bugmy v The Queen (2013) 249 CLR 571
- Wong v The Queen; Leung v The Queen (2001) 207 CLR 584
- R v Achurch (2011) 216 A Crim R 152
- R v Qi [2019] NSWCCA 73
- Taysavang v R [2017] NSWCCA 146
- Truong v R [2006] NSWCCA 318
- Hristovski v R [2010] NSWCCA 129
- R v Millwood [2012] NSWCCA 2
- Mainwaring v The Queen [2009] NSWCCA 207
- R v Blackman and Walters [2001] NSWCCA 121
- R v Chan [1999] NSWCCA 103
- R v Osenkowski (1982) 5 A Crim R 694
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