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District Court 21 November 2019

R v Pedras

[2019] NSWDC 702

DrugsFirearms & weapons

Citation: R v Pedras [2019] NSWDC 702
Court: District Court of New South Wales
Date: 21 November 2019
Judge: Bennett SC DCJ

Background

The offender was the victim of a home invasion in which a neighbour, acting in concert with armed accomplices, facilitated forced entry to his apartment in order to steal his watch collection. During the invasion, the offender was shot in the leg with a pistol. Police attended, obtained a crime scene warrant, and in searching the offender's bedroom found quantities of prohibited drugs and other indicia of supply.

The offender was charged with two offences of supply of a prohibited drug under the Drugs (Misuse and Trafficking) Act 1985: one count of supplying 124.99 grams of MDMA (ecstasy), just below the commercial quantity threshold, and a second count involving 40.78 grams of methylamphetamine. A possession of a prohibited weapon (a Taser) charge was also before the court under s 166 of the Criminal Procedure Act 1986.

Before trial, the offender's then-counsel challenged the admissibility of the drug evidence, arguing police had exceeded the scope of the crime scene warrant. That application was refused. New counsel was retained, and the offender subsequently pleaded guilty to a reformulated indictment on the supply charge, with the second supply offence placed on a Form 1 (to be taken into account without separate conviction), and pleaded guilty to the weapons charge.

  • Whether the police search conducted under the crime scene warrant exceeded the warrant's authorised scope, such that the drug evidence should be excluded
  • The appropriate guilty plea discount to apply, given the late timing of the pleas
  • How to structure an aggregate sentence across the supply offence, the Form 1 matter, and the summary weapons offence
  • Whether special circumstances existed to justify a variation from the standard non-parole period ratio
  • The weight to be given to mitigating factors including remorse, character references, psychological evidence, and the offender's experience as a crime victim

Decision

The District Court refused the evidence exclusion application, finding that the police had acted within the authority of the crime scene warrant. Bennett SC DCJ observed that, in the context of a two-bedroom apartment where a firearm had been discharged, it was unreasonable to confine the search to the immediate area of the reported crime.

On sentencing, the court accepted the prosecution's concession that a utility discount applied to both pleas, but limited the discount on the indictable supply offence to 15%, reflecting the late stage at which the plea was entered. The full 25% discount applied to the summary weapons charge, as it was the offender's first opportunity to plead to that matter.

The principal charge was structured to reflect the offender's lack of knowledge that the MDMA quantity reached the commercial threshold. Although the indictment specified 125.03 grams, which technically exceeds the commercial quantity, the agreed facts recorded 124.99 grams, and the plea proceeded on the basis that the offender did not know he held a commercial quantity.

The court found special circumstances warranting a non-parole period shorter than the statutory default, given the need for supervision and support on release. The aggregate sentence commenced from 27 June 2019, the date the offender had been in continuous custody on unrelated summary matters for which bail had been refused. The court noted that the offender's refusal to sign an undertaking in relation to an upcoming trial precluded a further reduction in sentence that would otherwise have been available.

Orders Made

  • Offender convicted of supplying a prohibited drug (MDMA, 124.99 grams) contrary to s 25(1) of the Drugs (Misuse and Trafficking) Act 1985
  • Second supply offence (40.78 grams of methylamphetamine) taken into account on Form 1
  • Offender convicted of possessing a prohibited weapon (Taser) under s 166 of the Criminal Procedure Act 1986
  • Aggregate sentence of 2 years and 3 months imprisonment, commencing 27 June 2019
  • Non-parole period of 1 year and 3 months, expiring 26 September 2020
  • Balance of sentence (parole period) to expire 26 September 2021
  • Psychologist's report to accompany the offender into custody

Key Takeaways

  • A crime scene warrant authorising search of residential premises extends to the whole of those premises where the nature of the reported crime makes it reasonable to search throughout, such as where a firearm has been discharged in a small apartment.
  • Where a guilty plea to an indictable drug supply offence is entered late, after a failed evidence exclusion challenge and at the point of trial, the available discount for utilitarian value may be confined to as little as 15%.
  • The District Court structured the aggregate sentence to commence from the date of remand on unrelated summary proceedings, reflecting the principle that all time spent in continuous custody should be accounted for.
  • Special circumstances can justify a non-parole period below the standard ratio where the offender requires structured supervision on release, resulting here in a non-parole period representing slightly more than half the aggregate term.
  • Charges may be drawn and pleas accepted on the basis of the offender's actual state of knowledge as to drug quantity, even where the physically measured quantity technically crosses into a higher statutory category.

Legislation and Cases Referenced

Legislation:
- Drugs (Misuse and Trafficking) Act 1985 (NSW), ss 25(1), 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Division 1A, s 37
- Criminal Procedure Act 1986 (NSW), s 166
- Prohibited Weapons Act 1998 (NSW)

Cases:
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] 56 NSWLR 146
- McNaughton [2006] NSWCCA 242
- Qutami [2001] NSWCCA 353