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District Court 13 June 2019

R v Owens

[2019] NSWDC 705

Drugs
SENTENCING: SUPPLYING A PROHIBITED DRUG ONGOING SUPPLY OF A PROHIBITED DRUG RELEVANT FACTORS ON SENTENCE COURIER TRAFFICKING FOR REWARD REQUIREMENT FOR DETERRENT SENTENCES

Citation: R v Owens [2019] NSWDC 705
Court: District Court of New South Wales
Date: 13 June 2019
Judge: Haesler SC DCJ

Background

The offender was a courier operating within a drug distribution network overseen by a more senior figure who was, at the time of sentencing, awaiting trial. The offender was arrested in February 2018 after drawing police attention to himself while following a vehicle seized from that principal figure. A search incident to that arrest uncovered cash and his mobile phone, and forensic analysis of the phone produced photographic and messaging evidence of his drug activity.

That evidence revealed two categories of conduct. First, a photograph showed 15.54 grams of methylamphetamine on digital scales, giving rise to a supply charge. Second, intercepted messages documented four separate transactions in January and February 2018 in which the offender supplied a total of 7.7 grams of methylamphetamine for a combined reward of $1,450, giving rise to an ongoing supply charge under s 25A of the Drug Misuse and Trafficking Act 1995. A dealing-in-proceeds-of-crime matter involving $4,500 cash was brought forward on a Form 1 to be taken into account during sentencing on the ongoing supply count.

The offender pleaded guilty to both charges and, separately, provided assistance to authorities. He did not give evidence at the sentencing hearing, but a psychological report was tendered on his behalf. His prior record included multiple driving offences, including repeated disqualified driving.

  • Whether the totality of the offending, the offender's role as a courier, and the relatively small quantities involved warranted full-time imprisonment or a non-custodial alternative
  • The appropriate weight to give deterrence and retribution in sentencing for drug supply offences, particularly where the offender occupied a lower-level role in a distribution network
  • Whether an Intensive Correction Order (ICO) could satisfy the requirement for a deterrent sentence in the circumstances
  • The extent of the sentencing discount available for the early guilty plea and for assistance to authorities
  • The effect of the Form 1 dealing-in-proceeds matter on the overall sentence

Decision

Haesler SC DCJ confirmed that courts are generally required to impose deterrent sentences for drug supply and distribution offences, reflecting both the maximum penalties prescribed by Parliament and the longstanding principle from R v Clark (1990). His Honour noted, however, that the Court of Criminal Appeal's decisions in EF v R [2015] NSWCA 36 and Robertson [2017] NSWCCA 205 had made clear that sentencing discretion should not be so rigidly applied as to preclude consideration of individual circumstances or the use of modern non-custodial sentencing options.

The court accepted that the offender's role was primarily that of a courier who expected modest financial reward, and that while his conduct was not isolated, the quantities involved were at the lower end. His Honour also noted the offender's personal circumstances as set out in the psychological report, his early guilty plea, and his provision of assistance to authorities, the latter subject to a non-publication order.

The court concluded that, in the particular circumstances, a sentence served by way of Intensive Correction in the community could constitute a sufficiently harsh and deterrent response. Full-time imprisonment was not imposed. The starting points before discount were three years for the supply matter and three years three months for the ongoing supply matter, with a 40% reduction applied to the latter to reflect the guilty plea and its utilitarian value. The sentences were structured to achieve an aggregate term of two years five months, adjusted downward by one month to account for time already served.

Orders Made

  • Supply offence (s 25, Drug Misuse and Trafficking Act 1995): sentence of 1 year 9 months (starting point of 3 years, reduced for guilty plea and assistance)
  • Ongoing supply offence (s 25A), inclusive of the Form 1 matter: sentence of 1 year 11 months (starting point of 3 years 3 months, reduced by 40%)
  • Combined sentence of 2 years 5 months (reduced from 2 years 6 months by 1 month for time served), commencing 13 June 2019
  • Sentence to be served by way of Intensive Correction Order in the community under the Crimes (Administration of Sentence) Act 1999
  • Reporting direction: offender to report to Community Corrections, Wollongong within seven days
  • Additional ICO conditions: 200 hours community service work; engagement in programs recommended by Community Corrections
  • Drug destruction order made (compliance deferred until conclusion of proceedings against the principal)
  • Confiscation order previously made by consent confirmed
  • Non-publication order applying to the offender's assistance to authorities; offender referred to by pseudonym in any publication; identifying material removed from the published judgment
  • Exhibit B sealed and to be held with court papers, to be opened only on order of a judicial officer

Key Takeaways

  • The District Court confirmed that the obligation to impose deterrent sentences for drug supply offences remains, but that this requirement does not automatically mandate full-time imprisonment in every case, particularly following EF v R and Robertson.
  • Under the Drug Misuse and Trafficking Act 1995, the ongoing supply offence (s 25A) was introduced specifically to target lower-level couriers who regularly supply small amounts on behalf of those higher in the distribution chain, and the court noted this explicitly as a factor in assessing the offender's culpability.
  • A 40% sentencing discount was applied to reflect both the utilitarian value of an early guilty plea and assistance provided to authorities, illustrating the significant combined weight those factors can carry.
  • Where an offender plays a courier role involving modest quantities and financial reward, and meaningful mitigating factors are present, an Intensive Correction Order can be regarded as a sufficiently serious and deterrent sentence.
  • Non-publication orders protecting the identity of an offender who has assisted authorities are available and were applied here, with the court directing that the offender be identified only by pseudonym in any published version of the judgment.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1995 (NSW), ss 25, 25A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A(b)
- Crimes (Administration of Sentence) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW) (Form 1 procedure)

Cases
- R v Clark (Court of Criminal Appeal (NSW), 15 March 1990, unreported)
- EF v R [2015] NSWCA 36
- Robertson [2017] NSWCCA 205