Citation: R v Andrew Lee Black; R v Rowan Alistair Connell [2019] NSWDC 756
Court: District Court of New South Wales
Date: 20 January 2019 (sentencing hearing 5 December 2019; decision updated 17 December 2019)
Judge(s): Priestly SC DCJ
Background
Two co-offenders were sentenced following their arrest in February 2019 as part of Strike Force Deveril, a covert police investigation into large commercial drug supply. Electronic surveillance captured the men at a residential property in Tuckombil packaging over 6.5 kilograms of MDMA (referred to throughout as MDA) into heat-sealed lots for future on-supply, a quantity representing 13 times the statutory large commercial threshold of 500 grams.
On the same occasion, both men were observed handling two illegal firearms: a sawn-off 12-gauge shotgun and a .22 calibre automatic pistol. One of the offenders also involved his juvenile son in handling those weapons. Police executed a search warrant that evening and arrested both men in the property.
Each offender pleaded guilty to three charges: supplying a large commercial quantity of MDA, possessing a shortened firearm, and possessing a pistol without authorisation. Additional offences were placed on a "Form 1" (a procedural mechanism allowing related charges to be taken into account without separate convictions being recorded), which differed between the two men.
Legal Issues
- The appropriate sentences for each offender on three charges, including the principal drug supply offence carrying a maximum of life imprisonment and a standard non-parole period (SNPP) of 15 years
- The objective seriousness of the offending, particularly the drug quantity and the role each offender played
- The weight to be given to subjective factors (personal circumstances, prospects of rehabilitation, guilty pleas) for each offender individually
- Whether special circumstances existed to justify departing from the statutory non-parole period ratio
- The proper application of the Form 1 procedure and aggregate sentencing under section 53A of the Crimes (Sentencing Procedure) Act 1999
Decision
Priestley SC DCJ assessed the drug offending as very serious, noting the quantity involved was 13 times the large commercial threshold and that both offenders participated in a sustained, organised packaging operation over several hours. The purity of the MDA was between 5.5% and 6.5%, a factor relevant to the overall assessment of harm. The firearms offences were treated as aggravating the overall criminality, particularly given that the shotgun was being kept loaded in a wall cavity for use against rival criminal elements.
The judge dealt with each offender's subjective case separately after addressing the common objective features. Both men received a 25% discount on their sentences for early guilty pleas. The court considered personal histories, family circumstances, any prior offending, and prospects for rehabilitation individually for each man. For both offenders, the court found special circumstances existed to justify a modest departure from the standard statutory ratio between the non-parole period and the head sentence, principally on the basis of identified, if cautiously assessed, prospects for rehabilitation requiring a longer period of post-release supervision.
On the aggregate sentencing approach under section 53A, the court fixed indicative sentences for each of the three charges before arriving at a single combined term. For both Connell and Black, the court set an aggregate head sentence of nine years, with a non-parole period of six years. The court noted that the six-year non-parole period represented a nine-month variance from the outcome that would have resulted from applying the standard statutory ratio mechanically, and explained its reasons for that variance in each case.
Orders Made
Rowan Alistair Connell:
- Convicted of all three offences
- Indicative sentences: 11 years (MDA supply), 2 years (shortened firearm), 1 year (pistol), prior to guilty plea discount
- Aggregate sentence of 9 years imprisonment under section 53A
- Non-parole period of 6 years
- Sentence backdated to 16 February 2019; earliest release date 15 February 2025
Andrew Lee Black:
- Convicted of all three offences
- Indicative sentences: 11 years (MDA supply), 2 years (shortened firearm), 1 year (pistol), prior to guilty plea discount
- Aggregate sentence of 9 years imprisonment under section 53A
- Non-parole period of 6 years
- Sentence backdated to 16 February 2019; earliest release date 15 February 2025
Key Takeaways
- A drug quantity 13 times the large commercial threshold, combined with an organised packaging operation and the presence of loaded firearms kept for criminal defence, was treated as placing the offending at the serious end of the objective scale for sentencing purposes.
- Under the aggregate sentencing regime in section 53A of the Crimes (Sentencing Procedure) Act 1999, the District Court fixed indicative sentences for each charge before arriving at a single combined term, with a degree of concurrency applied to the firearms charges relative to the principal drug offence.
- Special circumstances justifying departure from the statutory non-parole period ratio were found for both offenders, grounded in assessed prospects for rehabilitation that the court considered would be better supported by a longer supervisory period upon release.
- A 25% discount for early guilty pleas was applied in each case, consistent with the approach to utilitarian value recognised in the relevant sentencing authorities.
- Where co-offenders are sentenced together on identical charges arising from the same facts, the court nonetheless conducts a separate and individualised subjective assessment for each person, and the structural convenience of addressing common objective matters jointly does not constitute an impermissible "two-step" sentencing approach.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), section 25(2) (supply large commercial quantity)
- Firearms Act 1996 (NSW), section 7(1) (possess pistol) and section 62(1)(b) (possess shortened firearm)
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 37, 44(2B), 53A, 54B(4)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Part 9
Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Briouzguine [2014] NSWCCA 264
- Newman [2019] NSWCCA 157
- Nye [2018] NSWCCA 244
- R v Farrell [2015] NSWCCA 68
- R v Millwood [2012] NSWCCA 2
- Tepania v R [2018] NSWCCA 247