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District Court 22 November 2019

R v Rafferty

[2019] NSWDC 780

DrugsFraud & dishonesty

Citation: R v Rafferty [2019] NSWDC 780
Court: District Court of New South Wales
Date: 22 November 2019
Judge: M L Williams SC DCJ

Background

The offender had been sentenced in December 2018 to three years imprisonment to be served by way of an Intensive Corrections Order (ICO) for offences including supplying cocaine, supplying MDMA, and possessing suspected proceeds of crime. An ICO is a community-based custodial sentence that allows an offender to remain at liberty subject to strict conditions. That aggregate sentence was due to expire in December 2021.

Less than two months into his ICO, the offender was arrested on 7 February 2019 following a police search of his Pagewood unit. Officers found 467 grams of cocaine (an amount exceeding a commercial quantity), $8,800 in cash reasonably suspected of being proceeds of crime, oxycodone, testosterone, and various indicia of drug supply including scales, a heat-sealing machine, and multiple mobile phones. As a result of the arrest, the State Parole Authority revoked the ICO in March 2019, converting it to a fixed term of imprisonment commencing 7 February 2019.

The offender, then aged 31, appeared for sentence on the new charges. He pleaded guilty at an early opportunity to supply of cocaine in excess of a commercial quantity and to dealing with suspected proceeds of crime. Several further matters were placed on a Form 1 to be taken into account on sentence (meaning they influenced the overall sentence without resulting in separate convictions).

  • What aggregate sentence was appropriate for the principal offences, having regard to objective seriousness and subjective factors?
  • How should the court treat the Form 1 matters alongside the principal offences?
  • What weight should be given to aggravating factors, including that the offending occurred while the offender was on conditional liberty under an ICO?
  • What mitigating factors applied, including the early guilty plea, remorse, and prospects of rehabilitation?
  • How should the principles of totality and concurrency operate given the concurrent running of the ICO-converted fixed term?
  • Were special circumstances established so as to justify a non-parole period shorter than the statutory default?

Decision

Williams SC DCJ sentenced the offender on the principal charge of supplying cocaine in excess of a commercial quantity, which carries a maximum of 20 years and a standard non-parole period of 10 years. The court also dealt with the proceeds of crime charge, carrying a maximum of three years. A 25 percent discount was applied to reflect the utilitarian value of the early guilty plea.

The court accepted several mitigating factors: the guilty plea, demonstrated remorse, steps taken toward rehabilitation (including work and study in custody and plans for drug counselling and Narcotics Anonymous on release), and relatively positive prospects of not reoffending. The court approached the psychologist's subjective material with appropriate caution, consistent with authorities such as R v Qutami and Imbornone v R, and rejected the unsupported assertion that the drugs were present at the initiative of others.

On aggravating factors, the parties ultimately agreed that the operative aggravating circumstance was that the offending occurred while the offender was on conditional liberty. The court noted that being on conditional liberty does not technically constitute a separate aggravating factor under the legislation but does disentitle the offender to leniency. The court also considered, though treated with some caution, whether the offending involved planned criminal activity and financial gain.

On totality, the court accepted the offender's submission that the aggregate sentence should commence on 7 February 2019, the date of arrest and the date the fixed ICO term also began. The Crown had argued that full concurrency would be unjustifiably lenient, but the court found commencing both terms on the same date was the appropriate approach having regard to all the circumstances. Special circumstances were found, justifying a non-parole period proportionally shorter than the statutory default.

Orders Made

  • The offender was convicted of each offence.
  • An aggregate sentence of four years imprisonment was imposed, commencing 7 February 2019.
  • A non-parole period of two years and nine months was imposed, expiring 6 November 2021.
  • Indicative sentences:
  • Sequence 001 (supply of cocaine, taking into account Form 1 matters): three years and seven months, with a non-parole period of two years and six months.
  • Sequence 007 (proceeds of crime): one year.
  • Special circumstances were found.
  • Confiscation orders were made in accordance with short minutes.

Key Takeaways

  • Breaching an ICO by reoffending carries significant consequences: the ICO is liable to be revoked by the State Parole Authority, converting the remaining term to full-time custody, and any new offending is sentenced on top of that reinstated term.
  • The District Court confirmed that being on conditional liberty at the time of offending does not constitute a standalone statutory aggravating factor under the Crimes (Sentencing Procedure) Act 1999 but does disentitle the offender to any leniency that might otherwise apply.
  • Subjective material, including psychologist reports and letters of support, must be approached with caution where it contains unsupported assertions inconsistent with the objective facts, consistent with R v Qutami and Imbornone v R.
  • A 25 percent discount for an early guilty plea was applied to a charge carrying a standard non-parole period of 10 years, consistent with the utilitarian value recognised in R v Parente.
  • Where concurrent terms arising from an ICO revocation and new offending are both running from the same date, commencing the new sentence from the date of arrest can be consistent with the totality principle, though the appropriateness of that approach depends on the specific facts of each case.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1900 (NSW), s 193C (dealing with proceeds of crime)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) (supply of prohibited drug in excess of commercial quantity)
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1) (possession of restricted substances)

Cases
- Attorney General's Application No. 1 [2002] NSWCCA 518; (2002) 56 NSWLR 146 (guideline judgment on Form 1 matters)
- Imbornone v R [2017] NSWCCA 144 (approach to untested subjective assertions)
- R v Parente [2017] NSWCCA 192 (plea discounts)
- R v Qutami (2001) 127 A Crim R 396 (caution with unverified subjective material)