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District Court 25 September 2019

R v Shaw

[2019] NSWDC 817

DrugsFraud & dishonesty
CRIME SENTENCING AGGREGATE SENTENCE FORM 1 DOCUMENT SPECIAL CIRCUMSTANCES

Citation: R v Shaw [2019] NSWDC 817
Court: District Court of New South Wales
Date: 25 September 2019
Judge: Wilson SC DCJ

Background

The offender, a 25-year-old man born in 1994, pleaded guilty to three principal offences committed between March and July 2018: supplying a commercial quantity of MDMA (249.9 grams), knowingly dealing with the proceeds of crime ($179,000 in cash), and supplying a commercial quantity of 2C-B, also known as "bromo" (402.2 grams). A number of additional drug supply and proceeds of crime offences were placed on Form 1 documents to be taken into account in sentencing on the principal charges.

The offending occurred while the offender was on bail for earlier charges arising from the importation of steroids. He was arrested for the present offences on 26 July 2018 and held in custody from that date. He had been sentenced separately in April 2019 for the earlier Commonwealth importation offences, receiving a non-parole period of nine months.

At a prior listing, a dispute arose about whether certain facts proposed by the Crown should be placed before the Court. The sentencing judge resolved that dispute by excluding the contested facts, applying the principle from R v De Simoni that an offender should not be punished for offences of which he has not been convicted.

  • Whether disputed facts could be admitted where they might invite an inference that the offender had engaged in offending beyond the charged conduct (the De Simoni principle)
  • How Form 1 offences should be approached and weighted in the sentencing exercise
  • Whether the standard non-parole periods of 10 years applicable to the two commercial drug supply offences were appropriate in the circumstances
  • Whether special circumstances existed to justify a non-parole period that represented a lower proportion of the head sentence than the statutory default
  • Whether the principle of totality was satisfied having regard to the offender's earlier custodial sentence

Decision

Disputed facts and the De Simoni principle
The judge excluded the paragraphs of the Crown's proposed facts that were in dispute. The Court applied the principle from De Simoni that, while a sentence should reflect all circumstances of the charged offence, it must not effectively punish the offender for uncharged conduct. Including the disputed facts risked creating at least the impression that the offender was being sentenced for matters beyond those charged.

Form 1 offences
The judge confirmed that the Form 1 offences were not to be sentenced individually but were taken into account to increase the penalty on the principal charges. The Court did so by placing greater weight on two sentencing factors: personal deterrence and retribution. Three separate Form 1 documents attached to each of the three principal offences, encompassing five additional methamphetamine supply charges and two further proceeds of crime matters.

Standard non-parole periods
Standard non-parole periods of 10 years applied to the two commercial drug supply offences. Following the High Court's guidance in Muldrock and the Court of Criminal Appeal's summary in Tepania, the standard non-parole period represents the midpoint of objective seriousness and is one factor in the overall sentencing synthesis rather than a mandatory benchmark. The judge found the standard non-parole periods of 10 years were not reasonable in the circumstances and set indicative non-parole periods considerably below that figure.

Aggregate sentence, special circumstances, and totality
The judge imposed an aggregate sentence of six years with an aggregate non-parole period of four years, both commencing 26 November 2018. The non-parole period represented approximately two-thirds of the head sentence, reflecting a favourable finding of special circumstances. The judge also considered the period the offender had already spent in custody and the separate custodial sentence being served for the Commonwealth offences, and was satisfied that the overall sentence did not exceed what was proportionate to the totality of the offending.

Orders Made

  • Offender convicted of three principal offences: supply of prohibited drug not less than commercial quantity (MDMA, 249.9 grams); knowingly deal with proceeds of crime ($179,000); and supply of prohibited drug not less than commercial quantity (2C-B, 402.2 grams)
  • Indicative sentence for Count 1 (with Form 1 matters): five years and four months, reduced by 25% for guilty plea to four years; indicative non-parole period two years and eight months
  • Indicative sentence for Count 2: four years, reduced by 25% for guilty plea to three years
  • Indicative sentence for Count 3: four years, reduced by 25% for guilty plea to three years; indicative non-parole period two years
  • Aggregate sentence of six years, commencing 26 November 2018, expiring 25 November 2024
  • Aggregate non-parole period of four years, commencing 26 November 2018, expiring 25 November 2022
  • Special circumstances found, reflected in the non-parole to parole ratio

Key Takeaways

  • The De Simoni principle operates as a firm constraint at sentence: facts that invite an inference of uncharged criminal conduct must be excluded, even where the Crown seeks to rely on them to contextualise the offending.
  • Form 1 offences increase the penalty on the principal charges by adding weight to personal deterrence and retribution; they are not sentenced separately.
  • Under the post-Muldrock framework, a standard non-parole period is a legislative guidepost and one factor in the sentencing synthesis, not a minimum or mandatory outcome. A finding that the standard non-parole period is not appropriate in the circumstances can produce a non-parole period significantly below the statutory benchmark.
  • A finding of special circumstances permits a court to set a non-parole period that represents a smaller proportion of the head sentence than the default, where the offender's circumstances justify a longer period on supervised parole.
  • The totality principle requires the sentencing court to ensure that the overall burden of concurrent or consecutive sentences does not exceed what is proportionate to the whole of the offending, including earlier sentences already being served.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 193B, 193C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A
- Drug Misuse and Trafficking Act 1985 (NSW), s 25

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- Fitzpatrick v R [2010] NSWCCA 26
- Giang v R [2017] NSWCCA 25
- Markarian v The Queen (2005) 228 CLR 357
- Muldrock v The Queen (2011) 244 CLR 120
- Munda v State of Western Australia (2013) 249 CLR 600
- Owen v R [2017] NSWCCA 54
- R v De Simoni (1981) 147 CLR 383
- R v Henry (1999) 46 NSWLR 346
- SS v R; JC v R [2009] NSWCCA 114
- Tepania v R [2018] NSWCCA 247