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District Court 27 September 2019

R v Tinker

[2019] NSWDC 819

DrugsFirearms & weapons
CRIMINAL SENTENCE AGGREGATE SENTENCE SUPPLY PROHIBITED DRUG (CANNABIS LEAF) SUPPLY CANNABIS RESIN CULTIVATE PROHIBITED PLANT

Citation: R v Tinker [2019] NSWDC 819
Court: District Court of New South Wales
Date: 27 September 2019
Judge(s): King SC DCJ

Background

The offender was a self-described cannabis connoisseur who ran what the court characterised as a substantial drug-related enterprise from residential premises at Daceyville, where he lived with his long-term partner and two young children. Police first intercepted him during a vehicle stop on 25 May 2017, finding prohibited drugs in his possession. A subsequent search of his home on 3 November 2017 uncovered what the court described as an "Aladdin's cave of prohibited drugs," along with drug processing equipment, two firearms, and nearly $50,000 in cash vacuum-sealed in bags.

The offender faced a ten-count indictment covering drug supply and manufacture at commercial and large commercial quantities, cultivation of cannabis plants, possession of two firearms, and dealing with proceeds of crime. He pleaded guilty to four counts at the commencement of trial and unsuccessfully defended the remaining six. Two further firearm-related charges (failing to store firearms safely) were dealt with by way of a section 166 certificate, a procedural mechanism that allows minor related offences to be sentenced together with the main indictment.

The drugs involved were exclusively cannabis and cannabis derivatives, principally tetrahydrocannabinol (THC). The quantities were significant: over 8,800 grams of THC at large commercial quantity, 502 grams of THC at commercial quantity, 2.4 kilograms of cannabis leaf, cannabis resin, and seven cannabis plants.

  • What discount, if any, should apply to counts defended at trial, and to guilty pleas entered only at the commencement of trial?
  • How should the aggregate sentence reflect the principle of totality across ten indictment counts and two section 166 matters?
  • How should the court address an anomaly in the Firearms Act 1996 as it stood in November 2017, where the penalty for possessing an unregistered paintball gun (a prohibited firearm, maximum 14 years) exceeded that for possessing an unregistered shotgun (maximum 5 years)?
  • What weight should be given to subjective factors, including the offender's personal circumstances, first-time custody status, and assessed risk of reoffending?
  • Whether special circumstances existed to justify extending the balance of term beyond the statutory ratio.

Decision

Guilty plea discounts: King SC DCJ allowed a 5% discount on each count that proceeded to verdict at trial. The modest discount reflected the expeditious handling of agreed facts, which shortened the trial, but the offender's lack of cooperation beyond that limited the allowance. Guilty pleas entered on the first day of trial attracted a 10% discount, reflecting their belated timing. The same 10% discount was applied to the two section 166 offences.

Firearm charges and the legislative anomaly: The court identified a notable anomaly in the Firearms Act 1996 as it applied in November 2017: possession of a paintball gun as a prohibited firearm carried a maximum of 14 years and a standard non-parole period of 4 years, while possession of an unregistered shotgun carried only a 5-year maximum with no standard non-parole period. To address this disparity, the court applied section 10A of the Crimes Act 1900 to the paintball gun charge and its associated "not keep safely" charge, recording convictions with no further penalty. This outcome reflected the court's view that it would be incongruous to impose a heavier sentence for the paintball gun than for the shotgun.

Totality and aggregate sentence: The court set out indicative sentences for each count individually, then applied the principle of totality to construct an aggregate sentence. Taking into account the need for some accumulation alongside appropriate concurrence, the court found the overall criminality warranted a sentence of three years with a non-parole period of eighteen months, commencing from 20 June 2019 when the offender entered custody. Special circumstances were found to exist, on account of the offender's first time in custody and the court's assessment that a longer supervision period on parole would assist in reducing the high risk of reoffending.

Subjective factors: The court acknowledged the offender's long-term relationship, the presence of young children in the household, and his personal cannabis use. These matters carried limited mitigating weight given the scale and commercial nature of the enterprise. The court assessed the risk of reoffending as high and structured the balance of term accordingly.

Orders Made

  • Aggregate sentence of three years' imprisonment, with a non-parole period of one year and six months, commencing 20 June 2019; the offender eligible for parole on 19 December 2020, with the total sentence expiring on 19 June 2022.
  • Section 10A conviction with no further penalty imposed on Count 9 (possession of paintball gun) and the related section 166 "not keep safely" charge.
  • Forfeiture to the State of approximately $49,830 in cash found at the Daceyville premises on 3 November 2017.
  • Forfeiture to the State of the offender's iPhone seized on 3 November 2017, with leave granted for its disposal forthwith.
  • Forfeiture and destruction of the rosin press and vacuum oven identified in Schedule A.

Key Takeaways

  • The District Court applied only a 5% sentencing discount where a defended trial was conducted efficiently through agreed facts, and 10% where guilty pleas were entered at the very commencement of trial, confirming that belated pleas attract considerably reduced utility discounts.
  • A legislative anomaly can produce outcomes where the technically more serious firearms charge (by maximum penalty) results in no additional penalty, where imposing one would produce a sentencing result the court regards as incongruous given the structure of the offending.
  • Special circumstances justifying an extended parole period were established on the basis of the offender's first time in custody and a court-assessed high risk of reoffending, with the court reasoning that a longer supervision period provides a stronger deterrent against breach.
  • Where residential premises are used as the base for a substantial drug enterprise involving commercial and large commercial quantities, courts will characterise the overall criminality seriously regardless of the offender's personal characterisation of the activity.
  • Under s 166 of the Crimes (Sentencing Procedure) Act 1999, minor related offences can be sentenced alongside the main indictment, with discounts assessed independently for each matter.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(1)(a), 24(2), 25(1), 25(2)
- Firearms Act 1996 (NSW), ss 7(1), 7A(1)
- Crimes Act 1900 (NSW), ss 10A, 18(1), 19(3)(a), 35, 193B(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 166

Cases cited: No cases were cited in the portions of the judgment provided.