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District Court 15 November 2019

R v Warren

[2019] NSWDC 820

Drugs
SENTENCING RELEVANT FACTORS ON SENTENCE MULTIPLE DRUG SUPPLIES IS DETERRENT PENALTY REQUIRED IMPACT OF DETERRENT PENALTIES ORGANISED CRIMINAL ACTIVITY

Citation: R v Warren [2019] NSWDC 820
Court: District Court of New South Wales
Date: 15 November 2019
Judge(s): Haesler SC DCJ

Background

The offender was involved with associates in the retail distribution of cocaine, methylamphetamine, 3,4-MDMA (ecstasy), and cannabis over several months in 2017 and 2018 in the Shellharbour and Albion Park areas of NSW. The operation involved sourcing bulk quantities of cannabis from a separate criminal group (the subject of related proceedings) and supplying multiple drugs, including to undercover police operatives. The offender was arrested on 22 March 2018 when a further planned supply did not proceed.

Three charges came before the District Court. Two counts related to the supply of methylamphetamine and cocaine in quantities above the indictable but below the commercial threshold, carrying a maximum of 15 years imprisonment. The third, and most serious, count related to the supply of 3,4-MDMA in a quantity that, when the individual supplies and agreements to supply were aggregated, exceeded the commercial quantity of 125 grams, attracting a maximum of 20 years and a standard non-parole period of ten years. Two further matters, including supply of over six kilograms of cannabis and participation in a criminal group, were placed on a Form 1 to be taken into account on sentence without separate conviction.

Since his arrest, the offender had been on bail and had engaged substantially with the Odyssey House drug rehabilitation program, where he had progressed to a mentoring and leadership role. His background included significant drug use from a young age, before he was, as the court noted, old enough to make rational choices.

  • What weight should be given to general deterrence in sentencing for serious, organised multi-drug supply offences?
  • How should rolled-up charges and agreements to supply (where the drugs were never actually in the offender's possession) affect the assessment of objective seriousness?
  • How should the court account for the offender's extraordinary progress in rehabilitation during bail when structuring a sentence?
  • Whether an Intensive Correction Order (a community-based sentence served outside full-time custody) was an available or appropriate disposition.
  • How should the standard non-parole period for the commercial supply offence guide the sentence, given the particular circumstances?

Decision

Haesler SC DCJ found that the offending was objectively serious. The offender was not a street-level dealer: he had access to a bulk supplier and managed his own operation involving multiple drug types, active dealings with undercover operatives, and the involvement of a family member. The court accepted, however, that the offender was not the principal source of supply and that much of the profit was disseminated through gambling, drinking, and personal drug use rather than reinvested in organised crime infrastructure.

On the question of rolled-up quantities, the court accepted that for the commercial quantity of 3,4-MDMA to be reached, the prosecution had to aggregate both actual supplies and mere agreements to supply where no drugs were ever in the offender's physical possession. This distinction bore on the objective seriousness of the principal offence, and the court treated it as a moderating factor in calibrating the sentence downward from what an unqualified application of the standard non-parole period might otherwise suggest.

The court gave detailed consideration to the offender's rehabilitation. It acknowledged a recognised public interest in not disrupting demonstrated rehabilitation and the real risk that returning someone to full-time custody at a critical juncture can undo progress and increase the likelihood of reoffending. Nevertheless, the court concluded that the nature and scale of the crimes, involving multiple drugs, organised criminal conduct, and repeated transactions over months, required a sentence of full-time custody. An Intensive Correction Order was rejected as incapable of reflecting the seriousness of the offending.

The offender received a 25 percent reduction on the otherwise appropriate sentences for his early guilty plea. The court structured the aggregate sentence to minimise the additional time to be served, crediting 408 days for time already spent in custody and in quasi-custody (a period spent under conditions approximating detention, such as residence at a rehabilitation facility under bail conditions).

Orders Made

  • The offender was convicted on all three matters.
  • The two Form 1 matters (cannabis supply and participation in a criminal group) were taken into account.
  • Principal offence (commercial supply of 3,4-MDMA, s 25(2)): 3 years and 9 months, with a non-parole period of 2 years.
  • Each of the two remaining supply offences: 2 years imprisonment.
  • Aggregate sentence: 4 years and 2 months, with a non-parole period of 2 years and 2 months.
  • Sentence backdated to 3 October 2018, allowing for 408 days of custody and quasi-custody.
  • Eligible for parole consideration: 2 December 2020.
  • Total sentence expiry: 2 December 2022.
  • Drug destruction order made.

Key Takeaways

  • The District Court confirmed that rolling up individual transactions and agreements to supply into a single charge, where the commercial quantity is only reached by including agreements where no drugs were actually held, is a factor capable of moderating the objective seriousness of the principal offence.
  • Extraordinary rehabilitation during a bail period is a recognised mitigating factor, and courts may take significant steps to credit that progress in structuring a sentence, including by backdating and allowing for quasi-custody.
  • Despite the acknowledged public interest in not disrupting genuine rehabilitation, full-time custodial sentences remain appropriate where the offending involves organised, multi-drug supply at a commercial or near-commercial scale.
  • An Intensive Correction Order was not available as a disposition where the offending was of a severity that required punishment only capable of being met by full-time custody.
  • Under the Drug Misuse and Trafficking Act 1985, the standard non-parole period for commercial drug supply serves as a guide, but the court is required to give it genuine content while also accounting for the particular circumstances of how the commercial quantity was reached.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1) and 25(2)

Cases
- R v Chan [1999] NSWCCA 103
- R v DW [2012] NSWCCA 66
- R v Jose Degouveia; R v Joshua Degouveia [2019] NSWDC 161
- R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131