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District Court 29 March 2019

R v Flowers

[2019] NSWDC 830

Drugs
CRIME SENTENCE JUST BELOW MID RANGE OF OBJECTIVE SERIOUSNESS MULTIPLE TRANSACTIONS OVER SOME MONTHS LARGE QUANTITIES OF HIGH PURITY

Citation: R v Flowers [2019] NSWDC 830
Court: District Court of New South Wales
Date: 29 March 2019
Judge(s): Norrish QC DCJ

Background

The offender, a man born in October 1985, faced sentence on three principal charges of supplying prohibited drugs (cocaine), with three further offences taken into account on a Form 1. The offending involved supplying large quantities of high-purity cocaine to an undercover police operative across five separate transactions between July and September 2017.

Each transaction was arranged via a messaging application and conducted in person. The quantities supplied ranged from approximately 56 grams to 279 grams of cocaine, with purity levels consistently between 85% and 91%. On the day of his arrest, the offender was also found in possession of $112,220 in cash, believed to be proceeds of drug supply, which was dealt with as a Form 1 matter.

The offender had been in continuous custody since his arrest on 14 September 2017. He entered guilty pleas to all charges, which entitled him to a 25% discount on sentence under the guideline judgment in Thomson and Houlton v R.

  • What aggregate sentence was appropriate for three offences of supplying indictable and commercial quantities of cocaine, taking into account Form 1 offences?
  • How should the standard non-parole period for the most serious offence (supply of a commercial quantity) inform the sentencing exercise?
  • What weight should be given to the Form 1 offences in determining personal deterrence and retribution?
  • How did the offender's personal circumstances, including mental health, employment history, and prior criminal record, affect the sentence?
  • Were there special circumstances justifying a variation to the standard ratio between the non-parole period and the total sentence?

Decision

The court identified the overall offending as falling just below the mid-range of objective seriousness. The transactions were repeated, involved large quantities of cocaine at high purity, and were conducted over several months. The most serious single offence, sequence 5 (supplying 279.5 grams of cocaine, a commercial quantity), carried a maximum penalty of 20 years and a standard non-parole period of 10 years.

In sentencing for the primary offence, the court gave greater weight to personal deterrence and retribution, as required when Form 1 matters are taken into account, in line with the guideline in Attorney General's Application No. 1. The court declined to quantify precisely the uplift attributable to the Form 1 matters, consistent with that guideline's direction that doing so will rarely be appropriate.

The court accepted a 25% discount on each sentence for the utilitarian value of the guilty pleas, in accordance with Thomson and Houlton. Personal mitigating factors, including the offender's history of anxiety and depression (as reported by a psychologist), prior co-dependent relationships linked to drug use, and his record as a trusted and industrious employee, were taken into account. The court also found special circumstances, which allowed an adjustment to the standard non-parole period ratio.

An aggregate sentence of seven years and six months was imposed under section 53A of the Crimes (Sentencing Procedure) Act 1999, with a non-parole period of four years.

Orders Made

  • Aggregate sentence of seven years and six months imprisonment, commencing 14 September 2017 and expiring 13 March 2025.
  • Non-parole period of four years, expiring 13 September 2021, with eligibility for parole release on that date.
  • Indicative sentence for sequence 5 (supply commercial quantity, taking into account Form 1 matters): six years imprisonment with a non-parole period of three years.
  • Indicative sentences for sequences 3 and 4: four and a half years imprisonment each.
  • Forfeiture of $112,220 in cash, by consent order.
  • Drug destruction order in respect of drugs held by NSW Police.

Key Takeaways

  • Under the guideline in Attorney General's Application No. 1, where offences are placed on a Form 1, a sentencing court must give greater weight to personal deterrence and retribution than it would for the primary offence alone, though it will rarely be appropriate to quantify that additional weight precisely.
  • A 25% discount on sentence for guilty pleas remained applicable across all charges, in accordance with the Thomson and Houlton guideline, reflecting the utilitarian benefit of avoiding a contested hearing.
  • Repeated supply of large quantities of high-purity cocaine to an undercover operative over several months, across five transactions, placed the offending just below the mid-range of objective seriousness for this category of offence.
  • Personal mitigating factors, including documented mental health difficulties, a history of drug-related co-dependency, and positive employment history, were weighed in the offender's favour, though they did not displace the need for a substantial custodial term.
  • A finding of special circumstances permitted the court to adjust the proportional relationship between the non-parole period and the total sentence beyond the standard ratio.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 53A (aggregate sentencing)

Cases
- Thomson and Houlton v R [2000] NSWCCA 278
- Attorney General's Application No. 1 [2002] 56 NSWLR 147
- Muldrock v R [2011] 224 CLR 120
- Hilli and Jones v R [2010] HCA 45
- Henry v R [1999] 46 NSWLR 346
- Pearce v R [1998] 194 CLR 610
- Mill v R [1988] 166 CLR 59
- Bugmy v R [1990] 169 CLR 525
- R v De La Rosa [2010] NSWCCA 194
- Kearsley v R [2017] NSWCCA 28
- Sponberg v R [2017] NSWCCA 120
- Williams v R [2014] NSWCCA 57