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District Court 29 November 2019

R v Burns

[2019] NSWDC 832

Drugs

Citation: R v Burns [2019] NSWDC 832
Court: District Court of New South Wales
Date: 29 November 2019
Judge: Weinstein SC DCJ

Background

In September 2018, police commenced an investigation into cocaine supply in Sydney's eastern suburbs. On 5 October 2018, officers executed a search warrant at a residential address in Waterloo, where the offender was found alone in a locked room he described as his "office or gaming room." Police seized significant quantities of prohibited drugs, large amounts of cash, multiple mobile phones, electronic scales, and several ledgers recording names, quantities, and monetary amounts.

The drugs located included 1,627.4 grams of Gamma Butyrolactone (GBL), over 200 grams of cocaine, methylamphetamine, testosterone, and several anabolic steroids. Cash totalling $41,640 and $2,000 in gift cards were also seized. CCTV footage placed the offender bringing a bag matching the one containing the GBL into the building.

The offender, born in 1987, was sentenced on a principal charge of supplying a prohibited drug in not less than the commercial quantity of GBL, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). A range of additional drug possession and proceeds-of-crime offences were dealt with on a Form 1, meaning they were taken into account in the overall sentence without separate convictions being recorded for each.

  • What was the objective seriousness of the principal offence and the Form 1 matters?
  • What weight should be given to mitigating factors, including the early guilty plea, evidence of rehabilitation, remorse, and drug addiction?
  • Whether special circumstances existed to justify departing from the standard 75:25 non-parole to parole ratio under the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • How the principles of accumulation, concurrency, and totality should apply across the principal offence and the Form 1 matters
  • The appropriate discount for the early guilty plea, and the resulting non-parole period

Decision

Weinstein SC DCJ approached sentencing by reference to the two legislative guideposts: a maximum penalty of 20 years (and/or 3,500 penalty units) and a standard non-parole period of 10 years. Her Honour applied the instinctive synthesis methodology, identifying the relevant objective and subjective factors and making a value judgment as to the appropriate sentence in all the circumstances, consistent with Markarian v The Queen [2005] HCA 25.

On objective seriousness, the volume and variety of drugs found, the presence of cash, ledgers, scales, and multiple phones indicated an organised and commercial supply operation. The breach of conditional liberty (an Intensive Corrections Order) was treated as an aggravating factor under section 21A of the Crimes (Sentencing Procedure) Act 1999. General and specific deterrence were both relevant sentencing considerations given the commercial nature of the offending.

On subjective matters, the court accepted evidence of remorse, a reduced likelihood of reoffending, rehabilitation efforts, and drug addiction as mitigating factors. Character references from family members, friends, and a former employer were tendered and considered. A psychological report was also placed before the court and directed to be placed on the offender's Justice Health file.

The court found special circumstances, justifying a departure from the standard non-parole ratio. The offender received a 25% discount for his early guilty plea, reducing the head sentence from 4 years and 4 months to 3 years and 3 months. The non-parole period was set at 2 years, representing approximately 61.5% of the total sentence, below the standard 75%.

Orders Made

  • The offender was convicted of supplying a prohibited drug not less than the commercial quantity (1,627.4 grams of GBL), contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW)
  • Sentenced to imprisonment for 3 years and 3 months, commencing 1 March 2019 and expiring 31 May 2022
  • Non-parole period set at 2 years, with eligibility for release on parole on 28 February 2021
  • The 25% plea of guilty discount was applied; the pre-discount head sentence would have been 4 years and 4 months
  • Form 1 matters taken into account in the sentence
  • The psychological report of Mr Jones dated 31 October 2019 directed to be placed on the offender's Justice Health file
  • Confiscation orders made as per Short Minutes on file
  • Section 166 matters ordered withdrawn

Key Takeaways

  • The District Court applied the instinctive synthesis approach from Markarian, weighing objective seriousness against subjective mitigating factors rather than mechanically calculating from a starting point.
  • A standard non-parole period of 10 years acts as a legislative guidepost for commercial quantity drug supply under the Drug Misuse and Trafficking Act 1985, but does not set a mandatory minimum; the court retains discretion to depart where justified.
  • Finding special circumstances permitted the court to reduce the non-parole period below the standard 75:25 ratio, here to approximately 61.5%, reflecting the offender's rehabilitation needs and drug addiction.
  • Where multiple offences appear on a Form 1, they are taken into account in setting the overall sentence on the principal charge rather than attracting separate convictions, consistent with the totality principle.
  • Breach of an Intensive Corrections Order at the time of offending constitutes an aggravating factor under section 21A of the Crimes (Sentencing Procedure) Act 1999, capable of increasing the appropriate sentence.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 21A, 166

Cases
- Markarian v The Queen [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120
- Veen v The Queen (No 2) (1988) 164 CLR 465
- DPP v De La Rosa (2010) 79 NSWLR 1
- Attorney General's Application (No 1) (2002) 56 NSWLR 146
- Abbas & Ors v R [2013] NSWCCA 115
- Watts v R [2007] NSWCCA 153
- R v Mueller [2015] NSWCCA 292
- R v Jarrold [2010] NSWCCA 69
- Callaghan v R [2006] NSWCCA 58