R v Losco [2019] NSWDC 837

Citation: R v Losco [2019] NSWDC 837
Court: District Court of New South Wales
Date: 13 December 2019
Judge(s): Haesler SC DCJ

Background

The offender was arrested on 9 January 2019, approximately five months after his release from custody. In the intervening period, he had established a drug supply operation in the Wollongong area, sourcing methylamphetamine in bulk from an up-line Sydney supplier and distributing it directly to a number of regular customers. He used multiple mobile phones for short periods and employed a co-offender as his driver, paying that person in cash and drugs.

At the time of arrest, police seized 659.25 grams of methylamphetamine across two locations, a quantity exceeding the large commercial threshold of 500 grams under the Drug Misuse and Trafficking Act 1985. Police also seized quantities of MDMA and, separately, 19 strips of Buprenorphine that the offender had obtained for supply to an inmate at a New South Wales correctional centre.

The offender pleaded guilty at the earliest opportunity to three principal counts: supply of a large commercial quantity of methylamphetamine, supply of MDMA, and supply of Buprenorphine. Six further matters, including possession of cannabis and MDMA and supply of Gamma butyrolactone and prohibited weapons offences, were dealt with by way of a certificate under section 166 of the Criminal Procedure Act 1986.

Legal Issues

What aggregate sentence was appropriate across nine matters, including one large commercial supply offence, two other supply offences, and six certificate matters?
How should the standard non-parole period of 15 years for large commercial supply under section 25(2) of the Drug Misuse and Trafficking Act 1985 be applied where the quantity sat at the lower end of the large commercial range?
What weight should be given to the offender's early guilty plea, his extensive criminal record, his drug dependency, and his role as the principal retail distributor?
Were special circumstances established, warranting a longer-than-usual parole period?

Decision

Haesler SC DCJ treated the primary offence as the large commercial supply of methylamphetamine. His Honour noted that while the rolled-up quantity barely exceeded the 500-gram threshold for a large commercial quantity, the upper limit of that category is unlimited, and life sentences are typically reserved for offending of far greater scale. The standard non-parole period of 15 years therefore required significant adjustment downward.

The court accepted the defence submission that the offending had an unusual character: the offender did not insulate himself from risk by interposing others between himself and end users. Instead, he personally supplied small quantities directly to a large number of regular users, with only limited use of his co-offender. His Honour noted this cut both ways, as the offender bore the risk himself but was also personally responsible for almost all retail distribution into the community.

The Form 1 matters attached to each principal count were taken into account as part of the sentencing synthesis, consistent with Markarian v The Queen (2005) 228 CLR 357. They did not add directly to the sentence but required greater weight to be given to personal deterrence and retribution. The offender's extensive criminal record similarly required greater weight to be given to community protection.

A 25 percent reduction was applied to each indicated sentence to reflect the early guilty plea, with care taken to ensure that benefit was not eroded in the accumulation of sentences. Special circumstances were found, resulting in a parole period longer than the statutory default. His Honour noted the offender would need significant support and structure on release.

Orders Made

Large commercial supply of methylamphetamine: 6 years and 9 months, with a non-parole period of 4 years
Supply of MDMA: 3 years
Supply of Buprenorphine: 1 year and 10 months
Possess cannabis (s 166 certificate): 1 month
Possess MDMA (s 166 certificate): 1 month
Supply Gamma butyrolactone (s 166 certificate): 9 months
Three prohibited weapons offences (s 166 certificate): 9 months each
Total aggregate sentence: 8 years and 3 months, commencing 9 April 2019
Non-parole period: 5 years and 5 months (eligible for release to parole 8 September 2024)
Parole period: 2 years and 10 months (reflecting a finding of special circumstances)
Sentence expires: 8 July 2027
Liberty to restore regarding any freezing orders

Key Takeaways

A large commercial quantity drug supply offence carrying a maximum of life imprisonment and a standard non-parole period of 15 years does not require sentencing to commence from the maximum. The District Court applied a substantial downward variation where the quantity sat at the lower end of the large commercial range and other subjective matters warranted it.
Direct retail supply to individual users, without interposing third parties as buffers, does not of itself reduce an offender's culpability. Haesler SC DCJ held that while such an arrangement reduced the offender's comparative profit, it made him personally responsible for the overwhelming majority of community-level distribution.
An early guilty plea attracted a 25 percent reduction across all indicated sentences. The court expressly noted that care must be taken during sentence accumulation to ensure that discount is not inadvertently eroded.
Form 1 matters are taken into account as part of the overall sentencing synthesis under Markarian, not as independent additions to the sentence, but they increase the weight to be given to personal deterrence and retribution.
Special circumstances can be found where the sentencing court identifies that an offender will require substantial assistance, structure, and supervision on release to parole, resulting in a parole period exceeding the statutory default.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- Markarian v The Queen (2005) 228 CLR 357