Citation: R v Henson [2019] NSWDC 874
Court: District Court of New South Wales
Date: 24 July 2019
Judge: Judge W Hunt
Background
The offender, a 31-year-old man with no prior criminal history, appeared for sentencing on one count of supplying a prohibited drug in an amount greater than the commercial quantity. The drug involved was 345.6 grams of methylamphetamine, an offence under s 25(2) of the Drug (Misuse and Trafficking) Act, which carries a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years.
The supply occurred across three separate transactions in July and August 2018, conducted via the encrypted messaging platform Wickr as part of a police controlled operation. In total, the offender received $39,600 in cash across the transactions. He was arrested in September 2018 and, on the same day, police executed a search warrant at his home, recovering further cash and small quantities of multiple drugs.
Five additional matters were placed on a Form 1 (a procedure under NSW law that allows related offences to be taken into account when sentencing for the principal offence, without recording separate convictions). The most significant Form 1 matter was two supplies of cocaine totalling approximately 14.84 grams. The remaining Form 1 matters involved possession of small quantities of cannabis, cocaine and methylamphetamine, and dealing with the proceeds of crime totalling less than $100,000.
Legal Issues
- What was the appropriate objective seriousness of the index offence?
- What weight should be given to the offender's personal circumstances, including his psychological condition, remorse, and rehabilitation prospects?
- Whether special circumstances existed to justify departing from the standard ratio between the head sentence and non-parole period
- What discount applied for the early guilty plea
Decision
Judge Hunt assessed the objective seriousness of the offending as just slightly below the mid-range. The drug quantity sat just under halfway between the commercial quantity threshold and the large commercial quantity threshold. The court accepted that the offender had ready access to significant quantities of drugs at short notice, but also that his role exposed him to personal risk and was not at management or principal level. His exact position in the supply hierarchy remained somewhat opaque on the available facts.
The court identified several mitigating factors. The offender had no prior convictions, pleaded guilty at an early stage, and was assessed by a forensic psychologist as genuinely remorseful and possessing insight into his offending. At the time of the offending he suffered from depression, anxiety, and substance use disorders involving cannabis, methylamphetamine and cocaine, all assessed as in early remission. The court found his prospects for rehabilitation were good, supported by pro-social relationships, his conduct in custody, and the psychological assessment.
The court found special circumstances warranted a significant adjustment to the standard non-parole period ratio. Two bases supported this finding: it was the offender's first period of custody, and the psychologist's report identified that meaningful community-based treatment would be important to his rehabilitation. The Crown did not oppose the finding. A full 25% utilitarian discount was applied to reflect the early guilty pleas, consistent with the parties' agreed position.
Starting from a pre-discount figure of just under six years, the court arrived at a head sentence of four years and three months, with a non-parole period of two years and three months, both commencing from the date of arrest on 14 September 2018.
Orders Made
- Convicted of the index offence of supply prohibited drug greater than commercial quantity
- Five matters taken into account on the Form 1
- Sentenced to imprisonment for four years and three months, commencing 14 September 2018 and expiring 13 December 2022
- Non-parole period of two years and three months, with the earliest parole eligibility date of 13 December 2020
- Special circumstances found; standard head sentence/non-parole period ratio deliberately and significantly varied
- Confiscation orders made under the Confiscation of Proceeds of Crime Act in respect of $1,595 in cash, two mobile phones, and a drug proceeds order for $39,600
- Back-up charges (sequences 11, 12 and 13) withdrawn and dismissed
- Orders for destruction of all drugs involved
Key Takeaways
- The District Court placed the objective seriousness of a three-transaction supply of 345.6 grams of methylamphetamine, conducted via encrypted messaging, just slightly below the mid-range, where the offender's role was above street-level dealing but fell short of management or principal status.
- A full 25% utilitarian discount was applied for early guilty pleas, consistent with established sentencing principles under the Crime (Sentencing Procedure) Act.
- Special circumstances were established on two independent grounds: the offender's first time in custody, and a psychologist's identification of the need for substantial community-based treatment to support rehabilitation and ongoing abstinence.
- Where a psychologist's findings are corroborated by the absence of any criminal history and detailed character references, a sentencing court may accept those findings even without sworn evidence from the offender.
- General deterrence retained significant weight in the sentencing exercise for large-scale drug supply, while specific deterrence was treated as somewhat diluted given the offender's psychological condition and the fact that custody itself was likely to achieve most of that deterrent effect.
Legislation and Cases Referenced
Legislation:
- Drug (Misuse and Trafficking) Act (NSW), ss 25(1) and 25(2)
- Crime (Sentencing Procedure) Act (NSW), s 3A
- Confiscation of Proceeds of Crime Act (NSW)
Cases cited: None recorded in the decision metadata or judgment text.