Citation: R v Ryan [2019] NSWDC 877
Court: District Court of New South Wales
Date: 13 December 2019
Judge: Haesler SC DCJ
Background
The offender was sentenced on the same day as his co-offender Roberto Losco, who had been the principal figure in a methylamphetamine supply network operating in the Illawarra region. The offender had participated in that network between October 2018 and January 2019, primarily acting as Losco's driver. He was paid in cash and methylamphetamine for his involvement.
The offender was a first-time offender born in 1979, who had maintained stable employment and family life for most of his adult life. His circumstances changed markedly in 2018, when a work injury led to job loss, and what had been occasional drug and gambling use escalated into serious addiction. His engagement with Losco's criminal enterprise followed from that deterioration.
The proceedings were conducted alongside Losco's sentencing, but the court treated the two matters independently. The differing roles and personal histories of the two men were found to justify a significant difference in penalty, and the court determined that no meaningful parity issue arose between them.
Legal Issues
- What aggregate sentence was appropriate for a subordinate participant in a criminal drug supply network, having regard to his role, the quantities involved, and his personal circumstances?
- What weight should be given to drug and gambling addiction as factors in sentencing, particularly where addiction explains but does not excuse the offending?
- Whether special circumstances existed to justify a departure from the standard ratio between the non-parole period and the total sentence.
- How general deterrence balanced against rehabilitation and the other statutory purposes of sentencing in this case.
Decision
Haesler SC DCJ found that the offender's role, while subordinate, was not passive. As Losco's driver and courier, the offender was an essential participant in the distribution network, and the court drew on established authority confirming that without drivers and helpers, drug networks would collapse. The objective seriousness of the offending was therefore real, even if the offender ranked well below Losco in the hierarchy.
The court accepted that the offender's substance use disorder and gambling addiction provided an explanation, though not an excuse or mitigating factor, for how an otherwise law-abiding man came to offend. The court was careful to distinguish between addiction as an explanation of conduct and addiction as a basis for reducing penalty. Addiction could not, in principle, be treated as direct mitigation, but it remained relevant to the overall sentencing picture.
The offender received the full 25% discount for his early guilty plea, entered in the Local Court. The court was persuaded by a psychologist's report, the offender's own letter to the court, and character references that his prospects for rehabilitation were strong. He had detoxed in custody, engaged in programs, and maintained prosocial connections. The court found these factors supported a finding of special circumstances, warranting an extended parole period to facilitate structured treatment after release.
On general deterrence, the court acknowledged academic criticism of the proposition that harsher sentences prevent drug offending, but noted that sentencing serves multiple purposes beyond deterrence, including denunciation and just punishment. The sentence was structured to impose the minimum custodial term consistent with those purposes.
Orders Made
- Indicated sentence for knowingly taking part in the supply of methylamphetamine (including Form 1 matters): 2 years and 9 months
- Indicated sentence for participating in a criminal group: 1 year and 6 months
- Indicated sentence for supply of buprenorphine (s 166 certificate): 3 months
- Aggregate sentence: 3 years' imprisonment
- Non-parole period: 1 year and 6 months (reflecting a finding of special circumstances, producing a parole period equal to 50% of the total sentence)
- Sentences dated from 9 January 2019, with release to parole on 8 July 2020
Key Takeaways
- A subordinate role in a drug supply network, such as acting as a driver or courier, does not negate objective seriousness. Established authority confirms that supply networks depend on such participants, and sentences must reflect that.
- Drug addiction and gambling addiction were treated as explaining, but not excusing or directly mitigating, the offending conduct. The District Court maintained a clear distinction between explanation and legal mitigation.
- Special circumstances were found to exist where the offender demonstrated strong rehabilitation prospects, had detoxed, engaged in custodial programs, and would require intensive post-release treatment for a diagnosed substance use disorder. This extended the parole period to 50% of the total sentence.
- Where co-offenders are sentenced together but their roles and antecedents differ significantly, parity concerns may carry little practical weight. The court here determined that the difference in outcome between the offender and Losco was entirely justified.
- General deterrence, while acknowledged as a relevant consideration in drug supply matters, does not operate in isolation. The court applied all statutory purposes of sentencing and structured the term to reflect the minimum custody consistent with denunciation, just punishment, and rehabilitation.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 93T(1) (participating in a criminal group)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D, 33
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
Cases
- Blackman and Walters v R [2001] NSWCCA 121
- R v Blair (2005) 152 A Crim R 462
- R v Losco [2019] NSWDC 837
- R v Shi [2004] NSWCCA 135