Citation: R v Muniak [2019] NSWDC 894
Court: District Court of New South Wales
Date: 29 July 2019
Judge(s): King SC DCJ
Background
The offender faced sentencing on two separate groups of drug supply offences. The first raft arose from a February 2016 police search of a hotel room, which uncovered methylamphetamine (23.54 grams) and MDMA (11.79 grams), with a further supply of gamma-butyrolactone (GBL, 67.3 grams) placed on a Form 1. The second raft of offences, committed between June and August 2018, involved larger quantities of GBL and methylamphetamine, as well as proceeds of crime dealings. These later offences were committed while the offender was on conditional release and awaiting sentence on the first set of charges.
The path to sentencing was protracted. Pleas of guilty to the first raft were entered on 5 July 2017, only two days before trial was due to commence. The offender subsequently indicated a wish to withdraw those pleas, his solicitors withdrew, and a Legal Aid grant was obtained, though no formal motion to traverse the pleas was ever filed. The second raft of offences was eventually brought up from the Local Court and consolidated before the same judge to allow totality and concurrency to be considered together.
The offender was 31 years old at the time of the first offending, having had no prior criminal history. His drug use was identified as the central driver of the offending.
Legal Issues
- What guilty plea discounts applied to each raft of offences given the differing timing of the pleas and the attempted traversal?
- What weight should be given to the aggravating circumstances, including offending while on conditional release and the commercial nature of some of the drug quantities?
- How should the sentences for the two separate rafts of offending be structured, including considerations of concurrency, accumulation, and totality under an aggregate sentence?
- What Form 1 matters were appropriate to take into account, and for which head sentences?
- What non-parole period was appropriate given the offender's subjective circumstances, including his drug dependency and the fact this represented his first significant period of custody?
Decision
On the question of plea discounts, the District Court drew a clear distinction between the two rafts of offending. The first raft attracted only a 5% discount for the utility of the plea, reflecting that the pleas were entered two days before trial and that the sentencing process was then significantly delayed by the offender's indication that he wished to traverse those pleas (though no formal motion was ever filed). The second raft attracted a 25% discount, the pleas having been entered at the earliest opportunity in the Local Court, consistent with the principles in Thomson & Houlton.
The offending on the second raft was treated as considerably more serious. It involved larger quantities of controlled substances, including a supply of 1,326 grams of GBL at a commercial quantity (exceeding the one kilogram threshold), which carried a standard non-parole period of ten years and a maximum of 20 years. The fact that all of the second raft offences were committed while the offender was on conditional release and awaiting sentence was treated as a significant aggravating factor.
The Court considered the offender's subjective circumstances, including his lack of prior offending before the age of 31, his drug dependency, and the fact that this was his first substantial period of custody. These factors informed the structure of the non-parole period, with the Court reducing it below the statutory relationship by six months to allow a two-year parole period, providing meaningful supervision upon release to assist with the offender's rehabilitation.
An aggregate sentence was ultimately imposed, backdated by 90 days from 22 August 2018, commencing on 24 May 2018. The earliest parole eligibility date was set at 23 May 2022, with the balance of term expiring on 23 May 2024.
Orders Made
• Non-parole period of four years with a balance of term of two years
• Sentence backdated by 90 days from 22 August 2018, commencing on 24 May 2018
• First eligible for parole on 23 May 2022
• Balance of term expires on 23 May 2024
Key Takeaways
- Where a guilty plea is entered late and the offender subsequently seeks to traverse that plea (even without filing a formal motion), the available discount for the utility of the plea may be substantially reduced. The District Court applied only 5% in these circumstances, against a 25% discount for the second raft where the plea was entered at the first opportunity.
- Offending committed while on conditional release is treated as a significant aggravating factor in sentencing, compounding the seriousness of an already serious course of conduct.
- Consolidating multiple rafts of offending before a single judge allows questions of concurrency, accumulation, and totality to be addressed cohesively, and the Court here adjourned specifically to facilitate that process.
- Under s 25(2) of the Drug (Misuse and Trafficking) Act 1985, supply of a commercial quantity of a prohibited drug carries a standard non-parole period of ten years, which serves as a significant anchor in the sentencing exercise even where subjective matters reduce the overall term.
- A below-statutory-ratio non-parole period may be appropriate where an offender faces their first significant custodial term and would benefit from a longer period of supervised parole to address entrenched drug dependency.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 193B(2) (knowingly deal with proceeds of crime)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32 (Form 1 procedure)
- Drug (Misuse and Trafficking) Act 1985 (NSW), ss 25(1), 25(2) (supply prohibited drug)
Cases:
- R v Thomson & Houlton (2000) 49 NSWLR 383 (guilty plea discounts)