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District Court 1 October 2019

R v Johnston

[2019] NSWDC 901

Drugs

Citation: R v Johnston [2019] NSWDC 901
Court: District Court of New South Wales
Date: 1 October 2019
Judge(s): Bennett SC DCJ

Background

The offender, an 18-year-old at the time of the offending, worked as a "runner" for the principals of a cocaine distribution operation based in Ryde, Sydney. The principals directed runners by telephone to meet customers across Sydney and conduct drug supplies on their behalf. Between July and October 2017, the offender participated in 163 individual supplies totalling approximately 79.7 grams of cocaine.

The offender pleaded guilty in the Local Court to four offences: two counts of supplying cocaine (8.23 grams and 1.57 grams respectively, both on 15 July 2017), and two counts of ongoing supply of cocaine (covering periods in August to September 2017 and September to October 2017). He was arrested, granted bail in relation to the first two charges, and then committed the ongoing supply offences while on bail.

Two co-offenders, Sawan and Siddiqui, had already been sentenced by Acting Judge Latham. Both received intensive correction orders (ICOs), though each had been more extensively involved in the drug supply operation than the offender. The sentencing of the offender required consideration of parity with those outcomes, as well as the particular circumstances of his individual case.

  • What aggregate sentence and indicative sentences were appropriate for four drug supply offences, two of which occurred while the offender was on bail?
  • How should the court achieve parity with sentences already imposed on co-offenders who were more extensively involved and who had served pre-sentence custody?
  • What discount applied for early guilty pleas entered in the Local Court?
  • How should the Form 1 offence (dealing with proceeds of crime) be taken into account in accordance with the principles in the Attorney General's Application [2002] NSWCCA 518?
  • Whether an intensive correction order was the appropriate mode of serving the sentence.

Decision

Bennett SC DCJ imposed an aggregate sentence of 2 years and 3 months' imprisonment, to be served by way of an intensive correction order in the community. The court identified the indicative sentences as 12 months for each of the two supply charges and 18 months for each of the two ongoing supply charges.

The offender's commission of the second sequence of offences while on bail for the first was treated as an aggravating factor going to specific deterrence, not as a basis to increase the objective seriousness of the offending. His age, lack of prior convictions, early plea of guilty, and compelling personal circumstances, including the burden of caring for an ailing father, were accepted as meaningful mitigating factors. The court accepted that his explanation for becoming involved in the offending was credible.

A 25% discount for the early guilty plea was applied in accordance with R v Borkowski [2009] NSWCCA 102, reflecting both the utilitarian benefit of the plea and what the court accepted as genuine contrition and remorse. The Form 1 offence of dealing with suspected proceeds of crime ($3,110 on 15 July 2017) was taken into account in sentencing for the principal supply offence of that date, with the court applying the principles from the Attorney General's Application to ensure appropriate weight was given to personal deterrence and the community's entitlement to retribution for the totality of the misconduct.

On parity, the court was satisfied that an ICO was consistent with the outcomes for Sawan and Siddiqui, who had both served significant pre-sentence custody and were more extensively involved. Although the court did not have Acting Judge Latham's reasons, it concluded it had sufficient material to proceed and that parity was maintained by the sentence imposed.

Orders Made

  • Aggregate sentence of 2 years and 3 months' imprisonment, to be served by way of an intensive correction order commencing 1 October 2019.
  • Indicative sentences: 12 months for each of the two supply charges; 18 months for each of the two ongoing supply charges.
  • Standard ICO conditions imposed: no offending, supervision by Community Corrections, 200 hours of community service work (timetabled to accommodate employment and carer obligations), and compliance with a mental health care plan.
  • The offender directed to report to the St Leonards Community Corrections office within seven days.
  • Cash of $400 seized from the offender on 15 July 2017 forfeited to the State under the Confiscation of Proceeds of Crime Act 1989.
  • Cash of $2,710 seized from a motor vehicle on 15 July 2017 also forfeited to the State under the same Act.
  • Leave granted for immediate disposal of the forfeited property.
  • Backup charge of possessing a prohibited drug withdrawn.

Key Takeaways

  • The District Court confirmed that committing offences while on bail is an aggravating factor relevant to specific deterrence, but does not independently increase the objective seriousness of the offending or the proportionate sentence otherwise applicable.
  • An early guilty plea entered in the Local Court attracted a 25% discount, consistent with R v Borkowski, and was treated as evidence of contrition where the offender's explanation for the offending was credible.
  • Parity with co-offenders can be assessed even without access to the co-sentencing judge's reasons, provided the court has sufficient material to be satisfied the sentences are consistent. Here, the offender's lesser involvement and absence of pre-sentence custody were weighed against the outcomes for more culpable co-offenders who had served time in custody.
  • Under the Attorney General's Application principles, a Form 1 offence taken into account on sentence increases the penalty for the principal offence, with appropriate weight given to personal deterrence and the community's retributive interest in the totality of misconduct.
  • An intensive correction order remained available as the mode of serving a sentence of imprisonment even where bail had been breached, provided the court was satisfied that the overall sentence and conditions reflected the seriousness of the offending.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A(1)
- Crimes Act 1900 (NSW), s 193C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Confiscation of Proceeds of Crime Act 1989 (NSW), ss 18(1), 19(3)(a)

Cases:
- Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518
- R v Borkowski [2009] NSWCCA 102
- R v Qutami [2001] NSWCCA 553