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2
District Court 30 July 2019

R v Cotterill

[2019] NSWDC 913

DrugsPublic order & justice offences
CRIME SENTENCE DRUG SUPPLY DIRECT ACTIVITIES OF CRIMINAL GROUP

Citation: R v Cotterill [2019] NSWDC 913
Court: District Court of New South Wales
Date: 30 July 2019
Judge(s): Bright DCJ

Background

The offender, a 27-year-old man, appeared for sentence on multiple drug supply and organised crime offences arising from a police investigation into street-to-mid-level methamphetamine supply on the Central Coast. Strike Force Mahratta, commenced in November 2017, uncovered a drug distribution syndicate operating from a residential address at Tumbi Umbi.

The offender was the principal of the syndicate. He sourced quantities of methylamphetamine, which were then distributed through syndicate members to their own customers, with proceeds returned to him. He also directed syndicate activities including debt collection. His co-offender, who lived with him, sold significant quantities of methylamphetamine to an undercover police operative and supplied other syndicate members during the relevant period.

The charges covered supply of 40 grams of methylamphetamine (the principal offence), directing the activities of a criminal group between February and May 2018, two further supply offences dealt with on a Form 1 (124 grams of cannabis and 6.89 grams of methylamphetamine), dealing with property suspected of being proceeds of crime totalling $38,400, and hindering police in the execution of their duty. The offender pleaded guilty on 5 February 2019 at Wyong Local Court.

  • What sentence was appropriate for supply of prohibited drugs where the offender occupied a principal role in a mid-level syndicate?
  • How should the court assess the objective seriousness of the offence of knowingly directing the activities of a criminal group under s 93T(4A) of the Crimes Act 1900?
  • What discount applied for the timing of the guilty plea?
  • How should the principle of totality apply given the offender was also serving sentences for unrelated matters?
  • Whether a drug proceeds order was warranted and in what amount.

Decision

Bright DCJ assessed the objective seriousness of the principal drug supply offence (40 grams of methylamphetamine) as below the middle of the range. The court noted the quantity exceeded the indictable threshold of 5 grams but fell well short of the commercial quantity of 250 grams. Significant weight was placed on the offender's role as the syndicate's principal, his financial motivation, and the period over which the supplies occurred.

On the offence of knowingly directing a criminal group, the court considered the nature of the criminal activity directed (drug supply), the number of persons involved in the group, and the duration of the offending. General deterrence and community protection were identified as important sentencing considerations, consistent with the approach confirmed by the NSW Court of Criminal Appeal in Parente v R [2017] NSWCCA 284.

A 25% discount was applied to reflect the guilty plea, having regard to its timing. The sentences were backdated to 11 November 2018 to address totality, recognising that the offender had been in custody on unrelated matters from 11 May 2018 before becoming solely on remand for the present offences from 11 May 2019.

By consent, a drug proceeds order was made requiring the offender to pay $10,000 to the State of New South Wales under the Confiscation of Proceeds of Crime Act, reflecting the benefit the parties agreed he had derived from drug trafficking. The court declined to impose special conditions on the payment arrangement, noting that this was a matter for the State Debt Recovery office rather than the sentencing court.

Orders Made

  • Drug proceeds order made by consent under s 29(1) of the Confiscation of Proceeds of Crime Act: the offender to pay $10,000 to the State of New South Wales, representing the agreed benefit derived from drug trafficking.

(Note: The custodial sentences imposed are referenced in the judgment but their precise terms were not included in the portions of the decision provided. The orders above are those reproduced in the extracted orders section.)

Key Takeaways

  • The District Court confirmed that an offender who acts as the principal of a mid-level drug supply syndicate, sourcing product for distribution and directing debt collection, occupies a role that significantly informs the objective seriousness of both supply and criminal group direction offences.
  • Under s 93T(4A) of the Crimes Act 1900, the offence of knowingly directing the activities of a criminal group carries a maximum of 15 years imprisonment, and the court assessed its seriousness by reference to the nature of the directed activities, the number of group members, and the duration of the conduct.
  • Consistent with Parente v R [2017] NSWCCA 284, general deterrence and community protection carry significant weight when sentencing for drug supply offences, given the substantial social and financial costs of prohibited drug distribution.
  • A 25% guilty plea discount was applied, reflecting the stage at which the plea was entered relative to the proceedings.
  • The sentencing court declined to impose special conditions on a drug proceeds order relating to payment timing and interest, treating those as administrative matters for the State Debt Recovery office rather than judicial ones.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes Act 1900 (NSW), ss 93T(4A), 193C(2), 546C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 37, 166
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 29(1)

Cases:
- Parente v R [2017] NSWCCA 284
- Attorney-General's Application under s 37 of the Crime Sentencing Procedure Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Bugmy v R [2013] HCA 37
- Cahyadi v R [2007] NSWCCA 1