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District Court 16 December 2019

R v To

[2019] NSWDC 962

Drugs

Citation: R v To [2019] NSWDC 962
Court: District Court of New South Wales
Date: 16 December 2019
Judge: M L Williams SC DCJ

Background

The offender, a 38-year-old man, had previously been sentenced in 2014 to six years imprisonment with a three-year non-parole period for manufacturing a commercial quantity of prohibited drug. He was released to parole and remained out of trouble for nearly three years before being arrested in November 2018.

Police stopped the offender while he was driving in Strathfield in the early hours of 27 November 2018. A roadside drug test returned a positive result for methylamphetamine, which the offender admitted to having smoked that morning. Officers then executed a search warrant at his nearby leased premises, where they discovered a home-based methylamphetamine manufacturing operation.

The search uncovered a range of manufacturing equipment and chemicals spread throughout the premises, mixed among household items and personal belongings. The offender admitted to the author of the Sentence Assessment Report that he had been producing and using methylamphetamine for approximately six months before his arrest, describing the activity as a response to stress from a relationship breakdown and limited access to his daughter.

  • What was the appropriate sentence for manufacturing a prohibited drug, taking into account the offender's plea of guilty, his prior conviction for a similar offence, and his breach of parole?
  • How should the Form 1 matters (possession of prohibited precursors and deemed supply) be approached at sentencing?
  • Whether the term of imprisonment should be served by way of an Intensive Corrections Order (ICO) or by a conventional non-parole period in custody.
  • What discount applied to the sentence in light of the guilty plea?
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio.

Decision

The court assessed the objective seriousness of the offence as towards the lower end of the range. The manufacturing operation was characterised as relatively unsophisticated and limited in scale, with none of the items listed in Schedule 3 of the relevant regulations (which are indicative of a more substantial commercial operation) being found on the premises. The court acknowledged the Crown's submission that domestic manufacturing operations carry inherent risks of fire and injury to nearby persons, but noted there was no evidence of any such harm in this case.

On the subjective case, the court accepted the evidence from a psychologist's report and a Sentence Assessment Report, treated with appropriate caution consistent with authorities such as Imbornone v R and R v Qutami. The offender had no significant prior criminal history beyond the 2014 conviction, was assessed as medium to low risk of reoffending, demonstrated insight into his drug dependency, and had the support of his family. He had also remained drug-free since entering custody in November 2018 and expressed willingness to engage with rehabilitation.

The court applied a 25 per cent discount to the sentence in recognition of the guilty plea. Taking into account the time already served in custody (with one month and 15 days attributable to this matter and the remainder to parole revocation), the court determined that an 18-month term of imprisonment, served by way of an ICO, was the appropriate outcome. The ICO was to include conditions requiring community service work and participation in rehabilitation and treatment programs.

The driving offence (sequence 8, driving with an illicit substance present) was dealt with by conviction without further penalty under s 10A of the Crime (Sentencing Procedure) Act 1999, together with a mandatory six-month licence disqualification. A back-up charge of organising or conducting drug premises was withdrawn and dismissed.

Orders Made

  • Sequence 12 (Manufacture prohibited drug): Convicted. Sentenced to 18 months imprisonment, directed to be served by way of an Intensive Corrections Order commencing 16 December 2019, with the following conditions:
  • Standard conditions: no further offending; supervision and compliance with Community Corrective Services directions.
  • Additional conditions: 200 hours of community service work; participation in rehabilitation and treatment as recommended in the psychologist's report dated 15 November 2019.
  • Sequence 8 (Drive with illicit substance in oral fluid): Convicted under s 10A of the Crime (Sentencing Procedure) Act 1999; no further penalty imposed; six-month licence disqualification.
  • Sequence 2 (Organise/conduct drug premises): Back-up charge withdrawn and dismissed.
  • Form 1 matters (Sequences 3, 4, 7, 13): Taken into account in fixing the sentence on the principal offence.

Key Takeaways

  • The District Court confirmed that a home-based methylamphetamine manufacturing operation, characterised by unsophisticated equipment and limited scale, may properly be assessed as falling towards the lower end of objective seriousness for offences of this type.
  • Where a sentencing court assesses rehabilitation prospects as genuine and supported by psychological evidence, and where an offender demonstrates insight into substance misuse, those factors may weigh in favour of a non-custodial serving arrangement such as an ICO, even where the offender has a prior conviction for the same type of offending.
  • Breach of parole is an aggravating factor at sentencing; however, time spent in custody following arrest, including time attributable to parole revocation rather than remand on the current charge, is treated differently when calculating pre-sentence detention.
  • A 25 per cent guilty plea discount was applied consistently with established sentencing principles, reducing what would otherwise have been a longer term of imprisonment.
  • Form 1 matters are taken into account in fixing the overall sentence on the principal offence, following the approach endorsed in Attorney General's Application No 1 of 2002, rather than attracting separate penalties.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 24(1), 24A(1), 25(1)
- Criminal Procedure Act 1986 (NSW), s 166
- Crime (Sentencing Procedure) Act 1999 (NSW), ss 7(1), 10A

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Imbornone v R [2017] NSWCCA 144
- R v Qutami (2001) 127 A Crim R 369