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District Court 17 March 2020

R v Sawaya; R v Parkinson; R v Diamond

[2020] NSWDC 130

Drugs

Citation: R v Sawaya; R v Parkinson; R v Diamond [2020] NSWDC 130
Court: District Court of New South Wales
Date: 17 March 2020
Judge: Bennett SC DCJ

Background

Three co-offenders, Mark Sawaya, Robert Parkinson, and Richard Diamond, were sentenced following guilty pleas to charges of supplying cocaine in an amount not less than the large commercial quantity, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The principal offending arose from events on 25 September 2017 at Queenscliff, New South Wales. The offenders had originally been committed for trial from the Local Court, with trial due to commence on 20 May 2019, but each pleaded guilty on 21 May 2019.

The large commercial quantity triggers a deeming provision under s 29 of the same Act, meaning that mere possession of the drug in that quantity is deemed to constitute supply. Each offender also admitted to additional offences placed on a Form 1 (a procedure by which a sentencing court takes further offences into account when imposing sentence on the principal offence, without recording separate convictions for those additional matters).

Diamond's role in the enterprise was assessed as somewhat lesser than that of Sawaya and Parkinson. All three offenders asked the court to find special circumstances warranting a departure from the standard ratio between non-parole period and total sentence.

  • What guilty plea discount applied to each offender, given the late timing of their pleas and the different legislative regimes applicable to Sawaya and Parkinson on the one hand, and Diamond on the other?
  • What weight should the standard non-parole period of 15 years carry in determining the appropriate sentence for each offender?
  • What was the objective seriousness of the offending, and how did each offender's role affect that assessment?
  • Did special circumstances exist justifying a longer-than-standard parole period for any offender?
  • What sentencing treatment was appropriate for the Form 1 offences and, in Parkinson's case, a minor summary possession charge?

Decision

Guilty plea discounts. The court applied a discount of approximately 12.5% to Sawaya and Parkinson under common law principles, following the approach in R v Borkowski [2009] NSWCCA 102. The pleas were entered on the day after trial was listed to commence, and the court acknowledged that no Crown Prosecutor had yet been allocated, meaning deployment of an advocate would still have been required. Diamond's discount was governed by the statutory Early Appropriate Guilty Plea (EAGP) provisions, which capped the available discount at 5% under s 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999. Where spare days arose from the mathematical application of those percentages, the court discarded them, resulting in marginally more than 5% for Diamond in practice.

Standard non-parole period. The court addressed the relevance of the 15-year standard non-parole period applicable to the principal offence. Consistent with the approach confirmed in Muldrock v The Queen [2011] HCA 39, the standard non-parole period operates as a legislative guidepost, not a rigid starting point. The court assessed the objective seriousness of the offending by Sawaya and Parkinson as below mid-range, but not toward the low end of the range.

Special circumstances. The court found special circumstances in each case, justifying a greater proportion of the total sentence being allocated to the parole period than the standard one-third. The judgment sets out the subjective considerations relevant to each offender that supported this finding, including factors bearing on rehabilitation prospects and the need for supervised reintegration.

Parkinson's summary offence. Parkinson also faced a summary charge of possessing 2.2 grams of cocaine. The court convicted him of that offence but imposed no penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999, given the severity of the punishment he was already receiving for the principal and Form 1 offending.

Orders Made

Mark Sawaya
- Convicted of supplying a large commercial quantity of cocaine (s 25(2), Drug Misuse and Trafficking Act 1985)
- Non-parole period: 5 years, commencing 25 September 2017, expiring 24 September 2022
- Balance of sentence expiring 24 July 2025
- Total sentence: 7 years and 10 months
- Four Form 1 offences taken into account (three counts of supply cocaine in indictable quantity; one count of dealing with proceeds of crime, $54,555)
- Special circumstances found; 12.5% guilty plea discount applied

Robert Leslie Parkinson
- Convicted of supplying a large commercial quantity of cocaine (s 25(2), Drug Misuse and Trafficking Act 1985)
- Non-parole period: 4 years and 6 months, commencing 1 November 2017, expiring 30 April 2022
- Balance of sentence expiring 31 October 2024
- Total sentence: 7 years
- One Form 1 offence taken into account (supply cocaine in indictable quantity, 138.01 grams)
- Convicted of possessing cocaine (summary offence); no penalty imposed under s 10A Crimes (Sentencing Procedure) Act 1999
- Special circumstances found; 12.5% guilty plea discount applied

Richard Anthony Diamond
- Convicted of knowingly taking part in the supply of a large commercial quantity of cocaine (s 25(2), Drug Misuse and Trafficking Act 1985)
- Non-parole period: 2 years and 6 months, commencing 23 April 2019, expiring 22 October 2021
- Balance of sentence expiring 22 October 2023
- Total sentence: 4 years and 6 months
- Special circumstances found; 5% EAGP discount applied (marginally exceeded due to rounding)

Key Takeaways

  • The guilty plea discount available to an offender depends on which regime applies. For Sawaya and Parkinson, the common law discount of approximately 12.5% applied in recognition of the utilitarian value of their late pleas. Diamond, whose plea fell under the EAGP statutory framework, was entitled to only 5% under s 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999.

  • A standard non-parole period under the Crimes (Sentencing Procedure) Act 1999 functions as a legislative benchmark rather than a mandatory minimum, consistent with Muldrock v The Queen [2011] HCA 39. The sentencing court weighs it alongside all other relevant factors, including objective seriousness and the offender's subjective case.

  • Where co-offenders are sentenced for the same enterprise, differential sentences are appropriate when one offender's role is assessed as materially lesser. Diamond received a substantially shorter total sentence than Sawaya and Parkinson, reflecting both his lesser role and the operation of the EAGP discount cap.

  • Special circumstances can justify extending the parole component of a sentence beyond the standard one-third. All three offenders had the special circumstances finding made in their favour, resulting in non-parole periods that represent a greater share of the total sentence than would otherwise apply.

  • Under s 10A of the Crimes (Sentencing Procedure) Act 1999, a court may convict an offender of an offence but impose no penalty. The District Court applied this provision to Parkinson's summary possession charge, recognising that the principal sentence already reflected the totality of his culpable conduct.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 25(1), 25(2), 29
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 25D(2)(c), Part 4 Div 1A
- Crimes Act 1900 (NSW), s 193B(2)
- Customs Act 1901 (Cth)

Cases
- Muldrock v The Queen [2011] HCA 39
- R v Borkowski [2009] NSWCCA 102
- Markarian v R [2005] HCA 25