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District Court 30 April 2020

R v Strickland

[2020] NSWDC 164

Drugs
SENTENCE RELEVANT FACTORS ON SENTENCE ROLLED UP DRUG QUANTITY FORM 1 ROLE OF OFFENDER PRIOR SENTENCE FOR DRUG SUPPLY

Citation: R v Strickland [2020] NSWDC 164
Court: District Court of NSW
Date: 30 April 2020
Judge: Haesler SC DCJ

Background

The offender had been released to parole in May 2016 after serving time for supplying a large commercial quantity of cannabis. Less than two years later, while still subject to parole, he was arrested in February 2018 on three counts of supplying methylamphetamine.

The offender had organised and managed a supply network operating at an intermediate commercial level. He arranged for a co-offender to collect methylamphetamine from an up-line supplier, then distributed the drugs through other associates. Police identified the operation through lawfully intercepted telephone calls. The total quantity accumulated across three transactions was not less than 560 grams, exceeding the large commercial threshold of 500 grams under the Drug (Misuse and Trafficking) Act 1985.

The matter was delayed because the offender initially failed to adhere to the guilty plea entered in the Local Court. He formally adhered to that plea only when he appeared before Haesler SC DCJ on 28 March 2020. He also asked the court to take into account four additional matters under a Form 1, including the supply of cocaine and possession of approximately $122,000 in proceeds of crime.

  • What objective seriousness attached to the offending, given the offender's role as organiser and the quantity of drugs supplied?
  • How should the sentence account for the Form 1 matters, including cocaine supply and unaccounted-for proceeds of crime, without double counting?
  • How should parity with co-offenders be addressed given differences in culpability and criminal history?
  • What weight attached to the offending having occurred on parole, and to the offender's prior conviction for drug supply?
  • What discount applied for the guilty plea, given the offender initially did not adhere to it?
  • How should the sentence commencement date be calculated, accounting for time served on the parole balance, remand, a Local Court sentence for perverting the course of justice, and the totality principle?
  • Did special circumstances justify a longer balance of sentence beyond the standard ratio?

Decision

Objective seriousness and role. Haesler SC DCJ found the offending was objectively serious. The offender had established and managed his own supply operation at an intermediate level, employed others (including a drug-user courier and his de facto partner), distanced himself from direct handling, and stood to profit from the distribution. The court characterised him as the principal in a relatively modest but organised supply network.

Form 1 matters. The court took the cocaine supply and the approximately $44,000 in unaccounted-for proceeds into account as aggravating matters going to personal deterrence and retribution. The court was careful not to double count the other Form 1 matters, noting that the broader supply operation and proceeds had already been factored into its assessment of the seriousness of the principal offence.

Parity and criminal record. The court reviewed sentences imposed on co-offenders (Owens, Rankin, Pobjoy, and Taylor) and found that the offender's substantially greater culpability and worse criminal antecedents justified a meaningfully higher sentence. His prior conviction for supplying a large commercial quantity of cannabis, his commission of this offence while on parole, and his subsequent conviction for perverting the course of justice all pointed toward a more severe sentence, consistent with the principles in Veen v The Queen (No 2).

Sentence calculation and commencement date. The calculation of the commencement date was complicated by time spent serving the parole balance, remand periods, Supreme Court bail, and the Local Court non-parole period. The court allowed two months attributable solely to the parole balance and six months attributable solely to the Local Court matter, then worked back to set the sentence commencement date at 22 April 2019. A discount of 37.5 per cent was applied for the guilty plea and assistance provided. Without those factors, the court indicated it would have imposed eight years. A finding of special circumstances was also made, justifying a longer balance of sentence relative to the non-parole period.

Orders Made

  • The offender was convicted of supplying a large commercial quantity of methylamphetamine.
  • The court took into account the guilty plea, assistance given, a finding of special circumstances, and the Form 1 matters.
  • Non-parole period: 3 years, commencing 22 April 2019, with eligibility for parole consideration from 21 April 2022.
  • Balance of sentence: 2 years, commencing 22 April 2022 and expiring 21 April 2024.
  • Total sentence: 5 years imprisonment.

Key Takeaways

  • Accumulating drug quantities across multiple transactions to reach the large commercial threshold was confirmed as appropriate in this context, consistent with Hamzy v R and Jadron v R.
  • Where a Form 1 matter overlaps in character with conduct already assessed as part of the principal offence, a sentencing court must take care to avoid double counting; only matters that add something distinct (such as a separate drug type or unrelated proceeds) should increase the penalty further.
  • The District Court treated the offender's role as organiser, his use of others as intermediaries, and his profit motive as central factors elevating the objective seriousness of the offence beyond that of lower-level participants in the same network.
  • Committing a serious offence while on parole for a similar offence justified a harsher sentence, reflecting the breach of the promise of good behaviour that underpins early release, though the court retained considerable discretion in how that harshness was reflected in the commencement date.
  • A guilty plea that is initially entered and then not adhered to does not automatically attract the full discount available for an early plea; the court factored in the delay and the circumstances in which the plea was ultimately confirmed.

Legislation and Cases Referenced

Legislation
- Drug (Misuse and Trafficking) Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24(1), 33

Cases
- Attorney General's Application No. 1 (2002) 56 NSWLR 146
- Bugmy v The Queen (2013) 249 CLR 571
- Callaghan v R [2006] NSWCCA 58
- CD v R [2013] VSCA 95
- Hamzy v R (1994) 74 A Crim R 341
- Hili v The Queen (2010) 242 CLR 520
- Jadron v R [2015] NSWCCA 217
- R v Ceissman [2004] NSWCCA 466
- R v Herring (1956) 73 WN (NSW) 203
- R v JDX; JDX v R [2017] NSWCCA 9
- R v Owens [2019] NSWDC 705
- R v Pobjoy, unreported, 5 April 2019
- R v Qutami [2001] NSWCCA 353
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- Rankin [2019] NSWDC 706
- Tiknius v R (2011) 221 A Crim R 365
- Veen v The Queen (No 2) (1988) 164 CLR 465