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District Court 28 February 2020

R v Harris

[2020] NSWDC 173

Drugs
CRIMINAL SENTENCE SUPPLY PROHIBITED DRUG GAMMA BUTYROLACTONE MORE THAN COMMERCIAL QUANTITY

Citation: R v Harris [2020] NSWDC 173
Court: District Court of New South Wales
Date: 28 February 2020
Judge: King SC DCJ

Background

The offender appeared for sentencing on four drug offences committed between September 2016 and October 2017. The offences involved the supply of gamma-butyrolactone (GBL), a prohibited drug, and possession of methylamphetamine. The offender also had an outstanding breach of a section 9 bond from Bankstown Local Court to be addressed.

Police first intercepted the offender in September 2016 after stopping her vehicle in King Street, Sydney, where bottles of GBL were found concealed in the car. A second supply offence occurred in March 2017, when police stopped her vehicle in Wolli Creek and found further GBL along with a small quantity of methylamphetamine concealed on her person.

The most serious offence involved the supply of GBL in a quantity exceeding a commercial quantity, spanning from June to October 2017. Evidence from intercepted phone calls established an ongoing drug supply relationship between the offender and a co-accused. A contested facts hearing was held regarding the quantity alleged to have been supplied.

  • What aggregate sentence was appropriate for multiple supply and possession offences under the Drugs (Misuse and Trafficking) Act 1985?
  • How should the standard non-parole period of ten years for commercial quantity supply under section 25(2) operate as a guidepost following a guilty plea?
  • What weight should be given to the offender's subjective circumstances, including drug dependency, in mitigation?
  • How should the breach of the existing section 9 bond be dealt with in the context of the overall sentence?

Decision

The most serious offence was the commercial quantity supply of GBL between June and October 2017, which carried a maximum penalty of 20 years' imprisonment and a standard non-parole period of ten years. His Honour noted that the standard non-parole period remained a relevant guidepost notwithstanding the guilty plea, consistent with the approach in Frigiani v R and Kurr v R.

The court considered the offender's subjective circumstances, including her significant drug dependency, her role as a parent, and the support of her family. His Honour acknowledged her dependency as relevant to both the nature of the offending and her prospects of rehabilitation, but made clear that those factors could not displace the objective seriousness of repeated drug supply conduct spanning over a year.

An aggregate sentence was imposed across the offences. His Honour expressed concern about the offender's risk of relapse upon release, noting that continued drug use would in all likelihood lead back to drug supply. The court encouraged the offender to engage with programs available in custody as a means of breaking the cycle of dependency.

In relation to the section 9 bond breach, the court directed that no action be taken. His Honour reasoned that the existence of the bond at the time of the subsequent offending had already been taken into account as an aggravating feature in the overall sentencing exercise, making any further action on the breach unnecessary and duplicative.

Orders Made

• Sentence of four years six months, backdated to account for previous time in custody and participation in the WHOS program
• First eligible for parole on 13 April 2021
• Order for the destruction of any drugs still in existence
• Direction that no action be taken in respect of the breach of the bond

Key Takeaways

  • The District Court treated the ten-year standard non-parole period for commercial quantity drug supply as a relevant guidepost even where the offender had pleaded guilty, consistent with the Court of Criminal Appeal's approach in Frigiani v R and Kurr v R.
  • An aggregate sentence was imposed across four offences spanning supply of GBL at various quantities and possession of methylamphetamine, reflecting the principle that the totality of the offending must be taken into account.
  • Where an offender's existing bond has already been treated as an aggravating factor in the primary sentence, directing no further action on the bond breach avoids double punishment for the same circumstances.
  • Drug dependency, while relevant as a mitigating and contextual factor in sentencing, does not displace the objective seriousness of sustained commercial drug supply conduct.
  • Rehabilitation prospects were assessed in light of the offender's expressed motivation to change, with the court noting that failure to address drug dependency in custody would significantly affect prospects of an earlier release.

Legislation and Cases Referenced

Legislation:
- Drugs (Misuse and Trafficking) Act 1985 (NSW), ss 10(1), 25(1), 25(2), 166

Cases:
- Frigiani v R [2007] NSWCCA 81
- Kurr v R [2006] NSWCCA 218