R v Fennah [2020] NSWDC 234

Citation: R v Fennah [2020] NSWDC 234
Court: District Court of New South Wales
Date: 13 March 2020
Judge: Sweeney DCJ

Background

The offender was a 26-year-old man who pleaded guilty in the Local Court to two serious drug supply offences: supplying a large commercial quantity of 3,4-MDMA (811.9 grams) and supplying a commercial quantity of cocaine (473.7 grams). Both offences arose from a police search of his Macquarie Park home on 7 December 2018, where officers found him wearing a latex glove and separating cocaine into individual bags.

Police had been investigating the offender since August 2018, intercepting communications between him and a regular associate. That investigation led to a separate supply of 2.02 grams of cocaine to the associate, which the offender asked to be taken into account on a Form 1 (a mechanism under NSW sentencing law by which related, uncharged offences are formally acknowledged and factored into penalty). The home also contained other drugs, cash, scales, multiple phones, and a notebook.

At sentencing, the principal dispute concerned the objective seriousness of the offences and the offender's role in the drug supply operation.

Legal Issues

What was the objective seriousness of each supply offence, having regard to the quantities, purities, and the offender's role?
What role did the offender play in the supply operation, given he gave no oral evidence and provided no account to the psychologist?
Whether the offender's PTSD and history of trauma-driven drug abuse were mitigating factors relevant to sentence.
Whether special circumstances existed to justify reducing the non-parole period below the statutory ratio.
What discount applied for the early guilty plea?

Decision

Objective Seriousness

Sweeney DCJ assessed both offences as below the midrange of objective seriousness (at [61]). The court took into account the substantial quantities of both drugs and their high purities, but also considered that the offending was not purely profit-driven. The drugs were seized before reaching the community, averting potential harm (at [59]).

The Offender's Role

The court found, by inference from the agreed facts, that the offender was not financing the drug operation and was diluting and packaging drugs at the direction of others (at [56]). The presence of $29,000 cash and a notebook suggested a degree of trust placed in him, but the court declined to treat the money as his own, noting the facts pointed away from that conclusion (at [58]). Critically, police surveillance spanning four months revealed only one actual supply: the 2-gram cocaine transaction with his associate at user level (at [57]). That limited evidence of direct supply weighed against attributing a greater role to the offender.

Mitigating Factors: PTSD and Drug Addiction

The court accepted the psychologist's opinion that the offender meets the criteria for PTSD, rooted in the loss of his mother to cancer when he was 13 (at [31]). His substance abuse was found to be intrinsically linked to that trauma, and the death of his grandmother in 2016 had reawakened that grief, precipitating his relapse and offending (at [34]). Although the Crown argued his continued employment demonstrated unimpaired judgment, the court accepted that his drug use compromised his reasoning in relation to the offences (at [60]). The court also noted the principle from R v Day that trafficking to feed a personal habit carries somewhat less objective criminality than trafficking for greed alone (at [46]).

Special Circumstances and Discount

The offender's need for treatment for PTSD and drug abuse to reduce his reoffending risk was found to constitute a special circumstance, warranting a reduction in the non-parole period below the standard statutory ratio (at [68]). The court applied a 25% discount across both sentences for the early guilty pleas entered in the Local Court (at [69]).

Orders Made

Aggregate sentence of six years imprisonment with a non-parole period of three years six months.
For the MDMA supply offence (taking into account Form 1 matters): five years imprisonment with a non-parole period of three years.
For the cocaine supply offence: four years imprisonment with a non-parole period of three years.
Non-parole period commences 7 December 2018, expiring 6 June 2022, with an additional term of two years six months.

Key Takeaways

The District Court confirmed that the quantity of drugs seized is a relevant but not determinative factor in assessing objective seriousness; the offender's role, degree of planning, and actual participation in supply are each independently weighed (at [35]-[37], [61]).
Where an offender gives no oral evidence at sentencing and provides no account to an expert, the court draws inferences about role from agreed facts alone, and findings about financial gain and seniority in an operation are limited to what those facts can reasonably support (at [22], [56]-[58]).
A diagnosis of PTSD arising from childhood trauma, supported by expert evidence and corroborated by family accounts, can carry meaningful mitigating weight at sentencing, particularly where the condition is found to have driven substance abuse and compromised the offender's judgment (at [31], [60]).
Consistent with R v Day, the court treated drug supply motivated in part by personal addiction as carrying somewhat less objective criminality than supply motivated purely by profit, without that distinction eliminating or substantially reducing moral culpability (at [46]-[47]).
An offender's need for specialist treatment for PTSD and drug dependence can constitute a "special circumstance" justifying departure from the statutory non-parole period ratio, reflecting the importance of a longer supervision period to support rehabilitation (at [68]).

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Licastro v R [2008] NSWCCA 131
- R v Day [1998] ACrim R 275
- R v Henry [1999] NSWCCA 111