Citation: [2020] NSWDC 245
Court: District Court of New South Wales
Date: 8 May 2020
Judge(s): Yehia SC DCJ
Background
The offender pleaded guilty on the first day of his trial to one charge of supplying a prohibited drug on an ongoing basis, contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The offence involved three separate supplies of methylamphetamine totalling 305.2 grams, each made for financial reward through an undercover police operation between May and June 2018. Because the plea was entered on the day of trial, the parties agreed a discount of only 5% was appropriate.
The offender's role was to take possession of the drugs from an up-line supplier on credit and pass them to his co-offender, who dealt directly with the undercover operative. The offender booked hotel rooms using his own identification for each transaction and received approximately $4,400 across the three supplies, money he used primarily to fund his own methylamphetamine addiction and pay rent. He had no significant assets and had not materially enriched himself.
The offender's drug dependency had escalated over several years, causing the collapse of his business. He gave sworn evidence at the sentencing proceedings, and Yehia SC DCJ found him to be an articulate, insightful, and honest witness.
Legal Issues
- What was the objective seriousness of the offence under s 25A(1), having regard to the quantity and purity of methylamphetamine supplied and the element of repetition, system, and organisation?
- What weight should be given to the offender's late plea of guilty?
- Whether, and to what extent, time spent in residential rehabilitation prior to sentencing should be taken into account in lieu of pre-sentence custody.
- Whether the offender's rehabilitation was so exceptional as to justify a non-parole period that departed significantly from the statutory ratio of two-thirds of the head sentence.
Decision
Yehia SC DCJ assessed the objective seriousness of the offence as falling in the mid-range for conduct of this type. The court applied the principle, drawn from R v Hoon; R v Pouoa and confirmed in Kennedy v R, that the criminality of an s 25A offence is determined by reference to features of repetition, system, and organisation rather than merely the quantities involved. The offender was not a high-level dealer; he acted primarily to fund his addiction and earned only modest proceeds.
The court applied a 5% discount for the late guilty plea, consistent with the parties' agreed position and the principles in Wong v The Queen. The starting point before the discount was a total term of 4 years and 9 months.
The court was satisfied that the offender had demonstrated genuine and exceptional rehabilitation. By the time of sentencing, the offender had completed a significant period of residential rehabilitation. Yehia SC DCJ treated that time as analogous to pre-sentence custody, giving the offender credit for it in structuring the sentence. The court relied on R v Blackman and Walters for the proposition that rehabilitation assumes particular importance where an offender has not developed settled criminal habits, and cited R v Osenkowski for the principle that mercy and leniency remain legitimate sentencing tools where a judge is reasonably satisfied they may lead to reform.
Given the exceptional circumstances, the court departed from the usual statutory ratio between the non-parole period and the head sentence. The non-parole period was set at approximately 30% of the total term rather than the standard two-thirds, a deliberate structural choice to facilitate the offender's continued rehabilitation in the community as soon as reasonably possible. The court expressly balanced this against the need for the head sentence to reflect the objective seriousness of the offence and the principles of general deterrence, denunciation, and punishment.
Orders Made
- The offender was convicted of one charge of supplying a prohibited drug on an ongoing basis contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW).
- A 5% discount was applied, producing a total sentence of 4 years 6 months imprisonment.
- Non-parole period: 1 year 4 months 14 days, commencing 25 December 2018 and expiring 8 May 2020.
- Balance of term: 3 years 1 month 16 days, expiring 24 June 2023.
- The offender was eligible for release on parole at the expiration of the non-parole period, subject to Community Corrections supervision.
Key Takeaways
- Under s 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW), objective criminality is assessed by reference to repetition, system, and organisation rather than drug quantity alone, following the approach in R v Hoon; R v Pouoa and Kennedy v R.
- A late guilty plea entered on the first day of trial attracted only a 5% sentencing discount in these circumstances.
- Time spent in residential rehabilitation before sentencing may be treated analogously to pre-sentence custody when structuring a sentence, allowing it to reduce the effective custodial burden on the offender.
- Exceptional rehabilitation can justify a non-parole period that departs substantially from the standard statutory ratio, provided the head sentence still adequately reflects the objective seriousness of the offence and the requirements of general deterrence.
- The District Court reaffirmed that rehabilitation is a legitimate and important sentencing purpose, particularly for offenders who have not established entrenched criminal patterns, and that judicial mercy retains a recognised place in sentencing where there is a genuine prospect of reform.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A
Cases
- Brown v R [2013] NSWCCA 44
- Kennedy v R [2020] NSWCCA 49
- R v Blackman and Walters [2001] NSWCCA 121
- R v Hoon; R v Pouoa [2000] NSWCCA 137
- R v Lattouf (Court of Criminal Appeal (NSW), 12 December 1996, unreported)
- R v Osenkowski (1982) 5 A Crim R 394
- R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225
- Wong v The Queen; Leung v The Queen (2001) 207 CLR 584