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District Court 3 June 2020

R v Duke

[2020] NSWDC 341

Assault & violenceDrugsFraud & dishonestyPublic order & justice offences

Citation: R v Duke [2020] NSWDC 341
Court: District Court of New South Wales
Date: 3 June 2020
Judge(s): Bennett SC DCJ

Background

The offender was sentenced following guilty pleas to a series of offences arising from events in Moree in March 2019. NSW Police had established a strike force to investigate drug supply in the region, and the offender emerged as a person of interest. He was found to have supplied methylamphetamine and fentanyl on multiple occasions over a 30-day period for financial reward, and to have dealt with $6,890 in cash reasonably suspected to be the proceeds of crime.

On 24 March 2019, police attempted to apprehend the offender. He fled in a vehicle in a manner dangerous to others, and used an offensive weapon to prevent his lawful arrest. A further offence of intimidating a police officer, and a related Form 1 offence of resisting an officer, arose from events on 24 and 25 March 2019. A minor summary offence of failing to display P-plates was also before the Court.

At the time of these offences, the offender was subject to a conditional liberty order (an Intensive Corrections Order), which was revoked as a consequence of his behaviour and converted to full-time imprisonment. He had been in custody since his arrest on 25 March 2019.

  • What aggregate sentence was appropriate across the indictable and summary offences, having regard to the objective seriousness of each offence and the principle of totality?
  • How should the offender's criminal history and breach of conditional liberty be treated as aggravating factors, and what limits apply to their weight?
  • What was the proper commencement date for the aggregate sentence, given the overlap between pre-sentence custody referable to prior offending and bail refusal on current charges?
  • How should the Form 1 offence of resisting an officer be brought to account in the sentence for the principal offence of intimidation?
  • Was a finding of special circumstances warranted to extend the balance of sentence beyond the standard ratio?

Decision

Bennett SC DCJ imposed an aggregate sentence, noting that each individual offence attracted its own penalty assessment before being subsumed into the overall term. The most serious offence was ongoing supply of prohibited drugs (methylamphetamine and fentanyl), which carries a maximum of 20 years' imprisonment. The charge of using an offensive weapon to prevent lawful apprehension carried a maximum of 12 years. All sentences were reduced by 25% to reflect the utilitarian value of early guilty pleas entered under the EAGP scheme.

The offender's prior criminal history and the fact that he was on conditional liberty at the time of offending were acknowledged as aggravating factors, but the Court was careful to limit their role. His Honour held that these factors did not directly aggravate the seriousness of the offending itself, nor did they justify increasing sentences beyond what was otherwise proportionate. Rather, they informed the need for specific deterrence and precluded leniency that might otherwise have been available.

On the commencement date, the Court exercised its discretion under the principles in Callaghan v R [2006] NSWCCA 58, setting the start of the aggregate sentence at 1 July 2019. This date allowed for some concurrence with the pre-existing custodial term, reflecting the totality of the offending and the fact that, but for his conduct in the present matters, the offender might have been eligible to reinstate his Intensive Corrections Order.

Special circumstances were found to exist, justifying an extended parole period beyond the statutory norm. The non-parole period was set at 2 years and 8 months out of a total term of 4 years and 8 months, leaving a two-year supervision period upon release. For the failing to display P-plates offence, the Court applied section 10A of the Crimes (Sentencing Procedure) Act 1999, recording a conviction but imposing no penalty.

Orders Made

  • Aggregate sentence: 4 years and 8 months, commencing 1 July 2019, expiring 29 February 2024
  • Non-parole period: 2 years and 8 months (special circumstances found), expiring 28 February 2022
  • Ongoing supply (sequence 6): Individual sentence of 11 months and 7 days (after 25% plea discount)
  • Dealing with proceeds of crime (sequence 7): Sentence specified (amount not fully reproduced in the provided text)
  • Police pursuit (sequence 1): 1 year and 6 months (after 25% plea discount)
  • Using offensive weapon to prevent apprehension (sequence 11): 1 year, 10 months and 15 days (after 25% plea discount)
  • Intimidation of police officer (sequence 9): Sentence imposed with the Form 1 offence (sequence 8, resist) taken into account
  • Failing to display P-plates: Convicted, no penalty imposed (s 10A Crimes (Sentencing Procedure) Act 1999)

Key Takeaways

  • A criminal history and breach of conditional liberty are properly treated as aggravating factors at sentencing, but the District Court here confirmed their role is limited: they do not elevate the intrinsic seriousness of fresh offending, but they do inform the need for specific deterrence and reduce the scope for leniency.
  • Under the guideline judgment in Attorney General's Application No. 1 of 2002, a Form 1 offence taken into account on sentencing should produce a modest but meaningful increase to the principal sentence, reflecting personal deterrence, retribution, and the community's interest in having the full range of offending brought to account.
  • The sentencing court retains a discretion over the commencement date of an aggregate sentence where pre-sentence custody is partly referable to unrelated prior offending, and that discretion may be exercised to allow some concurrence between the two periods.
  • A finding of special circumstances permits the court to depart from the standard non-parole period ratio, producing a longer supervisory tail on parole where the offender's circumstances are considered to warrant closer post-release oversight.
  • All offences attracting sentence here arose from a discrete episode of regional drug trafficking, and the principle of totality shaped how individual penalties were aggregated to avoid a crushing overall outcome disproportionate to the totality of the conduct.

Legislation and Cases Referenced

Legislation:
- Drug (Misuse and Trafficking) Act 1985 (NSW), s 25A(1) (ongoing supply)
- Crimes Act 1900 (NSW), s 193C(2) (dealing with proceeds of crime); s 51B(1) (police pursuit); s 33B(1)(a) (offensive weapon to prevent apprehension); s 60(1) (intimidation/resist)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A; Part 3 Div 1A (EAGP scheme); Part 4 Div 1A (standard non-parole periods)
- Criminal Procedure Act 1986 (NSW), s 166 (summary matters before District Court)
- Road Transport (Driver Licence) Regulation 2017 (NSW), cl 119(1)

Cases:
- Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999, No. 1 of 2002 [2002] NSWCCA 518
- Callaghan v R [2006] NSWCCA 58
- Bugmy v R [2013] HCA 37
- R v Fernando (1992) 76 A Crim R 58
- R v Qutami [2001] NSWCCA 353