Citation: R v An [2020] NSWDC 360
Court: District Court of New South Wales
Date: 25 June 2020
Judge: Bourke SC DCJ
Background
The offender was a middle man in a cannabis supply network operating across Greater Sydney and the Central Coast. Police established a strike force in late 2018 and obtained telephone intercept warrants targeting two other individuals. Those intercepts revealed the offender's role in the network.
Between January and February 2019, the offender stored quantities of cannabis leaf at his home in Yagoona and supplied them through a courier, Davison, who transported the cannabis to a recipient at North Arm Cove. The offender was identified as packaging the drugs himself, using gloves, resealable bags, and a vacuum heat sealer. When police executed a search warrant at his home on 21 February 2019, they found 9.4 kilograms of cannabis leaf, packaging equipment, and two mobile phones. The offender made full admissions to police but declined to identify his supplier.
The offender faced four charges of supply prohibited drug under the Drug Misuse and Trafficking Act 1985, each carrying a maximum of 10 years imprisonment. He also asked the court to take three additional supply offences into account on a Form 1 document (a procedural mechanism that allows a court to consider admitted but uncharged offences when imposing sentence, without those offences resulting in separate convictions). Each of the seven supply transactions involved approximately 9 kilograms of cannabis leaf.
Legal Issues
- What weight should be given to the offender's early guilty plea, personal circumstances, and background when determining the appropriate sentence?
- What indicative sentences were appropriate for each individual supply offence?
- How should the principle of totality apply when sentencing for four offences committed over several weeks?
- Whether special circumstances justified varying the standard ratio between the head sentence and the non-parole period.
- What effect, if any, did the COVID-19 pandemic have on the severity of the sentence to be imposed?
Decision
Bourke SC DCJ applied a 25 per cent discount to reflect the utilitarian value of the offender's early guilty plea. The judge considered the offender's personal circumstances in detail, including a gambling problem that had driven him into debt and led to his involvement in drug supply, a history of psychological difficulties, and the particular hardship his imprisonment would cause his family, notably his wife and a son with significant health needs.
The court accepted that the offender played a relatively defined role in the network: storing and packaging cannabis supplied to him by others and handing it to a courier. He was not at the top of the distribution chain. However, the quantities involved across all seven transactions were substantial, totalling approximately 63 kilograms of cannabis leaf, and the offending was systematic and repeated over several weeks.
On the COVID-19 pandemic, the judge gave limited weight to the conditions of imprisonment caused by the pandemic. The court noted the virus had not at that point entered the custodial setting and the offender was not a particularly vulnerable person. Restrictions on family visits were treated as a relevant hardship, particularly given the circumstances of the offender's wife and son.
The judge found special circumstances existed to vary the standard ratio between the head sentence and the non-parole period, citing the offender's first period in custody and the need for supervised parole to address his gambling problem and psychological difficulties. An aggregate sentence was imposed in preference to individual consecutive or concurrent sentences, with modest accumulation to reflect that four separate offences were committed.
Orders Made
- Aggregate head sentence of 2 years and 10 months imprisonment, commencing 21 February 2019 and expiring 20 December 2021.
- Non-parole period of 1 year and 8 months, expiring 20 October 2020.
- Indicative sentences: sequence 20 (taking into account the three Form 1 matters): 2 years; sequence 21: 15 months; sequence 22: 15 months; sequence 23: 15 months.
Key Takeaways
- Under the Drug Misuse and Trafficking Act 1985, each offence of supply of a prohibited drug carries a maximum of 10 years imprisonment, and sentencing courts will consider the offender's role in the supply chain, the quantities involved, and the degree of organisation when assessing objective seriousness.
- A 25 per cent discount for an early guilty plea reflects its utilitarian value and is well within the range applied by NSW courts.
- Where multiple offences are sentenced together, the principle of totality requires the court to assess whether the combined sentence is proportionate. Here, the District Court applied modest accumulation rather than full concurrency to reflect the distinct nature of four separate supply transactions over several weeks.
- Special circumstances justifying a variation from the standard head sentence to non-parole period ratio can be established where the offender faces a first period of custody and where supervised parole is needed to address specific rehabilitative needs, such as problem gambling or psychological difficulties.
- The COVID-19 pandemic was treated as a relevant but limited sentencing factor. The absence of the virus from the custodial environment at the time, and the offender's lack of particular medical vulnerability, reduced its weight, though restrictions on family visits were acknowledged as a genuine additional burden.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
Cases:
- Bugmy v R [2013] HCA 27
- Dipangkear v R [2010] NSWCCA 156
- Huynh v R [2018] NSWCCA
- R v Dibb (unreported, NSWCCA, 13 September 1991)
- R v Edwards (1996) 90 A Crim R 510
- R v Girard [2004] NSWCCA 170
- Winter v R [2011] NSWCCA 59