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District Court 17 June 2020

R v Turk

[2020] NSWDC 400

Drugs
CRIME ROLLED UP AMOUNT RELEVANT FACTORS ON SENTENCING EARLY PLEA ACCEPTANCE OF RESPONSIBILITY DRUG ADDICTION

Citation: R v Turk [2020] NSWDC 400
Court: District Court of New South Wales
Date: 17 June 2020
Judge: Haesler SC DCJ

Background

The offender, a first-time offender born in 1998, was convicted of one rolled-up count of supplying not less than a commercial quantity of MDMA under s 25(2) of the Drug Misuse and Trafficking Act 1985. The offence arose from four separate transactions with an undercover police operative between August and October 2019, during which the offender supplied approximately 283 grams of MDMA across those occasions, with a further 56-gram transaction attempted but not completed. The total weight supplied or agreed to be supplied was 339 grams, placing it within the commercial quantity range of 125 to 499 grams.

The offender had acted as a mid-level supplier, drawing on criminal contacts to source the drug. He received approximately $9,800 across the completed transactions, earning roughly $500 profit per ounce. He was arrested after the final supply on 17 October 2019 and had been in custody since that date. Full admissions were made upon arrest and a guilty plea was entered in the Local Court.

The offender presented a significant subjective case, including a history of drug and gambling addiction, the absence of any prior criminal record, strong family support, and evidence of genuine rehabilitation during his time in custody.

  • What sentence was appropriate for a rolled-up commercial drug supply offence, having regard to objective seriousness and the standard non-parole period of 10 years?
  • What weight should be given to the fact that the drugs were supplied to an undercover operative and never reached the community?
  • How should the sentencing court treat the accumulation of multiple transactions into a single rolled-up count, and whether that warranted additional aggravation under s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999?
  • Whether special circumstances existed to justify a variation of the statutory ratio between the non-parole period and the total sentence.
  • What discount was appropriate for the utilitarian value of the early guilty plea?

Decision

Haesler SC DCJ sentenced the offender on the basis that commercial drug supply is a serious offence demanding substantial full-time custody to reflect objective seriousness and serve the purposes of sentencing, including general deterrence. The maximum penalty for the offence is 20 years, with a standard non-parole period of 10 years fixed by Parliament for a mid-range offence assessed on objective factors alone.

On the question of the drugs being intercepted by police, the court followed the Court of Criminal Appeal's guidance in R v Chan and R v Way, finding that this fact is of limited relevance to the assessment. More significant was the offender's moral culpability: he expected profit and acted knowing the drugs would be resold, heedless of the consequences to end users. The court also adopted the reasoning of R A Hulme J in R v DW, acknowledging that where authorities prevent actual harm, that fact may be afforded appropriate weight without diminishing the offender's subjective criminality.

Regarding the rolled-up count, the court confirmed that accumulating multiple transactions was appropriate and that the number of occasions and the period over which supply occurred remained relevant considerations. However, the court declined to separately apply s 21A(2)(m) as an aggravating factor, finding that doing so would involve double-counting.

The court found special circumstances under the Crimes (Sentencing Procedure) Act 1999, warranting a departure from the standard ratio between the non-parole period and the total sentence. This finding rested on the offender's age, first-offender status, drug and gambling addiction, genuine remorse, and the value of structured parole supervision in reducing the likelihood of reoffending. The court cited Bureau of Crime Statistics and Research data supporting the effectiveness of parole supervision in reducing recidivism. The pre-plea notional sentence was assessed at three years, reduced to two years and three months to reflect the utilitarian value of the early guilty plea.

Orders Made

  • Conviction entered for one count of supplying not less than a commercial quantity of MDMA contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985.
  • Non-parole period of 1 year 2 months, commencing 17 October 2019 and expiring 16 December 2020.
  • Parole period of 1 year 1 month, commencing 17 December 2020 and expiring 16 January 2022.
  • Total sentence: 2 years 3 months.
  • Drug destruction order made if necessary.
  • Proceeds of crime order under s 29(1) of the Confiscation of the Proceeds of Crime Act 1989 in the amount of $2,500, payable to the State of New South Wales.

Key Takeaways

  • A rolled-up count of commercial drug supply does not warrant separate aggravation under s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999, as treating the multiple transactions as an additional aggravating factor would constitute double-counting. The number of occasions and the timespan of supply nonetheless remain relevant considerations.

  • Where drugs are supplied to an undercover operative and never distributed, that fact is of limited relevance to the assessment of the offender's moral culpability. Following R v DW, however, the prevention of actual harm by law enforcement may be afforded appropriate weight in the overall sentencing exercise.

  • Special circumstances can be established where a first offender has demonstrated genuine rehabilitation during custody, has ongoing addiction issues requiring treatment, and stands to benefit materially from structured parole supervision. The District Court found that community protection is advanced by successful rehabilitation, not only by extended incarceration.

  • The utilitarian value of an early guilty plea produced a meaningful sentence reduction. The notional pre-plea sentence was assessed at three years, with the final sentence of two years and three months reflecting that discount alongside the finding of special circumstances.

  • Sentencing courts in commercial drug supply matters must balance the statutory imperative of general deterrence and objective seriousness against the individual circumstances of the offender, including addiction, youth, remorse, and rehabilitation prospects.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)(m)
- Confiscation of the Proceeds of Crime Act 1989 (NSW), s 29(1)

Cases
- Hamzy v R (1994) 74 A Crim R 341
- Jadron v R [2015] NSWCCA 217
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- R v Chan [1999] NSWCCA 103
- R v DW [2012] NSWCCA 66
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- Siwek v R [2017] NSWCCA 178