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District Court 26 June 2020

R v Roiss

[2020] NSWDC 533

Drugs
CRIME DRUG OFFENCES SUPPLY PROHIBITED DRUG EARLY PLEA POSSESSION OF INDICIA OF SUPPLY ELLIS DISCOUNT INAPPROPRIATE

Citation: R v Roiss [2020] NSWDC 533
Court: District Court of New South Wales
Date: 26 June 2020
Judge: King SC DCJ

Background

The offender was a long-term Australian resident who was observed by police in the Barangaroo area of Sydney in late July 2019 completing a street-level cocaine sale. Following his arrest, police searched his nearby apartment and a private vault he leased in Castlereagh Street. What they found was a substantial, multi-substance drug operation run from a city unit.

The apartment contained an extensive range of prohibited drugs packaged for supply, including cocaine, MDMA, ketamine, cannabis leaf, cannabis resin, lysergide (LSD), and smaller personal-use quantities of DMT, GBL, and harmine. Police also located multiple mobile phones, drug ledgers, scales, capsule-filling equipment, and $185,225 in cash, including $170,000 held in a private vault. The offender admitted the cash represented approximately one year's profit from drug supply.

The offender was committed to the District Court for sentence on eight charges, with three further possession offences taken into account on a Form 1. He entered early guilty pleas to all matters, entitling him to a 25 percent discount for the utility of those pleas.

  • What was the appropriate objective seriousness of each supply offence, given that none involved a "large commercial quantity" but the overall operation was plainly commercial in scale?
  • How should the court approach sentencing where multiple drugs of different types and quantities are found together in the same location at the same time?
  • Whether an "Ellis discount" (a further sentencing discount for a plea that saves the community the cost and inconvenience of a trial) was applicable in the circumstances.
  • What weight should be given to the offender's subjective case, including his drug dependency, gambling problems, remorse, and rehabilitation in custody?
  • How should the aggregate sentence be structured under the Crimes (Sentencing Procedure) Act 1999?

Decision

His Honour found that while no individual quantity of drug reached the threshold for a "large commercial quantity," the totality of the operation was plainly commercial. The presence of multiple drug types, drug ledgers, scales, capsule-filling equipment, and over $185,000 in cash, combined with the offender's own admission of one year's profit, made the overall criminality substantially more serious than any single charge might suggest viewed in isolation. King SC DCJ held that the sheer variety and co-location of the drugs, which His Honour colourfully described as a "smorgasbord," was a significant aggravating feature going to the overall sentence.

The court declined to apply an Ellis discount. Such a discount is appropriate where a plea spares the community the cost of a complex or lengthy trial; however, His Honour was not satisfied that the circumstances here warranted that additional concession beyond the standard 25 percent utilitarian discount already applied.

On the subjective case, the court accepted that the offender had genuine drug dependency and gambling problems that contributed to his offending, and that he had demonstrated meaningful rehabilitation by remaining drug-free in custody despite the acknowledged availability of drugs in New South Wales prisons. His Honour also took into account the offender's remorse, his supportive family, and the fact that he would likely be deported on release, which placed him outside the family support network ordinarily available to offenders serving sentences.

An aggregate sentence was imposed. The non-parole period was set with a first eligible parole date of 25 January 2024, with the total sentence expiring on 25 July 2025, giving a balance of term of one year and six months. His Honour noted the deportation issue but expressly stated it was not a matter he could take into account in fixing the sentence.

Orders Made

• Non-parole period of four years, six months with a balance of term of one year, six months, giving a total sentence of six years
• Sentence to date from 26 July 2019
• First eligible for parole on 25 January 2024
• Sentence to expire on 25 July 2025

Key Takeaways

  • Where multiple prohibited drugs of different types are found together at the same location, the overall picture of a commercial operation is a significant sentencing consideration, even where no single quantity reaches a statutory threshold such as a "large commercial quantity."
  • An Ellis discount is not automatically available to every offender who pleads guilty; the sentencing court must be satisfied the plea meaningfully spared the community the expense and inconvenience of a contested hearing before applying that additional concession.
  • Demonstrated rehabilitation in custody, including ceasing prohibited drug use in an environment where drugs are accessible, can carry meaningful weight in an offender's favour at sentence.
  • The District Court confirmed that a drug ledger, commercial packaging equipment, large sums of cash, and an offender's own admission of profit are all relevant indicia of supply going to objective seriousness.
  • Potential deportation following release was noted by the sentencing court but treated as a matter outside its sentencing discretion, not a factor to be weighed in fixing the length of the sentence.

Legislation and Cases Referenced

Legislation
- Drugs (Misuse and Trafficking) Act 1985 (NSW), ss 10(1), 25(1), 25(2)
- Crimes Act 1900 (NSW), s 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999, No. 1 [2002] NSWCCA 518
- R v Thomson; R v Houlton (2000) 49 NSWLR 383