Citation: R v Redman [2020] NSWDC 554
Court: District Court of New South Wales
Date: 22 July 2020
Judge: Haesler SC DCJ
Background
The offender was a 41-year-old man from Goulburn who operated a small-scale but sustained cannabis supply business. Between September 2018 and June 2019, police intercepting his telephone calls identified that he had sourced not less than 24 kilograms of cannabis and distributed it to customers in the Goulburn area, typically selling one to two ounce quantities. He was himself a heavy cannabis user, unemployed during the relevant period, and was profiting from the supply beyond what his own use would require.
The offender was charged with one count of supplying a prohibited drug (cannabis) in an indictable quantity under s 25(1) of the Drug (Misuse and Trafficking) Act 1985. A number of transactions were amalgamated into a single "rolled up" count with the offender's consent. An additional possession matter was dealt with on a Form 1 (a mechanism under the Crimes (Sentencing Procedure) Act 1999 that allows a court to take related outstanding offences into account without recording a separate conviction).
The offender pleaded guilty at an early opportunity, cooperated with police and the prosecution, and had been in custody since his arrest on 7 June 2019. His long-term partner gave evidence in support at sentence, and a psychologist's report was tendered addressing his depressive illness and cannabis dependence. A co-participant, O'Dwyer, had previously been sentenced for his role as a paid delivery person in the same scheme.
Legal Issues
- What was the appropriate sentence for commercial cannabis supply in an indictable quantity, taking into account the totality of the offending captured in the rolled-up count?
- How should the offender's role be assessed relative to co-offender O'Dwyer, for the purposes of the parity principle?
- Whether an Intensive Correction Order (ICO) served in the community was an appropriate sentencing disposition.
- What weight should be given to COVID-19 restrictions on prison visits and the resulting deterioration in conditions of custody?
- Whether special circumstances existed to justify a departure from the standard non-parole period ratio.
Decision
Haesler SC DCJ sentenced the offender on the basis that he was significantly higher in the drug supply hierarchy than O'Dwyer, who had been a paid courier. The offender was the principal in his own supply operation: he sourced the cannabis, stored it, arranged deliveries, managed customers (receiving up to seven calls a day), and profited commercially from the enterprise. The court found that general deterrence required particular weight given the commercial nature of the offending, regardless of community attitudes towards cannabis use.
The court rejected the option of an Intensive Correction Order. Although the court was satisfied community protection was not a concern, the minimum custodial period required to reflect all the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999 had not yet been served by the time already spent on remand. A further period in custody was necessary.
The Form 1 possession matter added no additional time to the sentence given the nature and quantity of the drug involved and the offender's personal use. The early guilty plea attracted a 25% utilitarian discount from the court's starting point of four years and six months, rounded down in the offender's favour to arrive at the final sentence.
The court expressly acknowledged the impact of COVID-19 on prison conditions. Restrictions on in-person visits, increased cell confinement, and reduced freedom of association were treated as a meaningful detriment, particularly given the offender's longstanding depressive illness. These conditions were taken into account in mitigation. A finding of special circumstances was made, extending the balance of the term relative to the non-parole period to allow for adequate supervision and drug rehabilitation in the community upon release.
Orders Made
- Total sentence of three years and four months imprisonment.
- Non-parole period of two years, commencing 7 June 2019, with expected release to parole on 6 June 2021.
- Balance of term of one year and four months, expiring 6 October (year not specified in the extracted text).
- Supervision by Community Corrections for such period as deemed necessary.
Key Takeaways
- The District Court confirmed that a rolled-up count, compiled with the offender's consent, can lawfully capture multiple drug supply transactions for sentencing purposes, allowing the court to address the totality of offending under a single charge.
- Where a defendant is the organising principal of a supply network, rather than a paid courier or subordinate participant, the parity principle requires the court to position that offender materially higher in the sentencing range than co-offenders performing a lesser role.
- An Intensive Correction Order is unavailable as a sentencing disposition where the minimum custodial period required to satisfy the purposes of sentencing has not yet been met by time already served on remand.
- COVID-19 restrictions in custody, including suspension of contact visits and increased cell confinement, constituted a recognised sentencing detriment, particularly where an offender has an underlying mental health condition that makes isolation more burdensome.
- Drug dependence and addiction cannot mitigate a supply offence but may inform the court's understanding of the offender's circumstances and support a finding of special circumstances where community-based rehabilitation is needed post-release.
Legislation and Cases Referenced
Legislation:
- Drug (Misuse and Trafficking) Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, Form 1
- Crimes (Administration of Sentences) Act 1999 (NSW), s 276
Cases:
- R v O'Dwyer [2020] NSWDC 151
- Valentine v R [2020] NSWCCA 116