Citation: R v Loudon [2020] NSWDC 57
Court: District Court of New South Wales
Date: 3 March 2020
Judge(s): Priestley SC DCJ
Background
The offender was a low-level participant in a cocaine supply network centred on a principal supplier known as Russ. Police identified the offender during an investigation targeting that supplier and charged him with two counts of ongoing supply of cocaine, contrary to section 25A(1) of the Drugs Misuse and Trafficking Act (NSW). Each offence carries a maximum of 20 years imprisonment.
The offending occurred across two discrete periods: September to October 2018 (sequence 12) and March to April 2019 (sequence 13). The quantities supplied on each occasion ranged from small to indictable amounts, none reaching commercial quantity. Four additional charges were listed on a Form 1 to be taken into account on sentence in relation to the second count.
The offender pleaded guilty at the earliest opportunity and gave evidence at the sentencing hearing. Seven backup supply charges were to be withdrawn upon conviction.
Legal Issues
- What was the objective seriousness of the two ongoing supply offences?
- Were there aggravating or mitigating features affecting the sentence?
- Had the section 5 threshold for a custodial sentence been crossed?
- Was it appropriate to serve the term of imprisonment by way of an Intensive Correction Order (ICO) rather than full-time custody?
- What weight should be given to the Form 1 matters and to parity with co-offenders?
Decision
Objective seriousness and the offender's role
The court accepted the Crown's submission that the offending fell below the mid-range of objective seriousness (at [15]). The offender was not a significant figure in the supply operation. His role was limited to delivering packages at the direction of others, receiving cheaper drugs in return rather than cash payment (at [13]). The court found no meaningful sophistication or organisation attributable to the offender personally.
Aggravating and mitigating factors
The court rejected the offender's own identification of aggravating features. Planning, financial gain, and the series of acts were properly characterised as elements of the offence itself rather than additional aggravating circumstances (at [16]). On the mitigating side, the offender received a 25 percent discount for his early guilty plea (at [17]). His criminal history, comprising only alcohol-related driving matters and no prior drug supply convictions, entitled him to some leniency given an eight-year gap in offending (at [19]). The court also found genuine remorse, demonstrated through conduct since arrest, the early plea, and expressed shame in the witness box (at [29]).
Custodial threshold and sentence length
The court held that the seriousness of the offending required a finding that the section 5 threshold had been crossed (at [39]). Each count warranted 12 months imprisonment, yielding an aggregate sentence of 18 months after applying the guilty plea discount (at [40]).
Intensive Correction Order
The court determined that the sentence should be served by way of an ICO rather than in custody. Psychological evidence indicated that rehabilitation was underway but incomplete, and that incarceration carried a real risk of impeding further progress (at [35]). The offender had engaged consistently with treatment, complied fully with bail conditions over an extended period, re-established a meaningful relationship with his daughter, and resumed productive employment (at [29], [35]). The Crown's own concession that special circumstances existed reinforced that rehabilitation was ongoing rather than concluded (at [36]). A parity comparison with co-offender Wallace, who received full-time custody, was complicated by the absence of information about Wallace's subjective case and by the different nature of his role as a street-level retailer (at [38], [41]).
Orders Made
- 18-month term of imprisonment to be served by way of an Intensive Correction Order, commencing 3 March 2020 and expiring 2 September 2021
- ICO conditions include community service work, supervision by Community Corrections, and continuation of psychological treatment
- Offender to report to Community Corrections, Coffs Harbour, by 5pm on 6 March 2020
- Backup charges withdrawn
- Order for destruction of drugs
Key Takeaways
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A low-level deliveryman role within a drug supply network, involving no direct retail sales and minimal financial reward, can place the objective seriousness of ongoing supply offences below the mid-range even where quantities reach indictable levels (at [13], [15]).
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Financial gain and a series of acts are elements of the offence of ongoing supply under section 25A(1) of the Drugs Misuse and Trafficking Act (NSW), not aggravating features that can be counted again on sentence (at [16]).
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Where psychological evidence demonstrates that rehabilitation is genuinely underway but not yet complete, and where full-time custody carries a real risk of reversing that progress, an ICO can represent an appropriate sentencing outcome even for serious drug supply offences that cross the section 5 custodial threshold (at [35], [41]).
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The District Court applied the principles in R v Fangaloka [2019] NSWCCA 173 concerning the proper approach to ICOs under section 66 of the Crimes (Sentencing Procedure) Act 1999, noting that case had departed from the earlier approach in R v Pullen [2018] NSWCCA 264 (at [31]).
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Parity comparisons with co-offenders become difficult to apply where the sentencing court lacks access to the subjective material that was before the court that sentenced the co-offender, particularly when the co-offender's role and circumstances differed materially from those of the offender being sentenced (at [38], [41]).
Legislation and Cases Referenced
Legislation
- Drugs Misuse and Trafficking Act (NSW)
- Crimes (Sentencing Procedure) Act 1999
Cases
- Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of (2002) 56 NSWLR 146
- R v Fangaloka [2019] NSWCCA 173
- R v Pullen [2018] NSWCCA 264