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District Court 14 August 2020

R v Lane

[2020] NSWDC 643

Drugs
CRIME TWO ROLLED UP OFFENCES MDMA COCAINE SUPPLY AND AGREEMENT TO SUPPLY PART OF CRIMINAL GROUP

Citation: R v Lane [2020] NSWDC 643
Court: District Court of New South Wales
Date: 14 August 2020
Judge(s): Haesler SC DCJ

Background

The offender, a young man born in June 1999, became involved with a criminal group distributing MDMA and cocaine in the Wollongong area. He operated as a runner and street-level dealer for two associates (referred to in the judgment as "the brothers"), and was paid in drugs which he then sold to his own customer base. By mid-2019, drug use and dealing had become his primary occupation, having left both his carpentry apprenticeship and TAFE study.

A Wollongong Criminal Investigations controlled operation commenced in June 2019, during which police used an undercover operative to conduct a series of transactions with the offender. Four transactions occurred between July and August 2019, involving the supply or agreed supply of significant quantities of MDMA and cocaine. The offender was arrested on 16 August 2019 before a fourth, larger transaction could be completed.

The prosecution and defence agreed to "roll up" the various drug quantities into two charges: supply of a prohibited drug in a commercial quantity of MDMA, and supply of a prohibited drug in a commercial quantity of cocaine, under s 25(2) of the Drug (Misuse and Trafficking) Act 1985. The offender pleaded guilty in the Local Court and was entitled to a 25% reduction in sentence for the utilitarian value of that early plea.

  • What aggregate sentence was appropriate for two rolled-up commercial drug supply offences under s 25(2) of the Drug (Misuse and Trafficking) Act 1985?
  • How should Form 1 matters be taken into account in formulating the sentence?
  • What weight should be given to the use of an undercover operative, particularly the absence of actual harm to individual drug users?
  • Whether the offender's youth, background, drug dependency, early plea, and prospects for rehabilitation warranted a finding of special circumstances and moderation of the standard non-parole period.
  • Whether specific deterrence had already been achieved by time served on remand.

Decision

Haesler SC DCJ sentenced the offender for two rolled-up commercial drug supply offences covering four transactions. The total MDMA supplied or agreed to be supplied was 293.7 grams, and the total cocaine was 391 grams. His Honour noted that while the actual cocaine supplied in isolation fell below the commercial quantity threshold, the agreed supply transactions could properly be rolled up and taken into account together.

The court applied the standard sentencing methodology, declining to simply deduct from the maximum penalty or standard non-parole period. Instead, the court assessed all relevant factors together, including the objective seriousness of the offences, the Form 1 matters, and the offender's subjective circumstances. The Form 1 matters warranted a heavier sentence, with greater emphasis placed on community protection and specific deterrence, consistent with the Court of Criminal Appeal's direction in Abas, Bodiotis, Taleb and Amoun v R and the guideline judgment in Attorney General's Application No. 1.

On the use of an undercover operative, the court accepted the defence submission drawn from DW v R that where drugs are secured by an undercover operative rather than distributed to individual users, the usual aggravating feature of harm to individual users is not present. This was weighed against the prosecution's submission that the offender did not know the recipient was a police operative and acted on the expectation that the drugs would reach actual users.

The court found that, given the offender's youth, his difficult childhood marked by domestic violence and trauma, his status as a drug user rather than a profit-driven principal, his early guilty plea, his strong family support, demonstrated rehabilitation in custody, and a credible release plan, special circumstances existed. These justified a reduction in the non-parole period below the statutory norm. His Honour also found that specific deterrence had been met by the time already served on remand, though community protection continued to require a sentence involving further custody. Drug addiction and gambling problems were expressly noted as incapable of mitigating the penalty, consistent with established principle.

Orders Made

  • The offender was convicted on both counts.
  • Count 1 (commercial supply of MDMA, taking into account Form 1 matters): sentence of 3 years and 4 months, with a non-parole period of 1 year and 10 months.
  • Count 2 (commercial supply of cocaine, taking into account Form 1 matters): sentence of 2 years and 7 months, with a non-parole period of 1 year and 5 months.
  • Aggregate sentence of 3 years and 9 months, with an aggregate non-parole period of 2 years, commencing 16 August 2019.
  • The offender became eligible for consideration for release to parole on 15 August 2021, subject to supervision for the entirety of the parole period.
  • Backup charges were withdrawn and dismissed; remaining related matters placed on Form 1.
  • A drug destruction order was made.
  • By consent, $1,170.00 was forfeited to the State pursuant to s 18(1) of the Confiscation of Proceeds of Crime Act 1989.

Key Takeaways

  • The District Court confirmed that drug addiction and associated gambling addiction cannot mitigate the penalty for serious drug supply offences, as a matter of established principle.
  • Where an undercover operative receives the drugs and prevents their distribution to individual users, the usual aggravating feature of harm to individual users may carry reduced weight in sentencing, consistent with DW v R [2012] NSWCCA 66.
  • Under the rolled-up offence approach, agreed supply transactions can be combined to reach the commercial quantity threshold, even where individual transactions may not independently satisfy that threshold.
  • A finding of special circumstances, warranting a departure from the standard non-parole period, remains available where youth, rehabilitation prospects, and a credible post-release plan are established, notwithstanding the seriousness of the offences.
  • The Court of Criminal Appeal's direction in Abas, Bodiotis, Taleb and Amoun v R requires that Form 1 matters result in a heavier sentence, with greater emphasis on community protection and specific deterrence.

Legislation and Cases Referenced

Legislation:
- Drug (Misuse and Trafficking) Act 1985 (NSW), s 25(2)
- Criminal Procedure Act 1986 (NSW) (Form 1 provisions)
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 18(1)

Cases:
- Attorney General's Application No. 1 (2002) 56 NSWLR 146 (guideline judgment on standard non-parole periods)
- Abas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 (Form 1 matters and community protection emphasis)
- DW v R [2012] NSWCCA 66 (reduced weight of harm to individual users where undercover operative used)