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District Court 24 June 2020

R v Highley

[2020] NSWDC 655

Drugs
CRIME SENTENCE BREACH OF CONDITIONAL LIBERTY DISADVANTAGED UPBRINGING TOTALITY OF CRIMINALITY PURPOSES OF SENTENCING

Citation: R v Highley [2020] NSWDC 655
Court: District Court of New South Wales
Date: 24 June 2020
Judge(s): Norrish QC DCJ

Background

The offender, Paul Anthony Highley, appeared for sentence on three principal drug supply offences committed in early to mid-2019. The offences involved the supply of methylamphetamine on multiple occasions across two separate periods of ongoing supply, as well as a standalone supply of 26.3 grams of methylamphetamine in June 2019. Several related matters, including further drug supply and possession offences, were listed on a Form 1 to be taken into account on sentence.

The offender had been arrested on 25 June 2019 and had remained in custody since that date. He had also been separately sentenced in the Local Court for associated driving and drug possession matters, with that sentence confirmed on appeal to the District Court. Those Local Court matters created a complication for the sentencing exercise, as the offender was already serving a short term when these more serious charges came before the District Court.

The offender pleaded guilty at the first reasonable opportunity and was entitled to a 25% discount on the otherwise appropriate sentences. His background included a disadvantaged upbringing, a prior criminal history involving violence rather than drug supply, and a breach of conditional liberty at the time of the offending.

  • What aggregate sentence and non-parole period was appropriate for three principal drug supply offences, including two ongoing supply charges under s 25A of the Drug Misuse and Trafficking Act 1985?
  • How should the District Court treat the prior Local Court sentence, which had already commenced, when fixing the start date for the new aggregate sentence?
  • What weight should be given to the 25% guilty plea discount, the offender's personal circumstances, and the principle of totality?
  • Whether special circumstances existed to justify a non-parole period departing from the standard ratio.

Decision

Norrish QC DCJ fixed an aggregate sentence of three years and nine months imprisonment, with a non-parole period of two years and three months. The judge expressed considerable difficulty with the Local Court sentence: eight months imprisonment with a one-month non-parole period had been imposed for a dangerous driving offence committed months before the drug supply conduct, at a time when the offender was already in custody awaiting sentencing on the more serious matters. The judge observed, with deference to the lower court, that this structure made little practical sense.

To resolve the complication, his Honour fixed the commencement date of the aggregate sentence at 25 July 2019, one month after the offender entered custody. This had the practical effect of making the new sentence accumulative upon the effective non-parole period fixed by the Magistrate, while also ensuring the offender received credit for time served.

The judge applied the principles from R v Smiroldo [2000] NSWCCA 120 in assessing the ongoing supply charges, noting the drug quantities involved exceeded the trafficable quantity (3 grams) and in some cases the indictable quantity (5 grams) for methylamphetamine, though falling well short of the commercial quantity of 250 grams. The Form 1 matters, which included further supplies and possession at arrest, were taken into account in relation to the second ongoing supply offence and attracted increased weight in respect of retribution and deterrence.

Personal circumstances, including the offender's disadvantaged upbringing (consistent with the principles in Bugmy v R), genuine remorse, and the guilty plea, were reflected in the sentencing. The judge noted the offender's prior history was for violence rather than drug supply, and acknowledged the breach of conditional liberty as an aggravating factor. Special circumstances were found to exist, resulting in a non-parole period slightly longer in its ratio to the head sentence than would otherwise apply, to allow for adequate supervision and rehabilitation on release.

Orders Made

  • Aggregate sentence of 3 years and 9 months imprisonment, commencing 25 July 2019 and expiring 24 April 2023.
  • Non-parole period of 2 years and 3 months, commencing 25 July 2019 and expiring 24 October 2021, with a parole balance of 1 year and 6 months.
  • Indicative sentences (after 25% guilty plea discount):
  • Sequence 1 (ongoing supply, Feb to Mar 2019): 18 months imprisonment
  • Sequence 4 (ongoing supply, Apr to May 2019, taking into account Form 1 matters): 3 years imprisonment
  • Sequence 5 (supply 26.3g methylamphetamine, 4 June 2019): 12 months imprisonment, with considerable concurrency noted
  • Forfeiture of three mobile phones, pursuant to s 18(1) of the Confiscation of Proceeds of Crime Act 1989.
  • Offender ordered to pay the State of New South Wales $3,400 pursuant to s 29(1) of that Act.

Key Takeaways

  • Where a Local Court sentence has already commenced and creates an anomalous interaction with a later, more serious sentence in the District Court, the sentencing judge has discretion to fix a commencement date that avoids double punishment and gives proper credit for time served, even if the approach requires detailed justification.

  • An aggregate sentencing approach under s 53A of the Crimes (Sentencing Procedure) Act 1999 permits indicative sentences to be set for individual offences while the overall criminality is assessed holistically, consistent with the totality principle.

  • Under the ongoing supply provision in s 25A of the Drug Misuse and Trafficking Act 1985, sentencing courts are guided by R v Smiroldo as to the legislative purpose and general principles, with the quantity of individual supplies and the period of conduct both relevant to objective seriousness.

  • Form 1 matters, when taken into account, may warrant greater emphasis on retribution and deterrence in fixing the sentence for the principal offence to which they are attached.

  • A disadvantaged upbringing, consistently with Bugmy v R, remains a relevant mitigating consideration in drug supply sentencing, even where the offending is serious and the offender was in breach of conditional liberty at the time.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D, 53A
- Confiscation of Proceeds of Crime Act 1989 (NSW), ss 18(1), 29(1)
- Drug Court Act (NSW)

Cases
- Bugmy v R [2013] HCA 37
- R v Smiroldo [2000] NSWCCA 120
- Dang v R [2013] NSWCCA 246
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Holder v R (1983) 3 NSWLR 346
- Johnson v R [2004] HCA 15
- MacDonnell v R (2002) 128 A Crim R 34
- Mill v R (1988) 166 CLR 59
- Munda v Western Australia [2013] HCA 38
- Parente v R [2017] NSWCCA 284
- Pearce v R (1998) 194 CLR 610
- R v Engert (1995) 84 A Crim R 67
- R v Israil [2002] NSWCCA 255
- R v Letteri (unreported, NSWCCA, 18 March 1992)
- R v Scognamiglio (1991) 56 A Crim R 81
- R v XX (2009) 195 A Crim R 38