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District Court 18 August 2020

The Queen v Singh

[2020] NSWDC 665

Drugs
CRIME SENTENCE AFTER TRIAL TWO COUNTS OF SUPPLY PROHIBITED DRUG OFFENDER PROSPECTS OF REHABILITATION

Citation: The Queen v Singh [2020] NSWDC 665
Court: District Court of New South Wales
Date: 18 August 2020
Judge(s): Wilson SC DCJ

Background

The offender was found guilty by a jury on two counts of supplying heroin, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The first count related to the supply of 28 grams of heroin on 20 July 2017, and the second to the supply of 56 grams of heroin on 1 August 2017, both occurring in Belmore, Sydney.

Police had been investigating a co-offender, Timothy Newton, who was identified as a customer of the offender. Undercover operatives conducted controlled purchases of heroin, with the offender acting as Newton's up-line supplier. DNA evidence linked the offender to the packaging used in the first transaction, and the offender met directly with the undercover operative during the second.

Both offences were committed while the offender was on bail for a separate Commonwealth drug trafficking matter involving cocaine. Sentencing was delayed to allow the offender to pursue other legal proceedings and to seek bail for rehabilitation, an application that was ultimately unsuccessful after he absconded from a rehabilitation facility.

  • Whether the offences crossed the s 5 threshold under the Crimes (Sentencing Procedure) Act 1999 (NSW) requiring full-time imprisonment
  • Whether special circumstances existed justifying a longer than usual parole period
  • How the sentence should be structured having regard to the co-offender's sentence, totality, accumulation, and concurrency
  • What weight to give to the offender's prospects of rehabilitation as a subjective factor

Decision

His Honour Wilson SC DCJ determined that the s 5 threshold was clearly met: no sentence other than full-time imprisonment was appropriate given the nature and circumstances of the offending. The offences involved the commercial supply of significant quantities of heroin, the offender occupied a higher role in the supply chain than the co-offender Newton, and the conduct occurred while the offender was on bail for other drug offences.

The court found special circumstances existed, based on the offender's need for rehabilitation and the risk of institutionalisation arising from his prolonged period in custody. These factors justified a longer than usual period on parole relative to the non-parole period.

His Honour set indicative sentences of three years for the first count and four years for the second, before considering totality. The co-offender Newton had been sentenced by Zahra SC DCJ, and Wilson SC DCJ undertook a careful comparison to ensure no sense of grievance would arise, taking into account the differences between the two offenders' roles and circumstances. The sentence imposed on the offender was appropriately higher given his position as the up-line supplier.

An aggregate sentence was imposed. The non-parole period commenced on 20 February 2018, the date agreed between the parties as the commencement date, which coincided with the completion of the offender's Commonwealth sentence.

Orders Made

  • The offender was convicted of two counts of supplying a prohibited drug (heroin) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW)
  • An aggregate sentence was imposed with a non-parole period of 3 years, commencing 20 February 2018 and expiring 19 February 2021
  • Head sentence of 5 years, expiring 19 February 2023
  • The offender became eligible for parole on 19 February 2021

Key Takeaways

  • The District Court confirmed that where an offender occupies a higher role in a drug supply chain than a co-offender, that distinction must be carefully weighed when comparing sentences to avoid an unjustified sense of grievance between co-offenders.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW) can be established on the basis of both rehabilitation needs and the risk of institutionalisation flowing from a prolonged period of pre-sentence custody, justifying a longer than usual parole period.
  • Absconding from a court-approved rehabilitation facility remained a relevant background fact, though it did not preclude the court from recognising ongoing rehabilitation as a mitigating consideration.
  • Where multiple charges arise from related offending, a sentencing court must still fix an indicative sentence for each individual count before determining the appropriate aggregate sentence and resolving questions of accumulation, concurrency, and totality.
  • Offending committed while on bail for prior drug matters is a significant aggravating feature, and the court treated that circumstance as relevant to the overall assessment of objective seriousness.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 11
- Drug Misuse and Trafficking Act 1985 (NSW), s 25

Cases:
- Bugmy v The Queen [2013] HCA 37