Citation: R v Raccosta [2020] NSWDC 702
Court: District Court of New South Wales
Date: 25 March 2020
Judge(s): Sutherland SC DCJ
Background
The offender, an Italian national who had entered Australia on a work visa, was found by undercover police to have been supplying MDMA (also known as ecstasy) from his room at a backpacker hostel in Potts Point. Over the course of approximately six days in May 2019, he made three separate sales of MDMA to three female undercover operatives, earning around $400 in total. Those three transactions formed the basis of a charge of ongoing supply under the Drug Misuse and Trafficking Act 1985.
On arrest, the offender was found with 50 small packets of MDMA concealed in his clothing, which he admitted he intended to sell at a nearby hotel at $20 per packet. A subsequent search of his hostel room revealed approximately 50 grams of MDMA (in a block from which he had already supplied one gram to the operatives) plus a further 4.99 grams in a separate bag. The total MDMA in his possession for the purpose of supply was 59.39 grams, representing roughly half the commercial quantity threshold under the legislation. A small amount of cocaine and $565 in cash (proceeds of drug sales) were also seized.
The offender pleaded guilty to ongoing supply of a prohibited drug, deemed supply arising from his possession of 59.39 grams of MDMA, and two further offences placed on a Form 1 (dealing with proceeds of crime and possession of cocaine).
Legal Issues
- What was the appropriate objective seriousness of the ongoing supply and deemed supply offences, having regard to the quantities involved and the circumstances of the offending?
- How should the court approach the fact that the offender, as a non-citizen, was likely to be deported upon release?
- Whether special circumstances existed justifying an adjustment to the statutory ratio between the non-parole period and the balance of the sentence.
- How should the Form 1 offences (proceeds of crime and cocaine possession) be reflected in the sentence?
Decision
Sutherland SC DCJ found the ongoing supply offence to be of moderate objective seriousness. The offending was commercial in nature, though the quantities involved and the street-level character of the transactions placed it below the upper range. The quantity of 59.39 grams of MDMA (roughly 47 times the indictable quantity but approximately half the commercial quantity) was a significant feature of the deemed supply charge, and the court noted an error in the Crown's written submissions that had understated the quantity relative to the indictable threshold.
The judge acknowledged the strong body of authority that likelihood of deportation does not reduce the seriousness of an offence, but recognised it as a relevant circumstance in that it increases the practical burden of imprisonment. An overseas offender is typically separated from family support networks and faces greater uncertainty about their future. Those factors bore on the court's assessment of special circumstances, which warranted some adjustment to the standard sentencing ratio.
The court also accepted that the offender was unlikely to reoffend upon release, given his genuine remorse, early guilty pleas, cooperation with authorities, and the evident personal and family hardship his imprisonment was causing. His father in Italy was gravely ill and undergoing serious medical treatment, a circumstance the court acknowledged with evident sympathy. A discount was applied for the utilitarian value of the guilty pleas and the offender's prospects of rehabilitation.
Taking all matters into account, the court imposed a sentence for the ongoing supply offence as the principal offence, with the deemed supply offence attracting a concurrent sentence. The sentences were structured to reflect both the seriousness of the drug trafficking and the special circumstances arising from the offender's situation as a foreign national facing deportation.
Orders Made
- For the ongoing supply offence (s 25A(1), Drug Misuse and Trafficking Act 1985): sentenced to imprisonment with a non-parole period (minimum term) commencing 31 May 2019 and expiring 30 May 2021, and an additional term expiring 30 May 2022.
- For the deemed supply offence (s 25(1), Drug Misuse and Trafficking Act 1985): concurrent sentence imposed.
- Form 1 offences (dealing with proceeds of crime and cocaine possession) taken into account in determining sentence for the ongoing supply charge.
- Forfeiture order made in respect of $565 in cash.
- Order made for destruction of seized drugs.
Key Takeaways
- The District Court confirmed that the prospect of deportation does not mitigate the seriousness of a drug offence, but remains relevant to the conditions of imprisonment and the weight to be given to special circumstances in structuring a sentence.
- Where an offender is a foreign national with no support network in Australia, the hardship of incarceration is generally greater than for a local offender, a factor that courts may reflect in the additional term.
- Under s 25A(1) of the Drug Misuse and Trafficking Act 1985, three separate acts of supply within 30 days can constitute ongoing supply, carrying a maximum of 20 years imprisonment.
- Accurate characterisation of drug quantities relative to legislative thresholds (trafficable, indictable, commercial) is important: the court here corrected a significant error in the Crown's own submissions that had substantially understated the quantity relative to the indictable threshold.
- Early guilty pleas, genuine remorse, and limited prospects of reoffending remain significant mitigating factors in drug supply sentencing, capable of producing a meaningful reduction from the starting point.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- Dang v R [2013] NSWCCA 246
- Hanna v The Environmental Protection Authority [2019] NSWCCA 299
- Jung v R [2017] NSWCCA 24
- Kwon v R [2011] NSWCCA 58
- Parente v R [2017] NSWCCA 284; (2017) 96 NSWLR 63
- R v Chi Sun Tsui (1985) 1 NSWLR 308
- The Queen v Olbrich (1999) 199 CLR 270