Citation: R v Chartres-Abbott; R v Phillips; R v Mulholland [2020] NSWDC 703
Court: District Court of New South Wales
Date: 28 August 2020
Judge: Bright DCJ
Background
In November 2018, the Gosford Drug Unit launched Strikeforce Basic, an investigation into prohibited drug supply on the Central Coast. Using an undercover operative between March and May 2019, investigators made controlled drug purchases and analysed mobile phone data. The operation culminated in the execution of search warrants in May 2019 and the arrest of the three offenders.
The first offender (aged 65) was the up-line supplier of methylamphetamine and heroin, and was found with multiple shortened firearms and nearly $95,000 in cash. The second offender (aged 39) was his downstream distributor, who also sold three firearms to the undercover operative during the investigation period. The third offender (aged 54) had been living with the first offender as his former partner and played a significantly more limited role in the drug distribution.
All three offenders pleaded guilty at the Gosford Local Court in early 2020, and the District Court conducted joint sentencing proceedings to address the overlapping facts and ensure parity across the co-offenders.
Legal Issues
- What sentences were appropriate for each offender, having regard to the nature and extent of their individual roles in the drug supply and firearms offences?
- How should the court apply the parity principle when sentencing co-offenders with substantially different levels of culpability?
- Was an intensive correction order (a community-based custodial order) appropriate for the least culpable offender, given her limited role and personal circumstances?
- What discount applied to each offender's sentence in light of the timing of their guilty pleas?
Decision
Bright DCJ sentenced each offender separately, calibrating the outcomes to reflect the significant differences in culpability across the three. All three offenders received a 25% discount on sentence, reflecting the timing of their guilty pleas at the Local Court.
The first offender faced the most serious charges, including supply of more than a large commercial quantity of methylamphetamine (888.79 grams, carrying a maximum of life imprisonment and a standard non-parole period of 15 years), supply of more than the commercial quantity of heroin (368.8 grams) and methylamphetamine (372.63 grams), possession of multiple shortened firearms, and dealing with approximately $94,285 in proceeds of crime. His sentence also incorporated several Form 1 matters (additional offences taken into account without separate punishment, which allows a court to acknowledge them without imposing additional penalties). The full details of his aggregate sentence are not reproduced in the available text, but he had been in custody since 25 May 2019.
The second offender was sentenced to an aggregate term of 8 years imprisonment, dating from 27 September 2019 and expiring on 26 September 2027, with a non-parole period of 4 years and 10 months expiring on 26 July 2024. His charges included knowingly taking part in the supply of methylamphetamine (232.93 grams), directly supplying methylamphetamine (130.37 grams), and unlawfully selling firearms on three or more occasions within 12 months, the last of which carried a 10-year standard non-parole period.
The third offender received the most lenient outcome, consistent with her substantially lesser role. Her starting term of 2 years was discounted by 25% for her plea and further reduced by 196 days of pre-sentence custody, producing a remaining term of 11 months and 17 days. Bright DCJ ordered that term to be served by way of an intensive correction order in the community, concluding that community safety was best served by allowing her to access counselling and treatment rather than full-time imprisonment. The Court was satisfied, under s 17D(1) of the Crime (Sentencing Procedure) Act 1999, that sufficient information existed to make the order without a formal sentencing assessment report.
Orders Made
Third offender (Mulholland):
- Convicted of knowingly taking part in the supply of a prohibited drug (154.3 grams of methylamphetamine), with two further offences taken into account on a Form 1.
- Sentenced to imprisonment for 11 months and 17 days, dating from 28 August 2020 and expiring on 13 August 2021.
- Term ordered to be served by way of an intensive correction order under s 7 of the Crime (Sentencing Procedure) Act 1999.
- Standard conditions: must not commit any offences; must submit to supervision by a Community Corrections officer; must report to Wyong Community Corrections by telephone by 4 pm on 4 September 2020.
- Additional conditions: must attend a GP within two months for preparation of a mental health care plan; must participate in any program, treatment, intervention or related activity as directed by a Community Corrections officer for the duration of the order.
Note: The full orders for the first and second offenders are not reproduced in the text provided.
Key Takeaways
- The District Court applied the parity principle across three co-offenders by carefully differentiating sentence outcomes according to each offender's role, with the up-line supplier and the firearms seller receiving significantly heavier sentences than the peripheral co-habitant.
- A 25% plea discount was applied uniformly across all three offenders, reflecting that all entered their guilty pleas at a comparable stage in Local Court proceedings.
- Where an offender's culpability is materially lower and their personal circumstances support rehabilitation, an intensive correction order can be appropriate even for an offence involving a substantial quantity of methylamphetamine, provided the court is satisfied that community safety is not better served by full-time custody.
- Under s 17D(1) of the Crime (Sentencing Procedure) Act 1999, a court may impose an intensive correction order without a formal sentencing assessment report where sufficient information is otherwise before it.
- Form 1 matters (additional charges taken into account at sentence without imposing separate penalties) were used across all three offenders, allowing the court to reflect the full scope of the offending in the overall sentence without multiplying discrete terms.
Legislation and Cases Referenced
Legislation:
- Crime (Sentencing Procedure) Act 1999 (NSW), ss 7, 17D(1), 66
- Crimes Act 1900 (NSW), s 193C(2)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 25(2)
- Firearms Act 1996 (NSW), ss 36(1), 51B(1), 62(1)(b), 65(3)
Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1991, No 1 of 2002 (2002) 56 NSWLR 146
- Bugmy v R (2013) 249 CLR 571
- Cahyadi v R (2007) 168 A Crim R 41
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 205 A Crim R 1
- Imbornone v R [2017] NSWCCA 144
- Melikian v R [2008] NSWCCA 156
- R v Campbell; R v Smith [2019] NSWCCA 1
- Trurong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36