AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
District Court 12 October 2020

R v Arcella

[2020] NSWDC 833

Drugs
CRIME COMMERCIAL SUPPLY OF CANNABIS PROCEEDS OF CRIME ORDER

Citation: R v Arcella [2020] NSWDC 833
Court: District Court of New South Wales
Date: 12 October 2020
Judge(s): Haesler SC DCJ

Background

The offender was a customer of a cannabis supplier named Despotovski, whom Haesler SC DCJ had sentenced earlier in 2020. Following a jury trial at the Wollongong District Court, the offender was found guilty of supplying cannabis leaf in not less than the commercial quantity, contrary to the Drug (Misuse and Trafficking) Act 1985. The principal question at trial had been whether he was buying cannabis in small amounts for personal use or purchasing it in pound bags to sell to others further down the supply chain.

Police executed a search of the offender's home in December 2018 and found 376 grams of cannabis, scales, bongs, and $750 in fifty-dollar notes. Lawfully intercepted telephone conversations between the offender and Despotovski between August and October 2018 were central to the Crown case, interpreted at trial with the assistance of a police expert on drug codes.

The offender pleaded not guilty to all charges. At sentencing, a factual dispute arose concerning three of the ten alleged transactions, requiring the court to make independent findings of fact for sentencing purposes.

  • What quantity of cannabis could properly be established for sentencing purposes, given the dispute over three of the ten alleged transactions?
  • Whether the offender was guilty of the related charge of possessing cannabis found at his home, and whether it was intended for supply.
  • Whether the $750 in cash constituted proceeds of crime.
  • What sentence was appropriate, having regard to the offender's role, subjective circumstances, lack of a guilty plea, and the impact on his family?
  • Whether special circumstances existed to justify a variation from the standard non-parole period ratio.

Decision

Quantity for sentencing. Haesler SC DCJ reviewed the intercepted conversations independently and accepted the Crown's position on eight of the ten transactions. Two of the three disputed transactions (12 September and 23 October 2018) were found to be suspicious but could not be established beyond reasonable doubt as involving the supply of cannabis in any determinable quantity. The third disputed transaction (17 October 2018) was accepted as fitting the established pattern. The court sentenced on the basis of approximately 31 kilograms of cannabis supplied across eight transactions.

Related offences. On the charge of supplying the cannabis found at the premises in December 2018, the court could not be satisfied beyond reasonable doubt that the cannabis was intended for supply, given the presence of bongs and cannabis prepared for smoking. The offender was acquitted of that charge but convicted of simple possession. Given uncertainty about the cannabis's origin and the broader sentencing context, the court found it inexpedient to impose any further punishment for possession, recording only a conviction under section 10A of the Crimes (Sentencing Procedure) Act 1999. On the proceeds of crime charge, the court found beyond reasonable doubt that the $750 in cash derived from the offender's drug supply profits, given the absence of any other income source, and convicted him accordingly.

Sentence for the principal offence. The court acknowledged that the offender was a long-term cannabis user, that family stresses, including trauma affecting his daughter and his partner's depression and anxiety, had contributed to his offending, and that he was the principal carer for his family. However, the commercial nature of the offending, the quantity involved, the number of transactions, and the absence of a guilty plea meant a full-time custodial sentence was unavoidable. The court noted that the offender was not entitled to a discount for remorse or an early plea, though he was not to be punished for exercising his right to trial. The impact of incarceration on his family, while not exceptional, was taken into account in formulating the overall sentence.

Special circumstances. The court found special circumstances justified a variation from the standard non-parole period ratio, noting it was the offender's first time in custody, that COVID-19 pandemic restrictions would limit his access to recommended programs, and that he appeared to be making a break from his drug-using associates.

Orders Made

  • Possess prohibited drug (Sequence 2): Conviction recorded; proceedings disposed of under section 10A of the Crimes (Sentencing Procedure) Act 1999. No further punishment imposed.
  • Deal with proceeds of crime: Three months' imprisonment, concurrent with the principal sentence, commencing 12 October 2020.
  • Commercial supply of cannabis (principal offence): Three years' imprisonment.
  • Non-parole period: One year and nine months, commencing 12 October 2020; eligible for release to parole on 11 July 2022.
  • Balance of term: One year and three months, commencing 12 July 2022 and expiring 11 October 2023.
  • Drug destruction order made.
  • Proceeds of crime order for $750 made.

Key Takeaways

  • Where a factual dispute arises at sentencing over individual transactions forming part of a rolled-up charge, the sentencing court must make its own independent assessment of the evidence and can only sentence on the basis of transactions established beyond reasonable doubt.
  • A finding that an offender is both a user and a commercial supplier of cannabis does not reduce the seriousness of commercial supply; the District Court confirmed that a custodial sentence must be seriously considered where the supply has a commercial character, regardless of the offender's personal drug use.
  • Possession of cash is capable of supporting a conviction for dealing with proceeds of crime where there is no other reasonable explanation for the offender's financial position, even in the absence of direct evidence tracing the specific notes to drug transactions.
  • Under section 10A of the Crimes (Sentencing Procedure) Act 1999, a court may record a conviction for a lesser offence without imposing further punishment where, in the overall sentencing context, additional punishment would be inexpedient.
  • Family hardship, including the loss of a principal caregiver, is a recognised mitigating consideration in sentencing but will not ordinarily prevent a custodial sentence for serious commercial drug supply; the court described the circumstances as "unfortunately tragic but not exceptional."

Legislation and Cases Referenced

Legislation:
- Drug (Misuse and Trafficking) Act 1985 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including section 10A
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), including section 166

Cases:
- R v Despotovski [2020] NSWDC 110