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District Court 16 October 2020

R v Simonovski

[2020] NSWDC 848

Drugs
CRIME — DRUG OFFENCES ONGOING SUPPLY OF DRUGS INDICTABLE QUANTITY LESS THAN COMMERCIAL QUANTITY

Citation: R v Simonovski [2020] NSWDC 848
Court: District Court of New South Wales
Date: 16 October 2020
Judge: R. J. Weber SC DCJ

Background

The offender was found guilty by jury of deemed supply of methylamphetamine in an amount less than a commercial quantity, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum of 15 years' imprisonment and no standard non-parole period. The jury found her guilty on the basis of joint possession for the purpose of supply with a co-accused, Luke Trott.

The facts arose from police attendance at serviced apartments in Alexandria on 17 May 2019. Police, responding to an unrelated trespass complaint, discovered the offender in a room she had pre-booked. A subsequent search of the bathroom ceiling cavity uncovered 90.9 grams of methylamphetamine of high purity (75.5 to 76.5%), along with packaging materials. The offender's fingerprints were found on the container housing the drugs, on a phone box containing small resealable bags, and on electronic scales beside the bed. A further quantity of methylamphetamine was found in the offender's car.

The offender also asked the court to deal with two back-up offences under s 166 of the Criminal Procedure Act 1984: possession of 0.15 grams of methylamphetamine (found in her pocket during the initial police encounter), and dealing with proceeds of crime totalling $1,069.25 found in the room.

  • What was the appropriate level of objective seriousness for the supply offence, having regard to the quantity, purity, and the offender's role?
  • What weight should be given to the offender's drug addiction, criminal history, and personal circumstances in mitigation?
  • How should the sentencing court approach the commencement date and pre-sentence custody, given that the offender was subject to four Intensive Correction Orders (ICOs) at the time of offending?
  • Whether the offender was entitled to a discount on the s 166 back-up offences in circumstances where no formal plea was entered but no active defence was mounted.

Decision

The court placed the primary offence at the midrange of objective seriousness. The quantity of drugs (90.9 grams) was significant but well below the 250-gram commercial quantity threshold. The high purity of the methylamphetamine and the presence of scales and packaging materials, indicating a degree of planning, were relevant aggravating features. However, the court accepted that the offender played a secondary role to Trott, and that her offending was motivated by the need to fund her own substantial methylamphetamine addiction, which reduced her moral culpability.

The court worked through a complex matrix of factors in determining the sentence start date and non-parole period. The offender had been subject to four ICOs at the time of the offending, and spent time in pre-sentence custody. The court applied the principle from Mill v The Queen regarding the relationship between pre-sentence custody and sentence commencement, and addressed the interaction between the new sentence and the existing ICOs. The court directed the sentence to commence on 24 June 2020.

On the back-up offences, the court accepted the offender's submission that a 25% discount was warranted, equivalent to an early guilty plea discount. Although no formal plea had been entered, the offender had made no active attempt to defend those charges, and the Crown did not oppose the discount. The court also made a confiscation order in respect of the proceeds of crime, which the offender did not oppose.

In arriving at the final sentences, the court applied the instinctive synthesis approach endorsed by McHugh J in Markarian v The Queen, weighing all aggravating and mitigating factors together rather than by a mathematical method.

Orders Made

  • Count 1 (deemed supply of methylamphetamine): 3 years' imprisonment, non-parole period of 2 years, commencing 24 June 2020, non-parole period expiring 23 June 2022, balance expiring 23 June 2023.
  • Sequence 2 (possession of 0.15g of methylamphetamine): 7 months' imprisonment, no non-parole period, commencing 24 June 2020, expiring 23 January 2021.
  • Sequence 4 (dealing with proceeds of crime, $1,069.25): 7 months' imprisonment, no non-parole period, commencing 24 June 2020, expiring 23 January 2021.
  • Confiscation order made in respect of the $1,069.25 the subject of the proceeds of crime offence.

Key Takeaways

  • A secondary role in a joint drug supply operation, and offending motivated by personal addiction, can reduce an offender's moral culpability, though both factors must be weighed against the objective seriousness of the offence.
  • Under the Drug Misuse and Trafficking Act 1985, quantity is an important but not determinative factor in sentencing for supply offences; purity, planning, and the offender's actual role all carry independent weight.
  • A 25% plea discount may be available on back-up offences dealt with under s 166 of the Criminal Procedure Act 1984 even without a formal plea, where the offender has made no active attempt to contest those charges and the Crown does not oppose the concession.
  • The District Court applied Markarian's instinctive synthesis approach, declining to mechanically add or subtract from a starting figure and instead weighing all relevant factors together.
  • Where an offender is serving Intensive Correction Orders at the time of fresh offending, the sentencing court faces a particularly complex matrix in determining the appropriate commencement date and interaction with pre-sentence custody.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Criminal Procedure Act 1984 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(1)

Cases
- Markarian v The Queen (2005) 228 CLR 357
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- Postiglione v The Queen (1997) 189 CLR 295
- Choi v R [2007] NSWCCA 150
- Rafaieh v R [2018] NSWCCA 72
- R v Cahyadi [2007] 168 A Crim R 41
- R v Karageorge [1999] NSWCCA 213
- R v Van Ryn [2016] NSWCCA 1