AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 16 December 2020

R v Fletcher

[2020] NSWDC 928

Drugs
CRIME

Citation: R v Fletcher [2020] NSWDC 928
Court: District Court of New South Wales
Date: 16 December 2020
Judge: Neilson DCJ

Background

The offender, a 40-year-old woman, operated a small drug-supply enterprise from mid-2019 into early 2020, selling methylamphetamine and gamma butyrolactone (GBL) to acquaintances and fellow drug users in the Sydney area. Police conducted a covert telephone interception operation throughout that period, capturing coded communications about the supply of both drugs.

She was originally charged with 39 offences but ultimately pleaded guilty to 20: eight counts of supplying a small amount of a prohibited drug, eight counts of supplying a trafficable quantity, two deemed supply counts (arising from drugs found during a search warrant execution), and two counts of dealing with proceeds of crime totalling approximately $20,940. Several offences were committed while she was already subject to Community Corrections Orders (CCOs) imposed by the Local Court in November 2019.

After her arrest in January 2020, the offender was diagnosed with breast cancer. She underwent surgery, radiotherapy, and chemotherapy while in custody, circumstances the court treated as significantly onerous conditions of incarceration.

  • Whether the existing CCOs should be revoked for breach, and what sentence should be imposed in lieu
  • Whether the District Court could sentence the offender on a charge certificate rather than on court attendance notices or an indictment, and whether it could amend those notices after committal
  • What head sentence and non-parole period were appropriate across the 20 offences, taking into account the offender's personal circumstances, her role in the offending, and the onerous conditions of her incarceration
  • Whether special circumstances existed under the Crimes (Sentencing Procedure) Act 1999 (NSW) justifying a non-parole period shorter than the statutory default of half the head sentence

Decision

CCO breach and call-up. Neilson DCJ revoked the CCOs imposed by the Local Court on 18 November 2019, finding that the offender had clearly breached them by committing further offences. In lieu of the CCOs, the court sentenced the offender to three months' imprisonment in respect of each Local Court offence, commencing from her date of arrest on 10 January 2020.

Procedural issue: charge certificates versus court attendance notices. The court rejected the Crown's submission that sentencing could proceed on a charge certificate alone. Neilson DCJ took the view that the court can only sentence on court attendance notices or indictments, and directed the Crown to file amended court attendance notices reflecting the correct drug identities and quantities. The judge noted that colleagues had encountered the same issue and shared the same view. His Honour further held that the District Court could, on a nunc pro tunc basis, do what the Local Court should have done: amend the notices to conform to the charge certificate.

Sentencing for the 20 supply offences. The court characterised the offender as a relatively small-scale principal who sold to people within her social circle, many of whom were themselves drug users. Her personal history, including the circumstances by which she came to be a regular drug user, was treated as extenuating. The court found that the conditions of her incarceration were significantly onerous because of her cancer diagnosis and treatment in custody. Neilson DCJ imposed a head sentence of three years, commencing 10 February 2020.

Special circumstances. The court found special circumstances arising from the onerous conditions of incarceration, justifying a non-parole period of one year and six months rather than the standard minimum of half the head sentence. That non-parole period expired on 9 August 2021, leaving a balance of sentence of a further 18 months.

Orders Made

  • The CCOs imposed on 18 November 2019 were revoked; the offender was sentenced to three months' imprisonment on each Local Court offence commencing 10 January 2020.
  • On each of the 20 District Court charges: conviction recorded and imprisonment imposed, with a non-parole period of one year and six months commencing 10 February 2020 and expiring 9 August 2021, and a balance of sentence of a further one year and six months expiring 9 February 2023 (total head sentence: three years).
  • Special circumstances found; the offender eligible for parole consideration at the expiration of the non-parole period.
  • Convictions recorded on sequences 28, 31, 32 and 33 with no further penalty imposed.
  • Sequences 36, 37 and 39 (back-up charges) withdrawn and dismissed.
  • Drugs ordered destroyed.
  • By consent, pursuant to s 18(1) of the Confiscation Proceeds of Crime Act 1989 (NSW): $9,940 in banknotes found on 16 July 2019 forfeited to the Crown; approximately $11,000 found on 10 January 2020 forfeited to the Crown; both sums ordered disposed of forthwith under s 19(3)(A).

Key Takeaways

  • The District Court confirmed that sentencing must proceed on court attendance notices or an indictment, not on a charge certificate alone. Where notices contain errors, the appropriate course is to amend them to conform to the charge certificate.
  • A nunc pro tunc amendment to court attendance notices was available in the District Court to correct what the Local Court should have done before committal, though the judgment notes that at least one judicial colleague took a contrary view on that question.
  • Onerous conditions of incarceration, such as undergoing cancer surgery, radiotherapy, and chemotherapy while in custody, can constitute special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW), justifying a reduced non-parole period.
  • Where an offender commits further offences while subject to a CCO, revocation of that order and re-sentencing on the underlying offences is the standard consequence, consistent with DPP v Cooke, R v Dinh, and Siemek v R.
  • Extenuating personal circumstances explaining how an offender became a drug user, combined with a relatively limited role as a small-scale principal supplying within a social network, were relevant factors in calibrating the overall sentence, though they did not displace the need for a custodial term across 20 drug-supply offences.

Legislation and Cases Referenced

Legislation:
- Crimes (Administration of Sentences) Act 1999 (NSW), s 107C
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Confiscation Proceeds of Crime Act 1989 (NSW), ss 18(1), 18(3), 19(3)(A)

Cases:
- DPP v Cooke [2007] NSWCA 2
- R v Dinh [2010] NSWCCA 74
- Siemek v R [2017] NSWCCA 18
- Young v Regina [2007] NSWCCA 14