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District Court 20 February 2020

R v Baric

[2020] NSWDC 949

Drugs

Citation: R v Baric [2020] NSWDC 949
Court: District Court of New South Wales
Date: 20 February 2020
Judge: Tupman DCJ

Background

The offender, a 24-year-old man with no prior criminal history, came before the District Court for sentence after pleading guilty in the Local Court to two drug supply offences. Between February and March 2019, he supplied 2.077 kilograms of methylamphetamine and 270.4 grams of heroin to an undercover police operative as part of a NSW Police strike force controlled operation. He received $141,000 in exchange across multiple transactions and provided the operative with an encrypted mobile device to facilitate arrangements.

The offending occurred over approximately one month and involved six separate supplies of methylamphetamine (constituting a rolled-up charge), one supply of heroin, and an offer to supply a further 700 grams of heroin. The offender also asked the Court to take into account four additional offences on a Form 1, including a further heroin supply, possession of cocaine, a deemed supply of Alprazolam, and dealing with the proceeds of crime.

The offender had a co-offender, Justin Na, who had already been sentenced by the same judge in November 2019. The two matters were not heard together, which generated significant comment from the Court.

  • What aggregate sentence and non-parole period were appropriate for two substantive large commercial drug supply offences, taking into account four Form 1 offences?
  • What discount applied for early guilty pleas entered in the Local Court?
  • Whether a finding of special circumstances was warranted, justifying a departure from the standard ratio between the non-parole period and the total sentence?
  • What the offender's role and degree of objective seriousness were, in circumstances where a co-offender had been sentenced separately on partially different facts?

Decision

Tupman DCJ assessed the objective seriousness of the methylamphetamine supply offence as sitting at the top of the bottom range. The quantity was well in excess of the large commercial threshold of 500 grams, the purity was relatively high (between 70.5% and 77.5% on the first occasion), and the offender provided encrypted communications equipment, demonstrating planning and organisation. The offender was not at the top of the drug supply hierarchy but played a significant role.

A 25% discount was applied to all sentences to reflect the utilitarian value of early guilty pleas entered in the Local Court, a position agreed by both the prosecution and defence.

The Court found special circumstances existed, warranting a longer parole period than would otherwise apply. The offender's young age and lack of prior convictions were relevant to his prospects of rehabilitation.

The Court set indicative sentences of 7.5 years (non-parole period 4.5 years) for the methylamphetamine supply and 3 years (non-parole period 2 years) for the offer to supply heroin. Noting that a straight aggregation of those figures would produce a result the Court considered somewhat excessive, an aggregate sentence of 8 years with a 5-year non-parole period was imposed.

Orders Made

  • Aggregate sentence of 8 years imprisonment imposed under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), commencing 7 March 2019 and expiring 6 March 2027.
  • Aggregate non-parole period of 5 years, commencing 7 March 2019 and expiring 6 March 2024, with a parole period of 3 years thereafter expiring 6 March 2027.
  • Four Form 1 offences taken into account when sentencing on sequence 9.
  • Indicative sentence for sequence 9 (methylamphetamine supply): 7.5 years with a 4.5-year non-parole period.
  • Indicative sentence for sequence 15 (offer to supply heroin): 3 years with a 2-year non-parole period.
  • $3,480 forfeited to the State by consent; all other forfeited property ordered to be disposed of forthwith.

Key Takeaways

  • The District Court assessed objective seriousness for a large commercial methylamphetamine supply at the top of the bottom range, where the quantity substantially exceeded the large commercial threshold, purity was relatively high, and the offender demonstrated deliberate operational planning, including the use of encrypted communications.
  • An early guilty plea in the Local Court, followed by committal for sentence, attracted a 25% discount as reflecting genuine utilitarian value, consistent with the approach under the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Where co-offenders are sentenced separately and one gives evidence at their own sentencing hearing, a later sentencing court cannot rely on that untested evidence when assessing the role or objective seriousness of the other offender's conduct, as the evidence cannot be tested by cross-examination on the other offender's behalf.
  • Tupman DCJ issued a strong administrative direction that co-offenders should be sentenced by the same judge and, wherever possible, at the same time, identifying failures by prosecution representatives in both the Local Court and District Court to ensure the matters were listed together.
  • A finding of special circumstances can reduce the proportion of a sentence served before parole eligibility, with youth and the absence of prior convictions being relevant factors bearing on rehabilitation prospects.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 53A

Cases:
No specific cases were cited in the portions of the judgment provided. The judgment refers generally to dicta of the Court of Criminal Appeal regarding the sentencing of co-offenders together and by the same judge, but no individual decisions are named in the available text.