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Local Court 18 March 2020

DPP v Mikulic

[2020] NSWLC 1

Drugs
SENTENCING PARTICULAR OFFENCES SUPPLY PROHIBITED DRUG GUILTY PLEA PRIOR TO COMMITTAL MID RANGE OBJECTIVE SERIOUSNESS

Citation: DPP v Mikulic [2020] NSWLC 1
Court: NSW Local Court (Downing Centre)
Date: 18 March 2020
Judge: Judge G Henson AM, Chief Magistrate

Background

The defendant appeared for sentencing on two counts of supply prohibited drug under section 25 of the Drug Misuse and Trafficking Act 1985 (DMT Act). A further charge of possessing a prohibited drug (a cannabis plant) was placed on a Form 1, meaning the Court was required to take it into account when passing sentence without recording a separate conviction for it.

The first supply offence arose from a transaction on 14 February 2019, when the defendant supplied 14 grams of heroin to another person at a shopping centre. The second supply charge concerned 16 containers, each holding 50 Alprazolam tablets (a prohibited drug without a prescription), found during a police search of the defendant's home five days later. The packaging of those tablets, in identical quantities across 16 discrete containers, led the Court to infer an intention to sell them. A quantity of $23,000 in cash was also found during the search, but the Court declined to treat that as an aggravating factor, holding that the agreed facts on that point could be viewed only neutrally.

The defendant had a prior criminal history that included a 2010 District Court conviction for drug supply, for which he served a minimum of two years and six months imprisonment against a head sentence of four years and nine months. He was also a known drug addict.

  • What sentencing discount applied by reason of the early guilty plea entered during committal proceedings?
  • How did the defendant's prior criminal record bear on the appropriate sentence?
  • What was the objective seriousness of the offending?
  • Whether the circumstances justified a sentence other than full-time imprisonment, specifically an Intensive Corrections Order (ICO) with a home detention component.

Decision

Guilty plea discount. The proceedings were conducted within the Early Appropriate Guilty Plea framework. Section 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (CSP Act) mandated a 25% discount because the pleas were entered during the committal stage. The Chief Magistrate noted that this statutory discount differs in origin from the utilitarian discount recognised in R v Thomson and Houlten, but that the practical effect runs in parallel.

Objective seriousness. The Chief Magistrate assessed both supply offences as falling within the mid-range of objective seriousness. The 14 grams of heroin carried the potential for a lethal dose and for entrenching addiction, particularly given the agreed facts that the recipient intended to on-sell. The Alprazolam tablets, packaged in uniform quantities across multiple containers, supported a clear inference of intended distribution. The Court noted, however, that the volume of drugs supplied tempered (without eliminating) the assessment of moral culpability by limiting the potential scale of distribution.

Prior criminal record. The defendant's record, and specifically his prior drug supply conviction, operated as a statutory aggravating factor under section 21A(2)(d) of the CSP Act. Drawing on Veen v R (No 2) and Weininger v The Queen, the Chief Magistrate held that the prior record did not expose the defendant to punishment again for earlier offences, but did deprive him of leniency and elevated the weight given to punishment and community protection among the purposes of sentencing in section 3A of the CSP Act. Consistent with R v McNaughton, the prior record did not set the upper boundary of a proportionate sentence; that boundary remained anchored to the objective gravity of the current offending.

Intensive Corrections Order. The Chief Magistrate found that full-time imprisonment would ordinarily follow given the combination of objective seriousness and the prior record. However, several factors tilted the balance, if only barely, toward an ICO. These included the defendant's limited but genuine period of good conduct since arrest, successful participation in rehabilitation programmes, negative drug testing results, and the possible identification of previously undiagnosed psychological conditions. The Court characterised the decision as borderline, but concluded that adequate punishment and community protection could be achieved outside full-time custody, provided the order included a substantial home detention component of 10 months.

Orders Made

  • The defendant was convicted on each charge.
  • An aggregate sentence of 20 months imprisonment was imposed.
  • The sentence is to be served by way of an Intensive Corrections Order in the community for 20 months, with 10 months of that period served by way of home detention.
  • Standard conditions under section 73 of the CSP Act apply.
  • The defendant is subject to supervision by a Community Corrections officer for the duration of the order and must accept the supervision and direction of that officer.
  • The defendant must report to the Penrith office of Community Corrections within 7 days.
  • The defendant must abstain from prohibited drugs and any drug not lawfully prescribed.
  • The defendant must engage in drug rehabilitation programmes as directed by Community Corrections.
  • The defendant is subject to random urinalysis and other drug testing as directed by Community Corrections.

Key Takeaways

  • Under section 25D(2)(a) of the CSP Act, a guilty plea entered during committal proceedings within the Early Appropriate Guilty Plea framework attracts a mandatory 25% discount, distinct in origin from the utilitarian plea discount in Thomson and Houlten but with a comparable practical effect.
  • A prior conviction for the same category of offence does not permit a court to re-punish an offender for the earlier matter; it instead deprives the offender of leniency and shifts greater sentencing weight toward punishment and community protection, consistent with Veen v R (No 2) and Weininger v The Queen.
  • Consistent with R v McNaughton, prior criminal record does not set the ceiling of a proportionate sentence. Proportionality remains anchored to the objective circumstances of the current offending.
  • An ICO (including a home detention component) remained available on facts of mid-range objective seriousness combined with a relevant prior record, but only where post-offence conduct, participation in rehabilitation, and other personal circumstances collectively justified a conclusion that community protection and adequate punishment could be achieved outside full-time custody.
  • The packaging of a prohibited drug in multiple containers of identical quantity was treated as supporting an inference of intended supply, even in the absence of a direct admission, reinforcing that circumstantial evidence of distribution can ground a supply finding.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25, Sch 1
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A(2)(d), 25D(2)(a), 73
- Criminal Procedure Act 1986 (NSW), Part 2 of Chapter 3 (Early Appropriate Guilty Plea framework)

Cases
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Imbornone v R [2017] NSWCCA 144
- Parente v R [2017] NSWCCA 284
- R v Fangaloka [2019] NSWCCA 173
- R v Henry (1999) 46 NSWLR 346
- R v McNaughton (2006) 66 NSWLR 566
- R v Thomson and Houlten (2000) 115 A Crim R 104; [2000] NSWCCA 309
- R v Zamagias [2002] NSWCCA 17
- Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14
- Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
- Zwam v R [2017] NSWCCA 127