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District Court 24 March 2021

R v Walton

[2021] NSWDC 121

Drugs
CRIME TWO DIFFERENT DRUGS FORM 1 MATTERS ROLE IN CRIMINAL GROUP PARITY SOLID PROSPECTS FOR REHABILITATION

Citation: R v Walton [2021] NSWDC 121
Court: District Court of New South Wales
Date: 24 March 2021
Judge(s): Haesler SC DCJ

Background

The offender, a first-time convict born in 1988, faced sentence for two serious drug offences committed between May and August 2019. He was charged with supplying a commercial quantity of cocaine (527.75 grams) and knowingly taking part in the supply of MDMA, both under the Drug (Misuse and Trafficking) Act 1985. He had been in custody since his arrest on 16 August 2019.

The offender operated as a mid-level participant in a criminal group. He received cocaine from a co-offender higher in the hierarchy, packaged it, and supplied it to others across ten transactions. He also stored MDMA on behalf of the same co-offender, in part to assist that person in avoiding detection.

The offender entered guilty pleas when the matter reached the District Court. His legal representatives submitted that protracted negotiations with the Director of Public Prosecutions and difficulties in obtaining timely instructions explained why an earlier plea had not been entered. Five additional matters were placed before the court on a Form 1 (a mechanism under NSW procedure by which related charges are taken into account at sentencing without separate conviction), including participation in a criminal group and possession of a TASER.

  • What discount applied to the sentence given the guilty plea was entered in the District Court rather than at an earlier stage?
  • How should the court treat the five Form 1 matters, including the TASER possession, without double-counting objective seriousness?
  • What was the offender's role and degree of culpability relative to the co-offender Ognenovski, who had already been sentenced?
  • How did the parity principle apply given a co-offender had received a sentence of seven years and three months after an early guilty plea?
  • Was a finding of special circumstances warranted, producing a longer-than-standard parole period?

Decision

Guilty plea discount. Because the guilty plea was entered in the District Court, the court was limited by section 25D(2) of the Crimes (Sentencing Procedure) Act 1999 to a maximum 10% reduction for the utilitarian value of the plea. Haesler SC DCJ accepted that protracted negotiations and difficulties with instructions contributed to the delay, and that the plea genuinely reflected acceptance of responsibility. However, the statutory cap applied regardless. The plea's demonstration of remorse was nonetheless treated as a positive subjective factor bearing on rehabilitation prospects.

Form 1 matters. The court took care not to double-count. The Form 1 matters, including criminal group participation and TASER possession, were noted as operating to increase the sentence for the principal offence, but no separate penalty was imposed. The TASER was identified as a matter of particular concern. The court applied the principles in Markarian v The Queen and Attorney General's Application No. 1, treating the Form 1 as supporting personal deterrence and retribution rather than adding a distinct punishment.

Role and parity. The court found the offender and a co-offender named Owen were relatively inexperienced drug dealers, used by Ognenovski to store product. The offender's role was nonetheless integral: he ran his portion of the operation, supplied directly to users and possibly to others who resold, and intended the MDMA to be disseminated. Ognenovski, who had dealt in larger quantities, occupied a higher position in the hierarchy and received a sentence of seven years and three months after an early guilty plea. Applying the parity principle from Green v The Queen, the court distinguished the offender's position by reference to his lower role, late plea, and comparable subjective circumstances.

Special circumstances and rehabilitation. The court made a substantial finding of special circumstances (a term meaning circumstances justifying a departure from the standard ratio of non-parole period to total sentence), producing a longer parole period. The offender had no prior recorded convictions, a stable family, employable trade skills, positive reports from Corrective Services, and demonstrated remorse. The court expressed confidence that the personal deterrence purpose of imprisonment had already been substantially achieved by time served.

Orders Made

  • For commercial supply of cocaine (Count 1, including Form 1 matters): indicative sentence of 4 years and 11 months, with a non-parole period of 2 years and 8 months.
  • For taking part in supply of MDMA: indicative sentence of 1 year and 9 months.
  • Aggregate sentence: 5 years and 3 months, with a non-parole period of 2 years and 10 months (reflecting a substantial finding of special circumstances).
  • Sentence commenced 16 August 2019; eligible for parole from 15 June 2022; parole period of 2 years and 5 months; total sentence expires 15 November 2024.
  • Sequence 9 withdrawn and dismissed; remaining section 166 matters dealt with on the Form 1.
  • A slip correction was made by chambers order on 14 April 2021, with consent of the parties, under section 43 of the Crimes (Sentencing Procedure) Act 1999.

Key Takeaways

  • Under section 25D(2) of the Crimes (Sentencing Procedure) Act 1999, a guilty plea entered in the District Court attracts a maximum utilitarian discount of 10%, regardless of the reasons for the delay in entering the plea at an earlier stage.
  • Form 1 matters operate to increase the sentence for the principal offence but do not attract a separate penalty; the sentencing court must guard against double-counting where the same conduct also informs the objective seriousness of the matters for sentence.
  • The parity principle requires sentences across co-offenders to reflect comparable culpability, but differences in role, quantity of drugs, criminal history, and timing of guilty pleas can justify meaningful differences in the sentences ultimately imposed.
  • A substantial finding of special circumstances may be warranted where an offender demonstrates solid rehabilitation prospects, strong family support, employment history, and genuine remorse, producing a parole period longer than the standard statutory proportion.
  • Even a relatively junior participant in a drug supply network remains subject to the same principles of general deterrence as those higher in the hierarchy; the court reaffirmed that role is relevant to objective seriousness but does not displace the need for a significant custodial term.

Legislation and Cases Referenced

Legislation
- Drug (Misuse and Trafficking) Act 1985 (NSW), ss 25(1), 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(m), 25D, 25D(2), 43

Cases
- Afu v R [2017] NSWCCA 246
- Attorney General's Application No. 1 (2002) 56 NSWLR 146
- Green v The Queen (2011) 244 CLR 462
- Hamzy v R (1994) 74 A Crim R 341
- Jadron v R [2015] NSWCCA 217
- Lau v R [2010] NSWCCA 43
- Markarian v The Queen (2005) 228 CLR 357
- R v Ognenovski (2020) NSWDC 884