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District Court 12 March 2021

R v Campbell

[2021] NSWDC 122

Drugs
CRIME DRUG USER COMMENCES TO SUPPLY

Citation: R v Campbell [2021] NSWDC 122
Court: District Court of New South Wales
Date: 12 March 2021
Judge(s): Haesler SC DCJ

Background

The offender was sentenced for supplying a large commercial quantity of MDMA (methylenedioxyamphetamine), an offence under s 25(2) of the Drug (Misuse and Trafficking) Act 1985 carrying a maximum penalty of life imprisonment and a standard non-parole period of 15 years. The offending arose from the offender's involvement in a significant drug distribution network operated by two principals in the Wollongong area.

Surveillance footage captured the offender delivering more than 4,200 MDMA pills to the principals' premises, weighing and packaging the product, and discussing its distribution. He acted as a trusted intermediary within the network, collecting and packaging drugs rather than simply selling them to fund his own habit. He had a prior criminal record including drug matters, and the current offending was committed in breach of a good behaviour bond.

Three further offences were placed on a Form 1 to be taken into account at sentencing: participating in a criminal group, knowingly taking part in the supply of 27.8 grams of cocaine, and knowingly taking part in the supply of 98 grams of MDMA. The offender entered an early guilty plea.

  • How should the Form 1 matters (including the criminal group participation and two additional drug supply offences) affect the sentence for the principal offence, without resulting in double-counting?
  • What weight should be given to the offender's drug use history as a personal mitigating factor in a large commercial supply case?
  • Whether a finding of special circumstances was justified to extend the parole period beyond the statutory ratio, given the offender's rehabilitation prospects.
  • How to calibrate the sentence against the standard non-parole period of 15 years and the guideline in Attorney General's Application No. 1.

Decision

Haesler SC DCJ sentenced the offender on the principal large commercial supply charge, with the sentence increased to account for the Form 1 matters in accordance with the Court of Criminal Appeal's 2002 guideline judgment in Attorney General's Application No. 1. His Honour was careful to avoid double-counting the criminal group participation, since that same conduct had already been treated as an aggravating feature of the principal offence.

The offender's drug use history, including his progression from recreational to heavy use of methamphetamine and MDMA, was accepted as relevant to the structure of the sentence rather than as mitigation of the offending itself. As a matter of law, drug use cannot mitigate a drug supply offence, but the offender's efforts to address his dependency in custody were relevant to the parole structure.

His Honour found that the offender's role was that of a trusted intermediary: he collected, weighed, and packaged a large commercial quantity of MDMA for distribution and stood to benefit primarily in drugs rather than cash. The offending was more serious than a user supplying to fund a habit. Nonetheless, strong references, solid family support, demonstrated rehabilitation in custody, and the acceptance of responsibility implicit in the guilty plea all pointed in the offender's favour.

A 25% reduction was applied for the utilitarian value of the early guilty plea. His Honour found special circumstances justifying a non-parole period significantly below the standard proportion, producing a parole period of two years and six months. Without the guilty plea, the sentence would have been seven and a half years. The resulting total sentence was five years and seven months, with a non-parole period of three years and one month.

Orders Made

  • Total term of imprisonment: five years and seven months.
  • Non-parole period: three years and one month, commencing 17 August 2019.
  • Eligible for parole consideration from 16 September 2022.
  • Parole period: two years and six months from that date.
  • No separate action taken on the breach of the good behaviour bond, given the custodial sentence exceeded its term.

Key Takeaways

  • The District Court applied the Attorney General's Application No. 1 guideline to increase the sentence for the principal offence to account for Form 1 matters, while carefully avoiding double-counting where the same conduct had already featured as an aggravating factor.
  • A drug use history cannot, as a matter of law, mitigate a drug supply offence, but it remains relevant to the structure of the sentence, particularly to the parole period and conditions aimed at rehabilitation.
  • Where an offender acts as a trusted intermediary within a commercial drug distribution network, collecting and packaging product for principals, the court treats that role as more serious than supply driven purely by personal addiction.
  • Special circumstances were found justified by the offender's strong rehabilitation trajectory in custody, his family support, and his employment prospects, producing a non-parole period well below the 15-year standard and a correspondingly extended parole period.
  • Participation in a criminal group, when already used as an aggravating feature for the principal offence, should not be separately punished through the Form 1 process without careful attention to double-counting.

Legislation and Cases Referenced

Legislation
- Drug (Misuse and Trafficking) Act 1985 (NSW), ss 25(1) and 25(2)
- Crimes Act 1900 (NSW), s 93T(1)

Cases
- Attorney General's Application No. 1 (2002) 56 NSWLR 146 (NSW Court of Criminal Appeal guideline judgment on Form 1 procedure)
- R v Lane [2020] NSWDC 643