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2
District Court 1 July 2021

R v Frankcom

[2021] NSWDC 294

Drugs
CRIME CRIMINAL GROUP SENTENCING PROCEDURE WHETHER APPLICATION UNSEEMLY RELEVANT FACTORS EARLY GUILTY PLEA

Citation: R v Frankcom [2021] NSWDC 294
Court: District Court of NSW
Date: 1 July 2021
Judge: Haesler SC DCJ

Background

The offender pleaded guilty in the Local Court to supplying a commercial quantity of methylamphetamine (311 grams), an offence carrying a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years under the Drug (Misuse and Trafficking) Act 1985. As part of charge negotiations in the Local Court, multiple drug supply matters were consolidated into a single commercial quantity charge, with a further offence of participating in a criminal group placed on a Form 1 (a document allowing additional offences to be acknowledged and taken into account at sentencing without a separate sentence being imposed).

The offender was one of several co-accused involved in methylamphetamine distribution in the Wollongong area. He was characterised as a user-dealer who also recruited others, operating as part of a criminal group. His personal circumstances included a serious medical condition, a demonstrated commitment to rehabilitation, strong family support, and no prior gaol terms.

At the sentencing hearing, the central complication was whether the court could or should permit the Form 1 offence to be withdrawn and replaced with a separate charge, with the purpose of creating an aggregate sentence. An aggregate sentence in the 2-to-3-year range would have made the offender eligible for an Intensive Correction Order (ICO), which a single sentence exceeding 2 years does not.

  • Whether the offender's application to withdraw consent to the Form 1 procedure should be granted, so as to enable an aggregate sentence to be imposed and thereby open up eligibility for an ICO
  • Whether, having regard to all sentencing purposes and the objective seriousness of the offence, a full-time custodial sentence was required
  • What discount applied for the early guilty plea, and whether special circumstances existed justifying a variation to the standard non-parole period ratio
  • How parity with co-accused should inform the sentence

Decision

Refusal of the Form 1 withdrawal application

Haesler SC DCJ refused the application to withdraw the Form 1. His Honour reasoned that allowing the withdrawal would effectively reverse the Local Court charge negotiation process and undermine it more broadly. Relying on the remarks of Button J in Abel v R [2020] NSWCCA 82, his Honour observed that it is "unseemly" for a court to permit withdrawal of a Form 1 at the conclusion of sentencing proceedings, and that serious doubt exists as to whether such withdrawal is legally available at that stage.

His Honour further held that the sole purpose of the application was to engineer ICO eligibility, which is procedurally improper. A sentencing court must first determine the appropriate length of the sentence through the ordinary sentencing process, and only then consider whether an ICO is available. A court must not work backwards from a desire to impose an ICO. He also noted that, even if an aggregate sentence were imposed, the criminal group offence was so closely connected to the principal supply offence that any separate sentence for it would simply be served concurrently, producing no practical difference in total sentence length.

Full-time imprisonment required

His Honour accepted that full-time custody carried risks for the offender, including the potential to frustrate genuine rehabilitation progress and aggravate his serious medical condition. Nonetheless, the nature of the offending, its duration, the profit motive, and the requirements of general deterrence and proportionality meant that full-time imprisonment was unavoidable. The judgment noted that, in commercial drug supply matters, past sentencing practice will ordinarily produce a full-time custodial sentence absent unusual circumstances. While two co-offenders had received ICOs, both had already served periods of custody and occupied a lower role in the hierarchy of offending.

Discount, special circumstances, and parole

A 25% discount was applied for the utilitarian value of the early guilty plea, reducing the head sentence from 3 years 3 months to 2 years 5 months. His Honour made a significant finding of special circumstances, applying a generous 40:60 non-parole to parole ratio (rather than the standard 2:1 ratio under the Crimes (Sentencing Procedure) Act 1999). This produced a non-parole period of 12 months and a parole period of 1 year 5 months. The extended parole period was intended to provide the offender with the maximum opportunity for supervised rehabilitation in the community following release, without compromising the need for the minimum custody period to reflect the gravity of the offending.

Orders Made

  • Head sentence: 2 years 5 months imprisonment (reduced from an original term of 3 years 3 months by a 25% guilty plea discount)
  • Non-parole period: 12 months, backdated 9 days to commence 22 June 2021 and expire 21 June 2022
  • Parole period: 1 year 5 months, commencing 22 June 2022 and expiring 21 November 2023
  • The offender to be released to parole at the expiration of the non-parole period
  • Medical reports (Exhibits 4 to 8) to accompany the warrant to assist Justice Health with the offender's health and dietary needs

Key Takeaways

  • The District Court confirmed that an application to withdraw a Form 1 offence purely to manufacture ICO eligibility is procedurally improper and contrary to the sequencing required by the sentencing process: the appropriate sentence length must be determined first, with ICO eligibility assessed only afterwards.
  • Under the current legislative framework, an ICO is available for an aggregate sentence of between 2 and 3 years, but not for a single sentence exceeding 2 years, even if a Form 1 offence brings the effective sentence to the same total. This anomaly, noted by the Court of Criminal Appeal in Abel, has not yet been remedied by Parliament.
  • Where offences are part of a single episode of criminality, a sentence for one offence is likely to reflect the criminality of both, meaning that separating a Form 1 offence into a standalone charge may produce no practical change to the total sentence.
  • A significant finding of special circumstances can support a substantially extended parole period where the offender's rehabilitation prospects and medical condition make supervised community release particularly important, provided the minimum custodial term still reflects the gravity of the offending.
  • Parity with co-offenders is a relevant consideration in sentencing, but differences in role, prior custodial history, and individual circumstances can justify meaningful differences in outcome between co-accused.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 93T (participate in criminal group)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 55, 68, 69
- Criminal Procedure Act 1986 (NSW), Part 2 (Early Guilty Plea provisions)
- Drug (Misuse and Trafficking) Act 1985 (NSW), s 25(2)
- Justice Miscellaneous Bill 2021

Cases
- Abel v R [2020] NSWCCA 82
- Afu v R [2017] NSWCCA 246
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Cahyadi v R [2007] NSWCCA 1
- Cross v R [2019] NSWCCA 280
- Green v The Queen (2011) 244 CLR 462
- Mandranis v R [2021] NSWCCA 97
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
- R v Dekker; R v Kominkovski [2021] NSWDC 186