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District Court 18 February 2021

R v Jennings; R v Turner

[2021] NSWDC 303

DrugsFirearms & weapons

Citation: R v Jennings; R v Turner [2021] NSWDC 303
Court: District Court of NSW
Date: 18 February 2021
Judge(s): M L Williams SC DCJ

Background

A police strike force established in February 2020 to investigate drug supply in the Southern Highlands uncovered an operation run by two co-offenders living together in Moss Vale. The male offender, aged 41, and his de facto partner, aged 26, were arrested on 15 May 2020. The male was released on bail but later taken into custody for breach of bail on 24 June 2020; his partner remained in custody from the date of her arrest.

The female offender was the primary drug supplier in the operation. Evidence from phone intercepts and covert witness purchases showed she supplied cocaine, MDMA, and other prohibited drugs on multiple occasions between April and May 2020. The male offender was intercepted returning from Lithgow shortly before his arrest, in possession of nearly 10 grams of methylamphetamine and over $5,500 in cash, consistent with his role in assisting the supply operation.

Both offenders pleaded guilty to their respective charges. The charges they faced differed: the female faced the more serious offence of ongoing drug supply, while the male faced a drug supply count alongside multiple firearms possession offences, arising from two firearms (an air pistol and an air rifle) found at the premises.

  • The appropriate aggregate sentences for each offender, taking into account Form 1 matters and the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio
  • Whether an intensive corrections order (ICO) was appropriate in place of full-time imprisonment for either offender
  • The correct approach to sentencing for firearms offences arising in the context of drug supply
  • The weight to be given to mitigating factors, including guilty pleas, rehabilitation prospects, remorse, drug addiction, and (for the female offender) a limited criminal record

Decision

The court applied a 25% discount to both offenders' sentences in recognition of the utilitarian value of their guilty pleas. It also gave greater weight to personal deterrence and community retribution in respect of the Form 1 matters, following the approach endorsed in Attorney General's Application No 1 of 2002. The court observed that the firearms found at the premises were in a neutral position, meaning there was no evidence as to whether they were functioning, distinguishing them from the more serious situation addressed in R v Campbell; R v Smith concerning firearms in the context of organised criminal activity.

The court found special circumstances in both cases, justifying a longer than usual ratio of parole to non-parole period. For the male offender, his background of drug addiction and the need for supervision on release supported that finding. For the female offender, the court noted it was her first time in custody and that intensive rehabilitation was needed to prevent a return to drug use.

The court rejected a submission that the female offender's sentence should be served by way of an ICO. Williams SC DCJ held that an ICO was not appropriate given the purposes of sentencing and the guidance from the Court of Appeal and Court of Criminal Appeal in Wany v DPP, R v Fangaloka, and Parente v R. Full-time imprisonment was imposed on both offenders.

Orders Made

Joshua Jennings:
- Convicted of all offences
- Indicative sentences (after 25% discount): Sequence 1 (with Form 1 matters, sequences 4, 8 and 15): 22 months; Sequence 9 (with Form 1 matters, sequences 10 and 13): 18 months, indicative non-parole period 10 months; Sequence 11 (with Form 1 matters, sequences 12 and 14): 13 months; Sequence 5 (s 166 certificate): 2 months
- Aggregate sentence of 3 years commencing 24 June 2020
- Non-parole period of 20 months, expiring 23 February 2022
- Special circumstances found
- Sequence 3 (resist arrest): convicted under s 10A, no further penalty imposed
- Confiscation orders made by consent

Mikaela Turner:
- Convicted of all offences
- Indicative sentences (after 25% discount): Sequence 1 (with Form 1 matters, sequences 4, 5, 6, 7, 11, 16, 18 and 19): 2 years and 3 months; Sequence 9 (s 166 certificate): 4 months
- Aggregate sentence of 2 years and 4 months imprisonment commencing 15 May 2020
- Non-parole period of 13 months, expiring 14 June 2021
- Special circumstances found
- Confiscation order of $3,500 made by consent
- ICO rejected

Key Takeaways

  • The District Court confirmed that Form 1 matters are addressed by giving greater weight to personal deterrence and community retribution, not by treating them as additional charges attracting their own penalties, following Attorney General's Application No 1 of 2002.
  • Where firearms are found in the context of drug supply but there is no evidence as to their functionality, the court treated that as a neutral factor, stopping short of the heightened approach applied to functioning firearms in organised criminal activity contexts.
  • Special circumstances were found for both offenders, reflecting that first-time custody and identified rehabilitation needs can justify extending the ratio of parole supervision beyond the statutory norm.
  • An ICO was refused as inappropriate given the nature of the offending and the purposes of sentencing, with the court applying the principles confirmed in Wany v DPP, R v Fangaloka, and Parente v R.
  • Co-offenders engaged in the same underlying criminal activity may attract materially different charges and sentence structures where their respective roles and criminal histories differ.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A, 166
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A, 36Z(1)(a)
- Firearms Act 1996 (NSW), ss 7(1), 7A(1)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Parente v R [2017] NSWCCA 284
- Petkos v The Queen [2020] NSWCCA 55
- R v Campbell; R v Smith [2019] NSWCCA 1
- R v Fangaloka [2019] NSWCCA 173
- R v Payne [2005] NSWCCA 84
- Wany v DPP [2020] NSWCA 318