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District Court 12 August 2021

R v Amoroso

[2021] NSWDC 393

Drugs
CRIME COMMITTAL FOR SENTENCE RELEVANT FACTORS ON SENTENCE DRUG USER COVID RELATED DRUG PRICE INCREASE REGULAR DRUG USER

Citation: R v Amoroso [2021] NSWDC 393
Court: District Court of New South Wales
Date: 12 August 2021
Judge(s): Haesler SC DCJ

Background

The offender pleaded guilty to three drug supply offences arising from a police investigation into prohibited drug supply in the Illawarra region between April and July 2020. A Strike Force obtained telecommunications warrants on a mobile phone registered in a false name and used by the offender. Intercepted calls revealed that he was operating a retail distribution network, supplying methylamphetamine and gamma-butyrolactone (GBL) to a broad customer base on at least 60 occasions over roughly three months.

Two co-offenders communicated exclusively with the offender as intermediaries. In early July 2020, one co-offender procured more than two litres of GBL from a Sydney supplier, funded in part by a $2,000 transfer from the offender. Police intercepted that co-offender at the M1 motorway and found bottles containing over 2,251 grams of GBL. The offender was arrested in August 2020 after police executed search warrants at his Novotel apartment and his West Wollongong residence, recovering what were described as drug ledgers and a "tic" sheet listing names and figures.

The offender admitted to a daily drug habit involving both methylamphetamine and GBL. He funded that habit largely by on-selling drugs to others, retaining a modest profit margin. A fresh indictment was presented in the District Court solely to cure a technical defect in the original committal papers from the Local Court.

  • Whether a fresh indictment could be presented to correct errors in the committal for sentence process
  • The objective seriousness of the ongoing supply offences under s 25A of the Drug Misuse and Trafficking Act 1985, having regard to the number and scale of individual transactions
  • The appropriate weight to give the commercial quantity GBL supply offence under s 25(2), including the role of drug weight versus financial reward in fixing the penalty
  • The relevance of the offender's status as a drug user funding his own habit through sales
  • The application of a 25% sentence reduction for early indication of guilty plea under s 25A of the Crimes (Sentencing Procedure) Act 1999
  • The construction of an appropriate aggregate sentence, including the treatment of a Form 1 matter and the commencement date

Decision

Haesler SC DCJ found that all three offences were serious, notwithstanding the low-level nature of each individual transaction. The court applied the principle from R v CBK [2002] NSWCCA 457 that a s 25A ongoing supply offender cannot rely on the small scale of any single supply; the offence targets the persistent, business-like character of the conduct. The offender had run an effective retail distribution operation for approximately three months, personally negotiating prices, coordinating deliveries and maintaining a broad customer base.

On the commercial quantity GBL count, the court noted that the commercial quantity threshold is one kilogram. Although the offender's involvement was described as "very low level," the court confirmed that financial reward, rather than drug weight alone, carries significant weight in commercial supply sentencing. The potential profit on reselling the GBL at $300 per 100ml was modest but real.

The court acknowledged several mitigating factors. The offender's drug addiction was a significant personal circumstance; the profits were applied largely to sustaining that habit rather than enriching himself substantially. The court also noted that drug prices had risen during the COVID-19 pandemic, which partly explained the increased price points. An early indication of guilt attracted a mandatory 25% reduction in the otherwise appropriate sentences.

The court imposed full-time custody, accepting this was inevitable given the nature of the offending and the fact that the offender had breached an Intensive Corrections Order shortly after it was imposed. The sentence was structured to allow the offender to access rehabilitation after serving the minimum custodial period, with the court observing that imprisonment alone cannot solve problems that are social, health and community issues as much as criminal ones.

Orders Made

  • Count 1 (ongoing supply of prohibited drugs, including Form 1 matter): Indicative sentence of 2 years 3 months
  • Count 2 (ongoing supply of prohibited drugs): Indicative sentence of 2 years
  • Count 3 (knowingly take part in supply of commercial quantity of GBL): Indicative sentence of 2 years with a non-parole period of 1 year 2 months
  • Aggregate sentence: 3 years 3 months imprisonment
  • Non-parole period: 2 years, commencing 6 November 2020 and expiring 5 November 2022
  • Balance of sentence: 1 year 3 months, commencing 5 November 2022 and expiring 5 January 2024
  • Eligible for release to parole on 5 November 2022

Key Takeaways

  • Under s 25A of the Drug Misuse and Trafficking Act 1985, an offender cannot mitigate the seriousness of ongoing supply by pointing to the small scale of individual transactions. The District Court confirmed that the offence targets the repetitive, business-like nature of drug supply, and significant sentences are required to reflect that legislative intent.

  • A finding that an offender is primarily a drug user funding their habit through sales does not remove culpability for ongoing supply. The court found that the offender remained sufficiently rational and organised to conduct a clandestine retail operation over three months, which bore on objective seriousness regardless of motive.

  • In commercial quantity drug supply cases, financial reward anticipated or received can carry greater sentencing weight than drug quantity alone, consistent with Petkos v R [2020] NSWCCA 55 and DPP (Cth) v Maxwell [2013] VSCA 50.

  • A Form 1 matter operates to increase the sentence that would otherwise be imposed for the related principal offence; the court does not impose a separate or additional sentence for the Form 1 offence itself, following Attorney General's Application No. 1 (2002) 56 NSWLR 146.

  • Where a fresh indictment is presented solely to cure a technical defect in a committal for sentence, the substance of the guilty pleas and the sentencing exercise proceed on the same agreed facts as the original committal.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 25A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25A
- Criminal Procedure Act 1986 (NSW)
- Crimes (Administration of Sentences) Act 1999 (NSW)

Cases
- Attorney General's Application No. 1 (2002) 56 NSWLR 146
- Cahyadi v Regina [2007] NSWCCA 1
- DPP (Cth) v Maxwell [2013] VSCA 50
- Henry v R (1999) 46 NSWLR 346
- Hili v The Queen (2010) 242 CLR 520
- Markarian v The Queen (2005) 228 CLR 357
- Mill v The Queen (1988) 166 CLR 59
- Muldrock v The Queen (2011) 244 CLR 120
- Petkos v R [2020] NSWCCA 55
- R v CBK [2002] NSWCCA 457
- R v Durant [2002] NSWCCA 295
- R v Nai Poon [2003] NSWCCA 42
- R v O'Connor [2014] NSWCCA 53; (2014) 239 A Crim R 487
- Silvano v R [2008] NSWCCA 118
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Weininger v The Queen (2003) 212 CLR 629