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District Court 8 October 2021

R v Thorne

[2021] NSWDC 455

Drugs
CRIME DRUG OFFENCES ROLE OF CO OFFENDER HIGH RISK CLASSIFICATION IN PRISON

Citation: R v Thorne [2021] NSWDC 455
Court: District Court of New South Wales
Date: 8 October 2021
Judge(s): Judge Sutherland SC

Background

A police taskforce, originally established to investigate terrorism-related activity, used an undercover operative to conduct a controlled drug supply investigation targeting the offender. Between November 2018 and January 2019, the offender and a co-offender (referred to by the pseudonym "Ms Rose" due to non-publication orders) supplied cocaine and MDMA to the undercover operative across multiple meetings, predominantly at supermarket car parks in Guildford and Newington.

The offender initiated the dealings, negotiated quantities and prices with the undercover operative, and later introduced Ms Rose into the transactions as an equal partner in the physical execution of the supplies. The final transaction involved the supply of approximately one kilogram of MDMA, a large commercial quantity, which was facilitated through a higher-level supplier who attended the handover in person.

The offender was arrested in July 2019 and, upon being charged, declined to participate in a police interview. He subsequently entered early guilty pleas to two substantive counts under the Drug Misuse and Trafficking Act 1985 (NSW), with three additional cocaine supplies placed on a Form 1 document to be taken into account on sentence.

Legal Issues

  • What objective seriousness attached to the cocaine supplies (Sequence 7) and the large commercial quantity MDMA supply (Count 2)?
  • How should the court approach parity between the offender and co-offender Ms Rose, who had already been sentenced?
  • Whether the offender's childhood trauma and abuse operated as a mitigating factor in sentencing.
  • Whether the offender's prospects for rehabilitation warranted a positive finding.
  • Whether the offender's high-risk classification within the correctional system, together with COVID-19 conditions, warranted a finding of special circumstances justifying a longer additional term.

Decision

Objective Seriousness

The court found that the aggregate cocaine supply of 139.4 grams (Sequence 7) fell within a broad mid-range of offences for supply above an indictable quantity but below a commercial quantity (at [39]). The supply of approximately one kilogram of MDMA, in all the surrounding circumstances, also fell within a mid-range of objective seriousness (at [39]).

Parity with Co-Offender

The court accepted that the offender held a more authoritative and organisational role in the earlier cocaine supplies, while Ms Rose performed the physical exchanges and bore greater exposure to detection (at [72]). The court concluded that the two co-offenders ultimately reached a position of equal culpability by the later stages of the offending, and that applying the same starting point for the MDMA supply as was applied to Ms Rose was necessary to avoid a justifiable sense of grievance (at [73]). The court recognised the distinction in the offender's earlier organisational role by setting a modestly higher indicative sentence for the cocaine supply (at [73], [75]).

Subjective Circumstances: Background and Rehabilitation

The offender's account of severe childhood abuse and trauma, including physical violence at the hands of a stepfather in both Australia and Saudi Arabia, was found to be credible. However, the court held that this background did not operate as a mitigating factor in the sentencing exercise (at [59]). The court assessed the offender's prospects for rehabilitation as guarded, noting that his drug supply was a conscious commercial decision motivated by financial stress rather than any addiction, a circumstance the court viewed with circumspection (at [68]-[69]).

Special Circumstances

The court found, with some reservation, that the offender's high-risk security classification within corrective services, which was entirely unrelated to the present offences, combined with prevailing COVID-19 conditions in custody, warranted a finding of special circumstances to some degree (at [71]). This finding justified a non-parole period representing a somewhat lower proportion of the total sentence than would otherwise apply.

Orders Made

  • Aggregate sentence of nine years imprisonment imposed, with a non-parole period of five years and six months (at [77]).
  • Both the sentence and non-parole period dated from the date of arrest, 31 July 2019 (at [77]).
  • Non-parole period to expire on 30 January 2025; additional term to expire on 30 July 2028 (at [77]).
  • Indicative sentence of three years for the cocaine supply charge (Sequence 7, s 25(1)), reflecting a 25% guilty plea discount (at [75]).
  • Indicative sentence of seven and a half years for the MDMA supply charge (Count 2, s 25(2)), with an indicative non-parole period of five years, incorporating the Form 1 matters and the 25% guilty plea discount (at [76]).

Key Takeaways

  • A 25% sentence discount for an early guilty plea was applied to both substantive counts, consistent with the standard legislative requirement, and the court's approach to parity required that the MDMA supply starting point mirror that applied to the co-offender already sentenced, to avoid a justifiable sense of grievance (at [38], [73]).

  • Where two co-offenders participate in a joint enterprise drug supply operation, the court may draw distinctions in culpability across different phases of the offending: an offender who organised initial supplies and introduced a co-offender into the arrangement may be treated as bearing somewhat greater responsibility for the earlier conduct, even if overall culpability equalises over time (at [72]-[73]).

  • Credible evidence of severe childhood trauma and abuse does not automatically operate as a mitigating factor in sentencing; the court must be satisfied of a sufficient nexus between that background and the offending (at [58]-[59]).

  • A high-risk security classification within the correctional system, even where it arises from circumstances entirely unrelated to the offending for which sentence is being imposed, may still be taken into account in a finding of special circumstances when combined with other factors such as the hardships of incarceration during COVID-19 (at [70]-[71]).

  • Conscious engagement in drug supply for financial gain, rather than as a corollary to personal addiction, does not readily support a positive finding of good prospects for rehabilitation; the District Court treated such a motive with circumspection (at [68]-[69]).

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases
- R v Qutami (2001) 127 A Crim R 369