AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
District Court 7 October 2021

R v Anscombe

[2021] NSWDC 540

DrugsFraud & dishonesty
SENTENCING DRUG OFFENCES SUPPLY AND POSSESS PROHIBITED DRUG MITIGATING FACTORS REMORSE REHABILITATION

Citation: R v Anscombe [2021] NSWDC 540
Court: District Court of New South Wales
Date: 7 October 2021
Judge: Weinstein SC DCJ

Background

The offender, a woman born in 1969, was sentenced following her guilty plea to supplying a prohibited drug in a quantity greater than the commercial quantity, specifically 1,517.74 grams of Gamma Butyrolactone (GBL), contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985. GBL is a substance that the body converts into GHB and is typically administered in doses of one to two millilitres. The offence carries a maximum penalty of 20 years imprisonment and a standard non-parole period of ten years.

The offender supplied GBL in multiple transactions during October and November 2019 to a co-accused, who then on-supplied the drug to his own customers in the Illawarra region. Police established the supply network through intercepted phone calls and physical surveillance. The offender sourced the drug from an upstream supplier and acted as an intermediary in the distribution chain.

The offender was also convicted of dealing with proceeds of crime, being $2,680, contrary to section 193C(2) of the Crimes Act 1900. Two further matters — possession of 9 grams of cannabis and possession of 72 Valium tablets — were taken into account on a Form 1 (a procedural mechanism allowing additional offences to be considered at sentencing without separate conviction).

  • What weight should be given to the standard non-parole period of ten years for a greater than commercial quantity drug supply offence?
  • What mitigating factors, including guilty plea, remorse, rehabilitation, drug addiction, and personal hardship, were relevant to the appropriate sentence?
  • Whether the offender's subjective circumstances justified a sentence to be served by way of an Intensive Correction Order (ICO) rather than full-time custody.

Decision

The court acknowledged that the standard non-parole period of ten years is a legislative benchmark signifying the seriousness Parliament attaches to this class of offence. However, following the approach in Muldrock v The Queen (2011) 244 CLR 120, the standard non-parole period is not a mandatory minimum but one of two reference points in the exercise of the sentencing discretion.

The court identified significant mitigating factors. These included the offender's early guilty plea (attracting a 25% discount), her genuine remorse, her progress in addressing a long-standing drug addiction, and her engagement with psychological treatment. Her personal history, including experiences of hardship and the role of addiction in her offending, was found to reduce her moral culpability to some degree, consistent with the principles in Bugmy v The Queen (2013) 249 CLR 571.

The court also considered the offender's role in the supply chain. She was not at the top of the distribution network; she obtained the drug from an upstream supplier and supplied it to the co-accused, who then distributed it to end users. This positioning, together with her subjective circumstances, informed the conclusion that the case fell well below the mid-range of objective seriousness despite the large quantity involved.

Taking all factors together, the court found that an Intensive Correction Order was appropriate. The sentence imposed before any discount for the supply offence would have been two years with a non-parole period of one year. After the 25% guilty plea discount, and with the proceeds of crime offence attracting four months, the court imposed an aggregate sentence of two years and 22 days, to be served in the community under an ICO.

Orders Made

  • The offender was convicted of supply prohibited drug greater than the commercial quantity (s 25(2), Drug Misuse and Trafficking Act 1985) and deal with proceeds of crime (s 193C(2), Crimes Act 1900).
  • An aggregate sentence of imprisonment of two years and 22 days was imposed, commencing 8 October 2021 and expiring 29 October 2023.
  • The sentence is to be served by way of an Intensive Correction Order (ICO) in the community pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999.
  • Standard ICO conditions apply: no further offending and submission to supervision by a Community Corrections Officer.
  • Additional conditions include:
  • Continuation of psychological counselling with the nominated psychologist (or a substitute nominated by her GP), and compliance with reasonable directions from her psychologist and GP.
  • Abstention from all drugs except those prescribed by a medical practitioner.
  • Performance of 300 hours of community service.
  • The offender was directed to contact the Sutherland Community Corrections Office within seven days.

Key Takeaways

  • The District Court confirmed that a standard non-parole period of ten years for greater than commercial quantity drug supply does not operate as a floor; the sentencing court must weigh it alongside all relevant objective and subjective factors in each case.
  • A guilty plea, genuine remorse, demonstrated progress in addressing addiction, and engagement with psychological treatment can collectively produce a substantial departure from the standard non-parole period benchmark, even for serious drug supply offences.
  • Where an offender occupies a middleman role in a supply chain rather than directing the enterprise, that positioning is relevant to assessing the objective seriousness of the offending and, in turn, the appropriate sentence.
  • An ICO remains available as a sentencing option for indictable drug supply offences carrying lengthy maximum penalties, provided the court is satisfied that the totality of objective and subjective circumstances warrants it.
  • Drug addiction, considered in conjunction with personal hardship and rehabilitation efforts, can reduce moral culpability and support a more lenient sentencing outcome, consistent with the principles affirmed in Bugmy v The Queen.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1900 (NSW), s 193C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7(1), 37

Cases
- Muldrock v The Queen (2011) 244 CLR 120
- Bugmy v The Queen (2013) 249 CLR 571
- Markarian v The Queen [2005] HCA 25
- Green v R; Quinn v R (2011) 244 CLR 462
- Henry v R (1999) 46 NSWLR 346
- DPP v De La Rosa [2010] NSWCCA 194
- R v Edwards (1996) 90 A Crim R 510
- R v Fangaloka [2019] NSWCCA 173; Casella v R [2019] NSWCCA 201
- Mandranis v R [2021] NSWCCA 97
- Karout v R [2019] NSWCCA 253
- Fisher v R [2021] NSWCCA 91
- Kelley v R [2021] NSWCCA 173
- Rossall v R [2021] NSWCCA 200
- Petkos v R [2020] NSWCCA 55
- R v Pullen [2018] NSWCCA 264
- R v Millwood [2012] NSWCCA 2
- DPP (Cth) v Maxwell [2013] VSCA 50
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002