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District Court 28 October 2021

R v Wright

[2021] NSWDC 582

DrugsTheft & property
CRIME MDMA DEAL WITH PROPERTY PROCEEDS OF CRIME GREATER THAN $100,000 SUPPLY PROHIBITED DRUG COCAINE

Citation: R v Wright [2021] NSWDC 582
Court: District Court of New South Wales
Date: 28 October 2021
Judge(s): Mahony SC DCJ

Background

Police executed a search warrant at the offender's Oatley premises in May 2020. Upon being stopped before the search, the offender immediately directed police to his bedroom cupboard, where they discovered 1,907.5 grams of MDMA at high purity, together with drug supply equipment including scales, heat-sealing machines, freezer bags, gelatine capsules, and six mobile phones. A safe on the premises held $187,500 in cash bundled across 19 separate bundles.

The offender was a 32-year-old steel fabricator with a minimal criminal history. He had accumulated a drug debt of approximately $100,000 by 2016 after consuming cocaine obtained on credit from associates. He told the court he agreed to warehouse the drugs and cash in January 2020 because he feared for his family's safety if he refused.

The offender pleaded guilty to supply of a large commercial quantity of MDMA (Count 1) and dealing with property suspected to be proceeds of crime exceeding $100,000 (Sequence 2). Two further matters were placed on a Form 1 to be taken into account on sentence: supply of 104.1 grams of cocaine, and stealing a gym machine from a dwelling house valued at less than $2,000.

Legal Issues

  • What was the objective seriousness of the MDMA supply offence, having regard to quantity, purity, and the offender's role?
  • Whether the offender's ADHD diagnosis and mental health history reduced his moral culpability or the need for general deterrence.
  • Whether the offender's physical health conditions (brain tumour, sleep apnoea) and the conditions of custody during the COVID-19 pandemic constituted mitigating hardship.
  • What weight to assign to the offender's early guilty plea, remorse, and rehabilitation progress.
  • Whether special circumstances existed to justify varying the statutory ratio between the non-parole period and the balance of term.
  • What aggregate sentence was appropriate having regard to totality across all offences.

Decision

Issue 1: Objective Seriousness of Count 1 (MDMA Supply)

The court assessed the total MDMA seized at 1,907.5 grams, nearly four times the large commercial quantity threshold of 500 grams, and noted the high purity levels of 76.5% and 76% across the two vacuum-sealed lots (at [82]). The presence of packaging equipment and the offender's own admissions that he was prepared to repackage the drugs for ongoing supply confirmed a role beyond simple storage. Weighing the quantity, purity, and role, the court placed the offending within the mid-range for an offence under section 25(2) of the Drug Misuse and Trafficking Act 1985 (at [83]).

Issue 2: Mental Health and Moral Culpability

The offender submitted that his longstanding ADHD diagnosis contributed to his drug addiction and ultimately to the offending conduct. The court rejected this causal connection. On the offender's own evidence, he had been drug-free for four to five months before the offending and had functioned normally in employment for several years (at [87]). The court found his mental health issues did not diminish his moral culpability or significantly reduce the need for general deterrence (at [88]).

Issue 3: Physical Health and Hardship in Custody

The court accepted that the offender faced significant physical health challenges: diagnosed sleep apnoea requiring a CPAP machine, and recent surgery to remove a pituitary brain tumour requiring ongoing specialist supervision, medication, and MRI scans (at [89]). The court acknowledged that Justice Health's resources may not readily accommodate these needs externally. Combined with the onerous custodial conditions imposed during the COVID-19 pandemic, including lockdowns and restricted access to visits and programs, the court was satisfied these matters constituted real hardship and took them into account in mitigation (at [89]).

Issue 4: Guilty Plea, Remorse, and Rehabilitation

The offender was entitled to a 25% utilitarian discount for his early guilty plea (at [90]). The court was impressed by the offender's evidence of remorse and contrition, and accepted additional mitigation on that basis (at [90]). The court found the offender had made considerable progress in rehabilitation, was highly motivated to address his drug addiction, and presented a low risk of recidivism, though it noted that outcome remained tied to successful relapse prevention (at [92]).

Issue 5: Special Circumstances and Aggregate Sentence

The court found special circumstances under section 44(2) of the Crimes (Sentencing Procedure) Act 1999, based on the offender's physical and mental health issues, his need for ongoing treatment and rehabilitation, and the fact that this was his first custodial sentence (at [95]). As the offending in both principal counts arose from the same course of criminal conduct, the court imposed concurrent indicative sentences and an aggregate term of five years imprisonment with a non-parole period of two years and six months (at [99]).

Orders Made

  • Convicted of Count 1: supply large commercial quantity of prohibited drug (1,907.5 g MDMA) under section 25(2) of the Drug Misuse and Trafficking Act 1985.
  • Convicted of Sequence 2: deal with property proceeds of crime greater than $100,000 ($187,500) under section 193C(1) of the Crimes Act 1900.
  • Aggregate sentence of five years imprisonment imposed, with a non-parole period of two years and six months commencing 28 October 2021 and expiring 27 April 2024; balance of term expiring 27 October 2026.
  • Form 1 matters taken into account: supply of 104.1 g cocaine (section 25(1) DMTA) and steal property in dwelling house less than $2,000 in value (section 148 Crimes Act 1900).

Key Takeaways

  • A submission that an offender's ADHD contributed causally to drug supply offending was rejected where the offender had been abstinent for months before the offending and had sustained normal employment for years; the court found no relevant causal link between the mental health condition and the criminal conduct (at [87]-[88]).

  • Significant physical health conditions, including post-operative recovery from brain surgery and sleep apnoea requiring specialist equipment, can constitute genuine mitigating hardship in sentencing where the prison system may lack the resources to adequately manage them externally (at [89]).

  • The District Court confirmed that the onerous custodial conditions arising from the COVID-19 pandemic, including isolation periods and restricted access to programs, are a recognised source of additional hardship that courts may weigh in mitigation, particularly for first-time custodial offenders with health vulnerabilities (at [89], [93]).

  • Where multiple offences arise from the same course of criminal conduct, an aggregate concurrent sentence may be appropriate; the court must nonetheless address proportionality and totality, and set out indicative sentences for transparency (at [96]-[99]).

  • Under section 44(2) of the Crimes (Sentencing Procedure) Act 1999, special circumstances warranting a longer parole period can be established by a combination of first-time custody, physical and mental health needs, and the requirement for ongoing rehabilitation and treatment (at [95]).

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999

Cases
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1;[2010] NSWCCA 194
- DPP (Cth) v Saadieh [2021] NSWSC 1186
- Nguyen v R [2019] NSWCCA 209
- R v Qi [2019] NSWCCA 73; 277 A Crim R 82
- R v Van Ryn [2016] NSWCCA 1
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64