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District Court 25 August 2021

R v Sampathapillai

[2021] NSWDC 712

Drugs

Citation: R v Sampathapillai [2021] NSWDC 712
Court: District Court of New South Wales
Date: 25 August 2021
Judge: M L Williams SC DCJ

Background

The offender was a 34-year-old man with no prior criminal history who was convicted by jury on two counts under the Drug Misuse and Trafficking Act 1985. The first count was ongoing supply of a prohibited drug (cocaine), contrary to s 25A(1). The second count was supply of a prohibited drug in excess of a commercial quantity, being 331.6 grams of cocaine, contrary to s 25(2).

The offending arose from the offender's involvement with a man known as "Ohmid" and his associates, whom he had met while working as a security guard at a Sydney casino. Between 6 April and 25 April 2019 the offender supplied cocaine on eight separate occasions in small quantities, and on 27 April 2019 he was intercepted on the Hume Highway transporting 331.6 grams of cocaine concealed in a secret compartment within the glove box of a VW Golf, destined for Canberra.

Police stopped the offender after observing him driving at speeds exceeding 140 km/h. A search of the vehicle revealed the cocaine, as well as additional hidden compartments, and forensic examination of a Huawei phone linked the offender to a large WhatsApp group used to facilitate drug supply. At trial, the offender denied knowledge of the drugs; the jury rejected that account.

  • What was the appropriate sentence for two serious drug supply offences under the Drug Misuse and Trafficking Act 1985, each carrying a maximum penalty of 20 years' imprisonment?
  • How should the court weigh objective seriousness, moral culpability, and the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999?
  • What weight should be given to subjective mitigating factors, including prior good character, rehabilitation prospects, and circumstances of recruitment into the offending?
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio.
  • Whether an intensive corrections order, rather than full-time custody, was appropriate.

Decision

The court found both offences were objectively serious. The quantity of cocaine involved in count 2 exceeded a commercial quantity, and count 1 demonstrated a pattern of sustained street-level supply over several weeks. The court rejected the defence submission that the offender's moral culpability was significantly reduced because he had been "groomed" or targeted by the criminal group at a vulnerable point in his life. While that background was noted, the court found it did not substantially reduce the seriousness of the conduct.

The court accepted a number of mitigating factors in the offender's favour, including his prior good character, his rehabilitation prospects, and his being unlikely to re-offend. These factors were relevant to the subjective side of the sentencing exercise but did not warrant the very low head sentence of three years proposed by the defence, nor an intensive corrections order in lieu of imprisonment.

On the question of special circumstances (a term used in sentencing to justify extending the parole period beyond the standard ratio), the court found such circumstances existed. The primary basis was that this was the offender's first time in custody. The court also took into account the additional difficulties of initial custody during the COVID-19 pandemic, concluding that an extended supervisory parole period would better support rehabilitation and community protection.

The court declined to impose an intensive corrections order, instead imposing an aggregate term of full-time imprisonment. The related speeding offence was dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999, meaning a conviction was recorded but no further penalty was imposed.

Orders Made

  • The offender was convicted of each offence.
  • Indicative sentence for count 1 (ongoing supply): 2 years and 6 months' imprisonment.
  • Indicative sentence for count 2 (supply in excess of commercial quantity): 3 years' imprisonment, with an indicative non-parole period of 20 months.
  • Aggregate sentence of 3 years and 6 months' imprisonment, commencing 19 August 2021.
  • Non-parole period of 2 years, expiring 18 August 2023.
  • Special circumstances found, on the basis that this was the offender's first time in custody and the difficulties of COVID-era custody, justifying an extended parole period.
  • Speeding offence (sequence 2, H73423484): dealt with under s 10A of the Crimes (Sentencing Procedure) Act 1999 (conviction recorded, no additional penalty).
  • Remaining charges withdrawn and dismissed.

Key Takeaways

  • The District Court confirmed that a claim of being "groomed" or recruited into offending by a criminal group, while potentially relevant to moral culpability, does not automatically produce a significant reduction in sentence where the offending was sustained and serious.
  • Prior good character remains a recognised mitigating factor in drug supply sentencing, even where the offending involved multiple instances of supply over several weeks.
  • Special circumstances justifying an extended parole period can be established by a combination of first-time custody and the additional hardships of imprisonment during the COVID-19 pandemic.
  • An intensive corrections order is not available as of right simply because an offender has good rehabilitation prospects and no prior record; the objective seriousness of the offence and the purposes of sentencing, including deterrence, remain central considerations.
  • Under s 25A(1) of the Drug Misuse and Trafficking Act 1985, ongoing supply carries a maximum of 20 years' imprisonment with no standard non-parole period, while s 25(2) supply in excess of a commercial quantity carries the same maximum but with a standard non-parole period of 10 years, both of which function as important yardsticks in the sentencing exercise.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 25A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A, 66, 166

Cases
- Muldrock v The Queen (2011) 244 CLR 120
- Ritter v The Queen [2012] NSWCCA 121
- Parente v The Queen [2017] NSWCCA 284
- Borg v R; Gray v R [2020] NSWCCA 67
- Bond v R [2020] NSWCCA 277
- R v McBride [2019] NSWDC 371
- Sheather v R [2020] NSWCC 162
- R v Turk [2020] NSWDC 400
- R v Johnston [2019] NSWDC 901
- R v Micah [2015] NSWDC 321
- R v Newton [2020] NSWDC 806
- R v Loudon [2020] NSWDC 57