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District Court 19 August 2021

R v Cole; R v Jattan

[2021] NSWDC 714

DrugsFirearms & weapons

Citation: R v Cole; R v Jattan [2021] NSWDC 714
Court: District Court of New South Wales
Date: 19 August 2021
Judge: M L Williams SC DCJ

Background

Two men, aged 40 and 38 respectively, appeared for sentencing on serious drug supply and firearms offences arising from the same criminal episode in the Grafton and Coffs Harbour region. Between September and November 2019, they operated as part of a network that made eight round trips to Sydney to purchase methylamphetamine from an upstream supplier, then distributed the drug to street-level suppliers in the Grafton area. In total, the syndicate sourced 1.542 kilograms of methylamphetamine at a cost of approximately $149,100.

Both men were on conditional liberty at the time of the offending. The older offender (Cole) was on parole from a prior drug supply sentence, while the other offender (Jattan) was serving an Intensive Corrections Order for earlier drug supply and firearms offences. Police used covert surveillance techniques to monitor the syndicate's activities over approximately two months before arresting both men in November 2019.

Firearms were a further dimension of the offending. Jattan purchased a shortened .22 calibre rifle from an unlicensed source, kept it unsafely, and had expressed a desire to arm himself for protection. Cole separately acquired tasers, which were located at his residence on the day of his arrest.

  • What was each offender's role and position within the drug supply hierarchy, and how should that affect the objective seriousness of the offending?
  • How should the court weigh aggravating factors, including the operation in company, planning and organisation, prior records, and breach of conditional liberty?
  • What weight should be given to mitigating factors, including guilty pleas, drug addiction, remorse, and the principles relating to the sentencing of Aboriginal offenders?
  • Whether special circumstances existed to justify a variation in the standard ratio between the non-parole period and the total term.
  • How to achieve appropriate parity with co-offenders Taylor and Rafferty, who had already been sentenced.

Decision

Williams SC DCJ found that Cole and Jattan were, broadly speaking, at a similar level in the syndicate hierarchy. The Crown argued that Cole directed the activities of Jattan and Taylor and financed drug purchases, but the court did not accept that characterisation on the agreed facts. While Cole played a more active organisational role in some respects, the overall picture from the agreed facts was of the two principal offenders operating at comparable levels. Taylor and Rafferty, the other participants, were clearly lower in the hierarchy and their sentences were treated as a reference point rather than a strict parity comparator.

The court identified several significant aggravating factors applicable to both offenders: the drug offending was planned and organised, committed in company, involved quantities far exceeding the large commercial threshold, and occurred while both men were on conditional liberty. The fact that Jattan sought out firearms to protect himself from perceived vulnerability did not reduce the seriousness of that offending; the court noted the maximum penalty of 14 years for that offence reflected its gravity.

Both offenders received a 25 per cent discount on their sentences for their guilty pleas. The court applied the principles from Bugmy v The Queen and R v Millwood in assessing each man's background, noting that the effects of profound deprivation and disadvantage in childhood do not diminish over time and must be given full weight at sentencing. Drug addiction was acknowledged as a significant factor in both subjective cases.

The court found special circumstances in both cases, given each offender's need for drug treatment and extended supervision during parole. The aggregate sentences and non-parole periods were structured to reflect this, with the parole period extended beyond the statutory norm.

Orders Made

Cole:
- Convicted of all offences
- Count 1 (commercial drug supply, taking Form 1 matters into account): indicative sentence of 5 years, 6 months
- Count 2 (acquire firearm without permit): indicative sentence of 12 months
- Aggregate sentence of 5 years, 10 months imprisonment, commencing 14 November 2019
- Non-parole period of 3 years, 4 months, expiring 13 March 2023
- Special circumstances found
- Confiscation orders made by consent

Jattan:
- Convicted of all offences
- Count 1 (commercial drug supply, taking Form 1 matters into account): indicative sentence of 5 years, 6 months
- Count 2 (possess shortened firearm without authority): indicative sentence of 12 months
- Aggregate sentence of 5 years, 10 months imprisonment, commencing 14 November 2019
- Non-parole period of 3 years, 4 months, expiring 13 March 2023
- Special circumstances found
- Confiscation orders made pursuant to consent orders dated 19 August 2021

Key Takeaways

  • The District Court declined to treat one co-offender as the directing mind of the syndicate where the agreed facts did not clearly establish a significant hierarchy between the principal participants, even where one played a more active organisational role in some transactions.
  • Under the principles in Bugmy v The Queen, the effects of childhood deprivation and disadvantage on an offender's moral culpability do not diminish over time, and courts must give them full weight at each sentencing occasion regardless of the offender's age at the time of offending.
  • Breaching conditional liberty, whether parole or an Intensive Corrections Order, remains a significant aggravating factor under the Crimes (Sentencing Procedure) Act 1999 and was weighed against both offenders here.
  • A finding of special circumstances can be supported by an offender's need for drug treatment and extended post-release supervision, justifying a non-parole period proportionally shorter than the statutory default.
  • Parity with previously sentenced co-offenders does not require identical outcomes where those co-offenders occupied a materially lower position in the criminal hierarchy; the sentences imposed on Taylor and Rafferty were treated as context rather than a binding benchmark.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 93T, 193C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 37
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(2)
- Firearms Act 1996 (NSW), ss 39(1), 50(b), 62(1)(b), 65(3)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Bugmy v The Queen (2013) 249 CLR 571
- Grabovac v R [2018] NSWCCA 100
- Hoskins v R [2021] NSWCCA 169
- Imbornone v R [2017] NSWCCA 144
- Nye v The Queen [2018] NSWCCA 244
- R v Millwood [2012] NSWCCA 2
- R v Qi [2019] NSWCCA 73
- R v Qutami (2001) 127 A Crim R 369
- R v Taylor & Rafferty [2021] NSWDC 11
- R v Yiu; R v Yau [2018] NSWCCA 155
- Rakielbakhour v DPP [2020] NSWSC 323
- Tamer v R [2020] NSWCCA 333
- Taysavang v R; Lee v R [2017] NSWCCA 146