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District Court 21 October 2021

R v Moquet

[2021] NSWDC 737

Drugs
CRIME SENTENCE ONGOING DRUG SUPPLY

Citation: R v Moquet [2021] NSWDC 737
Court: District Court of New South Wales
Date: 21 October 2021
Judge: Bourke SC DCJ

Background

The offender, a French national living in Sydney on a temporary basis since 2018, was charged with one count of supplying prohibited drugs on an ongoing basis under s 25A of the Drug Misuse and Trafficking Act 1985. The offending took place across 27 days in July 2020, while the offender was residing at a hostel in Potts Point. He used the Grindr dating app and coded messaging to arrange the supply of methylamphetamine and gamma-Butyrolactone (GBL) to multiple buyers.

Police forensically examined the offender's mobile phone and identified 35 individual transactions or agreements to supply, covering 7.75 grams of methylamphetamine and 115 millilitres of GBL, with a total estimated value of at least $7,730. The offender used the code words "food" for methylamphetamine and "drinks" for GBL. On one occasion he left a quantity of GBL hidden in a tree near his hostel for a buyer to collect.

The offender was arrested in January 2021 at Kings Cross police station in connection with an unrelated matter. In his police interview, he made full and frank admissions, acknowledged the coded language he had used, and disclosed that financial difficulties and his own significant drug use had motivated the offending. He pleaded guilty at the earliest opportunity.

  • What was the appropriate sentence for an offence of ongoing drug supply under s 25A of the Drug Misuse and Trafficking Act 1985, carrying a maximum of 20 years' imprisonment?
  • What discount applied to reflect the early guilty plea?
  • Whether the sentence should be served by way of an Intensive Correction Order (ICO) rather than full-time custody, having regard to the offender's personal circumstances and prospects of rehabilitation.
  • Whether a drug proceeds order should be made under the Confiscation of Proceeds of Crime Act 1989, and if so, in what amount.

Decision

Bourke SC DCJ assessed the objective seriousness of the offending as significant, noting the number of transactions, the duration of the scheme, the involvement of two distinct prohibited substances, and the use of coded language to avoid detection. The court acknowledged, however, that the actual weight and purity of the drugs could not be established beyond reasonable doubt because no substances were seized and tested, which was a relevant factor in assessing the severity of the offending.

In mitigation, the court weighed the offender's early guilty plea (attracting a 25% discount), his full cooperation with police, his own substantial drug dependency, his financial hardship, and his relatively limited criminal history. The court also considered the principles established in Bugmy v R regarding the relevance of disadvantage to moral culpability, and referred to Kennedy v R and Hoskins v R in the context of sentencing for ongoing supply offences.

The court determined that a term of two years' imprisonment was appropriate, but that it could be served in the community by way of an Intensive Correction Order. In reaching that conclusion, the court accepted that the offender had genuine prospects of rehabilitation, which would be better served by community-based supervision and treatment than by full-time custody.

The question of whether a drug proceeds order should be made under the Confiscation of Proceeds of Crime Act 1989 was stood over to 1 November 2021, following the late filing of additional written submissions. The Crown submitted that the court was not bound by the specific monetary figure sought in the application, and that once an application is made under the Act the court must make an order if satisfied on the balance of probabilities. The court expressed concern about the adequacy of the material before it to assess the value of the benefit received.

Orders Made

  • A term of imprisonment of two years, to be served by way of an Intensive Correction Order (ICO) in the community.
  • Standard ICO conditions imposed: the offender must not commit any offence and must submit to supervision by a Community Corrections officer.
  • Additional condition 1: the offender must undertake drug and alcohol counselling or treatment as directed by Community Corrections.
  • Additional condition 2: the offender must undertake such other counselling or treatment as directed by Community Corrections.
  • The offender was directed to report to the city office of Community Corrections within seven days.
  • The court recommended that immigration authorities give favourable consideration to any application by the offender to remain in Australia, expressing the view that deportation would likely diminish his rehabilitation prospects.
  • The drug proceeds order application was adjourned to Monday, 1 November 2021, with the Crown granted 24 hours to file any response to the defence's further written submissions.

Key Takeaways

  • Under s 25A of the Drug Misuse and Trafficking Act 1985, an ongoing supply offence carries a maximum of 20 years' imprisonment, and the courts treat that maximum as an important reference point in the sentencing exercise.
  • Where prohibited substances were never seized or tested, the weight and purity cannot be established beyond reasonable doubt, which operates as a limiting factor on how the court can characterise the scale of the offending.
  • A 25% sentencing discount is available for a guilty plea entered at the earliest opportunity, and full cooperation in a police interview can carry additional mitigatory weight.
  • The District Court treated the offender's own drug dependency and financial hardship as relevant personal mitigating factors, consistent with the approach in Bugmy v R, and considered those matters alongside genuine rehabilitation prospects when deciding to impose an ICO rather than full-time custody.
  • Under the Confiscation of Proceeds of Crime Act 1989, the Crown's proceeds order application does not fail merely because the court takes issue with the specific amount particularised; the court may assess the value of the benefit independently, and once satisfied on the balance of probabilities the making of a proceeds order is mandatory, not discretionary.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Confiscation of Proceeds of Crime Act 1989 (NSW)

Cases
- Kennedy v R [2020] NSWCCA 49
- Bugmy v R (2013) 249 CLR 571
- Hoskins v R [2021] NSWCCA 169