AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 8 October 2021

R v Bagnall

[2021] NSWDC 738

DrugsFirearms & weapons
CRIMINAL SENTENCE DRUG SUPPLY METHYLAMPHETAMINE CANNABIS OIL FORM 1 AND S166 MATTERS

Citation: R v Bagnall [2021] NSWDC 738
Court: District Court of New South Wales
Date: 8 October 2021
Judge: King SC DCJ

Background

The offender, a 50-year-old man, was stopped by police on the Pacific Highway on 6 November 2020 after surveillance connected him to a co-offender under investigation for drug supply. A search of the vehicle he was driving revealed 188.92 grams of methylamphetamine. An oral fluids test confirmed the presence of methylamphetamine in his blood.

A subsequent search of his home at Taylors Arm uncovered further drug-related material, including cannabis leaf, cannabis oil, strips of buprenorphine, and evidence of a large-scale cannabis cultivation operation involving 192 plants grown indoors for a commercial purpose. Police also found a flick knife in his jeans pocket and $1,387.70 in cash suspected to be proceeds of crime.

The offender was sentenced across three principal offences (supply of methylamphetamine on two occasions and enhanced indoor commercial cannabis cultivation), together with a series of matters taken into account on a Form 1 (including the flick knife possession, cannabis oil supply, cannabis leaf and buprenorphine possession, and the proceeds of crime charge), and one related traffic offence dealt with under a section 166 certificate.

  • What was the appropriate aggregate sentence across the principal offences, having regard to objective seriousness, the offender's role, and the totality principle?
  • How should the Form 1 matters (including one carrying a standard non-parole period, namely the prohibited weapon charge) be weighed in sentencing?
  • What subjective features were relevant to mitigate the sentence, including the offender's background, health, and rehabilitation efforts?
  • How should the aggregate sentence be structured in relation to time already spent in custody and an earlier revoked Intensive Correction Order (ICO)?

Decision

King SC DCJ assessed the principal drug supply offences as significant in objective seriousness. The 188.92 grams of methylamphetamine, while below the commercial quantity threshold (which is 250 grams under the Drug Misuse and Trafficking Act 1985), represented a substantial quantity. The commercial cannabis cultivation involving 192 plants was treated seriously, reflecting the scale and infrastructure of the operation.

His Honour noted that the prohibited weapon charge on the Form 1 technically should not have been included there, given that the Court of Criminal Appeal has indicated that offences carrying a standard non-parole period are inappropriate for Form 1 treatment. However, the matter was presented that way by the parties and the court proceeded accordingly. The flick knife itself was assessed as sitting towards the lower end of seriousness within the range of weapons prohibited under Schedule 1 of the Weapons Prohibition Act 1988.

Subjective factors considered included the offender's age, health issues, and steps taken toward rehabilitation while in custody, including completing courses and avoiding prison disciplinary breaches. The court also took into account the offender's background and the circumstances of the offending, including his role in the supply chain.

The court imposed an aggregate sentence and structured it to account for time already served following the revocation of a prior ICO. His Honour noted that the statutory relationship between the non-parole period and balance of term was varied slightly to reflect pre-sentence custody and to allow for a parole period of approximately two years.

Orders Made

  • Aggregate sentence of seven years, commencing 7 February 2021, with a non-parole period of five years.
  • The offender becomes eligible for parole on 6 February 2026, with a balance of term of two years expiring 6 February 2028.
  • Sequences 13, 15, and 17 (backup section 166 offences) withdrawn and dismissed on application by the Crown.
  • Automatic licence disqualification applied in relation to the drug-driving offence (section 166 matter).

Key Takeaways

  • The District Court confirmed that Form 1 is not the appropriate vehicle for offences that carry a standard non-parole period, consistent with Court of Criminal Appeal guidance in cases such as R v Kerr [2016] NSWCCA 218, though the court proceeded on the basis as presented by the parties.
  • An aggregate sentencing approach was applied across multiple drug, weapons, and proceeds-of-crime offences, with the court varying the standard non-parole period to parole period ratio to reflect pre-sentence custody and rehabilitation prospects.
  • Possession of a flick knife under Schedule 1 of the Weapons Prohibition Act 1988 was characterised as falling at the lower end of seriousness relative to other items in that schedule, such as grenades, flamethrowers, and trench knives.
  • Where an offender has served time under a revoked ICO prior to commencement of a fresh aggregate sentence, the court may adjust the start date and structure of the new term to avoid double-counting that earlier period of custody.
  • Steps taken toward rehabilitation during pre-sentence custody, including completing courses and maintaining a clear disciplinary record, were treated as relevant subjective matters favouring the offender at sentence.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 23(1A), 25(1)
- Weapons Prohibition Act 1988 (NSW), s 7(1), Schedule 1
- Crimes Act 1900 (NSW), s 193C(2)
- Road Transport Act 2013 (NSW), s 111
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 166 and Form 1 provisions

Cases:
- R v Kerr [2016] NSWCCA 218