Citation: R v Howell [2021] NSWDC 744
Court: District Court of New South Wales
Date: 16 December 2021
Judge(s): Noman SC DCJ
Background
The offender, a 32-year-old man, appeared for sentencing on two counts of ongoing supply of prohibited drugs (methylamphetamine) contrary to s.25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The nominated 30-day periods were March to April 2020 (count 3) and June to July 2020 (count 2). Two additional periods of supply were reflected in offences listed on forms 1, which were taken into account in sentencing.
The offender operated as a street-level drug dealer in Broken Hill. He sourced methylamphetamine from suppliers who either mailed it or buried it for retrieval, and he maintained his own client base, organising and delivering supplies directly. He accepted payment including via PayID. Police identified him through a strike force investigation and, later, telephone intercepts.
All of the index offending occurred while the offender was on parole for unrelated offences. Parole had commenced on 15 February 2020, and the first drug supply offence began just five days later. After being charged and bailed in April 2020, the offender continued to offend while on bail, committing the conduct underlying count 2.
Legal Issues
- How the two ongoing supply offences should be characterised in terms of objective seriousness
- What weight to give to the offender's criminal history, including prior drug trafficking offences in Victoria
- Whether the offender's subjective circumstances (childhood trauma, mental health, addiction, and support network) warranted mitigation
- Whether a finding of special circumstances was justified to vary the statutory non-parole period ratio
- How totality principles applied given a pre-existing sentence imposed from 27 October 2020
- Whether an Intensive Correction Order was an appropriate sentencing option
Decision
Objective seriousness: The District Court assessed both offences as falling within the mid-range of seriousness for the ongoing supply provision. Count 3 involved 39 separate supplies totalling at least 37.875g for at least $6,310. Count 2 involved 49 separate supplies totalling at least 55.56g for at least $16,025. While many individual transactions were small and consistent with single personal use, some were substantially larger. The operation displayed a degree of sophistication, though the offender's own dealings were characterised as street-level.
Subjective circumstances: The court accepted that several factors warranted a reduction in moral culpability. These included a difficult childhood marked by parental substance abuse, domestic violence, and inadequate supervision; a childhood diagnosis of ADD/ADHD; borderline to low-average intelligence; and the development of PTSD symptoms following a traumatic event in 2017, which the offender said led him to self-medicate. The court acknowledged community support, abstinence since custody, and the offender's completion of addiction courses. However, his antecedents, including a history of drug trafficking offences and breaches of both parole and bail, disentitled him to leniency.
Special circumstances and totality: The court found special circumstances based on the need for additional post-release support, the impact of sentence accumulation on the overall term, and the restrictive conditions of custody during the COVID-19 pandemic. This justified varying the non-parole period ratio to approximately 66% on the aggregate sentence. The court backdated the sentence to 26 January 2021 and structured it with partial concurrency alongside the earlier sentence imposed from 27 October 2020, having regard to totality. An Intensive Correction Order was rejected given the seriousness of the offending.
Guilty plea discount: A 25% reduction was applied across both counts to reflect early pleas of guilty entered in the Local Court.
Orders Made
- The offender was convicted of both counts of ongoing supply of prohibited drugs.
- An aggregate sentence of 3 years imprisonment was imposed, with a non-parole period of 2 years, commencing 26 January 2021.
- The offender was to be released to parole on 25 January 2023.
- Taking into account the partial accumulation on the earlier sentence, the overall sentence was 3 years and 3 months, with an overall non-parole period of 2 years and 3 months.
- Indicative sentences (post-plea discount, inclusive of form 1 matters): count 3 at 22 months; count 2 at 2 years and 3 months.
Key Takeaways
- Ongoing supply offences under s.25A(1) of the Drug Misuse and Trafficking Act 1985 carry a maximum of 20 years imprisonment, which the court described as a legislative guidepost for assessing seriousness rather than a ceiling reserved for the worst cases.
- Committing drug supply offences within days of release on parole, and continuing to offend while on bail, constituted circumstances of aggravation that expressly weighed against leniency.
- Childhood trauma, mental health diagnoses, and self-medication with drugs can reduce moral culpability, but they do not override a significant prior criminal history or the need for full-time imprisonment where the s.5 threshold of the Crimes (Sentencing Procedure) Act 1999 is met.
- Where multiple sentences are accumulated, totality requires some concurrency, and the resulting increased burden on the offender can itself support a finding of special circumstances justifying a lower non-parole period ratio.
- Early guilty pleas entered in the Local Court attracted a 25% discount, applied after the otherwise appropriate sentence was determined.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s.25A(1) (ongoing supply of prohibited drugs)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s.3A (purposes of sentencing), s.5 (threshold for full-time imprisonment)
Cases: No specific cases were cited in the judgment text provided.