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District Court 14 December 2021

R v Can

[2021] NSWDC 775

Drugs
CRIME SENTENCE COMMENCEMENT DATE OF SENTENCE DISCRETIONARY.

Citation: R v Can [2021] NSWDC 775
Court: District Court of New South Wales
Date: 14 December 2021
Judge: Neilson DCJ

Background

A 58-year-old man was arrested on the evening of 15 October 2020 after police stopped him near his unit complex in Eastlakes. He had arrived by taxi from the Meriton Suites in Liverpool Street, Sydney, and left two bags on the back seat of the cab when he exited to enter his building.

Police searched the bags and found a total of 59.74 grams of methylamphetamine in a black laptop bag (the offender's own), along with 3.356 kilograms of GBL (gamma-butyrolactone) spread across several containers in a Woolworths shopping bag. The commercial quantity threshold for GBL is one kilogram, placing the amount seized well above that mark. The offender admitted the methylamphetamine was for his own use but told police numerous lies about the bags, initially denying any knowledge of them before later conceding the laptop bag was his.

The offender pleaded guilty to two charges of deemed supply (possession with the purpose of supply) under the Drug Misuse and Trafficking Act 1985 (NSW): one for the methylamphetamine and one for the commercial quantity of GBL. He also asked the court to take into account on a Form 1 an earlier supply of 112.86 grams of GBL on the same day. He had an extensive criminal history, including prior drug offences, and was on parole at the time of these offences.

  • What was the appropriate head sentence for each of the two substantive supply offences?
  • How should those individual sentences be combined into an appropriate aggregate sentence?
  • Whether special circumstances existed to justify a non-parole period that departed from the statutory ratio.
  • When the aggregate sentence should commence, given the offender was already serving a sentence when arrested.

Decision

The offender received a 25 per cent discount on each sentence for entering guilty pleas at the earliest available opportunity, as required under the Crimes (Sentencing Procedure) Act 1999 (NSW). The court set individual head sentences of one year and six months for the methylamphetamine offence and three years and nine months (with a non-parole period of two years and nine months) for the commercial quantity GBL offence. The Form 1 matter was taken into account in sentencing for the second offence.

Neilson DCJ found that the aggregate of those two individual sentences (five years and three months) required adjustment to avoid a disproportionate total. Applying the totality principle, the court reduced the aggregate to a head sentence of four years with a non-parole period of three years, representing the standard three-to-one ratio. No special circumstances were identified.

On the question of commencement, the court exercised its discretion to commence the aggregate sentence on 1 January 2021 rather than the date of arrest. This allowed the period from 15 October to 31 December 2020 to be attributed to the sentence the offender was already serving at the time of the offences.

Orders Made

  • Count 1 (methylamphetamine): convicted; head sentence of one year and six months.
  • Count 2 (GBL, commercial quantity): convicted; head sentence of three years and nine months, with a non-parole period of two years and nine months.
  • Aggregate sentence: four years imprisonment, comprising a non-parole period of three years commencing 1 January 2021 and expiring 31 December 2023, with a balance of term of one year expiring 31 December 2024.
  • No special circumstances found.
  • The Form 1 matter (supply of 112.86 grams of GBL) taken into account in respect of count 2.
  • Consent orders made for confiscation of a mobile phone.

Key Takeaways

  • The District Court applied the totality principle to reduce an aggregate of five years and three months to a four-year head sentence, reflecting the need to avoid a crushing total sentence even where multiple serious drug offences are involved.
  • A 25 per cent sentencing discount applied where the offender pleaded guilty at the earliest available opportunity, consistent with the statutory scheme under the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Committing offences while on parole was a significant aggravating factor in this sentencing exercise.
  • Under the Drug Misuse and Trafficking Act 1985 (NSW), the commercial quantity threshold for GBL is one kilogram; possessing 3.356 kilograms therefore attracted the more serious commercial quantity charge, though the large commercial quantity threshold of four kilograms was not reached.
  • The court exercised its discretion to backdate the commencement of the new sentence to 1 January 2021, allocating the intervening period from the date of arrest to the existing parole sentence already being served.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases cited: None cited in the judgment.