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District Court 10 November 2021

R v Winters

[2021] NSWDC 792

Drugs

Citation: R v Winters [2021] NSWDC 792
Court: District Court of New South Wales
Date: 10 November 2021
Judge(s): M L Williams SC DCJ

Background

The offender, a 61-year-old Aboriginal man, appeared for sentencing on three drug offences arising from a police investigation into methylamphetamine supply in the Queanbeyan area. Surveillance and telephone intercepts conducted in early 2020 revealed that he operated as the directing mind of a retail drug distribution network, sourcing methylamphetamine from an upstream supplier, using a co-offender to collect and transport drugs, and on-supplying to local customers. He had been in custody since his arrest on 21 May 2020.

The offender pleaded guilty to: supplying 330 grams of methylamphetamine (a commercial quantity); supplying prohibited drugs on an ongoing basis (38 separate supplies totalling approximately 156 grams over a three-week period); and knowingly allowing his rented premises to be used as drug premises. Five additional matters were placed on a Form 1 (a procedure by which offences are taken into account on sentence without conviction) and attached to the ongoing supply count.

The co-offender in the principal supply count, Tara Stephens-Biles, had been sentenced earlier in the year. Defence counsel accepted that the offender's role was more serious than hers and that questions of sentencing parity carried limited weight. Full-time custody was not disputed.

  • What was the appropriate objective seriousness of each offence, particularly the ongoing supply count?
  • What weight should be given to the offender's record of previous convictions as an aggravating factor?
  • To what extent did mitigating factors, including the guilty plea, expressed remorse, Aboriginal background, childhood trauma, drug addiction, and mental health, reduce the appropriate sentence?
  • Should the sentences for the two principal counts run wholly concurrently or with some degree of accumulation?
  • Were special circumstances established, justifying a variation to the standard ratio between the non-parole period and the total sentence?

Decision

His Honour assessed the ongoing supply offence (sequence 22) as being around the mid-range of objective seriousness, accepting the defence submission that it did not reach above mid-range as the Crown had argued. The offender played a directing role: he sourced drugs from an upstream supplier on three separate occasions, used Stephens-Biles as a courier, and personally on-supplied to customers on 38 occasions over approximately three weeks. The 156 grams involved exceeded the threshold for an indictable quantity, though no evidence of purity was available.

In relation to the individual supply of 330 grams (sequence 2), His Honour found the offender had again directly sourced and negotiated the supply, directed Stephens-Biles, and liaised with the intended purchaser. The quantity exceeded the threshold for a commercial quantity (though not a large commercial quantity), and the drug was of high purity (73 to 75 percent). His Honour accepted that general and specific deterrence, together with protection of the community, warranted significant weight, given the offender's operation sustained a local market that in turn incentivised higher-level trafficking.

His Honour found that partial accumulation of the two principal sentences was appropriate. The two offences involved separate episodes of criminality, and a concurrent approach would not adequately reflect their distinct nature. The five Form 1 matters operated to modestly increase the sentence for the ongoing supply count.

The offender's extensive criminal record, which included prior drug supply and trafficking convictions from 1999, 2007, and later years, was treated as an aggravating factor indicating a persistent disregard for the law. Mitigating factors included the guilty plea (attracting a 25 percent discount), remorse accepted as genuine, and the Bugmy considerations: the offender's history of childhood sexual abuse, drug and alcohol addiction, and the deprivations of his Aboriginal background all reduced his moral culpability to a degree. His rehabilitation prospects were described as guarded, though His Honour noted some optimism that, at 61, the offender was beginning to engage with the need for change. Special circumstances were found, justifying an extended parole period relative to the non-parole period.

Orders Made

  • The offender was convicted of each offence.
  • A 25 percent discount was applied to all sentences for the pleas of guilty.
  • Indicative sentence for sequence 2 (supply 330g methylamphetamine): 2 years and 6 months, with a non-parole period of 20 months.
  • Indicative sentence for sequence 22 (ongoing supply, including Form 1 matters): 2 years and 2 months.
  • Indicative sentence for sequence 25 (drug premises): 6 months.
  • Aggregate sentence of 3 years and 1 month, commencing 21 May 2020, with a non-parole period of 2 years expiring 20 May 2022.
  • Special circumstances found.
  • Forfeiture order made by consent in relation to $1,065 in cash.

Key Takeaways

  • The District Court confirmed that Form 1 matters operate to modestly increase the sentence for the principal offence, with greater weight given to personal deterrence and community retribution, while the focus remains on the principal count (following the guideline in Attorney General's Application No 1 of 2002).
  • Where two separate drug supply offences arise from distinct episodes of criminality occurring over the same general period, a degree of accumulation of sentences may be warranted even if the offending overlaps in time.
  • Under the Bugmy principle, the moral culpability of an Aboriginal offender is reduced where evidence establishes a background of childhood deprivation, trauma, and disadvantage, and those factors must be given weight even in cases involving serious and persistent offending.
  • A lengthy criminal record for drug supply offences is a significant aggravating factor that elevates the weight given to retribution, specific deterrence, and community protection in the sentencing balance.
  • Rehabilitation prospects described as only "guarded," combined with an extensive prior record, do not preclude a finding of special circumstances, particularly where an offender's background of trauma and addiction supports an extended post-release supervision period.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 25A(1), 36Y(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, s 37

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- R v CBK (2002) 135 A Crim R 260
- Parente v R [2017] NSWCCA 284
- Bugmy v The Queen (2013) 249 CLR 571