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District Court 3 December 2021

R v Tafra; R v Westaway

[2021] NSWDC 833

Assault & violenceDrugsPublic order & justice offences
CRIME DRUG OFFENCES ONGOING SUPPLY METHYLAMPHETAMINE DETAIN FOR ADVANTAGE CIRCUMSTANCES OF AGGRAVATION

Citation: R v Tafra; R v Westaway [2021] NSWDC 833
Court: District Court of NSW
Date: 3 December 2021
Judge(s): Tupman DCJ

Background

Two co-offenders, Tafra (aged 33 at the time of offending) and Westaway (aged 47), were sentenced for offences arising from interconnected events in the Armidale and Uralla region of NSW in September 2020. Tafra was separately sentenced for ongoing supply of methylamphetamine as part of a broader drug supply network investigated by police using telephone interception. He and five other co-offenders were found to be part of a circular, unsophisticated supply arrangement rather than any formal drug syndicate hierarchy.

The aggravated detention offences arose from a single violent episode. Three people stole half an ounce of methylamphetamine from Tafra. He gave chase along the New England Highway, rammed their vehicle at extreme speed causing it to roll, and then forced the occupants at knifepoint to search the wreckage for the drugs. The victims were subsequently taken to Westaway's home in Armidale, where they were detained in a garage for approximately one hour before escaping over a rear fence.

Tafra faced three substantive offences plus multiple Form 1 and related offences, totalling ten matters. Westaway faced two substantive detention charges. The sentencing judgment also addressed significant criticism of the way charges were managed through the Early Appropriate Guilty Plea (EAGP) scheme, resulting in unnecessary complexity and delay.

Legal Issues

  • What is the appropriate sentence for Tafra's ongoing supply of methylamphetamine across 21 occasions over one month, committed while serving an Intensive Corrections Order (ICO)?
  • What is the objective seriousness of the detention offences for each offender, given the short duration, absence of physical violence, and the fact that the victims had themselves stolen drugs from Tafra?
  • How should the court assess the s 33B offence (using a motor vehicle as an offensive weapon to intimidate) in terms of objective seriousness?
  • How should special circumstances, mental health, childhood sexual abuse, drug addiction, and genuine remorse be weighed in the subjective assessment for each offender?
  • How should multiple sentences be structured to reflect totality across the drug supply sentence and the subsequent detention-related sentences?
  • Whether the detention offences for Westaway could appropriately be served by way of ICO, notwithstanding that he committed them while subject to an existing ICO.

Decision

Ongoing Drug Supply (Tafra)

The court found that Tafra supplied methylamphetamine on 21 separate occasions during a one-week period in September 2020, totalling 17.65 grams and earning between $11,000 and $12,000 (at [14]-[15]). Two further individual supply offences in July 2020 were taken into account on a Form 1 (at [17]-[18]). The court placed the offending well below the mid-range of objective seriousness, describing Tafra as "a relatively small-time supplier undertaken by a hopeless drug addict in a small city to a small circle of friends and associates," though acknowledging the seriousness was elevated by the commission of the offence while serving an ICO for an identical offence (at [22]). After a 25% guilty plea discount from a starting point of three years, and finding special circumstances, the court imposed 2 years and 3 months with a non-parole period of 18 months (at [43]-[45]).

Drug Supply Network Findings

The court found that the network was circular and unsophisticated, with no clear hierarchy, no burner phones, no coded communications, and frequent mutual supply between members (at [8]-[11]). All members were drug users and addicts who supplied partly to fund their own habits and partly for general living expenses (at [9]-[10]). The court declined to characterise the group as a syndicate in the conventional sense (at [13]).

Objective Seriousness: Detention Offences

The court found the detention offences for both Tafra and Westaway to be at the very low end of the range (at [82]-[85], [113]). The detention lasted approximately one hour, no physical violence or weapons were used during the detention itself, and the victims appeared at times relatively free to move about (at [83], [112]). While the victims had stolen from Tafra, the court was careful to note this did not amount to legal provocation, but was a relevant surrounding circumstance going to objective criminality (at [84]). The court ultimately found Tafra's physical involvement in the detention was even less than Westaway's, as Tafra went to charge his phone upon arrival, played no identified role in the searching, and departed before the detention ended (at [108]-[111]).

Objective Seriousness: Section 33B Offence (Tafra)

The court found the use of a motor vehicle to chase and collide with the victims' car at speeds reaching approximately 180 kilometres per hour was by far the most serious offence Tafra faced, and assessed it at around the middle of the range (at [87]). Although the motor vehicle is towards the lower end of weapons capable of constituting an "offensive weapon," the manner in which it was used was extremely dangerous and caused one victim to be rendered unconscious (at [115]-[116]). The court observed that, had anyone been killed, Tafra would have faced far graver charges (at [87]).

Subjective Features and Totality

Both offenders had suffered childhood sexual abuse, had significant mental health diagnoses including PTSD and major depressive disorder, had histories of drug use from early adolescence, and had shown genuine remorse (at [27]-[37], [93]-[96]). Both had taken steps toward rehabilitation since entering custody. The court accepted an indirect connection between each offender's psychiatric conditions and their offending (at [34], [129]). For Tafra, the court imposed an aggregate sentence of 3 years and 6 months with a non-parole period of 2 years for the detention and s 33B offences, commencing on 7 April 2021 to give effect to overall totality across all sentences (at [141], [144]-[145]). For Westaway, the court found that 18 months served by ICO was appropriate given his low objective criminality, good rehabilitation prospects, and the approximately 10 months he had effectively already spent in custody in connection with these offences (at [101]-[104]).

EAGP Scheme and Case Management Criticism

The court criticised the management of these matters through the EAGP scheme at length, observing that lengthy negotiations had delayed serious matters coming before the District Court at an appropriate time, that related offences which should have remained in the Local Court had been sent up unnecessarily, and that the co-offenders had not been sentenced together as they should have been (at [5]-[6], [54]-[55]).

Orders Made

Tafra: Ongoing Drug Supply
- Convicted; sentenced to 2 years and 3 months imprisonment, with a non-parole period of 18 months and parole of 9 months.

Tafra: Detention and Offensive Weapon Offences (Sequences 14, 15, 19)
- Convicted on all three substantive offences.
- Aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999: 3 years and 6 months, with a non-parole period of 2 years and parole of 18 months.
- Form 1 offences (Sequences 17 and 22) taken into account.
- Backup offences (Sequences 3 and 7) withdrawn and dismissed.

Tafra: Driving with Cancelled Licence (Sequences 1 and 6)
- Convicted; s 10A applied, no further penalty; minimum disqualification of 6 months in each case.

Tafra: Drive in Dangerous Manner (Sequence 4)
- Convicted; s 10A applied, no further penalty; disqualified for 18 months (concurrent with other disqualifications, not to commence until release from custody).

Westaway: Detention Offences (Sequences 2 and 3)
- Convicted; sentenced to 18 months imprisonment for each offence, served concurrently, by way of Intensive Corrections Order.

Key Takeaways

  • In assessing objective seriousness for detention offences, the District Court weighed the short duration of detention, absence of physical violence, and the fact that the victims had themselves initiated the incident by stealing from the offender. Those factors collectively placed both offenders' detention conduct at the very low end of the range, even though the legal threshold for full-time custody was clearly crossed for Tafra (at [82]-[85], [113]).

  • Where an offender's physical involvement in a detention is minimal and the purpose of the detention is the recovery of stolen property rather than any independent criminal enterprise, those circumstances bear directly on objective seriousness. The court distinguished between the motivation for the detention (which connected more closely to Tafra) and the actual physical conduct of the detention (which connected more closely to Westaway) (at [107]-[111]).

  • Using a motor vehicle to ram another car at extreme speed on a public highway constituted use of an offensive weapon for the purposes of s 33B of the Crimes Act 1900, assessed at around the middle of the range despite the motor vehicle being towards the lower end of implements in that category (at [87], [115]-[116]).

  • A finding of special circumstances may be made where an offender requires a longer than usual period of supervised parole to address serious drug addiction and mental health conditions, even where practical constraints mean the extended parole period offers limited immediate benefit due to accumulated sentences (at [44]-[45]).

  • The District Court repeated its criticism that the EAGP scheme, as applied in the Armidale circuit, had produced fragmented sentencing proceedings, unnecessary delays in bringing serious offences before the court, and the transfer of summary matters that should have remained in the Local Court. The court noted this outcome undermined the efficiency objectives the scheme was designed to achieve (at [5]-[6], [54]-[55]).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 10A, 53A . Crimes Act 1900 (NSW): ss 33B(1)(a), 86(2)(a), 193B(2). Criminal Procedure Act 1986 (NSW): s 166 . Drug Misuse and Trafficking Act 1985 (NSW): s 25(1) ; S25A.

Cases
- Not stated