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District Court 6 June 2022

R v Mott

[2022] NSWDC 204

Drugs
SENTENCING 19 BORDER CLOSURES LIMITED CRIMINAL HISTORY STRONG SUBJECTIVE CASE HISTORY OF DRUG ADDICTION MEDIUM RISK OF REOFFENDING

Citation: R v Mott [2022] NSWDC 204
Court: District Court of New South Wales
Date: 6 June 2022
Judge: Grant DCJ

Background

The offender, a 32-year-old woman from Deniliquin, was sentenced for knowingly taking part in the supply of 336 grams of methylamphetamine, a commercial quantity under the Drug Misuse and Trafficking Act 1985. The offending arose in September 2020, when NSW-Victoria border crossings were controlled by police due to COVID-19 restrictions. Rather than risk a road crossing, the offender's co-offender and an associate flew a drone across the Murray River to receive the drugs from a Melbourne associate.

The offender's role in the principal offence was as the sole licensed driver in the vehicle, transporting the group to the Moama riverbank location. She remained in the car while the drone transaction took place. Separately, between August and October 2020, she took part in seven smaller drug supply transactions, weighing and preparing methylamphetamine under the direction of her co-offender partner. Cash proceeds from those sales were later seized at the couple's residence.

Two additional charges were listed on a Form 1 to be taken into account at sentencing: a charge of supply of a prohibited drug (indictable quantity) and a charge of dealing with proceeds of crime. The offender had entered an early guilty plea in committal proceedings.

  • What was the appropriate objective seriousness of the principal offence, given the offender's limited role?
  • What weight should be given to the Form 1 offences in determining the overall sentence?
  • What discount applied for the early guilty plea?
  • Whether an Intensive Correction Order (ICO) was appropriate in lieu of full-time custody, having regard to community safety as the paramount consideration under s 66 of the Crimes (Sentencing Procedure) Act 1999.

Decision

Grant DCJ assessed the principal offence as falling at the lower end of objective seriousness. While the 336 grams of methylamphetamine was not merely marginal above the commercial quantity threshold of 250 grams, the offender's role was limited: she was the licensed driver, but remained in the car during the actual transaction. The Crown conceded her role was less significant, and the court accepted that her involvement was "more convenient than critically necessary," though it acknowledged that even those with lesser roles in drug supply networks warrant substantial punishment.

The Form 1 matters added weight to considerations of personal deterrence and retribution. The seven smaller supply transactions demonstrated that the offender's involvement, though directed by her co-offender partner with whom she had a personal relationship, was not a one-off event. The proceeds of crime offence, involving modest sums of cash, was assessed at the very low end of objective seriousness.

The offender's subjective case was described as strong. She had a ten-year history of ice addiction, was assessed as a medium risk of reoffending, demonstrated genuine remorse, and had strong pro-social family support. Her criminal history was sparse. She received a 25 per cent discount for her early guilty plea.

On the question of an ICO, Grant DCJ applied the principles from Mourtada v R and Mandranis v R, which confirm that community safety is the paramount consideration under s 66, but does not exclude other factors. The court was satisfied, after weighing all relevant matters, that an ICO was appropriate and that short periods of full-time custody are not necessarily effective deterrents.

Orders Made

  • The offender was convicted and sentenced to 2 years' imprisonment, commencing 6 June 2022 and expiring 5 June 2024, to be served by way of an Intensive Correction Order (ICO).
  • Standard ICO conditions imposed: no further offending; supervision by a Community Corrections Officer (Albury Community Corrections District Office).
  • Additional conditions:
  • Undergo treatment and rehabilitation programs as directed
  • Not consume illicit drugs
  • Perform 250 hours of community service work
  • Telephone the Albury Community Corrections office within 7 days

Key Takeaways

  • A lesser role in a drug supply operation does not preclude a substantial sentence. The District Court reaffirmed that without participants at every level of supply networks, including those playing supporting roles, those networks could not function.
  • Under s 66 of the Crimes (Sentencing Procedure) Act 1999, community safety is the paramount consideration when a court evaluates whether to impose an ICO, but this does not require a positive favourable opinion before an ICO can be ordered. Other factors are subordinated, not excluded.
  • Form 1 offences must be reflected in the overall sentence, which may exceed what the principal offence alone would attract. Greater weight is given to personal deterrence and retribution where Form 1 matters are taken into account.
  • An early guilty plea entered at committal proceedings attracted a 25 per cent discount under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999.
  • The weight of the drug seized is a major, but not determinative, factor in assessing objective seriousness. The offender's actual role and conduct remain the more important considerations, consistent with R v Olbrich and Hanh Thi Nguyen v R.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D, 32, 66
- Crimes Act 1900 (NSW), s 193C(2)

Cases
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518
- Blanch v R [2019] NSWCCA 304
- Hanh Thi Nguyen v R [2011] NSWCCA 92
- Mandranis v R [2021] NSWCCA 97
- Mourtada v R [2021] NSWCCA 211
- Parente v R [2017] NSWCCA 284
- R v Calcutt [2012] NSWCCA 40
- R v Fabian (1992) 64 A Crim R 365
- R v Fangaloka [2019] NSWCCA 173
- R v Olbrich (1999) 199 CLR 270
- R v Pickett [2010] NSWCCA 273