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District Court 7 April 2022

R v Carr, Dean William

[2022] NSWDC 231

Drugs
DRUG ADDICTION “NEW COUNT OFFENCE”

Citation: R v Carr, Dean William [2022] NSWDC 231
Court: District Court of New South Wales
Date: 7 April 2022
Judge: P Taylor SC DCJ

Background

The offender pleaded guilty to supplying a commercial quantity of heroin, an offence under s 25(2) of the Drug Misuse and Trafficking Act 1985 carrying a maximum penalty of 20 years' imprisonment and a ten-year standard non-parole period. The charge arose from an incident in April 2020 in which the offender returned a backpack containing heroin and drug paraphernalia to a co-offender.

The offender was originally committed for trial on more serious charges: supply of a large commercial quantity of a prohibited drug and two firearms offences. The commercial quantity supply charge was added by way of an ex officio (prosecutor-initiated) indictment after committal, making it a "new count offence" under the Crimes (Sentencing Procedure) Act 1999.

The central sentencing dispute concerned the size of the guilty plea discount. The offender sought a 25% reduction under s 25D(3)(a), while the Crown submitted that only 10% applied under s 25D(2) because the higher discount was excluded by s 25D(4)(a).

  • Whether s 25D(4)(a) of the Crimes (Sentencing Procedure) Act 1999 operated to exclude the 25% "new count offence" plea discount under s 25D(3)(a)
  • Specifically, whether the facts or evidence supporting the new count offence were "substantially the same" as those in the original committal brief, taking into account that the original indictment included firearms charges as well as a more serious drug charge
  • What non-parole period was appropriate given the offender's Aboriginal background, drug addiction, and mental health history
  • Whether parity considerations with the co-offender affected the sentence

Decision

The plea discount question turned on the proper construction of s 25D(4)(a), which excludes the 25% discount if two conditions are both met: the facts or evidence establishing the new count offence are "substantially the same" as those in the committal brief, and the new count offence carries the same or lesser penalty than the original charge. His Honour followed the analysis in R v Doudar [2020] NSWSC 1262, which examined the same provisions in detail, while recognising that the present case had a material difference.

In Doudar, there was a straightforward one-to-one comparison between an original murder charge and a new accessory after the fact charge. Here, the original indictment contained three charges, including two firearms offences. The facts and evidence relevant to those firearms charges were not "substantially the same" as the evidence supporting the new commercial quantity drug charge. His Honour held that the phrase "brief of evidence" in s 25D(4)(a) requires consideration of all material served in relation to all original charges, not merely the most serious one. Because the firearms evidence was materially different from the evidence underpinning the new count, the exclusion in s 25D(4)(a) did not apply.

The 25% discount was accordingly allowed. His Honour also noted the relevance of R v Rifai [2022] NSWDC 74, where a full 25% discount was granted when new possession charges replaced original supply charges on the grounds that the underlying facts were not substantially the same.

On sentence, the court found that the offence fell at the lower end of objective seriousness within its category, given the offender's limited role. Subjective factors included the offender's Aboriginal background (considered in accordance with Bugmy v The Queen (2013) 249 CLR 571), significant drug addiction, and mental health issues. Special circumstances were found on account of mental illness and drug dependence, justifying a non-parole period shorter than the standard proportion. The sentence was backdated to the date of first custody, and the offender was therefore already eligible for parole at the time of sentencing.

Orders Made

  • Convicted of supply of a commercial quantity of a prohibited drug under s 25(2) of the Drug Misuse and Trafficking Act 1985
  • Sentenced to imprisonment for two years and three months, commencing 26 August 2020 and expiring 25 November 2022
  • Non-parole period set at 18 months, with parole eligibility from 25 February 2022
  • Special circumstances found

Key Takeaways

  • Under s 25D of the Crimes (Sentencing Procedure) Act 1999, the 25% "new count offence" discount is excluded by s 25D(4)(a) only if both conditions in that subsection are satisfied: the evidence is substantially the same and the penalty is the same or lesser. Both requirements must be met before the larger discount is unavailable.

  • Where an original indictment contains multiple charges, the comparison required by s 25D(4)(a) is not limited to the most serious offence. The "brief of evidence" encompasses material served in relation to all original charges, and if the evidence for even one original charge is not substantially the same as the evidence for the new count, s 25D(4)(a) may not operate to exclude the 25% discount.

  • A "narrowing of the offender's role" alone, resulting in a lesser charge, does not make the facts or evidence "substantially different" for the purpose of s 25D(4)(a). Something more is required, as illustrated by the contrast between Doudar (one charge replaced by one lesser charge, same factual foundation) and the present case (firearms charges on the original indictment introduced materially different evidence).

  • The District Court confirmed that an offender's Aboriginal background, together with drug dependence and mental illness, can support a finding of special circumstances justifying a reduced non-parole period.

  • Sentences backdated to the commencement of pre-sentence custody can result in an offender being eligible for parole immediately upon sentencing, as occurred here.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 25D, 25E, 54A
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 25(2)
- Interpretation Act 1987 (NSW), s 8

Cases
- Anderson v Judges of the District Court (NSW) (1992) 27 NSWLR 701
- Bugmy v The Queen (2013) 249 CLR 571
- DPP v De La Rosa (2010) 79 NSWLR 1
- Mandranis v R [2021] NSWCCA 97
- Paxton v R [2011] NSWCCA 242
- R v Black (No 2) [2021] NSWSC 77
- R v Blair (2005) 152 A Crim R 462
- R v Doudar [2020] NSWSC 1262
- R v DW [2012] NSWCCA 66
- R v Edelbi [2021] NSWCCA 122
- R v French [2021] NSWSC 1531
- R v MacDonnell [2002] NSWCCA 34; (2002) 128 A Crim R 44
- R v Pham, Tran & Dang; Ex parte DPP [2017] QCA 046
- R v Rifai [2022] NSWDC 74
- R v Sara [2020] NSWCCA 119
- Regina v Shi [2004] NSWCCA 135
- Taysavang v R [2017] NSWCCA 146
- The Queen v Olbrich (1999) 199 CLR 270
- Tyler v The Queen (2007) 173 A Crim R 458