Citation: R v Mason [2022] NSWDC 351
Court: District Court of New South Wales
Date: 18 August 2022
Judge: Mahony SC DCJ
Background
The offender, a 60-year-old man from Queensland, was arrested on 31 May 2021 on Sydney's Northern Beaches after police intercepted communications through the encrypted platform "ANOM." That morning, he was observed meeting a co-accused and handing bags believed to contain cash into that person's vehicle. He then drove to Austral in south-western Sydney, where another co-accused handed him a shopping bag.
When police stopped the offender at 12.15pm, he was visibly distressed, physically shaking, and made immediate admissions. A search of his vehicle revealed nearly one kilogram of cocaine (996.9 grams) concealed within the driver's door frame, along with $10,000 cash in a satchel, which the offender admitted was his payment for acting as a courier. The green shopping bag he had earlier handed to the first co-accused was later found to contain approximately $283,000 in cash.
The offender pleaded guilty to two offences: supplying a prohibited drug in excess of a commercial quantity, and knowingly dealing with proceeds of crime. He had been in custody from the date of his arrest. The sentencing hearing took place on 13 July 2022.
Legal Issues
- What was the appropriate sentence for supply of a prohibited drug in a quantity exceeding a commercial quantity (cocaine, 996.9 grams), having regard to objective and subjective factors?
- What weight should be given to the offender's guilty plea, cooperation, and subjective circumstances, including his drug dependency, mental health, financial hardship, and prospects of rehabilitation?
- Whether the sentence should be served by way of an Intensive Correction Order (ICO) rather than full-time custody, given the period already served on remand.
- Whether the $10,000 cash found in the offender's vehicle should be forfeited to the Crown.
Decision
The court found the objective seriousness of the drug supply offence to be significant: the cocaine was close to a kilogram, the offender knowingly acted as a courier for payment, and the offence was part of a coordinated criminal operation. However, the offender was assessed as playing a relatively limited role, comparable to a courier rather than an organiser.
On subjective matters, the court took into account the offender's guilty plea, his immediate admissions to police, his lengthy history of drug dependency (cannabis, cocaine, and ecstasy since adolescence), the collapse of his business in 2018, his financial desperation, and his stated motivation to rehabilitate. The court also noted the Sentencing Assessment Report assessed him as a medium risk of reoffending, with rehabilitation considered most likely to occur through supervision and treatment programs in the community.
The court determined that an ICO was appropriate in the circumstances. Relying on the Court of Criminal Appeal's decision in Mandranis v R [2021] NSWCCA 97, the court reduced the length of the sentence to be served by way of ICO to account for the time the offender had already spent in custody on remand since 31 May 2021. The resulting ICO was set at one year and eight months.
The $10,000 found in the offender's possession, being the proceeds of his criminal conduct, was ordered to be forfeited to the Crown under the Confiscation of Proceeds of Crime Act 1989.
Orders Made
- The offender was convicted of supply of a prohibited drug greater than a commercial quantity (s 25(2), Drug Misuse and Trafficking Act 1985) and knowingly dealing with proceeds of crime (s 193B(2), Crimes Act 1900).
- A sentence of imprisonment of one year and eight months was imposed, to be served by way of an Intensive Correction Order (ICO) under s 7(1) of the Crimes (Sentencing Procedure) Act 1999, commencing 18 August 2022.
- Standard ICO conditions applied: no commission of further offences, and submission to supervision by a Community Corrections Officer.
- An additional rehabilitation and treatment condition was imposed, requiring participation in rehabilitation programs or receipt of treatment as recommended by the offender's treating doctor.
- The offender was directed to report to the Community Corrections Office at Tweed Heads within seven days of release from custody.
- The sum of $10,000 was forfeited to the Crown pursuant to s 18(1) of the Confiscation of Proceeds of Crime Act 1989.
Key Takeaways
- An ICO was available, and considered appropriate, for a commercial drug supply conviction where the offender had already served a substantial period of pre-sentence custody, and where rehabilitation through community supervision was assessed as the best means of reducing reoffending risk.
- Under the principle in Mandranis v R [2021] NSWCCA 97, the length of an ICO may be reduced to account for time already served in pre-sentence custody.
- A courier-level role in a drug supply operation, while still objectively serious, can attract less weight than that accorded to an organiser or principal, and this distinction informs the sentencing exercise.
- Immediate admissions to police at the time of arrest, combined with a guilty plea, can constitute meaningful mitigating factors even where the offender's initial motivations were financial.
- Proceeds received as payment for criminal offending are liable to forfeiture under the Confiscation of Proceeds of Crime Act 1989, independently of the sentence imposed.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1900 (NSW), s 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 7(1)
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 18(1)
Cases
- Mandranis v R (2021) 289 A Crim R 260; [2021] NSWCCA 97
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Care v R [2021] NSWCCA 101
- Jadron v R [2015] NSWCCA 217
- R v Pullen (2018) 275 A Crim R 509; [2018] NSWCCA 264
- R v Van Ryn [2016] NSWCCA 1
- Toole v R [2014] NSWCCA 318
- Van Can Ha v R [2008] NSWCCA 141
- Williams v R [2014] NSWCCA 57