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District Court 14 July 2022

R v Kansou

[2022] NSWDC 451

Drugs

Citation: R v Kansou [2022] NSWDC 451
Court: District Court of New South Wales
Date: 14 July 2022
Judge(s): Bennett SC DCJ

Background

The offender was a peripheral participant in an established drug supply network operating in Sydney. The network involved multiple principals who sourced and distributed methylamphetamine, cocaine, and MDMA (3,4-methylenedioxymethamphetamine). The offender participated in a single supply transaction on 27 February 2021, acting on instructions passed to him via an encrypted communications platform called CIPHR.

On that date, the offender delivered 56.2 grams of cocaine and 143.4 grams of MDMA to an undercover police operative in Menai. He travelled to the handover location in a vehicle prominently branded with his plumbing business name, accepted $26,500 in exchange for the drugs, and was subsequently arrested. He had no prior significant involvement in the network and was not one of its principals.

The offender pleaded guilty in the Local Court to two charges: supplying cocaine (contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985) and supplying MDMA in a commercial quantity (contrary to s 25(2) of the same Act). He was committed to the District Court for sentencing.

  • What sentences were appropriate for the two drug supply offences, having regard to the objective seriousness of the conduct and the offender's subjective circumstances?
  • Whether a 25% discount for the guilty plea entered in the Local Court was applicable under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999.
  • Whether an intensive correction order (ICO) was an appropriate alternative to full-time custody, given the offender's subjective circumstances.
  • What additional conditions should attach to the ICO, including the form and hours of any curfew.

Decision

Bennett SC DCJ accepted that, absent compelling subjective circumstances, the offender would have been sentenced to full-time imprisonment. The cocaine supply carried a maximum penalty of 15 years' imprisonment, while the commercial quantity MDMA supply carried a maximum of 20 years and a standard non-parole period of 10 years. The court identified sentences of 2 years for the cocaine charge and 2 years and 10 months for the MDMA charge before aggregating them.

A 25% discount was applied to each sentence to reflect the early guilty plea entered in the Local Court. The court noted that the offender's use of his branded plumbing vehicle for the handover was a marker of limited criminal sophistication, and this feature supported the subjective case advanced on his behalf.

The court was satisfied that the combination of objective circumstances and "compelling subjective material" justified the imposition of an aggregate sentence of 3 years' imprisonment to be served by way of an ICO in the community. Had a custodial term been imposed instead, the court would have found special circumstances warranting a non-parole period of 1 year and 6 months to allow an extended period of supervised rehabilitation.

On the question of additional conditions, the court imposed a nightly curfew from 10:00 pm to 5:00 am for a period of 10 months, pursuant to s 73A of the Crimes (Sentencing Procedure) Act 1999 and cl 189B of the Crimes (Administration of Sentences) Regulation 2014. An exception to the curfew was permitted for medical treatment required by the offender's children.

Orders Made

  • Aggregate sentence of 3 years' imprisonment to be served by way of an intensive correction order, commencing 14 July 2022.
  • Standard ICO conditions imposed under ss 72 and 73 of the Crimes (Sentencing Procedure) Act 1999: no further offending and submission to supervision by Community Corrections.
  • Additional condition: curfew from 10:00 pm to 5:00 am for 10 months, with an exception for attendance at medical treatment required for the offender's children.
  • Offender directed to report to the Bankstown office of Community Corrections.
  • Forfeiture of $6,200 found at a nominated address to the State, pursuant to s 18(1) of the Confiscation of Proceeds of Crime Act 1989 (by consent).
  • Exhibits to remain on file.

Key Takeaways

  • An ICO remained available even for a commercial quantity drug supply offence where the offender presented compelling subjective circumstances, though the District Court was clear that full-time custody would otherwise have followed.
  • A 25% guilty plea discount applied where the offender pleaded guilty in the Local Court and was committed for sentence to the District Court, consistent with s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999.
  • Peripheral involvement in a drug supply network, a single occasion of offending, and limited criminal sophistication were all factors the court weighed in mitigation alongside the subjective case.
  • Under s 73A of the Crimes (Sentencing Procedure) Act 1999, at least one additional condition must attach to an ICO unless the court finds exceptional circumstances; here, a nightly curfew satisfied that requirement.
  • Special circumstances in the context of non-parole periods may arise where an offender requires an extended period of community-based supervision to consolidate rehabilitation progress, even if that question was ultimately resolved through the ICO rather than a custodial sentence.

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, 72, 73, 73A, Part 4 Div 1A
- Crimes (Administration of Sentences) Regulation 2014 (NSW), cl 189B
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 18(1)
- Crimes Act 1914 (Cth)

Cases
- Henry (1999) 46 NSWLR 346
- Imbornone v R [2017] NSWCCA 144
- Tepania v R [2018] NSWCCA 247