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District Court 3 August 2022

R v Norton

[2022] NSWDC 468

DrugsFraud & dishonesty

Citation: R v Norton [2022] NSWDC 468
Court: District Court of New South Wales
Date: 3 August 2022
Judge: M L Williams SC DCJ

Background

The offender, a 55-year-old man from the Newcastle area with no meaningful prior criminal history, appeared for sentencing after pleading guilty to three principal offences arising from drug supply activity between March and June 2021. Police intercepted his mobile phone communications over that period and ultimately arrested him on 17 June 2021. At the time of arrest, he was found in possession of methylamphetamine concealed in his vehicle's dashboard, cash, cannabis, and a mobile phone subject to a warrant.

The offending involved obtaining methylamphetamine in quantities ranging from one to ten ounces at a time from Sydney-based suppliers, then on-supplying smaller amounts to customers across the Newcastle region. The total quantity obtained over the period was at least 1,551 grams, well above the large commercial quantity threshold. The offender and his partner also took steps to store drug proceeds in a safe held at an associate's premises, and he acquired two tasers from a customer.

A Form 1 matter (a separate offence of supplying cannabis, listed alongside the principal charge) was also before the court. The offender had been in custody since his arrest, and it was conceded by both parties that a full-time custodial sentence was required.

  • What aggregate sentence, including indicative non-parole periods for each component offence, was appropriate across three discrete offences: large commercial supply of methylamphetamine, dealing with proceeds of crime ($177,873), and possession of prohibited weapons?
  • How should the court weigh the offender's strong subjective case, including rehabilitation prospects, absence of prior significant offending, drug dependency, health conditions, and family circumstances, against the objective seriousness of the offending?
  • Whether special circumstances existed to justify a non-parole period shorter than the statutory proportion of the head sentence
  • How should sentencing statistics drawn from the JIRS database be used as a yardstick when assessing an appropriate sentence for a large commercial drug supply offence?

Decision

The court accepted that the objective seriousness of the primary offence, supply of a large commercial quantity of methylamphetamine carrying a maximum of life imprisonment and a standard non-parole period of 15 years, was significant. The offender had taken deliberate steps to avoid police detection, including using drones to surveil meeting locations, using Uber when police activity was elevated, and meeting suppliers and customers at isolated or public carparks. These features reflected a degree of planning and organisation.

However, the court attributed considerable weight to the offender's subjective circumstances. The psychological report and unchallenged health material revealed a man without a meaningful criminal history, raised in a stable environment, in a long-term relationship, and with a young child whose wellbeing had been affected by the separation. The court found his prospects of rehabilitation were very favourable and concluded he was unlikely to reoffend. The court also acknowledged that a form of conditional liberty (a Community Corrections Order) was in force at the time of the principal offending, which was an aggravating factor.

The court applied a 25% discount to reflect the guilty pleas. In assessing the sentencing range, the court noted that statistical comparisons from JIRS cases, while not determinative, provided a useful yardstick against which to examine the sentence, consistent with the approach endorsed by the High Court in Hili & Jones. The court accepted defence submissions that the sentence for the primary offence should sit towards the lower end of the statistical range, given the offender's peculiar subjective circumstances.

Special circumstances were found, resulting in the non-parole period being set at 26 months out of a four-year aggregate sentence, a proportion below the standard one-third minimum release date formula under the Crimes (Sentencing Procedure) Act 1999.

Orders Made

  • The offender was convicted of each offence.
  • A 25% discount was applied to all sentences for the guilty pleas.
  • Indicative sentences:
  • Sequence 1 (large commercial supply of methylamphetamine, with the Form 1 cannabis supply offence taken into account): 3 years, with an indicative non-parole period of 18 months
  • Sequence 11 (dealing with proceeds of crime, $177,873): 2 years
  • Sequence 12 (possession of prohibited weapons, two tasers): 7 months, with an indicative non-parole period of 3 months
  • Aggregate sentence of 4 years, commencing 17 June 2021
  • Non-parole period of 26 months, expiring 16 August 2023
  • Special circumstances found

Key Takeaways

  • Even for offences carrying a maximum of life imprisonment, strong subjective circumstances including an absence of prior significant criminality, demonstrated remorse, favourable rehabilitation prospects, and meaningful family responsibilities can support a sentence towards the lower end of the statistical range.
  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 permits the court to set a non-parole period below the standard statutory proportion of the aggregate head sentence, and the District Court did so here by reference to the offender's rehabilitation trajectory and reintegration needs.
  • Sentencing statistics drawn from the JIRS database are not determinative but serve as a legitimate yardstick against which to examine the appropriateness of a proposed sentence, consistent with the approach in DPP (Cth) v De La Rosa and endorsed in Hili & Jones v The Queen.
  • Breach of conditional liberty at the time of offending remains an aggravating factor even where the offender has an otherwise limited prior record, and the court noted this circumstance expressly.
  • Under the Form 1 procedure, a separate offence (here, cannabis supply) may be acknowledged and taken into account in sentencing for the principal offence without resulting in a separate penalty, reducing the effective sentence across all counts.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1) and 25(2)
- Crimes Act 1900 (NSW), s 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Crimes Act 1900 (NSW), s 556A

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Ebrahami v R [2019] NSWCCA 273
- Hili & Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Tamer v The Queen [2020] NSWCCA 333