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District Court 8 September 2022

R v Smith

[2022] NSWDC 474

Drugs
CRIME DRUG OFFENCES COMMONWEALTH OFFENCES TRAFFIC CONTROLLED DRUG

Citation: R v Smith [2022] NSWDC 474
Court: District Court of New South Wales
Date: 8 September 2022
Judge: Scotting DCJ

Background

The offender, a 50-year-old man with prior convictions for drug supply and a proceeds of crime offence, appeared for sentencing after pleading guilty in the Local Court to trafficking a marketable quantity of cocaine contrary to s 302.3(1) of the Commonwealth Criminal Code. The charge arose from Operation Ironside, the Australian Federal Police investigation into the AN0M encrypted communications network. Evidence linked the offender to the user handle "keyser" on that platform.

On 8 June 2021, AFP officers executed a search warrant at the offender's Maroubra residence and found 544.6 grams of pure cocaine concealed behind a kitchen kickboard, along with $328,125 in cash. DNA analysis of the currency strongly supported the offender's contribution to both caches of money. The offender had been in custody since arrest.

The court was also asked to take into account two further offences on a s 16BA schedule when passing sentence: dealing with property believed to be proceeds of crime (valued above $100,000), and possession of methylamphetamine.

Legal Issues

  • What discount, if any, was appropriate for the offender's guilty plea to federal offences, given the strength of the Crown case and a live challenge to the admissibility of AN0M evidence?
  • How should the offender's diagnosed mental health condition (adjustment disorder with mixed anxiety and depressed mood) affect his moral culpability and sentence?
  • What sentence, including non-parole period, was appropriate having regard to all matters under s 16A of the Crimes Act 1914 (Cth) and common law principles for serious federal drug offending?

Decision

Guilty plea discount

The court assessed the utilitarian value of the plea as high, noting it avoided the need for witnesses at trial. Scotting DCJ observed that the Crown case was strong but that there is presently a major challenge to the admissibility of AN0M-derived evidence, making the offender's decision not to contest that evidence significant (at [6]). The court was satisfied the plea reflected genuine acceptance of responsibility and willingness to facilitate the course of justice, and applied a 25 percent discount (at [7]).

Objective seriousness and role

The 544.6 grams of pure cocaine was approximately 2.17 times the marketable quantity threshold, placing it towards the lower end of the marketable quantity range (at [47]). The offender's involvement covered a relatively short period with no evidence of significant planning or organisation on his part; he did not appear to have instigated the offence and did not involve other persons (at [48]). The concealment of drugs and cash was not particularly sophisticated, and a substantial portion of the cash was found in an unconcealed bedroom drawer (at [49]).

Mental health and moral culpability

The court accepted the psychologist's opinion that the offender was suffering from an adjustment disorder with mixed anxiety and depressed mood leading up to the offences, compounded by alcohol and substance use disorders (at [39]). Scotting DCJ found a causal connection between that mental condition and the offending, warranting some reduction in moral culpability (at [54]). The financial collapse of the offender's organic food business during COVID-19, his wife's gambling losses of approximately $180,000, and his responsibilities toward an unwell brother and elderly parents were all considered as contextual factors (at [51]-[53]).

Sentence

General and specific deterrence were identified as fundamental considerations, given the seriousness of the offence and the offender's prior custodial history for drug and proceeds of crime offences (at [50]). The court weighed the offender's genuine remorse, good prison conduct, completion of rehabilitation programs, and prospects of rehabilitation against the need for an appropriately severe response (at [52]). Harsh custody conditions during the COVID-19 pandemic, including approximately 143 days in lockdown, were taken into account (at [45], [53]). The court was satisfied that no sentence other than imprisonment was appropriate (at [55]).

Orders Made

  • The offender is convicted.
  • A term of imprisonment of 5 years is imposed, dating from 8 June 2021 and expiring 27 June 2026, taking into account the matters on the s 16BA schedule.
  • A non-parole period of 3 years is fixed, expiring 7 June 2024, with the offender eligible for release on parole on that date.

Key Takeaways

  • The District Court applied a 25 percent guilty plea discount for federal drug offences where the plea indicated genuine acceptance of responsibility, even though the Crown case was strong, because the offender did not challenge potentially contestable AN0M-derived evidence (at [6]-[7]).

  • A causal connection between a diagnosed mental health condition (adjustment disorder with mixed anxiety and depressed mood) and the commission of a drug trafficking offence was accepted as a basis to reduce the offender's moral culpability to some extent, without displacing the need for a substantial custodial term (at [39], [54]).

  • Where a drug quantity sits towards the lower end of the marketable quantity range and the offender's role showed no significant planning or organisation, those factors bear on the objective seriousness of the offence even if they do not remove the need for a sentence that reflects general deterrence (at [47]-[48]).

  • Under s 16A of the Crimes Act 1914 (Cth), courts sentencing federal offenders are not confined to the statutory list of factors; common law principles apply in full, and the non-parole period represents the minimum period justice requires the offender to serve in custody (at [4], [9]).

  • Harsh custodial conditions arising from COVID-19 lockdowns, including loss of visits, telephone access, and programs for approximately 143 days, were treated as a mitigating consideration going to the conditions actually experienced during the sentence (at [45], [53]).

Legislation and Cases Referenced

Legislation
- Commonwealth Criminal Code
- Crimes Act 1914

Cases
- Bugmy v The Queen (1990) 169 CLR 525
- Cameron v The Queen (2002) 209 CLR 339
- Danial v R [2008] NSWCCA 15
- Deakin v The Queen (1984) 58 ALJR 367
- Hili v The Queen (2010) 242 CLR 520
- Johnson v The Queen (2004) 78 ALJR 616
- Power v The Queen (1974) 131 CLR 623
- R v Nassir [2020] NSWCCA 88
- R v Nguyen (2010) 205 A Crim R 106
- R v Olbrich (1999) 199 CLR 270
- Xiao v R (2018) 96 NSWLR 1