Citation: R v Kelly; R v Diaz [2022] NSWDC 495
Court: District Court of New South Wales
Date: 22 April 2022
Judge: Haesler SC DCJ
Background
In mid-2020, NSW Police commenced an investigation into methylamphetamine supply on the NSW South Coast. Two men, identified here by their roles as co-offenders, were found to be operating collaboratively: one supplying from his residential premises in southern Wollongong, the other running a separate but connected supply business. Both were identified through lawful telephone intercepts.
The two offenders were not part of a sophisticated criminal organisation. Rather, each acted as a conduit between upstream suppliers and street-level buyers, partly to fund their own drug use and, in one case, a gambling problem. They shared drugs at times to facilitate each other's supply operations.
Both men pleaded guilty in the Local Court to charges of supplying a prohibited drug in quantities exceeding the commercial threshold (250 grams) under s 25(2) of the Drug Misuse and Trafficking Act 1985, with additional possession matters taken into account on a Form 1 (a procedural mechanism allowing related but uncharged offences to be acknowledged at sentencing without attracting a separate penalty).
Legal Issues
- What aggregate custodial sentences were appropriate for two co-offenders convicted of supplying methylamphetamine over the commercial quantity, having regard to their roles, personal circumstances, and early guilty pleas?
- How should rolled-up supply charges be approached at sentencing?
- Were special circumstances established, justifying a departure from the standard ratio between non-parole period and total sentence?
- How should the standard non-parole period of 10 years under s 25(2) inform the sentencing exercise?
- What weight should be given to drug addiction as a mitigating factor in commercial drug supply cases?
- Did parity considerations arise between these two offenders, or between them and previously sentenced co-offenders?
Decision
His Honour found that custodial sentences were required for both offenders. The quantities involved (280 grams and approximately 330-342 grams respectively across the principal charges) fell within the commercial supply range of 250 to 500 grams under the Drug Misuse and Trafficking Act. While the offending was of a commercial nature, the judge characterised it as "relatively haphazard" and assessed the offenders' roles as "lowish," noting they were not running organised for-profit enterprises but were users who also supplied downline and had access to an upline source.
His Honour applied the principles from Muldrock v The Queen in assessing objective seriousness by reference to the nature of the offending itself, without reference to personal circumstances, before then taking subjective matters into account. The court expressly declined to engage in the staged sentencing approach disapproved in Markarian v The Queen. The use of rolled-up charges was confirmed as appropriate, consistent with Hamzy v R and Jadron v R.
Drug addiction was acknowledged as relevant context but did not operate as an excuse for dealing. Both men were on conditional liberty at the time of offending, which weighed against them. The court found special circumstances in each case, warranting a longer balance of term on parole than the standard one-third ratio would otherwise produce, to facilitate rehabilitation. Each offender received a 25% reduction in sentence for the utilitarian value of their early guilty pleas under s 25D of the Crimes (Sentencing Procedure) Act 1999.
The judge found no meaningful basis to distinguish between the objective seriousness of the two offenders' conduct, and noted that parity with the previously sentenced associates (Barbaric and Cristallo) was not in issue.
Orders Made
Dwayne Evan Diaz
- Sequence 5 (280g supply, including Form 1 matter): 2 years 10 months, non-parole period of 1 year 8 months
- Sequence 10 (331g supply): 3 years, non-parole period of 2 years
- Aggregate sentence: 3 years 6 months, commencing 5 March 2021
- Non-parole period: 2 years 1 month, expiring 4 April 2023
- Balance of term: 1 year 5 months, commencing 5 April 2023; sentence to expire 4 September 2024
- Release subject to determination of the State Parole Authority
- Psychological report to accompany warrant
Cameron Jade Kelly
- Sequence 19 (280g supply): 2 years 7 months, non-parole period of 1 year 6 months
- Sequence 40 (342.25g supply, including Form 1 matter): 3 years 3 months, non-parole period of 1 year 11 months
- Aggregate sentence: 3 years 8 months, commencing 4 March 2021
- Non-parole period: 2 years 2 months, expiring 3 May 2023
- Balance of parole: 1 year 6 months, commencing 4 May 2023; sentence to expire 3 November 2024
- Release subject to determination of the State Parole Authority
- Psychological report to accompany warrant
- Matters on the s 166 certificate withdrawn and dismissed
- Drug destruction order made
Key Takeaways
- Drug addiction does not excuse participation in commercial drug supply, though it remains relevant subjective context the sentencing court may weigh alongside other personal circumstances.
- Rolling up multiple supply transactions into a single charge is an accepted and appropriate approach at sentencing, consistent with the Court of Criminal Appeal's guidance in Hamzy v R and Jadron v R.
- A "lowish" role in a supply chain (acting as a conduit between upstream suppliers and street-level dealers) is a mitigating factor going to objective seriousness, but it does not displace the need for a custodial sentence where commercial quantities are involved.
- Special circumstances can be found to extend the balance of term beyond the standard ratio, particularly where rehabilitation prospects are identified and the offender is serving their first custodial sentence.
- Under Muldrock v The Queen, the standard non-parole period for a s 25(2) offence (10 years) functions as a guidepost requiring the court to assess objective seriousness, not as a mandatory starting point or a stage in a two-step calculation.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D, 166
Cases
- Bell v R [2019] NSWCCA 271
- Hamzy v R (1994) 74 A Crim R 341
- Jadron v R [2015] NSWCCA 217
- Lau v R [2010] NSWCCA 43
- Markarian v The Queen (2005) 228 CLR 357
- Muldrock v The Queen (2011) 244 CLR 120
- R v Barbaric, NSWDC unreported, 12 August 2021
- R v Cristallo, NSWDC unreported, 19 November 2021
- R v Edwards (1996) 90 A Crim R 510
- R v Henry (1999) 46 NSWLR 346
- Tepania v R [2018] NSWCCA 247