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District Court 29 July 2022

R v Meredith

[2022] NSWDC 504

Drugs

Citation: R v Meredith [2022] NSWDC 504
Court: District Court of New South Wales
Date: 29 July 2022
Judge(s): Bennett SC DCJ

Background

The offender was a drug courier operating within an organised cocaine supply syndicate based in Cronulla, New South Wales. The syndicate ran a seven-day-per-week delivery service, taking orders by mobile phone and dispatching runners to complete deliveries. Each bag of cocaine sold for $250, and police gathered evidence through covert electronic and physical surveillance, including telephone interception, over a period of several months beginning in April 2021.

The offender faced two principal charges on the indictment: supplying a prohibited drug (cocaine) contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985, and failing to comply with a public health direction under the Public Health Act 2010. Three additional offences were listed on a Form 1 to be taken into account at sentencing: knowingly participating in a criminal group, a second supply of 7.82 grams of cocaine on 16 July 2021, and knowingly dealing with $1,525 in proceeds of crime.

The offender pleaded guilty in the Local Court. Following arrest and a period in pre-sentence custody, the court granted bail on strict conditions to allow the offender to enter a rehabilitation program. By the time of sentencing, he had successfully completed that program.

  • What sentence was appropriate for the principal offence of supplying cocaine, taking into account the Form 1 offences, pre-sentence custody, the guilty plea discount, and the offender's rehabilitation?
  • Whether the sentence could appropriately be served by way of an intensive correction order (ICO) in the community, having regard to community safety as the paramount consideration under section 66 of the Crimes (Sentencing Procedure) Act 1999.
  • What penalty, if any, was appropriate for the Public Health Act offence.
  • What conditions should attach to the ICO to support ongoing rehabilitation.

Decision

Bennett SC DCJ identified a head sentence of two years' imprisonment for the supply of cocaine. His Honour applied a 25% guilty plea discount in accordance with section 25D(2) of the Crimes (Sentencing Procedure) Act 1999, and brought pre-sentence custody into account when determining the length of the sentence. The Form 1 offences were also factored in, adding weight to considerations of personal deterrence, retribution, and denunciation. His Honour was guided by the guideline judgment in Attorney-General's Application No 1 of 2002.

On the question of an ICO, his Honour was satisfied that serving the sentence in the community was more likely to address the offender's risk of re-offending than a term in custody. Community safety, as the paramount consideration under section 66, was specifically addressed. The offender's successful completion of a residential rehabilitation program, the strict bail conditions he had observed, and the psychiatric evidence before the court all supported that conclusion.

For the Public Health Act offence, his Honour recorded a conviction but imposed no penalty under section 10A of the Crimes (Sentencing Procedure) Act 1999. The 25% guilty plea discount would otherwise have applied to this offence, but given that no penalty was imposed, that calculation was unnecessary.

An additional condition was attached to the ICO under section 73A(2)(e) of the Crimes (Sentencing Procedure) Act 1999, requiring the offender to maintain contact with his general practitioner and any referred psychologists or psychiatrists, and to participate in any recommended treatment or programs. Compliance was placed under the supervision of Community Corrections.

Orders Made

  • The offender was convicted of supplying a prohibited drug (cocaine) and sentenced to two years' imprisonment, to be served by way of an intensive correction order commencing on the date of sentence.
  • Standard ICO conditions applied: no further offences, and submission to supervision by a Community Corrections officer.
  • An additional condition was imposed requiring the offender to maintain contact with his general practitioner and any referred mental health practitioners, and to participate in recommended treatment or programs.
  • The offender was convicted of the Public Health Act offence; no penalty was imposed pursuant to section 10A of the Crimes (Sentencing Procedure) Act 1999.
  • The Form 1 offences were taken into account and certified accordingly.
  • Pursuant to a consent order under section 18(1) of the Confiscation of Proceeds of Crime Act 1989, $1,525 in cash was forfeited to the State.
  • A pecuniary penalty (drug proceeds) order of $11,775 was made under section 29(1) of the same Act.
  • Leave was granted under section 19(3)(a) for the forfeited property to be disposed of forthwith.

Key Takeaways

  • An ICO can be available for a two-year sentence for cocaine supply where the sentencing court is satisfied, after weighing community safety as the paramount consideration under section 66 of the Crimes (Sentencing Procedure) Act 1999, that the order better addresses the risk of re-offending than full-time custody.
  • Successful completion of a residential rehabilitation program, observed while on strict bail conditions, was a significant factor in the court's assessment that an ICO was appropriate.
  • Under section 73A(2)(e) of the Crimes (Sentencing Procedure) Act 1999, a court may attach conditions to an ICO that require ongoing engagement with medical and mental health practitioners, with compliance monitored by Community Corrections.
  • Form 1 offences, including participation in a criminal group and dealing in proceeds of crime, were taken into account in calibrating the overall sentence even though no separate punishment was imposed for those matters, particularly in relation to personal deterrence, retribution, and denunciation.
  • A conviction without penalty under section 10A of the Crimes (Sentencing Procedure) Act 1999 was recorded for the Public Health Act offence, reflecting the court's view that no additional sanction was warranted given the circumstances.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Public Health Act 1910 (NSW), s 10 (charge); Public Health Act 2010 (NSW)
- Crimes Act 1900 (NSW), ss 93P(1), 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A, 11, 25D(2), 66, 73A
- Confiscation of Proceeds of Crime Act 1989 (NSW), ss 18(1), 19(3)(a), 29(1)

Cases
- Attorney-General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518
- R v Borkowski [2009] NSWCCA 102