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District Court 3 November 2022

R v Marshall

[2022] NSWDC 530

Drugs
CRIMINAL LAW SENTENCING GRAVITY OF OFFENDING

Citation: R v Marshall [2022] NSWDC 530
Court: District Court of New South Wales
Date: 3 November 2022
Judge(s): Woods KC ADCJ (hearing, 21-22 April 2022); Abadee DCJ (sentence, 12 October 2022)

Background

The offender pleaded guilty to supplying methylamphetamine in a large commercial quantity (1,465.20 grams) between September and December 2020, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The offence carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years. Two additional offences were placed on a Form 1 to be taken into account on sentence: possession of $25,000 in cash as proceeds of crime, and possession of 2.32 grams of methylamphetamine.

The offender operated from the Central Coast as a mid-level organiser within a wider drug supply network. He sourced methylamphetamine from an upline Sydney supplier, coordinated couriers to deliver quantities to a co-offender in Tamworth, and personally conducted at least 94 separate supply transactions on the Central Coast over roughly ten weeks. Investigators recorded no fewer than 103 drug transactions in total during the surveillance period.

Sentencing was complicated by an administrative disruption. The initial sentencing hearing was conducted before one judge in April 2022, but that judge left judicial office before delivering sentence. By agreement, Abadee DCJ sentenced the offender on the papers, including the transcript of the earlier hearing, after also presiding over the sentencing of four co-offenders.

  • What sentence was appropriate for a large commercial quantity drug supply offence, given the offender's role in the criminal enterprise and the number and scale of individual transactions?
  • What weight should be given to unchallenged psychological evidence concerning the offender's mental health conditions when assessing moral culpability and prospects for rehabilitation?
  • How should the sentencing court balance the objective gravity of the offending against subjective mitigating factors, including mental health, guilty plea, and rehabilitation prospects?
  • What forfeiture orders were appropriate in relation to the cash proceeds of crime seized at the time of arrest?

Decision

The court accepted that the offending was serious and fell toward the upper end of objective gravity for offences of this type. The offender played a central coordinating role: he sourced drugs from a Sydney supplier, directed couriers, organised cover stories to evade police detection, and conducted a large volume of street-level supply transactions on the Central Coast simultaneously. The number of transactions (103 over approximately ten weeks) and the total quantity supplied (over 1.4 kilograms of methylamphetamine) reinforced the gravity of the conduct.

The court considered unchallenged psychological evidence about the offender's mental health conditions. Consistent with the principles in Bugmy v The Queen and related authorities, the court acknowledged that mental health conditions of this kind can bear on the assessment of moral culpability and on what weight to assign to general deterrence. The court also assessed the evidence as relevant to the offender's prospects for rehabilitation.

The guilty plea was recognised as a mitigating factor, resulting in an appropriate discount from the sentence that would otherwise have been imposed. The court took the Form 1 offences into account in assessing the overall criminality, without imposing separate penalties for them.

A total sentence of 12 years imprisonment was imposed, with a non-parole period of 8 years and 2 months. The sentence commenced on 4 February 2021, reflecting time already spent in custody.

Orders Made

  • Sentenced to 12 years imprisonment, commencing 4 February 2021 and expiring 3 February 2033.
  • Non-parole period of 8 years and 2 months, expiring 3 April 2029, after which the offender is eligible for parole.
  • Pursuant to s 18(1) of the Confiscation of Proceeds of Crime Act 1989 (NSW), cash of approximately $25,000 seized at Chittaway Point on 2 December 2020 forfeited to the State.
  • Pursuant to s 19(3)(a) of the same Act, the forfeited property to be disposed of forthwith.
  • Publication of the sentencing remarks deferred pending notice from the Crown (restriction subsequently lifted on 7 June 2024).

Key Takeaways

  • A coordinating role in a multi-person drug supply network, involving sourcing from an upline supplier, directing couriers, and conducting a high volume of street-level transactions, places an offender toward the upper range of objective gravity for large commercial quantity supply offences.
  • Unchallenged psychological evidence of mental health conditions, when accepted by the court, can reduce the weight given to general deterrence and inform the assessment of moral culpability, consistent with the principle in Bugmy v The Queen (1990) 169 CLR 525.
  • Where a sentencing judge leaves judicial office after a hearing but before delivering sentence, the parties may agree to sentencing on the papers by a different judge, using the transcript of the earlier proceedings.
  • The District Court treated the simultaneous conduct of large-scale interstate supply and high-volume local supply as an aggravating feature that reinforced the overall criminality of the enterprise.
  • Form 1 offences, while not attracting separate penalties, are taken into account in calibrating the overall sentence for the principal offence.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 25
- Crimes Act 1900 (NSW), s 193B
- Crime (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 21A(5AA)
- Confiscation of Proceeds of Crime Act 1989 (NSW), ss 18, 19
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 32

Cases
- Bugmy v The Queen (1990) 169 CLR 525
- Veen v R (No 2) (1988) 164 CLR 465
- Munda v Western Australia (2013) 249 CLR 600
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- R v Henry (1999) 46 NSWLR 346
- Lloyd v R [2022] NSWCCA 18
- Taitoko v R [2020] NSWCCA 43
- Kerr v R [2016] NSWCCA 218
- Wat v R [2017] NSWCCA 62
- Prculovski v R [2010] NSWCCA 274
- SS v R [2009] NSWCCA 114
- R v Gagalowicz [2005] NSWCCA 452
- Jones & Anor v Booth [2019] NSWSC 1066