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District Court 5 August 2022

R v Barta

[2022] NSWDC 587

DrugsFirearms & weapons
CRIME SENTENCE DRUG OFFENCES SENTENCE GUN WITH AMMUNITION. CRIME SENTENCE

Citation: R v Barta [2022] NSWDC 587
Court: District Court of New South Wales
Date: 5 August 2022
Judge(s): Neilson DCJ

Background

The offender pleaded guilty to five substantive charges and asked the court to take into account a further large number of offences on three Forms 1 (a procedural mechanism allowing additional charges to be considered at sentencing without separate convictions being recorded). Of the 27 charges originally laid, 13 were withdrawn at the conclusion of the sentencing proceedings.

Police commenced an investigation in August 2020 after identifying the offender as a participant in a drug supply syndicate operating across Sydney's inner west and south-western suburbs. Between August 2020 and February 2021, he supplied heroin, cocaine, and methylamphetamine to multiple customers, using several vehicles and phones and operating from locations including carparks in Greenacre and Chullora, a hotel room at Chullora, and his workplace at the Sydney Markets in Flemington.

The scale of the operation was significant. Agreed facts established that the offender supplied approximately 595 grams of heroin across around 73 transactions to at least seven customers, together with substantial quantities of cocaine and methylamphetamine. A firearms offence involving possession of a pen-gun with ammunition was also taken into account on a Form 1.

  • What total sentence was appropriate for multiple serious drug supply offences, applying the principles of totality and accumulation?
  • How should the offender's mental health history be approached at sentencing, applying the framework from Director of Public Prosecutions (Cth) v De La Rosa (2010)?
  • What weight should be given to the offender's age, prior criminal record, antecedents, and character in custody?
  • To what extent did the offender's health vulnerabilities, including the COVID-19 pandemic's effect on custodial conditions, mitigate the sentence?

Decision

Neilson DCJ sentenced the offender after considering the full agreed facts, psychiatric evidence, and submissions on comparative sentences. The court noted the offender's role as an active and commercially sophisticated mid-level supplier who negotiated prices, met customers on demand, and earned substantial proceeds from his activities. The seriousness of the offending, particularly the volume and variety of drugs supplied over an extended period, was treated as a significant aggravating factor.

The court applied the De La Rosa considerations in relation to the offender's mental illness. Under that framework, a sentencing court must assess whether a mental condition affected the offender's culpability, whether prison will be a more onerous experience as a result, and whether there is a risk of deterioration in custody. The judgment records these as relevant considerations, though the detail of the psychiatric report's findings is not reproduced in the available text.

The offender's age (approaching 60), history of stroke, hypertension, obstructive sleep apnoea, and cardiac condition were all treated as relevant to the severity of custodial conditions during the COVID-19 pandemic. The court accepted that the combination of these health factors made incarceration meaningfully more burdensome than it would be for a healthier offender, and took this into account in fixing the sentence. A finding of "special circumstances" was made, which permitted the court to adjust the ratio between the non-parole period and the balance of sentence beyond the usual statutory proportion.

The court recorded indicative sentences for each sequence of offending to provide transparency in how the total sentence was constructed. The most serious single sequence, involving methylamphetamine supply (Sequence 16), attracted an indicative sentence of four years and six months, reflecting its gravity relative to the other sequences.

Orders Made

  • The offender was convicted on each offence to which he pleaded guilty.
  • A non-parole period of five years and three months, commencing 10 February 2021 and expiring 9 May 2026, was imposed.
  • A further period of three years and three months was imposed to commence upon expiration of the non-parole period, expiring 9 August 2029.
  • Total sentence: eight years and six months imprisonment.
  • Special circumstances were found.
  • The three Forms 1 were taken into account in the sentence.
  • Indicative sentences: Sequence 9 (three years); Sequence 10 (three years and nine months); Sequence 16 (four years and six months); Sequence 17 (two years and three months); Sequence 13 (nine months).
  • The court directed that a copy of the psychiatric report of Dr Richard Furst (dated 24 July 2022) be forwarded to the Department of Corrective Services and the manager of Clarence Correctional Centre.

Key Takeaways

  • The District Court applied the De La Rosa framework to assess how the offender's mental health history bore on culpability, the likely experience of custody, and the risk of deterioration, confirming that framework's continued relevance in District Court sentencing.
  • A finding of special circumstances permits departure from the standard non-parole to balance-of-sentence ratio, and the court applied this where the offender's age and health profile warranted a longer supervisory period on parole.
  • Custodial conditions during the COVID-19 pandemic, particularly the increased risk to older and medically vulnerable offenders and the frequency of lockdowns in correctional facilities, were accepted as a mitigating factor relevant to the weight of the sentence.
  • Volume, commercial sophistication, and duration of supply operations are treated as significant aggravating considerations in multi-drug syndicate cases, even where the offender is a mid-level rather than apex participant.
  • Forms 1 provide a mechanism by which uncharged or withdrawn matters can still be formally taken into account at sentencing, and the court confirmed their use across three separate Forms 1 in calibrating the overall sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Criminal Procedure Act 1986 (NSW), s 66(1)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Firearms Act 1996 (NSW)

Cases:
- Barta v R [2006] NSWCCA 6
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- R v IL (No 4) [2014] NSWSC 1801