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District Court 16 September 2022

R v Faaoloii

[2022] NSWDC 637

Drugs
CRIME DRUG OFFENCES SUPPLY PROHIBITED DRUG INDICTABLE QUANTITY ONGOING SUPPLY DEAL WITH PROCEEDS OF CRIME

Citation: R v Faaoloii [2022] NSWDC 637
Court: District Court of New South Wales
Date: 16 September 2022
Judge(s): Tupman DCJ

Background

The offender appeared for sentencing on three substantive drug offences arising from a police strike force investigation into cocaine supply across the Sydney metropolitan area. Together with his de facto partner of 14 years (referred to as Witness A), he operated a dial-a-dealer network using a dedicated "run phone" to advertise, take orders for, and deliver cocaine to a customer base. The pair used coded language in intercepted calls, referring to cocaine as "coffee" or "beer," and typically delivered drugs by car.

Police lawfully intercepted the run phone and conducted surveillance between October and December 2020. The operation came to an end on 4 December 2020, when police stopped the vehicle and located the phone, $950 in cash, and 1.35 grams of cocaine concealed in a magnetic box under the front passenger seat.

The offender initially pleaded not guilty and was committed for trial. He entered guilty pleas in August 2022, shortly after Witness A was sentenced and her statement to police was served on him. He had been held on remand since his arrest on 4 December 2020.

Legal Issues

  • What discount for the utilitarian value of a guilty plea applied given the late timing of the pleas under the Early Appropriate Guilty Plea scheme?
  • What was the appropriate sentence for two counts of ongoing supply of cocaine (maximum 20 years each) and one count of supply of an indictable quantity (maximum 15 years)?
  • How should the Form 1 offence of dealing with the proceeds of crime ($950) be treated at sentence?
  • Was parity with the co-offender's sentence a relevant consideration?
  • Did special circumstances warrant a departure from the standard non-parole period ratio?

Decision

Guilty Plea Discount

Because the pleas came late, the offender was not entitled to the full 25% discount for utilitarian value. Tupman DCJ applied a 10% discount, the maximum available under the Early Appropriate Guilty Plea scheme in the circumstances (at [5]-[6]). Her Honour noted the genuine utilitarian value of avoiding a complex trial involving telephone intercept evidence and the testimony of a protected witness, but observed the statutory cap constrained the discount to 10% (at [6]).

Objective Seriousness of the Ongoing Supply Charges (Sequences 3 and 5)

The two ongoing supply charges each covered a 30-day period and together involved 24 individual transactions totalling 33 grams of cocaine (at [14]). Her Honour assessed the offences as falling a little below the mid-range of seriousness for ongoing supply offending, noting the individual quantities were small even though frequency of supply is the gravamen of the offence (at [12], [21]). The starting point for each charge was 3 years, reduced by a 10% discount (rounded up to four months) to 32 months each (at [43]).

Sequence 1: Supply of an Indictable Quantity

The third charge, involving 1.35 grams of cocaine located in the vehicle, was assessed as objectively towards the very bottom of the range (at [23]). Given the offender had been on remand for nearly two years and was being sentenced for more serious offences, her Honour dealt with this charge under section 10A of the Crimes (Sentencing Procedure) Act 1999, recording a conviction with no further penalty (at [45]).

Form 1 Offence: Proceeds of Crime

The offender asked that the proceeds of crime offence (possession of $950 in cash) be taken into account on the Form 1 when sentencing for sequence 5 (at [4]). Her Honour accepted the $950 was proceeds of drug sales (at [16], [49]). The offence was part of the same factual matrix and had already been reflected in the assessment of the offender's financial motivation; it did not elevate the substantive sentence (at [49]).

Parity with the Co-offender

The co-offender received a Community Corrections Order of two years for a single supply charge under section 25(1). Her Honour found parity was not in issue because the charges and subjective circumstances were significantly different. The co-offender received a substantial discount for assistance to authorities and faced different sentencing constraints (at [40]-[42]). Some relativity was nonetheless kept in view.

Aggregate Sentence and Special Circumstances

Her Honour imposed an aggregate sentence of 3 years under section 53A, with a non-parole period of 1 year and 10 months backdated to 4 December 2020, making the offender eligible for parole on 3 October 2022 (at [46]). Special circumstances were found to justify the non-parole period set. The offender's rehabilitation prospects were assessed as good, noting his conduct in custody, family support, available accommodation, and a prospective employment offer (at [39]).

Orders Made

  • Convicted on each of the three substantive charges.
  • Sequence 1: No further penalty pursuant to section 10A of the Crimes (Sentencing Procedure) Act 1999.
  • Sequences 3 and 5: Aggregate sentence of 3 years comprising a non-parole period of 1 year and 10 months (from 4 December 2020, expiring 3 October 2022) and a parole period of 1 year and 2 months (from 4 October 2022, expiring 3 December 2023); indicative sentence for each count is 32 months.
  • Form 1 offence (sequence 4: dealing with proceeds of crime) taken into account when sentencing for sequence 5.

Key Takeaways

  • Under the Early Appropriate Guilty Plea scheme, a plea entered more than 14 days before trial but close to the trial date attracts a maximum 10% discount for utilitarian value, even where the practical utility of avoiding a complex trial might otherwise warrant a greater reduction (at [5]-[6]).
  • Where an offender is already serving a substantial remand period and is being sentenced for much more serious offences at the same time, a section 10A order (conviction with no further penalty) may be the appropriate outcome for a separate low-seriousness supply charge that would not, on its own, have crossed the imprisonment threshold (at [45]).
  • A Form 1 proceeds of crime offence that forms part of the same factual matrix as the principal offending need not increase the substantive sentence where it has already been accounted for in assessing objective criminality (at [49]).
  • Parity between co-offenders does not arise in a mechanistic way where the charges, available discounts, and subjective circumstances are substantially different; the District Court retained some reference to relativity without treating the co-offender's sentence as a ceiling (at [40]-[42]).
  • Motivation to fund family obligations and personal drug dependency can inform the sentencing narrative and be accepted as context without constituting an excuse for ongoing drug supply offending (at [25]-[27]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): s 193B(2). Crimes (Sentencing Procedure) Act 1999 (NSW): s s 3A, 10A, 53A. Drug Misuse and Trafficking Act 1985 (NSW): s 25(1), 25A(1).

Cases
- Not stated