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District Court 15 December 2022

R v Robson

[2022] NSWDC 645

DrugsFraud & dishonesty
CRIMINAL LAW SENTENCING MULTIPLE DRUG OFFENCES OFFENCES ATTACHED ON A FORM 1 KNOWINGLY DEALING IN PROCEEDS OF CRIME PARITY PRINCIPLE WHERE A (MAIN) CO

Citation: R v Robson [2022] NSWDC 645
Court: District Court of New South Wales
Date: 15 December 2022
Judge(s): Abadee DCJ

Background

The offender pleaded guilty to three principal offences arising from conduct at Rose Bay on 10 December 2020: supplying a commercial quantity of cannabis (99.99 kg between September and December 2020); supplying an indictable quantity of cannabis (10.22 kg found in his vehicle on arrest); and knowingly dealing with proceeds of crime (AUD $614,900). Five further offences, including additional proceeds of crime dealings and possession of various prohibited drugs, were placed on a Form 1 to be taken into account on the principal commercial supply charge.

The offending was uncovered by Strike Force Unara, which deployed phone intercepts and surveillance devices. The offender collected cannabis posted from interstate and distributed it to a broad customer base, communicating in code with a co-offender who operated a packaging business. He had been in custody from the date of his arrest until 24 December 2021, when he was granted bail on the condition he participate in a drug and alcohol rehabilitation program.

At the commencement of the sentencing hearing in April 2022, the court adjourned proceedings under s 11(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to allow the offender to substantially complete that program. The matter returned for sentencing on 15 December 2022.

  • How should the objective gravity of the drug supply offences be assessed, having regard to quantity, drug type, and the offender's role?
  • What weight should be given to the rehabilitation program the offender substantially completed while on bail?
  • Whether the parity principle required adjustment to the sentence, given the sentence already imposed on the principal co-offender (Garget)?
  • Whether the s 5 threshold under the Crimes (Sentencing Procedure) Act 1999 (NSW) was crossed, requiring full-time imprisonment?
  • Whether any term of imprisonment should be served by way of an Intensive Correction Order (ICO)?
  • How should 380 days of pre-sentence custody be treated in calculating the sentence?

Decision

The court assessed the objective gravity of the commercial supply offence (seq 11) as serious. The offender had supplied nearly four times the commercial quantity threshold for cannabis leaf over approximately two and a half months, operating within an organised network, using code during communications, travelling interstate to facilitate supply, and distributing to multiple customers including a downstream reseller. The court accepted that cannabis sits at the lower end of the drug hierarchy relative to other prohibited drugs, but the scale and organisation of the operation elevated its seriousness.

On subjective matters, the court recognised the offender's completion of his rehabilitation program as a significant mitigating factor. The program participation was facilitated by an adjournment under s 11(1) of the Crimes (Sentencing Procedure) Act, which the court had granted specifically to allow the offender to demonstrate genuine rehabilitation. A 25% discount was applied for the utilitarian value of the guilty pleas, which were entered and maintained throughout proceedings.

On parity, the court was mindful of the sentence imposed on co-offender Garget. The court's analysis acknowledged that the offender and Garget occupied comparable roles, and that consistency in sentencing between co-offenders engaged the principle in R v Lowe (as applied through relevant authorities), requiring no unjustifiable disparity. The court also considered the 380 days of pre-sentence custody under s 24 of the Crimes (Sentencing Procedure) Act, treating it as additional to (rather than subsumed within) the new sentence.

The court formed a preliminary view that the s 5 threshold was crossed (meaning a sentence of imprisonment was required), but that the term could appropriately be served by way of an ICO. Execution of sentence was stayed pending receipt of an assessment report, with the court specifically requesting consideration of a Community Service Work condition. The matter was adjourned to 10 February 2023 for confirmation of whether an ICO was appropriate and for submissions on additional conditions.

Orders Made

  • The offender was convicted of the sequence 11, 3, and 4 offences.
  • A term of imprisonment of 3 years was imposed, commencing 15 December 2022 and expiring 14 December 2025 (after application of the 25% guilty plea discount and taking into account Form 1 offences).
  • Execution of the sentence was stayed until 10 February 2023 pursuant to s 17C(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW), pending an assessment report.
  • An assessment report was requested under s 17C(1)(b)(ii), limited to consideration of the suitability of a Community Service Work condition for an ICO.
  • The offender's bail was to continue on its existing terms in the interim.
  • The matter was adjourned to 10 February 2023 before Abadee DCJ (part-heard), with both parties at liberty to file supplementary submissions on whether an ICO should be confirmed and what additional conditions should apply.

Key Takeaways

  • The District Court confirmed that objective gravity for commercial drug supply offences turns on quantity, drug type, and the offender's role within the supply network, even where the drug involved (cannabis) sits at the lower end of the prohibited drug hierarchy.
  • Completion of a residential drug rehabilitation program, secured through an adjournment under s 11(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), carried meaningful mitigating weight at sentence, reflecting genuine steps toward rehabilitation.
  • Under s 24 of the Crimes (Sentencing Procedure) Act, pre-sentence custody of 380 days was treated as additional to the new term rather than as a basis for backdating, which the court found would have produced a disproportionately lengthy effective sentence when measured against the co-offender.
  • Parity between co-offenders sentenced for comparable conduct engaged close scrutiny of any sentencing disparity, with the court actively calibrating its approach to avoid unjustifiable inconsistency.
  • Where a court forms a preliminary view that an ICO may be appropriate, an assessment report is generally required under s 17D(1) of the Crimes (Sentencing Procedure) Act before the order is confirmed, and execution of the sentence is stayed in the interim.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 193B, 193C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 11, 17C, 17D, 21A, 24, 48, 66, 68
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 25

Cases
- Mandranis v R (2021) 289 A Crim R 260
- Nguyen v R (2011) 208 A Crim R 432
- Parente v R [2017] NSWCCA 284
- R v Dang [2005] NSWCCA 430
- R v Henry (1999) 46 NSWLR 346
- R v Huang (2007) 174 A Crim R 370
- R v Kalache (2000) 111 A Crim R 152
- R v MA (2004) 145 A Crim R 434