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District Court 4 August 2022

R v Van Der Maas

[2022] NSWDC 666

DrugsFraud & dishonesty

Citation: R v Van Der Maas [2022] NSWDC 666
Court: District Court of New South Wales
Date: 4 August 2022
Judge: M L Williams SC DCJ

Background

The offender, a 41-year-old Australian man, pleaded guilty to a combination of Commonwealth and State drug and financial offences arising from a short period of activity in September 2020. Police executed a search warrant at a Crows Nest apartment he had rented, finding over three kilograms of heroin, cocaine and related substances, 1.2 kilograms of alprazolam (Xanax/Valium), $315,200 in cash, drug-use utensils, a money-counting machine, encrypted mobile phones, and materials for making false New South Wales driver's licences. A BMW registered in a friend's name, with the offender's DNA on the gear stick and handbrake, was also found to contain heroin, cocaine and related drugs.

The offender had been in custody since his arrest on 25 September 2020. He had a substantial criminal history, including a nine-and-a-half year sentence imposed in 2008 for drug supply, and had spent approximately 20 years in custody across his lifetime.

The sentencing proceedings involved not only the agreed facts but also a significant body of evidence concerning a claim of non-exculpatory duress, and a largely unchallenged subjective case that included a history of childhood sexual abuse, longstanding drug addiction, and mental health difficulties.

  • Whether the claimed duress, though not exculpatory, reduced the offender's moral culpability to a degree warranting a sentencing discount
  • How the court should approach sentencing for concurrent Commonwealth and State offences, including the application of the totality principle
  • The weight to be given to mitigating factors including the early guilty plea, drug addiction, mental illness, and a background of serious childhood trauma
  • Whether special circumstances existed justifying a longer-than-standard ratio of parole to non-parole period
  • The appropriate discount for an early guilty plea under both State and Commonwealth sentencing regimes

Decision

The court accepted that the offences were objectively serious. The Commonwealth trafficking charge related to 3.758 kilograms of controlled drugs, carrying a maximum penalty of life imprisonment, and the State offence involved a commercial quantity of alprazolam. The $314,000 cash found on arrest grounded the money-laundering charge. Financial gain was treated as an aggravating factor.

On the duress question, the court heard evidence that the offender was operating under threats from others involved in the drug operation. The duress was accepted as non-exculpatory but as genuinely affecting moral culpability, and was taken into account in mitigation. The court also accepted the offender's history of severe childhood sexual abuse, longstanding heroin addiction, and mental health conditions as relevant subjective factors bearing on moral culpability and the prospects of rehabilitation.

A 25 percent discount was applied for the early guilty plea under both Commonwealth and State sentencing regimes. The court found special circumstances existed, given the offender's significant rehabilitation needs, his history of institutionalisation, and his addiction and mental health profile, justifying a non-parole period shorter in proportion to the total sentence than the statutory default.

The court imposed an aggregate sentence for the Commonwealth offences and a separate sentence for the State offences, with the Commonwealth sentence commencing four months after the State sentence to reflect the totality principle. The effective total sentence and non-parole period were structured to account for the time already served in custody from 25 September 2020.

Orders Made

  • State offence (Sequence 10, commercial quantity supply of alprazolam): 27 months imprisonment with a non-parole period of 14 months, commencing 25 September 2020
  • Commonwealth offences (Sequence 5, drug trafficking; Sequence 17, money laundering): aggregate sentence of 6 years and 3 months with a non-parole period of 3 years and 5 months, commencing 25 January 2021 (four months after the State sentence)
  • Sequence 7 (trafficking in methylamphetamine) taken into account on the Commonwealth s 16BA schedule
  • Sequence 12 (possession of materials for making false documents) taken into account on a Form 1 attached to the State offence
  • Total effective non-parole period: 3 years and 9 months (expiring 24 June 2024)

Key Takeaways

  • Non-exculpatory duress, while not providing a defence, can reduce an offender's moral culpability and operate as a mitigating factor at sentencing, even in cases involving objectively serious drug trafficking.
  • A background of severe childhood abuse, prolonged drug addiction, and mental illness does not excuse serious offending but remains relevant to the assessment of moral culpability and the structure of a sentence, particularly where rehabilitation prospects are engaged.
  • Under both Commonwealth and State sentencing regimes, an early guilty plea in circumstances that genuinely facilitated the administration of justice attracted a 25 percent discount in this matter.
  • Special circumstances can justify departing from the standard non-parole period ratio where the offender's rehabilitation needs, history of institutionalisation, and addiction profile require a more extended period of supervised release.
  • Where an offender is sentenced for both State and Commonwealth offences, the totality principle requires that the sentences be structured, including by partial accumulation, to ensure the overall punishment is not disproportionate to the totality of the conduct.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Code Act 1995 (Cth), ss 302.2, 302.4, 400.4
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Bugmy v The Queen (2013) 249 CLR 571
- DPP (Cth) v Merrill (a Pseudonym) [2015] VSCA 52
- Du Randt v The Queen [2008] NSWCCA 121
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Lim v The Queen [2018] VSCA 64
- R v Blair [2005] NSWCCA 78
- R v Fernando (1992) 76 A Crim R 58
- R v Henry (1999) 46 NSWLR 346
- R v Nguyen; R v Pham [2010] NSWCCA 238
- R v Osenkowski (1982) 30 SASR 212
- Tiknius v R [2011] NSWCCA 215