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District Court 14 December 2022

R v Porter (a pseudonym)

[2022] NSWDC 680

DrugsFraud & dishonestyTraffic & drivingFirearms & weapons
CRIME MULTIPLE OFFENCES POLICE PURSUIT RELEVANT FACTORS ON SENTENCE MULTIPLE OFFENCES FORM 1

Citation: R v Porter (a pseudonym) [2022] NSWDC 680
Court: District Court of New South Wales
Date: 14 December 2022
Judge: Haesler SC DCJ

Background

A police Strike Force established in April 2018 investigated methylamphetamine supply in the southern Wollongong area. Lawful telephone intercepts revealed that the offender (referred to by pseudonym under a suppression order) purchased methylamphetamine from an upstream supplier and on-sold it to a network of five distributors over a period spanning April 2018 to February 2019. The total weight of methylamphetamine involved was 1,286.8 grams, well exceeding the large commercial quantity threshold.

The investigation uncovered a range of additional offending. When police executed a search at his mother's address, the offender used telephone calls to recruit associates to fabricate ownership of ammunition found on the premises. He also acquired two high-end vehicles (an Audi A5 and a Mercedes C63) suspected to be proceeds of crime, and he fled from a random breath test site at high speed. The offender was subject to a Firearms Prohibition Order at the time ammunition was found.

Guilty pleas were indicated in the Local Court and maintained in the District Court. The sentencing judge had previously sentenced several co-offenders in the same network, providing a basis for parity and proportionality analysis.

  • What was the appropriate sentence for the principal offence of supplying a large commercial quantity of methylamphetamine, taking into account a Form 1 offence (directing a criminal group)?
  • How should the multiple offences be structured, accumulated, or made concurrent to reflect totality and proportionality principles?
  • What discount applied for the utilitarian value of the guilty pleas, and how should that discount be preserved across an aggregate sentence?
  • What weight should be given to mitigating factors, including childhood trauma, deprivation, good use of time in custody, and COVID-19 conditions?
  • How did parity with previously sentenced co-offenders, including the upstream supplier, inform the sentence?

Decision

Haesler SC DCJ treated the principal offence as the large commercial quantity drug supply charge, which carried a standard non-parole period and was sentenced with the criminal group direction offence taken into account on a Form 1 (meaning it was considered in setting the penalty but did not produce a separate sentence). A 25 per cent discount was applied across all offences for the utilitarian value of the early guilty pleas. The judge was careful not to erode that discount when formulating the aggregate sentence.

On the question of totality, the judge considered the sentences imposed on five co-offenders, including distributors Frankcom, Kominkovski, Dekker and Kinzett, and the upstream supplier "H". The offender's role as the central figure organising supply to multiple distributors placed him above the distributors in the hierarchy, justifying a more substantial sentence. The upstream supplier, who had also provided significant assistance to authorities attracting a further 25 per cent discount under section 23 of the Crimes (Sentencing Procedure) Act, received a lower aggregate sentence as a result.

The judge considered the offender's background, including significant childhood trauma and deprivation. Consistent with the High Court's approach in Bugmy v The Queen (2013) 249 CLR 571, these factors retained their mitigating weight. The judge also accepted that the offender had made genuine efforts at rehabilitation in custody. A finding of special circumstances was made, extending the parole period beyond the statutory ratio, on the basis that the offender would require substantial supervision and support upon release. The judge acknowledged the practical impact of COVID-19 on conditions in custody.

The aggregate sentence was accumulated onto an existing sentence the offender was already serving.

Orders Made

Indicated sentences (each reflecting the 25% guilty plea discount):

  • Seq 10: Supply large commercial quantity of prohibited drugs (with Form 1 taken into account): 5 years 4 months, non-parole period of 3 years
  • Seq 2: Acquire ammunition subject to Firearms Prohibition Order: 1 year
  • Seq 3: Do act with intent to pervert the course of justice: 6 months
  • Seq 13: Deal with property reasonably suspected of being proceeds of crime: 1 year
  • Seq 2 (second): Do act with intent to pervert the course of justice: 6 months
  • Seq 8: Police pursuit: 1 year
  • Driving disqualification: 2 years

Aggregate sentence:

  • Aggregate term of 6 years 6 months with a non-parole period of 3 years 3 months, commencing 22 February 2022 and expiring 21 May 2025; balance of sentence (3 years 3 months) expires 21 August 2028
  • Total sentence as accumulated: 9 years 6 months
  • Total non-parole period as accumulated: 6 years 3 months; earliest release date 21 May 2025
  • The report of Professor Woods (dated 10 August 2022) directed to be forwarded to Corrective Services with the warrant

Key Takeaways

  • The District Court confirmed that an offender's role as a central organiser supplying multiple distributors in a drug network places them above street-level co-offenders for sentencing purposes, and parity with those co-offenders does not constrain the sentence to the same range.
  • Where a guilty plea discount has been applied to each individual indicated sentence, the sentencing court must take care not to erode that discount when constructing an aggregate sentence under the Crimes (Sentencing Procedure) Act 1999.
  • Consistent with Bugmy v The Queen, childhood trauma and deprivation retained their mitigating weight at sentencing, even where the offending was serious and the offender had prior criminal history.
  • A Form 1 offence (here, directing a criminal group under s 93T(4) of the Crimes Act 1900) does not produce a separate sentence but is taken into account in setting the penalty for the principal offence, which in this case carried a standard non-parole period.
  • Special circumstances were found to exist, extending the parole period beyond the standard statutory ratio, where the judge accepted that the offender's background and the complexity of his rehabilitation needs required a longer supervisory period upon release.

Legislation and Cases Referenced

Legislation:
- Courts (Suppression and Non-publication Orders) Act 2010 (NSW)
- Confiscation of Proceeds of Crime Act 1989 (NSW)
- Crimes Act 1900 (NSW): ss 93T(4A), 193C(2), 319, 51B
- Crimes (Administration of Sentences) Act 1999 (NSW): s 135
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 23, 25D
- Drug (Misuse and Trafficking) Act 1985 (NSW): s 25(2)
- Firearms Act 1996 (NSW): s 74(3)
- Road Transport Act 2013 (NSW)

Cases cited:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Mill v The Queen (1988) 166 CLR 59
- DS v R; DM v R [2022] NSWCCA 156
- Cahyadi v R [2007] NSWCCA 1
- Harrigan v R [2005] NSWCCA 449
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
- R v Dekker; R v Kominkovski [2021] NSWDC 339
- R v Frankcom [2021] NSWDC 294
- R v Kinzett [2021] NSWDC 339
- R v Spinks [2021] NSWSC 649; [2021] NSWDC 452