AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 14 July 2022

R v Baxter

[2022] NSWDC 708

DrugsFraud & dishonesty
PAROLE PERIOD — RATIO OF THE NON

Citation: R v Baxter [2022] NSWDC 708
Court: District Court of New South Wales
Date: 14 July 2022
Judge(s): M L Williams SC DCJ

Background

The offender, a 31-year-old man, pleaded guilty to multiple serious offences arising from his involvement in the storage and supply of large quantities of prohibited drugs at a residential property in Arncliffe, New South Wales. Police executed a search warrant on 20 March 2018 and discovered over one kilogram of methylamphetamine, approximately 165 grams of cocaine, five body armour vests, and nearly $68,000 in cash suspected to be proceeds of crime. The offender's DNA was found on drug packaging, an envelope, and gloves at the premises, and telephone intercept evidence placed him in clear control of a locked office where the drugs were stored.

The offender had leased the relevant property under a false name and maintained control of a locked internal office throughout the relevant period, even after nominally moving out. Intercept recordings captured him directing co-occupants to keep the office locked and, after the search warrant was executed, organising support for those arrested and expressing concern about whether firearms had been found in a car.

The offender was born to two heroin-addicted parents, grew up in public housing, suffered childhood neglect, and was physically abused by his father. A forensic psychiatrist provided evidence that his adverse developmental history, genetic vulnerability to addiction, and ADHD reduced his moral culpability to some extent, consistent with the principles established by the High Court in Bugmy v The Queen.

  • What sentences were appropriate across multiple drug supply, money laundering, and prohibited weapons offences, taking into account their objective seriousness and the offender's subjective circumstances?
  • How should the offender's adverse developmental history and drug addiction, assessed under Bugmy principles, affect the sentencing exercise?
  • Whether special circumstances existed to justify a non-parole period that was proportionally shorter than the statutory ratio to the balance of the term.
  • How the parity principle applied in light of the sentence previously imposed on a co-offender, and whether the offender and that co-offender had sufficiently equal culpability to attract the same outcome.
  • How Form 1 offences (participating in a criminal group and possession of additional body armour) should be taken into account in the sentencing process.

Decision

The court accepted that the offender's Bugmy factors, including his deprived upbringing, exposure to parental drug use and violence, his own drug addiction, and his ADHD, reduced his moral culpability to some extent. However, the court treated these as mitigating factors within the broader sentencing synthesis rather than as determinative of outcome. The objective seriousness of the principal offence, supply of a large commercial quantity of methylamphetamine, remained high.

The court applied a 25% discount to reflect the offender's guilty pleas. The Form 1 matters (participating in a criminal group and possession of additional body armour) were addressed by giving greater weight to personal deterrence and retribution, consistent with the approach described in Attorney General's Application No 1 of 2002.

On the parity question, the court declined to impose substantially the same sentence as that given to a co-offender, Joe Leaaetoa, sentenced in October 2019. The court was not satisfied that the two offenders shared sufficiently equal objective seriousness, involvement, and culpability to make parity the governing consideration.

The court found special circumstances, which in NSW allows the non-parole period to be set at a lower proportion of the total sentence than the standard one-third ratio. This produced an aggregate sentence of four years and nine months with a non-parole period of two years.

Orders Made

  • The offender was convicted of each offence.
  • Indicative sentences, after a 25% guilty plea discount, were imposed as follows:
  • Sequence 12 (supply of large commercial quantity of methylamphetamine, with Form 1 matter): 4 years, indicative non-parole period of 2 years
  • Sequence 14 (supply of cocaine): 22 months
  • Sequence 16 (dealing with suspected proceeds of crime, $50,486): 18 months
  • Sequence 17 (dealing with suspected proceeds of crime, $17,850): 12 months
  • Sequence 7 (possession of prohibited weapon, with Form 1 matter): 8 months, indicative non-parole period of 4 months
  • Aggregate sentence of imprisonment of 4 years and 9 months, commencing 21 May 2021.
  • Non-parole period of 2 years, expiring 20 May 2023.
  • Special circumstances found.
  • Confiscation orders made pursuant to consent short minutes dated 14 July 2022.

Key Takeaways

  • Bugmy factors, including childhood neglect, exposure to parental drug addiction and violence, and the offender's own addiction, were accepted by both parties and the court as reducing moral culpability, though they did not override the objective seriousness of large commercial drug supply.
  • A sentencing court may decline to apply the parity principle where the offenders do not share sufficiently equal culpability, involvement, and objective seriousness, even if they were co-participants in the same criminal enterprise.
  • Form 1 offences are addressed not by imposing additional discrete penalties but by increasing the weight given to personal deterrence and the community's entitlement to retribution for serious offending, in accordance with the Attorney General's Application approach.
  • Under DS v R; DM v R [2022] NSWCCA 156, a mental impairment or adverse developmental history may affect assessment of both moral culpability and objective seriousness, but a causal link between impairment and offending does not automatically diminish objective seriousness.
  • Special circumstances were found to be present, supporting a non-parole period proportionally shorter than the standard ratio, consistent with the need for an extended period of supervised release following a sentence of this length.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Crimes Act 1900 (NSW), ss 93T(1), 193C(2)
- Weapons Prohibition Act 1998 (NSW), s 7(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

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
- DS v R; DM v R [2022] NSWCCA 156
- Doyle v The Queen [2022] NSWCCA 81
- Ebrahimi v The Queen [2019] NSWCCA 273
- Nguyen v The Queen (2011) 208 A Crim R 432
- R v Kalache (2000) 111 A Crim R 252
- Toller v The Queen [2021] NSWCCA 204