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District Court 13 December 2022

R v Tukuafu

[2022] NSWDC 717

DrugsPublic order & justice offences
CRIME SUPPLY PROHIBITED DRUG RELEVANT FACTORS ON SENTENCE EARLY GUILTY PLEA YOUNG IMMATURE OFFENDER ACTING UNDER INFLUENCE OF OLDER BROTHER

Citation: R v Tukuafu [2022] NSWDC 717
Court: District Court of New South Wales
Date: 13 December 2022
Judge: Haesler SC DCJ

Background

The offender, an 18-year-old working in the concreting industry, came under the influence of his older brother, who had himself been drawn into criminal activity by a member of an outlaw motorcycle gang. Following his brother's example, the offender became involved in supplying methylamphetamine and cocaine through an encrypted communications platform, which police were ultimately able to access. He stood to profit approximately $500 per ounce supplied.

The offender pleaded guilty in the Local Court to two offences: supplying a prohibited drug (methylamphetamine) and participating in a criminal group. He also asked the court to take into account two further supply matters on a Form 1 (a procedure by which additional charges are acknowledged and taken into account at sentencing without separate conviction). The Form 1 matters illustrated the broader drug supply operation in which he was involved.

By the time of sentencing, the offender had just turned 20 and had spent approximately one year and two months in custody on remand. His older brother had been sentenced by the same judge weeks earlier in separate proceedings: R v Tukuafu [2022] NSWDC 671.

  • What was the appropriate sentence, having regard to the objective seriousness of the offences, the offender's youth and immaturity, his role in the criminal hierarchy, and the time already spent on remand?
  • Whether concurrent or cumulative sentences were required for the supply offence and the criminal group charge, given that the particulars of participation substantially overlapped with the aggravating features of the supply offence.
  • Whether an Intensive Correction Order (ICO) served the paramount consideration of community safety better than further imprisonment or release on parole.
  • What discount, if any, applied for the early guilty plea, and how parity with the co-offender (the older brother) should be reflected in the outcome.

Decision

Haesler SC DCJ held that concurrent sentences were required for the two charges. Because the particulars of the criminal group charge were essentially the same as the matters aggravating the supply offence, imposing cumulative sentences would have amounted to double-counting. The Form 1 matters did not increase the sentence in isolation but were relevant to understanding the character and scale of the supply operation, with greater weight given to personal deterrence and retribution.

The court assessed the offences as falling above the very bottom of the range of objective seriousness, though not in the middle. Despite the offender's youth, immaturity, difficult upbringing, learning difficulties, possible ADHD, and the significant influence of his older brother, the court emphasised that custodial sentences are warranted for drug supply of this kind. The Court of Criminal Appeal's direction that meaningful penalties must be imposed in such matters was noted as reinforcing the need for general deterrence.

The sentencing judge applied a 25% reduction for the utilitarian value of the early guilty plea. Significant weight was also given to the harshness of the remand period, which was served entirely during the COVID-19 pandemic, when programs, work, visits, and communications were severely disrupted. The court observed candidly that imprisonment during this period was considerably more punishing than in ordinary times.

Having considered the Sentence Assessment Report and a forensic psychologist's report, the court concluded that an ICO best served community safety. The report indicated the offender was at medium risk of reoffending and that supervision could reduce that risk through referrals to drug rehabilitation, financial counselling, and structured programs. The court found the ICO option preferable to further imprisonment or simple parole, on the basis that ongoing supervision and community service would better address the offender's rehabilitation and community protection.

Orders Made

  • Convicted of supplying a prohibited drug: indicative sentence of 1 year and 1 month imprisonment.
  • Convicted of participating in a criminal group: indicative sentence of 5 months imprisonment.
  • Aggregate sentence of 1 year and 1 month imprisonment, to be served by way of an Intensive Correction Order (ICO) commencing 13 December 2022.
  • Required to report to Community Corrections, Mount Druitt, within 7 days of 13 December 2022.
  • Standard ICO conditions applied: must not commit any offence; must submit to supervision by a community corrections officer.
  • Additional conditions: 250 hours of community service work; acceptance of guidance and supervision from Community Corrections NSW; engagement with supervision plan as directed.

Key Takeaways

  • Where the particulars of a criminal group charge substantially mirror the aggravating features of an associated supply offence, concurrent rather than cumulative sentences are required to avoid double-counting the same conduct.
  • A 25% sentencing discount for early guilty pleas reflects utilitarian value and applies even where the offences are serious enough to otherwise warrant substantial imprisonment.
  • The District Court treated the severity of remand conditions during the COVID-19 pandemic as a relevant mitigating factor, drawing on evidence received across multiple proceedings about the heightened hardship of custodial detention during that period.
  • Youth, immaturity, a difficult upbringing, and acting under the influence of an older sibling are mitigating factors, but the court confirmed they do not displace the need for meaningful penalties in drug supply matters, consistent with Court of Criminal Appeal guidance.
  • An ICO was preferred over further imprisonment or parole where a Sentence Assessment Report identified medium reoffending risk and recommended that structured supervision, rehabilitation referrals, and community service could better serve community safety.

Legislation and Cases Referenced

Legislation:
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 7(1)

Cases:
- Clarke-Jeffries v R [2019] NSWCCA 56
- R v Tukuafu [2022] NSWDC 671 (sentencing of the offender's older brother)