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District Court 24 November 2022

R v McKeown

[2022] NSWDC 720

Drugs
CRIME RELEVANT FACTORS ON SENTENCE EARLY PLEA FORM 1 ROLLED UP DRUG QUANTITY MULTIPLE SUPPLIES

Citation: R v McKeown [2022] NSWDC 720
Court: District Court of New South Wales
Date: 24 November 2022
Judge: Haesler SC DCJ

Background

The offender pleaded guilty in the Local Court to one charge of supplying methylamphetamine in a quantity not less than the large commercial quantity (500 grams), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1995. The offence carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years. The offender also asked the court to take into account a Form 1 matter for dealing with the proceeds of crime, relating to $10,000 found in his possession at the time of arrest.

Police identified the offender through electronic surveillance and telecommunications warrants as an upline supplier to a co-accused. Physical surveillance detected 19 individual supply transactions between 25 August and 28 September 2021, with quantities ranging from just under 24 grams to approximately 39 grams per supply. The total quantity accumulated across those transactions was 507.9 grams, marginally exceeding the large commercial threshold of 500 grams.

The offender was arrested immediately after completing the final transaction, admitted in a record of interview to being the upline supplier, and has remained in custody since 28 September 2021. He cooperated with police and provided translations of rudimentary codes used in the intercepted communications.

  • Whether the rolled-up charge approach was appropriate for accumulating drug quantities across 19 separate transactions
  • How to assess objective seriousness for a mid-level middleman supplier operating just above the large commercial quantity threshold
  • How to treat the Form 1 proceeds of crime matter without double-counting facts already relevant to the primary offence
  • What weight to give to the offender's drug addiction, financial hardship arising from COVID-related job loss, early plea, prior record, and rehabilitation prospects
  • Whether special circumstances existed to justify a longer-than-standard parole period

Decision

The rolled-up charge and Form 1. Haesler SC DCJ confirmed that accumulating quantities across multiple transactions into a single charge was appropriate, following Hamzy v R and Jadron v R. His Honour noted that while rolling up charges limits the theoretical maximum sentence exposure, it also places the offender squarely within the large commercial range with its high maximum and standard non-parole period. On the Form 1, the court declined to treat the $10,000 proceeds matter as an additional aggravating feature because the cash was already illustrative of the same supply conduct being sentenced. Counting it separately would amount to impermissible double-counting.

Objective seriousness. The court assessed the offending as serious. The offender distributed approximately half a kilogram of methylamphetamine over roughly five weeks, acting as a middleman with reliable access to an upline supplier. He operated above street level, conducted regular transactions, and was only stopped by police work. His Honour declined to formally locate the offending on a hypothetical scale of seriousness, observing that each offence and offender is individual, but was clear that the sentence had to reflect the gravity of distributing this quantity of a highly harmful drug.

Subjective matters. The court accepted that the offender's long-term drug addiction and financial precariousness following COVID-related loss of work helped explain (though did not excuse) his participation in supply. His prior record was limited and had resulted only in fines, so full first-offender leniency was not available, but the record did not significantly aggravate the sentence. His Honour expressed genuine, though cautious, optimism about rehabilitation prospects, noting the offender's demonstrated progress while in custody. The 25 percent discount for the early guilty plea was applied to reduce a pre-discount sentence of five and a half years.

Special circumstances. The court found special circumstances existed, warranting a departure from the standard ratio between non-parole period and balance of term. The rationale was that the offender's drug dependency would need structured, supervised support upon release, and an extended parole period would provide that oversight. The resulting sentence of four years and one month carries a non-parole period of two years and one month, meaning the balance of term (two years) exceeds the non-parole period rather than being the lesser component.

Orders Made

  • Non-parole period of two years and one month, commencing 28 September 2021, with eligibility for release to parole on 27 October 2023
  • Total sentence of four years and one month, with the balance of term of two years expiring on 27 October 2025
  • Appropriate property orders made (details not reproduced in the provided text)
  • No drug destruction order required

Key Takeaways

  • The District Court confirmed that accumulating drug quantities across multiple transactions into a single rolled-up charge is appropriate where the approach is accepted by the defence and supported by authority, but sentencers must guard against double-counting the series of acts both as rolled-up conduct and again as a separate aggravating feature under s 21A(m) of the Crimes (Sentencing Procedure) Act 1999.
  • Where a Form 1 matter is factually illustrative of the same criminal conduct being sentenced on the principal charge, treating it as an additional aggravating factor constitutes impermissible double-counting.
  • Drug addiction and financial hardship may assist in explaining how an offender came to be involved in mid-level supply, but neither constitutes an excuse, and neither prevents a substantial custodial term where the objective seriousness of the offending demands it.
  • Special circumstances were found to exist where an offender's entrenched drug dependency required a longer supervised parole period to support rehabilitation following release.
  • A pre-discount indicative sentence of five and a half years attracted a full 25 percent reduction for an early plea of guilty, producing a total sentence of four years and one month with a non-parole period of two years and one month.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1995 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 21A(m) (offence committed on multiple occasions)

Cases
- Hamzy v R (1994) 74 A Crim R 341
- Jadron v R [2015] NSWCCA 217