Citation: R v Cox [2022] NSWDC 728
Court: District Court of New South Wales
Date: 10 November 2022
Judge(s): M L Williams SC DCJ
Background
The offender, a 48-year-old man with a prior criminal history, pleaded guilty to two offences: supplying not less than a large commercial quantity of methylamphetamine (562 grams) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985, and police pursuit contrary to s 51B of the Crimes Act 1900. A further offence of failing to stop and give particulars under the Road Rules 2014 was placed on a Form 1 to be taken into account on the police pursuit count.
Between April and May 2021, the offender arranged and carried out three separate supplies of methylamphetamine to a co-offender, Norton, who had been identified through telephone intercepts. The offender occupied an upline wholesale role, sourcing drugs from suppliers in Sydney and on-selling to Norton, who retailed smaller quantities. The total quantity supplied across the three transactions was 562 grams.
The police pursuit arose immediately after the third supply, when officers in an unmarked car attempted to stop the offender's vehicle. The offender reversed sharply, striking a detective, then led police on a high-speed chase reaching 120 km/h in a 90 km/h zone, deliberately braked to cause pursuing vehicles to collide with him, side-swiped a transit van, and collided with a police vehicle before evading capture. He was not arrested until 20 October 2021.
Legal Issues
- What were the appropriate indicative sentences for each offence, applying a 25% guilty plea discount?
- How should the aggregate sentence be structured, taking into account totality and the period already spent in custody on unrelated matters?
- Whether parity with the co-offender Norton's sentence should influence the indicative sentence for the drug supply count.
- Whether special circumstances existed justifying a variation to the standard non-parole period ratio.
- What licence disqualification period was appropriate for the police pursuit offence?
Decision
Drug supply (Sequence 11): The court accepted the jointly proposed characterisation of objective seriousness as between low and mid-range for the drug supply offence. Although the quantity supplied (562 grams) was less than Norton's 1.551 kilograms, the offender's role as an upline wholesaler carried meaningful moral culpability. The offender was on bail for receiving offences at the time of offending, which aggravated his culpability. After applying the 25% guilty plea discount, the court adopted an indicative sentence of three years with a non-parole period of 18 months, consistent with the sentence imposed on Norton for the equivalent count and reflecting parity principles.
Police pursuit (Sequence 5): The court accepted that the offender had genuinely panicked upon seeing plain-clothes officers approach him, given that he had been violently attacked by an armed intruder only weeks earlier. Nevertheless, the pursuit was objectively serious, rated above mid-range: the offender drove at high speed, deliberately attempted to cause the police vehicle to collide with him, struck two vehicles, and was driving in a manner so dangerous that police terminated the pursuit. The indicative sentence, taking into account the Form 1 matter, was two years imprisonment.
Aggregate sentence and totality: The court applied the totality principle and exercised its discretion to commence the aggregate sentence from 19 January 2022, rather than the date of arrest, to reflect time spent in custody on unrelated matters and to achieve a just overall outcome. The aggregate sentence was set at four years.
Special circumstances: The court found special circumstances, noting the offender's untreated mental health conditions, the difficulties of custody during the COVID-19 pandemic, a history of childhood sexual abuse, and the need for extended supervision on release including mental health counselling and possible pharmacotherapy for drug dependence. This finding extended the parole period beyond the standard ratio. The court also accepted the offender's expressions of remorse as genuine.
Orders Made
- Convicted of each offence.
- Indicative sentence for drug supply (Sequence 11): 3 years imprisonment, non-parole period of 18 months.
- Indicative sentence for police pursuit (Sequence 5), taking into account the Form 1 matter (Sequence 10): 2 years imprisonment.
- Aggregate sentence of 4 years imprisonment, commencing 19 January 2022.
- Non-parole period of 26 months, expiring 18 March 2024.
- Special circumstances found.
- Licence disqualification of 2 years in relation to Sequence 5.
Key Takeaways
- Parity principles applied across co-offenders: the District Court aligned the indicative sentence for the drug supply count with that imposed on Norton in R v Norton [2022] NSWDC 468, notwithstanding that the offender supplied a smaller quantity, because his upstream wholesale role was a countervailing factor.
- A defendant's prior violent victimisation can bear on the assessment of moral culpability for a police pursuit, even where the objective seriousness of the pursuit itself remains above mid-range.
- Under the aggregate sentencing framework, the commencement date of the sentence may be set earlier than the arrest date where the offender has served time on unrelated matters and totality requires a just overall result.
- Special circumstances were established by the combination of untreated mental illness, the particular hardships of pandemic-era custody, a history of childhood abuse, and the need for structured post-release supervision, each reinforcing the case for an extended parole period.
- Being on bail at the time of offending remains a recognised aggravating factor going to moral culpability, consistent with the principles in the Crimes (Sentencing Procedure) Act 1999.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1900 (NSW), s 51B
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Road Rules 2014 (NSW)
Cases:
- R v Norton [2022] NSWDC 468