Citation: R v Henderson; R v Fitzsimmons [2022] NSWDC 767
Court: District Court of New South Wales
Date: 11 April 2022
Judge(s): Bourke SC DCJ
Background
Police commenced an investigation into drug supply in the Cessnock area in February 2021, obtaining a telephone intercept warrant for the first offender in late March 2021. Over the following weeks, intercepted communications revealed a series of methamphetamine supply transactions. The first offender also spent time at the home of the second offender, his girlfriend, where police later executed a search warrant.
The first offender faced three principal charges: supplying 132 grams of methamphetamine, supplying a commercial quantity (254 grams) of methamphetamine, and possessing a shortened firearm. Six additional offences were placed on a Form 1 document to be taken into account on the commercial supply charge, and a further offence relating to a knife in a public place was dealt with by way of a section 166 certificate. The second offender faced two charges of methamphetamine supply, with a possession offence dealt with by certificate.
The offending involved concealing methamphetamine on his person at the time of arrest, transporting it in a caged police vehicle, and later being stopped while carrying further large quantities of the drug. A shortened firearm and substantial ammunition were found at the second offender's garage, and DNA evidence linked the first offender to both the firearm and a locked storage container found at the scene.
Legal Issues
- What sentences were appropriate for the principal supply and firearms offences, having regard to maximum penalties and, where applicable, the standard non-parole period?
- What discount applied for early guilty pleas entered at the earliest opportunity?
- How should the aggregate sentence reflect totality principles, the need to avoid a crushing sentence, and the risk of institutionalisation of a relatively young offender?
- How should the commencement date be fixed given the first offender was serving an existing sentence arising from entirely separate offending, with parole revoked, and had also served intervening fixed terms imposed by the Local Court?
Decision
Bourke SC DCJ imposed a 25% discount on each offender's sentence to reflect the utilitarian value of guilty pleas entered at the earliest opportunity. The court identified the commercial supply of methamphetamine as the principal offence for the first offender, with the standard non-parole period of 10 years serving as an important yardstick in the sentencing exercise.
The court took into account the Form 1 matters, including the 101 grams of methamphetamine concealed on the first offender's person and later emptied onto the floor of a police vehicle, and the cash found in his possession as suspected proceeds of crime. These matters, while not separately sentenced, aggravated the overall picture of the offending.
On the question of commencement, the court found that some degree of accumulation was required because the revoked parole sentence related to entirely separate offending. At the same time, the court applied totality principles, acknowledging that the first offender had been in custody for most of the period since December 2016, when he was only 21 years old. Balancing the seriousness of the current offending against the need to avoid a crushing sentence and minimise the risk of institutionalisation, the court fixed the commencement date at 14 December 2021.
For the knife offence dealt with by section 166 certificate, the court imposed a conviction but no further penalty under section 10A of the Crimes (Sentencing Procedure) Act 1999.
Orders Made
Henderson:
- Aggregate head sentence of 6 years and 4 months, commencing 14 December 2021 and expiring 13 April 2028
- Non-parole period of 3 years and 10 months, commencing 14 December 2021 and expiring 13 October 2025 (earliest parole eligibility date)
- In relation to the knife in a public place offence (s 166 certificate): conviction recorded, no other penalty imposed under s 10A of the Crimes (Sentencing Procedure) Act 1999
Fitzsimmons:
- [Orders for Fitzsimmons not fully reproduced in provided text]
Key Takeaways
- A 25% discount for guilty pleas entered at the earliest opportunity was applied consistently to both co-offenders, reflecting the established utilitarian value of such pleas.
- Maximum penalties and, where applicable, standard non-parole periods operate as important guideposts in the sentencing exercise rather than as fixed benchmarks, requiring calibration against all relevant circumstances.
- Where a current sentence arises from entirely separate offending to a pre-existing sentence being served, some degree of accumulation is appropriate rather than full concurrency.
- Totality principles require a sentencing court to consider whether an aggregate sentence would be crushing and to account for the risk of institutionalisation, particularly where an offender has been in custody for most of a formative period of their life.
- Form 1 matters, while not separately punished, are taken into account in setting the overall sentence for the principal offence to which they relate, allowing the court to reflect the full extent of the offending pattern.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 10A and s 166
Cases:
- Kennedy [2016] NSWCCA 187
- Kurniawan [2017] NSWCCA 171
- Owen [2017] NSWCCA 54
- R v Fangaloka [2019] NSWCCA 173
- Yeung [2018] NSWCCA 52