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District Court 28 April 2023

R v Sahgal

[2023] NSWDC 127

Drugs
CRIME SENTENCE FORM 1 DISCOUNT 25% FOR EARLY PLEA YOUNG OFFENDER USER/STREET DEALER

Citation: R v Sahgal [2023] NSWDC 127
Court: District Court of New South Wales
Date: 28 April 2023
Judge: Montgomery DCJ

Background

The offender, a young man, was sentenced for two principal drug supply offences committed in late 2021 in the Rouse Hill area of New South Wales. The offences arose from a series of undercover police operations in which the offender sold cocaine and MDMA to police operatives, conducting transactions through encrypted messaging platforms including Telegram and Wickr, and marketing his stock through a group chat he operated.

The principal charges were: ongoing supply of cocaine under s 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW) (Sequence 6, involving 2.78 grams of cocaine sold across four occasions for a total of $1,450); and supply of MDMA in a commercial quantity under s 25(2) of that Act (Sequence 16, involving 200.07 grams of MDMA). A further supply of cocaine (4.46 grams across three transactions) was taken into account on a Form 1 under Sequence 10.

The offender pleaded guilty at an early stage, attracting a 25% discount on sentence. He had spent 423 days in custody before the hearing, and his case was characterised by the court as that of a user-level street dealer rather than a sophisticated or high-level drug trafficker.

  • What sentence was appropriate for a young offender convicted of ongoing drug supply (s 25A(1)) and commercial quantity drug supply (s 25(2)) where he presented as a user/street-level dealer?
  • How should the court weigh the standard non-parole period of 10 years applicable to the Sequence 16 offence against the offender's youth, rehabilitation prospects, and time already served?
  • Whether a sentence of full-time imprisonment or an Intensive Corrections Order (ICO) better served the paramount consideration of community safety, having regard to the offender's circumstances.
  • What weight should be given to the offender's early guilty plea, mental health conditions, substance use disorder, and strong family and employment support?

Decision

Montgomery DCJ identified the objective seriousness of both offences. In relation to the s 25A(1) ongoing supply charge, the court drew on Daher v R [2018] NSWCCA 287 for the principle that the offence is directed at the business operation of drug supply, assessed by reference to repetition, system, and organisation rather than quantity alone. The offending here involved only four supplies, one above the minimum threshold, with a small total quantity and modest financial return, placing it at the lower end of the range for this offence type.

The Sequence 16 offence carried a standard non-parole period of 10 years, reflecting the legislature's indication that commercial quantity supply is serious. However, the court assessed the offender's overall criminality in context: he was a young, first-time offender in the relevant sense, operating as a user-dealer rather than a commercial distributor, and he had already served 423 days on remand.

The court found the offender had good prospects of rehabilitation, supported by evidence of mental health treatment, family backing, and stable employment. It acknowledged a real risk of reoffending given his ongoing substance use disorder, but concluded that the risk was better addressed in the community than through further full-time custody. The court determined that an ICO was preferable to full-time detention for the paramount purpose of community safety, given his rehabilitation trajectory and the support structures available to him.

A 25% discount was applied to reflect the early guilty plea. The resulting sentence of 2 years, 10 months and 1 day was ordered to be served by way of an ICO, with substantial conditions addressing drug abstinence, mental health treatment, counselling, and community service.

Orders Made

  • The offender was convicted on Sequences 6 and 16.
  • Backup charges (Sequences 1 to 5, 7 to 9, 11 to 13, and 15) were dismissed.
  • A sentence of imprisonment of 2 years, 10 months and 1 day was imposed, to be served by way of an Intensive Corrections Order, commencing 28 April 2023 and expiring 28 February 2026.
  • Mandatory ICO conditions imposed: no further offending; supervision by a community corrections officer.
  • Additional conditions imposed:
  • Abstain from drug use except as prescribed by a medical practitioner
  • Undertake counselling or treatment as recommended by a corrections officer or treating practitioners
  • Complete 400 hours of community service work
  • Contact Windsor Community Corrections Office within 7 days
  • Comply with any Mental Health Plan and engage in recommended counselling
  • Accept referral and testing in relation to depression, anxiety, substance abuse disorder and addiction
  • Submit to drug testing as directed by a community corrections officer
  • No specific order made in relation to breaches of bonds imposed by the Local Court on 9 November 2020.

Key Takeaways

  • Under s 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW), objective criminality is assessed by reference to the system, repetition, and organisation of supply, not quantity alone, though quantity remains a relevant factor alongside those elements.
  • A standard non-parole period of 10 years for commercial quantity drug supply under s 25(2) does not automatically produce a custodial sentence where the full range of sentencing factors, including youth, rehabilitation prospects, and remand time, points in a different direction.
  • The District Court treated the paramount consideration of community safety as capable of being served by an ICO rather than full-time imprisonment, where the offender demonstrated genuine rehabilitation prospects and strong community supports.
  • Time spent on remand (here, 423 days) was a significant factor in the sentencing calculus, bearing on the appropriate length and form of the sentence ultimately imposed.
  • An early guilty plea attracting a 25% discount, combined with mental health conditions, substance use disorder, and a profile as a user-level dealer rather than a commercial operator, can collectively support a non-custodial sentencing outcome even for offences carrying maximum penalties of 20 years.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2), 25A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7, 25D, 44(2A), 53A, 66
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Daher v R [2018] NSWCCA 287
- Stanley v Director of Public Prosecutions (NSW) & Anor (2023) 407 ALR 222; [2023] HCA 3
- R v Pogson (2012) 82 NSWLR 60; [2012] NSWCCA 225
- Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Shavali v R [2022] NSWCCA 178
- Mandranis v R (2021) 289 A Crim R 260; [2021] NSWCCA 97
- Griffiths v R [2021] NSWCCA 226
- La v R [2021] NSWCCA 136
- AM v R (2012) 225 A Crim R 481; [2012] NSWCCA 203
- Parente v R [2017] NSWCCA 284
- Robertson v R [2017] NSWCCA 205
- Zuffo v R [2017] NSWCCA 25
- Remington v R [2018] NSWCCA 98
- R v Care; R v Al-Khateib [2020] NSWDC 856
- R v Dahmoul [2019] NSWDC 920
- R v Dando [2019] NSWDC 833
- R v Fadel