Citation: R v George [2023] NSWDC 141
Court: District Court of New South Wales
Date: 28 April 2023
Judge: Fitzsimmons SC DCJ
Background
A 36-year-old woman pleaded guilty to one charge of supplying a prohibited drug, specifically two kilograms of Gamma-Butyrolactone (GBL), in an amount not less than the commercial quantity, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). A second supply of the same substance and quantity was included on a Form 1 (a document that allows an additional offence to be taken into account at sentencing without it being separately prosecuted).
The offending arose from a police Strike Force operation targeting drug supply in the Waterloo area, established in September 2021. The offender acted as a middleman, connecting a co-offender with an unknown supplier on two occasions in December 2021. She was arrested on 21 December 2021 and had spent 443 days in pre-sentence custody by the time of the sentencing hearing.
The offender's background included a difficult childhood, mental health issues, and a history of addiction. She had a limited prior criminal history and was subject to a conditional release order at the time of the offending.
Legal Issues
- What was the appropriate sentence, having regard to the objective seriousness of the commercial drug supply offences and the Form 1 matter?
- How should the Bugmy principles (relating to the ongoing relevance of deprived background and disadvantage to moral culpability) apply to the offender's circumstances?
- How should the De La Rosa considerations (relating to the role and culpability of a drug courier or middleman) affect the sentence?
- What parity adjustments, if any, were required given the sentences imposed on co-offenders?
- Were special circumstances established, warranting a reduction in the standard non-parole period?
- Should the sentence be backdated to account for time already spent in pre-sentence custody?
Decision
His Honour assessed the objective seriousness of the offending as significant. The offender supplied twice the minimum commercial quantity on each occasion and was on a conditional release order at the time. Although she played an intermediary role rather than being a principal organiser, the quantity and nature of the conduct placed the offending at a meaningful level of seriousness.
The court applied the Bugmy principles, recognising that the offender's deprived childhood, disrupted upbringing, mental health difficulties, and history of substance abuse reduced her moral culpability. These matters also reduced the weight to be given to general deterrence. The court noted the offender's expressions of remorse and assessed her prospects of rehabilitation as good.
Consistent with parity principles from Green v R; Quinn v R, the court had regard to the sentences imposed on the co-offenders. The court noted the offender was being sentenced for a lesser role than some of those co-offenders, while still acknowledging the seriousness of the Form 1 matter, which warranted a modest increase to the sentence otherwise appropriate for the principal offence.
Special circumstances were found, given the offender's mental health, the fact that this was her first period of full-time custody, the additional hardships of custody during the COVID-19 pandemic, and her need for supervised rehabilitation upon release. The standard non-parole period was accordingly reduced. The sentence was backdated to 9 February 2022 to account for the 443 days of pre-sentence custody already served.
Orders Made
- The offender was convicted of the principal offence of supply of a prohibited drug not less than the commercial quantity.
- A sentence of imprisonment of 3 years and 4 months was imposed, commencing 9 February 2022 and expiring 8 June 2025.
- A non-parole period of 1 year and 10 months was imposed, expiring 8 December 2023.
- The earliest date of eligibility for release to parole was 8 December 2023.
Key Takeaways
- The District Court applied the Bugmy principles to reduce the offender's moral culpability and the weight given to general deterrence, reflecting her significantly disadvantaged background and mental health difficulties at the time of offending.
- Where an offender plays an intermediary or middleman role in a drug supply chain, the De La Rosa considerations remain relevant to the assessment of relative culpability, even where the quantities involved are at or above the commercial threshold.
- Parity principles required the court to have regard to the sentences of all co-offenders, ensuring the offender's sentence was proportionate to her comparative role and culpability within the operation.
- Special circumstances can be established by a combination of factors including a first period of full-time custody, mental health needs, hardship experienced during custody, and the need for supervised post-release rehabilitation, each of which may individually or collectively justify reducing the standard non-parole period.
- Pre-sentence custody of 443 days was fully taken into account by backdating the commencement of the sentence, reflecting the court's obligation to give proper credit for time already served.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW) s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW) Pt 4 Div 1A; s 3A
Cases:
- Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
- DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Green v R; Quinn v R (2011) 244 CLR 462
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- Hoskins v R [2021] NSWCCA 169
- Lloyd v R [2022] NSWCCA 18
- Huang v R [2017] NSWCCA 312
- Imbornone v R [2017] NSWCCA 144
- Taysavang v R; Lee v R [2017] NSWCCA
- Giang v R [2017] NSWCCA 25
- Van Ryn v R [2016] NSWCCA 1
- Koh v R [2013] NSWCCA 287
- Pham v R [2013] NSWCCA 217
- NGO v R [2017] WASCA 3
- Paxton v R [2011] NSWCCA 242
- R v Qutami [2001] NSWCCA 353