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District Court 9 June 2023

R v Figg

[2023] NSWDC 194

Drugs
CRIME SENTENCING

Citation: R v Figg [2023] NSWDC 194
Court: District Court of New South Wales
Date: 9 June 2023
Judge: Abadee DCJ

Background

The offender pleaded guilty to one count of supplying a prohibited drug in a quantity greater than the large commercial quantity, specifically 557.62 grams of methylamphetamine, contrary to s 25(2) of the Drug Misuse & Trafficking Act 1985 (NSW). The offending occurred between 11 August and 16 September 2021 in the Wollongong region. The maximum penalty for that offence is life imprisonment, with a standard non-parole period of 15 years.

Police from the Wollongong Criminal Investigations Drug Unit commenced Strike Force Tower in June 2021 after identifying the offender as a mid-level drug supplier obtaining large quantities of methylamphetamine for on-supply to a broad customer base. Telephone intercepts and surveillance established that the offender sourced drugs from two co-offenders (his upline supplier and that supplier's partner), operated from his home unit in Woonona, and used coded language such as "shots of coffee" and "cups of coffee" to arrange transactions.

The primary charge was a rolled-up offence comprising 23 separate supply transactions to multiple customers. The offender also asked the court to take into account, on a Form 1, a further offence of supplying 21.24 grams of methylamphetamine on or before 10 August 2021. The plea was entered at Wollongong Local Court on 16 November 2022 and adhered to at the sentencing hearing.

  • The appropriate head sentence and non-parole period for a large commercial quantity methylamphetamine supply charge, taking into account the guilty plea, the Form 1 offence, and the offender's criminal history.
  • Whether special circumstances existed to justify a non-parole period shorter than the standard three-quarters proportion of the head sentence.
  • Whether, and to what extent, the commencement date of the sentence should be backdated, given the offender had been in custody since 17 December 2021 following revocation of parole.

Decision

Abadee DCJ imposed a sentence of 6 years imprisonment, commencing 1 December 2021 and expiring 30 November 2027. The non-parole period was set at 4 years, expiring 30 November 2025. The sentence reflected the serious objective gravity of the offending, the offender's significant criminal history (including prior drug supply convictions), and the need for both specific and general deterrence.

His Honour found special circumstances, albeit with some reservation given the offender's record of recidivism. The finding was based on the risk of institutionalisation and the potential for a longer parole period to provide both an incentive for rehabilitation and a deterrent against further offending. The reasoning drew on observations endorsed in R v Jackson [2010] NSWCCA 162, where the risk of institutionalisation was identified as a factor capable of grounding a special circumstances finding even in cases of serious and entrenched reoffending.

On the commencement date, his Honour exercised the discretion to modestly backdate the sentence beyond 20 December 2021, the date on which the offender's revoked parole period expired. The offender had been in custody since 17 December 2021, and the Crown did not oppose a partial backdating. His Honour adopted the submission and fixed commencement at 1 December 2021.

Orders Made

  • The offender was convicted of supply of a prohibited drug greater than a large commercial quantity.
  • Sentenced to 6 years imprisonment, commencing 1 December 2021 and expiring 30 November 2027.
  • Non-parole period of 4 years, expiring 30 November 2025, after which the offender is eligible for release on parole.
  • The Form 1 offence (supply of 21.24 grams of methylamphetamine) was taken into account in the sentencing for the primary offence.

Key Takeaways

  • The District Court confirmed that a rolled-up charge encompassing 23 discrete supply transactions can ground a single conviction for supply of a large commercial quantity, with the aggregate quantity determining the threshold.
  • Special circumstances warranting a shorter non-parole period can be established even where an offender has an entrenched history of recidivism, provided the risk of institutionalisation and the rehabilitative value of extended supervision are adequately demonstrated.
  • Under the approach endorsed in R v Jackson, the prospect of a "carrot and stick" outcome from a longer parole period, offering incentive for rehabilitation while deterring non-compliance, can support a special circumstances finding.
  • A Form 1 offence is not sentenced separately but is taken into account in fixing the penalty for the primary offence, effectively increasing the sentence imposed for that primary count.
  • Modest backdating of a sentence commencement date beyond the expiry of a revoked parole period remains available as a discretionary option where the offender entered custody prior to that expiry date.

Legislation and Cases Referenced

Legislation
- Drug Misuse & Trafficking Act 1985 (NSW), s 25(1) and s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A

Cases
- Blakeney v R [2022] NSWCCA 277
- Bugmy v The Queen (2013) 249 CLR 571
- Parente v R [2017] NSWCCA 284
- R v Henry (1999) 46 NSWLR 346
- R v Jackson [2010] NSWCCA 162