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District Court 2 March 2023

R v Perry

[2023] NSWDC 236

Drugs
CRIME SENTENCE

Citation: R v Perry [2023] NSWDC 236
Court: District Court of New South Wales
Date: 2 March 2023
Judge: Bourke SC DCJ

Background

The offender was charged with supplying a large commercial quantity of methylamphetamine, namely 3,235.17 grams, contrary to s 25(2) of the Drug Misuse & Trafficking Act 1985. The charge arose from a police search of his residential premises in Cranebrook in August 2021, where investigators found multiple containers in a garage holding substances that were subsequently analysed and confirmed to contain methylamphetamine. DNA evidence and other physical items connected the offender to the garage.

A separate incident in late July 2021 formed the basis of two additional matters taken into account on a Form 1 document. Police intercepting communications connected to a known associate observed the offender enter a vehicle at a local shopping centre, supply 54.67 grams of methylamphetamine to that associate, and then exit before police stopped the vehicle. When later asked to identify the driver and passengers of that vehicle, the offender falsely claimed not to know them.

The offender pleaded guilty at the earliest opportunity. He was also serving a sentence for unrelated domestic violence offences at the time of sentencing.

  • What is the appropriate head sentence and non-parole period for an offence of supplying a large commercial quantity of methylamphetamine, having regard to the maximum penalty of life imprisonment and the standard non-parole period of 15 years?
  • What discount applies by reason of an early guilty plea?
  • Whether special circumstances exist justifying a variation of the standard ratio between the non-parole period and the head sentence.
  • How totality principles should be applied given the offender was already serving a sentence for domestic violence offences.
  • What commencement date for the sentence was appropriate given the interaction with the existing sentence.

Decision

His Honour identified a starting point of nine years and four months' imprisonment before applying the plea discount. The offender pleaded guilty at the earliest opportunity, attracting a 25 per cent reduction for the utilitarian value of that plea. After that discount, and taking into account the Form 1 matters, the head sentence was fixed at seven years' imprisonment.

The court found special circumstances under the Crimes (Sentencing Procedure) Act 1999, based on the offender's need for extended supervision and support upon release given his drug and other problems. This justified a departure from the standard non-parole period ratio, producing a non-parole period of four years and six months against the seven-year head sentence.

On totality, the court observed that the domestic violence offences and the drug supply offence involved quite separate criminal conduct, and that some accumulation would ordinarily have been appropriate had all matters been dealt with together. To reflect this principle while avoiding a crushing outcome, the court backdated the sentence commencement to 23 May 2022, representing approximately 50 per cent of the period between the sentencing date and the arrest on 13 August 2021.

Orders Made

  • Head sentence of seven years' imprisonment imposed for supply of a large commercial quantity of methylamphetamine.
  • Non-parole period of four years and six months.
  • Sentence backdated to commence on 23 May 2022.
  • Head sentence to expire 22 May 2029; non-parole period to expire 22 November 2026.
  • Two Form 1 matters (supply indictable quantity of methylamphetamine and failing to disclose identity of a driver) taken into account.

Key Takeaways

  • An early guilty plea to a serious drug supply offence attracted a 25 per cent discount on the utilitarian value of the plea, consistent with established sentencing principles in NSW.
  • Special circumstances were established where the offender's significant drug dependency and related problems indicated a need for extended supervision following release, justifying a non-parole period below the standard ratio.
  • Under the totality principle, a sentencing court must consider what the overall sentence would have been had all matters been dealt with simultaneously, even where separate sentences were already imposed for distinct offences.
  • Backdating a sentence commencement to a date between arrest and sentencing is one mechanism a court may use to give effect to totality considerations and avoid an oppressive cumulative result.
  • The District Court treated the standard non-parole period of 15 years and the maximum of life imprisonment as significant reference points, while acknowledging the sentence ultimately reflected the specific circumstances of this offender.

Legislation and Cases Referenced

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

Cases
- Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 [2002] 56 NSWLR 146
- Bugmy v The Queen (2013) 249 CLR 571
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Millwood v R [2012] NSWCCA 2
- Veen v The Queen (No 2) (1988) 164 CLR 465