AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
District Court 12 April 2023

R v Consigli

[2023] NSWDC 355

DrugsFraud & dishonesty

Citation: R v Consigli [2023] NSWDC 355
Court: District Court of New South Wales
Date: 12 April 2023
Judge: Haesler SC DCJ

Background

The offender pleaded guilty to two charges of supplying a prohibited drug (methylamphetamine) in less than a commercial quantity under the Drug Misuse and Trafficking Act 1985 (NSW), and one charge of knowingly dealing with the proceeds of crime under the Crimes Act 1900 (NSW). Both offence types carry a maximum penalty of 15 years imprisonment.

The offender had participated, at times, in a drug supply network operating on the South Coast of New South Wales. Her partner was a principal distributor sourcing methylamphetamine from an online supplier. The offender's role included making deliveries when her partner was unavailable, communicating with the online supplier, and managing aspects of outstanding debts within the network. The four documented supplies, charged across the indictment and a Form 1 (additional offences taken into account at sentencing without separate penalties being imposed), involved quantities ranging from approximately 3.5 grams to 56 grams of methylamphetamine, arising between August and September 2021.

The proceeds of crime offence arose from surveillance footage captured inside a storage unit, where the offender was recorded on two occasions counting and handling large bundles of banknotes that were clearly the proceeds of the drug operation. The offender was arrested in December 2021 and spent one day in pre-sentence custody.

  • What was the appropriate assessment of objective seriousness for the offender's role in the supply network?
  • How should the two Form 1 supply matters affect the overall sentence?
  • Whether the sentence should be served by way of an Intensive Correction Order (ICO) in the community, or by full-time imprisonment.
  • What weight should be given to the offender's subjective circumstances, including mental health, disturbed background, prior rehabilitation, and pro-social bonds?
  • Whether special circumstances existed to justify a non-parole period that departs from the standard ratio.

Decision

His Honour assessed the offender's role as more than that of a simple courier acting for personal reward, such as a small supply of drugs for personal use. While she was not the principal organiser and her involvement represented only a small portion of the overall half-kilogram distributed by her partner, she was aware of the operation's scale, participated actively in multiple transactions, and lived a lifestyle partly funded by the operation. The Form 1 matters confirmed that the two charged supplies were not isolated incidents.

On the proceeds of crime matter, the surveillance footage left no doubt about the offender's awareness of the origin and nature of the cash. Her recorded comments, including expressions of enjoyment at handling the money, were treated as relevant to her culpability and insight.

The central sentencing question was whether an ICO was appropriate. His Honour acknowledged the offender's subjective case, which included a disturbed background, a diagnosed personality disorder, underlying mental health conditions, prior completion of drug rehabilitation programs, and positive responses to therapy. However, the Court found that community safety was the paramount consideration. An ICO would have permitted only supervision and community service as conditions, neither of which adequately reflected the need for retribution, specific deterrence, or reinforcement of the consequences of the offending. The offender's identified tendency toward risk-taking and impulsivity, attributed in part to her underlying disorder, weighed against serving the sentence in the community.

His Honour found special circumstances existed, warranting a departure from the standard non-parole ratio, so as to avoid full-time custody breaking the offender's pro-social bonds and to allow appropriate programs to be accessed through the correctional system.

Orders Made

  • Aggregate sentence of 2 years and 6 months imprisonment, commencing 11 April 2023.
  • Indicative sentence for the first supply offence (with Form 1 matters): 2 years and 3 months imprisonment.
  • Indicative sentence for the second supply offence: 1 year and 10 months imprisonment.
  • Indicative sentence for the proceeds of crime offence: 1 year and 10 months imprisonment.
  • Non-parole period of 1 year and 3 months imprisonment.
  • Release to parole on 10 July 2024.
  • Parole period of 1 year and 3 months, reflecting a substantial finding of special circumstances.

Key Takeaways

  • A sentencing court may decline to impose an ICO even where an offender presents strong subjective circumstances, including prior rehabilitation and positive therapeutic engagement, if community safety as the paramount consideration is better served by full-time custody.
  • Under the Crimes (Sentencing Procedure) Act 1999 (NSW), Form 1 offences do not attract separate penalties but do require the sentencing court to give greater weight to personal deterrence and community protection.
  • Participation in a drug supply network at a subordinate level, where the offender is aware of the scale of the operation and makes an active contribution across multiple transactions, carries meaningful objective seriousness even when the charged quantities are relatively modest compared to the broader operation.
  • Special circumstances justifying a non-parole period shorter than the standard ratio can be established where full-time imprisonment would otherwise sever pro-social bonds that are central to rehabilitation prospects.
  • Sentencing courts must proceed on the agreed facts and reasonable inferences drawn from them, with aggravating matters proved beyond reasonable doubt and mitigating matters on the balance of probabilities, consistent with Olbrich v The Queen (1999) 199 CLR 270.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes Act 1900 (NSW), s 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 37

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- EF v R [2015] NSWCCA 36
- Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54
- R v Burns [2010] NSWCCA 279
- Ramos v R [2018] NSWCCA 206
- Robertson v R [2017] NSWCCA 205
- Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3
- Zheng v R [2023] NSWCCA 64