Citation: R v Mowlawisada [2023] NSWDC 401
Court: District Court of New South Wales
Date: 22 September 2023
Judge: Judge Fitzsimmons SC DCJ
Background
Police conducted a search of the offender's Bankstown unit in November 2021, acting under a firearms prohibition order (FPO) that had been in place since December 2016. During the search, officers located a substantial quantity of methamphetamine (nearly 418 grams), cocaine, cannabis, two working revolvers with obliterated or prohibited features, ammunition, drug supply paraphernalia, and almost $88,000 in cash.
The offender was the sole occupant of the unit at the time of the search and was found asleep in the main bedroom. He declined to participate in a police interview. Forensic DNA analysis linked him to several of the items recovered.
The offender pleaded guilty at the third arraignment listing following committal for trial, facing four principal counts: commercial quantity drug supply, knowingly possessing proceeds of crime, and possession of two unauthorised pistols. Each principal count carried a number of related offences dealt with on Form 1 (a procedure that allows additional admitted offences to be taken into account in sentencing without being separately sentenced).
Legal Issues
- What discount applied to sentence given the timing of the guilty plea?
- How should Form 1 offences be treated in the sentencing exercise?
- What weight should be given to the offender's disadvantaged upbringing, mental health impairment at the time of offending, and prospects for rehabilitation?
- Whether special circumstances existed to justify a reduction in the standard ratio between the non-parole period and the total head sentence?
- What aggregate sentence was appropriate across all four counts, having regard to the need for some accumulation?
Decision
Judge Fitzsimmons SC DCJ applied a 10% guilty plea discount under s 25D(2)(b) of the Crimes (Sentencing Procedure) Act 1999, reflecting the late timing of the plea at the third arraignment listing. The court applied the principles from the Attorney General's application (2002) 56 NSWLR 146 when addressing the Form 1 matters, treating those admitted offences as relevant to personal deterrence and the community's entitlement to retribution, rather than as separately sentenced offences.
The court identified the drug supply offence (Count 2) as the most serious. Before the plea discount, the court assessed an appropriate sentence for that count and then applied the 10% reduction. The same approach was applied to the other three counts, with the court setting indicative sentences for each before fixing an aggregate term.
The court accepted that the offender's disadvantaged upbringing, mental health impairment at the time of offending, and steps toward rehabilitation were relevant mitigating factors. The offender had abstained from drug use during close to two years of pre-sentence custody, which the court treated as a positive indicator of rehabilitation.
Special circumstances were found, justifying a non-parole period that departed from the standard proportion. The court relied on the offender's age, ongoing need for drug rehabilitation, and the importance of mental health support following release, accepting that an extended supervised parole period would better facilitate continued rehabilitation. The total aggregate sentence of six years was imposed, backdated to the date of arrest.
Orders Made
- The offender was convicted of Counts 2, 3, 4, and 7 upon his guilty pleas.
- A total aggregate sentence of 6 years imprisonment was imposed, commencing 24 November 2021 and expiring 23 November 2027.
- A non-parole period of 3 years and 1 month was fixed, commencing 24 November 2021 and expiring 23 December 2024.
- The earliest eligible parole release date was set at 23 December 2024.
Key Takeaways
- A guilty plea entered at the third arraignment listing following committal for trial attracted a 10% discount under s 25D(2)(b) of the Crimes (Sentencing Procedure) Act 1999, reflecting the late stage at which it was entered.
- Form 1 offences do not attract separate sentences; the District Court confirmed the orthodox approach that such matters increase the penalty for the principal offence by giving greater weight to personal deterrence and retribution, not by constructing a notional overall sentence and then discounting it.
- Under the principle in Bugmy v R (2013) 249 CLR 571, a disadvantaged upbringing does not diminish in relevance over time and remained a legitimate mitigating consideration alongside mental health impairment at the time of offending.
- Special circumstances were established on the basis of the offender's age, drug dependency, and mental health needs, warranting a non-parole period proportionally lower than the statutory norm to allow an extended supervised period in the community upon release.
- Demonstrated abstinence from drugs during pre-sentence custody, sustained over nearly two years, was treated as meaningful evidence of rehabilitation capable of influencing the sentencing outcome.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 25D(2)(b), 37, 53A
- Crimes Act 1900 (NSW), s 193B(2)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 25(1), 25(2)
- Firearms Act 1996 (NSW), ss 4(1), 7(1), 36(1), 65(3), 74(1), 74(3)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
Cases:
- Abbas, Bodiotios, Talev and Amoun v R [2013] NSWCCA 115
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 (2002) 56 NSWLR 146
- BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 15
- Bugmy v R (2013) 249 CLR 571; [2013] HCA 37
- DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Hoskins v R [2021] NSWCCA 169
- R v Farrell [2015] NSWCCA 68
- R v Pak [2015] NSWCCA 45
- Rakielbakhour v DPP [2020] NSWSC 323
- Sumrein v R [2019] NSWCCA 83
- TM v R [2023] NSWCCA 185