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District Court 6 October 2023

R v Zycki

[2023] NSWDC 412

DrugsPublic order & justice offences
CRIME FORM 1 OFFENCES PARTICIPATE IN CRIMINAL GROUP KNOWINGLY DEAL WITH PROCEEDS OF CRIME POSSESS PROHIBITED DRUG.

Citation: R v Zycki [2023] NSWDC 412
Court: District Court of New South Wales
Date: 6 October 2023
Judge: Mahony SC DCJ

Background

The offender, a 53-year-old woman with a 27-year career in Transport NSW, was sentenced for supplying 4.517 kilograms of cocaine, a quantity more than four times the prescribed large commercial quantity of one kilogram under the Drug Misuse and Trafficking Act 1985. The offending occurred between December 2019 and May 2021 and arose from her participation in a sophisticated drug distribution syndicate operating along the east coast of Australia, directed by persons connected to an outlaw motorcycle group.

The offender's role within the syndicate was that of a trusted courier. She transported large quantities of cocaine and cash, repackaged drugs into smaller batches for on-supply, and sent photographs of that process to those above her in the hierarchy. Her involvement was driven primarily by a serious cocaine addiction, which developed following the breakdown of her marriage in 2011 and the death of her mother, and by a drug debt she owed to the syndicate, which incentivised her continued participation.

The offender pleaded guilty at the earliest opportunity in the Local Court. Four additional offences were placed on a Form 1 to be taken into account on sentence, including participating in a criminal group, knowingly dealing with proceeds of crime ($627,650), supplying a large commercial quantity of MDMA, and possessing a prohibited drug.

Legal Issues

  • What was the appropriate level of objective seriousness for the index offence under section 25(2) of the Drug Misuse and Trafficking Act 1985?
  • What was the offender's role in the syndicate and how did that affect her culpability?
  • How should the offender's drug addiction and diagnosed mental health conditions (PTSD, Major Depressive Disorder, and Generalised Anxiety Disorder) bear on sentence?
  • Did the offender's compliance with strict bail conditions warrant a further reduction in sentence beyond the 25 per cent utilitarian plea discount?
  • Was a finding of special circumstances under section 44(2) of the Crimes (Sentencing Procedure) Act 1999 warranted?
  • Was an Intensive Correction Order (ICO) available or appropriate?

Decision

Objective seriousness and role in the syndicate

The court placed the offending in the upper part of the low range of objective seriousness for an offence under section 25(2) of the DMTA, finding it fell below the mid-range overall (at [73]). This meant the standard non-parole period of 15 years did not apply (at [77]). The court accepted that the offender was not a decision-maker, did not share in the syndicate's profits, and had no decision-making role (at [73]). However, her role was described as integral: she was trusted with large quantities of cocaine and significant amounts of cash, transported both over long distances, and repackaged drugs for on-supply (at [72]). The court also accepted the Crown's concession that the purity of the cocaine should be treated as low in the absence of evidence to the contrary (at [73]).

Aggravating and mitigating factors

The court identified the series of criminal acts (eleven separate transactions) as an aggravating factor under section 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999 (at [74]). It expressly declined to double-count organised criminal activity as a further aggravating factor, given the Form 1 offence of participating in a criminal group, and declined to treat financial gain as aggravating because it is an inherent characteristic of serious drug supply (at [74]). The offender's prior good character and lack of criminal antecedents were taken into account as mitigating factors, albeit of limited weight in the context of serious drug supply (at [75], [81]).

Addiction, mental health, and moral culpability

The court found that the offender's addiction at the time of offending lessened her moral culpability to some extent but held that addiction was not itself a mitigating factor (at [81]). The court also found no causal connection between her diagnosed PTSD, Major Depressive Disorder, and Generalised Anxiety Disorder and the commission of the index offence (at [81]). Consistent with the principles in DPP (Cth) v De La Rosa, however, the court accepted that those conditions would make custody more onerous for her and somewhat diminished the weight to be given to general and specific deterrence (at [82]).

Plea discount, quasi-custody, and facilitating justice

The offender received a 25 per cent utilitarian discount for her early plea of guilty (at [75]). The court rejected the submission that a further discount was warranted because the offender did not, unlike co-offenders, challenge the legality of the ANOM-based evidence; the court was not persuaded this amounted to facilitating the course of justice under section 22A of the Crimes (Sentencing Procedure) Act 1999 (at [80]).

Special circumstances and ICO

The court made a finding of special circumstances under section 44(2) of the Crimes (Sentencing Procedure) Act 1999, based on the offender's age, her first time in custody, and the need for an extended period of supervision to support relapse prevention on her return to the community (at [84]). Given the length of the sentence ultimately imposed (4 years and 6 months), an ICO was not available (at [86]).

Orders Made

  • The offender was convicted of supply prohibited drug greater than large commercial quantity (4.517kg of cocaine) under section 25(2) of the Drug Misuse and Trafficking Act 1985.
  • Sentenced to imprisonment for 4 years and 6 months, backdated to commence on 27 December 2022.
  • Non-parole period of 2 years and 3 months, commencing 27 December 2022 and expiring 26 March 2025.
  • Balance of term: 2 years and 3 months, from 27 March 2025 to 26 June 2027.
  • Four Form 1 offences certified as taken into account.
  • Parole eligibility date: 26 March 2025 (release to parole not automatic; subject to State Parole Authority determination).

Key Takeaways

  • The District Court confirmed that where objective seriousness falls below the mid-range for an offence under section 25(2) of the DMTA, the standard non-parole period of 15 years does not serve as a sentencing benchmark, but general deterrence, denunciation, and community protection remain significant sentencing considerations (at [77], [76]).

  • A courier role in a drug supply syndicate, even one at the lower end of a hierarchy, can still be assessed as integral to the syndicate's commercial purpose, particularly where the offender is trusted with bulk quantities of drugs and large amounts of cash over an extended period and across significant distances (at [72]).

  • Drug addiction that motivates offending may reduce an offender's moral culpability to some degree but does not constitute a freestanding mitigating factor in sentencing for serious commercial drug supply (at [81]).

  • Where an offender is diagnosed with mental health conditions (PTSD, Major Depressive Disorder, Generalised Anxiety Disorder), those conditions need not be causally connected to the offending to have sentencing consequences: consistent with De La Rosa, they can diminish the weight given to general and specific deterrence and may make custody more onerous (at [81]-[82]).

  • A finding of special circumstances under section 44(2) of the Crimes (Sentencing Procedure) Act 1999 was available on the combination of the offender's age, her being a first-time custodial offender, and the need for extended community supervision to support relapse prevention, resulting in an equal non-parole and balance-of-term split (at [84]-[85]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999
- Criminal Procedure Act 1986
- Drug Misuse and Trafficking Act 1985

Cases
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Chu v R [2023] NSWCCA 13
- Dang v R (2013) 237 A Crim R 522; [2013] NSWCCA 246
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Koh v R [2013] NSWCCA 287
- Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284