AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
District Court 25 August 2023

R v Swift

[2023] NSWDC 486

DrugsPublic order & justice offences
SOCIAL SUPPORT — SPECIAL CIRCUMSTANCES

Citation: R v Swift [2023] NSWDC 486
Court: District Court of New South Wales
Date: 25 August 2023
Judge: Haesler SC DCJ

Background

The offender pleaded guilty in the Local Court to two principal offences: participating in a criminal group under s 93T of the Crimes Act 1900 (NSW), and supplying not less than the commercial quantity of cocaine (438.44 grams) under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). He also asked the court to take into account two further matters on a Form 1: supply of 9.4 kilograms of cannabis and knowingly dealing with $20,000 in proceeds of crime.

The offending arose from a police investigation into a drug supply operation managed by a co-offender, Bojlevski, who ran what was described as a sophisticated network using encrypted devices and drug runners. The offender, himself addicted to cocaine, worked as a courier within that network. He conveyed drugs and cash, arranged safe houses and hire cars, added cutting agents to prohibited drugs, and handled proceeds of sales. His period of offending ran from January to September 2021.

The court described the offender as occupying the bottom level of the operation, taking on personal risk in exchange for cash and drugs, and functioning as a courier rather than a manager or organiser.

  • What sentence was appropriate for the supply and criminal group offences, accounting for the Form 1 matters?
  • How should the 25% guilty plea discount be preserved when accumulating sentences across two offences?
  • How should the court avoid double-counting when the criminal group offence substantially overlapped with the supply offence?
  • What weight should be given to subjective factors including drug addiction, childhood trauma, mental health, and prospects of rehabilitation?
  • Whether special circumstances existed to justify extending the balance of term beyond the statutory ratio.

Decision

Objective seriousness and the Form 1. The cocaine quantity of 438 grams sat approximately midway between the commercial threshold (250 grams) and the large commercial quantity (1 kilogram). Haesler SC DCJ noted that the standard non-parole period of 10 years for a mid-range supply offence, while not determinative, served as an important guide. The Form 1 matters increased the sentence for the supply offence to reflect personal deterrence and retribution, without being counted again when assessing objective seriousness.

Avoiding double-counting. The court took care to ensure that matters captured within the supply offence were not re-punished under the criminal group charge, and that Form 1 matters were not counted again as aggravating circumstances. However, the criminal group offence covered conduct, such as arranging infrastructure and handling proceeds, that was separate from the supply transactions themselves. That independent criminality warranted a modest, concurrent sentence.

Subjective factors. The offender's drug addiction, history of childhood trauma, and mental health difficulties were accepted as relevant mitigating circumstances. His early guilty plea was treated as evidence of both the utilitarian value of reducing court resources and genuine acceptance of responsibility and remorse. Progress made in custody, positive prosocial support, and a written commitment to rehabilitation all weighed in his favour.

Special circumstances. Haesler SC DCJ found special circumstances, which allowed the court to extend the non-parole period balance beyond the standard one-third ratio. The finding reflected the view that a longer period on supervised parole would better support the offender's rehabilitation and reintegration into the community.

Orders Made

  • The driving-using-a-mobile-phone matter under s 166 of the Criminal Procedure Act 1986 was dealt with by a s 10A order (conviction recorded, no further penalty imposed).
  • Each sentence reflects a 25% reduction for the utilitarian value of the guilty plea.
  • A finding of special circumstances was made.
  • Criminal group offence: sentenced to 1 year and 6 months imprisonment.
  • Supply offence: sentenced to 3 years imprisonment, with a non-parole period of 2 years.
  • Total sentence (accumulated): 3 years and 6 months, with a non-parole period of 2 years and 3 months.
  • Sentence commences 6 September 2021.
  • Eligible for consideration for release to parole on 5 December 2023.
  • Balance of term: 1 year and 3 months, commencing 6 December 2023.
  • Sentence expires 5 March 2025.
  • Forfeiture order of $20,000 confirmed.

Key Takeaways

  • Participation at any level in a commercial drug supply operation, including as a courier, will generally attract a custodial sentence of meaningful length, even where the offender is not an organiser or manager.
  • Where rolled-up transactions place an offender within the commercial quantity range, the court must take care not to then apply the aggravating circumstance in s 21(2)(m) of the Crimes (Sentencing Procedure) Act 1999 (multiple offences), as doing so would constitute double-counting.
  • Under the principle confirmed in Bugmy v The Queen (2013) 249 CLR 571, childhood trauma and its effects on an offender's development remain relevant mitigating factors regardless of the seriousness of the offending.
  • A finding of special circumstances can be made where the court determines that a longer supervised parole period will better serve rehabilitation, resulting in an extended balance of term beyond the standard statutory ratio.
  • The District Court acknowledged the limits of purely punitive approaches to drug offending, noting that custody alone does not resolve the social conditions that give rise to illicit drug use.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 93T, 193C(2)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 21(2)(m), 37
- Criminal Procedure Act 1986 (NSW), s 166

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
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Dungay v R [2020] NSWCCA 209
- Hamzy v R (1994) 74 A Crim R 341
- Jadron v R [2015] NSWCCA 217
- Lloyd v R [2022] NSWCCA 18
- Nasrallah v R [2021] NSWCCA 207
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- R v Blair (2005) 152 A Crim R 462
- R v Gavel [2014] NSWCCA 56
- R v Millwood [2012] NSWCCA 2
- R v MJB [2014] NSWCCA 195
- R v Shi [2004] NSWCCA 135
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v Tuki (No 4) [2013] NSWSC 1864
- Stanton v R [2021] NSWCCA 123