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District Court 8 September 2023

R v Golding

[2023] NSWDC 493

Drugs
SOCIAL BONDS — SPECIAL CIRCUMSTANCES

Citation: R v Golding [2023] NSWDC 493
Court: District Court of New South Wales
Date: 8 September 2023
Judge: Haesler SC DCJ

Background

Between March and April 2022, the offender was observed by police conducting covert surveillance to supply methylamphetamine across at least ten completed transactions, involving a total of 832 grams. He purchased the drug from an up-line supplier in Western Sydney and on-sold it to customers in his local community, operating mostly from a rental home he had obtained with the help of a homeless support organisation.

The offender was unemployed, receiving Centrelink payments, and, by his own evidence accepted by the court, was consuming approximately 1.7 grams of methylamphetamine per day himself. His profit margin was very small: his apparent motivation was to fund his own heavy drug use and cover modest living expenses rather than to accumulate wealth.

Police arrested him on 20 April 2022 after stopping his vehicle. Searches of both his car and his home uncovered further quantities of methylamphetamine, a small amount of cannabis, and several prescription tablets for which he held no prescription.

  • Whether the supply offence fell below, at, or above the middle of the range for large commercial quantity supply, having regard to the offender's role, the amount involved, and the duration of the conduct
  • How to avoid double-counting where the criminal group participation offence arose from the same conduct as the supply offence
  • Whether the Form 1 matters (relating to drugs found at the home after arrest) should increase the sentence, or merely "clear the slate"
  • Whether an Intensive Correction Order (ICO) was an appropriate sentencing disposition, given the offender's background of homelessness, mental health issues, drug addiction, and positive response to full-time rehabilitation
  • How to apply reductions for the guilty plea, time served, and quasi-custody (time spent in a residential rehabilitation centre)

Decision

Objective seriousness. Haesler SC DCJ found the offence was very serious in absolute terms: 832 grams exceeds the large commercial quantity threshold of 500 grams, approximately $110,000 in cash transacted, and the offender repeatedly drove to Sydney to collect supply. However, the court placed the offending at the lower end of the large commercial quantity range. The offender was at the bottom of the supply chain, directed no one, and operated essentially as a sole trader whose proceeds went almost entirely to sustaining his own addiction. There was no significant organisation or network.

Criminal group offence. The court accepted that the criminal group charge arose from the same conduct and unifying purpose as the supply charge. Haesler SC DCJ was careful not to double-count when fixing the length of the sentence for that offence and when considering accumulation.

Form 1 matters. The court determined that the items found at the offender's home after arrest reflected the chaotic nature of his drug-dependent lifestyle rather than aggravated criminality warranting increased punishment. Standing alone, those matters would not have attracted a custodial sentence. The court treated the Form 1 as one intended simply to clear the slate.

Subjective factors and the ICO. The court took into account a difficult personal history including homelessness, mental health issues, assault while in custody, and serious drug addiction. Significantly, the offender had spent time in full-time residential rehabilitation and demonstrated a genuine and positive response to that program. Haesler SC DCJ found that the offender who appeared for sentence was meaningfully different from the person who had accumulated prior community correction orders. After applying the 25% reduction for the utilitarian value of the guilty plea, reductions for time served and for quasi-custody spent in rehabilitation, the court concluded that an aggregate sentence served by way of ICO was appropriate.

Orders Made

  • An aggregate sentence of 2 years and 11 months imprisonment, commencing 8 September 2023 and expiring 7 August 2026
  • For the supply of a large commercial quantity of a prohibited drug: an indicated sentence of 2 years and 10 months, with a non-parole period of 1 year and 5 months
  • For participating in a criminal group: an indicated sentence of 9 months imprisonment
  • The aggregate sentence is to be served by way of Intensive Correction Order in the community, subject to the following conditions:
  • Be of good behaviour and accept supervision by Community Corrections
  • Report to the Windsor office within 7 days
  • Perform 200 hours of community service
  • Abstain from using illicit drugs
  • Submit to drug testing as directed
  • Engage in drug relapse prevention programs as directed
  • Engage in mental health programs as directed, including obtaining a Mental Health Care Plan
  • Authorise Community Corrections to consult service providers and family directly
  • Breach of conditions would be dealt with by the State Parole Authority, with potential return to custody to serve the balance of the sentence

Key Takeaways

  • An offender supplying a large commercial quantity of methylamphetamine can fall at the lower end of the objective seriousness range where their role is limited to sole-trader supply, they exercise no control over others, and their profit is directed almost entirely to funding personal addiction rather than generating wealth.

  • Where a criminal group participation charge arises from precisely the same conduct and unifying purpose as a drug supply charge, the sentencing court must take particular care not to double-count those facts when fixing the length of each sentence and when considering accumulation.

  • Form 1 matters are not invariably aggravating: where those matters reflect the offender's personal drug use and chaotic lifestyle rather than a separate criminal enterprise, a court may treat them as intended only to clear the slate, without increasing the principal sentence.

  • Quasi-custody in a residential rehabilitation centre is a recognised factor capable of reducing the sentence actually imposed at the time of sentencing, consistent with the principle that such time in a structured, restricted environment bears upon the sentence that remains appropriate.

  • A sentence for serious drug supply can be served by way of an Intensive Correction Order where the offender demonstrates a genuine and positive response to rehabilitation, and where the court is satisfied that the person appearing for sentence represents a meaningful departure from their prior offending self.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) (supply of large commercial quantity)
- Crimes Act 1900 (NSW), s 93T (participate in criminal group)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 5, s 21A(2)(m)

Cases
- Abel v R [2020] NSWCCA 82
- 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
- Hamzy v R (1994) 74 A Crim R 341
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 52; [2010] HCA 45
- Owen v R [2022] NSWCCA 214
- R v Campbell [1999] NSWCCA 76
- R v Consigli [2023] NSWDC 355
- R v Delaney [2003] NSWCCA 342
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Locchi (1991) 22 NSWLR 309
- R v Pullen [2018] NSWCCA 264
- R v Qi [2019] NSWCCA 73
- R v R E [2023] NSWCCA 184
- R v Thompson [2000] NSWCCA 362
- Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3
- Truss v R [2008] NSWCCA 325