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District Court 6 December 2023

R v Da Silva

[2023] NSWDC 588

DrugsFraud & dishonesty

Citation: R v Da Silva [2023] NSWDC 588
Court: District Court of New South Wales
Date: 6 December 2023
Judge(s): Bennett SC DCJ

Background

The offender, born in the first half of 1997, was arrested on 29 September 2022 at Carlton, NSW. On that day, police executed search warrants and discovered large quantities of methamphetamine and cocaine concealed in his vehicle, and cash totalling $233,910 found across his residence, his person, and a hidden compartment in his Volkswagen Caddy panel van.

The offender had been observed the previous day driving around the Carlton area. On the day of arrest, he travelled with another man named Rodriguez to Oakhurst in Western Sydney, where he retrieved a black backpack from parkland. The backpack contained nearly 3.5 kilograms of methamphetamine at 80.3% purity. Searches of his vehicle also revealed further methamphetamine and cocaine hidden in a concealed compartment.

The offender pleaded guilty in the Local Court on 9 August 2023 to three principal offences: dealing with money believed to be proceeds of crime (sequence 1), trafficking in a commercial quantity of methamphetamine (sequence 2), and trafficking in a marketable quantity of cocaine (sequence 7). He also asked the court to take into account a further trafficking offence (sequence 8) when sentencing on sequence 2, pursuant to section 16BA of the Crimes Act 1914 (Cth).

  • What individual sentences were appropriate for each of the three principal offences, having regard to the objective seriousness, the offender's personal circumstances, and the guilty pleas?
  • What discount should apply to reflect the utility of the early guilty pleas?
  • Whether an aggregate sentence was appropriate under section 4K(4) of the Crimes Act 1914 (Cth), and how the totality principle should be applied across multiple serious offences.
  • What weight, if any, should be given to the offender's drug use as a mitigating factor on sentence?

Decision

Bennett SC DCJ imposed an aggregate sentence under section 4K(4) of the Crimes Act 1914 (Cth), having first determined the individual sentences that would have applied to each offence separately. The court identified separate sentences of five years and three months for the proceeds of crime offence (sequence 1), eleven years and three months for the commercial quantity methamphetamine trafficking (sequence 2), and six years for the marketable quantity cocaine trafficking (sequence 7). Each of those figures already reflected a 25% discount for the guilty pleas entered in the Local Court.

The court found that the offender's drug use was not a mitigating factor in the strict sense, applying reasoning from the Court of Criminal Appeal in the Henry Barber line of authorities. Consistent with the approach in that line of cases, while drug addiction may be relevant to questions of impulsivity or state of mind, it does not excuse or reduce moral culpability for offences of this kind, particularly where no impulsivity was involved and the offender was motivated by financial gain.

The court also confirmed, pursuant to section 16BA of the Crimes Act 1914 (Cth), that the additional trafficking offence in sequence 8 had been taken into account when fixing the sentence for sequence 2. The offender signed the required document acknowledging this, and the court certified it accordingly.

Orders Made

  • The offender was convicted of each of the three principal offences (sequences 1, 2, and 7).
  • An aggregate sentence of 12 years and nine months was imposed, commencing 29 September 2022 and expiring 28 June 2035.
  • A non-parole period of eight years and three months was specified, expiring 28 December 2030.
  • The additional offence in sequence 8 was formally taken into account under section 16BA of the Crimes Act 1914 (Cth) in relation to sequence 2.

Key Takeaways

  • The District Court applied a 25% guilty plea discount after the offender entered pleas in the Local Court, reflecting the utilitarian value of those pleas at an early stage of proceedings.
  • Under the approach confirmed in cases such as R v Henry Barber and the Henry Barber line of Court of Criminal Appeal authority, drug addiction does not operate as a general mitigating factor in serious trafficking matters; it may be relevant only to narrow considerations such as impulsivity or diminished capacity, neither of which applied on these facts.
  • An aggregate sentence under section 4K(4) of the Crimes Act 1914 (Cth) requires the court to first specify the individual sentences that would have applied to each separate offence, providing transparency in how totality is achieved.
  • Where a defendant asks for additional offences to be taken into account under section 16BA of the Crimes Act 1914 (Cth), the court must certify that it has done so, and the defendant must sign the relevant acknowledgment document.
  • Large quantities of pure methamphetamine (totalling over 5,400 grams across both charges) and cocaine, combined with the concealment of substantial proceeds of crime, placed these offences at a serious level of objective culpability, reflected in the length of the aggregate sentence.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 302.2(1), 302.3(1), 302.4(1), 400.4(1)
- Crimes Act 1914 (Cth), ss 3E, 4A(4), 4K(4), 16BA
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Henry Barber Tran Silver Tsoukatos Kyroglou Jenkins [1999] NSWCCA 111
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1991 (No 1 of 2002) [2002] NSWCCA 518
- R v Shi [2004] NSWCCA 135
- Kim v The Queen [2016] VSCA 238
- Wong v R [2001] HCA 64