Citation: R v Alpertonga [2023] NSWDC 606
Court: District Court of New South Wales
Date: 4 October 2023
Judge: Haesler SC DCJ
Background
NSW Police established a strike force in 2021 to investigate drug supply in the Illawarra region. Through optical and listening surveillance devices installed in a storage shed, police observed the offender and his cousin handling approximately 140 grams of cocaine (five ounces packaged in black gloves) across multiple visits to the shed in January and February 2022.
When police executed a covert search warrant at the shed on 14 February 2022, they found $72,750 in cash. The offender's fingerprints were found on one of the bags containing the money. Surveillance recordings captured him expressing distress at the money's disappearance. Additional cash and matching black PVC gloves were found at his home when he was arrested the following day.
The offender pleaded guilty in the Local Court to two offences: knowingly taking part in the supply of a prohibited drug (cocaine) under the Drug Misuse and Trafficking Act 1985 (NSW), and dealing with property reasonably suspected of being proceeds of crime under the Crimes Act 1900 (NSW).
Legal Issues
- What was the objective seriousness of the supply and proceeds of crime offences?
- What weight should be given to the offender's subjective circumstances, including his history of drug use, intellectual disability, good character, and compliance with strict bail conditions?
- Whether an Intensive Correction Order (ICO), rather than full-time custody, was appropriate given the need to balance community safety with rehabilitation prospects.
Decision
His Honour assessed the supply offence as serious enough to warrant a custodial sentence, noting that deterrence requires the community to understand that involvement in distributing significant quantities of illicit drugs carries a real risk of imprisonment. However, the offence was assessed as less serious than the most aggravated examples of its type. The offender played a warehousing role, providing premises for storage and facilitating distribution, but there was no evidence of direct dealing to users, management of the operation, decision-making authority beyond control of the shed, or any identifiable profit share.
The subjective case was substantial. The offender was treated as a first offender, entitled to the leniency ordinarily extended in such cases. A psychological report supported findings of intellectual disability and drug dependence. His strict bail compliance over an extended period, employment references, community involvement through his mosque, genuine remorse (albeit primarily directed at harm to his family rather than broader community harm), and his own letter to the court all weighed in his favour.
His Honour concluded that an ICO was appropriate in the community interest, noting that a period of full-time imprisonment would likely be counterproductive to rehabilitation. The aggregate sentence of 2 years and 3 months was reduced by 25 percent to reflect the early guilty plea. The ICO conditions were designed to address the factors underlying the offending, particularly drug use, while maintaining community supervision.
Orders Made
- Convicted on both counts.
- Sentence for knowingly taking part in supply: 1 year and 10 months.
- Sentence for possessing proceeds of crime: 1 year and 1 month.
- Aggregate sentence of 2 years and 3 months, to be served by way of Intensive Correction Order, commencing 4 October 2023 and expiring 3 January 2026.
- Four additional ICO conditions imposed: 250 hours of community service; engagement in drug rehabilitation and relapse prevention programs as directed; abstention from illicit drugs and submission to drug testing; and a non-association order with the offender's cousin.
- Forfeiture order to the State of New South Wales in the sum of $79,650.
Key Takeaways
- A warehousing or logistics role in a drug supply network, while less culpable than a management or direct-supply role, remains sufficiently serious to warrant a custodial sentence when a significant commercial quantity is involved. As the District Court noted by reference to R v Shi, such networks depend on individuals who perform support roles.
- Where an offender demonstrates sustained compliance with onerous bail conditions approximating home detention, that compliance can be treated as a practical indicator of rehabilitation progress and weigh meaningfully in the sentencing exercise.
- Intellectual disability and drug dependence are recognised as relevant subjective factors in sentencing, capable of reducing moral culpability, and a psychological report addressing these issues will carry significant weight.
- An ICO may be preferred over full-time custody where rehabilitation prospects are strong and community corrections supervision can adequately address the underlying causes of offending, consistent with the community safety considerations confirmed in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3.
- Expressions of remorse that focus on harm to the offender's family rather than broader community harm may still be accepted as genuine, but their mitigating weight can be limited where no insight into wider social harm is demonstrated.
Legislation and Cases Referenced
Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 6, 25(1)
- Crimes Act 1900 (NSW), s 193C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3
- R v RE [2023] NSWCCA 184
- R v Zheng [2023] NSWCCA 64
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- R v Shi [2004] NSWCCA 135
- Zreika v R [2012] NSWCCA 44
- Wise v R [2006] NSWCCA 264
- R v Anderson (1981) VR 155