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District Court 28 March 2024

R v Burns

[2024] NSWDC 191

Drugs

Citation: R v Burns [2024] NSWDC 191
Court: District Court of New South Wales
Date: 28 March 2024
Judge: Haesler SC DCJ

Background

The offender, a mid-level drug supplier operating in the Wollongong area, pleaded guilty in the Local Court to five offences arising from a four-month drug distribution operation between August and December 2021. The offences involved the supply of approximately 1.3 kilograms of methylamphetamine to at least two named buyers, who then distributed the drug at street level. Two additional matters were dealt with on a Form 1 (that is, taken into account at sentencing without separate conviction).

The offender ran the operation largely alone, with limited assistance from his then-partner. He was not part of a cartel and the operation was not described as particularly sophisticated, but it was sustained and profitable. Police surveillance of his phones and a storage unit in southern Wollongong resulted in the seizure of nearly $943,000 in cash and close to three kilograms of cannabis.

The sentencing exercise required the court to weigh the objective seriousness of the offences, including two charges carrying maximum penalties of life imprisonment, against substantial subjective mitigating factors. These included the offender's guilty pleas, a deeply disadvantaged childhood that included institutional sexual abuse, long-standing drug addiction, and mental health issues.

  • How to assess the objective seriousness of rolled-up charges for large commercial drug supply, and whether aggravating factors risk being double-counted
  • What weight to assign to the utilitarian value of early guilty pleas in the context of an aggregate sentence, and how to ensure that weight is not eroded by the accumulation process
  • How to achieve parity with sentences imposed on co-offenders and downstream buyers (including Figg, Ellerman, and Consigli)
  • How significant subjective factors, including childhood deprivation, institutional sexual abuse, drug addiction, and mental health disorders, bear on the sentence
  • Whether special circumstances existed justifying a departure from the standard ratio of non-parole period to head sentence

Decision

Haesler SC DCJ assessed the objective seriousness of each offence as very high. The offender occupied a decision-making, managerial role in the supply chain: he funded the operation, sourced the drugs, managed buyers, and retained the profits. The court noted that his contribution to maintaining the methylamphetamine market, and the harm that flows from that market, was a central consideration. The rolled-up charge structure was found appropriate and consistent with authority, though the court was careful not to double-count the number of supply occasions as a separate aggravating factor.

Each indicated sentence was reduced by 25% to reflect the utilitarian value of the early guilty pleas. The court took care, consistent with the principles in Green v The Queen and Mill v The Queen, to ensure this discount was not eroded by the mechanics of accumulating individual sentences into an aggregate.

The court applied the principles from Bugmy v The Queen in considering the offender's background. His childhood deprivation, including institutional sexual abuse, his resulting drug addiction, and his mental health conditions were treated as genuinely mitigating factors going to moral culpability, though they did not displace the seriousness of the offending. The court also found special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW), extending the ratio of the balance of term to non-parole period to allow a longer period of supervision on parole. This reflected the elevated risk of the offender becoming institutionalised and the need to support rehabilitation after a lengthy custodial term.

The court was also required to maintain appropriate parity with sentences imposed on those to whom the offender supplied drugs, including Figg, Ellerman, and Consigli. The offender's more central role in the operation justified a higher sentence than those imposed on his downstream buyers.

Orders Made

  • Sequence 3 (large commercial supply): 7 years 6 months, non-parole period 4 years 10 months
  • Sequence 21 (large commercial supply): 7 years 6 months, non-parole period 4 years 10 months
  • Sequence 4 (dealing with proceeds of crime, $943,000): 3 years 9 months
  • Sequence 7 (commercial supply of methylamphetamine, including Form 1 matters): 6 years, non-parole period 3 years 9 months
  • Sequence 8 (commercial supply of cannabis): 2 years 3 months
  • Aggregate sentence: 10 years 6 months, with a non-parole period of 6 years 10 months
  • Sentence to commence 15 March 2022; eligible for parole on 14 January 2029
  • Balance of term (reflecting special circumstances): 3 years 8 months from 15 January 2029; total sentence expires 14 September 2032
  • Release to parole subject to a positive community safety finding by the State Parole Authority
  • No confiscation proceedings before the court at the time of sentence; the court indicated it would entertain such proceedings if listed

Key Takeaways

  • The District Court confirmed that rolling up multiple drug supply transactions into a single large commercial quantity charge is appropriate, but sentencing courts must guard against double-counting the number of supply occasions as an additional aggravating factor under s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • A 25% reduction for utilitarian value of an early guilty plea must survive the accumulation process when an aggregate sentence is imposed; the court must take active steps to preserve that benefit across the individual indicated sentences.
  • Applying Bugmy v The Queen, severe childhood deprivation and institutional sexual abuse retained genuine mitigating weight, reducing moral culpability even where the offending was objectively serious and the offender had a prior criminal history.
  • Special circumstances were found where a long custodial sentence, combined with entrenched addiction and mental health issues, created a heightened risk of institutionalisation and underscored the importance of extended post-release supervision to support rehabilitation.
  • Parity with sentences imposed on co-offenders and downstream buyers remained a live consideration; a more central organisational role, including funding the operation and retaining profits, justified a materially higher sentence than those imposed on the offender's buyers.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2), 33(2), 33(3)
- Crimes Act 1900 (NSW), s 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(m)

Cases:
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
- Markarian v The Queen (2005) 228 CLR 357
- Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
- Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
- R v Glynatsis [2013] NSWCCA 131
- Hamzy v R (1994) 74 A Crim R 341
- Jadron v R [2015] NSWCCA 217
- Cahyadi v R [2007] NSWCCA 1
- Nasrallah v R [2021] NSWCCA 207
- Afu v R [2017] NSWCCA 246
- R v Gavel [2014] NSWCCA 56
- R v Burns [2010] NSWCCA 279
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 115; (2002)