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District Court 26 March 2024

R v Fornaciari

[2024] NSWDC 198

Assault & violenceDrugsPublic order & justice offences

Citation: R v Fornaciari [2024] NSWDC 198
Court: District Court of New South Wales
Date: 26 March 2024
Judge: Haesler SC DCJ

Background

The offender, born in 1983, appeared for sentencing on three offences arising from events in April and May 2022. He had initially pleaded not guilty in the Local Court and on arraignment, but entered guilty pleas on the morning of trial following discussions between the parties.

The first offence involved the commercial supply of methylamphetamine. Police investigating drug supply in the local area established that the offender acted as a middleman, sourcing methylamphetamine from an upline Sydney supplier and on-supplying it to a third party. Over three days in April 2022, a total of 283.5 grams (just within the commercial quantity threshold) was supplied, with a purchase price of approximately $56,000. The operation was described as haphazard and disorganised, with disputes over quality and unpaid debts.

The second and third offences arose from a confrontation in May 2022. The offender attended an acquaintance's home seeking money to repay his drug debt. When the conversation turned to money, the offender assaulted the complainant, striking him on the back of the head with sufficient force to cause a laceration requiring staples and resulting in concussion and overnight hospitalisation. Following the assault, the offender sent threatening text messages to the complainant's brother, warning that anyone present when he found the complainant, including women, children, and grandparents, would "cop it."

  • What sentence was appropriate for supply of a prohibited drug at commercial quantity under the Drug Misuse and Trafficking Act 1985 (NSW)?
  • What sentence was appropriate for reckless wounding under the Crimes Act 1900 (NSW)?
  • What sentence was appropriate for intimidation as a personal violence offence under the Domestic and Personal Violence Act 2007 (NSW)?
  • What discount, if any, should apply for the late guilty pleas?
  • How should subjective factors, including drug addiction, mental health disorders (including PTSD), and a deprived and traumatic childhood, bear on the sentence?
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio, and if so to what extent.

Decision

Haesler SC DCJ applied the instinctive synthesis method, considering the objective seriousness of each offence alongside the offender's subjective circumstances. The court identified a 5% reduction for the utilitarian value of the guilty pleas, noting the pleas came only on the morning of trial. The reduction was applied in a non-arithmetical way, rounded in the offender's favour, while ensuring the aggregate sentence was not diluted.

On the drug supply count, the court found the offence fell at the lower end of commercial supply, given the offender's role as a disorganised middleman. However, his lack of profit and personal drug use did not operate as mitigating factors. The court emphasised the systemic harm caused by middlemen, without whom upline suppliers could not operate.

The reckless wounding was treated as a serious act of violence against a vulnerable older complainant in his own home. The intimidation offence, involving explicit threats against anyone found with the complainant including children, was treated as grave in character. The court noted that had this charge stood alone, it would ordinarily have been dealt with in the Local Court, but the offender's history placed its venue at the prosecution's discretion.

On subjective matters, the court acknowledged the offender's difficult background, including a deprived and traumatic childhood, PTSD, and longstanding drug addiction. These factors explained, but did not excuse, the offending. Special circumstances were found, justifying a longer parole period than the standard ratio would produce, on the basis that extended post-release supervision and monitoring served both rehabilitation and community protection. The court expressed limited confidence in the prospect of rehabilitation given an entrenched record of recidivism, but acknowledged that release into the community under supervision remained necessary.

Orders Made

  • Drug supply (commercial quantity): sentence of 3 years and 4 months; non-parole period of 2 years and 4 months.
  • Reckless wounding: sentence of 2 years and 4 months; non-parole period of 1 year and 8 months.
  • Intimidation: sentence of 1 year and 8 months.
  • Aggregate sentence: 4 years and 6 months, with a non-parole period of 3 years and 1 month.
  • Sentence commences 17 May 2022.
  • Eligible for release to parole on 6 June 2025.
  • Parole period of 1 year and 5 months: commencing 17 June 2025, expiring 16 November 2026.

Key Takeaways

  • A late guilty plea, entered on the morning of trial, attracted only a 5% discount for utilitarian value. The District Court applied that reduction in a non-arithmetical way, rounding in the offender's favour while preserving the integrity of the aggregate sentence.

  • Acting as a disorganised, unprofitable middleman in a drug supply chain does not reduce the objective seriousness of a commercial supply offence. The court confirmed that the role middlemen play in enabling upline suppliers is itself a significant aggravating consideration.

  • Personal drug use and a failure to profit from the offending were explicitly rejected as mitigating factors for the drug supply count, though they were accepted as explanatory context.

  • Subjective factors including PTSD, drug addiction, and a traumatic and deprived childhood received modest weight in mitigation given the offender's extensive criminal history and the court's limited confidence that rehabilitation would occur.

  • Special circumstances were found on the basis that a longer parole period and extended post-release supervision were preferable to a longer minimum term, reflecting the protective purpose of sentencing alongside the rehabilitative goal, with the State Parole Authority retaining ultimate control over release.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) (supply prohibited drug, commercial quantity)
- Crimes Act 1900 (NSW), s 35(4) (reckless wounding)
- Domestic and Personal Violence Act 2007 (NSW), s 13(1) (intimidation intending to cause fear of physical or mental harm)

Cases cited: No cases were cited in the portions of the judgment provided.