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District Court 20 June 2024

R v Togo

[2024] NSWDC 229

DrugsFirearms & weapons

Citation: R v Togo [2024] NSWDC 229
Court: District Court of NSW
Date: 20 June 2024
Judge(s): Priestley SC DCJ

Background

The offender faced six counts on indictment and one summary offence arising from a course of drug and firearms offending between June and August 2022. The charges included ongoing supply of methamphetamine, multiple counts of supplying prohibited drugs at various quantities, knowingly taking part in the supply of a commercial quantity of a prohibited drug, possession of an unregistered firearm, and bringing a prohibited drug into a place of detention. Five additional matters were placed on a Form 1 to be taken into account on the principal ongoing supply charge.

At the time of his arrest on 7 August 2022, the offender was on parole for earlier drug supply and prohibited weapon offences. He had been released on parole in June 2021, meaning he had returned to serious drug offending within approximately 12 months of his release. While in custody following arrest, the Local Court sentenced him to three months imprisonment for a separate prohibited weapon offence commencing 7 August 2022.

The offender ultimately pleaded guilty, attracting a 25% discount on each sentence. The question for the District Court was the appropriate aggregate sentence and non-parole period, taking into account objective seriousness, subjective circumstances, the Form 1 matters, and the principle of totality.

  • What was the appropriate aggregate sentence for a course of drug supply, possession and firearms offending committed while the offender was on parole?
  • How should the standard non-parole period for the section 25(2) (knowingly taking part in supply of a commercial quantity) offence be applied, given the offending was assessed as low in objective seriousness?
  • What was the correct commencement date for the aggregate sentence, having regard to the earlier Local Court sentence and the totality principle?
  • Whether special circumstances existed justifying a departure from the standard ratio between non-parole period and balance of term?
  • Whether the five drug supplies the subject of the ongoing supply count were established on the evidence, including where no direct evidence of actual supply existed for some occasions?

Decision

Objective seriousness and Form 1 matters: His Honour assessed all principal counts as low in objective seriousness, though Count 2 (80.96g of methamphetamine found in a vehicle) was treated as more serious than Count 1. The Form 1 matters, including a 7g methamphetamine supply and various possession offences, were taken into account on the principal ongoing supply charge. The court confirmed that the Form 1 procedure permits greater weight to be given to personal deterrence and retribution than might otherwise be warranted on the principal offence alone.

Inference of actual supply: On Count 1, the offender argued that no direct evidence proved some of the five supplies actually occurred. The court rejected this submission. Telephone intercept evidence showing the offender travelling to meet a purchaser, combined with one purchaser being apprehended in possession of the precise agreed quantity, supported an inference that all five supplies were completed. The court drew the same inference in relation to the fourth and fifth occasions based on the established pattern of dealing and discussion of outstanding debts.

Commencement date and totality: The court found that the appropriate commencement date for the aggregate sentence was 7 October 2022, rather than 7 November 2022 (when custody solely for the present offending began). This adjustment reflected the probability that, had all matters been sentenced together in the Local Court, a totality discount would have resulted in an earlier start date. Applying the principles in Veen v R (No 2) and Mill v The Queen, the court aggregated the sentences across Counts 1 to 5 and the summary matter into a single term.

Special circumstances: His Honour found special circumstances existed, principally because of the length of the aggregate sentence and the offender's rehabilitation needs. This justified extending the balance of term relative to the non-parole period, producing a four-year aggregate sentence with a two-year non-parole period. The 25% discount for guilty plea was applied to each individual indicative sentence before aggregation. For Count 6 (possession of an unregistered firearm described as a gel blaster), assessed as low in objective seriousness, the court imposed a two-year Community Corrections Order rather than imprisonment.

Orders Made

  • The offender was convicted of all six counts on the indictment and the one summary offence.
  • For Counts 1 to 5 and the summary matter: aggregate imprisonment commencing 7 October 2022, with a non-parole period of 2 years expiring 6 October 2024, and a balance of term of 2 years expiring 6 October 2026.
  • For Count 6 (possession of unregistered firearm): a Community Corrections Order of 2 years, commencing on the date of the order, subject to standard conditions of not committing any offence and presenting to the court if called upon.

Key Takeaways

  • The District Court confirmed that the Form 1 procedure permits a sentencing court to give greater weight to personal deterrence and community retribution than would otherwise apply on the principal offence, consistent with Attorney General's Application No 1 of 2002.
  • Under Muldrock v The Queen, the standard non-parole period operates as a legislative guidepost regardless of whether the offending falls at the middle of the range of seriousness; the court here applied a non-parole period well below the standard because the offending was of low objective seriousness and special circumstances were established.
  • Telephone intercept evidence showing arrangements for drug delivery, combined with circumstantial evidence of an ongoing supply relationship, was sufficient to support an inference that each of the five alleged supplies on the ongoing supply count had actually occurred.
  • Offending committed while on parole, and a return to serious drug dealing within 12 months of release, are significant aggravating factors in sentencing.
  • The totality principle can justify backdating the commencement of an aggregate sentence to reflect the sentence a court would likely have imposed had all concurrent matters been dealt with at the same time.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2), 25A(1)
- Firearms Act 1996 (NSW), s 36(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 54A (standard non-parole periods)
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 166, 253C(4)
- Poisons and Therapeutic Goods Act 1966 (NSW)

Cases:
- Muldrock v The Queen (2011) 244 CLR 120
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Veen v R (No 2) [1988] HCA 14
- Hall v The Queen [2021] NSWCCA 220
- R v Holder [1983] 3 NSWLR 245
- Mill v The Queen [1988] HCA 70
- Cahyadi v R [2007] NSWCCA 1