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District Court 8 February 2024

R v Maalla

[2024] NSWDC 4

Drugs
CRIME SENTENCE BUTANEDIOL LARGE COMMERCIAL QUANTITY INDICTABLE QUANTITY MENTAL HEALTH

Citation: R v Maalla [2024] NSWDC 4
Court: District Court of New South Wales
Date: 8 February 2024
Judge: Newlinds SC DCJ

Background

The offender, aged 31 at the time of the offending, faced sentencing for two principal offences of knowingly taking part in the supply of 1,4-Butanediol (also known as BD or 1,4-BD, a prohibited drug), including one charge involving a large commercial quantity of 4.961 kg. A further charge of possessing methylamphetamine was dealt with under s 166 of the Crimes (Sentencing Procedure) Act 1999, and several additional matters were taken into account on a Form 1, including deemed supply, possession of a prohibited weapon, cannabis possession, and dealing with suspected proceeds of crime totalling $7,500.

The offending was identified through a police investigation into organised crime. Between 2 September and 15 November 2022, intercepted telephone communications revealed the offender participating in 54 drug transactions. When police executed a search warrant at his Bankstown premises on 17 November 2022, they found him attempting to pour methylamphetamine down the kitchen sink, and located significant quantities of butanediol, cannabis, cash, drug paraphernalia, and a prohibited butterfly knife at the property.

The offender had been in custody since his arrest on 17 November 2022, having been refused bail throughout the proceedings. He entered early guilty pleas in the Local Court on 20 September 2023, entitling him to a 25% reduction in sentence.

  • What aggregate custodial sentence was appropriate, having regard to the nature and quantity of the drugs, the offender's role, and all relevant objective and subjective factors?
  • What weight should be given to mental health issues and drug addiction in assessing moral culpability?
  • Whether special circumstances justified altering the standard ratio between the head sentence and the non-parole period.
  • Whether an Intensive Corrections Order (ICO) was a viable sentencing option.
  • How to treat the time already served in custody, particularly in light of a related Local Court sentence for contravening an Apprehended Violence Order (AVO) that was subsequently set aside on appeal.

Decision

His Honour characterised the offender as a low-level retailer rather than a significant or organising figure in the drug supply chain. The quantities involved were nonetheless serious: the principal charge involved a large commercial quantity of butanediol, carrying a maximum penalty of life imprisonment and a standard non-parole period of 15 years. His Honour accepted that general deterrence carries significant weight in drug supply cases, consistent with the Court of Criminal Appeal's approach in Parente v R.

In assessing moral culpability, the court acknowledged the offender's drug addiction and mental health circumstances as mitigating factors that reduced his subjective culpability, even though they did not diminish the objective seriousness of the offending. The offender's relatively low role in the supply chain was also a factor bearing on culpability. The early guilty plea attracted the full 25% discount under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999.

His Honour declined to impose an ICO, finding that full-time custody was the only appropriate option. A significant degree of concurrency between individual sentences was imposed to avoid an outcome that would crush the offender's rehabilitation prospects, with the connection between the offending and the offender's addiction treated as linking the various offences as part of a continued pattern of conduct.

On special circumstances, the court increased the non-parole proportion from the standard 25% to 40% of the head sentence. His Honour regarded extended post-release supervision as critical to supporting the offender's prospects of remaining drug-free and reducing recidivism, and also noted that the offender's experience in custody had been more arduous than usual, with some risk of institutionalisation.

Orders Made

  • The offender was convicted of two offences of knowingly taking part in supply of prohibited drugs, with the possession matter dealt with under s 166 and the Form 1 matters taken into account.
  • An aggregate term of imprisonment of 3 years was imposed, with a non-parole period of 1 year, 9 months, and 19 days.
  • The sentence commenced on 17 November 2022 and expires on 16 November 2025.
  • The earliest date of eligibility for release to parole is 4 September 2024.

Key Takeaways

  • The District Court treated the offender's drug addiction and mental health as relevant to reducing moral culpability at sentence, even where the objective seriousness of the offending remained high due to the quantities and commercial nature of the supply.
  • A low-level retail role in a drug supply operation is a factor capable of reducing an offender's position on the range of objective seriousness, notwithstanding that large commercial quantities are involved.
  • Where an offender's time in custody arose entirely from offences being sentenced, the court backdated the sentence accordingly, including where a related Local Court sentence had been set aside on appeal prior to the District Court sentencing hearing.
  • Special circumstances justifying a departure from the standard non-parole period ratio can be established by a combination of the need for extended post-release supervision to support rehabilitation and an unusually arduous period in custody.
  • Significant concurrency between individual sentences in a multi-offence drug matter may be warranted where the offences are linked by a common drug addiction and would otherwise produce an aggregate that crushes rehabilitation prospects.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 7(1), 21A(2)(d), 21A(3)(i), 25D(2)(a), 47, 66, 166
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1)
- Weapons Prohibition Act 1998 (NSW), s 34(1), cl 1(6)
- Crimes Act 1900 (NSW), s 193C(2)

Cases:
- Veen v R (No 2) (1988) 164 CLR 465
- Muldrock v The Queen (2011) 244 CLR 120
- Filippou v The Queen (2015) 256 CLR 47
- R v Way (2004) 60 NSWLR 168
- R v Henry [1999] NSWCCA 11
- Parente v R [2017] NSWCCA 284
- Moilerp v R [2021] NSWCCA 73
- Nguyen v R [2019] NSWCCA 209
- Kim v R [2019] NSWCCA 165
- Elchikh v R [2016] NSWCCA 225
- Oritz v R [2014] NSWCCA 260
- AB v R [2013] NSWCCA 160
- BP v R (2010) 201 A Crim R 379
- R v Denyer [1995] 1 VR 186